                   N0. 01-14-01004-CV

                       IN THE                           FILED IN
                                                 1st COURT OF APPEALS
               FIRST COURT OF APPEAL                 HOUSTON, TEXAS
                    AT HOUSTON                   10/22/2015 4:44:20 PM
                                                 CHRISTOPHER A. PRINE
             ___________________________                  Clerk

                   Kevin CAMPBELL,
                         Apellant
                            v.
    Catherine N. WYLIE and M. Brandon MAGGIORE
                         Appelees
             ___________________________


On appeal from the Galveston County Statutory Probate Court

                 Galveston County, Texas

            Trial Court Case Number PR-74571

                   APELLEES INDEX


                             Respectfully submitted,
                             M. Brandon Maggiore
                             State Bar No.: 24078901
                             Maggiore Law Firm, PLLC
                             2442 S. Downing Street, Suite 100
                             Denver, CO 80210
                             Telephone: (713) 239.3347
                             Facsimile: (713) 581.1894
                             brandon@maggiorelawfirm.com
                             GUARDIAN AD LITEM FOR
                             LONNIE PHILLIPS, JR., AN
                             INCAPACITATED PERSON
Trial court orders

01/30/2014 - Application for Temp. Guardian Pending Contest ...................... Tab 1

01/30/2014 - Order Appointing Temp. Guardian Pending Contest .................. Tab 2

03/13/2014 - Standards for Court Approval of Appointee Fee Petitions .......... Tab 3

03/28/2014 - Motion and/or Notice to Withdraw Guardianship and Close

  Estate .............................................................................................................. Tab 4

12/20/2014 - Order Authorizing Appointee Fees .............................................. Tab 5

12/31/2014 - Order Appointing Guardian Ad Litem......................................... Tab 6

08/05/2015 - Application for as is Sale of Real Property.................................. Tab 7

08/28/2015 - Order Authorizing Sale of Real Property .................................... Tab 8

09/08/2015 - Motion for Instructions (regarding a Do Not Resuscitate Order) Tab 9

09/21/2015 - Amended Application for as is Sale of Real Property ............... Tab 10

10/07/2015 - Order on Amended Application for As is Sale of Real PropertyTab 11


Statutes

Tex. Est. Code Ann. § 1054.001 (West 2014) ............................................... Tab 12

Tex. Est. Code Ann. § 1051.055 (West 2014) ................................................ Tab 13

Tex. Est. Code Ann. § 1051.104 (West 2014) ................................................ Tab 14

Tex. Est. Code Ann. § 1051.104(a) (West 2014) ............................................ Tab 15

Tex. Est. Code Ann. § 1051.104(c) (West 2014). ........................................... Tab 16

Tex. Est. Code Ann. § 1051.106 (West 2014) ................................................ Tab 17
Tex. Est. Code Ann. § 1051.153 (West 2014) ................................................ Tab 18

Tex. Est. Code Ann. § 1054.055 (West 2014) ................................................ Tab 19

Tex. Est. Code Ann. § 1054.201 (West 2014) ................................................ Tab 20

Tex. Est. Code Ann. § 1104.101 (West 2014) ................................................ Tab 21

Tex. Est. Code Ann. § 1104.102 (West 2014) ................................................ Tab 22

Tex. Est. Code Ann. § 1104.354. (West 2014) ............................................... Tab 23

Tex. Est. Code Ann. § 1105.251. (West 2014) ............................................... Tab 24

Tex. Est. Code Ann. § 1152.001 (West 2014) ................................................ Tab 25

Tex. Est. Code Ann. § 1158.051 (West 2014) ................................................ Tab 26

Tex. Est. Code Ann. § 1158.255 (West 2015) ................................................ Tab 27

Tex. Est. Code Ann. § 1251.007 (West 2014) ................................................ Tab 28

Tex. Est. Code Ann. § 1251.051 (West 2014) ................................................ Tab 29

Tex. Est. Code Ann. § 1251.052 (West 2014) ................................................ Tab 30


Cases

Bridgman v. Moore, 183 S.W. 2d 705 (Tex. 1944) ........................................ Tab 31

Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149 (Tex.1988) ......... Tab 32

Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (Tex.App.—
 Houston [14th Dist. 2008, no pet.)............................................................... Tab 33

Casteel-Diebolt v Diebolt, 912 S.W.2d 302 (Tex. App—Houston [14th
 Dist.] 1995, no writ) ..................................................................................... Tab 34

City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004) ........... Tab 35
City of San Antonio v. Longoria, 04–04–00063–CV, 2004 WL 2098074
  (Tex.App.-San Antonio Sept. 22, 2004, no pet.) (mem. op.) ....................... Tan 36

Daniel v. Falcon Interest Realty, Corp., 190 S.W.3d 177 (Tex.App.—
 Houston [1st Dist.] 2005, no pet.) ............................................................... Tab 37

Ex parte R.D.N., 918 So.2d 100 (Alabama 2005) ........................................... Tab 38

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) ............................... Tab 39

Hamilton County v. Cooper, No. 05–07–00307–CV, 2007 WL 2774166,
 (Tex.App.-Dallas Sept.25, 2007, no pet.) .................................................... Tab 40

Heard v. Houston Post. Co., 684 S.W.2d 210 (Tex.App.—Houston [14th
 Dist.] 1984, writ refused n.r.e.) .................................................................... Tab 41

In re G.S., No. 14–14–00477–CV, 2014 WL 4699480 (Tex. App.—Houston
  [14th Dist.] 2014, no pet.) (mem. op.) ......................................................... Tab 42

In re H.B.N.S., Nos. 14-05-004100-CV, 14-06-00102-CV, 2007 WL
  2034913 (Tx.App—Houston [14th Dist. July 17, 2007, review denied)
  (mem. op.) .................................................................................................... Tab 43

In re Leon, No. 14-13-01134-CV 2014 WL 953491 (Tex.App.—Houston
  [14th Dist.] March 11, 2014, no pet.) (original proceeding)........................ Tab 44

In re Smith, No. 05–09–00913–CV, 2010 WL 4324434 (Tex. App—Dallas
  Nov. 3, 2010, orig. proceeding, no pet.) (mem. op.).................................... Tab 45

In the Matter of J.B.K., 931 S.W.2d 581 (Tex.App.—El Paso 1996, no pet.) Tab 46

Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (Tex. 1973) ..................... Tab 47

Manon v. Solis, 142 S.W.3d 390 (Tex.App—Houston [14th Dist. 2004,
 review denied) .............................................................................................. Tab 48

Parkway Hosp. Inc., v. Lee, 946 S.W.2d 580 (Tex.App.—Houston [14th
  Dist.] 1997) (reversed on other grounds) ..................................................... Tab 49

Pearland Capital Group, LP v. Horizon United Group International et al, No.
  01-11-00324-CV 2011 WL 4611533 (Tex.App.—Houston [1st Dist.]
  September 30, 2011, no pet.) (mem. op.)..................................................... Tab 50
Poland et al v. Grigoer et al, 249 S.W.3d 607 (Tex.—App. Houston [1st.
  Dist.] 2008) .................................................................................................. Tab 51

Riggins v. Hill et al, 461 S.W.3d 577 (Tex.App.—Houston [14th Dist.]
  2014, pet. denied). ........................................................................................ Tab 52

Robinson v. Alief I.S.D., 298 S.W.3d 321 (Tex.App.–Houston [14th Dist.]
 2009, pet. denied) ......................................................................................... Tab 53

Scurlock Permian Corp. v. Brazos County et al, 869 S.W.2d 478
  (Tex.App.—Houston [1st Dist.] 1993, writ denied) .................................... Tab 54

Simon v. York Crane & Rigging, Co., Inc., 739 S.W.2d 793 (Tex. 1987) ..... Tab 55

Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859
 (Tex.App.—Texarkana 2005, pet. denied) .................................................. Tab 56

Texas Dept. of Transp. v. Able et al, 35 S.W.3d 608 (Tex. 2000) .................. Tab 57

Thompson v. Ricardo, 269 S.W.3d 100 (Tex.App.–Houston [14th Dist.]
 2008, no pet.) ............................................................................................... Tab 58

Till v. Thomas, 10 S.W.3d 730 (Tex.App.-Houston [1st Dist.] 1999, no pet.) Tab 59

Trimble v. Texas Department of Protective and Regulatory Services, 981
  S.W.2d 211 (Tex.App—Houston [14th Dist.] 1998, no pet.) ...................... Tab 60

Warth v. Seldin, 422 U.S. 490 (1975) ............................................................. Tab 61

Weaver v. Sw. Nat’l Bank, 813 S.W.2d 481 (Tex. 1991). .............................. Tab 62

Whatley v. Walker, 302 S.W.3d 314 (Tex.—App.Houston [14th Dist.] 2009
 pet. denied) ................................................................................................... Tab 63

Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007, per curiam) .......................... Tab 64

Other Authorities

Op. Tex. Att’y Gen. No. H-410 (1974) ........................................................... Tab 65
                                 CAUSE NUMBER PR-74571


IN THE GUARDIANSHIP OF                           §                IN THE PROBATE COURT

                                                 §
LONNIE PHILLIPS, JR.,                            §                             GALVESTON

                                                 §
AN INCAPACITATED PERSON                          §          GALVESTON COUNTY, TEXAS


                     APPLICATION FOR APPOINTMENT OF
               TEMPORARY GUARDIAN OF THE PERSON AND ESTATE
                            PENDING CONTEST

TO THE HONORABLE JUDGE OF SAID COURT:




       NOW COMES, M. Brandon Maggiore, Guardian Ad Litem, ("Applicant"), and makes

and files this Application for Appointment of Temporary Guardian of the Person and Estate of

Lonnie Phillips, Jr., an Adult, ("Proposed Ward") Pending Contest pursuant to Sec. 1251.051,

Tex. Est. Code. Applicant is not related to the Proposed Ward. Applicant's address is 1001 Texas

Avenue, Suite 1400, Houston, Harris County, Texas. Applicant would respectfully show the

Court the following:

                                                 I.

       The Proposed Ward is a male who is 87 years old, having been born on July 25, 1926.

The Proposed Ward currently resides at 2800 East League City Parkway, #720, Texas City,

Galveston County, Texas.

                                                II.

       There is an imminent danger that the Proposed Ward's physical well-being may be

Phillips, Lonnie -Application for Temporary Guardian Pending Contest              Page 1 o£6



                                                                                                   Page 10
impaired and Proposed Ward's estate may be wasted because Proposed Ward is unable to make

reasonable, informed decisions concerning his health or his estate and litigation involving the

Proposed Ward has been instituted without a Guardian being appointed to represent his legal and

interests.

                                                III.

        A necessity exists for the appointment of a Temporary Guardian of the Person and Estate

of Proposed Ward pending the contest of the Application for Appointment of a Permanent

Guardian. Applicant requests that the Court appoint a Temporary Guardian of the Person, if it is

needed, and a Temporary Guardian of the Estate of Proposed Ward, which Estate is valued at

approximately $60,000.00, including any compensation, pension, insurance, or allowance to

which the Proposed Ward may be entitled.

                                                IV.

        Applicant states to the Court that the dangers to the Person and Estate of the Proposed

Ward which require immediate action include the immediate danger posed to the Proposed

Ward's legal and pecuniary interests, which legal and financial matter's may place him in danger

of loosing his current residence. The facts necessitating the guardianship are set out in further

detail in Section VIII below.




II




Phillips, Lonnie -Application for Temporary Guardian Pending Contest              Page 2 o£6



                                                                                                    Page 11
                                                v.
         Applicant states that Lance Ervin Phillips, whose address is 2813 Moore Avenue, Bay

City, Texas, holds a general power of attorney signed by the Proposed Ward, which Power of

Attorney is attached as "Exhibit A."

                                                VI.

         Applicant requests that the powers granted Lance Ervin Phillips under the power of

attorney be terminated on the qualification of the temporary guardian.

                                               VII.

         Applicant requests that if the Court appoints a Temporary Guardian, it grant him or her

the powers and authority to represent the Proposed Ward's interests in any pending litigation; to

initiate additional litigation if necessary to recovery the Proposed Ward's assets or to protect his

assets, property, or well being; to review and any and all documents from his prior attorney for

the last five years and for any time period for estate or incapacity planning documents; the right

to retain litigation counsel if necessary to adequately act on any of the foregoing requested

powers; the right to collect all the Ward's assets and property, both real and personal, wherever

situated and by whomsoever held, including to become the payee for any pension, retirement,

Social Security, or other income, retirement, or public benefit; to order any workmen or repair

work being done to the Proposed Ward's residence either cease or continue; and to make monthly

expenditures on the Ward's behalf from the Ward's Estate not to exceed an amount set by the

Court.




II


Phillips, Lonnie -Application for Temporary Guardian Pending Contest                  Page 3 o£6



                                                                                                       Page 12
                                               VIII.

       Applicant states to the Court that the facts and reasons which support the requested

powers are The Proposed Ward's estate is in imminent danger of irreparable damage due to his

lack of proper representation in the pending lawsuit against Paul Davis Restoration, 405th

Judicial District Court, Galveston County Cause Number 14-CV-0027. In this cause, here is a

discrepancy whether the Petitioners are acting pro se or are represented by Ms. Davis: The

pleading states it was filed by two children of the Proposed Ward, Ava Phillips and Kevin

Campbell, in an individual capacity and as next friend of the Proposed Ward. This Petition was

drafted by Ms. Veronica Davis, signed for the Petitioners "with permission," but the Petition

itself lists the Petitioner's as "pro se." The District clerk, however, lists Ms. Veronica Davis as

lead Counsel and Ms. Davis signed the request for service of citation. This litigation was filed

after the guardianship proceeding was initiated in this court.

       Moreover, The Proposed Ward's assets are being spent by family members and Ms.

Veronica Davis for repairs and materials, ostensibly for the repair of his home which was

damaged by fire without a proper person to oversee that the expediters actually benefit the

Proposed Ward and/or his Estate and that such expenditures are in the best interest of the

Proposed Ward.

                                                IX.

       Applicant prays that a hearing on this Application be set; that the Court appoint a proper

person Temporary Guardian of the Person and Estate of Lonnie Phillips, Jr., an Incapacitated

Adult; that the Court Order appointing Temporary Guardian be effective upon the guardian

taking the Oath and giving a bond as required by law; that upon the Temporary Guardian's


Phillips, Lonnie -Application for Temporary Guardian Pending Contest                Page 4 o£6



                                                                                                      Page 13
qualification, the Clerk of this Court shall so note such qualification on any certified copy of said

Order; that the Court appoint an Attorney Ad Litem to represent the Ward's Person and Estate, if

not already appointed; and that the Court enter any other Orders it deems necessary.




                                             Respectfully submitted,


                                             MAGGIORE LAW FIRM PLLC
                                             1001 TexasAvenue, Suite 1400
                                             Houston, TX 77002




                                             M. Brandon Maggiore
                                             Guardian Ad Litem, Applicant
                                             State Bar No.: 2408901
                                             E-mail: brandon@maggiorelawfirm.com




                                                                                   FlLED
                                                                             2114 JAN 30 PH 2: 51t

                                                                               . COUNTY CLERK
                                                                             GALVESTON COUNTY. TEXAS


Phillips, Lonnie -Application for Temporary Guardian Pending Contest                   Page 5 o£6



                                                                                                        Page 14
STATE OF TEXAS                                                §
                                                              §
COUNTY OF HARRIS                                              §


        BEFORE ME, the undersigned authority, on this day personally appeared M. Brandon
Maggiore, Guardian Ad Litem, Applicant in the foregoing Application for Appointment of
Temporary Guardian of the Person and Estate of Lonnie Phillips, Jr., an Adult, Pending Contest
known to me to be the person whose name is subscribed to the above and foregoing Application
and stated under oath that such Application contains a correct and complete statement of the facts
and matters to which it relates and all the contents thereof are true, complete and correct to the
best of Applicant's knowledge.




                                                            Applicant

                 SWORN AND SUBSCRIBED TO BEFORE ME on this theQ:}_ day of                           Jif!U&v'"'J
2014.



                            KARISSA BETH MENDENHALL         Notary Public, State ofTexas
             :        ';    Notary Public, State of Texas
        ..                    Mv Commission Expires
             .,,,w;,....-      December 11, 2016




                                                                                               F\LED
                                                                                       2814 JAN 30 PH 2: Sit


                                                                                           GALVESTON COUHlY· TEXAS



Phillips, Lonnie -Application for Temporary Guardian Pending Contest                              Page 6 o£6



                                                                                                                     Page 15
UEXHIBIT A"




                   FILED
              2814 JAN 30 PH 2: Sit

                   COUNTY CLERK
              GALVESTON COUNTY. TEXAS




                                        Page 16
                                                                                         . ------- ··------
,----._
 .. .                                                       1110011m111111111                      2812841328..
                                                                                         3 PGS

               077430
                             POWER OF ATI'ORNEY- GENERAL

                 Lt,,...,       Pk.t{:               rt (the "Gnntoi') haeby glllll18 to
          l              E&Vrl\1                           (the"Agent")ageneralpowerof
          attorney. As the Grantor's attomey in fact, the Ageot sball have full power and
          authority to undertake any and an acts which may be lawtblly uodertaken on
          behalf of the grantor including but not limited to the riaht to buy, sell, lease,
          mortgage, assign, rent or otherwise dispose of any teal or personal property
          belonging to the Grantor; to execute, accept, undertake 8Dd perform comracts in
          the name of the Grantor; to deposit, endorse, or witbdraw funds to or from any
          bank depository of the Grantor; to initiate, defend or settle legal actions on behalf
          of the Grantor; and to retain any accountant, attorney or other advisor deemed by
          the Agent to be necessary to protect the interests ofthe Grantor in relation to such
          powers.

                 By accepting this grant, the Agent agrees to act in a fiduciary capacity
          coasisteat with the reasoDable best iDteJests of the Grantor. This power of
          attorney may be revoked by the Grantor at any time; however, any penon cleating
          with the Ageot as attorney in          rely on this appointment until receipt of
          actual notice of termination.

-.




              A CERTIFIED COPY



     0        Janet Hlckl. County Clerk
              _Matagorda County. Texas
              Page _l_ of        :J,...
                                          ··
                                                            03500177011001
                                                            Year: 2007 No: 077430 Type: PA
                                                                                                                  !




                                                                                                                  Page 17
            ,r
        ' l,.




                      FILED
                  .
                 ZDDl SEP 21 PH 3: 17


                      COUNTY CLERK
                 HATAGOROA COWF v. TEXAS           SEP 2t.·D7
    •
                                                                                              '   ; ·   ...
                                           COUNTY ClER!<. MltiQoldl County,,._




                                                 0 ==='Q;£0    A CERTIFIED COPV



                                                                Page
                                                                                       <




                                                                                           PH 2: 5lt

                                                                                 COUNTY CLERK
                                                                           GALVESTON COUNTY. TEXAS

L




                                                                                                              Page 18
                                CAUSE NUMBER PR-74,571


 IN THE GUARDIANSHIP OF                        §                 IN THE PROBATE COURT
                                               §
 LONNIE PHILLIPS, JR.                          §                                            OF
                                               §
 AN INCAPACITATED PERSON                       §           GALVESTON COUNTY, TEXAS




                               CERTIFICATE OF SERVICE

       I, Matthew Brandon Maggiore, certify that the foregoing instrument was served on each

attorney of record or party in accordance with the Texas Rules of Civil Procedure on January 30,

2014 as follows:




                                            Matthew Brandon
                                            Guardian Ad Litem
Veronica L. Davis
Attorney for Applicant
Texas Bar No. 05557300
226 N. Mattson
West Columbia, Texas 77486
Telephone: (979) 345-2953
Facsimile: (979) 345-5461




                                                                                      FILED
                                                                                2014 JAN 30 PH 2: 54

                                                                                     COUNTY CLERK
                                                                                GALVESTON COUNTY. TEXAS




                                                                                                     Page 19
                              CAUSE NUMBER PR-74571


IN THE GUARDIANSHIP OF                      §                 IN THE PROBATE COURT

                                            §
LONNIE PHILLIPS, JR.,                       §                            GALVESTON

                                            §
AN INCAPACITATED PERSON                     §          GALVESTON COUNTY, TEXAS



                 ORDER APPOINTING TEMPORARY GUARDIAN
                           PENDING CONTEST

      On this day came on to be considered the Application of M. Brandon Maggiore,

Guardian Ad Litem, for the Appointment of a Temporary Guardian Pending Contest of

the Person and Estate of Lonnie Phillips, Jr., An Incapacitated Person, whose presence

was determined to be not necessary by the Court. The Court, after having been advised

that a contest to the appointment of a Guardian has been filed, and after having

considered said Application for the Appointment of a Temporary Guardian Pending

Contest and the evidence submitted, finds there is clear and convincing evidence that

an imminent danger exists making it necessary for the Court to appoint a Temporary

Guardian, pending contest, pursuant to Section 1251.051 of the Texas Estates Code; that

                            _·_ _ _ _ _ _ _ _        is eligible to act as such Temporary

Guardian pending contest; that said appointment is in the best interest of the Proposed

Ward; that Lonnie Phillips, Jr., is An Incapacitated Person and his Person and Estate



PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST                 PAGE   1 OF 4



                                                                                            Page 25
require immediate care; that this Court has jurisdiction over the subject matter and over

the parties herein.

       NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE

REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE

PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO

ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER.                            A

PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE

OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST

ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS

PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE

TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF

THE COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD.                                  ANY

PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS

INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE

PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A

FINE OF AS MUCH AS $10,000.

       IT IS THEREFORE ORDERED, that                    Ouli-t.uttt rJ ·
whose address is      d;-11    f\JJr(i:llc   Sf-.       tf/0,              r fX    ']   whose

telephone number is    -1/J                         is appointed Temporary Guardian of the

Person and Estate of Lonnie Phillips, Jr., An Incapacitated Person, pending the trial on



PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST          PAGE 2 OF 4




                                                                                                Page 26
the contest of appointment of a Guardian.

      IT IS FURTHER ORDERED, that the Clerk shall attach a certificate to this Order

showing compliance upon the Guardian taking her Oath and giving a bond in the sum

of$                  , which is the proper sum hereby Ordered fixed in accordance with

the requirements of law.

      IT IS FURTHER ORDERED, by the Court that the Temporary Guardianship

shall be enforced for a period of sixty (60) days from the date of original Application for

Appointment of a Temporary Guardian Pending Contest, in accordance with Section

1251.151 of the Texas Estates Code, or at the conclusion of a trial on the contest, in

accordance with Section 1251.051 of the Texas Estates Code, whichever is later.

      IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and

Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the powers and

authority to represent the Proposed Ward's interests in any pending litigation; to initiate

additional litigation if necessary to recovery the Proposed Ward's assets or to protect his

assets, property, or well being; to obtain any and all documents from his prior attorney

for the last five years and for any time period for estate or incapacity planning

documents; the right to retain litigation counsel if necessary to exercise any of the

foregoing powers.

       IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and

Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the right to collect all


PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST                   PAGE   3 OF 4



                                                                                               Page 27
the Ward's assets and property, both real and personal, wherever situated and by

whomsoever held, including to become the payee for any pension, retirement, Social

Security, or other income, retirement, or public benefit.

       IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and

Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the right to order any

workmen or repairs being done on the Ward's property or on the Ward's behalf either

cease or continue work.

       IT IS FURTHER                         the Temporar Guardian of the Person and
                                                                                                                         /'

Estate of Lonnie Phill" s, Jr., An Incapacitate     erson, is permitted to make monthly
                                                                                /                                  /
                                                                                                               /
                 /
                                                                          //                           /'
expenditure    on the Ward's be          f from    the Ward's Est9-te not toJ exceed




       IT IS FURTHER ORDERED, that the Temporary Guardian shall not change the

Ward's residence without first obtaining Court approval except to mitigate an

immediate danger to the Ward's health, safety, or well being.

       IT IS FURTHER ORDERED, that the powers granted under the Power of

Attorney held by Lance Ervin Phillips be                                             Mt"\lL-                           tk- Ctv.-rt.
       SIGNED this        ?Jo'!h   day                        , 2014.




                                                                                    14 JaN 30 Pi1 3: 43
 M. Brandon Maggiore
 Guardian Ad Litem                                                                             _
                                                                                          ''       ' , L   I
                                                                                                   .       i
                                                                                               -· · .
PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST     PAGE   4 OF 4



                                                                                                                                 Page 28
Page 2
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                                   CAUSE NUMBER PR-74571

IN THE GUARDIANSHIP OF                            §                  IN THE PROBATE COURT

                                                  §
LONNIE PHILLIPS, JR.,                             §                                  GALVESTON

                                                  §
AN INCAPACITATED PERSON                           §              GALVESTON COUNTY, TEXAS

                       ORDER AUTHORIZING APPOINTEE FEES

       On this the        day of   /}ulflhtr          2014, the Application to Pay Attorney's Fees
filed by Matthew Brandon Maggiore, Guardian Ad Litem, was considered by this Court
and the Court finds that such attorney's fees and expenses are reasonable and just; that
such fees were necessarily incurred in representing                LONNIE PHILLIPS,       JR. in this
cause; that the said fees and expenses should be paid; and that such Application should
be granted.
       IT IS THEREFORE ORDERED that Matthew Brandon Maggiore, the Maggiore
Law Firm, P.L.L.C., shall be paid legal fees in the amount of$ 5, 34&; · ou and expenses
in the amount of $ 13.0         for a total amount of $ 5             5"1        for the services and
expenses of Matthew Brandon Maggiore, Guardian Ad Litem, for the time period of
October 30th, 2013 through his discharge on October 3, 2014 by:
          b      the Guardian of the Estate of LONNIE PHILLIPS, JR.
       _ _ _ Galveston County Treasurer out of county funds.
       SIGNED this      bfl'i+- day of                 . 2014.


                                                                                                          IV\ C...
                                               JUDGE P           SIDING
Approved as to form:
                                                                             i   14 DEC I 0 AH 9: It 3
M. Brandon Maggiore
                                                                                        re
                                                                                     CCUNTY C!   r"J'I(
                                                                                                          . .;,__.
                                                                             GAlVESTON    COUNf'tr:::x.\S
PHILLIPS_LONNIE _ORDER TO PAY APPOINTEE FEES TO MLF


                                                                                                                     Page 129
                                  CAUSE NUMBER PR-74571

IN THE GUARDIANSHIP OF                       §      IN THE PROBATE COURT OF
                                             §
LONNIE PHILLIPS, JR.,                        §
                                             §
AN INCAPACITATED PERSON                      §      GALVESTON COUNTY, TEXAS


                        ORDER APPOINTING GUARDIAN AD LITEM

        On this date, the court became aware of the necessity for the court to appoint a Guardian
Ad Litem to represent the best interest ofLONNIE PHILLIPS, JR..
        It is therefore ORDERED that,
                                Matthew Brandon Maggiore
                                Maggiore Law Firm, PLLC
                                1001 Texas Avenue, Suite 1400
                                Houston, TX 77002
                                713-239-3347- Telephone
                                713-581-1894- Facsimile
                                maggiore.law@gmail.com

is hereby appointed pursuant to Section 645(a) of the Texas Probate Code, Guardian Ad Litem
for LONNIE PHILLIPS, JR.to investigate the necessity of a guardianship and, if determined
that one is needed, to prepare the guardians application and related matters for appointment of a
Guardian of the Person of LONNIE PHILLIPS, JR..
        IT IS ORDERED that Matthew Brandon Maggiore, Guardian ad Litem, is to be given
access to and shall review all of the Proposed Wards financial, medical psychological and
intellectual testing records.
        IT IS FURTHER ORDERED that Matthew Brandon Maggiore, the Guardian ad Litem is
hereby authorized to discuss the Proposed Wards medical or psychological condition with any
appropriate medical or health care personnel.     This access is authorized by this Order, the
Probate Code, and 45 CFR 164.512 (e) (1) (i), the Health Insurance Portability and
Accountability Act (HIP AA), which authorizes covered entities to disclose protected health
information in the course of any judicial or administrative proceeding when responding to an
order of the Court.




                                                                                                    Page 18
                                                                                                                 Filed
                                                                                                 3128/2014 1:00:33 PM
                                                                                                    Dwight D. Sullivan
                                                                                                         County Clerk
                                                                                              Galveston County, Texas



                                        NO. PRn Lf     s-1 (
IN THE MA'ITER OF THE                           §    IN THE PROBATE COURT

GUARDIANSHIP OF                                 §    ATLAWNUMBER

LONNIE PHD.IJPS, JR.                            §    GALvESTONCOUNTY,TEXAS

      MOTION AND/OR NOTICE OF WITHDRAWAL OF APPUCATION FOR
                GUARQJANSBIP OF LONNIE PBUJ.JP, J&
                 AND APPUCATION TO CLOSE ESTATE

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, KEVIN CAMPBELL aad AVA PIIILLIPS, and withdraw the

application for guardianship of Lonnie Phillips, Jr. And would       the court as follows:

                                                L

       A guardianship is no longer necessary. The parties initially thought that a guardianship

was necessary to resolve the issues pertaining to allocation of insurance and/or personal funds

for the benefit of restoration of the home of Lonnie Phillips and how work should proceed on the

home of lonnie Phillips, Jr. The children of the proposed ward bad a difference of opinion on

how things should proceed.

       Same is no longer at issue because the initial applicant has abandoned his desire to

proceed as general contractor for the repair of the home which is a part of the proposed ward's

estate. Moreover, work has proceeded on the house and all funds which were previously on

hand for repair, remodel, and rebuild have either been spent or contracts are pending for. Upon

completion of the remodel, no funds will remain.

                                               D.
       The parties did not request nor ever intended for a court to appoint a temporary guardian.


                                               -I-




                                                                                                                   Page 31
No basis existed for such an appointment. That action was requested by the guardian ad litem,

after having assured the caretaker Ava Phillips that the parties would set a cowt date. Phillips

finds the action to be contradictory to the intent of the parties and contrary to the statement A,

attached and incorporated by reference, the same as if fully copied and set fot:th herein.

                                                m.
       Applicant believes that the appointment of a guardian ad litem and attorney ad litem and

temporary guardian would serve to delay the rebuilding, repair and restoration of the home and

would divert funds from the repair process to pay the fees of ad litems, thereby making the home

of Lonnie Phillips uninhabitable and would render the ward unable to return to his home.

Moreover, having to seek approval of the ad litem to complete the work already begun would

only delay said return. Funds currently on hand are insufficient to complete the restoration of

the homestead of the ward. Therefore paying of ad litem fees to administer the estate would

render completion of the home impossible. Attached as Exhibits A & B, are the positions of the

application and caretaker for the ward, in connection therewith- same being attached and

incorporated by reference, the same as if fully copied and set forth herein.

       The applicant and caretaker bad previously bad concerns regarding whether to proceed

with the guardianship and did not pay the additional fees, due to the concerns of moving forward

with same.

                                                IV.

       Applicant further believes that this guardianship was delayed for an inordinate amount of

time when Davis attempted to work out a hearing date with the former ad litem. Instead of

setting a date, he in tum sought the appointment of another ad litem. Now there appears to be


                                                 -2-




                                                                                                     Page 32
three- Maggiore, Drexlier, and Wylie. The Estate of Lonnie Phillips, Jr. does not warrant same.

       The affidavits and/or statements of the applicant and caretaker for Lonnie Phillips,, Jr are

attached manifesting their position regarding the withdrawal of this application.

                                                IV.

       No property exists, but the homestead of the ward. A suit is currently pending for monies

owed in connection. with the fire which damaged the aforementioned home. Upon receipt of

said funds, all such funds will be placed into home repair, as the funds currently on hand are

insufficient to complete the restoration of same.

                                                 v.
       Because the family is fUlly capable of handling any remaining matters as it pertains to

the rebuilding issues and costs in connection therewith, without court intervention, the

application for appointment of a guardian is hereby withdrawn. Moreover, any issues regarding

improper handling of the estate and control over repairs have been resolved and all issues

pertaining thereto are now moot.

       WHEREFORE PREMISES CONSIDERED, the applicant hereby withdraws its

request for an application for the guardianship of lonnie Phillips, Jr. and requests that this

Honorable Court close this estate.

                                                       Respectfully submitted,




                                                       Attorney at Law
                                                       226 N. Mattson
                                                       West Columbia, Texas 77486
                                                       (979) 345-2953

                                                 -3-




                                                                                                      Page 33
                                CERTIFICATE OF SERVICE

        I hereby certify tbat a true and correct copy of the above and foregoing Motion/Notice
will be sent to Brandon Maggiore at 1001 Texas Avenue, Suite1400, Houston, Texas 77002 by
certified mail or facsimile transmission (713) 581-1894; Dana Drexler 1010 Lamar, Suite 1450,
Houston, Texas 77002 (713) 658-9408 (dvpdrexler@aol.cm and Catherine Wylie; 2211
Norfolrk, Suite 440, Houston, Texas 77098 (713) 275-8239 or email; on the 'lf/f day of March,
2014.


                                                   lsi Veronica L Davis

                                                   Veronica L Davis




                                                                                                 Page 34
                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing Motion/Notice
will be sent to Brandon Maggiore at 1001 Texas Avenue, Suite1400, Houston, Texas 77002 by
certified mail or facsimile transmission (713) 581-1894; Dana Drexler 1010 Lamar, Suite 1450,
Houston, Texas 77002 (713) 658-9408 (dypdrexler@aol.cm and Catherine Wylie; 2211
Norfolrk, Suite 440, Houston, Texas 77098 (713) 275-8239 or email; on the 27"- day of March,
2014.


                                                   lsi Veronica L. Davis

                                                   Veronica L Davis




                                                                                                 Page 35
                           AMENDED CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing Motion to
Withdraw will be sent to the following by certified mail, fax transmission, email, or efile
notification on the 2gtta day ofMarch, 2014:

 Brandon Maggiore
1001 Texas Avenue, Suite 1400
Houston, Texas 77002
(713) 581-1894 (fax)

Dana Dre.xJer
1010 Lamar, Suite 1450
Houston, Texas 71002
(713) 658-9408 (fax)
dypdrexler@aol.com

Catherine Wylie
2211 Norfolk, Suite 1400
Houston, Texas 77098
(713) 275-8239 (Fax)


                                                     Is/ Veronica L. Dayis

                                                     Veronica L. Davis




                                                                                              Page 36
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                                                                                                    Page 42
                                                                                                                                Filed
                                                                                                                8/5/2015 2:06:02 PM
                                                                                                                   Dwight D. Sullivan
                                                                                                                       County Clerk
                                                                                                            Galveston County, Texas



                                                    CAUSE NO. PR-0074,571

 IN THE GUARDIANSIDP OF                                             §                   IN THE PROBATE COURT
                                                                    §
 LONNIE PHILLIPS, JR.,                                              §                         OF
                                                                    §
 AN INCAPACITATED PERSON                                            §               GALVESTON COUNTY, TEXAS

                            APPLICATION FOR "AS IS" SALE OF REAL PROPERTY
                              UNDER SECTION 1158.451 OF THE ESTATES CODE

TO THE HONORABLE JUDGE OF SAID COURT:

           Catherine N. Wylie, Guardian of the Person and Estate of LONNIE PHILLIPS, JR., an
Incapacitated Person (the "Guardian" or the "Applicant") herein, furnishes the following information to the
Court:
           1.         The Inventory, Appraisement and List of Clain1s of this Estate was filed on October 28,
                      2014, and approved by this Court on October 31, 2014.

           2.         A full legal description of the real properties sought to be sold and a description of the
                      Estate's ownership interest in such property is as follows:

                      a)        Address:              405 N. Fulton
                                                      Texas City, Texas 77591
                                Legal:                Abstract 2, Page 3, Lots 138 & 139
                                                      Ollie Bell Subdivision

           3.        It is necessary and advisable to sell the Estate' s interest in the aforementioned property for
                     the following reasons:
                     (a) The real property is currently vacant due to a fire which enabled the house to be
                          inhabitable;
                     (b) Family engaged a contractor to repair the home depositing approximately $33,000 of
                          insurance funds with that contractor. Contractor performed no work, took the funds and
                          has filed bankruptcy. The real property has been partially renovated but is not livable
                          and the real property is subject to deterioration and vandalism as it is. The Guardian
                          has filed claim in the bankruptcy court but it is unlikely that any proceeds will be
                          returned;
                     (c) There is approximately $60,000 (which includes funds for reimbursement of personal
                          belongings) at Hartford Insurance;
                     (d) Calvary Construction Co., has estimated the remaining repairs at a cost of $80,000 -
                          $100,000;
                     (e) The proceeds are needed to pay expenses of the Ward while in an assisted living
                          facility. He is currently on Medicaid and all expenses for clothes, etc. has been paid
                          for personally by the Guardian;


Application & Order for Sale of Real Property Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page I of3




                                                                                                                           Page 53
                       (f) Cost to complete renovation is more than the value of the real prope1ty;
                       (g) It is in the best interest of the Estate to sell the real property "As Is"; and
                       (h) Left vacant the real property poses a liability to the Estate.

            3.         It is the best interest of the Estate for the said property to be sold at a private sale for cash in
                       as-is condition as the property is liable to perish, waste or deteriorate in value if left vacant
                       and pose a liability to the Estate.

            Applicant requests that citation be issued to all persons interested in the Estate, as required by law,
 and that, upon consideration or hearing on this Application, the Court enter an Order authorizing Guardian
 to sell the Estate's interest in the aforementioned property at a private sale "AS IS" and for cash, and such
 other orders as the Court may deem proper.

                                                                   Respectfully submitted,

                                                                   BY     (}_j);fJJP/fUIZJfl .
                                                                   Catherine N. Wylie, Guardian o he Person and Estate of
                                                                   Lonnie Phillips, Jr., an Incapacitated Person


Catherine N. Wylie       0
State Bar No. 24033479
The Wylie Law Finn
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com




Application & Order for Sale of Real Propetty Under § 11 58.45 1 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.. , an Incapacitated Person
Page2of3




                                                                                                                              Page 54
                VERIFIED EXHIBIT SHOWING CONDITION OF THE ESTATE

 STATE OF TEXAS                                                       §
                                                                      §
 COUNTY OF GALVESTON                                                  §
             BEFORE ME, the undersigned authority, on this day personally appeared

 CATHERINE N. WYLIE, Guardian of the Person and Estate, and after being duly sworn,

 stated that:

             "I.        CATHERINE N. WYLIE is the duly appointed and qualified Guardian of

 the Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and in support

 of the Application for Sale of Real Property, submits this exhibit to the Cowt to show fully

 and in detail the condition of the Estate:

                        "A.         Charges and Claims - the following are all of the charges and

            claims against the Estate that have been approved or established by suit or have been

            rejected and may yet be established: None

                        "B.        Property Remaining on Hand - The following is a full and

            complete list of all property owned by the Estate still remaining on hand and liable

            for the payment of the above charges and claims:

                         A. Address:               405 N. Fulton
                                                   Texas C ity, Texas 7759 1
                              Legal Desc:          Abstract 2, Page 3, Lots 138 & 139
                                                   Oll ie Bell Subdivision
                                                   Galveston County, Texas
                                                   100%
                              Interest:            Per GCAD 20 15 (Fully Repaired)
                              Va lue:                                                   $83,2 10.00

                      TOTAL REAL PROPERTY BEING ADMINISTERED ... .. .$83,210.00




                                                 [Left Blank Intentionally]




Exhi bit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page I of 3


                                                                                                      Page 55
                         CASH ON HAND.                         The cash remammg on hand 1s deposited m the

                         following account:

                         1)          Institution:                   Frost Bank
                                     Account Type:                  Checking
                                     Account No.                    8417
                                     Value:                         as ofJu1y 21, 2015

                                                    TOTAL CASH ACCOUNT ........ ...... ... ...... $15.00

                       PERSONAL PROPERTY. There is no personal property.


                         "C.        List of Claims Owed to Estate - The following claims are due or

            owing to the Estate: None

            "II.        The sale sought in the foregoing Application For Sale of Real Property is

necessary and advisable for the following reasons:

                        (a) The real property is currently vacant;
                        (b) The real property is subject to deterioration and vandalism while vacant and
                            without usc;
                        (c) The proceeds are needed to pay expenses of the ward while in an assisted living
                            facility;
                        (d) The real property was damaged in a fire and is partially renovated, The Hartford
                            Insurance Company is holding a check in the amount of $60,000.00 for the
                            remaining repairs;
                        (e) Calvary Construction Co., has estimated the remaining repairs at a cost of
                            $80,000-$ 100,000.00;
                        (f) Cost to complete renovation is more that the value of the real property;
                        (g) It is in the best interest of the Estate to sell the real property; and
                        (h) Left vacant the real property poses a liability to the Estate.

            "1, CATHERINE N. WYLIE, Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, do solemnly swear that the foregoing Verified

Exhibit is a full and complete description of the condition of the property of this Estate."


                                                                   Respectfully,

                                                                    (!atltiJiJAfd c1) ,   tiP
                                                                   Catherine N. Wylie:'&ardian of the Persona
                                                                   and Estate of LONNIE PHILLIPS, JR., an
                                                                   Incapacitated Person


Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phi llips, Jr., Incapacitated Person
Pa ge 2 of 3



                                                                                                                Page 56
 STATE OF TEXAS                                               §
                                                              §
 COUNTY OF GALVESTON                                          §


        BEFORE ME, the undersigned authority, on this day personally appeared
 CATHERINE N. WYLIE, the duly appointed, qualified, and acting Guardian of the
 Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and having been
 duly sworn, states that the foregoing Application for Sale of Real Property is true and
 correct in every respect.


     SUBSCRIBED           SWORN TO                                ME BY CATHERINE N.
 WYLIE, on this the - -+-- - day of                                    , 15, to certify which
witness my hand and seal of




Exhibit A to Application for Sale o f Real Propet1y
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 3 o f 3



                                                                                                Page 57
                                                    CAUSE NO. PR-0074,571

IN THE GUARDIANSHIP OF                                              §                            IN THE PROBATE COURT
                                                                    §
LONNIE PHILLIPS, JR.,                                               §                                           OF
                                                                    §
AN INCAPACITATED PERSON                                             §                     GALVESTON COUNTY, TEXAS

                        ORDER AUTHORIZING "AS IS" SALE OF REAL PROPERTY

           On this day the Court considered the Application For "AS IS" Sale of Real Property Under Section
/158.451 of the Estates Code (the "Applicant") tiled by the Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, was considered by the Court and after consideration of the
evidence in support of the Application, the Court finds that citation has been issued and served as required
by law; and after hearing the evidence in support of the Application, the Court finds that no additional bond
shall be required at this time and that the real property sought to be sold in the Application should be sold at
private sale, in as-is condition and without further delay because it is liable to perish, waste, deteriorate
and/or cause liability to the Estate.
          IT IS THEREFORE ORDERED AND DECREED that Catherine N. Wylie, Guardian of the
Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, shall sell the following described
property, in as-is condition, promptly at a private sale for cash.
                     (a)        Address:             405 N. Fulton
                                                     Texas City, Texas 77591
                                Legal:               Abstract 2, Page 3, Lots 138 & 139
                                                     Ollie Bell Subdivision

          SIGNED this the                     day of                                l   2015.           _ .

                                                                                                baiJJV$/'---'
                                                                JUDGE PRESID
APPROVED AS TO FORM:

 (JailttJtt 'ifi Y1.               {/


                                                                                                                            F\LED
                                                                                                                     2015    28       t6
Application & Order for Sale of Real Prope11y Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page 3 of3




                                                                                                                                    Page 58
                                                                                                               Filed
                                                                                               9/8/2015 2:54:03 PM
                                                                                                  Dwight D. Sullivan
                                                                                                      County Clerk
                                                                                           Galveston County, Texas




                                  CAUSE NO. PR-0074571

 IN THE GUARDIANSHIP OF                        §            IN THE PROBATE COURT
                                               §
 LONNIE PHILLIPS, JR.,                         §                           OF
                                               §
 AN INCAPACITATED PERSON                       §       GALVESTON COUNTY, TEXAS


                             MOTION FOR INSTRUCTION

TO THE HONORABLE JUDGE OF SAID COURT:
       This Motion for Instruction is brought by Catherine N. Wylie, Guardian of the
Person and Estate of Lonnie Phillips, Jr., an Incapacitated Person, (the "Movant") who
requests the Court to grant an audience for clarification of instruction relating to a request
made by Dr. Folasade Ojo, MD, CMD for the Guardian to execute a "Do Not
Resuscitate" for Lonnie Phillips, Jr., (the "Ward").
       1. Whereas Catherine N. Wylie was appointed by the Honorable Kimberly
           Sullivan on October 3, 2014 to serve as the Guardian of the Person and Estate
           for the Ward;
       2. Ward was placed in Gulf Health Care Center in Texas City by his family prior
           to the guardianship.
       3. Movant has been requested a couple of times to execute a "Do Not
           Resuscitate", (the "DNR") form on behalf of the Ward;
       4. Dr. Ojo has formalized the request for the Guardian to execute the DNR and
           the original letter dated August 14, 2015 is attached hereto and made a part
           hereof as Exhibit A; and
       5. Movant seeks instructions from this Court or authority from the Court to
           address the request from Dr. Ojo regarding the DNR.
       THEREFORE, Movant prays that the Court enter an order setting a hearing
whereupon such questions may be clarified or the DNR authorized for the Movant.




                                                                                                          Page 59
                                              Respectfully submitted,




                                              Catherine N. Wylie
                                              State Bar No.: 24033479
                                              The Wylie Law Firm
                                              2211 Norfolk Street, Suite #440
                                              Houston, Texas 77098
                                              Telephone: 713-275-8230
                                              Facsimile: 713-275-8239
                                              Email: cwylie@wylielawfirm.com
                                              Guardian of the Person and Estate for
                                              Lonnie Phillips, Jr., an Incapacitated Person



                          CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of this Motion for Instruction has been
served upon the following parties by electronic filing on this 8th day of September 2015.

Ms. Veronica L. Davis                         Email: vld57aral@yahoo.com
Attorney at Law
226 N. Mattson
West Columbia, Texas 77486

Mr. Matthew Brandon Maggiore                 Email: brandon@maggiorelawfirm. com
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite # 1400
Houston, Texas 77002
Guardian Ad Litem


                                                           Catherine N. Wyh




                                                                                               Page 60
Exhibit A




            Page 61
                                                                                                                         ¢   ¢ ¢ ¢       ¢
                                    Care Center                                                            1720 North Logan Street
                                    rEXA$          CITY
                                                                                                           Texas City, Texas 77590
                                                                                                                      409.943.4914
                                                                                                                 Fax 409.943.5255




           August 14, 2015




          To Catherine Wylie:

          RE: Lonnie Phillips

          DOB: 05/03/1942



          Mr. Lonnie Phillips DOB 07/25/15 has been under my care since 09/15/2015 when he was admitted to
          Gulf Health Care Center, Texas City.




          He has moderate severe Dementia of Alzheimer's and now has difficulty swallowing. His Dementia is
          irreversible and prognosis at t his point is poor. His is also not a good candid at e for gastrostomy tube
          feeding. It would be beneficial for Mr. Phillips to be under palliative care with no aggressive treatment if
          he stops breathing or his heart stops. He should at this point, based on his moderately severe dementia
          be a DNR.



          If you have any questions or concerns feel free to contact me at the address or telephone number
          above.




          Yours si ncerely,




          Folasade Ojo, MD, CMD




0 0   0     0 0       0       0 0   0    0    0    0 ¢      0    0    0    0    0    0 0       0    0 0      0    0      0 0         0

                                                                                                                                 Page 62
                                                                                                                               Filed
                                                                                                              9/21/2015 3:54:46 PM
                                                                                                                  Dwight D. Sullivan
                                                                                                                       County Clerk
                                                                                                            Galveston County, Texas



                                                    CAUSE NO. PR-0074,571

 IN THE GUARDIANSHIP OF                                             §                        INTHEPROBATECOURT
                                                                    §
 LONNIE PHILLIPS, JR.,                                              §                             OF
                                                                    §
 AN INCAPACITATED PERSON                                            §                   GALVESTON COUNTY,TEXAS

                   AMENDED APPLICATION FOR "AS IS" SALE OF REAL PROPERTY
                        UNDER SECTION 1158.451 OF THE ESTATES CODE

 TO THE HONORABLE JUDGE OF SAID COURT:

           Catherine N. Wylie, Guardian of the Person and Estate of LONNIE PHILLIPS, JR., an
 Incapacitated Person (the "Guardian" or the "Applicant") herein, furnishes the following information to the
 Court:
            1.        The Inventory, Appraisement and List of Claims of this Estate was filed on October 28,
                      2014, and approved by this Court on October 31, 2014.

           2.         A full legal description of the real properties sought to be sold and a description of the
                      Estate's ownership interest in such property is as follows:

                      a)        Address:             405 N. Fulton
                                                     Texas City, Texas 77591
                                Legal:               Abstract 2, Page 3, Lots 138 & 139
                                                     Ollie Bell Subdivision

           3.        It is necessary and advisable to sell the Estate's interest in the aforementioned property for
                     the following reasons:
                     (a) The real property is currently vacant due to a fire which enabled the house to be
                          inhabitable;
                     (b) Family engaged a contractor to repair the home depositing approximately $33,000 of
                          insurance funds with that contractor. Contractor performed no work, took the funds and
                          has filed bankruptcy. The real property has been partially renovated but is not livable
                          and the real property is subject to deterioration and vandalism as it is. The Guardian
                          has filed claim in the bankruptcy court but it is unlikely that any proceeds will be
                          returned;
                     (c) There is approximately $60,000 (which includes funds for reimbursement of personal
                          belongings) at Hartford Insurance;
                     (d) Calvary Construction Co., has estimated the remaining repairs at a cost of $80,000 -
                          $100,000;
                     (e) The proceeds are needed to pay expenses of the Ward while in an assisted living
                          facility. He is currently on Medicaid and all expenses for clothes, etc. has been paid
                          for personally by the Guardian;


Amended Application & Order for Sale of Real Property Under§ 11 58.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page I of3




                                                                                                                          Page 81
                      (f) Cost to complete renovation is more than the value of the real property;
                      (g) It is in the best interest of the Estate to sell the real property "As Is"; and
                      (h) Left vacant the real property poses a liabi lity to the Estate.

            3.        It is the best interest of the Estate for the said property to be sold at a private sale for cash in
                      as-is condition as the property is liable to perish, waste or deteriorate in value if left vacant
                      and pose a liability to the Estate.

           Applicant requests that citation be issued to all persons interested in the Estate, as required by law,
 and that, upon consideration or hearing on this Application, the Court enter an Order authorizing Guardian
 to sell the Estate's interest in the aforementioned property at a private sale "AS IS" and for cash, and such
 other orders as the Court may deem proper.

                                                                Respectfully submitted,


                                                                Catherine N. Wylie, Gua tan of the Person and Estate of
                                                                Lonnie Phillips, Jr., an Incapacitated Person
                                                                State Bar No. 24033479
                                                                The Wylie Law Firm
                                                                2211 Norfolk Street, Suite #440
                                                                Houston, Texas 77098
                                                                Telephone: 713-275-8230
                                                                Facsimile: 713-275-8239
                                                                Email: cwylie@wylielawfirm.com




                                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of this Amended Application for "As Is" Sale of Real
Property has been served upon the following parties by electronic filing on this 21st day of September 2015.

Ms. Veronica L. Davis                                                     Email : vld5 7aral@yahoo.com
Attorney at Law
226 N. Mattson
West Columbia, Texas 77486

Mr. Matthew Brandon Maggiore                                              Email: Brandon@maggiorelawfirm .com
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite 1400
Houston, Texas 77002




Amended Appl ication & Order for Sale of Real Property Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr .. , an Incapacitated Person
Page 2 of3




                                                                                                                             Page 82
                VERIFIED EXHIBIT SHOWING CONDITION OF THE ESTATE

 STATE OF TEXAS                                                        §
                                                                       §
 COUNTY OF GALVESTON                                                   §

             BEFORE ME, the undersigned authority, on this day personally appeared

 CATHERINE N. WYLIE, Guardian of the Person and Estate, and after being duly sworn,

 stated that:

             "1.        CATHERINE N. WYLIE is the duly appointed and qualified Guardian of

 the Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and in support

 of the Application for Sale of Real Property, submits this exhibit to the Court to show fully

 and in detail the condition of the Estate:

                        "A.         Charges and Claims - the following are all of the charges and

            claims against the Estate that have been approved or established by suit or have been

            rejected and may yet be established: None

                        "B.         Property Remaining on Hand - The following is a full and

            complete list of all property owned by the Estate still remaining on hand and liable

            for the payment of the above charges and claims:

                          A. Address:               405 N. Fulton
                                                    Texas City, Texas 77591
                              Legal Desc:           Abstract 2, Page 3, Lots 13 8 & 139
                                                    Ollie Bell Subdivision
                                                    Galveston County, Texas
                                                    100%
                              Interest:             Per GCAD 20 15 (Fully Repaired)
                              Value:                                                      $83,210.00

                      TOTAL REAL PROPERTY BEING ADMINISTERED ...... $83,210.00




                                                  [Left Blank Intentionally]




Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phill ips, Jr., Incapacitated Person
Page I of3



                                                                                                       Page 83
                        CASH ON HAND.                         The cash rernammg on hand Is deposited m the

                        following account:

                        1)          Institution:                   Frost Bank
                                    Account Type:                  Checking
                                    Account No.                    8417
                                    Value:                         as of August 21, 2015

                                                   TOTAL CASH ACCOUNT ...........................$52.69

                       PERSONAL PROPERTY. There is no personal property.


                        "C.        List of Claims Owed to Estate - The following claims are due or

            owing to the Estate: None

            "II.        The sale sought in the foregoing Application For Sale of Real Property is

necessary and advisable for the following reasons:

                       (a) The real property is currently vacant;
                       (b) The real property is subject to deterioration and vandalism while vacant and
                           without use;
                       (c) The proceeds are needed to pay expenses of the ward while in an assisted living
                           facility;
                       (d) The real property was damaged in a fire and is partially renovated, The Hartford
                           Insurance Company is holding a check in the amount of $60,000.00 for the
                           remammg repairs;
                       (e) Calvary Construction Co., has estimated the remaining repairs at a cost of
                           $80,000-$1 00,000.00;
                       (f) Cost to complete renovation is more that the value of the real property;
                       (g) It is in the best interest of the Estate to sell the real property; and
                       (h) Left vacant the real property poses a liability to the Estate.

            "I, CATHERINE N. WYLIE, Guardian of the Person and Estate of LONNIE

PHILLIPS, JR., an Incapacitated Person, do solemnly swear that the foregoing Verified

Exhibit is a full and complete description of the condition ofthe property ofthis Estate."


                                                                   Respectfully,

                                                                     t!.athutrt.J'fi.
                                                                  Catherine N. Wylie, G .· dian of the Persona
                                                                  and Estate of LONNIE PHILLIPS, JR., an
                                                                  Incapacitated Person


Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 2 of 3



                                                                                                                 Page 84
 STATE OF TEXAS                                               §
                                                              §
 COUNTY OF GALVESTON                                          §


         BEFORE ME, the undersigned authority, on this day personally appeared
 CATHERINE N. WYLIE, the duly appointed, qualified, and acting Guardian of the
 Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and having been
 duly sworn, states that the foregoing Application for Sale of Real Property is true and
 correct in every respect.


        SUBSCRIBED AND SWORN TO BEFORE ME BY CATHERINE N.
 WYLIE, on this the         :) r     day of , 015, to certify which
 witness my hand and seal of office.




Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 3 of 3



                                                                                           Page 85
                                                   CAUSE NO. PR-0074,571

IN THE GUARDIANSHIP OF                                            §                         IN THE PROBATE COURT
                                                                  §
LONNIE PHILLIPS, JR.,                                             §                                   OF
                                                                  §
AN INCAPACITATED PERSON                                           §                    GALVESTON COUNTY, TEXAS

 ORDER ON AMENDED APPLICATION AUTHORIZING "AS IS" SALE OF REAL PROPERTY

          On this day the Court considered the Application For "AS IS" Sale of Real Property Under Section
1158.45lofthe Estates Code (the "Applicant") filed by the Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, was considered by the Court and after consideration of the
evidence in suppmt of the Application, the Comt finds that citation has been issued and served as required
by law; and after hearing the evidence in suppmt of the Application, the Court finds that no additional bond
shall be required at this time and that the real property sought to be sold in the Application should be sold at
private sale, in as-is condition and without further delay because it is liable to perish, waste, deteriorate
and/or cause liability to the Estate.
          IT IS THEREFORE ORDERED AND DECREED that Catherine N. Wylie, Guardian of the
Person and Estate of LONNIE PffiLLIPS, JR., an Incapacitated Person, shall sell the following described
property, in as-is condition, promptly at a private sale for cash.
                     (a)       Address:             405 N. Fulton
                                                    Texas City, Texas 77591
                               Legal:               Abstract 2, Page 3, Lots 138 & 139
                                                    Ollie Bell Subdivision

          SIGNED this the                    day of     t{)dhr                    ,2015.

                                                               JUD EPRE               lNG
APPROVED AS TO FORM:


Catherine N. Wylie     ...
State Bar No.: 24033479
The Wylie Law Firm
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com                                                                               FILFD
                                                                                                        2U15 OCT -7 PM 2: 32
Amended Application & Order for Sale of Real Property Under §1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page 3 of3




                                                                                                                        Page 24
                                   CAUSE NUMBER PR-74571

IN THE GUARDIANSHIP OF                            §                  IN THE PROBATE COURT

                                                  §
LONNIE PHILLIPS, JR.,                             §                                  GALVESTON

                                                  §
AN INCAPACITATED PERSON                           §              GALVESTON COUNTY, TEXAS

                       ORDER AUTHORIZING APPOINTEE FEES

       On this the        day of   /}ulflhtr          2014, the Application to Pay Attorney's Fees
filed by Matthew Brandon Maggiore, Guardian Ad Litem, was considered by this Court
and the Court finds that such attorney's fees and expenses are reasonable and just; that
such fees were necessarily incurred in representing                LONNIE PHILLIPS,       JR. in this
cause; that the said fees and expenses should be paid; and that such Application should
be granted.
       IT IS THEREFORE ORDERED that Matthew Brandon Maggiore, the Maggiore
Law Firm, P.L.L.C., shall be paid legal fees in the amount of$ 5, 34&; · ou and expenses
in the amount of $ 13.0         for a total amount of $ 5             5"1        for the services and
expenses of Matthew Brandon Maggiore, Guardian Ad Litem, for the time period of
October 30th, 2013 through his discharge on October 3, 2014 by:
          b      the Guardian of the Estate of LONNIE PHILLIPS, JR.
       _ _ _ Galveston County Treasurer out of county funds.
       SIGNED this      bfl'i+- day of                 . 2014.


                                                                                                          IV\ C...
                                               JUDGE P           SIDING
Approved as to form:
                                                                             i   14 DEC I 0 AH 9: It 3
M. Brandon Maggiore
                                                                                        re
                                                                                     CCUNTY C!   r"J'I(
                                                                                                          . .;,__.
                                                                             GAlVESTON    COUNf'tr:::x.\S
PHILLIPS_LONNIE _ORDER TO PAY APPOINTEE FEES TO MLF


                                                                                                                     Page 129
                                  CAUSE NUMBER PR-74571

IN THE GUARDIANSHIP OF                       §      IN THE PROBATE COURT OF
                                             §
LONNIE PHILLIPS, JR.,                        §
                                             §
AN INCAPACITATED PERSON                      §      GALVESTON COUNTY, TEXAS


                        ORDER APPOINTING GUARDIAN AD LITEM

        On this date, the court became aware of the necessity for the court to appoint a Guardian
Ad Litem to represent the best interest ofLONNIE PHILLIPS, JR..
        It is therefore ORDERED that,
                                Matthew Brandon Maggiore
                                Maggiore Law Firm, PLLC
                                1001 Texas Avenue, Suite 1400
                                Houston, TX 77002
                                713-239-3347- Telephone
                                713-581-1894- Facsimile
                                maggiore.law@gmail.com

is hereby appointed pursuant to Section 645(a) of the Texas Probate Code, Guardian Ad Litem
for LONNIE PHILLIPS, JR.to investigate the necessity of a guardianship and, if determined
that one is needed, to prepare the guardians application and related matters for appointment of a
Guardian of the Person of LONNIE PHILLIPS, JR..
        IT IS ORDERED that Matthew Brandon Maggiore, Guardian ad Litem, is to be given
access to and shall review all of the Proposed Wards financial, medical psychological and
intellectual testing records.
        IT IS FURTHER ORDERED that Matthew Brandon Maggiore, the Guardian ad Litem is
hereby authorized to discuss the Proposed Wards medical or psychological condition with any
appropriate medical or health care personnel.     This access is authorized by this Order, the
Probate Code, and 45 CFR 164.512 (e) (1) (i), the Health Insurance Portability and
Accountability Act (HIP AA), which authorizes covered entities to disclose protected health
information in the course of any judicial or administrative proceeding when responding to an
order of the Court.




                                                                                                    Page 18
       IT IS FURTHER ORDERED that filing fees and costs will be waived until an estate is
detennined, if any.



       SIGNED December      o2 .q     '2014.




                                         JUDGE PRES      lNG




                                                                                            Page 19
§ 1051.055. Service on Party's Attorney of Record, TX EST § 1051.055




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1051. Notices and Process in Guardianship Proceedings in General
              Subchapter B. Methods of Serving Citation or Notice; Persons to be Served

                                              V.T.C.A., Estates Code § 1051.055
                                            Formerly cited as TX PROBATE § 634

                                     § 1051.055. Service on Party's Attorney of Record

                                                   Effective: January 1, 2014
                                                          Currentness


(a) If a party is represented by an attorney of record in a guardianship proceeding, a citation or notice required to be served on
the party shall be served instead on that attorney.


(b) A notice served on an attorney under this section may be served by:


  (1) delivery to the attorney in person;


  (2) registered or certified mail, return receipt requested; or


  (3) any other form of mail that requires proof of delivery.


(c) A notice or citation may be served on an attorney under this section by:


  (1) another party to the proceeding;


  (2) the attorney of record for another party to the proceeding;


  (3) an appropriate sheriff or constable; or


  (4) another person competent to testify.


(d) Each of the following is prima facie evidence of the fact that service has been made under this section:


  (1) the written statement of an attorney of record showing service;




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 1051.055. Service on Party's Attorney of Record, TX EST § 1051.055




  (2) the return of the officer showing service; and


  (3) the affidavit of a person showing service.


(e) Except as provided by Section 1051.105, an attorney ad litem may not waive personal service of citation.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1051.055, TX EST § 1051.055
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
§ 1051.104. Notice by Applicant for Guardianship, TX EST § 1051.104




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1051. Notices and Process in Guardianship Proceedings in General
              Subchapter C. Notice and Citation Required for Application for Guardianship

                                           V.T.C.A., Estates Code § 1051.104
                                   Formerly cited as TX PROBATE § 633(d), (d-1), (f)

                                     § 1051.104. Notice by Applicant for Guardianship

                                                 Effective: September 1, 2015
                                                         Currentness


(a) The person filing an application for guardianship shall mail a copy of the application and a notice containing the information
required in the citation issued under Section 1051.102 by registered or certified mail, return receipt requested, or by any other
form of mail that provides proof of delivery, to the following persons, if their whereabouts are known or can be reasonably
ascertained:


  (1) each adult child of the proposed ward;


  (2) each adult sibling of the proposed ward;


  (3) the administrator of a nursing home facility or similar facility in which the proposed ward resides;


  (4) the operator of a residential facility in which the proposed ward resides;


  (5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;


  (6) a person designated to serve as guardian of the proposed ward by a written declaration under Subchapter E, Chapter 1104,
  if the applicant knows of the existence of the declaration;


  (7) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the
  proposed ward;


  (8) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving
  parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 1051.104. Notice by Applicant for Guardianship, TX EST § 1051.104




  (9) each adult named in the application as an “other living relative” of the proposed ward within the third degree by
  consanguinity, as required by Section 1101.001(b)(11) or (13), if the proposed ward's spouse and each of the proposed ward's
  parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.


(b) The applicant shall file with the court:


  (1) a copy of any notice required by Subsection (a) and the proofs of delivery of the notice; and


  (2) an affidavit sworn to by the applicant or the applicant's attorney stating:


     (A) that the notice was mailed as required by Subsection (a); and


     (B) the name of each person to whom the notice was mailed, if the person's name is not shown on the proof of delivery.


(c) Failure of the applicant to comply with Subsections (a)(2)-(9) does not affect the validity of a guardianship created under
this title.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2013, 83rd Leg., ch. 161
(S.B. 1093), § 6.019, eff. Jan. 1, 2014; Acts 2015, 84th Leg., ch. 1031 (H.B. 1438), § 3, eff. Sept. 1, 2015.


Editors' Notes

                                                      REVISOR'S NOTE

                                                      2014 Main Volume

       Section 633(d)(6), Texas Probate Code, refers to a written declaration under Section 679, Texas Probate Code.
       Section 679, along with Section 679A, Texas Probate Code, is revised in this code in Subchapter E, Chapter 1104.
       The revised law refers to Subchapter E, Chapter 1104, in its entirety because the entire subchapter deals with a
       written declaration to designate a guardian before the need arises.


V. T. C. A., Estates Code § 1051.104, TX EST § 1051.104
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
§ 1051.106. Action by Court on Application for Guardianship, TX EST § 1051.106




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1051. Notices and Process in Guardianship Proceedings in General
              Subchapter C. Notice and Citation Required for Application for Guardianship

                                          V.T.C.A., Estates Code § 1051.106
                                       Formerly cited as TX PROBATE § 633(f)

                             § 1051.106. Action by Court on Application for Guardianship

                                                Effective: January 1, 2014
                                                       Currentness


The court may not act on an application for the creation of a guardianship until the applicant has complied with Section
1051.104(b) and not earlier than the Monday following the expiration of the 10-day period beginning on the date service of
notice and citation has been made as provided by Sections 1051.102, 1051.103, and 1051.104(a)(1).


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.



Notes of Decisions (4)

V. T. C. A., Estates Code § 1051.106, TX EST § 1051.106
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 1051.153. Proof of Service, TX EST § 1051.153




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1051. Notices and Process in Guardianship Proceedings in General
              Subchapter D. Return and Proof of Service of Citation or Notice

                                             V.T.C.A., Estates Code § 1051.153
                                          Formerly cited as TX PROBATE § 632(i)

                                                  § 1051.153. Proof of Service

                                                   Effective: January 1, 2014
                                                          Currentness


(a) Proof of service in each case requiring citation or notice must be filed before a hearing.


(b) Proof of service consists of:


  (1) if the service is made by a sheriff or constable, the return of service;


  (2) if the service is made by a private person, the person's affidavit;


  (3) if the service is made by mail:


     (A) the certificate of the county clerk making the service, or the affidavit of the guardian or other person making the service
     that states that the citation or notice was mailed and the date of the mailing; and


     (B) the return receipt attached to the certificate, if the mailing was by registered or certified mail and a receipt has been
     returned; and


  (4) if the service is made by publication, an affidavit that:


     (A) is made by the publisher of the newspaper in which the citation or notice was published or an employee of the publisher;


     (B) contains or to which is attached a copy of the published citation or notice; and


     (C) states the date of publication printed on the newspaper in which the citation or notice was published.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 1051.153. Proof of Service, TX EST § 1051.153




Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


Editors' Notes

                                                     REVISOR'S NOTE

                                                      2014 Main Volume

       (1) Section 632(i), Texas Probate Code, refers to service of notice or citation “by publication, posting, mailing,
       or otherwise.” The methods of service specified in the quoted language include all methods authorized by the
       Texas Probate Code in guardianship matters. Because the specified methods of service do not exclude any method
       authorized under the code and therefore do not limit the applicability of the provision, the revised law omits the
       quoted language as unnecessary.

       (2) Section 632(i), Texas Probate Code, refers to proof of the “time” of mailing of service of citation or notice. The
       revised law substitutes “date” for “time” for the reason stated in the revisor's note to Section 1051.052.


V. T. C. A., Estates Code § 1051.153, TX EST § 1051.153
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
§ 1054.001. Appointment of Attorney ad Litem in Proceeding..., TX EST § 1054.001




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1054. Court Officers and Court-Appointed Persons
              Subchapter A. Attorneys AD Litem and Interpreters

                                            V.T.C.A., Estates Code § 1054.001
                                         Formerly cited as TX PROBATE § 646(a)

             § 1054.001. Appointment of Attorney ad Litem in Proceeding for Appointment of Guardian

                                                 Effective: January 1, 2014
                                                        Currentness


In a proceeding under this title for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the
proposed ward's interests.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.



Notes of Decisions (4)

V. T. C. A., Estates Code § 1054.001, TX EST § 1054.001
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 1054.055. Compensation and Expenses, TX EST § 1054.055




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1054. Court Officers and Court-Appointed Persons
              Subchapter B. Guardians AD Litem

                                          V.T.C.A., Estates Code § 1054.055
                                      Formerly cited as TX PROBATE § 645(b), (d)

                                         § 1054.055. Compensation and Expenses

                                                 Effective: January 1, 2014
                                                        Currentness


(a) A guardian ad litem is entitled to reasonable compensation for services provided in the amount set by the court, to be taxed
as costs in the proceeding.


(b) The fees and expenses of a guardian ad litem appointed under Section 1104.354(1) are costs of the litigation proceeding
that made the appointment necessary.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1054.055, TX EST § 1054.055
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 1054.201. Certification Required, V.T.C.A., Estates Code § 1054.201




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1054. Court Officers and Court-Appointed Persons
              Subchapter E. Qualifications to Serve as Court-Appointed Attorney

                                            V.T.C.A., Estates Code § 1054.201
                                 Formerly cited as TX PROBATE §§ 646(b), 647A(a), (b)

                                               § 1054.201. Certification Required

                                                    Effective: January 1, 2014
                                                           Currentness


(a) A court-appointed attorney in a guardianship proceeding, including an attorney ad litem, must be certified by the State Bar of
Texas, or a person or other entity designated by the state bar, as having successfully completed a course of study in guardianship
law and procedure sponsored by the state bar or the state bar's designee.


(b) The State Bar of Texas shall require three hours of credit for certification under this subchapter.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.



HISTORICAL AND STATUTORY NOTES

2014 Main Volume

Prior Laws:
     Acts 1977, 65th Leg., p. 1380, ch. 551, § 1.

     V.A.T.S. Probate Code, § 113A.

     Acts 1993, 73rd Leg., ch. 957, § 1.

     Acts 1995, 74th Leg., ch. 1039, §§ 22, 74.

     Acts 1999, 76th Leg., ch. 716, §§ 1, 2.

     V.A.T.S. Probate Code, §§ 646(b), 647A(a), (b).



CROSS REFERENCES
     Appointment of attorneys ad litem, see V.T.C.A., Estates Code § 53.104.
     Proceeding to appoint receiver, see V.T.C.A., Civil Practice & Remedies Code § 64.102.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 1054.201. Certification Required, V.T.C.A., Estates Code § 1054.201


LIBRARY REFERENCES

2014 Main Volume
    Guardian and Ward 13(1).
    Mental Health 133.
    Westlaw Topic Nos. 196, 257A.
    C.J.S. Guardian and Ward §§ 13, 28.
    C.J.S. Mental Health §§ 161 to 162.

RESEARCH REFERENCES

2014 Main Volume

Encyclopedias
TX Jur. 3d Guardianship and Conservatorship § 103, Appointment of Attorney Ad Litem--Term.
NOTES OF DECISIONS

  Construction and application 1

                                               1 Construction and application

Proceeding concerning motion of guardian to resign as guardian was “guardianship proceeding,” within meaning of statute
requiring certification of any court-appointed attorney ad litem, with result that appointment of non-certified attorney ad litem
in proceeding violated statute, regardless of argument of attorney that proceeding was not one in which guardianship was
established in first instance; attorney was appointed to determine whether guardian should have been allowed to resign, and
appointment required investigation into whether ward's interests would be protected. In re Guardianship of Marburger (App.
13 Dist. 2010) 329 S.W.3d 923. Guardian And Ward          23

A professional hired by the attorney ad litem to assist her in performing her duties in representing the ward of a guardianship
proceeding is not required to be certified by the State bar as having successfully completed a course in guardianship law; rather,
it is the attorney ad litem appointed by the court who is required to be certified. In re Guardianship of Glasser (App. 4 Dist.
2009) 297 S.W.3d 369, rehearing overruled. Attorney and Client          9


V. T. C. A., Estates Code § 1054.201, TX EST § 1054.201

Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
§ 1054.201. Certification Required, TX EST § 1054.201




     KeyCite Yellow Flag - Negative Treatment
Proposed Legislation

  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle C. Procedural Matters
           Chapter 1054. Court Officers and Court-Appointed Persons
              Subchapter E. Qualifications to Serve as Court-Appointed Attorney

                                               V.T.C.A., Estates Code § 1054.201
                                    Formerly cited as TX PROBATE §§ 646(b), 647A(a), (b)

                                                § 1054.201. Certification Required

                                                  Effective: September 1, 2015
                                                          Currentness


(a) An attorney for an applicant for guardianship and a court-appointed attorney in a guardianship proceeding, including an
attorney ad litem, must be certified by the State Bar of Texas, or a person or other entity designated by the state bar, as having
successfully completed a course of study in guardianship law and procedure sponsored by the state bar or the state bar's designee.


(b) The State Bar of Texas shall require four hours of credit for certification under this subchapter, including one hour on
alternatives to guardianship and supports and services available to proposed wards.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2015, 84th Leg., ch. 214
(H.B. 39), § 6, eff. Sept. 1, 2015.



Notes of Decisions (2)

V. T. C. A., Estates Code § 1054.201, TX EST § 1054.201
Current through the end of the 2015 Regular Session of the 84th Legislature

 End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
§ 1104.101. Appointment According to Circumstances and Best..., TX EST § 1104.101




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle D. Creation of Guardianship
           Chapter 1104. Selection of and Eligibility to Serve as Guardian
              Subchapter C. Selection of Guardian for Incapacitated Person Other than Minor

                                           V.T.C.A., Estates Code § 1104.101
                                        Formerly cited as TX PROBATE § 677(a)

                       § 1104.101. Appointment According to Circumstances and Best Interests

                                                 Effective: January 1, 2014
                                                        Currentness


The court shall appoint a guardian for an incapacitated person other than a minor according to the circumstances and considering
the incapacitated person's best interests.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


Editors' Notes

                                                     REVISOR'S NOTE

                                                     2014 Main Volume

       Section 677(a), Texas Probate Code, refers to a court appointment of a guardian for a “person other than a minor.”
       The revised law substitutes “incapacitated person” for the reference to “person” because under Sections 684 and
       693, Texas Probate Code, the relevant parts of which are revised as Sections 1101.101, 1101.151, and 1101.152
       of this code, a court may appoint a guardian for a person only if the court finds that the person is an incapacitated
       person.


V. T. C. A., Estates Code § 1104.101, TX EST § 1104.101
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 1104.102. Appointment Preferences, TX EST § 1104.102




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle D. Creation of Guardianship
           Chapter 1104. Selection of and Eligibility to Serve as Guardian
              Subchapter C. Selection of Guardian for Incapacitated Person Other than Minor

                                            V.T.C.A., Estates Code § 1104.102
                                         Formerly cited as TX PROBATE § 677(a)

                                            § 1104.102. Appointment Preferences

                                                  Effective: January 1, 2014
                                                         Currentness


If the court finds that two or more eligible persons are equally entitled to be appointed guardian of an incapacitated person:


  (1) the incapacitated person's spouse is entitled to the guardianship in preference to any other person, if the spouse is one
  of the eligible persons;


  (2) the eligible person nearest of kin to the incapacitated person is entitled to the guardianship, if the incapacitated person's
  spouse is not one of the eligible persons; or


  (3) the court shall appoint the eligible person who is best qualified to serve as guardian if:


     (A) the persons entitled to serve under Subdivisions (1) and (2) refuse to serve;


     (B) two or more persons entitled to serve under Subdivision (2) are related in the same degree of kinship to the incapacitated
     person; or


     (C) neither the incapacitated person's spouse nor any person related to the incapacitated person is an eligible person.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.



Notes of Decisions (4)

V. T. C. A., Estates Code § 1104.102, TX EST § 1104.102
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 1104.354. Conflict of Interest, TX EST § 1104.354




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle D. Creation of Guardianship
           Chapter 1104. Selection of and Eligibility to Serve as Guardian
              Subchapter H. Grounds for Disqualification

                                            V.T.C.A., Estates Code § 1104.354
                                          Formerly cited as TX PROBATE § 681

                                              § 1104.354. Conflict of Interest

                                                 Effective: January 1, 2014
                                                        Currentness


A person may not be appointed guardian if the person:


  (1) is a party or is a person whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward,
  unless the court:


    (A) determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the
    lawsuit claim of the proposed ward; or


    (B) appoints a guardian ad litem to represent the interests of the proposed ward throughout the litigation of the ward's
    lawsuit claim;


  (2) is indebted to the proposed ward, unless the person pays the debt before appointment; or


  (3) asserts a claim adverse to the proposed ward or the proposed ward's property.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


Editors' Notes

                                                    REVISOR'S NOTE

                                                     2014 Main Volume

       Section 681, Texas Probate Code, refers to “real or personal” property. The revised law omits the reference to “real
       or personal” as unnecessary because Section 311.005(4), Government Code (Code Construction Act), applicable
       to the revised law, defines “property” to mean real and personal property.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
§ 1104.354. Conflict of Interest, TX EST § 1104.354




Notes of Decisions (2)

V. T. C. A., Estates Code § 1104.354, TX EST § 1104.354
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
§ 1105.251. Grounds for Requiring New Bond, TX EST § 1105.251




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle D. Creation of Guardianship
           Chapter 1105. Qualification of Guardians
              Subchapter F. New Bonds

                                            V.T.C.A., Estates Code § 1105.251
                                        Formerly cited as TX PROBATE §§ 711, 712

                                       § 1105.251. Grounds for Requiring New Bond

                                                  Effective: January 1, 2014
                                                         Currentness


(a) A guardian may be required to give a new bond if:


  (1) a surety on a bond dies, removes beyond the limits of this state, or becomes insolvent;


  (2) in the court's opinion:


    (A) the sureties on a bond are insufficient; or


    (B) a bond is defective;


  (3) the amount of a bond is insufficient;


  (4) a surety on a bond petitions the court to be discharged from future liability on the bond; or


  (5) a bond and the record of the bond have been lost or destroyed.


(b) A person interested in the guardianship may have the guardian cited to appear and show cause why the guardian should not
be required to give a new bond by filing a written application with the county clerk of the county in which the guardianship
proceeding is pending. The application must allege that:


  (1) the bond is insufficient or defective; or


  (2) the bond and the record of the bond have been lost or destroyed.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       1
§ 1105.251. Grounds for Requiring New Bond, TX EST § 1105.251




Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.



Notes of Decisions (2)

V. T. C. A., Estates Code § 1105.251, TX EST § 1105.251
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
§ 1152.001. Guardian to Serve Pending Appeal of Appointment, TX EST § 1152.001




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle E. Administration of Guardianship
           Chapter 1152. Guardianship Pending Appeal of Appointment

                                            V.T.C.A., Estates Code § 1152.001
                                          Formerly cited as TX PROBATE § 655

                             § 1152.001. Guardian to Serve Pending Appeal of Appointment

                                                 Effective: January 1, 2014
                                                        Currentness


Pending an appeal from an order or judgment appointing a guardian, the appointee shall continue to:


  (1) act as guardian; and


  (2) prosecute a pending suit in favor of the guardianship.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1152.001, TX EST § 1152.001
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 1158.051. Sale of Certain Personal Property Required, TX EST § 1158.051




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle E. Administration of Guardianship
           Chapter 1158. Sale or Partition of Ward's Property
              Subchapter B. Certain Estate Property Required to be Sold

                                              V.T.C.A., Estates Code § 1158.051
                                            Formerly cited as TX PROBATE § 812

                                  § 1158.051. Sale of Certain Personal Property Required

                                                   Effective: January 1, 2014
                                                          Currentness


(a) After approval of the inventory, appraisement, and list of claims, the guardian of the estate of a ward promptly shall apply for
a court order to sell, at public auction or privately, for cash or on credit for a term not to exceed six months, all estate property
that is liable to perish, waste, or deteriorate in value, or that will be an expense or disadvantage to the estate if kept.


(b) The following may not be included in a sale under Subsection (a):


  (1) property exempt from forced sale;


  (2) property that is the subject of a specific legacy; and


  (3) personal property necessary to carry on a farm, ranch, factory, or other business that is thought best to operate.


(c) In determining whether to order the sale of an asset under Subsection (a), the court shall consider:


  (1) the guardian's duty to take care of and manage the estate in the manner a person of ordinary prudence, discretion, and
  intelligence would manage the person's own affairs; and


  (2) whether the asset constitutes an asset that a trustee is authorized to invest under Subchapter F, Chapter 113, Property
  Code, 1 or Chapter 117, Property Code.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


Editors' Notes

                                                       REVISOR'S NOTE



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 1158.051. Sale of Certain Personal Property Required, TX EST § 1158.051




                                                    2014 Main Volume

       Section 812(a), Texas Probate Code, refers to the approval of the “inventory and appraisement” of an estate. The
       inventory and appraisement is filed with a list of claims for the estate, as provided by Section 730, Texas Probate
       Code, revised as Section 1154.052 of this code, and approved with that list, as provided by Section 733, Texas
       Probate Code, revised as Section 1154.054 of this code. The revised law substitutes “inventory, appraisement, and
       list of claims” for “inventory and appraisement” for the reasons stated in the revisor's note to Section 1154.101
       of this code.




Footnotes
1      V.T.C.A., Property Code § 113.171 et seq.
V. T. C. A., Estates Code § 1158.051, TX EST § 1158.051
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
§ 1158.255. Hearing on Application and Any Opposition, TX EST § 1158.255




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle E. Administration of Guardianship
           Chapter 1158. Sale or Partition of Ward's Property
              Subchapter F. Sale of Real Property: Application and Order for Sale

                                             V.T.C.A., Estates Code § 1158.255
                                          Formerly cited as TX PROBATE § 824A

                                 § 1158.255. Hearing on Application and Any Opposition

                                                   Effective: January 1, 2014
                                                          Currentness


(a) The clerk of the court in which an application for an order of sale is filed shall immediately call to the judge's attention any
opposition to the sale that is filed during the period prescribed in the citation issued under Section 1158. 253. The court shall
hold a hearing on the application if an opposition to the sale is filed during the period prescribed in the citation.


(b) A hearing on an application for an order of sale is not required under this section if no opposition to the application is filed
during the period prescribed in the citation. The court may determine that a hearing on the application is necessary even if no
opposition is filed during that period.


(c) If the court orders a hearing under Subsection (a) or (b), the court shall designate in writing a date and time for the hearing
on the application and any opposition, together with the evidence pertaining to the application and any opposition. The clerk
shall issue a notice of the date and time of the hearing to the applicant and to each person who files an opposition to the sale,
if applicable.


(d) The judge, by entries on the docket, may continue a hearing held under this section from time to time until the judge is
satisfied concerning the application.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1158.255, TX EST § 1158.255
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 1251.007. Motion for Dismissal of Application, TX EST § 1251.007




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle G. Special Types of Guardianships
           Chapter 1251. Temporary Guardianships
              Subchapter A. Appointment of Temporary Guardian Generally

                                            V.T.C.A., Estates Code § 1251.007
                                        Formerly cited as TX PROBATE § 875(f)(5)

                                     § 1251.007. Motion for Dismissal of Application

                                                  Effective: January 1, 2014
                                                         Currentness


(a) Subject to Subsection (b), the proposed ward or the proposed ward's attorney may appear and move for the dismissal of
the application for temporary guardianship.


(b) At least one day before making a motion under Subsection (a), the proposed ward or the proposed ward's attorney shall
provide notice to the party who filed the application for temporary guardianship.


(c) If a motion is made for dismissal of the application for temporary guardianship, the court shall hear and determine the motion
as expeditiously as justice requires.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1251.007, TX EST § 1251.007
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 1251.051. Authority to Appoint Temporary Guardian or Grant..., TX EST § 1251.051




  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle G. Special Types of Guardianships
           Chapter 1251. Temporary Guardianships
              Subchapter B. Temporary Guardianship Pending Challenge or Contest of Certain Guardianship
              Applications

                                           V.T.C.A., Estates Code § 1251.051
                                        Formerly cited as TX PROBATE § 875(k)

                  § 1251.051. Authority to Appoint Temporary Guardian or Grant Restraining Order

                                                 Effective: January 1, 2014
                                                        Currentness


The court, on the court's own motion or on the motion of any interested party, may appoint a temporary guardian or grant a
temporary restraining order under Rule 680, Texas Rules of Civil Procedure, or both, without issuing additional citation if:


  (1) an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship,
  or for a permanent guardianship is challenged or contested; and


  (2) the court finds that the appointment or the issuance of the order is necessary to protect the proposed ward or the proposed
  ward's estate.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.


V. T. C. A., Estates Code § 1251.051, TX EST § 1251.051
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 1251.052. Qualification and Duration of Certain Temporary..., TX EST § 1251.052




     KeyCite Yellow Flag - Negative Treatment
Proposed Legislation

  Vernon's Texas Statutes and Codes Annotated
    Estates Code (Refs & Annos)
      Title 3. Guardianship and Related Procedures
        Subtitle G. Special Types of Guardianships
           Chapter 1251. Temporary Guardianships
              Subchapter B. Temporary Guardianship Pending Challenge or Contest of Certain Guardianship
              Applications

                                                   V.T.C.A., Estates Code § 1251.052
                                                Formerly cited as TX PROBATE § 875(l)

                        § 1251.052. Qualification and Duration of Certain Temporary Guardianships

                                                     Effective: September 1, 2015
                                                             Currentness


(a) A temporary guardian appointed under Section 1251.051 must qualify in the same form and manner required of a guardian
under this title.


(b) The term of a temporary guardian appointed under Section 1251.051 expires on the earliest of the following:


  (1) the conclusion of the hearing challenging or contesting the application;


  (2) the date a permanent guardian appointed by the court for the proposed ward qualifies to serve as the ward's guardian; or


  (3) the nine-month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order issued
  after a motion to extend the term is filed and a hearing on the motion is held.


Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2015, 84th Leg., ch. 1031
(H.B. 1438), § 23, eff. Sept. 1, 2015.


Editors' Notes

                                                          REVISOR'S NOTE

                                                          2014 Main Volume

        Section 875(l), Texas Probate Code, requires a temporary guardian to qualify in the same form and manner as a
        guardian under “this code,” meaning the Texas Probate Code. The revised law substitutes a reference to “this title”
        for the reference to “this code” because the provisions of the Texas Probate Code that relate to qualification of
        guardians are revised in Title 3 of this code, and this chapter is included in that title.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
§ 1251.052. Qualification and Duration of Certain Temporary..., TX EST § 1251.052




Notes of Decisions (3)

V. T. C. A., Estates Code § 1251.052, TX EST § 1251.052
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705

                                                                               insufficient and could not be treated as a bill of
                                                                               review. Rules of Civil Procedure, rule 330.
     KeyCite Yellow Flag - Negative Treatment
Not Followed as Dicta   Mowbray v. Avery,     Tex.App.-Corpus Christi,         2 Cases that cite this headnote
 April 11, 2002

                        143 Tex. 250                                     [3]   Judgment
                   Supreme Court of Texas.                                         Time for Application
                                                                               Judgment
                          BRIDGMAN
                                                                                   Collateral nature of proceeding in general
                               v.
                                                                               Where no motion for a new trial was filed before
                             MOORE.
                                                                               expiration of 30 days from date of judgment,
             No. A-185. | Nov. 22, 1944.                                       a motion made after such 30-day period to set
           | Rehearing Denied Dec. 20, 1944.                                   aside judgment and for judgment non obstante
                                                                               veredicto was a collateral attack upon judgment
Error to Court of Civil Appeals of Ninth Supreme Judicial                      and court was unauthorized to set it aside unless
District.                                                                      it was void. Rules of Civil Procedure, rule 330.

Suit by Mrs. F. W. Bridgman against W. T. Moore for                            3 Cases that cite this headnote
recovery of rent and damages, wherein the defendant filed a
cross-action alleging ownership of an undivided interest in              [4]   Judgment
the land and seeking a partition thereof. A judgment of the                        Invalidity of judgment in general
Court of Civil Appeals, 180 S.W.2d 211, dismissed plaintiff's
                                                                               The court has not only the power but the duty to
appeal from an adverse judgment, and plaintiff brings error.
                                                                               vacate the inadvertent entry of a void judgment at
                                                                               any time, either during the term or after the term,
Judgment of Court of Civil Appeals affirmed.
                                                                               with or without a motion therefor.

                                                                               10 Cases that cite this headnote
 West Headnotes (9)
                                                                         [5]   Judgment
                                                                                    Dismissal of action, nonsuit, or direction of
 [1]     Judgment
                                                                               verdict
             Time for Application
                                                                               Judgment
         Where no motion for a new trial was filed
                                                                                   Authority to enter
         before expiration of 30 days from the date of the
         judgment, such judgment became final and, if not                      Upon the entry of a general or directed verdict,
         void, could be set aside only by a bill of review.                    the law determines what the judgment shall be,
         Rules of Civil Procedure, rule 330.                                   and the clerk may enter the judgment without
                                                                               further direction from the court. Vernon's
         8 Cases that cite this headnote                                       Ann.Civ.St. art. 1899.

                                                                               2 Cases that cite this headnote
 [2]     Judgment
             Actions and Other Proceedings to Review
         Judgment                                                        [6]   Judgment
                                                                                   Proceedings for entry
         A motion to set aside judgment theretofore
         rendered on account of numerous errors alleged                        In the case of a special verdict, it is necessary for
         to have occurred in the course of the trial and                       court to announce the judgment thereon before
         for judgment notwithstanding the verdict was                          clerk is authorized to enter judgment. Vernon's
                                                                               Ann.Civ.St. art. 1899.



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705


        Cases that cite this headnote                         Opinion

                                                              FOLLEY, Commissioner.
 [7]    Judgment
            Grounds for review                                This suit was filed by the petitioner, Mrs. F. W. Bridgman,
        Judgment                                              against her brother, who is the respondent, W. T. Moore,
            Defects in entry, form, and contents of           seeking recovery for rents from, and damages to, certain lands
        judgment                                              in Jefferson county, which she alleged she owned and had
                                                              leased to respondent. The respondent filed a cross action
        The signing and approving of judgment on
                                                              alleging that he was the owner of a 1/8 undivided interest in
        special verdict at judge's private residence
                                                              the land and sought partition thereof and recovery for certain
        without knowledge or presence of plaintiff or
                                                              improvements he had added to the property. Trial was had
        her counsel was irregular and, upon direct
                                                              in the district court of Jefferson county beginning on June
        attack by bill of review, would have warranted
                                                              16, 1942. Fact issues were submitted **706 to a jury and
        equitable relief, but such irregularity did not
                                                              the jury's verdict was returned and filed June 20, 1942. On
        render judgment void so as to warrant setting it
                                                              July 3, 1942, judgment was rendered on the jury's verdict
        aside on collateral attack. Vernon's Ann.Civ.St.
                                                              and entered into the court's minutes. The court found that
        art. 1899.
                                                              petitioner owned 7/8, and respondent *252 1/8, of the land,
        14 Cases that cite this headnote                      and the decree awarded respondent a 1/8 interest, ordered
                                                              the land partitioned, and, in keeping with the jury's verdict,
                                                              allowed respondent a recovery against petitioner for $673.75,
 [8]    Courts
                                                              and denied petitoner any recovery for the rents and damages
            Place for holding sessions
                                                              she sought.
        Under constitutional and statutory provisions
        requiring that district judge shall hold court only   No motion for new trial was filed within thirty days from the
        at the “county seat” of county, the quoted term       rendition and entry of the judgment. The term of the district
        means the place where the courthouse is situated.     court ended on Sunday, July 5, 1942. Such district court
        Vernon's Ann.Civ.St. arts. 1602, 1919; Vernon's       is governed by Rule 330, Texas Rules of Civil Procedure,
        Ann.St.Const. art. 5, § 7.                            which provides that judgments shall become final after the
                                                              expiration of thirty days after the date of judgment or after
        10 Cases that cite this headnote                      a motion for a new trial is overruled, and that after the
                                                              expiration of such time the judgment cannot be set aside
 [9]    Judgment                                              except by bill of review for sufficient cause.
            Place of rendition
                                                              On August 6, 1942, as shown by supplemental transcript,
        Generally, judgment should be pronounced only         petitioner filed a motion to set aside the judgment of July 3,
        in open court at the time and place appointed         1942, and asked the court to render judgment in her behalf on
        therefor.                                             her motion for judgment non obstante veredicto, theretofore
                                                              filed by her on June 25, 1942. On August 13, 1942, she filed
        1 Cases that cite this headnote
                                                              an amended motion seeking the same relief. On the latter date
                                                              the court made and entered the following order:
                                                              ‘On the 13th day of August, 1942, came on to be heard the
                                                              motion of Mrs. F. W. Bridgeman, et al, plaintiffs in the above
Attorneys and Law Firms                                       consolidated cause, to set aside the Judgment entered in the
                                                              minutes in this cause on the 3rd day of July, 1942, and issue
 *251 **705 David E. O'Fiel and C. W. Wiedemann, both
                                                              being joined thereon, and the court having considered the
of Beaumont, for petitioner.
                                                              motion together with the evidence adduced thereon is of the
John H. Land, of Beaumont, for respondent.                    opinion that the said motion is well taken, and that same
                                                              should be granted.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705

‘It is therefore ordered, adjudged and decreed that the               for new trial. Halbrook v. Quinn, Tex.Civ.App., 286 S.W.
judgment entered by this court in this consolidated cause on          954; Buchanan v. Bilger, 64 Tex. 589; Roberts v. McCamant,
the 3rd day of July, 1942, be and the same is hereby set aside.’      70 Tex. 743, 8 S.W. 543; **707 Bowers v. Chaney, 21
                                                                      Tex. 363; Wright v. Shipman, Tex.Civ.App., 279 S.W. 296.
                                                                      However, the court has not only the power but the duty to
On September 18, 1942, the court approved a second                    vacate the inadvertent entry of a void judgment at any time,
judgment which was on that date entered in the minutes. The           either during the term or after the term, with or without a
second judgment is identical with that of July 3, 1942. The           motion therefor. Nevitt v. Wilson, 116 Tex. 29, 285 S.W.
petitioner attempted to appeal from the second judgment to            1079, 48 A.L.R. 355; Wichita Falls, R. & Ft. W. R. Co. v.
the Court of Civil Appeals at Beaumont. That court dismissed          Combs, 115 Tex. 405, 283 S.W. 135. The question therefore
the appeal holding that the entry of the second judgment did          arises as to whether the judgment is void and thus subject to
not vacate the first, and, in the absence of a bill of review, that   the collateral attack.
the first judgment had become final since no motion was filed
within thirty days from its date to set it aside. 180 S.W.2d 211.
                                                                     *254 The only indication in the record of anything irregular
 *253 On the original submission the Court of Civil Appeals         as to the first judgment is contained in the allegations of
refused to order the district clerk to file a supplemental          petitioner in her amended motion for a new trial filed August
transcript containing an alleged bill of review against the first   13, 1942. She alleged that on the first day of July, 1942,
judgment. One of the points upon which we granted the writ          after the return of the verdict but before the entry of the
of error was the alleged refusal of the Court of Civil Appeals      judgment, respondent caused to be forwarded to petitioner
to direct the filing of the supplemental transcript. However,       and her attorney a draft of the judgment, and a motion to enter
the record reveals that prior to the overruling of the motion       the same, with a statement that it was the judgment respondent
for rehearing in such court the supplemental transcript was         was going to request the court to enter; that the trial judge was
filed and was presumably considered at the time the motion          busy trying another case during the week of June 29, 1942,
for rehearing was overruled. The only question remaining for        at which time he became ill and was obliged to discontinue
our determination is whether the trial court's order of August      the trial and remain at his home; that respondent, through
13, 1942, was effectual to set aside the judgment of July 3,        his counsel, caused a draft of the judgment to be signed by
1942.                                                               the trial judge at his private residence, without a hearing,
 [1] [2] [3] [4] Since no motion for a new trial was filedand not at the courthouse or in the courtroom, and without
by petitioner before the expiration of thirty days from the         notification to petitioner or her counsel; that such judgment
date of the judgment of July 3, 1942, under Rule 330(l), the        was entered and that neither petitioner nor her counsel were
same became final, and, if not void, could be set aside only        advised of its entry; and that petitioner and her counsel had
by a bill of review. The petitioner contends that the motion        no opportunity to be present in court and contest the granting
upon which the court acted in purporting to set aside the first     of such judgment and thus had been deprived of a substantial
judgment is sufficient to be treated as a bill of review. We        right. In her petition for writ of error petitioner asserts that the
are not in accord with this contention. In such motion she          above facts constituted equitable grounds for setting aside the
merely seeks to set aside the former judgment on account            judgment, which she alleges is void. Presumably the alleged
of numerous errors alleged to have occurred in the course           vice in the judgment is that it was signed by the judge at his
of the trial, and also asks that judgment be rendered for her       private residence. Petitioner contends that such fact vitiates
notwithstanding the verdict. It is not an original proceeding       the decree because it was not rendered in open court.
filed as an independent action against respondent alleging a
meritorious cause of action. It is therefore insufficient as a bill The order purporting to set aside the judgment recites that
of review. Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d             evidence was introduced on the hearing of the motion. Such
963; Hermann Hospital Estate v. Nachant, Tex.Com.App.,              testimony does not accompany the record. However, for the
55 S.W.2d 505; Ridley v. McCallum, 139 Tex. 540, 163                purpose of this opinion, we shall presume that the above
S.W.2d 833; Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d             allegations were established by the evidence. In the light of
865, and Nachant v. Monteith, 117 Tex. 214, 299 S.W. 888.           such assumption we must determine if the facts so assumed
Consequently, the attack made upon the former judgment              render the judgment void so as to subject it to this collateral
is collateral, and unless the judgment is void the court was        attack.
unauthorized to set it aside in the hearing upon the motion


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705

 [5]      [6] Under the provisions of Art. 1899, Vernon's                     filing of which memorandum should be
Ann.Civ.Stat., district clerks are required to keep a fair record             made in the appearance docket. As noted
of all of the acts done, and proceedings had, in their respective             in Martin v. Martin, supra (125 Iowa
courts, and to ‘enter all judgments of the court, under direction             73, 99 N.W. 719), it is merely a more
of the judge, * * * in record books to be kept for the purpose.’              specific direction as to the decision to
Upon the return of a general or directed verdict, under our                   be entered than an oral announcement
practice, there is no need for any action by the court as the                 or memorandum entered in the judge's
law determines what the judgment shall be, and the clerk                      calendar. Its sole purpose is that of
may enter the judgment without further direction from the                     prescribing the precise form of decree
court; ‘but, in case of special verdict, the facts being found                to be spread in the record book by the
by the jury, it is necessary for the court to announce the                    clerk. Thereupon it becomes the duty of
judgment, the legal conclusion thereon, because the law is not                the clerk to enter the decree of record.’
determined by the special verdict, nor *255 are the rights
of the parties fixed thereby.’ Carwile v. William Cameron
& Co., 102 Tex. 171, 114 S.W. 100, 102; Lloyd v. Brinck,            To the same effect are the following cases: Bulkeley's Appeal,
35 Tex. 1. It therefore became necessary for the trial judge        76 Conn. 454, 57 A. 112; Martin v. Martin, 125 Iowa 73,
to make some sort of pronouncement of the law of this case          99 N.W. 719; Roberts v. White, 7 Jones & S. 272, 274, 39
before the clerk was authorized to enter the decree.                N.Y.Super.Ct. 272, 274; Coffey v. Gamble, 117 Iowa 545,
                                                                    548, 91 N.W. 813.
 [7] The judgment in question was signed by the judge, filed
                                                                    *256 In Roberts v. White, supra, the Superior Court of New
and entered by the clerk, and recorded in the minutes of the
                                                                    York held:
court on July 3, 1942. There is no doubt that the signing
and approving of the judgment at the private residence of                     ‘Reducing the decision to writing
the judge, without the knowledge or presence of petitioner or                 concludes the trial and authorizes the
her counsel, was an irregular rendition of the judgment, and                  judgment. No allocatur of the justice is
upon direct attack by bill of review would have constituted                   required. The clerk on filing the decision
such error, under the facts of this case, as to warrant equitable             enters the judgment strictly in conformity
relief. But we cannot concede that such irregularity rendered                 with the decision.’
the judgment void. 32 C.J. 1065, s 23.
                                                                     [8] [9] Our Constitution and statutes require that a district
                                                                    judge shall hold court only at the county seat of the county,
In Goldreyer v. Cronan, 76 Conn. 113, 117, 55 A. 594, 596,          which means the place where the courthouse is situated.
the Supreme Court of Errors of Connecticut said:                    Turner v. Tucker, 113 Tex. 434, 258 S.W. 149; Sec. 7 of Art.
          ‘A judgment, speaking generally, is                       5, Constitution of Texas, Vernon's Ann.St.; Arts. 1602 and
          the determination or sentence of the                      1919, Vernon Ann.Civ.St. Although there is no specific law
          law, speaking through the court; and it                   requiring it, it is also the general rule that judgment should be
          does not exist, as a legal entity, until                  announced only in open court at the time and place appointed
          pronounced, expressed, or made known                      therefor. Aiken v. Carroll, 37 Tex. 73; Hunton v. Nichols,
          in some appropriate way. It may be                        55 Tex. 217; Hodges v. Ward, 1 Tex. 244; Sinclair Refining
          expressed orally or in writing, or in both                Co. v. McElree, Tex.Civ.App., 52 S.W.2d 679; Accousi v.
          of these ways, in accordance with the                     G. A. Stowers Furniture Co., Tex.Civ.App. 83 S.W. 1104.
          customs and usages of the court in which                  However, we are of the opinion that a court's action in this
          the judgment is rendered.’                                respect may be such a substantial compliance with these rules
                                                                    that it may not be questioned in a collateral attack.

**708 In State v. Beaton, 190 Iowa 216, 178 N.W. 1, 180
N.W. 166, 167, the Supreme Court of Iowa stated:                    In Doeppenschmidt v. City of New Braunfels, Tex.Civ.App.,
          ‘The form of a decree signed by the trial                 289 S.W. 425, writ refused, it was held, even in a direct
          judge is one of the papers in a case, upon                attack, that in the absence of an objection it was immaterial



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705

                                                                       intended such instrument, with his signature and approval and
whether the court performed the act of rendering judgment in
                                                                       its subsequent delivery to the clerk, to constitute his official
his private office or in the courtroom.
                                                                       pronouncement of the decree. The clerk must have understood
In Townsley v. State, 103 Tex.Cr.R. 508, 281 S.W. 1054, in             such to be his intention, for the instrument was filed and
another direct attack, the Court of Criminal Appeals held that         entered by him as the judgment of the court. The only thing
the drawing of a special venire in the clerk's office was not          irregular about the judgment was the judge's approval of it at
invalid under a statute requiring it to be drawn by the clerk          his private residence. All other acts with reference to it were
in the presence of the judge ‘in open court.’ Art. 592, Code           regular in every respect. The delivery of the instrument to
Civ.Proc.                                                              the clerk, his filing the same, and entering and recording it,
                                                                       obviously occurred in the usual manner and place. These acts
In Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563, 565, in            were a matter of public record and were open and available
still another direct attack, the same court, in construing the         for the inspection of petitioner and her counsel. Under these
same statute, held that the drawing of a jury from a jury wheel        conditions we think such procedure, though irregular in the
in a room rented for the assessor across the street from the           respect mentioned, was not of such nature as to completely
courthouse was not grounds for quashing the panel. In that             nullify the judgment so as to subject it to collateral attack.
case the court said that substantial compliance with the statute       Such decree thus stands in the record neither vacated nor
was all that was required, and that ‘while the law in question         appealed from, and the entry of the second judgment, which is
requires the filling of the jury wheel, etc., to take place at         a nullity under **709 the circumstances, does not vacate or
the courthouse, we would not understand this to be literally           affect the first. Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d
binding in every case.’                                                83.

 *257 The judgment in question was in proper form and                  The judgment of the Court of Civil Appeals, dismissing the
purported to adjudicate all questions of law and fact at issue         appeal, is affirmed.
between the parties. The petitioner and her counsel knew such
judgment had been prepared for the approval of the court.              Opinion adopted by the Supreme Court.
They had received a copy of it from respondent's counsel
with the statement that it was the judgment which he was               All Citations
going to request the court to enter. The court apparently              143 Tex. 250, 183 S.W.2d 705

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Camarena v. Texas Employment Com'n, 754 S.W.2d 149 (1988)




                                                                       [2]    States
     KeyCite Yellow Flag - Negative Treatment                                      Particular Actions
Distinguished by Texas State Bd. of Veterinary Medical Examiners v.
                                                                              States
Giggleman,    Tex.App.-Austin,    August 22, 2013
                                                                                   Costs
                      754 S.W.2d 149                                          Where agricultural exemption of Texas
                  Supreme Court of Texas.                                     Unemployment Compensation Act was
                                                                              subsequently declared unconstitutional and Act
         Roberto CAMARENA, et al., Petitioners,                               was amended, actions of Texas Employment
                         v.                                                   Commission in denying benefits pursuant to
               TEXAS EMPLOYMENT                                               exemption were “prohibited” within meaning of
            COMMISSION, et al., Respondents.                                  statute permitting award of attorney fees arising
                                                                              out of state official's engagement in prohibited
               No. C–5483.         |   July 6, 1988.                          act, and thus farm workers who prevailed
                                                                              in constitutional challenge to exemption were
Farm workers brought suit challenging constitutionality
                                                                              entitled to attorney fees, and fees were not
of Texas Unemployment Compensation Act's agricultural
                                                                              barred by sovereign immunity. V.T.C.A., Civil
exemption. The 201st District Court, Travis County, Harley
                                                                              Practice & Remedies Code § 106.001; Vernon's
Clerk, J., entered judgment in favor of farm workers, and
                                                                              Ann.Texas Civ.St. arts. 5221b–1 to 5221b–24.
Texas Employment Commission appealed. The Court of
Appeals, 710 S.W.2d 665, determined that judgment was                         23 Cases that cite this headnote
moot, and held that attorney fees were barred by sovereign
immunity. Farm workers appealed. The Supreme Court,
Wallace, J., held that: (1) legislature's amendment of Act             [3]    States
did not render the action moot, as “live” issue on attorney                        Costs
fees remained; (2) award of attorney fees was not barred by                   Where      farm      workers     prevailed     in
sovereign immunity; and (3) trial court could not order that                  their constitutional challenge to Texas
costs of appeal be taxed equally between Texas Employment                     Unemployment Compensation Act's agricultural
Commission and farm workers.                                                  exemption, trial court could not order that costs
                                                                              of appeal be taxed equally between farm workers
Affirmed in part, reversed in part.                                           and Texas Employment Commission. Vernon's
                                                                              Ann.Texas Civ.St. arts. 5221b–1 to 5221b–24;
                                                                              Vernon's Ann.Texas Rules Civ.Proc., Rule 131.

 West Headnotes (3)                                                           7 Cases that cite this headnote


 [1]     Declaratory Judgment
             Moot, Abstract or Hypothetical Questions
                                                                      Attorneys and Law Firms
         Legislature's      amendment         of     Texas
         Unemployment Compensation Act did not                         *150 James C. Harrington, (Civil Liberties Union), Hector
         moot farm workers' suit challenging the Act's                Uribe, (State Senator), Austin, Juan J. Hinojosa, McAllen, for
         constitutionality, as “live” controversy remained            petitioners.
         as to whether farm workers had legally
         cognizable interest in recovering their attorney             Jim Mattox, Atty. Gen., Joseph W. Barbish, Jr., Asst. Atty.
         fees and costs. Vernon's Ann.Texas Civ.St. arts.             Gen., Austin, for respondents.
         5221b–1 to 5221b–24.
                                                                      Opinion
         144 Cases that cite this headnote
                                                                      WALLACE, Justice.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Camarena v. Texas Employment Com'n, 754 S.W.2d 149 (1988)


Roberto Camarena and other Texas farm workers appeal from         the trial court's judgment granting declaratory and injunctive
the dismissal of their suit challenging the constitutionality     relief to be moot, held that attorney's fees were barred *151
of the Texas Unemployment Compensation Act [TUCA],                by sovereign immunity and additionallyassessed the costs of
TEX.REV.CIV.STAT.ANN. art. 5221b–1 to 24 (Vernon                  appeal equally between TEC and the farm workers. From this
1987 & Supp.1988), the denial of attorney's fees and the          judgment, the farm workers appeal.
assessment of costs. 710 S.W.2d 665. In this suit the issues
presented are threefold: (1) whether the farm workers' suit       In reference to the issue of mootness, it is axiomatic that
is moot due to the Legislature's subsequent amendment of          appellate courts do not decide cases in which no controversy
the challenged statute, (2) whether the doctrine of sovereign     exists between the parties. City of West University Place v.
immunity bars the farm workers from recovery of attorney's        Martin, 132 Tex. 354, 123 S.W.2d 638 (1939); Texas Parks &
fees, and (3) whether costs have been properly assessed. We       Wildlife Dept. v. Texas Assoc. of Bass Clubs, 622 S.W.2d 594
hold that the suit was not moot, that sovereign immunity does     (Tex.App.—Austin 1981, writ ref'd n.r.e.). Generally, a case
not preclude an award of attorney's fees and that all costs be    is determined to be moot “when the issues presented are no
assessed against the State.                                       longer ‘live’ or the parties lack a legally cognizable interest in
                                                                  the outcome.” Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181,
 [1] In 1984, farm workers sued the Texas Employment              71 L.Ed. 353 (1982), citing United States Parole Comm'n
Commission (TEC) seeking to have the agricultural                 v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479
exemption of TUCA declared unconstitutional. The                  (1980), quoting Powell v. McCormack, 395 U.S. 486, 89 S.Ct.
exemption denied unemployment benefits to most                    1944, 23 L.Ed.2d 491 (1969).
agricultural workers. The original suit was severed for trial
into two suits: one suit on the claims of individual farm         Clearly, a controversy exists between the farm workers and
workers; and another suit on behalf of the class. This            TEC. The “live” issue in controversy is whether or not the
suit was defended under the provisions of Ch. 104 of the          farm workers have a legally cognizable interest in recovering
TEX.CIV.PRAC. & REM.CODE (Vernon 1986 & Supp.                     their attorney's fees and costs. The fact that the Legislature
1988) by the Attorney General.                                    wisely undertook action to bring the farm workers within
                                                                  the scope of TUCA does not moot or void the workers'
In January 1985, the trial court granted declaratory relief       interest in obtaining attorneys fees and costs for the successful
in the individuals' suit. The court held that the exemption       disposition of their claim. Contrary to the court of appeals'
was an unconstitutional violation of the Texas Equal Rights       suggestion, the attorney's fees issue need not be severed in
Amendment, TEX. CONST. art. I, § 3a. The court further            order to be considered; it is an integral part of the farm
enjoined officials from enforcing the exemption. The trial        workers' claim and as such breathes life into the appeal. Due
court determined the amount of reasonable and necessary           to the existence of the “live” issue of attorney's fees and costs,
attorney's fees incurred by the farm workers, but found the       we hold that the suit was not moot.
award of such fees to be barred by sovereign immunity.
                                                                  In addition to the declaratory relief granted, the district court
In May 1985, the Texas Legislature amended TUCA.                  granted injunctive relief which enjoined TEC from any future
The amendment provided farm workers with phased-in                action denying, prejudicing, or detrimentally affecting the
unemployment coverage. Subsequent to the Legislature's            benefits and protections afforded the farm workers under
amendment, the trial court modified its judgment and held         House Bill 32. The court of appeals held that the injunction
that the new legislation was constitutional. The court enjoined   was moot.
officials from enforcing anything less than the newly enacted
law. In July 1985, the trial court rendered a similar judgment    It is fundamental that a court has no jurisdiction to render an
on behalf of the class.                                           advisory opinion on a controversy that is not yet ripe. City
                                                                  of Garland v. Louton, 691 S.W.2d 603 (Tex.1985), citing
TEC appealed the trial court's ruling, complaining that the       California Products, Inc. v. Puretex Lemon Juice, Inc., 160
judgment was moot. TEC did not contest the trial court's          Tex. 586, 334 S.W.2d 780 (1960). At the time of judgment,
ruling as to the constitutionality of the statute. By way of      TEC had not attempted to deny, prejudge or detrimentally
cross-point, the farm workers asserted trial court error in       affect the benefits conferred by House Bill 32. Consequently,
failing to award attorney's fees. The court of appeals held       we hold that there was no ripe controversy before the district



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Camarena v. Texas Employment Com'n, 754 S.W.2d 149 (1988)


court which mandated injunctive relief. Accordingly, we              prohibited acts enunciated in subsections (4) and (5) of §
vacate the injunction. The trial court granted injunctive relief     106.001.
based on a hypothetical situation which might or might not
arise at a later date. District courts, under our Constitution, do   The remedies afforded for a violation of § 106.001 are set
not give advice or decide cases upon speculative, hypothetical       forth in § 106.002:
or contingent situations. Coalson v. City Council of Victoria,
610 S.W.2d 744 (Tex.1980).                                             § 106.002 Remedies

                                                                       (a) If a person has violated or there are reasonable grounds
 [2] In regard to the second issue presented in this case, the
                                                                       to believe a person is about to violate Section 106.001, the
trial court denied attorney's fees to the farm workers on the
                                                                       person aggrieved by the violation or threatened violation
basis that such an award was barred by sovereign immunity.
                                                                       may sue for preventive relief, including a permanent or
The court of appeals affirmed. However, the trial court did
                                                                       temporary injunction, a restraining order, or any other
find that if sovereign immunity did not bar payment, then
                                                                       order.
TEC would be liable for $36,810 in attorney's fees.
                                                                       (b) In an action under this section, unless the state is the
The Legislature has expressly provided for payment of                  prevailing party, the court may award the prevailing party
judgments against state officials in TEX.CIV.PRAC. &                   reasonable attorney's fees as a part of the costs. The state's
REM.CODE, Ch. 104 as well as for the payment of attorney's             liability for costs is the same as that of a private person.
fees and costs in suits arising from a State official's or State
employee's engagement in a prohibited act. TEX.CIV.PRAC.             We hold that in compliance with Chapter 106, the farm
& REM.CODE § 106.001 (Vernon 1986).                                  workers, as prevailing parties, are entitled to attorney's fees
                                                                     and costs. We therefore hold that the lower courts erred
Section 106.001, in pertinent part provides:                         in finding that sovereign immunity barred the State from
                                                                     liability and uphold the trial court's finding granting the farm
  § 106.001. Prohibited Acts
                                                                     workers $36,810 in attorney's fees.
  (a) An officer or employee of the state or of a political
  subdivision of the state who is acting or purporting to act         [3] Finally, in reference to costs, the court of appeals ordered
  in an official capacity may not, because of a person's race,       that the costs of appeal be taxed equally between TEC and
  religion, color, sex, or national origin:                          the farm workers and remanded to the trial court for an
                                                                     assessment of the additional costs of the suit. We reverse the
                                                                     judgment of the court of appeals and order that all costs be
                                                                     assessed against the State. TEX.R.CIV.P. 131 provides that
     (4) refuse to permit the person to participate in a program     the successful party to a suit shall recover all costs incurred.
     owned, operated, or managed by or on behalf of the state        “Taxing of costs against the successful party in the trial
     or a political subdivision of the state;                        court is contrary to Rule 131 of the Texas Rules of Civil
                                                                     Procedure.” Martinez v. Pierce, 31 Tex.Sup.Ct.J. 359 (April
      *152 (5) refuse to grant a benefit to the person;              30, 1988).

                                                                     We reverse the judgment of the court of appeals. We affirm
                                                                     that part of the trial court's judgment granting declaratory
In the trial court's findings of facts and conclusions of law,       relief but vacate the portion of the judgment granting
it determined that minority agricultural workers were denied         injunctive relief. We reverse the portion of the trial court's
TUCA unemployment benefits and found illegal ethnic and              judgment denying the farm workers recovery of attorney's
racial discrimination in violation of the Texas Equal Rights         fees and render judgment that the farm workers recover
Amendment, TEX. CONST. art. I, § 3a. The State, through              $36,810 in attorney's fees. We reverse the court of appeals'
TEC, refused to permit the farm workers to participate in the        assessment of costs and order that all costs of the suit be
State operated unemployment compensation program. The                assessed against the State.
freedom to participate in such a program is undeniably a
benefit. Accordingly, TEC's actions fell within the ambit of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Camarena v. Texas Employment Com'n, 754 S.W.2d 149 (1988)



All Citations

754 S.W.2d 149

End of Document                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    4
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (2008)




                                                                        [2]   Attorney and Client
     KeyCite Yellow Flag - Negative Treatment                                      Rights of Litigants to Act in Person or by
Distinguished by Strauss v. Belt,    Tex.App.-Austin,   July 23, 2010         Attorney

                      271 S.W.3d 928                                          A court will not make allowances for, or apply
                  Court of Appeals of Texas,                                  different standards, because a case is presented
                    Houston (14th Dist.).                                     by a litigant acting without the advice of counsel.

          Margie CANTON–CARTER, Appellant                                     2 Cases that cite this headnote
                       v.
       BAYLOR COLLEGE OF MEDICINE, Appellee.                            [3]   Appeal and Error
                                                                                 References to Record
        No. 14–07–00351–CV.             |    Dec. 23, 2008.
                                                                              An appellate court has no duty, or even the right,
Synopsis                                                                      to perform an independent review of the record
Background: Patient brought suit against medical facility for                 and applicable law to determine whether there
injuries she allegedly sustained as a result of a hysterectomy.               was error.
The 270th District Court, Harris County, 2007 WL 5490240,
                                                                              8 Cases that cite this headnote
granted facility summary judgment. Patient appealed.

                                                                        [4]   Appeal and Error
                                                                                 Failure to Urge Objections
Holdings: The Court of Appeals, John S. Anderson, J., held
                                                                              In the review of a civil case, an appellate court
that:
                                                                              has no discretion to consider an issue not raised
                                                                              in an appellant's brief.
[1] patient did not allege trial court error in her appellate brief,
or cite legal authority, or provide substantive analysis of the               9 Cases that cite this headnote
legal issues presented, and, thus, she waived her issues on
appeal, and
                                                                        [5]   Appeal and Error
[2] summary judgment evidence presented by patient was                           Insufficient Discussion of Objections
insufficient to raise a genuine issue of material fact.                       Patient who brought pro se suit against medical
                                                                              facility for injuries she allegedly sustained as
                                                                              a result of a hysterectomy did not allege trial
Affirmed.                                                                     court error in her appellate brief, or cite legal
                                                                              authority, or provide substantive analysis of the
Kem Thompson Frost, J., concurred and filed opinion.                          legal issues presented, and, thus, patient waived
                                                                              her issues on appeal; appellate court could not
                                                                              review record, research law, and fashion legal
 West Headnotes (11)                                                          argument for patient when she failed to do so.
                                                                              Rules App.Proc., Rule 38.1(f), (i).

 [1]     Attorney and Client                                                  16 Cases that cite this headnote
              Rights of Litigants to Act in Person or by
         Attorney                                                       [6]   Appeal and Error
         A pro se litigant is required to properly present                       Requisites and Sufficiency
         her case on appeal, just as she is required to                       An issue presented for appellate review is
         properly present her case to the trial court.                        sufficient if it directs the reviewing court's
                                                                              attention to the error about which the complaint
         6 Cases that cite this headnote
                                                                              is made. Rules App.Proc., Rule 38.1(f).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (2008)




        10 Cases that cite this headnote                       [11]    Judgment
                                                                           Torts

 [7]    Appeal and Error                                               Timely filed summary judgment evidence
           Form and Requisites in General                              presented by patient who brought pro se
                                                                       suit against medical facility for injuries she
        Appeal and Error
                                                                       allegedly sustained as a result of a hysterectomy
           References to Record
                                                                       was insufficient to raise a genuine issue of
        Appeal and Error                                               material fact as to whether facility's alleged
           Points and Arguments                                        negligence caused patient's alleged injuries, and,
        An appellant's brief must contain a clear                      thus, facility's no-evidence motion for summary
        and concise argument that includes appropriate                 judgment was properly granted. Vernon's
        citations to legal authority and the appellate                 Ann.Texas Rules Civ.Proc., Rule 166a(i).
        record; this requirement is not satisfied by
        merely uttering brief, conclusory statements                   1 Cases that cite this headnote
        unsupported by legal citations. Rules App.Proc.,
        Rule 38.1(i).

        9 Cases that cite this headnote                       Attorneys and Law Firms

                                                              *930 Margie Canton–Carter, Missouri City, TX, pro se.
 [8]    Appeal and Error
           Insufficient Discussion of Objections              Joanna Walker Raynes, Peggy R. Ban, Houston, TX, for
        Failure of an appellant to cite legal authority       appellees.
        or to provide substantive analysis of the legal
        issues presented on appeal results in waiver of       Panel consists of Justices ANDERSON, FROST and
        the complaint. Rules App.Proc., Rule 38.1(i).         HUDSON. *

        7 Cases that cite this headnote                       *       Senior Justice Harvey Hudson sitting by assignment.


 [9]    Appeal and Error
           References to Record                                                  MAJORITY OPINION
        Appeal and Error
           Points and Arguments                               JOHN S. ANDERSON, Justice.
        It is not an appellate court's duty to review the
                                                              Pro se appellant, Margie Canton–Carter, appeals the trial
        record, research the law, and then fashion a legal
                                                              court's granting of appellee, Baylor College of Medicine's
        argument for an appellant if she has failed to do
                                                              motion for summary judgment. We affirm.
        so. Rules App.Proc., Rule 38.1(f), (i).

        5 Cases that cite this headnote
                                                                  FACTUAL AND PROCEDURAL BACKGROUND
 [10]   Appeal and Error
                                                              Appellant filed suit against appellee, Dr. Alan Tita, and
           Briefs
                                                              Dr. Erin L. O'Brien for injuries she allegedly sustained as
        An appellate court may not consider documents         a result of a hysterectomy performed on July 17, 2002.
        attached to an appellate brief that are not part of   In May 2005, the trial court granted Dr. Tita's motion
        the appellate record.                                 for summary judgment and dismissed with prejudice all
                                                              of appellant's causes of action against Dr. Tita. The trial
        10 Cases that cite this headnote
                                                              court eventually signed an order severing appellant's causes
                                                              of action against Dr. Tita from the original lawsuit. On


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (2008)


September 14, 2005 appellant filed her notice of non-suit of          this lawsuit, with return receipts/response letters received
Dr. O'Brien. On September 21, 2005, the trial court signed            from Baylor's Risk Management office, Jan. 30, 2003.” In her
an order acknowledging appellant's non-suit of Dr. O'Brien            ninth issue, appellant asserts: “material misrepresentations
and dismissing appellant's suit against Dr. O'Brien leaving           to plaintiff that raises a cross-point to pass sanctions on
appellee as the sole defendant in appellant's lawsuit. On             plaintiff's former Attorney Martin, and the defendants.”
February 6, 2007 appellee filed a hybrid no-evidence and              Appellant's tenth issue provides, in its entirety: “resolution
traditional motion for summary judgment. The trial court              of plaintiff's claim for indigency.” Finally, in an unnumbered
granted appellee's motion without specifying the grounds.             issue, appellant contends appellee's expert witness affidavit
This appeal followed.                                                 lacks “authenticity due to the lack of Notary seal, signature of
                                                                      Affiant, and Notary Public not occurring on the same page.”
                                                                      Even after examining the argument section of appellant's
                                                                      amended brief, we are unable to discern any complaint about
                        DISCUSSION
                                                                      an alleged trial court error.
 [1] [2] The law is well established that pro se litigants are
held to the same standards as licensed attorneys and must             1      Appellant filed her initial brief on May 22, 2008. She
comply with all applicable rules of procedure. Valadez v.                    then requested leave to file an amended brief, which was
Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no                       granted. Appellant's amended brief was filed on June 26,
pet.). A pro se litigant is required to properly present her case            2008.
on appeal, just as she is required to properly present her case   [6] The Texas Rules of Appellate Procedure control the
to the trial court. Id. If this were not the rule, pro se litigants
                                                                 required contents and the organization for an appellate brief.
would benefit from an unfair advantage over those parties        Id. (citing Tex.R.App. P. 38.1). One of those requirements
who are represented by counsel. Id. Therefore, we will not       is that an appellant's brief must concisely state all issues or
make allowances for, or apply different standards, because a     points presented for review. Id. (citing Tex.R.App. P. 38.1(e)
case is presented by a litigant acting without the advice of     (now Rule 38.1(f))). An issue presented for appellate review
counsel. Id.                                                     is sufficient if it directs the reviewing court's attention to
                                                                 the error about which the complaint is made. Id. Appellant's
 [3] [4] It is appellant's burden to discuss her assertions of issues on appeal do not meet this requirement as they do not
error. Id. An appellate court has no duty, or even the right, to point out any error allegedly committed by the trial court or
perform an independent review of the record and applicable       even attack the merits of the trial court granting appellee's
law to determine whether there was error. Id. In the review of   motion for summary judgment. It would be inappropriate for
a civil case, an appellate court has no discretion to consider   this court to speculate as to what appellant may have intended
an issue not raised in an appellant's brief. Id.                 to raise as an error by the trial court on appeal. Id. To do
                                                                 so would force this court to stray from our role as a neutral
 [5] In her amended brief, appellant presents what purport adjudicator and become an advocate for appellant. Martinez
to be eleven issues for appellate review. 1 In her first         v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso
issue, appellant states: “no informed consent to *931            2007, pet. stricken).
remove ovaries.” In her second issue, appellant contends:
“resident physicians, not experienced in major surgery of         [7] [8] [9] [10] In addition to a concise statement of
this nature, followed a medical path for resolution that         all issues presented for review, an appellant's brief must
was not warranted.” Appellant's third issue, in its entirety     also contain a clear and concise argument that includes
provides: “failure to supervise residents (duty to regulate).”   appropriate citations to legal authority and the appellate
In issue four, appellant contends: “all Baylor residents (non-   record. Valadez, 238 S.W.3d at 845 (citing Tex.R.App. P.
suited), were served prior to statute of limitations expiring.”  38.1(h)(now Rule 38.1(i))). This requirement is not satisfied
Appellant's fifth issue states simply: “plaintiff's attorney's   by merely uttering brief, conclusory statements unsupported
withdrawal.” Appellant's sixth issue provides: “defendants       by legal citations. Id. Failure to cite legal authority or to
paid all of plaintiff's medical bills.” In her seventh issue,    provide substantive analysis of the legal issues presented
appellant contends the “lower court failed to introduce          results in waiver of the complaint. Id. Appellant has not
pertinent evidence/medical records.” Next, in issue eight,       met this requirement. Appellant's amended brief consists of a
appellant asserts “all the defendants were timely served about   series of disjointed factual assertions and cryptic complaints.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     3
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (2008)


Appellant did not provide any discussion of the appropriate        The majority concludes that appellant Margie Canton–Carter
standard of review for the appeal of a summary judgment,           has not assigned any error and that this court may resolve
any citation of appropriate legal authority, or any analysis       this entire appeal based on briefing waiver. Though both
applying the appropriate legal authority to the facts of her       conclusions are incorrect, the court nonetheless reaches the
case in such a manner as to demonstrate the trial court            right result because the timely filed summary-judgment
committed reversible error when it granted appellee's motion       evidence does not raise a genuine issue of material fact as to
for summary judgment. 2 It is not *932 this court's duty           whether the alleged negligence of appellee Baylor College of
to review the record, research the law, and then fashion a         Medicine proximately caused Canton–Carter's injury.
legal argument for appellant when she has failed to do so.
Urrutia v. Kysor Industrial Corp., No. 14–98–00577–CV,             The majority applies the rules of appellate procedure too
2000 WL 1289318, at *2 (Tex.App.-Houston [14th Dist.]              strictly and contrary to binding precedent of the Texas
Sept. 14, 2000, pet. denied) (not designated for publication).     Supreme Court. In concluding that Canton–Carter has
Because appellant's amended brief completely fails to comply       failed to assign any error, the majority improperly restricts
with the requirements of Texas Rule of Appellate Procedure         consideration of the issues that Canton–Carter has presented
38, she has waived her issues on appeal. Valadez, 238 S.W.3d       to the issues stated in the “Issues Presented for Review”
at 845.                                                            section of her brief. See TEX.R.APP. P. 38.1(e) 1 (“The brief
                                                                   must state concisely all issues or points presented for review.
2      Appellant did include citation to documents in an           The statement of an issue or point will be treated as covering
       appendix attached to her amended brief. The vast            every subsidiary question that is fairly included.”); Perry
       majority of these documents are not part of the appellate   v. Cohen, 272 S.W.3d 585, 587–88, 2008 WL 4891677, at
       record. We may not consider documents attached to           *2–3 (Tex., 2008) (holding that court of appeals erred by
       an appellate brief that are not part of the appellate       concluding appellant failed to assign error and by failing
       record. Ramex Construction Co. v. Tamcon Services,          to liberally construe the issues presented and the subsidiary
       Inc., 29 S.W.3d 135, 138 (Tex.App.-Houston [14th Dist.]     questions fairly included therein in light of the assertions by
       2000, no pet.). With regard to those few documents          appellant in the argument section of the brief). The majority
       in appellant's appendix that are found in the appellate     does not discuss the issues that are fairly included in the
       record, appellant offers no argument as to how these
                                                                   issues presented by Canton–Carter. The majority does not
       documents establish the trial court erred when it granted
                                                                   mention that Canton–Carter asserts that this *933 court
       appellee's motion for summary judgment.
                                                                   should reverse the trial court's summary judgment. Nor does
 [11] To the extent appellant's issues on appeal can be            the majority address Canton–Carter's arguments regarding the
construed as challenging the trial court's order granting          essential elements of her medical malpractice case. Appellate
appellee's hybrid motion for summary judgment, the result          briefs are to be construed reasonably, yet liberally, so that
is the same. Appellant's timely filed summary judgment             the right to appellate review is not lost by waiver. See Perry,
evidence is insufficient to raise a genuine issue of material      at 587, 2008 WL 4891677, at *2. Appellate courts should
fact as to whether appellee's alleged negligence caused            reach the merits of an appeal whenever reasonably possible
appellant's alleged injuries. Because, under rule 166a(i), a       and should construe issues presented liberally to obtain a just,
trial court must grant a no-evidence motion for summary            fair, and equitable adjudication of the rights of the litigants.
judgment unless the respondent produces summary judgment           See id. at 587–88, at *2–3. Under this legal standard, Canton–
evidence sufficient to raise a genuine issue of material fact,     Carter has assigned error as to whether the trial court erred in
which appellant failed to do, the trial court properly granted     granting Baylor College of Medicine's motion for summary
appellee's motion. Tex.R. Civ. P. 166a(i).                         judgment.

                                                                   1      Effective September 1, 2008, the relevant rule is Rule
                       CONCLUSION                                         38.1(f), although the language is the same as former Rule
                                                                          38.1(e).
We affirm the trial court's summary judgment.
                                                                   In the alternative, the majority disposes of this entire appeal
                                                                   and affirms the trial court's judgment based on briefing waiver
                                                                   under Rule 38.1(h). 2 However, under binding precedent, this
KEM THOMPSON FROST, Justice, concurring.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    4
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (2008)



court cannot resolve all of the issues in an appeal based on
                                                                      2       Effective September 1, 2008, the relevant rule is Rule
briefing waiver. See TEX.R.APP. P. 44.3 (“A court of appeals
must not affirm or reverse a judgment or dismiss an appeal                    38.1(i), although the language is the same as former Rule
for formal defects or irregularities in appellate procedure                   38.1(h).
without allowing a reasonable time to correct or amend the            Nonetheless, the timely filed summary-judgment evidence
defects or irregularities.”); Inpetco, Inc. v. Texas American         does not raise a genuine issue of material fact as to
Bank/Houston, N.A., 729 S.W.2d 300, 300 (Tex.1987) (per               whether the alleged negligence of Baylor College of Medicine
curiam) (stating that, under predecessor to Rule 44.3, a court        proximately caused Canton–Carter's injury. For this reason,
of appeals cannot overrule all issues and affirm trial court's        the trial court's judgment should be affirmed.
judgment based only on briefing waiver); Elder v. Bro, 809
S.W.2d 799, 802 (Tex.App.-Houston [14th Dist.] 1991, writ             Accordingly, though I do not join in the majority's opinion, I
denied) (holding that appellate courts may overrule some              respectfully concur in the judgment.
of appellant's issues based on briefing waiver, but must not
overrule all of them based on briefing waiver). Therefore, this
court should not use briefing waiver to dispose of the entire         All Citations
appeal.
                                                                      271 S.W.3d 928

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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        5
Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (1995)




                                                                         3 Cases that cite this headnote
                       912 S.W.2d 302
                   Court of Appeals of Texas,
                     Houston (14th Dist.).                         [3]   Appeal and Error
                                                                            Necessity of Objections in General
         Cynthia CASTEEL–DIEBOLT, Appellant,                             Fundamental error exists only under rare
                          v.                                             circumstances in which record shows on its
               Daniel DIEBOLT, Appellee.                                 face that either trial court lacked jurisdiction
                                                                         or that public interest is directly and adversely
               No. 14–94–00229–CV. | Oct. 12,                            affected as that interest is declared in statutes and
       1995.    | Rehearing Overruled Dec. 14, 1995.                     Constitution of state.

In connection with custody dispute, the 247th District Court,            2 Cases that cite this headnote
Harris County, Dean C. Huckabee, J., granted former husband
sole managing conservatorship of minor children, and wife
appealed. The Court of Appeals, Murphy, C.J., held that:           [4]   Child Custody
(1) former wife waived challenge to sufficiency of jury                      Record
charge; (2) there was no fundamental error absent showing                Absent anything in record to show that trial court
that trial court lacked jurisdiction or that child custody state         lacked jurisdiction over action granting father
modifications were adversely affecting public interest; (3)              sole managing conservatorship of minor children
former wife failed to preserve challenges to legal and factual           or that trial custody modifications were against
sufficiency of evidence; and (4) sanctions were warranted                public interest, there was no fundamental error.
against former wife for bringing appeal for purpose of delay
                                                                         1 Cases that cite this headnote
without sufficient cause.

Affirmed.                                                          [5]   Appeal and Error
                                                                            Insufficient Discussion of Objections
                                                                         Point of error not supported by authority is
 West Headnotes (16)                                                     waived on appeal.

                                                                         10 Cases that cite this headnote
 [1]      Appeal and Error
             Necessity of Objection in General                     [6]   Appeal and Error
          Appeal and Error                                                  Points and Arguments
             Necessity of Ruling on Objection or Motion                  Court has no duty on appeal to search record
          To preserve error in jury charge, party                        without guidance from appellant to determine
          complaining on appeal must have made trial                     whether assertion of reversible error is valid.
          court aware of complaint and must have obtained
          ruling. Rules App.Proc., Rule 52(a).                           11 Cases that cite this headnote

          5 Cases that cite this headnote
                                                                   [7]   Appeal and Error
                                                                            References to Record
 [2]      Appeal and Error                                               Appeal and Error
             Assent to Proceeding                                           Points and Arguments
          If party agrees to submitted jury charge, party is             Burden is on appellant to show that record
          estopped from taking different position on appeal              supports contention and to make accurate
          by complaining that charge was defective. Rules                references to record to support complaints on
          App.Proc., Rule 52(a).                                         appeal.



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (1995)


                                                                     appointed to represent minor children in custody
        11 Cases that cite this headnote                             dispute, there was nothing to show intent by trial
                                                                     court to award former husband costs or attorney
 [8]    Appeal and Error                                             fees and no reason to sever and remand issue of
           References to Record                                      attorney fees and costs from other custody issues
                                                                     on appeal.
        Failure to cite relevant portions of trial court
        record waives appellate review.                              Cases that cite this headnote
        4 Cases that cite this headnote
                                                              [13]   Costs
                                                                         Nature and Form of Judgment, Action, or
 [9]    Evidence
                                                                     Proceedings for Review
            Judicial Admissions in General
                                                                     Although sanctions may be granted against
        Where former wife had judicially admitted
                                                                     parent in custody dispute by reviewing court,
        to material and substantial change in
                                                                     rule will be applied with prudence, caution,
        circumstances of children and that prior
                                                                     and after careful deliberation and only showing
        custody order had become unworkable under
                                                                     that appeal was brought for delay and without
        existing circumstances, she was precluded from
                                                                     sufficient cause. Rules App.Proc., Rule 84.
        challenging sufficiency of evidence to support
        change of conservatorship.                                   16 Cases that cite this headnote
        4 Cases that cite this headnote
                                                              [14]   Costs
                                                                         Nature and Form of Judgment, Action, or
 [10]   Child Custody
                                                                     Proceedings for Review
            Discretion
                                                                     For purposes of determining whether sanctions
        Because provisions of family code with respect
                                                                     for bringing appeal for delay and without
        to attorney fees and costs are intended to supplant
                                                                     sufficient cause or warranty, focus of test is on
        rules of civil procedure, ability to recover
                                                                     whether appellant had reasonable expectation of
        attorney fees and costs in custody matters is
                                                                     reversal or whether he merely pursued appeal in
        limited to reasonable attorney fees, as well
                                                                     bad faith; court would impose damages only if
        as other costs, in suit affecting parent-child
                                                                     likelihood of favorable result is so improbable
        relationship, but decision to award fees and costs
                                                                     as to make appeal taken for delay and without
        is within discretion of trial court.
                                                                     sufficient cause. Rules App.Proc., Rule 84.
        1 Cases that cite this headnote
                                                                     7 Cases that cite this headnote

 [11]   Child Custody
                                                              [15]   Costs
            Discretion
                                                                         Nature and Form of Judgment, Action, or
        Absent showing of abuse of discretion, trial
                                                                     Proceedings for Review
        court's decision on attorney fees will not be
                                                                     Where former wife's appeal from custody dispute
        reversed on appeal in child custody matter.
                                                                     failed to preserve properly for review complaint
        Cases that cite this headnote                                as to charge, jury charge was submitted by
                                                                     agreement of parties, and wife was aware
                                                                     that challenge as to sufficiency of charge was
 [12]   Child Custody
                                                                     groundless, sanctions for bringing appeal for
            Determination and Disposition of Cause
                                                                     purpose of delay and without sufficient cause
        Where trial court awarded attorney fees and                  were warranted. Rules App.Proc., Rules 50(d),
        costs only to attorney/guardian ad litem who was             52(a), 74(f), 84.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (1995)


                                                                   [1]    [2] We do not reach the merits of the sufficiency
        1 Cases that cite this headnote                           of the jury charge, however, because appellant waived her
                                                                  complaint by failing to object at trial. TEX.R.APP.P. 52(a).
 [16]   Appeal and Error                                          To preserve error in a jury charge, the party complaining on
           Questions Involving Issues of Fact                     appeal must have made the trial court aware of the complaint
                                                                  and must have obtained a ruling. State Dep't of Highways v.
        Whether fraud has been committed is fact
                                                                  Payne, 838 S.W.2d 235, 241 (Tex.1992). Because appellant
        question to be determined by trier of facts and
                                                                  failed to comply with this rule, she has waived any error.
        not by reviewing court.
                                                                  Moreover, appellant agreed to the submitted jury charge.
        1 Cases that cite this headnote                           Appellant is now estopped from taking a different position
                                                                  on appeal by complaining the charge was defective. See,
                                                                  e.g., Litton Indus. Products Inc. v. Gammage, 668 S.W.2d
                                                                  319, 322 (Tex.1984); Marino v. Hartsfield, 877 S.W.2d 508,
Attorneys and Law Firms                                           513 (Tex.App.—Beaumont 1994, writ denied); Furnace v.
                                                                  Furnace, 783 S.W.2d 682, 684 (Tex.App.—Houston [14th
*304 John D. Payne, Houston, for appellant.                       Dist.] 1989, dis'm w.o.j.); Mullins v. Coussons, 745 S.W.2d
                                                                  50, 51 (Tex.App.—Houston [14th Dist.] 1987, no writ).
Jolene Wilson-Glah, Houston, for appellee.
                                                                   [3]      [4]     Appellant further contends the error was
Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.
                                                                  fundamental. Fundamental error exists only under rare
                                                                  circumstances in which the record shows on its face that either
                                                                  the trial court lacked jurisdiction or that the public interest
                         OPINION                                  is directly and adversely affected as that interest is declared
                                                                  in the statutes and constitution of this state. Cox v. Johnson,
MURPHY, Chief Justice.
                                                                  638 S.W.2d 867, 868 (Tex.1982). Fundamental error is not
The appellant, Cynthia Casteel–Diebolt, appeals from an           present in this case. The record is devoid of any evidence
order granting the appellee, Daniel Diebolt, sole managing        that the trial court lacked jurisdiction or that the child custody
conservatorship of their two minor children. Appellant brings     modifications were a public interest. Accordingly, appellant's
eleven points of error and appellee brings six cross points. We   first point of error is overruled.
affirm.
                                                                   [5]    [6]    [7]     [8] In points of error two through five,
In January 1991, the trial court signed an agreed order,          appellant contends: (1) inadmissible hearsay testimony was
providing that both appellant and appellee serve as joint         admitted; (2) an audio tape was admitted without the proper
managing conservators of their two children. Following            predicate; (3) leading questions were improperly allowed;
several months of disharmony, including allegations made          and (4) deposition testimony was improperly used. Appellant,
by appellant of sexual abuse committed by appellee and            however, fails to support any of these points of error with
contempt proceedings brought by appellee against appellant        legal authority, or with any accurate reference to the portions
for violating an agreed order, both parties sought modification   of the record upon which she relies. A point of error not
of the joint managing conservatorship. See TEX.FAM.CODE           supported by *305 authority is waived. Trenholm v. Ratcliff,
ANN. § 14.081(d). A jury appointed appellee the sole              646 S.W.2d 927, 934 (Tex.1983); Budd v. Gay, 846 S.W.2d
managing conservator of the children.                             521, 524 (Tex.App.—Houston [14th Dist.] 1993, no writ);
                                                                  Elder v. Bro, 809 S.W.2d 799, 801 (Tex.App.—Houston
In her first point of error, appellant contends the jury was      [14th Dist.] 1991, writ denied); see also TEX.R.APP.P. 74(f).
not correctly charged. She argues the trial court should          This Court has no duty to search a voluminous record without
have included the enumerated factors in section 14.081(d) of      guidance from appellant to determine whether an assertion
the family code that are used to determine whether a joint        of reversible error is valid. Stevens v. Stevens, 809 S.W.2d
managing conservatorship should be replaced with a sole           512, 513 (Tex.App.—Houston [14th Dist.] 1991, no writ);
managing conservatorship.                                         Most Worshipful Prince Hall v. Jackson, 732 S.W.2d 407,
                                                                  412 (Tex.App.—Dallas 1987, writ ref'd n.r.e.). Instead, the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (1995)


burden is on appellant to demonstrate the record supports her       these issues were not ruled on by the trial court. Appellee
contentions and to make accurate references to the record           relies exclusively on A.V.I., Inc. v. Heathington, 842 S.W.2d
to support her complaints on appeal. Elder, 809 S.W.2d              712, 718 (Tex.App.—Amarillo 1992, writ denied), in which
at 801. The failure to cite to relevant portions of the trial       the court severed and remanded the attorney fees issue. Id.
court record waives appellate review. Tacon Mechanical              In that case, the trial court disregarded the jury's findings
Contractors v. Grant Sheet, 889 S.W.2d 666, 671 (Tex.App.           as to attorney fees, but failed to enter on the judgment the
—Houston [14th Dist.] 1994, writ denied). Accordingly,              amount of attorney fees to be awarded. Id. The Amarillo court
appellant's points of error two through five are overruled.         reasoned that because the trial court intended to award some
                                                                    amount of attorney fees, severance and remand of the attorney
 [9]    In points of error six through eleven, appellant            fees issue was appropriate. Id.
challenges the legal and factual sufficiency of the evidence.
As with points two through five, however, appellant failed          In the present case, despite appellee's specific request for
to preserve error because her brief lacked authority and            attorney fees and costs in his “Second Amended Cross Motion
accurate references to the record. In addition, appellant           to Modify In Suit Affecting the Parent–Child Relationship,”
judicially admitted to material and substantial changes in the      the trial court awarded attorney fees and costs only to the
circumstances of her children and that the prior custody order      attorney/guardian ad litem who was appointed by the trial
had become unworkable under the existing circumstances.             court to represent the minor children. Moreover, unlike
Consequently, she is precluded from challenging the                 Heathington, the record is devoid of any evidence of intent
sufficiency of the evidence to support the change of                by the trial court to award the appellee costs or attorney
conservatorship. Thompson v. Thompson, 827 S.W.2d                   fees. Therefore, *306 because we find the trial court neither
563, 566 (Tex.App.—Corpus Christi 1992, writ denied).               intended to award the appellee attorney fees and costs, nor
Appellant's points of error six through eleven are overruled.       abused its discretion by failing to do so, appellee's fifth cross-
                                                                    point is overruled.
 [10]     [11] Appellee has asserted six cross-points for
our consideration. In cross-points one and three, appellee          In appellee's second cross-point, he asserts the trial court
contends that because he substantially prevailed in his cross-      erred in overruling his motion to quash appellant's motion for
motion to modify child custody, the trial court abused its          new trial. Appellee contends the trial court lacked plenary
discretion by failing to award him costs and attorney fees.         power when it denied appellant's motion for new trial, and
Provisions of the family code with respect to attorney fees and     thus, points of error two through eleven were not properly
costs are intended to supplant rules of civil procedure. Gross      preserved for our review. Appellant's motion for new trial,
v. Gross, 808 S.W.2d 215, 221–222 (Tex.App.—Houston                 however, was required to preserve only those points of error
[14th Dist.] 1991, no writ). Thus, appellee's ability to recover    challenging legal and factual sufficiency. See TEX.R.CIV.P.
attorney fees and costs is limited to section 11.18 of the family   324(b). Because we have already determined that these points
code, which provides for reasonable attorney fees, as well          of error were waived by the appellant and not subject to our
as other costs, in suits affecting the parent-child relationship.   review, we find it unnecessary to reach the merits of this issue.
In Interest of Pecht, 874 S.W.2d 797, 803 (Tex.App.—                Appellee's second cross-point is overruled.
Texarkana 1994, no writ); In Interest of R.M.H., 843 S.W.2d
740, 742 (Tex.App.—Corpus Christi 1992, no writ). The                [13]     [14] By his fourth cross-point, appellee requests
decision to award attorney's fees and costs, however, is within     sanctions against appellant. TEX.R.APP.P. 84. Although
the discretion of the trial court. Pecht, 874 S.W.2d at 803;        granting sanctions under this rule is within an appellate court's
R.M.H., 843 S.W.2d at 742. Absent a showing of an abuse             discretion, Maronge v. Cityfed Mortgage Co., 803 S.W.2d
of discretion, we will not reverse the trial court's decision on    393, 396 (Tex.App.—Houston [14th Dist.] 1991, no writ),
attorney fees. Cohen v. Sims, 830 S.W.2d 285, 290 (Tex.App.         this rule should only be applied with prudence, caution, and
—Houston [14th Dist.] 1992, writ denied). Upon thorough             after careful deliberation. Exxon Corp. v. Shuttlesworth, 800
review of the record, we find no abuse of discretion by the         S.W.2d 902, 908 (Tex.App.—Houston [14th Dist.] 1990, no
trial court; therefore, cross-points one and three are overruled.   writ). Rule 84 requires this court to ask first whether the
                                                                    appeal was brought “for delay and without sufficient cause.”
 [12] In his fifth cross-point, appellee urges this Court to        TEX.R.APP.P. 84. The focus of this test is whether appellant
sever and remand the issues of attorney fees and costs because      had a reasonable expectation of reversal or whether he merely



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (1995)


                                                                   sufficient cause. We, therefore, exercise our discretion to
pursued the appeal in bad faith. Francis v. Marshall, 841
                                                                   assess damages in the sum of two times the total taxable costs
S.W.2d 51, 54–55 (Tex.App.—Houston [14th Dist.] 1992,
                                                                   to be paid to appellee, Daniel Diebolt. See TEX.R.APP.P.
no writ). The “[c]ourt should impose damages only if the
                                                                   84. Because frivolous litigation should not go unsanctioned,
likelihood of a favorable result was so improbable as to
                                                                   appellee's fourth cross-point is sustained.
make this an appeal taken for delay and without sufficient
cause.” Francis, 841 S.W.2d at 55 (citing Ambrose v. Mack,
                                                                    [16] In his sixth cross-point, appellee asks this court to
800 S.W.2d 380, 383 (Tex.App.—Corpus Christi 1990, writ
                                                                   sanction appellant's attorney for committing fraud during
denied)).
                                                                   this appeal. However, whether a fraud has been committed
                                                                   is a fact question to be determined by the trier of facts.
 [15] Upon review of the record and in light of appellant's
                                                                   Berquist v. Onisiforou, 731 S.W.2d 577 (Tex.App.—Houston
failure to comply with rules of appellate procedure 50(d),
                                                                   [14th Dist.] 1987, no writ). Moreover, findings of fact are
52(a) and 74(f), we find that sanctions are warranted. First,
                                                                   the exclusive province of the jury and trial court. Bellefonte
Appellant readily admits in her brief that: (1) her complaint
                                                                   Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744
as to the charge was not properly preserved for appeal; and
                                                                   (Tex.1986). Therefore, because this court has no authority to
(2) the jury charge was submitted by agreement of the parties.
                                                                   decide whether fraud was committed by appellant, appellee's
Appellant was aware her challenge as to the sufficiency of the
                                                                   sixth cross-point is overruled.
charge was groundless. Appellant, nonetheless, asserts this
complaint in her first point of error, arguing that fundamental
                                                                   The judgment of the court below is affirmed and we assess
error by the trial court precluded waiver of her complaint, yet,
                                                                   sanctions against appellant in the amount of two times the
appellant failed to cite to authority to show fundamental error
                                                                   total taxable costs.
existed. See TEX.R.APP.P. 74(f). Second, as to appellant's
points two through eleven, she failed to cite to any authority
or make any accurate references to the record to support her
                                                                   All Citations
arguments. Under these circumstances, we are compelled to
hold that appellant has taken this appeal for delay and without    912 S.W.2d 302

End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (2004)
47 Tex. Sup. Ct. J. 1170

                                                                                 Appellant's citations to the “entire record” did
                                                                                 not waive argument that no evidence supported
     KeyCite Yellow Flag - Negative Treatment                                    trial court's decision.
Declined to Extend by    Gammon v. Hodes,     Tex.App.-Austin,   April
24, 2015                                                                         2 Cases that cite this headnote
                       145 S.W.3d 165
                   Supreme Court of Texas.                                [3]    Appeal and Error
                                                                                    Extent of Review
            CITY OF ARLINGTON, Petitioner,
                                                                                 When a complete absence of evidence is alleged,
                        v.
                                                                                 the reviewing court must include the entire
           STATE FARM LLOYDS, Respondent.
                                                                                 record within its scope of review.
              No. 03–0466.         |    Sept. 3, 2004.                           1 Cases that cite this headnote
Synopsis
Background: Homeowner's insurer brought subrogation                       [4]    Eminent Domain
action against city to recover payment for sewer backup. The                        Drains and sewers
67th District Court, Tarrant County, entered judgment for                        Sewer backup into house was not a taking of
insurer and denied motions for judgment notwithstanding the                      homeowners' property by city; nothing indicated
verdict (JNOV). City appealed, and insurer cross-appealed.                       that the damage was substantially certain to
The Fort Worth Court of Appeals, Jeff Walker, J., affirmed.                      result. Vernon's Ann.Texas Const. Art. 1, § 17.
Review was granted.
                                                                                 5 Cases that cite this headnote


Holdings: The Supreme Court held that:                                    [5]    Municipal Corporations
                                                                                    Discharge of Sewage
[1] the sewer backup was not a taking, and                                       City was immune from liability on nuisance
                                                                                 theory for homeowners' damage resulting from
[2] city was immune from liability on nuisance theory.                           backup of sewer system; there was no clear
                                                                                 waiver of governmental immunity.

Reversed and rendered.                                                           7 Cases that cite this headnote



 West Headnotes (5)
                                                                         Attorneys and Law Firms

 [1]     Appeal and Error                                                *166 Frank Waite, Elizabeth Lutton, Asst. City Attys., Alan
            Insufficient discussion of objections                        Dean Lathrom, Arlington, for Petitioner.
         Appellant's failure to repeat record references in
                                                                         Michael W. Minton, Law Office of Michael W. Minton,
         argument and authorities sections of appellate
                                                                         PLLC, Dallas, for Respondent.
         brief did not result in waiver; the brief included
         record references with page numbers in the                      Opinion
         statement of facts.
                                                                         PER CURIAM.
         5 Cases that cite this headnote
                                                                         State Farm Lloyds (State Farm) brought a subrogation suit
                                                                         against the City of Arlington to recover monies it paid to an
 [2]     Appeal and Error
                                                                         insured homeowner whose home was damaged by a sewage
            Insufficient discussion of objections
                                                                         backup. The trial court awarded damages to State Farm, and


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (2004)
47 Tex. Sup. Ct. J. 1170

the court of appeals affirmed. Initially, we must determine
whether the City adequately preserved its argument that              Without considering the merits of the City's arguments,
there was no evidence to support essential elements of State         the court of appeals held that the City waived its issues
Farm's nuisance and takings claims. Because we conclude              by inadequate briefing because it failed to include specific
that the City adequately supported its arguments in the court        citations to the record. 141 S.W.3d 216.
of appeals with record references and citation of authority,
we hold that it preserved the argument. Based on this Court's         [1] We disagree that the City waived its issues. Contrary to
decision in City of Dallas v. Jennings, 142 S.W.3d 310               the court of appeals' statements, the City did include record
(Tex.2004), we further conclude that the City of Arlington           references with page numbers in its brief's Statement of Facts
is not liable, as a matter of law, for the damages alleged           section to support each fact it asserted. Although it did not
in the underlying case. We therefore reverse the court of            repeat the references under its Argument and Authorities
appeals' judgment and render judgment in favor of the City           section, we have held that “failure to restate the facts and
of Arlington.                                                        record references under each point of error” will not waive
                                                                     the issues when the brief “contains all points of error relied
Raw sewage backed up into the home of Michael and Sonia              upon, argument and authorities under each point of error, and
Bates on two occasions in 1997 and 1998, causing significant         all facts relied upon for the appeal with references to the
damage to their home. The Bateses' homeowners' insurer,              pages in the record where those facts can be found.” Weaver
State Farm, paid them $12,723.61 for the first occurrence and        v. Southwest Nat'l Bank, 813 S.W.2d 481, 482 (Tex.1991).
$85,582.96 for the second. State Farm brought a subrogation          Because the City's brief met the requirements laid out in
suit against the City of Arlington to recover the monies             Weaver, we conclude that the City did not waive its issues
paid, alleging that the City's operation of the sewer lines          by failing to restate the record references in its Argument and
constituted a nuisance and an unconstitutional taking under          Authorities section.
Article 1, Section 17 of the Texas Constitution. State Farm
did not allege that the City operated the sewer improperly;           [2] Nor do we agree that the City's citations to the “entire
instead, it argued that “backups of raw, noxious sewage into         record” waived its no-evidence issues. For example, to
private residences” are “inherent in the nature” of sewer            support its assertion that “[t]here is no allegation or evidence
systems. State Farm argued that the City should be liable for        that the [Bateses'] home was singled out or chosen by the
the damage caused by the sewer system because “the City              City to facilitate an intentional sewage discharge,” the City
intentionally acted to maintain the system for the benefit [o]f      cited the “entire record.” The court of appeals concluded
its citizenry, knowing all the time that backups such as the one     that the City had waived its no-evidence points because
involved here are inherent” in the operation of sewer systems.       it “failed to establish, with proper record references, what
                                                                     the evidence adduced at trial was and how that evidence
 *167 At trial, a jury found that the sewer system “create[d] a      supports its contentions on appeal” and concluded that
nuisance” that proximately caused damages to the house, and          “[m]erely asserting that no evidence supports the complained-
that the second sewage flood (but not the first) constituted “a      of judgment will not suffice.... This court is not required
taking of property by the City of Arlington.” The jury found         to search a voluminous record, with no guidance from the
that $42,916 would reasonably compensate the Bateses for             City, to determine whether the record supports the City's
the damage to their home from the second backup, and the             contentions on appeal.” 141 S.W.3d 216, 218. We disagree.
trial court rendered judgment for that amount.
                                                                      [3] If the City's no-evidence argument had been based on
The City of Arlington appealed, arguing (1) that the City            the strength of the evidence—for example, if the City argued
was immune from nuisance liability unless the nuisance               that the evidence was “so weak as to do no more than create a
amounted to a taking under Article I, Section 17 of the Texas        mere surmise or suspicion”—then the City could, and should,
Constitution; (2) that State Farm had put forward no evidence        detail the relevant parts of the record. See Robert W. Calvert,
that the City acted with the requisite intent to support a takings   “No Evidence” and “Insufficient Evidence” Points of Error,
claim under Article I, Section 17; (3) that State Farm had put       38 Tex. L.Rev. 361, 363 (1960). In this case, however, the
forward no evidence that “the property [was] taken for, or           City was not arguing about the strength of the evidence, but
applied to, a public use”; and (4) that the trial court erred by     was instead arguing that there was a complete absence of
submitting questions of law to the jury.                             evidence on critical elements of State Farm's claims. When



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (2004)
47 Tex. Sup. Ct. J. 1170

                                                                        to support a takings claim, and that the mere intentional
a complete absence of evidence is alleged, the reviewing
                                                                        operation of a sewer system is insufficient to support liability.
court must include the entire *168 record within its scope of
                                                                        Specifically, we held that takings liability may arise when the
review. See, e.g., Ford Motor Co. v. Miles, 967 S.W.2d 377,
                                                                        governmental entity “(1) knows that a specific act is causing
380 (Tex.1998) (noting that a no-evidence point will fail if
                                                                        identifiable harm; or (2) knows that the specific property
there is “any probative evidence in the entire record.”).
                                                                        damage is substantially certain to result from an authorized
                                                                        government action.” Jennings, 142 S.W.3d at 314.
Furthermore, neither the facts nor the evidence were truly
disputed in this case; instead, the parties essentially disagreed
                                                                        In this case, there was no evidence the City possessed such
on the legal standards that should be applied to takings and
                                                                        knowledge; in fact, State Farm's own witnesses agreed that,
governmental nuisance claims generally. For example, the
                                                                        at most, after “an occurrence at a certain place” there “may
parties in this case did not dispute whether there was evidence
                                                                        be a way to collect enough information to maybe predict that
that the City intended to damage the Bateses' home; in fact,
                                                                        it's going to happen,” but State Farm never alleged that such a
State Farm's attorney admitted during his closing argument
                                                                        prediction was possible in this case. Based on this record, we
that the City did not intend to damage the home. Instead,
                                                                        hold that the City did not engage in an unconstitutional taking.
the parties disputed the appropriate legal standard by which
to measure the intent required to support takings claims,
                                                                         [5] Our decision in Jennings similarly forecloses State
with State Farm arguing that liability could be predicated
                                                                        Farm's nuisance claim. In Jennings, we noted that “[a] city
on the fact that the City “intentionally operated the sewer
                                                                        is immune from liability for its governmental actions unless
system,” and the City arguing that a heightened standard of
                                                                        that immunity is waived,” and that “[o]peration of a sewer
intent should apply. Similarly, the parties did not truly dispute
                                                                        system is a governmental function.” Id. (citing Tex. Civ. Prac.
whether there was any evidence that the City's immunity had
                                                                        & Rem.Code § 101.0215(a)(32)). We therefore concluded
been waived; instead, they disputed whether, as a matter of
                                                                        that “the City will not be liable for damage resulting from
law, the City could be held liable for a nuisance even in the
                                                                        its operation of the sewer system without a clear waiver of
absence of any waiver of immunity. Consequently, the crux
                                                                        governmental immunity.” Id. We apply the same standard
of the dispute was whether State Farm's claims were barred as
                                                                        here, and note that State Farm has not pointed to any
a matter of law, and whether the trial court should therefore
                                                                        applicable waiver of immunity. We therefore hold that the
have granted summary judgment in the City's favor. Both
                                                                        City of Arlington retained immunity from the nuisance claim.
parties amply supported their legal arguments with citation
to relevant authority. We conclude that these issues were not
                                                                        For the foregoing reasons, we hold that the court of appeals
waived.
                                                                        erred in affirming the trial court's judgment. Pursuant to
                                                                         *169 Rule 59.1 of the Texas Rules of Appellate Procedure,
 [4] Because we determine that the issues were not waived,
                                                                        we grant the City's Petition for Review, and, without oral
we turn to the merits of the City's appeal. Our recent
                                                                        argument, render judgment that State Farm take nothing.
opinion in City of Dallas v. Jennings, 142 S.W.3d 310
(Tex.2004), similarly dealt with a takings claim and a
nuisance claim arising from a sewage backup and laid out
                                                                        All Citations
the applicable legal standards for those claims. In that case,
we held that a heightened intent standard is indeed necessary           145 S.W.3d 165, 47 Tex. Sup. Ct. J. 1170

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
City Of San Antonio v. Longoria, Not Reported in S.W.3d (2004)


                                                                 June 21, 2002, Randy Corbin, Payroll Supervisor in the
                                                                 Finance Department for the appellant, City of San Antonio,
                 2004 WL 2098074
                                                                 notified Eleanor Bustamante, the fire department's Payroll
    Only the Westlaw citation is currently available.
                                                                 Administrator, that Longoria had been overpaid. On June
          SEE TX R RAP RULE 47.2 FOR                             22, 2002, Bustamante confirmed Corbin's finding. On June
    DESIGNATION AND SIGNING OF OPINIONS.                         24, 2002, Bustamante informed District Chief Noel Hardin,
                                                                 of the fire department, about the overpayment. On July 25,
             MEMORANDUM OPINION                                  2002, Longoria was asked to return the money, which he
              Court of Appeals of Texas,                         ultimately did. On January 10, 2003, Fire Chief Robert Ojeda
                    San Antonio.                                 indefinitely suspended Longoria.

          CITY OF SAN ANTONIO, Appellant
                                                                 Longoria appealed the suspension to an independent hearing
                        v.                                       examiner, and the dispute was heard on July 30, 2003. At the
            Gilbert LONGORIA, Appellee.                          close of the City's case, Longoria moved to dismiss the Notice
                                                                 of Indefinite Suspension on the grounds that it violated the
       No. 04-04-00063-CV.         |   Sept. 22, 2004.
                                                                 180-day statute of limitations contained in section 143.052(h)
From the 45th Judicial District Court, Bexar County, Texas,      of the Texas Local Government Code and in article 33 of
Trial Court No. 2003-CI-16266; Honorable John D. Gabriel,        the “Collective Bargaining Agreement between the City of
Jr., Judge Presiding.                                            San Antonio and Local 624 International Association of Fire
                                                                 Fighters” (“the CBA”). The hearing examiner granted the
Attorneys and Law Firms                                          motion to dismiss, ordered Longoria's reinstatement, and
                                                                 awarded him back pay.
Elsa Giron Nava, Asst. City Atty., San Antonio, for appellant.
                                                                 The City appealed the hearing examiner's decision to district
Heidi L. Widell, David Van Os & Associates, P.C., San
                                                                 court. The City alleged the hearing examiner's award was
Antonio, for appellee.
                                                                 not supported by substantial evidence and was capricious,
Sitting: PAUL W. GREEN, Justice, KAREN ANGELINI,                 and that the hearing examiner exceeded his authority and/or
Justice, SANDEE BRYAN MARION, Justice.                           jurisdiction. Longoria filed a motion for summary judgment
                                                                 in which he asserted the City could not establish that the
                                                                 hearing examiner exceeded his authority or jurisdiction when
                                                                 he issued the award. Longoria also asserted substantial
               MEMORANDUM OPINION
                                                                 evidence supported the hearing examiner's conclusion that the
Opinion by SANDEE BRYAN MARION, Justice.                         Notice of Indefinite Suspension was untimely. The trial court
                                                                 granted Longoria's motion, and awarded him attorney's fees
 *1 This is an appeal from a judgment in which the trial court   in the amount of $11,760.00.
affirmed a hearing examiner's decision dismissing appellee's
indefinite suspension and awarded appellee attorney's fees.
We affirm.
                                                                            HEARING EXAMINER'S AWARD

                                                                 In its first issue, the City asserts the trial court erred in
                     BACKGROUND                                  granting Longoria's motion for summary judgment because
                                                                 the hearing examiner's ruling was outside his authority and
Appellee, Gilbert Longoria, is a fire fighter with the           jurisdiction, was capricious, and/or was not supported by
San Antonio Fire Department. On December 21, 2001,
                                                                 substantial evidence. 1
Longoria received a bi-weekly paycheck in the net amount
of $7,184.64. This amount represented approximately six
                                                                 1      The City has not argued that the hearing examiner's
times his average bi-weekly net pay of $1,196.89. Longoria
                                                                        award was procured by fraud, collusion, or other
deposited $6,000 of the check into his savings account,
                                                                        unlawful means.
and deposited the balance into his checking account. On



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
City Of San Antonio v. Longoria, Not Reported in S.W.3d (2004)


                                                                                a paycheck. Despite knowing that the
Standard of Review                                                              money belonged to the City of San
The Texas Legislature has set forth a statutory framework                       Antonio, and did not belong to him,
governing the rights and responsibilities of municipal officers                 [Longoria] neither advised the city he
seeking to challenge disciplinary suspensions. Under this                       had been mistakenly given the money
scheme, an officer may appeal his suspension either to the                      nor returned the money to the city until
civil service commission or to an independent third-party                       he was approached by representatives
hearing examiner. TEX. LOCAL GOV'T CODE ANN. §                                  of the San Antonio Fire Department.
143.057(a) (Vernon 1999). Longoria exercised his right to
have his appeal heard by an independent hearing examiner.           Because the underlying facts are not in dispute, Longoria's
A hearing examiner has the same duties and powers as                burden, as summary judgment movant, was to establish as a
the commission. Id. § 143.057(f). However, unlike the               matter of law that no genuine issue of material fact existed
commission's decision, the decision of the hearing examiner         regarding the absence of the hearing examiner's jurisdiction
is final and binding on all parties. Id. § 143.057(c). A district   to render an award. See Nuchia, 973 S.W.2d at 786; City
court may hear an appeal of a hearing examiner's award              of Carrollton v. Popescu, 806 S.W.2d 268, 271 (Tex.App.-
only on the grounds that: (1) the hearing examiner was              Dallas 1991, no writ).
without jurisdiction; (2) the hearing examiner exceeded his
jurisdiction; or (3) the order was procured by fraud, collusion,    In its response to Longoria's motion for summary judgment,
or other unlawful means. Id. § 143.057(j).                          the City asserted the hearing examiner's analysis was flawed
                                                                    because he determined it was required to take disciplinary
 *2 The standard set forth in section 143.057(j) has been           action within 180 days of “learning” of the infraction. On
interpreted as an “abuse of authority” standard. See Nuchia         appeal, the City expands this argument by contending that
v. Tippy, 973 S.W.2d 782, 786 (Tex.App.-Tyler 1998, no              it relied on the following “first part” of Local Government
pet.); see also Lindsey v. Fireman's & Policeman's Civil            Code section 143.052(h) in its notice of indefinite suspension:
Serv. Comm'n of the City of Houston, 980 S.W.2d 233,                “In the original written statement and charges and in any
236 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). An           hearing conducted under this chapter, the department head
abuse of authority occurs when a decision is so arbitrary           may not complain of an act that occurred earlier than the
and unreasonable that it amounts to a clear and prejudicial         180th day preceding the date the department head suspends
error of law. City of Carrollton Civil Serv. Comm'n v. Peters,      the fire fighter or police officer.” See TEX. LOC. GOV'T
843 S.W.2d 186, 188 (Tex.App.-Dallas 1992, writ denied).            CODE ANN. § 143.052(h). According to the City, the hearing
Governmental review of a hearing examiner's actions is a            examiner ignored the City's notice of indefinite suspension
means to prevent the examiner from exercising his power             and focused on the incorrect date, June 24, 2002, which is
unchecked. City of Garland v. Byrd, 97 S.W.3d 601, 607              the date the City confirmed the discovery of the overpayment
(Tex.App.-Dallas 2002, pet. denied). The abuse of authority         to Longoria. The City contends the correct date is July 24,
review fulfills this purpose. Id .                                  2002 because on that date Longoria had neither returned nor
                                                                    reported the overpayment. The City argues the examiner's
                                                                    decision “was not in accordance with” section 143.052(h)
Hearing Examiner's Jurisdiction and Authority                       because the examiner erroneously relied on “another part”
In its Notice of Indefinite Suspension Without Pay, the             of section 143.052(h), which reads as follows: “If the act is
City alleged Longoria violated certain specific civil service       allegedly related to criminal activity including the violation
commission rules and certain specific fire department rules         of a federal, state, or local law for which the fire fighter or
and regulations. The City alleged that the following acts           police officer is subject to a criminal penalty, the department
violated these rules and regulations:                               head may not complain of an act that is discovered earlier
                                                                    than the 180th day preceding the date the department head
             On or about July 24, 2002, [Longoria]
                                                                    suspends the fire fighter or police officer. The department
             had in his possession money totaling
                                                                    head must allege that the act complained of is related to
             approximately $8408.02 that belonged
                                                                    criminal activity.” Id. (emphasis added).
             to the City of San Antonio and that
             had been, and which [Longoria] knew
                                                                     *3 The hearing examiner's award contradicts the City's
             had been, mistakenly given to him in
                                                                    argument. In his discussion and analysis, the examiner cited


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
City Of San Antonio v. Longoria, Not Reported in S.W.3d (2004)


twice to and considered controlling the very language upon         examiner's ruling, and not to whether he lacked jurisdiction
which the City relies, that “the department head may not           to rule or abused his authority such that he exceeded his
complain of an act that occurred earlier than the 180th day        jurisdiction in applying section 143.052(h) to the case before
preceding the date the department head suspends the fire           him. See Lindsey, 980 S.W.2d at 237.
fighter or police officer.” Therefore, the City's argument that
the hearing examiner relied on the incorrect “part” of section     Because no genuine issue of material fact remained that
143.052(h) is without merit.                                       the hearing examiner lacked jurisdiction or exceeded his
                                                                   jurisdiction to render an award, the trial court properly
The City next argued the hearing examiner exceeded his             granted Longoria's motion for summary judgment.
authority and/or jurisdiction “in deciding that the SAFD had
not taken disciplinary action in a timely fashion when, in
fact, it had.” 2 The City's more specific contention is that the                       ATTORNEY'S FEES
hearing examiner incorrectly phrased the issue as whether
it could have alleged that an infraction occurred on June          In its second issue, the City asserts the trial court erred in
24, 2002. Instead, the City asserts the true issue is whether      granting Longoria attorney's fees because the award was not
an infraction did, in fact, occur on July 24, 2002. The City       supported by credible evidence.
contends the infraction occurred on July 24, 2002 because
Longoria still had the over-payment in his possession, and had     In support of his request for attorney's fees, Longoria
not returned or reported it. According to the City, Longoria       submitted a compilation of fees and costs, attached to which
was “obligated to act, each and every day, by the ordinary         were the affidavits of the two attorneys who represented
rules of good behavior observed by law abiding citizens and        Longoria at the request of the International Association of
to return the money pursuant to the SAFD Rules.” The City          Fire Fighters Local 624 (“the Union”). The compilation states
asserts it may consider acts outside the six-month period to       that under the CBA, “[a] reasonable attorney's fee ... for
explain the infraction, and it maintains that it referred to       the employee, shall not exceed that actual rate agreed and
the June 24th over-payment only as a means of explaining           charged, not to exceed $100.00 per hour.”
Longoria's wrongful possession of money belonging to the
City.                                                               *4 On appeal, the City contends that the affiants did not state
                                                                   they are licensed attorneys in good standing in the State of
2      The City also asserts the hearing examiner's application
                                                                   Texas; no evidence was presented regarding their reputation,
       of the law is not supported by substantial evidence.        experience, or abilities; a foundation for the affiants to testify
       The “substantial evidence” standard is applicable to a      on the reasonableness of their fees was not established; and
       review of a decision by the commission. See TEX.            there is no evidence the fees are reasonable in Bexar County,
       LOC. GOV'T CODE ANN. § 143.015(b) (appeal is                Texas or that two attorneys were necessary at an arbitration.
       by trial de novo); Firemen's & Policemen's Civil Serv.      None of these complaints were raised before the trial court.
       Comm'n v. Brinkmeyer, 662 S.W.2d 953, 955 (Tex.1984)        In fact, the City lodged no objection to Longoria's request for
       (interpreting “trial de novo” to mean review under          attorney's fees in the amount of $11,760.
       the “substantial evidence rule”). This standard is not
       applicable to a review of a decision by a hearing           To preserve a complaint for appellate review, a party must
       examiner. See TEX. LOC. GOV'T CODE ANN. §
                                                                   present to the trial court a timely request, motion, or objection
       143.057(j); Nuchia v. Tippy, 973 S.W.2d 782, 786
                                                                   with sufficient specificity as to make the trial court aware of
       (Tex.App.-Tyler 1998, no pet.) (noting that standard
                                                                   the complaint, unless the specific grounds are apparent from
       applied to decision by hearing examiner differs from
       standard applied to decisions by commission).               the context. See TEX.R.APP. P. 33.1(a); see also City of Port
                                                                   Isabel v. Shiba, 976 S.W.2d 856, 860-61 (Tex.App.-Corpus
Acts or events outside the six-month period may be used to
                                                                   Christi 1998, pet. denied) (trial error regarding attorney's fees
explain or evaluate “the propriety and gravity” of acts within
                                                                   is not fundamental error and must be preserved by timely
the six-month period. Plaster v. City of Houston, 721 S.W.2d
                                                                   objection). Therefore, the City has waived this complaint on
421, 423 (Tex.App.-Houston [1st Dist.] 1986, no writ)
                                                                   appeal.
(involving appeal from commission decision). However,
the City's argument goes to the correctness of the hearing



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
City Of San Antonio v. Longoria, Not Reported in S.W.3d (2004)



                     CONCLUSION

We overrule the City's issues on appeal and affirm the trial       All Citations
court's judgment.                                                  Not Reported in S.W.3d, 2004 WL 2098074

End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)




                     190 S.W.3d 177                               West Headnotes (19)
                Court of Appeals of Texas,
                  Houston (1st Dist.).
                                                                  [1]   Appeal and Error
          Guy J. DANIEL, Individually and d/                               Same Effect as Verdict
           b/a Guy J. Daniel Construction Co.                           Appeal and Error
         and Lesha Daniel, Individually and d/                             Sufficiency of Evidence in Support
          b/a Ja–Le & Associates, Appellants,                           In an appeal of a judgment rendered after a bench
                           v.                                           trial, the trial court's findings of fact have the
             FALCON INTEREST REALTY                                     same weight as a jury's verdict, and the appellate
               CORPORATION, Appellee.                                   court reviews the legal and factual sufficiency
                                                                        of the evidence used to support them, just as it
       No. 01–03–00130–CV.           |   Dec. 29, 2005.                 would review a jury's findings.

Synopsis                                                                22 Cases that cite this headnote
Background: General contractor brought claims for breach
of fiduciary duty, conspiracy, fraud, and tortious interference
                                                                  [2]   Appeal and Error
with contractual and business relationships against its project
                                                                           Conclusiveness in General
manager/on-site superintendent for construction project,
the wife of the project manager/superintendent, and the                 When challenged, a trial court's findings of
mother-in-law and father-in-law of the project manager/                 fact are not conclusive, if there is a complete
superintendent, alleging that project manager/superintendent            reporter's record.
had not disclosed that a subcontractor hired and paid by
                                                                        6 Cases that cite this headnote
him was owned by his father-in-law and mother-in-law, and
that defendants personally profited from the subcontractor's
operations. General contractor reached pretrial settlement        [3]   Appeal and Error
with mother-in-law and father-in-law. After a bench trial, the             Findings of Court or Referee
151st District Court, Harris County, Caroline E. Baker, J.,             When a party without the burden of proof at trial
awarded general contractor $191,000 for breach of fiduciary             challenges the legal sufficiency of the evidence,
duty, less a $70,000 settlement credit. Defendants appealed.            the appellate court considers all of the evidence
                                                                        in the light most favorable to the prevailing
                                                                        party, indulging every reasonable inference in
Holdings: The Court of Appeals, Terry Jennings, J., held that:          that party's favor, and if there is any evidence
                                                                        of probative force to support the finding, i.e.,
[1] project manager/on-site superintendent breached a                   more than a mere scintilla, the appellate court
fiduciary duty, even if general contractor was satisfied with           will overrule the issue.
subcontractor's work, and
                                                                        3 Cases that cite this headnote

[2] disgorgement of profits earned by defendants was an
appropriate remedy.                                               [4]   Fraud
                                                                            Fiduciary or Confidential Relations
                                                                        The term “fiduciary” generally applies to any
Affirmed.
                                                                        person who occupies a position of peculiar
                                                                        confidence towards another, refers to integrity
                                                                        and fidelity, and contemplates fair dealing and
                                                                        good faith.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


                                                                            Fiduciary or Confidential Relations
        3 Cases that cite this headnote
                                                                       Even if general contractor was satisfied with
                                                                       quality of work performed by subcontractor,
 [5]    Principal and Agent                                            general contractor's project manager/on-site
            Nature of Agent's Obligation                               superintendent for construction project breached
        The agreement to act on behalf of the principal                his fiduciary duties to general contractor
        causes the agent to be a “fiduciary,” that is, a               as his employer, where project manager/
        person having a duty, created by his undertaking,              superintendent used his position to hire and
        to act primarily for the benefit of another in                 pay subcontractor, without disclosing to general
        matters connected with his undertaking.                        contractor that project manager/superintendent
                                                                       and his wife were heavily involved in
        1 Cases that cite this headnote                                creating and operating the subcontractor, that
                                                                       subcontractor was owned by the mother-in-
                                                                       law and father-in-law of project manager/
 [6]    Principal and Agent
            Nature of Agent's Obligation                               superintendent, and that project manager/
                                                                       superintendent and his wife were reaping
        Principal and Agent
                                                                       substantial profit from subcontractor's work for
            Keeping and Rendering Accounts
                                                                       general contractor.
        Principal and Agent
            Individual Interest of Agent                               2 Cases that cite this headnote
        Principal and Agent
            Duty of Agent to Account for Profits of             [9]    Labor and Employment
        Agency                                                             Fiduciary Duty
        Principal and Agent                                            Courts must be careful in defining the scope of
            Acting for Parties Adversely Interested                    the fiduciary obligations an employee owes an
        Among the agent's fiduciary duties to the                      employer when acting as the employer's agent in
        principal is the duty to account for profits arising           the pursuit of business opportunities.
        out of the employment, the duty not to act
        as, or on account of, an adverse party without                 1 Cases that cite this headnote
        the principal's consent, the duty not to compete
        with the principal on his own account or for            [10]   Fraud
        another in matters relating to the subject matter                  Elements of Compensation
        of the agency, and the duty to deal fairly with                Disgorgement of profits that project manager/
        the principal in all transactions between them.                on-site superintendent employed by general
        Restatement (Second) of Agency § 13 comment.                   contractor for construction project, and that
                                                                       wife of project manager/superintendent, earned
        2 Cases that cite this headnote
                                                                       because of the breach by project manager/
                                                                       superintendent of fiduciary duties he owed
 [7]    Labor and Employment                                           to general contractor as his employer,
            Fiduciary Duty                                             was appropriate remedy for the breach of
        When an employee has a fiduciary relationship                  fiduciary duties, relating to project manager/
        with the employer, the employee has a duty to                  superintendent using his position to hire and
        deal openly and to fully disclose to his employer              pay subcontractor, without disclosing to general
        information that affects his employer's business.              contractor that project manager/superintendent
                                                                       and his wife were heavily involved in
        2 Cases that cite this headnote                                creating and operating the subcontractor, that
                                                                       subcontractor was owned by the mother-in-
 [8]    Fraud                                                          law and father-in-law of project manager/



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


        superintendent, and that project manager/
        superintendent and his wife were reaping                       3 Cases that cite this headnote
        substantial profits from subcontractor's work for
        general contractor.                                     [14]   Appeal and Error
                                                                           Matters or Evidence Considered in
        3 Cases that cite this headnote
                                                                       Determining Question
                                                                       Loss of entire clerk's record from trial court
 [11]   Fraud                                                          did not unduly burden employee as appellant,
            Fiduciary or Confidential Relations                        in employer's action for breach of fiduciary
        Fraud                                                          duty; even if docket sheets could have been
            Measure in General                                         located, and even assuming that the docket sheets
        A fiduciary must account for, and yield to the                 had contained notations concerning calculation
        beneficiary, any profit he makes as a result of his            of damages, appellate court would not have
        breach of fiduciary duty.                                      accepted any such notations as findings of fact
                                                                       and conclusions of law, nor would it have
        2 Cases that cite this headnote                                considered any such information in its appellate
                                                                       review.
 [12]   Appeal and Error                                               3 Cases that cite this headnote
            Particular Orders or Rulings Reviewable in
        General
                                                                [15]   Appeal and Error
        Employee's appellate claim that trial court
                                                                           Matters or Evidence Considered in
        erred in denying employee's summary judgment
                                                                       Determining Question
        motion which alleged that employee did not
        breach a fiduciary duty to employer presented                  An appellate court may not consider docket
        nothing for appellate court to review; trial court,            entries made in the trial court, since they are
        after denying the motion, found for employer                   made only for the court clerk's convenience and
        at bench trial, the general rule was that when                 are usually unreliable.
        a party moved unsuccessfully for summary
                                                                       4 Cases that cite this headnote
        judgment and subsequently lost in conventional
        trial on merits then denial of summary judgment
        generally was not subject to review on appeal,          [16]   Estoppel
        and employee did not present an explanation to                     Necessity
        appellate court, nor did the record support an                 Equitable estoppel is an affirmative defense that
        argument, as to why appellate court should not                 must be pleaded. Vernon's Ann.Texas Rules
        apply the general rule.                                        Civ.Proc., Rule 94.

        3 Cases that cite this headnote                                4 Cases that cite this headnote


 [13]   Appeal and Error                                        [17]   Appeal and Error
            Particular Orders or Rulings Reviewable in                      Ratification, Estoppel, Waiver, and Res
        General                                                        Judicata
        When a party moves unsuccessfully for                          Employee did not preserve appellate review of an
        summary judgment and subsequently loses in a                   equitable estoppel defense, in employer's action
        conventional trial on the merits, the denial of                for breach of fiduciary duty, where employee did
        that motion generally is not subject to review on              not plead equitable estoppel as an affirmative
        appeal.                                                        defense in the trial court. Vernon's Ann.Texas
                                                                       Rules Civ.Proc., Rule 94.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)




        3 Cases that cite this headnote                         TERRY JENNINGS, Justice.

                                                                Appellants, Guy J. Daniel, individually and doing business
 [18]   Appeal and Error                                        as Guy J. Daniel Construction Company, and Lesha Daniel,
           Form and Requisites in General                       individually and doing business as Ja–Le & Associates
        Appeal and Error                                        (collectively, “the Daniels”), challenge the trial court's
           Points and Arguments                                 judgment, entered after a bench trial, in appellee, Falcon
        The rule stating an appellate brief must contain        Interest Realty Corporation's (“Falcon”), breach of fiduciary
        a clear and concise argument for the contentions        duty suit against the Daniels. The trial court awarded Falcon
        made, with appropriate citations to authorities         $191,000, less a $70,000 settlement credit. In four issues, the
        and to the record, requires a party to provide          Daniels contend that (1) the trial court erred in finding that
        the appellate court with such discussion of the         they breached their fiduciary duty; (2) the trial court erred in
        facts and the authorities relied upon as may be         denying their summary judgment motion; (3) the loss of the
        requisite to maintain the point at issue. Rules         entire clerk's record unduly burdened them because “the trial
        App.Proc., Rule 38.1(h).                                court's docket sheet notes are crucial to appellate review”;
                                                                and (4) Falcon is equitably estopped from recovering from the
        18 Cases that cite this headnote                        Daniels because Falcon profited from the acts of the Daniels.


 [19]   Appeal and Error                                        We affirm.
           Form and Requisites in General
        Appeal and Error
           Points and Arguments                                            Factual and Procedural Background
        A party does not comply with the rule stating
                                                                Jack Moss, Falcon's chief financial officer, testified that
        an appellate brief must contain a clear and
                                                                Falcon hired Guy to serve as the project manager and
        concise argument for the contentions made,
                                                                on-site superintendent of a construction project referred to
        with appropriate citations to authorities and to
                                                                by the parties as the “State of Texas Job.” Falcon paid
        the record, merely by uttering brief conclusory
                                                                Guy a salary for serving as project manager and on-site
        statements, unsupported by legal citations. Rules
                                                                superintendent. As project manager, Guy was responsible for
        App.Proc., Rule 38.1(h).
                                                                locating subcontractors, soliciting bids, setting the scope of
        14 Cases that cite this headnote                        work for each subcontractor, reviewing the bids, and letting
                                                                the contracts. As superintendent, Guy was responsible for
                                                                overseeing people working on the project. 1 *181 Guy
                                                                would normally select the subcontractor for each portion of
Attorneys and Law Firms                                         the project and notify Falcon's president of construction. Guy
                                                                would also receive invoices, approve them, and forward them
 *180 Guy J. Daniel, Lesha A. Daniel, Katy, appellants pro      to the accounting department.
se.
                                                                1      Moss testified that, after its experience with Guy and the
Shelley Bush Marmon, Crady, Jewett & McCulley, L.L.P.,
                                                                       project, Falcon no longer employs the same person as the
Houston, for appellee.
                                                                       project manager and the on-site superintendent in order
                                                                       to avoid the situation where the person who is letting the
Panel consists of Justices NUCHIA, JENNINGS, and
                                                                       contracts is also approving the payment of the invoices.
HIGLEY.
                                                                Near the completion of the project, and after Guy was
                                                                “pulled off” the project, Falcon found approximately one
                        OPINION                                 million dollars worth of invoices in a drawer that had not
                                                                been reported to Falcon. Falcon ended up losing over one
                                                                million dollars on the project. After completion of the project,



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


Falcon learned that B & L Associates (“B & L”), one of
the subcontractors that performed work on the project, was       Lesha Daniel testified that, after marrying Guy, she created
run by Guy's mother-in-law and father-in-law. Guy had not        the assumed name of Ja–Le & Associates for the purpose
disclosed this information to Falcon. Falcon subsequently        of providing the Daniels “with additional income on some
learned, after reviewing bank records, that Guy and his wife     side jobs.” She stated that Ja–Le had an agreement with B &
Lesha personally profited from the operation of B & L. Falcon    L to provide labor and handle costs associated *182 with
had paid B & L approximately $373,000 for its work on the        the project. After forming Ja–Le, she opened a bank account
project, but, after learning of the relationship between Guy     for Ja–Le, and stated that B & L had transferred money into
and B & L, did not pay B & L for the final $16,000 billed        the Ja–Le bank account. Funds in the Ja–Le bank account
by B & L.                                                        were used to pay employees and subcontractors who worked
                                                                 on the project, but Lesha and Guy also made withdrawals
On cross-examination, Moss admitted that, at least in one        from the account, and Lesha and Guy used funds in the
other instance, a family member of a Falcon employee had         account for personal use. Falcon presented evidence that B &
worked as a subcontractor for Falcon, but Moss also noted        L had transferred approximately $277,000 to the Ja–Le bank
that Falcon was aware of the relationship and that the Falcon    account.
employee did not receive any compensation as a result of this
relationship.                                                    Guy presented evidence that, in obtaining bids for each
                                                                 portion of the project, he received bids from three different
Sharon Henry, a certified public account and an expert           contractors, and that B & L's bids were less than some of
witness for Falcon, testified that she reviewed the records      the other bids submitted. Guy testified that Falcon paid B &
of bank accounts held in the names of B & L Associates           L $372,945 for work on the project. Guy admitted making
and Ja–Le & Associates and that these accounts had received      a profit off of Falcon through B & L of approximately
$372,945 from Falcon for the project. She also calculated        $200,000, excluding a loan he made to a colleague, which
disbursements from these accounts for, among other things,       he did not believe constituted a part of B & L's profits. Guy
subcontractor expenses, wages, overhead, and insurance, and      agreed that he helped oversee the B & L employees on the
she determined that there had been a profit earned on the        project. In closing, Guy contended that if he and Lesha were
project “in the range of $200,000.”                              held liable by the trial court, “under existing case law,” they
                                                                 benefitted $70,000, and that they would be entitled to offsets
Beverly Laine, Guy's mother-in-law, testified that Guy           against this amount.
approached her and her husband and asked them if they
“would be interested in doing something on the side” so that     Falcon brought suit against the Daniels and Guy's mother-in-
they “could make some money” and he “could save Falcon           law and father-in-law, doing business as B & L, for breach
money.” In response, she and her husband formed B & L for        of fiduciary duty, conspiracy, fraud, and tortious interference
the purpose of bidding on work on the project. Laine stated      with contractual and business relationships. Falcon settled
that she handled all the books and records for B & L, that       with Guy's mother-in-law and father-in-law, doing business
she opened a bank account for B & L, and that she and her        as B & L, and proceeded to trial on its breach of fiduciary
husband were the only signatories on the B & L bank account.     duty claim against the Daniels. After a bench trial, the trial
She further stated that while B & L may have paid some of        court entered judgment, awarding Falcon $191,000, less a
the labor costs associated with work performed by B & L on       settlement credit of $70,000. The trial court also entered the
the project, she wired money, per Guy's instructions, to Guy's   following pertinent findings of fact:
business account, held in the name of Ja–Le & Associates, and
Guy made arrangements to pay employees and subcontractors          2. [Guy] worked as a project site superintendent on a
for work on the project. After B & L completed its work on the        project for which [Falcon] was the general contractor.
project, Laine prepared and submitted the invoices to Falcon.         [Guy] also served as project manager for the same
On cross-examination, Laine stated that B & L completed               project.... The [project] became known as the State of
all of its work on the project and that no one from Falcon            Texas Job....
complained about the quality of B & L's work. She further
                                                                   3. As part of [Guy]'s job function he received and
stated that B & L submitted bids on certain jobs that were not
                                                                     reviewed proposals and bids from subcontractors. He
accepted by Falcon.
                                                                     was instrumental in determining which subcontractors


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


      would be selected for work on the [project]. In some
      cases, he awarded subcontracts to subcontractors.         27. [B & L] submitted invoices to [Falcon] in the amount
                                                                  of $389,447.
  ....
                                                                28. [Falcon] paid [B & L] $372,945.00.
  6. [Guy] and [Lesha] were instrumental in the creation,
     operation and work of [B & L], including the preparation   29. [B & L] deposited all of the monies received from
     of all bids and proposals for work ... on the [project].     [Falcon] into the B & L Bank Account.
     However, the names associated with [B & L] in public
                                                                30. Subcontractors and invoices for materials used on the
     records were that of [Guy's in-laws].
                                                                  [project] were paid from both the B & L Bank Account
  7. [Guy] did not inform the principals of [Falcon] about        and the Ja–Le Bank Account.
     his connection with [B & L] and his involvement in
                                                                31. [B & L] transferred by wire transfer the sum of
     the preparation and proposals for subcontracts on the
                                                                  $277,000 for the B & L Bank Account to the Ja–Le Bank
     [project] at the time they were submitted.
                                                                  Account at the instruction of either [Lesha] or [Guy].
  ....
                                                                32. The actual cost of materials and labor incurred by [B &
  10. [B & L] opened a bank account ... (the “B & L Bank          L] and/or [Ja–Le] for the subcontracting work performed
    Account”).                                                    on or materials purchased and delivered to the [project]
                                                                  was approximately $191,000.
  ....
                                                                33. The difference between the amount paid to [B & L] and/
  12. [Lesha] created the entity known as [Ja–Le]....             or [Ja–Le] and the amount actually incurred by [B & L]
                                                                  and/or [Ja–Le] in materials and labor was approximately
  13. [Ja–Le] opened a bank account ... (the “Ja–Le Bank          $181,000.
    Account”).
                                                                34. But for approximately $11,000 paid to the principals
  14. [Ja–Le] worked with [B & L] in performing the work          of [B & L], the balance of the profit received on the
    on the subcontract for the [project]. [Ja–Le] paid the        [project] by [Ja–Le] was used by [Guy] and/or [Lesha]
    employees who performed the labor on the subcontract          for their personal use.
    with Falcon....
                                                                35. [Lesha] withdrew $68,880 in cash from the Ja–Le Bank
  ....                                                            Account.

   *183 21. [Guy] supervised the employees of [B & L] on        36. [Guy] withdrew $10,350 in cash from the Ja–Le Bank
    the [project] site.                                           Account.

  22. [Guy] ordered materials on behalf of [B & L] which        37. [Lesha] and/or [Guy] spent approximately $55,000 in
    were delivered to the [project].                              money from the Ja–Le Bank Account for items such
                                                                  as furniture, cars, tires, computers, scuba equipment,
  23. [Guy] accepted delivery of materials ordered by [B &
                                                                  groceries and credit card statements.
    L] on the [project].
                                                                38. A relationship of trust and confidence existed between
  24. At all times [Guy] was performing services for [B &
                                                                  [Guy] and [Falcon].
    L], he was an employee of [Falcon].
                                                                39. [Lesha] knew of the relationship of trust and confidence
  25. [Guy] did not inform [Falcon] of his work for [B
                                                                  between [Guy] and [Falcon].
    & L] on the [project] at the time the work was being
    performed.                                                  40. The transactions between [B & L] and Falcon were not
                                                                  fair or equitable to [Falcon].
  ....




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       6
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)




  41. [Guy] used his position of confidence with [Falcon] to        9. [Guy] and [Lesha] are entitled to a credit for settlement
    his personal advantage.                                            by the other ... joint tortfeasors.

  42. [Guy] did not act in good faith and did not exhibit
    honesty in his transactions with [Falcon] in connection
    with the subcontract awarded to [B & L].                                          Standard of Review

  43. [Guy] placed himself in a position where his self-           [1] [2] [3] In an appeal of a judgment rendered after a
    interest conflicted with his obligations as a fiduciary to    bench trial, the trial court's findings of fact have the same
    [Falcon].                                                     weight as a jury's verdict, and we review the legal and factual
                                                                  sufficiency of the evidence used to support them, just as
  44. [Guy] used his position to gain a personal benefit at the   we would review a jury's findings. Catalina v. Blasdel, 881
    expense of Falcon.                                            S.W.2d 295, 297 (Tex.1994); In re K.R.P., 80 S.W.3d 669,
                                                                  673 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When
  45. [Guy] did not fully and fairly disclose all important       challenged, a trial court's findings of fact are not conclusive
    information regarding [B & L] to [Falcon] in connection       if, as in the present case, there is a complete reporter's record.
    with the [project].                                           In re K.R.P., 80 S.W.3d at 673; Amador v. Berrospe, 961
                                                                  S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ
   *184 46. [Guy] made material omissions of fact and
                                                                  denied). When a party without the burden of proof at trial
    information in the course of his employment with
                                                                  challenges the legal sufficiency of the evidence, we consider
    [Falcon], which omissions cause[d] Falcon economic
                                                                  all of the evidence in the light most favorable to the prevailing
    damage and resulted in the unjust enrichment of [Guy].
                                                                  party, indulging every reasonable inference in that party's
  47. [Lesha] conspired with [Guy] in omitting information        favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964
    which was material to [Falcon] and which resulted in          S.W.2d 276, 285–86 (Tex.1998). If there is any evidence of
    economic damage to [Falcon] and the unjust enrichment         probative force to support the finding, i.e., more than a mere
    of [Lesha] and [Guy].                                         scintilla, we will overrule the issue. Formosa Plastics Corp.
                                                                  USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41,
The trial court also entered the following conclusions of law:    48 (Tex.1998). In our review of the factual sufficiency of the
                                                                  evidence, we must consider and weigh all of the evidence,
  1. [Guy] owed a fiduciary duty to [Falcon].                     and we will set aside a verdict only if the finding is so against
                                                                  the great weight and preponderance of the evidence, that it is
  2. [Guy] breached his fiduciary duty to [Falcon].               clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772
                                                                  (Tex.1996). We review a trial court's conclusions of law de
  3. [Guy's] breach of fiduciary duty was material.
                                                                  novo. In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston
  4. [Guy's] profit as a result of his breach of fiduciary duty   [1st Dist.] 2003, no pet.). We independently evaluate a trial
     was approximately $191,000.                                  court's conclusions to determine their correctness, and we will
                                                                  uphold conclusions on appeal if the judgment can be sustained
  5. [Lesha] conspired with [Guy] to breach his fiduciary         on any legal theory supported by the evidence. Id.
     duty to [Falcon].

  6. [Lesha] knowingly participated in the breach of fiduciary
     duty committed by [Guy].                                                      Breach of Fiduciary Duty

  7. [Guy] and [Lesha] are jointly liable to [Falcon] for the     In their first issue, the Daniels argue that the trial court
     damages suffered as a result of the breach of fiduciary      erred in finding that *185 they breached their fiduciary duty
     duty.                                                        and that disgorgement of profits was improper because “no
                                                                  position adverse to the employer existed in the transactions.”
  8. [Guy] and [Lesha] must disgorge the profit they received     Specifically, the Daniels note that Guy obtained three bids
     as a result of their breach of fiduciary duty owed to        from three contractors on each portion of the project, that the
     [Falcon]....                                                 bids submitted by B & L were less than some of the other



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


bids, that the quality of the work was acceptable to Falcon,   principal the duty not to compete with the principal on his
and that Falcon saved money because of the Daniels' actions.   own account in matters relating to the subject matter of the
                                                               agency, as well as the duty to deal fairly with the principal
The Daniels do not clearly identify any specific findings      in all transactions between them. Id. at 510. Additionally, a
of fact or conclusions of law that they contend were made      fiduciary has a duty to deal openly and to fully disclose to
in error. However, the Daniels' challenges concern the trial   his employer information that affects his employer's business.
court's (1) findings of fact regarding Guy's breach of his     Id.; see also Kinzbach Tool Co., 160 S.W.2d at 513 (“It is the
fiduciary duty to Falcon, and (2) conclusion of law that the   duty of a fiduciary to deal openly, and to make full disclosure
Daniels must disgorge the profits they received as a result of to the party with whom he stands in such relationship.”).
Guy's breach of his fiduciary duty to Falcon.                  Furthermore, an agent who uses his position to gain a business
                                                               opportunity belonging to the employer commits an actionable
 [4]    [5]    [6] The term “fiduciary” generally applies “to wrong. Abetter Trucking Co., 113 S.W.3d at 510 (citing Bray
any person who occupies a position of peculiar confidence      v. Squires, 702 S.W.2d 266, 270 (Tex.App.-Houston [1st
towards another,” refers to “integrity and fidelity,” and      Dist.] 1985, no writ)).
contemplates “fair dealing and good faith.” Kinzbach Tool
Co. v. Corbett–Wallace Corp., 138 Tex. 565, 571, 160            [8] [9] Falcon presented evidence that Guy, who was hired
S.W.2d 509, 512 (1942). In addressing the scope of a           to serve as a project manager and on-site superintendent for
fiduciary duty in the context of an agency relationship, the   the project and who was responsible for soliciting bids, setting
Texas Supreme Court has observed                               the scope of work for each subcontractor, reviewing the bids,
                                                               letting the contracts, and overseeing people *186 working
             The agreement to act on behalf of                 on the project, occupied a position of peculiar confidence
             the principal causes the agent to be
                                                               towards Falcon and owed Falcon a fiduciary duty. 2 Falcon
             a fiduciary, that is, a person having
                                                               also presented evidence that, after Falcon hired Guy, Guy
             a duty, created by his undertaking,
                                                               solicited his mother-in-law and father-in-law to form B & L
             to act primarily for the benefit of
                                                               to bid on and perform work for the project in order to “make
             another in matters connected with
                                                               money on the side,” that Guy and Lesha were involved in the
             his undertaking. Among the agent's
                                                               operation of B & L, that Guy approved bids and paid invoices
             fiduciary duties to the principal is the
                                                               submitted by B & L and supervised B & L employees at the
             duty to account for profits arising out
                                                               project, and that Guy never disclosed his relationship with B
             of the employment, the duty not to act
                                                               & L to Falcon.
             as, or on account of, an adverse party
             without the principal's consent, the
                                                               2        We recognize that the Texas Supreme Court has
             duty not to compete with the principal
             on his own account or for another in                       cautioned courts to “be careful in defining the scope
                                                                        of the fiduciary obligations an employee owes when
             matters relating to the subject matter of
                                                                        acting as the employer's agent in the pursuit of
             the agency, and the duty to deal fairly
                                                                        business opportunities.” Johnson v. Brewer & Pritchard,
             with the principal in all transactions
                                                                        P.C., 73 S.W.3d 193, 201 (Tex.2002) (indicating that
             between them.                                              fiduciary relationship does not arise “merely [from
                                                                       an] employment relationship”). However, in this case,
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193,
                                                                       we conclude that the evidence establishes that, in his
200 (Tex.2002) (quoting RESTATEMENT (SECOND) OF
                                                                       capacity as project manager and superintendent, Guy
AGENCY § 13, cmt. a (1958)).                                           possessed a fiduciary relationship with Falcon.

 [7] Citing Johnson, our Court has held that “[w]hen a          After the project was completed, Falcon discovered that Guy
fiduciary relationship of agency exists between employee        received funds from B & L, and Falcon presented evidence
and employer, the employee has a duty to act primarily          that Guy and Lesha personally profited from the work B &
for the benefit of the employer in matters connected with       L performed on the project in the amount of approximately
his agency.” Abetter Trucking Co. v. Arizpe, 113 S.W.3d         $200,000. Moreover, Guy admitted to making a profit off
503, 510 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We       of Falcon through B & L, and further admitted that the
also noted that an agent who serves as a fiduciary owes his     profit would amount to approximately $200,000, excluding



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


consideration of a loan that Guy contended should not be           368 S.W.2d 567, 576–77 (Tex.1963). In Kinzbach Tool
treated as a part of B & L's profits.                              Co., the Texas Supreme Court addressed, and disposed of,
                                                                   arguments similar to those presented by the Daniels. In that
Guy's argument that his efforts were for the benefit of Falcon     case, a competitor of Kinzbach Tool Company (“Kinzbach”)
is misplaced. The record reveals that Guy formed B & L for         contacted a “trusted employee” of Kinzbach and offered the
the express purpose of personally profiting from the project,      employee a secret commission if he would negotiate the
over and above the salary he was being paid by Falcon to           sale of the competitor's product to Kinzbach for a minimum
serve as the project manager and superintendent. While Guy         price. 160 S.W.2d at 510–11. The competitor instructed the
contends that he did this for the benefit of Falcon, he never      employee not to reveal to Kinzbach the minimum price that
disclosed his relationship with B & L. Additionally, Guy's         the competitor was willing to accept. Id. During negotiations,
argument that the quality of the work performed by B & L was       the employee never revealed to Kinzbach, his employer, the
acceptable to Falcon is irrelevant. As a fiduciary, Guy had the    minimum price the competitor was willing to accept, nor did
duty to act primarily for the benefit of Falcon, not himself, in   he reveal his commission arrangement with the competitor.
matters connected with the project, and he also had the duty       Id. After the deal was consummated, Kinzbach learned of the
to deal fairly and openly with Falcon and to fully disclose to     commission, fired the employee, and brought suit against the
Falcon information affecting Falcon's business. Regardless of      employee and the competitor. Id. In finding for Kinzbach, the
whether Falcon was satisfied with the quality of B & L's work,     court stated
information that Guy would be required to disclose to Falcon
would necessarily include that he and his wife were heavily                    It is beside the point ... to say
involved in the creation and operation of B & L, including the                 that Kinzbach suffered no damages
preparation of bids and proposals for work to be performed                     because it received full value for
on the project, and, more significantly, that he and his wife                  what it has paid and agreed to pay.
were reaping a substantial profit from such work.                              A fiduciary cannot say to the one
                                                                               to whom he bears such relationship:
 [10] In regard to the trial court's conclusion of law that the                You have sustained no loss by my
Daniels must disgorge the profit they received as a result of                  misconduct in receiving a commission
Guy's breach of fiduciary duty owed to Falcon, the Daniels                     from a party opposite to you, and
assert that Falcon did not complain about the quality of work                  therefore you are without remedy. It
performed by B & L and B & L was less costly than other                        would be a dangerous precedent for
bidders. The Daniels further assert that, in the trial court,                  us to say that unless some affirmative
Falcon “did not complain ... that the defendants benefitted,                   loss can be shown, the person who
only the amount of the benefit” and that Falcon conceded,                      has violated his fiduciary relationship
in closing argument, it would have “gladly paid them and                       with another may hold on to any secret
                                                                               gain or benefit he may have thereby
paid a reasonable profit.” 3 Finally, the Daniels argue that
                                                                               acquired. It is the law that in such
Falcon does not have standing to sue for disgorgement
                                                                               instances if the fiduciary takes any
 *187 because Falcon benefitted from the Daniels' actions by
                                                                               gift, gratuity, or benefit in violation
passing “the costs along to the ultimate user after marking the
                                                                               of his duty, or acquires any interest
charges up by eight percent.”
                                                                               adverse to his principal, without a full
                                                                               disclosure, it is a betrayal of his trust
3      At trial, Falcon contended that a profit in the range of                and a breach of confidence, and he
       15%–20% would have been reasonable, and that a profit                   must account to his principal for all he
       of approximately 100% was unreasonable and out of
                                                                               has received.
       line with industry standards. However, Guy testified that
       he had previously made 100% profit on other projects,       Id. at 514; see also Siegrist v. O'Donnell, 182 S.W.2d 403,
       and thus, contended that this amount of profit was not      405 (Tex.Civ.App.-San Antonio 1944, writ ref'd) (holding
       unreasonable.
                                                                   that agent who agreed to accept $2,000 profit from person
 [11] A fiduciary must account for, and yield to the               with whom he was dealing on behalf of his “unsuspecting
beneficiary, any profit he makes as a result of his breach         principal” must disgorge that profit).
of fiduciary duty. Int'l Bankers Life Ins. Co. v. Holloway,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           9
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


We hold that the evidence was legally and factually sufficient    (Tex.App.-Houston [14th Dist.] 2001, pet. denied); see also
to support the trial court's finding that Guy owed a fiduciary    Miller v. Kendall, 804 S.W.2d 933, 944 (Tex.App.-Houston
duty to Falcon and that Guy breached that duty. Accordingly,      [1st Dist.] 1990, no writ). Accordingly, even if the docket
we further hold that the trial court did not err in entering      sheets could be located, and, even assuming that the sheets
findings of fact that Guy breached his fiduciary duty to Falcon   contain notations concerning the calculation of damages, we
and conclusions of law requiring the Daniels to disgorge their    would not accept any such notations as findings of fact
profits resulting from Guy's breach of his fiduciary duty.        and conclusions of law, nor would we consider any such
                                                                  information in our appellate review. 4
We overrule the Daniels' first issue.
                                                                  4      Courts have considered docket entries in limited
                                                                         circumstances, but none of those circumstances are
         Appeal of Denial of Summary Judgment                            presented here. See Escobar v. Escobar, 711 S.W.2d
                                                                         230, 232 (Tex.1986) (considering docket sheets in
 [12] In their second issue, the Daniels contend that the trial          determining whether court had authority to enter
court erred in denying their summary judgment motion on the              judgment nunc pro tunc); Buffalo Bag Co. v. Joachim,
ground that they did not breach a fiduciary relationship with            704 S.W.2d 482, 483–84 (Tex.App.-Houston [14th Dist.]
Falcon. The Daniels note that Falcon never filed a response              1986, writ ref'd n.r.e.) (considering docket sheet entry
or controverting evidence in response to their summary                   in determining whether judgment had been rendered);
judgment motion.                                                         Pruet v. Coastal States Trading, Inc., 715 S.W.2d
                                                                         702, 705 (Tex.App.-Houston [1st Dist.] 1986, no writ)
                                                                         (holding that, in determining whether judgment nunc pro
 [13] When a party moves unsuccessfully for summary
                                                                         tunc should be granted, evidence may be in form of “oral
judgment and subsequently loses in a conventional trial on
                                                                         testimony of witnesses, written documents, the court's
the merits, the denial of that motion generally is not subject           docket, and the judge's personal recollection”).
to review on appeal. Ackermann v. Vordenbaum, 403 S.W.2d
                                                                  We overrule the Daniels' third issue.
362, 365 (Tex.1966); Reese v. Duncan, 80 S.W.3d 650,
665 (Tex.App.-Dallas 2002, pet. denied); *188 Johns v.
Ram–Forwarding, Inc., 29 S.W.3d 635, 638–39 (Tex.App.-
Houston [1st Dist.] 2000, no pet.). The Daniels do not present                         Equitable Estoppel
an explanation, and the record does not support an argument,
as to why this Court should not follow the application of         In their fourth issue, the Daniels contend that Falcon is
the general rule in this case. Accordingly, we hold that the      equitably estopped from recovering from the Daniels because
Daniels have presented nothing for our review on this issue.      Falcon profited from the acts of the Daniels. The Daniels
                                                                  assert that Falcon did not complain about the quality of work
We overrule the Daniels' second issue.                            performed by the Daniels or the cost of such work. The
                                                                  Daniels further assert that, because Falcon has acted in “bad
                                                                  faith, committed fraud in the inducement, and further acts of
                                                                  wrongful conduct,” Falcon is not entitled to the extraordinary
                   Missing Docket Sheet                           equitable remedy of profit disgorgement. Finally, the Daniels
                                                                  assert that Falcon would be unjustly enriched if it was allowed
 [14] In their third issue, the Daniels contend that the loss
                                                                  to disgorge profits from the Daniels.
of the entire clerk's record unduly burdened them because
“the trial court's docket sheet notes are crucial to appellate
                                                                   [16]     [17]    [18]     [19] First, we note that equitable
review.” The Daniels assume that the docket sheets, if
                                                                  estoppel is an affirmative defense and must be pleaded.
located, would include notes explaining the calculation of
                                                                  TEX.R. CIV. P. 94. The Daniels did not plead equitable
damages awarded to Falcon, and that “examination of the
                                                                  estoppel in the trial court, and, accordingly, they may not
method of calculation of those damages is crucial to appeal.”
                                                                  assert it on appeal. See City of Univ. Park v. Van Doren,
                                                                  65 S.W.3d 240, 251 (Tex.App.-Dallas 2001, pet. denied);
 [15] However, an “appellate court may not consider docket
                                                                  Trevino v. Houston Orthopedic Ctr., 831 S.W.2d 341, 344–45
entries since they are only made for the clerk's convenience
                                                                  (Tex.App.-Houston [14th Dist.] 1992, writ denied). Second,
and are usually unreliable.” Rush v. Barrios, 56 S.W.3d 88, 95



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177 (2005)


                                                                                before hiring [Guy], and that the conduct of [Guy]
even if the affirmative defense of equitable estoppel was
                                                                                was necessary and justified in rectifying the wrongfully
tried by consent, as the Daniels assert in their reply brief,
                                                                                undisclosed condition of the project.” However, there
the Daniels have not properly briefed this issue. An appellate
                                                                                is no testimony in the record supporting this assertion.
brief “must contain a clear and concise argument for the                        There is also no evidence to support Guy's assertion that
contentions made, with appropriate citations to authorities                     Falcon “inflated the numbers,” acted in “bad faith,” or
and to *189 the record.” TEX.R.APP. P. 38.1(h). “Rule                           “committed fraud in the inducement.”
38 requires [a party] to provide us with such discussion of
                                                                        Finally, we note that we have previously addressed, and
the facts and the authorities relied upon as may be requisite
                                                                        rejected, the Daniels' contentions that their profits from
to maintain the point at issue.” Tesoro Petroleum Corp. v.
                                                                        the project cannot be disgorged because B & L's work
Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-
                                                                        was acceptable and Falcon conceded it would have paid a
Houston [1st Dist.] 2002, pet. denied). “This is not done by
                                                                        “reasonable profit” and because Falcon benefitted from the
merely uttering brief conclusory statements, unsupported by
                                                                        Daniels' actions by recovering its costs from a third party.
legal citations.” Id. In their brief and reply brief, the Daniels
do not provide citations to the relevant authorities nor do
                                                                        We overrule the Daniels' fourth issue.
they provide citations to facts in the record in support of
their affirmative defense of equitable estoppel or in support
of their allegations that Falcon breached its “implied duty of
good faith and fair dealing.” Furthermore, the Daniels' limited                                    Conclusion
citations to the record do not support the factual assertions
                                                                        We affirm the judgment of the trial court.
they make. 5 Thus, the Daniels have waived this issue for our
review.
                                                                        All Citations
5       For example, the Daniels assert in their briefing that
        Guy's supervisor testified that Falcon did not make Guy
                                                                        190 S.W.3d 177
        “aware of the poor financial condition of [the] project


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    11
Ex parte R.D.N., 918 So.2d 100 (2005)


                                                                                 custody of child remain with mother, which
                                                                                 recommendation was relied upon by trial court
     KeyCite Yellow Flag - Negative Treatment                                    in denying father's motion to modify custody,
Distinguished by Cooper v. Cooper,       Ala.Civ.App.,   August 15, 2014
                                                                                 violated father's due process right to respond
                      918 So.2d 100                                              with rebuttal evidence showing why guardian ad
                 Supreme Court of Alabama.                                       litem's recommendation should not be followed
                                                                                 and to have motion decided on evidence
                         Ex parte R.D.N.                                         presented at trial. U.S.C.A. Const.Amend. 14;
                          (In re R.D.N.                                          Rules of Prof.Conduct, Rule 3.5; Canons of
                                v.                                               Jud.Ethics, Canon 3, subd. A(4).
                            A.M.N.).
                                                                                 10 Cases that cite this headnote
               1030864. | March 4, 2005.
           |    Rehearing Denied May 20, 2005.                             [2]   Appeal and Error
                                                                                    Province of trial court
Synopsis
                                                                                 Alabama appellate courts do not sit in judgment
Background: Father filed post-divorce motion to modify
                                                                                 of disputed evidence presented ore tenus before
custody. The Circuit Court, Marengo County, No. DR-96-44,
                                                                                 the trial court.
Eddie Hardaway, Jr., J., denied motion and taxed all costs,
including guardian ad litem fees, to father. Father appealed,                    Cases that cite this headnote
and the Court of Civil Appeals affirmed, without opinion.

                                                                           [3]   Appeal and Error
                                                                                    Findings of Court or Referee
Holdings: On father's petition for certiorari review, the
                                                                                 Appeal and Error
Supreme Court, Nabers, C.J., held that:
                                                                                    Conclusions of law

[1] trial court's consideration of guardian ad litem's ex parte                  Questions of law are not subject to the ore tenus
recommendation that custody remain with mother violated                          rule; therefore, the presumption of correctness in
father's due process rights, and                                                 an ore tenus proceeding applies only to the trial
                                                                                 court's findings of fact.
[2] father was entitled to evidentiary hearing to determine
                                                                                 Cases that cite this headnote
whether guardian ad litem's fee of $18,000 was reasonable
and supported by evidence.
                                                                           [4]   Child Custody
                                                                                     Hearing
Reversed and remanded with directions.
                                                                                 Child Custody
                                                                                     Presumptions
On remand to, Ala.Civ.App., 918 So.2d 106.
                                                                                 Whether a guardian ad litem may communicate
                                                                                 ex parte with the court in a child-custody case is
                                                                                 a question of law, and the trial court's decision
 West Headnotes (8)                                                              on a question of law is accorded no presumption
                                                                                 of correctness.

 [1]      Child Custody                                                          6 Cases that cite this headnote
              Hearing and Determination
          Constitutional Law
                                                                           [5]   Child Custody
              Child custody, visitation, and support
                                                                                     Trial de novo
          Guardian ad litem's ex parte communication with
          trial court which included recommendation that


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
Ex parte R.D.N., 918 So.2d 100 (2005)


        The Supreme Court reviews the trial court's
        conclusion on question of law in ore tenus            K.L.S., Selma, guardian ad litem.
        proceedings de novo.
                                                              Opinion
        Cases that cite this headnote
                                                              NABERS, Chief Justice.

 [6]    Attorney and Client                                   R.D.N. and A.M.N. were divorced in 1997 in Marengo
            Persons subject to regulations                    County. They have one child who was born in 1993. The
                                                              divorce judgment granted custody of the child to A.M.N.
        Child Custody
                                                              (“the mother”) and granted R.D.N. (“the father”) visitation
            Hearing
                                                              rights. Two weeks after the divorce judgment was entered,
        Constitutional Law                                    the mother moved with the child to Florida to be near her
            Child custody, visitation, and support            family. As a result, the father was separated from his child by
        If a guardian ad litem in a custody matter is to      approximately 600 miles. Because of the move and alleged
        argue a case as any other attorney involved in the    attempts by the mother to hinder his visitation rights, the
        case, the rules of ethics applicable to lawyers and   father, on October 31, 1997, filed a petition to modify custody
        the fundamental principles of due process apply       or, in the alternative, to modify visitation rights.
        to the conduct of a guardian ad litem in a court
        proceeding. U.S.C.A. Const.Amend. 14.                 Beginning in November 1997 and continuing periodically
                                                              over a two-and-one-half-year period, the father took the
        7 Cases that cite this headnote                       child to see a psychologist, Dr. Miriam Drummonds, in
                                                              Birmingham. The mother also took the child to see a
 [7]    Constitutional Law                                    psychologist, Dr. Deborah Day, in Florida. In March 1998,
            Trial                                             the trial judge appointed a guardian ad litem for the child.
        The decision of a court must be based on              On April 21, 1999, based on comments made by the child,
        evidence produced in open court lest the              the father filed a report with the Florida Department of
        guarantee of due process be infringed. U.S.C.A.       Children and Families (“DCF”) alleging that the maternal
        Const.Amend. 14.                                      grandfather had sexually molested the child. On October
                                                              18, 1999, the Florida DCF wrote a letter to the trial judge
        2 Cases that cite this headnote                       recommending that the mother, the father, the child, and
                                                              the maternal grandparents be evaluated by an independent,
                                                              impartial psychologist. On April 25, 2000, upon motion by
 [8]    Child Custody
                                                              the father, the court appointed an independent psychologist,
            Hearing
                                                              Dr. Kathryn Allen, to evaluate the parties.
        Father was entitled to evidentiary hearing to
        determine whether guardian ad litem's fee of          On June 17, 2000, during a session with Dr. Drummonds, the
        $18,000 incurred in course of proceedings on          child described an incident of sexual exploitation allegedly
        motion to modify custody was reasonable and           committed by his maternal grandfather. Dr. Drummonds
        supported by evidence.                                made a mandatory report of alleged sexual exploitation of
                                                              the child by the maternal grandfather to the Marengo County
        1 Cases that cite this headnote
                                                              Department of Human Resources (“DHR”) on June 19, 2000.
                                                              During the summer of 2000, DHR investigated the report.
                                                              The results of the DHR investigation were inconclusive
                                                              as to sexual abuse; however, the child continued to make
Attorneys and Law Firms                                       revelations of sexual exploitation by his maternal grandfather
                                                              to Dr. Drummonds. At some point, Dr. Drummonds also
*101 Mavanee R. Bear, Birmingham, for petitioner.
                                                              provided a written report to Charlotte Webb of the Marengo
K. Scott Stapp of Manley, Traeger, Perry & Stapp,             County DHR expressing concern that the mother was trying
Demopolis, for respondent.                                    to alienate the child from the father based on audiotapes of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Ex parte R.D.N., 918 So.2d 100 (2005)


several telephone conversations between the mother and the
child.                                                             On July 26, 2002, the guardian ad litem submitted a detailed
                                                                   bill to the trial judge in the amount of $18,280.06 for her
On June 29, 2000, the trial court held a hearing at the            services as guardian ad litem. The guardian ad litem had not
request of DHR. Before the presentation of evidence, a             submitted a fee request or otherwise documented the hours
colloquy took place between the trial judge, the guardian ad       spent, costs expended, or hourly rate for performing her duties
litem, 1 the parties' attorneys, and the attorney for DHR. The     as guardian ad litem. This bill was not a part of the official
attorney for DHR explained that Dr. Drummonds had made             record; it was attached to a brief submitted by the guardian ad
a mandatory report in accordance with Ala.Code 1975, § 26–         litem to this Court. In her brief to this Court, the guardian ad
14–3, and that DHR *102 was required to investigate the            litem stated that she had had a private conference with the trial
report under Ala.Code 1975, § 26–14–7. The guardian ad             judge in the summer of 1999 and at that time recommended
litem made several statements critical of the father and of        that custody of the child remain with the mother.
Dr. Drummonds and directed the following statement to the
father's attorney, “I'm against your side of the case.” The        The court issued an order on October 2, 2002. Despite the
trial judge added, “I'm sick of this case....” The June 2000       recommendations of Dr. Allen, the court found that it was in
hearing proceeded with both Dr. Drummonds and Charlotte            the child's best interest not to change custody. The court made
Webb, the DHR investigator, testifying to evidence of sexual       no changes to the visitation schedule. The court noted that the
exploitation of the child by the maternal grandfather. Both        guardian ad litem's recommendation was that the child remain
testified that it was their opinion that the child had not been    in the custody of the mother and that the bill submitted to
coached by the father to make the allegations.                     the court by the guardian ad litem was reasonable. The court
                                                                   found the father's testimony to be not credible, his allegations
1                                                                  that the child was being sexually exploited by the maternal
       The guardian ad litem participated in the colloquy by
                                                                   grandfather to be unfounded, and his claims in that regard
       telephone.
                                                                   to be without merit. The court taxed substantially all of the
On August 1, 2000, DHR recommended that the child                  guardian ad litem's fees and expenses ($18,000) and one-half
have no contact with the maternal grandfather pending an           of the mother's attorney fee ($14,000) to the father.
investigation by the Florida DCF. On August 2, 2000, the
trial judge ordered that the child return to Florida for school,   The father filed a motion to alter, amend, or vacate on October
but he directed that there be no unsupervised visitation with      28, 2002, which was denied by operation of law after 90 days.
the maternal grandfather. The Florida DCF, which could             The father filed a notice of appeal on February 9, 2003. The
not independently verify the allegations of sexual abuse,          Court of Civil Appeals affirmed the trial court's judgment
concluded on December 21, 2000, that the child was not being       without an opinion. R.D.N. v. *103 A.M.N. (No. 2020447,
abused.                                                            Feb. 20, 2004), 912 So.2d 1163 (Ala.Civ.App.2004)(table).
                                                                   No application for rehearing was filed. The father then filed a
On December 11, 2001, the court-appointed psychologist,            petition for a writ of certiorari on March 5, 2004, which this
Dr. Allen, filed her custody evaluation in court. Dr. Allen        Court granted.
reported that material changes had occurred since the original
custody order was entered, that a change of custody would          The first issue we address is whether, in a child-custody
materially promote the child's best interest and welfare, that     dispute, fundamental principles of due process are violated
the good and positive results from the change would far            when a guardian ad litem communicates to the trial judge
outweigh the disruptive effect on the child of the change in       ex parte her recommendations regarding custody, without the
custody, and that the child should reside with his father.         knowledge or consent of the parties and without the parties'
                                                                   having an opportunity to contest those recommendations in
The hearing on the custody-modification petition was held          open court.
on July 2–3, 2002. Extensive live and deposition testimony
from experts, teachers, friends, and family was presented. The
guardian ad litem made no recommendation to the court on
the record regarding which parent should have custody of the                                      I.
child.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Ex parte R.D.N., 918 So.2d 100 (2005)


 [1]     In C.J.L. v. M.W.B., 879 So.2d 1169                        of law is accorded no presumption of correctness. See id. We
(Ala.Civ.App.2003), cited by the Court of Civil Appeals             review its conclusion de novo.
in their no-opinion affirmance in this case, the Court of
Civil Appeals addressed C.J.L.'s arguments that the use of           [6] If a guardian ad litem is to argue the case “ ‘as any other
guardians ad litem in custody cases violates due-process            attorney involved in [the] case,’ ” C.J.L., 879 So.2d at 1181,
rights and that the use of guardians ad litem should be             then it follows that rules of ethics applicable to lawyers and
abolished in such cases. The court held:                            the fundamental principles *104 of due process apply to the
                                                                    conduct of a guardian ad litem in a court proceeding.
  “... Alabama law clearly permits the use of a guardian ad
  litem in a custody case. See Ala.Code 1975, § 12–15–1(12).        Rule 3.5 of the Alabama Rules of Professional Conduct
  The cases addressing the use of a guardian ad litem make it       prohibits lawyers from engaging in an ex parte
  clear that a trial court may consider, although it is not bound
                                                                    communication with a judge. 2 Canon 3 A(4) of the Canons
  to follow, a recommendation made by a guardian ad litem.
                                                                    of Judicial Ethics similarly prohibits judges from engaging
  Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001).
                                                                    in ex parte communications concerning a pending case.
     “ ‘Moreover, the authority of a guardian ad litem to make      The Alabama State Bar Association has issued an opinion,
     a recommendation as to custody, and the trial court's          highlighting the ethical concerns that arise when a guardian
     ability to consider that recommendation, are inherent in       ad litem in a child-custody case engages in ex parte
     the definition of a guardian ad litem. See § 12–15–1(12),      communications with the judge hearing the case. The opinion
     Ala.Code 1975 (a guardian ad litem is “[a] licensed            states, in pertinent part:
     lawyer appointed by the court to defend or represent a
     child in any action to which such child may be a party”).’     2      See also Rule 3.7, Ala. R. Prof. Cond., which limits the
                                                                           ability of a lawyer to be an advocate at a trial in which
  “G.C. v. G.D., 712 So.2d 1091, 1095 (Ala.Civ.App.1997);                  the lawyer is likely to be a necessary witness.
  see also S.D., Jr. v. R.D., 628 So.2d 817, 818
  (Ala.Civ.App.1993) (‘The guardian ad litem correctly              “[I]t is the opinion of the Disciplinary Commission of
  observes that he is an officer of the court and is entitled to    the Alabama State Bar that an attorney who serves as a
  argue his client's case as any other attorney involved in this    guardian ad litem may not have ex parte communications
  case.’). We decline to reconsider the longstanding use of         with the trial judge regarding any substantive issue before
  guardians ad litem by the trial courts of this state.”            the court.”
                                                                    ASBA, Formal Ethics Op. RO–00–02 (June 2000).
879 So.2d at 1181.
                                                                  [7] In Ex parte Berryhill, 410 So.2d 416, 418 (Ala.1982),
                                                                 we held: “The fundamental principle is that the decision of
In C.J.L., unlike the present case, the recommendations of the
                                                                 a court must be based on evidence produced in open court
guardian ad litem were before the court and were contested
                                                                 lest the guarantee of due process be infringed.” See Cleveland
during the trial on the merits. C.J.L. leaves open the issue now
                                                                 Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct.
before this Court of the propriety of ex parte communications
                                                                 1487, 84 L.Ed.2d 494 (1985) (“The essential requirements of
between a guardian ad litem and the trial court.
                                                                 due process ... are notice and an opportunity to respond. The
                                                                 opportunity to present reasons, either in person or in writing,
 [2] [3] [4] [5] Alabama appellate courts do not sit in
                                                                 why proposed action should not be taken is a fundamental due
judgment of disputed evidence presented ore tenus before the
                                                                 process requirement.”).
trial court. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).
However, questions of law are not subject to the ore tenus
                                                                 In the present case, the trial court's order of October 2, 2002,
rule. Reed v. Board of Trustees for Alabama State Univ., 778
                                                                 contained findings of fact, conclusions of law, and a final
So.2d 791, 793 n. 2 (Ala.2000). Therefore, the presumption
                                                                 judgment. The findings of fact stated, in part:
of correctness in this ore tenus proceeding applies only to the
trial court's findings of fact. Ex parte Beckham, 643 So.2d                    “The Court finds that [K.L.S.] has
1373, 1374 (Ala.1994). Whether a guardian ad litem may                         performed an excellent job in acting as
communicate ex parte with the court in a child-custody case is                 the Guardian ad Litem in this matter.
a question of law, and the trial court's decision on a question                [K.L.S.] has made every effort to be



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Ex parte R.D.N., 918 So.2d 100 (2005)


            fair and reasonable and to obtain all                    The court, in its discretion, disagreed with the
            the necessary information to make a                      recommendation of its court-appointed professional in
            proper recommendation in this matter                     evaluating the custody issue and chose to follow the guardian
            as to what is best for the minor                         ad litem's recommendation that custody remain with the
            child. She has made three (3) trips to                   mother. Additionally, the court denied the father's request that
            visit the child in ... Florida with his                  his visitation rights be expanded or modified to account for
            Mother, the Respondent, and she has                      the substantial travel time and expense involved in exercising
            also visited the minor child in Alabama                  his visitation with the child, who lives out of state. Therefore,
            with his Father, the Petitioner. The                     we cannot conclude that the father's rights were not prejudiced
            Court finds that the Guardian ad                         by the court's error.
            Litem's recommendation is that the
            minor child remain in custody of the                     Under Ex parte Berryhill, supra, and Cleveland Board of
            Respondent, Mother.”                                     Education, supra, we hold that, in these circumstances, the
                                                                     trial court's ex parte communications with the guardian ad
The guardian ad litem's recommendation that the child remain         litem and its reliance upon her recommendation, given to
with the mother was not presented as evidence produced in            the court as part of an ex parte communication, violated the
open court and was based on information that may or may              fundamental right of the father to procedural due process
                                                                     under the Alabama and United States Constitutions.
not have been properly presented to the court. 3 As a result,
the father was denied the opportunity to respond with rebuttal
evidence and to present reasons why the recommendation of
the guardian ad litem should not be followed. The mother                                             II.
was also denied the opportunity to respond and present
reasons why the guardian ad litem's recommendation should             [8] In its final order issued October 2, 2002, the trial court
be followed.                                                         ruled:

                                                                                  “The Court determines that Guardian
3      Rule 43(a), Ala. R. Civ. P., requires that “[i]n all trials                ad Litem fees hereby submitted in the
       the testimony of witnesses shall be taken orally in open                   amount of $18,000.00 are reasonable
       court, unless otherwise provided in these rules.”
                                                                                  and are to be taxed as costs in this case
The guardian ad litem made no recommendation on the record                        [and] ... that all costs in this matter
either by testimony or in a written report before or during                       (including the Guardian ad Litem fees)
the July 2002 hearing. The guardian ad litem apparently                           are taxed to the Petitioner.”
formed and expressed her opinion on the merits before
                                                                     No hearing was held in open court to allow either party to
the case was presented on the merits 4 and stated *105
                                                                     contest the reasonableness of the attorney fee requested by
conclusions openly hostile to the father's position. There is
                                                                     the guardian ad litem. The trial court's order says that the fee
no evidence in the record indicating that the guardian ad
                                                                     was “submitted,” but there is no “submission” in the record.
litem had any recognized qualifications that demonstrated
                                                                     According to the guardian ad litem's brief to this Court, the
that she had a unique ability to make a recommendation on
                                                                     submission of her attorney-fee request took place ex parte
child custody. Consequently, the right to contest the accuracy,
substance, impartiality, and quality of the guardian ad litem's      after the close of evidence on July 26, 2002. 5
recommendation to the court concerning the custody of the
child was a procedural right denied the father in this case.         5       It is not possible to reconstruct the number, nature, or
                                                                             extent of ex parte communications between the guardian
4                                                                            ad litem and the trial court while this matter was pending
       According to her brief to this Court, which is not part
                                                                             before the trial court.
       of the record, the guardian ad litem met in private with
       the judge and made her recommendation that the child          The father was entitled to an evidentiary hearing for the
       remain with the mother three years before the case was        purpose of determining a reasonable fee for the guardian
       heard on the merits.                                          ad litem and an order setting forth “with some particularity
                                                                     the findings from the evidence adduced.” Lolley v. Citizens



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       5
Ex parte R.D.N., 918 So.2d 100 (2005)


                                                                      to *106 enter an order remanding the case to the trial court
Bank, 494 So.2d 19, 21 (Ala.1986); see also Van Schaack v.
                                                                      for further proceedings consistent with this opinion.
AmSouth Bank, 530 So.2d 740, 750 (Ala.1988) (absence of
testimony concerning the services of the guardian ad litem
                                                                      REVERSED AND REMANDED WITH DIRECTIONS.
was a factor in decision to remand for an evidentiary hearing
to determine a reasonable fee).

We address only the procedural irregularities that occurred           SEE, LYONS, HARWOOD, WOODALL, STUART,
involving the guardian ad litem in this case; we do not reach         SMITH, BOLIN, and PARKER, JJ., concur.
the question whether the trial court exceeded the limits of its
discretion in ordering the father to pay the entire fee of the        All Citations
guardian ad litem.
                                                                      918 So.2d 100

For the foregoing reasons, the judgment of the Court of Civil
Appeals is reversed, and the case is remanded for that court

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                                   Private litigant does not need legislative
                                                                                   permission to sue State for state official's
     KeyCite Red Flag - Severe Negative Treatment                                  violations of state law.
Superseded by Statute as Stated in    Texas Dept. of Parks and Wildlife v.
Miranda,   Tex.,   April 2, 2004                                                   6 Cases that cite this headnote
                        951 S.W.2d 401
                    Supreme Court of Texas.                                  [2]   States
                                                                                        What are suits against state or state officers
                 FEDERAL SIGN, Petitioner,
                                                                                   State official's illegal or unauthorized actions are
                    v.
                                                                                   not acts of state, and thus, action to determine or
    TEXAS SOUTHERN UNIVERSITY, Respondent.
                                                                                   protect private party's rights against state official
                                                                                   who has acted without legal or statutory authority
             No. 94–1317. | Argued Nov. 28,
                                                                                   is not suit against State that sovereign immunity
           1995. | Decided June 20, 1997.
                                                                                   bars.
           | Rehearing Overruled Oct. 2, 1997.
                                                                                   33 Cases that cite this headnote
Sign maker brought action against state university for claims
arising out of contract for construction of basketball arena
scoreboards. University filed plea to jurisdiction, asserting                [3]   Education
sovereign immunity. The 215th District Court, Harris County,                           Rights and remedies of contractors
Eugene Chambers, J., entered judgment for sign maker and                           Public Contracts
university appealed. The Court of Appeals, 889 S.W.2d 509,                             Defenses
reversed and remanded with instructions. Upon granting writ
                                                                                   Sign maker's claims against state university
of error, the Supreme Court, Baker, J., held that: (1) sign
                                                                                   alleging potential state law violations did not
maker's state law claims against university did not dispense
                                                                                   dispense with necessity that sign maker secure
with need for legislative consent to sue university for damages
                                                                                   legislative consent to sue university for damages
for breach of contract; (2) sign maker who did not receive
                                                                                   for breach of contract.
legislative permission to sue university could not maintain
breach of contract suit; (3) contract between sign maker and                       1 Cases that cite this headnote
university was supported by consideration; (4) university's
immunity from suit did not constitute lack of mutuality of
                                                                             [4]   States
remedy; (5) university's immunity from suit did not violate
                                                                                        Necessity of Consent
open courts provision; and (6) university's immunity from suit
did not deny sign maker due course of law.                                         Sovereign immunity, unless waived, protects
                                                                                   State, its agencies and its officials from lawsuits
Affirmed.                                                                          for damages, absent legislative consent to sue
                                                                                   State.
Hecht, J., filed concurring opinion in which Phillips, C.J.,
                                                                                   110 Cases that cite this headnote
Cornyn and Owen, JJ., joined.

Enoch, J., filed dissenting opinion in which Spector and                     [5]   Municipal Corporations
Abbott, JJ., joined.                                                                  Nature and grounds of liability
                                                                                   Sovereign immunity embraces immunity from
                                                                                   suit and immunity from liability.
 West Headnotes (31)                                                               64 Cases that cite this headnote


 [1]      States                                                             [6]   States
               Necessity of Consent



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      1
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

            Liability and Consent of State to Be Sued in             When State contracts with private citizens, State
        General                                                      waives only immunity from liability, but private
        State retains immunity from suit, without express            citizen must have legislative consent to sue State
        legislative consent, even if State's liability is            on breach of contract claim as act of contracting
        not disputed and State retains immunity from                 by itself does not waive the State's immunity
        liability though legislature has granted consent to          from suit.
        suit.
                                                                     70 Cases that cite this headnote
        42 Cases that cite this headnote
                                                              [12]   Education
 [7]    States                                                           Rights and remedies of contractors
             Mode and Sufficiency of Consent                         Public Contracts
        States                                                           Defenses
             Resolutions and private acts                            Sign maker who did not receive legislative
        State may consent to suit by statute or by                   permission to sue state university could not
        legislative resolution.                                      maintain action for damages against university
                                                                     based on breach of contract as State did not waive
        4 Cases that cite this headnote                              sovereign immunity.

                                                                     9 Cases that cite this headnote
 [8]    States
             Mode and Sufficiency of Consent
                                                              [13]   Contracts
        Legislative consent for suit or any other
                                                                         Necessity in general
        sovereign immunity waiver must be by clear and
        unambiguous language.                                        Contract must be based upon valid consideration,
                                                                     i.e. mutuality of obligation.
        75 Cases that cite this headnote
                                                                     26 Cases that cite this headnote

 [9]    States
             Particular Actions                               [14]   Contracts
                                                                         Nature and Elements
        When State contracts, State is liable on contracts
        made for its benefit as if it were private person            “Consideration” is bargained for exchange of
        and waives immunity from liability.                          promises.

        10 Cases that cite this headnote                             28 Cases that cite this headnote


 [10]   States                                                [15]   Contracts
             Liability and Consent of State to Be Sued in                Nature and Elements
        General                                                      Consideration consists of benefits and detriments
        State or other sovereignty, when it becomes                  to contracting parties; detriments must induce
        litigant in its own courts, must have its rights             parties to make promises and promises must
        determined, with certain exceptions, by same                 induce parties to incur detriments.
        principles applicable to other litigants.
                                                                     22 Cases that cite this headnote
        Cases that cite this headnote
                                                              [16]   Contracts
 [11]   States                                                           Necessity in general
             Particular Actions



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

        Contract that lacks consideration lacks mutuality            delegate to appropriate agency authority to create
        of obligation and is unenforceable.                          binding contractual obligations against State.

        34 Cases that cite this headnote                             Cases that cite this headnote


 [17]   Specific Performance                                  [21]   Education
            Mutuality of remedy                                          Rights and remedies of contractors
        “Mutuality of remedy” is right of both parties to            Public Contracts
        contract to obtain specific performance.                         Defenses
                                                                     State university's immunity from sign maker's
        11 Cases that cite this headnote
                                                                     breach of contract suit under doctrine of
                                                                     sovereign immunity did not constitute lack of
 [18]   Contracts                                                    mutuality of remedy.
            Mutuality of Obligation
                                                                     8 Cases that cite this headnote
        Unlike contract lacking mutuality of obligation,
        contract lacking mutuality of remedy is not
        illusory and void as mutuality of remedy does         [22]   States
        not concern contractual formation and does not                    Power to Waive Immunity or Consent to
        imply that one party lacks remedy of any kind.               Suit
                                                                     It is legislature's sole province to modify
        25 Cases that cite this headnote
                                                                     sovereign immunity if it is inclined to do so.

 [19]   Education                                                    90 Cases that cite this headnote
            Contracts
        Public Contracts                                      [23]   Appeal and Error
            Validity and Sufficiency of Contract                        Failure to Urge Objections
        Consideration supported binding contract                     Although failure to brief argument ordinarily
        between sign maker and state university, where               waives claimed error, when fact issues are not
        sign maker promised to build basketball arena                germane to issue on appeal and issue is law
        scoreboards in exchange for university's promise             question involving constitutional ramifications,
        to pay for them.                                             reviewing court should decide issue on merits.
                                                                     Rules App.Proc., Rule 74(f).
        4 Cases that cite this headnote
                                                                     19 Cases that cite this headnote

 [20]   Public Contracts
            Authority and capacity of particular              [24]   Constitutional Law
        governmental bodies to contract                                    Right of access to the courts and a remedy
        States                                                       for injuries in general
             Powers of Particular Boards or Officers to              Open courts provision of State Constitution
        Contract                                                     requires courts to actually be open and
        States                                                       operating, mandates that citizens have access
             Express contracts in general                            to courts unimpeded by unreasonable financial
                                                                     barriers and requires that law afford meaningful
        Inability of private individuals to enforce
                                                                     legal remedies to citizens, so legislature may
        through courts their contractual rights against
                                                                     not abrogate right to assert well–established
        State, by reason of inability to sue State without
                                                                     common law cause of action. Vernon's
        its consent, does not affect binding force of State
                                                                     Ann.Texas Const. Art. 1, § 13.
        obligations nor deprive legislature of power to



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                         Immunity in general
        8 Cases that cite this headnote
                                                                    State's immunity to suit is, purely as matter of
                                                                    sovereignty, impervious to due process concerns.
 [25]   Constitutional Law                                          Vernon's Ann.Texas Const. Art. 1, § 19.
             Conditions, Limitations, and Other
        Restrictions on Access and Remedies                         3 Cases that cite this headnote

        Open courts provision of State Constitution
        applies only to statutory restrictions of            [30]   Constitutional Law
        cognizable common law cause of action.                          Immunity in general
        Vernon's Ann.Texas Const. Art. 1, § 13.                     State Constitution's guarantee of due course of
                                                                    law does not obligate state to provide judicial
        11 Cases that cite this headnote
                                                                    relief from all its actions, but rather, it may
                                                                    retain for itself, through its legislature, exclusive
 [26]   Constitutional Law                                          power to determine its liabilities, bound by its
            Abrogation, modification, or recognition of             conscience. Vernon's Ann.Texas Const. Art. 1, §
        remedies                                                    19.
        Education
                                                                    2 Cases that cite this headnote
            Rights and remedies of contractors
        Public Contracts
            Defenses                                         [31]   Constitutional Law
                                                                        Immunity in general
        State university's immunity from sign maker's
        breach of contract suit under doctrine of                   Education
        sovereign immunity did not violate open courts                  Rights and remedies of contractors
        provision of State Constitution as no legislative           Public Contracts
        action prevented sign maker from maintaining its                Defenses
        suit. Vernon's Ann.Texas Const. Art. 1, § 13.               State university's immunity from sign maker's
                                                                    breach of contract action pursuant to doctrine
        42 Cases that cite this headnote
                                                                    of sovereign immunity did not deny sign maker
                                                                    due course of law as statute providing procedures
 [27]   Constitutional Law                                          for private party to obtain legislature's consent
            Notice and Hearing                                      to bring suit against State provided sufficient
        Due course of law provision of State Constitution           relief under due course of law clause. Vernon's
        exists to prevent government from depriving                 Ann.Texas Const. Art. 1, § 19.
        persons of property without notice and hearing.
                                                                    67 Cases that cite this headnote
        Vernon's Ann.Texas Const. Art. 1, § 19.

        Cases that cite this headnote

                                                            Attorneys and Law Firms
 [28]   Constitutional Law
            Questions of law or fact                        *403 Robert A. Plessala, Houston, for Petitioner.
        Claim of denial of due course of law is question
        of law for Supreme Court's determination.           Patrick J. Feeney, Carey E. Smith, Austin, for Respondent.
        Vernon's Ann.Texas Const. Art. 1, § 19.

        Cases that cite this headnote


 [29]   Constitutional Law



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                   Rather than obtaining legislative consent to sue, Federal Sign
Opinion                                                            moved for rehearing. Federal Sign asserted that it did not need
                                                                   legislative consent to sue TSU under the facts of the case.
BAKER, Justice, delivered the opinion of the Court in which
                                                                   The trial court granted Federal Sign's motion and set aside the
PHILLIPS, Chief Justice, GONZALEZ, HECHT, CORNYN
                                                                   abatement order. The parties tried the case to a jury. The trial
and OWEN, Justices, join.
                                                                   court rendered judgment for Federal Sign based on the jury's
The issue in this case is whether the sovereign immunity           finding of a breach of contract and awarded Federal Sign the
doctrine precludes Federal Sign, a private party, from suing       damages the jury found.
Texas Southern University, a state institution, for breach of
contract without legislative permission. The trial court denied    TSU appealed, contending that the trial court erred by
TSU's plea to the jurisdiction, which was based on sovereign       overruling TSU's plea to the jurisdiction. TSU argued that
immunity from suit. Following a jury trial, the trial court        sovereign immunity barred Federal Sign's contract claims.
rendered judgment on the verdict for Federal Sign. TSU             The court of appeals agreed and reversed the trial court's
appealed, urging as its sole point of error that the trial court   judgment. The court of appeals remanded the case to the trial
erred by denying its plea to the jurisdiction. TSU asserted        court with instructions to dismiss Federal Sign's suit.
that sovereign immunity bars contract claims against the
State. The court of appeals agreed and reversed the trial court    We granted writ of error to determine Federal Sign's claims
and remanded the case to the trial court with instructions to      that the court of appeals erred in holding that, absent
dismiss. We agree with the court of appeals. Accordingly, we       legislative consent, TSU was immune from suit because:
affirm the court of appeals' judgment.                             (1) Federal Sign's allegation that TSU violated state laws in
                                                                   connection with the Federal Sign contract stated a claim for
                                                                   which specific legislative consent to sue was not necessary;
                                                                   (2) TSU waived immunity from suit and legislative consent
   I. FACTS AND PROCEDURAL BACKGROUND                              was unnecessary when TSU entered into a contract with a
                                                                   private citizen; and (3) sovereign immunity from contract
In late 1988, TSU began accepting bids for the construction
                                                                   claims violates the Texas Constitution's Open Courts and Due
and delivery of basketball scoreboards for its new Health
                                                                   Course of Law provisions.
and Physical Education facility. Federal Sign submitted
a bid for the contract. Federal Sign secured the Pepsi–
Cola Company as sponsor. In early 1989, TSU accepted
Federal Sign's bid. TSU instructed Federal Sign to begin                II. FEDERAL SIGN'S STATE LAW CLAIMS
building the scoreboards. Following TSU's instructions,
Federal Sign began building the scoreboards. However, in           Federal Sign first asserts that because it alleged causes of
September 1989, before Federal Sign delivered anything to          action for which it did not need legislative permission to
TSU, TSU notified Federal Sign that Federal Sign's bid was         sue TSU, the trial court correctly set aside the abatement
unacceptable and told Federal Sign that TSU intended to            order and allowed the case to proceed to trial. Federal Sign
pursue other avenues to secure the scoreboards. Later, TSU         argues that it did not need legislative consent to sue TSU
contracted with Spectrum Scoreboards and Coca–Cola for the         because its claims included allegations of TSU's state law
scoreboards.                                                       violations. In its original petition, in addition to its breach
                                                                   of contract claim, Federal Sign alleged that TSU officials
In early 1990, Federal Sign sued TSU. Federal Sign alleged         violated the Competitive Bidding on Contracts Statute,
TSU breached the contract and violated the competitive             TEX. EDUC.CODE § 51.907, and the Open Meetings
bidding and open meeting laws. Federal Sign sued for               Act, TEX.REV.CIV. STAT. art. 6252–17 (Vernon 1970),
damages of $67,481 in lost profits and $22,840 in expenses.        repealed by Act or Apr. 30, 1983, 73rd Leg., R.S., ch. 268, §
TSU answered Federal Sign's suit and filed a plea to the           46(1), 1993 Tex. Gen. Laws 583, 986.
jurisdiction. TSU asserted that its sovereign immunity *404
barred Federal Sign's suit. The trial court originally abated
Federal Sign's action until Federal Sign obtained legislative                        A. APPLICABLE LAW
consent to sue.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

 [1]     [2] A private litigant does not need legislative
permission to sue the State for a state official's violations
                                                                                 III. SOVEREIGN IMMUNITY
of state law. Director of the Dept. of Agric. & Env't v.
Printing Indus. Ass'n of Texas, 600 S.W.2d 264, 265–66             Federal Sign next argues that the court of appeals erred
(Tex.1980)(holding legislative consent not required for suit       by reversing the trial court's judgment based on sovereign
for injunctive relief against state agency to halt unauthorized    immunity. Federal Sign first argues that the State waives
printing equipment and printing activities); Texas Highway         its sovereign immunity protection when it enters into a
Comm'n v. Texas Ass'n of Steel Importers, Inc., 372 S.W.2d         contract with a private citizen. Then Federal Sign argues
525, 530 (Tex.1963)(holding legislative consent not required       that, if sovereign immunity protects the State from breach
for declaratory judgment suit against Highway Commission           of contract suits, any contract the State enters into with a
to determine the parties' rights); Cobb v. Harrington, 144 Tex.    private citizen is illusory and void because it lacks mutuality.
360, 190 S.W.2d 709, 712 (1945)(holding legislative consent        Lastly, Federal Sign contends that if sovereign immunity is
not required for declaratory judgment suit against State           the law in Texas, then “this court should act to declare in clear
Comptroller to determine parties' rights under tax statute). A     and unmistakable language that the doctrine of sovereign
state official's illegal or unauthorized actions are not acts of   immunity does not apply in any form when the State enters
the State. See, e.g., Director of the Dep't of Agric. & Env't,     into a contract with a citizen.”
600 S.W.2d at 265–66; Texas Highway Comm'n, 372 S.W.2d
at 525; Cobb, 190 S.W.2d at 712. Accordingly, an action to
determine or protect a private party's rights against a state
official who has acted without legal or statutory authority                       A. SOVEREIGN IMMUNITY
is not a suit against the State that sovereign immunity bars.                      AND STATE CONTRACTS
See Cobb, 190 S.W.2d at 712. In other words, we distinguish
suits to determine a party's rights against the State from suits            1. Applicable Law—Sovereign Immunity
seeking damages. A party can maintain a suit to determine its
rights without legislative permission. See Cobb, 190 S.W.2d         [4] [5] [6] This Court has long recognized that sovereign
at 712.                                                            immunity, unless waived, protects the State of Texas, its
                                                                   agencies and its officials from lawsuits for damages, absent
                                                                   legislative consent to sue the State. Director of the Dep't of
                                                                   Agric. & Env't, 600 S.W.2d at 265; Griffin v. Hawn, 161 Tex.
        B. APPLICATION OF LAW TO FACTS                             422, 341 S.W.2d 151, 152–53 (1960); Hosner v. DeYoung,
                                                                   1 Tex. 764, 769 (1847). Sovereign immunity embraces two
 [3] Here, Federal Sign argues that the trial court correctly
                                                                   principles: immunity from suit and immunity from liability.
overruled TSU's plea to the jurisdiction because its
                                                                   Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453
live pleadings, when the trial court lifted the abatement
                                                                   S.W.2d 812, 813 (Tex.1970). First, the State retains immunity
order, included Competitive Bidding and Open Meetings
                                                                   from suit, without legislative consent, even if the State's
Acts violations—potential *405 state law violations. See
                                                                   liability is not disputed. Missouri Pac. R.R., 453 S.W.2d at
Director of Dept. of Agric. and Env't, 600 S.W.2d at 265–
                                                                   813. Second, the State retains immunity from liability though
66; Texas Highway Comm'n, 372 S.W.2d at 530; Cobb, 190
                                                                   the Legislature has granted consent to the suit. Missouri Pac.
S.W.2d at 712. However, even though Federal Sign may
                                                                   R.R., 453 S.W.2d at 813.
not have needed legislative permission to sue TSU on these
claims, Federal Sign still sought damages for its breach of
                                                                    [7]   [8] Immunity from suit bars a suit against the
contract claim. Consequently, because Federal Sign's suit
                                                                   State unless the State expressly gives its consent to the
sought monetary damages from the State, its breach of
                                                                   suit. Missouri Pac. R.R., 453 S.W.2d at 813; see also
contract claim did not fit under the rule established in Cobb,
                                                                   TEX. CIV. PRAC. & REM.CODE § 101.025; TEX. CIV.
Director of Department of Agriculture and Environment,
                                                                   PRAC. & REM.CODE §§ 107.001–.005. In other words,
and Texas Highway Commission. Therefore, Federal Sign's
                                                                   although the claim asserted may be one on which the State
state violation claims did not dispense with the necessity
                                                                   acknowledges liability, this rule precludes a remedy until
that Federal Sign secure legislative consent to sue TSU for
                                                                   the Legislature consents to suit. Missouri Pac. R.R., 453
damages for breach of contract.
                                                                   S.W.2d at 813. The State may consent to suit by statute or by



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

legislative resolution. Missouri Pac. R.R., 453 S.W.2d at 814.
Legislative consent for suit or any other sovereign immunity        However, other cases hold that the State waives its sovereign
waiver must be “by clear and unambiguous language.”                 immunity, including immunity from suit, when it contracts
University of Texas Med. Branch at Galveston v. York, 871           with private citizens. See, e.g., Ntreh v. University of Texas
S.W.2d 175, 177 (Tex.1994); Duhart v. State, 610 S.W.2d             at Dallas, 936 S.W.2d 649, 654 (Tex.App.—Dallas 1996,
740, 742 (Tex.1980).                                                writ requested); Texas Dept. of Health v. Texas Health Ent.,
                                                                    871 S.W.2d 498, 506 (Tex.App.—Dallas 1993, writ denied);
 [9]     Immunity from liability protects the State from            Couch v. Ector County, 860 S.W.2d 659, 661 (Tex.App.
judgments even if the Legislature has expressly given consent       —El Paso 1993, no writ); Industrial Constr. Management
to the suit. Missouri Pac. R.R., 453 S.W.2d at 813. In other        v. DeSoto Indep. Sch. Dist., 785 S.W.2d 160, 163–164
words, even if the Legislature authorizes suit against the State,   (Tex.App.—Dallas 1989, no writ); Board of Regents of
the question remains whether the claim is one for which             Univ. of Texas v. S & G Constr. Co., 529 S.W.2d 90, 97
the State acknowledges liability. State v. Isbell, 127 Tex.         (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.); Cummins v.
399, 94 S.W.2d 423, 425 (1936); see also Governmental               Board of Trustees of Eanes Indep. Sch. Dist., 468 S.W.2d 913,
Immunity From Suit and Liability in Texas, 27 TEX. L.               917 (Tex.Civ.App.—Austin 1971, no writ).
REV. 337, 342 (1949). The State neither creates nor admits
liability by granting permission to be sued. TEX. CIV.              Despite the different conclusions these courts reached, all
PRAC. & REM.CODE § 107.002 (“A resolution granting                  relied on Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998 (1898),
permission to sue does not waive to any extent immunity             for their authority. Yet, Fristoe did not involve a breach of
from liability.”); Isbell, 94 S.W.2d at 424–25. However, when       contract claim against the State nor did it directly involve
the State contracts, the State is liable on contracts made for      sovereign immunity. In fact, Fristoe does not explicitly
its benefit as if it were a private person. State v. Elliott,       discuss either immunity from liability or immunity from suit.
212 S.W. 695, 697–98 (Tex.Civ.App.—Galveston 1919, writ             Recognizing that Fristoe did not involve the issue before the
ref'd). Consequently, when *406 the State contracts with            Court, we nonetheless discuss Fristoe because the conflicting
private citizens it waives immunity from liability.                 courts of appeals and the parties base their conclusions upon
                                                                    their interpretations of Fristoe.

                                                                    Fristoeinvolved a trespass to try title suit by Leon Blum
         2. Conflict of Authority—Fristoe v. Blum
                                                                    against J.W. Fristoe. Fristoe, 45 S.W. at 999. In 1883, I.M.
However, there is a conflict among the courts of appeals on         Bennick bought land from the State under a contract to
whether the State, by entering into a contract with a private       purchase. In 1891, Bennick transferred the land to D.P. Gay.
citizen, waives immunity from suit by the fact that it has          Then, in 1894 Blum purchased the land from Gay. No one
made the contract and thus legislative consent for suit is          paid the interest on the purchase money under Bennick's
not necessary. A majority of the cases that have considered         original purchase for 1892. In mid–1895, the commissioner
the issue hold that when the State contracts with a private         of the land office declared the contract of purchase forfeited.
citizen, it waives immunity from liability, but retains immunity    Fristoe purchased the land from the State in late 1895.
from suit. See, e.g., Alcorn v. Vaksman, 877 S.W.2d 390, 403        Consequently, Fristoe and Blum each claimed title to the land
(Tex.App.—Houston [1st Dist.] 1994, writ denied); Green             that originated with the State. In discussing the property's
Int'l, Inc. v. State, 877 S.W.2d 428, 432–33 (Tex.App.—             rightful owner, the Court stated “[a] clear understanding of
Austin 1994, writ dism'd by agr.); Courtney v. University of        the relation in which the [S]tate stands to the purchasers in
Texas Sys., 806 S.W.2d 277, 282–83 (Tex.App.—Fort Worth             these contracts will greatly facilitate a proper solution of the
1991, writ denied); Atchison, Topeka & Santa Fe Ry. v. Texas        questions upon which this case depends.” Fristoe, 45 S.W.
State Dep't of Highways and Pub. Transp., 783 S.W.2d 646,           at 999. Despite this avowed goal, this discussion in Fristoe
648 (Tex.App.—Houston [14th Dist] 1989, no writ); Texas             has led to anything but a “clear understanding” of sovereign
Dep't of Human Servs. v. Trinity Coalition, Inc., 759 S.W.2d        immunity in the breach of contract context. Because the
762, 764 (Tex.App.—El Paso 1988), cert. dism'd, 493 U.S.            discussion was not necessary to resolve the issue the Fristoe
1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990); Miller v. Hood,        Court faced, it is dicta.
536 S.W.2d 278, 284 (Tex.Civ.App.—Corpus Christi 1976,
writ ref'd n.r.e.).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

The conflicting courts of appeals, as well as the parties in this   quoted Carr as holding a State's contracts “are interpreted as
case, have tried to fashion the Fristoe dicta into support for      the contracts of individuals are, and the law which measures
each side's respective view of sovereign immunity. Although         individuals' rights and responsibilities measures, with few
one may read parts of Fristoe to support the conflicting views,     exceptions, those of a state whenever it enters into an ordinary
Fristoe taken as a whole, says nothing about whether the State      business contract.” Carr, 26 N.E. at 779. However, Fristoe
waives or retains its sovereign immunity when it contracts          did not include Carr 's language that qualified this passage.
with private citizens.                                              The Carr court stated:

 [10] Fristoe stated that when the State “becomes a suitor                       There is one essential and far-reaching
in its own courts, or a *407 party to a contract with                            difference between the contracts of
citizens, the same law applies to it as under like conditions                    citizens and those of sovereigns; not,
governs the contracts of an individual.” Fristoe, 45 S.W.                        indeed, as to the meaning and effect
at 999. The Fristoe Court relied upon three Texas cases                          of the contract itself, but as to the
for this proposition. See State v. Snyder, 66 Tex. 687, 18                       capacity of the sovereign to defeat
S.W. 106 (1886); State v. Purcell, 16 Tex. 305 (1856);                           the enforcement of its contract. The
State v. Kroner, 2 Tex. 492 (1847). None of these cases                          one may defeat enforcement, but the
involved breach of contract suits against the State or the                       other cannot. This result flows from
sovereign immunity doctrine. These cases stand only for the                      the established principal that a state
unremarkable proposition that “a State or other sovereignty,                     cannot be sued.
when it becomes a litigant in its own courts, must have its
                                                                    Carr, 26 N.E. at 779. Accordingly, Carr cannot stand for
rights determined by the same principles applicable to other
                                                                    the proposition that the State waives immunity from suit by
litigants.” Snyder, 66 Tex. at 700, 18 S.W. 106; Purcell, 16
                                                                    entering into a contract.
Tex. at 309–10 (holding that the State must comply with
statute of limitations like other litigants); Kroner 2 Tex. at
                                                                    Stephens involved a suit by the State for conspiracy, not a
493 (holding the State is not immune from transcript filing
                                                                    suit against the State. Further, the Fristoe Court only quoted
deadlines on appeal). Further, this statement is true, at least
                                                                    from a concurring opinion. Consequently, Stephens neither
with certain exceptions which need not be detailed here (such
                                                                    supports nor contradicts either position. See Stephens, 71
as, the State cannot contract away its police power). See City
                                                                    N.Y. at 549–550.
of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878
(Tex.App.—Fort Worth 1992, writ denied); Pittman v. City
                                                                    Morton involved a bondholder's suit to force local officials
of Amarillo, 598 S.W.2d 941, 945 (Tex.Civ.App.—Amarillo
                                                                    to levy a tax to pay bonds because the State Legislature had
1980, writ ref'd n.r.e.). This statement, however, has nothing
                                                                    required it by statute. Therefore, Morton involved an issue
to do with immunity from suit. To state what happens if the
                                                                    more akin to suits in which an individual sues a State official
State consents to be sued says nothing about whether the State
                                                                    that has not complied with a statute or law. As we discussed
consents to be sued.
                                                                    in Part II of our opinion, this type of suit is allowed without
                                                                    legislative permission. See Director of the Dept. of Agric. &
Fristoe then quoted from three out-of-state opinions. Carr
                                                                    Env't, 600 S.W.2d at 265–66. Consequently, any language in
v. State, 127 Ind. 204, 26 N.E. 778, 779 (1891); People v.
                                                                    Morton on waiver of immunity from suit is dicta and cannot
Stephens, 71 N.Y. 527, 549–50 (1978) (Allen, J., concurring);
                                                                    be used to support an argument that the State either waives
and Morton, Bliss & Co. v. Comptroller Gen., 4 S.C. 430, 448
                                                                    or retains immunity from suit when it contracts with private
(1873). Each of these cases includes language that can be used
                                                                    citizens.
to support or dispute whether the State waives immunity from
suit when it contracts. However, when read together, these
                                                                    While the courts of appeals and the parties here quote Fristoe
cases show only that the Fristoe Court did not intend to speak
                                                                    for the parts they like, when read as a whole, we cannot
on the sovereign immunity issue.
                                                                    read Fristoe as deciding whether the State retains or waives
                                                                    immunity from suit in breach of contract cases. Therefore, it
Carr involved a suit on certificates, similar to bonds, which
                                                                    is simply impossible to base our decision on Fristoe.
the court held that the State was required to pay because the
Legislature had appropriated the funds to pay them. Fristoe



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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                 Accordingly, we expressly overrule any cases that hold to the
                                                                 contrary.
               *408 3. Immunity from Suit

Fristoe aside, this Court has directly and affirmatively
considered this issue without citing Fristoe. The three times                   4. Application of Law to Facts
this Court considered sovereign immunity in the breach of
contract context, we held that the State is immune from suit      [12]    Here, Federal Sign did not receive legislative
arising from breach of contract suits. Missouri Pac. R.R. Co.    permission to sue TSU. Therefore, the State did not waive
v. Brownsville Navigation Dist., 453 S.W.2d 812, 813–14          its immunity from suit and Federal Sign could not maintain
(Tex.1970); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308           a breach of contract suit against TSU. See Missouri Pac.
S.W.2d 838, 839–41 (1958); Herring v. Houston Nat'l Exch.        R.R., 453 S.W.2d at 813; W.D. Haden & Co., 308 S.W.2d
Bank, 114 Tex. 394, 269 S.W. 1031, 1033 (1925).                  at 842. Accordingly, the court of appeals correctly held that
                                                                 sovereign immunity precluded Federal Sign's suit. 1
This Court first considered the sovereign immunity issue in
the breach of contract arena in Herring v. Houston Nat'l Exch.   1       We hasten to observe that neither this case nor the ones
Bank. In Herring, Houston National Exchange Bank sued the
                                                                         on which it relies should be read too broadly. We do not
Texas Prison Commission to recover money that the bank
                                                                         attempt to decide this issue in any other circumstances
alleged the Commission had not paid for the purchase of three            other than the one before us today. There may be other
acres of land. Herring, 269 S.W. at 1031. This Court held: “It           circumstances where the State may waive its immunity
is an attribute of sovereignty, and it is well established and           by conduct other than simply executing a contract so that
generally conceded that the sovereignty cannot be sued in its            it is not always immune from suit when it contracts.
courts without its consent.” 269 S.W. at 1031.

In Haden, the W.O. Haden Company operated under a State              B. Contracts Between The State And Private Citizens
permit to take mudshell from Galveston Bay. When the Game
                                                                 Federal Sign also asserts that, if the State is immune from
& Fisheries Commission of Texas changed the terms of the
                                                                 suit, then any contract the State enters is void because it
permit, W.O. Haden sued for a declaration of its rights under
                                                                 lacks mutuality. Federal Sign argues the contracts are void
what it contended to be a contract. Haden, 308 S.W.2d at 839.
                                                                 because they lack both mutuality of obligation and mutuality
This Court held that a suit “seeking enforcement of contract
                                                                 of remedy.
rights is necessarily a suit against the State which cannot
be maintained without legislative permission.” Haden, 308
S.W.2d at 842.
                                                                                       1. Applicable Law
Then, in Missouri Pacific R.R., Missouri Pacific sought
indemnity from the Brownsville Navigation District for            [13] [14] [15] [16] A contract must be based upon a
its liability in a wrongful death suit under a “written          valid consideration, in other words, mutuality of obligation.
track agreement” with the Brownsville Navigation District.       See Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412
Missouri Pac. R.R., 453 S.W.2d at 813. This Court again          (Tex.1970); Langley v. Norris, 141 Tex. 405, 173 S.W.2d
recognized that the State is generally immune from suit for      454, 458 (1943); Texas Farm Bureau Cotton Ass'n v. Stovall,
breach of contract. However, the Court held that a statute       113 Tex. 273, 253 S.W. 1101, 1105 (1923). Consideration
that provided that the Navigation District could “sue and be     is a bargained for exchange of promises. Roark v. Stallworth
sued” met the legislative permission requirement. Missouri        *409 Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991).
Pac. R.R., 453 S.W.2d at 813.                                    Consideration consists of benefits and detriments to the
                                                                 contracting parties. Roark, 813 S.W.2d at 496. The detriments
 [11] Therefore, when the State contracts with private           must induce the parties to make the promises and the promises
citizens, the State waives only immunity from liability.         must induce the parties to incur the detriments. Roark, 813
However, a private citizen must have legislative consent         S.W.2d at 496. A contract that lacks consideration, lacks
to sue the State on a breach of contract claim. The act of       mutuality of obligation and is unenforceable. See Texas Farm
contracting does not waive the State's immunity from suit.       Bureau, 253 S.W. 1101 at 1105.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676


 [17] [18] Mutuality of remedy is the right of both parties
                                                                               C. LEGISLATIVE CONTROL
to a contract to obtain specific performance. See Adams v.
                                                                               OF SOVEREIGN IMMUNITY
Abbott, 151 Tex. 601, 254 S.W.2d 78, 80 (1952); Langley
v. Norris, 173 S.W.2d at 458; Sanderson v. Sanderson, 130         [22] Lastly, Federal Sign asks this Court to pronounce
Tex. 264, 109 S.W.2d 744, 748 (1938). Unlike a contract          that sovereign immunity does not preclude private citizens
lacking mutuality of obligation, a contract lacking mutuality    from suing the State for breach of contract. Litigants have
of remedy is not illusory and void. See W.D. Haden & Co.,        repeatedly asked this Court to abrogate one or more aspects
308 S.W.2d at 842. Mutuality of remedy does not concern          of the State's sovereign immunity. However, this Court has
contractual formation and does not imply that one party lacks    uniformly held that it is the Legislature's sole province to
a remedy of any kind. See Dobbs, HANDBOOK ON THE                 waive or abrogate sovereign immunity. See Guillory v. Port
LAW OF REMEDIES 49–52 (1973).                                    of Houston Auth., 845 S.W.2d 812, 813 (Tex.), cert. denied,
                                                                 510 U.S. 820, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993); Barr
                                                                 v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978); Lowe v.
              2. Application of Law to Facts                     Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); See
                                                                 also Greenhill, Should Governmental Immunity for Torts be
 [19] Federal Sign promised to build the scoreboards in          Re–Examined, and, If So, by Whom? 31 Tex. B.J. 1036,
exchange for TSU's promise to pay for them. These promises       1070 (1968). Today, we again hold that it is the Legislature's
represented the respective benefits and detriments, or the       province to modify sovereign immunity if it is inclined to do
bargained for exchange, necessary to satisfy the consideration   so and therefore refuse Federal Sign's invitation to undertake
requirement. See Roark, 813 S.W.2d at 496. Accordingly,          that task.
valid consideration supported a binding contract between
Federal Sign and TSU. See Roark, 813 S.W.2d at 496; Texas
Gas Util. Co., 460 S.W.2d at 412–13.
                                                                             IV. OPEN COURTS AND DUE
                                                                            COURSE OF LAW VIOLATIONS
 [20] [21] Mutuality of remedy does not apply here because
specific performance is not an issue. Adams, 254 S.W.2d at       Federal Sign asserts that if sovereign immunity precludes its
80; Langley, 173 S.W.2d at 458. That a private citizen must      breach of contract claim, then applying sovereign immunity
get permission to sue the State for breach of contract has       violates the Texas Constitution's Open Courts and Due
never rendered a State contract illusory in Texas. See W.D.      Course of Law Clauses.
Haden & Co., 308 S.W.2d at 842. “The impotence of private
individuals to enforce through the courts their contractual       [23] Initially, we note that Federal Sign only cited authority
rights against the State, by reason of inability to sue the      supporting its Open *410 Courts argument. TSU argues that
State without its consent, inheres in every such contract.       Federal Sign waived any Due Course arguments because it
This impotence, however, does not affect the binding force       did not cite supporting authority for that argument. We agree
of State obligations; nor does it deprive the Legislature of     that ordinarily failure to brief an argument waives the claimed
the power to delegate to an appropriate agency authority         error. See TEX.R.APP. P. 74(f); Fredonia State Bank v.
to create binding contractual obligations against the State.”    American Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex.1994).
Ferguson v. Johnson, 57 S.W.2d 372, 376 (Tex.Civ.App.—           However, when fact issues are not germane to the issue on
Austin 1933, writ dism'd). Secondly, Federal Sign actually       appeal, and the issue is a law question involving constitutional
has a remedy against TSU—it may sue and recover its              ramifications, we believe the reviewing court should decide
damages, if it first obtains legislative permission to do        the issue on the merits because of the importance to the
so. See generally TEX. CIV. PRAC. & REM.CODE §§                  issue to the State's jurisprudence. See Williams v. Khalaf, 802
107.001–.005. Therefore, the court of appeals correctly held     S.W.2d 651, 658–59 (Tex.1990). Accordingly, we discuss
that a valid and binding contract existed between Federal Sign   Federal Sign's Open Courts and Due Course of Law claims.
and TSU.


                                                                                       A. Open Courts



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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

 [24] [25] The Open Courts provision provides that “[a]ll             1992, writ denied). A claim of denial of due course of law is
courts shall be open, and every person for any injury done            a question of law for the Court's determination. Nelson, 831
him, in his lands, goods, person or reputation, shall have            S.W.2d at 590.
remedy by due course of law.” TEX. CONST. art. I, § 13.
The Open Courts provision affords three distinct protections.         This Court has never directly decided whether requiring
First, courts must actually be open and operating. See Runge          legislative consent to sue on a breach of contract in order
& Co. v. Wyatt, 25 Tex.Supp. 291 (1860). Second, citizens             to waive sovereign immunity to sue is or is not a denial of
must have access to the courts unimpeded by unreasonable              due course of law under the Texas Constitution. However,
financial barriers. See LeCroy v. Hanlon, 713 S.W.2d 335,             decisions interpreting the United States Constitution are
342 (Tex.1986). Third, our law must afford meaningful                 instructive and we turn the United States Supreme Court's
legal remedies to our citizens, so the Legislature may not            decisions for guidance in applying the Due Course of Law's
abrogate the right to assert a well-established common                guarantees under the Texas Constitution.
law cause of action. Texas Ass'n of Bus. v. Air Control
Bd., 852 S.W.2d 440, 448 (Tex.1993); Moreno v. Sterling               The United States Supreme Court has held that where
Drug, Inc., 787 S.W.2d 348, 355–357 (Tex.1990). The Open              Congress, by statute, had expressly granted beneficiaries of
Courts provision “applies only to statutory restrictions of a         insurance policies permission to sue the United States for
cognizable common law cause of action.” Peeler v. Hughes &            benefits, but a subsequent statute repealed all laws granting or
Luce, 909 S.W.2d 494, 499 (Tex.1995); Moreno, 787 S.W.2d              pertaining to the insurance that Congress could not repudiate
at 355–56.                                                            the contract, but it could withdraw consent to *411 the
                                                                      suit. See Lynch v. United States, 292 U.S. 571, 580–82, 54
 [26] Federal Sign's Open Courts argument implicates the              S.Ct. 840, 844, 78 L.Ed. 1434 (1934). In Lynch, beneficiaries
provision's third guarantee—whether sovereign immunity                of insurance policies issued under a federal statute sued
unconstitutionally deprived Federal Sign of a meaningful              for benefits. The statute as originally passed granted the
legal remedy. Federal Sign complains that this Court, by              beneficiaries the right to sue the United States for benefits.
upholding established sovereign immunity law, would violate           A later statute repealed all laws pertaining to the insurance
the Open Courts provision. Federal Sign does not complain             policies. The Supreme Court held:
of any legislative action that prevents it from maintaining its
suit. Because Federal Sign does not challenge a legislative             Contracts between individuals or corporations are impaired
act that abridges a cognizable common law claim, its Open               within the meaning of the Constitution whenever the
Courts challenge is without merit. See Peeler, 909 S.W.2d at            right to enforce them by legal process is taken away or
499.                                                                    materially lessened. A different rule prevails in respect to
                                                                        contracts of sovereigns. The contracts between a Nation
                                                                        and an individual are only binding on the conscience
                                                                        of the sovereign and have no intentions of compulsive
                B. DUE COURSE OF LAW                                    force. They conferred no right of action independent of the
                                                                        sovereign will. The rule that the United States may not be
In its brief, Federal Sign argues that the court of appeals'
                                                                        sued without its consent is all embracing.
opinion, as applied to the facts in this case, denies Federal
Sign its rights under the Due Course of Law provision of our
                                                                      ******
constitution. Federal Sign's assertion is that the doctrine of
sovereign immunity from suit denies Federal Sign its remedy             Although consent to sue was thus given when the policy
under the Due Course of Law provision.                                  issued, Congress retained power to withdraw the consent at
                                                                        any time. For consent to sue the United States is a privilege
 [27] [28] Our Constitution provides that “[n]o citizen of              accorded; not the grant of a property right protected by
this State shall be deprived of life, liberty, property, privileges     the Fifth Amendment. The consent may be withdrawn,
or immunities, or in any manner disinfranchised, except by              although given after much deliberation and for a pecuniary
the due course of the law of the land.” TEX. CONST. art. I,             consideration. The sovereign's immunity from suit exists
§ 19. Due course of law exists to prevent government from               whatever the character of the proceeding or the source of
depriving persons of property without notice and hearing. See           the right sought to be enforced.
Nelson v. Clements, 831 S.W.2d 587, 589 (Tex.App.—Austin



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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                    of the law does not obligate the State to provide judicial
Lynch, 292 U.S. at 580–82, 54 S.Ct. at 844 (citations omitted).     relief from all its actions. It may retain for itself, through its
                                                                    Legislature, the exclusive power to determine its liabilities,
The Court then held that Congress, merely by repudiating its        bound by its conscience. Our Legislature has provided the
contractual obligation had not withdrawn consent to suit and        procedure for consent to sue the State. See TEX. CIV.
that it had not done so otherwise. Lynch, 292 U.S. at 582, 585–     PRAC. & REM.Code, §§ 107.001–005. Federal Sign chose
87, 54 S.Ct. at 844, 846–47. Under those circumstances, the         not to avail itself of such relief. We conclude *412
Court allowed the plaintiffs to sue for benefits.                   the legislative procedures provide sufficient relief and do
                                                                    not deny constitutional due course of law guarantees.
In another case involving gold bonds, a bondholder sued the         Accordingly, we reject Federal's arguments that TSU's
United States as obligor for payment in gold coin as required       sovereign immunity from suit denies it due course of law.
by the bond's terms rather than in currency as required by
a statute passed after the bond issued. See Perry v. United
States, 294 U.S. 330, 346–47, 55 S.Ct. 432, 433, 79 L.Ed. 912
(1935). Chief Justice Hughes' plurality opinion observed that                             V. CONCLUSION
the United States does not, by executing a contract, consent
                                                                    Absent legislative permission to proceed, sovereign
to be sued for its breach. The Court held:
                                                                    immunity precludes Federal Sign's breach of contract suit
  When the United States with constitutional authority makes        against TSU. We expressly disapprove of any court of
  contracts, it has rights and incurs responsibilities similar to   appeals' cases holding to the contrary. We hold that when a
  those of individuals who are parties to such instruments.         contract exists between the State and a private citizen, the
  There is no difference, except the United States cannot be        same law applies to the State as governs the individual's
  sued without its consent.                                         contract. We hold that sovereign immunity from suit without
                                                                    legislative consent applies to contract claims against the
******                                                              State. We hold that applying sovereign immunity from suit
                                                                    to contract claims against the State does not violate either the
  The fact that the United States may not be sued without           Open Courts Provision or the Due Course of Law Provision
  its consent is a matter of procedure which does not               of the Texas Constitution. We hold that it is the Legislature's
  affect the legal and binding character of its contracts.          province to modify, if at all, the sovereign immunity doctrine.
  While the Congress is under no duty to provide remedies           Accordingly, we affirm the court of appeals' judgment.
  to the courts, the contractual obligation still exists and,
  despite infirmities of procedure, remains binding upon the
  conscience of the sovereign.
                                                                    HECHT, Justice, joined by PHILLIPS, Chief Justice,
Perry, 294 U.S. at 352–54, 55 S.Ct. at 435–36 (citations            CORNYN and OWEN, Justices, concurring.
omitted). The Supreme Court has recently cited both Lynch           I concur in the Court's opinion. I write separately for three
and Perry with approval. See United States v. Winstar Corp.,        reasons. First, I wish to make plain that the Court's opinion
518 U.S. 839, ––––, 116 S.Ct. 2432, 2455, 135 L.Ed.2d 964           is limited, despite some occasional broad language. Second,
(1996).                                                             while today's decision is supported by precedent, the Court
                                                                    does not explain why it refuses to depart from that precedent
 [29] We believe we should reach the same conclusion                despite strong arguments that it should do so. The parties,
under our State Constitution. The State's immunity to suit is,      and the public, are owed this explanation. Third, a word
purely as a matter of sovereignty, impervious to due process        should be said in response to the dissent. The dissent would
concerns. Moreover, a party contracting with the State is not       completely abolish immunity although the Legislature has
denied all process, or even due process, but only judicial          not only repeatedly refused to do so but has within the past
process.                                                            few days crafted mediation and administrative procedures to
                                                                    resolve certain contract disputes with the State.
 [30] [31] Federal Sign, as with any other who contracts
with the State, has a remedy—it may seek the Legislature's
consent to sue. Our Constitution's guarantee of due course



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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                   Categorical statements in the Court's opinion must be read
                                                                   in this context. For example, the Court states that “when the
                               I
                                                                   state contracts with private citizens, the state waives only
The immunity issue in this case is a narrow one. It is this:       immunity from liability.” Ante at 406. Later it states: “We
should a court hold that the State, merely by entering into a      hold that sovereign immunity from suit without legislative
contract for goods and services, waives immunity from suit         consent applies to contract claims against the state.” Ante at
for breach of the contract before the other party has tendered     412. These statements do not apply to all contracts—state
performance? That is all we can, and do, decide.                   bonds, for example—or to all circumstances. In short, today's
                                                                   decision does not hold that the State is always immune from
The Court's succinct summary of the facts concerning               suit for breach of contract absent legislative consent; it holds
the parties' dispute omits the following important details         only that the mere execution of a contract for goods and
that limit the legal issue to be decided. Texas Southern           services, without more, does not waive immunity from suit.
University solicited bids for the manufacture and installation
of basketball arena scoreboards to be financed by a corporate
sponsor in exchange for advertisement and concession                                             II
rights. Federal Sign bid $182,506. After several weeks of
negotiations, the Pepsi–Cola Company agreed to be the              I agree with the Court that its decision is supported by Herring
sponsor, and Federal Sign reduced its offer to $158,404.           v. Houston National Exchange Bank, 114 Tex. 394, 269
TSU formally accepted the proposal and instructed Federal          S.W. 1031 (1925), W.D. Haden Co. v. Dodgen, 158 Tex. 74,
Sign to begin work immediately so that the scoreboards             308 S.W.2d 838 (1958), and Missouri Pacific Railroad v.
would be finished as soon as possible. Seven months                Brownsville Navigation District, 453 S.W.2d 812 (Tex.1970).
later, before Federal Sign had delivered anything to TSU,          But we did not grant Federal Sign's application for writ
TSU terminated the agreement and contracted instead with           of error simply to reaffirm past decisions and affirm the
Spectrum Scoreboards and Coca–Cola. Federal Sign sued              court of appeals. Rather, we took the case, while applications
for breach of contract to recover $67,481 lost profits and         for writ of error in two similar cases were pending (Green
$22,840 expenses. At trial, a jury found that TSU breached         International, Inc. v. State, 877 S.W.2d 428 (Tex.App.—
its agreement and that Federal Sign suffered the damages it        Austin 1994), writ granted, 38 Tex. Sup.Ct. J. 404 (March
alleged.                                                           30, 1995), writ dism'd, 39 Tex. Sup.Ct. J. 96 (Nov. 16, 1995)
                                                                   (settled); Firemen's Insurance Co. v. Board of Regents of
These facts are important for two reasons. First, the subject      the University of Texas System, No. 95–0924 (filed Sept.
contract is for goods and services. We do not address whether      19, 1995, 38 Tex. Sup.Ct. J. 1209)), to consider whether the
the State is immune from suit on debt obligations, such as         Court should abolish governmental immunity from suits on
bonds. Second, at the time of TSU's breach (as found by the        contract. The Court does not discuss this issue, except to say
jury), Federal Sign had not performed. To be sure, Federal         that we have repeatedly and recently held that the waiver of
Sign purchased equipment for the contract that it could not        governmental immunity—in the sense of granting consent to
otherwise use and lost profits it had bargained for. But Federal   sue, as opposed to conduct constituting waiver—is a matter
Sign never tendered performance, never performed services          addressed to the Legislature. Ante at 409; City of LaPorte v.
on TSU's property, and never delivered TSU any materials.          Barfield, 898 S.W.2d 288, 291 (Tex.1995); Guillory v. Port
Would the result be different if Federal Sign had already          of Houston Auth., 845 S.W.2d 812, 813 (Tex.1993), cert.
installed the scoreboards and TSU refused to pay the agreed        denied, 510 U.S. 820, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993);
price? Or if TSU had accepted the scoreboards, acknowledged        Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976).
that Federal Sign had fully complied with the contract, but        Federal Sign argues that we should no longer adhere to such
refused to pay the agreed price? Or if TSU refused to pay in       precedents. This argument deserves response; it is, after all,
order to force Federal Sign to make a concession on another        the main argument in the case.
contract? We do not attempt to decide such hypotheticals
today, but they do *413 suggest that the State may waive           There are compelling reasons for this Court to continue
immunity by conduct other than simply executing a contract,        to defer to the Legislature. First, the handling of contract
so that it is not always immune from contract suits.               claims against the government involves policy choices more
                                                                   complex than simply waiver of immunity. Last year the Texas



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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

House of Representatives Committee on Civil Practices
surveyed the law of all the other states and concluded that      One bill that did pass this session shows that the Legislature
Texas had eight options: retain governmental immunity;           continues to assert governmental immunity from contract
waive immunity; waive immunity but exclude awards for            suits while crafting other procedures to resolve contract
attorney fees and consequential damages; waive immunity          disputes with the State. Senate Bill 694, entitled the
but prohibit liens on state property; waive immunity for         Governmental Dispute Resolution Act, to be codified as
claims under a certain amount; adopt an alternative dispute      chapter 2008 of the Government Code, authorizes state
resolution system for all agencies; resolve all claims by        agencies to provide for alternative dispute resolution of
administrative hearing; and create a new special claims          contract disputes. Tex. S.B. 694, 75th Leg., R.S. (1997). The
court or administrative claims board. TEXAS HOUSE OF             bill expressly provides that it “does not waive immunity from
REPRESENTATIVES, INTERIM REPORT TO THE 75TH                      suit”. Id. § 2008.005(a). The bill, which awaits the Governor's
LEGISLATURE 6–8 (1996). The committee's survey of other          signature, demonstrates the complex and competing policies
states' laws shows that most states waive immunity from suit     involved in resolving the State's contract disputes. Simply
on contracts, but that in only five states was that waiver       abolishing immunity cannot accommodate those policies.
by the judiciary. Id. at 18–29. The committee noted that
until 1987 the Legislature freely granted consent to sue on      Second, not all the factors that weigh in determining the
contract claims, but that since then the Legislature has had     State's liability on its contracts can be assessed in a judicial
“to reexamine the financial impact these suits could have        proceeding. Must the State honor all long-term contracts
on the limited resources of the state.” Id. at 9. In four        when they no longer serve the public interest, continuing
legislative sessions from 1989 through 1995, 173 resolutions     to spend tax revenues on matters that no longer benefit
were introduced for consent to sue under chapter 107 of the      the people? If so, then the government's ability to respond
Civil Practice and Remedies Code; only nine were passed.         to changing conditions for the welfare of the people as a
Id. Thus, the Legislature has taken a more active role in        whole is impaired. Moreover, each succeeding administration
determining what claims have sufficient merit that they          may become increasingly bound by the contracts of prior
should be prosecuted.                                            administrations with no way of escape except payment
                                                                 of public resources. Harold J. Krent, Reconceptualizing
The Legislature has repeatedly considered whether to waive       Sovereign Immunity, 45 VANDERBILT L. REV. 1529, 1530
all governmental immunity for contract suits and has refused     (1992). Would state officials be unduly anxious to conform
to do so, although as MOPAC demonstrates, it may have            to judicial policy wishes if they knew that judges could
done so in certain situations, such as by *414 authorizing       determine the State's liability for millions of dollars? See
particular agencies to be sued. MOPAC, 453 S.W.2d at 813.        id. Would the prospect of liability smother policy initiatives
In 1991 two bills were introduced to waive all governmental      based upon truly changed circumstances? See id. at 1530–
immunity for contract actions. Tex. S.B. 1072, 72nd Leg.,        1531. Governmental immunity rests on such concerns and not
R.S. (1991); Tex. H.B. 2154, 72nd Leg., R.S. (1991). They        simply on the archaic idea that “the king can do no wrong”.
did not pass. In 1995 a bill was introduced to require           Such political concerns pertain to the nature of democratic
state agencies to mediate construction contract disputes.        government and cannot be assessed by a jury in a contract
Tex. H.B. 1369, 74th Leg., R.S. (1995). It also did not          suit. They are best determined by the people's representatives
pass. In the legislative session just ended two bills were       in the Legislature.
introduced to waive or modify governmental immunity
for all contract actions. Tex. S.B. 846, 75th Leg., R.S.         Third, even if the Court were to abolish governmental
(1997); Tex. H.B. 2737, 75th Leg., R.S. (1997). Neither was      immunity from contract suits, successful plaintiffs still
reported from committee. Two bills requiring arbitration of      could not be paid without legislative appropriation. Each
prison construction contract disputes were not reported from     appropriation bill passed by the Legislature typically contains
committee. Tex. S.B. 1443, 75th Leg., R.S. (1997); Tex. H.B.     a section on judgments. As an example, the 1995 bill provides
3352, 75th Leg., R.S. (1997). Another bill that, as originally   in part:
introduced, would have waived governmental immunity for
contract actions but, as amended, provided for administrative                 None of the funds appropriated by this
hearings and decisions on most contract disputes also did not                 Act may be expended for payment of
pass. Tex. H.B. 172, 75th Leg., R.S. (1997).                                  any judgment or settlement prosecuted
                                                                              by or defended by the Attorney


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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

             General and obtained against the State                the contract unenforceable? Certainly, the contracts of parties
             of Texas or any state agency, except                  who received legislative consent to sue, sued, and collected
             pursuant to this section or where it                  were enforceable.
             is specifically provided in an item or
             items of appropriation that the funds                 The presumption tacit in the dissent's position is that a party
             thereby appropriated or expenditures                  can obtain justice only in the courts, not in the Legislature.
             therein authorized may be used for the                This view of the Second Department of Government is
             payment of such judgments.                            unwarranted. Though the courts are better suited to resolving
                                                                   factual and legal disputes in contract actions, the Legislature
Act of May 25, 1995, 74th Leg., R.S., ch. 1063, art. IX, §         is better suited to resolving matters of political policy. As
56, 1995 Tex. Gen. Laws 5242, 6097. To abolish immunity            shown above, contract claims against the State can involve
for contract actions would not allow recovery against the          both. The United States Supreme Court observed in Lynch v.
government without its consent.                                    United States, 292 U.S. 571, 580, 54 S.Ct. 840, 844, 78 L.Ed.
                                                                   1434: “ ‘The contracts between a Nation and an individual
Finally, the Legislature has long provided a means of              are only binding on the conscience of the sovereign and
redress for contract claimants against the State by allowing       have no pretensions to compulsive force. They confer no
petitions for consent to sue the State for breach of contract.     right of action independent of the sovereign will.’ ” Accord,
Ten years ago the Legislature formalized the procedure             Perry v. United States, 294 U.S. 330, 346–347, 55 S.Ct. 432,
for such petitions by *415 adopting chapter 107 of the             433, 79 L.Ed. 912 (1935). The same is true of the State
Civil Practice and Remedies Code. It “applies to resolutions       as respects her own courts. Whether to remedy the State's
granting permission to sue the state or any of the agencies        contractual breaches is a matter addressed to the Legislature's
of government that collectively constitute the government of       conscience. The Judicial Department does not possess a
this state, including ... institutions of higher learning”, like   monopoly on conscience. The State may not take property
TSU. TEX. CIV. PRAC. & REM.CODE § 107.001. While                   without compensation, but it may determine how its Branches
the judiciary is better suited to resolve factual and legal        will participate in deciding its contractual disputes.
issues in contract disputes, the Legislature is not incapable
of considering such issues, and is better suited to deciding       Second, a waiver of immunity would not provide the full
the kinds of political issues that also attend claims against      redress the dissent contends is essential for a contract with the
the State. For this Court to invade matters so laden with          State to be enforceable. Even if the State is held liable in a suit
political policy concerns and, by abolishing immunity from         for breach of contract, it cannot be forced to pay the judgment.
suit, to disrupt the procedures the Legislature has fashioned,     The Legislature may simply refuse to appropriate the funds.
would be not only contrary to our precedents but also unsound      There is no reason why requiring legislative consent to
jurisprudence.                                                     sue makes a contract unenforceable but requiring legislative
                                                                   consent to collect does not. The dissent's terse response to this
                                                                   point is: “not relevant”. Post at 418.
                              III
                                                                   The dissenting opinion faults the Court for not explaining
Finally, I must say a word in response to the dissenting           why a waiver of immunity from liability does not entail a
opinion. The main premise of the dissent is that a state           waiver of immunity from suit. Post at 416. Lynch and Perry
contract is not enforceable unless an individual party can sue     both distinguish between the government's obligation and its
the State in its courts. The premise is faulty for two reasons.    consent to suit. This Court in MOPAC stated that “[i]t is
                                                                   necessary to distinguish between two different governmental
First, it simply assumes without explanation that the              immunities: (1) immunity from suit without consent even
Legislature's decision to waive immunity from suit on a            though there is no dispute as to liability of the sovereign;
case-by-case basis rather than across the board is not an          and (2) immunity from liability even though consent to the
adequate remedy for contract claimants. Petitions for waivers      suit has been granted.” 453 S.W.2d at 813. If the State did
of immunity under chapter 107 of the Civil Practice and            not waive immunity from liability by executing a contract,
Remedies Code are, in the dissent's view, no remedy at all.        then it would have no obligation at all to the contracting
Why does legislative consent as a prerequisite to suit render      party for its breach. The State can waive immunity from



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              15
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

liability, thus recognizing its obligation, but retain immunity      permission for the plaintiff to bring suit against the State.
from suit, thereby requiring that the party present its claim        This holding calls into question the enforceability of State
of obligation to the Legislature for its consent to sue. The         contracts and goes counter to the national trend recognizing
dissenting opinion may feel that the State ought to *416             that the State waives sovereign immunity when it enters
waive immunity from suit by executing a contract, but                contracts.
there is nothing in the mere execution of a contract that
expressly waives immunity from suit or is inconsistent with
its assertion.
                                                                          I. Immunity from Liability/Immunity from Suit

The “modern justification” for governmental immunity is not,         The Court notes two different types of sovereign immunity:
as the dissent states, “that suits against the state would deplete   immunity from liability and immunity from suit. 951 S.W.2d
resources of treasury and tax funds necessary to operate the         at 405. The Court then holds that by entering a contract with a
government.” Post at 417. I have explained some of the               private party, the State waives immunity from liability but not
considerations above, and they are not simply pecuniary.             immunity from suit. Id. However, the Court fails to explain
They involve the political structure of government and the           with any clarity why the State waives one but not the other. Cf.
allocation of responsibility among its Branches for resolving        TEX. CIV. PRAC. & REM.CODE § 101.021 et al. (waiving
disputes involving the State.                                        both immunity from liability and immunity from suit for
                                                                     certain tort claims against the State). I agree that the State's
The dissent states: “Today, Federal Sign has lost any recourse       act in entering a contract waives immunity from liability, but
to enforce its contract with the State.” Post at 418. This is        I would also hold that this same act waives immunity from
simply untrue. Federal Sign lost its recourse to enforce its         enforcement of the contract by suit.
contract when it refused to petition the Legislature for consent
to sue under chapter 107 of the Civil Practice and Remedies          The Court primarily relies on three Texas cases to support its
Code.                                                                position that the State does not waive immunity from suit. 951
                                                                     S.W.2d at 408 (citing Herring v. Houston Nat'l Exch. Bank,
By waiving all immunity from suit for contract claims, the           114 Tex. 394, 269 S.W. 1031 (1925); W.D. Haden Co. v.
dissent would disregard the Legislature's clear intent not to        Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); Missouri Pac.
do so, expressed as recently as a few days ago. Tex. S.B. 694,       R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812
75th Leg., R.S. (1997). Apart from the reasons for immunity          (Tex.1970)). However, only Herring, decided over seventy
from suit explained above, the Court should be very reluctant        years ago, touches the issue before the Court today.
to disregard the consistent, recent, unmistakable intent of the
Legislature on the issue of waiver of immunity.                      In Herring, the Houston National Exchange Bank sued the
                                                                     Texas Prison Commission for money owed under a contract.
Finally, the dissent states: “Today, the Court holds that the        Herring, 269 S.W. at 1031. The Court concluded that such
State cannot be sued for its breach of contract unless the           a suit against the State could not be maintained without the
Legislature gives permission for the plaintiff to bring suit         State's consent. Id. at 1032. The Court conceded that Houston
against the State.” Post at 418. The suggestion that the Court's     National “should be accorded a hearing before a tribunal
holding is a new idea is incorrect. One hundred fifty years ago      capable of passing upon the legal issues involved, to wit,
the Court stated that “no state can be sued in her own courts        a court of competent jurisdiction,” but then concluded that
without her consent, and then only in the manner indicated by         *417 “the fixing of the governmental policy in this regard
that consent.” Hosner v. DeYoung, 1 Tex. 764, 769 (1847).            rests with the Legislature.” Id. at 1032–33. Regardless, the
What the Court does today is adhere to one and one-half              Court left open the possibility that a government agency,
centuries of consistent precedent.                                   performing extra-governmental functions and existing for
                                                                     extra-governmental purposes, could be sued for breach of
                                                                     contract. Id. at 1033. Notably, none of the parties argued, as
ENOCH, Justice, joined by SPECTOR and ABBOTT,                        is argued today, that the State's act in entering the contract
Justices, dissenting.                                                waived its immunity from suit.
Today, the Court holds that the State cannot be sued for its
breach of contract unless the Legislature independently gives


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Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

Thirty years after Herring, this Court decided W.D. Haden         Analysis and Some Proposed Changes, 23 SW. L.J. 341,
Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958). In             341 (1969); Louis L. Jaffe, Suits Against Governments and
Haden, the W.D. Haden Co. sued the Game and Fisheries             Officers: Sovereign Immunity, 77 HARV. L. REVV. 1, 1
Commission for changing the terms of its state permit to          (1963). The modern justification for sovereign immunity
remove mudshell from Galveston Bay. Haden, 308 S.W.2d             is that suits against the state would deplete resources of
at 839. The main issue in Haden was whether Haden was             treasury and tax funds necessary to operate the government.
actually suing the State within the meaning of the sovereign      See Elizabeth K. Hocking, Federal Facility Violations of
immunity doctrine. Id. The Court concluded that Haden's suit      the Resource Conservation and Recovery Act and the
to determine its rights under the permit was a suit against       Questionable Role of Sovereign Immunity, 5 ADMIN. L.J.
the State. Id. at 840–41. Both parties and the Court assumed      203, 211 (1991) (“Sovereign immunity protects the public
that Haden could not bring suit against the State without         fisc, and, therefore, the public welfare by limiting assaults
legislative permission. No one argued, and the Court did not      on the public fisc.”). Because the Legislature appropriates,
address, whether the State's act of entering a contract waived    in advance, sufficient funds to meet the State's contractual
its immunity from suit.                                           obligations, it would appear that the modern justification for
                                                                  sovereign immunity is without merit in this context.
Finally, inMOPAC, this Court held that a statute enabling a
state agency to “sue or be sued” expressly waived the State's     I note that Justice Hecht discusses additional political
immunity from suit. Missouri Pac. R.R., 453 S.W.2d 812, 813       and financial concerns underlying the sovereign immunity
(Tex.1970). MOPAC did not involve the issue presented in          doctrine. See 951 S.W.2d at 414 (Hecht, J., concurring).
this case of whether by its act in entering the contract, the     However, many, if not all, of these political and financial
State waived its immunity from suit. Thus, the Court relies       concerns can be satisfied through the legislative appropriation
on three Texas cases, none of which was asked to address the      process.
principal issue presented today.


                                                                                           III. Waiver
                  II. Sovereign Immunity
                                                                  The Court concedes that the State, by entering a contract,
The Court defers to the Legislature and refuses to allow          waives its immunity from *418 liability. In fact, the Court
Federal Sign to sue the State for its breach of contract claim.   holds only that the State is immune from suit. Nevertheless,
However, I contend that the better approach would be to hold      the Court's holding renders the State's contract with TSU
that the State, by entering a contract with a private party,      unenforceable.
waives its sovereign immunity, including its immunity from
suit.                                                             In our modern society, commercial entities and individuals,
                                                                  as well as our local, state, and federal government, contract
The doctrine of sovereign immunity is a common law                with other parties every day. TSU could not function
creation. See Hosner v. DeYoung, 1 Tex. 764, 769 (1847)           without countless day-to-day contractual dealings with
(adopting the doctrine of sovereign immunity without              private parties. TSU expects these parties to honor their
citation). Despite its common law roots, issues of sovereign      obligations, and it can and does seek redress when they fail
immunity are generally addressed by the Legislature.              to do so. Similarly, these parties expect TSU to honor its
University of Texas Medical Branch v. York, 871 S.W.2d            obligations and to have recourse when it fails to do so.
175, 177 (Tex.1994) (citing Lowe v. Texas Tech Univ., 540
S.W.2d 297, 298 (Tex.1976)). To waive sovereign immunity,         Specifically, the Legislature granted TSU authority to enter
the Legislature must use clear and unambiguous language.          into contracts for permanent improvements such as the
York, 871 S.W.2d at 177 (citing Duhart v. State, 610 S.W.2d       construction of a scoreboard. See TEX. EDUC.CODE §
740, 742 (Tex.1980)).                                             51.907 (authorizing competitive bidding for contracts for the
                                                                  construction of permanent improvements at institutions of
The concept of sovereign immunity derives from the ancient        higher education). Unquestionably, the Legislature intended
belief that “the King can do no wrong.” See Glen A. Majure        for TSU to enter into valid and enforceable contracts.
et al., The Governmental Immunity Doctrine in Texas—An



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           17
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

A valid contract exists when each party promises an                contract unenforceable. See RESTATEMENT (SECOND)
obligation, and such promise is enforceable by law. 1              OF CONTRACTS § 8 cmt. c (1979) (recognizing that “where
SAMUEL WILLISTON, A TREATISE ON THE LAW OF                         the only direct remedy is by legislative approval of a private
CONTRACTS § 1 (4th ed.1990). Today, Federal Sign has               bill or by unreviewable administrative action, the contract is
lost the right to enforce by suit its contract with the State.     within the present definition of unenforceable contracts”). In
This result is undesirable and ignores fundamental tenets of       my view, the more reasoned approach would be for the Court
contract law.                                                      to carry its waiver of liability immunity determination to its
                                                                   logical conclusion: the Legislature, by authorizing TSU to
The Court argues that Chapter 107 of the Civil Practice            enter into contracts, intended the contracts to be enforceable
and Remedies Code provides a remedy to private parties.            and waived both the State's immunity from liability and
951 S.W.2d at 409; see TEX. CIV. PRAC. & REM.CODE                  immunity from suit for breach of contract claims. See George
§§ 107.001–.005 (allowing a private party to petition the          & Lynch, Inc. v. State, 197 A.2d 734, 736 (Del.1964); *419
Legislature for permission to sue the State); but see TEXAS        Pan–Am Tobacco Corp. v. Department of Corrections, 471
HOUSE OF REPRESENTATIVES, INTERIM REPORT TO                        So.2d 4, 5 (Fla.1985); V.S. DiCarlo Constr. Co. v. State, 485
THE 75TH LEGISLATURE 9 (1996) (noting that only six                S.W.2d 52, 54 (Mo.1972) (all recognizing that invoking the
percent of the requests to sue have been granted in the            State's sovereign immunity, including immunity from suit,
past eight years). Admittedly, requiring legislative consent to    renders a contract invalid and holding that the Legislature's
sue does provide the Legislature an opportunity to resolve         authorizing the State to enter valid contracts has waived
matters of public policy. But, as I previously mentioned, these    the State's immunity from liability and suit for breach of
political concerns may also be resolved through the legislative    contract).
appropriation process.
                                                                   The Court's holding also runs counter to the nationwide
The issue here is whether a private party has recourse to          trend recognizing that states, through contracting, waive
enforce by suit its contract with the State and to determine       immunity from suit for breach of contract claims. In fact,
the amount of the State's liability, if any. The concurrence       the majority of states does not permit sovereign immunity
acknowledges that “the courts are better suited to resolving       as a defense against private parties seeking redress from
factual and legal disputes in contract actions.” 951 S.W.2d        the State for breach of contract. I realize that not all of
at 415 (Hecht, J., concurring). Furthermore, such disputes         these states allow private parties to litigate their claims
should be resolved free from the political considerations          in general jurisdiction courts. For example, in 1855, the
that the concurrence recognizes accompany the Legislature's        federal government established a Court of Claims for the
decision to permit suit.                                           sole purpose of hearing breach of contract claims against
                                                                   the United States. See 28 U.S.C. §§ 171, 1491. Several
The concurrence argues that sovereign immunity should              states have adopted a similar approach. See ARK.CODE §§
prohibit suit because even if we were to conclude that the         19–10–201, 19–10–204 (creating a state claims commission
State waives suit immunity by entering into a contract,            to hold an abbreviated trial for breach of contract claims
plaintiffs could not be assured of obtaining their judgments       against the State); 705 ILL. COMP. STAT. 505/8 (conferring
without legislative appropriation. 951 S.W.2d at 414 (Hecht,       on the State Court of Claims exclusive jurisdiction to hear
J., concurring). I simply point out that whether the Legislature   and determine all claims against the state founded upon
ultimately appropriates the funds necessary to satisfy a           any contract entered into with the state); N.Y. CT. CL.
judgment is not relevant to the issue of whether the               ACT § 9 (conferring on the Court of Claims jurisdiction
Legislature has waived sovereign immunity. See Texas Dep't         to hear breach of contract claims brought against the state);
of Human Servs. v. Green, 855 S.W.2d 136, 145 (Tex.App.—           OHIO REV.CODE § 2743.02(A)(1) (providing the Court of
Austin 1993, writ denied) (concluding that the Whistleblower       Claims jurisdiction to determine the liability of the state for
Act waived the State's immunity from suit and liability            breach of contract claims); 72 PA. CONS.STAT. § 4651–
but noting that the plaintiff still had to seek a legislative      1 (creating Board of Claims to arbitrate breach of contract
appropriation to recover the damages awarded to him).              claims against the Commonwealth); TENN.CODE § 9–8–
                                                                   307(a)(1)(L) (providing the Tennessee Claims Commission
All things considered, the Court's conclusion that the State       jurisdiction to determine actions for breach of written contract
retains sovereign immunity from suit renders Federal Sign's        between claimant and state); W. VA.CODE §§ 14–2–4, 14–



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            18
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (1997)
121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J. 676

                                                                     STAT. § 41.031; N.H. REV. STAT. § 491:8; N.M. STAT.
2–13 (establishing a court of claims with jurisdiction to hear
                                                                     § 37–1–23; N.Y. CT. CL. ACT § 8; N.D. CENT.CODE §
breach of contract claims brought against the state).
                                                                     32–12–02; OHIO REV.CODE § 2743.02(A)(1); OR. REV.
                                                                     STAT. § 30.320; 72 PA. CONS.STAT. § 4651–1; R.I. GEN.
However, a significant number of states have opened their
                                                                     LAWS § 37–13.1–1; TENN.CODE § 9–8–307(a)(1)(L); S.D.
courts to hear breach of contract claims against the State.
                                                                     CODIFIED LAWS §§ 21–32–2, 21–32–10; UTAH CODE §
Many of these states have judicially recognized the State's
                                                                     63–30–5; WASH. REV.CODE § 4.92.010; W. VA.CODE §§
waiver of sovereign immunity, including immunity from suit,
                                                                     14–2–4, 14–2–13; WYO. STAT. § 1–39–104. In fact, only
when the State enters a contract. See State Highway Dep't v.
                                                                     two states provide no relief for breach of contract claims
Milton Constr. Co., 586 So.2d 872, 875 (Ala.1991); Souza
                                                                     against the state other than legislative approval of a private
& McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, 20
                                                                     bill. See VT. STAT. tit. 12, § 5601 (statute waiving tort
Cal.Rptr. 634, 370 P.2d 338, 339 (1962); Ace Flying Serv.,
                                                                     liability does not apply to any claim for “damages caused by
Inc. v. Colorado Dep't of Agric., 136 Colo. 19, 314 P.2d
                                                                     the fiscal operations of any state officer or department”); WIS.
278, 280 (1957); George & Lynch, Inc. v. State, 197 A.2d
                                                                     STAT. § 16.007 (establishing a Claims Board to hear breach
734, 736 (Del.1964); Pan–Am Tobacco Corp. v. Department
                                                                     of contract claims against the state with the only remedy of
of Corrections, 471 So.2d 4, 5 (Fla.1985); Regents of Univ.
                                                                     proposing a private bill to the legislature).
Sys. v. Blanton, 49 Ga.App. 602, 176 S.E. 673, 675 (1934);
Grant Constr. Co. v. Burns, 92 Idaho 408, 443 P.2d 1005,
                                                                     Perhaps all these other States recognize the inherent problems
1010 (1968); Kersten Co. v. Department of Social Servs.,
                                                                     of concluding that sovereign immunity precludes suits on
207 N.W.2d 117, 120 (Iowa 1973); J.A. Sullivan Corp. v.
                                                                     contracts. Notably, the concurrence would carefully narrow
Commonwealth, 397 Mass. 789, 494 N.E.2d 374, 377 (1986);
                                                                     the Court's holding to leave open the possibility of suit against
Hersey Gravel Co. v. State, 305 Mich. 333, 9 N.W.2d 567,
                                                                     the State by private parties who have tendered performance,
569 (1943); State Highway Comm'n v. Wunderlich, 194 Miss.
                                                                     performed services on State property, delivered materials to
119, 11 So.2d 437, 438 (1943); V.S. DiCarlo Constr. Co. v.
                                                                     the State, or loaned the State money. See 951 S.W.2d at 412
State, 485 S.W.2d 52, 55 (Mo.1972); Meens v. State Bd. of
                                                                     (Hecht, J., concurring).
Educ., 127 Mont. 515, 267 P.2d 981, 984–85 (1954); Smith
v. State, 289 N.C. 303, 222 S.E.2d 412, 423–24 (1976); State
                                                                     This Court had the opportunity to align this State with the vast
Bd. of Pub. Affairs v. Principal Funding Corp., 542 P.2d 503,
                                                                     majority of other states in permitting suits against the State
505–06 (Okla.1975); Kinsey Constr. Co. v. South Carolina
                                                                     for breach of contract claims. However, the Court declined
Dep't of Mental Health, 272 S.C. 168, 249 S.E.2d 900, 903
                                                                     the opportunity, leaving Texas in the distinct minority.
(1978); Wiecking v. Allied Med. Supply Corp., 239 Va. 548,
391 S.E.2d 258, 261 (1990). Other states have judicially
abolished sovereign immunity in the breach of contract
context. See Stone v. Arizona Highway Comm'n, 93 Ariz. 384,                               IV. CONCLUSION
381 P.2d 107, 109 (1963); Brown v. Wichita State Univ., 217
Kan. 279, 540 P.2d 66, 84–86 (1975); Todd v. Board of Educ.          Today the Court holds that the State waives just immunity
Lands and Funds, 154 Neb. 606, 48 N.W.2d 706, 710 (1951);            from liability when it enters a contract—a decision that can
P. T. & L. Constr. Co. v. Commissioner, Dep't of Transp.,            only be described as a catch–22. According to the Court, the
60 N.J. 308, 288 A.2d 574, 578 (1972). And for a large               State can be liable for its breach of contract, but it cannot be
number of states, the issue of waiver is moot because their          held liable.
legislatures have statutorily waived or abolished sovereign
immunity for breach of contract claims. See ALASKA STAT.             I respectfully dissent.
§ 09.50.250; ARK.CODE §§ 19–10–201–210; CONN. GEN.
STAT. § 4–61(a); HAW. REV. STATT. § 661–1; 705 ILL.
                                                                     All Citations
COMP. STATT. 505/8; IND.CODE § 34–4–16–1.1; KY.
REV. STAT. § 45A.245; LA. CONST. art. 12, § 10(A); ME.               951 S.W.2d 401, 121 Ed. Law Rep. 394, 40 Tex. Sup. Ct. J.
 *420 REV. STAT. tit. 5 § 1510–A; MD.CODE, STATE                     676
GOV'T § 12–201(a); MINN. STAT. § 3.751; NEV. REV.

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               19
Hamilton County v. Cooper, Not Reported in S.W.3d (2007)
2007 WL 2774166

                                                                 Pruitt Ashworth, Steven E. Clark, Clark & Associates, Dallas,
                                                                 for Appellant.
                 2007 WL 2774166
   Only the Westlaw citation is currently available.             Jay Sandon Cooper, Plano, pro se.
         SEE TX R RAP RULE 47.2 FOR                              Before Justices       WHITTINGTON,           WRIGHT,        and
   DESIGNATION AND SIGNING OF OPINIONS.                          FITZGERALD.
             MEMORANDUM OPINION
              Court of Appeals of Texas,
                        Dallas.                                                  MEMORANDUM OPINION

          HAMILTON COUNTY, Hamilton                              Opinion by Justice WRIGHT.
    Independent School District, City of Hamilton,
                                                                  *1 Hamilton County, Hamilton Independent School
      Hamilton Hospital District, and Hamilton                   District, City of Hamilton, Hamilton Hospital District, and
        County Appraisal District, Appellants                    Hamilton County Appraisal District bring this interlocutory
                         v.                                      appeal complaining of the trial court's issuance of a temporary
          Jay Sandon COOPER, Appellee.                           injunction. While the interlocutory appeal has been pending,
                                                                 the district court rendered a final judgment in the case.
           No. 05–07–00307–CV. | Sept. 25,                       If, while on the appeal of the granting or denying of the
   2007.     | Rehearing Overruled Nov. 20, 2007.                temporary injunction, the trial court renders final judgment,
                                                                 the case on appeal becomes moot. Isuani v. Manske–Sheffield
On Appeal from the 192nd Judicial District Court, Dallas
                                                                 Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex.1991).
County, Texas, Trial Court Cause No. 05–11916–K, Craig
                                                                 Accordingly, we dismiss this appeal as moot.
Smith, J.

Attorneys and Law Firms
                                                                 All Citations
F. Duane Force, Edward Lopez, Jr., James Edward Pritchard,
                                                                 Not Reported in S.W.3d, 2007 WL 2774166
Austin, Thomas G. Yoxall, Locke Liddell & Sapp LLP, W.

End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Heard v. Houston Post Co., 684 S.W.2d 210 (1984)
11 Media L. Rep. 1359


                                                                  [2]   Courts
                    684 S.W.2d 210                                           Previous Decisions as Controlling or as
                Court of Appeals of Texas,                              Precedents
                  Houston (1st Dist.).
                                                                        Attorney General's opinions construing Open
            Sheriff Jack HEARD, Appellant,                              Records Act are not binding on courts, but are
                           v.                                           to be given great weight because legislature has
                                                                        required a written opinion when a determination
           The HOUSTON POST COMPANY
                                                                        is requested from Attorney General. Vernon's
           d/b/a the Houston Post, Appellee.
                                                                        Ann.Texas Civ.St. art. 6252–17a.
           No. 01–84–00393–CV. | Dec. 27,
                                                                        7 Cases that cite this headnote
       1984. | Rehearing Denied Jan. 24, 1985.

Sheriff appealed from a permanent injunction issued by            [3]   Records
the 234th District Court, Harris County, Ruby Sondock, J.,                  Investigatory or Law Enforcement Records
ordering him to make access to or a copy of an offense                  Although sheriff's brief outlined steps in criminal
report available to newspaper whenever requested pursuant               justice system, the Texas Open Records Act did
to newspaper's statutory rights under Open Records Act. The             not preclude disclosure of certain portions of an
Court of Appeals, Doyle, J., held that: (1) the Act did not             offense report sought by newspaper, since there
exclude portions of police offense report from disclosure to            was nothing specific in sheriff's brief to indicate
public; (2) sheriff was not precluded from filing an appeal             that litigation was reasonably anticipated with
bond on basis of statutory exemption for certain acts of                respect to those items. Vernon's Ann.Texas
officers and employees, since the exemption did not apply to            Civ.St. art. 6252–17a, § 3(a)(3).
newspaper's action seeking access to information wrongfully
and without justification denied them by sheriff; and (3) trial         2 Cases that cite this headnote
court should have ordered sheriff to release complainant's
name to newspaper along with other portions of sheriff's
                                                                  [4]   Records
offense report.
                                                                            Persons Entitled to Disclosure; Interest or
                                                                        Purpose
As reversed and modified, judgment affirmed.
                                                                        Although the press has no constitutional
                                                                        right to have access to particular government
                                                                        information different from or greater than that
 West Headnotes (8)                                                     accorded the public generally, such would not
                                                                        preclude newspaper from receiving copy of
                                                                        police officer's offense report, since newspaper
 [1]     Records
                                                                        was not seeking a special right of access, but
             Investigatory or Law Enforcement Records
                                                                        the same access as general public to information
         Open Records Act did not exclude from
                                                                        about crime in the community.
         disclosure to public those portions of police
         offense report containing information as to                    Cases that cite this headnote
         offense committed, location of crime, premises
         involved, time of occurrence, property involved,
                                                                  [5]   Records
         vehicles involved, description of weather,
                                                                            Judicial Enforcement in General
         detailed description of offense in question,
         and names of investigating officers. Vernon's                  Sheriff failed to present facts or law which would
         Ann.Texas Civ.St. art. 6252–17a.                               require finding that information in a sheriff's
                                                                        offense report already held to be public should
         Cases that cite this headnote                                  not be disclosed to newspaper.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Heard v. Houston Post Co., 684 S.W.2d 210 (1984)
11 Media L. Rep. 1359


        Cases that cite this headnote                         Before DOYLE, BASS and BULLOCK, JJ.


 [6]    Appeal and Error
             States, Political Divisions, Boards, and                                  OPINION
        Officers
                                                              DOYLE, Justice.
        Statutory exemption from filing bond for appeal
        of liability of a political subdivision for certain   This is an appeal from a permanent injunction against Sheriff
        acts of officers and employees was inapplicable       Jack Heard (the Sheriff) ordering him to make available to
        in an action for temporary injunction not             the Houston Post (the Post) access to or a copy of the Offense
        based upon allegations of proof of negligence.        Report whenever the Post requests it pursuant to its statutory
        Vernon's Ann.Texas Civ.St. art. 6252–19b.             rights under the Texas Open Records Act.

        Cases that cite this headnote                         On April 12, 1984, the Houston Post reported allegations
                                                              that four Harris County Sheriff's Deputies had brutalized
 [7]    Appeal and Error                                      Richard Allen Brittain during his arrest on April 9. The
             States, Political Divisions, Boards, and         Post requested from the Sheriff's office on April 12 a
        Officers                                              copy of the offense report on Brittain's arrest. The Sheriff's
                                                              office denied the request, contending that the report was
        Sheriff was not precluded from filing an appeal
                                                              excepted from disclosure by the Texas Open Records Act,
        bond on basis of statutory exemption for certain
                                                              Tex.Rev.Civ.Stat.Ann. art. 6252–17a (Vernon Supp.1984).
        acts of officers and employees, since exemption
        did not apply to newspaper's action seeking
                                                              On April 13, 1984, the Houston Post requested and was
        access to information wrongfully and without
                                                              granted a temporary injunction, which ordered Sheriff Heard
        justification denied them by sheriff. Vernon's
                                                              to provide the newspaper with a copy of the first page
        Ann.Texas Civ.St. art. 6252–19b.
                                                              of Brittain's offense report. A show cause hearing for a
        Cases that cite this headnote                         temporary injunction was originally scheduled for April 23,
                                                              1984. Both parties agreed that the submissions at this hearing
                                                              would be for an application for a permanent injunction,
 [8]    Records
                                                              because the Sheriff indicated he would deny future requests
            Investigatory or Law Enforcement Records
                                                              for similar offense report information in all cases.
        Trial court should have ordered sheriff to release
        complainant's name to newspaper along with            On May 1, 1984, the court signed a permanent injunction
        other portions of sheriff's offense report, since     ordering the Sheriff to provide the Post, within three hours
        such information was not protected by an              of its request, a copy of the Sheriff's Department offense
        exception to the Open Records Act. Vernon's           report containing the following information: 1) the offense
        Ann.Texas Civ.St.art. 6252–17a, § 3(a)(8).            committed; 2) the location of the crime; 3) the premises
                                                              involved; 4) the time of the occurrence; 5) the property
        Cases that cite this headnote
                                                              involved; 6) the vehicles involved; 7) the description of
                                                              the weather; 8) a detailed description of the offense in
                                                              question; and, 9) the names of the investigating officers. The
                                                              identification and description of the complainant was ordered
Attorneys and Law Firms                                       released only in cases not under active investigation; in cases
                                                              where the complainant is also the victim of the offense
*211 Mike Driscoll, County Atty. for Harris County, Molly
                                                              committed; in cases where the identification and description
D. Shannon, Bill E. Lee, Harris County Asst. County Attys.,
                                                              of the complainant are evident from the abovementioned
Houston, for appellant.
                                                              nine categories; and in all other cases except where there
A. Frank Koury, Alton J. Hall, Jr., Fulbright & Jaworski,     is an active investigation and the Sheriff's Department
Houston, for appellee.                                        applies to a court and asserts a reasonable likelihood of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Heard v. Houston Post Co., 684 S.W.2d 210 (1984)
11 Media L. Rep. 1359

serious physical harm to the complainant if the complainant's                   may be, a party, or to which an
identity or description were *212 revealed to other than law                    officer or employee of the state or
enforcement agencies.                                                           political subdivision, as a consequence
                                                                                of his office or employment, is or
On May 23, 1984, the Houston Post filed a motion to modify                      may be a party, that the attorney
judgment, objecting to that portion of the judgment that                        general or the respective attorneys of
limited the release of the identity and description of the                      the various political subdivisions has
complainant. The motion was denied.                                             determined should be withheld from
                                                                                public inspection;
On May 25, 1984, Sheriff Heard filed his notice of appeal
without an appeal bond, pursuant to Tex.Rev.Civ.Stat.Ann.           Section 7 of the Act provides that the Attorney General
art. 6252–19b (Vernon Supp.1984). However, the docket               make a determination as to the status of information within
sheet of the court shows a $1,000 bond filed on June 11, 1984,      the exceptions, when a governmental body requests a
apparently fixed by the court.                                      determination that has not previously been made. This section
                                                                    also states that if a decision is not requested, there is a
Appellant now brings two points of error. Appellee has              presumption that the information is public. The Attorney
filed a cross-point based on its motion to modify judgment.         General's opinions construing the Open Records Act are
Appellant's second point, objecting to the issuance of the          not binding on the courts, but are to be given great weight
permanent injunction, will be discussed first.                      because the legislature has required a written opinion when a
                                                                    determination is requested from the Attorney General. City of
In his second point of error, appellant urges that it was error     Houston v. Houston Chronicle Publishing Co., 673 S.W.2d
for the trial court to order the Sheriff to deliver a copy of       316, 322 (Tex.App.—Houston [1st Dist.] 1984, no writ)
an offense report to the Post and to deliver future copies          (Chronicle II ).
when requested. Appellant's brief presents two arguments to
support this allegation.                                             [3] The opinions construing sec. 3(a)(3) indicate that this
                                                                    exception applies only when a lawsuit has been filed or if
 [1] His first argument is that sec. 3(a) of the Texas Open         litigation is reasonably anticipated. Op.Atty.Gen., No. ORD–
Records Act excludes the offense report from disclosure to          350 (1983); No. ORD–288 (1981); No. ORD–143 (1976).
the public. It is to be noted that only portions of the offense     Although appellant's brief outlines the steps in the criminal
report were ordered disclosed and not the entire report. These      justice system, there is nothing specific to indicate that
portions are public information as determined by the decision       litigation is reasonably anticipated with respect to these nine
in Houston Chronicle Publishing Co. v. City of Houston, 531         items.
S.W.2d 177, 187 (Tex.Civ.App.—Houston [14th Dist] 1975,
writ ref'd n.r.e.), 536 S.W.2d 559 (Tex.1976) (Chronicle I ).       Appellant next relies on sec. 3(a)(8):
The information requested by the Houston Post is the same
                                                                                (8) records of law enforcement
information with which Chronicle I was concerned. Eighteen
                                                                                agencies that deal with the detection
exceptions are listed in sec. 3(a), and appellant relies on three
                                                                                and investigation of crime and the
of them. The exception found in sec. 3(a)(1) is based on
                                                                                internal records and notations of such
confidentiality. The appellant brings forward this exception
                                                                                law enforcement agencies which are
for the first time on appeal. Arguments raised for the first time
                                                                                maintained *213 for internal use in
on appeal are not properly preserved and cannot be considered
                                                                                matters relating to law enforcement;
by an appellate court. Gray-Taylor, Inc. v. Tennessee, 587
S.W.2d 668, 671 (Tex.1979).                                         Appellant also relies on Ex parte Pruitt, 551 S.W.2d
                                                                    706 (Tex.1977). This case centered on an active arson
[2] The next exception appellant has relied on is sec. 3(a)(3):     investigation, and appellant mistakenly concludes that the
                                                                    district court could not order the production of records
             (3) information relating to litigation
                                                                    because of the investigation. The court could not order the
             of a criminal or civil nature and
                                                                    production of detailed, investigatory records. However, the
             settlement negotiations, to which the
                                                                    court could under the release of basic information, similar to
             state or political subdivision is, or


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Heard v. Houston Post Co., 684 S.W.2d 210 (1984)
11 Media L. Rep. 1359

that in Chronicle I. Ex parte Pruitt, 551 S.W.2d at 709–10.         agencies, and construction of the Texas Open Records
Appellant disapproves of the decision in Chronicle I because        Act and the constitutional right of access to information
it holds the offense report was excluded by sec. 3(a)(8), but       concerning crime in the community are in issue. Appellant
then balances the competing interests and orders information        has failed to present facts or law that would require a finding
from the report released.                                           that information already held to be public should not be
                                                                    made public in this case. Appellant's second point of error is
Opinions of the attorney general construing sec. 3(a)(8)            overruled.
indicate that information is protected by this exception if there
is a showing that release of the information would unduly           Appellant, in his first point of error, contends that the trial
interfere with law enforcement. Op.Atty.Gen., No. ORD–252           court erred in requiring him to file an appeal bond. In
(1980); No. ORD–333 (1983).                                         order to perfect an appeal, Rule 354 of the Texas Rules of
                                                                    Civil Procedure requires a cost bond payable to the appellee
Appellant, however, does make an argument, which is                 or a deposit with the clerk. The rule allows for statutory
not supported by any law, that releasing portions of the            exemptions.
offense report may result in harm to the individual under
investigation.                                                      Appellant bases his claim of statutory exemption on
                                                                    Tex.Rev.Civ.Stat.Ann. art. 6252–19b (Vernon Supp.1984).
In discussing the potential for massive and unjustified damage      This Act, “an Act relating to the liability of a political
to the individual, the court in Chronicle I found that the          subdivision for certain acts of officers and employees,” is
right of privacy is not an unlimited one and that newsworthy        applicable where damages arise out of a cause of action for
occurrences may justify the invasion of the lives of private        negligence. In such a cause of action, no cost bond is required.
citizens. Chronicle I, 531 S.W.2d at 188.
                                                                     [6] [7] Appellant contends that the cause of action herein
 [4] Appellant's second argument is that the press has no           is one for negligence. This *214 argument is not supported
constitutional right to have access to particular government        by the facts. Where a temporary injunction is not based upon
information. The case relied on is Houchins v. KQED, Inc.,          any allegations or proof of negligence, art. 6252–19b has been
438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) and                held inapplicable. Attorney General Opinion No. MW–158
involved a broadcaster seeking access to inmates in a county        (1980). Article 6252–19b specifically distinguishes a wilful
jail. The holding in that case was that “the media have no          or wrongful act from negligence. In its original pleading,
special right of access ... different from or greater than that     the Post sought “access to the information wrongfully and
accorded the public generally.” Id. at 16, 98 S.Ct. at 2597. In     without justification denied them by defendant.” Thus, the
a concurring opinion, it was noted that “[f]orces and factors       statute clearly is not applicable. Appellant's first point of error
other than the Constitution must determine what government-         is overruled.
held data are to be made available to the public.” Id. The
Post is not seeking a special right of access, but the same         In appellee's cross-point, it complains that the trial court was
access due the general public to information about crime in         bound to fully follow the decision in Chronicle I and order
the community.                                                      the release of the complainant's name in all cases. In our case,
                                                                    the trial court created four categories of cases in which the
Appellant uses a federal statute, which is similar to the           identification and description of the complainant should be
Texas statute, and the cases construing the federal statute to      released:
further support its position for denying access to government
records. Appellant failed to note the section in the Freedom                     (a) in all cases not under active
of Information Act which upholds disclosing portions of                          investigation; (b) in all cases where
records. See Industrial Foundation of the South v. Texas                         the complainant is also the victim
Industrial Board, 540 S.W.2d 668 (Tex.1976).                                     of the offense committed; (c) in
                                                                                 all cases where the identification
 [5] Appellant contends Chronicle I is inapplicable to this                      and description of the complainant
case. We disagree. The same items of information are at issue.                   is otherwise evident from the other
These items are contained in records of law enforcement                          nine categories of information ordered
                                                                                 to be produced above; and (d)


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Heard v. Houston Post Co., 684 S.W.2d 210 (1984)
11 Media L. Rep. 1359

                                                                       [8] The court found in Chronicle II that “[t]he question of the
            in all other cases except cases of
                                                                      type of information which is subject to disclosure by reason
            active investigation in which the
                                                                      of the Open Records Act was determined in Chronicle I. The
            Harris County's Sheriff's Department
                                                                      passage of time will not change the type of information which
            within twenty-four (24) hours of
                                                                      must be disclosed.” Chronicle II, 673 S.W.2d at 321. Because
            the request applies to a court of
                                                                      this information has already been found not to be protected by
            competent jurisdiction and asserts in
                                                                      an exception, the trial court should have followed the decision
            a verified pleading its genuine belief
                                                                      in Chronicle I. Appellee's cross-point is sustained.
            that there is a reasonable likelihood
            that serious physical harm would occur
                                                                      We accordingly reverse that portion of the trial court's
            to the complainant if the complainant's
                                                                      judgment which restricts the release of the complainant's
            identity or description was revealed to
                                                                      name in only the four enumerated situations. We modify
            other than law enforcement agencies.
                                                                      the judgment to require the Sheriff or his duly authorized
Categories (a) and (d) are already established as exceptions          representative to provide the Post, within three (3) hours after
under sec. 3(a)(8) of the Texas Open Records Act, through the         the information is available with the name and description
opinions of the Attorney General and the cases applying the           of the complainant in all cases not subject to the statutory
opinions, e.g., Ex parte Pruitt, 551 S.W.2d 706 (Tex.1977);           exception.
ORD No. 350 (1983); ORD No. 371 (1983). Categories (b)
and (c) are apparent and need not be enumerated. Occasions            As reversed and modified, the judgment of the trial court is
may arise when the release of complainant's identity would            affirmed.
be harmful. On those occasions, it would be proper for the
Sheriff, within 24 hours of the request, to apply to a court of
competent jurisdiction setting out the harm.                          All Citations

                                                                      684 S.W.2d 210, 11 Media L. Rep. 1359

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                                                                   the Department temporary managing conservatorship, and the
                                                                   Child was placed in foster care.
                  2014 WL 4699480
    Only the Westlaw citation is currently available.
                                                                   The record reflects that the Father was a party in a previous
          SEE TX R RAP RULE 47.2 FOR                               suit for termination of the Mother's child, A. D.S. (the
    DESIGNATION AND SIGNING OF OPINIONS.                           Brother), who was born in 2008. The Father was alleged to
                                                                   be the Brother's biological father. The Brother was placed in
                Court of Appeals of Texas,                         the Department's custody after it was learned that the Mother
                  Houston (14th Dist.).                            drank while pregnant and the Brother suffered from Fetal
                                                                   Alcohol Syndrome. In 2009, both the Mother's rights and
              In the Interest of G.S., a Child.
                                                                   any rights the Father had to the Brother were terminated.
                                                                   The decree, which was admitted in evidence at trial in
       No. 14–14–00477–CV.           |   Sept. 23, 2014.
                                                                   this proceeding, recited that the Father was duly cited, but
On Appeal from the 309th District Court, Harris County,            failed to appear or answer and his rights were terminated
Texas, Trial Court Cause No.2012–74334.                            pursuant to Family Code Section 161.002. SeeTex. Fam.Code
                                                                   § 161.002. 1 The Brother was placed in the care of his
Attorneys and Law Firms
                                                                   maternal grandmother (the Grandmother), who later formally
Sandra D. Hachem, for Texas Department of Family and               adopted him.
Protective Services.
                                                                   1      Section 161.002 provides:
Panel consists of Justices McCALLY, BROWN, and WISE.                           (b) The rights of an alleged father may be terminated
                                                                               if:
                                                                               (1) after being served with citation, he does not
               MEMORANDUM OPINION                                              respond by timely filing an admission of paternity
                                                                               or a counterclaim for paternity under Chapter 160.
MARC W. BROWN, Justice.                                                     Tex. Fam.Code § 161.002(b)(1). By filing an
                                                                            admission or counterclaim for paternity, the alleged
 *1 Appellant G. B.C. (the Father) appeals from the decree                  father is given the right to require the State to prove
terminating his parental rights to a daughter, G.S. (the Child).            by clear and convincing evidence that he engaged in
The Father brings four issues arguing that (1) the trial court              one of the types of conduct listed in section 161.001(1)
erred in denying his motion for new trial; (2) the evidence is              and that termination is in the best interest of the child.
insufficient to support termination; (3) the Texas Department               See Phillips v. Tex. Dep't of Protective & Regulatory
                                                                            Servs., 25 S.W.3d 348, 357 (Tex.App.-Austin 2000,
of Family and Protective Services (the Department) failed to
                                                                            no pet.).
make reasonable efforts to reunite him with the Child; and (4)
the trial court erred in ordering reimbursement for his court-     The trial court conducted an adversary hearing in the
appointed counsel's fees. We affirm.                               underlying proceeding on January 3, 2013. The record reflects
                                                                   the Father was present at the hearing and was personally
                                                                   served with process. The court signed an order finding, among
                                                                   other matters, that the Father was not indigent. The court
 I. FACTUAL AND PROCEDURAL BACKGROUND
                                                                   ordered the Father to comply with each requirement set out in
On December 17, 2012, the Department received a referral           the Department's service plan, which was filed with the court
alleging physical abuse of the Child shortly after her             February 4, 2013. The plan required the Father to submit to
birth. The referral alleged that at the time of the Child's        DNA testing to confirm his parentage and to random drug
birth, M.C.S. (the Mother) tested positive for amphetamines        testing. In addition, the Father was ordered to pay child
and methamphetamines and the Child tested positive for             support, complete domestic violence, anger management, and
amphetamines and methadone. On December 19, 2012, the              parenting classes, among other tasks.
Department filed suit for protection of the Child, naming
the Father as the Child's alleged father. The following day,       On February 14, 2014, a status hearing was held. At that time,
the trial court issued emergency temporary orders granting         the Father signed an affidavit of indigence, claiming he was



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      1
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

paid $998 in his last paycheck, he paid $700 per month in          a final judgment on March 27, 2014, adjudicating the Father's
rent, he had $500 in his bank account, and he paid $2,600 per      parentage, terminating his parental rights to the Child, and
month to an attorney. The parties agree that Susan Solis was       appointing the Grandparents as the Child's sole managing
appointed as attorney ad litem to represent the Father at the      conservators. The judgment recited the trial court's findings
conclusion of the hearing, but our record does not contain a       that parental termination is in the Child's best interest and
written order appointing her. On June 13, 2013, Solis filed an     that the Father committed acts establishing the predicate
answer on behalf of the Father denying the allegations in the      termination grounds set out in subsections E, N, and O of
Department's petition. The record reflects Solis appeared on       Texas Family Code Section 161.001(1).Tex. Fam.Code §§
behalf of the Father at the permanency hearings held June 27,      161.001(1)(E), (N) & (O); 161.001(2). 3 The decree also
2013 and October 3, 2013.                                          recited that appointment of a parent as conservator would not
                                                                   be in the Child's best interest because the appointment would
 *2 At the hearing held October 3, 2013, the Father                significantly impair the Child's physical health or emotional
acknowledged that he had completed DNA testing that                development. SeeTex. Fam.Code § 153.131. The trial court's
confirmed he is the Child's biological father. The Father also     judgment also recited that the Father is not indigent and
testified about completion of some of his required services        ordered the Father to reimburse Harris County for the
and testified he had been employed for three years. On cross-      appointed ad litem attorney's fees in the amount of $2,750 and
examination, the Father admitted that he had been working as       to pay $4,500 in attorney's fees to the Grandparents' attorney.
an engineer for the past three years, he made $70,000 per year,    The Father filed a timely motion for new trial, which was
he had been living with his sister since January, he did not pay   denied after a hearing on May 6, 2014. The Father also filed
anything for rent, and he had not paid any child support. At       a timely notice of appeal.
the conclusion of the hearing, the court removed the Father's
appointed counsel and urged the Father to retain counsel           3      The Mother's parental rights were also terminated, but
before the trial setting in December. There is no written order
                                                                          she did not contest the termination and has not appealed.
discharging Solis.

At the same hearing, the trial court signed an order permitting                     II. ISSUES ON APPEAL
the Child's maternal grandparents (the Grandparents) to have
unsupervised visits with the Child. The Grandparents later         In his first issue, the Father claims the trial court should
filed a petition in intervention seeking conservatorship of the    have granted him a new trial because his appointed counsel
Child. 2                                                           was wrongfully released close to trial and the court erred in
                                                                   denying his subsequent continuance requests. In his motion
2                                                                  for new trial, he alleged he was entitled to appointed
       Another party who knew the Mother when she resided
                                                                   counsel, his appointed counsel was improperly released,
       in California had intervened earlier in the case, seeking
                                                                   and his appointed counsel provided ineffective assistance
       conservatorship of the Child. This intervention was non-
                                                                   of counsel, depriving him of a fair trial. In his second
       suited before trial.
                                                                   issue, the Father generally challenges the legal and factual
The court conducted a permanency hearing on December               sufficiency of the evidence to support parental termination.
12, 2013, when the case was originally set for trial. The          He specifically challenges both the predicate finding under
record reflects the Father appeared with retained counsel,         Family Code section 161.001(1)(N) and the trial court's best
David Rushing. At the request of the Attorney Ad Litem             interest finding. In the Father's third issue, he alleges that
for the Child, the court granted an extension of the statutory     the Department failed to make reasonable efforts to return
dismissal date and reset trial to January 23, 2014.                the Child to him. In his fourth issue, the Father claims the
                                                                   trial court erred in ordering him to reimburse the county for
New counsel for the Father, Jerry Acosta, was granted              the fees owed to his court-appointed attorney because he was
leave to substitute for Rushing on January 23, 2014, the           entitled to appointed counsel.
first day of trial. Acosta then made an oral request for a
continuance, which was denied. Trial to the court briefly           *3 If disposition of an issue would result in a rendition
commenced. Acosta was assisted during the trial by co-             of judgment, an appellate court should consider that issue
counsel, James Pons. Trial resumed February 27 and 28,             before addressing any issues that would only result in a
2014, and concluded on March 6, 2014. The trial court signed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

remand for a new trial. See Natural Gas Pipeline Co. of            could not reasonably have formed a firm belief or conviction,
Am. v. Pool, 124 S.W.3d 188, 201 (Tex.2003); see also In           then the evidence is factually insufficient.”Id. We give due
re K.W., 138 S.W.3d 420, 428 (Tex.App.-Fort Worth 2004,            deference to the fact finder's findings and we cannot substitute
pet. denied) (applying this rule in a termination appeal and       our own judgment for that of the fact finder. In re H.R.M.,
first addressing legal sufficiency challenges). Accordingly,       209 S.W.3d 105, 108 (Tex.2006). The fact finder is the
we will first consider the Father's challenges to the legal        sole arbiter when assessing the credibility and demeanor of
sufficiency of the evidence, followed by a review for factual      witnesses. Id. at 109. We are not to “second-guess the trial
sufficiency.                                                       court's resolution of a factual dispute by relying on evidence
                                                                   that is either disputed, or that the court could easily have
                                                                   rejected as not credible.”In re L.M.I., 119 S.W.3d 707, 712
                                                                   (Tex.2003) (explaining that in a termination case, an appellate
             III. BURDEN OF PROOF AND
                                                                   court should not reweigh disputed evidence or evidence that
                STANDARD OF REVIEW
                                                                   depends on a witness's credibility).
Due to the severity and permanency of the termination of
parental rights, the burden of proof at trial is heightened
to the clear and convincing standard. SeeTex. Fam.Code §                                  IV. ANALYSIS
161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). “Clear
and convincing evidence” means “the measure or degree of           A. Sufficiency of the Evidence to Support Termination
proof that will produce in the mind of the trier of fact a          *4 Parental rights can be terminated upon proof by clear
firm belief or conviction as to the truth of the allegations       and convincing evidence that (1) the parent has committed
sought to be established.”Tex. Fam.Code § 101.007; accord          an act prohibited by section 161.001(1) of the Family Code;
In re J.F.C., 96 S.W.3d at 264. While proof by clear and           and (2) termination is in the best interest of the child. Tex.
convincing evidence must be more than merely the greater           Fam.Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336,
weight of the credible evidence, there is no requirement that      344 (Tex.2009). Only one predicate finding under section
the evidence be unequivocal or undisputed. See R.H. v. Tex.        161.001 is necessary to support a judgment of termination
Dep't of Family & Protective Servs., ––– S.W.3d ––––, 2013         when there is also a finding that termination is in the child's
WL 1281775, at *5 (Tex.App.-El Paso 2013, no pet.). This           best interest. In re A.V., 113 S.W.3d 355, 362 (Tex.2003).
heightened burden of proof results in a heightened standard
of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex.App.-
Houston [14th Dist.] 2008, no pet.).                               1. Predicate Termination Grounds under Section
                                                                   161.001(1)
In reviewing the legal sufficiency of the evidence in a parental   The trial court found three predicate grounds for termination:
termination case, we must consider all the evidence in the         subsections E, N, and O of section 161.001(1).SeeTex.
light most favorable to the finding to determine whether a         Fam.Code §§ 161.001(1)(E), (N) & (O). On appeal, the
reasonable fact finder could have formed a firm belief or          Father raises a broad issue challenging the legal and factual
conviction that its finding was true. In re J.O.A., 283 S.W.3d     sufficiency of the evidence. He specifically asserts the
at 344; In re J.F.C., 96 S.W.3d at 266. We assume that the         Department failed to prove termination was in the Child's
fact finder resolved disputed facts in favor of its finding if     best interest, and that the record does not support constructive
a reasonable fact finder could do so, and we disregard all         abandonment, which is described in subsection N. The Father
evidence that a reasonable fact finder could have disbelieved.     has not specifically challenged the finding under subsection
In re J.O.A., 283 S.W.3d at 244; In re J.F.C., 96 S.W.3d at        E, which provides a ground for termination when the parent
266.                                                               engaged in conduct, or knowingly placed the child with
                                                                   persons who engaged in conduct, that endangers the physical
In our review of termination findings for factual sufficiency      or emotional well-being of the child. SeeTex. Fam.Code §
of the evidence, we consider and weigh all of the evidence         161.001(1)(E). He also did not specifically challenge the
including disputed or conflicting evidence. In re J.O.A., 283      finding under subsection O, which provides a ground for
S.W.3d at 345. “If, in light of the entire record, the disputed    termination when the parent failed to comply with a court
evidence that a reasonable fact finder could not have credited     order establishing the actions necessary for return of the child.
in favor of the finding is so significant that a fact finder       SeeTex. Fam.Code § 161.001(1)(O).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                                                                      under his service plan, but instead offered an excuse for his
In his reply brief, the Father argues that we should construe         non-compliance by blaming the Department for the delay in
his broad issue to encompass a challenge to all the court's           setting up appointments for his required services. He also did
termination findings. Rule 38.1(f) of the Rules of Appellate          not dispute he failed to pay child support as ordered. The
Procedure states that courts will treat the statement of an           Father testified he did not believe he should have to pay child
issue or point “as covering every subsidiary question that is         support, even though he had been determined to be the Child's
fairly included.”Tex.R.App. P. 38.1(f); see In re M.N., 262           father. The Father also acknowledged that he had moved into
S.W.3d 799, 801 (Tex.2008) (construing complaint that the             his own apartment shortly before trial, much less time than
intermediate court erred in holding mother waived her points          required by the Department to establish and maintain stable
for appeal as a challenge to the holding that the trial court         housing for six months.
could not grant her motion to extend time to file her statement
of points on appeal); see also Fletcher v. Dep't of Family &          To succeed on appeal from a termination decree, an appellant
Protective Servs., 277 S.W.3d 58, 63 (Tex.App.-Houston [1st           must establish that the findings on all of the termination
Dist.] 2009, no pet.)(construing the father's issue to include        grounds found by the trial court are unsupported by the
a challenge to predicate findings not listed in statement of          evidence. In re A.V., 113 S.W.3d at 361 (holding that
points).                                                              father's failure to challenge sufficiency of evidence to support
                                                                      finding under one subsection of section 161.001(1) made it
A court may construe a broadly phrased issue that does not            unnecessary to address father's challenges to other grounds
specifically reference any of the trial court's findings when it      for termination); see also In re B.K.D ., 131 S.W.3d 10,
is clear from the substance of the brief that the appellant is        16 (Tex.App.-Fort 2003, pet. denied) (holding that because
challenging the legal and factual sufficiency of the evidence         the jury found four grounds for termination under section
to support the trial court's determination that the Department        161.001(1) and the father challenged only three of those
established each of the predicate grounds for termination. In         grounds, appellate court was not required to address his
re A . W., 2–03–349–CV, 2004 WL 1799893 (Tex.App.-Fort                argument that the evidence was insufficient on the three
Worth Aug. 12, 2004, no pet.)(mem.op.); see also Zagorski v.          challenged grounds). In Fletcher, despite recognizing that
Zagorski, 116 S.W .3d 309, 315 n. 2 (Tex.App.-Houston [14th           issues may be construed broadly, the court ultimately
Dist.] 2003, pet. denied) (rejecting contention that appellant        determined it could not address father's issue because he had
waived her appellate complaint due to the failure of her points       not properly challenged all predicate grounds. Fletcher, 277
to expressly challenge specific findings of fact or conclusions       S.W.3d at 63.
of law because her argument addressed the findings and
conclusions).                                                         Unchallenged findings of fact are binding unless the contrary
                                                                      is established as a matter of law or there is no evidence
 *5 Rule 38.1(i) of the Texas Rules of Appellate Procedure            to support the finding. See In re E.C.R., 402 S.W.3d 239,
provides that a brief must contain clear and concise argument         249 (Tex.2013) (holding parental conduct under subsection
for the contentions made, with appropriate citations to               O was conclusively established where the parent did not
authorities and to the record. Tex.R. A pp. P. 38.1(i). It is well-   dispute she failed to comply with numerous provisions
established that failure to cite authority or provide substantive     in court orders specifying compliance was necessary to
analysis waives an issue on appeal. See Fed. Sign v. Tex. S.          avoid termination). The record contains evidence supporting
Univ., 951 S.W.2d 401, 410 (Tex.1997); King v. Tex. Dep't             subsection O. Therefore, the trial court's finding that appellant
of Protective & Regulatory Serv., No. 08–03–00100–CV,                 failed to comply with subsection O is binding.
2004 WL 1505703, at *5 (Tex.App.-El Paso July 2, 2004, no
pet.)(mem.op.).                                                        *6 The only specific challenge the Father has raised is to
                                                                      an element of section 161.001(1)(N), which provides that a
In this case, we may not construe the Father's broadly worded         person's parental rights may be terminated if he:
issue to encompass a challenge to all of the trial court's
termination findings because the Father made no argument or             (N) constructively abandoned the child who has been in
analysis and cited no authority relevant to the findings under          the permanent or temporary managing conservatorship of
sections E and O. With regard to section O, the Father did not          the Department of Protective and Regulatory Services or
dispute that he did not complete individual therapy required            an authorized agency for not less than six months, and:



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                                                                   Specifically, to be reunited with the Child, the Father was
  (i) the department or authorized agency has made                 required to:
  reasonable efforts to return the child to the parent;
                                                                     participate and successfully complete domestic violence
  (ii) the parent has not regularly visited or maintained            classes and will be able to discuss learned behaviors
  significant contact with the child; and                            with the caseworker. The Father] may contact [Battering
                                                                     Intervention and Prevention Program] BIPP Client
  (iii) the parent has demonstrated an inability to provide the
                                                                     Registrar at 713–224–9911 for an appointment. The fees
  child with a safe environment.
                                                                     for these services will be paid by [the Father].
Tex. Fam.Code § 161.001(1)(N). In his third issue, the Father
                                                                      *7 successfully participate and complete anger
alleged the Department failed to make reasonable efforts to
                                                                     management classes. [The Father] will provide a certificate
return the Child to him. Because the Father raised this specific
                                                                     of completion to the caseworker no later than 30 days from
challenge in his third issue, we will address it in the interest
                                                                     the last class. [The Father] will be able to demonstrate
of justice.
                                                                     learned behaviors through actions and or discussions with
                                                                     the caseworker. [The Father] may contact the United Way
A family service plan is designed to reunify a parent with
                                                                     at 713–957–4357 for providers in their area. [The Father]
a child who has been removed by the Department. Liu v.
                                                                     may also contact Center Point Counseling Services at 713–
Dep't of Family & Protective Servs., 273 S.W.3d 785, 795
                                                                     528–7007, Counsel of Alcohol and Drug Abuse at 713–
(Tex.App.-Houston [1st Dist.] 2008, no pet.). Implementation
                                                                     942–4100 extension 113, Wholistic Counseling Services at
of a family service plan by the Department is ordinarily
                                                                     281–403–0838....
considered a reasonable effort to return a child to its parent.
In re N.R.T., 338 S.W.3d 667, 674 (Tex.App.-Amarillo 2011,           participate in DNA testing to determine if he is the father
no pet.); see also In re M.R.J.M., 280 S.W.3d 494, 505               to the child/children. This testing may be done by National
(Tex.App.-Fort Worth 2009, no pet.)(holding that the State           Screening or by the Attorney General. The parent will be
made reasonable efforts to return the child to the parent under      notified as to the location for the testing by the court or
section 161.001(1)(N) when it prepared several service plans         caseworker.
for the parent and made special arrangements for him to
attend parenting classes near his home and to transport him          provide child support while [his] child is in the care of the
to his psychological assessment); In re K.M.B., 91 S.W.3d            agency. This child support is to be determined by the court
18, 25 (Tex.App.-Fort Worth 2002, no pet.)(holding the State         based on minimum wage. This support is to continue while
showed that it made reasonable efforts to return the child to        the case is ongoing. Child support may also include the
the parent when it prepared service plans and made efforts to        purchase of new clothes, shoes, gifts for the child.
work with the parent on the service plans).
                                                                     acquire and maintain a working telephone whether it is a
On February 4, 2013, the Department filed its family service         residence or cell in order for the caseworker and or service
plan for the Father with the court. SeeTex. Fam.Code. §              providers to be able to make contact with him. [The Father]
263.101 (requiring the Department to file a service plan             will provide the caseworker with updated numbers at all
within 45 days after the trial court appoints the Department as      times.
the temporary managing conservator). The Department also
                                                                     acquire and maintain housing that is stable for more than 6
filed a status report with the court confirming the Father had
                                                                     months. This housing is to be safe, clean and free of hazards
received and signed his family service plan. A copy of the
                                                                     to ensure the child's well-being. All the utilities in the home
plan bearing the Father's signature was admitted in evidence
                                                                     such as electricity, water, and gas must be operational and
at trial. The Father's service plan detailed the actions the
                                                                     he must apply basic homemaking skills in his daily chores
Father was required to complete in order to be reunited with
                                                                     such as sweeping, dusting, mopping, washing dishes and
the Child, and it included contact information to schedule
                                                                     doing laundry. [The Father] is to provide a copy of the lease
appointments for evaluations and classes. In addition, the
                                                                     agreement or mortgage in his name to the caseworker 10
trial court signed a permanency order after the status hearing
                                                                     days after signing this Family Plan of Service. Caseworker
adopting the service plan requirements.
                                                                     will make unannounced home visits to his residence to
                                                                     document progress in this area. [The Father] is to contact



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

  the caseworker by phone or in person within five days of            TX (713–773–3280). [The Father] will follow all the
  changing residents and provide the change in address.               recommendations including inpatient and or outpatient
                                                                      drug treatment, individual, group and or family therapy,
  maintain contact with [the Child] during one hour visits,           and or random urine analysis. [The Father] will be
  two times a month at the CPS [Children's Protective                 contacted by the services provider to schedule the
  Services] office located at 9333 Bryant St Houston, TX              appointment. If after 2 weeks from the date the referral was
  77075; these visits will be scheduled when the parent               submitted and the provider has not contacted [the Father]
  makes contact with the agency to set up his visits. [The            then [the Father] should contact the provider to schedule
  Father] must be on time for each visit. If [the Father] is late     the appointment. The evaluation is to be completed by
  15 minutes or more the visit will be canceled. [The Father]         02/28/2013.
  must notify the caseworker 24 hours in advance if not able
  to make the visit. Canceled visits by [the Father] will not         participate fully in a psycho-social assessment to address
  be re-scheduled. Visits will be re-scheduled if [the Child]         his emotional or mental needs. The assessment may be
  is sick or have appointments to attend. [The Father] may            administered by Newsom Psychological located at 2626
  bring nutritious snacks to the visit.                               South Loop West, Suite # 181, Houston TX (855–640–
                                                                      1700). [The Father] will be contacted by the service
  attend all court hearings, permanency conference meetings           provider to schedule the appointment. If after 2 weeks
  and family visits. [The Father] will be responsible for his         from the date the referral was submitted the provider has
  own transportation to all appointments. [The Father] will           not contacted [the Father], he should contact the provider
  maintain contact with [his] caseworker at 9333 Bryant               to schedule the appointment. The fee associated with this
  Street Houston, TX 7705 via telephone or in person at least         service will be paid for by the agency. If [the Father]
  once a week.                                                        misses two (2) scheduled appointments, he will then be
                                                                      responsible for any fees associated with this service. The
   *8 participate in parenting classes in person and may
                                                                      evaluation is to be completed by 02/28/2013. [The Father]
  not participate via the Internet. [The Father] will attend,
                                                                      will follow all recommendations from the evaluation that
  participate in, and successfully complete parenting classes
                                                                      may include a psychological and or psychiatric evaluation,
  and provide the caseworker with a certificate of completion
                                                                      individual therapy, family therapy, and or group therapy.
  no more than 30 days after the last class date. [The Father]
  must be able to demonstrate learned behaviors during
                                                                    The Department filed a progress report with the court on
  family visits with [the Child] and through discussions
                                                                    May 7, 2013. The report does not reflect that the Father
  with the caseworker. [The Father] will be responsible for
                                                                    had completed any of the required tasks, and it repeated the
  contacting one of the providers listed below. [The Father]
                                                                    above list of required tasks. The deadline for completing the
  must pay any and all fees associated with the parenting
                                                                    required evaluations was extended to July 1, 2013. On June
  classes. DFPS will not pay for these classes. [The Father]
                                                                    23, 2013, the trial court conducted a permanency hearing.
  must complete the classes within four months of signing
                                                                    In the order signed June 27, 2013, the court again expressly
  the [Family Plan of Service].
                                                                    approved and adopted the service plan as set out in the
  submit to random urinalysis drug testing and must test            permanency progress report, specifying the actions the Father
  negative at all times. [The Father] will be contacted by          must perform to regain custody of the Child. On September
  the caseworker the morning the UA is to be taken. [The            11, 2013, the Department filed another progress report, which
  Father] will have until 3 PM of that day to submit to the         again did not reflect the Father had completed any of the
  drug testing. A no show will be taken as a positive drug test.    required tasks. The Department's next progress report was
  This service will be funded by CPS. Should [the Father]           filed November 7, 2013, and the report again provided notice
  fail to present [himself] for 2 scheduled appointments, [the      that the Father had not completed his service requirements.
  Father] will be responsible for any fees associated with this
  service.                                                           *9 On appeal, the Father complains that the record does
                                                                    not show that the Department's caseworker went over the
  participate fully in a drug and alcohol assessment                service plan with him, pointing out that the caseworker signed
  administered by Kinghaven Counseling Group located at             the plan before the date of the Father's signature. The record
  9100 Southwest Freeway Houston, TX (713–457–4372),                does not show that the Father made this complaint in the
  Turning Point located at 10175 Harwin Dr. Houston,                court below, and he has waived it. SeeTex.R.App. P. 33.1(a).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

Moreover, the record does not support this contention. Not          a reasonable opportunity to complete any requirements of the
only does the record reflect the Father signed the plan, it         service plan due to his incarceration).
appears that the caseworker discussed aspects of the plan with
the Father based on the recitations in the plan. The plan recited    *10 The Father cites In re K.G., 350 S.W.3d 338 (Tex.App.-
that the Father “hopes to have [the Child] placed back under        Fort Worth 2011, pet. denied). In K.G., the court held the
his care and raise her. [The Father] wishes the best for her, and   evidence was legally and factually sufficient to establish
to provide her with the best support so that she can become         that the Department made reasonable efforts to return the
whatever she wants to be later in life. [The Father] also said      child to the mother, as required for termination of the
that he wishes that she grows up being a positive person in         mother's parental rights based on constructive abandonment.
life.”In his trial testimony, the Father acknowledged that he       Id. at 354. The caseworker testified that she had tried to
had contact with the Department caseworker when he signed           facilitate reunification by providing services to the mother,
his service plan.                                                   encouraging the mother to seek help for her mental health
                                                                    problems, and making efforts to ensure that the mother and
The Father also asserts that the Department's delay in              child had good visits. Id. This case likewise has evidence that
scheduling his services resulted in his inability to complete       caseworker Charles assisted the Father by arranging for his
the required individual therapy before trial. The record            services and arranging visits with the Child. Although the
reflects caseworker Dana Lora Charles provided the Father           Father alleged at trial that his first caseworker did not return
the information to schedule his psychosocial evaluation in          his calls, the record contains no evidence the Father brought
October of 2013. After first completing a questionnaire, the        any complaints before trial about the lack of assistance from
Father submitted it to the counselor a few weeks later and met      his previous caseworker. In addition, when the service plan
with the counselor on November 13, 2013. The counselor's            was first implemented in February of 2013, the Department
report, which recommended additional individual therapy,            provided very detailed information in the service plan to
was filed December 11, 2013, the day before the first trial         facilitate the Father's ability to complete his services. The
setting. The Father complains on appeal that the previous           record demonstrated that the Father was intelligent and well-
caseworker, Daisy Cantu, did not schedule his appointments          educated. The factfinder could reasonably have determined
or return his calls. The Father acknowledged at trial that at       the Father had the ability to schedule services, even without
some point after he signed his service plan, he lost contact        additional assistance from a caseworker.
with Cantu. He admitted that he was not “working” on his
services during that time. He stated Cantu did not set up these     Reviewing all the evidence in the light most favorable to the
services, but he did not ask her to. The Father agreed that         termination findings under subsection N, we conclude that
after Cantu was replaced by Charles as caseworker, Charles          a reasonable fact finder could have formed a firm belief or
returned his calls, helped him set up visitation with the Child,    conviction as to the truth of the finding that the Department
and gave him a phone number to set up his psychosocial              made reasonable efforts to return the Child to him. See In re
evaluation.                                                         M.R.J.M., 280 S.W.3d at 505. In light of the entire record,
                                                                    the disputed evidence that a reasonable fact finder could not
The Father's service plan provided detailed contact                 have credited in favor of the termination finding that the
information to arrange for completion of the required               Department made reasonable efforts to return the Child is not
services. The Father acknowledged he did not alert the trial        so significant that a fact finder could not reasonably have
court that he was unable to schedule these services without         formed a firm belief or conviction as to the truth of this
the Department's assistance. The Father signed his service          termination finding. See In re H.R.M., 209 S.W.3d at 108. We
plan on February 5, 2013, and trial did not commence until          overrule the Father's third issue.
January 23, 2014. The record clearly demonstrates the Father
had almost a full year to complete his required services, and
he did not start the process until close to trial. Cf. In re        2. Best Interest under Section 161.001(2)
A.Q.W., 395 S. W.3d 285, 288 (Tex.App.-San Antonio 2013,            There is a strong presumption that the best interest of a child
no pet.)(holding the evidence was insufficient to support a         is served by keeping the child with his or her natural parent.
finding the Department made reasonable efforts to return            In re R.R., 209 S.W.3d 112, 116 (Tex.2006); In re D.R.A., 374
child to father where he received Department's service plan         S.W .3d 528, 533 (Tex.App.-Houston [14th Dist.] 2012, no
34 days before the termination hearing and father did not have      pet.). Prompt and permanent placement of the child in a safe



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

environment is also presumed to be in the child's best interest.   the parents and foster parents. See E.F. v. Tex. Dep't Family &
Tex. Fam.Code § 263.307(a).                                        Protective Servs., No. 03–11–00325–CV, 2011 WL 6938496,
                                                                   at *3 (Tex.App.-Austin Dec. 30, 2011, no pet.)(mem.op.).
The following factors, among others, should be considered in
evaluating the parent's willingness and ability to provide the     The Grandmother testified that the Child has bonded with
child with a safe environment: the child's age and physical        the foster parents. The record reflects the Father had not
and mental vulnerabilities; the willingness and ability of the     bonded with the Child. The Father testified about his visits
child's family to seek out, accept, and complete counseling        with the Child, acknowledging that he was “required to visit
services and to cooperate with and facilitate an appropriate       two hours within a month” and he had “been doing what they
agency's close supervision; the willingness and ability of the     required.” He testified he had been visiting the Child “since
child's family to effect positive environmental and personal       the beginning” of these proceedings, but then acknowledged
changes within a reasonable period of time; and whether            the Child, who was taken into the Department's custody a few
the child's family demonstrates adequate parenting skills,         days after her birth, was “a few months old” when he first
including providing the child with minimally adequate health       visited her. The Father almost never identified the Child by
and nutritional care, a safe physical home environment, and        her name, but instead referred to her as “the kid.” Caseworker
an understanding of the child's needs and capabilities. Tex.       Charles testified that the Father had a total of four or five
Fam.Code § 263.307(b); R.R., 209 S.W.3d at 116.                    visits with the Child during the over one-year period that she
                                                                   was in the Department's care, and only two of those visits
 *11 In addition, courts may consider other nonexclusive           were before trial. She testified that she observed the Father's
factors in reviewing the sufficiency of the evidence to support    visits with the Child. At the first visit, the child tried to walk
the best interest finding, a court examines several factors,       away from the Father. She described the Child as “fussy” and
including (1) the desires of the child, (2) the present and        “crying reaching out for [her] to take her away” for the first
future physical and emotional needs of the child, (3) the          ten to fifteen minutes of each visit. She acknowledged on
present and future emotional and physical danger to the child,     cross-examination that the Child later played with the Father.
(4) the parental abilities of the persons seeking custody,         Charles testified that the Father did not comply with the foster
(5) the programs available to assist those persons seeking         parent's written request that he feed the Child during one
custody in promoting the best interest of the child, (6) the       two-hour visit. At the Father's most recent visit during trial,
plans for the child by the individuals or agency seeking           the Child was fussy and cried for an hour and a half, and
custody, (7) the stability of the home or proposed placement,      the Father then fed her. She testified to her belief that the
(8) acts or omissions of the parent which may indicate the         Child does not know the Father. Charles also testified she
existing parent-child relationship is not appropriate, and (9)     found it odd that the Father wore glasses with dark lenses
any excuse for the parent's acts or omissions. Holley v. Adams,    during his visits. The Father later explained that he wore the
544 S.W.2d 367, 372 (Tex.1976). This list is not exhaustive,       glasses because he had an unspecified medical condition. The
and evidence is not required on all of the factors to support      Father testified that he had inquired about what size clothing
a finding terminating a parent's rights. Id.; In re D.R.A., 374    the Child wore, but he did not ask how much she weighed.
S.W.3d at 533.                                                     He explained that the diapers he purchased for her that were
                                                                   the incorrect size were based on her age, according to the
                                                                   package. He acknowledged he does not know what the Child
a. The Child's Needs and Desires                                   eats on a daily basis and has not asked.
The Child was only slightly over one year old when trial
began. Because of her young age, the Child was completely           *12 This evidence showing the Child has not bonded with
dependent on her caregiver. The Father acknowledged that           the Father supports the court's best-interest finding.
he has not paid child support during the pendency of these
proceedings. There was evidence that the Father provided
some support for the Child by bringing formula, diapers, and       b. Endangerment, Including Criminal History and Drug
wipes to one visit.                                                Use
                                                                   The unchallenged predicate findings under section
The Child was also unable to communicate her desires               161.001(1)(E), endangering conduct, are binding and may
because of her young age. When children are too young to           be considered as evidence related to the court's best interest
articulate their wishes, courts may consider their bond with


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

finding. See In re K.L.G., No. 14–09–00403–CV, 2009 WL             to bite her tongue and he struck her in the head with his fist
3295018, at *2 (Tex.App.-Houston [14th Dist.] 2009, no pet.)       with such force that it left a bruise on the right side of her
(mem.op.) (because the predicate and best interest findings        forehead. The Father introduced in evidence an order signed
were not challenged, they were binding on the appellate            August 29, 2013, dismissing the 2012 case with a notation
court); see also In re C.H., 89 S.W.3d 17, 28 (Tex.2002)           that the Father had “completed BIPP,” which is the Battering
(holding that the same evidence may be probative of both           Intervention and Prevention Program.
section 161.001(1) predicate grounds and best interest).
                                                                    *13 The Grandmother also testified about acts of violence
Not only is the finding that the Father engaged in endangering     that the Father committed against her daughter. She first
conduct or knowingly left the Child with persons who               observed the Mother with bruises and a black eye in 2007.
engaged in endangering conduct unchallenged, the record            The Mother indicated to her that the Father caused the
contains ample evidence of this ground that the trial court        injuries. Later in 2007, when the Mother was pregnant
could reasonably have considered in making its best interest       with the Brother, the Mother was hospitalized when her
determination. The Father's criminal records were admitted         intestines ruptured. The Grandmother testified her daughter
at trial, and these included several violent offenses. See Tex.    told her the Father sexually assaulted her with an object,
Dep't Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987)         causing the injuries. When questioned about this incident
(holding that a parent's repeated criminal acts may constitute     at trial, the Father invoked his Fifth Amendment right not
sufficient evidence of conduct that endangers the well-being       to answer. 4 The Grandmother also observed bruising on the
of a child); In re D.J.H., 381 S.W.3d 606, 613 (Tex.App.-          Mother's neck and a cut across her face that her daughter
San Antonio 2012, no pet.)(recognizing that a fact-finder may      told her had been caused by the Father. In addition, the
infer from past endangering conduct that similar conduct will      Grandmother testified to her daughter's head injury from a
recur if the child is returned to the parent).                     vehicle accident, which she claimed was caused when the
                                                                   Father tried to run the Mother off the road. Caseworker
In 1997, the Father pled no contest to a misdemeanor assault       Charles testified the Mother told her she did not want the
charge alleging domestic violence, and he was placed on            Child to be with the Father because of all the physical violence
deferred adjudication probation. The victim of this offense        in the parents' relationship. Despite this evidence, the Father
was not identified, but it was not asserted that the assault was   denied he “beat” the Mother.
against the Mother. One of the terms of the Father's probation
required that he attend anger management classes.                  4      In a civil case, the factfinder may draw an adverse
                                                                          inference with respect to a party's claim of the privilege
On May 20, 2007, the Father was convicted of misdemeanor
                                                                          against self-incrimination. SeeTex.R. Evid. 513(c); Wil–
assault against the Mother, and he was again placed on                    Roye Inv. Co. II v. Washington Mut. Bank, FA, 142
deferred adjudication probation. The Father was charged a                 S.W.3d 393, 404 (Tex.App.-El Paso 2004, no pet.).
second time with assaulting the Mother in November 2007,
                                                                   The Grandmother testified her daughter suffered from
and the record contains an order prohibiting him from having
                                                                   depression and was bipolar. She was aware that the
any contact with the Mother as a condition of his bail.
                                                                   Mother drank heavily. The Grandmother also described
The plea documents in the record show the Father pled
                                                                   her daughter's drug use, stating the Mother used
guilty to assaulting the Mother by choking her until she lost
                                                                   methamphetamines and party drugs. The Grandmother
consciousness and punching her in the head several times.
                                                                   believed her daughter had been a chronic drug user since
The record reflects that the Mother gave birth to the Brother
                                                                   2006.
about four months after the assault. On February 1, 2010, the
Father was sentenced to 180 days in jail for the November
                                                                   The Father denied knowing the Mother used drugs or that she
2007 assault. As part of his plea bargain, the State agreed to
                                                                   was described as a “chronic” drug user. Although the Father
reduce the charge from a third degree felony to a Class A
                                                                   denied recreational drug use, the Grandmother testified that
misdemeanor, and it abandoned the enhancement.
                                                                   her daughter told her she often did drugs with the Father,
                                                                   including when she was pregnant with the Child. The Father
On April 11, 2012, the Father was charged as a second
                                                                   later acknowledged that he knew the Mother used drugs and
offender with assaulting the Mother. The Mother's complaint
                                                                   he knew drug use during pregnancy endangers a child. The
stated the Father grabbed her face so hard that it caused her
                                                                   record contains the Father's drug test report dated January 15,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    9
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

2014, which was negative for ingestion of narcotics during           out, accept, and complete counseling services and to effect
the previous ninety days. The Father testified that he had           positive changes. SeeTex. Fam.Code § 263.307(b).
completed a “drug assessment” as part of his services, and
the drug counselor told him she would notify the caseworker.         We first consider the report of the Father's psychosocial
He stated it was his understanding that the counselor would          assessment that was admitted in evidence. The Father did
advise the caseworker whether or not it would be necessary           not submit to the assessment until the case had been on
for him to take a drug test. The Father later acknowledged that      file for almost a year. Before attending the session with
he was aware the court had ordered a drug test on the first          the counselor, Thomas Whitehead, the Father completed a
court date, and he did not submit to testing at that time. He        questionnaire, and he acknowledged he did not return the
explained that he had only a half day off from work that day         questionnaire for several weeks. In response to a question
and it was too late for him to stay and undergo testing.             about how he became involved with Children's Protective
                                                                     Services (CPS), the Father answered with question marks,
The Father's repeated acts of violence, primarily against the        suggesting he had no idea. In his report, Whitehead noted that
Child's Mother, support a finding that termination of the            the Father “appeared to be minimizing his role in the CPS
Father's parental rights is in the best interest of the Child. The   case” and “playing dumb.” The Father answered all questions
trial court reasonably could have considered that the Father's       about his parenting “in an unrealistically positive manner,”
repeated acts of violence would continue in the future. See          presenting himself as the “perfect” parent. The evaluator
Walker v. Tex. Dep't Family & Protective Servs., 312 S.W.3d          assessed that the Father had a pattern of “talking the talk,”
608, 617 (Tex.App.-Houston [1st Dist.] 2009, pet. denied).           without necessarily “walking the walk.” Whitehead opined
Caseworker Charles also testified that the Father had not            that the Father “may tend to focus on appearances more than
demonstrated an ability to be protective of the Child.               consistently following through with requirements.”

 *14 In addition, the evidence that the Father joined the            The Father acknowledged in his psychosocial evaluation that
Mother in her drug use, even while she was pregnant, supports        he had a conviction for assault. The Father denied to the
a finding that termination is in the Child's best interest. A        counselor that he knew the Mother used drugs, and stated
parent's drug use supports a finding that termination is in          he first learned about her drug use when the Child was born
the best interest of the child. See In re M.R., 243 S.W.3d           and both the Mother and Child tested positive for drugs.
807, 821 (Tex.App.-Fort Worth 2007, no pet.). Parental drug          He claimed that he did not know until the Child's birth
use during pregnancy weighs against the parent in the best           that the Mother had also tested positive when the Brother
interests analysis. Robinson v. Tex. Dep't of Protective &           was born. Contradicting his previous denial of knowledge of
Regulatory Servs., 89 S.W.3d 679, 688 (Tex.App.-Houston              the Mother's drug use, he explained the assault conviction
[1st Dist.] 2002, no pet.). The Father acknowledged he was           by stating that his “girlfriend is histrionic, and she was
aware the Mother used drugs during her pregnancy and he              doing drugs.”When questioned about whether he had been
took no steps to protect the unborn child. The factfinder can        incarcerated, he acknowledged he was in jail for about
give “great weight” to the “significant factor” of drug-related      five months for a domestic violence conviction. The Father
conduct. In re K.C., 219 S.W.3d 924, 927 (Tex.App.-Dallas            explained that he did not hit the Mother and the case was
2007, no pet.).                                                      based on false allegations. He did not admit that there had
                                                                     been a series of convictions.

c. Failure to Comply with Service Plan and Reasons for                *15 Whitehead, the counselor, recommended the following
the Failure                                                          for the Father: “referral to a domestic violence class, cautions
As noted above, the Father has not challenged the finding that       concerning possible manipulation, and referral for goal
he failed to comply with his service plan, and that finding          directed individual counseling.”It is undisputed the Father
is binding. See In re K.L.G., No. 14–09–00403–CV, 2009               did not complete individual counseling as recommended in
WL 3295018, at *2. The failure to comply with a service              his psychosocial evaluation. Caseworker Charles testified on
plan can support the trial court's best-interest finding. In re      December 12, 2013, that the Father had that day provided
E.C.R., 402 S.W.3d at 249. In connection with this factor, we        her documents to show completion of services, with the
also may consider the Father's willingness and ability to seek       exception of his individual therapy. She had not been able to
                                                                     verify completion of the required services with the providers,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              10
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

however. At trial, Charles confirmed that the Father provided      Prevention Program (BIPP) once a week for eighteen weeks.
documentation that he had completed the domestic violence          When asked the reason, he stated, “because it was part of
program, BIPP, and an anger management class. She also             my Service Plan.”He later acknowledged his attendance at
confirmed he had completed a parenting class and a drug            BIPP was also a requirement imposed by the criminal court.
assessment. Charles was unable to confirm the Father's             However, despite the eighteen-week class, the Father could
housing situation because the phone number on the copy of          not articulate any behavior, character trait, or pattern that
the apartment lease that the Father provided was incorrect.        led him to violent behavior. When asked what his triggers
The Father also admitted he had not supported the Child            were that led to domestic violence, the Father made reference
during the pendency of this case other than to provide             to his “emotions” without further explanation. When asked
formula, diapers, and wipes at one of his visits. The Father       to explain, he answered, “Well if we were talking—if we
admitted he had spent over $30,000 in attorney's fees in           were referencing the will then it's the same people react to
criminal cases.                                                    emotions. So it will be no different from anybody reacting to
                                                                   certain emotions like if you are happy you smile. You giggle
The Father primarily exercised his visitation rights when the      or laugh. Those kind of triggers.”Further inquiry produced no
trial date was near. Caseworker Charles testified that before      clarification.
the trial commenced, the Father had only two visits with the
Child, and he did not request a visit until she had been on the    The Father testified he attended a domestic violence class
case for three months, which was in November of 2013. She          both because of the recent assault charge and also because of
stated there was no evidence in her records that the Father        his service plan. He also testified he completed a parenting
had been prevented from seeing the Child. The Father argued        class. The Father's partial, or even substantial, compliance
that his failure to make regular visits and maintain significant   with service requirements set out in a court order is not
contacts with the Child was the Department's fault for failing     enough to avoid a termination finding. See In re M.C.G., 329
to schedule the visits. The Father's service plan expressly        S. W.3d 674, 675–76 (Tex.App.-Houston [14th Dist.] 2010,
provided, however, that his visits with the Child were to “be      pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex.App.-
scheduled when the parent makes contact with the agency to         Houston [14th Dist.] 2007, pet. denied). In sum, the factfinder
set up his visits.”                                                could have reasonably determined the evidence supports a
                                                                   finding that the Father was not willing to seek out, accept, and
The Father blamed his early failure to visit the Child and         complete counseling services and to effect positive changes
late compliance with his service plan on the first caseworker,     to his behavior, and that termination is in the Child's best
Cantu, who is no longer employed by the Department. He             interest.
complained that she did not return his calls and did not
make arrangements for his classes, evaluations, or visits.
He acknowledged that he never brought up the caseworker's          d. Parenting Abilities, including Other Children
alleged non-responsiveness at hearings in January, February,       The record demonstrated that the Father was intelligent.
or June, before a new caseworker was assigned in August            Whitehead, the counselor, noted that the Father's strengths
2013. He asserted his appointed counsel brought the matter         were his above-average intelligence, stable employment, and
up once, but he did not know the date. The Father had              his stated desire to fulfill his parental obligations to the Child.
no complaints about the new caseworker, Charles. Charles           The Father stated in his evaluation that he has a bachelor's
explained that she attempted to contact the Father to assist       degree in mechanical engineering. He stated he had been
him in completing his services in August when she was first        employed full time as an engineer by the same company for
assigned the case. The phone number for the Father in the          about three years. Whitehead acknowledged that the Father
Department's system was not his current number and she did         was more intelligent than many of the parents he evaluates
not obtain the correct number until October. The Father's          for CPS, and he appeared to know more about parenting than
service plan required him to “provide the caseworker with          the average CPS client.
updated numbers at all times.”
                                                                   The Father never made an effort to learn about his Child's diet
 *16 The Father did not present any evidence to demonstrate        and feeding regimen and he did not learn her diaper size until
he had learned from his services how to control his violent        trial. There was no evidence of his ability to care for the Child.
behavior. The Father attended the Batterers Intervention           Caseworker Charles testified the Father had not demonstrated
                                                                   an ability to properly parent the Child.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                                                                  asked about his support system, the Father answered, “there's
The Father's rights to the Mother's five-year old son, the        no need I can—I got the means to do it on my own.”The
Brother, were terminated. He acknowledged he had received         Father then testified that if the need arose, his two sisters
the termination documents, but he did not appear at the           would help him if he were awarded custody of the Child. One
termination proceedings or otherwise contest the termination.     sister had two children, and the Father testified that if he were
He later admitted he did not read the documents. The Father       granted custody he would get advice from that sister, and she
claimed at trial that he sought to have DNA testing done to       could take care of the Child while he was at work. He testified
confirm his parentage to the Brother, but the Grandparents        that he had a car seat for the Child. The Father also testified
never responded to his request. The Grandmother denied            that he had his own two-bedroom apartment and could get a
that the Father ever asked to have DNA testing done. The          crib and other items for the Child from his sister.
Father acknowledged he never provided any support for
the Brother. The record showed the Father assaulted the           His other sister (the Aunt) lived with his parents and cared
Mother when she was pregnant with the Brother. When asked         for his disabled mother. She had no children. She had no
why he never helped the Grandparents with the Brother,            contact with the Child or the Brother. There was evidence
he replied, “I haven't had a DNA test of my five-year-old         the Aunt also has violent tendencies. On April 10, 2013,
child.”The Father admitted in his interview with the counselor    police responded to a family violence report at the Father's
that he is the father of the Mother's five-year old son. He       family residence. 5 The Father's mother told police that her
told the counselor the Brother lived with his grandparents        daughter, the Aunt, hit her with a metal pipe on the left side
and denied that there was a previous CPS case. He also            of her body and she was afraid of further attacks. The officer
acknowledged his parentage of the Brother several times           observed bruising, and filed a charge of assault on a family
during these termination proceedings. The Father had not          member against the Aunt. The assault charge against the Aunt
seen the Brother since “early going of the kid.” He did           was later dismissed. At trial, the Aunt denied the assault.
not know the Grandparents had raised the Brother since            The Father claimed that he was not aware of the assault.
shortly after his birth or that the Brother and the Child had a   He acknowledged, however, that he knew there had been a
relationship.                                                     criminal case.

 *17 The Grandmother testified that she and her husband           5       At trial, the Father testified that he lived with his mother,
contacted CPS about the Mother's neglect of the Brother,
                                                                          father and sister. He then said he moved out of that home
leading to the termination proceedings. The Grandmother had
                                                                          in November of 2013. He later acknowledged that the
raised the Brother since shortly after his birth. She rushed to           house was jointly held in his and his parents' names.
the hospital after the Child was born and the Mother notified
                                                                  The Grandmother testified at the December hearing that
her CPS planned to take custody. She testified none of the
                                                                  she was entering the case to ensure the Child has a safe
Father's family came forward seeking to care for the Child.
                                                                  environment. Her goal in intervening in the case was to
The Grandmother had attended every hearing in this case.
                                                                  prevent the Father from obtaining custody. She testified that
                                                                  after the previous termination proceeding, she adopted the
The Grandmother also testified that the Mother again became
                                                                  Brother, who was born to her daughter and the Father. The
pregnant after the Brother's birth, and the Father asked her
                                                                  Grandmother testified that in her opinion both parents' rights
to terminate that pregnancy. The Mother was pregnant again
                                                                  to the Child should be terminated.
during these proceedings, and the Father acknowledged that
it was possible he was the biological father of the unborn
                                                                   *18 The Grandmother reported that the Child's foster
child. He expressed little interest, but stated he would pursue
                                                                  parents were very supportive of her and her husband's efforts
custody “after the DNA test.”
                                                                  to establish a relationship with the Child. They have met
                                                                  many times at each other's homes. The Grandparents and the
e. Plans for the Child and Support Systems                        foster parents believe it is important for the Child to have
The Father described few definite plans or preparations for       a relationship with her Brother. If the foster parents were
taking custody of the Child. The Father had not shown the         not granted custody of the Child, the Grandmother and her
Department that any family support was available to him           husband requested custody. She testified she would maintain
until the trial, and the Department had not had an opportunity    a relationship with the caregivers, and that the Child would
to interact with the Father's family. Even during trial, when     be able to continue her relationship with her Brother.


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In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                                                                            retention of case beyond one-year anniversary of
In sum, the record contains sufficient evidence to support the              the Department's conservatorship if the court finds
best interest finding based on the Father's criminal history of             extraordinary circumstances necessitate that the child
domestic violence, his failure to fully comply with the court-              remain in the Department's temporary custody). He has
                                                                            not carried this complaint forward on appeal.
ordered services for reunification, his continued relationship
with the drug-using Mother, his limited interactions with the
Child, and his failure to support her or bond with her. Viewing      1. Appointed Counsel
all the evidence in the light most favorable to the judgment,         *19 Texas has adopted a statutory scheme for providing
we conclude that a fact finder could have formed a firm belief       counsel to assist indigent parents, mandating the appointment
or conviction that termination of the Father's parental rights       of an attorney ad litem for an indigent parent who opposes
is in the Child's best interest. See J.F.C., 96 S.W.3d at 265–       the termination of the parent-child relationship in a suit
66. In light of the entire record, the disputed evidence that        filed by a governmental entity. Tex. Fam.Code § 107.013(a)
a reasonable fact finder could not have credited in favor of         (1) (emphasis supplied); see In re E.A .F., 424 S.W.3d
the best-interest finding is not so significant that a fact finder   742, 747 (Tex.App.-Houston [14th Dist.] 2014, pet. filed).
could not reasonably have formed a firm belief or conviction         Specifically, the Family Code provides that in suits filed
that termination of the Father's parental rights is in the Child's   by a governmental entity the trial court “shall appoint
best interest. See In re H.R.M., 209 S.W.3d at 108. Based on         an attorney ad litem to represent the interests of: (1) an
the numerous inconsistencies in the Father's testimony, the          indigent parent of the child who responds in opposition
factfinder was entitled to discredit the Father's self-serving       to the termination....”Tex. Fam.Code Ann. § 107.013(a)(1)
statements that he did not assault the Mother, he did not            (emphasis supplied); see also In re C.D.S., 172 S.W.3d 179,
use drugs, and he was not aware the Mother used drugs.               186 (Tex.App.-Fort Worth 2005, no pet.)(holding the trial
After considering the relevant factors under the appropriate         court was required to appoint an attorney ad litem to represent
standards of review, we hold the evidence is legally and             an indigent parent in a government-initiated termination
factually sufficient to support the trial court's finding that       proceeding, and the failure to do so constituted reversible
termination of the parent-child relationship is in the Child's       error).
best interest. Therefore, we overrule the Father's second issue.
                                                                     The appointment of an attorney ad litem is required whether
                                                                     or not the indigent parent requests an attorney. See In
B. Motion for New Trial                                              re J.M., 361 S.W.3d 734, 739 (Tex.App.-Amarillo 2012,
In his first issue, the Father argues the trial court erred          no pet.)(holding the trial court committed reversible error
in denying his motion for new trial, in which he alleged             by proceeding without appointing an attorney ad litem,
ineffective assistance of counsel, improper dismissal of             even though indigent mother did not request an attorney).
his appointed counsel, and abuse of discretion in denying            A parent's filing of an affidavit of indigency “trigger[s]
his motion for continuance. 6 The Father first asserts his           the process for mandatory appointment of an attorney ad
appointed counsel was wrongfully released, claiming he was           litem.”In re V.L.B., ––– S.W.3d ––––, No. 01–14–00201–
indigent and entitled to appointed counsel. The Father claims        CV, 2014 WL 4373567, at *3 (Tex.App.-Houston [1st Dist.]
his appointed counsel failed to conduct discovery during             Sept. 4, 2014, no pet. h.) (quoting In re K.L.L.H., No. 06–09–
the eight moths she represented him, rendering ineffective           00067–CV, 2010 WL 87043, at *5 (Tex.App.-Texarkana Jan.
assistance of counsel. After the allegedly improper release of       12, 2010, pet. denied) (mem.op.)). After a parent has filed an
his appointed counsel, the Father claims it was too late for         affidavit of indigence, the court may, but is not required to,
his new counsel to conduct discovery, depriving him of a fair        conduct a hearing to determine whether the parent is indigent.
trial. He also claims the trial court denied his requests for a      SeeTex. Fam.Code § 263.061(b).
continuance. We first address whether the Father's appointed
counsel was improperly dismissed.                                    On February 14, 2013, the Father completed a pre-printed
                                                                     form “Indigency Affidavit,” in which he asked the court
6                                                                    to appoint an attorney to represent him in the termination
        The Father also alleged in his motion for new
                                                                     proceeding. The Father acknowledged in the affidavit that he
        trial that the six-month extension of the dismissal
                                                                     was employed as an engineer and worked 40 hours per week.
        deadline was unlawfully granted outside section
        263.401. SeeTex. Fam.Code § 263.401 (permitting
                                                                     He left blank the space for his hourly, weekly, or monthly
                                                                     salary. He acknowledged that he had received a paycheck


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In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

in the amount of $998 the week before and expected to            The Father also frames his complaint as an allegation
receive another paycheck the next day. The form does not         that the trial court abused its discretion by “the forced
identify whether the $998 amount was gross or net, weekly        discharge of counsel.” The record reflects that the court
or monthly. The Father swore that he paid $700 per month in      did not “discharge” appointed counsel, but rather, the court
“rent/house payment.” He also stated he had about $500 in his    reconsidered the Father's claim of indigence. The Father
checking account, and he owned a 1998 automobile with a fair     also complains there is no written motion for the removal
market value of $2,500. He also modified the form to include     of appointed counsel, but he has cited no authority that a
a payment of $2,500 per month in legal fees. No reporter's       written motion is required under the facts presented here. The
record of a hearing to determine indigence is included in our    Department's oral request was sufficient. SeeTex. Fam.Code
record.                                                          § 107.013(e) (permitting the court to reconsider indigence
                                                                 “on the motion of the parent, the attorney ad litem for the
The parties agree that the trial court appointed counsel         parent, or the attorney representing the governmental entity”);
to represent appellant shortly thereafter. Months later, on      cf.Tex.R. Civ. P. 12 (requiring “sworn, written motion” to
October 3, 2013, while testifying at a status hearing, the       show authority).
Father acknowledged his salary was $70,000 per year and that
his net monthly salary was about $3,500. He acknowledged         We review the trial court's determination of indigency in
that he paid no rent and had been living with his sister since   a parental termination case under an abuse of discretion
January, before the affidavit of indigence was signed. He did    standard. In re C.D.S., 172 S.W.3d 179, 184 (Tex.App.-
not claim that he continued to pay $2,500 monthly in legal       Fort Worth 2005, no pet.). We will conclude the trial court
fees, as his criminal case had been dismissed after completion   abused its discretion if it acted without reference to any
of BI PP. He confirmed he had no debts and was not “poor.”       guiding rules or principles or in an arbitrary and unreasonable
                                                                 manner. Id. (citing Downer v. Aquamarine Operators, Inc.,
 *20 The Department then requested that the court remove         701 S.W.2d 238, 242 (Tex.1985)). As the fact-finder, the trial
appointed counsel because the Father is not indigent. The        court is the sole judge of the credibility of the witnesses and
court informed the Father “your testimony, sir, does not match   evidence. In re A.R., 236 S.W.3d 460, 471 (Tex.App.-Dallas
your Affidavit. Your Affidavit shows that you make less than     2007, no pet.). We may not reverse the trial court's decision
half of what you just testified that you earn.” 7 The court      simply because we might have reached a different result. See
then found that the Father is not indigent. The court granted    Downer, 701 S.W.2d at 242.
appointed counsel's request to be excused. The trial court
informed appellant that he represented himself until he hired    Generally, the test for indigency requires the claimant to
an attorney, and the court strongly recommended that the         prove, by a preponderance of the evidence, that he would
Father hire an attorney before the trial setting on December     be unable to pay the costs if he really wanted and made a
12, 2013.                                                        good faith effort to do so. Few v. Few, 271 S.W.3d 341, 345
                                                                 (Tex.App.-El Paso 2008, pet. denied).Family Code Section
7                                                                107.013 does not define “indigent.” One court has defined
       The trial court's statement indicates that court had
                                                                 “indigent” in section 107.013(a)(1) as “a person who does not
       considered the $998 paycheck shown on the Father's
                                                                 have the resources, nor is able to obtain the resources, to hire
       affidavit as covering a two-week pay period, when he
       apparently was paid weekly.                               and retain an attorney for representation in the termination
                                                                 case.”See In re C.D.S., 172 S. W.3d at 185. The burden of
The Father argues on appeal that the record does not rebut
                                                                 proof rests on the individual seeking to establish indigent
the presumption that he remained indigent throughout the
                                                                 status to prove that he could not pay attorney's fees or costs
proceedings. We disagree. See In re P.E., No. 05–12–00944–
                                                                 associated with the suit. In re D.L.W., No. 14–04–00703–
CV, 2012 WL 5378250, at *2 (Tex.App.-Dallas Nov. 1,
                                                                 CV, 2005 WL 486613, at *1 (Tex.App.-Houston [14th Dist.]
2012, no pet.)(mem.op.) (finding no abuse of discretion
                                                                 Mar. 3, 2005, no pet.) (mem.op.) (holding appellant did not
in trial court's order sustaining contest to indigence based
                                                                 meet her burden to establish she was entitled to appointed
on discrepancies between the father's affidavit and his
                                                                 counsel in a termination proceeding, citing Allred v. Lowry,
testimony). The Father's testimony is sufficient for the trial
                                                                 597 S.W.2d 353, 355 (Tex.1980)).
court to have determined he was not indigent.




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In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

 *21 In making an indigence determination, the court can          did. Although the Father stated he left messages, he did not
consider the purported indigent's income, source of income,       hear back from Solis. He asserted that he saved money for
assets, property owned, outstanding obligations, necessary        a new attorney's retainer and was able to find an attorney
expenses, number and ages of dependents, and spousal              he could afford in early December. The Father's retained
income available to the defendant. In re C.D.S., 172 S.W.3d       attorney, Rushing, appeared at the December trial setting. Our
at 185. Here, the trial court heard and considered evidence       record contains no request for a continuance. Nonetheless,
through the Father's own testimony that the Father makes over     trial was postponed until January 27, 2014. At the beginning
$70,000 per year and has no debts. While the Father asserts       of trial on January 27, 2014, new retained counsel, Acosta
he completed the affidavit truthfully, it is less than clear      and Pons, appeared for the Father, and our record contains
and is arguably misleading. The only expenses shown on the        no explanation for the Father's decision to change attorneys.
affidavit were the payments to an attorney and a monthly rent     Trial began briefly but was continued for another month. On
expense that appellant later acknowledged he did not pay. The     the record before us, the Father has not established that the
Father provided no testimony or supporting documentation. 8       trial court's decision denying his entitlement to an appointed
                                                                  attorney ad litem prejudiced his ability to prepare for trial. We
8                                                                 hold the trial court did not abuse its discretion.
       The record reflects the Father was ordered to provide
       additional information about his financial status at the
       beginning of the case. In the emergency order awarding
                                                                  2. Ineffective Assistance of Counsel
       temporary custody of the Child to the Department, the
                                                                   *22 As part of his first issue, the Father asserts his appointed
       court ordered the Father to “furnish to the Department
                                                                  counsel provided ineffective assistance. The Father's motion
       and the Court information sufficient to accurately
       identify [his] net resources and ability to pay child
                                                                  for new trial was supported by the Father's affidavit in which
       support along with copies of income tax returns for        he stated he learned Solis would no longer represent him at
       the past two years, any financial statements, bank         the October 3, 2013, hearing. He alleged he was not told Solis
       statements, and current pay stubs, pursuant to Rule 196,   had not requested discovery. He further stated, “Had I known
       Texas Rules of Civil Procedure and § 154.063, Texas        that I was up against such a tight deadline, I would have asked
       Family Code.”There is no indication in the record that     the judge for more time, I also would have had [sic ] made
       the Father complied with this order.                       every effort to have obtained a lawyer so that my new lawyer
The Family Code provides that the appointed attorney ad           would have been able to request discovery.”
litem's duties continue until the termination proceedings are
dismissed or finally concluded unless the attorney is relieved    The statutory right to counsel in parental rights termination
or replaced “after a finding of good cause is rendered by         cases includes a guarantee that counsel will perform
the court on the record.”Tex. Fam.Code § 107.016(2). Based        effectively. In re B.G., 317 S.W.3d 250, 253–54 (Tex.2010).
on the evidence recited above, the court determined the           In parental rights termination cases, the Supreme Court
Father was not indigent and therefore was not entitled to         of Texas has adopted the Strickland test that establishes
appointed counsel. The trial court made findings on the record    the standards for effective assistance in criminal cases.
showing good cause to remove the appointed attorney ad            See In re M.S., 115 S.W.3d 534, 544–45 (Tex.2003)
litem. Therefore, the court complied with section 107.016(2).     (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
                                                                  2052 74 (1984)). Under the well-established Strickland
There is no written order removing counsel; the court granted     test, proving ineffective assistance of counsel requires a
appointed counsel's request to be excused at the conclusion       showing that (1) counsel made errors so serious that counsel
of the October 3, 2013, hearing. The court advised the            was not functioning as “counsel” guaranteed by the Sixth
Father that trial was scheduled in December, and strongly         Amendment, and (2) the deficient performance prejudiced the
recommended the Father retain counsel before trial. The           defense, which requires showing that counsel's errors were so
Father could have made arrangements to retain the same            serious as to deprive the defendant of a fair trial whose result
counsel, which he claimed he attempted to do. In his affidavit    is reliable. In re H.R.M., 209 S.W.3d 105, 111 (Tex.2006).
supporting his motion for new trial, the Father stated that he
spoke with Solis immediately after she was released about         In adopting the Strickland test for parental termination
remaining on the case as his retained attorney. She instructed    cases, the Supreme Court of Texas explained that courts
him to call her office, which he stated in the affidavit he       must primarily focus on whether counsel performed in a
                                                                  reasonably effective manner. In re M.S., 115 S.W.3d at 545.


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In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

Reviewing courts must give great deference to counsel's                     case addressing failure to disqualify a trustee from
performance, indulging a strong presumption that counsel's                  serving as the independent executor. Olguin has no
conduct falls within the wide range of reasonable professional              application to the issues here.
assistance, including the possibility that counsel's actions are    In support of his argument, the Father cites Johnson v. State,
strategic. Id. An appellant bears the burden to overcome            169 S.W.3d 223, 231–32 (Tex.Crim.App.2005), addressing
this presumption. See Strickland, 466 U.S. at 689, 104 S.Ct.        counsel's violation of a defendant's right to testify. Automatic
2052. When the record is silent concerning the reasons for          reversal without a harm analysis applies only when the
trial counsel's actions, we do not engage in speculation to         trial court has committed structural error. Id. at 232. If the
find ineffective assistance of counsel. Walker, 312 S.W.3d at       complained of deprivation is caused by defense counsel, the
623 (citing Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-           Strickland analysis applies. Id.
Houston [1st Dist.] 1996, no pet.)). Accordingly, ineffective
assistance claims must be firmly found in the record, and the       Here, the Father was not deprived of counsel. He was
record must affirmatively show the alleged ineffectiveness.         represented by two lawyers at trial, and the record reflects
Walker, 312 S.W.3d at 622–23; see also In re L.C.W.,                these lawyers actively participated in the trial, making
411 S.W.3d 116, 127 (Tex.App.-El Paso 2013, no pet.).               appropriate objections and examining witnesses. The failure
Challenged conduct constitutes ineffective assistance only          to conduct discovery is not structural error, and courts have
when it is “so outrageous that no competent attorney would          found that the failure may be trial strategy, absent proof to
have engaged in it.”In re H.R.M., 209 S.W.3d at 111 (citing         the contrary. See, e.g., Martin v.. State, 265 S.W.3d 435, 441
Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).           (Tex.App.-Houston [1st Dist.] 2007, no pet.)(stating counsel
                                                                    may have failed to request breath test results as strategy
Under the second prong of the Strickland test, an appellant         to allow the jury to believe the State had “conveniently
must establish that there is a reasonable probability that          lost” exculpatory evidence). In criminal cases, the failure to
but for his attorney's deficient performance, the outcome           investigate will require reversal only if the accused's only
of his case would have been different. See Strickland, 466          viable defense was not advanced and there is a reasonable
U.S. at 694, 104 S.Ct. 2052; In re M.S., 115 S.W.3d at              probability that but for this failure, the result would have been
550. A “reasonable probability” is one that is “sufficient to       different. Id.
undermine confidence in the outcome.”Strickland, 466 U.S.
at 694, 104 S.Ct. 2052; Jackson v. State, 973 S.W.2d 954,           The Father has not alleged how any discovery would have
956 (Tex.Crim.App.1998). If the Strickland test is not met, an      changed the evidence presented at trial. See In re K.M.H.,
appellant's ineffective assistance of counsel claim is defeated.    181 S.W.3d 1, 9 (Tex.App.-Houston [14th Dist.] 2005, no
See In re M.S., 115 S.W.3d at 545; see also Strickland, 466         pet.) (rejecting ineffective assistance issue where there was no
U.S. at 700, 104 S.Ct. 2052.                                        showing in the record that discovery directed to CPS would
                                                                    have factually changed any of the proof at trial). The record
 *23 In this case, the Father complains that his appointed          demonstrates that the Father had ample means available to
counsel failed to conduct discovery to determine the status of      determine what actions were required to comply with the
his compliance with his service plan. The Father asserts that       service plan. The Father was aware of the plan's requirements;
he was harmed by the lack of discovery because he was not           he signed the plan on February 5, 2013. The plan had detailed
aware he had not complied with the terms of his service plan,       information about scheduling services. The plan expressly
and the failure to conduct discovery was “structural” error         provides: “For information about the Family Service Plan
amounting to a complete denial of counsel. 9 “Structural”           or your child(ren), please contact:” the case worker, whose
errors are federal constitutional errors so labeled by the          name and phone number were provided in the plan. The
United States Supreme Court. Cain v. State, 947 S.W.2d 262,         Father was present at regular status hearings at which his
264 (Tex.Crim.App.1997). The total deprivation of counsel           progress in completing the requirements of his service plan
to an indigent defendant at trial is structural error. Johnson v.   was discussed. The Father did not complain to the court until
U.S., 520 U.S. 461, 468–69, 117 S.Ct. 1544, (1997) (citing          trial that he had difficulty scheduling services due to his
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963)).           previous caseworker's failure to return his calls.

9                                                                    *24 In addition, the Father did not present his former
        The Father cites Olguin v. Jungman, 931 S.W.2d 607,
        611 (Tex.App.-San Antonio 1996, no writ), a probate
                                                                    attorney Solis at the hearing on his motion for new trial to



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In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

testify about her actions and the reasons for those actions.        or deny a motion for continuance is within the trial court's
There is nothing in the record before us showing counsel's          sound discretion. SeeTex.R. Civ. P. 251. The trial court's
trial strategy or that it was unreasonable. The Father's original   action in denying a continuance will not be disturbed unless
trial counsel was not presented to advise the court whether         the record discloses a clear abuse of discretion. State v. Wood
she informed appellant about discovery issues or deadlines.         Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988).
Likewise, the Father's retained trial attorneys did not testify
about what steps they took to prepare for trial or any               *25 First, our record contains no written motion for
difficulties they had in those preparations. The record reflects    continuance. Appellant's first retained counsel, Rushing,
the Father was represented by counsel at every hearing              appeared at the permanency hearing on December 12, 2014,
after he was served with the termination suit, and he was           the date trial had first been scheduled to commence. The
represented by two attorneys at trial.                              record of that hearing does not reflect Rushing requested a
                                                                    continuance. In fact, at the conclusion of the hearing, when the
Although the record contains no evidence that any written           trial court set the new trial date for January 23, 2014, Rushing
discovery was propounded, there is likewise no evidence that        replied, “That's fine.”
such written discovery would have produced any fruits or
that there was a necessity for it. In re K.S., 420 S.W.3d           The Father's new counsel, Acosta, orally requested a
852, 856 (Tex.App.-Texarkana 2014, no pet.)(holding trial           continuance at the start of trial on January 23, 2014. His
counsel's failure to file formal discovery in termination case      stated reasons were that he needed time to subpoena a
did not prejudice the father). Without an explanation from          witness and review pictures of the Father's home that he
trial counsel for her actions, we may not, in the face of           had just received. He also stated he would “perhaps” do
the strong presumption in favor of reasonable representation,       some witness preparation and some discovery, but he did
conclude that trial counsel lacked sound strategic reasons for      not specify what he sought to discover. Absent a specific
her conduct. See In re B.M., No. 14–13–00599–CV, 2013               showing of what additional trial preparation might have been
WL 6506659, at *11 (Tex.App.-Houston [14th Dist.] Dec. 10,          made, no abuse of discretion in denying a continuance is
2013, no pet.) (mem.op.) (citing M.S., 115 S.W.3d at 549).          shown. In re L .D.W., No. 14–11–00438–CV, 2013 WL
                                                                    2247383, at *10 (Tex.App.-Houston [14th Dist.] May 21,
The Father's complaint is not firmly established by the             2013, no pet.) (mem.op.) (finding no abuse where motion
record; we may only speculate about why counsel may not             for continuance did not identify witnesses to be subpoenaed,
have conducted formal discovery or what such discovery              what testimony was expected to be elicited from them, or why
may have revealed. See In re R.E.T.R., No. 14–13–00640–             such testimony was material). All other parties were opposed
CV, 2013 WL 6506689, at *11 (Tex. App .-Houston [14th               to the motion. The Department's counsel noted that only one
Dist.] Dec. 10, 2013, no pet.) (mem.op.) (rejecting claim           witness out of several she planned to call was scheduled
that counsel's failure to engage in discovery constituted           for that day and the Father's counsel would have ample
ineffective assistance). The Father has failed to show              time to subpoena any witnesses he might need. The motion
counsel's performance was deficient in this regard and that the     was denied. The Department called the Father as its first
alleged deficient performance prejudiced his defense. See In        witness. The Father asserts his counsel re-urged his motion
re K.M.H., 181 S.W.3d at 9–10.                                      for continuance when presented with documents he had not
                                                                    reviewed. The documents in question were a certified copy
In sum, the Father has not made the showing required under          of the Father's 2010 judgment of conviction for assaulting
Strickland and failed to overcome the strong presumption that       the Mother and the complaint relating to that judgment.
counsel's alleged deficiencies prejudiced the case, deprived        The Father was certainly aware of the conviction, and the
him of a fair trial, or produced an unreliable result. We           court denied the oral motion. The Father's testimony was not
hold the Father has not established he received ineffective         concluded that day, and the trial was continued for over a
assistance of counsel.                                              month until February 27, 2014.

                                                                    The law is well settled that a motion for continuance must be
3. Denial of Continuance                                            in writing, state the specific facts supporting the motion, and
In his motion for new trial, the Father also alleged the trial      be verified or supported by affidavit. SeeTex.R. Civ. P. 251,
court abused its discretion and deprived him of due process         252; In re E.L.T., 93 S.W.3d 372, 375 (Tex.App.-Houston
by denying his motion for continuance. The decision to grant


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             17
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

[14th Dist.] 2002, no pet.) (citing Villegas v. Carter, 711         failed to show the lack of representation was not due to his
S.W.2d 624, 626 (Tex.1986)). If a motion for continuance            own fault or negligence). We conclude the trial court did not
is not made in writing and verified, it is presumed that the        abuse its discretion in denying the Father's oral request for a
trial court did not abuse its discretion in denying it. E.L.T.,     continuance. Accordingly, we overrule the Father's first issue.
93 S.W.3d at 375 (holding that no abuse of discretion was
shown where appellant did not comply with Rule 251); see
also Green v. Tex. Dep't of Protective & Regulatory Servs., 25      C. Reimbursement for Attorney's Fees
S.W.3d 213, 218 (Tex.App.-El Paso 2000, no pet.)(holding            Finally, in his fourth issue, the Father asserts that the trial
the denial of an oral request for a continuance does not            court erred in ordering him to reimburse the county for
constitute an abuse of discretion).                                 the attorney's fees incurred by his court-appointed counsel.
                                                                    The Department asserts, and we agree, that the Father has
In Villegas, which the Father cited, the Supreme Court of           waived this complaint by failing to bring it to the trial court's
Texas found that this presumption did not apply to a lay            attention. SeeTex.R.App. P. 33.1; Harris Cnty. Children
movant who, without fault, had his attorney withdraw his            Protective Servs. v. Richker, 2 S.W.3d 741, 743 (Tex.App.-
representation two days before trial and refuse to turn over        Houston [14th Dist .] 1999, no pet.) (holding that because
the case file. 711 S.W.2d at 626. The court stated that when        there was no claim in any document in the trial court that
the reason for a continuance is the withdrawal of counsel,          the judgment should not have ordered payment of appointed
the party moving for the continuance must show that his             attorney fees without evidence on indigence, the complaint
failure to be represented at trial was not due to his own fault     was waived). Nonetheless, we briefly address the issue.
or negligence. Id. Villegas may be distinguished from this
case in several respects. Here, the Father was not without          The Family Code provides that a court-appointed attorney ad
counsel at trial. In addition, the court did not grant counsel's    litem for a parent is to be paid by the parents of the child
motion to withdraw; the court determined the Father was not         unless the parents are indigent.Tex. Fam.Code § 107.015(a).
entitled to appointed counsel. Moreover, the trial court clearly    In its petition, the Department asked that the Father reimburse
determined that removal of appointed counsel was due to the         the county for fees paid to the attorney ad litem if he had the
Father's fault in misrepresenting his financial status. The court   money to pay those fees. Section 107.015 clearly authorizes
declared, “he committed a fraud on this court.”                     a court to require a parent to defray the cost of attorneys
                                                                    appointed in the case if the court determines the parent is
 *26 We also find Harrison v. Harrison, 367 S.W.3d 822              “able.” Tex. Fam.Code § 107.015(b). Only if indigency of
(Tex.App.-Houston [14th Dist.] 2012, pet. denied), cited by         the parents is shown may the county be ordered to pay fees
the Father, does not control the disposition of this issue. This    for an attorney at litem for a parent. Id. at § 107.015(c).“The
court held in Harrison that the trial court abused its discretion   court may not award attorney ad litem fees under this chapter
in denying the wife's motion for continuance after permitting       against the state, a state agency, or a political subdivision of
her counsel to withdraw over her objection forty days before        the state except as provided by this subchapter.”Id.
trial, based on his unsupported claim that the wife had not paid
all of his fees.Id. at 835. We also found that the wife was not      *27 The Father argues that having determined he was
at fault. Id. at 833–35 (citing Villegas, 711 S.W.2d at 626).       indigent based on his affidavit, the trial court's discretion to
The wife testified to her unsuccessful efforts to find a new        reverse that decision was limited. We disagree. As discussed
attorney, and when her request for a continuance was denied,        above, the Father acknowledged he was not “poor,” he earned
she proceeded to trial without counsel. Id. at 831–32.              $70,000 annually, and he was not in debt. He confirmed,
                                                                    however, that he requested that the court appoint an attorney
Here, the Father had time to, and in fact did, retain counsel       for him, and he testified he did not believe he should have
before trial. Counsel did not allege or establish any specific      to pay for his court-appointed attorney. The record supports
trial preparation that required additional time. In addition,       the trial court's determination that the Father is not indigent.
the record supports the trial court's determination that the        Accordingly, the court was required to order the Father to
Father was at fault. See Qurashi v. Jabeen, No. 14–12–              pay the court-appointed attorney ad litem's fees. SeeTex.
00858–CV, 2013 WL 2644182, at *5 (Tex.App.-Houston                  Fam.Code § 107.015(c).
[14th Dist.] June 11, 2013, no pet .) (mem.op.) (finding no
abuse of discretion in denying continuance where appellant          We overrule the Father's fourth issue.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             18
In re G.S., Not Reported in S.W.3d (2014)
2014 WL 4699480

                   V. CONCLUSION

Having overruled the Father's issues, we order the judgment       All Citations
of the trial court affirmed.                                      Not Reported in S.W.3d, 2014 WL 4699480

End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            19
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

                                                                         H.B.N.S. was born on July 23, 1998. For reasons not
                                                                         relevant to this appeal, the birth mother, Christina Smith,
     KeyCite Yellow Flag - Negative Treatment                            allowed H.B.N.S. to go home from the hospital with
Distinguished by Wells Fargo Bank, N.A. v. Ballestas,   Tex.App.-Hous.
                                                                         appellants, Dwight and Paula Bolton (the “Boltons”). Smith
(1 Dist.),  May 12, 2011
                                                                         had originally met Paula Bolton when Paula Bolton handled
                  2007 WL 2034913                                        a foreclosure for Smith's father. While the Boltons agreed to
    Only the Westlaw citation is currently available.                    take H.B.N.S. home, they did not do so with the intention of
                                                                         eventually adopting her.
          SEE TX R RAP RULE 47.2 FOR
    DESIGNATION AND SIGNING OF OPINIONS.                                 In the fall of 1998, Danielle Schultz started babysitting
                                                                         H.B.N.S. for the Boltons. The Boltons, through their church,
              MEMORANDUM OPINION
                                                                         sought out Danielle as a babysitter. At that time, Danielle was
               Court of Appeals of Texas,
                                                                         a teenager living with her parents and she brought H.B.N.S.
                 Houston (14th Dist.).
                                                                         to her parents' home. Danielle's parents are appellees, David
          In the Interest of H.B.N. S., a Child.                         and Deborah Schultz (the “Schultzes”). H.B.N. S.'s initial
                                                                         stay with the Schultzes, which was supposed to last a single
      Dwight Bolton and Paula Bolton, Appellants
                                                                         night, extended to several days. From that start, H.B.N.S.
                            v.
                                                                         spent large amounts of time with the Schultzes and they
     David Schultz and Deborah Schultz, Appellees.
                                                                         came to consider her a member of the family. The Schultzes
                                                                         purchased the equipment to care for H.B.N.S. in their home.
                  Nos. 14-05-00410-CV,
                                                                         In addition, as H.B.N.S. got older, she was given her own
          14-06-00102-CV. | July 17, 2007.
                                                                         room at the Schultzes' home as well as at their lake house. The
On Appeal from the 387th District Court, Fort Bend                       Schultzes provided H.B.N.S. with food and clothing as well
County, Texas, Trial Court Cause Numbers 00CV114743 &                    as medical and dental care. H.B.N.S. participated in holiday
05CV142097.                                                              and other special celebrations with the Schultzes and traveled
                                                                         extensively with them on family vacations.
Attorneys and Law Firms
                                                                         In 2000, when H.B.N.S. was almost two years old, Smith
Holly Crampton, Dawn Renee Meade and Joseph J. Finkel,
                                                                         executed a Revocable Mother's Affidavit of Relinquishment
for Dwight Bolton and Paula Bolton.
                                                                         of Parental Rights designating the Boltons as the Managing
Melody B. Royall, Danny Lynn Hoke and Ellen Yarrell, for                 Conservators of H.B.N.S. The Boltons then filed an Original
David Duane Schultz and Deborah Lynn Schultz.                            Petition for Termination of the Parent-Child Relationship
                                                                         and Adoption in July 2000. During the summer of 2003 the
Panel consists of Justices YATES, ANDERSON, and                          Boltons attempted to finalize their adoption of H .B.N. S., but
HUDSON.                                                                  the court expressed concerns about a pending criminal charge
                                                                         against Dwight Bolton and declined to go forward with the
                                                                         adoption at that time. 1
                MEMORANDUM OPINION
                                                                         1      Dwight Bolton has prior convictions for unlawful
JOHN S. ANDERSON, Justice.
                                                                                carrying of a weapon (December 5, 1983); possession of
 *1 In this consolidated appeal, we address multiple issues                     marijuana with the intent to sell (November 27, 1991);
                                                                                and for retaliation (May 21, 1992). During the course
arising out of the efforts by two, unrelated couples to adopt
                                                                                of the litigation, Mr. Bolton admitted to having physical
H.B.N. S., a minor child. We affirm.
                                                                                confrontations with Paula Bolton's teenaged sons, the
                                                                                most serious of which involved Mr. Bolton picking Paula
                                                                                Bolton's thirteen year old son up by the neck and pinning
   FACTUAL AND PROCEDURAL BACKGROUND                                            him to the wall with his feet barely touching the floor. Mr.
                                                                                Bolton also testified he believed this was an appropriate
                                                                                method to deal with a thirteen year old boy. Mr. Bolton
                                                                                also admitted to an incident where he assaulted a husband


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           1
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

       and wife following an automobile accident. Finally, Mr.
       Bolton admitted that he is angry all the time and it is      Following another unsuccessful attempt by the Boltons to
       possible that, when he is angry, be becomes assaultive.      have the Schultzes' intervention dismissed based on lack
       Mr. Bolton's Veterans' Administration medical records        of standing, trial of the Boltons' requested termination
       from July 2003, reveal that he used marijuana daily, had
                                                                    and adoption suit, as well as the Schultzes' intervention,
       problems with chronic anger, and tried to choke Paula
                                                                    commenced on November 29, 2004. On December 28, 2004,
       Bolton on three separate occasions.
                                                                    the trial court entered an Order In Suit Affecting the Parent-
          Paula Bolton went to prison when she was eighteen for
                                                                    Child Relationship in which it (1) confirmed the interim
          violating the provisions of her probation following her
          March 1981 conviction for possession of a controlled      order terminating the parental rights of H.B.N. S.'s birth
          substance. Ms. Bolton admitted she pled guilty to a       parents, (2) denied the Bolton's request to adopt H.B.N. S.,
          charge of aggravated solicitation of prostitution. In     and (3) appointed the Schultzes as H.B.N. S.'s Sole Managing
          July 2004, Ms. Bolton was convicted of theft.             Conservators and the Boltons as her Possessory Conservators.
As they learned more about the Boltons, the Schultzes
                                                                    On April 7, 2005 the Schultzes filed suit for the adoption
became concerned about the stability of the Boltons' home
                                                                    of H.B .N.S. At the time the Schultzes filed suit to adopt,
and decided to take legal action regarding H.B.N.S. On
                                                                    H.B.N.S. had lived continuously in the Schultzes' home for
August 22, 2003 the Schultzes filed two original proceedings
                                                                    more than three months. Prior to the trial of the Schultzes'
respecting H.B.N.S. The first suit, Cause No. 03-CV-131572,
                                                                    adoption suit, the Boltons filed several motions. A Motion to
was an Original Petition for Termination and Adoption of
                                                                    Deny Relief in Suit to Adopt was contained in the Boltons'
a Child. In the second action, Cause No. 03-CV-131574,
                                                                    Original Answer. In this motion, the Boltons challenged the
titled Original Petition in Suit Affecting the Parent-Child
                                                                    Schultzes' standing to file a suit to adopt H .B.N.S. The second
Relationship, the Schultzes sought primary conservatorship
                                                                    motion filed by the Boltons was a Motion to Abate or Stay the
of H.B.N.S. The Boltons answered the conservatorship suit
                                                                    Case Pending Appellate Review of the trial court's December
and challenged the Schultzes' standing. The Boltons also
                                                                    28, 2004 order. Finally, the Boltons filed a Motion to Dismiss
answered the termination suit and requested that the court
                                                                    based upon the legal theory of either res judicata or collateral
abate the case until the issue of the Schultzes' standing
                                                                    estoppel. The trial court denied each of these motions and the
was addressed. In response, the Schultzes filed a motion to
                                                                    adoption suit went to trial on November 9, 2005.
consolidate all of the cases related to H.B.N. S.

                                                                    The only evidence from the adoption trial found in the
 *2 On October 14, 2003 the trial court commenced a hearing
                                                                    appellate record consists of three reports filed by social
to address the Schultzes' request to consolidate the three
                                                                    workers Helen Kerlick and Denise Fenwick. These reports
cases and the Boltons' challenge to the Schultzes' standing.
                                                                    contained the social workers' findings that H.B.N.S. appeared
The trial court heard testimony on both October 14, 2003
                                                                    to be tightly bonded to the Schultz family and, based
and October 30, 2003. On October 30, 2003 the Schultzes
                                                                    upon their investigation, they highly recommended that the
filed with the trial court a petition in intervention seeking
                                                                    Schultzes be approved to adopt H.B.N.S. At the conclusion
termination and adoption of H.B.N.S. After the hearing, the
                                                                    of the evidence, the Schultzes' request to adopt H.B.N.S.
trial court dismissed the Schultzes' two original proceedings,
                                                                    was granted and the trial court signed a Decree of Adoption
Cause Numbers 03-CV-131574 and 03-CV131571, but found
                                                                    on December 12, 2005. As part of that decree, the trial
the Schultzes had standing to intervene in the Boltons'
                                                                    court found that any prior orders designating the Boltons
adoption suit to seek managing conservatorship of H.B.N.S.
                                                                    as possessory conservators of H.B.N.S. were no longer in
On November 25, 2003, the trial court entered an interim
                                                                    her best interest and terminated all provisions granting the
order terminating the parental rights of H.B.N. S.'s birth
                                                                    Boltons possession and access to H.B.N. S.
parents.

                                                                    *3 The Boltons appealed the December 28, 2004 order
On November 19, 2004, the Schultzes filed an Intervenors'
Amended Petition and Original Answer in which they asked            in appellate cause number 14-05-00410-CV. 2 The Boltons
the trial court to (1) finalize its interim order terminating       appealed the December 12, 2005 order in appellate cause
the parental rights of H.B.N. S.'s birth parents, (2) deny          number 14-06-00102-CV. We subsequently consolidated the
the Boltons' request to adopt H.B.N. S., and (3) name the           Boltons' appeals.
Schultzes as the Sole Managing Conservators of H.B.N. S.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

2      While the Boltons have appealed the trial court's               v. Regions Bank, 162 S.W.3d 859, 864 (Tex.App.-Texarkana
       December 28, 2004 order, they have not raised any               2005, pet. denied) (“Generally, only the entity that has not
       issues on appeal contesting the trial court's denial of         been properly served has standing to challenge the lack of
       their request to adopt H.B.N.S. Instead, the Boltons have       due process.”); see also In re D. C., 128 S.W.3d 707, 713
       addressed their appeal exclusively at the trial court's         (Tex.App.-Fort Worth 2004, no pet.)(holding mother did not
       handling of the Schultzes' intervention and its division of     have standing on appeal to raise issue concerning service
       responsibilities in the December 28, 2004 final order.          by publication on unknown biological father who did not
                                                                       appeal). As the Boltons do not have standing to challenge the
                                                                       validity of service on H.B.N. S.'s birth parents, we overrule
                         DISCUSSION
                                                                       their first issue, as well as their fourth and fifth questions.
In appellate cause number 14-05-00410-CV, the Boltons
challenge the trial court's handling of the Schultzes'
                                                                       B. The Schultzes Had Standing to Intervene in the
intervention into the Boltons' termination and adoption suit
                                                                       Boltons' Pending Termination and Adoption Suit
as well as the December 28, 2004 order defining the rights
                                                                       In their second issue, as well as questions one, two, and three,
and duties of the individual conservators. 3 The Boltons also          the Boltons argue the trial court abused its discretion when it
raise three issues in appellate cause number 14-06-00102-CV.           found the Schultzes had standing to intervene in the Boltons'
In their second appeal, the Boltons initially argue the trial          termination and adoption suit. We disagree.
court erred when it denied their motion to dismiss or abate the
Schultzes' adoption suit pending the outcome of their appeal
in 14-05-00410-CV. Next, the Boltons contend the Schultzes             1. The Standard of Review
did not have standing to adopt H.B.N.S. Finally, the Boltons           In termination cases, the trial court enjoys discretion when
assert the Schultzes are barred by res judicata and collateral         deciding a motion to strike an intervention. In re A. M., 60
estoppel from adopting H.B.N.S. We turn first to the Boltons'          S.W.3d 166, 168 (Tex.App.-Houston [1st Dist.] 2001, no
issues raised in cause number 14-05-00410-CV.                          pet.). To constitute an abuse of discretion, the trial court's
                                                                       decision must be arbitrary or unreasonable. Id.
3      In their appellants' brief in cause number 14-05-00410-
       CV, the Boltons raise three issues. In addition, in the
                                                                       2. Standing to Intervene is Measured at the Time the
       argument and authorities section of their brief, the
                                                                       Intervention is Filed
       Boltons pose eight questions, some of which are related
                                                                       Initially, in question number one, the Boltons contend the
       to one of the original three issues, while two raise entirely
       new points not found in the original issues. Where the          date on which the Schultzes' standing to intervene must be
       Boltons' issues and questions intersect, we address them        judged is not the date the Schultzes filed their intervention,
       together. Accordingly, under the Boltons' first issue, we       but the date the Boltons originally filed their suit. In support
       also address their fourth and fifth questions. Within the       of their contention, the Boltons cite In re Garcia, 944 S.W.2d
       Boltons' second issue, we address their first, second,          725 (Tex.App.-Amarillo 1997, no writ). In Garcia, the father
       and third questions. We handle the Boltons' third issue         challenged the standing of non-parents who brought an
       together with their eighth question. Finally, we address        original suit seeking custody of his child. Id. at 726.The non-
       the Boltons' sixth and seventh questions separately.            parents had asserted standing based on section 102.003(9) of
                                                                       the Texas Family Code, which permitted an original suit by
                                                                       persons who had actual care, custody, and control of a child
            I. Cause Number 14-05-00410-CV
                                                                       for six months preceding the filing of the suit. Id. The court
A. The Boltons Lack Standing to Question Service on                    in Garcia determined that the six-month period, and therefore
Other Parties.                                                         the issue of the non-parents' standing, was to be determined as
In their first issue, the Boltons challenge the trial court's          of the date the original suit was filed. Id. at 727.The Boltons'
December 28, 2004 order based on the Boltons' view the                 reliance on Garcia is misplaced as Garcia did not involve
Schultzes' intervention was never perfected because they did           an intervention but the filing of an original lawsuit in which
not serve H.B.N. S .'s birth parents. However, the Boltons             standing was asserted based on an entirely different statute
do not have standing to challenge the validity of service on           from the statute at issue here.
other parties to a suit. See Southwest Const. Receivables, Ltd.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

 *4 In their petition in intervention, the Schultzes, because      S., they cannot establish their standing to intervene in the
of their substantial past contact with H.B.N. S., asserted they    Boltons' termination and adoption suit. We disagree with each
had standing to intervene pursuant to section 102.004(b) of        of the Boltons' contentions.
the Texas Family Code. Under that statute, the trial court
had discretion to permit the Schultzes' intervention if they       Initially, intervening and filing an original suit are distinct
could establish their substantial past contact with the child.     legal actions. In re A. M., 60 S.W.3d at 168.Standing to
TEX. FAM.CODE ANN. § 102.004(b) (Vernon 2002). That                intervene in a suit and filing an original suit are not necessarily
determination is to be made at the point in time when the          the same. Id. Here, the Schultzes assert they had standing
Schultzes filed their petition in intervention. See In re A. M.,   to intervene in the Boltons' original suit based on their
60 S.W.3d at 169 (analyzing the intervenors' contacts with the     substantial past contact with H.B.N. S., as authorized by
child as of the time they filed their petition in intervention).   section 102.004(b) of the Texas Family Code. Tex. Fam.Code
                                                                   Ann. § 102.004(b). In statutory standing cases, such as this
The Boltons also challenge the evidence supporting the trial       one, the analysis is a straight statutory construction of the
court's finding that the Schultzes had substantial past contact    relevant statute to determine upon whom the Texas legislature
with H.B.N.S. sufficient to allow them to intervene in the         conferred standing and whether the claimant in question
Boltons' original termination and adoption suit. The trial         falls in that category. 5 In re Sullivan, 157 S.W.3d 911, 915
court conducted a two-day evidentiary hearing to address           (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding). As
the question of the Schultzes' standing to intervene, among        addressed above in section B(2), the evidence demonstrated
other issues. The evidence introduced during this hearing          the Schultzes had substantial past contact with H.B.N.S. and
established that the Schultzes had a close relationship with       therefore the trial court did not abuse its discretion in finding
H.B.N.S. that commenced in the fall of 1998 and continued          the Schultzes had standing, pursuant to section 102.004(b)
up through the time of the evidentiary hearing. 4 The evidence     of the Texas Family Code, to intervene in the Boltons'
also established that the Boltons initiated this relationship      termination and adoption suit.
and encouraged its continued development. The evidence
demonstrates that the trial court acted within its discretion      5       The Boltons' citation to Mendez v. Brewer, 626 S.W.2d
when it denied the Boltons' motion to dismiss the Schultzes'               498 (Tex.1982), and Guaranty Fed. Sav. Bank v.
intervention in the Boltons' termination and adoption suit                 Horseshoe Oper. Co., 793 S.W.2d 652 (Tex.1990), do
based on their substantive past contact with H.B.N. S.                     not change this result. In Mendez, the Texas Supreme
                                                                           Court, construing section 11.03 of the Texas Family
4                                                                          Code, the predecessor to the current section 102.004,
       This evidence includes (1) testimony that the Schultzes
                                                                           held that foster parents had no justiciable interest and
       provided ongoing care for H.B.N.S. in their home for
                                                                           therefore no standing to intervene in a termination suit.
       extensive and repeated periods of time beginning in
                                                                           Mendez, 626 S.W.2d at 500.However, the Mendez case
       the fall of 1998 and have treated her as a member of
                                                                           was decided before section 11.03 of the Texas Family
       their family; (2) H.B.N.S. accompanied the Schultzes on
                                                                           Code was amended to permit a person with substantial
       numerous family vacations; (3) H.B.N.S. participated in
                                                                           past contact with a child, such as the Schultzes, to bring
       Schultz family celebrations of birthdays and holidays;
                                                                           a termination and adoption suit and therefore has no
       (4) H.B.N.S. had her own rooms at the Schultzes' home
                                                                           precedential value here. Rodarte v. Cox, 828 S.W.2d 65,
       and lake house; and (5) the Schultzes took H.B.N.S. to
                                                                           70 (Tex.App.-Tyler 1991, writ den.).Guaranty addresses
       school, were on the list of people authorized to pick her
                                                                           common law intervention pursuant to Rule 60 of the
       up from school, and even met with H.B.N. S.'s teachers
                                                                           Texas Rules of Civil Procedure and is not applicable to
       regarding her education.
                                                                           this case. Guaranty, 793 S.W.2d at 657.

3. The Requirements to Intervene Are More Relaxed                   *5 As the trial court did not abuse its discretion when
Than The Requirements to File an Original Suit                     it denied the Boltons' motion to dismiss the Schultzes'
In questions two and three, the Boltons argue that since the       intervention, we overrule the Boltons' second issue, as well
requirements to intervene in a termination and adoption suit       as their first, second, and third questions.
are the same as the requirements to institute an original suit
and since the trial court found that the Schultzes did not
                                                                   C. The Bolton's Third Issue, Arguing The Trial Court's
have standing to file their original lawsuits regarding H.B.N.
                                                                   Final Order is Invalid Because it Does Not Adequately



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

Define the Rights and Duties of the Managing and                     elements: (1) the facts sought to be litigated in the second
Possessory Conservators, is Moot                                     action were fully and fairly litigated in the first action; (2)
In their third issue, as well as their eighth question, the          those facts were essential to the judgment in the first action;
Bolton's contend the trial court's December 28, 2004 order           and (3) the parties were cast as adversaries in the first action.
improperly designated both David and Deborah Schultz as              Id. Here, there was no full and fair litigation of the facts
sole managing conservators of H.B.N.S. However, since                sought to be litigated in the second action (the Schultzes'
we affirm the trial court's December 12, 2005 Decree of              intervention in the Boltons' termination and adoption suit)
Adoption granting the Schultzes' request to adopt H.B.N.             in the first action (the Schultzes' two original lawsuits). In
S., this issue, challenging the trial court's December 28,           the first action, the issue litigated was the Schultzes' standing
2004 designation of both David and Deborah Schultz as sole           to file two original lawsuits. In the second action, the issue
managing conservator of H.B.N. S., is moot. Accordingly, we          litigated was the Schultzes' standing to intervene in a lawsuit
overrule the Boltons' third issue and eighth question.               already filed pursuant to section 102.004(b) of the Texas
                                                                     Family Code.TEX. FAM.CODE ANN. § 102.004(b). As
                                                                     addressed above in section B(3), the standing requirements to
D. The Schultzes' Intervention Was Not Barred by The                 file an original lawsuit and the requirements to intervene in
Doctrines of Res Judicata and Collateral Estoppel                    an existing lawsuit are not the same. Because there was no
In their sixth question, the Boltons assert the Schultzes were       prior full and fair litigation of the facts sought to be litigated
barred by the doctrines of res judicata and collateral estoppel      in the second action, the doctrine of collateral estoppel does
from intervening in the Boltons' termination and adoption            not apply. We overrule the Boltons' sixth question.
lawsuit. The Boltons base their argument on the trial court's
dismissal, based on lack of standing, of the Schultzes' Original
Petition for Termination and Adoption and Original Petition          E. The Boltons' Constitutional Rights Were Not Violated
in Suit Affecting Parent-Child Relationship. We disagree.            by the Trial Court's Appointment of the Schultzes as
                                                                     Sole Managing Conservator of H.B.N. S.
Res judicata precludes re-litigation of claims that have been         *6 In their seventh question, the Boltons contend the
finally adjudicated, or that arise out of the same subject matter    trial court's finding, pursuant to section 153.374(b) of the
and could have been litigated in a prior action. Shirvanian          Texas Family Code, that Christina Smith's designation of the
v. Defrates, 161 S.W.3d 102, 111 (Tex.App.-Houston [14th             Boltons as H.B.N. S.'s managing conservators was against
Dist.] 2004, pet. denied). Res judicata requires proof of the        H.B.N. S.'s best interest, violates the Fourteenth Amendment
following elements: (1) a prior final judgment on the merits         to the United States Constitution and Article I, Section
by a court of competent jurisdiction; (2) identity of the parties    19 of the Texas Constitution as it does not recognize the
or those in privity with them; and (3) a second action based         constitutionally protected presumption in favor of the birth
on the same claims as were raised or could have been raised          parent's choice. 6 In support of their argument, the Boltons
in the first action. Id. A prior final judgment on the merits        cite the United States Supreme Court's opinion in Troxel
is lacking here. A decision concerning whether a party has           v.. Granville. 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49
standing is not a decision deciding the merits of a case. In         (2000).
re C.M. C., 192 S.W.3d 866, 869-70 (Tex.App.-Texarkana
2006, no pet.). Dismissal, as happened here to the Schultzes'        6       To the extent question seven can be construed as
two original lawsuits, is the appropriate disposition when
                                                                             arguing the trial court's decision violated any federal
a party lacks standing; it is not a decision on the merits.
                                                                             and state constitutional protections the Boltons are
Id. at 870.As there was no final disposition on the merits                   entitled to as “parents” of H.B.N. S., that argument is
of the Schultzes' original lawsuits, they are not barred by                  based on a false premise. The Boltons are not parents
the doctrine of res judicata from intervening in the Boltons'                as defined by the Texas Family Code. A parent is
termination and adoption lawsuit.                                            defined as a child's mother, presumed father, legally
                                                                             determined father, adjudicated father, acknowledged
The doctrine of collateral estoppel is used to prevent a party               father, or adopted mother or father. TEX. FAM.CODE
from re-litigating an issue that it previously litigated and lost.           ANN. § 101.024(a) (Vernon Supp.2006). The Boltons
James v. City of Houston, 138 S.W.3d 433, 437 (Tex.App.-                     do not fall into any of these categories and therefore
Houston [14th Dist.] 2004, no pet.). To successfully invoke                  are not entitled to the constitutional protections afforded
                                                                             parents. In addition, to the extent question seven can
collateral estoppel, a party must establish the following


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        5
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

        be interpreted as seeking to assert any constitutional       *7 As mandated by statute, the best interest of the child
        protections guaranteed Christina Smith, the Boltons do      is the court's primary consideration in determining issues
        not have standing to assert rights she herself has chosen   of conservatorship and access.TEX. FAM.CODE ANN. §
        not to pursue. See In re D. C., 128 S.W.3d 707, 713         153.002 (Vernon 2002). The United States Supreme Court
        (Tex.App.-Fort Worth 2004, no pet.)(holding mother had
                                                                    has expressly recognized that the best interest of the child is
        no standing on appeal to raise issue concerning service
                                                                    a proper standard for resolving disputes between parents on
        of process on unknown biological father who did not
                                                                    custody issues. Reno v. Flores, 507 U.S. 292, 303-04, 113
        appeal).
                                                                    S.Ct. 1439, 1448,123 L.Ed.2d 1 (1993). While this is not a suit
The Boltons misapply the Troxel case. In Troxel, paternal           between parents, the trial court was still statutorily charged
grandparents, following the death of their grandchildren's          with making a ruling that was in the best interest of the child.
father, filed suit, pursuant to a Washington statute, to obtain     SeeTex. Fam.Code Ann. § 153.374(b). In addition, Texas
increased court ordered visitation with their grandchildren.        courts have repeatedly recognized that the best interest of the
Id., 530 U.S. at 60-61, 120 S.Ct. at 2057-58.The mother             child standard does not violate federal or state constitutional
believed the amount of visitation sought by the grandparents        principles. In re J.R. D., 169 S.W.3d 740, 744 (Tex.App.-
was excessive.Id. The Supreme Court held that the statute           Austin 2005, pet. denied) (holding best interest of the child
providing: (1) that any person may petition a court for             standard does not infringe father's fundamental constitutional
visitation at any time; and (2) that a court may order visitation   right to parent his children); In re R.D. Y., 51 S.W.3d 314,
rights for any person when it finds visitation may be in            324 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (mother
the best interest of the child; violated the substantive due        was not denied due process of law or equal protection of
process rights of the mother. Id., 530 U.S. at 67, 120              law based on the court's finding that the child's best interest
S.Ct. at 2060-61.The Supreme Court held the statute was             weighed against the mother receiving overnight visitation
unconstitutionally overbroad as it gave the state the power to      with child); In re H.D. O., 580 S.W.2d 421, 424 (Tex.App.-
order visitation rights for a third party without any deference     Eastland 1979, no writ) (holding best interest of the child
to a parent's decision as to whether that visitation would not      standard does not violate the due process clause or the equal
be in the child's best interest. Id. The Supreme Court went         protection clause of the Fourteenth Amendment and does not
on to state that the trial court's order was not founded on any     violate Article I, Section 19 of the Texas Constitution). As
special factors that might justify the State's interference with    the best interest of the child standard does not violate federal
the parent's fundamental right to make decisions concerning         or state constitutional protections, we overrule the Boltons'
the rearing of her children. Id., 530 U.S. at 68, 120 S.Ct. at      seventh question.
2061.The Supreme Court noted there was no allegation or
finding that the surviving parent was unfit. Id. Finally, the
Supreme Court stated: “so long as a parent adequately cares
for his or her children (i.e. is fit), there will normally be no                II. Cause Number 14-06-00102-CV
reason for the State to inject itself into the private realm of
                                                                    A. The Trial Court Did Not Abuse Its Discretion When
the family to further question the ability of that parent to
                                                                    it Denied the Boltons' Motion to Dismiss or Abate the
make the best decisions concerning the rearing of that parent's
                                                                    Schultzes' Adoption Lawsuit
children.”Id., 530 U.S. at 68-69, 120 S.Ct. at 2061.Troxel
                                                                    On April 7, 2005 the Schultzes filed an Original Petition for
prohibits state interference with a parent's fundamental right
                                                                    Adoption. Soon thereafter, the Boltons filed two identical
to make decisions concerning the rearing of her children.
                                                                    motions to dismiss or abate the adoption lawsuit pending
The Supreme Court's decision in Troxel does not extend such
                                                                    the outcome of their appeal of the trial court's previous
constitutional protection to the situation found here, where
                                                                    Termination and Custody Order. The trial court denied those
the birth parent relinquishes her parental rights, designates
                                                                    motions. In their first issue in this appeal from the trial court's
a family as her preference for adopting the child, and that
                                                                    adoption decree, the Boltons claim the trial court erred when
family initiates a lawsuit to terminate the birth parents' rights
                                                                    it denied their motions to dismiss or abate as this court had
and adopt the child. Because the birth parent relinquished
                                                                    jurisdiction over the parties and subject matter of the order of
her rights, this case involves exactly those special factors
                                                                    termination. We disagree.
the Supreme Court noted were missing in Troxel, thus no
improper state interference occurred.
                                                                    An appeal from a final order rendered in a suit affecting the
                                                                    parent-child relationship, when allowed by law, shall be as



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

in other civil cases. SeeTex. Fam.Code Ann. § 109.002(a).          at 446.In addition to the pleadings, we may also consider
An appeal from a final order, with or without a supercedeas        relevant evidence and must do so when necessary to resolve
bond, does not suspend the final order unless the trial            the jurisdictional issues raised. Bland Indep. Sch. Dist. v.
court rendering the final order, orders the suspension. Id. §      Blue, 34 S.W.3d 547, 555 (Tex.2000).
109.002(c); see alsoTEX.R.APP. P. 24.2(a)(4). We review a
trial court's decision under an abuse of discretion standard.      In their petition, the Schultzes asserted they had standing to
In re S. A., No 14-98-00586-CV, 1999 WL 397890, at * 4             adopt H.B.N.S. pursuant to section 102.005(3) of the Texas
(Tex.App.-Houston [14th Dist .] June 10, 1999, no pet.)(not        Family Code. This section provides that an adult who has had
designated for publication); Wright v. Wright, 867 S.W.2d          actual possession and control of the child for not less than
807, 817 (Tex.App.-El Paso 1993, writ denied); Morris v.           two months during the three-month period proceeding the
Morris, 654 S.W.2d 789, 790-91 (Tex.App.-Tyler 1983, no            filing of the petition, has standing to request adoption. TEX.
writ). A trial court abuses its discretion if its decision is      FAM.CODE ANN. § 102.005(3) (Vernon 2002). Within their
arbitrary, unreasonable, and without reference to any guiding      petition, the Schultzes stated they would have had possession
rules and principles. In re E.L. T., 93 S.W.3d 372, 375            of H.B.N.S. for at least six months by the time the trial
(Tex.App.-Houston [14th Dist.] 2002, no pet.).                     court heard their request to adopt. There is no reporter's
                                                                   record in this appeal. However, the clerk's record contains the
 *8 The entire record on appeal relevant to this issue consists    following reports: (1) Prescreening Adoptive Home Study;
exclusively of the two identical motions filed by the Boltons.     (2) Post Placement Report to the Court; and (3) the Updated
No evidence is attached to the Boltons' motions. The only          Post Placement Report to the Court. Helen Kerlick and Denise
argument raised by the Boltons in their motions repeats            Fenwick, the social workers handling the adoption, signed
of their argument the Schultzes did not have standing to           these reports. Each of these reports establishes that H.B.N.S.
intervene in the Boltons' termination and adoption lawsuit.        has resided in the Schultzes' home since December 2004. The
Based on this record, we cannot conclude the trial court           suit for adoption was filed on April 7, 2005. As H.B.N.S.
abused its discretion when it denied the Boltons' motions. We      had resided with the Schultzes for at least two months in
overrule the Boltons' first issue.                                 the three months prior to the filing of the adoption suit, the
                                                                   Schultzes had standing to adopt H.B.N.S. See id.We overrule
                                                                   the Boltons' second issue in this appeal.
B. The Schultzes Had Standing to Initiate a Suit to
Adopt H.B.N. S.
In their second issue in this appeal, the Boltons contend the      C. The Schultzes' Suit to Adopt H.B.N.S. Is Not Barred
trial court did not have subject matter jurisdiction because the   by Res Judicata or Collateral Estoppel
Schultzes did not have standing to adopt H.B.N.S. We once           *9 In their third and final issue in this appeal, the Boltons
again disagree.                                                    argue the Schultzes' April 2005 suit to adopt H.B.N.S. is
                                                                   barred by either res judicata or collateral estoppel. Neither
Subject matter jurisdiction is essential to the authority of       doctrine bars the Schultzes' suit.
a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air
Control Bd ., 852 S.W.2d 440, 443 (Tex.1993). Standing             As explained above in section D of part I of this opinion,
is implicit in the concept of subject-matter jurisdiction.         res judicata precludes re-litigation of claims that have been
M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708             finally adjudicated or that arise out of the same subject matter
(Tex.2001). Standing focuses on who may bring an action.           and could have been litigated in a prior action. Shirvanian,
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851               161 S.W.3d at 111.One of the elements of res judicata is proof
(Tex.2000). Standing may be predicated on either statutory         of a prior final judgment on the merits by a court of competent
or common law authority. Everett v. TK-Taito, L.L.C., 178          jurisdiction. Id. A prior final judgment on the merits is lacking
S.W.3d 844, 850 (Tex.App.-Fort Worth 2005, no pet.). A             here. A decision concerning whether a party has standing is
party's standing to pursue and maintain a cause of action is       not a decision deciding the merits of a case. In re C.M. C., 192
a question of law. Coons-Andersen v. Andersen, 104 S.W.3d          S.W.3d at 870.Dismissal, as happened here to the Schultzes'
630, 634 (Tex.App.-Dallas 2003, no pet.). We review the            original adoption lawsuit, Cause No. 03-CV-131572, is the
question of standing de novo. Id. In our review, we take           appropriate disposition when a party lacks standing. Id. A
the factual allegations in the petition as true and construe       dismissal based on lack of standing is not a decision on the
them in favor of the pleader.Tex. Ass'n of Bus., 852 S.W.2d        merits. Id. As there was no final judgment on the merits of the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
In re H.B.N.S., Not Reported in S.W.3d (2007)
2007 WL 2034913

Schultzes' original adoption lawsuit, they were not barred by
                                                                       7       In the August 2003 suit, the Schultzes alleged they had
the doctrine of res judicata from filing their April 2005 suit
seeking to adopt H.B.N. S.                                                     standing to adopt H.B.N.S. under section 102.005(4)
                                                                               of the Texas Family Code. See Tex. Fam.Code Ann.
As previously discussed, the doctrine of collateral estoppel                   § 102.005(4) of the Texas Family Code. See TEX.
                                                                               FAM.CODE ANN. § 102.005(4) (standing based on
is used to prevent a party from re-litigating an issue that it
                                                                               substantial past contact with the child). In April 2005,
previously litigated and lost. James, 138 S.W.3d at 437.To
                                                                               the Schultzes based their standing to adopt H.B.N.S.
successfully invoke collateral estoppel, the first element a
                                                                               on section 102.005(3) of the Texas Family Code. See
party must establish is that the facts sought to be litigated                  id.(Standing based on actual possession and control of
in the second action were fully and fairly litigated in the                    the child for not less than two months during the three
first action. Id. The Boltons' collateral estoppel argument                    month period preceding the filing of the petition).
fails because the facts sought to be litigated in the Schulzes'
April 2005 adoption suit are not the same facts litigated in
the Schultzes' original adoption suit filed in August 2003. In                                CONCLUSION
the first adoption suit, the issue litigated was the Schultzes'
standing to initiate a suit to adopt H.B.N.S. in August 2003,          Having overruled all of the Boltons' issues and questions in
while in the second adoption suit, the issue litigated was the         both appeals, we affirm the trial court's December 28, 2004
Schultzes' standing to initiate a suit to adopt H.B.N.S. in            Order in Suit Affecting the Parent-Child Relationship and
                                                                       December 12, 2005 Decree of Adoption.
April 2005. 7 As the Boltons conceded during oral argument,
a party's standing can change over time, thus, there was
no prior full and fair litigation of the facts supporting the          All Citations
Schultzes' standing to initiate the April 2005 adoption suit and
the doctrine of collateral estoppel does not apply. As neither         Not Reported in S.W.3d, 2007 WL 2034913
res judicata nor collateral estoppel bar the Schultzes' April
2005 adoption suit, we overrule the Boltons' third issue.

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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       8
In re Leon, Not Reported in S.W.3d (2014)
2014 WL 953491

                                                                  Code § 22.221; see alsoTex.R.App. P. 52. In the petition,
                                                                  relator asks this Court to compel the Honorable Sheri Y.
                  2014 WL 953491
                                                                  Dean, presiding judge of the 309th District Court of Harris
   Only the Westlaw citation is currently available.
                                                                  County, to vacate her temporary orders signed November 25,
         SEE TX R RAP RULE 47.2 FOR                               2013, appointing real party in interest Jaime Cesar Aceves as
   DESIGNATION AND SIGNING OF OPINIONS.                           temporary sole managing conservator of the minor children
                                                                  V.M.A. and D.MA.
            MEMORANDUM OPINION
             Court of Appeals of Texas,                           On January 15, 2014, the trial court signed superseding
               Houston (14th Dist.).                              temporary orders in which it explicitly vacated its temporary
                                                                  orders of November 25, 2013. The present petition for writ
             In re Marybell LEON, Relator.
                                                                  of mandamus has been rendered moot by the January 15,
                                                                  2014 orders. See In re Dow Hamm III Corp., No 01–08–
      No. 14–13–01134–CV.        |     March 11, 2014.
                                                                  00235–CV, 2009 WL 2232009, *1–2 (Tex. App .-Houston
Original Proceeding Writ of Mandamus, 309th District Court,       [1st Dist.] July 23, 2009, orig. proceeding) (mem. op. per
Harris County, Texas, Trial Court Cause No.2010–35140.            curiam); In re Office of the Attorney Gen., 276 S.W.3d 611,
                                                                  617 (Tex.App.-Houston [1st Dist.] 2008, orig. proceeding);
Attorneys and Law Firms                                           see also Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505
                                                                  (Tex.1995) (orig.proceeding). If any party intends to seek
Christian Landry, for Marybell Leon.
                                                                  mandamus relief from the superseding orders issued by the
Panel Consists of Chief Justice FROST and Justices                trial court in the underlying matter, a new petition for writ of
JAMISON and WISE.                                                 mandamus is required.

                                                                  Accordingly, the petition for writ of mandamus is dismissed
                                                                  as moot.
              MEMORANDUM OPINION

PER CURIAM.
                                                                  All Citations
 *1 On December 20, 2013, relator Marybell Leon filed a
                                                                  Not Reported in S.W.3d, 2014 WL 953491
petition for writ of mandamus in this Court. SeeTex. Gov't

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              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
In re Smith, Not Reported in S.W.3d (2010)
2010 WL 4324434



                   2010 WL 4324434
     Only the Westlaw citation is currently available.                          MEMORANDUM OPINION

           SEE TX R RAP RULE 47.2 FOR                            Opinion by Justice FITZGERALD.
     DESIGNATION AND SIGNING OF OPINIONS.
                                                                  *1 The trial court appointed the Texas Department of
                Court of Appeals of Texas,                       Aging and Disability Services (DADS) temporary guardian
                          Dallas.                                of the person of Luther Smith. DADS appealed that order.
                                                                 Subsequently, the trial court signed an order appointing
                 In re Luther SMITH, an                          permanent guardians for the person and the estate of Smith.
              Alleged Incapacitated Person.                      We conclude that the appeal is moot and that DADS has
                                                                 not shown the applicability of any exception to the mootness
        No. 05–09–00913–CV.          |     Nov. 3, 2010.         doctrine. Accordingly, we dismiss the appeal.


 West KeySummary
                                                                                     I. BACKGROUND

 1       Mental Health                                           In April 2009, a probate court investigator filed a referral
            Review                                               report in Probate Court No. 2 of Dallas County. The
         The “capable of repetition yet evading review”          investigator averred, among other facts, that Luther Smith
         exception to the mootness doctrine did not              was 85 years old and had been diagnosed with dementia. The
         apply to the appeal of the Texas Department             investigator recommended that the court appoint a guardian
         of Aging and Disability Services (DADS) of an           ad litem for Smith to further investigate the possible need for
         order appointing it the temporary guardian of           a temporary guardianship.
         the person of an elderly man diagnosed with
         dementia, and thus the appeal was dismissed as          The court appointed a guardian ad litem for Smith. The
         moot after a permanent guardian was appointed.          guardian ad litem filed an application for appointment of a
         DADS's evidence failed to show that it had              temporary guardian for Smith, requesting that David Jackson
         a reasonable expectation of being appointed             Wilburn II be appointed. On June 29, 2009, the guardian
         as temporary guardian without notice in other           ad litem filed an amended application for appointment of
         cases.                                                  a temporary guardian in which he omitted Wilburn's name
                                                                 and instead requested only that “a suitable person or suitable
         1 Cases that cite this headnote                         persons” be appointed as Smith's temporary guardian. That
                                                                 same day, the probate court held a hearing and signed an
                                                                 order appointing DADS as the temporary guardian of Smith's
                                                                 person and David Kelton as the temporary guardian of Smith's
On Appeal from the Probate Court No. 2, Dallas County,           estate. The order expired on July 28, 2009.
Texas, Trial Court Cause No. PR–09–0871–P2.
                                                                 DADS filed a motion to vacate the order appointing it as
Attorneys and Law Firms                                          temporary guardian of Smith's person. DADS averred that
                                                                 it had received no notice of the hearing of the application
Greg Abbott, Atty. Gen., David S. Morales, Erika Kane,
                                                                 for temporary guardianship and no notice that the court
Robert B. O'Keefe, Office of Atty. Gen., for Appellant.
                                                                 intended to appoint DADS as Smith's temporary guardian.
Michael Duran, The Duran Firm, Dallas, David D. Kelton,          DADS argued that the order was void for lack of jurisdiction
Addison, Mary C. Burdette, Calloway, Norris, Burdette &          and should be vacated. The guardian ad litem responded to
Weber, Dallas, for Appellee.                                     DADS's motion and also moved to extend the temporary
                                                                 guardianship. On July 28, 2009, the court signed an order
Before Justices       BRIDGES,        FITZGERALD,          and   extending the temporary guardianship for 30 days. On July
FILLMORE.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
In re Smith, Not Reported in S.W.3d (2010)
2010 WL 4324434

31, 2009, DADS filed a notice of appeal from the temporary-      of permanent guardian would moot issues regarding removal
guardianship order and the order extending the temporary-        of temporary guardian); cf. Hamilton Cnty. v. Cooper, No.
guardianship order. The probate court later signed an order      05–07–00307–CV, 2007 WL 2774166, at *1 (Tex.App.-
extending the temporary guardianship indefinitely pending        Dallas Sept.25, 2007, no pet.)(mem.op.) (dismissing appeal
the final hearing of the matter.                                 from temporary injunction as moot after trial court rendered
                                                                 final judgment in the case). In this case, the record establishes
About three weeks after DADS filed its appellate brief in        that a permanent guardian of Smith's person has been
this matter, the probate court signed an order appointing        appointed, and DADS does not dispute that this appointment
Senior Citizens of Greater Dallas as the permanent guardian      terminated any temporary guardianship.
of Smith's person and Michael A. Duran as the permanent
guardian of his estate. Those two parties filed bonds and        DADS contends that its appeal is not moot because the
oaths, and the probate court approved the bonds.                 signing of the permanent-guardianship order did not “cure”
                                                                 the invalid entry of the temporary-guardianship order,
We directed DADS to file a supplemental brief addressing         implying that there is some ongoing harm flowing from
the finality of the order establishing temporary guardianship.   the temporary-guardianship order. But it does not explain
DADS filed a letter brief addressing both that issue and         what this harm is, or how a judgment from this Court
the possibility that the permanent-guardianship order had        could remedy it. DADS also contends that we always retain
rendered the appeal moot.                                        jurisdiction to determine subject-matter jurisdiction. The case
                                                                 DADS cites for this proposition actually states, “Courts
                                                                 always have jurisdiction to determine their own subject matter
                                                                 jurisdiction.”Dolenz v. Vail, 200 S.W.3d 338, 341 (Tex.App.-
                      II. ANALYSIS
                                                                 Dallas 2006, no pet.)(emphasis added). We have found no
 *2 We conclude that the appointments of a permanent             authority supporting the proposition that we can consider
guardian for Smith's person and a permanent guardian for         alleged jurisdictional defects in a trial court's order after an
his estate have rendered this appeal moot. Accordingly, we       appeal has become moot. We reject DADS's contentions and
express no opinion whether the order establishing a temporary    conclude that any issues attacking the propriety of the order
guardianship was final for purposes of appeal.                   appointing DADS as Smith's temporary guardian are moot.


An appeal is moot when a court's action on the merits            Finally, DADS contends that its appeal comes within an
cannot affect the rights of the parties. Zipp v. Wuemling,       exception to the mootness doctrine. An issue does not become
218 S.W.3d 71, 73 (Tex.2007) (per curiam); In re J.G., 301       moot if the challenged act is of such short duration that the
S.W.3d 376, 379 (Tex.App.-Dallas 2009, no pet.). Appellate       appellant cannot obtain review before the issue becomes moot
courts are prohibited from deciding moot controversies.          and there is a reasonable expectation that the same action will
Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86        occur again if the court does not consider the issue. See Blum
(Tex.1999). The mootness doctrine implicates subject-matter      v. Lanier, 997 S.W.2d 259, 264 (Tex.1999). This exception
jurisdiction. Trulock v. City of Duncanville, 277 S.W.3d 920,    applies only in rare circumstances. Trulock, 277 S.W.3d at
923 (Tex.App.-Dallas 2009, no pet.).                             924.“The mere physical or theoretical possibility that the
                                                                 same party may be subjected to the same action again is not
Complaints about an order regarding temporary guardianship       sufficient to satisfy the test.”Id . at 924–25.DADS argues that
ordinarily become moot if a permanent guardian is appointed.     it has a reasonable expectation of facing the same problem
See In re Guardianship of Berry, 105 S.W.3d 665, 666             in the future based on the legislative history of section 875
(Tex.App.-Beaumont 2003, no pet.)(per curiam) (“The              of the probate code. See Senate Comm. on Human Services,
appointment of the temporary guardian is moot now that           Bill Analysis, Tex. H.B. 2795, 76th Leg., R.S. (1999). We
the temporary guardian has been replaced with a permanent        conclude that this legislative history from over a decade
guardian.”); accord In re Guardianship of Humphrey, No.          ago does not show that DADS currently has a reasonable
12–06–00222–CV, 2008 WL 2445503, at *2 (Tex.App.-                expectation of being appointed as temporary guardian without
Tyler June 18, 2008, pet. denied) (mem.op.); see also In re      notice in other cases. At oral argument, DADS advised us
Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex.App.-         of two particular instances in which allegedly similar events
Texarkana 2006, no pet.)(observing that proper appointment       have taken place in other Texas trial courts. But there is no



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
In re Smith, Not Reported in S.W.3d (2010)
2010 WL 4324434

evidence of these instances in the record, and we conclude it
would not be proper to take judicial notice of those alleged                             III. DISPOSITION
facts. See generallyTEX.R. EVID. 201 (governing judicial
notice). Thus, DADS has not demonstrated the applicability          *3 We dismiss the appeal as moot.
of the exception to the mootness doctrine.

                                                                    All Citations

                                                                    Not Reported in S.W.3d, 2010 WL 4324434

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Matter of J.B.K., 931 S.W.2d 581 (1996)


                                                                        In fulfilling his or her primary duty to client,
                                                                        lawyer must be ever mindful of profession's
                     931 S.W.2d 581
                                                                        broader duty to legal system.
                Court of Appeals of Texas,
                         El Paso.                                       Cases that cite this headnote
        In the Matter of J.B.K., Attorney, Relator.
                                                                  [4]   Attorney and Client
       No. 08–96–00064–CV.           |     March 15, 1996.                   Relations, dealings, or communications
                                                                        with witness, juror, judge, or opponent
Addressing possible disciplinary rules violations by attorney,
the Court of Appeals, Barajas, C.J., held that allegations that         Any attempt to solicit or receive information
attorney engaged in ex parte contact with member of court's             on merits of pending case from member of
staff for purpose of inquiring as to what his “chances” were            appellate court's staff is impermissible ex parte
in pending case and whether he should “settle” case prior               communication with chambers. V.T.C.A., Penal
to issuance of opinion, if true, raised substantial question as         Code § 39.06(c); Rules App.Proc., Rule 6; State
to attorney's honesty, trustworthiness or fitness as lawyer,            Bar Rules, V.T.C.A., Government Code Title
thereby triggering mandatory disciplinary responsibility on             2, Subtitle G App., Art. 10, § 9, Rules of
part of Court of Appeals to refer matter to office of general           Prof.Conduct, Rule 3.05(b)(3).
counsel of state bar.
                                                                        Cases that cite this headnote

Ordered accordingly.
                                                                  [5]   Trial
                                                                             Ex Parte Communications
                                                                        Individual judges are charged with task of
 West Headnotes (8)
                                                                        adjudicating claims in manner that protects rights
                                                                        of all parties to litigation and, for that reason,
 [1]     Attorney and Client                                            ex parte communications between parties to
             Attorney's conduct and position in general                 pending litigation and members of judiciary
         Lawyers owe to courts duties of scrupulous                     tasked to resolve those claims undermine public's
         honesty, forthrightness and highest degree of                  right to evaluate whether justice is being done;
         ethical conduct, and inherent in that high                     ex parte communications frustrate judiciary's
         standard of conduct is compliance with both                    responsibility to promote and provide fair
         spirit and express terms of established rules of               and equal treatment to all parties. V.T.C.A.,
         conduct and procedure.                                         Government Code Title 2, Subtitle G App., Code
                                                                        of Jud.Conduct, Canon 3, subd. B(8).
         4 Cases that cite this headnote
                                                                        Cases that cite this headnote

 [2]     Attorney and Client
             Attorney's conduct and position in general           [6]   Attorney and Client
                                                                            Grounds for Discipline
         Attorney and Client
             Candor, and disclosure to opponent or court                Allegations that attorney engaged in ex parte
                                                                        contact with member of appellate court's staff
         Conduct of lawyer should be characterized at all
                                                                        for purpose of inquiring as to what his
         times by honesty, candor and fairness.
                                                                        “chances” were in pending case and whether
         1 Cases that cite this headnote                                he should “settle” case prior to issuance of
                                                                        opinion, if true, raised substantial question
                                                                        as to attorney's honesty, trustworthiness or
 [3]     Attorney and Client                                            fitness as lawyer, thereby triggering mandatory
             Limitations on duty to client, in general                  disciplinary responsibility on part of Court of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Matter of J.B.K., 931 S.W.2d 581 (1996)


        Appeals to refer matter to Office of General                 Government Code Title 2, Subtitle G App., Code
        Counsel of State Bar. V.T.C.A., Penal Code                   of Jud.Conduct, Canon 3, subd. D(2).
        § 39.06(c); Rules App.Proc., Rule 6; State
        Bar Rules, V.T.C.A., Government Code Title                   Cases that cite this headnote
        2, Subtitle G App., Art. 10, § 9, Rules
        of Prof.Conduct, Rule 3.05(b)(3); V.T.C.A.,
        Government Code Title 2, Subtitle G App., Code
        of Jud.Conduct, Canon 3, subd. D(2).                  *582 Before BARAJAS, C.J., and McCLURE and CHEW,
                                                             JJ.
        Cases that cite this headnote


 [7]    Contempt                                                      OPINION ON ORDER REFERRING
            Existence of other remedy                            DISCIPLINARY MATTER TO OFFICE OF THE
        Judges                                                   GENERAL COUNSEL, STATE BAR OF TEXAS
            Standards, canons, or codes of conduct, in
                                                             BARAJAS, Chief Justice.
        general
        Judges                                               Relator, J.B.K., an attorney licensed to practice law in the
            Judicial powers and functions in general         State of Texas, has been ordered to appear before this Court
        Canon of Code of Judicial Conduct providing          on March 6, 1996. It has come to this Court's attention
        that, if information received by judge raises        that Counsel may have committed violations of the Texas
        substantial question as to lawyer's honesty,         Disciplinary Rules of Professional Conduct. Such alleged
        trustworthiness or fitness as lawyer in other        violations raise a substantial question as to his honesty,
        respects, judge “shall” inform Office of General     trustworthiness, and fitness as a *583 lawyer. Specifically,
        Counsel of State Bar or take other appropriate       this Court has been advised as follows:
        action is mandatory in nature, not directory,
                                                                         After submission of a matter before
        though language of Canon is not exclusive in
                                                                         this Court in which J.B.K. served
        that it does not prohibit independent judiciary
                                                                         as counsel for a party and presented
        from exercising its inherent power to protect
                                                                         oral argument, but prior to the date
        jurisdiction of courts and insure that necessary
                                                                         of issuance of the opinion in that
        court security provisions are complied with, or
                                                                         matter, J.B.K. engaged in ex parte
        to exercise its authority to punish by contempt or
                                                                         contact with the Eighth District Court
        otherwise. V.T.C.A., Government Code Title 2,
                                                                         of Appeals by communicating directly
        Subtitle G App., Code of Jud.Conduct, Canon 3,
                                                                         with a member of the Court's staff who
        subd. D(2).
                                                                         was his acquaintance. The ex parte
        Cases that cite this headnote                                    communication occurred on Monday,
                                                                         February 26, 1996. The opinion was
                                                                         delivered on February 29, 1996. The
 [8]    Judges                                                           telephonic communication with the
            Judicial powers and functions in general                     staff member was for the purpose of
        Judges of Court of Appeals are not merely                        inquiring, among other things, as to
        gatekeepers who monitor and patrol conduct of                    what his “chances” were in the then
        members of Bar; while judges owe duty to legal                   pending case and whether he should
        system as whole and to administration of justice,                “settle” his case prior to the issuance
        they also have duty to lawyers who appear                        of the opinion.
        before them, to public at large which elects
        them, and even to other members of judiciary to
        ensure that democracy is preserved and protected
        and professionalism reigns supreme. V.T.C.A.                      A. Lawyer's Duty to the Courts



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Matter of J.B.K., 931 S.W.2d 581 (1996)


 [1] It is axiomatic that, as an integral part of our system       other members of the court's staff. TEX.R.APP.P. 6. Except
of government, the legal system depends on the relationship        as otherwise provided for by law and not prohibited by
between Bench and Bar. An honest and ethical lawyer                applicable rules of practice or procedure, a lawyer shall
has long been part of the foundation for the historically          not communicate ex parte with a court for the purpose
elevated and well-deserved role that lawyers have played           of influencing the court or person concerning a pending
in our culture. Lawyers, then, owe to the courts duties of         matter other than orally upon adequate notice to opposing
scrupulous honesty, forthrightness, and the highest degree         counsel or to the adverse party if he is not represented by
of ethical conduct. Inherent in that high standard of conduct      a lawyer. TEX. DISCIPLINARY R. PROF. CONDUCT,
is compliance with both the spirit and express terms of            3.05(b)(3) (1995), reprinted in TEX.GOV'T CODE ANN.
established rules of conduct and procedure.                        tit. 2, subtit. G, app. A (Vernon Supp.1996). Ex parte
                                                                   communications are “those that involve fewer than all of
 [2] [3] The conduct of a lawyer should be characterized at the parties who are legally entitled to be present during the
all times by honesty, candor, and fairness. In fulfilling his or   discussion of any matter. They are barred in order to ensure
her primary duty to a client, a lawyer must be ever mindful of     that every person who is legally interested in a proceeding
the profession's broader duty to the legal system. ORDER OF        [is given the] full right to be heard according to law.”
THE SUPREME COURT OF TEXAS AND THE COURT                           JEFFREY M. SHAMAN ET AL., JUDICIAL CONDUCT
OF CRIMINAL APPEALS, promulgating and adopting “The                AND ETHICS § 6.01, at 145 (1990); see also *584
Texas Lawyer's Creed—A Mandate for Professionalism,”               In re Thoma, 873 S.W.2d 477, 496 (Tex.Rev.Trib.1994).
Nov. 7, 1989. The Appellate and Advocacy Section of                Private communications between a lawyer in a pending action
the State Bar of Texas has become so concerned with the            and a staff member of an appellate court before whom the
standards [or lack thereof] of ethics and professionalism in       case is pending concerning the merits of the then pending
the appellate courts that the Chair has formulated a committee     appeal are “ex parte communications” not authorized by
to draft “Standards of Conduct for Appellate Lawyers, ”            law. See TEX.R.APP.P. 6; TEX. DISCIPLINARY R. PROF.
an appellate attorney's creed similar in nature to the one         CONDUCT 3.05(b)(3); see also In re Thoma, 873 S.W.2d at
referenced above. Not only has the Chair requested input           496. Accordingly, we find as a matter of law that any attempt
from the courts, he has announced that each court will be          to solicit or receive information on the merits of a pending
asked to adopt the Creed when it is completed. The Eighth          case from a staff member of an appellate court constitutes
District Court of Appeals is determined to be among the first      an impermissible ex parte communication with chambers.
to approve such innovative measures. The concept, simply           See In re Intermagnetics Am., Inc., 101 B.R. 191, 193 n. 2
stated, is that the justices themselves are in the unique position (C.D.Cal.1989); see also Vanzant v. R.L. Prods., Inc., 139
of putting a stop to unethical and unprofessional behavior. As     F.R.D. 435, 438 n. 4 (S.D.Fla.1991). To suggest otherwise
one commentator has phrased the concern:                           would undermine the integrity of courts, breed skepticism and
                                                                   distrust, and thwart principles on which our judicial system
               Appellate judges hold the key to what               is based. See In re Thoma, 873 S.W.2d at 496. Moreover,
               appellate lawyers do. If counsel cannot             no one, whether lawyer or otherwise, may solicit or receive
               derive any meaningful benefits from a               information from a public servant that the public servant has
               given course of conduct, the conduct                access to by means of employment and has not been made
               probably will not take place. That is,              public if the information is sought for the purpose of obtaining
               the bench can save us from ourselves.
                                                                   a benefit or to harm or defraud another. 1 See TEX.PENAL
David M. Gunn, Why Appellate Law is so Appealing,                  CODE ANN. § 39.06(c) (Vernon 1994).
in STATE BAR OF TEXAS PROF. DEV. PROGRAM,
ADVANCED CIVIL APPELLATE PRACTICE COURSE,                          1       We note that employees of the appellate courts of this
M, M–1 (1994).                                                             state are employees of the State of Texas and thus “public
                                                                           servants” as that term has been statutorily defined.
 [4] The Texas Rules of Appellate Procedure, in the                        TEX.PENAL CODE ANN. § 1.07(a)(41)(A) (Vernon
clearest of terms, provides that correspondence or other                   1994).
communications relative to any matter before the court must
be conducted with the clerk and shall not be addressed
                                                                                      B. Duty of the Judiciary
to or conducted with any of the justices or judges or


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      3
Matter of J.B.K., 931 S.W.2d 581 (1996)


                                                                     not exclusive in that it does not prohibit an independent
 [5]     Individual judges are charged with the task of
                                                                     judiciary from exercising its inherent power to protect the
adjudicating claims in a manner that protects the rights of
                                                                     jurisdiction of the courts, insure that necessary court security
all parties to the litigation. It is for that reason that ex parte
                                                                     provisions are complied with or to exercise its authority to
communications between parties to pending litigation and
                                                                     punish by contempt or otherwise. We view this Court's action
members of the judiciary tasked to resolve those claims
                                                                     in ordering J.B.K. to appear before this Court on March 6,
undermine the public's right to evaluate whether justice is
                                                                     1996 as an exercise of that inherent authority.
being done. Ex parte communications frustrate the judiciary's
responsibility to promote and provide fair and equal treatment
                                                                      [8] We recognize our obligation not only to ensure the
to all parties. See In re Thoma, 873 S.W.2d at 496. It is
                                                                     proper administration of justice in this Court but also our duty
perhaps for that reason, among others, that the Texas Code
                                                                     to the system of justice as a whole. We hasten to add that
of Judicial Conduct provides that, except as authorized by
                                                                      *585 we are not merely the gatekeepers who monitor and
law, a judge shall not initiate, permit, or consider ex parte
                                                                     patrol the conduct of members of the Bar. While we owe a
or other private communications made to the judge outside
                                                                     duty to the legal system as a whole and to the administration
the presence of the parties. Further, a judge shall require
                                                                     of justice, we are ever mindful that the judiciary also has a
compliance with this subsection by court personnel subject
                                                                     duty to the lawyers who appear before them, to the public
to the judge's direction and control. TEXAS SUPREME
                                                                     at large which elects them, and even to other members of
COURT, CODE OF JUDICIAL CONDUCT, Canon 3B(8),
                                                                     the judiciary to ensure that our democracy is preserved and
Amended to Sept. 1, 1994, reprinted at TEX.GOV'T CODE
                                                                     protected and that professionalism reigns supreme. We take
ANN. tit. 2, subtit. G, app. B (Vernon 1994 and Supp.1996).
                                                                     this duty seriously.
 [6]    [7] Not only does the Bar encourage the active
participation of the judiciary in monitoring attorney conduct,
the Code of Judicial Conduct mandates action. A judge who                                    C. Conclusion
receives information clearly establishing that a lawyer has
committed a violation of the Texas Rules of Professional             While the communication took place between Counsel and
Conduct should take appropriate action. If the information           a staff member of this Court, this Court makes no findings
received by that judge raises a substantial question as to           of fact as to the above allegation of impropriety, nor should
the lawyer's honesty, trustworthiness or fitness as a lawyer         any fact findings be implied. Nonetheless, in accordance with
in other respects, the judge shall inform the Office of the          this Court's mandatory disciplinary responsibilities pursuant
General Counsel of the State Bar of Texas or take other              to Canon 3(D)(2) of the Texas Code of Judicial Conduct,
appropriate action. TEXAS SUPREME COURT, CODE OF                     we order that Barbara Dorris, Clerk of this Court, forward a
JUDICIAL CONDUCT, Canon 3D(2), Amended to Sept. 1,                   copy of this opinion to the Office of the General Counsel,
1994, reprinted at TEX.GOV'T CODE ANN. tit. 2, subtit.               State Bar of Texas, for investigation and any action it
G, app. B (Vernon Supp.1996). We find that the allegations           deems warranted. TEXAS SUPREME COURT, CODE OF
set forth above, if true, raise a substantial question as to         JUDICIAL CONDUCT, Canon 3D(2).
Counsel's honesty, trustworthiness or fitness as a lawyer.
Accordingly we interpret the language of Canon 3D(2) to
                                                                     All Citations
be mandatory in nature, not directory. We note, however,
that while the language of Canon 3D(2) is mandatory, it is           931 S.W.2d 581

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)


                                                                               Preparation and Form of Interrogatories or
                                                                          Findings
     KeyCite Yellow Flag - Negative Treatment
                                                                          The phrase “monetary reward” in special issue
Distinguished by LaGloria Oil and Gas Co. v. Carboline Co.,
 Tex.App.-Tyler,   December 21, 2001                                      pertaining to actual damages to a business by
                                                                          reason of a defendant's activity, does not describe
                       499 S.W.2d 87                                      “net profits.”
                   Supreme Court of Texas.
                                                                          9 Cases that cite this headnote
              Dr. Ruth JACKSON, Petitioner,
                       v.
                                                                    [2]   Damages
       FONTAINE'S CLINICS, INC., Respondent.
                                                                               Preparation and Form of Interrogatories or
                                                                          Findings
             No. B—3472. | July 11, 1973.
            | Rehearing Denied Oct. 10, 1973.                             Special issue asking what sum of money would
                                                                          fairly and reasonably compensate plaintiff for
Plaintiff brought unfair trade practices suit against defendants          any injury received by reason of competitor's
who had allegedly interfered with plaintiff's contractual                 acts and instructing jury that they could consider
relations with its employees and secretly copied plaintiff's list         reasonable value, if any, of loss of monetary
of customers and used the list in operation of rival business.            reward was fatally defective in that it failed
The District Court No. 95, Dallas County, Hall G. Peurifoy,               to guide jury to a finding on any proper legal
J., rendered judgment against two of four defendants for                  measure of damages.
exemplary damages and against one defendant for actual
damages, and defendant against whom judgment for actual                   47 Cases that cite this headnote
damages was rendered appealed. The Waco Court of Civil
Appeals, Tenth Supreme Judicial District, 481 S.W.2d 934,           [3]   Evidence
McDonald, C.J., reformed judgment by reducing judgment                        Statements in General
for exemplary damages against the appealing defendant and
                                                                          Testimony of employees of plaintiff, in suit
holding all four defendants liable for actual damages and
                                                                          against former employees and another who
affirmed and defendant who had appealed brought error. The
                                                                          had entered into competition against plaintiff
Supreme Court, McGee, J., held that special issue pertaining
                                                                          after allegedly committing acts designed to
to actual damages was fatally defective for failure to guide
                                                                          wrongfully damage business and reputation of
jury to a finding on any proper legal measure of damages, but
                                                                          plaintiff, to effect that patients of plaintiff's
that where nonappealing co-defendants were not named as
                                                                          electrolysis clinic had told employees that
obligees in appeal bond filed by appealing defendant, Court
                                                                          former employees had made derogatory remarks
of Civil Appeals had no jurisdiction to consider appealing
                                                                          about services available at plaintiff's clinic was
defendant's claim that new trial should be granted in order that
                                                                          objectionable as hearsay when offered to prove
she might establish joint liability of all defendants for actual
                                                                          truth of what the patients told the witnesses.
damages.
                                                                          Cases that cite this headnote
Judgment of Court of Civil Appeals reversed; trial court's
judgment against one defendant reversed, severed and
                                                                    [4]   Evidence
remanded, and trial court's judgment against nonappealing
                                                                              Writings
defendants left undisturbed.
                                                                          Where proper predicate was not shown for
                                                                          admissibility of summaries of business records,
                                                                          the summaries, which were offered to prove the
 West Headnotes (12)                                                      acts, events or conditions recorded in the original
                                                                          business records that the exhibits purported to
 [1]     Damages                                                          summarize, were objectionable as hearsay.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)




        4 Cases that cite this headnote                         [8]    Release
                                                                           Nature and Requisites in General

 [5]    Damages                                                        Where jury found that all four defendants in
           Questions to Be Submitted                                   unfair trade practices suit had entered into
                                                                       conspiracy to embark upon plan calculated to
        Where, in suit by business against former
                                                                       damage plaintiff's business, but judgment for
        employees and another who allegedly conspired
                                                                       actual damages had been entered against only
        to commit acts designed to wrongfully damage
                                                                       one defendant, failure of plaintiff to attack trial
        plaintiff's business and reputation, there was
                                                                       court's judgment did not amount to a release of
        evidence that decline in plaintiff's business was
                                                                       liability of the one defendant as to three-fourths
        due to causes unrelated to activity of defendants,
                                                                       of the actual damages.
        defendants' contentions that plaintiff's business
        losses were sole proximate result of acts or                   Cases that cite this headnote
        conduct of plaintiff or conditions beyond control
        of any party should have been presented to jury in
        form of instructions accompanying damage issue          [9]    Release
        rather than in form of separate special issues.                    Nature and Requisites in General
                                                                       A release of liability partakes of certain elements
        6 Cases that cite this headnote                                of a contract, such as a mutual intent.

                                                                       5 Cases that cite this headnote
 [6]    Appeal and Error
           Errors Between Coparties
        Where jury found that all defendants in unfair          [10]   Appeal and Error
        trade practices suit had entered into conspiracy                  Judgment
        to embark upon plan calculated to damage                       Where trial court's judgment for exemplary
        plaintiff's business, but trial court entered                  damages against codefendants did not in
        judgment for actual damages against only one                   any way affect judgment rendered against
        defendant, and where other defendants were                     sole appealing defendant for actual damages,
        not named as obligees in appeal bond filed by                  appealing defendant could not complain on
        defendant against whom judgment was entered,                   appeal that judgment against codefendants for
        appellate court had no jurisdiction to consider                exemplary damages was erroneous.
        claim by appealing defendant that new trial
        should be granted in order that that defendant                 5 Cases that cite this headnote
        might establish joint liability of all defendants for
        actual damages. Vernon's Ann.Civ.St. art. 2212.         [11]   Appeal and Error
                                                                            Error Not Affecting Appellant or Plaintiff
        1 Cases that cite this headnote
                                                                       in Error
                                                                       A petitioner for writ of error may not complain
 [7]    Appeal and Error                                               of errors which do not injuriously affect him or
           Objections to Appeal to Intermediate Court                  which merely affect the rights of others.
        Action of Court of Civil Appeals in rendering
        judgment by reformation against defendants                     31 Cases that cite this headnote
        over whom that court had no jurisdiction was
        fundamental error for which Supreme Court               [12]   Appeal and Error
        could reverse.                                                    Reversal as to Parties Not Appealing
                                                                       Where, although conduct of defendants which
        Cases that cite this headnote
                                                                       gave rise to unfair trade practices suit may
                                                                       have been interwoven, rights of defendants


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)


        following judgment against one of them for                (while an employee of Fontaine's) surreptitiously copied from
        actual and exemplary damages, against two                 Fontaine's files trade secrets consisting of the names and
        others for exemplary damages and return of                addresses of patients and confidential data pertaining to those
        no judgment at all against fourth defendant               patients, for the purpose of advertising to them the merits of
        were very distinct, and trial court's judgments           A.S.E. Fontaine's prayed for judgment against all defendants
        with respect to three nonappealing codefendants           jointly and severally.
        would not be reversed, on ground that rights of
        all defendants were interwoven and dependent              The jury found that Jackson, Ward, Gambrell and Hanson
        on one another, merely because petitioner                 conspired to damage Fontaine's business; that the conspiracy
        against whom judgment for actual damages was              was accompanied by overt acts designed to accomplish the
        rendered had demonstrated reversible error as to          purpose of the conspiracy; and that Jackson, Ward and
        judgment against her.                                     Gambrell were motivated by malice. The jury also found
                                                                  that the patient data, which was copied from Fontaine's files,
        4 Cases that cite this headnote                           constituted trade secrets and that Defendant Ward used such
                                                                  data to solicit business for A.S.E. As actual damages it was
                                                                  found that the sum of $25,000 would reasonably compensate
                                                                  Fontaine's for the injury received.
Attorneys and Law Firms
                                                                  The trial court rendered judgment for Fontaine's as follows:
 *88 Burford, Ryburn & Ford, Logan Ford, David Ford Hunt,         against Ruth Jackson for $90,000 ($25,000 plus $65,000,
John F. Harrison, Dallas, for petitioner.                         which the jury awarded as exemplary damages against
                                                                  Jackson); against Catherine Ward for $1000, which the jury
Jerry W. Biesel and George E. Flannigan, Dallas, for              awarded as exemplary damages against Ward; and against
respondent.                                                       Gwynne Gambrell for $250, which the jury awarded as
                                                                  exemplary damages against Gambrell. A.S.E.‘s motion for
Opinion                                                           judgment non obstante veredicto was sustained by the trial
                                                                  court. Defendant Ruth Jackson is the only party who appealed
McGEE, Justice.
                                                                  from the trial court's judgment.
Fontaine's Clinics, Inc., brought this suit against Dr. Ruth
                                                                  The court of civil appeals affirmed the trial court's judgment
Jackson, Catherine Ward, Gwynne Gambrell, Margaret
                                                                  against Jackson after reforming it to the extent of reducing the
Hanson, and A.S.E. Dermatetics Clinic, Inc. Fontaine's is a
                                                                  exemplary damages recovered against her by $32,500. 481
corporation engaged primarily in the business of removing
                                                                  S.W.2d 934.
unwanted hair from the human body by means of electrolysis.
 *89 Dr. Jackson, a former patient of Fontaine's, is the          The special issue pertaining to actual damages was submitted
president of A.S.E., which is a corporation in competition        as follows:
with Fontaine's. Ward, Gambrell and Hanson were once              ‘What sum of money, if any, if paid now in cash, do you
employees of Fontaine's, but they left the employ of              find from a preponderance of the evidence, will fairly and
Fontaine's and became associated with A.S.E.
                                                                  reasonably compensate Fontaine's Clinics for injury, if any,
                                                                  received by reason of the overt acts inquired about in Special
For cause of action Fontaine's alleged that the individual
                                                                  Issue No. 3, if you have so found, and/or the use of the list of
defendants conspired to commit acts and that the defendants
                                                                  names compiled from plaintiffs' clientele cards, if you have
jointly and individually committed acts designed to
                                                                  so found?
wrongfully damage the business and reputation of Fontaine's.
Among the various overt acts charged against the defendants,
                                                                  ‘In answering this issue you are instructed that you may take
it was specifically alleged that Ward, Gambrell and Hanson,
                                                                  into consideration the following matters or elements as you
while they were employees of Fontaine's but at the urging
                                                                  find are established by a preponderance of the evidence, and
of Jackson, intentionally made false disparaging statements
                                                                  none other:
about the services received at Fontaine's to their patients for
the purpose of inducing these patients to take their business
to A.S.E. Fontaine's alleged further that Jackson and Ward



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)


‘(a) the reasonable cash value, if any, of the loss of Monetary    remarks. Respondent's own argument demonstrates that the
reward from Fontaine's Clinics, Inc.‘s business activities.’       witnesses' testimony was offered to prove the truth of what the
                                                                   patients told the witnesses, i.e., that the defendants made the
‘(b) you are further instructed that you will not allow any sum    derogatory remarks about Fontaine's. Thus, the testimony of
of money for loss of monetary reward from Fontaine's Clinics,      the witnesses was clearly hearsay, and the objections should
Inc.‘s business activities resulting from decreased advertising    have been sustained.
and time devoted to the preparation of this suit for submission
to the jury, if either happened.’ (Emphasis added)                [4]     Petitioner contends that certain of plaintiff's
                                                                 documentary evidence, exhibits 42—51, should not have
                                                                 been admitted because the exhibits were hearsay. The exhibits
Petitioner contends that this submission was reversible error    were admitted as exceptions to the rule of hearsay exclusion
because the issue is so broad and general that it permits        on the theory that they were business records or summaries
the jury to speculate and to find losses not pleaded or not      of business records. Since the cause against petitioner must
supported by evidence. We sustain this contention.               be reversed on points previously discussed, we will not treat
 *90 [1]       [2] Damages must be measured by a legal this point at length. The summaries were offered to prove
standard, and that standard must be used to guide the fact       the acts, events or conditions recorded in original business
finder in determining what sum would compensate the injured      records which the exhibits purported to summarize. We are
party. Fontaine's pleaded that the acts of the defendants        not satisfied from this record that a proper predicate was
‘would prevent plaintiff from deriving the normal pecuniary      shown for the admissibility of the summaries. The hearsay
reward from its business activities that it otherwise would      objections should have been sustained.
have been entitled to attain.’ Although it is not entirely clear
from a reading of Fontaine's pleadings, it appears from the       [5] There was evidence that the decline in Fontaine's
foregoing quotation that Fontaine's sought recovery based        business was due to causes unrelated to the activity of
on its loss of net profits. However, the jury was given no       the defendants. Petitioner requested special issues inquiring
guideline for determining a loss of net profits. Manifestly, the if the business losses of Fontaine's, if any, were the sole
phrase ‘monetary reward’ does not describe net profits, and      proximate result of (1) acts or conduct of Fontaine's and
no other instruction was given connecting that phrase with net   (2) conditions beyond the control of any party. The trial
profits or with any other recognized measure of damages.         court refused to submit those issues, and petitioner contends
                                                                   that such action was error. This is not a question of the
                                                                   sole proximate cause issue as contained in the negligence
We hold that this submission was fatally defective, because
                                                                   cases cited by petitioner. To illustrate, a defendant's issue
it simply failed to guide the jury to a finding on Any proper
                                                                   in a negligence case that the occurrence was proximately
legal measure of damages. International-Great Northern R.
                                                                   caused solely by something other than the defendant's acts
Co. v. Casey, 46 S.W.2d 669 (Tex.Com.App.1932, holding
                                                                   or omissions rebuts that particular defendant's liability. In
adopted).
                                                                   this intentional tort case, the issues requested would rebut
Although the above error alone requires reversal of the            the damages resulting from the defendants' acts. We have
judgments below against Ruth Jackson, in view of possible          concluded that if the evidence raises these matters on a new
retrial, we will briefly discuss other of petitioner's points on   trial, they should be *91 presented to the jury in the form
which the writ of error was granted.                               of instructions accompanying the damage issue rather than in
 [3] Witnesses Sandor, Harrison and Travis who at the              the form of separate special issues. See Yarborough v. Berner,
time of trial were employees of Fontaine's testified that          467 S.W.2d 188 (Tex.1971), and Southwest Bank & Trust
patients of Fontaine's had told them that Defendants Ward,         Co. v. Executive Sportsman Association, 477 S.W.2d 920
Gambrell and Hanson had made derogatory remarks about              (Tex.Civ.App.1971, writ ref'd n.r.e.).
the services available at Fontaine's. Petitioner objected to
the admissibility of this testimony on the ground that it was       [6] As noted above, the trial court judgment against Ward
hearsay. The objections were overruled, and the respondent         and Gambrell was for only sums which the jury awarded
argues properly so because the testimony was offered merely        as exemplary damages against them. It is evident that the
to show that the defendants had made the remarks rather            judgment did not conform to the verdict with respect to
than to show the truth of the substance of the defendants'         the rendering of actual damages against only one of the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)


four individual defendants. The Plaintiff, Fontaine's, did not        (Tex.Civ.App.1940, writ dism'd jdgmt cor.). For the same
complain of that fact in the court of civil appeals. However,         reason, Jackson's point in this regard cannot be considered by
in the court of civil appeals the Defendant Jackson assigned          this court.
as error the failure of the trial court to render judgment on          [7] Ward, Gambrell and Hanson are not petitioners before
the verdict against her co-defendants for the reason that the         this court and consequently there is no proper assignment
judgment deprived her of the right of contribution among              of error that the court of civil appeals erred in rendering
joint tortfeasors. 1 Although Jackson prayed for a Rendition          the judgment for $25,000 against them. However, the action
in her favor or a Remand of the cause for a new trial,                of the court of civil appeals in rendering judgment by
in ruling on this point the court of civil appeals held that          reformation against these defendants, over whom that court
the trial court's judgment should have been against the four          had no jurisdiction, was fundamental error for which this
conspirators jointly and severally for actual damages, and the        court may reverse the court of civil appeals' judgment,
court Reformed the trial court's judgment accordingly.                even in the absence of a proper assignment. McCauley v.
                                                                      Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265
1                                                                     (1957). We will reverse the court of civil appeals' judgment
        Art. 2212, Vernon's Ann.Tex.Rev.Civ.Stat. provides in
                                                                      against Ward, Gambrell and Hanson.
        part that ‘any person against whom, with one or more
        others, a judgment is rendered an any suit on an action
        arising out of, or based on tort, except in causes wherein     [8] [9] Petitioner argues that the failure of Fontaine's to
        in the right of contribution or of indemnity, or of           attack the trial court's *92 judgment amounts to a release of
        recovery, over, by and between the defendants is given        liability as to three-fourths of the actual damages. If that were
        by statute or exists under common law, shall, upon            true, Jackson would be liable for only one-fourth of the actual
        payment of said judgment, have a right of action against      damages. We cannot accept this view. A release of liability
        his co-defendant or co-defendants and may recover from        partakes of certain elements of contract, e.g., a mutual intent.
        each a sum equal to the proportion of all of the defendants   Loy v. Kuykendall, 347 S.W.2d 726 (Tex.Civ.App.1961, writ
        named in said judgment rendered to the whole amount of        ref'd n.r.e.). There is no evidence of such an element in this
        said judgment.’                                               record.

Petitioner Jackson urges that the court of civil appeals erred in      [10]     [11] Petitioner additionally contended in the court
reforming the trial court's judgment, or in other words, that the     of civil appeals (apparently for the benefit of her non-
court of civil appeals erred in failing to sustain its contention     appealing co-defendants Ward and Gambrell) that the trial
that the trial court erred in failing to render judgment for          court's judgment against Ward and Gambrell for exemplary
actual damages against Ward, Gambrell and Hanson because              damages was erroneous because there had been no judgment
such failure deprived Jackson of contribution.                        against them for actual damages. With the reformation as to
                                                                      actual damages, the court of civil appeals held that the trial
It is undisputed that Fontaine's did not appeal from the trial
                                                                      court's judgment as to exemplary damages against Ward and
court's judgment. Petitioner's point of error to the court of civil
                                                                      Gambrell was not error. Jackson complains to this court of the
appeals that the trial court erred in not rendering judgment
                                                                      lower courts' rulings in this regard. The trial court's judgment
against Ward, Gambrell and Hanson was apparently assigned
                                                                      for exemplary damages against Ward and Gambrell does not
in an attempt to gain a retrial of Fontaine's claim against
                                                                      in any way affect the judgment rendered against Jackson. A
Jackson. However, the error asserted, if error, does not affect
                                                                      petitioner may not complain of errors which do not injuriously
that part of the judgment rendered for Fontaine's against
                                                                      affect him or which merely affect the rights of others. Shell
Jackson. Consequently, petitioner's point on appeal to the
                                                                      Petroleum Corporation v. Grays, 131 Tex. 515, 114 S.W.2d
court of civil appeals and to this court urges nothing but an
                                                                      869 (1938).
Adverse claim against her co-defendants, i.e., that a new trial
should be granted in order that Jackson might establish their
                                                                       [12] Petitioner contends that the rights of all the defendants
joint liability for the actual damages suffered by Fontaine's.
                                                                      are so interwoven and dependent on one another that the
Since Ward, Gambrell and Hanson were not named as                     cause against the non-appealing defendants should also be
obligees in the appeal bond filed by Jackson, the court of            remanded. 2 Although the conduct of the defendants which
civil appeals had no jurisdiction to consider Jackson's claim         gave rise to this suit may have been interwoven, it would
against them on appeal. Classen v. Benfer, 144 S.W.2d 633             appear that the rights of the parties at this point are very



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (1973)



distinct. For example, Defendant Hanson has no judgment             The judgment of the court of civil appeals is reversed. The
against her and a new trial would be of no benefit to               trial court's judgment against Jackson is reversed, and the
her. Defendants Ward and Gambrell suffered judgments for            cause against Jackson is severed and remanded to the trial
only relatively small sums, and a new trial could result            court. The trial court's judgment against the non-appealing
in judgments against them for a substantially larger sum.           Defendants Ward, Gambrell and Hanson and in favor of
We conclude that the trial court's judgment against Ward,           Defendant A.S.E. remains undisturbed.
Gambrell and Hanson should not be reversed merely because
the single petitioner, Jackson, has demonstrated reversible         All Citations
error as to the judgment against her.
                                                                    499 S.W.2d 87
2      See Lockhart, State Treasurer et al. v. A. W. Snyder &
       Co. et al., 139 Tex. 411, 163 S.W.2d 385 (Tex.1942).


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Manon v. Solis, 142 S.W.3d 380 (2004)




                                                                  [7] fiduciary relationship did not exist between former
                    142 S.W.3d 380
                                                                  employee and former employer during pre-employment
                Court of Appeals of Texas,
                                                                  negotiations.
                  Houston (14th Dist.).

             Lorraine M. MAÑON, Appellant
                                                                  Affirmed.
                           v.
               Manuel E. SOLIS, Appellee.

       No. 14–03–00463–CV. | May 25, 2004.                         West Headnotes (39)
   |    Rehearing En Banc Overruled Sept. 9, 2004.

Synopsis                                                           [1]   Appeal and Error
Background: Former employee brought action against                          Construction and Operation in General
former employer, alleging that former employer made                      Appeal and Error
fraudulent and negligent misrepresentations during course                   Directions in Remittitur
of pre-employment negotiations. The 295th District Court,
                                                                         Effect of Court of Appeals's decision reversing
Harris County, Tracy Kee Christopher, J., granted former
                                                                         summary judgment in favor of former employer
employer's motion for summary judgment. The Court of
                                                                         and remanded case was to remand case to trial
Appeals reversed and remanded. Following a jury trial on
                                                                         court for new trial on all issues of fact in
remand, the 295th District Court, Harris County, granted
                                                                         former employee's action concerning fraudulent
judgment to former employer. Former employee appealed.
                                                                         and negligent misrepresentations that allegedly
                                                                         were made during course of pre-employment
                                                                         negotiations, and thus action was reopened in its
Holdings: The Court of Appeals, Adele Hedges, C.J., held                 entirety; mandate from Court of Appeals was not
that:                                                                    limited by special instructions.

[1] effect of earlier appellate decision was to remand case for          3 Cases that cite this headnote
new trial on all issues of fact;
                                                                   [2]   Appeal and Error
[2] judicial estoppel could not be applied against former                   Directions in Remittitur
employer;                                                                When an appellate court reverses and remands a
                                                                         case for further proceedings and the mandate is
[3] evidence supported a finding that former employer both               not limited by special instructions, the effect is
had no knowledge of the alleged falsity of his representations           generally to remand the case to the lower court
and did not make such statements with reckless disregard for             for a new trial on all issues of fact, and the case
the truth;                                                               is reopened in its entirety.

[4] former employer's alleged misrepresentations concerning              4 Cases that cite this headnote
conditions under which former employee would be employed
concerned promises of future conduct and thus did not support
                                                                   [3]   Estoppel
negligent-misrepresentation claim;
                                                                              Claim Inconsistent with Previous Claim or
                                                                         Position in General
[5] former employer's alleged statement that employer was in
process of hiring additional attorneys was not proven false;             Former employer did not successfully maintain
                                                                         his initial position in former employee's
[6] former employee failed to show that former employer's                action concerning fraudulent and negligent
alleged statement that contested divorce cases were referred             misrepresentations that allegedly were made
to outside counsel was false; and                                        during course of pre-employment negotiations,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Manon v. Solis, 142 S.W.3d 380 (2004)


       and thus judicial estoppel could not be                      considering only the facts and inferences that
       applied against former employer on remand;                   support them.
       while former employer's motion for summary
       judgment was initially granted by trial court, it            1 Cases that cite this headnote
       was reversed on appeal.
                                                             [8]    Appeal and Error
       Cases that cite this headnote
                                                                        Extent of Review Dependent on Nature of
                                                                    Decision Appealed from
 [4]   Estoppel                                                     When reviewing a denial of a motion for
            Claim Inconsistent with Previous Claim or               judgment notwithstanding the verdict (JNOV),
       Position in General                                          if more than a scintilla of evidence exists
       Judicial estoppel applies if all of the following            supporting trial court's findings, motion was
       elements are present: (1) a sworn, prior                     properly denied.
       inconsistent statement was made in a judicial
       proceeding, (2) the party now sought to be                   4 Cases that cite this headnote
       estopped successfully maintained the prior
       position, (3) the prior inconsistent statement was    [9]    Fraud
       not made inadvertently or because of mistake,                    Falsity of Representations and Knowledge
       fraud, or duress, and (4) the statement was                  Thereof
       deliberate, clear, and unequivocal.
                                                                    Evidence supported a finding that former
       Cases that cite this headnote                                employer both had no knowledge of the alleged
                                                                    falsity of his representations to former employee
                                                                    during pre-employment negotiations for attorney
 [5]   Judgment                                                     position with law firm and did not make such
           Propriety of Judgment in General                         statements with reckless disregard for the truth,
       Motion for judgment notwithstanding the verdict              and thus former employee could not prevail on
       (JNOV) should be granted when the evidence is                claims for fraud and fraud by omission; evidence
       conclusive and one party is entitled to judgment             indicated that former employer was genuinely
       as a matter of law.                                          concerned with former employee's welfare and
                                                                    working conditions and permitted the trier of
       Cases that cite this headnote                                fact to question whether former employer would
                                                                    either knowingly or recklessly mislead a friend
 [6]   Appeal and Error                                             and potential employee into accepting a position
           Extent of Review Dependent on Nature of                  at the firm.
       Decision Appealed from
                                                                    Cases that cite this headnote
       Court of Appeals reviews a denial of a motion for
       judgment notwithstanding the verdict (JNOV)
       under a legal sufficiency standard.                   [10]   Fraud
                                                                        Elements of Actual Fraud
       4 Cases that cite this headnote                              To recover on an action for fraud, a party must
                                                                    prove: (1) a material representation was made,
 [7]   Appeal and Error                                             (2) the representation was false, (3) when the
          Judgment                                                  speaker made the representation, he knew it was
                                                                    false or made it recklessly without knowledge of
       When reviewing a denial of a motion for
                                                                    the truth as a positive assertion, (4) the speaker
       judgment notwithstanding the verdict (JNOV),
                                                                    made it with the intention that it should be acted
       Court of Appeals views the evidence in the
                                                                    upon by the party, (5) the party acted in reliance
       light most favorable to the trial court's findings,
                                                                    upon it, and (6) the party thereby suffered injury.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Manon v. Solis, 142 S.W.3d 380 (2004)


                                                                   and thus alleged misrepresentations did not
        3 Cases that cite this headnote                            support negligent-misrepresentation claim.

                                                                   2 Cases that cite this headnote
 [11]   Fraud
            Fraudulent Concealment
        Fraud by omission or non-disclosure is simply       [15]   Fraud
        a subcategory of fraud because the omission                    Statements Recklessly Made; Negligent
        or non-disclosure may be as misleading as a                Misrepresentation
        positive misrepresentation of fact where a party           The sort of false information contemplated
        has a duty to disclose.                                    in a negligent misrepresentation case is a
                                                                   misstatement of existing fact, not a promise of
        8 Cases that cite this headnote                            future conduct.

                                                                   2 Cases that cite this headnote
 [12]   Fraud
            Falsity of Representations and Knowledge
        Thereof                                             [16]   Fraud
        Proof that a defendant made a statement knowing                Reliance on Representations and
        of its falsity or recklessly without knowledge of          Inducement to Act
        its truth may be proved in action for fraud by             Employee could not have justifiably
        either direct or circumstantial evidence.                  relied to her detriment on employer's
                                                                   alleged    misrepresentation     during    pre-
        Cases that cite this headnote                              employment negotiations that employer had
                                                                   discharged employee's predecessor prior
 [13]   Fraud                                                      to those negotiations, and thus alleged
            Statements Recklessly Made; Negligent                  misrepresentations did not support claim
        Misrepresentation                                          for negligent misrepresentation; alleged
                                                                   misrepresentation provided employee with a
        To recover on an action for negligent
                                                                   more accurate picture of the workload that
        misrepresentation, a party must prove: (1) a
                                                                   employee would be expected to assume by
        representation was made by the defendant in
                                                                   accepting attorney position with employer's law
        the course of business or in a transaction in
                                                                   firm.
        which he has a pecuniary interest, (2) the
        defendant supplied false information for the               Cases that cite this headnote
        guidance of others in their business, (3) the
        defendant did not exercise reasonable care
        or competence in obtaining or communicating         [17]   Fraud
        the information, and (4) the plaintiff suffered                Statements Recklessly Made; Negligent
        pecuniary loss by justifiably relying on the               Misrepresentation
        defendant's representation.                                Employer's alleged statement during pre-
                                                                   employment negotiations that employer was
        2 Cases that cite this headnote                            in process of hiring additional attorneys for
                                                                   employer's law firm was not proven false
 [14]   Fraud                                                      by employee and thus did not support claim
            Existing Facts or Expectations or Promises             for negligent misrepresentation; statement was
                                                                   not made false by employer telling employee
        Employer's      alleged     misrepresentations
                                                                   after accepting employment that employer was
        concerning conditions under which prospective
                                                                   not going to hire additional attorneys or
        employee would be employed as an attorney
                                                                   by employer's failure to hire any additional
        at employer's law firm concerned promises of
                                                                   attorneys.
        future conduct, not statements of existing fact,


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    3
Manon v. Solis, 142 S.W.3d 380 (2004)




        Cases that cite this headnote                               Cases that cite this headnote


 [18]   Fraud                                                [21]   Fraud
            Statements Recklessly Made; Negligent                       Fiduciary or Confidential Relations
        Misrepresentation                                           To recover on a claim for breach of fiduciary
        Employee, who accepted attorney position with               duty, a party must prove the existence of a
        employer, failed to show that employer's alleged            fiduciary relationship.
        statement during pre-employment negotiations
        that employer did not advertise for family law              Cases that cite this headnote
        cases was false, and thus alleged statement did
        not support negligent misrepresentation claim;       [22]   Fraud
        employer presented evidence that his law firm                   Fiduciary or Confidential Relations
        generated family law cases through advertising
                                                                    While an informal fiduciary duty may arise
        intended to generate immigration law cases.
                                                                    from a purely personal relationship of trust
        Cases that cite this headnote                               and confidence, a fiduciary relationship is an
                                                                    extraordinary one and will not be created lightly.

 [19]   Fraud                                                       Cases that cite this headnote
            Statements Recklessly Made; Negligent
        Misrepresentation
                                                             [23]   Fraud
        Employee, who accepted attorney position with                   Fiduciary or Confidential Relations
        employer, failed to show that employer's alleged
                                                                    Confidential or fiduciary relationship may arise
        statement during pre-employment negotiations
                                                                    when the parties have dealt with each other in
        that contested divorce cases were referred
                                                                    such a manner over a long period of time that one
        to outside counsel was false, and thus
                                                                    party is justified in expecting the other to act in
        alleged statement did not support negligent
                                                                    its best interest.
        misrepresentation claim; employer testified that
        an experienced lawyer was available for                     Cases that cite this headnote
        referrals at time of pre-employment negotiations,
        and employer recalled referring one contested
                                                             [24]   Fraud
        divorce case to another lawyer.
                                                                        Fiduciary or Confidential Relations
        Cases that cite this headnote                               Mere subjective trust, without more, does not
                                                                    indicate that the person places confidence in
                                                                    another in the sense demanded by a fiduciary
 [20]   Fraud
                                                                    relationship, especially in the context of arm's
            Fiduciary or Confidential Relations
                                                                    length dealing.
        Fiduciary relationship did not exist between
        employee and employer during pre-employment                 Cases that cite this headnote
        negotiations for attorney position in employer's
        law firm, and thus employee could not prevail
                                                             [25]   Appeal and Error
        on claim for breach of fiduciary duty, although
                                                                       Refusal of New Trial
        employee and employer met during law school
        and resumed their friendship after establishing             Court of Appeals reviews trial court's denial of
        separate career paths; employer and employee                motion for new trial for abuse of discretion.
        did not exchange a single phone call over a
                                                                    1 Cases that cite this headnote
        period of two or three years, and friendship could
        best be described as a casual friendship.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Manon v. Solis, 142 S.W.3d 380 (2004)




 [26]   Appeal and Error                                    [30]   New Trial
           Insufficient Discussion of Objections                       Necessity of Objection
        Employee waived for appellate review her claim             It is only when the probable harm or the resulting
        that jury's findings were factually insufficient           prejudice from improper arguments of counsel
        in employee's action against employer for                  cannot be eliminated or cured by retraction or
        fraudulent and negligent misrepresentation,                instruction that a new trial will be awarded in the
        where employee cited no legal authorities, and             absence of timely objection.
        argument merely incorporated part of appellate
        brief that had little, if anything, to do with a           Cases that cite this headnote
        factual sufficiency review of the evidence. Rules
        App.Proc., Rule 38.1(h).                            [31]   Appeal and Error
                                                                      Arguments and Conduct of Counsel
        1 Cases that cite this headnote
                                                                   Even if instances of improper jury argument
                                                                   constitute incurable harm, Court of Appeals must
 [27]   Appeal and Error                                           determine whether the jury argument, by its
           Insufficient Discussion of Objections                   nature, degree, and extent, constitutes reversibly
        Issue not supported by legal authority is waived           harmful error.
        on appeal.
                                                                   1 Cases that cite this headnote
        Cases that cite this headnote

                                                            [32]   Appeal and Error
 [28]   Appeal and Error                                                Comments on Character or Conduct of
           References to Record                                    Parties or Counsel
        Appellate court has no duty to search a                    Employer's statements during closing arguments
        voluminous record without sufficient guidance              concerning employee's unemployment claim
        from an appellant to determine whether an                  and employee's unwillingness or inability to
        assertion of reversible error is valid.                    find suitable employment after resigning from
                                                                   attorney position with employer's law firm did
        2 Cases that cite this headnote                            not constitute improper jury argument that would
                                                                   amount to reversible error in employee's action
 [29]   Appeal and Error                                           for fraudulent and negligent misrepresentation;
           Scope and Effect of Objection                           statements were relevant only to issue of
                                                                   damages, and jury did not reach issue of
        Appeal and Error
                                                                   damages.
           Objections to Evidence and Witnesses
        Employee's claim that employer made improper               Cases that cite this headnote
        jury arguments did not preserve for appellate
        review employer's statements that occurred
                                                            [33]   Appeal and Error
        during voir dire or witness examination, and
                                                                        Comments on Character or Conduct of
        thus any issues related to those statements were
                                                                   Parties or Counsel
        waived for appellate review in employee's action
        for fraudulent and negligent misrepresentation             Employer's statement during closing arguments
        concerning pre-employment negotiations for                 charging employee with bringing abusive
        attorney position with employer's law firm.                lawsuit did not constitute improper jury
        Rules App.Proc., Rule 38.1(h).                             argument that would amount to reversible
                                                                   error in employee's action for fraudulent and
        Cases that cite this headnote                              negligent misrepresentation, although statement
                                                                   was prejudicial and inflammatory; statement



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        5
Manon v. Solis, 142 S.W.3d 380 (2004)


        would not have persuaded a juror of ordinary
        intelligence to reach a verdict contrary to that             Cases that cite this headnote
        which he would have reached but for the
        argument.                                             [37]   Appeal and Error
                                                                        Damages
        2 Cases that cite this headnote
                                                                     Any error that trial court may have committed
                                                                     in refusing to allow employee to testify as to
 [34]   Appeal and Error                                             anything construed as a legal opinion did not
           Depositions, Affidavits, or Discovery                     amount to reversible error in employee's action
        Court of Appeals would review for abuse of                   against employer for fraudulent and negligent
        discretion trial court's discovery ruling refusing           misrepresentation; employee sought to testify
        to order production of certain documents in                  about legal basis for damages, and jury did not
        employee's action alleging that employer made                reach issue of damages. Rules App.Proc., Rule
        fraudulent and negligent misrepresentations                  44.1(a)(1).
        during pre-employment negotiations regarding
        attorney position with employer's law firm.                  Cases that cite this headnote

        Cases that cite this headnote
                                                              [38]   Appeal and Error
                                                                        Particular Actions or Issues
 [35]   Appeal and Error                                             Trial court's exclusion of evidence concerning
            Rulings on Admissibility of Evidence in                  employer's business practices or reputation
        General                                                      or both did not amount to reversible error
        Court of Appeals would review for abuse                      in employee's action against employer for
        of discretion trial court's evidentiary rulings              fraudulent and negligent misrepresentation;
        excluding employee's testimony concerning                    employee failed to explain how excluded
        anything construed as legal opinion and                      evidence was controlling on a material issue
        testimony concerning employer's business                     in case or how that excluded evidence would
        practices or reputation or both in employee's                not have been cumulative of other admitted
        action alleging that employer made fraudulent                evidence. Rules App.Proc., Rule 44.1(a)(1).
        and negligent misrepresentations during pre-
        employment negotiations regarding attorney                   1 Cases that cite this headnote
        position with employer's law firm.
                                                              [39]   Records
        Cases that cite this headnote
                                                                         Court Records
                                                                     Employee waived for appellate review her
 [36]   Appeal and Error                                             claims that trial court erred in denying motion
           Insufficient Discussion of Objections                     to seal records containing sensitive personal
        Employee waived for appellate review her                     information and in failing to impose sanctions on
        claim that trial court erred in refusing                     employer in employee's action for fraudulent and
        to order production of certain documents                     negligent misrepresentation, where employee
        during discovery in employee's action alleging               cited no legal authority in support of claims.
        that employer made fraudulent and negligent                  Rules App.Proc., Rule 38.1(h).
        misrepresentations during pre-employment
        negotiations regarding attorney position with                Cases that cite this headnote
        employer's law firm, where employee failed to
        cite any legal authority in support of claim. Rules
        App.Proc., Rule 38.1(h).




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Manon v. Solis, 142 S.W.3d 380 (2004)


                                                                  same arguments and authorities, we address them together.
Attorneys and Law Firms                                           We also discuss appellant's sixth and seventh issues together.
                                                                  We affirm.
*385 Lorraine Margarita Ma#non, for appellant.

Jacob Montilijo Monty, Carlos Leon, Houston, for appellee.
                                                                      Procedural Establishment of Claims as a Matter of Law
Panel consists of Chief Justice ADELE HEDGES and Justices
FROST and GUZMAN.                                                  [1]    [2] In her first issue, appellant argues that she has
                                                                  procedurally established her claims as a matter of law. In
                                                                  connection with this issue, she raises a number of grounds
                          OPINION                                 upon which this assertion is based, including: (1) the trial
                                                                  court lacked jurisdiction/plenary power, (2) the law of the
ADELE HEDGES, Chief Justice.
                                                                  case doctrine, (3) waiver/election of remedies doctrine, (4)
Appellant Lorraine M. Mañon appeals from the trial court's        statutory bar (citing section 10.006 of the Texas Civil Practice
January 23, 2003 order granting judgment to appellee Manuel       and Remedies Code), and (5) judicial estoppel. 3 Appellant's
E. Solis on all claims. This case arises from a dispute           basis for grounds (1) through (4) is that the trial court's
concerning the information appellee disclosed during his          initial finding that no genuine issue of material fact exists
recruitment of appellant for an attorney position at his          remains binding even after the Eleventh Court of Appeals
law firm. Appellant alleges that appellee made fraudulent         reversed that finding. Consequently, she argues, appellee
and negligent misrepresentations during the course of pre-        cannot now contest any facts before the trial court upon
employment negotiations between the parties. 1 The trial          remand. We disagree. The general rule, of course, is that
court initially granted summary judgment in favor of              when an appellate court reverses and remands a case for
appellee, but the Eleventh Court of Appeals reversed the          further proceedings and the mandate is not limited by special
                                                                  instructions, the effect is to remand the case to the lower court
trial court's judgment and remanded the case for trial. 2 On
                                                                  for a new trial on all issues of fact, and the case is reopened
remand, a *386 jury found appellant's allegations to be
                                                                  in its entirety. Hudson v. Wakefield, 711 S.W.2d 628, 630
unfounded. This appeal followed.
                                                                  (Tex.1986). The opinion and mandate issued by the Eleventh
                                                                  Court of Appeals do not provide any special instructions to
1      Appellant also brought claims for breach of fiduciary      the trial court upon remand; therefore, the case was remanded
       duty and publication of private information, but neither   for a new trial on all issues of fact, and the case was reopened
       was submitted to the jury.                                 in its entirety. Appellant's arguments concerning the trial
2      See Mañon v. Solis, No. 11–00–00086–CV, 2000 WL            court's lack of jurisdiction/plenary power, the law of the case
       34234419 (Tex.App.-Eastland October 19, 2000, no           doctrine, waiver/election of remedies, and statutory bar are
       pet.).                                                     thus without merit.

                                                                  3        Appellant also raises claims concerning judicial
                          The Issues                                       admissions and conclusive trial admissions in connection
                                                                           with this issue, but we address these claims below under
Appellant raises seven issues in this appeal: (1) whether
                                                                           her second and fourth issues to facilitate our discussion.
she has procedurally established her claims as a matter
of law, (2) whether the evidence conclusively establishes          [3]     [4] Moreover, the doctrine of judicial estoppel is
her claims, (3) whether there is no evidence to support           inapplicable in this case as well. Judicial estoppel applies if
appellee's affirmative defenses, (4) whether the trial court      all of the following elements are present: (1) a sworn, prior
erred in denying her motion for judgment notwithstanding          inconsistent statement was made in a judicial proceeding, (2)
the verdict, (5) whether the trial court erred in denying her     the party now sought to be estopped successfully maintained
motion for new trial, (6) whether the trial court erred in        the prior position, (3) the prior inconsistent statement was
denying her motion to seal records, and (7) whether the trial     not made inadvertently or because of mistake, fraud, or
court erred in failing to impose sanctions upon appellee.         duress, and (4) the statement was deliberate, clear, and
Because appellant's second and fourth issues implicate the        unequivocal. Spera v. Fleming, Hovenkamp & Grayson, P.C.,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      7
Manon v. Solis, 142 S.W.3d 380 (2004)


25 S.W.3d 863, 871 (Tex.App.-Houston [14th Dist.] 2000,              [9] [10] [11] To recover on an action for fraud, a party
no pet.). While appellee's motion for summary judgment              must prove: (1) a material representation was made, (2) the
was initially granted by the trial court, the Eleventh Court        representation was false, (3) when the speaker made the
of Appeals reversed that judgment; therefore, appellee did          representation, he knew it was false or made it recklessly
not successfully maintain his initial position. Because, at a       without knowledge of the truth as a positive assertion, (4)
minimum, the second element has not been *387 satisfied,            the speaker made it with the intention that it should be
the doctrine of judicial estoppel does not apply. Accordingly,      acted upon by the party, (5) the party acted in reliance
appellant's first issue is overruled.                               upon it, and (6) the party thereby suffered injury. Johnson
                                                                    & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962
                                                                    S.W.2d 507, 524 (Tex.1998). Fraud by omission or non-
                                                                    disclosure is simply a subcategory of fraud because the
         Conclusive Establishment of Claims and
                                                                    omission or non-disclosure may be as misleading as a positive
          Judgment Notwithstanding the Verdict
                                                                    misrepresentation of fact where a party has a duty to disclose.
 [5] In her second issue, appellant argues that her claims          Schlumberger Technology Corp. v. Swanson, 959 S.W.2d
are conclusively established by the evidence. In her fourth         171, 181 (Tex.1997).
issue, she argues that the trial court erred in denying her
motion for judgment notwithstanding the verdict. A motion              [12] In this case, one could reasonably conclude based on
for judgment notwithstanding the verdict should be granted            the evidence that appellant has not satisfied the third element.
when the evidence is conclusive and one party is entitled to          Proof that a defendant made the statement knowing of its
judgment as a matter of law. Mancorp, Inc. v. Culpepper, 802          falsity or recklessly without knowledge of its truth may be
S.W.2d 226, 227–28 (Tex.1990). Because these two issues               proved by either direct or circumstantial evidence. Spoljaric
raise essentially the same question (i.e., whether appellant is       v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986). A
entitled to judgment as a matter of law), we address them             wealth of circumstantial evidence presented at trial tends to
together here.                                                        support the conclusion that appellee had no knowledge of the
                                                                      alleged falsity of his representations and did not make such
 [6] [7] [8] We review a denial of a motion for judgment statements with reckless disregard for the truth. Testimony
notwithstanding the verdict under a legal sufficiency                 indicates that appellee routinely gave appellant Fridays off.
standard. Navarette v. Temple Independent School Dist., 706           When asked whether she wished to be compensated for
S.W.2d 308, 309 (Tex.1986). We view the evidence in the               the extra work she *388 performed on certain occasions,
light most favorable to the trial court's findings, considering       appellant responded in the negative and that she and appellee
only the facts and inferences that support them. Id. If               “broke even.” Appellant was even paid for the week she was
more than a scintilla of evidence exists supporting the trial         on sick leave despite the fact that, at the time, she had only
court's findings, the motion for judgment notwithstanding             worked at the firm for approximately one month. Appellee
the verdict was properly denied. Culpepper, 802 S.W.2d at             also agreed to provide appellant with a cell phone for her
228. Evidence supporting a finding amounts to more than a             personal use.
scintilla if reasonable minds could arrive at the finding given
the facts proved in a particular case. Burroughs Wellcome             Further, testimony supports the fact that appellant rarely, if
Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). Our review               ever, made her dissatisfaction with her working conditions
of the evidence below yields the conclusion that reasonable           (i.e., her schedule, docket, secretarial and outside counsel
minds could arrive at the trial court's findings as to fraud,         arrangements, etc.) known to appellee, despite his “open
fraud by omission, negligent misrepresentation, and breach of         door policy” and willingness to accommodate employees
                                                                      with family obligations. While appellant alleges that required
fiduciary duty. 4
                                                                      attendance at “mandatory” meetings was not disclosed,
                                                                      testimony indicates that appellee was quite willing to
4        The trial court did not submit appellant's claim for breach  accommodate those employees who were unable attend
         of fiduciary duty to the jury. Because the record is
                                                                      if they spoke to him about it beforehand. Shortly before
         unclear as to whether the trial court refused to submit this
                                                                      resigning from the firm, appellant was extended an offer
         claim or appellant voluntarily withdrew it, we consider
                                                                      by appellee to remain employed with the firm for several
         it here.
                                                                      months to allow her to locate new employment opportunities.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Manon v. Solis, 142 S.W.3d 380 (2004)


Appellee even offered to assist appellant with the process of      her *389 predecessor, John Needham, prior to appellee's
seeking unemployment compensation. The sum total of this           negotiations with appellant, (2) appellee's statement that he
circumstantial evidence tends to support the conclusion that       was in the process of hiring additional attorneys, (3) appellee's
appellee was genuinely concerned with appellant's welfare          statement that he does not advertise for family law cases,
and working conditions, and certainly permits the trier of         and (4) appellee's outside counsel arrangements. However,
fact to question whether such an employer would either             appellee has presented sufficient evidence in each instance to
knowingly or recklessly mislead a friend and potential             support the jury's finding against appellant on her negligent
employee into accepting a position at the firm. Appellee's         misrepresentation claim. First, even assuming the allegation
evidence is therefore inconsistent with appellant's allegation     that Needham was fired subsequent, rather than prior, to
that appellee made misrepresentations with either knowledge        the time appellant accepted employment with appellee is
or reckless disregard of the truth. We therefore find that         true, it is difficult to understand how appellant could have
appellant did not satisfy the burden of establishing her claims    justifiably relied on this misrepresentation to her detriment.
for fraud and fraud by omission as a matter of law.                If anything, the misrepresentation provided appellant with a
                                                                   more accurate picture of the workload she would be expected
 [13]     To recover on an action for negligent                    to assume. Second, appellee's statement that he was in the
misrepresentation, a party must prove: (1) a representation        process of hiring additional attorneys is not proved false, as
was made by the defendant in the course of business or             appellant suggests, by the mere facts that (1) she was told by
in a transaction in which he has a pecuniary interest, (2)         appellee after accepting employment that he was not going to
the defendant supplied false information for the guidance          hire additional attorneys, and (2) appellee did not in fact hire
of others in their business, (3) the defendant did not             any additional attorneys. Therefore, the evidence suggests
exercise reasonable care or competence in obtaining or             that appellee did not provide false information regarding his
communicating the information, and (4) the plaintiff suffered      recruitment of additional employees.
pecuniary loss by justifiably relying on the defendant's
representation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d          [18] Similarly, as to appellant's third allegation relating
675, 706 n. 24 (Tex.2003). To facilitate our analysis of           to appellee's representation that he does not advertise for
appellant's allegation concerning numerous instances of            family law cases, appellant has failed to conclusively
negligent misrepresentation, we consider those which relate        establish the falsity of that statement. By appellant's
to promises of future conduct first, followed by those which       own admission, appellee presented evidence that his firm
do not.                                                            generated family law cases through advertising intended
                                                                   to generate immigration law cases. While appellant may
 [14]      [15] Appellant alleges that appellee negligently question appellee's distinction between advertisements
misrepresented the conditions under which she would be             specifically appealing for family law clients and those that
employed by appellee's firm. Specifically, she claims that         advertise for immigration law clients yet also have the
appellee misrepresented facts relating to (1) her work             effect of bringing in family law clients, this concern does
schedule, (2) her ability to bring her young son to the            not necessarily render appellee's distinction meaningless
classroom maintained for appellee's children at the office, (3)    in the eyes of the trier of fact. Appellee's evidence thus
her responsibility for only waiver divorce cases, (4) her access   suggests that he did not provide false information regarding
to a full-time secretary, (5) her obligation to attend late-night  advertisements for family law cases. Moreover, appellant
meetings, and (6) her right to have her privacy maintained.        does not establish, and indeed it is difficult to understand, how
However, the sort of false information contemplated in a           this representation induced justifiable reliance on her part.
negligent misrepresentation case is a misstatement of existing     Appellant makes no effort to explain how or to what extent the
fact, not a promise of future conduct. Allied Vista, Inc. v. Holt, firm's advertisements effected her decision to join the firm.
987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999,
pet. denied). Because these allegations concern promises of         [19] Appellant's fourth allegation relates to the firm's outside
future conduct, they cannot form the basis for a tenable           counsel arrangements for contested divorce cases. Appellant
negligent misrepresentation claim.                                 claims she was told that contested divorce cases were
                                                                   referred to outside counsel but, in fact, no such arrangement
 [16] [17] Appellant also alleges that appellee negligently existed. Appellee testified, however, that Arturo Euresti, an
misrepresented facts relating to (1) appellee's discharge of       experienced lawyer in contested divorce cases, was certainly



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Manon v. Solis, 142 S.W.3d 380 (2004)


available for consultation and referrals regarding such cases        failed to satisfy her burden to establish the existence of a
at the time appellee and appellant were engaged in pre-              fiduciary relationship between the parties as a matter of law.
employment negotiations. Moreover, appellee specifically
recalled referring one contested divorce case to Bill Morris.        Because appellant failed to establish her entitlement to
Appellant has thus failed to conclusively establish the              judgment as a matter of law on her claims for fraud, fraud
falsity of appellee's representation relating to outside counsel     by omission, negligent misrepresentation, and breach of
arrangements. In sum, we find that appellant did not                 fiduciary duty, the trial court did not err in denying her motion
satisfy her burden of proving appellee's alleged negligent           for judgment notwithstanding the verdict. Accordingly,
misrepresentations as a matter of law.                               appellant's second and fourth issues are overruled.

 [20]    [21]    [22]    [23]      [24] To recover on a claim       for
breach of fiduciary duty, a party must prove the existence of a
                                                                                          Motion for New Trial
fiduciary relationship. Crim Truck & Tractor Co. v. Navistar
International Transportation Corp., 823 S.W.2d 591, 594               [25] In her fifth issue, appellant argues that the trial
(Tex.1992), superseded by statute on other grounds as stated         court erred in denying her motion for new trial. She
in Subaru of America, Inc. v. David McDavid Nissan, Inc.,            raises several grounds in support of this claim, including:
84 S.W.3d 212 (Tex.2002). While an informal fiduciary duty           (1) the jury's findings are against the great weight and
may arise *390 from a purely personal relationship of trust          preponderance of the evidence and are manifestly unjust, (2)
and confidence, a fiduciary relationship is an extraordinary         there are overwhelming instances of improper jury argument
one and will not be created lightly. Associated Indemnity            made by appellee, and (3) the trial court erred in making
Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287–88
                                                                     numerous discovery and evidentiary rulings. 5 We review
(Tex.1998). A confidential or fiduciary relationship may arise
                                                                     the trial court's denial of her motion for new trial for
when the parties have dealt with each other in such a manner
                                                                     abuse of discretion. See Director, State Employees Workers'
over a long period of time that one party is justified in
                                                                     Compensation Division v. Evans, 889 S.W.2d 266, 268
expecting the other to act in its best interest. Insurance Co. of
                                                                     (Tex.1994).
North America v. Morris, 981 S.W.2d 667, 674 (Tex.1998).
However, mere subjective trust, without more, does not
                                                                     5       Appellant also raises a claim concerning the sufficiency
indicate that the person places confidence in another in the
                                                                             of the evidence supporting appellee's affirmative
sense demanded by a fiduciary relationship, especially in the
                                                                             defenses in connection with this issue, but we address
context of arm's length dealing. See Swanson, 959 S.W.2d
                                                                             this claim below under her third issue to facilitate our
at 177; Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.-
                                                                             discussion.
Houston [14th Dist.] 1997, pet. denied).
                                                                      [26] [27] [28] First, appellant argues that the findings are
The evidence presented at trial fails to conclusively establish      against the great weight and preponderance of the evidence
the existence of a fiduciary relationship between appellant          and are manifestly unjust. As the basis for this argument,
and appellee at the time the parties were engaged in                 she cites no legal authority and merely incorporates by
negotiations. According to the testimony, appellant and              reference the first 41 pages of her brief—most of which have
appellee met during law school and maintained what can best          little, if anything, to do with a factual sufficiency review of
be considered a casual friendship. They visited socially on          the evidence. An issue not supported by legal authority is
several occasions during law school and prior to entering the        waived. *391 Fredonia State Bank v. General American Life
legal profession. After establishing separate career paths, the      Insurance Co., 881 S.W.2d 279, 284 (Tex.1994). Moreover,
parties did not exchange a single phone call over a period           an appellate court has no duty to search a voluminous
of two to three years. At some point, they reconnected and           record without sufficient guidance from an appellant to
resumed their friendship, but little evidence was presented          determine whether an assertion of reversible error is valid.
concerning the nature and extent of the relationship from that       Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston
point until the employment negotiations began. Thus, while           [14th Dist.] 2002, no pet.). Appellant has waived this issue
appellant may subjectively believe that the parties shared           because it has been inadequately briefed. See TEX.R.APP.
“absolute trust” in each other due to their friendship, appellant    P. 38.1(h). Even assuming she did not waive this issue,
                                                                     however, appellant's claim still fails. We hold that the
                                                                     evidence is factually sufficient to support the jury's findings


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Manon v. Solis, 142 S.W.3d 380 (2004)


because appellant's evidence, as detailed in our discussion of                  or provoked, (3) that was preserved by the proper
appellant's second and fourth issues, is neither so weak as                     trial predicate, such as an objection, a motion to
to undermine confidence in the jury's verdict nor so greatly                    instruct, or a motion for mistrial, and (4) was not
outweighed by appellant's evidence. See Maritime Overseas                       curable by an instruction, a prompt withdrawal
                                                                                of the statement, or a reprimand by the judge.
Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998), cert. denied,
                                                                                There are only rare instances of incurable harm
525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).
                                                                                from improper argument. The complainant has the
                                                                                further burden to prove (5) that the argument
 [29] Second, appellant argues that there are overwhelming
                                                                                by its nature, degree and extent constituted
instances of improper jury argument made by appellee. She                       reversibly harmful error.... All of the evidence
identifies numerous statements in which appellee advanced                       must be closely examined to determine (6) the
“unfounded accusations of perjury/lies” or “attack[ed] the                      argument's probable effect on a material finding.
claims and the process.” However, appellant concedes that                       (7) Importantly, a reversal must come from an
many of the statements she identifies occurred during either                    evaluation of the whole case.... ... From all of
voir dire or witness examination; her contentions relating to                   these factors, the complainant must show that the
those particular statements are therefore waived because they                   probability that the improper argument caused
do not constitute claims relating to improper jury argument.                    harm is greater than the probability that the
See TEX.R.APP. P. 38.1(h). The remainder of the statements                      verdict was grounded on the proper proceedings
we consider below.                                                              and evidence.
                                                                              584 S.W.2d at 839–40 (emphasis added). In other
                                                                              words, incurable harm does not necessarily equate
 [30] [31] Appellant did not object at trial during appellee's
                                                                              with reversible harm, and an appellate court must
closing argument to the jury. It is only when the probable
                                                                              engage in a harm analysis as detailed above in Reese to
harm or the resulting prejudice cannot be eliminated or cured
                                                                              determine whether the harm is sufficient as to require
by retraction or instruction that a new trial will be awarded                 reversal.
in the absence of timely objection. Texas Employers' Ins.
Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858                   *392 [32] [33] While appellant's allegation of improper
(1954). Assuming, as appellant argues, that the instances            jury argument contains statements too numerous to detail
she identifies constitute (either standing individually or           here, the comments made by appellee essentially attack either
cumulatively) incurable harm, we must determine whether              her unemployment claim or her arguable unwillingness or
the jury argument, by its nature, degree, and extent,                inability to find suitable employment after her resignation
constitutes reversibly harmful error. Standard Fire Ins. Co. v.      from appellee's firm. Further, appellee's jury argument
                                                                     can be fairly read to charge appellant with bringing an
Reese, 584 S.W.2d 835, 839 (Tex.1979). 6
                                                                     abusive lawsuit against him. Under Reese, we must consider
                                                                     the argument's probable effect on a material finding. See
6      We note that some of our sister courts have equated           584 S.W.2d at 840. The statements relating to appellant's
       incurable harm with reversible harm. See, e.g., Lyondell      unemployment claim and her unwillingness or inability to
       Petrochemical Co. v. Kirkland, No. 01–98–01128–               find suitable employment are relevant only to appellant's
       CV, 1999 WL 1208506 at *5, (Tex.App.-Houston [1st
                                                                     damages issue and therefore have no effect on a material
       Dist.] 1999, pet. denied); Amelia's Automotive, Inc. v.
                                                                     finding made by the jury because it did not reach the issue
       Rodriguez, 921 S.W.2d 767, 773 (Tex.App.-San Antonio
                                                                     of damages. Further, we cannot say that the single statement
       1996, no pet.); Texas Employers' Ins. Ass'n v. Guerrero,
                                                                     charging appellant with bringing an abusive lawsuit, though
       800 S.W.2d 859, 863–67 (Tex.App.-San Antonio 1990,
       writ denied). The genesis of this equation appears to         undoubtedly prejudicial and inflammatory, would have
       have been in Guerrero, which cites Reese as controlling       persuaded a juror of ordinary intelligence to reach a verdict
       authority (and rightly so). See 800 S.W.2d at 863–64. It is   contrary to that which he would have reached but for the
       clear, however, that the equation of incurable harm with      argument. See Gannett Outdoor Co. of Texas v. Kubeczka,
       reversible harm has been foreclosed by the very case          710 S.W.2d 79, 86–87 (Tex.App.-Houston [14th Dist.] 1986,
       Guerrero cites. In Reese, the Supreme Court of Texas          no pet.). Moreover, we find that the probability of prejudice
       stated:                                                       flowing from the cumulative effect of the alleged instances
            In the case of improper jury argument, the               of improper jury argument does not outweigh the probability
            complainant must prove a number of things. He            that the jury verdict was grounded on the proceedings and
            has to prove (1) an error (2) that was not invited



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Manon v. Solis, 142 S.W.3d 380 (2004)


                                                                our own review of the case, we cannot conclude that the
factually sufficient evidence. Appellant's claim of improper
                                                                exclusion of such testimony probably caused the rendition
jury argument is without merit.
                                                                of an improper judgment. See TEX.R.APP. P. 44.1(a)(1).
 [34]    [35] Third, appellant argues that several discovery Appellant's third claim is without merit.
and evidentiary rulings made by the trial court require a new
                                                                We therefore find that the trial court did not abuse its
trial. Appellant raises three claims in connection with this
                                                                discretion in denying appellant's motion for new trial.
issue by arguing that the trial court erred: (1) in refusing to
                                                                Accordingly, her fifth issue is overruled.
order the production of certain documents during discovery,
(2) in excluding her own testimony concerning “anything
construed as a legal opinion,” and (3) in excluding testimony
concerning appellee's business practices and/or reputation.            No Evidence to Support Affirmative Defenses
She argues that these errors probably caused the rendition
of an improper judgment. We review these rulings for abuse      In her third issue, appellant argues that there is no evidence
of discretion and address these claims below in that order.     to support appellee's affirmative defenses. Because the jury's
See Dillard Department Stores, Inc. v. Hall, 909 S.W.2d         verdict that appellee was not liable to appellant on any of her
491, 492 (Tex.1995) (discovery rulings); Texas Department       claims is based upon factually sufficient evidence, however,
of Transportation v. Able, 35 S.W.3d 608, 617 (Tex.2000)        we do not reach this issue. Accordingly, appellant's third issue
(evidentiary rulings).                                          is overruled.

 [36] First, appellant claims that the trial court erred in
refusing to order the production of documents pertaining to                     Sealing of Records and Sanctions
her docket, attorney turnover, commencement of Saturday
immigration hearings, and other requested items. She fails,         [39] In her sixth issue, appellant argues that the trial
however, to identify precisely the documents to which she          court erred in denying her motion to seal records containing
is referring and to cite any legal authority in support of her     sensitive personal information. In her seventh issue, appellant
argument. Appellant's claim of discovery error is therefore        argues that the trial court erred in failing to impose sanctions
waived. See TEX.R.APP. P. 38.1(h); Fredonia State Bank,            upon appellee. Appellant, however, does not appeal the
881 S.W.2d at 284; Nguyen, 93 S.W.3d at 188.                       decisions rendered by the trial court with respect to these
                                                                   issues; she merely resubmits by incorporation the respective
 [37] Second, appellant claims that the trial court erred in       motions presented to the trial court for our consideration.
excluding her own testimony concerning “anything construed         Appellant therefore presents nothing for review concerning
as a legal opinion.” She argues that she was entitled to           these issues. See TEX.R.APP. P. 38.1(e), (h). Moreover,
testify about the legal basis for her damages claim. The jury,     appellant has failed to adequately brief, and has therefore
however, did not reach the issue of damages in reaching its        waived, her sixth and seventh issues because she cites no legal
verdict. Therefore, any error did not result in the rendition of   authority in support of her arguments. See TEX.R.APP. P.
an improper judgment. See *393 TEX.R.APP. P. 44.1(a)(1).           38.1(h); Fredonia State Bank, 881 S.W.2d at 284; Nguyen,
Appellant's second claim is without merit.                         93 S.W.3d at 188. Accordingly, appellant's sixth and seventh
                                                                   issues are overruled.
 [38] Third, appellant claims that the trial court erred in
excluding her own testimony as well as that of John Needham
regarding appellee's business practices and/or reputation.
                                                                                            Conclusion
She asserts that such testimony was intended to impeach
appellee's testimony and to address the issue relating to          The judgment of the trial court is affirmed.
appellant's concern for her license due to appellee's unethical
practices. Appellant fails to explain, however, how the
excluded testimony is controlling on a material issue in the       All Citations
case and would not have been cumulative of other admitted
evidence. See Able, 35 S.W.3d at 617. Moreover, based upon         142 S.W.3d 380




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Manon v. Solis, 142 S.W.3d 380 (2004)




End of Document                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  13
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


                                                                           Admission and exclusion of evidence, including
                                                                           demonstrative evidence, is committed to trial
     KeyCite Red Flag - Severe Negative Treatment                          court's sound discretion.
Disapproved of by Roberts v. Williamson,      Tex.,   July 3, 2003
                                                                           Cases that cite this headnote
                      946 S.W.2d 580
                  Court of Appeals of Texas,
                    Houston (14th Dist.).                            [2]   Appeal and Error
                                                                              Evidence in General
           PARKWAY HOSPITAL, INC. and Epic
                                                                           Appeal and Error
            Healthcare Group, Inc., Appellants,                               Prejudicial Effect
                            v.
                                                                           To obtain reversal based upon error in admission
            Lisa LEE, Individually, and as Next                            or exclusion of evidence, appellant must show
            Friend of Alexander Lee, Appellees.                            trial court did in fact commit error, and error was
                                                                           reasonably calculated to cause and probably did
            No. 14–96–00277–CV. | May 22,
                                                                           cause admission of improper judgment. Rules
       1997. | Rehearing Overruled June 19, 1997.
                                                                           App.Proc., Rule 81(b).
Patient brought medical malpractice action against
                                                                           4 Cases that cite this headnote
obstetrician and hospital, claiming that their negligence
caused injuries she and her child sustained during delivery.
Upon jury verdict, the 151st District Court, Harris County,          [3]   Appeal and Error
Carolyn Garcia, J., entered judgment for obstetrician, and                    By other evidence in general
against hospital awarding plaintiffs over $16 million in                   Judgment will not be reversed for erroneous
damages. Hospital appealed. The Court of Appeals, O'Neill,                 rulings on admissibility of evidence where
J., held that: (1) trial court properly allowed in-court                   evidence in question is cumulative and not
demonstration by physician of child's neurological injuries;               controlling on material issue dispositive of case.
(2) fact that hospital's judicial admission was controverted
did not prevent use of admission for impeachment or as                     Cases that cite this headnote
substantive evidence on material issue; (3) hospital did
not establish good cause for its failure to timely designate         [4]   Trial
patient's ex-husband as witness; (4) trial court lacked                         Comments on failure to produce evidence
discretion to refuse plaintiffs' post-verdict motion to amend              or call witness
petition to increase amount of damages claimed for child's
                                                                           Rule of civil procedure prohibiting party whose
future care to $10 million found by jury; and (5) award
                                                                           condition is in controversy from commenting
of $125,000 for guardian ad litem's fee was not abuse of
                                                                           to jury on failure of other party to seek
discretion.
                                                                           physical examination was designed to prevent
                                                                           adverse party from being forced to seek medical
Affirmed.
                                                                           evaluation or risk opening his failure to do so
                                                                           to comment before jury, not to prevent party
                                                                           whose physical condition is in dispute from
 West Headnotes (21)                                                       demonstrating their injuries to jury. Vernon's
                                                                           Ann.Texas Rules Civ.Proc., Rule 167a.

 [1]      Evidence                                                         Cases that cite this headnote
              Exhibition of person or object in general
          Trial                                                      [5]   Trial
               Conflicting evidence                                             Comments on failure to produce evidence
                                                                           or call witness




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


        Medical malpractice plaintiffs did not violate                such transactions, with object of impressing jury
        rule of civil procedure prohibiting party whose               with soundness of expert's opinion.
        condition is in controversy from commenting
        to court or jury on his willingness to submit                 1 Cases that cite this headnote
        to physical examination, or right of any other
        party to request such examination, by asking           [9]    Appeal and Error
        whether physician would be willing to do                         Nature of evidence in general
        limited evaluation of child patient before jury to
                                                                      Appeal and Error
        exhibit child's neurological injuries in medical
                                                                         Admission of evidence in general
        malpractice action against hospital; hospital
                                                                      Hospital could not complain on appeal that
        placed child's current medical status in issue,
                                                                      it was surprised and unduly prejudiced,
        and exchange between plaintiffs' counsel and
                                                                      in medical malpractice action involving
        physician did not reflect upon hospital's failure to
                                                                      neurological injuries to child patient, by in-court
        request medical evaluation. Vernon's Ann.Texas
                                                                      demonstration by physician of child's injuries
        Rules Civ.Proc., Rule 167a.
                                                                      on ground that demonstration formed basis for
        Cases that cite this headnote                                 new opinions from physician, where hospital
                                                                      failed to object at trial that demonstration
                                                                      improperly bolstered physician's testimony, and
 [6]    Evidence
                                                                      hospital later introduced into evidence a tape
            Wounds and other injuries
                                                                      recording of similar examination by physician
        Admission of demonstrative evidence rests                     conducted before the judge prior to actual in-
        within sound discretion of trial court, and court             court demonstration.
        may permit demonstration of plaintiff's injuries
        to jury so long as demonstration is not conducted             2 Cases that cite this headnote
        in such manner as to pass beyond limits of
        introducing proof of extent and nature of injury
                                                               [10]   Appeal and Error
        and become merely method of inflaming minds
                                                                         Admission of evidence in general
        of jury.
                                                                      Party may not complain of admission of
        Cases that cite this headnote                                 improper evidence offered by other side when it
                                                                      introduces same evidence or evidence of similar
                                                                      character.
 [7]    Trial
             Experiments and tests                                    Cases that cite this headnote
        Trial court properly allowed in-court
        demonstration of child's neurological injuries
                                                               [11]   Pretrial Procedure
        through examination by physician, in medical
                                                                          Use
        malpractice action claiming neurological injuries
                                                                      Fact that medical malpractice plaintiffs
        were caused during delivery.
                                                                      introduced evidence that controverted defendant
        Cases that cite this headnote                                 hospital's judicial admissions, which were
                                                                      made in response to requests for admissions,
                                                                      did not prevent use of hospital's admissions
 [8]    Evidence
                                                                      for impeachment or as substantive evidence
            Corroboration
                                                                      on material issue; when plaintiffs allowed
        Party is free to support opinion testimony of                 admission of controverting evidence without
        expert by proof of facts which tend to show its               objection, they only waived right to rely
        accuracy, unless facts and circumstances relate               on conclusive effect of hospital's admissions.
        to special transaction outside case on trial for              Vernon's Ann.Texas Rules Civ.Proc., Rule 169,
        purpose of allowing jury to compare results of                subd. 2; Rules of Civ.Evid., Rules 613, 803(2).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


                                                                          Admissibility
        1 Cases that cite this headnote
                                                                     Evidence that mother's oldest child suffered
                                                                     from grand mal seizures was not relevant, in
 [12]   Trial                                                        medical malpractice action claiming hospital's
             Effect of Failure to Object or Except                   negligence during delivery caused neurological
        Party asserting conclusive effect of opponent's              injuries in mother's youngest child, to hospital's
        judicial admissions of fact must protect record              theory that child's injuries were caused by
        by objecting to introduction of controverting                congenital malformations in womb or genetic
        evidence and submission of any issue bearing                 disorder, where there was no evidence of medical
        on facts admitted. Vernon's Ann.Texas Rules                  causes of oldest child's seizures, and there was
        Civ.Proc., Rule 169, subd. 2; Rules of Civ.Evid.,            no expert testimony linking seizures to hospital's
        Rules 613, 803(2).                                           causation theory.

        3 Cases that cite this headnote                              Cases that cite this headnote


 [13]   Pretrial Procedure                                    [16]   Pleading
             Facts taken as established or denial                        As to relief prayed
        precluded; preclusion of evidence or witness                 Trial court must allow post-verdict trial
        Party offering testimony of witness who was not              amendment that increases amount of damages
        timely designated has burden of showing good                 sought in pleadings to that found by jury unless
        cause for its failure to supplement discovery, and           opposing party presents evidence of prejudice or
        trial court has discretion to determine whether              surprise. Vernon's Ann.Texas Rules Civ.Proc.,
        offering party met its burden of showing good                Rules 63, 66.
        cause. Vernon's Ann.Texas Rules Civ.Proc.,
                                                                     Cases that cite this headnote
        Rules 166b, subd. 6, par. a, 215, subd. 5.

        Cases that cite this headnote                         [17]   Pleading
                                                                         Subject-matter of amendment in general
 [14]   Pretrial Procedure                                           Trial court lacked discretion to refuse medical
             Identity and location of witnesses and                  malpractice plaintiff's post-verdict motion to
        others                                                       amend petition to increase amount of damages
        Hospital's claim that is was unaware until                   claimed for child's future medical, nursing,
        shortly before trial that medical malpractice                educational, and custodial care to the $10
        plaintiff's former husband had knowledge of                  million found by jury, where defendant hospital
        facts relevant to claim, that hospital's negligence          presented no evidence of surprise or prejudice,
        during delivery caused child's neurological                  and in fact, cross-examined plaintiffs' economist
        injuries, did not establish good cause for                   who testified without objection that projected
        hospital's failure to timely designate former                cost of child's future care was in excess of $10
        husband as witness, where plaintiff, child's                 million. Vernon's Ann.Texas Rules Civ.Proc.,
        mother, provided ex-husband's name in answers                Rules 63, 66.
        to interrogatories, and there was no evidence
                                                                     Cases that cite this headnote
        that hospital attempted to locate him prior to
        trial. Vernon's Ann.Texas Rules Civ.Proc., Rules
        166b, subd. 6, par. a, 215, subd. 5.                  [18]   Health
                                                                         Measure and elements
        1 Cases that cite this headnote
                                                                     Injury to family relationship was worthy of
                                                                     compensation in medical malpractice action.
 [15]   Health


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)




        Cases that cite this headnote                        Attorneys and Law Firms

                                                              *582 Kevin J. Keith, Dallas, Thomas P. Sartwelle, Houston,
 [19]   Infants                                              for appellants.
            Costs and Fees
        Infants                                              Jim M. Perdue, Mark D. Clore, Denice Smith, R. Tate Young,
            Discretion of lower court                        Houston, for appellees.
        Award of guardian ad litem fees is in sound          Before LEE, AMIDEI and O'NEILL, JJ.
        discretion of trial court, and absent evidence
        illustrating clear abuse of discretion will not be
        set aside by reviewing court.
                                                                                       OPINION
        1 Cases that cite this headnote
                                                             O'NEILL, Justice.

 [20]   Infants                                              Lisa Lee was in active labor when a nurse at Parkway
            Costs and Fees                                   Hospital, Inc. (“Parkway”) gave her an injection of Pitocin,
                                                             a drug used to accelerate labor. Shortly thereafter Lisa's
        Infants
                                                             uterus ruptured and her son, Alexander, was born with
            Attorney fees
                                                             severe neurological injuries. Immediately after the delivery,
        Relevant factors in determining reasonableness       Lisa underwent an emergency hysterectomy. Lisa filed
        of guardian ad litem's fees are difficulty and       suit against her obstetrician, Dr. Chin Lee (no relation),
        complexity of case, amount of time spent by          and the hospital, alleging that their negligence caused the
        attorney, benefit derived by client, and skill       injuries she and her son sustained. At trial, the cause of the
        and experience reasonably needed to perform          plaintiffs' injuries was hotly contested. The Lees claimed the
        service.                                             negligent administration of Pitocin was the proximate cause
                                                             of their injuries. The hospital claimed the tetanic contractions
        Cases that cite this headnote
                                                             that ruptured Lisa's uterus were not precipitated by the
                                                             administration of Pitocin, and Alexander's cerebral palsy was
 [21]   Infants                                              the result of congenital abnormalities and genetic disorders. It
            Compensation and expenses                        was also disputed whether the Pitocin was administered with
        Infants                                              or without a doctor's order.
            Costs and Fees
        Trial court's award of $125,000 as guardian ad       The jury found no negligence on the part of Dr. Lee, and
        litem fees was not abuse of discretion in medical    determined that the hospital's negligence proximately caused
        malpractice action brought on behalf of child        the plaintiffs' injuries. The jury awarded over $16 million
        who allegedly sustained neurological injuries        in damages, and the trial court entered judgment on the
        during delivery, where guardian ad litem stated      verdict. 1 In eight points of error, Parkway contends the
        that he recorded 244 hours of time, but requested    trial court erred in (1) making various evidentiary rulings,
        fees for 300 hours due to fact that he did not       (2) allowing the Lees to amend their *583 petition post-
        record all of his time, guardian stated case was     verdict, (3) allowing an award for “damage to the family
        very complex, and defendant hospital did not         relationship,” and (4) awarding excessive guardian ad litem
        present evidence that award was arbitrary or         fees. Finding no abuse of discretion, we affirm the judgment
        unreasonable.                                        of the trial court.

        1 Cases that cite this headnote                      1      The trial court entered judgment against Parkway and
                                                                    Epic Healthcare Group, Inc. The parties stipulated that
                                                                    Epic would pay any final, nonappealable judgment




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Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


       against Parkway. Epic's liability is not an issue in this
       appeal.

                                                                                  Points of Error One and Two
       Evidentiary Rulings—Standard of Review
                                                                In its first two points of error, Parkway contends the
 [1] The hospital's first five points of error complain of trial court erred in allowing the Lees' medical expert, Dr.
evidentiary rulings made by the trial court. The admission and  Robert Yetman, to conduct an evaluation of Alexander
exclusion of evidence, including demonstrative evidence, is     before the jury. It is helpful in addressing these points to
committed to the trial court's sound discretion. Hur v. City of understand the sequence of events preceding introduction
Mesquite, 893 S.W.2d 227, 231 (Tex.App.—Amarillo 1995,          of the contested evidence. During voir dire and opening
writ denied); see also Gee v. Liberty Mut. Fire Ins. Co.,       statement, the defense emphasized that there was no current
765 S.W.2d 394, 396 (Tex.1989). A trial court abuses its        neurological information about the child. Counsel stated that
discretion when it acts without regard to any guiding rules     no such medical information would be presented “unless
or principles. City of Brownsville v. Alvarado, 897 S.W.2d      somebody goes out and does it before this trial ends.”
750, 753–754 (Tex.1995); Downer v. Aquamarine Operators,        Counsel also queried whether Alexander's condition was
Inc., 701 S.W.2d 238, 241–42 (Tex.1985). The supreme court      “as bad as it sounds” and whether he “might, in fact, be
has defined “abuse of discretion” as “a decision so arbitrary   improving?” To counter these remarks, the Lees called Dr.
and unreasonable as to amount to a clear and prejudicial error  Yetman, a pediatrician with the University of Texas at
of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,    Hermann Hospital, who attended Alexander shortly after
917 (Tex.1985).                                                 birth. Dr. Yetman had been timely designated as Alexander's
                                                                treating physician to testify “on issues of causation regarding
 [2] [3] To obtain reversal of a judgment based upon error Alexander Lee's injuries, damages associated with his
in the admission or exclusion of evidence, the appellant must   condition, including necessary medical, educational, nursing
show (1) the trial court did in fact commit error, and (2)      therapy, expenses and intervention.”
the error was reasonably calculated to cause and probably
did cause rendition of an improper judgment. Bridges v. City    Because Alexander's neurological deficiencies are not readily
of Richardson, 163 Tex. 292, 354 S.W.2d 366, 368 (1962);        visible, Dr. Yetman was asked to conduct a brief evaluation
TEX.R. APP. P. 81(b). Appellant need not prove that but for     of the child to demonstrate his injuries to the jury. Parkway
the evidentiary error a different judgment would necessarily    objected to any new opinions from Dr. Yetman, and claimed
have been rendered, but only that the error probably resulted   that such an evaluation was not within the plaintiffs'
in an improper judgment. McCraw v. Maris, 828 S.W.2d            designation. Parkway further complained that the witness
756, 758 (Tex.1992); King v. Skelly, 452 S.W.2d 691, 696        violated Rule 167a by indicating his willingness to conduct
(Tex.1970). A judgment will not be reversed for erroneous       such an examination. The *584 trial court overruled
rulings on admissibility of evidence where the evidence in      Parkway's objections, but ordered Dr. Yetman to conduct an
question is cumulative and not controlling on a material issue  in-camera preview of the demonstration so that the parties
dispositive of the case. Whitener v. Traders and General        could see “the full breadth of what's being offered” and
Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956);             make their objections to any new opinions in advance. The
see also Turner v. Monsanto Co., 717 S.W.2d 378, 381            preliminary in-camera evaluation was videotaped, and is
(Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). A      hereafter referred to as the “preview tape.”
successful challenge to evidentiary rulings usually requires
the complaining party to show that the judgment turns on           The preview tape is approximately eleven minutes in length
the particular evidence excluded or admitted. See GT & MC,         and shows Dr. Yetman directing Alexander to walk forward,
Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.       walk backward, draw on a piece of paper, put blocks in a
—Houston [1st Dist.] 1991, writ denied); Atlantic Mut. Ins.        cup, stack blocks on top of each other, place a raisin in a
Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.—San                small bottle, give a doll a bottle, and talk. During this process,
Antonio 1983, writ ref'd n.r.e.). We must review the entire        Dr. Yetman asked Lisa questions about Alexander's verbal
record to determine whether the case turns on the erroneously      and physical capabilities. When the preview was completed,
admitted evidence. See Boothe v. Hausler, 766 S.W.2d 788,          the Lees limited their offer of Dr. Yetman's evaluation for
789 (Tex.1989); Gee, 765 S.W.2d at 396.                            the purpose of “exhibit[ing] the child's injuries, that is the



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Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


nature of his motor dysfunction, his problems walking ... his       Parkway claims this rule was violated in the following
inability to use his hands, fingers ... his problem with trunk      exchange between the Lees' counsel and Dr. Yetman:
control or incoordination, that is the inability for him to stand
up and control his movements....” The court accepted the              Q. (Mr. Clore) Dr. Yetman, if there are some suggestions
limited offer, stating that “the sole purpose [of the evaluation]       in this case that, well, we don't have a current evaluation
is to demonstrate the child's function,” and instructed Lisa            of the child, that without a current evaluation you can't
not to volunteer information during the demonstration to be             really get enough information, is that something that we
conducted before the jury. The defense was told that if Dr.             could rectify here today, I mean to have some better
Yetman offered new opinions or testified beyond the scope               understanding or a better picture of a current evaluation
of his designation during the in-court evaluation, objections           of the child?
could be lodged at that time. The trial then resumed, and Dr.
                                                                      A. (Dr. Yetman) You could do another evaluation on him
Yetman proceeded with the in-court evaluation.
                                                                        would be the easiest thing to do.

Dr. Yetman explained to the jury that his demonstration               Q. So everybody will know, have you and I talked about
would give “a brief overview of how [Alexander] currently               that?
functions.” Due to the child's young age, the evaluation
took place in the privacy of the court's chambers and was             A. Yes.
simultaneously viewed by the jury through closed-circuit
                                                                      Q. We talked about that on Saturday?
television. The in-court demonstration was approximately
three and a half minutes shorter than the preview and showed           *585 A. Yes.
Alexander performing the same activities, but without Lisa's
input. During the in-court demonstration and Dr. Yetman's             Q. Dr. Yetman, are you willing to do like a limited
subsequent testimony, there were no objections that Dr.                 evaluation of the child today if there's been some
Yetman was offering new opinions or testifying beyond                   suggestion that we don't have a current evaluation?
the scope of his designation. In fact, Dr. Yetman stated
that he formed his opinions about Alexander's condition             Parkway contends the trial court erred in denying its motion
after reviewing a “day-in-the-life video” made approximately        for mistrial because the Lees violated the Rule 167a(c)
one year earlier, which showed Alexander performing most            mandatory prohibition of commenting to the jury on their
of the same functions he demonstrated during the in-court           willingness to submit Alexander to an examination. We
evaluation. The “day-in-the-life video” was admitted into           disagree.
evidence without objection.
                                                                     [4] Rule 167a provides a procedure by which another party
In its first point of error, the hospital claims the Lees           to the suit, typically a defendant, may require a party whose
violated Rule 167a by expressing a willingness to submit            physical condition is in dispute to submit to a physical
Alexander to an evaluation. TEX.R. CIV. P. 167a(c). Rule            examination. The primary purpose of subparagraph (c) is to
167a provides that if the mental or physical condition of a         ensure that the defendant is not penalized for failing to seek a
party is in controversy, the trial court may, on motion and         physical examination as allowed by the rule:
with notice to the person to be examined, “order the party to
                                                                                Subdivision (c) provides that the party
submit to a physical or mental examination by a physician
                                                                                whose physical or mental condition
or psychologist” at a specific time and place. Id. The order
                                                                                is in controversy may not mention at
shall also specify the “manner, conditions, and scope of the
                                                                                the trial the failure of his adversary to
examination and the person or persons by whom it is to be
                                                                                move for an examination under Rule
made.” Id. If no examination is sought or ordered by the trial
                                                                                167a, his right to so move, or his (the
court, the party whose condition is in controversy “shall not
                                                                                injured party's) willingness to submit
comment to the court or jury on his willingness to submit to
                                                                                to an examination. Apparently the
an examination, on the right of any other party to request an
                                                                                philosophy motivating this provision
examination or move for an order, or on the failure of such
                                                                                is that the opportunity for an
other party to do so.” Id.
                                                                                examination, offered by Rule 167a,
                                                                                is a privilege that may or may not


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Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


            be exercised, and that no penalty                      extent and nature of the injury and become merely a method
            should attach to a party's failure, for                of inflaming the minds of the jury.” Gray v. L–M Chevrolet
            whatever reason, to take advantage of                  Co., 368 S.W.2d 861, 864 (Tex.Civ.App.—El Paso 1963,
            the opportunity.                                       writ ref'd n.r.e.) (citing Coca Cola Bottling Co. v. Hankins,
                                                                   245 S.W.2d 740 (Tex.Civ.App.—Fort Worth 1952), rev'd on
C.E. Duke's Wrecker Service, Inc. v. Oakley, 526 S.W.2d            other gr., 151 Tex. 303, 249 S.W.2d 1008 (1952); Travelers
228, 232 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ              Ins. Co. v. Epps, 191 S.W.2d 100 (Tex.Civ.App.—Fort Worth
ref'd n.r.e.) (quoting 1 W. Jordan, Modern Texas Discovery,        1945, writ ref'd n.r.e.)). Parkway does not challenge the
Section 813, at 536–37 (1974)). The rule was not designed           *586 general proposition that a plaintiff may exhibit his
to prevent a party whose physical or mental condition is in        injuries to a jury, but claims the evaluation in the present
dispute from demonstrating their injuries to the jury, but to      case went beyond a simple demonstration and became an
prevent an adverse party from being forced to seek a medical       improper pediatric “examination.” However, Parkway fails
evaluation or risk opening his failure to do so to comment         to articulate in what manner the evaluation went beyond
before the jury. Id.                                               a simple demonstration of Alexander's injuries. The jury
                                                                   observed Alexander performing activities that demonstrated
 [5] The colloquy between the Lees' counsel and Dr. Yetman         the nature of his neurological deficits by showing the extent
violated neither the letter nor the spirit of Rule 167a. Dr.       of his motor problems, his ability to perform simple tasks
Yetman was simply asked whether he would be willing to do          and his communication skills. The examination was limited
a limited evaluation of the child before the jury, and counsel     by the trial court and was, as demonstrated by the video and
emphasized that he was offering Dr. Yetman's interaction           confirmed by Dr. Yetman, “purely objective.” Indeed, it is
with Alexander only to “exhibit the child's injuries.” This        difficult to imagine any other way in which Alexander could
exchange in no way reflected upon the hospital's failure to        have exhibited his cognitive and physical abilities to the jury.
request a medical evaluation, as contemplated by Rule 167a.        We agree with the Alabama Supreme Court that in evaluating
The hospital itself placed the child's current medical status in   neurological injuries in a minor child
issue during voir dire and opening statement. By seeking to
exclude Dr. Yetman's testimony under Rule 167a, the hospital                    ... it would be difficult to exhibit
attempts to use the rule as a sword rather than a shield, as                    cognition without a demonstration of
contemplated by the rule, by challenging the child's current                    vocal expression, physical response,
medical condition, then objecting to evidence of his current                    or a combination of both, and
medical condition on the ground that the hospital had not                       thus it would not be, as a
sought a medical evaluation under the rule. We decline to so                    matter of law, erroneous to have
apply Rule 167a(c). Point of error one is overruled.                            such a demonstration guided by a
                                                                                witness skilled in ascertaining such
In its second point of error, Parkway contends the trial                        relevant responses and explaining
court erred in overruling its objections to the in-court                        their meaning. The accuracy of such
evaluation and Dr. Yetman's opinion testimony about the                         a demonstration, of course, is to
child's medical condition and prognosis. Parkway claims the                     be tested by the requirements of
doctor's testimony was based on the in-court demonstration,                     relevancy, and such a demonstration
and that it was unduly prejudiced because it had no prior                       is to be disallowed when its probative
notice. Resolution of this point turns upon (1) whether the                     worth is exceeded by its capacity for
evaluation went beyond a mere demonstration of Alexander's                      prejudice.
injuries to the jury, and (2) whether Dr. Yetman offered new
opinions based upon the evaluation that surprised or unduly     Ensor v. Wilson, 519 So.2d 1244, 1257–58 (Ala.1987). See
prejudiced the hospital.                                        Heidbreder v. Northampton Township Trustees, 64 Ohio
                                                                App.2d 95, 411 N.E.2d 825, 829 (1979) (finding no error in
 [6]    [7] The admission of demonstrative evidence rests allowing child to demonstrate extent of motor paralysis and
within the sound discretion of the trial court, and the court   ability to communicate and do simple tasks to jury); Seattle–
may permit a demonstration of the plaintiff's injuries to the   First Nat'l Bank v. Rankin, 59 Wash.2d 288, 367 P.2d 835,
jury “so long as the demonstration is not conducted in such a   841 (1962) (finding no error in allowing minor plaintiff to
manner as to pass beyond the limits of introducing proof of the show extent of mental ability to jury).


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Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


                                                                     record reflects that, two days after the in-court demonstration,
The trial court did not err in allowing the in-court                 Parkway cross-examined Lisa and introduced the preview
demonstration of Alexander's injuries. The demonstration by          tape into evidence. A party may not complain of the
Dr. Yetman was properly limited, and took approximately              admission of improper evidence offered by the other side
nine minutes in a trial that lasted twenty-eight days.               when it introduces the same evidence or evidence of a similar
Parkway never lodged a Rule 403 objection claiming that              character. McInnes v. Yamaha Motor Corp., U.S.A., 673
the prejudicial effect of the demonstration outweighed its           S.W.2d 185, 188 (Tex.1984), cert denied, 469 U.S. 1107,
probative value, nor has it claimed that the jury's verdict          105 S.Ct. 782, 83 L.Ed.2d 777 (1985). Point of error two is
was excessive. Thus, Parkway has failed to show that the             overruled.
demonstration went beyond the limit of showing the nature
and extent of the injury and became a mere method to inflame
the minds of the jury. Gray, 368 S.W.2d at 864.
                                                                                   Points of Error Three and Four

 [8] [9] Parkway also claims the demonstration formed the            Parkway's third and fourth points of error contend the trial
basis for new opinions from Dr. Yetman which surprised               court erred in (1) permitting the Lees to rely on judicial
and unduly prejudiced the hospital. Again, however, Parkway          admissions that were waived by their failure to object to
has failed to articulate what opinions voiced by Dr. Yetman          controverting evidence, and (2) refusing to instruct the jury to
were new, surprising or prejudicial. The trial court informed        disregard the conclusive effect of the judicial admissions.
Parkway that it could lodge objections to any new opinions
given by Dr. Yetman during the demonstration, but Parkway            At trial, the defendants hotly contested whether or not
made no such objections. Dr. Yetman's testimony related              the injection of Pitocin was given on the orders of Lisa's
to “damages associated with [Alexander's] condition” and             obstetrician, Dr. Chin Lee. At the beginning of their case,
was clearly within the plaintiffs' designation. The tenor            the Lees read to the jury the following judicial admissions
of the hospital's complaint appears to be that the in-court          made by the hospital in its response to a series of requests for
demonstration improperly bolstered Dr. Yetman's testimony,           admissions:
however, Parkway failed to so object at trial and waived error
on this basis. Nevertheless, a party is free to support the            1. Dr. Chin Lee did not verbally authorize Gloria Johnson,
opinion testimony of an expert by proof of facts which tend to            R.N. to administer Pitocin to Lisa Lee on June 24, 1992.
show its accuracy, unless the facts and circumstances relate to
                                                                       2. Gloria Johnson, R.N. did not receive orders from Dr.
a special transaction outside the case on trial for the purpose of
                                                                          Chin Lee at approximately 5:30 a.m. on June 24, 1992
allowing the jury to compare the results of such transactions,
                                                                          directing her to administer Pitocin to augment Ms. Lee's
with the object of impressing the jury with the soundness of
                                                                          delivery.
the expert's opinion. City of Hawkins v. E.B. Germany & Sons,
425 S.W.2d 23, 28 (Tex.Civ.App.—Tyler 1968, writ ref'd                 3. Gloria Johnson, R.N. did not receive orders from Dr.
n.r.e.). Parkway has wholly failed to demonstrate that the in-            Chin Lee at approximately 5:30 a.m. on June 24, 1992
court evaluation improperly bolstered Dr. Yetman's opinion                directing her to administer Pitocin to induce Ms. Lee's
testimony.                                                                delivery.

 [10] Neither has Parkway shown that it was surprised                The Lees then presented Nurse Johnson's video deposition
or unduly prejudiced by the in-court demonstration. Dr.              in which she testified Dr. Lee did not give her an order
Yetman's testimony was merely cumulative of properly                 to administer Pitocin, but instructed that his routine orders
admitted testimony and evidence, including Lisa's testimony,         should be followed. When the shift changed, she in turn told
testimony of other expert witnesses and documentary                  the other nurses, including Nurse Tarriman (who gave the
evidence. See Luna v. So. Pac. Transp. Co., 724 S.W.2d               injection), that Dr. Lee's routine orders were to be followed.
383, 385 (Tex.1987). In fact, the demonstration was                  Nurse Johnson testified she did not tell anyone that Dr. Lee
substantially similar to Alexander's *587 “day-in-the-life           had ordered Pitocin. Nurse Tarriman's video deposition was
video” reviewed by Dr. Yetman. The video was made                    then played for the jury. She testified that Nurse Johnson
approximately one year earlier, and showed the child's               told her Pitocin had been ordered by the doctor. Dr. Lee
speech, gross motor and fine motor deficits. Finally, the            testified that he was sure he did not order Pitocin. During



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


its case in chief, the hospital presented testimony from                     the trier of fact. These are to be
Nurses Johnson, Tarriman and Samuels (who had testified                      distinguished from the true judicial
by video deposition that Nurse Tarriman was negligent in                     admission which is a formal waiver of
administering the Pitocin) that conflicted with their prior                  proof usually found in pleadings or the
testimony and controverted the requests for admissions. The                  stipulations of the parties. A judicial
hospital presented such evidence without objection.                          admission is conclusive upon the party
                                                                             making it, and it relieves the opposing
 [11] Parkway complains that the Lees “sought to enhance                     party's burden of proving the admitted
the effect of the admissions by eliciting controverting                      fact, and bars the admitting party from
testimony from the hospital's nurses and then using the                      disputing it. [citations omitted].
admission to impeach and embarrass” the witnesses. Despite
Parkway's protestations, the rules clearly allow the use of      Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606
admissions for just this purpose. TEX.R. CIV. EVID. 613;         S.W.2d 692, 694 (Tex.1980); see also Hennigan v. I.P.
TEX.R. CIV. EVID. 803(2). Parkway cites Rule 169(2),             Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex.1993). The
which states that “[a]ny matter admitted under this rule is      fact that the hospital's admission was controverted did not
conclusively established as to the party making the admission    prevent its use for impeachment or as substantive evidence on
unless the court on motion permits withdrawal or amendment       a material issue. Mendoza, 606 S.W.2d at 694. Point of error
of the admission.” TEX.R. CIV. P. 169(2). Parkway does not       three is overruled.
claim the trial court erred in denying its motion to withdraw
or amend its admissions, but claims the Lees waived their        In point of error four, Parkway claims the trial court erred by
right to rely on the admissions because they allowed the         refusing to submit the following remedial instruction to the
introduction of controverting evidence.                          jury:

                                                                             You are instructed that you are to
 [12] It is true that an admission once admitted, deemed
                                                                             disregard the request for admissions
or otherwise, is a judicial admission, and a party may not
                                                                             regarding whether or not the nurses
then introduce testimony to controvert it. Marshall v. Vise,
                                                                             had an order from Dr. Lee, and you are
767 S.W.2d 699, 700 (Tex.1989); see also Shaw v. Nat'l
                                                                             not to consider the admissions for any
County Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex.App.
                                                                             purposes whatsoever.
—Houston [1st Dist.] 1986, no writ). A party asserting the
conclusive effect of an opponent's judicial admissions of        To obtain a reversal based upon the court's failure to submit
fact must protect the record by objecting to the introduction    an instruction, a substantially correct instruction on the
of controverting evidence and the submission of any issue        law must have been requested in writing and tendered by
bearing on the facts admitted. Marshall, 767 S.W.2d at           the complaining party. TEX.R. CIV. P. 278; J.V. Harrison
700; Houston First Am. Sav. *588 v. Musick, 650 S.W.2d           Truck Lines, Inc. v. Larson, 663 S.W.2d 37, 41 (Tex.App.
764, 769 (Tex.1983). When the Lees allowed the admission         —Houston [14th Dist.] 1983, writ ref'd n.r.e.). For the
of controverting evidence without objection, they waived         reasons discussed in point of error three, Parkway's proposed
their right to rely on the conclusive effect of Parkway's        instruction was not a substantially correct statement of the
admissions. However, because the admissions were properly        law. Mendoza, 606 S.W.2d at 694; Hennigan, 858 S.W.2d at
entered into evidence and not withdrawn or amended, they         372. Such an instruction would have improperly allowed the
still constituted valid, probative evidence that could be        hospital to, in effect, withdraw its admissions. See TEX.R.
appropriately considered by the jury in its deliberations. See   CIV. P. 169(2). We overrule Parkway's fourth point of error.
TEX.R. CIV. P. 169(2). As explained by the supreme court:

            A party's testimonial declarations
            which are contrary to his position                                       Point of Error Five
            are quasi-admissions. They are
                                                                 In point of error five, Parkway claims the trial court erred
            merely some evidence, and they are
                                                                 in excluding the testimony of Lisa's ex-husband, Stephen
            not conclusive upon the admitter.
                                                                 Heiman. Parkway sought to call Lisa's former husband
            [citations omitted] The weight to be
                                                                 to testify regarding the medical history of their children,
            given such admissions is decided by


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           9
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


purportedly to support its theory that Alexander's problems        to anticipate the use of the testimony. See Clark v. Trailways,
were the result of congenital malformations in the womb or         Inc., 774 S.W.2d 644, 647 (Tex.1989). Unless the party thus
a genetic disorder. Specifically, Parkway sought to present        establishes “good cause,” the trial court must automatically
evidence that Lisa's and Stephen's oldest child had suffered       exclude the testimony of an untimely designated witness.
from grand mal seizures since the age of fifteen. The trial        TEX.R. CIV. P. 215(5). Lisa provided her ex-husband's name
court did not allow Stephen to testify because he had not          in her answers to interrogatories, but the record is devoid of
been timely designated by the defendants as a person with          evidence showing that Parkway attempted to locate him prior
knowledge of relevant facts. Parkway contends the trial            to trial. Parkway knew Lisa had three children by Stephen
court abused its discretion because the hospital conclusively      before she gave birth to Alexander, and had ample time to
established good cause for its failure to designate the witness.   pursue this line of investigation. The mere claim that Parkway
                                                                   was unaware Stephen had knowledge of relevant facts until
 [13] A party is obligated to designate any witness it expects     shortly before trial is not sufficient in itself to establish good
to call and to disclose the substance of his testimony as soon     cause. See Macedonia Baptist Church v. Gibson, 833 S.W.2d
as practical, but not less than thirty days before trial. TEX.R.   557, 560 (Tex.App.—Texarkana 1992, writ denied).
CIV. P. 166b(6)(a); Sharp v. Broadway National Bank, 784
S.W.2d 669, 671 (Tex.1990). If a party fails to designate a         [15] Parkway further claims that the trial court's failure
witness pursuant to Rule 166b(6)(a), the witness may not           to allow the defendants to rebut or impeach Lisa with
testify “unless the trial court finds that good cause sufficient   evidence of her oldest child's seizures “greatly discounted
to require admission exists.” TEX.R. CIV. P. 215(5). The           Defendants' causation theory of congenital malformations
party offering the testimony has the burden of showing good        in the womb and genetic disorders.” However, without
cause for its failure to supplement. Sharp, 784 S.W.2d at 671;     knowing the medical cause of the seizures, and without expert
Gee, 765 S.W.2d at 395; Yeldell v. Holiday Hills Retirement        testimony linking the seizures to the defendants' causation
& Nursing Ctr., Inc., 701 S.W.2d 243, 246 (Tex.1985). The          theory, Stephen's testimony regarding his son's seizures was
trial court has the discretion to determine whether the offering   irrelevant and completely speculative. We find the trial court
party met its burden of showing good cause. Alvarado v.            did not abuse its discretion in excluding Stephen's testimony
Farah Mfg. Co., *589 Inc., 830 S.W.2d 911, 914; Morrow             and overrule Parkway's fifth point of error
v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986) (citing
Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442
(Tex.1984)).
                                                                                         Point of Error Six

In response to interrogatories, Lisa identified Stephen            In its sixth point of error, Parkway claims the trial
Heiman as her ex-husband and the father of her three               court erred in granting the Lees' post-verdict motion to
older children. She listed his address and phone number            amend their petition to increase the amount of damages
as “unknown” because, according to her testimony, he               claimed for Alexander's future medical, nursing, educational
frequently changed addresses. She explained that she did           and custodial care (hereinafter collectively “future care”).
not amend her answers to provide this information when it          Parkway complains that it was prejudiced by the amendment
became available because she forgot and the defendants never       because it relied on the figure claimed for future medical
asked again. Lisa further testified that she did not identify      expenses in their settlement negotiation and trial strategy
Stephen as a person with knowledge of relevant facts because       decisions.
she did not think he knew anything relevant to the case.
Parkway claims that Lisa's failure to provide such information     The Lees' sixth amended petition sought a total of $17.6
established good cause for its failure to designate Stephen as     million in damages for Alexander, $10 million of which was
a witness. We disagree.                                            for future care. The Lees' eighth amended petition, upon
                                                                   which they proceeded to trial, also sought a total of $17.6
 [14] As the party offering Stephen's testimony, Parkway           million for Alexander, but only requested $7 million for
bore the burden to establish good cause as to why he was           future care. The jury awarded a total of $11.3 million in
not timely designated as a witness. A party who is aware           damages for Alexander, $10 million of which was for future
of a witness' name must demonstrate on the record their            care. While the jury allocated damages differently than pled
unsuccessful efforts to locate the witness or show an inability    for in the Lees' petition, its total damage award was supported



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


by the evidence and was less than the total amount of damages       argument, however, is based upon cases that have failed to
pled by the Lees prior to trial. The Lees filed a motion for        recognize a cause of action for “interference with family
leave to supplement their petition to increase the amount           relationships.” Parkway has obviously confused two very
claimed for Alexander's future care from $7 million to $10          different avenues for recovery.
million, which the trial court granted.
                                                                     [18] The definition given to the jury for “[d]amage to the
 [16] A trial court must allow a trial amendment that               family relationship” is, with a few minor additions, virtually
increases the amount of damages sought in the pleadings to          identical to the Texas Supreme Court's definition of loss of
that found by the jury unless the opposing party presents           consortium as “loss of love, advice, comfort, companionship
evidence of prejudice or surprise. Greenhalgh v. Service            and society.” Sanchez v. Schindler, 651 S.W.2d 249, 252
Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990). The trial          (Tex.1983). In Sanchez, the court held that “injuries to the
court has no discretion to refuse such an amendment *590            familial relationship are significant injuries and are worthy
unless evidence of surprise or prejudice is presented or the        of compensation.” Id. at 252; see also Cavnar v. Quality
amendment asserts a new cause of action or defense and thus         Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985). The
is prejudicial on its face. Id. (citing TEX.R. CIV. P. 3 and        Lees did not plead “interference with the family relationship,”
66; Hardin v. Hardin, 597 S.W.2d 347, 350–351 (Tex.1980)            as disapproved in Transportation Ins. Co. v. Archer, 832
(Campbell, J., concurring); Food Source, Inc. v. Zurich Ins.        S.W.2d 403, 405 (Tex.App.—Fort Worth 1992, writ denied).
Co., 751 S.W.2d 596, 599 (Tex.App.—Dallas 1988, writ                Rather, the Lees pled for “damage to the family relationship”
denied)); see also Chapin & Chapin, Inc. v. Texas Sand              or loss of filial consortium, an element of damage clearly
and Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex.1992). The           recognized in Texas. 2 See Salinas v. Fort Worth Cab &
burden is upon the party opposing an amendment increasing           Baggage Co., Inc., 725 S.W.2d 701, 703–04 (Tex.1987);
damages to “present evidence to show that the increase              Sanchez, 651 S.W.2d at 252 (Tex.1983); see also Cavnar,
resulted in surprise.” See Greenhalgh, 787 S.W.2d at 940            696 S.W.2d at 551. In any event, Parkway did not object to
(emphasis added).                                                   the question and definition on the ground that “interference
                                                                    with family relationships” was not a viable theory of recovery
 [17] Parkway's attorney argued to the trial court that it          in Texas, and thus did not properly preserve error. TEX.R.
“relied heavily on the plaintiffs' pleadings” and “[to allow        CIV. P. 274; Castleberry v. Branscum, 721 S.W.2d 270, 276–
amendment] at this late date after trial, after the evidence is     77 (Tex.1986). Accordingly, we overrule Parkway's seventh
in, not only operates as a surprise but also as prejudicial.”       point of error.
Parkway's counsel stated that he relied on the plaintiff's eighth
amended petition and chose not to go forward with any               2      Question 8(d) of the Jury Charge reads as follows:
evidence that he could have produced. However, the Lees'
                                                                               If you find that Alexander Lee's injuries are severe,
economist testified without objection that the projected cost
                                                                               permanent and disabling, and only in that event,
of Alexander's future care was in excess of $10 million, and                   then answer question 8(d). Otherwise, do not
he was cross-examined on those projections by counsel for                      answer Question 8(d).
the hospital. Parkway presented no evidence to support its                     d. Damage to the family relationship ____
bare allegations of surprise and prejudice. Because the Lees'                              “Damage to the family
amendment raised no new substantive matters and changed                                    relationship: means the
only the allocation, and not the amount, of damages, and                                   mutual right of a mother
Parkway presented no evidence of surprise or prejudice, we                                 and son to the love, comfort,
overrule Parkway's sixth point of error.                                                   affection, emotional support,
                                                                                           companionship, care and
                                                                                           society which Lisa Lee
                                                                                           would,      in    reasonable
                    Point of Error Seven                                                   probability, have received
                                                                                           from Alexander Lee had he
In its seventh point of error, Parkway contends the trial court                            not received the injuries he
erred in entering judgment on the jury's award for “damage to                              sustained.”
the family relationship” because such an element of damages
is not recognized in a personal injury action in Texas. Its



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               11
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (1997)


                                                                   important legal matters, causing his practice and clients to
                    Point of Error Eight
                                                                   suffer. Additionally, his fiduciary obligation to Alexander put
In its eighth and final point of error, Parkway claims the         him in a position “of considerable personal legal liability.”
guardian ad litem fee awarded by the court was in excess           While Waldner did not attend the six-week trial, he did attend
of a reasonable amount charged for like services in the            several hearings. Waldner requested a fee of $200,000 for his
community.                                                         services, but the trial court reduced his award to $125,000.

 *591 [19] [20] The award of guardian ad litem fees is An appellate court may reverse a trial court for abuse of
in the sound discretion of the trial court, and absent evidence    discretion only if, after searching the record, it is clear that
illustrating a clear abuse of discretion will not be set aside by  the trial court's decision was arbitrary and unreasonable.
a reviewing court. Simon v. York Crane & Rigging Co., Inc.,        Simon, 739 S.W.2d at 795; Landry v. Travelers Ins. Co., 458
739 S.W.2d 793, 794–95 (Tex.1987). In general, the same            S.W.2d 649, 651 (Tex.1970). The party contending abuse of
factors used to determine the reasonableness of attorney's fees    discretion, however, has the burden to bring forth a record
are employed to ascertain the reasonableness of a guardian         showing such abuse. See Id; Englander Co. v. Kennedy, 428
ad litem's fees. Id. Relevant factors are (1) the difficulty and   S.W.2d 806, 807 (Tex.1968); TEX.R.APP. P. 50(d). Absent
complexity of the case, (2) the amount of time spent by the        such a record, the reviewing court must presume that the
attorney, (3) the benefit derived by the client, and (4) the skill evidence before the trial judge was adequate to support the
and experience reasonably needed to perform the service. Id.       decision. Simon, 739 S.W.2d at 795; Mays v. Pierce, 281
                                                                   S.W.2d 79, 82, 154 Tex. 487 (1955).
Paul Waldner was appointed guardian ad litem for Alexander
on June 6, 1994. Waldner testified that he recorded 244             [21] Other than cross-examining Waldner on customary
hours of time, but was requesting fees for 300 hours because       attorney's fees in Houston, and pointing out that some of his
he did not start recording his time until January, 1995.           work overlapped with work performed by the Lees' attorneys,
Waldner and his staff spent extensive time on the case,            Parkway failed to present any evidence that the guardian
which he described as raising “virtually every conceivable         ad litem's award was arbitrary or unreasonable. While an
medical issue” and “the most complex” in which he had ever         award of $125,000 might be considered excessive in some
been involved. Waldner attended depositions and reviewed           situations, our review of the record does not show that the trial
the discovery in the case, including the depositions and           court's award amounted to an abuse of discretion in this case.
medical reports. He also attended the mediation and, after it      Therefore, we overrule Parkway's eighth point of error.
failed, initiated further settlement negotiations. He suggested
experts, worked with experts and assisted in trial strategy.       The judgment of the trial court is affirmed.
The problems in the case were complicated by the change in
Parkway's attorneys “very close to the trial date.” Due to his
responsibilities as guardian ad litem, Waldner had to defer        All Citations

                                                                   946 S.W.2d 580

End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            12
Pearland Capital Group, LP v. Horizon United Group..., Not Reported in...
2011 WL 4611533

                                                                   and Horizon or, alternatively, in denying its and Horizon's
                                                                   “respective alternative motions to compel arbitration of
                  2011 WL 4611533
                                                                   all claims in dispute,” including those claims by and
    Only the Westlaw citation is currently available.
                                                                   against PCG, Horizon, and appellees Brinkmann Roofing
          SEE TX R RAP RULE 47.2 FOR                               & Sheetmetal Company, Inc., Brinkmann Investments,
    DESIGNATION AND SIGNING OF OPINIONS.                           Inc. (collectively, “Brinkmann”), and Nationwide Metal
                                                                   Buildings, LLC (“Nationwide”). 2
             MEMORANDUM OPINION
              Court of Appeals of Texas,
                                                                   1      TEX. CIV. PRAC. & REM.CODE ANN. § 171.098(a)
                Houston (1st Dist.).
                                                                          (1) (Vernon 2005).
    PEARLAND CAPITAL GROUP, LP, Appellant                          2      Both Brinkmann and Nationwide have elect ed not to file
                       v.                                                 appellate briefs.
   HORIZON UNITED GROUP INTERNATIONAL,
      LLC d/b/a Horizon Group International,
    Brinkmann Roofing & Sheetmetal Company,                                                Background
        Brinkmann Investements, Inc., and
                                                                   During the pendency of this interlocutory appeal,
    Nationwide Metal Buildings, LLC, Appellees.                    neither party sought temporary orders from this Court.
                                                                   SeeTEX.R.APP. P. 29.3. After both PCG and Horizon filed
       No. 01–11–00324–CV.           |   Sept. 30, 2011.
                                                                   their briefing in this Court, the trial court, on August 31,
On Appeal from the 125th District Court, Harris County,            2011, signed an Order Reconsidering Court's Prior Ruling
Texas, Trial Court Case No.2009–60160.                             Regarding Arbitration, in which it effectively dissolved
                                                                   its original order and compelled to arbitration “those
Attorneys and Law Firms                                            claims arising under the Horizon/[PCG] AIA construction
                                                                   contract.”The trial court made additional orders severing
William F. Harmeyer, for Pearland Capital Group, LP.               certain claims into a separate cause number.
William B. Westcott, George T. Jackson, Steven D.
                                                                   Not made aware of the trial court's new order, this Court, on
Naumann, for Horizon United Group International, LLC
                                                                   September 7, 2011, sent the parties notice that this appeal
d/b/a Horizon Group International, Brinkmann Roofing &
                                                                   would be set for submission on September 28, 2011. On
Sheetmetal Company, Brinkmann Investements, Inc., and
                                                                   September 13, 2011, nearly two weeks after the trial court
Nationwide Metal Buildings, LLC.
                                                                   effectively dissolved the order being appealed and entered
Panel consists of Justices JENNINGS, SHARP, and                    its new order, PCG filed in this Court a Motion to Dismiss
BROWN.                                                             Appeal of Interlocutory Order Denying Arbitration. In this
                                                                   motion, PCG contended that, as a result of the trial court's
                                                                   new order granting it the relief that it had requested in its
               MEMORANDUM OPINION                                  application and compelling arbitration of certain contract
                                                                   claims, this Court should dismiss the appeal. On the same day,
TERRY JENNINGS, Justice.                                           Horizon filed in this Court a Motion to Vacate Subsequent
                                                                   Order of Trial Court, arguing that the trial court did not have
*1 Appellant, Pearland Capital Group, LP (“PCG”), brought          jurisdiction to reconsider its April 13, 2011 order denying
this interlocutory appeal 1 to challenge the trial court's April   arbitration. Horizon asked that we vacate the trial court's new
13, 2011 order denying its motion to sever and compel              order and proceed to address PCG's appeal of the original
arbitration. In its sole point of error, PCG contended that        order.
the trial court erred in denying its motion to sever and
compel arbitration of the claims brought against it by
appellee, Horizon United Group International, LLC doing
                                                                                        Motion to Dismiss
business as Horizon Group International (“Horizon”), that
are “based upon the AIA construction contract between” it


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Pearland Capital Group, LP v. Horizon United Group..., Not Reported in...
2011 WL 4611533

                                                                        El Paso Jan. 13, 2005, no pet.)(mem.op.) (dismissing as
In its motion to dismiss, PCG argues that we must dismiss
                                                                        moot interlocutory appeal from order denying motion to
the interlocutory appeal because the trial court entered a
                                                                        compel arbitration after trial court reconsidered its prior
new order granting its motion to compel arbitration and
                                                                        ruling and entered order compelling arbitration); Mobil
compelling arbitration of certain claims.
                                                                        Oil Corp. v. First State Bank of Denton, No. 2–02–119–
                                                                        CV, 2004 WL 1699928, at *1 (Tex.App.-Fort Worth July
It is undisputed that we have jurisdiction over PCG's appeal
                                                                        29, 2004, no pet.)(dismissing as moot interlocutory appeal
of the trial court's original order denying PCG's application
                                                                        from class certification order after trial court vacated order
to compel arbitration. SeeTEX. CIV. PRAC. & REM.CODE
                                                                        and dismissed class action); Board of Trustees, Galveston
ANN. § 171.098(a)(1) (Vernon 2005) (providing that party
                                                                        Wharves v. Galveston Waterfront Ventures, Inc., No. 14–03–
may appeal order denying application to compel arbitration).
                                                                        00265–CV, 2003 WL 21026383, at *1 (Tex.App.-Houston
The parties dispute, however, whether the trial court had
                                                                        [14th Dist.] May 8, 2003, no pet.)(mem.op.) (dismissing as
jurisdiction to enter its new order and, if so, the affect of the
                                                                        moot appeal of temporary injunction after trial court entered
new order on this appeal.
                                                                        permanent injunction); see also Roccaforte v. Jefferson
                                                                        County, 341 S.W.3d 919, 924 & n. 9 (Tex.2011) (discussing
*2 Texas Rule of Appellate Procedure 29.5 provides,
                                                                        cases “in which further proceedings mooted the issues raised”
  While an appeal from an interlocutory order is pending,               in interlocutory appeal).
  the trial court retains jurisdiction of the case and unless
  prohibited by statute may make further orders, including              To the extent that Horizon suggests that Texas Rule of
  one dissolving the order complained of on appeal. If                  Appellate Procedure 29.5(b) precluded the trial court from
  permitted by law, the trial court may proceed with a trial            reconsidering the order being appealed, we note that the rule
  on the merits. But the court must not make an order that:             expressly and specifically authorizes a trial court to dissolve
                                                                        an order that is being appealed. Finally, PCG, the only party
  (a) is inconsistent with any appellate court temporary order;         that appealed the trial court's original order, is now seeking
     or                                                                 dismissal of its appeal. Thus, we conclude that the trial
                                                                        court's new order has not interfered with or impaired the
  (b) interferes with or impairs the jurisdiction of the
                                                                        effectiveness of any relief sought or that may be granted on
     appellate court or effectiveness of any relief sought or
                                                                        appeal.
     that may be granted on appeal.

TEX.R.APP. P. 29.5. Here, the trial court's new order, in               Accordingly, we dismiss the appeal as moot. We also deny
which it reconsidered its prior ruling and granted PCG's                Horizon's motion to vacate the trial court's subsequent order.
application, was clearly permitted under the rules. See
id.The trial court's new order was not inconsistent with
any temporary orders, as neither party requested such                                            Conclusion
orders during the pendency of the appeal. See id.; see
alsoTEX.R.APP. P. 29.3.                                                 We dismiss the appeal as moot.

The trial court's new order rendered the appeal of the original
order moot. See Providian Bancorp Servs. v. Hernandez,                  All Citations
No. 08–04–00186–CV, 2005 WL 82197, at *1 (Tex.App.-                     Not Reported in S.W.3d, 2011 WL 4611533

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Poland v. Grigore, 249 S.W.3d 607 (2008)


                                                                         liability claims against anesthesiologist and
                                                                         anesthesiology practice that employed her, and
                    249 S.W.3d 607
                                                                         thus 120-day period during which husband
                Court of Appeals of Texas,
                                                                         was required to serve an expert report and
                  Houston (1st Dist.).
                                                                         curriculum vitae (CV) on anesthesiologist and
 Raymon POLAND, Individually and as Independent                          the practice commenced when such petition
    Administrator of the Estate of Jessie Poland,                        was filed rather than on husband's filing of
    Robert Martin, and Frank Martin, Appellants                          the second amended petition, though second
                                                                         amended petition contained more specific factual
                         v.
                                                                         allegations, where the allegations in the first
        Dr. Alina GRIGORE and Dr. Arthur
                                                                         amended petition asserted a negligence cause
         S. Keats & Associates, Appellees.
                                                                         of action for the treatment of patient and
                                                                         alleged that anesthesiologist and the practice
        No. 01–07–00197–CV.           |   Feb. 1, 2008.
                                                                         departed from the accepted standards of medical
Synopsis                                                                 care in that treatment. V.T.C.A., Civil Practice
Background: Husband, individually and as administrator                   & Remedies Code § 74.001(a)(13); § 74.351
of deceased patient's estate, brought negligence, breach of              (2004).
fiduciary duty and malpractice action against anesthesiologist
                                                                         6 Cases that cite this headnote
and anesthesiology practice. The 152nd District Court, Harris
County, Kenneth P. Wise, J., granted defendants' motion to
dismiss for failure to serve a timely expert report, and husband   [2]   Health
appealed.                                                                    Affidavits of Merit or Meritorious Defense;
                                                                         Expert Affidavits
                                                                         Anesthesiology practice did not waive any
Holdings: The Court of Appeals, Tim Taft, J., held that:                 objection to husband of deceased patient serving
                                                                         expert report and expert's curriculum vitae (CV)
[1] first amended petition raised health-care-liability claims           beyond 120-day deadline for such reports, in
against defendants, thus triggering 120-day period during                husband's negligence and medical malpractice
which husband was required to serve expert report;                       action, by not objecting to the report and the
                                                                         CV within 21 days of having been served
[2] anesthesiology practice did not waive its objection to the           with them, as a defendant in a health-care-
late serving of the expert report by not objecting to the report         liability action was only required to object to the
within 21 days; and                                                      sufficiency of an expert report within 21 days,
                                                                         such requirement did not apply to challenges
[3] husband did not preserve for appeal his appellate                    based on belated service, and no cure existed for
objections to attorney fees award.                                       an untimely report. V.T.C.A., Civil Practice &
                                                                         Remedies Code §§ 74.001(a)(13), 74.351.

Affirmed.                                                                8 Cases that cite this headnote


                                                                   [3]   Appeal and Error
 West Headnotes (3)                                                         Fees
                                                                         Appeal and Error
                                                                            Failure to Urge Objections
 [1]     Health
                                                                         Court of Appeals would not consider appellate
             Affidavits of Merit or Meritorious Defense;
                                                                         challenges by husband of deceased patient
         Expert Affidavits
                                                                         to trial court's award of attorney fees to
         First amended petition filed by husband                         anesthesiologist and anesthesiology practice
         of deceased patient alleged health-care-


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Poland v. Grigore, 249 S.W.3d 607 (2008)


        when husband's claims were dismissed for                  In August 2003, Jessie Poland, under the care of Dr. James
        failure to serve a timely expert report, as husband       Willerson (an appellee in a related appeal) and Dr. Ott (an
        had not preserved the challenges for appeal and           appellee in another related appeal), was hospitalized at St.
        inadequately briefed the challenges in his appeal;        Luke's Episcopal Hospital and the Texas Heart Institute (both
        husband did not object in the trial court to the          appellees in another related appeal) for an elective surgical
        award of attorney fees, and husband provided              procedure to repair her heart's mitral valve. Appellee Dr.
        absolutely no briefing or argument on such                Alina Grigore, who was employed by appellee Dr. Arthur S.
        appellate challenges in his appeal. V.T.C.A.,             Keats & Associates, was the anesthesiologist for the surgical
        Civil Practice & Remedies Code § 74.351; Rules            procedure. The Poland parties alleged that, at the time of
        App.Proc., Rule 38.1(h).                                  surgery, Jessie Poland's blood contained a level of Coumadin
                                                                  that the health-care providers should have known rendered
        7 Cases that cite this headnote                           her blood fully anti-coagulated and, thus, rendered surgery
                                                                  dangerous. The surgery was nonetheless performed; Jessie
                                                                  Poland bled internally; and she died several days later of
                                                                  multi-system organ failure.
Attorneys and Law Firms
                                                                  In their original and first amended petitions, both of which
 *608 Andrew Lee Payne, Sandrice M. McGlown, Payne &              were filed on October 24, 2005, the Poland parties sued,
Payne & Associates, Houston, TX, for Appellants.                  among other defendants, St. Luke's Episcopal Hospital, the
                                                                  Texas Heart Institute, the University of Texas Health Science
Cynthia D. Rendon, Melanie Ann Rubinsky, Frank A. Doyle,
                                                                  Center at Houston, Dr. Arthur S. Keats & Associates, and
Tamara M. Madden, Lauren B. Harris, Johnson, Spalding,
                                                                  Drs. Ott, Grigore, and Willerson for Jessie Poland's wrongful
Doyle, West & Trent, LLP, John R. Strawn, Jr., Chetna
                                                                  death, for her pain and suffering and medical costs before
Gosain Koshy, Cruse, Scott, Henderson & Allen, L.L.P., Leah
                                                                  her death, and for her burial expenses. By the time of the
Ann Greene, Dale Burrus Frisby, Kroger, Myers, Frisky &
                                                                  trial court's complained-of ruling, the Poland parties had
Hirsch, Houston, TX, for Appellees.
                                                                  amended their petition two more times to allege the following
Panel consists of Justices TAFT, KEYES, and ALCALA.               causes of action or theories of recovery against all defendants,
                                                                  including appellees: (1) negligence, (2) gross negligence, (3)
                                                                  actual and constructive fraud, (4) intentional infliction of
                         OPINION                                  emotional distress, (5) assault and battery, (6) intentional and
                                                                  negligent abandonment, (7) breach of fiduciary duties, (8)
TIM TAFT, Justice.                                                “negligent breach of fiduciary duties,” (9) malpractice, (10)
                                                                  “lack of proper informed consent,” *609 (11) “tampering
Appellants, Raymon Poland, individually and as independent        with official medical records,” (12) “forgery,” (13) violations
administrator of the estate of Jessie Poland, Robert Martin,      of the Texas Deceptive Trade Practices–Consumer Protection
and Frank Martin (“the Poland parties”), appeal from a
                                                                  Act (“DTPA”), 1 and (14) conspiracy among all defendants.
judgment dismissing their health-care-liability and related
                                                                  This “live,” third amended petition also added allegations that
claims against appellees, Dr. Alina Grigore and Dr. Arthur
                                                                  the defendants had altered Jessie Poland's medical records and
S. Keats & Associates. We determine whether the trial court
                                                                  forged Raymon Poland's signature on unspecified hospital
erred in granting appellees' motion to dismiss the claims
                                                                  documents. The Poland parties sought actual and exemplary
against them for the Poland parties' failure timely to serve an
                                                                  damages.
expert report on them. We affirm.

                                                                  1      See TEX. BUS. & COM.CODE ANN. §§ 17.41–.63
                                                                         (Vernon 2002 & Supp.2007).
                        Background
                                                                  Appellees moved to dismiss, under Texas Civil Practice
The factual recitations come mainly from the Poland parties'      and Remedies Code section 74.351(b), the Poland parties'
petition. Appellant Raymon Poland was the husband of Jessie       health-care-liability claims against them for failure to serve
Poland; the remaining appellants were his natural children.       an expert report upon them or their attorneys within 120



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Poland v. Grigore, 249 S.W.3d 607 (2008)



days of the filing of the claims against them. 2 See TEX.                Other defendants' motions to dismiss, objections to the expert
CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon                           report, and motions to strike the live petition were heard
Supp.2007) (providing that trial court must dismiss health-              simultaneously. No additional evidence was presented at the
care-liability claim against defendant if claimant fails to serve        hearing. At the hearing, the Poland parties did not deny that
expert's report and curriculum vitae on that defendant within            they had served Dr. Moritz's May 2, 2005 expert report and
period specified by section 74.351(a)); Act of June 2, 2003,             curriculum vitae (“CV”) on appellees' counsel 123 days after
78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws                   the filing of their first amended petition, the petition that
847, 875 (providing that claimant must serve each defendant               *610 appellees alleged had triggered the 120–day–service
against whom health-care-liability claim is asserted with                deadline, but instead argued that they had not alleged health-
expert's report and curriculum vitae not later than 120 days             care-liability (or any) claims against either appellee until their
of claim's filing) [hereinafter, “former section 74.351(a)”],            second amended petition, which was filed and served along
amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §              with a second unsigned report of Dr. Moritz, dated May 19,
1, 2005 Tex. Gen. Laws 1590, 1590 (current version at TEX.               2006. 4
CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon
Supp.2007)). Appellees, like several other defendants, also              4           The Poland parties also served a report of a nurse, Rachel
objected to or moved to strike the Poland parties' live petition                     Cartwright, on at least some of the defendants in their
to the extent that it attempted to recast health-care-liability                      lawsuit in May 2006. The trial court struck the May 2006
claims as other causes of action.                                                    expert report of Cartwright for its having been untimely
                                                                                     served. The Poland parties do not complain in this appeal
2                                                                                    of the striking of Cartwright's report.
        Before Dr. Arthur S. Keats & Associates had answered
        or appeared in the suit, Dr. Grigore had separately twice        On October 30, 2006, the trial court rendered an interlocutory
        moved to dismiss the claims against her for untimely             order that, among doing other things, dismissed the claims
        service of an expert report. She and Dr. Arthur S. Keats         against appellees with prejudice:
        & Associates then filed a joint motion to dismiss the
        claims against them on June 29, 2005, which predated the             On July 14, 2006 ... CAME TO BE HEARD all parties, by
        dismissal hearing. After the dismissal hearing, but before           and through counsel, Dr. Aline Grigore and Arthur S. Keats
        the trial court had ruled on their June 29 joint dismissal           & Associates' [sic] Motion to Dismiss and Objections
        motion, appellees filed another joint dismissal motion               to Plaintiff's [sic] Expert Report.... The Court, having
        on the same grounds. For simplicity's sake, unless it is             considered such Motions and Objections, having reviewed
        otherwise necessary to distinguish between appellees'
                                                                             the file herein, and heard the argument of counsel, makes
        pre-hearing and post-hearing dismissal motions, we refer
                                                                             the following FINDINGS OF FACTS and ORDERS:
        simply to appellees' “motion” to dismiss.
Appellees' motion to dismiss alleged that the Poland parties                       1. Plaintiffs ... filed their Original Petition on October
had served the report of their expert, Dr. Dennis Moritz,            3                24, 2005. The 120–day deadline by which Plaintiffs
on Dr. Grigore's attorney 123 days after their claims had                             were required to serve their expert reports pursuant
been filed against her and that the Poland parties had never                          to Section 74.351 of the TEX. CIV. PRAC. &
served their report on Dr. Arthur S. Keats & Associates.                              REM.CODE was February 21, 2006. The earliest
The motion further asserted an additional, independent basis                          date that Plaintiffs served an expert report to any
for dismissing the claims against Dr. Arthur S. Keats &                               Defendant, after the filing of their lawsuit, was on
Associates: because the claims against Dr. Arthur S. Keats &                          February 24, 2006.
Associates were based solely on respondeat superior for Dr.
                                                                             ...
Grigore's actions, the claims against it had to be dismissed
when the claims against Dr. Grigore were dismissed for                             6. With respect to Defendants Dr. Alina Grigore and
failure timely to serve the expert report on her.                                     Arthur S. Keats & Associates Plaintiffs served Dr.
                                                                                      Alina Grigore and Arthur S. Keats & Associates with
3       This first unsigned report of Dr. Moritz was dated May                        an unsigned expert report from Dennis Moritz, M.D.,
        2, 2005.                                                                      on February 24, 2006. The deadline to serve an expert
The hearing on appellees' motion to dismiss and their                                 report pursuant to § 74.351 of TEX. CIV. PRAC.
objections to the live petition occurred on July 14, 2006.                            & REM.CODE was February 21, 2006. The Court



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                               3
Poland v. Grigore, 249 S.W.3d 607 (2008)


          hereby finds that Plaintiff's [sic] expert report was     of Dr. Willerson, and of Dr. Grigore and Dr. Arthur S.
          untimely served as to Dr. Alina Grigore and Arthur        Keats & Associates—to render final and appealable those
          S. Keats & Associates. The Court further finds that       interlocutory rulings that had not been appealable on an
          Arthur S. Keats & Associates is a party to the suit       interlocutory basis. Upon remand, the trial court severed the
          under the theory of vicarious liability and because all   rulings against the specified defendants from the underlying
          claims against Dr. Alina Grigore must be dismissed        cause, rendering a final judgment in the newly severed cause
          with prejudice due to a failure to provide an expert      numbers involving Dr. Ott, Dr. Willerson, and Dr. Grigore
          report, Dr. Alina Grigore and Arthur S. Keats &           and Dr. Arthur S. Keats & Associates. On March 15, 2007,
          Associates must also be dismissed. Based on the           this Court reinstated the appeal, assigning different appellate
          foregoing, it is ORDERED that Defendants Dr. Alina        cause numbers to the appeal of what had by then become four
          Grigore and Arthur S. Keats & Associates' Motion          separate rulings in four separate trial-court cause numbers.
          to Dismiss and Objections to Plaintiff's [sic] Expert     This opinion and judgment concern the Poland parties' appeal
          Report [be] GRANTED, and that Defendants Dr.              of the dismissal order rendered in favor of Dr. Grigore and
          Alina Grigore and Arthur S. Keats & Associates [be        Dr. Arthur S. Keats & Associates.
          and] are hereby DISMISSED with prejudice.

  ...
                                                                                         Service on Appellees
        7. It is further ORDERED that pursuant to Section
          74.351 of the TEX. CIV. PRAC. & REM.CODE                  In their first issue, the Poland parties argue that the trial court
          that ... Defendants Dr. Alina Grigore and Arthur S.       erred in granting appellees' dismissal motion and dismissing
          Keats & Associates [be] awarded attorney's fees in        their claims against Dr. Grigore with prejudice because they
          the amount of $34,373.00.... The collection of these      first asserted claims against Dr. Grigore in an amended
          attorney's fees is stayed pending outcome of any          petition that was filed fewer than 120 days before they
          interlocutory appeal.                                     served their expert report on her (and Dr. Arthur S. Keats
                                                                    & Associates's) attorney. In their second issue, the Poland
This same order also (1) denied St. Luke's Episcopal Hospital       parties assert that the trial court erred in dismissing their
and the Texas Heart Institute's motion to dismiss under             claims against Dr. Arthur S. Keats & Associates because
 *611 Texas Civil Practice and Remedies Code section                Dr. Arthur S. Keats & Associates waived any objections to
74.351 and (2) granted Dr. Ott's motion to dismiss under            the Poland parties' expert report, including its timeliness, by
section 74.351(b). Finally, the trial court signed a separate       not having objected within 21 days of the report's (belated)
interlocutory order that granted Dr. Willerson's motion to          service. Finally, the Poland parties assert that the trial court
dismiss based upon Texas Civil Practice and Remedies Code           erred, for various reasons, in awarding Dr. Grigore and Dr.
section 101.106. See TEX. CIV. PRAC. & REM.CODE                     Arthur S. Keats & Associates $34,373 in attorney's fees. 5
ANN. § 101.106 (Vernon 2005).
                                                                    5       The trial court dismissed all of the Poland parties'
The Poland parties appealed the adverse rulings dismissing
                                                                            claims against Dr. Grigore and Dr. Arthur S. Keats &
all of their claims against Drs. Ott, Willerson, and Grigore
                                                                            Associates, even those couched as something other than
and Arthur S. Keats & Associates, and St. Luke's Episcopal                  health-care-liability claims. However, the Poland parties
Hospital and the Texas Heart Institute appealed the denial of               do not complain on appeal of the dismissal of these
their motion to dismiss—all under the same appellate cause                  additional claims. We thus do not consider whether the
number. Although the interlocutory order appealed by St.                    trial court properly dismissed the claims couched as
Luke's Episcopal Hospital and the Texas Heart Institute was                 anything other than health-care-liability claims.
permitted by statute, this was not true of every appealed           “We generally review rulings on a motion to dismiss under
order. See TEX. CIV. PRAC. & REM.CODE ANN. §                        section 74.351(b) for abuse of discretion.” Univ. of Tex.
51.014(a) (Vernon 1997 & Supp.2007). On December 18,                Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871
2006, this Court, upon the parties' motion, abated the appeal       & 871 n. 1 (Tex.App.-Houston [1st Dist.] 2007, pet. filed);
and remanded the cause for the trial court—upon various             accord Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 794
parties' motions, filed in the trial court after appeal, to         (Tex.App.-Houston [1st Dist.] 2007, no pet.).
sever the interlocutory orders rendered in favor of Dr. Ott,



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
Poland v. Grigore, 249 S.W.3d 607 (2008)


                                                                      which was filed on May 19, 2006, fewer than 120 days before
 *612 A. Dismissal of Claims Against Dr. Grigore                      they served their expert report on appellees' counsel.
The version of section 74.351(a) that applies to this case
provides as follows concerning service of the expert report            [1] The appellate record undisputedly refutes the Poland
and CV:                                                               parties' factual representations and argument. The first
                                                                      amended petition, filed on October 24, 2005, alleged in
  § 74.351. Expert Report
                                                                      pertinent part as follows:
  (a) In a health care liability claim, a claimant shall, not later
                                                                        COME NOW Plaintiffs ..., complaining of [various
  than the 120th day after the date the claim was filed, serve
                                                                        defendants and] ... Dr. Alina Grigore, Arthur S. Keats,
  on each party or the party's attorney one or more expert
                                                                        M.D., Associates [sic], ..., who for cause of action, would
  reports, with a curriculum vitae of each expert listed in the
                                                                        respectfully show the following:
  report for each physician or health care provider against
  whom a liability claim is asserted. The date for serving                                          II.
  the report may be extended by written agreement of the
  affected parties. Each defendant physician or health care             This suit is brought under and by virtue of the law of the
  provider whose conduct is implicated in a report must file            State of Texas to recover those damages that Plaintiffs
  and serve any objection to the sufficiency of the report not          are justly entitled to receive as compensation for the
  later than the 21st day after the date it was served, failing         wrongful death of Jessie Poland which was brought about
  which all objections are waived.                                      directly and proximately by reason of the negligence of the
                                                                        Defendants herein, as set out more fully hereinafter.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,
2003 Tex. Gen. Laws 847, 875, amended by Act of May 18,                 ...
2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws
1590, 1590. The statute continues:                                                                 III.

  (b) If, as to a defendant physician or health care provider,          Plaintiffs would show that Jessie Poland was under the care
  an expert report has not been served within the period                of Drs. James Willerson and David Ott, who hospitalized
  specified by Subsection (a), the court, on the motion of the           *613 Jessie Poland in order to perform an elective
  affected physician or health care provider, shall, subject to         medical procedure in August, 2003. While Mrs. Poland
  Subsection (c), enter an order that:                                  had been taking Coumadin prior to her admission, the
                                                                        Defendants herein were well aware of that fact and
     (1) awards to the affected physician or health care                indeed, had her check into the hospital sometime before
     provider reasonable attorney's fees and costs of court             the surgery was to take place to monitor her chemical
     incurred by the physician or health care provider; and             blood levels, knowing that it was dangerous and risky
                                                                        to perform surgery on an individual who was prescribed
     (2) dismisses the claim with respect to the physician or           this particular drug. Nonetheless, despite Defendants'
     health care provider, with prejudice to the refiling of the        actual knowledge of Mrs. Poland's anticoagulation levels
     claim.                                                             as they existed on the morning of the surgery, Drs.
                                                                        Willerson, and Ott, together with anesthesiologist Dr.
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b).
                                                                        Alina Grigore, who was acting in the course and scope of
                                                                        her employment, for Dr. Arthur Keats, M.D., Associates
In their first issue, the Poland parties do not dispute that
                                                                        [sic], proceeded to operate. Mrs. Poland's anticoagulation
they did not serve Dr. Grigore's counsel with their expert's
                                                                        levels, resulting from the prescribed Coumadin, were well
report within 120 days of their first amended petition's filing.
                                                                        known to these Defendants, as well as to [various other
Rather, they argue that the first amended petition did not
                                                                        defendants].... All of the Defendants should have prevented
allege health-care-liability (or any) claims against Dr. Grigore
                                                                        the surgical procedure from going forward with Mrs.
(or against Dr. Arthur S. Keats & Associates) and that they
                                                                        Poland's Coumadin and anticoagulation levels being what
“for the first time” alleged that Dr. Grigore “was directly
                                                                        they were and the Defendants were negligent in proceeding
and vicariously [sic] liable ... for the surgery that lead [sic]
                                                                        with the surgery under these facts and circumstances.
to Jessie Poland's death” in their second amended petition,



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Poland v. Grigore, 249 S.W.3d 607 (2008)


                                                                   Jan. 31, 2008, no pet. h.) (holding that filing of health-care-
  As a result of performing surgery on Mrs. Poland at              liability claim against particular defendant triggers start of
  the time of her elevated Coumadin levels, she suffered           120–day period in which to serve former section 74.351(a)
  a regrettably predictable series of medical complications        expert report and CV on that defendant, regardless of whether
  that ultimately led to her death on August 20, 2003. The         report and CV were provided to defendant before filing
  negligence of the Defendants in performing the procedure         date). That petition was filed more than 120 days before the
  constituted a proximate cause of the wrongful death of           Poland parties served the report and CV on either appellee.
  Jessie Poland.                                                   Accordingly, the trial court did not abuse its discretion in
                                                                   dismissing with prejudice the claims against Dr. Grigore;
                               IV.
                                                                   indeed, the statute required that the court do so. See TEX.
  ...                                                              CIV. PRAC. & REM.CODE ANN. § 74.351(b).

  WHEREFORE, PREMISES CONSIDERED, Plaintiffs                       The Poland parties nonetheless urge that they did not allege
  pray that the Defendants be duly cited to appear and             a health-care-liability claim against Dr. Grigore until their
  answer herein, and that Plaintiffs have judgment against         second amended petition because that later petition contained,
  Defendants, jointly and severally....                            allegedly for the first time, “specific causes of action against
                                                                   [Dr. Grigore], for direct and vicarious liability pre-operation.”
(Emphasis added.)                                                  The gist of the Poland parties' assertion appears to be that no
                                                                   health-care-liability claim was asserted against Dr. Grigore
Former section 74.351(a) requires that the report and CV be        (or either appellee) until more specific factual allegations
served not later than the 120th day after the date that “the       were asserted in the second amended petition.
claim [is] filed.” See Act of June 2, 2003, 78th Leg., R.S.,
ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (emphasis           We disagree. First, as demonstrated above, the first amended
added), amended by Act of May 18, 2005, 79th Leg., R.S.,           petition clearly alleged a health-care-liability claim against
ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590. In section           Dr. Grigore (and both appellees). This was all that was
74.351, “claim” means “health care liability claim.” TEX.          required for the 120–day expert-report deadline to start
CIV. PRAC. & REM.CODE ANN. § 74.351(r)(2) (Vernon                  running because the statute requires simply that each
Supp.2007). “Health care liability claim,” in turn, is defined     physician “against whom a [health-care-]liability claim is
in chapter 74 as “a cause of action against a ... physician for    asserted” be served no later than 120 days after “the [health-
the treatment, lack of treatment, or other claimed departure       care-liability] claim” is filed. See Act of June 2, 2003,
from accepted standards of medical care ... which proximately      78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws
results in injury to or death of a claimant, whether the           847, 875, amended by Act of May 18, 2005, 79th Leg.,
claimant's claim or cause of action sounds in tort or contract.”   R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590.
TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(13)                    The statute does not tie the obligation to serve the report
(Vernon 2005).                                                     and CV to the specificity of the allegations supporting the
                                                                   health-care-liability claim against a physician or health-care
The allegations in the first amended petition quoted above         provider; that is, if the claim asserted against such a defendant
meet this definition because they allege a cause of action         fits the definition of a health-care liability claim, then the
(negligence) against appellees (and all defendants) for the        expert-report service obligation is triggered. Moreover, it
treatment of Jessie Poland, as well as their departure from the    is commonplace to amend a petition's allegations against a
accepted standards of medical care in that treatment, which        particular defendant to render them more specific as more
proximately resulted in Jessie Poland's death. The 120–day         facts become known about the complained-of occurrence.
deadline to serve the expert report and CV on appellees was        “[T]he purposes behind former section 74.351(a)'s adoption
thus triggered by the filing of the first amended petition that    were, among other things, to remove unwarranted delay and
contained the above allegations. See Act of June 2, 2003, 78th     expense, to accelerate the disposition of non-meritorious
Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875,        cases, and to give hard-and-fast deadlines for the serving of
amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635,          expert reports.” Campbell, 222 S.W.3d at 797. The goal of
§ 1, 2005 Tex. Gen. Laws 1590, 1590; Poland v. Ott, No.            creating hard-and-fast deadlines for service of expert reports
01–07–00199–CV, slip op. at 12, *614 ––– S.W.3d ––––,              would be completely undermined if parties had to guess how
––––, 2008 WL 257382 *5 (Tex.App.-Houston [1st Dist.]


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Poland v. Grigore, 249 S.W.3d 607 (2008)


detailed the allegations in support of a health-care-liability        this appellee waived any objection to the expert report and CV
claim had to be before the service requirement was triggered.         by not having objected within 21 days of having been served
Neither the plain language of former section 74.351(a), nor           with them.
the legislative purpose behind it, supports such a reading.
See Gutierrez, 237 S.W.3d at 873 (providing, in construing            Former section 74.351(a) establishes the following procedure
former section 74.351(a), that “[s]tatutes must be construed          after an expert report and CV have been served:
as written, and legislative intent determined, if possible,
from their express terms” and that “[e]ven if a statute is                         Each defendant physician or health
unambiguous, courts may consider the statute's objective;                          care provider whose conduct is
circumstances of its enactment; its legislative history; ... [and]                 implicated in a report must file and
consequences of a particular construction....”).                                   serve any objection to the sufficiency
                                                                                   of the report not later than the 21st
We hold that the trial court did not abuse its discretion in                       day after the date it was served, failing
dismissing the Poland parties' claims against Dr. Grigore. We                      which all objections are waived.

thus overrule the Poland parties' first *615 issue. 6                 See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,
                                                                      2003 Tex. Gen. Laws 847, 875 (emphasis added), amended
6       We distinguish Puls v. Columbia Hospital at Medical           by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005
        City Dallas Subsidiary, L.P., on which the Poland parties     Tex. Gen. Laws 1590, 1590. The plain language of former
        rely. See 92 S.W.3d 613 (Tex.App.-Dallas 2002, pet.           section 74.351(a) provides that a defendant whose conduct is
        denied). In Puls, the plaintiff filed a claim based on        implicated in an expert report need object only to the report's
        a perfusionist's negligence, for which it alleged that        sufficiency within the 21–day period.
        the hospital-employer was vicariously liable, in its
        original petition; in an amended petition, the plaintiff
                                                                      The term “sufficiency” as used in former section 74.351(a)'s
        added claims based on nurses' negligence, for which it
                                                                      21–day–objection deadline does not mean timeliness, as can
        also alleged that the hospital-employer was vicariously
                                                                      be seen from other parts of section 74.351. For example,
        liable. See id. at 615. The expert report concerning the
        nurses' negligence was served within 180 days of the
                                                                      section 74.351(c) permits the trial court to allow the claimant
        amended petition's filing (the deadline at that time),        a one-time extension to cure the objected-to deficiency in the
        but more than 180 days from the original petition's           expert report. See TEX. CIV. PRAC. & REM.CODE ANN.
        filing. See id. The perfusionist was nonsuited. See id.       § 74.351(c) (Vernon Supp.2007) ( “If an expert report has
        The Puls court rejected the hospital's contention that        not been served within the period specified by Subsection (a)
        the expert report concerning the nurses' actions was          because elements of the report are found deficient, the court
        untimely because it had been served more than 180 days        may grant one 30–day extension to the claimant in order to
        from the filing of the original petition, in which the        cure the deficiency.”) (emphasis added). Section 74.351(c)
        hospital had first been made a party through vicarious        necessarily establishes the procedure for challenges other
        liability for another employee's actions: the claim against   than those based on belated service—for instance, objections
        it for vicarious liability based on different employees'
                                                                      to deficiencies in the report's content—because once a report
        actions was a new “claim.” See id. at 617–18. Here,
                                                                      is late, it remains late: no “cure” exists to render an untimely
        in contrast, the Poland parties actually alleged health-
                                                                      report timely. See Herrera v. Seton Northwest Hosp., 212
        care-liability claims against each appellee in their first
        amended petition, simply embellishing those claims in         S.W.3d 452, 460 (Tex.App.-Austin 2006, no pet.) (“[S]ection
        later amendments.                                             74.351(c) ... permits [30–day] extensions for expert reports
                                                                      that the court finds deficient in substance, not for reports
B. Dismissal of Claims Against Dr. Arthur S. Keats &                  that are filed untimely.”); *616 Thoyakulathu v. Brennan,
Associates                                                            192 S.W.3d 849, 853 (Tex.App.-Texarkana 2006, no pet.)
 [2] The reasons set out above also demonstrate that the              (“Section 74.351(c) applies only when ‘an expert report
trial court did not abuse its discretion is dismissing with           has not been served within’ the 120–day period ‘because
prejudice the claims against Dr. Arthur S. Keats & Associates.        elements of the report have been found deficient.’ This clearly
However, in their second issue, the Poland parties nonetheless        requires a timely-served report that is deficient.”) (emphasis
argue that the trial court abused its discretion in dismissing        in original; citation omitted; quoting TEX. CIV. PRAC. &
their claims against Dr. Arthur S. Keats & Associates because         REM.CODE ANN. § 74.351(c)).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
Poland v. Grigore, 249 S.W.3d 607 (2008)


                                                                              2007 WL 1793754, at *4 (Tex.App.-Beaumont June 21,
Likewise, section 74.351(l ) provides that the trial court                    2007, no pet.) (memo. op.) (“[A] health care defendant's
“shall grant a motion challenging the adequacy of an                          21–day deadline explicitly refers to an ‘objection to the
expert report only if it appears to the court, after hearing,                 sufficiency’ of an expert report, not to the fact that an
                                                                              expert report was not served within the mandatory 120–
that the report does not represent an objective good faith
                                                                              day deadline.”) (memo. op.); see also Empowerment
effort to comply with the definition of an expert report in
                                                                              Options, Inc. v. Easley, No. 09–06–148–CV, 2006 WL
Subsection (r)(6).” TEX. CIV. PRAC. & REM.CODE ANN.
                                                                              3239527, at *4 (Tex.App.-Beaumont Nov. 9, 2006, pet.
§ 74.351(l ) (Vernon Supp.2007) (emphasis added). “[A]
                                                                              denied) (memo. op.) (noting in dictum that “[c]hapter
motion challenging the adequacy of an expert report” (section                 74 imposes no deadline for filing a motion to dismiss”
74.351(l )) is the equivalent of an “objection to the sufficiency             for failure timely to serve an expert report); Packard
of the report” (section 74.351(a)). See, e.g., RANDOM                         v. Miller, No. 07–06–0454–CV, 2007 WL 1662279,
HOUSE WEBSTER'S UNABRIDGED DICT. at 24 (2nd                                   at *2 (Tex.App.-Amarillo, May 31, 2007, pet.denied)
ed.2001) (providing that “adequate” and “sufficient” are                      (memo. op.) (holding that defendant who waited almost
synonyms). Therefore, section 74.351(l )'s procedure applies                  18 months to move to dismiss health-care-liability claim
to former section 74.351(a)'s objection. That procedure refers                asserted against him for failure timely to serve expert
to section 74.351(r)(6), which, in turn, defines an expert                    report was not equitably estopped from seeking dismissal
report in terms of its content. See TEX. CIV. PRAC. &                         because “[t]he Legislature did not include an explicit
                                                                              deadline for the filing of a motion to dismiss” under
REM.CODE ANN. § 74.351(5)(6) (Vernon Supp.2007).
                                                                              section 74.351); cf. Pena v. Methodist Healthcare Sys. of
Accordingly, the “objection to the sufficiency of the report”
                                                                              San Antonio, Ltd., 220 S.W.3d 52, 53–54 (Tex.App.-San
in former section 74.351(a) means an objection to the report's
                                                                              Antonio 2006, no pet.) (holding that section 74.351(a)'s
substance, not to the timeliness of its service. Former section               21–day objection deadline did not apply to timely served
74.351(a)'s 21–day deadline thus does not apply to an                         expert report that was unaccompanied by CV because
objection to an expert report based on belated service.                       failure timely to serve CV rendered service of entire
                                                                              report untimely).
In contrast, section 74.351(b)—which establishes the
                                                                       *617 We hold that the trial court did not abuse its discretion
consequences for failure timely to serve an expert report
                                                                      in dismissing the Poland parties' claims against Dr. Arthur
—contains no deadline by which a defendant physician or
                                                                      S. Keats & Associates. We thus overrule this portion of the
health-care provider may complain. See id. § 74.351(b). Dr.
Arthur S. Keats & Associates's complaint was that it was not          Poland parties' second issue. 8
timely served any report at all, not that a timely served report
was deficient. This kind of complaint is not subject to the 21–       8       Given our disposition, we need not determine if the
                                                                              trial court properly dismissed the Poland parties' claims
day–objection deadline of former section 74.351(a). 7
                                                                              against Dr. Arthur S. Keats & Associates because the
                                                                              claims against it were based on respondeat superior
7       See Ogletree v. Matthews, No. 06–0502, ––– S.W.3d                     for Dr. Grigore's actions and Dr. Grigore was properly
        ––––, ––––, 2007 WL 4216606, at *4–5 (Tex. Nov.                       dismissed for failure timely to serve an expert report.
        30, 2007) (appearing implicitly to accept petitioner's
        position that total failure to serve expert report would
        not require defendant's objection within 21–day window,                 Award of Attorney's Fees to Appellees
        although rejecting petitioner's complaint that insufficient
        report was, in effect, no report at all and thus holding      Under their second issue, the Poland parties argue that the trial
        that petitioner had waived objections thereto); Francis       court erred in awarding $34,373 in attorney's fees to appellees
        v. Select Specialty Hosp., No. 01–04–01186–CV, 2005           because
        WL 2989489, at *3 (Tex.App.-Houston [1st Dist.] Nov.
        3, 2005, no pet.) (memo. op.) (“[B]ecause there is no                      [t]here has been no hearing on attorney
        evidence in the record that Sharon filed her expert                        [sic] fees. [The Poland parties] were
        report with the trial court or otherwise provided Select                   denied the opportunity to cross-
        Specialty with an expert report, the 21–day deadline                       examine [appellees] on attorney fee
        by which a health care provider must file and serve                        [sic]. The attorney fees for both Dr.
        its objections to the sufficiency of such a report was
                                                                                   Alina Grigore and Dr. Arthur S. Keats
        not triggered.”); Smith v. Hamilton, No. 09–07–128–CV,



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Poland v. Grigore, 249 S.W.3d 607 (2008)


             & Associates are one combined figure,
             not detailing any particular amount                                 Attorney [sic] fees incurred by Kroger,
             for either. Appellees have failed to                                Myers, Frisby & Hirsch during the
                                                                                 course of responding to Plaintiff's [sic]
             meet the standard as set forth above, 9
                                                                                  *618 Petition ... are ... on behalf
             which must be adhered to, in their
                                                                                 of Dr. Alina Grigore and Arthur S.
             requests for attorney fees.
                                                                                 Keats & Associates [sic], the amount
                                                                                 of $34,373.00.
9       The Poland parties rely on Texas Disciplinary Rule
        of Professional Conduct 1.04(b), which establishes          That affidavit was dated July 14, 2006, the same date as the
        factors that may be considered in determining a fee's       hearing on appellees' June 29 joint motion to dismiss; it is
        reasonableness, and on the opinion of the El Paso           unclear whether this affidavit was a copy of the affidavit
        Court of Appeals in Marquez v. Providence Memorial          for “costs” to which appellees' counsel referred and that
        Hospital, in which the court adopted the factors of         he tendered at the July 14 hearing. The trial court signed
        rule 1.04. See TEX. DISCIPLINARY R. PROF'L                  the order granting appellees' motion to dismiss, which also
        CONDUCT 1.04(b), reprinted in TEX. GOV'T CODE               awarded appellees their attorney's fees, on October 30, 2006.
        ANN., tit. 2, subtit. G, app. A (Vernon 2005) (STATE
        BAR R., art. X, § 9); Marquez v. Providence Mem'l
                                                                     [3] First, the Poland parties have provided absolutely no
        Hosp., 57 S.W.3d 585, 596 (Tex.App.-El Paso 2001, pet.
                                                                    briefing or argument to support the following appellate
        denied).
                                                                    challenges concerning attorney's fees: “[t]here has been
The record shows the following. In their June 29, 2006 joint        no hearing on attorney [sic] fees. [The Poland parties]
motion to dismiss and objection to the Poland parties' second       were denied the opportunity to cross-examine [appellees]
amended petition, appellees requested attorney's fees totaling      on attorney [sic] fee. The attorney fees for both Dr. Alina
$34,373 for Dr. Grigore and Dr. Arthur S. Keats & Associates        Grigore and Dr. Arthur S. Keats & Associates [sic] are
together. No affidavit was attached to the motion in support        one combined figure, not detailing any particular amount
of the requested fees. The hearing on appellees' June 29            for either.” We decline to consider these challenges because
joint motion occurred on July 14, 2006. At that hearing,            they are inadequately briefed. See TEX.R.APP. P. 38.1(h);
counsel for appellees expressly asked for attorney's fees under     Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex.App.-
section 74.351, though no amount was mentioned. See TEX.            Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741
CIV. PRAC. & REM.CODE ANN. § 74.351(b)(1) (requiring                (Tex.2005).
trial court to award “to the affected physician or health
care provider reasonable attorney's fees and costs of court         Additionally, the Poland parties did not object below to the
incurred by the physician or health care provider” when court       attorney's fees award on any of the grounds asserted on appeal
grants dismissal motion based on claimant's failure timely          —either during the July 14 hearing, when appellees' counsel
to file expert report). It appears, however, that an affidavit      appears to have tendered an affidavit of “costs”; during the
supporting “costs” was tendered to the court at that hearing:       month and a half between the time that appellees' filed their
                                                                    August 16 joint motion, which attached the complained-
             Counsel for appellees: I would also—
                                                                    of affidavit, and the court signed the dismissal order that
               I failed to file the affidavit for costs.
                                                                    awarded fees; or after that order was rendered. These types
               If I may file that with the Court....
                                                                    of challenges must be preserved to be asserted on appeal. See
                                                                    TEX.R.APP. P. 33.1(a)(1); City of San Antonio v. Longoria,
On August 16, 2006, while their June 29 joint motion was            04–04–00063–CV, 2004 WL 2098074, at *4 (Tex.App.-San
pending and more than a month before the court would rule           Antonio Sept. 22, 2004, no pet.) (memo. op.) (holding that
on it, appellees filed another joint motion that raised the same    following complaints concerning attorney's fees were waived
arguments and requested the same relief as the as the June 29       for not having been raised in trial court: “the affiants did
joint motion had. The August 16 joint motion again requested        not state they are licensed attorneys in good standing in
$34,373 in attorney's fees for Dr. Grigore and Dr. Arthur           the State of Texas; no evidence was presented regarding
S. Keats & Associates together, but this time attached the          their reputation, experience, or abilities; a foundation for the
affidavit of their trial counsel, Dale Burrus Frisby, in support:   affiants to testify on the reasonableness of their fees was not
                                                                    established; and there is no evidence the fees are reasonable


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
Poland v. Grigore, 249 S.W.3d 607 (2008)


                                                                    We affirm the judgment of the trial court.
in Bexar County, Texas or that two attorneys were necessary
at an arbitration.”).
                                                                    We deny appellees' request for sanctions on appeal.
We overrule this portion of the Poland parties' second issue.
                                                                    All Citations

                                                                    249 S.W.3d 607
                        Conclusion


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Riggins v. Hill, 461 S.W.3d 577 (2014)




                     461 S.W.3d 577                                West Headnotes (10)
                Court of Appeals of Texas,
                  Houston (14th Dist.).
                                                                   [1]   Appeal and Error
               Mary Riggins, Appellant                                      Collateral actions or proceedings
                           v.                                            Judgment
  Ronald E. Hill, Linda C. Hill, West Columbia Plaza,                        Form and requisites of judgment
    Ltd., and Lucky Lindy Development, Appellees                         Judgment in which trial court enforced a
                                                                         settlement of tenant's lawsuit against landlord
   NO. 14–13–00604–CV | December 23, 2014                                and associated parties and awarded trial and
   | Substitute Opinion filed January 22, 2015                           appellate attorney fees to landlord and associated
    | Rehearing Overruled February 24, 2015 |                            parties was not void, and thus trial court lacked
      Rehearing En Banc Overruled April 28, 2015                         jurisdiction over tenant's motion for sanctions,
                                                                         motion for determination of attorney fees and
Synopsis
                                                                         release of money held in the court registry,
Background: Tenant brought action against landlord and
                                                                         and motion for attorney fees, which were filed
associated parties arising out of a fall at landlord's apartment
                                                                         after issuance of appellate mandate affirming the
complex. The 412th District Court, Brazoria County, entered
                                                                         judgment as modified; any error by trial court in
judgment enforcing a settlement between the parties, and
                                                                         adjudicating the merits in the judgment did not
awarding landlord and associated parties trial and appellate
                                                                         deprive trial court of jurisdiction to render the
attorney fees. Tenant appealed, and the Court of Appeals
                                                                         judgment, or make the judgment void.
modified the judgment to make appellate attorney fees
conditional on success on appeal, and affirmed the judgment              Cases that cite this headnote
as modified. Tenant filed petition for review, which was
denied by the Supreme Court. Thereafter, the case was
transferred and tenant filed various motions, including motion     [2]   Courts
for determination of attorney fees. The 239th District Court,                 In general; nature and source of judicial
Brazoria County, entered order enforcing the judgment, and               authority
finding that it lacked jurisdiction over tenant's motions.               “Jurisdiction” refers to a court's authority to
Tenant appealed.                                                         adjudicate a case.

                                                                         Cases that cite this headnote

Holdings: The Court of Appeals, Kem Thompson Frost, C.J.,
                                                                   [3]   Courts
held that:
                                                                             Loss or divestiture of jurisdiction
[1] original judgment was not void, and thus trial court lacked          If a court has jurisdiction to resolve a dispute,
jurisdiction over tenant's post-appellate mandate motions;               an error in its resolution of the merits does not
                                                                         deprive the court of jurisdiction.
[2] landlord and associated parties were entitled to $4,000 in
                                                                         Cases that cite this headnote
appellate attorney fees arising out of petition for review by
the Supreme Court; and
                                                                   [4]   Judgment
[3] appeal was a frivolous appeal, warranting award of                       Judgments enforceable in general
frivolous appeal damages against tenant's attorney.                      Judgment
                                                                             Proceedings to Enforce Judgment

Affirmed; damages awarded.                                               After a trial court's plenary power over a
                                                                         judgment expires, the trial court has an



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Riggins v. Hill, 461 S.W.3d 577 (2014)


        affirmative duty to enforce its judgment, and the             Court of Appeals may award just damages
        trial court retains statutory and inherent authority          under appellate rule governing frivolous appeal
        to do so; but, after its plenary power over a                 damages if, after considering everything in
        judgment expires, the trial court may not issue               its file, Court of Appeals makes an objective
        an order that is inconsistent with the judgment               determination that the appeal is frivolous. Tex.
        or that otherwise constitutes a material change               R. App. P. 45.
        in the substantive adjudicative portions of the
        judgment. Tex. R. Civ. P. 308.                                Cases that cite this headnote

        Cases that cite this headnote
                                                               [8]    Costs
                                                                          What constitutes frivolous appeal or delay
 [5]    Costs                                                         To determine whether an appeal is objectively
            Attorney fees on appeal or error                          frivolous, so as to support an award of frivolous
        Landlord and associated parties were entitled                 appeal damages, Court of Appeals reviews the
        to $4,000 in appellate attorney fees arising out              record from the viewpoint of the advocate and
        of tenant's petition for review by the Supreme                decides whether the advocate had reasonable
        Court, filed after Court of Appeals affirmed                  grounds to believe the case could be reversed.
        as modified a judgment enforcing a settlement                 Tex. R. App. P. 45.
        agreement, even though landlord and associated
        parties did not file a brief or response in the               Cases that cite this headnote
        Supreme Court, where underlying judgment, as
        modified, conditionally awarded landlord and           [9]    Costs
        associated parties $4,000 in appellate attorney                   Discretion of court
        fees if tenant appealed to the Supreme Court,
                                                                      Appellate rule governing frivolous appeal
        conditioned on their success on appeal, and
                                                                      damages does not mandate that Court of Appeals
        judgment did not require filing of a response or
                                                                      award just damages in every case in which an
        brief in order for landlord and associated parties
                                                                      appeal is frivolous; the decision to award such
        to be entitled to these attorney fees.
                                                                      damages is a matter within the court's discretion,
        Cases that cite this headnote                                 which Court of Appeals exercises with prudence
                                                                      and caution after careful deliberation. Tex. R.
                                                                      App. P. 45.
 [6]    Appeal and Error
           Fees                                                       Cases that cite this headnote
        Tenant failed to preserve for appellate review
        her claim that trial court that previously awarded     [10]   Costs
        attorney fees to landlord and associated parties                   Nature and form of judgment, action, or
        in tenant's action against them erred in ordering             proceedings for review
        disbursement of the fees directly to law firm
                                                                      Tenant's appeal from order enforcing an earlier
        that represented landlord and associated parties,
                                                                      judgment enforcing a settlement with landlord
        rather than to landlord and associated parties,
                                                                      and associated parties, in which trial court found
        where tenant did not voice this complaint and
                                                                      it lacked jurisdiction over tenant's motions filed
        obtain an adverse ruling in the trial court. Tex.
                                                                      after issuance of appellate mandate affirming the
        R. App. P. 33.1(a).
                                                                      judgment as modified, was a frivolous appeal,
        Cases that cite this headnote                                 warranting award to landlord and associated
                                                                      parties of frivolous appeal damages against
                                                                      tenant's attorney; tenant did not show any
 [7]    Costs                                                         reasonable ground for concluding that judgment
            Right and Grounds                                         was void or make any other argument that



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Riggins v. Hill, 461 S.W.3d 577 (2014)


        would allow her to obtain relief inconsistent             and Lucky Lindy Development (hereinafter collectively the
        with judgment, tenant did not show error in trial         “West Columbia Parties”). Riggins asserted various claims
        court's enforcement of judgment, and tenant did           against the West Columbia Parties, including that their failure
        not respond to the request for damages. Tex. R.           to provide her with reasonable accommodations for her
        App. P. 45.                                               disability caused her to fall and suffer injuries. A few years
                                                                  later, Riggins and the West Columbia Parties entered into an
        Cases that cite this headnote                             agreement under Texas Rule of Civil Procedure 11, in which
                                                                  they agreed to settle Riggins's claims. After the parties entered
                                                                  into the Rule 11 agreement in May 2008, but before the trial
                                                                  court rendered judgment based on it, Riggins informed the
 *579 On Appeal from the 239th District Court, Brazoria           West Columbia Parties that she was withdrawing her consent
County, Texas, Trial Court Cause No. 35931, Patrick Edward        to the settlement agreement. In response, the West Columbia
Sebesta, Judge                                                    Parties filed a counterclaim seeking to enforce the settlement
                                                                  agreement.
Attorneys and Law Firms
                                                                  In the following year, the trial court granted the West
Veronica L. Davis, West Columbia, TX, for Appellant.
                                                                  Columbia Parties' summary-judgment motion and rendered
L. Cullen Moore, Houston, TX, for Appellee.                       judgment enforcing the settlement agreement and awarding
                                                                  the West Columbia Parties attorney's fees (hereinafter the
Panel consists of Chief Justice Frost and Justices Jamison and    “Judgment”). In the Judgment, signed in February 2009,
Wise.                                                             the trial court awarded the West Columbia Parties $3,000
                                                                  as “attorney's fees and expenses for the filing and hearing
                                                                  on [their summary-judgment motion].” The trial court also
                SUBSTITUTE OPINION 1                              awarded the West Columbia Parties $4,000 as additional
                                                                  attorney's fees “if [Riggins] should appeal ... to the Court of
1      The memorandum opinion issued on December 23, 2014,        Appeals,” as well as $3,500 as additional attorney's fees “if
       is withdrawn, and this opinion is issued in its place to   [Riggins] should appeal ... to the Texas Supreme Court.”
       address appellees' motion for damages under Texas Rule
       of Appellate Procedure 45.                                 Riggins appealed the Judgment to this court (hereinafter the
                                                                  “First Appeal”). See Riggins v. Hill, No. 14–09–00495–CV,
Kem Thompson Frost, Chief Justice                                 2011 WL 5248347, at *1 (Tex.App.—Houston [14th Dist.]
                                                                  Nov. 3, 2011, pet.denied) (mem.op.). On appeal, this court
This appeal involves a challenge to an order in which the         sustained one of Riggins's issues, modified the Judgment
trial court enforced a judgment that was final by appeal. At      to condition the award of appellate attorney's fees on the
issue is whether the trial court erred in *580 determining        West Columbia Parties' success on appeal, and affirmed the
that it lacked jurisdiction over post-mandate motions to          Judgment as modified. See id. at *12. This court did not
alter the attorney's fees awarded in the judgment, whether        reverse any part of the Judgment or remand the case for
the trial court's enforcement order was proper, and whether       further proceedings in the trial court. See id. Riggins then filed
damages under Texas Rule of Appellate Procedure 45 should         a petition for review in the Supreme Court of Texas. See id.
be imposed against appellant's counsel. We affirm the trial       at *1. The high court denied review, and this court issued its
court's judgment and grant appellees' motion for Rule 45          mandate. See id.
damages.
                                                                  In July 2012, Riggins filed a motion in the trial court
                                                                  requesting disbursement of the funds in the registry of the
    I. FACTUAL AND PROCEDURAL BACKGROUND                          court. In her motion, Riggins requested that the trial court
                                                                  order that only $3,000 of the funds be disbursed to counsel for
Nearly a decade ago, appellant/plaintiff Mary Riggins filed       the West Columbia Parties. In response, the West Columbia
suit against various parties, including appellees/defendants      Parties filed a motion in which they requested that $10,500
Ronald E. Hill, Linda C. Hill, West Columbia Plaza, Ltd.,         plus interest be disbursed to their counsel based on the



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Riggins v. Hill, 461 S.W.3d 577 (2014)


attorney's fees awarded to the West Columbia Parties in the              Motions. The West Columbia Parties argue that the trial
Judgment.                                                                court was correct in making this determination. Construing
                                                                         Riggins's appellate brief liberally, we conclude that Riggins
Later that year, Riggins filed a motion to transfer the case             asserts on appeal that the trial court had jurisdiction over
to the 239th Judicial District Court. The West Columbia                  the Post–Mandate Motions because the Judgment is void.
Parties did not oppose this motion, and the *581 case                    Though Riggins's briefing lacks clarity and precision, she
was transferred. 2 The parties engaged in post-judgment                  appears to *582 be asserting that the Judgment is void
discovery. In late 2012 and early 2013, Riggins filed a motion           because the trial court allegedly erred in enforcing the Rule
for sanctions against the West Columbia Parties, a motion                11 agreement, ordering attorney's fees, and rendering the
for determination of attorney's fees and for release of the              Judgment. 3
money in the registry of the court, and a motion for attorney's
fees (hereinafter collectively the “Post–Mandate Motions”).              3       Riggins asserts that “[t]he judgment awarding attorney's
Riggins also filed a “counterclaim,” in which she purported to                   fees to Appellee's [sic] counsel was in all things void for
assert claims for breach of contract and intentional infliction                  the foregoing referenced reasons, as well as those set out
of emotional distress.                                                           below.”
                                                                          [1]     [2]     [3] Jurisdiction refers to a court's authority to
2       The propriety of this transfer is not at issue in this appeal.   adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443
In April 2013, the trial court signed an order enforcing the             (Tex.2003). If a court has jurisdiction to resolve a dispute,
Judgment, as modified by this court, and ordering the court              an error in its resolution of the merits does not deprive the
clerk to disburse $7,500 to counsel for the West Columbia                court of jurisdiction. See Reiss, 118 S.W.3d at 443 (holding
Parties. In its order, the trial court also found that it did not        that a judgment is not void merely because the court erred
have jurisdiction over Riggins's Post–Mandate Motions. In                in adjudicating the merits). Riggins does not argue that the
June 2013, Riggins perfected an appeal from this order, which            trial court lacked jurisdiction to determine whether to enforce
we resolve today.                                                        the Rule 11 agreement and to determine whether any of
                                                                         the parties were entitled to attorney's fees. Instead, Riggins
                                                                         appears to be asserting that the Judgment is void because the
                                                                         trial court allegedly made the wrong decision. Riggins has not
                II. ISSUES AND ANALYSIS                                  cited any authority that supports this proposition. Any error
                                                                         by the trial court in adjudicating the merits in the Judgment
In six appellate issues, Riggins asserts various arguments in
                                                                         did not deprive the trial court of jurisdiction to render the
support of her contention that the trial court erred in granting
                                                                         Judgment, nor did it make the Judgment void. See id. Though
the West Columbia Parties awards of attorney's fees and
                                                                         Riggins states in a conclusory manner that the Judgment is
in failing to grant her an award of attorney's fees. Riggins
                                                                         void or void ab initio, Riggins has not provided any analysis
asserts, among other things, that the trial court erred in
                                                                         in support of this statement. We conclude that the Judgment
awarding the West Columbia Parties attorney's fees because
                                                                         is neither void ab initio nor void.
(1) the West Columbia Parties were not prevailing parties;
(2) attorney's fees are not available for defendants in civil
                                                                         In the remainder of her appellate brief, Riggins does not
rights and torts actions and because seeking to enforce a
                                                                         raise any other challenge to the trial court's conclusion that it
settlement agreement did not change the nature of the action;
                                                                         lacked jurisdiction over the Post–Mandate Motions. Riggins's
(3) the West Columbia Parties' attorneys did not file a brief
                                                                         argument challenging the trial court's decision based on a
or response in the Supreme Court of Texas; (4) awarding
                                                                         purported lack of jurisdiction over the Post–Mandate Motions
attorney's fees for appellate work violates an indigent person's
                                                                         is without merit. To the extent that Riggins challenges the trial
right of access to the courts; (5) a Rule 11 agreement
                                                                         court's determination that it lacked jurisdiction over the Post–
containing prospective language is not a contract; and (6)
                                                                         Mandate Motions in her six appellate issues, those issues are
Riggins is entitled to attorney's fees.
                                                                         overruled.

A. Jurisdiction Over the Post–Mandate Motions
                                                                         B. Challenges to Enforcement of the Judgment
In the order from which Riggins appeals, the trial court
determined that it lacked jurisdiction over the Post–Mandate


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Riggins v. Hill, 461 S.W.3d 577 (2014)


 [4] The Texas Rules of Civil Procedure limit a trial court's      an adverse ruling in the trial court. Therefore, Riggins failed
jurisdiction in the period after the trial court has rendered a    to preserve error as to this appellate complaint. See Tex. R.
final judgment. Custom Corporates, Inc. v. Security Storage,       App. P. 33.1(a); Gammill v. Fettner, 297 S.W.3d 792, 801–02
Inc., 207 S.W.3d 835, 839 (Tex.App.—Houston [14th Dist.]           (Tex.App.–Houston [14th Dist.] 2009, no pet.). This portion
2006, no pet.). After a trial court's plenary power over a         of her first issue is thus waived.
judgment expires, the trial court has an affirmative duty to
enforce its judgment, and the trial court retains statutory        We have addressed all of Riggins's appellate arguments that
and inherent authority to do so. See Tex. R. Civ. P. 308;          constitute a challenge to the manner in which the trial court
In re Crow–Billingsley Air Park, Ltd., 98 S.W.3d 178, 179          enforced the Judgment rather than an attempt to relitigate the
(Tex.2003); BancorpSouth Bank v. Prevot, 256 S.W.3d 719,           Judgment after the trial court lost plenary power over the
724 (Tex.App.—Houston [14th Dist.] 2008, no pet.). But,            Judgment. We conclude that, in these arguments, Riggins has
after its plenary power over a judgment expires, the trial         not shown that the trial court erred in the manner in which it
court may not issue an order that is inconsistent with the         enforced the Judgment. Having concluded that all of Riggins's
judgment or that otherwise constitutes a material change in        arguments lack merit, we overrule Riggins's appellate issues.
the substantive adjudicative portions of the judgment. Custom
Corporates, Inc., 207 S.W.3d at 839.
                                                                   C. Damages Under Texas Rule of Appellate Procedure
 [5] Under her third issue, Riggins argues that the West           45
Columbia Parties are not entitled to attorney's fees because        [7] [8] [9] Texas Rule of Appellate Procedure 45, entitled
they did not file a brief or a response in the Supreme Court       “Damages for Frivolous Appeals in Civil Cases,” provides
of Texas. Under the language of the Judgment, as modified          for the assessment of just damages if the court of appeals
by this court in the First Appeal, the West Columbia Parties       determines that a civil appeal is frivolous. See Tex. R. App.
are entitled to an additional $4,000 in appellate attorney's       P. 45 (stating that, “[i]f the court of appeals determines that
fees “if [Riggins] should appeal ... to the Texas Supreme          an appeal is frivolous, it may—on motion of any party or on
Court,” conditioned on the West Columbia Parties' success          its own initiative, after notice and a reasonable opportunity
on appeal. Under the unambiguous language of the Judgment,         for response—award each prevailing party just damages”);
as modified by this court, the West Columbia Parties were          Hatton v. Grigar, No. 14–09–00630–CV, 2011 WL 175501,
not required to file a response or a brief to be entitled to       at *3 (Tex.App.—Houston [14th Dist.] Jan. 20, 2011, no pet.)
recover these additional appellate fees. Riggins has not cited     (ordering appellant and appellant's attorney to pay Rule 45
any authority in which a court concludes that a judgment           damages to appellee) (mem.op.); Lookshin v. Feldman, 127
creditor must file an appellate brief or response to be entitled   S.W.3d 100, 107 (Tex.App.—Houston [1st Dist.] 2003, pet.
to recover appellate attorney's fees awarded to the judgment       denied) (ordering only appellant's attorney to pay Rule 45
creditor, even though that condition is not contained in the       damages to appellee). Based on this rule, the West Columbia
judgment. Riggins has not shown that the trial court erred         Parties have moved for just damages against Veronica L.
to the extent the trial court ordered the disbursement of the      Davis, counsel of record for Riggins. This court may award
                                                                   just damages under Rule 45 if, after considering everything
additional attorney's fees from the registry of the court. 4
                                                                   in its file, this court makes an objective determination that
                                                                   the appeal is frivolous. Glassman v. Goodfriend, 347 S.W.3d
4      Riggins does not assert that the West Columbia Parties      772, 782 (Tex.App.—Houston [14th Dist.] 2011, pet. denied)
       were not entitled to these fees because Riggins filed a     (en banc). To determine whether an appeal is objectively
       petition for review rather than an appeal in the Supreme
                                                                   frivolous, this court reviews the record from the viewpoint of
       Court of Texas. Even if Riggins had made such an
                                                                   the advocate and decides whether the advocate had reasonable
       argument, we would conclude it lacks merit.
                                                                   grounds to believe the case could be reversed. Id. But, Rule 45
 [6] Under her first issue, Riggins also asserts that the trial    does not mandate that this court award just damages in every
court erred in ordering disbursement of attorney's fees directly   case in which an appeal is frivolous. Id. The decision to award
to the law firm representing the West *583 Columbia Parties        such damages is a matter within this court's discretion, which
rather than to the West Columbia Parties. Riggins does not         this court exercises with prudence and caution after careful
explain how she preserved error as to this complaint. A review     deliberation. Id.
of the record reveals that Riggins did not lay the proper
predicate for appeal by voicing this complaint and obtaining


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Riggins v. Hill, 461 S.W.3d 577 (2014)


                                                                     reviewing the record from the viewpoint of Davis, Riggins's
In the First Appeal, Riggins had the opportunity to show that
                                                                     attorney, we conclude that Davis had no reasonable grounds
the trial court reversibly erred in rendering the Judgment.
                                                                     to believe that the case could be reversed. Accordingly, we
In that appeal, this court addressed the arguments that
                                                                     make an objective determination that this appeal is frivolous.
Riggins made, found merit in only one of her arguments,
                                                                     See Glassman, 347 S.W.3d at 782–83. We also conclude
and affirmed the Judgment as modified. See Riggins, 2011
                                                                     that the West Columbia Parties should be awarded Rule 45
WL 5248347, at *1–12. The Supreme Court of Texas denied
                                                                     damages against Davis. See id.; Hatton, 2011 WL 175501,
Riggins's petition for review and motion for rehearing of
                                                                     at *3; Lookshin, 127 S.W.3d at 107.
the denial of that petition. This court issued its mandate
commanding the trial court to observe and execute the
                                                                     The West Columbia Parties seek damages based upon the
Judgment as modified. Nonetheless, after issuance of this
                                                                     attorney's fees and expenses they have incurred since the
mandate, Riggins, represented by Davis, sought to relitigate
                                                                     trial court rendered the Judgment. Although Rule 45 does
the issues determined by the Judgment in the trial court.
                                                                     not prescribe a method for determining the amount of the
Riggins, through Davis, filed a “counterclaim,” in which
                                                                     “just damages,” courts have awarded just damages based on
Riggins purported to assert claims for breach of contract
                                                                     proof of expenditures incurred by the appellee as a result
 *584 and intentional infliction of emotional distress. The
                                                                     of the frivolous appeal. See Chapman v. Hootman, 999
trial court signed an order enforcing the Judgment, as
                                                                     S.W.2d 118, 123–25 (Tex.App.—Houston [14th Dist.] 1999,
modified by this court. In its order, the trial court found
                                                                     no pet.); Lookshin, 127 S.W.3d at 105–07. In this case,
that it did not have jurisdiction over Riggins's Post–Mandate
                                                                     we conclude that just damages should be calculated based
Motions. Riggins perfected an appeal from this order.
                                                                     upon the West Columbia Parties' attorney's fees and expenses
                                                                     incurred as a result of this appeal. See Chapman, 999 S.W.2d
 [10] In most of her appellate arguments, Riggins, through
                                                                     at 123–25; Lookshin, 127 S.W.3d at 105–07. Therefore, we
her counsel Davis, seeks to relitigate the issues already
                                                                     calculate just damages based on the West Columbia Parties'
resolved by the Judgment, which was final by appeal before
                                                                     attorney's fees and expenses in this case from the point
Riggins perfected this appeal. Riggins has not shown, and the
                                                                     Riggins perfected appeal in June 2013. The West Columbia
record does not reflect, any reasonable ground for concluding
                                                                     Parties have submitted uncontroverted proof of reasonable
that the Judgment is void. Riggins has not made any other
                                                                     attorney's fees during this period in the amount of $12,175.50
argument that, if successful, would allow her to obtain relief
                                                                     and of $161.28 in expenses, for a total of $12,336.78.
inconsistent with the Judgment, as modified by this court. As
to Riggins's challenges to the enforcement of the Judgment
as modified by this court, the record does not show any
reasonable ground for concluding that the West Columbia                                   III. CONCLUSION
Parties were required to file a response or a brief to be entitled
to recover the appellate fees awarded in that judgment. Nor          We affirm the trial court's order. In addition, under Rule 45,
does the record reveal any reasonable ground for concluding          we order Veronica L. Davis to pay the West Columbia Parties
that Riggins preserved error in the trial court regarding            *585 $12,336.78 in just damages. 5
her other challenge to the enforcement of the Judgment as
modified. The West Columbia Parties filed a Rule 45 motion           5       The West Columbia Parties have not asked that Riggins
asking this court to assess against Davis more than $54,000                  be ordered to pay any damages under Rule 45, and we do
in damages. At no time during the pendency of this appeal                    not order Riggins to pay any Rule 45 damages.
has Davis or Riggins filed any response in opposition to this
motion. Nor has either Riggins or Davis undertaken to refute         All Citations
the stated reasons for the Rule 45 damages sought, though
each has had ample notice of the relief sought and opportunity       461 S.W.3d 577
to be heard. Considering everything in this court's file and

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   6
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942




     KeyCite Yellow Flag - Negative Treatment                             West Headnotes (12)
Distinguished by City of Houston v. Student Aid Foundation Enterprises,
 Tex.App.-Hous. (14 Dist.),  July 8, 2010
                                                                          [1]   Pleading
                      298 S.W.3d 321                                                Plea to the Jurisdiction
                  Court of Appeals of Texas,                                    A plea to the jurisdiction seeks dismissal
                    Houston (14th Dist.).                                       of a cause based on lack of subject-matter
                                                                                jurisdiction.
               Adrian ROBINSON, Appellant,
                              v.                                                Cases that cite this headnote
             ALIEF INDEPENDENT SCHOOL
             DISTRICT and Louis Stoerner, in
                                                                          [2]   Appeal and Error
            his Official Capacity only, Appellees.                                 Cases Triable in Appellate Court

       No. 14–08–00949–CV.               |    Aug. 25, 2009.                    Whether a court has subject-matter jurisdiction
                                                                                and whether a plaintiff has affirmatively
Synopsis                                                                        demonstrated subject-matter jurisdiction are
Background: Teacher brought action against school district                      questions of law that are reviewed de novo.
and its superintendent, seeking declaratory and injunctive
relief from alleged violations of his equal rights, freedom                     2 Cases that cite this headnote
of speech, and due process. The 80th District Court, Harris
County, Lynn M. Bradshaw–Hull, J., granted defendants' plea               [3]   Pleading
to jurisdiction, finding that teacher's resignation, combined                       Scope of inquiry and matters considered in
with district's expungement of teacher's employee file,                         general
rendered the action moot. Teacher appealed.
                                                                                Pleading
                                                                                    Merits
                                                                                In deciding a plea to the jurisdiction, courts may
Holdings: The Court of Appeals, Adele Hedges, C.J., held                        not weigh the merits of the plaintiff's claim,
that:                                                                           but must consider only the plaintiff's pleadings,
                                                                                construed in favor of the plaintiff, and the
[1] district's expungement of teacher's employee file rendered                  evidence pertinent to the jurisdictional inquiry.
his action for injunctive relief moot;
                                                                                2 Cases that cite this headnote
[2] teacher's resignation rendered his action for declaratory
relief moot; and
                                                                          [4]   Pleading
                                                                                    Amendments following sustaining of pleas
[3] teacher waived right to amend his pleadings as to cure
                                                                                When a plaintiff fails to plead facts
jurisdictional defects.
                                                                                establishing jurisdiction, but the petition does
                                                                                not affirmatively demonstrate incurable defects
Affirmed.                                                                       in jurisdiction, the issue is one of pleading
                                                                                sufficiency and the plaintiff should be afforded
Kem Thompson Frost, J., issued dissenting opinion.                              the opportunity to amend; however, if the
                                                                                pleadings affirmatively negate the existence of
                                                                                jurisdiction, then a plea to the jurisdiction may
                                                                                be granted without allowing the plaintiff an
                                                                                opportunity to amend.




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Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

                                                                    controversy, even if such question may require
       4 Cases that cite this headnote                              adjudication in the future.

                                                                    Cases that cite this headnote
 [5]   Injunction
           Mootness and ripeness; ineffectual remedy
       Injunction                                            [9]    Action
           Employment matters                                            Moot, hypothetical or abstract questions
       Teacher's action against school district and                 A case becomes moot when: (1) it appears that
       its superintendent seeking injunctive relief to              a party seeks to obtain a judgment upon some
       expunge portions of his employee file relating to            controversy, when in reality none exists, or (2) a
       controversy over which he resigned his position              party seeks a judgment upon some matter which
       was rendered moot upon district's decision to                cannot have any practical legal effect upon a then
       expunge portions of teacher's employee file;                 existing controversy.
       there was no more action that a court could
                                                                    6 Cases that cite this headnote
       enjoin to satisfy teacher's request to expunge his
       records.
                                                             [10]   Declaratory Judgment
       1 Cases that cite this headnote                                  Education
                                                                    Teacher's resignation from employment with
 [6]   Constitutional Law                                           school district rendered his claim for declaratory
           Advisory Opinions                                        relief from school district's alleged constitutional
       The mootness doctrine precludes a court from                 violations moot; after his resignation, teacher no
       rendering an advisory opinion in a case where                longer faced the alleged misconduct about which
       there is no live controversy.                                he complained.

       9 Cases that cite this headnote                              Cases that cite this headnote


 [7]   Declaratory Judgment                                  [11]   Declaratory Judgment
           Termination or settlement of controversy                     Moot, abstract or hypothetical questions
       Declaratory Judgment                                         Past exposure to illegal conduct does not in itself
           Necessity                                                amount to a present controversy for declaratory
                                                                    relief if unaccompanied by any continuing,
       A declaratory judgment is appropriate when
                                                                    present, adverse effects.
       a justiciable controversy exists concerning
       the rights and status of the parties and the                 1 Cases that cite this headnote
       controversy will be resolved by the declaration
       sought.
                                                             [12]   Declaratory Judgment
       3 Cases that cite this headnote                                  Answer, counterclaim and reply
                                                                    Teacher who asserted claims for declaratory
 [8]   Declaratory Judgment                                         judgment and injunctive relief against school
           Moot, abstract or hypothetical questions                 district and superintendent, which were rendered
                                                                    moot by teacher's resignation and district's
       Declaratory Judgment
                                                                    expungement of teacher's employee file, waived
           Future or contingent questions
                                                                    his right to cure the jurisdictional defects by
       A declaratory judgment action does not vest a                amendment of pleadings, where, after defendants
       court with the power to decide hypothetical or               filed their plea to the jurisdiction, teacher
       contingent situations or to determine questions              neither responded to the plea with additional
       not essential to the decision of an actual                   jurisdictional facts reflecting a live controversy


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

        nor requested an opportunity to replead or amend          medical disorder. Freeman resigned from AISD in 2006, and
        his pleadings.                                            Brannon resigned in 2007.

        3 Cases that cite this headnote                           In February 2007, appellant filed the underlying lawsuit
                                                                  against AISD, AISD's superintendent, Stoerner, in his official
                                                                  capacity, Freeman, and Brannon. Against AISD and Stoerner,
                                                                  Robinson alleged equal rights, freedom of speech, and due
Attorneys and Law Firms                                           process violations under Article I, Sections 3, 8, and 19 of the
                                                                  Texas Constitution. Against Freeman and Brannon, Robinson
*322 Larry Watts, Missouri City, TX, for appellant.
                                                                  claimed that they “conspired to and each intentionally
                                                                  inflicted him with emotional distress, interfered with his
Jon Erik Nichols, Jonathan Griffin Brush, Paul Andrew
                                                                  business relationship, and invaded his constitutional right to
Lamp, Houston, for appellees.
                                                                  privacy.” Robinson sought declaratory and injunctive relief,
Panel consists of Chief Justice HEDGES, and Justices              requesting that the trial court: (1) “declare that [AISD]
YATES and FROST.                                                  violated [his] constitutional rights”; (2) “[e]njoin [AISD]
                                                                  through its Superintendent of Schools to expunge his records
                                                                  of all references to Brannon's acts ... against him”; and (3)
                  MAJORITY OPINION                                “order that Brannon, Freeman and all other employees of
                                                                  [AISD] cease violating or infringing upon [his] protected
ADELE HEDGES, Chief Justice.                                      rights and liberties.”

Appellant, Adrian Robinson, brings this accelerated appeal        AISD and Stoerner answered the lawsuit and subsequently
challenging the trial court's order granting the plea to the      filed a plea to the jurisdiction contending that Robinson's
jurisdiction filed by appellees, Alief Independent School         claims against them were moot. AISD and Stoerner first
District (“AISD”) and Louis Stoerner. In his sole issue,          argued that Robinson's request for injunctive relief regarding
Robinson contends *323 that the trial court erroneously           expungement of his employee file was moot because AISD,
granted the plea to the jurisdiction because his claims against   sua sponte, had agreed to expunge the specific portions of
AISD and Stoerner were not moot. We affirm.                       Robinson's personnel file that he requested to be removed.
                                                                  After Robinson filed his lawsuit, AISD voluntarily agreed to
                                                                  expunge all references to Brannon's acts against Robinson
                    I. BACKGROUND                                 from the employee file as requested in Robinson's original
                                                                  petition and forwarded a letter to Robinson notifying him
Robinson was employed by AISD as a teacher during                 of its decision to expunge those records. Accordingly, AISD
the 2004–2005 school year. Robinson contends that in the          and Stoerner argued in their plea to the jurisdiction that the
fall of 2004, he had a brief romantic relationship with a         voluntary decision to expunge all references to Brannon's
fellow employee, Lenetta Freeman. He claims that after he         acts against Robinson from the personnel records mooted
ended the relationship, Freeman and Dwight Brannon, an            Robinson's request that the trial court order AISD, through
employee in AISD's human resources department, began              Stoerner, to expunge the same.
a campaign against Robinson to tarnish his reputation
as an educator. Robinson contends that Brannon placed             AISD and Stoerner further argued that Robinson's remaining
him on administrative leave in February 2005 for making           requests for declaratory and injunctive relief were moot.
“inappropriate comments regarding a coworker” without             Specifically, AISD and Stoerner argued that because
divulging the substance of the alleged inappropriate              Robinson resigned from AISD in 2005, he was no
statements. Moreover, Robinson claims that while he was           longer subjected to the alleged unconstitutional conduct.
on leave, an email was sent to AISD employees indicating          Consequently, there was no live controversy. AISD and
that Robinson suffered from AIDS and was attempting to            Stoerner urged the trial court to dismiss Robinson's claims
maliciously spread the disease. Robinson claims that in           against them because the trial court did not have subject-
August 2005, he was forced to resign due to a stress-related      matter jurisdiction over the moot claims.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

 *324 With no response from Robinson, the trial court signed        [5] In his sole issue, Robinson contends that his requests
an order granting AISD and Stoerner's plea to the jurisdiction     for injunctive and declaratory relief were not moot despite
and dismissed Robinson's claims against them. On appeal,           his resignation from AISD and AISD's decision to expunge
Robinson argues that the trial court erred in granting the plea    portions of his employee file. In response, AISD and Stoerner
to the jurisdiction and dismissing his claims against AISD         argue that because there is no live controversy, any judicial
and Stoerner because those claims were not moot. 1 In the          action on the merits of Robinson's claims would merely be
alternative, Robinson argues that the trial court should have      advisory.
afforded him the opportunity to amend his pleadings to cure
any jurisdictional defects.                                          [6] [7] [8] [9] The mootness doctrine precludes a court
                                                                    from rendering an advisory opinion in a case where there is
1                                                                   no live controversy. Camarena v. Tex. Employment Comm'n,
        Robinson appeals only the dismissal of his request for a
                                                                    754 S.W.2d 149, 151 (Tex.1988); Scurlock Permian Corp.
        declaration that his constitutional rights were violated by
                                                                    v. Brazos County, 869 S.W.2d 478, 487 (Tex.App.-Houston
        AISD and his request for injunctive relief ordering AISD
        to expunge his employee file. He does not challenge         [1st Dist.] 1993, writ denied) (“Courts may not give advisory
        the dismissal of his claim for injunctive relief to order   opinions or decide cases upon speculative, hypothetical,
        Brannon, Freeman, and all AISD employees to cease           or contingent situations.”). A declaratory judgment is
        violating or infringing upon his constitutional rights.     appropriate when a justiciable controversy exists concerning
                                                                    the rights and status of the parties and the controversy will be
                                                                    resolved by the declaration sought. But an action does not vest
                 II. STANDARD OF REVIEW                             a court with the power to decide hypothetical or contingent
                                                                    situations or to determine questions not essential to the
 [1] [2] [3] [4] A plea to the jurisdiction seeks dismissal
                                                                    decision of an actual controversy, even if such question may
of a cause based on lack of subject-matter jurisdiction.
                                                                    require adjudication in the future. Harris *325 County Mun.
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004);
                                                                    Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133,
Ahmed v. Metropolitan Transit Auth., 257 S.W.3d 29, 31
                                                                    139–40 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (quoting
(Tex.App.-Houston [14th Dist.] 2008, no pet.). Whether a
                                                                    Tex. Health Care Info. Council v. Seton Health Plan, Inc.,
court has subject-matter jurisdiction and whether a plaintiff
                                                                    94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied)). A
has affirmatively demonstrated subject-matter jurisdiction are
                                                                    case becomes moot when: (1) it appears that a party seeks
questions of law that we review de novo. Tex. Dep't of Parks
                                                                    to obtain a judgment upon some controversy, when in reality
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In
                                                                    none exists; or (2) a party seeks a judgment upon some matter
deciding a plea to the jurisdiction, we may not weigh the
                                                                    which cannot have any practical legal effect upon a then
merits of the plaintiff's claim, but must consider only the
                                                                    existing controversy. Mollinedo v. Tex. Employment Comm'n,
plaintiff's pleadings, construed in favor of the plaintiff, and
                                                                    662 S.W.2d 732, 738 (Tex.App.-Houston [1st Dist.] 1983,
the evidence pertinent to the jurisdictional inquiry. County of
                                                                    writ ref'd n.r.e.); Scholl v. Firemen's & Policemen's Civil Serv.
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Saturn
                                                                    Comm'n, 520 S.W.2d 470, 471 (Tex.Civ.App.-Corpus Christi
Capital Corp. v. City of Houston, 246 S.W.3d 242, 244–45
                                                                    1975, no writ) (per curiam).
(Tex.App.-Houston [14th Dist.] 2007, pet. denied). When a
plaintiff fails to plead facts establishing jurisdiction, but the
petition does not affirmatively demonstrate incurable defects
in jurisdiction, the issue is one of pleading sufficiency. In that         A. Injunctive Relief: Expunging Employee File
instance, the plaintiff should be afforded the opportunity to
                                                                   Robinson argues that AISD's “unilateral decision to expunge”
amend. Brown, 80 S.W.3d at 555. However, if the pleadings
                                                                   his employee record did not moot his request for injunctive
affirmatively negate the existence of jurisdiction, dismissal is
                                                                   relief to expunge his records. Relying heavily upon Lakey
proper without allowing the plaintiff an opportunity to amend.
                                                                   v. Taylor, Robinson argues that without a judicial admission
Id.
                                                                   of wrongdoing or extrajudicial action preventing AISD from
                                                                   reversing its decision to expunge his personnel file in the
                                                                   future, AISD is capable of retracting its expungement of the
                      III. MOOTNESS                                records. 278 S.W.3d 6 (Tex.App.-Austin 2008, no pet.).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          4
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

Lakey involved a due-process constitutional challenge to a         because the Department's actions did not fully satisfy the
departmental policy implemented by the Texas Department            plaintiffs' injunctive request. See id. The plaintiffs in Lakey
of Health Services. Id. at 10. Texas law required defendants       requested that competency-restoration treatment be provided
determined to be incompetent to stand trial but ineligible         within a reasonable time period not exceeding three days. Id.
for bail to be committed to a mental health facility               at 11. The Department's unilateral policy changes fell short of
for competency-restoration treatment. Id. These particular         this request because the changes did not decrease the waiting
commitments were referred to as forensic commitments. The          period to three days or less. Rather, the waiting period was
Department operated the state mental health hospital system,       reduced to six months. Id. at 12. Accordingly, the plaintiffs'
which housed and treated a number of forensic-commitment           request for injunctive relief had not fully been satisfied by the
defendants. Id. In 2005, the number of persons required            Department's policy changes. In contrast, Robinson requested
to be committed under the statute increased dramatically           in the instant case that his employee file be expunged, and
and exceeded the number of available hospital beds for             AISD fully agreed to comply with this injunctive request.
forensic commitments. Id. In response, the Department              Accordingly, there is no more action that a court can enjoin to
developed a “clearinghouse list,” which was essentially a          satisfy Robinson's request to expunge his records. See Scholl,
wait list for forensic commitments; the list made all forensic     520 S.W.2d at 471 (concluding that because actions requested
commitments to state hospitals contingent on the availability      in suit for declaratory and injunctive relief were taken, no
of space. Consequently, individuals on the clearinghouse list      controversy remained to be resolved).
remained in county jail until a state hospital bed was available
for competency-restoration treatment. Id.                          Furthermore, unlike Lakey, a case involving the cessation of
                                                                   an ongoing injury caused by an unconstitutional departmental
Thereafter, a group of plaintiffs brought suit against the         policy, there is no present or immediate injury in the case
commissioner seeking declaratory and injunctive relief. The        before us. Robinson seeks an injunction ordering AISD to
plaintiffs requested an injunction requiring the Department        remove documents that AISD has already agreed to expunge
to provide competency-restoration treatment within a               in the event AISD reinstates the documents sometime in the
reasonable period of time, not to exceed three days, and a         future. Without any evidence of an existing or continuing
declaration that the Department's current policies, procedures,    present injury, or a reasonable expectation that AISD will
and practices regarding the clearinghouse list violated the        reinstate the expunged documents in his employee file,
Texas Constitution. Id. at 11. The commissioner responded,         Robinson's request is merely conjunctural and hypothetical. 2
in part, by arguing that the plaintiffs' claims had been           Accordingly, any *327 judicial action would be advisory.
mooted by recent legislative funding and policy changes            See id. Because Texas courts are not vested with the authority
to the clearinghouse list. Specifically, the Department had
                                                                   to render advisory opinions, 3 we hold that Robinson's
revised its clearinghouse-list policy so that the waiting period
                                                                   injunctive request to expunge his employee file is moot.
for forensic commitments had dropped significantly. The
Lakey Court rejected the commissioner's mootness argument,
                                                                   2       Robinson neither argues that AISD has not expunged
concluding that a controversy still existed, despite the policy
changes resulting in a decline in the waiting period, because              the documents nor identifies a present ongoing injury.
                                                                           Rather, he argues only that in the future, AISD may
the changes did not eliminate the waiting period. Id. at 12
                                                                           decide to resurrect the expunged documents. The dissent
(“While the Commissioner asserts that the number of criminal
                                                                           contends that Robinson “remains vulnerable” because
defendants on the clearinghouse list has been reduced, he
                                                                           AISD “might not honor” its agreement to expunge the
does not contend that it has been eliminated.”). The Lakey                 records. However, granting relief on the possibility of
Court further opined that the Department could not moot                    noncompliance is advisory.
the appeal by voluntarily abandoning the challenged policy                    The dissent asserts arguments not raised, explicitly
“without *326 any binding admission or extrajudicial action                   or implicitly, by Robinson: Robinson's request for
that would prevent a recurrence of the challenged action.” Id.                expungement is not moot because, inter alia, (1)
Accordingly, the court held that the plaintiffs' injunctive and               AISD was required to expunge all records within their
declaratory claims were not moot. Id.                                         possession, not exclusively Robinson's personnel file,
                                                                              (2) AISD “only offer[ed] to take documents from
Lakey can be distinguished on two dispositive points. First,                  Robinson's personnel file and move them to another
                                                                              file,” and (3) AISD “ha[d] not expunged the items
the Lakey Court held that the injunctive claim was not moot
                                                                              requested by Robinson.” Not only did Robinson fail



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Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

        to make these arguments on appeal, they are without                   Co., 125 S.W.3d 132, 139 (Tex.App.-Houston [14th
        merit. In his petition, Robinson requested AISD to                    Dist.] 2003, pet. denied) (complaint waived because
        expunge “his records of all references to Brannon's                   it was not raised in initial brief); Stevens v. Nat'l
        acts against him.” Liberally construing the petition,                 Educ. Ctrs., Inc., 990 S.W.2d 374, 378 n. 1 (Tex.App.-
        Robinson requests that only his records be expunged,                  Houston [14th Dist.] 1999, pet. denied) (appellate
        not any and all other files within AISD's possession.                 court will not address an issue that is not raised on
        As for the dissent's “agreement to merely transfer”                   appeal by an appellant).
        argument, AISD's letter did not indicate that AISD
                                                                    3      See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821,
        would merely transfer the documents from one file to
        another. Specifically, the letter indicates:                       822 (Tex.2000).
           Part of the relief Adrian Robinson seeks in this
           lawsuit is for the Court to enter an injunction
           requiring AISD to “expunge [Mr. Robinson's]                           B. Declaratory Relief: Violation of
           records of all references to [Dwight] Brannon's                       Robinson's Constitutional Rights
           acts as against him[.]” As an initial matter, my
           clients adamantly dispute engaging in any unlawful        [10]     [11] Next, Robinson argues that his claim for
           acts against Mr. Robinson, and maintain that Mr.         declaratory relief regarding the violation of his constitutional
           Robinson's claims in this case are unfounded.            rights was not moot. As stated above, Robinson's claim for
           Moreover, AISD does not believe that it has any          declaratory relief is justiciable only if the pleadings articulate
           obligation to expunge Mr. Robinson's records as          an existing controversy. See Bonham State Bank v. Beadle,
           requested.                                               907 S.W.2d 465, 467 (Tex.1995). Past exposure to illegal
           Nevertheless, in order to moot the issue and             conduct does not in itself amount to a present controversy
           avoid incurring additional expenses related to this      for declaratory relief if unaccompanied by any continuing,
           issue, AISD is enclosing with this letter Mr.            present, adverse effects. See Williams v. Lara, 52 S.W.3d 171,
           Robinson's personnel file from AISD (labeled
                                                                    184 (Tex.2000). The pleadings before us reflect that Robinson
           AISD 1 through AISD 109), as well as all other
                                                                    is no longer employed with AISD. Thus, he is not currently
           non-privileged documents of which it is aware
                                                                    subjected to the allegedly unconstitutional activity for which
           relating to the allegations in this lawsuit (labeled
                                                                    he seeks declaratory relief. The Supreme Court of Texas has
           AISD 110 through AISD 214 and AISD 381–
           382). AISD agrees to expunge any of these                held that a claim for declaratory relief is moot if the party is no
           records that Mr. Robinson believes reflect Dwight        longer subject to the alleged illegal conduct. See id. at 184–85.
           Brannon's “acts as against him” as requested in his
           lawsuit. Additionally, if Mr. Robinson believes that     In Lara, former inmates sued Tarrant County and other
           AISD maintains any other records that reflect Mr.        defendants for operating a religious-education program
           Brannon's “acts as against him” as alleged in his        instructing inmates about Christianity. Id. at 175. The former
           lawsuit (of which AISD is unaware), AISD requests        inmates complained that the religious instruction violated the
           that Mr. Robinson identify any such documents and        Establishment, Free Exercise, and Equal Protection Clauses
           AISD agrees to expunge them.                             of the United States and Texas Constitutions and violated
        The letter in no way indicates that AISD is merely
                                                                    their civil rights under 42 U.S.C. § 1983. Id. The Lara court
        transferring the relevant documents to another file.
                                                                    held that the former inmates lacked standing to assert claims
        Rather, the letter explicitly reflects AISD's agreement
                                                                    for injunctive and declaratory relief because they no longer
        to expunge the records.
                                                                    were subjected to the unconstitutional conduct about which
        Finally, contrary to the dissent's argument that AISD
        has not in fact expunged the records and only made          they were complaining. Id. at 184. Accordingly, their claims
        a unilateral offer to expunge, Robinson has made no         for injunctive and declaratory relief were moot. 4 Id.
        complaint that AISD has not actually expunged his
        records or that the letter makes a mere unilateral offer.   4      The Texas Supreme Court reasoned that past illegal
        His only complaint is that in the future, a person
                                                                           conduct without a present ongoing injury is moot for
        without knowledge of the underlying litigation may
                                                                           declaratory and injunctive relief. Lara, 52 S.W.3d at 184.
        inadvertently resurrect the already-expunged records.
                                                                           Nevertheless, if a party also seeks damages, the damages
        We cannot address the substantive arguments raised
                                                                           claim is not moot. Id. at 185. Robinson, however, does
        by the dissent because they were not asserted or
                                                                           not seek damages in his suit against AISD and Stoerner.
        briefed by Robinson. See Zamarron v. Shinko Wire



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       6
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

Similar to the former inmates in Lara, Robinson, as a              The majority concludes that the plaintiff received this
former AISD employee, no *328 longer faces the alleged             requested relief because the school district, in a letter,
misconduct about which he complains. Following Lara, we            offered to move files selected by the plaintiff out of the
hold that Robinson's claim for declaratory relief regarding the    plaintiff's personnel file and into other files maintained by
violation of his constitutional rights is moot. See id. at 184–    the school district. The school district's offer did not include
185.                                                               an agreement to expunge all documents requested and is
                                                                   not equivalent to an injunction ordering the school district
                                                                   and its superintendent to permanently erase all objectionable
                                                                   references from all of their records. Therefore, the school
            IV. OPPORTUNITY TO AMEND
                                                                   district's offer did not moot the plaintiff's claims.
 [12] In the alternative, Robinson complains that the trial
court erred in dismissing his claims without first affording       A trial court must have subject matter jurisdiction to decide
him the opportunity to amend his pleadings to cure any             a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
jurisdictional defect. While the general rule expresses a          S.W.2d 440, 443 (Tex.1993). Mootness is a threshold issue
preference to allow a plaintiff the opportunity to amend, a        affecting a trial court's subject matter jurisdiction. See In
plaintiff can waive this opportunity through inaction. See         re H & R Block Fin. Advisors, Inc., 262 S.W.3d 896, 899
Kassen v. Hatley, 887 S.W.2d 4, 13–14 n. 10 (Tex.1994);            (Tex.App.-Houston [14th Dist.] 2008, no pet.). The existence
Dahl v. State, 92 S.W.3d 856, 862–63 n. 6 (Tex.App.-Houston        of jurisdiction is a question of law, which this court reviews
[14th Dist.] 2002, no pet.) (noting that plaintiffs arguably       de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
waived complaint that the trial court failed to provide them       (Tex.1998). We examine the pleadings to determine whether
with an opportunity to amend their pleadings when they did         the facts pleaded affirmatively demonstrate that jurisdiction
not seek leave to amend); Gray v. City of Galveston, No.           exists and construe the pleadings liberally, looking to the
14–03–00298–CV, 2003 WL 22908145, at *2 (Tex.App.-                 pleader's intent. State v. Holland, 221 S.W.3d 639, 642–43
Houston [14th Dist.] Dec. 11, 2003, no pet.) (mem. op.)            (Tex.2007) (involving plea to jurisdiction). A fact question as
(“[A]ppellant did not request an opportunity to amend in the       to jurisdiction prevents a trial court from granting a party's
trial court, so she has waived any complaint that she has been      *329 plea to the jurisdiction. City of Waco v. Lopez, 259
denied this opportunity.”).                                        S.W.3d 147, 150 (Tex.2008).


After AISD and Stoerner filed their plea to the jurisdiction,
Robinson neither responded to the plea with additional                          The Request for Injunctive Relief
jurisdictional facts reflecting a live controversy nor requested
an opportunity to replead or amend his pleadings. Despite          In his petition, appellant/plaintiff Adrian Robinson asked the
ample notice of AISD and Stoerner's jurisdictional argument,       trial court to “enjoin the [Alief Independent School] District
Robinson did not attempt to replead. Accordingly, Robinson         through its Superintendent of Schools to expunge his records
has waived his right to cure any jurisdictional defects by         of all references to [Dwight] Brannon's acts as against him.”
amendment.                                                         Under normal rules of grammar, “his records” presumably
                                                                   refers to the superintendent's records. 1 But even if “his
We overrule appellant's sole issue and affirm the trial court's    records” meant “Robinson's records,” liberally construing the
order granting AISD and Stoerner's plea to the jurisdiction.
                                                                   petition, 2 as we must, this phrase would mean any record
                                                                   of appellee Alief Independent School District (the “District”)
                                                                   relating to Robinson and would not be limited to Robinson's
FROST, J., Dissenting.                                             personnel file.

                                                                   1      Under common rules of English grammar, to be
KEM THOMPSON FROST, Justice, dissenting.
The plaintiff, a former employee of the defendant school                  unambiguous, a pronoun typically refers to the last
district, sought an injunction ordering the school district and           antecedent in the same sentence. THE CHICAGO
                                                                          MANUAL OF STYLE 155 (15th ed., 2003).
its superintendent to expunge from all of their records all
references to another employee's acts against the plaintiff.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

2       Because no special exceptions were sustained against
                                                                             Houston Chronicle Publ'g Co. v. Thomas, 196 S.W.3d
                                                                             396, 401 (Tex.App.-Houston [1st Dist.] 2006, no pet.).
        the petition, this court must construe Robinson's petition
        liberally to contain any claims that reasonably may be       4       See ante at p. 326.
        inferred from the specific language used in the petition.
        See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347,         5       See id.
        354–55 (Tex.1995).

                                                                                       The School District's Offer
          The Standard for Evaluating Mootness
                                                                     The trial court concluded that Robinson's request for
Mootness is determined based on the status of the claims             injunctive relief is moot *330 based on Robinson's receipt
as of the time of the ruling on the plea to the jurisdiction         of a letter from the District, dated August 26, 2008 (the
rather than on what the status might be at some moment in            “District's Letter”). In the District's Letter, without admitting
the future. See Fed. Deposit Ins. Corp. v. Nueces County, 886        liability or agreeing to enter into an injunction or other agreed
S.W.2d 766, 767 (Tex.1994). Thus, in evaluating Robinson's           court order and for the stated purpose of mooting Robinson's
claims for mootness, this court must focus on the status of          claims, the District enclosed a copy of Robinson's personnel
the claims at the time of the trial court's order of dismissal.      file and other “non-privileged documents of which it is aware
Likewise, the mootness determination must be made with               relating to the allegations in this lawsuit.” The District stated
stringent reference to Robinson's request for relief as set forth    that it “agree[d] to expunge” any of its records that Robinson
in his pleadings, without regard to the merits of his claims         believes reflect “Brannon's acts against him.” Significantly,
or the likelihood of their success. A litigant should not be         however, rather than stating that the expunged records would
deprived his day in court unless his claims are truly moot.          no longer be part of the District's records, the District stated
                                                                     only that “the expunged records will no longer be part of
The doctrine of mootness is based on the prohibition against
                                                                     the records that [the District] maintains for Mr. Robinson.” 6
courts issuing advisory opinions. See Patterson v. Planned
                                                                     Robinson, who sought injunctive relief with respect to a larger
Parenthood of Houston and Southeast Texas, Inc., 971
                                                                     scope of documents, did not accept the terms set forth in the
S.W.2d 439, 442 (Tex.1998). Courts have articulated various
                                                                     District's Letter and that offer did not ripen into a contract.
legal standards for determining when a case is moot. 3 In            The trial court found that this unaccepted offer alone mooted
this case, the District argues and the majority concludes that       Robinson's request for relief.
Robinson's request for injunctive relief is moot because the
District “fully agreed to comply with this injunctive request”       6       The District also submitted an affidavit from one of its
and therefore “there is no more action that a court can enjoin               employees, Rose Benitez; however, Benitez simply said
to satisfy Robinson's request to expunge his records.” 4 The                 that she agreed to the terms of the District's Letter.
majority relies on the theory that the District has performed
all the actions that Robinson asked the trial court to order the
                                                                                         Arguments on Appeal
District to undertake. 5
                                                                     In challenging the trial court's dismissal of his claims as moot,
3       For example, courts have stated that a case is moot when     Robinson asserts several arguments. Robinson could have
        (1) a controversy ceases to exist between the parties,       made these arguments more clearly and more thoroughly;
        (2) the parties lack a legally cognizable interest in the    better briefing would have enhanced this court's ability to
        outcome, (3) when a party seeks a ruling on some matter      effectively review the issues presented. However, even if
        which, when rendered, would not have any practical           Robinson had not sufficiently briefed the issue, because the
        legal effect on a then-existing controversy, or (4) the
                                                                     disposition of this case turns on a jurisdictional issue—
        plaintiff seeks a court order commanding the defendant
                                                                     mootness—this court is duty-bound to examine jurisdictional
        to perform certain acts and the defendant performs all
                                                                     grounds, and may do so sua sponte. See M.O. Dental Lab
        these acts without a court order. See Allstate Ins. Co. v.
        Hallman, 159 S.W.3d 640, 642 (Tex.2005); In re H &
                                                                     v. Rape, 139 S.W.3d 671, 673 (Tex.2004) (stating that a
        R Block Financial Advisors, Inc., 262 S.W.3d 896, 900        reviewing court is obligated to review sua sponte issues
        (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding);      affecting jurisdiction). Construing Robinson's appellate brief
                                                                     liberally, as this court must, Robinson argues that (1) his


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     8
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

claims are not moot; (2) the District's Letter is a “unilateral
offer” that is not binding on the District; (3) Robinson's             An offer to perform an act is not the same as performing
request for expungement was directed at all of the District's          the act.
records and not just Robinson's personnel file; (4) in the
                                                                       Robinson argues on appeal that the District's Letter is not
District's Letter, the District offers only to take documents
                                                                       a binding contract, that it does not provide him with any
from Robinson's personnel file and move them to another
                                                                       recourse against the District, and that nothing would prevent
file; and (5) the District has not expunged the items requested
                                                                       the District from moving the documents in question back to
by Robinson. 7 See Ditta v. Conte, 298 S.W.3d 187, 189–90              Robinson's personnel file. Robinson's arguments have merit.
(Tex.2009). 8
                                                                       Even if the District had offered to expunge all the information
7       The majority indicates that Robinson did not explicitly        that Robinson asked the court to order expunged, such an
        or implicitly assert these arguments. See ante at pp. 326–     offer would not be the same as a court order commanding
        27 n. 2. In his appellate brief, Robinson summarizes his       the District to expunge all of this information. Under its
        argument as follows:                                           unambiguous language, the District's Letter is not a contract
              The trial court erred in granting Defendants AISD        but rather an offer that is not binding on the parties unless
              and Stoerner's Plea to the Jurisdiction and finding      and until Robinson accepts the District's offer by designating
              that Plaintiff's claims against these Defendants         documents that Robinson believes reflect “Brannon's acts
              were moot simply because Defendants unilaterally         against him.” See Johnston v. Kruse, 261 S.W.3d 895, 898
              offered a portion of the relief being sought by          (Tex.App.-Dallas 2008, no pet.) (holding that no unilateral
              Plaintiff.
                                                                       contract was formed because promisee did not accept the offer
              ...
                                                                       by performing the act the promissor requested). Mootness
              Because AISD and Stoerner's unilateral decision to
                                                                       is determined based on the status of the claims as of the
              expunge Plaintiff's record was not coupled with any
              binding judicial admission or some extrajudicial
                                                                       time of the ruling on the plea to the jurisdiction rather than
              action that would prevent the recurrence of their        on what the status might be at some moment in the future,
              unconstitutional actions, Robinson's claims against      in which Robinson might have accepted the District's offer
              these Defendants are not moot and the trial court        by performance or in which the District might expunge
              erred in finding it did not have subject matter          information from its records regarding Robinson. See Fed.
              jurisdiction over Robinson's claims against AISD         Deposit Ins. Corp., 886 S.W.2d at 767. The contingencies
              and Stoerner.                                            on which the mootness finding is premised have not yet
           Additional quoted references to specific arguments          occurred, and therefore the claims are not moot.
           raised by Robinson in his appellate brief are contained
           in footnotes specific to the issues.                        As Robinson correctly points out, even though his claims
8       The majority indicates that Robinson does not challenge        were dismissed as moot because he purportedly received all
        the dismissal of his claim for injunctive relief to order      the relief he requested, he remains vulnerable to receiving
        Brannon and Freeman to cease violating or infringing           nothing. For example, after this appeal is over, the District
        upon his rights. See ante at p. 324 n. 1. However, the trial   might not honor its offer and then might argue successfully
        court did not dismiss Robinson's request as to Brannon         that it has governmental immunity against Robinson's suit
        and Freeman. As such, that request is not part of this
                                                                       for enforcement of the promise of expungement. 9 Because
        appeal.
                                                                       Robinson's claims are being declared moot even though he did
                                                                       not receive the injunctive relief he requested, he is effectively
       *331 The Reasons the Claims Are Not Moot                        left without a remedy or enforcement mechanism. More
                                                                       importantly, the court's mootness finding deprives him of the
The trial court's finding of mootness is unsupportable                 opportunity to even seek this relief.
for several reasons, each of which is grounded on the
fundamental concept that when Robinson's request for relief            9       See Tooke v. City of Mexia, 197 S.W.3d 325, 332
(as set forth in his pleadings) is measured against the District's             (Tex.2006); Nat'l Surety Corp. v. Friendswood Indep.
offer, unsatisfied requests for relief clearly remain.                         Sch. Dist., 433 S.W.2d 690, 694 (Tex.1968). The parties
                                                                               have not cited any applicable exception to governmental
                                                                               immunity. A four-justice plurality of the Supreme Court


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     9
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

        of Texas stated that immunity is waived as to a suit        that Robinson believes reflect “Brannon's acts against him.”
        against a government entity for breach of a settlement      However, after stating that the District reserves the right
        agreement that resolved a lawsuit for which the entity      to use any and all of Robinson's records in this lawsuit,
        had no immunity. See Tex. A & M Univ.-Kingsville v.         the District states that “the expunged records will no longer
        Lawson, 87 S.W.3d 518, 520–23 (Tex.2002) (plurality
                                                                    be part of the records that [the District] maintains for Mr.
        op.). In Lawson, four dissenting justices concluded that
                                                                    Robinson.” This language strongly suggests that the District
        immunity applied even under those facts. See id. at 524
                                                                    may believe that it has “expunged” the references in question
        (Rodriguez, J., dissenting). Presuming that the Lawson
                                                                    if it merely removes them from its files regarding Robinson
        plurality correctly stated Texas law, this exception does
        not apply to the District's Letter. The Lawson plurality    and puts them in another one of its files. 10 This action is
        stressed the narrow nature of the exception in question,    not expungement. In his petition, Robinson sought erasure
        which it limited, among other things, to suits for breach   or destruction of the references in question from all of the
        of a settlement agreement. See id. at 522–23 (plurality     District's files; he did not seek the transfer of documents
        op.). Under its unambiguous language, the District's        containing such references from one part of the District's files
        Letter is not a settlement agreement. The parties have
                                                                    to another. 11 Such a transfer could be undone easily and
        not cited any statute waiving the District's governmental
        immunity from a suit by Robinson seeking to enforce the     would not eliminate or erase the references from the District's
        District's Letter.                                          files. Expungement is permanent, and it would prevent the
                                                                    District from communicating these references *333 to third
 *332 An offer or agreement to expunge information is
                                                                    parties in the future and from having more of the District's
fundamentally different from a court order commanding the
                                                                    employees learn the contents of these references. For this
District to expunge information. This is true when none of the
                                                                    reason, Robinson has not received all the relief he requested.
parties is a governmental entity, but it is even more significant
when one of the parties involved is a political subdivision
                                                                    10     The majority also indicates that after expunging
of the State that generally enjoys governmental immunity.
                                                                           documents, the District could “reinstate” the documents
However, if Robinson were awarded the injunctive relief
                                                                           in the future. See ante at p. 326. This is contrary to the
he sought—an order compelling the District to expunge the
                                                                           plain meaning of the word “expunge.”
records—then Robinson would have a means of enforcing
this injunction against the District. Violation of a court order    11     Robinson argues specifically in his appellate brief,
would subject the District to being held in contempt of court              “The trial court found that Plaintiff's claims against
for failure to comply. Therefore, a significant difference                 Defendants AISD and Stoerner were moot because AISD
exists between the injunction that Robinson requested and the              agreed more than 18 months after Robinson filed suit
District's offer. On this basis alone, Robinson has not received           to expunge his AISD personnel records of whatever
all the relief he requested, and this claim is not moot.                   documents that Plaintiff maintained were the basis of
                                                                           the lawsuit against them. Within that finding is the trial
                                                                           court's and defendants' acknowledgment that but for
Moving documents from one file to another is not the                       the defendants' unilateral, non-binding and reversible
same as expunging references contained in them.                            removal of certain documents from or expungement
                                                                           of Robinson's personnel file, Robinson's claims were
Robinson sought an injunction commanding the District                      not moot, and the trial court had jurisdiction over
to expunge from its records all references to Brannon's                    those claims.” (internal citations to record omitted
allegedly improper allegations against Robinson. The plain                 and emphasis added). Robinson argued that without
                                                                           a binding agreement as to the District's offer in the
meaning of the word “expunge” is “to erase or destroy.” See
                                                                           District's Letter, “nothing would prevent them from
BLACK'S LAW DICTIONARY 603 (7th ed. 1999); see also
                                                                           reinserting the harmful documents into his AISD
Tex. Dep't of Public Safety v. J.H.J., 274 S.W.3d 803, 809
                                                                           personnel file....”
(Tex.App.-Houston [14th Dist.] 2008, no pet.) (construing
“expungement” as promoting “destruction” of records under
                                                                    Documents not held back from discovery as privileged are
the Texas Code of Criminal Procedure). If the District were
                                                                    not the same as all of the District's documents.
to erase or destroy all of the references of which Robinson
complains, then its records would contain none of these             Robinson did not limit his requested relief to the documents
references at all. In one part of the District's Letter, the        not held back by the District under assertion of privilege. Yet,
District states that it “agrees to expunge” any of its records      in the District's Letter, the District asks Robinson to select


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009)
251 Ed. Law Rep. 942

                                                                        the disputed penalty); Del Valle Indep. Sch. Dist. v. Lopez,
the information to which he objects from “non-privileged
                                                                        863 S.W.2d 507, 511 (Tex.App.-Austin 1993, writ denied)
documents of which the District is aware relating to the
                                                                        (concluding that a declaratory-judgment action regarding the
allegations in this lawsuit.” This group of documents does
                                                                        constitutionality of an election system was not rendered moot
not include all of the District's records. Because the District
                                                                        by the voluntary adoption of a new election system because
is holding back documents under claim of privilege, there
                                                                        petitioner's request for the permanent elimination of the prior
may be documents that the District has held back that contain
                                                                        election system was not satisfied); Turner v. Chandler, 304
references to Brannon's acts or accusations. These documents
                                                                        S.W.2d 687, 688–689 (Tex.Civ.App.-Texarkana 1957, no
are not subject to the offer in the District's Letter but were
                                                                        writ) (asserting that when a party seeks specific relief and that
part of the relief Robinson sought in his pleadings. This is
                                                                        relief has not been granted, then a proceeding is not moot
another reason why Robinson has not received all the relief
                                                                        because the question of whether the specific relief sought
he requested.
                                                                        should be granted remains undecided). Thus, even if the
                                                                        District's offer ripened into a contract, the resulting agreement
The District has not taken the action that Robinson asked               would not give Robinson all of the relief he requested in his
the trial court to order.                                               pleadings. As long as some of the relief Robinson requested
                                                                        remains, his claims are not moot.
The majority concludes that there is nothing left for the trial
court to order the District to do because the District already
has taken the action sought by Robinson. It is on this basis that
                                                                                               *334 Conclusion
the majority distinguishes the Lakey case. See ante at p. 326;
see also Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 11–12           The District did not offer to enter into an agreed injunction
(Tex.App.-Austin 2008, no pet.). As shown above, Robinson               or to expunge all of the documents Robinson requested, and
has not received all the relief he requested, and, even under           Robinson did not accept the offer for lesser relief that the
the District's Letter, the District later could decide with             District did make. The trial court and this court conclude that
seeming impunity to move the documents in question back to              the making of an offer for less than full relief renders the
Robinson's personnel file. Therefore, Lakey is on point. See            claims moot. It does not. Even if the majority were correct in
Lakey, 278 S.W.3d at 11–12. Robinson's claims are not moot              its premise, that an unaccepted offer rather than performance
because the District has not taken the action that Robinson             is sufficient to moot Robinson's claims, such a determination
requested the trial court to order. See Allstate Ins. Co. v.            would moot only part of the requested relief. On its face,
Hallman, 159 S.W.3d 640, 642–43 (Tex.2005) (holding that                the District's Letter does not cover documents withheld from
issues of whether insurer owed defense and indemnity were               discovery under claim of privilege or documents moved from
not moot, even though insurer could no longer be liable for             one file location to another, all of which fell within Robinson's
defense or indemnity, because insured still sought attorney's           request for relief. For all of these reasons, the trial court erred
fees under the Texas Declaratory Judgment Act); Lakey, 278              in ruling that Robinson's request for an injunction regarding
S.W.3d at 11–12 (holding that petitioner's challenge was                expungement is moot. At the very least, fact questions remain
not mooted by defendant's voluntary policy changes because              that should have precluded the granting of the plea to the
the previous policy that gave rise to the dispute could be              jurisdiction. Because this court affirms rather than reverses
reimplemented at any given time); Tex. Health Care Info.                the trial court's dismissal, I respectfully dissent.
Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 847–
848 (Tex.App.-Austin 2002, pet. denied) (concluding that
petitioner's challenge to the assessment of a penalty was               All Citations
not mooted by a letter withdrawing that penalty because the
letter was non-binding and did not prevent re-assessment of             298 S.W.3d 321, 251 Ed. Law Rep. 942


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   11
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


                                                                        Civ.St. art. 6701d–11; V.T.C.A., Civil Practice
                                                                        & Remedies Code § 37.006(b).
                    869 S.W.2d 478
                Court of Appeals of Texas,                              2 Cases that cite this headnote
                  Houston (1st Dist.).

 SCURLOCK PERMIAN CORPORATION, Appellant,                         [2]   Constitutional Law
                          v.                                                Notice to Attorney General
   BRAZOS COUNTY, Texas; The Commissioners                              Failure to notify Attorney General of pendency
   Court of Brazos County, Texas; R.J. Holmgreen,                       of declaratory judgment action in which
    County Judge of Brazos County, Texas; Gary                          constitutional ability of statute, ordinance, or
   Norton, Walter Wilcox, Randy Sims and Milton                         franchise is challenged deprives trial court of
  Turner, County Commissioners of Brazos County,                        jurisdiction to proceed. V.T.C.A., Civil Practice
                                                                        & Remedies Code § 37.006(b).
     Texas; Ron Miller, Sheriff of Brazos County,
  Texas; Holland Winder, County Road Engineer of                        1 Cases that cite this headnote
  Brazos County, Texas; and Raymond Day, Johnny
   Burkhalter, Derik B. Matejka, Louis Garcia, Jr.,
                                                                  [3]   Declaratory Judgment
    Frankie J. Nemec, Jr., and Winfred Pittman,
                                                                            Service on Attorney General
   Constables of Brazos County, Texas, Appellees.
                                                                        When neither party challenges constitutionality
          No. 01–93–00080–CV. | Nov. 10,                                of statute, ordinance, or franchise, neither party
       1993. | Rehearing Denied Dec. 23, 1993.                          is required to serve Attorney General with copy
                                                                        of pleadings; failure to serve Attorney General
Oil marketing company brought action for declaratory                    will not deprive trial court of jurisdiction.
judgment that state law providing for permitting of                     V.T.C.A., Civil Practice & Remedies Code §
overweight vehicles preempted power of county to require                37.006(b).
separate county permit. The 361st District Court, Brazos
County, Carolyn Ruffino, J., entered judgment against                   1 Cases that cite this headnote
company, and it appealed. The Court of Appeals,
Oliver-Parrott, C.J., held that: (1) statute establishing         [4]   Pleading
statewide uniformity in permitting overweight vehicles was                  Necessity for defense
not special law in violation of State Constitution; (2) statute
                                                                        Unconstitutionality of statute is affirmative
was exception to general provisions authorizing counties to
                                                                        defense that must be pled. Vernon's Ann.Texas
regulate traffic on county roads; and (3) county may not issue
                                                                        Rules Civ.Proc., Rule 94.
permit or restrict operation of vehicle with statewide permit.
                                                                        2 Cases that cite this headnote
Reversed and remanded.

                                                                  [5]   Appeal and Error
                                                                           Scope and Effect of Objection
 West Headnotes (26)                                                    Objection at trial that is not same as objection
                                                                        urged on appeal presents nothing for appellate
                                                                        review.
 [1]     Declaratory Judgment
             Service on Attorney General                                17 Cases that cite this headnote
         Trial court had jurisdiction to consider
         constitutional issue in declaratory judgment
                                                                  [6]   Constitutional Law
         action without notice to State Attorney General,
                                                                            Presumptions and Construction as to
         where neither party challenged constitutionality
                                                                        Constitutionality
         of statute in pleadings. Vernon's Ann.Texas



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


        Constitutional Law                                           Statute that relates to persons or things as a
            Clearly, positively, or unmistakably                     class is general law, while statute that relates to
        unconstitutional                                             particular persons or things as class is special,
        When evaluating constitutionality of statute,                prohibited by Constitution. Vernon's Ann.Texas
        statute is presumed to be constitutional and                 Const. Art. 3, § 56.
        should not be struck down by Intermediate
                                                                     Cases that cite this headnote
        Appellate Court except on clear and certain
        grounds.
                                                              [11]   Statutes
        2 Cases that cite this headnote                                   General laws compared and distinguished
                                                                     Primary and ultimate test of whether state law
 [7]    Constitutional Law                                           is general or special under State Constitution
            Burden of Proof                                          is whether there is reasonable basis for
        Party asserting unconstitutionality of statute has           classification it makes and whether law operates
        burden of persuasion.                                        equally to all within its class. Vernon's
                                                                     Ann.Texas Const. Art. 3, § 56.
        Cases that cite this headnote
                                                                     Cases that cite this headnote

 [8]    Statutes
             Laws of Special, Local, or Private Nature        [12]   Statutes
                                                                          Government property, facilities, and funds
        Statute is not local or special law prohibited by
        State Constitution if persons or things throughout           State statute regulating weight and size of
        state are affected by it, or if it operates upon             vehicles using state highways was not special
        subject in which people at large are interested.             law in violation of State Constitution; purpose
        Vernon's Ann.Texas Const. Art. 3, § 56.                      of statute was to establish statewide uniformity
                                                                     in permitting overweight vehicles. Vernon's
        Cases that cite this headnote                                Ann.Texas Civ.St. art. 6701d–11; Vernon's
                                                                     Ann.Texas Const. Art. 3, § 56.
 [9]    Constitutional Law                                           Cases that cite this headnote
             Class Legislation; Discrimination and
        Classification in General
                                                              [13]   Automobiles
        Statutes
                                                                         Concurrent and conflicting regulations
             Uniformity of Operation
                                                                     Statute providing for statewide uniformity in
        State legislature has broad power to make
                                                                     permitting overweight vehicles removed from
        classifications for legislative purposes and to
                                                                     county authority granted by County Road and
        enact laws for regulation of those classifications,
                                                                     Bridge Act to enact and implement its own
        provided that legislation applies uniformly to all
                                                                     permit system. Vernon's Ann.Texas Civ.St. arts.
        within classification, and classification is broad
                                                                     6701d–11, 6701d–11, § 2(b)(1), 6702–1, §
        enough to include substantial class and based on
                                                                     2.301(a)(1).
        characteristics legitimately distinguishing class
        from others regarding public purpose sought to               Cases that cite this headnote
        be accomplished by legislation.

        Cases that cite this headnote                         [14]   Automobiles
                                                                         Concurrent and conflicting regulations
 [10]   Statutes                                                     County Road and Bridge Act, authorizing county
             General laws compared and distinguished                 to regulate traffic on county roads, was not
                                                                     irreconcilable with statute regulating weight and


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


        size of vehicles using state highways; specific                 Termination or settlement of controversy
        provisions of permit statute were exception to             Trial court may refuse to render or enter
        general provisions of County Road and Bridge               declaratory judgment if judgment will not
        Act. Vernon's Ann.Texas Civ.St. art. 6701d–11.             terminate uncertainty or controversy giving
                                                                   rise to proceeding. V.T.C.A., Civil Practice &
        Cases that cite this headnote
                                                                   Remedies Code § 37.008.

 [15]   Statutes                                                   8 Cases that cite this headnote
             Prior or existing law in general
        Statute is presumed to have been enacted by         [20]   Declaratory Judgment
        legislature with complete knowledge of existing                Limitation of discretion
        law and with reference to it.                              Declaratory Judgment
                                                                       Termination or settlement of controversy
        1 Cases that cite this headnote
                                                                   In suit for declaratory relief, trial court
                                                                   has limited discretion to refuse declaratory
 [16]   Statutes                                                   judgment, and may do so only where judgment
             Subject or purpose                                    would not remove uncertainty giving rise to
        When two statutes concern same subject matter,             proceedings.
        they are to be construed to give meaning to both.
                                                                   7 Cases that cite this headnote
        Cases that cite this headnote

                                                            [21]   Declaratory Judgment
 [17]   Statutes                                                       Necessity
             General and specific statutes                         Declaratory judgment is appropriate when real
        Statutes                                                   controversy exists between parties, and entire
             Earlier and later statutes                            controversy may be determined by judicial
        Special or specific act is properly regarded as            declaration.
        exception to, or qualification of, general law on
                                                                   11 Cases that cite this headnote
        same subject previously enacted.

        1 Cases that cite this headnote                     [22]   Action
                                                                        Moot, hypothetical or abstract questions
 [18]   Automobiles                                                To be justiciable controversy, there must
            Concurrent and conflicting regulations                 exist real and substantial controversy involving
        County may not require that oversized vehicle              genuine conflict of tangible interests and not
        have county permit, though county was                      merely theoretical dispute.
        authorized to require permits, where vehicle
                                                                   10 Cases that cite this headnote
        had valid statewide overweight permit; carrier's
        failure to provide county with notice of permit
        did not authorize county to require permit          [23]   Constitutional Law
        of vehicle holding statewide permit. Vernon's                  Advisory Opinions
        Ann.Texas Civ.St. arts. 6701d–11, 6701d–11, §§             Courts may not give advisory opinions or
        2(b)(1), 5B, 5B(d).                                        decide cases upon speculative, hypothetical, or
                                                                   contingent situations.
        Cases that cite this headnote
                                                                   2 Cases that cite this headnote
 [19]   Declaratory Judgment



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Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


                                                              a declaratory judgment, injunctive relief, damages, and
 [24]   Declaratory Judgment                                  attorney's fees. Scurlock appeals the take-nothing judgment
            Determination and disposition of cause            entered against it.
        Court of Appeals has duty to render judgment
        that trial court should have rendered in
        declaratory judgment action.
                                                                                  Factual background
        4 Cases that cite this headnote
                                                              This case involves the interpretation of certain provisions
                                                              of TEX.REV.CIV.STAT.ANN. art. 6701d–11 (Vernon
 [25]   Injunction                                            1977 & Supp.1993) and the County Road and Bridge
            On ground of invalidity                           Act, TEX.REV.CIV.STAT.ANN. art. 6702–1 (Vernon
        Court of equity may not enjoin enforcement            Supp.1993). Article 6701d–11 regulates the weight and size
        of penal ordinance unless ordinance is                of vehicles using Texas highways, and provides for the
        unconstitutional or otherwise void, and               permitting of overweight vehicles by the State Department
        enforcement of ordinance causes irreparable           of Highways and Public Transportation. The County Road
        injury to vested property rights.                     and Bridge Act authorizes county commissioners courts to
                                                              regulate and restrict traffic on county roads and allows
        Cases that cite this headnote                         commissioners courts to establish load limits for any road or
                                                              bridge. TEX.REV.CIV.STAT.ANN. art. 6702–1, § 2.301(a)
 [26]   New Trial                                             (1), (b)(2) (Vernon Supp.1993). The County Road and
            Necessity of objection                            Bridge Act does not expressly authorize counties to require
                                                              overweight vehicle to have a county permit.
        Appellant did not have to raise issue of
        constitutionality of statute in motion for
                                                              In 1981, the Brazos County Commissioners Court, pursuant
        judgment before filing its motion for new trial,
        where trial court raised issue of constitutionality   to the then-current version of art. 6701d–11 1 enacted
        sua sponte.                                           the Brazos County Traffic Regulations. These regulations
                                                              established weight and size limits for vehicles travelling on
        2 Cases that cite this headnote                       Brazos County roads, and provided a permitting system for
                                                              overweight vehicles.

                                                              1      Act of March 31, 1971, 62nd Leg., R.S., ch. 49, § 1, 1971
Attorneys and Law Firms                                              Tex.Gen.Laws 87, 87–88, amended by Act of May 27,
                                                                     1989, 71st Leg., R.S., ch. 488, § 4, 1989 Tex.Gen.Laws
*480 Charles W. Schwartz, James D. Thompson III, Dana C.             1661, 1664.
Livingston, Vinson & Elkins L.L.P., Houston, for appellant.
                                                              In 1989, the legislature enacted House Bill 2060 and amended
A.W. Davis, Vaughan E. Waters, Davis & Davis, Houston,        article 6701d–11. The amendment established a statewide
for appellees.                                                permitting system for vehicles that exceed the statute's weight
                                                              limitations. The amended statute specifically provides:
Before OLIVER–PARROTT, C.J., and HUTSON–DUNN
and WILSON, JJ.                                                           The Commissioners Courts through
                                                                          the County Judges of the several
                                                                          counties of this State may issue
                                                                          permits limited to periods of
                      *481 OPINION
                                                                          ninety (90) days or less for the
OLIVER–PARROTT, Chief Justice.                                            transportation over highways of their
                                                                          respective counties other than State
Plaintiff, Scurlock Permian Corporation (Scurlock), brought               highways and public roads within
suit against Brazos County and a number of Brazos                         the boundaries of an incorporated
County officials (collectively, “Brazos County”) seeking                  municipality, overweight or oversize


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Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


             or overlength commodities which                        the weight of vehicles travelling on county roads to 58,420
             cannot be reasonably dismantled,                       pounds, and provide for the issuance of permits for vehicles
             or for the operation over these                        exceeding that weight. The traffic regulations authorize the
             highways of superheavy or oversize                     issuance of 90–day, 30–day, and 72–hour permits. Applicants
             equipment for the transportation                       for such permits are required to pay a fee and post a bond.
             of oversize or overweight or
             overlength commodities which cannot                    Scurlock is a crude oil marketing and oil field service
             be reasonably dismantled, or for the                   company. It buys and sells crude oil from the leases of various
             operation over these highways of                       producers. Its trucks transport bulk crude oil throughout
             vehicles or combinations of vehicles                   the state. Until mid–1991, Scurlock (and its predecessor
             that exceed the weights authorized                     corporations) regularly purchased Brazos County permits
             under Section 5 or Section 5 1/2 of                    for overweight vehicles. In 1991, the company determined
             this Act. If a vehicle has a permit                    that the 2060 permits it purchased from the State were
             under Section 5B of this Act, a                        effective throughout the state. It therefore stopped purchasing
             Commissioners Court may not issue a                    Brazos County permits. Brazos County, however, continued
             permit under this Subsection, charge                   to require county permits, and issued citations to commercial
             any additional fee for, or otherwise                   vehicles weighing more than 58,420 pounds that traveled
             regulate or restrict the operation of                  its county roads without a county permit. Scurlock drivers
             the vehicle with a gross weight or                     received several citations.
             axle weight that exceeds the weights
             authorized by Section 5 or Section 5                   In its suit against Brazos County, Scurlock sought injunctive
             1/2 of this Act, or require the owner                  relief as well as a judgment declaring, among other things,
             or operator to execute or comply with                  that article 6701d–11 “preempted” Brazos County's power to
             a road use agreement or indemnity                      require a vehicle with a 2060 permit to also have a county
             agreement, to make any filings or                      permit and that the Brazos County traffic regulations were
             applications, or to provide a bond or                  null and void. The trial court granted a temporary injunction
             letter of credit other than the bond or                on April 16, 1992. However, on September 29, the trial court
             letter of credit provided for in Section               dissolved the temporary injunction and ordered that Scurlock
             5B.                                                    take nothing. It found that the 1989 amendments to article
                                                                    6701d–11 were in irreconcilable conflict with the County
Article 6701d–11, § 2(b)(1). Section 5B of the statute              Road and Bridge Act to the extent that the amended statute
provides for the issuance of permits (“2060 permits”) for           “purports to remove from the Commissioners Court the
vehicles that exceed the allowable gross weight by a tolerance      authority to regulate, on county roads, bridges, and culverts,
allowance of five percent. Id. at § 5B(b). The “overall gross       those overweight vehicles which are issued a statewide permit
weight may not exceed eighty thousand (80,000) pounds,              under Article 6701d–11, § 5B.” The court, sua sponte, further
including all enforcement tolerances.” Id. at § 5(a)(1). The fee    found that the amendments violated the Texas Constitution.
for the permit is $75 and the permit is valid for one year. Id.
at § 5B(e). The applicant must file a letter of credit or post a    The trial court's conclusions of law included the following:
bond. Id. at § 5B(g). The liability of an applicant for damages
to roads and highways is not limited to the amount of the             (1) Section 2.301 of the County Road and Bridge Act
bond or letter of credit, however. Id. at § 5B(h). The statute        impliedly grants Brazos County the power to implement its
prescribes the procedures by which a permit holder must               permit system, regardless of any other permit issued.
notify the counties in which that person intends to operate the
overweight vehicle. Id. at § 2(b)(2). It also specifies the venue     (4) To be entitled to the benefits of article 6701d–11,
for any suits brought *482 by a county seeking to recover             section 2(b)(1), a carrier must comply with the notice
for damages caused by a permit holder. Id. at § 2(b)(6).              requirements of section 2(b)(2) of that article.

                                                                      (5) Section 2(b)(1) of article 6701d–11 does not purport
In 1991, Brazos County re-enacted its traffic regulations, this
                                                                      to restrict the power or authority of the commissioners
time ostensibly pursuant to the authority granted under the
County Road and Bridge Act. The 1991 regulations limit


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Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


  court to regulate vehicles operating at gross weights under        prerequisite to that article's exemption of motor carriers
  80,000 pounds.                                                     from compliance with county permit systems”; declaratory
                                                                     relief would therefore be purely advisory.
  (7) Article 6701d–11 does not purport to remove from
  Brazos County or the commissioners court the authority
  granted by the County Road and Bridge Act to enact
  and implement its permit system, regardless of whether a                          Jurisdiction of trial court
  carrier holds a 2060 permit.
                                                                   In its first two points of error, Scurlock asserts that the
  (8) If, and to the extent that article 6701d–11 does purport     trial court erred in addressing the constitutionality of article
  to remove such authority from Brazos County or the               6701d–11. Specifically, Scurlock argues that because the
  commissioners court, it is in irreconcilable conflict with the   attorney general of Texas was not served pursuant to section
  County Road and Bridge Act.                                      37.006(b) of the Civil Practice and Remedies Code and
                                                                   because neither party raised the issue of constitutionality, the
  (9) If, and to the extent that article 6701d–11 does purport     trial court lacked jurisdiction to rule on the constitutionality
  to remove such authority from Brazos County or the               of article 6701d–11.
  commissioners court, it violates TEX. CONST. art. III, §
  56, “as a special law regulating the affairs of counties and
  changing the venue in civil cases, to the benefit of motor       1. Service on the attorney general
  carriers carrying overweight loads and to the detriment of        [1]    In declaratory judgment actions, “if [a] statute,
  the citizens of the various counties of Texas.”                  ordinance, or franchise is alleged to be unconstitutional,
                                                                   the attorney general of the state must also be served with
  (10) If article 6701d–11 is deemed constitutional, then “it is   a copy of the proceedings and is entitled to be heard.”
  to be strictly construed as being in derogation of the powers    TEX.CIV.PRAC. & REM.CODE ANN. § 37.006(b) (Vernon
  and authorities granted to counties and the commissioners        1986) (emphasis added). Neither Scurlock nor Brazos
  courts” under the County Road and Bridge Act.                    County alleged that article 6701d–11 was unconstitutional;
                                                                   understandably, neither party served the attorney general with
  (11) Scurlock was not entitled to injunctive relief because      a copy of the pleadings. Scurlock argues that because the
  it did not demonstrate that its overweight vehicles operated     attorney general did not receive notice of this action, the trial
  on Brazos County roads at gross weights in excess of             court did not have jurisdiction to consider the constitutional
  80,000 pounds, “the minimum weight at *483 which                 issue.
  Article 6701d–11, V.T.C.S., purports to exempt a carrier
  from compliance with a county permit system.”                     [2]     [3] Brazos County asserts, however, that section
                                                                   37.006(b) does not apply when the unconstitutionality of a
  (12) Scurlock was not entitled to declaratory relief because
                                                                   statute is not expressly raised in the pleadings. We agree.
  it did not demonstrate that its overweight vehicles operated
                                                                   Failure to notify the attorney general of the pendency of
  on Brazos County roads at gross weights in excess of
                                                                   a declaratory judgment action in which the constitutional
  80,000 pounds, “the minimum weight at which Article
                                                                   validity of a statute, ordinance, or franchise is challenged
  6701d–11, V.T.C.S., purports to exempt a carrier from
                                                                   deprives the trial court of jurisdiction to proceed. Commerce
  compliance with a county permit system”; declaratory
                                                                   Indep. Sch. Dist. v. Hampton, 577 S.W.2d 740, 741
  relief would therefore be purely advisory.
                                                                   (Tex.Civ.App.—Eastland 1979, no writ); Commissioners
  (13) Scurlock was not entitled to injunctive relief              Court of Harris County v. Peoples Nat'l Util. Co., 538 S.W.2d
  because it did not comply with the notice provisions             228, 229 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ
  contained in article 6701d–11, § 2(b)(2), (3), “an essential     ref'd n.r.e.). However, when neither party challenges the
  prerequisite to that article's exemption of motor carriers       constitutionality of a statute, ordinance, or franchise, neither
  from compliance with county permit systems.”                     party is required to serve the attorney general with a copy of
                                                                   the pleadings; the failure to serve the attorney general will
  (14) Scurlock was not entitled to declaratory relief             not, therefore, deprive a trial court of jurisdiction. City of
  because it did not comply with the notice provisions             Willow Park v. Bryant, 763 S.W.2d 506, 508 (Tex.App.—
  contained in article 6701d–11, § 2(b)(2), (3), “an essential     Fort Worth 1988, no writ); Webb v. L.B. Walker and Assoc.,



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Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


544 S.W.2d 952, 957 (Tex.Civ.App.—Houston [14th Dist.]             In points of error three and four, Scurlock asserts the
1976, writ ref'd n.r.e.). Here, neither party raised the issue     trial court erred in finding provisions of article 6701d–11
of constitutionality; the attorney general's lack of notice of     unconstitutional. The trial court held that article 6701d–11
the pendency of this suit did not deprive the trial court of       and its venue provisions 2 violate TEX. CONST. art. III, §
jurisdiction.                                                      56 as a special law regulating the affairs of counties and
                                                                   changing the venue in civil cases, to the benefit of motor
                                                                   carriers carrying overweight loads and to the detriment of the
2. Failure to plead affirmative defense
                                                                   citizens of the various counties of Texas.
 [4] Scurlock correctly notes that the unconstitutionality of a
statute is an affirmative defense that must be pled. Houston
                                                                   2          Article 6701d–11, section 2(b)(6), addresses the venue
Chronicle Publishing Co. v. City of Houston, 531 S.W.2d
177, 183 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ                        of a suit brought by a county, and provides in part:
                                                                                    Venue for a suit brought by a county to recover
ref'd n.r.e.); see also TEX.R.CIV.P. 94. Scurlock asserts that
                                                                                    on the bond or letter of credit is in district court in
because Brazos County never pled unconstitutionality as an
                                                                                    the county in which the defendant resides, except
affirmative defense, the issue was not properly before the
                                                                                    that if the defendant is a corporation or partnership,
trial court. In the absence of an appropriate pleading raising                      venue is in the county in which the defendant has
the issue of unconstitutionality, a trial court is without the                      its principle place of business in this state. If a
authority to include such findings in its judgment. *484                            corporation or partnership does not have a principle
Webb, 544 S.W.2d at 957; Houston Chronicle Publishing Co.,                          place of business in this state, venue is in the district
531 S.W.2d at 183.                                                                  court in the county in which the damage occurred.
                                                                                 Section 5B(h) governs the venue of suits brought
 [5] Brazos County argues that Scurlock raises this issue for                    by the State Department of Highways and Public
the first time on appeal, and has therefore waived appellate                     Transportation. It is similar to section 2(b)(6), except
review. Scurlock asserts that this issue was raised in its                       that it provides that if a corporation or partnership does
motion for new trial. Scurlock's motion does indeed state                        not have a principle place of business in Texas, venue
                                                                                 is in the district court in Travis County.
that neither party raised the issue of unconstitutionality.
However, Scurlock addressed the issue of unconstitutionality       Section 56 provides, in part:
in connection with its assertion that the trial court's actions
violated section 37.006 of the Civil Practice and Remedies             The Legislature shall not, except as otherwise provided in
Code and deprived Scurlock of the participation of the                 this Constitution, pass any local or special law ...:
attorney general; Scurlock never specifically mentioned the
                                                                       ....
failure of Brazos County to plead unconstitutionality as an
affirmative defense. An objection at trial that is not the             Regulating the affairs of counties, cities, towns, wards or
same as the objection urged on appeal presents nothing for             school districts;
appellate review. Exxon Corp. v. Allsup, 808 S.W.2d 648,
655 (Tex.App.—Corpus Christi 1991, writ denied); see also              ....
Pfeffer v. Southern Texas Laborers' Pension Trust Fund, 679
                                                                       Changing the venue in civil and criminal cases;
S.W.2d 691, 693 (Tex.App.—Houston [1st Dist.] 1984, writ
ref'd n.r.e.) (an appellant may not, on appeal, enlarge a ground       And in all other cases where a general law can be made
of error to include an objection not asserted at trial). We need       applicable, no local or special law shall be enacted....
not determine whether Scurlock has preserved this complaint
for review, however. Our discussion and ruling under points         [6] [7] When evaluating the constitutionality of a statute,
of error three and four dispose of any complaint under points      the statute is presumed to be constitutional and should not
one and two.                                                       be struck down by an intermediate appellate court except
                                                                   on clear and certain grounds. Cronen v. City of Pasedena,
                                                                   835 S.W.2d 206, 210 (Tex.App.—Houston [1st Dist.] 1992,
                    Unconstitutionality                            no writ); Pedraza v. Tibbs, 826 S.W.2d 695, 697 (Tex.App.
                                                                   —Houston [1st Dist.] 1992, writ dism'd w.o.j.). The party
                                                                   who asserts the statute is unconstitutional therefore has the



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Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


burden of persuasion. Cronen, 835 S.W.2d at 210; Holloway           v. Hill, 507 S.W.2d 521, 525 (Tex.1974); Grimes County
v. Butler, 828 S.W.2d 810, 811 (Tex.App.—Houston [1st               Taxpayers Ass'n, 565 S.W.2d at 266.
Dist.] 1992, writ denied).
                                                                     [12] Scurlock presented evidence that the purpose of the
 [8] As noted, the trial court, sua sponte, determined that         amendments to article 6701d–11 was to establish statewide
article 6701d–11 is a “special law” and therefore violates          uniformity in the permitting of overweight vehicles. One of
the Texas Constitution. The constitutional prohibition of           the purposes of article III, section 56, is to promote uniform
article III, section 56 was intended to prevent the legislature     law in the state. We find that there is a reasonable basis for the
from enacting laws granting special privileges to particular        classification created by the amendments and that the statute
persons, groups, or locales in the state; to encourage uniform      operates equally on all within the classification. We further
law in the state; and to discourage horsetrading or “logrolling”    find the 6701d–11 is not a special law and does not violate
legislation between *485 members of the legislature. Miller         TEX. CONST. art. III, § 56. We sustain points of error three
v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, 1001              and four.
(1941); Public Util. Comm'n v. Southwest Water Serv., Inc.,
636 S.W.2d 262, 264 (Tex.App.—Austin 1982, writ ref'd
n.r.e.). A statute is not local or special if persons or things
                                                                                 Brazos County's authority under
throughout the state are affected by it, or if it operates upon
                                                                                 the County Road and Bridge Act
a subject in which the people at large are interested. Lower
Colorado River Auth. v. McCraw, 125 Tex. 268, 83 S.W.2d              [13] The trial court held that article 6701d–11 does not
629, 636 (1935).                                                    purport to remove from Brazos County the authority granted
                                                                    by the County Road and Bridge Act to enact and implement
 [9] The legislature has broad power to make classifications        its permit system, regardless of whether a carrier has a 2060
for legislative purposes and to enact laws for the regulation       permit. In its fifth point of error, Scurlock asserts that this
thereof. Grimes County Taxpayers Ass'n v. Texas Municipal           conclusion contradicts the express language of article 6701d–
Power Agency, 565 S.W.2d 258, 266 (Tex.Civ.App.—                    11.
Houston [1st Dist.] 1978, writ dism'd). Such legislation
must apply uniformly to all who may come within the                 The County Road and Bridge Act provides: “The
classification, and the classification must be broad enough         commissioners court of any county may regulate and restrict
to include a substantial class and must be based on                 traffic on county roads and on other county-owned land under
characteristics legitimately distinguishing the class from          its jurisdiction.” TEX.REV.CIV.STAT.ANN. art. 6702–1, §
others with respect to the public purpose sought to be              2.301(a)(1) (Vernon Supp.1993). The Act also provides that a
accomplished by the legislation. Id. If there could exist a state   commissioners court may establish load limits for any road or
of facts justifying the classification or restriction complained    bridge. The County Road and Bridge Act contains no specific
of, we will assume that it existed. Inman v. Railroad Comm'n,       grant of authority to issue permits for overweight vehicles.
478 S.W.2d 124, 127 (Tex.Civ.App.—Austin 1972, writ ref'd
n.r.e.).                                                           Article 6701d–11 2(b)(1) specifically sets forth a county's
                                                                   power to issue permits for certain overweight or oversized
 [10] [11] A statute that relates to persons or things as a commodities, equipment, and vehicles. The extent of a
class is a general law, while a statute that relates to particular county's authority is detailed within the provisions of the
persons or things as a class is special. Southwest Water Serv.,    statute.
Inc., 636 S.W.2d at 265. The class created by the statute
must be a real class, and not a “pretended” class created          Section 2(b)(1) circumscribes a commissioners court's power
by the legislature to evade the constitutional restriction. “A     to issue and require permits for overweight vehicles. The
‘pretended’ class would be one which ‘manifest[s] a purpose        County Road and Bridge Act contains only a general grant
to evade the constitution.’ ” Id. (quoting Clark v. Finley, 93     of authority to regulate and restrict traffic on county roads.
Tex. 171, 54 S.W. 343, 346 (1899)). The primary and ultimate       Article 6701d–11 contains a specific and limited grant of
test of whether a law is general or special is whether there is    authority to issue permits for described items including
a reasonable basis for the classification it makes and whether     overweight vehicles. Point of error five is sustained.
the law operates equally on all within its class. Robinson



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


                                                                     “failed to demonstrate that its overweight vehicles operate
                                                                     on Brazos County roads at gross weights in excess of
                *486 Irreconcilable conflict
                                                                     80,000 lbs., the minimum weight at which Article 6701d–11,
 [14] In its sixth point of error, Scurlock asserts that the trial   V.T.C.S., purports to exempt a carrier from compliance with
court erred in holding that article 6701d–11 and the County          a county permit system”; and (2) Scurlock “failed to comply
Road and Bridge Act are in irreconcilable conflict. In its           with the notice provisions of Article 6701d–11, § (2)(b)(2)
seventh point of error, Scurlock asserts that the trial court        and (3), V.T.C.S., an essential prerequisite to that article's
erred in holding that article 6701d–11 should be construed as        exemption of motor carriers from compliance with county
being in derogation of the powers and authorities granted to         permit systems.”
counties and commissioners courts under the County Road
and Bridge Act.                                                      The Civil Practice and Remedies Code provides:

                                                                                  A person interested under a deed,
 [15] A statute is presumed to have been enacted by the
                                                                                  will, written contract, or other writings
legislature with complete knowledge of the existing law and
                                                                                  constituting a contract or whose
with reference to it. Acker v. Texas Water Comm'n, 790
                                                                                  rights, status, or other legal relations
S.W.2d 299, 301 (Tex.1990). We may presume that the
                                                                                  are affected by a statute, municipal
legislature enacted the amendments to article 6701d–11 with
                                                                                  ordinance, contract, or franchise may
knowledge of and reference to the County Road and Bridge
                                                                                  have determined any question of
Act.
                                                                                  construction or validity arising under
                                                                                  the instrument, statute, ordinance,
 [16]    [17] When two statutes concern the same subject
                                                                                  contract, or franchise and obtain a
matter, they are to be construed in such a way as to give
                                                                                  declaration of rights, status, or other
meaning to both. J. & J. Beverage Co. v. Texas Alcoholic
                                                                                  legal relations thereunder.
Beverage Comm'n, 810 S.W.2d 859, 860 (Tex.App.—Dallas
1991, no writ). A special or specific act is properly regarded       TEX.CIV.PRAC. & REM.CODE ANN. § 37.004(a) (Vernon
as an exception to, or qualification of, a general law on the        1986). A trial court may refuse to render or enter a declaratory
same subject previously enacted. Sam Bassett Lumber Co. v.           judgment if the judgment will not terminate the uncertainty or
City of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947);           controversy giving rise to the proceeding. TEX.CIV.PRAC.
Olson v. Central Power & Light Co., 803 S.W.2d 808, 811 n.           & REM.CODE ANN. § 37.008 (Vernon 1986). In suits
3 (Tex.App.—Corpus Christi 1991, writ denied).                       for declaratory relief, a trial court has limited discretion to
                                                                     refuse a declaratory judgment, and may do so only where
The County Road and Bridge Act deals generally with a                judgment would not remove the uncertainty giving rise to
county's authority to regulate traffic on county roads. Article      the proceedings. James v. Hitchcock Indep. Sch. Dist., 742
6701d–11 specifically authorizes the state to issue permits          S.W.2d 701, 704 (Tex.App.—Houston [1st Dist.] 1987, writ
for overweight vehicles, and grants counties limited power           denied).
to issue permits for overweight vehicles. We find that the
two statutes are not irreconcilable; that the specific provisions [21]    [22]     [23] A declaratory judgment is appropriate
of article 6701d–11 are an exception or qualification to the     when a real controversy exists between the parties, and the
general provisions of the County Road and Bridge Act; and        entire controversy may be determined by judicial declaration.
that article 6701d–11 prevails over the County Road and          Board of Water Eng'rs v. City of San Antonio, 155 Tex. 111,
Bridge Act. Points of error six and seven are sustained.         283 S.W.2d 722, 724 (1955); *487 Public Util. Comm'n
                                                                 v. City of Austin, 728 S.W.2d 907, 911 (Tex.App.—Austin
                                                                 1987, writ ref'd n.r.e.). To constitute a justiciable controversy,
                      Declaratory relief                         there must exist a real and substantial controversy involving
                                                                 a genuine conflict of tangible interests and not merely a
 [18] [19] [20] In points of error eight, 10, 11, 12, and theoretical dispute. Bexar–Medina–Atascosa Counties Water
13, Scurlock asserts that the trial court erred in denying       Control and Improvement Dist. No. 1 v. Medina Lake
declaratory relief. The trial court concluded that a declaratory Protection Ass'n, 640 S.W.2d 778, 779–80 (Tex.App.—San
judgment would not be appropriate because: (1) Scurlock          Antonio 1982, writ ref'd n.r.e.). Courts may not give advisory


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


opinions or decide cases upon speculative, hypothetical, or                     the transportation of commodities,” and “vehicles”
contingent situations. Coalson v. City Council of Victoria,                     comprise separate categories for which a county may
610 S.W.2d 744, 747 (Tex.1980).                                                 issue permits.
                                                                      (Emphasis added.) In this last category, the legislature has
                                                                      given counties the authority to issue permits for the same
1. Vehicle weight
                                                                      vehicles for which the state may issue 2060 permits. Section
The trial court concluded that article 6701d–11 “does not
                                                                      2(b)(1) goes on to limit a county's authority to issue those
purport to restrict the power or authority of the commissioners
                                                                      permits:
courts to regulate vehicles operating at gross weights under
80,000 lbs.” We disagree.                                                          If a vehicle has a permit issued under
                                                                                   Section 5B of this Act [a 2060 permit],
We have already held that the County Road and Bridge                               a commissioners court may not issue
Act contains only a general grant of authority to counties                         a permit under this subsection, charge
to regulate and restrict traffic on county roads and that                          any additional fee for, or otherwise
article 6701d–11 contains a specific and limited grant of                          regulate or restrict the operation of
authority to counties to issue permits for overweight vehicles.                    the vehicle with a gross weight or
We therefore look to the language in article 6701d–11 to                           axle weight that exceeds the weights
determine the extent of—and limitations on—a county's                              authorized by Section 5 or Section 5
authority to issue such permits.                                                   1/2 of this Act, or require the owner
                                                                                   or operator to execute or comply with
Section 2(b)(1) authorizes commissioners courts to issue                           a road use agreement or indemnity
permits in three circumstances. A county may issue permits                         agreement, to make any filings or
for:                                                                               applications, or to provide a bond or
                                                                                   letter of credit other than the bond or
    (1) overweight, oversize or overlength commodities which
                                                                                   letter of credit provided for in Section
    cannot be reasonably dismantled;
                                                                                   5B.
    (2) superheavy or oversize equipment for the transportation
    of oversize, overweight or overlength commodities that            We think it is clear that a county has unfettered authority
    cannot be reasonably dismantled; and                              to require permits of overweight, oversize, or overlength
                                                                      commodities that cannot reasonably be dismantled, and for
    (3) “vehicles or combinations of vehicles that exceed the         the equipment used to transport those commodities. It is
    weights authorized under Section 5 or Section 5 1/2 of this       equally clear that both the state and county commissioners
    Act.” 3                                                           courts have the authority to issue permits to vehicles that
                                                                      weigh more than the weights authorized by section 5B;
3                                                                     however, if the State has issued a 2060 permit to such a
         “Commodities” is not defined by art. 6701d–11. In
         common usage, however, “commodity” means “an
                                                                      vehicle, a county may not require that vehicle to have a county
         economic good.” See WEBSTER'S NINTH NEW                      permit. Put another way, a vehicle with a valid 2060 permit
         COLLEGIATE DICTIONARY 265 (9th ed. 1991).                    does not have to get a Brazos County overweight permit.
         Unless a word is a word of art, the word will be given its
         ordinary meaning. TEX.GOV'T CODE ANN. § 312.002
         (Vernon 1988). “Vehicle” is defined by the statute as:        *488 2. Notice requirements
              Every mechanical device, in, upon or by which any       The trial court also concluded that for a carrier to be entitled to
              person or property is or may be transported or drawn    the benefits of section 2(b)(1), it must comply with the notice
              upon a public highway, including motor vehicles,        requirements contained in section 2(b)(2) and (3) of article
              commercial motor vehicles, truck-tractors, trailers,    6701d–11. The trial court further held that declaratory relief
              and semi-trailers ... but excepting devices moved by    would be advisory because of Scurlock's failure to comply
              human power of used exclusively upon stationary         with the notice requirements.
              rails or tracks.
           Article 6701d–11, § 1(1). It is clear from these
                                                                      Subsections (2) and (3) provide:
           definitions that “commodities,” “equipment for



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)


                                                                     strict compliance with the notice requirements, a carrier is
  (2) Not later than the 14th day after the date a person            subject to the unrestricted enforcement of a county's permit
  receives a permit under Section 5B of the Act, the person          system. We find that Scurlock's lack of compliance with
  shall notify by certified or registered mail, return receipt       the notice provisions is irrelevant to the declaratory relief
  requested, the county clerk of each county in which the            requested because Brazos County refused to recognize the
  person intends to operate or cause to operate the vehicle.         validity of 2060 permits on its county roads and because
  The notification must include:                                     nothing in the statute conditions its limits on a county's
                                                                     permitting authority on a carrier's compliance with the notice
  (A) the name and address of the registered owner or
                                                                     requirements.
  operator of the vehicle;

  (B) the vehicle identification number and licence plate            Section 2(b)(1) provides, “If a vehicle has a permit issued
  number of the vehicle;                                             under Section 5B of this Act, a commissioners court may
                                                                     not issue a permit....” (Emphasis added.) A permit must be
  (C) a statement that the person intends to operate or cause        carried in the vehicle. Article 6701d–11, § 5B(d). The owner
  to operate the vehicle on, over, or across the county roads,       or operator of a vehicle that has a 2060 permit and has fulfilled
  bridges, and culverts with a gross weight, axle weight, or         the notification requirements is liable to a county only for the
  wheel load that exceeds the limitations established under          actual damages caused to county roads, bridges, or culverts
  Section 5 or Section 5 1/2 of this Act: and                        by the operation of a vehicle that weighs more than the limits
                                                                     imposed by article 6701d–11. Thus, while the statute does tie
  (D) a statement that the notification is given pursuant to         the notice requirements to a limitation on damages, it does not
  this subsection.                                                   authorize a county to require a permit of a vehicle that holds
                                                                     a 2060 permit if the carrier has not complied with the statute's
  (3) A copy of the permit issued and bond or letter of credit
                                                                     notice requirements.
  required under Section 5B of this Act shall accompany
  the notification required under Subsection (2) of this
                                                                     A justiciable controversy exists between the parties which
  subsection.
                                                                     may be determined by judicial declaration. The trial court
Subsection (5) provides that a carrier who has filed the             erred in holding that declaratory relief would be advisory.
required notification “is liable to the county only for the actual   Points of error eight, 10, 11, 12, and 13 are sustained.
damages to the county roads, bridges or culverts with load
limitations established under Section 5 or Section 5B of this         [24] A court of appeals has a duty to render such judgment
Act caused by the operation of the vehicle in excess of those        as the trial court *489 should have rendered in a declaratory
limitations.”                                                        judgment action. Cobb v. Harrington, 144 Tex. 360, 190
                                                                     S.W.2d 709, 715 (1945); Mitchell v. Rancho Viejo, Inc.,
Although Scurlock trucks held 2060 permits, Scurlock                 736 S.W.2d 757, 762 (Tex.App.—Corpus Christi 1987, writ
stopped sending Brazos County notice of the permits in 1990.         ref'd n.r.e.). We therefore hold that section 2(b)(1) of article
The last permit of which Scurlock notified the county expired        6701d–11 limits the power of a commissioners court to issue
in September 1991. Scurlock stopped sending the required             permits for overweight vehicles, and that a commissioners
notice to Brazos County because the commissioners court, at          court may not issue a permit, charge any additional fee for, or
its November 1990 meeting concerning its traffic regulations,        otherwise regulate or restrict the operation of a vehicle with
made it clear that 2060 permits were not valid on its county         a permit issued under section 5B of the statute.
roads and that it would continue to require county permits for
overweight vehicles.
                                                                                            Injunctive relief
Scurlock asserts that its lack of compliance with the notice
provisions is irrelevant to the declaratory relief requested         Scurlock sought to enjoin Brazos County from issuing
because: (1) lack of notice does not invalidate a 2060 permit,       citations for violations of the county weight regulations to
and (2) the county's stated position—that 2060 permits were          Scurlock vehicles with 2060 permits. The trial court denied
not valid on county roads—made compliance with the notice            injunctive relief on the same bases that it denied declaratory
requirements pointless. Brazos County asserts that, absent           relief: because (1) Scurlock “failed to demonstrate that its



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478 (1993)



overweight vehicles operate on Brazos County roads at gross
weights in excess of 80,000 lbs, the minimum weight at which           Because we find that Brazos County was without authority
Article 6701d–11, V.T.C.S., purports to exempt a carrier from          to require county permits for those vehicles holding 2060
compliance with a county permit system”; and (2) Scurlock              permits, we find that Scurlock is entitled to recover the fees
“failed to comply with the notice provisions of Article 6701d–         paid to Brazos County for such county permits issued after
11, §§ 2(b)(2) and (3), V.T.C.S., an essential prerequisite to         September 1989. Point of error 14 is sustained. The record is
that article's exemption of motor carriers from compliance             devoid of evidence of these amounts, however. We therefore
with county permit systems.” We have already determined                reverse and remand for a determination of these amounts.
that the trial court erred in concluding that 80,000 pounds
is the minimum weight at which article 6701d–11 exempts                 [26] Brazos County asserts that this Court may not reverse
a carrier from compliance with county permit systems, and              and render judgment for Scurlock in whole or in part because
that the statute does not authorize a county to require a permit       Scurlock first complained of the trial court's finding that
of a vehicle that holds a 2060 permit if the carrier has not           article 6701d–11 was unconstitutional in its motion for new
complied with the statute's notice requirements. We must               trial. Brazos County asserts that Scurlock should have filed
therefore determine if injunctive relief is appropriate in this        a motion for judgment, requesting a reconsideration of the
case.                                                                  court's findings, before filing its motion for new trial. Brazos
                                                                       County relies upon Horrocks v. Texas Dep't of Transp., 852
 [25] A court of equity may not enjoin the enforcement of a            S.W.2d 498, 498–99 (Tex.1993), in which the supreme court
penal ordinance unless: (1) the ordinance is unconstitutional          found that a court of appeals could not render judgment based
or otherwise void, and (2) the enforcement of the ordinance            on a no evidence point preserved solely in a motion for new
causes irreparable injury to vested property rights. Passel v.         trial. Here, however, because the trial court raised the issue
Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex.1969);            of constitutionality sua sponte, Scurlock had no opportunity
City of Houston v. MEF Enterprises, Inc., 730 S.W.2d 62,               before rendition of the judgment in which to complain of this
63 (Tex.App.—Houston [14th Dist.] 1987, no writ). Scurlock             issue. We do not read Horrocks to require Scurlock to have
did not contend that the County Road and Bridge Act (under             raised the issue of constitutionality in a motion *490 for
which Brazos County purported to have the authority to                 judgment before filing its motion for new trial.
issue permits) was unconstitutional, and has not argued that
a vested property right is being irreparably injured. Point of         We reverse that part of the trial court's judgment entering a
error nine is overruled.                                               take-nothing judgment against Scurlock; we render judgment
                                                                       that Brazos County may not require an overweight vehicle to
                                                                       have a Brazos County permit if that vehicle has a valid permit
                                                                       issued by the state pursuant to article 6701d–11; we remand to
                          Damages                                      the trial court for a determination of damages; and we affirm
                                                                       the trial court's denial of injunctive relief.
Scurlock sought compensation for permit fees paid to Brazos
County after September 1, 1989, the effective date of the
amendments to article 6701d–11, for Brazos County permits,             All Citations
and for attorney's fees incurred in defending Scurlock drivers
who had been cited for driving an overweight truck without a           869 S.W.2d 478
county permit. On appeal, however, Scurlock has abandoned
its claim for attorney's fees incurred in defending its drivers.

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               12
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793 (1987)




                                                                [3]   Costs
                    739 S.W.2d 793                                        Compensation of Guardian Ad Litem or
                Supreme Court of Texas.                               Next Friend
           Richard U. SIMON, Jr., Petitioner,                         Factors used to determine reasonableness of
                         v.                                           guardian ad litem fee include difficulty and
                                                                      complexity of the case, amount of time spent
              YORK CRANE & RIGGING
                                                                      by the attorney, benefit derived by the client,
            COMPANY, INC., Respondent.
                                                                      and skill and experience reasonably needed to
           No. C–6408. | Oct. 28, 1987.                               perform the service.
          | Rehearing Denied Dec. 16, 1987.
                                                                      16 Cases that cite this headnote
Subsequent to settlement of wrongful death action and
allowance of guardian ad litem fees, motion for new trial was   [4]   Appeal and Error
brought, seeking alteration of judgment on ad litem fee or               Abuse of Discretion
grant of remittitur. The 96th District Court, Tarrant County,         An appellate court may reverse a trial court for
Hal M. Lattimore, J., denied motion and appeal was brought.           abuse of discretion only if, after searching the
The Court of Appeals found ad litem fees unreasonable and             record, it is clear that the trial court's decision
excessive and reversed. Appeal was brought. The Supreme               was arbitrary and unreasonable.
Court, Hill, C.J., held that absent record showing alleged
abuse of discretion, Supreme Court would presume that trial           108 Cases that cite this headnote
court had adequate evidence before it to justify award of
guardian ad litem fees in amount of $25,000 plus $12,000 in
                                                                [5]   Appeal and Error
event of appeal.
                                                                         Burden of Showing Grounds for Review

Reversed and ad litem award reinstated.                               A party complaining of abuse of discretion in
                                                                      the trial court has the burden to bring forth a
                                                                      record showing such abuse. Rules App.Proc.,
                                                                      Rule 50(d).
 West Headnotes (7)
                                                                      63 Cases that cite this headnote

 [1]    Costs
            Compensation of Guardian Ad Litem or                [6]   Appeal and Error
        Next Friend                                                      Failure to Set Forth Evidence in General
        The award of guardian ad litem fees is in the                 Absent record showing trial court's alleged
        sound discretion of a trial court.                            abuse of discretion, the reviewing court must
                                                                      presume that the evidence before the trial judge
        27 Cases that cite this headnote                              was adequate to support the decision. Rules
                                                                      App.Proc., Rule 50(d).
 [2]    Costs                                                         85 Cases that cite this headnote
            Compensation of Guardian Ad Litem or
        Next Friend
                                                                [7]   Appeal and Error
        The discretion of a trial court in setting guardian
                                                                         Costs and Allowances
        ad litem fees is not unbridled and, in general,
        the same factors as are used to determine the                 Absent an adequate record showing alleged
        reasonableness of attorney's fees are controlling.            abuse of discretion in award of guardian ad litem
                                                                      fee in wrongful death action, Supreme Court
        34 Cases that cite this headnote                              would presume that trial court had adequate




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793 (1987)


         evidence before it to justify award of $25,000            took place in March 1986. For that hearing, Simon had
         plus $12,000 in event of appeal.                          secured the services of a certified public accountant who
                                                                   testified as to the solvency of the company. On the basis
         72 Cases that cite this headnote                          of this testimony and certain assurances by Simon, the trial
                                                                   court approved the settlement. In approving the settlement
                                                                   and rendering judgment, the trial court interlined an award of
                                                                   $25,000 for the ad litem fee. Counsel for York recorded no
Attorneys and Law Firms                                            objection to the amount of the fee at that time.

*793 John Henry McBryde, Nora J. Toohy, McBryde &
                                                                   York subsequently filed a timely Motion for New Trial urging
Bennett, Fort Worth, for petitioner.                               the court to alter its judgment on the ad litem fee or to grant
                                                                   a remittitur. A hearing was held on the Motion. Despite the
R. Brent Cooper, Cowles & Thompson, Dallas, for
                                                                   fact that the purpose of the hearing was to challenge the ad
respondent.
                                                                   litem fee issue, and that York knew no other evidence on
                                                                   the fees was in the record, York did not request the court
                                                                   reporter to make a statement of facts for this hearing. York did
                          OPINION
                                                                   seek to introduce a stipulation signed by both parties as to the
HILL, Chief Justice.                                               amount of time spent by Simon on the case. The stipulation
                                                                   was apparently handed to the judge, but not filed. Counsel for
This is an appeal from a judgment by the Court of Appeals          York concede they made no effort to check with the judge
that guardian ad litem fees allowed by the trial court were        or the court clerk to determine if the document was in fact
unreasonable and excessive. Richard U. Simon was appointed         filed. A certificate by the clerk indicates that the stipulation
guardian ad litem to protect the interests of a minor child in a   was found “loose and unfile-marked” in the file jacket for the
wrongful death suit. The trial court awarded Simon $25,000         case. The clerk presented the document to the trial judge, who
ad litem fees at the trial level and up to $12,000 in additional   declined to file-mark it.
fees in the event of appeal. The Court of Appeals, in an
unpublished opinion held the amount excessive and that the         Following the new trial hearing, the trial court signed an order
trial court abused its discretion. It remanded the cause to the    denying the relief sought in the Motion for New Trial and
 *794 trial court to reassess the amount of the fee. We hold       assessed an additional $12,000 in guardian ad litem fees in
there was no abuse of discretion by the trial court, and we        the event of appeal. In an unpublished opinion, the court of
reverse the judgment of the Court of Appeals and reinstate the     appeals held the ad litem fees unreasonable and excessive.
ad litem award.                                                    We reverse.

The underlying case involved a crane accident in which              [1] The award of guardian ad litem fees is in the sound
Thomas Jobe was killed when a crane owned by York Crane            discretion of the trial court. Pratt v. Texas Dept. of Human
& Rigging came into contact with high voltage electrical           Resources, 614 S.W.2d 490, 496 (Tex.App.—Amarillo 1981,
wires. A settlement was eventually reached involving a lump        writ ref'd n.r.e.). Absent evidence illustrating a clear abuse of
sum payment to Jobe's wife of $675,000 and annuities for           discretion, a reviewing court will not set aside an allowance.
his parents and minor son, for whom a trust was created in         Cypress Creek Utility Services v. Muller, 624 S.W.2d 824,
the Settlement Agreement. The total value of the settlement        827. (Tex.App.—Houston [14th Dist.] 1981) aff'd, 640
was approximately $2,415,000 over the expected term of the         S.W.2d 860 (1982).
annuity. Simon was appointed guardian ad litem of the minor
child.                                                              [2] [3] The discretion of the trial court in setting an ad
                                                                   litem fee is not unbridled. In general the same factors as are
At a hearing, in January 1986, the trial court did not approve     used to determine the reasonableness of attorney's fees are
the settlement because it was not satisfied as to the financial    controlling. See Phillips Petroleum Co. v. Welch, 702 S.W.2d
responsibility of the insurance company that was to fund           672 (Tex.App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.).
the annuity for the minor. The court requested Simon to            Such factors include the difficulty and complexity of the case,
investigate the solvency of the company. A second hearing          the amount of time spent by the attorney, the benefit derived



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793 (1987)


                                                                      the trial judge was adequate to support the decision. Mays v.
by the client, and finally, the skill and experience reasonably
                                                                      Pierce, 281 S.W.2d 79, 154 Tex. 487 (1955).
needed to perform the service. Tuthill v. Southwestern
Public Service Co., 614 S.W.2d 205, 212–13 (Tex.Civ.App.
                                                                       [7] York had ample opportunity to see that an adequate
—Amarillo 1981, writ ref'd n.r.e.).
                                                                      record was made. Instead, it failed to make an objection when
                                                                      the court first granted the ad litem fees. It failed to obtain
An award of $25,000, augmented by $12,000 in the event of
                                                                      a statement of facts at the hearing at which the fees were
an appeal, could be excessive as a guardian ad litem fee. York,
                                                                      discussed. As to the one piece of evidence it did have, the
however, has brought forward no evidence whatsoever in the
                                                                      stipulation of facts regarding Simon's work on the case, York
record that might show on what grounds the trial court made
                                                                      failed to see that the document was properly filed and made
its award.
                                                                      a part of the record.
 *795 [4] [5] [6] An appellate court may reverse a trial
                                                                      This Court must accordingly presume that the trial court had
court for abuse of discretion only if, after searching the record,
                                                                      adequate evidence before it to justify its award of guardian ad
it is clear that the trial court's decision was arbitrary and
                                                                      litem fees. The judgment of the Court of Appeals is reversed.
unreasonable. Landry v. Travelers Ins. Co., 458 S.W.2d 649,
                                                                      The trial court's award of $25,000 plus $12,000 in event of
651 (Tex.1970). Hence, the party that complains of abuse
                                                                      appeal for guardian ad litem fees is reinstated.
of discretion has the burden to bring forth a record showing
such abuse. See, Englander Co. v. Kennedy, 428 S.W.2d 806,
807 (Tex.1968); Tex.R.App.P. 50(d). Absent such a record,
                                                                      All Citations
the reviewing court must presume that the evidence before
                                                                      739 S.W.2d 793

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)




     KeyCite Yellow Flag - Negative Treatment                         West Headnotes (12)
Declined to Extend by    HSBC Bank USA, N.A. v. Watson,   Tex.App.-
Dallas,   June 15, 2012
                                                                      [1]   Constitutional Law
                     162 S.W.3d 859                                             Due Process
                 Court of Appeals of Texas,                                 Generally, only the entity that has not been
                        Texarkana.                                          properly served with a petition has standing
                                                                            to challenge the lack of due process. U.S.C.A.
          SOUTHWEST CONSTRUCTION
                                                                            Const.Amend. 14.
      RECEIVABLES, LIMITED, et al., Appellants,
                       v.                                                   5 Cases that cite this headnote
            REGIONS BANK, f/k/a First
          Commerce Bank, et al., Appellees.                           [2]   Constitutional Law
                                                                                Due Process
        No. 06–03–00083–CV. | Submitted
      Feb. 16, 2005. | Decided April 26, 2005.                              One exception to the general principle that only
                                                                            the entity that has not been properly served with
Synopsis                                                                    a petition has standing to challenge the lack
Background: Purchasers of accounts receivable brought                       of due process is that an insurance company
claims, as intervenors, against defendants for fraud, aiding                may challenge the propriety of service as to the
and abetting breach of fiduciary duty, and civil conspiracy.                company's insured. U.S.C.A. Const.Amend. 14.
The 202nd Judicial District Court, Bowie County, Bill Peek,
J., determined one of the individual defendants had not been                6 Cases that cite this headnote
properly served and granted summary judgment on some
claims against other defendants, and plaintiffs nonsuited the         [3]   Constitutional Law
remaining claims. Plaintiffs appealed.                                          Due Process
                                                                            Only the defendant on whom a petition allegedly
                                                                            had not been properly served, and not his
Holdings: The Court of Appeals, Donald R. Ross, J., held                    codefendants, had standing to raise a due process
that:                                                                       claim regarding the alleged lack of proper
                                                                            service, in civil suit brought by purchasers of
[1] other defendants lacked standing to assert that individual              accounts receivable alleging fraud, aiding and
defendant had not been properly served with petition;                       abetting breach of fiduciary duty, and civil
                                                                            conspiracy. U.S.C.A. Const.Amend. 14.
[2] amended petition was properly served on individual
defendant by certified mail;                                                3 Cases that cite this headnote


[3] individual defendant's conduct made issuance and service          [4]   Process
of new citation unnecessary; and                                                Conclusiveness of Return or Certificate in
                                                                            General
[4] summary judgment order was interlocutory and therefore                  If service of process is effected via the Secretary
it was not immediately appealable.                                          of State pursuant to Texas' long-arm service
                                                                            statute, then, absent evidence of fraud or mistake,
                                                                            the Secretary of State's certificate of service
Appeal dismissed.
                                                                            conclusively establishes that process was served.
                                                                            V.T.C.A., Civil Practice & Remedies Code §
                                                                            17.044(a)(1), (b).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


                                                                  to original citation before intervenors asked
       Cases that cite this headnote                              for affirmative relief against defendant, where
                                                                  defendant never denied his status as a defendant
 [5]   Pleading                                                   and instead gave testimony in form of
            Notice of Application and Presentation and            oral deposition, at which deposition he was
       Service of Amendment                                       questioned about intervenors' claims, and he
                                                                  participated in full evidentiary hearing in federal
       Process
                                                                  bankruptcy court on intervenors' motion for
           After Amendment of Pleading or Other
                                                                  relief from stay to allow trial to proceed based on
       Proceeding
                                                                  the amended petition, but lack of service was not
       Process
                                                                  one of the grounds he asserted in opposition to
           Mailing as Constructive Service
                                                                  relief from stay.
       Service of amended petition, on a defendant who
       had not yet appeared in the civil case against             2 Cases that cite this headnote
       multiple defendants, could be made by certified
       mail, even if the amended petition added new        [8]    Parties
       plaintiffs, new claims, and new damages; thus, it               Proceedings in Cause After Intervention
       was not necessary to have a new citation issued
                                                                  Process
       and served on the non-appearing defendant.
                                                                      After Amendment of Pleading or Other
       Vernon's Ann.Texas Rules Civ.Proc., Rules 21,
                                                                  Proceeding
       21a.
                                                                  A defendant who had been served with citation
       Cases that cite this headnote                              but had not entered a formal appearance before
                                                                  an intervenor asked for affirmative relief against
                                                                  the defendant may, by the defendant's action
 [6]   Pleading
                                                                  subsequent to the intervention, make issuance of
            Notice of Application and Presentation and
                                                                  a new citation unnecessary.
       Service of Amendment
       Process                                                    1 Cases that cite this headnote
           After Amendment of Pleading or Other
       Proceeding
                                                           [9]    Appeal and Error
       A plaintiff who amends its petition may serve                 Determination of Part of Controversy
       the defendant, without regard to whether the
                                                                  Trial court's summary judgment order was
       amendment seeks a more onerous judgment or
                                                                  interlocutory and therefore it was not
       adds a new cause of action, by complying with
                                                                  immediately appealable, though order had
       the filing and serving requirements for pleadings
                                                                  purported to dispose of claims against all parties,
       under the rules of civil procedure. Vernon's
                                                                  where trial court had erroneously concluded that
       Ann.Texas Rules Civ.Proc., Rules 21, 21a.
                                                                  one of the defendants had not been properly
       3 Cases that cite this headnote                            served with petition and therefore that such party
                                                                  was not proper party to suit; upon appellate
                                                                  court's determination that such defendant was
 [7]   Parties
                                                                  properly served and was a proper party, it could
            Proceedings in Cause After Intervention
                                                                  not be said the summary judgment had disposed
       Process                                                    of claims against all parties. V.T.C.A., Civil
           After Amendment of Pleading or Other                   Practice & Remedies Code § 51.014.
       Proceeding
       Issuance and service of new citation on                    Cases that cite this headnote
       defendant was not necessary, though defendant
       had not entered formal appearance in response       [10]   Appeal and Error



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Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


             Necessity of Final Determination
                                                              Ronald J. Burke, pro se.
        The general rule, with a few mostly statutory
        exceptions, is that an appeal may be taken only
                                                              Before ROSS, CARTER, and CORNELIUS, * JJ.
        from a final judgment. V.T.C.A., Civil Practice
        & Remedies Code § 51.014.                             *       William J. Cornelius, C.J., Retired, Sitting by
        Cases that cite this headnote                                 Assignment.



 [11]   Appeal and Error
           Final Judgments or Decrees                                                    OPINION

        A judgment is “final” and therefore immediately       Opinion by Justice ROSS.
        appealable if it disposes of all pending parties
        and claims in the record, except as necessary to      Dan Moore, D.D.S., and Dennis O'Banion, M.D., and
        carry out the decree.                                 their two companies, Southwest Construction Receivables,
                                                              Limited (SCR) and Construction Invoice Funding, Ltd.
        Cases that cite this headnote                         (collectively, Appellants) sued Regions *862 Bank and
                                                              several individuals, including Charles William Richardson,
 [12]   Appeal and Error                                      for fraud, breach of contract, and civil conspiracy. Some of the
           Finality as to All Parties                         defendants, including Regions and Richardson, filed motions
                                                              for partial, traditional, and no-evidence summary judgment,
        Appeal and Error
                                                              which the trial court ultimately granted. The trial court also
           Want of Jurisdiction
                                                              ruled that, as a matter of law, one of the individual defendants,
        Except for statutory exceptions, if the judgment      Michael McNew, had not been properly served and was,
        from which the party has appealed does not            therefore, not before the court. The plaintiffs nonsuited much
        dispose of all pending parties and claims, then       of the remainder of their case and appealed those rulings by
        the judgment is deemed to be interlocutory and        the trial court.
        the court of appeals should either abate the
        appeal or dismiss it for want of jurisdiction.        In their third issue, Appellants contend the trial court erred
        V.T.C.A., Civil Practice & Remedies Code §            by ruling, as a matter of law, that McNew had not been
        51.014.                                               served with the plaintiffs' original or amended petitions and
                                                              was, therefore, not properly before the trial court. We hold
        Cases that cite this headnote
                                                              the trial court did so err. Because we conclude McNew is
                                                              a party to this case, and because claims against him have
                                                              not been resolved by way of a final judgment, the appeal
                                                              is now interlocutory, and we lack jurisdiction to consider
Attorneys and Law Firms
                                                              the remainder of Appellants' points of error. Accordingly,
*861 John R. Mercy, Mercy, Carter, Tidwell, LLP,              we sustain Appellants' third point of error and dismiss the
Texarkana, Graham Kerin Blair, David A. Brakebill, Baker      remainder of the appeal for want of jurisdiction.
& McKenzie, Houston, for appellants.

George L. McWilliams, Sean F. Rommel, Phillip N. Cockrell,    I. Procedural and Factual History
Patton, Haltom, Roberts, Texarkana, William A. Waddell Jr.,   In the late 1990s, Drs. Moore and O'Banion of Texarkana
William H. Sutton, Friday, Eldredge & Clark, Little Rock,     were introduced to the “factoring” business by McNew
AR, for Regions Bank.                                         and Joe O'Banion (Dr. O'Banion's brother). “Factoring”
                                                              is the business of “buying of accounts receivable at
Stephen L. Gershner, Davidson Law Firm, Little Rock, AR,      a discount. The price is discounted because the factor
Gary D. Grimes, Law Office of Gary D. Grimes, Texarkana,      (who buys them) assumes the risk of delay in collection
for Charles William Richardson.                               and loss on the accounts receivable.” BLACK'S LAW
                                                              DICTIONARY 630 (8th ed.2004). In this case, Drs.



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Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


Moore and O'Banion purchased accounts receivable from           others—were engaging in fraud by trying to sell “bogus”
construction subcontractors that were owed money by their       accounts receivable to SWF. West outlined several accounts
respective general contractors.                                 receivable that SWF's credit extension application proposed
                                                                buying from Starkey Electric. West's written memorandum
In 1997, Drs. Moore and O'Banion created SCR. The doctors       about the Starkey invoices then detailed why West believed
borrowed money from First Commercial National Bank to           certain of those invoices were fraudulent: the invoices were
fund their new company. The doctors worked with Joe             for work that was either not fully completed or had not yet
O'Banion and McNew, who brokered accounts receivable to         commenced. West then concluded that, because SWF was
the doctors and SCR. Working through a company owned by         already heavily invested in Starkey invoices, and because the
McNew and Joe O'Banion called Funding Sources Support,          value of those invoices already owned by SWF was likely to
Inc. (FSSI), McNew was supposed to conduct a background         be less than the money SWF ultimately realized in payments
check on each account receivable that he brokered (a process    from the general contractors, further funding by Regions of
the parties refer to as “due diligence” processing) to ensure   SWF's investments in Starkey Electric was not in the bank's
both that the work represented by each account receivable       best interest. “[A]t this point every advance we [Regions]
had, in fact, been completed by the subcontractor and that      make, particularly with Starkey as the beneficiary, widens
the money was due to be paid by the general contractor          the gap by increasing the loss exposure.” “SWF is a house
within ninety days. As a condition of loaning money to          of cards ready to collapse without substantial capital input—
SCR, First Commercial National Bank also required of SCR        maybe the entire $3.7MM [sic] Starkey owes plus any other
that the bank be allowed to conduct its own due diligence       scams that we [Regions] don't know about.”
check of each account receivable to be purchased, as required
by banking regulations and the bank's internal policies. For    On September 4, 1998, McNew met with Regions officials
a while, all the parties—Drs. Moore and O'Banion, First         and admitted that some of the Starkey invoices—for which
Commercial National Bank, McNew and Joe O'Banion, and           Regions had already advanced money to Richardson (and
the subcontractors—seemed to be making a profit.                SWF) and which Richardson had, in turn, paid to Starkey—
                                                                were for work that had not yet been completed. McNew and
In July 1998, Regions Bank of Little Rock, Arkansas,            bank officials identified approximately $695,000.00 worth
acquired First Commercial National Bank. Shortly before         of problem invoices. Regions then demanded it be paid by
then, McNew had encouraged the doctors to purchase,             McNew for those identified, problem invoices within a short
through SCR, a number of additional accounts receivable         period of time.
from Starkey Electric, an electrical subcontractor based in
Tyler, Texas. McNew had also encouraged another investor,       Shortly thereafter, McNew obtained money from other
Richardson—who was the owner of Southwest Financial             sources. These sources were Drs. Moore and O'Banion,
Funding (SWF) and a Regions customer—to increase SWF's          and SCR. Drs. Moore and O'Banion borrowed money and
factoring investment in Starkey Electric and other companies    deposited that money into SCR's checking account, to which
McNew had suggested.                                            McNew had access. McNew then took $495,000.00 of SCR's
                                                                money, added $200,000.00 of his own money, and paid
 *863 In August 1998, SWF applied to have its credit            $695,000.00 to Regions for the identified, problem invoices
line increased by Regions. Regions assembled a team of          from Starkey Electric. This payment, made in response
executives from various branch offices to review SWF's          to Regions' demand, absolved Regions' potential losses
application. One of those executives was Neil West, an          associated with the previously identified $695,000.00 worth
official with a Regions branch in Tyler, Texas. In reviewing    of problem invoices from Starkey Electric.
SWF's application, West noticed that SWF planned to buy
several accounts receivable from Starkey Electric of Tyler.     McNew was ultimately convicted on federal charges of wire
This concerned West because he had experienced problems         fraud, bank fraud, making a false statement to a financial
with Starkey Electric when West had worked for another bank     institution, mail fraud, and conspiracy. At the federal plea,
in the Tyler area.                                              McNew admitted he led Drs. Moore and O'Banion to believe
                                                                they were buying new invoices when, in fact, he knew
On August 30, 1998, West apprised others within Regions         that representation was not true. Instead, McNew used the
of his suspicions, stating he believed Starkey—and possibly     $495,000.00 from the doctors to repurchase the problem



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        4
Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


invoices from SWF—invoices McNew and Regions both                   service of plaintiff's petition for personal injuries occurring at
knew were for work that had not been completed or that they         amusement park).
suspected to be fraudulent.
                                                                     [3] With the single exception of an insurance company
On November 18, 1998, Regions executed a “Release of                standing in the shoes of its insured, we have found nothing
Security Interest” in these Starkey Electric invoices that          in our statutes or Texas caselaw that supports Richardson's
Regions had reason to believe had either been paid in full          position that a defendant in a civil suit has standing to
or were fraudulent. Regions and FSSI also mutually released         challenge whether a codefendant has been properly served;
 *864 each other from any claims relating to certain Starkey        nor have the parties directed this Court's attention to any such
Electric invoices; Regions promised not to disclose any of          authority. Therefore, we conclude Appellants are correct:
FSSI's activities to law enforcement, except where required         only McNew has standing to challenge whether he has or has
by law.                                                             not been properly served. Cf. Caldwell v. Barnes, 154 S.W.3d
                                                                    93, 97–98 (Tex.2004) (burden is on nonserved party to prove
                                                                    nonservice in post-judgment bill of review proceeding). The
II. Did the Trial Court Err By Striking McNew As a                  remaining codefendants have no such standing. Because the
Party to the Lawsuit?                                               trial court struck McNew as a party on the motion of a
In their third point of error, Appellants contend the trial court   codefendant, the trial court erred.
erred by holding, as a matter of law, McNew had not been
properly served with either the plaintiffs' original petition        [4] Moreover, the record before us shows Appellants served
or any amended petition. In the spring of 2003, Richardson          the Texas Secretary of State (as the agent of process for
asked the trial court to find that McNew had not been properly      McNew, an Arkansas resident) with the original petition.
served with the plaintiffs' original petition. The trial court
ruled May 13, 2003, that McNew was not properly before the            (a) The secretary of state is an agent for service of process
court; it followed with a written order June 27, 2003, which          or complaint on a nonresident who:
stated there had been “no service on Michael L. McNew that
validly makes him a party to this case.” The effect of the               (1) is required by statute to designate or maintain a
trial court's order was to eliminate McNew as a party to the             resident agent or engages in business in this state, but has
case. This ruling hurt the plaintiffs' case because McNew,               not designated or maintained a resident agent for service
the alleged primary malfeasant (and now federally convicted              of process;
criminal), was a necessary party to prove the plaintiffs' claims
                                                                            ....
of conspiracy against the remaining defendants. See, e.g., Ins.
Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex.1998)                *865 (b) The secretary of state is an agent for service of
(element of civil conspiracy is combination of two or more            process on a nonresident who engages in business in this
persons). 1                                                           state, but does not maintain a regular place of business in
                                                                      this state or a designated agent for service of process, in
1       The plaintiffs had crafted their case so as to depict
                                                                      any proceeding that arises out of the business done in this
        McNew as the critical link through which the defendants'      state and to which the nonresident is a party.
        alleged conspiracy resulted in Appellants' damages.
                                                                    TEX. CIV. PRAC. & REM.CODE ANN. § 17.044 (Vernon
 [1]     [2] Generally, only the entity that has not been           1997) (Texas' “long-arm” statute). If service is effected via
properly served has standing to challenge the lack of due           the Secretary of State pursuant to Texas' long-arm statute,
process. See, e.g., Illinois v. DeLaire, 240 Ill.App.3d 1012,       absent evidence of fraud or mistake, the Secretary of State's
183 Ill.Dec. 33, 610 N.E.2d 1277, 1287–88 (1993) (third             certificate of service “conclusively establishes that process
party has right to contest effectiveness of service, but not        was served.” Campus Invs., Inc. v. Cullever, 144 S.W.3d
defendants). One exception to that general principle is that        464, 466 (Tex.2004) (citing Capitol Brick, Inc. v. Fleming
an insurance company may challenge the propriety of service         Mfg. Co., 722 S.W.2d 399, 401 (Tex.1986)); Zuyus v. No'Mis
as to the company's insured. See, e.g., Koven v. Saberdyne          Communications, Inc., 930 S.W.2d 743, 746 (Tex.App.-
Sys., Inc., 128 Ariz. 318, 625 P.2d 907, 909–10 (Ct.App.1980)       Corpus Christi 1996, no writ).
(insurance company had standing to move trial court to set
aside default judgment against insured based on lack of


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Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


In this case, the Texas Secretary of State accepted service of       with Plaintiffs' fifth amended original petition by certified
process, as the agent for nonresident McNew, of the plaintiffs'      mail May 5, 2003.
original petition. The Secretary of State then forwarded that
notice to McNew's last known address in Arkansas. The                3       Rule 21 provides, in relevant part:
plaintiffs had similarly served FSSI, an Arkansas corporation                    Every pleading, plea, motion or application to the
owned by McNew, via the Texas Secretary of State. The                            court for an order, whether in the form of a motion,
record shows McNew's last known address and FSSI's last                          plea or other form of request, unless presented
known address are the same location. The Secretary of State's                    during a hearing or trial, shall be filed with the
certification of service shows the certified letter to McNew                     clerk of the court in writing, shall state the grounds
went “unclaimed” and was returned to the Secretary August                        therefor, shall set forth the relief or order sought,
20, 1999, but the certified letter to FSSI was accepted and the                  and at the same time a true copy shall be served on
return receipt was received by the Secretary August 20, 1999.                    all other parties, and shall be noted on the docket.
                                                                               TEX.R. CIV. P. 21.
Appellants contend this constitutes “selective acceptance” by
                                                                               Rule 21a provides, in relevant part:
McNew. We tend to agree. 2 However, such conclusion is not                       Every notice required by these rules, and every
necessary in light of the Texas Supreme Court's holding in                       pleading, plea, motion, or other form of request
Campus Investments.                                                              required to be served under Rule 21, other than the
                                                                                 citation to be served upon the filing of a cause of
2                                                                                action and except as otherwise expressly provided
       See Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96,
                                                                                 in these rules, may be served by delivering a copy to
       102 (Tex.App.-Beaumont 1993, writ denied), overruled
                                                                                 the party to be served, or the party's duly authorized
       in part on other grounds, Carpenter v. Cimarron
                                                                                 agent or attorney of record, as the case may be,
       Hydrocarbons Corp., 98 S.W.3d 682 (Tex.2002), where
                                                                                 either in person or by agent or by courier receipted
       the Beaumont court held:
                                                                                 delivery or by certified or registered mail, to the
            where it is shown ... that a party has fully complied
                                                                                 party's last known address ... or by such other
            with the notice requirements set forth in TEX. R.
                                                                                 manner as the court in its discretion may direct.
            CIV. P. 21a ... yet fails to establish actual receipt
                                                                               TEX.R. CIV. P. 21a.
            of notice upon opposing party or counsel, such
            notice shall be sufficient constructive notice where     As the Eastland court pointed out in R.D.C., Weaver was a
            it is shown that the intended recipient engaged in       liability insurance coverage case holding that the insurance
            instances of selective acceptance/refusal of certified   company had no duty to defend a suit against the named
            mail relating to the case.                               insured's employee where the employee failed to comply with
 [5] Regions and Richardson point out that Appellants                the policy provisions regarding the forwarding of citation to
amended their original petition multiple times, adding               the insurer. The Eastland court went on to state:
plaintiffs (Drs. Moore and O'Banion), new claims, and new
damages. Citing Weaver v. Hartford Accident & Indem. Co.,                          While the rule [that new citation
570 S.W.2d 367, 370 (Tex.1978), they contend that, because                         is necessary for a party who has
McNew had not made an appearance in the case at the time of                        not appeared when the plaintiff,
these amendments, Appellants were required to have a new                           by amended petition, seeks a more
citation issued on their “live” pleading and served on McNew.                      onerous judgment than prayed for in
Appellants' “live” pleading at the time the trial court struck                     the original pleading] was discussed in
McNew as a party was Plaintiffs' fifth amended original                            Weaver, it is apparent that the thrust of
petition, filed December 13, 2001.                                                 the opinion is directed at the failure of
                                                                                   the “omnibus insured” to comply with
 [6] A plaintiff who amends its petition may serve the                             the policy provisions.
defendant, without regard to whether the amendment seeks
                                                                     Id. at 855.
a more onerous judgment or adds a new cause of action, by
complying with the filing and serving requirements of Rules
                                                                      [7] Citing Baker v. Monsanto Co., 111 S.W.3d 158
21 and 21a, Texas Rules of Civil Procedure. 3 In re *866             (Tex.2003), Regions and Richardson further contend that,
R.D.C., 912 S.W.2d 854 (Tex.App.-Eastland 1995, no writ).            because Drs. Moore and O'Banion were not added as
The record before us shows that Appellants served McNew              plaintiffs in the case until Plaintiffs' second amended



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Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


original petition, filed February 2, 2001, these doctors were     Further, McNew participated in a full evidentiary hearing in
“intervenors” and were therefore required to serve McNew          U.S. Bankruptcy Court on Appellants' motion for relief from
with a new citation. In Baker, the defendant, Monsanto Co.,       stay to allow the trial of the instant case to proceed based
had not been served with citation by any plaintiff when the       on Plaintiffs' fifth amended original petition. The bankruptcy
intervenors attempted to serve Monsanto's counsel. Id. at         court's order, dated July 1, 2002, granting this motion, reflects
159. The law firm representing Monsanto expressly stated          that McNew opposed the motion on various grounds, but lack
in a letter that they would not accept service on Monsanto's      of service was not one of them. Rather, the order reflects
behalf. Plaintiffs subsequently served citation on Monsanto.      that McNew admitted and pled guilty to the specific conduct
Monsanto's counsel filed an answer, but only to “the petitions    complained of in Plaintiffs' fifth amended original petition.
of those plaintiffs who have served Monsanto.” Id. The Texas      Referring to the instant litigation, the order also contains the
Supreme Court held that Monsanto's subsequent appearance          following judicial finding:
relieved the intervenors of serving Monsanto with a new
citation. In so holding, the Texas Supreme Court quoted                        [McNew] has been aware of the
approvingly:                                                                   litigation and the complaints against
                                                                               him for several years, and due to his
            Citation is necessary when the                                     guilty plea in the criminal case and
            intervenor asks affirmative relief                                 admissions in his civil deposition, it
            against a defendant who has not                                    does not appear that [McNew] has a
            appeared or a plaintiff who does                                   viable defense in any case.
            not, by any action subsequent to
            the intervention, appear thereon....                  Based on these actions by McNew after Drs. Moore and
            1 MCDONALD AND CARLSON,                               O'Banion were joined as plaintiffs, and based on the original
            TEXAS CIVIL PRACTICE § 5:81 at                        service of citation properly served on him by the Secretary of
            609 (1992 ed.).                                       State, we hold that a new citation was not required and that
                                                                  notice of the additional plaintiffs' claims, given pursuant to
Id. at 160 (emphasis added).
                                                                  Rules 21 and 21a, was sufficient. 4
 [8] It is apparent the “by any action subsequent to the
intervention” language is directed toward plaintiffs because      4       Plaintiffs did ultimately cause a new citation, with their
plaintiffs will always have already made an appearance in                 fifth amended original petition, to be served on McNew
the case. This language is equally applicable, however, to                by the Secretary of State. The return on this citation,
defendants who, like McNew, have been previously served                   however, was not filed until after the trial court had
with citation but have not entered a formal appearance in                 struck McNew as a party.

the case. Such defendants may, “by [their] action subsequent      Therefore, even if the trial court had authority to strike
to the intervention,” make issuance of a new citation             McNew as a party based on the motion of a codefendant, the
unnecessary. Such was the case with McNew.                        trial court nonetheless erred because the record affirmatively
                                                                  refutes the claims of Regions and Richardson that McNew
 *867 Unlike Monsanto in Baker, where Monsanto                    had not been made a party to the suit. We sustain Appellants'
unsuccessfully sought to invoke the statute of limitations        third point of error.
because it had not been formally served with citation by the
intervenors, the record before us shows that McNew never
denied his status as a defendant in this case. After Drs. Moore   III. The Appeal Is Now Interlocutory
and O'Banion were joined as plaintiffs, McNew appeared             [9] In their fifth amended petition, the plaintiffs sued
“at the instance of the plaintiffs” and gave testimony in the     Regions Bank, McNew, Michael Starkey (owner of
form of an oral deposition. Richardson's motion for summary       Starkey Electric), Richardson, J. Ronald Burke (Richardson's
judgment included an attached excerpt that shows McNew            business partner), and Joe O'Banion. The plaintiffs alleged
was questioned in that deposition concerning the claims of        the defendants were collectively and separately guilty of
Drs. Moore and O'Banion.                                          fraud, aiding and abetting a breach of fiduciary duty, and
                                                                  civil conspiracy. The plaintiffs sought actual and punitive




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     7
Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (2005)


                                                                  Because we have held the trial court erred by ruling, as
damages, as well as court costs and pre- and post-judgment
                                                                  a matter of law, that McNew was not a proper party to
interest.
                                                                  the suit, and because Appellants' notice of nonsuit did not
                                                                  resolve their claims against McNew, the trial court's award
In their notice of partial nonsuit, the plaintiffs took a nonsuit
                                                                  of summary judgment in this case does not dispose of all
with respect only to their claims of direct fraud (“save and
                                                                  the parties or claims. None of the statutory exceptions that
except those claims already adjudicated by partial summary
                                                                  grant us jurisdiction to hear certain interlocutory appeals are
judgment”) and their claims of aiding and abetting a breach
                                                                  applicable to this case. See TEX. CIV. PRAC. & REM.CODE
of fiduciary duty against Regions, Richardson, and a third
                                                                  ANN. § 51.014 (Vernon Supp.2004–2005). Therefore, we are
defendant (“save and except those claims already adjudicated
                                                                  without jurisdiction to consider Appellants' remaining points
by partial summary judgment”). The notice of partial nonsuit
                                                                  of error. Cf. Brooks v. Pep Boys Auto. Supercenters, 104
did not address Appellants' claims against NcNew.
                                                                  S.W.3d 656, 660–61 (Tex.App.-Houston [1st Dist.] 2003, no
 [10]     [11]    [12] “[T]he general rule, with a few mostly pet.) (order compelling arbitration not final disposition and
                                                                  not expressly authorized for interlocutory appeal; appellate
statutory exceptions, is that an appeal may be taken only from
                                                                  court dismissed appeal).
a final judgment.” Lehmann v. Har–Con Corp., 39 S.W.3d
191, 195 (Tex.2001). “A judgment *868 is final for purposes
of appeal if it disposes of all pending parties and claims in the
                                                                        IV. Conclusion
record, except as necessary to carry out the decree.” Id. Except        For the reasons stated, we sustain Appellants' third point of
for those statutory exceptions, if the judgment from which the          error and dismiss the appeal for want of jurisdiction.
party has appealed does not dispose of all pending parties and
claims, then the judgment is deemed to be “interlocutory” and
the court of appeals should either abate the case or dismiss it         All Citations
for want of jurisdiction. Id. at 195–96.
                                                                        162 S.W.3d 859


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  8
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055


                                                                                10 Cases that cite this headnote
     KeyCite Yellow Flag - Negative Treatment
Declined to Extend by     Seureau v. ExxonMobil Corp.,   Tex.App.-Hous.
(14 Dist.),  October 16, 2008
                                                                          [2]   States
                                                                                     What are suits against state or state officers
                       35 S.W.3d 608                                            Sovereign immunity applies to both the state and
                   Supreme Court of Texas.                                      its agencies.
                 TEXAS DEPARTMENT OF                                            3 Cases that cite this headnote
            TRANSPORTATION, Petitioner,
                            v.
                                                                          [3]   Automobiles
          Luke W. ABLE, Ben Dees and George
                                                                                    Government; Immunity and Waiver
         Hans Knoll, coexecutors of the Estate of
                                                                                Thereof
         Margaret Able, deceased, Ramona Lee
                                                                                Automobiles
        Dees, and Sylvia Jane Knoll, Respondents.
                                                                                    Nature and Grounds of Liability
             No. 99–0108. | Argued Nov. 7,                                      Municipal Corporations
           1999. | Decided July 6, 2000. |                                          Nature and grounds of liability of
             Rehearing Overruled Nov. 16, 2000.                                 municipality as proprietor
                                                                                Statute providing for government liability
Outbound driver and outbound passenger's estate and                             waives sovereign immunity in three general
survivors sued Texas Department of Transportation                               areas: use of publicly owned automobiles,
(TxDOT), city, and transit authority individually and as                        premises defects, and injuries arising out of
participants in joint enterprise, after accident on high–                       conditions or use of property. V.T.C.A., Civil
occupancy vehicle (HOV) lane in which inbound driver                            Practice & Remedies Code § 101.021.
was headed the wrong way. The 113th District Court,
Harris County, Patricia Hancock, J., entered judgment on                        30 Cases that cite this headnote
jury verdict against TxDOT and transit authority. TxDOT
appealed and the Court of Appeals, Frank G. Evans, J.
                                                                          [4]   Municipal Corporations
(Retired), 981 S.W.2d 765, affirmed. TxDOT petitioned for
                                                                                    Nature and grounds of liability of
review. The Supreme Court, Gonzales, J., held that: (1)
                                                                                municipality as proprietor
governmental unit could be liable for a premises defect under
                                                                                Governmental liability for premises defects does
a joint enterprise theory, and (2) TxDOT and transit authority
                                                                                not depend on the actions of its employees, but is
were engaged in joint venture regarding transitway project.
                                                                                based on the standard of care owed for a premises
                                                                                defect. V.T.C.A., Civil Practice & Remedies
Affirmed.
                                                                                Code §§ 101.021(2), 101.022(a).
Owen, J., filed a dissenting opinion in which Phillips, C.J.,                   5 Cases that cite this headnote
and Hecht, J., joined.

                                                                          [5]   Municipal Corporations
                                                                                    Nature and grounds of liability of
 West Headnotes (15)                                                            municipality as proprietor
                                                                                Under the waiver of immunity language of Tort
 [1]      States                                                                Claims Act, a governmental unit can be liable for
               Necessity of Consent                                             a premises defect solely under a joint enterprise
          The general rule is that the state has sovereign                      theory. V.T.C.A., Civil Practice & Remedies
          immunity unless it has been waived.                                   Code §§ 101.021(2).




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

                                                                     matter of friendly or family cooperation and
        38 Cases that cite this headnote                             accommodation.

                                                                     12 Cases that cite this headnote
 [6]    Joint Adventures
             Rights and Liabilities of Parties as to Third
        Persons                                               [10]   Joint Adventures
        Joint enterprise liability makes each party thereto               Contracts creating joint adventures
        the agent of the other and thereby holds each                Equal right to control enterprise existed as to
        responsible for the negligent act of the other.              transitway, supporting finding of joint venture
                                                                     between Texas Department of Transportation
        17 Cases that cite this headnote                             (TxDOT) and transit authority, although transit
                                                                     authority was primarily responsible for day-to-
 [7]    Joint Adventures                                             day operation and maintenance of transitways
             Essential Elements                                      and its employees carried out procedures
                                                                     of transitway management team, as master
        Elements which are essential to a joint enterprise
                                                                     agreement provided that TxDOT and transit
        are: (1) an agreement, express or implied, among
                                                                     authority would divide responsibility for
        the members of the group, (2) a common purpose
                                                                     maintenance, and TxDOT had equal right to
        to be carried out by the group, (3) a community
                                                                     control what management team's procedures
        of pecuniary interest in that purpose, among the
                                                                     were and how they were to be carried out, that is,
        members, and (4) an equal right to a voice in the
                                                                     TxDOT had a voice and right to be heard as to
        direction of the enterprise, which gives an equal
                                                                     matters affecting day-to-day operations.
        right of control. Restatement (Second) of Torts §
        491 comment.                                                 26 Cases that cite this headnote
        37 Cases that cite this headnote
                                                              [11]   Appeal and Error
                                                                        Same or Similar Evidence Otherwise
 [8]    Appeal and Error
                                                                     Admitted
           Sufficiency of Evidence in Support
                                                                     Any error in trial court's exclusion of driver's
        Appellate court will uphold the jury's findings
                                                                     statement to officer that shortly before accident
        if there is more than a scintilla of evidence to
                                                                     he had been outbound on high-occupancy
        support them.
                                                                     vehicle (HOV) lane was not harmful in
        1 Cases that cite this headnote                              automobile accident case resulting from driver
                                                                     going inbound the wrong way on same HOV
                                                                     lane, as statement was merely cumulative
 [9]    Joint Adventures
                                                                     of evidence already in record and was not
             Evidence
                                                                     controlling on a dispositive material issue, where
        Evidence supported finding that Texas                        jury heard other evidence that driver might have
        Department of Transportation (TxDOT) and                     driven outbound on HOV lane shortly before
        transit authority were engaged in community                  accident, and jury also heard evidence that driver
        of pecuniary interest, supporting finding of                 was familiar with HOV facilities and might have
        joint enterprise as to highway project; master               intentionally ignored ramp controls.
        agreement plainly recognized that project
        involved substantial sums of money and                       10 Cases that cite this headnote
        contemplated sharing of resources to make
        better use of this money and to realize
                                                              [12]   Trial
        economic gain, monetary and personnel savings
                                                                          Admission of evidence in general
        produced from pooling of resources might
        have been substantial, and project was not a


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

        The inclusion and exclusion of evidence is
        committed to the trial court's sound discretion.     Opinion

        20 Cases that cite this headnote                     Justice GONZALES delivered the opinion of the Court, in
                                                             which Justice ENOCH, Justice BAKER, Justice ABBOTT,
                                                             Justice HANKINSON and Justice O'NEILL joined.
 [13]   Appeal and Error
           Evidence in General                               A jury found that the Texas Department of Transportation
        Appeal and Error                                     (TxDOT) did not negligently cause a fatal automobile
           Prejudicial Effect                                accident on a high occupancy vehicle lane. We must decide
                                                             whether the State has waived sovereign immunity under the
        A successful challenge to evidentiary rulings
                                                             Texas Tort Claims Act when a state agency has entered into a
        usually requires the complaining party to show
                                                             joint enterprise with another governmental unit that is found
        that the judgment turns on the particular evidence
                                                             to have negligently caused the accident. The jury *610 found
        excluded or admitted.
                                                             that there was a joint enterprise and the trial court determined
        63 Cases that cite this headnote                     the State waived sovereign immunity. The court of appeals
                                                             affirmed. 981 S.W.2d 765. We hold that a governmental
                                                             unit that enters into a joint enterprise can be liable under
 [14]   Appeal and Error
                                                             the waiver of sovereign immunity found in the Tort Claims
           Prejudicial Effect
                                                             Act. See TEX. CIV. PRAC. & REM.CODE § 101.021(2).
        In determining if the excluded evidence probably     Accordingly, we affirm the judgment of the court of appeals.
        resulted in the rendition of an improper
        judgment, a court must review the entire record.

        46 Cases that cite this headnote                                            I. Background

                                                             On the evening of December 7, 1993, Dr. Luke Able and his
 [15]   Appeal and Error                                     wife Margaret were traveling in their minivan outbound from
           Same or Similar Evidence Otherwise                Houston, Texas on the U.S. Highway 290 high-occupancy
        Admitted                                             vehicle or HOV lane. The Ables collided head-on with a
        Appeal and Error                                     vehicle driven by Jerry Huebner with its lights off, heading
           Same or Similar Evidence Otherwise                inbound the wrong direction, in the same HOV lane. Both
        Admitted                                             Margaret Able and a passenger in Huebner's vehicle were
        Appellate court ordinarily will not reverse a        killed. Dr. Able and Huebner were severely injured. Later
        judgment for erroneous rulings on admissibility      that night at the hospital, Huebner gave a statement to Harris
        of evidence when the evidence in question is         County Deputy Sheriff J. Keele about the accident. According
        cumulative and not controlling on a material         to Officer Keele's supplemental accident report, Huebner
        issue dispositive to the case.                       remembered getting on the HOV lane traveling outbound,
                                                             turning around in a park-and-ride, proceeding to a traffic light
        34 Cases that cite this headnote                     that turned from red to green and then continuing on his way.
                                                             Huebner stated that this was the last thing he remembered.

                                                             Dr. Able, Margaret Able's estate, and Margaret Able's
Attorneys and Law Firms                                      survivors, Ramona Lee Dees and Sylvia Jane Knoll, filed
                                                             suit against TxDOT, the Houston Metropolitan Transit
*609 Michael C. Ratliff, Grady Click, Linda Eads, Andy       Authority (Metro), the City of Houston, and Harris County
Taylor, John Cornyn, Atty. Gen., Austin, for petitioner.     for negligence and gross negligence. The plaintiffs sued
                                                             the governmental entities individually and as participants
David L. Monroe, John W. Able, Levert J. Able, Able,         in a joint enterprise. They alleged a joint enterprise based
Monroe & Walker, for respondent.                             on (1) agreements between the governmental entities,
                                                             including a written agreement between TxDOT and Metro



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

entitled “Transitways Master Operations and Maintenance
Agreement” (Master Agreement), (2) common law, and
                                                                                          II. Discussion
(3) various provisions of the Texas Civil Practice and
Remedies Code. The plaintiffs non-suited Harris County             [1]    [2] TxDOT makes the same arguments here that it
before trial, and the case proceeded against the three            asserted in the court of appeals. We turn first to TxDOT's
remaining governmental entities.                                  complaint that there has been no waiver of sovereign
                                                                  immunity in the present case. The general rule is that the
At trial, the court excluded Huebner's statements in Officer      State has sovereign immunity unless it has been waived.
Keele's supplemental accident report. But the jury heard          See Dallas County Mental Health & Mental Retardation v.
testimony from the plaintiffs' expert on cross examination        Bossley, 968 S.W.2d 339, 341 (Tex.1998); Director of Dep't
about the possibility that Huebner intentionally drove the        of Agric. & Env't v. Printing Indus. Ass'n, 600 S.W.2d 264,
wrong way on the HOV lane on the night of the accident.           265–66 (Tex.1980). This immunity applies to both the State
At the trial's conclusion, the jury was asked to decide           and its agencies such as TxDOT. See Lowe v. Texas Tech
which, if any, defendants were negligent and to apportion         Univ., 540 S.W.2d 297, 298 (Tex.1976); TEX. CIV. PRAC.
the percentage of negligence among the defendants. The jury       & REM.CODE § 101.001(2).
found that (1) Metro and Huebner, who was not a defendant,
were negligent, (2) Metro was grossly negligent, (3) TxDOT
and the City of Houston were not negligent, and (4) TxDOT
and Metro were engaged in a joint enterprise on the date of the                        A. Section 101.021
accident. The jury apportioned fifty percent of the negligence     [3] Section 101.021 of the Texas Civil Practice and
to Metro and the remaining fifty percent to Huebner.              Remedies Code provides a limited waiver of sovereign
                                                                  immunity:
The jury awarded $1,000,000 to Dr. Able, $750,000 each
to Ramona Dees and to Sylvia Knoll for the loss of their            A governmental unit in the state is liable for:
mother, and $200,000 to the Estate of Margaret Able. Based
on the jury's findings, the trial court rendered a judgment         (1) property damage, personal injury, and death
against Metro for $200,000, the maximum award allowed               proximately caused by the wrongful act or omission or
under the Tort Claims Act, and a judgment that the plaintiffs       the negligence of an employee acting within his scope of
take nothing from the City of Houston and Harris County.            employment if:
The trial court also rendered a judgment against TxDOT for
                                                                         (A) the property damage, personal injury, or death
the statutory maximum award of $500,000, based on the
                                                                         arises from the operation or use of a motor-driven
jury's finding that TxDOT and Metro were engaged in a joint
                                                                         vehicle or motor-driven equipment; and
enterprise. Of this $500,000, the court awarded $250,000 to
Dr. Able and $250,000 jointly to Ramona Dees, Sylvia Knoll               (B) the employee would be personally liable to the
and the Estate of Margaret Able.                                         claimant according to Texas law; and

Only TxDOT appealed. In the court of appeals, TxDOT                 (2) personal injury and death so caused by a condition
argued that it did not waive its sovereign immunity and that        or use of tangible personal or real property if the
a *611 judgment could not be rendered against it because            governmental unit would, were it a private person, be liable
the jury found that TxDOT was not negligent. TxDOT                  to the claimant according to Texas law.
further complained that there was no evidence to support
the jury's finding that TxDOT and Metro were engaged in a         TEX. CIV. PRAC. & REM.CODE § 101.021. Section
joint enterprise and that the trial court improperly excluded     101.021 has been interpreted to waive sovereign immunity
statements by Huebner that resulted in harmful error. The         in three general areas: “use of publicly owned automobiles,
court of appeals overruled all of TxDOT's points of error and     premises defects, and injuries arising out of conditions or use
affirmed the trial court's judgment. 981 S.W.2d 765. TxDOT        of property.” Lowe, 540 S.W.2d at 298. The plaintiffs and
petitioned this Court for review, and we granted the petition.    TxDOT agree that subsection (1) of section 101.021 does not
                                                                  apply to this case. Therefore, the only issue before this Court
                                                                  involving waiver of sovereign immunity is the interpretation
                                                                  of subsection (2) of section 101.021.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

                                                                             Subsection 2 is also broader because
TxDOT argues that the “so caused” language of subsection                     it encompasses governmental liability
(2) allows liability only for the negligence or wrongful acts                for a condition of real property or
or omissions caused by its own employees. TxDOT cites this                   tangible personal property. Thus, in
Court's construction of the “so caused” language, used in a                  addition to liability based on principles
prior version of section 101.021, to mean “when proximately                  of respondeat superior, subsection 2
caused by the negligence or wrongful act or omission of                      includes governmental liability for
any officer or employee acting within the scope of his                       premise defects.
employment or office.” Lowe, 540 S.W.2d at 299; accord
Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex.1983)    DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995).
(interpreting “so caused” to mean that “[t]he proximate cause   These theories of liability are based on different standards
of the damages for death or personal injury must be the         of care owed—some of which are not dependent upon
negligence or wrongful act or omission of the officer or        the actions of any employee. Thus, we have stated that
employee acting within the scope of his employment or           the limiting language in subsection (1)(b), requiring the
office.”). Because the jury found no negligence by TxDOT        employee to be personally liable to the claimant under Texas
or its employees here, TxDOT asserts it cannot be liable as a   law, would be inapposite in the context of subsection (2). See
matter of law under section 101.021(2).                         DeWitt, 904 S.W.2d at 654.


Furthermore, TxDOT argues it cannot be liable for the           In this case, plaintiffs alleged a premises defect involving
negligent acts of Metro's employees. The Tort Claims Act        a state highway. Further, the jury charge, asking the jury
defines employee as:                                            to decide whether any defendants were negligent, tracked
                                                                the elements that must be found in a premises defect case.
            a person, including an officer or                   See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,
            agent, who is in the paid service                   936 (Tex.1998) (describing the four elements of a premises
            of a governmental *612 unit by                      defect claim). In DeWitt we noted that in a premises defect
            competent authority, but does not                   suit against a governmental unit under section 101.021,
            include an independent contractor, an               liability is not based on the actions of the governmental unit's
            agent or employee of an independent                 employees:
            contractor, or a person who performs
            tasks the details of which the                                   With premise defects, liability is
            governmental unit does not have the                              predicated not upon the actions of the
            legal right to control.                                          governmental unit's employees but by
                                                                             reference to the duty of care owed by
TEX. CIV. PRAC. & REM.CODE § 101.001(1). TxDOT                               the governmental unit to the claimant
contends that under this definition, Metro employees are not                 for premise and special defects as
employees of TxDOT for purposes of section 101.021(2);                       specified in section 101.022 of the
accordingly, TxDOT cannot be vicariously liable for Metro's                  Texas Tort Claims Act.
negligence.
                                                                DeWitt, 904 S.W.2d at 653. Instead, in a premises defect
 [4] We disagree with TxDOT's interpretation of the “so         case the State owes the same duty a private landowner
caused” language in section 101.021(2). This Court has          owes a licensee. See TEX. CIV. PRAC. & REM.CODE §
previously held that liability under subsection (2) can arise   101.022(a); State Dep't of Highways & Pub. Transp. v. Payne,
under different theories:                                       838 S.W.2d 235, 237 (Tex.1992); State v. Tennison, 509
                                                                S.W.2d 560, 562 (Tex.1974). Here the jury found Metro
            [S]ubsection 2 is broader than                      negligent for a premises defect. This liability was not based
            subsection 1 in that it encompasses                 upon the conduct of their employees but instead upon the
            governmental liability based on                     standard of care owed for a premises defect. See TEX.
            respondeat superior for misuse of                   CIV. PRAC. & REM.CODE § 101.022(a). Thus, contrary
            tangible personal property other than               to TxDOT's argument, liability for premises defects under
            motor-driven vehicles and equipment.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

section 101.021(2) does not depend on the actions of its           stated in section 491, comment c of the Restatement of Torts.
employees.                                                         That section states:

But even if a governmental unit can be liable under section                    [t]he elements which are essential to
101.021(2) without a finding of negligence by its employees,                   a joint enterprise are commonly stated
we must still consider TxDOT's argument that it cannot be                      to be four: (1) an agreement, express
liable here because of the jury's finding that TxDOT was not                   or implied, among the members of
negligent for a premises defect. The jury found such liability                 the group; (2) a common purpose to
based on a joint enterprise between Metro and TxDOT. We                        be carried out by the group; (3) a
now consider whether a governmental unit can be liable for a                   community of pecuniary interest in
premises defect solely under a joint enterprise theory.                        that purpose, among the members; and
                                                                               (4) an equal right to a voice in the
                                                                               direction of the enterprise, which gives
                                                                               an equal right of control.
            B. Waiver of Sovereign Immunity
                                                                   RESTATEMENT (SECOND) OF TORTS § 491 cmt. c
 [5] We turn first to the plain meaning of section 101.021(2).     (1965); see also Blount v. Bordens Inc., 910 S.W.2d 931,
That section clearly states a governmental unit can be             933 (Tex.1995); Triplex Communications, Inc. v. Riley, 900
liable for “personal injury and death so caused *613 by            S.W.2d 716, 718 (Tex.1995).
a condition ... of tangible personal or real property if the
governmental unit would, were it a private person, be liable to    In this case the charge asked the jury whether, on the occasion
the claimant according to Texas law.” TEX. CIV. PRAC. &            in question, any of the defendants were engaged in a joint
REM.CODE § 101.021(2). Here the trial court found a waiver         enterprise. The charge defined joint enterprise, tracking the
of sovereign immunity because of the jury's finding that there     four elements that Texas law requires in order to prove a joint
was a joint enterprise. Because the jury found that TxDOT          enterprise. Relying upon that definition, the jury found that
was not individually negligent for a premises defect, TxDOT        TxDOT and Metro were engaged in a joint enterprise. TxDOT
can only be liable if the joint enterprise finding brings the      challenges the finding, however, complaining that there is no
liability within the waiver of sovereign immunity language in      evidence of a community of pecuniary interest and an equal
the Tort Claims Act. Section 101.021(2) waives liability for       right to control the enterprise.
a governmental unit if “the governmental unit would, were it
a private person, be liable to the claimant according to Texas   [8]     [9] We will uphold the jury's findings if there is
law.” We have stated in the context of private parties that “themore than a scintilla of evidence to support them. See
theory of joint enterprise is to make each party thereto the    General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588
agent of the other and thereby to hold each responsible for the (Tex.1999); Continental Coffee Prods. Co. v. Cazarez, 937
negligent act of the other.” Shoemaker v. Estate of Whistler,   S.W.2d 444, 450 (Tex.1996). We turn first to whether there is
513 S.W.2d 10, 14 (Tex.1974). If there is a joint enterprise    any evidence that a community of pecuniary interest existed
here between Metro and TxDOT, and if TxDOT would have           between TxDOT and Metro. In Shoemaker, we noted that
been liable for Metro's negligence had TxDOT been a private     some Texas courts had manifested a broad view of joint
person, then we must conclude that the State has waived its     enterprise beyond a commercial or business purpose. But we
immunity and that TxDOT is liable under the plain meaning       also noted that other courts had limited joint enterprise to
of section 101.021(2).                                          the business context: “[w]hile several courts have embraced
                                                                the ‘community of pecuniary interest’ element set forth in
                                                                the Restatement, others have articulated this element in terms
                      C. Joint Enterprise                       such as a ‘common business purpose,’ a ‘common financial
                                                                interest,’ a ‘common pecuniary objective,’ or a ‘venture for
 [6] [7] Joint enterprise liability makes “each party thereto profit in a financial or commercial sense.’ ” Shoemaker, 513
the agent of the other and thereby to hold each responsible for S.W.2d at 17 (citations omitted). Thus we concluded there
the negligent act of the other.” Shoemaker, 513 S.W.2d at 14.   that, “there is not the same reason for imposing liability in the
In Shoemaker we adopted the definition of joint enterprise as   non-commercial situations which are more often matters for
                                                                friendly or family cooperation and accommodation.” *614


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Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

Shoemaker, 513 S.W.2d at 17. We therefore limited the              by undertaking the activities in this manner. The Transitways
application of joint enterprise to those having a business or      project was not a matter of “friendly or family cooperation
pecuniary interest. See Shoemaker, 513 S.W.2d at 17.               and accommodation” but was instead a transaction by two
                                                                   parties that had a community of pecuniary interest in the
In a more recent case, we held that two men who were killed        purpose. See Shoemaker, 513 S.W.2d at 17. We conclude that
in a car accident while driving to New Mexico to pick up           the evidence produced at trial is some evidence from which
horses owned by one man's father and a family friend were not      the jury could find that TxDOT and Metro were engaged in
involved in a joint enterprise. See Blount v. Bordens, Inc., 910   a community of pecuniary interest in the purpose of the joint
S.W.2d 931, 932 (Tex.1995) (per curiam). The only evidence         enterprise.
that the defense offered in that case to prove a community
of pecuniary interest was the testimony of one man's father         [10] TxDOT also complains that there is no evidence to
that his son would be able to pay some bills after returning       support the jury's conclusion that there was an equal right to
from the trip. See Blount, 910 S.W.2d at 933. We held that this    control the enterprise. In Shoemaker we stated that the equal-
meager circumstantial evidence could give rise to any number       right-to-control element means “that each [participant] must
of inferences, and amounted to no evidence of a community          have an authoritative voice or, ... must have some voice and
of pecuniary interest. See Blount, 910 S.W.2d at 933.              right to be heard.” Shoemaker, 513 S.W.2d at 16.

In this case, however, TxDOT and Metro entered into the            This court has further looked at the equal right to control
Master Agreement. Under the subheading “Use of Facilities”         prong in Triplex Communications, Inc. v. Riley, 900 S.W.2d
the agreement acknowledges that:                                   716 (Tex.1995). In Triplex, one issue, among others, was
                                                                   whether a radio station could be held liable under theories
             the highway facilities upon which                     of joint enterprise for personal injuries resulting from a
             Transitways are constructed are                       nightclub's violations of the Texas Dram Shop Act. The
             under the ultimate control and                        plaintiff's evidence showed that the nightclub ran a promotion
             supervision of the State, however,                    pricing drinks on the night of the injuries to correspond to the
             the parties also acknowledge that                     radio station's FM frequency. It was the nightclub, however,
             the construction, operation, and                      that was licensed to sell the alcohol, controlled how much
             maintenance of Transitways involve                    liquor was served and to whom it was served, decided who
             the investment of substantial sums for                to admit and eject from the club and was in the best position
             mass transit purposes, by METRO                       to monitor the amount of liquor that the patrons consumed.
             and the United States Government;                     See Triplex, 900 S.W.2d at 719. *615 Further, there was
             therefore, the State agrees that it                   no evidence that the radio station had any contractual right
             will exercise its rights of control and               to control or exercised any control over who was served,
             supervision so as to recognize the                    admitted or rejected. See Triplex, 900 S.W.2d at 719. We held
             mass transit purposes of Transitways                  that this amounted to no evidence of an equal right to direct
             throughout their useful lifetime.                     and control the enterprise sufficient to justify the imposition
                                                                   of joint enterprise liability. See Triplex, 900 S.W.2d at 719.
(emphasis added). Further, plaintiffs introduced at trial
a Metro document that states the Transitways program
                                                                   Unlike Triplex, in which there was no contractual right to
has been a joint effort between TxDOT and Metro that
                                                                   control, in this case TxDOT and Metro enjoy contractual
has used federal, state and local funds. These documents
                                                                   rights under the Master Agreement. That agreement states,
provide some evidence that show Metro and TxDOT had
                                                                   “while METRO is the primary agency responsible for the
a community of pecuniary interest in the purpose of this
                                                                   day-to-day operation and maintenance of Transitways, such
joint undertaking. The Master Agreement plainly recognizes
                                                                   Transitways, being part of the controlled-access highways,
that the Transitways project involved substantial sums of
                                                                   impact freeway operation and the State therefore has an
money and contemplated a sharing of resources in order
                                                                   interest and responsibility in the operation and maintenance of
to make better use of this money. It may well have been
                                                                   Transitways.” The Master Agreement, under the subheading
that the monetary and personnel savings produced from this
                                                                   “Use of Facilities,” also acknowledges that “the highway
pooling of resources was substantial. The documents also
                                                                   facilities upon which Transitways are constructed are under
clearly contemplate an economic gain that could be realized


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

the ultimate control and supervision of the State, however, ...                interpret and implement the terms
the State agrees that it will exercise its rights of control and               of Operations Plans; and review
supervision so as to recognize the mass transit purposes of                    Transitway operating procedures,
Transitways throughout their useful lifetime.”                                 rules and regulations established
                                                                               pursuant to Operations Plans. On
TxDOT argues that the Master Agreement gave Metro                              a semi-annual basis, they shall
ultimate day-to-day control of the HOV traffic. Under                          submit a report to METRO's General
the sub-heading “Maintenance of Transitways” the Master                        Manager and the State's District 12
Agreement provides for TxDOT and Metro to “divide the                          Engineer concerning such matters
responsibility for maintenance” of the Transitways. The                        as Transitway *616 vehicle and
paragraphs that follow provide that Metro will maintain                        passenger usage, operating speeds,
numerous items of the Transitways, including the signs,                        accident and incident data, and
control devices, equipment, and illumination devices. Metro                    other matters pertaining to the
also agreed to maintain all park-and-ride or transit center                    safe and effective operations of
facilities, including the pavement, striping, lighting, signing,               Transitways. The reports may also
buildings, sanitary facilities, water, storm sewers, detention                 include recommendations for design
ponds and facilities, telephones, utilities, signals and                       modifications of existing Transitways
landscaping. A later provision of the Master Agreement states                  and suggestions regarding the design
that the Metro Transit Police would assist in the opening and                  of future Transitways.
closing of the lanes as specified in the Master Agreement.
TxDOT argues that these provisions show that Metro had the         Further, Metro and TxDOT had to promulgate an Operations
sole control over the enterprise and that there is no evidence     Plan for each Transitway not less than thirty days prior to
that TxDOT had an equal right to control in the enterprise.        the commencement of operations on any segment of the
                                                                   Transitway, and file the Operations Plan with both agencies.
In essence, TxDOT invites this Court to redefine the scope         Amendments to the Operations Plan could be made only
of its enterprise with Metro by excluding the day-to-day           by the consent of both TxDOT and Metro. The Transitway
maintenance and operation of the Transitways, a duty that          Management Team also developed the Transitway rules and
TxDOT claims belonged to Metro. We decline the invitation          regulations in order to assure safe and effective operation and
for two reasons. First, allowing a member of a joint enterprise    procedures to be implemented by agency personnel as well as
to escape liability to a third party simply by delegating          the Transitways' hours of operation. The team also evaluated
responsibility for the component of the joint enterprise that      the effectiveness of the Transitway traffic control devices
caused the injury to the third party would defeat the theory       and recommended changes needed to further the goals of
of joint enterprise liability. Second, other provisions in the     the Master Agreement. Thus, even though Metro employees
Master Agreement contradict TxDOT's suggestion that it             carried out the procedures of the Transitway Management
did not have control over the maintenance and operation            Team, TxDOT had an equal right to control what those
of the Transitways. While the Master Agreement provides            procedures were and how they were to be carried out. In
that Metro is the primary agency responsible for the day-          other words, TxDOT had a voice and right to be heard
to-day operation and maintenance of the Transitways, the           regarding matters affecting the day-to-day operations of the
agreement also clearly provides that the State, through            Transitways.
TxDOT, has an interest and responsibility in the operation
and maintenance of the Transitways. Additionally, under            This is some evidence to support the jury's finding that
the subheading “Operation of Transitways” the agreement            TxDOT and Metro had the mutual right to control the
provides that TxDOT, through the State Transitway Engineer,        direction and management of the enterprise. Accordingly,
and Metro, through the Transitway Manager, were to serve on        we hold that there is legally sufficient evidence to support
the “Transitway Management Team.” This team was to meet            the jury's finding that a joint enterprise existed between
monthly to:                                                        TxDOT and Metro. Because each party in a joint enterprise
                                                                   is responsible for the negligent act of the other, we conclude
             oversee   Transitway  Operations;
                                                                   that the State has waived immunity and TxDOT is liable
             monitor policies and procedures
             promulgated by Operations Plans;


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            8
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

for Metro's negligence under the plain meaning of section          that he remembered driving outbound on the main lanes of
101.021(2).                                                        U.S. 290 instead of on the HOV lane. Second, the excluded
                                                                   statement was admissible because it challenged the opinion
The Legislature plainly intended the State to waive sovereign      testimony of Dr. Stephen Able, who was an expert witness
immunity if a governmental unit would, were it a private           for the plaintiffs. Third, the statement was admissible as a
person, be liable to the claimant according to Texas law. This     public record under Rule 803(8) of the Texas Rules of Civil
waiver is clear and unequivocal, and makes no exception            Evidence.
for joint enterprise liability. See City of LaPorte v. Barfield,
898 S.W.2d 288, 291 (Tex.1995) (noting that the Legislature         [12]     [13] The inclusion and exclusion of evidence is
must waive sovereign immunity with clear and unambiguous           committed to the trial court's sound discretion. See City of
language). We conclude from the statute's plain meaning that       Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995).
the Legislature intended that a governmental unit enjoying         But even if we assume, for purposes of this decision,
the benefits and advantages of a joint enterprise would also       that the statement was admissible under 803(8) as an
be subject to the same obligations and liabilities that a          exception to the hearsay rule, and that trial court erred in
private person would be if he or she were engaged in a joint       not admitting it, TxDOT still must show that the error was
enterprise.                                                        harmful. See TEX.R.APP. P. 61.1. To put it another way, a
                                                                   successful challenge to evidentiary rulings usually requires
                                                                   the complaining party to show that the judgment turns on the
                                                                   particular evidence excluded or admitted. See Alvarado, 897
                 III. Exclusion of Evidence
                                                                   S.W.2d at 754. TxDOT asserts that the excluded statement
 [11] On the night of the accident, Officer Keele was              probably caused the rendition of an improper verdict because
dispatched to the hospital to take statements from both            it was vital evidence that probably would have convinced
drivers, Huebner and Dr. Able. TxDOT argues that the trial         the jury that Huebner intentionally drove the wrong way on
court erred in excluding Huebner's statements to Officer           the HOV lane on the night of the accident. Further, TxDOT
Keele. During this questioning, Huebner made statements            contends the statement probably would have resulted in a jury
that Officer Keele later included in his supplemental accident     finding that it was Huebner's sole negligence that proximately
report:                                                            caused the accident.

             at first ... he [Huebner] did not                      [14] [15] In determining if the excluded evidence probably
             remember being on the HOV Lane but                    resulted in the rendition of an improper judgment, a court
             remembered being on the feeder road                   must review the entire record. See McCraw v. Maris, 828
             of U.S. 290. He then stated that he                   S.W.2d 756, 758 (Tex.1992); Gee v. Liberty Mut. Fire
             remembered getting on the HOV Lane                    Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). This court
             at Pinemont park and ride and then                    ordinarily will not reverse a judgment for erroneous rulings
             going [westbound or outbound] in the                  on admissibility of evidence when the evidence in question is
             HOV Lane and getting off at [West]                    cumulative and not controlling on a material issue dispositive
             Little York park and ride and as he                   to the case. See Gee, 765 S.W.2d at 396; Reina v. General
             was attempting to exit the park and ride              Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417
             he came to a traffic control gate and                 (Tex.1981). In this case, the jury heard evidence that Huebner
             there was a traffic light on it that was              might have driven outbound on the HOV lane and then shortly
             red and he stopped and then he pulled                 thereafter driven inbound on the same HOV lane, implying
             his vehicle a little closer and the light             that he should have known he was traveling against the traffic.
             turned green and he started to proceed                The jury also heard evidence that Huebner was familiar with
             but did not remember anything after                   the HOV facilities and might have intentionally ignored ramp
             that.                                                 controls.

TxDOT contends that this evidence was admissible for three         In TxDOT's cross examination of Dr. Olin K. Dart, Jr., the
reasons. First, it was a prior inconsistent statement and          plaintiffs' expert consulting traffic engineer, Dr. Dart stated
therefore admissible under Rule 613(a) of the Texas Rules of       that it was possible that Huebner was familiar with the
Civil Evidence because Huebner *617 later testified at trial


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            9
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

Pinemont park-and-ride and that he deliberately disregarded
ramp controls in entering the HOV lane heading inbound,           Q. Okay. And if Jerry Huebner, in fact, was going both
against the flow of the HOV traffic.                                ways on this HOV lane within a matter of minutes, there
                                                                    was no excuse for him having done that, is there, Doctor?
  Q. It was your conclusion, sir, in both of your reports, that
    one of the possibilities for Jerry Huebner entering the       ....
    HOV lane going the wrong way is that he deliberately
                                                                  Q. (By Mr. Garza) If, in fact, he did that?
    disregarded ramp controls; is that right?
                                                                  A. If, in fact, he did that. You would think that he would
  A. That's entirely possible, yes, sir.
                                                                    have understood that.
  ....
                                                                  Q. There would be no excuse for him having done that,
  Q. One of the possibilities that you considered, Doctor,          would there?
    did you consider the possibility that Jerry could have
                                                                  A. That's correct.
    initially gone outbound from Pinemont to West Little
    York and then turned around and come back inbound?            ....

  A. That was in one of his statements, I believe, that's         Q. All right. And so, Doctor, if he intentionally got
    correct.                                                        on this HOV lane knowing that at 10:00 o'clock at
                                                                    night, knowing that at 10:00 o'clock at night, that HOV
  Q. Yes, sir. In fact, you know that Jerry Huebner lives in
                                                                    lane could only be used for outbound traffic and he
    the Pinemont area, don't you?
                                                                    intentionally got on it inbound, there is no excuse for him
  A. That's what he said.                                           having done that, is there?

  Q. And you know that Jerry Huebner is familiar with this        A. That's correct.
    park and ride lot?
                                                                  ....
  A. Apparently so.
                                                                  Q. Let's go through some of this evidence that we've
  Q. Lived in that area for years?                                  discussed today, Doctor. Although, as you tell us today,
                                                                    you have no more idea about how Jerry got on that HOV
  A. Yes.                                                           going the wrong way than anyone else, do you?

 *618 TxDOT's counsel then established that Dr. Dart had          A. That's right.
read and reviewed Huebner's depositions, and again asked
                                                                  Q. Even after readings [sic] Jerry's so-called sworn
about the possibility that Huebner had proceeded outbound
                                                                    testimony about how he now claims it happened, right?
on the HOV lane and then turned around and immediately
proceeded back inbound on the same HOV lane.                      A. He claims he went in through the gate.

  Q. So one possibility is he [Huebner] went outbound             Q. Yes, sir. That's what he claims, right?
    from Pinemont to West Little York and then came back
    inbound; is that correct?                                     A. That's right.

  A. That would be a possibility.                                 Q. And he has given inconsistent stories at different times,
                                                                    hasn't he?
  Q. Within a matter of a few minutes?
                                                                  A. Apparently.
  A. That would be possible.
                                                                  Q. Yes, sir. One of which has included an admission that he
  ....                                                              went both ways on an HOV lane within a few minutes?




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         10
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

Based on the record, we conclude Huebner's statement to
Officer Keele made on the night of the accident, was merely
cumulative of the evidence already in the record and was not
                                                                                                  I
controlling on a material issue dispositive to the case. TxDOT
has failed to show that the excluded evidence probably caused      The jury in this case was asked to determine whether
the rendition of an improper judgment. Thus we conclude            the State's negligence proximately caused the accident in
the trial court's ruling, even if erroneous, did not amount to     question and whether Metro's negligence proximately caused
harmful error.                                                     the accident. The jury answered “no” with regard to the State,
                                                                   but “yes” as to Metro. Thus, the State's direct negligence was
                                                                   submitted to the jury. The Respondents, to whom I will refer
                       IV. Conclusion                              collectively as the Ables, failed to obtain a finding that the
                                                                   State was negligent for its role in operating and maintaining
For the reasons considered above, we hold that there is            the Highway 290 HOV lane.
sufficient evidence to support the jury's finding that TxDOT
and Metro were engaged in a joint enterprise and that the          The Ables nevertheless contend that Metro's negligence
State has waived immunity under section 101.021 of the Tort        should be imputed to the State because, they claim, the
Claims Act. We also hold that it was not harmful error to          State and Metro were engaged in a joint enterprise. A joint
exclude Huebner's statements to Officer Keele. Because of          enterprise necessarily assumes that there are two or more
our disposition we need not address the cross points of error      individuals or distinct entities that are members of a group.
brought by plaintiffs in the court of appeals. Accordingly we      This Court held in Shoemaker v. Estate of Whistler that one of
affirm the judgment of the court of appeals.                       the elements of joint enterprise is that there is an agreement,
                                                                   express or implied, “among the members of the group.” 513
                                                                   S.W.2d 10, 16 (Tex.1974). Although Metro and the State are
                                                                   distinct in the eyes of the law for some purposes, just as a
Justice OWEN filed a dissenting opinion, in which Chief
                                                                   subsidiary corporation is distinct from its parent corporation
Justice PHILLIPS and Justice HECHT joined.
                                                                   in the eyes of the law for most purposes, Metro is part of
                                                                   the State itself. It is a political subdivision of the State. See
 *619 Justice OWEN, joined by Chief Justice PHILLIPS and           Metropolitan Transit Auth. v. Plessner, 682 S.W.2d 650, 651
Justice HECHT, dissenting.                                         (Tex.App.—Houston [1 st Dist.] 1984, no writ).
I cannot join in the Court's opinion or judgment because
it is based on the premise that vicarious liability can be         One element of a tort cause of action based on joint enterprise
imposed on the State of Texas for the negligence of one of         is that the members of the group must have “an equal right to
its political subdivisions under the common-law theory of          a voice in the direction of the enterprise, which gives an equal
joint enterprise. There are two elements of a tort cause of        right of control.” Shoemaker, 513 S.W.2d at 17. The State has
action based on joint enterprise that are not satisfied by the     a superior right of control over its political subdivisions. See
relationship between the State and its political subdivisions      City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex.2000)
when they are providing core governmental functions. One           (stating that a city “derives its existence and powers from
of those elements is that the members of a group must have         legislative enactments and is subject to legislative control”).
an equal voice in the direction of the enterprise which gives      Indeed, the Operations and Maintenance Agreement between
rise to an equal right of control. The other is that there must    the State and Metro expressly recognizes that the State had
be a common pecuniary interest in a commercial setting.            the ultimate control of the HOV lane on which the Ables
Neither of those elements exists when the State is sued for the    were injured. The Operations and Maintenance Agreement
negligence of a state-created transit authority in carrying out    provides in its recitals that the “controlled-access highways ...
day-to-day operations of a highway that runs through a city.       are under the ultimate control and supervision of the State.”
                                                                   Similarly, the Agreement provides in a paragraph entitled
Because the jury in this case failed to find the State negligent   “Use of Facilities” that “the highway facilities upon which
and because joint enterprise is not a viable basis for imposing    Transitways are constructed are under the ultimate control
vicarious liability on the State for the negligence of its         and supervision of the State.” This Court made clear in
political subdivision, I must dissent.                             Triplex Communications, Inc. v. Riley, 900 S.W.2d 716


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Texas Dept. of Transp. v. Able, 35 S.W.3d 608 (2000)
43 Tex. Sup. Ct. J. 1055

(Tex.1995), that even when two separate entities have a
                                                                        In Shoemaker, two owners of an aircraft along with two
common pecuniary interest in a jointly sponsored event, there
                                                                        passengers perished when the plane crashed during a
cannot be a joint venture if one party has a superior *620
                                                                        voluntary search and rescue mission. Id. at 11–12. This Court
right of control. In that case, the Court stressed no less than
                                                                        held that although the two owners had “a joint interest in the
three times that the right to control was not equal. See id. at
                                                                        purposes of the enterprise and an equal right of control,” that
718–19. The Court held in Triplex that the owner of a bar had
                                                                        was not enough to impute the negligence of the pilot-owner to
a greater right of control over the serving of alcohol than the
                                                                        the passenger-owner. Id. A pecuniary interest in the purpose
radio station that highly publicized and co-sponsored “Ladies
                                                                        of the enterprise was lacking. See id.
Night” at the bar. Id.

                                                                        In the case before the Court today, the purpose of the
In the case before us today, the jury has decided that the State,
                                                                        Operations and Maintenance Agreement is to provide streets
which had the superior right of control, was not liable, but that
                                                                        and highways for the citizens of Houston and of this state.
Metro, which had some right of control but not an equal one,
                                                                        While the State and Metro spend millions of dollars providing
was negligent. The overlay of joint venture liability does not
                                                                        that service, they have no pecuniary interest in the purpose
fit the facts of this case.
                                                                        of the enterprise. They do not provide the service in order to
                                                                        benefit financially. They are providing a core governmental
                                                                        function. Their public service is no different from the public
                               II                                       service that was at issue in Shoemaker, which was a civil air
                                                                        patrol. Id. at 12.
Another element of a joint venture that is absent in this
case is a pecuniary interest in the common purpose of a
venture. Over twenty-five years ago, this Court reassessed
the requirements for establishing a joint enterprise in the                                        *****
common-law tort context. See Shoemaker, 513 S.W.2d at 10.
                                                                        Because Metro is a political subdivision of the State, because
We disavowed earlier decisions that had held that a joint
                                                                        there is not an equal right of control, and because the State has
enterprise could be established merely by a showing that
                                                                        no pecuniary interest in the purpose of providing, operating,
there was joint ownership of an instrumentality or property
                                                                        and maintaining public highways, the State should not be
involved in an injury. See id. at 16–17. We also disavowed
                                                                        vicariously liable under a joint venture theory. Accordingly,
earlier decisions that had imposed liability when there was no
                                                                        I dissent.
pecuniary interest in the common purpose. See id. The Court
stressed in Shoemaker that tort liability for a joint venture
would henceforth arise only in commercial situations. Id. at
                                                                        All Citations
17. Providing, operating, and maintaining public highways is
not a commercial enterprise.                                            35 S.W.3d 608, 43 Tex. Sup. Ct. J. 1055

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 12
Thompson v. Ricardo, 269 S.W.3d 100 (2008)




                                                                          1 Cases that cite this headnote
                     269 S.W.3d 100
                 Court of Appeals of Texas,
                   Houston (14th Dist.).                            [3]   Appeal and Error
                                                                              Effect of Delay or Lapse of Time in
            Jack W. THOMPSON, Appellant                                   General
                        v.                                                Under the mootness doctrine, when there ceases
       David RICARDO & Kara K. Peak, Appellees.                           to be a controversy between the litigating parties
                                                                          due to events occurring after the trial court has
       No. 14–07–00333–CV.            |    Aug. 26, 2008.                 rendered judgment, the decision of an appellate
                                                                          court would be a mere academic exercise, and the
Synopsis
                                                                          court may not decide the appeal.
Background: Judgment debtor filed declaratory judgment
action, asserting that real property that was sold at constable's         Cases that cite this headnote
sale to satisfy judgment was homestead property. Judgment
creditor and purchaser of property filed motion for sanctions
against judgment debtor and attorney, alleging that action          [4]   Action
was frivolous. Following a hearing, the 164th District Court,                  Moot, Hypothetical or Abstract Questions
Harris County, Martha Hill Jamison, J., granted motion.                   If a judgment cannot have a practical effect on an
Attorney appealed.                                                        existing controversy, the case is moot.

                                                                          4 Cases that cite this headnote

[Holding:] The Court of Appeals, Wanda McKee Fowler, J.,
held that appeal was moot.                                          [5]   Appeal and Error
                                                                             Want of Actual Controversy
                                                                          When a judgment cannot have a practical effect
Order vacated in part; motion for sanctions dismissed in part.            on an existing controversy, an appellate court is
                                                                          required under the mootness doctrine to vacate
Kem Thompson Frost, J., filed dissenting opinion.                         the judgment of the trial court and dismiss the
                                                                          underlying cause of action.

                                                                          4 Cases that cite this headnote
 West Headnotes (9)

                                                                    [6]   Appeal and Error
 [1]     Constitutional Law                                                  Want of Actual Controversy
             Advisory Opinions
                                                                          To invoke the collateral-consequences exception
         Neither the Texas Constitution nor the Texas                     to the mootness doctrine, appellant was required
         Legislature has vested the Court of Appeals                      to show (1) a concrete disadvantage resulted
         with the authority to render advisory opinions.                  from the judgment, and (2) the disadvantage
         Vernon's Ann.Texas Const. Art. 2, § 1.                           would persist even if the judgment was vacated
                                                                          on appeal and the case was dismissed as moot.
         1 Cases that cite this headnote
                                                                          Cases that cite this headnote
 [2]     Action
              Moot, Hypothetical or Abstract Questions              [7]   Appeal and Error
         Mootness doctrine limits courts to deciding cases                   Want of Actual Controversy
         in which an actual controversy exists between the                “Capable of repetition yet evading review”
         parties.                                                         exception to the mootness doctrine applies where



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Thompson v. Ricardo, 269 S.W.3d 100 (2008)


        the challenged act is of such short duration            section 41.001 of the Texas Property Code. Appellees David
        that the appellant cannot obtain appellate review       Ricardo and Kara K. Peak filed a motion for sanctions under
        before the issue becomes moot.                          Rule 13 of the Texas Rules of Civil Procedure, (1) alleging
                                                                that Thompson filed a groundless pleading and (2) requesting
        1 Cases that cite this headnote                         that the trial court hold Koestens and Thompson jointly and
                                                                severally liable for attorney's fees, for the amounts due on the
 [8]    Appeal and Error                                        notes payable on two deeds of trust granted on the Property,
           Want of Actual Controversy                           and for punitive damages. The trial court granted the motion
                                                                for sanctions, but instead of imposing a monetary sanction
        “Collateral consequences” exception to
                                                                on Thompson, the court ordered him to “take all actions
        mootness doctrine is invoked only under narrow
                                                                necessary to release any and all liens on the Property on
        circumstances, when vacating the underlying
                                                                or before January 31, 2007.” Thompson then brought this
        judgment will not cure the adverse consequences
                                                                appeal.
        suffered by the party seeking to appeal that
        judgment.
                                                                Factual and Procedural Background
        Cases that cite this headnote
                                                                According to the parties' pleadings, Ricardo was the plaintiff
                                                                in a prior lawsuit against Koestens and her business, Niki's
 [9]    Appeal and Error                                        Auto Shop & Repair. On March 31, 2005, Ricardo obtained
           Want of Actual Controversy                           an agreed judgment against Koestens and her business
        Appeal of trial court's order that granted motion       in the amount of $64,320.00. Constable Jack W. Abercia
        for sanctions under rule governing filing of            subsequently levied on a parcel of real property owned by
        frivolous actions and that required appellant, as a     Koestens (“the Property”), which was thereafter sold at a
        sanction, to take all actions necessary to release      Constable's sale to Peak.
        any and all liens on real property at issue in action
        was moot; appellant had completed all actions           Nearly two months later, Koestens filed a declaratory
        specified in order. Vernon's Ann.Texas Rules            judgment action against appellees and Constable Abercia,
        Civ.Proc., Rule 13.                                     seeking to have the Property declared her homestead under
                                                                Article XVI, section 50 of the Texas Constitution and
        1 Cases that cite this headnote                         section 41.001 of the Texas Property Code. In addition,
                                                                Koestens sought to have the Constable's sale set aside and the
                                                                Constable's Deed declared a nullity, and requested injunctive
                                                                relief to prevent appellees from evicting her from the
Attorneys and Law Firms                                         Property. Koestens further sought to recover damages from
                                                                appellees for “abuse of process, negligent and intentional
*101 Travis Thompson, Houston, TX, for appellants.              infliction of emotional distress, conversion, common law
                                                                tortious collection practices, and constructive fraud,” as
Mark Taboada and Jack W. Thompson, Houston, TX, for
                                                                well as punitive damages and attorney's fees. Thompson
appellees.
                                                                represented Koestens in both the prior lawsuit and in the
 *102 Panel consists of Justices FOWLER, FROST, and             declaratory judgment action.
SEYMORE.
                                                                Appellees thereafter filed a motion for sanctions against
                                                                Koestens and Thompson under Rule 13 of the Texas
                  MAJORITY OPINION                              Rules of Civil Procedure. Appellees alleged that Koestens's
                                                                answers to an oral deposition in the prior lawsuit directly
WANDA McKEE FOWLER, Justice.                                    contradicted statements contained in the petition filed in the
                                                                declaratory judgment action and contradicted her affidavit
Attorney Jack W. Thompson represented Niki Koestens in          filed in response to appellees' motion for summary judgment.
a legal proceeding to have property declared her homestead      Appellees argued that Koestens's prior deposition testimony
under Article XVI, section 50 of the Texas Constitution and     supported only the conclusion that she had abandoned


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Thompson v. Ricardo, 269 S.W.3d 100 (2008)


the Property, and that her declaratory judgment action              order entered by the trial court, “the action [he] was trying
was therefore groundless. Appellees further alleged that            to prevent from happening has already happened.” We agree
Thompson was present and participated in this deposition,           with appellees that Thompson has completed the actions
that he was aware of the facts stated in the deposition, and that   specified in the trial court's order, and that his appeal is
he therefore knew (1) Koestens's pleading in the declaratory        moot. Accordingly, without reference to the merits, we vacate
judgment action was groundless when it was filed; and (2)           that portion of the trial court's order requiring Thompson to
the facts contained in Koestens's sworn affidavit were false        “take all actions necessary to release any and all liens on the
when it was filed. Appellees requested that the trial court         Property on or before January 31, 2007,” and we dismiss the
hold Koestens and Thompson jointly and severally liable for         motion for sanctions as to Thompson.
attorney's fees, the amounts due on the notes payable on two
deeds of trust that had been granted *103 on the Property, 1
                                                                    Analysis
and punitive damages.
                                                                    A. The Mootness Doctrine
Koestens later nonsuited her declaratory judgment action.            [1] [2] [3] [4] [5] [6] [7] [8] Neither the Texas
The trial court subsequently conducted a hearing on                 Constitution nor the Texas Legislature has vested this Court
appellees' motion for sanctions, and ultimately granted the         with the authority to render advisory opinions. See TEX.
motion. However, instead of imposing the specific sanctions         CONST. art. II, § 1; see also Camarena v. Tex. Employment
requested by appellees, the trial court ordered Koestens to         Comm'n, 754 S.W.2d 149, 151 (Tex.1988). The mootness
pay Ricardo $15,000 no later than January 31, 2007. The trial       doctrine limits courts to deciding cases in which an actual
court further ordered Koestens and Thompson to “take all            controversy exists between the parties. Fed. Deposit Ins.
actions necessary to release any and all liens on the Property      Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994).
on or before January 31, 2007.” Only Thompson appealed.             When there ceases to be a controversy between the litigating
                                                                    parties due to events occurring after the trial court has
                                                                    rendered judgment, the decision of an appellate court would
Issues on Appeal
                                                                    be a mere academic exercise, and the court may not decide
In six issues, Thompson contends that the trial court erred
                                                                    the appeal. See Olson v. Comm'n for Lawyer Discipline,
in granting appellees' motion for sanctions. Essentially,
                                                                    901 S.W.2d 520, 522 (Tex.App.-El Paso 1995, no writ).
Thompson complains that the trial court failed to comply
                                                                    Stated differently, if a judgment cannot have a practical effect
with the requisites of Rule 13 of the Texas Rules of Civil
                                                                    on an existing controversy, the case is moot. Id. In *104
Procedure, because the trial court (1) sanctioned him while
                                                                    that situation, the appellate court is required to vacate the
finding that the underlying suit was not groundless; (2)
                                                                    judgment of the trial court, and dismiss the underlying cause
sanctioned him in such vague and ambiguous terms that its
                                                                    of action. See Speer v. Presbyterian Children's Home & Serv.
order is unenforceable and void; (3) failed to state good cause
                                                                    Agency, 847 S.W.2d 227, 228 (Tex.1993); see also Gen. Land
for sanctions in its order; and (4) failed to identify specific
                                                                    Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990)
acts or omissions which served as the basis for sanctions in
                                                                    (stating that if no controversy continues to exist between
its order. Thompson further contends that, at the hearing on
                                                                    the parties, the appeal is moot and the court of appeal must
appellees' motion for sanctions, the trial court refused him the
                                                                    dismiss the cause); Guajardo v. Alamo Lumber Co., 159 Tex.
opportunity to testify or otherwise address the court on his
                                                                    225, 317 S.W.2d 725, 726 (1958) (explaining that when a case
own behalf, and that this refusal constitutes a denial of due
                                                                    becomes moot on appeal, all previous orders are set aside by
process. Finally, Thompson asserts that, because the record
does not support a finding of “conscious doing of wrong,”           the appellate court and the case is dismissed). 2
or support a finding that he “took actions for the purposes
of annoying, threatening, or verbally abusing” appellees, the       This Court has previously held that a party's completion of the
trial court erred in finding that he acted in bad faith and for     actions specified in a trial court's sanctions order renders his
the purposes of harassment.                                         appeal of that sanctions order moot. See Barrera v. State, 130
                                                                    S.W.3d 253, 260 (Tex.App.-Houston [14th Dist.] 2004, no
In contrast, appellees assert, among other things, that             pet) (citing Highland Church of Christ v. Powell, 640 S.W.2d
Thompson's appeal is moot. Specifically, appellees argue            235, 235 (Tex.1982)). Therefore, we will examine whether
that, because Thompson has fully complied with the sanctions        Thompson has completed the actions specified in the trial
                                                                    court's order, thereby rendering his appeal of this issue moot.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Thompson v. Ricardo, 269 S.W.3d 100 (2008)


                                                                     necessary to release any and all liens on the Property on
                                                                     or before January 31, 2007,” and dismiss the motion for
B. Thompson Has Completed The Actions Specified In                   sanctions as it relates to Thompson.
The Trial Court's Order
 [9] From our review of the record, it is evident that
Thompson has completed the actions specified in the trial
court's order. As noted above, the trial court ordered               FROST, J., dissenting.
Thompson to “take all actions necessary to release any and
all liens on the Property on or before January 31, 2007.”            KEM THOMPSON FROST, Justice, dissenting.
There were two liens on the Property—one in the amount               Appellant Jack W. Thompson, the attorney who represented
of $15,000, and a second in the amount of $10,000—both               plaintiff Niki Koestens *106 in her suit in the trial court
granted to Kubosh Bail Bonds, and a notice of lis pendens            against appellees/defendants David Ricardo and Kara K.
filed by Koestens. Thompson himself prepared releases for            Peak, challenges the trial court's sanction ordering him to
both liens and for the notice of lis pendens; 3 the release          “take all actions necessary to release any and all liens on
for the notice of lis pendens was executed by Koestens on            the Property on or before January 31, 2007.” 1 Rather than
December 28, 2006, and *105 the release for the $15,000              address the merits, the majority concludes that this appeal
lien was executed by Paul A. Kubosh, on behalf of Kubosh             is moot because Thompson has completed all the actions
Bail Bonds, on January 23, 2007. And, on February 1, 2007,           specified in the trial court's order. However, the evidence
Thompson submitted to the Harris County Clerk the releases           upon which the majority relies shows otherwise. In addition,
that had been executed by Koestens and Kubosh, along with            this court's action on the merits of this appeal could affect
the required filing fee.                                             the rights of the parties, and therefore, this case is not moot.
                                                                     Instead of dismissing this appeal based on mootness, this
The record further reveals that Kubosh executed a release for        court instead should reach the merits and rule on the propriety
the $10,000 lien on June 15, 2007. 4 Furthermore, on July 25,        of the sanction against Thompson.
2007, appellees filed in the trial court a “Notice of Sale Of
Real Property Subject Of Lawsuit,” in which they notified the
trial court that (1) the Property had been sold to a disinterested
                                                                                       The appeal is not moot.
third party; and (2) the Property was free from liens at the time
of sale. Therefore, because the trial court's sanctions order        When Picardo and Peak moved for sanctions under Texas
required Thompson to take all necessary actions to release           Rule of Civil Procedure 13, Koestens nonsuited her claims.
any and all liens on the Property, and because the Property          After a hearing, the trial court signed an order sanctioning
was sold to a disinterested third party—and was free from            Koestens and Thompson. The only Rule 13 sanction imposed
liens at the time of sale—the record indicates that Thompson         on Thompson was the trial court's order that Thompson
has completed the actions specified in the trial court's order.      “take all actions necessary to release any and all liens on
His appeal is therefore moot. Accordingly, without reference         the Property on or before January 31, 2007.” The majority
to the merits, we vacate that portion of the trial court's           concludes that Thompson has completed all the actions
order requiring Thompson to “take all actions necessary to           specified in the trial court's order and, for this reason, his
release any and all liens on the Property on or before January       appeal is now moot.
31, 2007,” and we dismiss the motion for sanctions as to
Thompson. 5                                                          To complete the actions specified in the sanctions order,
                                                                     Thompson had to take all actions necessary to release all liens
                                                                     on the real property in question on or before January 31, 2007.
                                                                     The evidence shows the following relevant facts regarding the
                          Conclusion
                                                                     trial court's sanctions order and Thompson's compliance with
Because we find that Thompson has completed the actions              it:
specified in the trial court's order imposing sanctions under
                                                                       • The trial court signed its sanctions order on December 14,
Rule 13, we conclude that his appeal is moot. Therefore,
                                                                          2006.
without reference to the merits, we vacate that portion of the
trial court's order requiring Thompson to “take all actions


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Thompson v. Ricardo, 269 S.W.3d 100 (2008)


                                                                   from injunction was not moot because, if the injunction
  • On or before December 26, 2006, Thompson drafted two           was valid, then the appellants were subject to being held in
     two-page documents to release the First Lien and the          contempt). For this reason alone, this appeal is not moot.
     Second Lien, and he also prepared a letter to his client
     Koestens, dated December 26, 2006, asking her to take         Furthermore, an appeal is generally not moot unless the
     these releases to the lienholder to have them executed.       appellate court's action on the merits cannot affect the rights
                                                                   of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83,
  • Koestens picked up the letter and the lien releases on
                                                                   84 (Tex.1993). In response to Ricardo and Peak's argument
    December 26, 2006.
                                                                   that this appeal is moot, Thompson has asserted that Ricardo
  • On January 23, 2007, the lienholder on the First Lien          and Peak have sued him in a separate action that is pending
    signed a release of that lien.                                 at the district court level and that the Rule 13 sanctions order
                                                                   that Thompson challenges in this appeal is serving as the
  • On February 1, 2007, Thompson mailed the release of the        underlying basis for Ricardo and Peak's claims against him
     First Lien to the Harris County Clerk for recording in the    in that case. Though Thompson has not provided this court
     Real Property Records.                                        with pleadings for the other suit, he has provided this court
                                                                   with the cause number, and Ricardo and Peak have not denied
  • On June 15, 2007, the lienholder on the Second Lien            or taken issue with Thompson's description of that litigation.
    signed a release of that lien, and this release was recorded   If this court were to conclude that the trial court abused its
    in the Harris County Real Property Records on June 18,         discretion by sanctioning Thompson and vacate the sanctions
    2007.                                                          order on the merits, Ricardo and Peak would not be able to
                                                                   rely on this order in their suit against Thompson. Therefore,
If the trial court's sanctions order required Thompson to          this court's action on the merits of this appeal can affect the
take all actions necessary to have releases of the liens both      rights of the parties, and for this additional reason, this case is
executed and recorded on or before January 31, 2007, then          not moot. See VE Corp., 860 S.W.2d at 84; San Saba Energy,
Thompson did not complete all the actions specified therein        L.P. v. Crawford, 171 S.W.3d 323, 332 (Tex.App.-Houston
because that task was not accomplished until many months           [14th Dist.] 2005, no pet.).
after the trial court's deadline. Neither release of lien was
recorded on or before the deadline, and no evidence suggests       The majority states that, because Ricardo and Peak assert in
Thompson did all he could do or that was necessary to get the      this court that Thompson has complied with the sanctions
liens released within the time frame ordered by the trial court.   order, they will be estopped from seeking contempt in the trial
For example, the trial court might conclude that Thompson          court below or from relying on the order in other proceedings.
could have drafted the releases in fewer than 12 *107 days,        However, this court cannot make a binding ruling on this
that he could have presented the releases to the lienholder        estoppel issue in the instant appeal. In addition, the trial
rather than delegating that task to Koestens, and that he could    court is charged with seeing that its orders and judgments
have followed up with the lienholder and endeavored to meet        are obeyed, enforced, and executed. See TEX.R. CIV. P. 308.
the deadline. In any event, even if the order only required that   Even if Ricardo and Peak were estopped from arguing that
the releases be executed (and not recorded) by the lienholder      Thompson should be held in contempt, the trial court has the
by January 31, 2007, the release for the Second Lien was not       authority to issue a show cause order on its own motion and
signed until June 15, 2007, four-and-a-half months after the       determine whether Thompson should be held in contempt,
deadline.                                                          even without any action by Ricardo and Peak. See Dallas
                                                                   County v. Mays, 747 S.W.2d 842, 844–45 (Tex.App.-Dallas
Presuming that this appeal would be moot if Thompson had           1988), rev'd in part on other grounds by, Mays v. Fifth Court
completed all the actions specified in the trial court's order,    of Appeals, 755 S.W.2d 78 (Tex.1988). Thus, the application
there is no evidence that Thompson completed the required          of estoppel principles does not render Thompson's appeal of
actions. The trial court still has the power to hold Thompson      the sanctions order moot.
in contempt for violating this order by not completing the
tasks within the time ordered by the court. See Cool World         For these reasons, this court should not dismiss this appeal.
and Can, Inc. v. State, No. 01–01–00966–CV, 2002 WL                Instead, the court should address the merits of the Rule 13
31319965, at *2 (Tex.App.-Houston [1st Dist.] Oct. 17, 2002,
no pet.) (not designated for publication) (holding that appeal


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
Thompson v. Ricardo, 269 S.W.3d 100 (2008)



 *108 sanctions issues. Because it does not, I respectfully
                                                                    All Citations
dissent.
                                                                    269 S.W.3d 100



Footnotes
1      The record indicates that Koestens granted two deeds of trust on the Property to Kubosh Bail Bonds to secure payment
       on two notes: one in the amount of $15,000, and a second in the amount of $10,000.
2      The Texas Supreme Court has recognized two exceptions to the mootness doctrine, neither of which apply here: (1) the
       “capable of repetition yet evading review exception”; and (2) the “collateral consequences exception.” See Gen. Land
       Office, 789 S.W.2d at 571. The former applies where the challenged act is of such short duration that the appellant cannot
       obtain review before the issue becomes moot, and has only been used to challenge unconstitutional acts performed by
       the government. Id. The latter is invoked only under narrow circumstances, when vacating the underlying judgment will
       not cure the adverse consequences suffered by the party seeking to appeal that judgment. Marshall v. Hous. Auth. of City
       of San Antonio, 198 S.W.3d 782, 789 (Tex.2006). In order to invoke the collateral consequences exception, Thompson
       must show (1) a concrete disadvantage resulted from the judgment; and (2) the disadvantage will persist even if the
       judgment is vacated and the case dismissed as moot. Id. Thompson does not contend that either exception applies to the
       present appeal, nor does he attempt to demonstrate (1) a concrete disadvantage resulted from the trial court's judgment;
       or (2) he will continue to suffer any adverse consequences if the judgment below is vacated and the cause dismissed
       as moot. Therefore, neither exception applies to this appeal.
3      There is additional evidence that Thompson himself took actions to comply with the trial court's sanctions order.
       Apparently, Thompson also authored a letter to Koestens, dated December 26, 2006, in which he (1) explains the practical
       effect of the trial court's sanctions order; (2) instructs her to execute the release of the notice of lis pendens, and to have
       Mr. Kubosh execute the releases of liens; and (3) requests that she “take care of these matters right away.” This letter,
       attached as Exhibit A to appellees' “Partial Withdrawal Of Motion For Enforcement Of Orders And Request To Cancel
       Hearing,” is present in appellees' brief, but is absent from the Clerk's Record. However, in their “Request To Supplement
       Record For Appeal,” filed on July 9, 2007, appellees specifically requested that Exhibit A be included in the record, and
       Thompson does not challenge the authenticity of the letter included in appellees' brief.
4      The release for the $10,000 lien that was actually executed by Kubosh was prepared by attorney Stephen Best. It is not
       apparent on the face of the record why Kubosh did not execute the release prepared by Thompson for this particular lien,
       and the parties make no attempt to otherwise explain this occurrence in their briefs.
5      Thompson contends that his appeal is not moot, because (1) the trial court's order on sanctions is still in effect; (2) there
       has not been a court determination as to the completion of its vague terms; (3) the potential danger posed to him by
       the order still exists; and (4) the trial court's order is serving as the underlying basis for a malpractice suit by appellees
       currently pending. To the extent that this can be construed as an attempt to invoke the collateral consequences exception
       to the mootness doctrine, we have two responses. See Marshall, 198 S.W.3d at 789. First, we have vacated that portion
       of the order requiring Thompson to remove the liens and have dismissed the motion for sanctions as to Thompson.
       As a result, nothing remains in the trial court for the appellees or the court to rely on for further contempt proceedings
       against Thompson. Second, appellees—the parties who brought the motion for sanctions in the trial court—claim on
       appeal that the appeal is moot by pointing out that Thompson has complied with the order. They would be estopped from
       taking a contrary position below, or for all practical purposes would have problems taking a contrary position below. See
       Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 429 (Tex.App.-Texarkana, 2008, no pet. h.) (citing Lopez v. Munoz,
       Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000)) (stating that the doctrine of quasi-estoppel precludes a party
       from asserting, to another's disadvantage, a right inconsistent with a position previously taken, and explaining that “[t]he
       doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which
       he or she acquiesced, or from which he or she accepted a benefit.”).
1      There was a lien on this property in the original principal amount of $15,000 (hereinafter “First Lien”) as well as a lien on
       the property in the original principal amount of $10,000 (hereinafter “Second Lien”).


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Till v. Thomas, 10 S.W.3d 730 (1999)


                                                                      to support the finding, and then determine, in
                                                                      light of the entire record, whether the finding
                     10 S.W.3d 730
                                                                      is so contrary to the overwhelming weight and
                Court of Appeals of Texas,
                                                                      preponderance of the evidence as to be clearly
                  Houston (1st Dist.).
                                                                      wrong and manifestly unjust.
                  Glenn TILL, Appellant,
                                                                      Cases that cite this headnote
                            v.
            Lora Williams THOMAS and Ennis
             Inc. d/b/a Quik Park, Appellees.                   [3]   Appeal and Error
                                                                         Manifest weight of evidence
       No. 01–98–00678–CV.          |   Dec. 16, 1999.                When reviewing whether a jury finding is
                                                                      so contrary to overwhelming weight and
Bus driver brought negligence action against van driver and
                                                                      preponderance of the evidence as to be clearly
her employer for injuries allegedly resulting from vehicle
                                                                      wrong and manifestly unjust, Court of Appeals
accident. The 281st Judicial District Court, Harris County,
                                                                      cannot reverse merely because it concludes
William F. Bell, J., entered take-nothing judgment based on
                                                                      that the evidence preponderates toward an
jury verdict. Bus driver appealed. The Court of Appeals,
                                                                      affirmative answer.
Frank C. Price, J. (Assigned), held that: (1) van driver's
admission that she misjudged distance between van and bus,            Cases that cite this headnote
in and of itself, did not show that van driver was negligent;
(2) bus driver did not prove accident was proximate cause of
                                                                [4]   Appeal and Error
back injuries; and (3) Court could not appraise assignment
                                                                           Great or overwhelming weight or
of error based on admission of testimony regarding matters
                                                                      preponderance
not disclosed in discovery when bus driver failed to include
interrogatories and answers in record.                                In reviewing a challenge that jury finding
                                                                      is against great weight and preponderance of
Affirmed.                                                             evidence, Court of Appeals cannot substitute its
                                                                      opinion for that of the trier of fact and determine
                                                                      that it would reach a different conclusion.

 West Headnotes (19)                                                  Cases that cite this headnote


 [1]    Appeal and Error                                        [5]   Negligence
             Great or overwhelming weight or                              Happening of accident or injury
        preponderance                                                 Occurrence of an accident or a collision is not of
        When a party attacks a jury finding concerning                itself evidence of negligence.
        an issue upon which he had the burden of proof,
                                                                      2 Cases that cite this headnote
        he must demonstrate that the adverse finding is
        against the great weight and preponderance of
        the evidence.                                           [6]   Automobiles
                                                                          Care required and liability in general
        Cases that cite this headnote
                                                                      Automobiles
                                                                          Proximate Cause of Injury
 [2]    Appeal and Error                                              To prevail on negligence claim arising out of
           Manifest weight of evidence                                automobile accident, bus driver had to prove
        In reviewing a challenge that a jury finding is               specific acts of negligence on the part of the other
        against the great weight and preponderance of                 driver and also prove that the accident was the
        the evidence, the Court of Appeals must examine               proximate cause of his injuries.
        the record to determine if there is some evidence


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Till v. Thomas, 10 S.W.3d 730 (1999)


                                                                    to cause and probably did cause the rendition of
        Cases that cite this headnote                               an improper judgment.

                                                                    Cases that cite this headnote
 [7]    Automobiles
            Care Required and Negligence
        Automobiles                                          [11]   Appeal and Error
            Proximate Cause of Injury                                  Evidence in General
        Whether the plaintiff alleging negligence                   Appeal and Error
        resulting in automobile accident succeeds in                   Prejudicial Effect
        proving negligence and proximate cause by a                 In appeal of judgment based on an error of the
        preponderance of the evidence is within the jury's          trial court in admitting or excluding evidence, the
        province to determine.                                      appellate court must examine the entire record
                                                                    to determine whether the disputed evidence
        2 Cases that cite this headnote                             controlled the judgment.

                                                                    Cases that cite this headnote
 [8]    Automobiles
            Passing vehicle parked or standing
        Van driver's admission that she misjudged            [12]   Appeal and Error
        distance between van and bus due to overhang                   Briefs
        on van's door, in and of itself, did not show that          Court of Appeals cannot consider documents
        van driver was negligent with regard to overhang            attached to an appellate brief that do not appear
        hitting bus' left side mirror as van passed parked          in the record.
        bus, where van driver testified that she was not
        speeding and was not in any type of hurry, and              51 Cases that cite this headnote
        that she saw bus and attempted to avoid it.
                                                             [13]   Appeal and Error
        Cases that cite this headnote
                                                                       Briefs
                                                                    Court of Appeals must hear and determine a case
 [9]    Automobiles                                                 on the record as filed, and it may not consider
            Vehicles at rest or unattended                          documents attached as exhibits to briefs.
        Injured bus driver did not prove that accident
        with van driver was proximate cause of his back             46 Cases that cite this headnote
        injuries, where there was ample testimony from
        bus driver's doctor that back surgery had been       [14]   Appeal and Error
        recommended before accident.                                   Contents of documents omitted from record

        Cases that cite this headnote                               Court of Appeals could not appraise bus driver's
                                                                    assignment of error that trial court erred in
                                                                    admitting expert testimony regarding matters
 [10]   Appeal and Error                                            not disclosed by van driver in interrogatory
           Evidence in General                                      responses in suit brought by bus driver against
        Appeal and Error                                            van driver for negligence allegedly resulting in
           Prejudicial Effect                                       vehicle accident, and thus Court had to presume
        To obtain reversal of a judgment based upon an              that proceedings and judgment below were
        error of the trial court in admitting or excluding          regular and correct, where bus driver did not
        evidence, appellant must show: (1) the trial court          include interrogatories and answers in record.
        erred, and (2) the error was reasonably calculated
                                                                    2 Cases that cite this headnote




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Till v. Thomas, 10 S.W.3d 730 (1999)


                                                                       limine, where bus driver's attorney did not state
 [15]   Appeal and Error                                               grounds for objection or explain for what type of
           Contents of documents omitted from record                   “motion” he was moving.
        Court of Appeals must presume documents
        missing from record would sustain trial court's                Cases that cite this headnote
        ruling.

        5 Cases that cite this headnote
                                                              Attorneys and Law Firms
 [16]   Appeal and Error
                                                              *732 William Chu, Addison, for Appellant.
           Briefs
        Attachment of documents as exhibits or                Erin E. Lunceford, Houston, for Appellees.
        appendices to briefs is not a formal inclusion in
        the record on appeal and, thus, the documents         Panel consists of Justices O'CONNOR, HEDGES, and
        cannot be considered.                                 PRICE. *

        33 Cases that cite this headnote                      *      The Honorable Frank C. Price, former Justice, Court of
                                                                     Appeals, First District of Texas at Houston, participating
                                                                     by assignment.
 [17]   Appeal and Error
           Necessity of timely objection
        Appeal and Error
           Nature of evidence in general                                                OPINION
        Appeal and Error
                                                              FRANK C. PRICE, Justice (Assigned).
           Sufficiency and scope of motion
        To have preserved error in trial court's failure      Appellant, Glenn Till, drove a bus full of people from the
        to declare mistrial after jury heard irrelevant       economy parking lot at Bush Intercontinental Airport. He was
        and prejudicial evidence, injured bus driver must     parked in front of the terminal when his bus was struck by a
        have made valid, timely, and specific request,        van operated by appellee, Lora Williams Thomas, who was
        motion, or objection. Rules App.Proc., Rule 33.       driving a shuttle for Quik–Park. Till appeals a take-nothing
                                                              judgment based on the jury's verdict. We affirm.
        Cases that cite this headnote


 [18]   Appeal and Error                                                              Fact Summary
           Conduct of trial or hearing in general
        Trial court's denial of a motion for mistrial will    On December 23, 1993, Thomas approached the terminal
        not be disturbed on appeal except on a showing        with a van full of holiday travelers. She was driving up the
        of an abuse of discretion.                            ramp and noticed Till's City of Houston bus. As she drove
                                                              past the bus, the overhang over her door hit Till's left side
        9 Cases that cite this headnote                       mirror. She testified she could not stop at that point to survey
                                                              the damage, because she would be blocking the entrance to
                                                              the terminal. She called the Quik Park dispatcher and circled
 [19]   Trial
                                                              around the terminal and came back to the scene. Thomas was
             Requisites and sufficiency
                                                              not injured, and she over-heard Till tell the police he was
        Trial court did not abuse its discretion failing      not injured. The investigating police officer's accident report
        to declare mistrial in injured bus driver's suit      reflects there were no injuries.
        against van driver for injuries allegedly sustained
        in accident, even though bus driver argued            Peggy Kellum, the manager for Quik Park, testified the only
        that testimony of doctor violated motion in           damage to Thomas's van was a scrape which was removed



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Till v. Thomas, 10 S.W.3d 730 (1999)


with Compound W. There was no expense associated with the         prove specific acts of negligence on the part of the driver
repair of the Quik Park van.                                      and must also prove proximate cause. Smith, 774 S.W.2d at
                                                                  412. Whether the plaintiff succeeds in proving negligence and
Till sued Thomas and Quik Park, alleging that Thomas's            proximate cause by a preponderance of the evidence is then
negligence proximately caused his need for back fusion            within the jury's province to determine. Id.
surgery. At trial, Thomas presented evidence from Till's
neurosurgeon, David Baskin, M.D., that Till had been               [8] While it is true Thomas admitted she misjudged the
advised, before the accident, he needed back surgery.             distance due to the overhang on the door, this admission, in
Dr. Baskin also referred Till to a psychiatrist for pain          and of itself, does not constitute negligence. She testified she
management before this accident.                                  was not speeding, and she was not in any type of hurry. She
                                                                  saw Till and attempted to avoid him, but simply “misjudged”
The jury decided Thomas was not negligent, and Till suffered      the distance. She was paying attention, but misjudged the
no damages. Till appeals the jury's verdict.                      space between the two vehicles.

                                                                   [9] Also, Till did not prove that the accident with Thomas
                                                                  was the cause of his back injuries. There was ample testimony
                       No Negligence
                                                                  from Dr. Baskin that the back surgery had been recommended
In point of error one, Till argues the jury's finding of no       before the accident. Till did not prove Thomas proximately
negligence was against the great weight and preponderance         caused his injuries. 1
of the evidence given Thomas's repeated testimony that she
misjudged the distance between the two vehicles.                  1       Till did not appeal the jury's decision to award him no
                                                                          damages.
 [1]     [2]     [3]   [4] When a party attacks a jury finding
                                                                   We overrule point of error one.
concerning an issue upon which he had the burden of proof, he
must demonstrate that the adverse finding is against the great
weight and preponderance of the evidence. *733 Honeycutt
v. Billingsley, 992 S.W.2d 570, 578 (Tex.App.—Houston [1st                               Expert Testimony
Dist.] 1999, pet. denied). In reviewing a challenge that the
jury finding is against the great weight and preponderance         In point of error two, Till asserts the trial court erred by
of the evidence, we must examine the record to determine           allowing Thomas's expert to testify about matters that were
if there is some evidence to support the finding, and then         not disclosed in interrogatory responses.
determine, in light of the entire record, whether the finding is
so contrary to the overwhelming weight and preponderance
                                                                   Standard of Review
of the evidence as to be clearly wrong and manifestly unjust.
                                                                    [10] [11] To obtain reversal of a judgment based upon an
Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Hollander
                                                                   error of the trial court in admitting or excluding evidence,
v. Capon, 853 S.W.2d 723, 726 (Tex.App.—Houston [1st
                                                                   appellant must show (1) the trial court erred, and (2) the error
Dist.] 1993, writ denied). We cannot reverse merely because
                                                                   was reasonably calculated to cause and probably did cause
we conclude that the evidence preponderates toward an
                                                                   the rendition of an improper judgment. Gee v. Liberty Mut.
affirmative answer. Herbert v. Herbert, 754 S.W.2d 141,
                                                                   Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). The appellate
144 (Tex.1988); Honeycutt, 992 S.W.2d at 578. Nor can we
                                                                   court must examine the entire record to determine whether the
substitute our opinion for that of the trier of fact and determine
                                                                   disputed evidence controlled the judgment. Id.
that we would reach a different conclusion. Hollander, 853
S.W.2d at 726.
                                                                    [12] [13] We cannot consider documents attached to an
                                                                   appellate brief that do not appear in the record. $429.30 v.
 [5] [6] [7] The occurrence of an accident or a collision
                                                                   State, 896 S.W.2d 363, 365 (Tex.App.—Houston [1st Dist.]
is not of itself evidence of negligence. Rankin v. Nash–Texas
                                                                   1995, no writ). This Court must hear and determine a case
Co., 129 Tex. 396, 105 S.W.2d 195, 199 (1937); Smith v.
                                                                   on the record as filed, and may not consider documents
Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.—
                                                                   attached as exhibits to briefs. RWL Const., Inc. v. Erickson,
Houston (14th Dist.) 1989, writ denied). The plaintiff must



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
Till v. Thomas, 10 S.W.3d 730 (1999)


                                                                        on a showing of an abuse of discretion. City of Jersey Village
877 S.W.2d 449, 451 (Tex.App.—Houston [1st Dist.] 1994,
                                                                        v. Campbell, 920 S.W.2d 694, 698 (Tex.App.—Houston [1st
no writ).
                                                                        Dist.] 1996, writ denied).
 [14] [15] We cannot appraise Till's assignment of error.
                                                                         [19] While questioning Dr. Baskin, Till's attorney asked
We must presume the proceedings and judgment below
                                                                        Baskin what Till's complaints were when he was examined
were regular and correct. Till had the burden to supply
                                                                        on June 1, 1993. Baskin responded, “Well, at that time he had
us with an appellate record demonstrating the trial court
                                                                        been involved in a motor-vehicle accident.” The exchange
abused its discretion in admitting Dr. Baskin's testimony
                                                                        between Till's attorney and the trial court immediately after
because Thomas did not supplement her answers as required.
                                                                        Baskin's response was as follows:
Christiansen v. *734 Prezelski, 782 S.W.2d 842, 843
(Tex.1990). Till was obliged to include in the appellate record           Till's attorney: Objection, Your Honor.
the interrogatories and answers. He did not. We must presume
the missing documents would sustain the trial court's ruling.             The Court:ney: Sustained.
University of Texas at Austin v. Hinton, 822 S.W.2d 197, 202
(Tex.App.—Austin 1991, no writ).                                          Till's attorney: Move for a motion, Your Honor.

                                                                          The Court:ney: Overruled.
 [16] Till has attached, as an appendix to his brief, Thomas's
answers to interrogatories. The discovery responses,                    Till argues Baskin's comment violated the existing motion
however, were not included in the record of this case                   in limine excluding testimony about earlier motor vehicle
on appeal. The attachment of documents as exhibits or                   accidents. The motion in limine, however, was not included
appendices to briefs is not a formal inclusion in the record            in the appellate record and shall not be considered. See RWL
on appeal and, thus, the documents cannot be considered.                Const., Inc., 877 S.W.2d at 451.
Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534
(Tex.App.—Dallas 1987, no writ).                                        Till's attorney did not state the grounds for his objection
                                                                        or explain for what type of “motion” he was moving. See
We overrule point of error two.                                         Haney v. Purcell Co., Inc., 796 S.W.2d 782, 789 (Tex.App.—
                                                                        Houston [1st Dist.] 1990, writ denied) (holding that objection
                                                                        must be specific enough to inform trial court of reason for
                           Mistrial                                     objection.) There has been no showing that the trial court
                                                                        abused its discretion.
In point of error three, Till asserts the trial court erred by
failing to declare a mistrial after the jury heard irrelevant and       We overrule point of error three.
prejudicial evidence against him.
                                                               We affirm the judgment of the trial court.
 [17] [18] To preserve error, Till must make a valid, timely,
and specific request, motion, or objection. TEX.R.APP. P.
33; Matter of Bates, 555 S.W.2d 420, 432 (Tex.1977);           All Citations
United Cab Co. v. Mason, 775 S.W.2d 783, 785 (Tex.App.—
                                                               10 S.W.3d 730
Houston [1st Dist.] 1989, writ denied.). The court's denial of
a motion for mistrial will not be disturbed on appeal except

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


                                                                        Trial court abuses its discretion if it acts
                                                                        arbitrarily or unreasonably.
                      981 S.W.2d 211
                 Court of Appeals of Texas,                             1 Cases that cite this headnote
                   Houston (14th Dist.).

             James J. TRIMBLE, Appellant,                         [4]   Appeal and Error
                          v.                                               Abuse of Discretion
         TEXAS DEPARTMENT OF PROTECTIVE                                 To determine whether trial court abused its
          & REGULATORY SERVICE, Appellee.                               discretion, reviewing courts consider the record
                                                                        as a whole.
            No. 14–97–00106–CV. | April 9,
       1998. | Rehearing Overruled April 9, 1998.                       1 Cases that cite this headnote

Department of Protective and Regulatory Service moved to
                                                                  [5]   Mental Health
obtain permanent guardianship of ward's person and estate.
                                                                           Evidence
The County Court at Law, Walker County, Texas Trial
Court Cause No. 61461–G, Barbara Hale, J., determined                   Undisputed evidence adduced in temporary
that ward was incapacitated and appointed Department as                 guardianship proceedings could be considered
permanent guardian. Ward's husband appealed. The Court of               in determining whether husband was suitable
Appeals, Murphy, C.J., held that: (1) order was not defective;          permanent guardian for incapacitated wife.
(2) husband was disqualified from serving as guardian; (3)              V.A.T.S. Probate Code, § 649.
evidence supported determination of incapacity; and (4) error
                                                                        Cases that cite this headnote
in failing to procure updated physician's reports was harmless.

Affirmed. 958 S.W.2d 906, superseded.                             [6]   Mental Health
                                                                           Evidence
                                                                        Probate court conducts its business in a
                                                                        continuing series of events because the nature
 West Headnotes (33)
                                                                        of administration contemplates decisions to
                                                                        be made on which other decisions will be
 [1]      Mental Health                                                 based; accordingly, evidence adduced at earlier
             Discretion of Court                                        hearings may be considered at later hearings.
          Trial court has broad discretion in the selection             V.A.T.S. Probate Code, § 649.
          of a guardian.
                                                                        1 Cases that cite this headnote
          8 Cases that cite this headnote
                                                                  [7]   Evidence
 [2]      Mental Health                                                     Judicial Proceedings and Records
              Presumptions, and Discretion of Lower                     Trial court may take judicial notice of its own
          Court                                                         records in matters that are generally known,
          Order appointing guardian is reviewed for abuse               easily proven, and not reasonably disputed.
          of discretion.                                                Rules of Civ.Evid., Rule 201 (Repealed).

          9 Cases that cite this headnote                               9 Cases that cite this headnote


 [3]      Appeal and Error                                        [8]   Appeal and Error
             Abuse of Discretion                                           Abuse of Discretion




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


        Under an abuse of discretion standard of review,              Person is ineligible to serve as a guardian, among
        legal and factual sufficiency claims are merely               other reasons, if he is incapable of properly and
        factors to consider in assessing whether the trial            prudently managing and controlling the ward or
        court abused its discretion, and not independent,             the ward's estate because of inexperience, lack
        reversible grounds of error.                                  of education, or other good reason. V.A.T.S.
                                                                      Probate Code, § 681.
        3 Cases that cite this headnote
                                                                      Cases that cite this headnote

 [9]    Appeal and Error
           Abuse of Discretion                                 [14]   Mental Health
        Under an abuse of discretion standard of review,                 Husband or Wife
        findings of fact and conclusions of law are                   Husband who was incapable of controlling
        neither appropriate nor required.                             and managing wife and her estate and who
                                                                      was unable to comply with court orders and
        Cases that cite this headnote                                 recommendations from Protective Services was
                                                                      not qualified to serve as guardian of wife's person
 [10]   Mental Health                                                 or estate. V.A.T.S. Probate Code, § 681.
           Persons Subject to Guardianship
                                                                      Cases that cite this headnote
        Probate court appoints a guardian according to
        the circumstances of each case and considering
        the best interests of the ward. V.A.T.S. Probate       [15]   Mental Health
        Code, § 677.                                                     Verdict and Findings
                                                                      Order appointing guardian must contain findings
        1 Cases that cite this headnote                               of fact and specify certain information regarding
                                                                      the guardian, the ward, and the nature of the
 [11]   Mental Health                                                 guardianship. V.A.T.S. Probate Code, § 693(a,
           Husband or Wife                                            c).
        Ward's spouse is entitled to guardianship in                  Cases that cite this headnote
        preference to any other person if he is eligible
        and he is one of two or more eligible persons
        equally entitled to be appointed. V.A.T.S.             [16]   Mental Health
        Probate Code, § 677.                                             Verdict and Findings
                                                                      Order appointing Protective Services as guardian
        Cases that cite this headnote                                 was not rendered defective by trial court's failure
                                                                      to make express finding that Protective Service
 [12]   Mental Health                                                 was entitled to appointment, where ward's
            Heirs, Next of Kin, and Relatives in                      husband was ineligible to serve as guardian.
        General                                                       V.A.T.S. Probate Code, § 693(a, c).
        If the ward's spouse is ineligible, then the nearest          Cases that cite this headnote
        related family member who is eligible is entitled
        to appointment. V.A.T.S. Probate Code, § 677.
                                                               [17]   Mental Health
        Cases that cite this headnote                                    Verdict and Findings
                                                                      “Entitlement,” in context of statutorily required
 [13]   Mental Health                                                 findings for orders appointing guardians, relates
           Persons Who May Be Appointed                               to right to be appointed in relation to eligibility
                                                                      or the family relationship to the ward, rather




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


        than the suitability of the person as compared to            must first examine the legal sufficiency of the
        another. V.A.T.S. Probate Code, § 693(a, c).                 evidence.

        Cases that cite this headnote                                4 Cases that cite this headnote


 [18]   Mental Health                                         [23]   Appeal and Error
           Verdict and Findings                                         Findings of Court or Referee
        Order appointing Protective Services as guardian             In determining a “no evidence” point, appellate
        was not rendered defective by trial court's failure          court considers only the evidence and inferences
        to state in the order that it did not determine              that tend to support the finding and disregards all
        91–year–old ward's incapacity by evidence of                 evidence and inferences to the contrary.
        isolated instances of negligence or bad judgment.
        V.A.T.S. Probate Code, § 684(c).                             Cases that cite this headnote

        Cases that cite this headnote
                                                              [24]   Appeal and Error
                                                                        Total Failure of Proof
 [19]   Evidence                                                     If there is more than a scintilla of evidence to
            Degree of Proof in General                               support the finding, claim is sufficient as a matter
        Clear and convincing standard of proof falls                 of law, and any challenges go merely to weight
        between the preponderance standard of ordinary               accorded the evidence.
        civil proceedings and the reasonable doubt
        standard of criminal proceedings.                            Cases that cite this headnote

        3 Cases that cite this headnote
                                                              [25]   Appeal and Error
                                                                        Clearly, Plainly, or Palpably Contrary
 [20]   Evidence                                                     In reviewing factual sufficiency of the evidence,
            Degree of Proof in General                               appellate court considers and weighs all the
        Clear and convincing evidence is that measure or             evidence, and sets aside the judgment only if it
        degree of proof which will produce in the mind               is so contrary to the overwhelming weight of the
        of the trier of fact a firm belief or conviction             evidence to be clearly wrong and unjust.
        as to the truth of the allegations sought to be
        established.                                                 1 Cases that cite this headnote

        2 Cases that cite this headnote
                                                              [26]   Mental Health
                                                                        Evidence
 [21]   Appeal and Error                                             Determination of incapacity was supported by
           Particular Cases and Questions                            evidence that ward could not care for her
        Clear and convincing standard of proof does                  physical health or manage her financial affairs,
        not alter the appropriate standard of appellate              was disoriented and wandering the streets on four
        review.                                                      occasions in four months, once with feces on her,
                                                                     could not identify the President of the United
        1 Cases that cite this headnote                              States or her own husband, reported having visits
                                                                     with her deceased parents, and depended on her
 [22]   Appeal and Error                                             husband to administer her medication and to
           Total Failure of Proof                                    provide her with proper nourishment.
        When both legal and factual sufficiency                      Cases that cite this headnote
        challenges are raised on appeal, appellate court



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


                                                                    estate, as well as guardian of ward's person, after
 [27]   Mental Health                                               bank that Department sought to have appointed
           Evidence                                                 as guardian of estate declined to serve. V.A.T.S.
        Temporary guardian was required to provide                  Probate Code, § 641.
        updated physician's report in support of its
        motion for permanent guardianship. V.A.T.S.                 Cases that cite this headnote
        Probate Code, §§ 686, 687.
                                                             [32]   Mental Health
        1 Cases that cite this headnote
                                                                       Right of Review; Parties
                                                                    Ward's husband was required to make demand
 [28]   Mental Health                                               for community property in order to preserve for
           Evidence                                                 review his claim that public guardian could not
        Applicant for temporary guardianship must                   exercise control over community property. Rules
        establish substantial evidence proposed ward is             App.Proc., Rule 52(a) (Repealed).
        incapacitated. V.A.T.S. Probate Code, § 875(g).
                                                                    Cases that cite this headnote
        Cases that cite this headnote

                                                             [33]   Mental Health
 [29]   Mental Health                                                  Right of Review; Parties
           Evidence                                                 Alleged improprieties to which ward's husband
        Applicant for permanent guardianship must                   did not object at trial would not be reviewed
        establish by clear and convincing evidence that             on appeal from guardianship order. Rules
        the proposed ward is incapacitated. V.A.T.S.                App.Proc., Rule 52(a) (Repealed).
        Probate Code, § 684(a).
                                                                    Cases that cite this headnote
        Cases that cite this headnote


 [30]   Mental Health
           Harmless Error                                   Attorneys and Law Firms
        Error in failing to procure updated physician's      *214 J. Timothy Sisk, Conroe, for appellant.
        report on ward before appointment of permanent
        guardian was not reversible, where most recent      Kay Douglas, David P. Weeks, Huntsville, for appellees.
        report was only a few days out of date, that
        report was consistent with evidence presented at    Before MURPHY, C.J., and HUDSON and FOWLER, JJ.
        hearing that ward was incapacitated, and no one
        objected to failure to obtain more recent report.
        Rules App.Proc., Rule 81(b)(1) (Repealed).                          CORRECTED OPINION

        1 Cases that cite this headnote                     MURPHY, Chief Justice.

                                                            Appellant, James J. Trimble (Trimble), appeals from an order
 [31]   Mental Health                                       appointing the Texas Department of Protective & Regulatory
           Right of Review; Parties                         Service (Protective Service) the permanent guardian of the
        Ward's husband was required to object at trial      person and the estate of his wife, Edna Trimble (Edna). In
        in order to preserve for review his claim that      six points of error appellant alleges the trial court erred in
        Department of Protective Service's failure to       appointing Protective Service instead of him as the guardian
        amend its motion to enforce judgment or its         of Edna's person and estate and in finding Edna incapacitated.
        petition for permanent guardianship precluded       We affirm.
        court from appointing it guardian of ward's


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


Over a three-year period, ninety-one year old Edna was             (Tex.Civ.App.—El Paso 1977, no writ). Consequently, an
often found wandering the streets of New Waverly, Texas.           appellate court will not reverse an order appointing a guardian
On many occasions, Trimble left her home alone, and did            absent a showing that the trial court abused its discretion.
not provide her with the proper nourishment or medication.         See State, By and Through Texas Dept. of Mental Health and
Protective Service documented these incidents and its              Retardation v. Ellison, 914 S.W.2d 679, 682 (Tex.App.—
unsuccessful efforts to work with Trimble in providing the         Austin 1996, no writ). A trial court abuses its discretion if it
proper care for his wife. On June 17, 1996, the Walker County      acts arbitrarily or unreasonably. Id. To determine whether the
Sheriff's Department took Edna into protective custody             trial court abused its discretion, we consider the record as a
after she was, once again, found wandering the streets of          whole. See *215 Youngs v. Choice, 868 S.W.2d 850, 853
New Waverly. Protective Service filed a motion to obtain           (Tex.App.—Houston [14th Dist.] 1993, writ denied).
temporary guardianship of Edna's person and estate. Trimble
intervened, contesting Protective Service's application and         [5]     [6]    [7] First, Trimble claims the statement of
requesting the trial court to appoint him the permanent            facts from the hearing on the application for permanent
guardian of Edna's person. After hearing testimony of Edna's       guardianship contains no evidence of his inability to care
condition and neglect while in Trimble's care, the trial court     for his wife because Protective Service did not offer any
named Protective Service the temporary guardian of Edna's          evidence regarding his ability at that hearing. Instead, the
person and Trimble the temporary guardian of Edna's estate.        trial court improperly admitted evidence of his ability to
In addition, the trial court ordered Trimble to pay the fees       care for Edna that was adduced at previous hearings without
of the attorney ad litem and court costs within sixty days.        requiring Protective Service to read the transcription of the
Protective Service placed Edna in a nursing home.                  prior hearings into the record. “In a guardianship proceeding,
                                                                   the rules relating to witnesses and evidence that govern
Trimble did not pay the ad litem's fees and expenses accruing      in the district court apply as far as practicable.” TEX.
at the nursing home where Edna was residing. Consequently,         PROB.CODE ANN. § 649 (Vernon Supp.1997). A probate
Protective Service filed a motion to enforce judgment. After       court, however, conducts its business in a continuing series
a hearing, the trial court found that Trimble did not qualify as   of events because the nature of administration contemplates
guardian of Edna's estate, and appointed Protective Service        decisions to be made on which other decisions will be
the temporary guardian of her estate. The trial court also         based. See Youngs, 868 S.W.2d at 852 (citing Christensen
ordered Trimble to provide an inventory of Edna's estate.          v. Harkins, 740 S.W.2d 69, 74 (Tex.App.—Fort Worth
                                                                   1987, no writ)); see also Hill v. Jones, 773 S.W.2d 55,
Soon thereafter, Protective Service filed an application for       56 (Tex.App.—Houston [14th Dist.] 1989, no writ) (stating
appointment of permanent guardian of Edna's person and             hearing on appointment of temporary guardian continued as
estate. At the hearing on the motion, Protective Service           to appointment of a permanent guardian). Moreover, a trial
offered, without objection, the testimony adduced at previous      court may take judicial notice of its own records in matters
hearings held approximately three to four months earlier, and      that are generally known, easily proven, and not reasonably
the testimony of Mary Matson, the guardianship worker for          disputed. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508
Protective Service. At the conclusion of the hearing, the trial    (Tex.App.—Austin 1994, no writ); Fajkus v. First Nat. Bank
court appointed Protective Service the permanent guardian of       of Giddings, 735 S.W.2d 882, 887 (Tex.App.—Austin 1987,
the person and estate of Edna Trimble. Trimble filed a motion      writ denied); see also TEX.R. CIV. EVID. 201.
for new trial, which the trial court denied after a hearing.
                                                                  In this case, the trial court heard undisputed evidence of
 [1]     [2]     [3]    [4] In his first point of error, TrimbleTrimble's inability to care for his elderly wife at the first
contends the trial court erred in appointing Protective Service,  hearing on application for temporary guardianship. At the
and not him, the permanent guardian of Edna's person              second hearing on motion to enforce the judgment, the trial
and estate because there was no evidence presented at the         court heard undisputed evidence of Trimble's failure to pay
permanent guardianship hearing that he was unqualified or         for Edna's nursing care. At the conclusion of the hearing,
not entitled to serve in the capacity of guardian, and no finding the trial judge noted that “Mr. Trimble has not qualified,
that Protective Service was entitled to the appointment. A        taken an oath, done any of the things that one is supposed
trial court has broad discretion in the selection of a guardian.  to do as the guardian of the estate.” Consequently, in its
See Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718             order dated August 16, 1996, appointing Protective Service



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


the temporary guardian of Edna's estate, the trial court            and Edna's three daughters declined to serve as guardian, the
explicitly stated that Trimble failed to qualify as guardian        trial court did not abuse its discretion in appointing Protective
of Edna's estate. Furthermore, at the hearing on permanent          Service the guardian of Edna and her estate.
guardianship, the trial court admitted, without objection,
evidence adduced from previous hearings regarding Edna's         [15] Finally, Trimble complains the order appointing
incapacity and her daughters' inability to serve as guardian    Protective Service as permanent guardian cannot be upheld
without objection. The trial court acted within its discretion in
                                                                because the trial court failed to file findings of fact stating
taking judicial notice of the evidence and its previous rulings,Protective Service was entitled to the appointment and he was
and in admitting the statement of facts from previous rulings   disqualified from serving as guardian. An order appointing
into the record at the hearing on application for permanent     a guardian must contain findings of fact and specify certain
guardianship.                                                   information regarding the guardian, the ward, and the nature
                                                                of the guardianship. Id. § 693(a), (c). While section 693
 [8]    [9] Next, Trimble asserts the evidence admitted at enumerates the specific information to be included in the
the previous hearing is factually and legally insufficient      order, it does not state what additional findings the trial court
to support a finding that he was disqualified to serve as       must include in the order appointing a guardian. Likewise,
guardian. “Under an abuse of discretion standard of review,     section 684 requires the trial court to make specific findings
the appellate court does not review factual issues decided by   before appointing a guardian, including a finding that the
the trial court under legal or factual sufficiency standards.”  proposed guardian is eligible to act as guardian and entitled to
IKB Indust. (Nigeria) Ltd. v. Pro–Line Corp., 938 S.W.2d        appointment. Id. § 684. Section 684, however, does not state
440, 445 (Tex.1997). Under an abuse of discretion standard of   where the trial court must make these findings.
review, legal and factual sufficiency claims are merely factors
to consider in assessing whether the trial court abused its      [16]     [17] In its order appointing Protective Service the
discretion, and not independent, reversible grounds of error.   permanent guardian of Edna's person and estate dated October
Id. 1                                                           17, 1996, the trial court found by a preponderance of
                                                                the evidence that Protective Service was qualified to act
 [10] [11] [12] [13] A probate court appoints a guardianas guardian, but did not state that Protective Service was
according to the circumstances of each case and considering         entitled to appointment. 2 Although the better practice is
the best interests of the ward. TEX. PROB.CODE ANN. §               to draft explicit findings following the language of section
677 (Vernon Supp.1997). A person is eligible to serve as            684 in an order appointing a permanent guardian, the order
guardian if he is not disqualified from serving under section       is not fatally defective for want of the explicit finding of
681 of the probate code. Id. § 681. A ward's spouse is entitled     entitlement. Entitlement, in this context, relates to the right to
to guardianship in preference to any other person if he is          be appointed in relation to eligibility or the family relationship
eligible and he is one of two or more eligible persons equally      to the ward, rather than the suitability of the individual as
entitled to be appointed. Id. § 677. If the ward's *216 spouse      compared to another. See Adcock v. Sherling, 923 S.W.2d
is ineligible, then the nearest related family member who is        74, 78 (Tex.App.—San Antonio 1996, no writ). In this case,
eligible is entitled to appointment. Id. Only as a last resort,     Trimble was not eligible to serve as guardian and other family
may the trial court appoint Protective Service as guardian.         members declined the appointment. Without an eligible and
Id. § 691. A person is ineligible to serve as a guardian,           entitled applicant, the trial court had no alternative but to
among other reasons, if he is incapable of properly and             appoint Protective Service as Edna's guardian. See TEX.
prudently managing and controlling the ward or the ward's           PROB.CODE ANN. § 691 (Vernon Supp.1997).
estate because of inexperience, lack of education, or other
good reason. Id. § 681.                                             The trial court did not abuse its discretion in finding Trimble
                                                                    disqualified to serve as guardian of his wife's person and
 [14] Here, the record reflects that Trimble was not qualified      estate, and in appointing Protective Service the guardian of
to serve as guardian of Edna's person or estate. Trimble            Edna. Trimble's first point of error is overruled.
was incapable of controlling and managing Edna and her
estate and he lacked the ability to follow through with              [18] In his second point of error, Trimble contends the
recommendations from Protective Service and with court              trial court applied the wrong standard in finding Edna
orders. Because Trimble was ineligible to serve as guardian         to be incapacitated and in failing to state the appropriate



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


standard in the order appointing the permanent guardian.            will produce in the mind of the trier of fact a firm belief
Before appointing a guardian, the trial court must find by          or conviction as to the truth of the allegations sought to be
clear and convincing evidence that the proposed ward is an          established. Id.
incapacitated person. Id. § 684(a)(1). An incapacitated person
is “an adult individual who, because of a physical or mental         [21]     [22]     [23]    [24]   [25] The clear and convincing
condition, is substantially unable to provide food, clothing,       standard of proof does not alter the appropriate standard of
or shelter for himself, or herself, to care for the individual's    appellate review. See Spurlock v. Texas Dept. of Protective
own physical health or to manage the individual's own               and Regulatory Servs., 904 S.W.2d 152, 155–56 (Tex.App.
financial affairs.” Id. § 601(13)(B). A trial court determines      —Austin 1995, writ denied). When both legal and factual
the incapacity of an adult proposed ward from evidence of           sufficiency challenges are raised on appeal, the appellate
recurring acts or occurrences within the six-month period           court must first examine the legal sufficiency of the evidence.
preceding the determination and not by isolated instances of        See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400,
negligence or bad judgment. Id. § 684(c).                           401 (Tex.1981). In determining a “no evidence” point, an
                                                                    appellate court considers only the evidence and inferences
 *217 The trial court stated in its order appointing permanent      that tend to support the finding and disregards all evidence
guardianship that it found Edna to be incapacitated by clear        and inferences to the contrary. See Catalina v. Blasdel, 881
and convincing evidence. The trial court further stated that        S.W.2d 295, 297 (Tex.1994). If there is more than a scintilla
its determination of incapacity was evidenced by recurring          of evidence to support the finding, the claim is sufficient as
acts within the preceding six months and continuing to this         a matter of law, and any challenges go merely to the weight
date and that age was not the sole determining factor. The          accorded the evidence. See Browning–Ferris, Inc. v. Reyna,
trial court, however, did not state in the order that it did not    865 S.W.2d 925, 928 (Tex.1993). In reviewing the factual
determine Edna's incapacity by evidence of isolated instances       sufficiency of the evidence, an appellate court considers and
of negligence or bad judgment.                                      weighs all the evidence, and sets aside the judgment only if
                                                                    it is so contrary to the overwhelming weight of the evidence
As noted above, the better practice is to draft explicit findings   to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d
following the language of section 684. Nevertheless, the trial      175, 176 (Tex.1986).
court's omission of language describing the type of evidence
it considered in determining Edna's incapacity does not render       [26] In this case, the trial court heard evidence of Edna's
the trial court's determination of incapacity void or voidable.     inability to care for her physical health and to manage her
Section 684 does not require the trial court to recount the         financial affairs at the first two hearings. The record reflects
evidence it considered in determining the capacity of a             that Edna was reported to be disoriented and wandering the
proposed ward in the order appointing a guardian, but directs       streets of New Waverly on four occasions between February
the trial court to consider certain evidence and to exclude         and June 1996, and on one occasion dirty and with feces on
other evidence in making a determination of incapacity. See         her. When questioned by a case worker, Edna was unable
id. The trial court did not err by failing to include a statement   to identify the President of the United States and her own
that it did not consider isolated instances of negligence or        husband. Edna reported having visits with her parents, who
bad judgment in making its determination of incapacity in the       are deceased. Additional evidence established that Edna was
order appointing Protective Service the permanent guardian          dependent upon her husband to administer her medication and
of Edna and her estate. Trimble's second point of error is          to provide her with proper nourishment.
overruled.
                                                                    At the hearing on application for appointment of permanent
 [19] [20] In his fourth point of error, Trimble maintains          guardianship, the trial court admitted the records of the
the evidence is legally and factually insufficient to support       previous hearings into evidence, without objection. Mary
a finding of Edna's incapacity. The clear and convincing            Matson of Protective Service testified that Protective Service
standard of proof falls between the preponderance standard of       moved Edna to a personal care home, which was the least
ordinary civil proceedings and the reasonable doubt standard        restrictive environment providing affordable *218 care.
of criminal proceedings. See Matter of R.S.C., 921 S.W.2d           Matson further attested Edna was still unable to care for
506, 511 (Tex.App.—Fort Worth 1996, no writ). Clear and             herself, although she seemed to be well and happy at the
convincing evidence is that measure or degree of proof which        personal care home. No one presented any evidence at any of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


the hearings to even suggest that Edna's actions were isolated       to its application for appointment of permanent guardian. At
instances of negligence or bad judgment. Although Trimble            the time of Protective Service's application for permanent
claimed that Edna's incapacity was partial in his petition for       guardianship, the physician's examination was approximately
permanent guardianship, he presented no evidence to support          three weeks outside the 120–day window of section 687.
his claim and made no challenge to Protective Service's claim
that Edna was totally incapacitated. We find the evidence             [28] [29] Sections 686 and 687 do not distinguish between
clear and convincing, and legally and factually sufficient to        applications for temporary and permanent guardianships.
support the trial court's finding of Edna's total incapacity.        The probate code, however, defines a guardian as a person
Trimble's fourth point of error is overruled.                        who is appointed guardian by order of the trial court
                                                                     under section 693 or a temporary or successor guardian.
 [27] In his third point of error, Trimble contends the              Id. § 601(10). Moreover, the standard of proof necessary
trial court erred in appointing Protective Service as Edna's         to establish incapacity differs according to whether the
guardian because there is no evidence of Edna's current              guardianship is temporary or permanent. An applicant for a
and relevant medical, psychological, and intellectual testing        temporary guardianship must establish substantial evidence
records. With certain exceptions, inapplicable here, section         the proposed ward is incapacitated. Id. § 875(g). An applicant
686(a) of the probate code requires current and relevant             for a permanent guardianship must establish by clear and
medical, psychological, and intellectual testing records of          convincing evidence that the proposed ward is incapacitated.
the proposed ward to be provided to the attorney ad litem            Id. § 684(a). In either case, section 687 requires a current
appointed to represent the proposed ward before the trial            physician's report based on a current examination. Because
court may hold a hearing for the appointment of a guardian.          Protective Service did not file a report based on a current
TEX. PROB.CODE ANN. § 686(a) (Vernon Supp.1997).                     examination, the trial court erred in granting its application to
Section 687(a) further prohibits the trial court from granting       create a permanent guardianship.
an application to create a guardianship for an incapacitated
person “unless the applicant presents to the court a written          [30] An appellate court may not reverse the judgment of
letter or certificate from a physician licensed in this state that   the trial court on appeal because the trial court made an error
is dated not earlier than the 120th day before the date of the       of law unless the error probably caused the rendition of an
filing of the application and based on an examination the            improper judgment or probably prevented the appellant from
physician performed not earlier than the 120th day before the        properly presenting *219 its case on appeal. TEX.R. APP.
date of the filing of the application.” Id. § 687(a).                81(b)(1), 60 TEX. B.J. 9 (1997). 3 In this case, the error is not
                                                                     reversible. At the time of the hearing, the examination upon
Trimble contends the record does not “reflect the admission          which the physician based his report was only a few weeks
into evidence of any medical, psychological or intellectual          outside the 120–day window required in section 687. In the
testing records.” He further alleges Protective Service would        report, Edna's physician opined that she was incapacitated and
have had to file a physician's certificate reflecting an             suffered from moderate dementia and diabetes. He predicted
examination of Edna no later than 120 days prior to the              that Edna's condition would worsen. The report is consistent
filing of Protective Service's application for permanent             with the evidence admitted at the permanent guardianship
guardianship, specifically no later than April 22, 1996 to           hearing regarding Edna's capacity to care for herself and her
comply with sections 686(a) and 687(a).                              property. Furthermore, no one voiced an objection to the
                                                                     availability of the report or the timeliness of the examination.
The record, however, reflects that Protective Service filed a        Trimble's third point of error is overruled.
physician's report with the trial court on July 16, 1996, one
day after it filed its application for appointment of temporary       [31] In his fifth point of error, Trimble asserts the trial
guardian. At the hearing on the application held on July 25,         court erred in appointing Protective Service the guardian
1996, the trial court noted the report was on file but did not       of Edna's estate because Protective Service did not request
admit the report over objections that the report constituted         to be named the guardian of the estate in its motion to
hearsay. The report, signed and dated by Edna's personal             enforce judgment or its petition for permanent guardianship.
physician, was based on an examination conducted on April            He further asserts the trial court granted Protective Service
1, 1996, well within the 120 day window of section 687.              authority over Edna's entire estate although Protective Service
Protective Service later attached the same physician's report        only requested authority over two properties.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


                                                                                 an administration. If the court finds
After a hearing on Protective Service's motion to enforce                        that it is in the best interest of
judgment, the trial court appointed Protective Service the                       the incapacitated spouse and that the
temporary guardian of Edna's estate, finding that Trimble                        other spouse would not be disqualified
did not qualify as guardian of the estate. Within a week,                        to serve as guardian under Section
Protective Service filed its application for appointment of                      681 of this code, guardianship of
permanent guardian requesting the trial court appoint First                      the estate of the incapacitated spouse
National Bank of Huntsville as the permanent guardian of                         may not be necessary when the other
Edna's estate. The Bank, however, declined to act, and the trial                 spouse is not incapacitated unless the
court appointed Protective Service the permanent guardian of                     incapacitated spouse owns separate
Edna's estate even though Protective Service never amended                       property, and the guardianship will
its pleading requesting to be named permanent guardian of                        be of the separate property only. The
Edna's estate. At the hearing on the motion, Protective Service                  qualification of a guardian of the estate
also informed the trial court that it would like to restrict the                 of an incapacitated spouse does not
estate guardianship to two properties and allow Trimble to                       deprive the competent spouse of the
manage the remainder of the estate. The trial court granted                      right to manage, *220 control, and
Protective Service full authority over Edna's person and estate                  dispose of the entire community estate
but restricted management of her estate to the two properties                    as provided in this chapter.
and the collection of her Social Security check.
                                                                    Id. § 883.
“A court may not invalidate a pleading in a guardianship
matter or an order based on the pleading based on a defect of       Although Trimble's entitlement to manage, control, and
form or substance in the pleading, unless the defect has been       dispose of the community estate is clear, the trial court did
timely objected to and called to the attention of the court in      not err in appointing Protective Service the guardian of Edna's
which the proceeding was or is pending.” TEX. PROB.CODE             estate. At the time of the appointment, Trimble did not qualify
ANN. § 641 (Vernon Supp.1997). Because Trimble did not              as guardian of the estate and violated a court order requiring
object to the lack of a trial amendment at the hearing on           him to file an inventory and appraisal with the trial court and
the motion and at the hearing on application for permanent          to pay ad litem's fees. Trimble further refused to pay Edna's
guardian pleading, and did not object to Protective Service's       nursing care expenses. Consequently, under section 883, the
request to manage the two properties, he waives review of           trial court found the appointment of Protective Service as
this point of error on appeal. Trimble's fifth point of error is    guardian of Edna's estate to be in her best interest. The trial
overruled.                                                          court, however, made no attempt to classify the property
                                                                    because Trimble proved uncooperative in providing the court
 [32] In his sixth point of error, Trimble claims the trial court   with information regarding the estate. 4
erred in appointing Protective Service the guardian of Edna's
estate because, under section 883 of the probate code, he           Trimble, however, is not without remedy to enforce his
had full power to manage the community estate. Section 883          entitlement to the community property. “A guardian of the
provides, in pertinent part, as follows:                            estate of an incapacitated married person, who, as guardian,
                                                                    is administering community property as part of the estate of
             When a husband or wife is judicially                   the ward, shall deliver on demand the community property
             declared to be incapacitated, the other                to the spouse who is not incapacitated.” Id. § 884. In this
             spouse, in the capacity of surviving                   case, there is no evidence that Trimble ever made a demand
             partner of the marital partnership,                    that Protective Service deliver the community property to
             acquires full power to manage,                         him. Therefore, he waives review of this issue on appeal. See
             control, and dispose of the entire
                                                                    Tex.R.App. Proc. 52(a), 60 TEX. B.J. 9 (1997). 5 Appellant's
             community estate, including the part
                                                                    sixth point of error is overruled.
             of the community estate that the
             incapacitated spouse legally has the
                                                                     [33] In his reply brief, Trimble cites other instances of
             power to manage in the absence
                                                                    procedural improprieties in the record including the failure of
             of the incapacitated spouse, without


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             9
Trimble v. Texas Dept. of Protective & Regulatory Service, 981 S.W.2d 211 (1998)


                                                                       Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387
the trial court (1) to appoint a court investigator as required
                                                                       (Tex.App.—Dallas 1993, no writ) (holding litigant waives
by section 648A of the probate code; (2) to conduct a jury
                                                                       right to jury trial by his failure to act).
trial even though he requested a jury trial and paid the jury
fee; and (3) to state in its order appointing Protective Service
                                                                       Accordingly, the judgment of the court below is affirmed.
Edna's temporary guardian that it found Edna incapacitated
by clear and convincing evidence. Trimble did not, however,
voice an objection to any of these alleged improprieties to
                                                                       All Citations
the trial court. Therefore, he waives appellate review of these
issues. See Rule 52(a); Sunwest Reliance Acquisitions Group,           981 S.W.2d 211


Footnotes
1      “Under an abuse of discretion standard of review, findings of fact and conclusions of law are neither appropriate nor
       required.” IKB Indust. (Nigeria) Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 445 (Tex.1997). Nevertheless, the Texas
       Legislature requires the trial court to make findings of fact in its order appointing a guardian where the proposed ward is
       without capacity. TEX. PROB.CODE ANN. § 693 (Vernon Supp.1997).
2      The trial court, however, explicitly stated in its orders appointing Protective Service the temporary guardian of Edna's
       estate that Trimble failed to qualify as guardian of Edna's estate.
3      Current version at TEX.R.APP. P. 44.1.
4      Trimble did not file an inventory with the trial court until November 1996.
5      Current version at TEX.R.APP. P. 33.1(a).


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               10
Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343




     KeyCite Yellow Flag - Negative Treatment                         West Headnotes (29)
Not Followed on State Law Grounds Chubb Lloyds Ins. Co. v. Miller
County Circuit Court, Third Div., Ark.,   March 11, 2010
                                                                      [1]   Federal Civil Procedure
                     95 S.Ct. 2197                                              In general; injury or interest
            Supreme Court of the United States                              In essence, the question of standing is whether
                                                                            the litigant is entitled to have the court decide the
         Robert WARTH, etc., et al., Petitioners,
                                                                            merits of the dispute or of particular issues.
                             v.
                      Ira SELDIN et al.                                     804 Cases that cite this headnote

             No. 73—2024. | Argued March
          17, 1975. | Decided June 25, 1975.                          [2]   Federal Civil Procedure
                                                                                In general; injury or interest
Various organizations and individuals resident in the                       Inquiry as to standing involves both
Rochester, New York, metropolitan area brought suit against                 constitutional limitations on federal court
town adjacent to Rochester, and against members of zoning,                  jurisdiction and prudential limitations on its
planning and town boards, claiming that town's zoning                       exercise; in both dimensions, it is founded in
ordinance effectively excluded persons of low and moderate                  concern about the proper, and properly limited,
income from living in the town, in contravention of                         role of the courts in a democratic society.
petitioners' constitutional rights and in violation of civil rights
statutes. The United States District Court for the Western                  553 Cases that cite this headnote
District of New York granted motion to dismiss the complaint
for lack of standing and for failure to state a claim on              [3]   Federal Civil Procedure
which relief could be granted, and an appeal was taken. The                     In general; injury or interest
Court of Appeals, Second Circuit, 495 F.2d 1187, reaching
                                                                            In its constitutional dimension, standing imports
only the standing question, affirmed, and certiorari was
                                                                            justiciability—whether the plaintiff has made out
granted. The Supreme Court, Mr. Justice Powell, held that
                                                                            a “case or controversy” between himself and
whether the rules of standing are considered as aspects of
                                                                            the defendant within the meaning of art. III.
the constitutional requirement that a plaintiff must make out
                                                                            U.S.C.A.Const. art. 3, § 1 et seq.
a ‘case or controversy’ within the meaning of art. III, or as
prudential limitations on the courts' role in resolving disputes            232 Cases that cite this headnote
involving ‘generalized grievances,’ or third parties' legal
rights or interest, none of the petitioners met the threshold
requirement of such rules that to have standing a complainant         [4]   Federal Civil Procedure
must clearly allege facts demonstrating that he is a proper                     In general; injury or interest
party to invoke judicial resolution of the dispute and the                  As an aspect of justiciability, the standing
exercise of the court's remedial powers.                                    question is whether the plaintiff has alleged
                                                                            such a personal stake in the outcome of the
Affirmed.                                                                   controversy to warrant his invocation of federal
                                                                            court jurisdiction and to justify exercise of
Mr. Justice Douglas filed a dissenting opinion.                             the court's remedial powers on his behalf.
                                                                            U.S.C.A.Const. art. 3, § 1 et seq.
Mr. Justice Brennan filed a dissenting opinion in which Mr.
Justice White and Mr. Justice Marshall joined.                              997 Cases that cite this headnote


                                                                      [5]   Federal Civil Procedure
                                                                                Causation; redressability



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

        The art. III judicial power exists only to
        redress or otherwise protect against injury                  1243 Cases that cite this headnote
        to the complaining party, even though the
        court's judgment may benefit others collaterally.     [10]   Federal Civil Procedure
        U.S.C.A.Const. art. 3, § 1 et seq.                               In general; injury or interest

        126 Cases that cite this headnote                            Although standing in no way depends on the
                                                                     merits of plaintiff's contention that particular
                                                                     conduct is illegal, it often turns on the nature and
 [6]    Federal Civil Procedure                                      source of the claim asserted.
            In general; injury or interest
        A federal court's jurisdiction can be invoked only           257 Cases that cite this headnote
        when the plaintiff himself has suffered some
        threatened or actual injury resulting from the        [11]   Federal Civil Procedure
        putatively illegal action.                                       In general; injury or interest

        453 Cases that cite this headnote                            The actual or threatened injury required by
                                                                     art. III may exist solely by virtue of statutes
                                                                     creating legal rights, the invasion of which
 [7]    Federal Civil Procedure                                      creates standing. U.S.C.A.Const. art. 3, § 1 et
            In general; injury or interest                           seq.
        The standing question bears close affinity
        to questions of ripeness—whether the harm                    247 Cases that cite this headnote
        asserted has matured sufficiently to warrant
        judicial intervention—and of mootness—                [12]   Federal Civil Procedure
        whether the occasion for judicial intervention                   In general; injury or interest
        persists. U.S.C.A.Const. art. 3, § 1 et seq.
                                                                     The source of plaintiff's claim to relief assumes
        119 Cases that cite this headnote                            critical importance with respect to the prudential
                                                                     rules of standing that, apart from art. III's
                                                                     minimum requirements, serve to limit the role
 [8]    Federal Civil Procedure                                      of the courts in resolving public disputes;
            Rights of third parties or public                        essentially, the standing question in such cases is
        When the asserted harm is a “generalized                     whether the constitutional or statutory provision
        grievance” shared in substantially equal measure             on which the claim rests properly can be
        by all or by a large class of citizens, that harm            understood as granting persons in the plaintiff's
        alone normally does not warrant exercise of                  position a right to judicial relief. U.S.C.A.Const.
        jurisdiction.                                                art. 3, § 1 et seq.

        230 Cases that cite this headnote                            576 Cases that cite this headnote


 [9]    Federal Civil Procedure                               [13]   Federal Civil Procedure
            Rights of third parties or public                            Rights of third parties or public
        Even when the plaintiff has alleged injury                   When a litigant asserts the rights of third
        sufficient to meet the “case or controversy”                 parties defensively, as a bar to judgment against
        requirement of art. III, the plaintiff generally             him, there is no art. III standing problem,
        must assert its own legal rights and interests and           but the prudential question is governed by
        cannot rest his claim to relief on the legal rights          considerations closely related to the question
        or interests of third parties. U.S.C.A.Const. art.           whether a person in the litigant's position
        3, § 1 et seq.                                               would have a right of action on the claim.
                                                                     U.S.C.A.Const. art. 3, § 1 et seq.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

                                                                            Matters deemed admitted; acceptance as
        45 Cases that cite this headnote                               true of allegations in complaint
                                                                       Federal Courts
 [14]   Federal Civil Procedure                                            Pleadings; Dismissal
            Rights of third parties or public                          For purposes of ruling on a motion to dismiss
        In     some      circumstances,       countervailing           for want of standing, both the trial and
        considerations may outweigh the concerns                       reviewing courts must accept as true all material
        underlying the usual reluctance to exert judicial              allegations of the complaint, and must construe
        power when the plaintiff's claimed relief rests on             the complaint in favor of the complaining party;
        the legal rights of third parties; in such instances,          at the same time, it is within trial court's
        it has been found, in effect, that the constitutional          power to allow or require plaintiff to supply,
        or statutory provision in question implies a right             by amendment to the complaint or by affidavits,
        of action in the plaintiff.                                    further particularized allegations of fact deemed
                                                                       supportive of standing.
        202 Cases that cite this headnote
                                                                       812 Cases that cite this headnote
 [15]   Federal Civil Procedure
            In general; injury or interest                      [18]   Zoning and Planning
        Congress may grant an express right of action                      Petition, complaint or application
        to persons who otherwise would be barred                       City residents, who alleged that town zoning
        by prudential standing rules, but art. III's                   ordinance effectively excluded persons of low
        requirement remains: the plaintiff must still                  and moderate income from living in the town,
        allege a distinct and palpable injury to himself,              thereby requiring the city to permit more than
        even if it is an injury shared by a large class of             its fair share of tax-abated housing projects,
        other possible litigants. U.S.C.A.Const. art. 3, §             and who asserted standing as persons of low
        1 et seq.                                                      or moderate income and, coincidentally, as
                                                                       members of minority racial or ethnic groups,
        468 Cases that cite this headnote                              failed to allege facts supporting an actionable
                                                                       causal relationship between town's zoning
 [16]   Federal Civil Procedure                                        practices and such residents' alleged injury.
            Rights of third parties or public
                                                                       63 Cases that cite this headnote
        So long as art. III's requirement is satisfied,
        persons to whom Congress has granted a right of
        action, either expressly or by clear implication,       [19]   Federal Civil Procedure
        may have standing to seek relief on the basis                      Rights of third parties or public
        of the legal rights and interests of others and,               When a governmental prohibition or restriction
        indeed, may invoke the general public interest in              imposed on one party causes specific harm
        support of their claim. U.S.C.A.Const. art. 3, § 1             to a third party, harm that a constitutional
        et seq.                                                        provision or statute was intended to prevent, the
                                                                       indirectness of the injury does not necessarily
        117 Cases that cite this headnote                              deprive the person harmed of standing to
                                                                       vindicate his rights, but it may make it
 [17]   Federal Civil Procedure                                        substantially more difficult to meet the minimum
            Amendments                                                 requirement of art. III: to establish that, in
                                                                       fact, the asserted injury was the consequence of
        Federal Civil Procedure
                                                                       defendants' actions, or that prospective relief will
            Construction of pleadings
                                                                       remove the harm. U.S.C.A.Const. art. 3, § 1 et
        Federal Civil Procedure
                                                                       seq.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

                                                                    the prudential standing rule that normally bars
        104 Cases that cite this headnote                           litigants from asserting the right or legal interests
                                                                    of others in order to obtain relief from injury to
 [20]   Zoning and Planning                                         themselves.
            Petition, complaint or application
                                                                    190 Cases that cite this headnote
        A plaintiff who seeks to challenge exclusionary
        zoning practices must allege specific, concrete
        facts demonstrating that the challenged practices    [23]   Associations
        harm him, and that he personally would                          Actions by or Against Associations
        benefit in a tangible way from the courts'                  An association may have standing in its own
        intervention; absent the necessary allegations of           right to seek judicial relief from injury to
        demonstrable, particularized injury, there can              itself and to vindicate whatever rights and
        be no confidence of a real need to exercise                 immunities the association itself may enjoy;
        the power of judicial review or that relief can             moreover, in attempting to secure relief from
        be framed no broader than required by the                   injury to itself, the association may assert the
        precise facts to which the court's ruling would be          rights of its members, at least so long as
        applied.                                                    the challenged infractions adversely affect its
                                                                    members' associational ties.
        460 Cases that cite this headnote
                                                                    172 Cases that cite this headnote
 [21]   Zoning and Planning
            Right of Review; Standing                        [24]   Associations
        Zoning and Planning                                             Actions by or Against Associations
            Validity of regulations                                 Associations
        A plaintiff who challenges a zoning ordinance                   Pleading and proof
        or zoning practices need not necessarily have               Even in the absence of injury to itself,
        a present contractual interest in a particular              an association may have standing solely as
        project.                                                    the representative of its members, but the
                                                                    possibility of such representational standing does
        8 Cases that cite this headnote                             not eliminate or attenuate the constitutional
                                                                    requirement of a case or controversy; the
 [22]   Zoning and Planning                                         association must allege that its members, or
            Validity of regulations                                 any one of them, are suffering immediate or
                                                                    threatened injury as a result of the challenged
        Zoning and Planning
                                                                    action of the sort that would make out a
            Petition, complaint or application
                                                                    justiciable case had the members themselves
        City taxpayers, who alleged that town zoning
                                                                    brought suit. U.S.C.A.Const. art. 3, § 1 et seq.
        ordinance effectively excluded persons of low
        and moderate income from living in the town,                438 Cases that cite this headnote
        and who alleged that they were suffering
        economic injury because said zoning practices
                                                             [25]   Zoning and Planning
        forced city to provide additional tax-abated
                                                                        Validity of regulations
        housing, failed to establish a line of causation
        between the town's actions and their injury; but            Not-for-profit New York corporation, one
        even assuming that they could establish that                of whose purposes was to inquire into
        the zoning practices harmed them, the basis                 reasons for housing shortage for low and
        of their claim was that the practices violated              moderate income persons in the Rochester,
        the constitutional and statutory rights of third            New York area, was without standing to
        parties, and their claim thus fell squarely within          challenge the constitutionality of town zoning


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

        practices which effectively excluded persons
        of low and moderate income from living in            [28]    Zoning and Planning
        the town, which was adjacent to Rochester,                       Validity of regulations
        since, even though 9% of the corporation's                   Housing council, a not-for-profit New
        membership was composed of town residents,                   York corporation comprised of organizations
        prudential considerations strongly counseled                 interested in housing problems, was without
        against according such residents or the                      standing to challenge the constitutionality
        corporation standing on the basis of their                   of town zoning ordinance which effectively
        complaint that they had been harmed indirectly               excluded persons of low and moderate income
        by the exclusion of others. U.S.C.A.Const. art. 3,           from living in the town, where the complaint and
        § 1 et seq.                                                  record did not indicate that any of the council's
                                                                     members, with one exception, had made any
        19 Cases that cite this headnote                             effort involving the town, had taken any steps
                                                                     toward building there, or had any dealings with
 [26]   Zoning and Planning                                          respondent town officials; and, with respect to
            Validity of regulations                                  the one exception, the council averred no basis
                                                                     for inferring that an earlier controversy between
        Association of firms engaged in residential
                                                                     it and respondents remained a live, concrete
        construction in the Rochester, New York,
                                                                     dispute.
        metropolitan area was without standing to
        bring suit for damages based on alleged                      16 Cases that cite this headnote
        unconstitutionality of town zoning ordinance
        which effectively excluded persons of low and
        moderate income from living in the town, which       [29]    Zoning and Planning
        was adjacent to Rochester, where the association                 Validity of regulations
        alleged no monetary injury to itself and where               Whether the rules of standing are considered
        any injury suffered was peculiar to the individual           as aspects of the constitutional requirement
        association member concerned, thus requiring                 that a plaintiff must make out a “case or
        individualized proof of both the fact and extent             controversy” or as prudential limitations on
        of injury and individual awards.                             the courts' role in resolving disputes involving
                                                                     “generalized grievances” or third parties' legal
        290 Cases that cite this headnote                            rights or interests, none of the petitioners, in suit
                                                                     challenging the constitutionality of town zoning
 [27]   Zoning and Planning                                          ordinance which effectively excluded persons of
            Validity of regulations                                  low and moderate income from living in the
                                                                     town, met the threshold requirement of such
        Association of firms engaged in residential
                                                                     rules. U.S.C.A.Const. art. 3, § 1 et seq.
        construction in the Rochester, New York,
        metropolitan area, which brought suit                        1239 Cases that cite this headnote
        challenging the constitutionality of adjacent
        town's zoning ordinance which effectively
        excluded persons of low and moderate income
        from living in the town, was without standing
        to claim prospective relief, absent any allegation   **2200 Syllabus *
        of facts sufficient to show the existence of
        any injury to association members of sufficient
                                                             *      The syllabus constitutes no part of the opinion of the
        immediacy and ripeness to warrant judicial
                                                                    Court but has been prepared by the Reporter of Decisions
        intervention.
                                                                    for the convenience of the reader. See United States v.
        472 Cases that cite this headnote                           Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26
                                                                    S.Ct. 282—287, 50 L.Ed. 499.



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

 *490 This action for declaratory and injunctive relief and        that their situation might have been better had respondents
damages was brought by certain of the petitioners against          acted otherwise, and might improve were the court to afford
respondent town of Penfield (a suburb of Rochester, N.Y.),         relief. Pp. 2207—2210.
and respondent members of Penfield's Zoning, Planning,
and Town Boards, claiming that the town's **2201 zoning            (b) With respect to petitioners who assert standing on the basis
ordinance, by its terms and as enforced, effectively excluded      of their status as Rochester taxpayers, claiming that they are
persons of low and moderate income from living in the              suffering economic injury through increased taxes resulting
town, in violation of petitioners' constitutional rights and of    from Penfield's zoning practices having forced Rochester to
42 U.S.C. ss 1981, 1982, and 1983. Petitioners consist of          provide more taxabated low- or moderate-cost housing than
both the original plaintiffs—(1) Metro-Act of Rochester, a         it otherwise would have done, the line of causation between
not-for-profit corporation among whose purposes is fostering       Penfield's actions and such injury is not apparent. But even
action to alleviate the housing shortage for low- and              assuming that these petitioners could establish that the zoning
moderate-income persons in the Rochester area; (2) several         practices harm them, the basis of their claim is that the
individual Rochester taxpayers; and (3) several Rochester          practices violate the constitutional and statutory rights of third
area residents with low or moderate incomes who are also           parties—persons of low and moderate income who allegedly
members of minority racial or ethnic groups—and Rochester          are excluded from Penfield. Hence, their claim falls squarely
Home Builders Association (Home Builders), embracing a             within the prudential standing rule that normally bars litigants
number of residential construction firms in the Rochester          from asserting the rights or legal interests of others in order
area, which unsuccessfully sought to intervene as a party-         to obtain relief from injury to themselves. Pp. 2210—2211.
plaintiff, and the Housing Council in the Monroe County Area
(Housing Council), a not-for-profit corporation consisting of      (c) Petitioner Metro-Act's claims to standing as a Rochester
a number of organization interested in housing problems,           taxpayer and on behalf of its members who are Rochester
which was unsuccessfully sought to be added as a party-            taxpayers or persons of low or moderate income, are
plaintiff. The District Court dismissed the complaint on           precluded for the reasons applying to the denial of standing
the ground, inter alia, that petitioners lacked standing to        to the individual petitioner Rochester taxpayers and persons
prosecute the action, and the Court of Appeals affirmed. Held:     of low and moderate income. In addition, with respect to
Whether the rules of standing are considered as aspects of         Metro-Act's claim to standing because 9% **2202 of its
the constitutional requirement that a plaintiff must make out      membership is composed of Penfield residents, prudential
a ‘case or controversy’ within the meaning of Art. III, or,        considerations strongly counsel against according such
apart from such requirement, as prudential limitations on          residents or Metro-Act standing, where the complaint is that
the courts' role in resolving disputes involving ‘generalized      they have been harmed indirectly by the exclusion of others,
grievances' or third parties' legal rights or interests, none of   thus attempting, in the absence of a showing of any exception
the petitioners has met the threshold requirement of such rules    allowing such a claim, to raise the putative rights of third
that to have standing a complainant must clearly allege facts      parties. Trafficante v. Metro-politan Life Ins., 409 U.S. 205,
demonstrating that he is a proper party to invoke judicial         93 S.Ct. 364, 34 L.Ed.2d 415, distinguished. Pp. 2212—2213.
resolution of the dispute and the exercise of the court's
remedial powers. Pp. 2205—2215.                                     *492 (d) Petitioner Home Builders, which alleges no
                                                                   monetary injury to itself, has no standing to claim damages on
 *491 (a) As to petitioner Rochester residents who assert          behalf of its members, since whatever injury may have been
standing as persons of low or moderate income and,                 suffered is peculiar to the individual member concerned, thus
coincidentally, as members of minority racial or ethnic            requiring individualized proof of both the fact and extent of
groups, the facts alleged fail to support an actionable causal     injury and individual awards. Nor does Home Builders have
relationship between Penfield's zoning practices and these         standing to claim prospective relief, absent any allegation
petitioners' alleged injury. A plaintiff who seeks to challenge    of facts sufficient to show the existence of any injury to
exclusionary zoning practices must allege specific, concrete       members of sufficient immediacy and ripeness to warrant
facts demonstrating that such practices harm him, and that he      judicial intervention. Pp. 2213—2214.
personally would benefit in a tangible way from the court's
intervention. Here, these petitioners rely on little more than     (e) Petitioner Housing Council has no standing, where the
the remote possibility, unsubstantiated by allegations of fact,    complaint and record do not indicate that any of its members,



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

with one exception, has made any effort involving Penfield,         averring jurisdiction in the District Court under 28 U.S.C.
has taken any steps toward building there, or had any               ss 1331 and 1343. The complaint identified **2203 Metro-
dealings with respondents. With respect to the one exception,       Act as a not-for-profit New York corporation, the purposes
this petitioner averred no basis for inferring that an earlier      of which are ‘to alert ordinary citizens to problems of social
controversy between it and respondents remained a live,             concern; . . . to inquire into the reasons for the critical
concrete dispute. Pp. 2214—2215.                                    housing shortage for low and moderate income persons in the
                                                                    Rochester area and to urge action on the part of citizens to
495 F.2d 1187, affirmed.                                            alleviate the general housing shortage for low and moderate
                                                                    income persons.’ 2 Plaintiffs Vinkey, Reichert, Warth, and
                                                                    Harris were described as residents of the city of Rochester,
Attorneys and Law Firms
                                                                    all of whom owned real property in and paid property taxes
Emmelyn Logan-Baldwin, Rochester, N.Y., for petitioners.            to that city. 3 Plaintiff Ortiz, ‘a citizen of Spanish/Puerto
                                                                    Rican extraction,’ App. 7, also owned real property in and
James M. Hartman, Rochester, N.Y., for respondents.                 paid taxes to Rochester. Ortiz, however, resided in Wayland,
Opinion                                                             N.Y., some 42 miles from Penfield where he was employed. 4
                                                                    The complaint described plaintiffs Broadnax, Reyes, and
*493 Mr. Justice POWELL delivered the opinion of the                Sinkler as residents of Rochester and ‘persons fitting within
Court.                                                              the classification of low and moderate income as hereinafter
                                                                    defined. . . .' 5 Ibid. Although *495 the complaint does not
Petitioners, various organizations and individuals resident in
                                                                    expressly so state, the record shows that Broadnax, Reyes,
the Rochester, N.Y., metropolitan area, brought this action
                                                                    and Sinkler are members of ethnic or racial minority groups:
in the District Court for the Western District of New York
                                                                    Reyes is of Puerto Rican ancestry; Broadnax and Sinkler are
against the town of Penfield, an incorporated municipality
                                                                    Negroes.
adjacent to Rochester, and against members of Penfield's
                                                                    1      Plaintiffs claimed to represent, pursuant to Fed.Rule
Zoning, Planning and Town Boards. Petitioners claimed that
the town's zoning ordinance, by its terms and as enforced by               Civ.Proc. 23(b)(2), classes constituting ‘all taxpayers of
the defendant board members, respondents here, effectively                 the City of Rochester, all low and moderate income
                                                                           persons residing in the City of Rochester, all black and/
excluded persons of low and moderate income from living
                                                                           or Puerto Rican/Spanish citizens residing in the City of
in the town, in contravention of petitioners' First, Ninth, and
                                                                           Rochester and all persons employed but excluded from
Fourteenth Amendment rights and in violation of 42 U.S.C.
                                                                           living in the Town of Penfield who are affected or may
ss 1981, 1982, and 1983. The District Court dismissed the
                                                                           in the future be affected by the defendants' policies and
complaint and denied a motion to add petitioner Housing                    practices. . . .’ App. 9.
Council in the Monroe County Area, Inc., as party-plaintiff
                                                                    2      Id., at 8—9.
and also a motion by petitioner Rochester Home Builders
Association, Inc., for leave to intervene as party-plaintiff. The   3      Plaintiff Harris further described in the complaint as ‘a
Court of Appeals for the Second Circuit affirmed, holding
                                                                           negro person who is denied certain rights by virtue of
that none of the plaintiffs, and neither Housing Council nor               her race. . . .’ App. 5. We find no indication in the
Home Builders Association, had standing to prosecute the                   record that Harris had either the desire or intent to live
action. 495 F.2d 1187 (1974). We granted the petition for                  in Penfield was suitable housing to become available.
certiorari. 419 U.S. 823, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974).               Indeed, petitioners now appear to claim standing for
For reasons that differ in certain respects from those upon                Harris only on the ground that she is a taxpayer of
which the Courtof Appeals relied, we affirm.                               Rochester. See Brief for Petitioners 9, 12.
                                                                    4      According to Ortiz' affidavit, submitted in answer to
                               I                                           respondents' motion to dismiss, he was employed in
                                                                           Penfield from 1966 to May 1972. App. 366—367.
Petitioners Metro-Act of Rochester, Inc., and eight individual
                                                                    5      In fact, however, the complaint nowhere defines the term
plaintiffs, on behalf of themselves and all persons similarly
            1                                                              ‘low and moderate income’ beyond the parenthetical
situated,       filed this action on January 24, *494 1972,
                                                                           phrase ‘without the capital requirements to purchase real



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

        estate.’ E.g., id., at 18. In addition to the inadequacy of
        this definition, the record discloses wide variations in the   Petitioners further alleged certain harm to themselves. The
        income, housing needs, and money available for housing         Rochester property owners and taxpayers—Vinkey, Reichert,
        among the various ‘low and moderate income’ plaintiffs.        Warth, Harris, and Ortiz—claimed that because of Penfield's
        See Part III, infra.                                           exclusionary practices, the city of Rochester had been forced
                                                                       to impose higher tax rates on them and other similarly
Petitioners' complaint alleged that Penfield's zoning                  situated than would otherwise have been necessary. The low-
ordinance, adopted in 1962, has the purpose and effect of              and moderate-income, minority plaintiffs—Ortiz, Broadnax,
excluding person of low and moderate income from residing              Reyes, and Sinkler—claimed that Penfield's zoning practices
in the town. In particular, the ordinance allocates 98% of the         had prevented them from acquiring, by lease or purchase,
town's vacant land to single-family detached housing, and              residential property in the town, and thus had forced them
allegedly by imposing unreasonable requirements relating to            and their families to reside in less attractive environments.
lot size, setback, floor area, and habitable space, the ordinance      To relieve these various harms, petitioners asked the District
increases the cost of single-family detached housing beyond            Court to declare the Penfield ordinance unconstitutional, to
the means of persons of low and moderate income. Moreover,             enjoin the defendants from enforcing the ordinance, to order
according to petitioners, only 0.3% of the land available for          the defendants to enact and administer a new ordinance
residential construction is allocated to multifamily structures        designed to alleviate the effects of their past actions, and to
(apartments, townhouses, and the like), and even on this               award $750,000 in actual and exemplary damages.
limited space, housing for low and moderate income persons
is not economically feasible because of low density and other           *497 On May 2, 1972, petitioner Rochester Home Builders
requirements. Petitioners also alleged that ‘in furtherance of         Association, an association of firms engaged in residential
a policy of exclusionary zoning,’ id., at 22, the defendant            construction in the Rochester metropolitan area, moved the
members of Penfield's Town, Zoning, and Planning Boards                District Court for leave to intervene as a party-plaintiff. In
had acted in an arbitrary and discriminatory manner: they              essence, Home Builders' intervenor complaint repeated the
had delayed action on proposals for low- and moderate-                 allegations of exclusionary zoning practices made by the
cost housing for inordinate periods of time; denied such               original plaintiffs. It claimed that these practices arbitrarily
proposals for arbitrary and insubstantial reasons; refused             and capriciously had prevented its member firms from
to grant necessary variances and permits, or to allow tax              building low- and moderate-cost housing in Penfield, and
abatements; failed to provide necessary support services for           thereby had deprived them of potential profits. Home
low- and moderate-cost housing projects; and had *496                  Builders prayed for equitable relief identical in substance
amended the ordinance to make approval of such projects                to that requested by the original plaintiffs, and also for
virtually impossible.                                                  $750,000 in damages. 7 On June 7, 1972, Metro-Act and
                                                                       the other original plaintiffs moved to join petitioner Housing
In sum, petitioners alleged that, in violation of their ‘rights,       Council in the Monroe County Area, Inc., as a party
privileges and immunities secured by the Constitution and              plaintiff. Housing Council is a not-for-profit New York
laws of the United States,’ id., at 17, the town and its               corporation, its membership comprising some 71 public and
officials had made ‘practically and economically impossible            private organizations interested in housing problems. An
the construction of sufficient numbers **2204 of low and               affidavit accompanying the motion stated that 17 of Housing
moderate income . . . housing in the Town of Penfield                  Council's member groups were or hoped to be involved in
to satisfy the minimum housing requirements of both the                the development of low- and moderate-cost housing, and that
Town of Penfield and the metropolitan Rochester area . . ..' 6         one of its members—the Penfield Better Homes Corp.—‘is
Petitioners alleged, moreover, that by precluding low- and             and has been actively attempting to develop moderate income
moderate-cost housing, the town's zoning practices also had            housing’ in Penfield, ‘but has been stymied by its inability to
the effect of excluding persons of minority racial and ethnic          secure the necessary approvals . . ..’ 8
groups, since most such persons have only low or moderate              7       Home Builders also asked the District Court to enjoin
incomes.
                                                                              the defendants from carrying out threatened retaliation
6       App. 25—26.                                                           against its members if Home Builders joined this
                                                                              litigation.




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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

8      Id., at 174.                                                threatened or actual injury resulting from the putatively illegal
                                                                   action . . ..’ Linda R.S. v. Richard D., 410 U.S. 614, 617,
Upon consideration of the complaints and of extensive              93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). See Data
supportive materials submitted by petitioners, the District        Processing Service v. Camp, 397 U.S. 150, 151—154, 90
Court held that the original plaintiffs, Home Builders, and        S.Ct., 827, 829—830, 25 L.Ed.2d 184 (1970). 10
Housing Council lacked standing to prosecute *498 the
action, that the original complaint failed to state a claim upon   9       See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler,
which relief could be granted, that the suit should not proceed            Hart & Wechsler's The Federal Courts and the Federal
as a class action, and that, in the exercise of discretion, Home           System 156 (2d ed. 1973).
Builders should not be permitted to intervene. The court
                                                                   10      The standing question thus bears close affinity to
accordingly denied the motion to add Housing Council as a
                                                                           questions of ripeness—whether the harm asserted has
party-plaintiff, denied Home Builders' motion to intervene,
                                                                           matured sufficiently to warrant judicial intervention
and dismissed the complaint. The Court of Appeals affirmed,
                                                                           —and of mootness-whether the occasion for judicial
reaching only the standing questions.                                      intervention persists. E.g., Lake Carriers' Assn. v.
                                                                           MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d
                          **2205 II                                        257 (1972); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200,
                                                                           24 L.Ed.2d 214 (1969). See Committee Anti-Fascist v.
 [1] [2] We address first the principles of standing relevant              McGrath, 341 U.S. 123, 154—156, 71 S.Ct. 624, 639—
to the claims asserted by the several categories of petitioners            640, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
in this case. In essence the question of standing is whether      [8] [9] Apart from this minimum constitutional mandate,
the litigant is entitled to have the court decide the merits     this Court has recognized other limits on the class of persons
of the dispute or of particular issues. This inquiry involves    who may invoke the courts' decisional and remedial powers.
both constitutional limitations on federal-court jurisdiction    First, the Court has held that when the asserted harm is a
and prudential limitations on its exercise. E.g., Barrows v.     ‘generalized grievance’ shared in substantially equal measure
Jackson, 346 U.S. 249, 255—256, 73 S.Ct. 1031, 1034—             by all or a large class of citizens, that harm alone normally
1035, 97 L.Ed. 1586 (1953). In both dimensions it is founded     does not warrant exercise of jurisdiction. E.g., Schlesinger
in concern about the proper—and properly limited—role            v. Reservists to Stop the War, supra; United States v.
of the courts in a democratic society. See Schlesinger v.        Richardson, supra; Ex parte Le vitt, 302 U.S. 633, 634, 58
Reservists to Stop the War, 418 U.S. 208, 221—227, 94 S.Ct.      S.Ct. 1, 82 L.Ed. 493 (1937), Second, even when the plaintiff
2925, 2932—2935, 41 L.Ed.2d 706 (1974); United States v.         has alleged injury sufficient to meet the ‘case or controversy’
Richardson, 418 U.S. 166, 188—197, 94 S.Ct. 2940, 2952—          requirement, this Court has held that the plaintiff generally
2956, 41 L.Ed.2d 678 (1974) (Powell, J., concurring).            must assert his own legal rights and interests, and cannot
                                                                 rest his claim to relief on the legal rights or interests of third
 [3]    [4]     [5]   [6]     [7] In its constitutional dimension,
                                                                 parties. E.g., Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87
standing imports justiciability: whether the plaintiff has made  L.Ed. 603 (1943). See United States v. Raines, 362 U.S. 17, 80
out a ‘case or controversy’ between himself and the defendant    S.Ct. 519, 4 L.Ed.2d 524 (1960); Barrows v. *500 Jackson,
within the meaning of Art. III. This is the threshold question   supra. Without such limitations—closely related to Art. III
in every federal case, determining the power of the court to     concerns but essentially matters of judicial self-governance—
entertain the suit. As an aspect of justiciability, the standing the courts would **2206 be called upon to decide abstract
question is whether the plaintiff has ‘alleged such a personal   questions of wide public significance even though other
stake in the outcome of the controversy’ as to warrant his       governmental institutions may be more competent to address
invocation of federal-court jurisdiction and to justify exercise the questions and even though judicial intervention may be
of the court's remedial powers on *499 his behalf. Baker v.      unnecessary to protect individual rights. See, e.g., Schlesinger
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663        v. Reservists to Stop the War, 418 U.S., at 222, 94 S.Ct., at
(1962). 9 The Art. III judicial power exists only to redress       2932. 11
or otherwise to protect against injury to the complaining
party, even though the court's judgment may benefit others         11      Cf. Scott, Standing in the Supreme Court—A Functional
collaterally. A federal court's jurisdiction therefore can be              Analysis, 86 Harv.L.Rev. 645 (1973).
invoked only when the plaintiff himself has suffered ‘some


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

 [10]      [11]     [12]      [13]     [14]     [15]     [16] Although Maryland, 366 U.S. 420, 429—430, 81 S.Ct. 1101, 1106
standing in no way depends on the merits of the plaintiff's                 —1107, 6 L.Ed.2d 393 (1961). In such circumstances,
contention that particular conduct is illegal, e.g., Flast v.               there is no Art. III standing problem; but the prudential
Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d                     question is governed by considerations closely related to
                                                                            the question whether a person in the litigant's position
947 (1968), it often turns on the nature and source of the
                                                                            would have a right of action on the claim. See Part IV,
claim asserted. The actual or threatened injury required by
                                                                            infra.
Art. III may exist solely by virtue of ‘statutes creating
legal rights, the invasion of which creates standing . . ..’        [17] One further preliminary matter requires discussion. For
See Linda R.S. v. Richard D., supra, 410 U.S., at 617              purposes   of ruling on a motion to dismiss for want of standing,
n. 3, 93 S.Ct., at 1148; Sierra Club v. Morton, 405 U.S.           both the trial and reviewing courts must accept as true all
727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972).              material allegations of the complaint, and must construe the
Moreover, the source of the plaintiff's claim to relief assumes    complaint in favor of the complaining party. E.g., Jenkins v.
critical importance with respect to the prudential rules of        McKeithen, 395 U.S. 411, 421—422, 89 S.Ct. 1843, 1848—
standing that, apart from Art. III's minimum requirements,         1849, 23 L.Ed.2d 404 (1969). At the same time, it is within
serve to limit the role of the courts in resolving public          the trial court's power to allow or to require **2207 the
disputes. Essentially, the standing question in such cases is      plaintiff to supply, by amendment to the complaint or by
whether the constitutional or statutory provision on which the     affidavits, further particularized allegations of fact deemed
claim rests properly can be understood as granting persons         supportive of plaintiff's standing. If, after this opportunity,
                                                                    *502 the plaintiff's standing does not adequately appear
in the plaintiff's position a right to judicial relief. 12 In
                                                                   from all materials of record, the complaint must be dismissed.
some circumstances, countervailing *501 considerations
may outweigh the concerns underlying the usual reluctance to
exert judicial power when the plaintiff's claim to relief rests
on the legal rights of third parties. See United States v. Raines,                                   III
362 U.S., at 22—23, 80 S.Ct., at 523—524. In such instances,
the Court has found, in effect, that the constitutional or          [18] With these general considerations in mind, we turn
statutory provision in question implies a right of action in the   first to the claims of petitioners Ortiz, Reyes, Sinkler, and
plaintiff. See Pierce v. Society of Sisters, 268 U.S. 510, 45      Broadnax, each of whom asserts standing as a person of low
S.Ct. 571, 69 L.Ed. 1070 (1925); Sullivan v. Little Hunting        or moderate income and, coincidentally, as a member of a
Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d       minority racial or ethnic group. We must assume, taking the
386 (1969). See generally Part IV, infra. Moreover, Congress       allegations of the complaint as true, that Penfield's zoning
may grant an express right of action to persons who otherwise      ordinance and the pattern of enforcement by respondent
would be barred by prudential standing rules. Of course, Art.      officials have had the purpose and effect of excluding persons
III' s requirement remains: the plaintiff still must allege a      of low and moderate income, many of whom are members
distinct and palpable injury to himself, even if it is an injury   of racial or ethnic minority groups. We also assume, for
shared by a large class of other possible litigants. E.g., United  purposes here, that such intentional exclusionary practices, if
States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d           proved in a proper case, would be adjudged violative of the
254 (1973). But so long as this requirement is satisfied,          constitutional and statutory rights of the persons excluded.
persons to whom Congress has granted a right of action, either
expressly or by clear implication, may have standing to seek
                                                                    But the fact that these petitioners share attributes common
relief on the basis of the legal rights and interests of others,
                                                                    to persons who may have been excluded from residence
and, indeed, may invoke the general public interest in support
                                                                    in the town is an insufficient predicate for the conclusion
of their claim. E.g., Sierra Club v. Morton, supra, 405 U.S.,
                                                                    that petitioners themselves have been excluded, or that the
at 737, 92 S.Ct., at 1367; FCC v. Sanders Radio Station, 309
                                                                    respondents' assertedly illegal actions have violated their
U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869 (1940).
                                                                    rights. Petitioners must allege and show that they personally
                                                                    have been injured, not that injury has been suffered by other,
12     A similar standing issue arises when the litigant asserts    unidentified members of the class to which they belong and
       the rights of third parties defensively, as a bar to         which they purport to represent. Unless these petitioners can
       judgment against him. E.g., Barrows v. Jackson, 346 U.S.
                                                                    thus demonstrate the requisite case or controversy between
       249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); McGowan v.
                                                                    themselves personally and respondents, ‘none may seek relief


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

on behalf of himself or any other member of the class.’ O'Shea               the Rochester metropolitan newspapers since coming to
v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d               Rochester in 1966 and during that time and to the present
674 (1974). See, e.g., Bailey v. Patterson, 369 U.S. 31, 32—                 time, I have not located either rental housing or housing
33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962).                             to buy in Penfield.’ App. 37.
                                                                             Petitioner Reyes averred that, for some time before
 *503 In their complaint, petitioners Ortiz, Reyes, Sinkler,                 locating and purchasing their present residence in
and Broadnax alleged in conclusory terms that they are                       Rochester, she and her husband had searched for a
                                                                             suitable residence in suburban communities: ‘(O)ur
among the persons excluded by respondents' actions. 13 None
                                                                             investigation for housing included the Rochester
of them has ever resided in Penfield; each claims at least                   bedroom communities of Webster, Irondequoit, Penfield
implicitly that he desires, or has desired, to do so. Each                   and Perinton. Our search of a period of two years led
asserts, moreover, that he made some effort, at some time,                   us to no possible purchase in any of these towns.’ Id.,
to locate housing in Penfield that was at once within his                    at 428. Petitioner Sinkler stated that she had ‘searched
means and adequate for his family's needs. Each claims                       for alternate housing in the Rochester metropolitan area,’
that his efforts proved fruitless. 14 *504 We may assume,                    including the Town of Penfield, and has found that ‘a
                                                                             black person has no choice of housing . . ..’ In particular,
 **2208 as petitioners allege, that respondents' actions have
                                                                             ‘there are no apartments available in the town of Penfield
contributed, perhaps substantially, to the cost of housing in
                                                                             which a person of my income level can afford.’ Id., at
Penfield. But there remains the question whether petitioners'
                                                                             452—453. Petitioner Broadnax said only that she had
inability to locate suitable housing in Penfield reasonably                  ‘bought newspapers and read ads and walked to look for
can be said to have resulted, in any concretely demonstrable                 apartments until I found the place where I now reside. I
way, from respondents' alleged constitutional and statutory                  found that there was virtually no choice of housing in the
infractions. Petitioners must allege facts from which it                     Rochester area.’ Id., at 407.
reasonably could be inferred that, absent the respondents'
                                                                       [19] We find the record devoid of the necessary allegations.
restrictive zoning practices, there is a substantial probability
                                                                      As the Court of Appeals noted, none of these petitioners
that they would have been able to purchase or lease in Penfield
                                                                      has a present interest in any Penfield property; none is
and that, if the court affords the relief requested, the asserted
                                                                      himself subject to the ordinance's strictures; and none has
inability of petitioners will be removed. Linda R.S. v. Richard
                                                                      even been denied a variance or permit by respondent
D., supra.
                                                                      officials. 495 F.2d, at 1191. Instead, petitioners claim that
13       Petitioner Ortiz also alleged that as a result of such       respondents' enforcement of the ordinance against third
        exclusion he had to incur substantial communting              parties—developers, builders, and the like—has had the
        expenses between his residence and his former place of        consequence of precluding the construction of housing
        employment in Penfield; and, in supporting affidavits,
                                                                      suitable to their needs at prices they might be able to afford.
        each petitioner recites at some length the disadvantages
                                                                      The fact that the harm to petitioners may have resulted
        of his or her present housing situation and how that
                                                                      indirectly does not in itself preclude standing. *505 When
        situation might be improved were residence in Penfield
        possible. For purposes of standing, however, it is the        a governmental prohibition or restriction imposed on one
        exclusion itself that is of critical importance, since        party causes specific harm to a third party, harm that a
        exclusion alone would violate the asserted rights quite       constitutional provision or statute was intended to prevent,
        apart from any objective or subjective disadvantage that      the indirectness of the injury does not necessarily deprive the
        may flow from it.                                             person harmed of standing to vindicate his rights. E.g., Roe v.
14                                                                    Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 712, 35 L.Ed.2d 147
        In his affidavit submitted in opposition to respondents'
                                                                      (1973). But it may make it substantially more difficult to meet
        motion to dismiss, petitioner Ortiz stated:
                                                                      the minimum requirement of Art. III: to establish that, in fact,
        ‘Since my job at that time and continuing until May of
                                                                      the asserted injury was the consequence of the defendants'
        1972 was in the Town of Penfield, I initiated inquiries
        about renting and/or buying a home in the Town of             actions, or that prospective relief will remove the harm.
        Penfield. However, because of my income being low
        or moderate, I found that there were no apartment
                                                                      Here, by their own admission, realization of petitioners' desire
        units large enough to house my family of wife and
        seven children, nor were there apartment units that were      to live in Penfield always has depended on the efforts and
        available reasonably priced so that I could even afford to    willingness of third parties to build low- and moderate-cost
        rent the largest apartment unit. I have been reading ads in   housing. The record specifically refers to only two such


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

efforts: that of Penfield Better Homes Corp., in late 1969, to             herself and six children, and can spend a maximum of
obtain the rezoning of certain land in Penfield to allow the               about $120 per month for housing. Id., at 417—418.
construction of subsidized cooperative townhouses that could               Sinkler also states that she can spend $120 per month
be purchased by persons of moderate income; and a similar                  for housing for herself and two children. Id., at 452—
                                                                           453. Thus, at least in the cases of Ortiz and Broadnax,
effort by O'Brien Homes, Inc., in late 1971. 15 But *506 the               it is doubtful that their stated needs could have been
record **2209 is devoid of any indication that these projects,             satisfied by the small housing units contemplated in
or other like projects, would have satisfied petitioners' needs            the only moderate-cost projects specifically described in
at prices they could afford, or that, were the court to remove             the record. Moreover, there is no indication that any of
the obstructions attributable to respondents, such relief would            the petitioners had the resources necessary to acquire
benefit petitioners. Indeed, petitioners' descriptions of their            the housing available in the projects. The matter is left
individual financial situations and housing needs suggest                  entirely obscure. The income and housing budget figures
precisely the contrary—that their inability to reside in                   supplied in petitioners' affidavits are presumably for
Penfield is the consequence of the economics of the area                   the year 1972. The vague description of the proposed
housing market, rather than of respondents' assertedly illegal             O'Brien development strongly suggests that the units,
                                                                           even if adequate for their needs, would have bee beyond
acts. 16 In *507 short, the facts alleged fail to support                  the means at least of Sinkler and Broadnax. See n.
an actionable causal relationship between Penfield's zoning                15, supra. The Penfield Better Homes projected price
practices and petitioners' asserted injury.                                figures were for 1969, and must be assumed—even if
15      Penfield Better Homes contemplated a series of one-                subsidies might still be available—to have increased
       to three-bedroom units and hoped to sell them—at                    substantially by 1972, when the complaint was filed.
       that time—to persons who earned from $5,000 to                      Petitioner Reyes presents a special case: she states that
       $8,000 per year. The Penfield Planning Board denied                 her family has an income of over $14,000 per year, that
       the necessary variance on September 9, 1969, because                she can afford $231 per month for housing, and that,
       of incompatibility with the surrounding neighborhood,               in the past and apparently now, she wants to purchase
       projected traffic congestion, and problems of severe                a residence. As noted above, see n. 5, supra, the term
       soil erosion during construction. Id., at 629—633, 849              ‘low and moderate income’ is nowhere defined in the
       —859, 883—884. O'Brien Homes, Inc., projected 51                    complaint; but Penfield Better Homes defined the term
       buildings, each containing four family units, designed for          as between $5,000 and $8,000 per year. See n. 15, supra.
       single people and small families, and capable of being              Since that project was to be subsidized, presumably
       purchased by persons ‘of low income and accumulated                 petitioner Reyes would have been ineligible. There is no
       funds' and ‘of moderate income with limited funds for               indication that in nonsubsidized projects, removal of the
       down payment . . ..’ Id., at 634. The variance for this             challenged zoning restrictions—in 1972—would have
       project was denied by the Planning Board on October 12,             reduced the price on new single-family residences to a
       1971; a revision of the proposal was reconsidered by the            level that petitioner Reyes thought she could afford.
       Planning Board in April 1972, and, from all indications
       of record, apparently remains under consideration. The       In support of their position, petitioners refer to several
       record also indicates the existence of several proposals     decisions in the District Courts and Courts of Appeals,
       for ‘planned unit developments'; but we are not told         acknowledging standing in low-income, minority-group
       whether these projects would allow sale at prices that
                                                                    plaintiffs to challenge exclusionary zoning practices. 17
       persons of low or moderate income are likely to be
                                                                    In those cases, however, the plaintiffs challenged zoning
       able to afford. There is, more importantly, not the
       slightest suggestion that they would be adequate, and of
                                                                    restrictions as applied to particular projects that would supply
       sufficiently low cost, to meet these petitioners' needs.     housing within their means, and of which they were intended
                                                                    residents. The plaintiffs thus were able to demonstrate that
16     Ortiz states in his affidavit that he is now purchasing      unless relief from assertedly illegal actions was forthcoming,
       and resides in a six-bedroom dwelling in Wayland, N.Y.;      their immediate and personal interests would be harmed.
       and that he owns and receives rental income from a           Petitioners here assert no like circumstances. Instead, they
       house in Rochester. He is concerned with finding a house
                                                                    rely on little more than the remote possibility, unsubstantiated
       or apartment large enough for himself, his wife, and
                                                                    by allegations of fact, that their situation might have been
       seven children, but states that he can afford to spend a
                                                                    better had respondents acted otherwise, and **2210 might
       maximum of $120 per month for housing. Id., at 370.
       Broadnax seeks a four-bedroom house or apartment for
                                                                    improve were the court to afford relief.



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

17     See, e.g., Park View Heights Corp. v. City of Black Jack,     Rochester taxpayers are forced to assume an increased tax
       467 F.2d 1208 (CA8 1972); Crow v. Brown, 457 F.2d             burden in order to finance essential public services.
       788 (CA5 1972), aff'g 332 F.Supp. 382 (ND Ga.1971);
       Kennedy Park Homes Assn., v. City of Lackawanna,
       436 F.2d 108 (CA2 1970), cert. denied, 401 U.S. 1010,        ‘Of course, pleadings must be something more than an
       91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Dailey v. City         ingenious academic exercise in the conceivable.’ United
       of Lawton, 425 F.2d 1037 (CA10 1970). Cf. United             States v. SCRAP, 412 U.S., at 688, 93 S.Ct. 2405, 2416,
       Farmworkers of Florida Housing Project, Inc. v. City of      37 L.Ed.2d 254. We think the complaint of the taxpayer-
       Delray Beach, 493 F.2d 799 (CA5 1974).                       petitioners is little more than such an exercise. Apart from the
 [20] [21] *508 We hold only that a plaintiff who seeks to conjectural nature of the asserted injury, the line of causation
challenge exclusionary zoning practices must allege specific,       between Penfield's actions and such injury is not apparent
concrete facts demonstrating that the challenged practices          from the complaint. Whatever may occur in Penfield, the
harm him, and that he personally would benefit in a tangible        injury complained of—increases in taxation—results only
                                                                    from decisions made by the appropriate Rochester authorities,
way from the court's intervention. 18 Absent the necessary
                                                                    who are not parties to this case.
allegations of demonstrable, particularized injury, there can
be no confidence of ‘a real need to exercise the power of           But even if we assume that the taxpayer-petitioners could
judicial review’ or that relief can be framed ‘no (broader) than
                                                                    establish that Penfield's zoning practices harm them, 19 their
required by the precise facts to which the court's ruling would
                                                                    complaint nonetheless was properly dismissed. Petitioners
be applied.’ Schlesinger v. Reservists to Stop the War, 418
                                                                    do not, even if they could, assert any personal right under
U.S., at 221—222, 94 S.Ct., at 2932.
                                                                    the Constitution or any statute to be free of action by a
                                                                    neighboring municipality that may have some incidental
18      This is not to say that the plaintiff who challenges        adverse effect on Rochester. On the contrary, the only
        a zoning ordinance or zoning practices must have a          basis of the taxpayer-petitioners' claim is that Penfield's
        present contractual interest in a particular project. A     zoning ordinance and practices violate the constitutional and
        particularized personal interest may be shown in various
                                                                    statutory rights of third parties, namely, persons of low and
        ways, which we need not undertake to identify in the
                                                                    moderate income who are said to be excluded from Penfield.
        abstract. But usually the initial focus should be on a
                                                                    In short the claim of these petitioners falls squarely within
        particular project. See, e.g., cases cited in n. 17, supra
        We also note that zoning laws and their provisions,         the prudential standing rule that normally bars litigants from
        long considered essential to effective urban planning,      asserting the rights or legal interests of others in order to
        are peculiarly within the province of state and local       obtain relief from injury to themselves. As we have observed
        legislative authorities. They are, of course, subject to    above, this rule of judicial self-governance is subject **2211
        judicial review in a proper case. But citizens dissatisfied to exceptions, the most prominent of which is that Congress
        with provisions of such laws need not overlook the          may remove it by statute. Here, however, *510 no statute
        availability of the normal democratic process.              expressly or by clear implication grants a right of action, and
                                                                    thus standing to seek relief, to persons in petitioners' position.
                                                                    In several cases, this Court has allowed standing to litigate
                                 IV                                 the rights of third parties when enforcement of the challenged
 [22] The petitioners who assert standing on the basis of their restriction against the litigant would result indirectly in the
                                                                    violation of third parties' rights. See, e.g., Doe v. Bolton, 410
status as taxpayers of the city of Rochester present a different
                                                                    U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 205 (1973);
set of problems. These ‘taxpayer-petitioners' claim that
                                                                    Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678,
they are suffering economic injury consequent to Penfield's
                                                                    1680, 14 L.Ed.2d 510 (1965); Barrows v. Jackson, 346 U.S.
allegedly discriminatory and exclusionary zoning practices.
                                                                    249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). But the taxpayer-
Their argument, in brief, is that Penfield's persistent refusal
                                                                    petitioners are not themselves subject to Penfield's zoning
to allow or to facilitate construction of low- and moderate-
                                                                    practices. Nor do they allege that the challenged zoning
cost housing forces the city of Rochester to provide more
                                                                    ordinance and practices preclude or otherwise adversely
such housing than it otherwise would do; that to provide such
                                                                    affect a relationship existing between them and the persons
housing, Rochester must allow certain tax abatements; and
                                                                    whose rights assertedly are violated. E.g., Sullivan v. Little
 *509 that as the amount of tax-abated property increases,
                                                                    Hunting Park, Inc., 396 U.S., at 237, 90 S.Ct. 400, 404, 24


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

L.Ed.2d 386; NAACP v. Alabama, 357 U.S. 449, 458—460,              246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963). The possibility of
78 S.Ct. 1163, 1169—1171, 2 L.Ed.2d 1488 (1958); Pierce v.         such representational standing, however, does not eliminate
Society of Sisters, 368 U.S., at 534—536, 45 S.Ct. 571, 573—       or attenuate the constitutional requirement of a case or
574, 69 L.Ed. 1070. No relationship, other than an incidental      controversy. See Sierra Club v. Morton, 405 U.S. 727, 92
congruity of interest, is alleged to exist between the Rochester   S.Ct. 1361, 31 L.Ed.2d 636 (1972). The association must
taxpayers and persons who have been precluded from living          allege that its members, or any one of them, are suffering
in Penfield. Nor do the taxpayer-petitioners show that their       immediate **2212 or threatened injury as a result of the
prosecution of the suit is necessary to insure protection of       challenged action of the sort that would make out a justiciable
the rights asserted, as there is no indication that persons        case had the members themselves brought suit. Id., at 734
who in fact have been excluded from Penfield are disabled          —741, 92 S.Ct., at 1365—1369. So long as this can be
from asserting their own right in a proper case. 20 In sum,        established, and so long as the nature of the claim and of the
we discern no justification for recognizing in the Rochester       relief sought does not make the individual participation of
taxpayers a right of action on the asserted claim.                 each injured party indispensable to proper resolution of the
19                                                                 cause, the association may be an appropriate representative of
       Cf. United States v. SCRAP, 412 U.S. 669, 688—690,
                                                                   its members, entitled to invoke the court's jurisdiction.
       93 S.Ct. 2405, 2416—2417, 37 L.Ed.2d 254 (1973). But
       see Roe v. Wade, 410 U.S. 113, 127—129, 93 S.Ct. 705,
       714—715, 35 L.Ed.2d 147 (1973).
20                                                                                            *512 A
       See generally Sedler, Standing to Assert Constitutional
       Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962).
                                                                    [25] Petitioner Metro-Act's claims to standing on its own
       Cf. Bigelow v. Virginia, 421 U.S. 809, 815—817, 95
                                                                   behalf as a Rochester taxpayer, and on behalf of its members
       S.Ct. 2222, 44 L.Ed.2d 600 (1975).
                                                                   who are Rochester taxpayers or persons of low or moderate
                                                                   income, are precluded by our holdings in Parts III and
                               V                                   IV, supra, as to the individual petitioners, and require no
                                                                   further discussion. Metro-Act also alleges, however, that
 [23] We turn next to the standing problems presented by           9% of its membership is composed of present residents
the petitioner associations—Metro-Act of Rochester, *511           of Penfield. It claims that, as a result of the persistent
Inc., one of the original plaintiffs; Housing Council in the       pattern of exclusionary zoning practiced by respondents and
Monroe County Area, Inc., which the original plaintiffs            the consequent exclusion of persons of low and moderate
sought to join as a party-plaintiff; and Rochester Home            income, those of its members who are Penfield residents
Builders Association, Inc., which moved in the District Court      are deprived of the benefits of living in a racially and
for leave to intervene as plaintiff. There is no question          ethnically integrated community. Referring to our decision in
that an association may have standing in its own right to          Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93
seek judicial relief from injury to itself and to vindicate        S.Ct. 364, 34 L.Ed.2d 415 (1972), Metro-Act argues that such
whatever rights and immunities the association itself may          deprivation is a sufficiently palpable injury to satisfy the Art.
enjoy. Moreover, in attempting to secure relief from injury        III case-or-controversy requirement, and that it has standing
to itself the association may assert the rights of its members,    as the representative of its members to seek redress.
at least so long as the challenged infractions adversely affect
its members' associational ties. E.g., NAACP v. Alabama,
supra, 357 U.S., at 458—460, 78 S.Ct. 1163, 1169—1171, 2           We agree with the Court of Appeals that Trafficante is not
L.Ed.2d 1488; Anti-Fascist Committee v. McGrath, 341 U.S.          controlling here. In that case, two residents of an apartment
123, 183—187, 71 S.Ct. 624, 654—657, 95 L.Ed. 817 (1951)           complex alleged that the owner had discriminated against
(Jackson J., concurring). With the limited exception of Metro-     rental applicants on the basis of race, in violation of s 804
Act, however, none of the associational petitioners here has       of the Civil Rights Act of 1968, 82 Stat. 83, 42 U.S.C. s
asserted injury to itself.                                         3604. They claimed that, as a result of such discrimination,
                                                                   ‘they had been injured in that (1) they had lost the social
[24] Even in the absence of injury to itself, an association       benefits of living in an integrated community; (2) they had
may have standing solely as the representative of its members.     missed business and professional advantages which would
E.g., National Motor Freight Assn. v. United States, 372 U.S.      have accrued if they had lived with members of minority



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

groups; (3) they had suffered embarrassment and economic                    whether, had the complaint alleged purposeful racial or
damage in social, business, and professional activities from                ethnic discrimination, Metro-Act would have stated a
being ‘stigmatized’ as residents of a ‘white ghetto.“ 409 U.S.,             claim under s 804. See Park View Heights Corp. v. City
at 208, 93 S.Ct., at 366. In light of the clear congressional               of Black Jack, 467 F.2d 1208 (CA8 1972).
purpose *513 in enacting the 1968 Act, and the broad
definition of ‘person aggrieved’ in s 810(a), 42 U.S.C. s            Even if we assume, arguendo, that apart from any statutorily
3610(a), we held that petitioners, as ‘person(s) who claim(ed)       created right the asserted harm to Metro-Act's Penfield
to have been injured by a discriminatory housing practice,’          members is sufficiently direct and personal to satisfy
had standing to litigate violations of the Act. We concluded         the case-or-controversy requirement of Art. III, prudential
that Congress had given residents of housing facilities              considerations strongly counsel against according them
covered by the statute an actionable right to be free from           or Metro-Act standing to prosecute this action. We do
the adverse consequences to them of racially discriminatory          not understand Metro-Act to argue that Penfield residents
practices directed at and immediately harmful to others. 409         themselves have been denied any constitutional rights,
U.S., at 212, 93 S.Ct., at 368.                                      affording them a cause of action under 42 U.S.C. s 1983.
                                                                     Instead, their complaint is that they have been harmed
Metro-Act does not assert on behalf of its members any               indirectly by the exclusion of others. This is an attempt
right of action under the 1968 Civil Rights Act, nor can the         to raise putative rights of third parties, and none of the
complaint fairly be read to make out any such claim. 21 In           exceptions that allow such claims is present here. 22 In these
this, we think, lies the **2213 critical distinction between         circumstances, we conclude that it is inappropriate to allow
Trafficante and the situation here. As we have *514                  Metro-Act to invoke the judicial process.
observed above, Congress may create a statutory right or             22     Metro-Act does not allege that a contractual or other
entitlement the alleged deprivation of which can confer                     relationship protected under ss 1981 and 1982 existed
standing to sue even where the plaintiff would have suffered                between its Penfield members and any particular person
no judicially cognizable injury in the absence of statute. Linda            excluded from residing in the town, nor that any
R.S. v. Richard D., 410 U.S., at 617 n. 3, 93 S.Ct., at 1148,               such relationship was either punished or disrupted by
citing Trafficante v. Metropolitan Life Ins. Co., supra, 409                respondents. See Sullivan v. Little Hunting Park, 396
U.S., at 212, 93 S.Ct., at 368. (White, J., concurring). No such            U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969).
statute is applicable here.
21       The amicus brief of the Lawyers' Committee for
                                                                                                    B
       Civil Rights under Law argues, to the contrary, that
       petitioners' allegations do state colorable claims under       [26] Petitioner Home Builders, in its intervenor-complaint,
       the 1968 Act, and that Metro-Act's Penfield members are       asserted standing to represent its member firms engaged in
       ‘person(s) aggrieved’ within the meaning of s 810(a). It
                                                                     the development and construction of residential housing in the
       is significant, we think, that petitioners nowhere adopt
                                                                     Rochester area, including Penfield. Home Builders alleged
       this argument. As we read the complaint, petitioners have
                                                                     that the Penfield zoning restrictions, *515 together with
       not alleged that respondents ‘refuse to negotiate for the
       sale or rental of, or otherwise make unavailable or deny,
                                                                     refusals by the town officials to grant variances and permits
       a dwelling to any person because of race, color, . . . or     for the construction of low- and moderate-cost housing,
       national origin,’ or that they ‘discriminate against any      had deprived some of its members of ‘substantial business
       person in the terms, conditions, or privileges of sale        opportunities and profits.’ App. 156. Home Builders claimed
       or rental of a dwelling, or in the provision of services      damages of $750,000 and also joined in the original plaintiffs'
       or facilities in connection therewith, because of race,       prayer for declaratory and injunctive relief.
       color, . . . or national origin,’ 42 U.S.C. s 3604(a)
       and (b) (emphasis added). Instead, the gravamen of the
       complaint is that the challenged zoning practices have        As noted above, to justify any relief the association must
       the purpose and effect of excluding persons of low and        show that it has suffered harm, or that one or more of
       moderate income from residing in the town, and that           its members are injured. E.g., Sierra Club v. Morton, 405
       this in turn has the consequence of excluding members         U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Bt, apart
       of racial or ethnic minority groups. This reading of the      from this, whether an association has standing to invoke the
       complaint is confirmed by petitioners' brief in this Court.
                                                                     court's remedial powers on behalf of its members depends in
       Brief for Petitioners 41. We intimate no view as to



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

substantial measure on the nature of the relief sought. If in       [28] A like problem is presented with respect to petitioner
a proper case the association seeks a declaration, injunction,     Housing Council. The affidavit accompanying the motion
or some other form of prospective relief, it can reasonably be     to join it as plaintiff states that the Council includes in its
supposed that the remedy, if granted, will inure to the benefit    membership ‘at lease seventeen’ groups that have been, are,
of those members of the association actually injured. Indeed,      or will be involved in the development of low- and moderate-
in all cases in which we have expressly recognized standing in     cost housing. But with one exception, the complaint does not
associations to represent their members, the relief sought has     suggest that any of these groups has focused its efforts on
been of this kind. E.g., National Motor Freight Assn. v. United    Penfield or has any specific *517 plan to do so. Again with
States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963). See      the same exception, neither the complaint nor any materials
Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827,       of record indicate that any member of Housing Council has
25 L.Ed.2d 184 (1970). Cf. Fed.Rule Civ.Proc. 23(b)(2).            taken any step toward building housing in Penfield, or has had
                                                                   dealings of any nature with respondents. The exception is the
 **2214 The present case, however, differs significantly as        Penfield Better Homes Corp. As we have observed above, it
here an association seeks relief in damages for alleged injuries   applied to respondents in late 1969 for a zoning variance to
to its members. Home Builders alleges no monetary injury           allow construction of a housing project designed for persons
to itself, nor any assignment of the damages claims of its         of moderate income. The affidavit in support of the motion
members. No award therefore can be made to the association         to join Housing Council refers specifically to this effort, the
as such. Moreover, in the circumstances of this case, the          supporting materials detail at some length the circumstances
damages claims are not common to the entire membership,            surrounding the rejection of Better Homes' application. It
nor shared by all in equal degree. To the contrary, whatever       is therefore possible that in 1969, or within a reasonable
injury may have been suffered is peculiar to the individual        time thereafter, Better Homes itself and possibly Housing
member concerned, and both the fact and extent of injury           Council as its representative would have had standing ot
would require individualized *516 proof. Thus, to obtain           seek review of respondents' action. The complaint, however,
relief in damages, each member of Home Builders who claims         does not allege that the Penfield Better Homes project
injury as a result of respondents' practices myst be a party to    remained viable in 1972 when this complaint was filed,
the suit, and Home Builders has no standing to claim damages       or that respondents' actions continued to block a then-
on his behalf.
                                                                   current construction project. 23 In **2215 short, neither the
 [27] Home Builders' prayer for prospective relief fails for a
                                                                   complaint nor the record supplies any basis from which to
different reason. It can have standing as the representative of
                                                                   infer that the controversy between respondents and Better
its members only if it has alleged facts sufficient to make out
                                                                   Homes, however vigorous it may once have been, remained
a case or controversy had the members themselves brought
                                                                   a live, concrete dispute when this complaint was filed.
suit. No such allegations were made. The complaint refers
to no specific project of any of its members that is currently
                                                                   23     If it had been averred that the zoning ordinance
precluded either by the ordinance or by respondents' action
in enforcing it. There is no averment that any member has                 or respondents were unlawfully blocking a pending
                                                                          construction project, there would be a further question
applied to respondents for a building permit or a variance
                                                                          as to whether Penfield Better Homes had employed
with respect to any current project. Indeed, there is no
                                                                          available administrative remedies, and whether it should
indication that respondents have delayed or thwarted any
                                                                          be required to do so before a federal court can intervene.
project currently proposed by Home Builders' members, or
that any of its members has taken advantage of the remedial
processes available under the ordinance. In short, insofar as                                     VI
the complaint seeks prospective relief, Home Builders has
failed to show the existence of any injury to its members           [29] The rules of standing, whether as aspects of the
of sufficient immediacy and ripeness to warrant judicial           Art. III case-or-controversy requirement or as reflections
intervention. See, e.g., United Public Workers v. Mitchell,        of prudential *518 considerations defining and limiting
330 U.S. 75, 86—91, 67 S.Ct. 556, 562—565, 91 L.Ed. 754            the role of the courts, are threshold determinants of the
(1947); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312           propriety of judicial intervention. It is the responsibility of
U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).             the complainant clearly to allege facts demonstrating that he
                                                                   is a proper party to invoke judicial resolution of the dispute
                                                                   and the exercise of the court's remedial powers. We agree


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

with the District Court and the Court of Appeals that none
of the petitioners here has met this threshold requirement.        We are today far from facing an emergency. For in all
Accordingly, the judgment of the Court of Appeals is               frankness, no Justice of this Court need work more than four
                                                                   days a week to carry his burden. I have found it a comfortable
                                                                   burden carried even in my months of hospitalization.
Affirmed.
                                                                   As Mr. Justice BRENNAN makes clear in his dissent, the
                                                                   alleged purpose of the ordinance under attack was to preclude
Mr. Justice DOUGLAS, dissenting.                                   low- and moderate-income people and nonwhites from living
                                                                   in Penfield. The zoning power is claimed to have been used
With all respect, I think that the Court reads the complaint and
                                                                   here to foist an un-American community model on the people
the record with antagonistic eyes. There are in the background
                                                                   of this area. I would let the case go to trial and have all the
of this case continuing strong tides of opinion touching on
                                                                   facts brought **2216 out. Indeed, it would be better practice
very sensitive matters, some of which involve race, some
                                                                   to decide the question of standing only when the merits have
class distinctions based on wealth.
                                                                   been developed.
A clean, safe, and well-heated home is not enough for some
                                                                   I would reverse the Court of Appeals.
people. Some want to live where the neighbors are congenial
and have social and political outlooks similar to their own.       Mr. Justice BRENNAN, with whom Mr. Justice WHITE and
This problem of sharing areas of the community is akin             Mr. Justice MARSHALL join, dissenting.
to that when one wants to control the kind of person who
shares his own abode. Metro-Act of Rochester, Inc., and the        In this case, a wide range of plaintiffs, alleging various kinds
Housing Council in the Monroe County Area, Inc.—two of             of injuries, claimed to have been affected by the *520
the associations which bring this suit—do in my opinion            Penfield zoning ordinance, on its face and as applied, and
represent the communal feeling of the actual residents and         by other practices of the defendant officials of Penfield.
have standing.                                                     Alleging that as a result of these laws and practices low- and
                                                                   moderate-income and minority people have been excluded
The associations here are in a position not unlike that            from Penfield, and that this exclusion is unconstitutional,
confronted by the Court in NAACP v. Alabama, 357 U.S.              plaintiffs sought injunctive, declaratory, and monetary relief.
449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Their protest           The Court today, in an opinion that purports to be a ‘standing’
against the creation of this segregated community expresses        opinion but that actually, I believe, has overtones of outmoded
the desire of their members to live in a desegregated              notions of pleading and of justiciability, refuses to find that
community—a desire which gives standing to sue under the           any of the variously situated plaintiffs can clear numerous
Civil Rights Act *519 of 1968 as we held in Trafficante v.         hurdles, some constructed here for the first time, necessary to
Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34         establish ‘standing.’ While the Court gives lip service to the
L.Ed.2d 415 (1972). Those who voice these views here seek
                                                                   principle, oft repeated in recent years, 1 that ‘standing in no
to rely on other Civil Rights Acts and on the Constitution, but
                                                                   way depends on the merits of the plaintiff's contention that
they too should have standing, by virtue of the dignity of their
                                                                   particular conduct is illegal,’ ante, at 2206, in fact the opinion,
claim, to have the case decided on the merits.
                                                                   which tosses out of court almost every conceivable kind of
Standing has become a barrier to access to the federal courts,     plaintiff who could be injured by the activity claimed to be
must as ‘the political question’ was in earlier decades. The       unconstitutional, can be explained only by an indefensible
mounting caseload of federal courts is well known. But cases       hostility to the claim on the merits. I can appreciate the Court's
such as this one reflect festering sores in our society; and       reluctance luctance to adjudicate the complex and difficult
the American dream teaches that if one reaches high enough         legal questions involved in determining the constitutionality
and persists there is a forum where justice is dispensed. I        of practices which assertedly limit residence in a particular
would lower the technical barriers and let the courts serve that   municipality to those who are white and relatively well off,
ancient need. They can in time be curbed by legislative or         and I also understand that the merits of this case could
constitutional restraints if an emergency arises.                  involve grave sociological and political ramifications. But
                                                                   courts cannot refuse to hear a case on the merits merely
                                                                   because they would prefer not to, and it is quite clear, when



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

the record is viewed with dispassion, that at least three of            incentive to incur the costs of litigation with regard to one
the groups of plaintiffs have made *521 allegations, and                project, and despite the fact that the low-income minority
supported them with affidavits and documentary evidence,                plaintiffs' interest is not to live in a particular project but to
sufficient to survive a motion to dismiss for lack of standing. 2       live somewhere in the town in a dwelling they can afford.
1       Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20        Accepting, as we must, the various allegations and affidavits
        L.Ed.2d 947 (1968); Data Processing Service v. Camp,            as true, the following picture emerges: The Penfield zoning
        397 U.S. 150, 153, 158, 90 S.Ct. 827, 830, 832, 25
                                                                        ordinance, by virtue of regulations concerning ‘lot area,
        L.Ed.2d 184 (1970); Schlesinger v. Reservists to Stop the
                                                                        set backs, . . . population density, density of use, units
        War, 418 U.S. 208, 225 n. 15, 94 S.Ct. 2925, 2934, 41
                                                                        per acre, floor area, sewer requirements, traffic flow,
        L.Ed.2d 706 (1974). See Barlow v. Collins, 397 U.S. 159,
        176, 90 S.Ct. 832, 843, 25 L.Ed.2d 192 (1970) (Opinion
                                                                        ingress and egress(, and) street location,’ makes ‘practically
        of Brennan, J.).                                                and economically impossible the construction of sufficient
                                                                        numbers of low and moderate income’ housing. App. 25. The
2       Because at least three groups of plaintiffs have, in my         purpose of this ordinance was to preclude low-and moderate-
        view, alleged standing sufficient to require this lawsuit to    income people and nonwhites from living in Penfield, id.,
        proceed to discovery and trial, I do not deal in this dissent   at 15, and, particularly because of refusals to grant zoning
        with the standing of the remaining petitioners.
                                                                        variances and building permits and by using special permit
                                                                        procedures and other devices, id., at 17, the defendants
                                                                        succeeded in keeping ‘low and moderate income persons . . .
                                   I
                                                                        and non-white persons . . . from residing within . . . Penfield.’
Before considering the three groups I believe clearly to have           Id., at 18.
standing—the low-income, minority plaintiffs, Rochester
                                                                        As a result of these practices, various of the plaintiffs were
Home Builders Association, Inc., and the Housing Council in
                                                                        affected in different ways. For example, plaintiffs Ortiz,
the Monroe County Area, Inc.—it will be helpful to review
                                                                        Reyes, Sinkler, and Broadnax, persons of low or moderate
the picture painted by the allegations as a whole, in order
                                                                        income and members of minority groups, alleged that ‘as a
better to comprehend the interwoven interests of the various
                                                                        result’ of respondents' exclusionary scheme, at 18, 21, 23
plaintiffs. Indeed, one glaring defect of the Court's opinion is
                                                                        —24, 26, 29 (emphasis supplied), they could not live in
that it views each set of plaintiffs as if it were prosecuting a
                                                                        Penfield, although they *523 desired and attempted to do
separate lawsuit, refusing to recognize that the interests are
                                                                        so, and consequently incurred greater commuting costs, lived
intertwined, and that the standing of any one group must take
                                                                        in substandard housing, and had fewer services for their
into account its position vis-a -vis the others. For example, the
                                                                        families and poorer schools for their children than if they had
Court says that the low-income minority plaintiffs have not
                                                                        lived in Penfield. Members of the Rochester Home Builders
alleged facts sufficient to show that but for the exclusionary
                                                                        Association were prevented from constructing homes for low-
practices claimed, they would be able to reside in Penfield.
                                                                        and moderate-income people in Penfield, id., at 153, harming
The Court then intimates that such a causal relationship could
                                                                        them economically. And Penfield Better Homes, a member
be shown only if ‘the initial focus (is) on a particular project.’
                                                                        of the Housing Council, was frustrated in its attempt to build
Ante, at 2210 n. 18. Later, the Court objects to the ability
                                                                        moderate-income housing, id., at 174.
of the **2217 Housing Council to prosecute the suit on
behalf of its member, Penfield Better Homes Corp., despite              Thus, the portrait which emerges from the allegations and
the fact that Better Homes had displayed an interest in a               affidavits is one of total, purposeful, intransigent exclusion
particular project, because that project was no longer live.            of certain classes of people from the town, pursuant to
Thus, we must suppose that even if the low-income plaintiffs            a conscious scheme never deviated from. Because of this
had alleged a desire to live in the Better Homes project, that          scheme, those interested in building homes for the excluded
allegation would *522 be insufficient because it appears                groups were faced with insurmountable difficulties, and those
that that particular project might never be built. The rights           of the excluded groups seeking homes in the locality quickly
of low-income minority plaintiffs who desire to live in a               learned that their attempts were futile. Yet, the Court turns
locality, then, seem to turn on the willingness of a third party        the very success of the allegedly unconstitutional scheme into
to litigate the legality of preclusion of a particular project,         a barrier to a lawsuit seeking its invalidation. In effect, the
despite the fact that the third party may have no economic              Court tells the lowincome minority and building company



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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

plaintiffs they will not be permitted to prove what they have              community has only limited library services. App. 377
alleged—that they could and would build and live in the                    —400.
town if changes were made in the zoning ordinance and its                  Petitioner Broadnax claimed that if she lived in Penfield,
application—because they have not succeeded in breaching,                  there would be playgrounds for her children, effective
                                                                           police protection, and adequate garbage disposal, all of
before the suit was filed, the very barriers which are the
                                                                           which are lacking in her present community. Id., at 419.
subject of the suit.
                                                                           As a result, her children are not safe and there are mice,
                                                                           rats, and roaches in her house. Id., at 416—417, 419.
                              II                                           Petitioner Reyes stated, similarly, that she is currently
                                                                           living with inadequate police protection, id., at 426, and
                                                                           sending her children to inferior schools, id., at 433.
            Low-income and Minority Plaintiffs                             Finally, petitioner Sinkler also said that in her current
                                                                           home, police protection is inadequate, id., at 443, there
As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and                 are no play areas for children, id., at 449, and the schools
Sinkler alleged **2218 that ‘as a result’ of respondents'                  are totally inadequate. Id., at 454.
exclusionary practices, they were unable, despite attempts,                These are only summaries of the affidavits, which are
 *524 to find the housing they desired in Penfield, and                    quite specific in detailing the inadequacies of petitioners'
consequently have incurred high commuting expenses,                        current communities and the injuries suffered thereby
received poorer municipal services, 3 and, in some instances,              as well as, in Ortiz' affidavit, the services provided by
                                                                           Penfield which would alleviate many of these problems.
have been relegated to live in substandard housing. 4 The
Court does not, as it could not, suggest that *525 the             4       Petitioner Broadnax said that because of the poor choice
injuries, if proved, would be insufficient to give petitioners             of housing available at her income, she was forced to
the requisite ‘personal stake in the outcome of the controversy            rent an apartment which has ‘many leaks in the roof,
as to assure the concrete adverseness which sharpens the                   bad wiring, roach infestation, rat and mice infestation,
presentation of issues,’ Baker v. Carr, 369 U.S. 186, 204, 82              crumbling house foundation, broken front door, broken
                                                                           hot water heater, etc.’ Id., at 410. As a result, aside from
S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v. Cohen, 392
                                                                           the ordinary dangers such conditions obviously present,
U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).
                                                                           one son's asthma condition has been exacerbated. Id., at
Rather, it is abundantly clear that the harm alleged satisfies
                                                                           413.
the ‘injury in fact, economic or otherwise,’ Data Processing               Petitioner Sinkler stated that, again because only housing
Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829,                     in Rochester central city is available to moderate-
25 L.Ed.2d 184 (1970), requirement which is prerequisite                   income, minority people, she is living in a seventh-floor
to standing in federal court. The harms claimed—consisting                 apartment with exposed radiator pipes, no elevator, and
of out-of-pocket losses as well as denial of specifically                  no screens, and violence, theft, and sexual attacks are
enumerated services available in Penfield but not in these                 frequent. Id., at 441—446.
petitioners' present communities, see nn. 3 and 4, supra—                  Once again, the above are short summaries of long,
are obviously more palpable and concrete than those held                   detailed accounts of the harms suffered.
sufficient to sustain standing in other cases. See United States
v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37               Instead, the Court insists that these petitioners' allegations
L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 735       are insufficient to show that the harms suffered were caused
n. 8, 738, and n. 13, 92 S.Ct. 1361, 1366, 1368, 31 L.Ed.2d        by respondents' allegedly unconstitutional practices, because
636 (1972). Cf. Data Processing, supra, 397 U.S., at 154, 90       ‘their inability to reside in Penfield (may be) the consequence
S.Ct., at 830.                                                     of the economics of the area housing market, rather than of
3                                                                  respondents' assertedly illegal acts.’ Ante, at 2209.
        Specifically, petitioner Ortiz claims, among other
       things, that the Penfield schools offer a much broader
                                                                    **2219 True, this Court has held that to maintain standing,
       curriculum, including vocational education, than the
                                                                   a plaintiff must not only allege an injury but must also assert a
       school his children attend, as well as special tutoring
                                                                   “direct' relationship between the alleged injury *526 and the
       and counseling programs not available to his children.
       Penfield also provides a comprehensive recreational         claim sought to be adjudicated,' Linda R.S. v. Richard D., 410
       program, while his community offers very little, and        U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)—
       a full-time, comprehensive public library, while his        that is ‘(t) he party who invokes (judicial) power must be able
                                                                   to show . . . that he has sustained or is immediately in danger


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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

of sustaining some direct injury as the result of (a statute's)               summary judgment. In terms, the portion of Rule 12(b)
enforcement.’ Massachusetts v. Mellon, 262 U.S. 447, 488,                     concerning conversion to a Rule 56 motion applies only
43 S.Ct. 597, 601, 67 L.Ed. 1078, (1923) (emphasis supplied);                 to a motion to dismiss for failure to state a cause of
Linda R.S., supra, 410 U.S., at 618, 93 S.Ct., at 1149. But,                  action, and not to a motion to dismiss for other reasons.
                                                                              At any rate, respondents filed no counter-affidavits
as the allegations recited above show, these petitioners have
                                                                              proper under Rule 56(e), so, that even if Rule 56 were
alleged precisely what our cases require—that because of
                                                                              applied, respondents have not at this stage disproved the
the exclusionary practices of respondents, they cannot live in
                                                                              allegations.
Penfield and have suffered harm. 5
5      This case is quite different from Linda R.S. v. Richard        Here, the very fact that, as the Court stresses, these petitioner's
        D. In Linda R.S., the problem was that even if                claim rests in part upon proving the intentions and capabilities
        everything alleged were proved, it was still quite possible   of third parties to build in Penfield suitable housing which
        that petitioner's husband would not be prosecuted for         they can afford, coupled with the exclusionary character of
        nonsupport, or that, if prosecuted, he would still not        the claim on the merits, makes it particularly inappropriate
        contribute to his children's support. Nothing which could     to assume that these petitioners' lack of specificity reflects
        be proved at trial could possibly show otherwise. Here,
        if these petitioners prove what they have alleged, they       a fatal weakness in their theory of causation. 7 Obviously
        will have shown that respondents' actions did cause their      **2220 they cannot be expected, *528 prior to discover
        injury.                                                       and trial, to know the future plans of building companies,
                                                                      the precise details of the housing market in Penfield, or
Thus, the Court's real holding is not that these petitioners          everything which has transpired in 15 years of application of
have not alleged an injury resulting from respondents' action,        the Penfield zoning ordinance, including every housing plan
but that they are not to be allowed to prove one, because             suggested and refused. To require them to allege such facts
‘realization of petitioners' desire to live in Penfield always        is to require them to prove their case on paper in order to
has depended on the offorts and willingness of third parties          get into court at all, reverting to the form of fact pleading
to build low- and moderate-cost housing,’ ante, at 2208, and          long abjured in the federal courts. This Court has not required
‘the record is devoid of any indication that . . . (any) projects,    such unachievable specificity in standing cases in the past, see
would have satisfied petitioners' needs at prices they could          SCRAP, supra, and Jenkins, supra, and the fact that it does so
afford.’ Ante, at 2208—2209.                                          now can only be explained by an indefensible determination
                                                                      by the Court to close the doors of the federal courts to claims
Certainly, this is not the sort of demonstration that can or          of this kind. Understandably, today's decision will be read
should be required of petitioners at this preliminary stage.          as revealing hostility to breaking down even unconstitutional
In SCRAP, supra, a similar challenge was made: it was                 zoning *529 barriers that frustrate the deep human yearning
claimed that the allegations were vague, 412 U.S., at 689 n.          of low-income and minority groups for decent housing they
15, 93 S.Ct., at 2417, and that the causation theory *527             can afford in decent surroundings, see nn. 3 and 4, supra.
asserted was untrue, id., at 689, 93 S.Ct., at 2417. We said:         7       The Court, glancing at the projects mentioned in
‘If * * * these allegations were in fact untrue, then the                     the record which might have been built but for the
appellants should have moved for summary judgment on the                      exclusionary practices alleged, concludes that petitioners
standing issue and demonstrated to the District Court that                    Ortiz and Broadnax earned too little to afford suitable
the allegations were sham and raised no genuine issue of                      housing in them, and that petitioner Reyes earned to
fact. We cannot say . . . that the appellees could not prove                  much. Ante, at 2209, n. 16. As the Court implicitly
their allegations which, if proved, would place them sequarely                acknowledges, petitioner Sinkler at least may well have
among those persons injured in fact.’ Id., at 689—690, 93                     been able to live in the Better Homes Project. Further,
                                                                              there appears in the record as it stands a report of
S.Ct., at 2417. 6 See also Jenkins v. McKeithen, 395 U.S.
                                                                              the Penfield Housing Task Force on Moderate Income
411, 421—422, 89 S.Ct. 1843, 1848—1849, 23 L.Ed.2d 404
                                                                              Housing, App. 487—581, prepared for the Penfield
(1969).                                                                       Town Board itself, which defines ‘moderate income
6       There is some suggestion made in the briefs that, by                  families as families having incomes between $5,500 and
        virtue of the inclusion in the record of affidavits and               $11,000 per year, depending on the size of the family,’
        documents, the motion to dismiss was, under Fed.Rule                  id., at 492, and moderate-income housing as housing
        Civ.Proc. 12(b), converted into a Rule 56 motion for                  ‘priced below $20,000 or (carrying) a rental price of less




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Warth v. Seldin, 422 U.S. 490 (1975)
95 S.Ct. 2197, 45 L.Ed.2d 343

       than $150 a month,’ id., at 493. See also, with respect to         develop moderate income housing in . . . Penfield.’ (emphasis
       ‘low income,’ id., at 527. Thus, while the Court might not         supplied), id., at 174, but has been unable to secure the
       know what was meant by ‘low’ and ‘moderate’ income                 necessary approvals. Ibid.
       housing, ante, at 2203 n. 5, and 2209 n. 16, respondents
       clearly did. The petitioners here under discussion fell            The Court finds that these two organizations lack standing
       within the Board's own definition of moderate-income               to seek prospective **2221 relief for basically the same
       families, except for petitioner Reyes, who alleges that she        reasons: none of their members is, as far as the allegations
       could afford a house for $20,000 but not more. App. 428.           show, currently involved in developing a particular *530
       And the Task Force Report does set out, id., at 503—               project. Thus, Home Builders, has ‘failed to show the
       516, changes in the zoning ordinance and its application           existence of any injury to its members of sufficient
       which could result in housing which moderate-income                immediacy and ripeness to warrant judicial intervention,’
       people could afford, even to the extent of setting out             ante, at 2214 (emphasis supplied), while ‘the controversy
       a budget provided by a builder for a house costing                 between respondents and Better Homes, however vigorous
       $18,900, id., at 507. The causation theory which the
                                                                          it may once have been, (has not) remained a live, concrete
       Court finds improbable, then, was adopted by a task force
                                                                          dispute.’ Ante, at 2215.
       of the Town Board itself. Of course, we do not know at
       this stage whether the particular named plaintiffs would           Again, the Court ignores the thrust of the complaints and
       certainly have benefited from the changes recommended
                                                                          asks petitioners to allege the impossible. According to the
       by the task force, but at least there is a good chance that,
                                                                          allegations, the building concerns' experience in the past
       after discovery and trial, they could show they would.
                                                                          with Penfield officials has shown any plans for low- and
                                                                          moderate-income housing to be futile for, again according to
                                III                                       the allegations, the respondents are engaged in a purposeful,
                                                                          conscious scheme to exclude such housing. Particularly with
                                                                          regard to a low- or moderate-income project, the cost of
        Associations Including Building Concerns                          litigating, with respect to any particular project, the legality of
                                                                          a refusal to approve it may well be prohibitive. And the merits
Two of the petitioners are organizations among whose
                                                                          of the exclusion of this or that project is not at the heart of the
members are building concerns. Both of these organizations,
                                                                          complaint; the claim is that respondents will not approve any
Home Builders and Housing Council, alleged that these
                                                                          project which will provide residences for low-and moderate-
concerns have attempted to build in Penfield low- and
                                                                          income people.
moderate-income housing, but have been stymied by the
zoning ordinance and refusal to grant individual relief                   When this sort of pattern-and-practice claim is at the heart of
therefrom.                                                                the controversy, allegations of past injury, which members of
                                                                          both of these organizations have clearly made, and of a future
Specifically, Home Builders, a trade association of concerns
                                                                          intent, if the barriers are cleared, again to develop suitable
engaged in constructing and maintaining residential housing
                                                                          housing for Penfield, should be more than sufficient. The
in the Rochester area, alleged that ‘(d)uring the past 15 years,
                                                                          past experiences, if proved at trial, will give credibility and
over 80% of the private housing units constructed in the
                                                                          substance to the claim of interest in future building activity
Town of Penfield have been constructed by (its) members.’
                                                                          in Penfield. These parties, if their allegations are proved,
App. 147. Because of respondents' refusal to grant relief from
                                                                          certainly have the requisite personal stake in the outcome of
Penfield's restrictive housing statutes, members of Home
                                                                          this controversy, and the Court's conclusion otherwise is only
Builders could not proceed with planned low- and moderate-
                                                                          a conclusion that this controversy may not be litigated in a
income housing projects, id., at 157, and thereby lost profits.
                                                                          federal court.
Id., at 156.
                                                                          I would reverse the judgment of the Court of Appeals.
Housing Council numbers among its members at least 17
groups involved in the development and construction of                    All Citations
low- and middle-income housing. In particular, one member,
Penfield Better Homes, ‘is and has been actively attempting to            422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     21
Weaver v. Southwest Nat. Bank, 813 S.W.2d 481 (1991)




                                                                            17 Cases that cite this headnote
                      813 S.W.2d 481
                  Supreme Court of Texas.

               Owen G. WEAVER and
            Johnnie N. Weaver, Petitioners,                        Attorneys and Law Firms
                         v.                                        Jerry D. Porter, Austin, for petitioners.
       SOUTHWEST NATIONAL BANK, Respondent.
                                                                   Mark S. Cruzcosa, Robert E. Black, Austin, for respondent.
             No. D–0852. | June 5, 1991. |
             Rehearing Overruled Sept. 11, 1991.                   Opinion

Bank filed action against borrowers to recover deficiency          PER CURIAM.
judgment following nonjudicial foreclosure sale of two
                                                                   Southwest National Bank brought suit against Owen and
fourplexes. Borrowers counterclaimed alleging breach of
                                                                   Johnnie Weaver to recover a deficiency judgment following
contract, fraud, negligence, breach of fiduciary duty, and
                                                                   the nonjudicial foreclosure sale of two fourplexes. The
violations of Texas Deceptive Trade Practices Act. The
                                                                   Weavers counterclaimed, alleging breach of contract, fraud,
District Court Number 201, Travis County, Jon N. Wisser,
                                                                   negligence, breach of fiduciary duty, and violations of the
J., entered judgment for bank, and borrowers appealed. The
                                                                   Texas Deceptive Trade Practices Act by the bank. Trial was
Austin Court of Appeals, Third Supreme Judicial District
                                                                   before a jury, which found that $113,526.46 was still owed to
affirmed and denied borrowers' motions for leave to file
                                                                   the bank. The jury also found that Southwest had materially
amended brief and for rehearing. Borrowers filed petition
                                                                   breached its obligations under the notes, renewals, and deeds
applying for writ of error. The Supreme Court held that an
                                                                   of trust; that Southwest failed to act in good faith; and that
appellate brief which contained all points of error relied upon,
                                                                   Southwest's failure to act in good faith was the proximate
arguments and authorities under each point of error, and all
                                                                   cause of damages to the Weavers. The trial court entered
facts relied upon for the appeal with references to pages in the
                                                                   judgment in favor of Southwest, disregarding the adverse jury
record where those facts could be found, but did not restate
                                                                   findings.
the facts and record references under each point of error,
adequately complied with requirement that briefs include a
                                                                   The Weavers appealed, presenting five points of error in
fair, condensed statement of the facts.
                                                                   their brief to the court of appeals. The brief submitted to
                                                                   the court of appeals consists of a preliminary statement of
Writ granted, judgment reversed and remanded.
                                                                   the case, a section entitled “Fact Statement,” and a section
                                                                   containing each of the five points of error, with the argument
                                                                   and authorities supporting each point set forth thereunder.
 West Headnotes (1)                                                The “Fact Statement” section includes all facts relied upon for
                                                                   the appeal, with references to the pages in the record where
                                                                   each of the facts can be found. The Weavers did not restate
 [1]      Appeal and Error
                                                                   under each point of error, the facts and record references
             Statement of Case or of Facts
                                                                   contained in the “Fact Statement.”
          An appellate brief which contained all points
          of error relied upon, arguments and authorities          The court of appeals considered the merits of only one of the
          under each point of error, and all facts relied          Weavers' five points of error, on the basis that the Weavers'
          upon for the appeal with references to pages             brief was inadequate under Rule 74(f) of the Texas Rules
          in the record where those facts could be                 of Appellate Procedure. The court overruled the one point
          found, but did not restate the facts and record          of error considered on the merits, found that the Weavers
          references under each point of error, adequately         waived a second point because of inadequate briefing, and,
          complied with requirement that briefs include            based upon its disposition of the first two points of error,
          a fair, condensed statement of the facts. Rules          refused to consider the remaining points. Within fifteen days
          App.Proc., Rule 74(f, p).                                of the issuance of the court of appeals' opinion, the Weavers


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Weaver v. Southwest Nat. Bank, 813 S.W.2d 481 (1991)



filed a motion for leave to file an amended brief and tendered
                                                                        The brief the Weavers filed in the court of appeals contains
an amended brief to the court of appeals. The court denied
                                                                        all points of error relied upon, argument and authorities under
the Weavers' request for leave to file the amended brief. The
                                                                        each point of error, and all facts relied upon for the appeal with
Weavers filed a motion for rehearing in the court of appeals,
                                                                        references to the pages in the record where those facts can
and that motion was denied as well.
                                                                        be found. The only “inadequacy” of the brief is the Weavers'
                                                                        failure to restate the facts and record references under each
Rule 74(f) of the Texas Rules of Appellate Procedure
                                                                        point of error.
provides that an appellant's argument shall include:

  (1) a fair, condensed statement of the facts pertinent to such        A majority of the court concludes that the Weavers complied
  points, with reference to the pages in the record where the           with the briefing requirements of Rule 74(f) of the Texas
  same may be found; and                                                Rules of Appellate Procedure. Therefore, we grant petitioner's
                                                                        application for writ of error, and, without oral argument,
  (2) such discussion of the facts and authorities relied upon          reverse the judgment of the court of appeals and remand for
  as may be requisite to maintain the point at issue.                   consideration of the four points *483 of error that the court
                                                                        of appeals has not considered on the merits.
Subsection (p) of Rule 74 states that the briefing rules are to
be construed liberally and that substantial compliance with
the rules will suffice in the interests of justice. Tex.R.App.P.        All Citations
74(p). In the case of a flagrant violation of the briefing rules,
                                                                        813 S.W.2d 481
the court may require the party to rebrief. Id.

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
Whatley v. Walker, 302 S.W.3d 314 (2009)




                                                                    [6] purported assignee from ward who was not a party to
                     302 S.W.3d 314
                                                                    guardianship proceedings had no standing to file motion to
                 Court of Appeals of Texas,
                                                                    recuse judge; and
                   Houston (14th Dist.).

    Dawn Johnson WHATLEY, Individually and as                       [7] probate judge's error in ruling himself on motion to
     Executrix of The Estate of Perry Lee Whatley,                  disqualify him did not require reversal where movant was not
      Deceased, and Michael Easton, Appellants,                     a party.
                           v.
    Mylus James WALKER, Jr., Jeanie Anderson,                       Affirmed.
        and Robert Daniel Whatley, Appellees.

     No. 14–06–00970–CV. | June 18, 2009.
    | Rehearing En Banc Overruled Jan. 14, 2010.                     West Headnotes (20)

Synopsis
Background: Niece and nephew initiated a guardianship                [1]    Guardian and Ward
proceeding, seeking a guardianship over the person and estate                  Review
of their 82 year old uncle, to which uncle and his wife of                  On death of ward, any appeal of the order
four months filed responses opposing the application and                    appointing a permanent guardianship over his
requesting in the alternative the appointment of new wife                   person had become moot, but because there was
as the guardian. The Probate Court No. 2, Harris County,                    a continuing dispute over who should settle the
Michael James Wood, J., signed an order finding uncle                       estate, his death did not moot the issue of the
incapacitated and appointing niece as the permanent guardian                guardianship of his estate.
of his person and a third party as the permanent guardian of
                                                                            1 Cases that cite this headnote
uncle's estate appealed. Uncle appealed and, after he died,
his wife was added, individually and as executrix of uncle's
estate, as an appellant.                                             [2]    Appeal and Error
                                                                               Cases Triable in Appellate Court
                                                                            A trial court's jurisdiction is a question of law
Holdings: The Court of Appeals, Adele Hedges, C.J., held                    an appellate court reviews de novo by examining
that:                                                                       the pleadings and any other evidence relevant
                                                                            to the determination. Vernon's Ann.Texas Rules
[1] probate court's jurisdiction over uncle, his estate, and wife           Civ.Proc., Rule 124.
as executor, was invoked by service of citation;
                                                                            Cases that cite this headnote
[2] attorney ad litem and temporary guardian waived service
of citation even if it were required for them;                       [3]    Guardian and Ward
                                                                               Application, parties, and notice
[3] termination of guardianship appointments did not mean                   Failure to serve a proposed ward with citation
entire proceeding was terminated so as to deprive probate                   is jurisdictional, and a court's subsequent order
court of jurisdiction;                                                      appointing a guardian without proper service on
                                                                            the ward is void. V.A.T.S. Probate Code, § 633.
[4] trial level judge could rule on a motion to recuse probate
judge notwithstanding existence of direct appeal on another                 3 Cases that cite this headnote
matter in case;
                                                                     [4]    Guardian and Ward
[5] visiting judge's order denying motion to recuse the judge
                                                                               Application, parties, and notice
was not void although signed outside county seat;


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Whatley v. Walker, 302 S.W.3d 314 (2009)


       The Probate Code prohibits waiver of service by            from the lower court's docket was signed, and the
       the proposed ward in a guardianship proceeding,            proceeding maintained the same cause number.
       but permits waiver of citation by other persons
       entitled to service of process. V.A.T.S. Probate           Cases that cite this headnote
       Code, § 633(e).
                                                           [8]    Courts
       1 Cases that cite this headnote
                                                                      Review and vacation of proceedings
                                                                  Judges
 [5]   Guardian and Ward                                              Determination of objections
          Application, parties, and notice
                                                                  Judge assigned to rule on motion by uncle's
       Probate court's jurisdiction over 82 year old              wife to recuse probate judge hearing niece's and
       uncle, and his estate and wife as executor, was            nephew's guardianship proceeding concerning
       properly invoked in guardianship proceeding                uncle, could rule on the motion to recuse
       initiated by his niece and nephew; after several           notwithstanding the existence of direct appeal,
       attempts to locate uncle, he was personally                inasmuch as the direct appeal involved a claim
       served with citation by a constable in a                   by wife that the Probate Court had no jurisdiction
       Massachusetts hospital, and wife was personally            over the person and estate of uncle because of
       served with citation by a constable. V.A.T.S.              an alleged lack of personal service of citation; in
       Probate Code, § 633.                                       other words, the lower court could continue its
                                                                  Probate Court duties because the appeal did not
       1 Cases that cite this headnote
                                                                  involve those actions.

 [6]   Guardian and Ward                                          Cases that cite this headnote
          Application, parties, and notice
       Attorney ad litem and temporary guardian            [9]    Judges
       waived service of citation even if it had been                 Determination of objections
       required for them, by filing multiple pleadings            Visiting judge's order denying a guardianship
       and personally appearing before the probate                litigant's motion to recuse the probate judge
       court without objecting to any lack of service             was effective and not void, although the order
       of citation, in guardianship proceeding for 82             reflected that the judge signed it in a city other
       year old uncle initiated by his niece and nephew.          than the county seat; the judge did not conduct
       V.A.T.S. Probate Code, § 633.                              any proceedings outside of the county seat.

       Cases that cite this headnote                              1 Cases that cite this headnote


 [7]   Guardian and Ward                                   [10]   Judges
          Jurisdiction of courts                                      Determination of objections
       Guardian and Ward                                          Probate litigant's motion to disqualify judge,
          Removal                                                 as the fourth motion filed by her against him,
       Termination of guardianship appointments did               satisfied the definition of a tertiary recusal
       not mean that the entire proceeding was                    motion and did not prevent judge from moving
       terminated or that the application for a                   the case to final disposition as though a tertiary
       guardianship had been dismissed, so as to                  recusal motion had not been filed, as provided
       deprive probate court of jurisdiction over the             by Practice and Remedies Code. V.T.C.A., Civil
       parties to make new appointments, although                 Practice & Remedies Code § 30.016.
       judge did refer at the next hearing to “new
       guardianship proceedings”; neither a nonsuit nor           Cases that cite this headnote
       other order to terminate or remove the cause


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Whatley v. Walker, 302 S.W.3d 314 (2009)




 [11]   Judges                                               [14]   Appeal and Error
            Determination of objections                                Nature or Form of Remedy
        Probate judge's error in ruling himself on a                Probate judge's error in ruling himself on a
        motion to recuse him did not require vacating               motion to disqualify him in his capacity as
        of final order in guardianship proceeding, where            an individual judge and as the administrative
        the judge's only actions thereafter were to “move           judge did not require reversal, where the
        the case to final disposition as though a tertiary          purported assignee of ward's wife who filed
        recusal motion had not been file” as allowed                the motion was not a party to the proceedings
        under the Practice and Remedies Code after                  and thus had no standing to file the motion.
        a tertiary recusal motion was filed, while the              V.T.C.A., Government Code § 74.057(a);
        final order appealed from in the case was not               Vernon's Ann.Texas Rules Civ.Proc., Rule
        signed during pendency of the recusal motion                18a(g).
        which was ultimately sustained. V.T.C.A., Civil
        Practice & Remedies Code § 30.016(e).                       Cases that cite this headnote

        Cases that cite this headnote
                                                             [15]   Contempt
                                                                        Notice or other process; attachment
 [12]   Judges                                                      Judges
            Objections to Judge, and Proceedings                        Effect on acts and proceedings of judge
        Thereon
                                                                    Probate court's show-cause order issued against
        Purported assignee from ward's wife who                     assignee of claims of wife of ward in
        was not a party to guardianship proceedings                 guardianship proceedings, for violating judge's
        in probate court had no standing to file a                  order to not send ex parte email to the judge's
        motion to recuse any judge in the guardianship              personal email address was not void based on
        proceeding, and thus the judge was not                      any motions to recuse pending against the judge,
        required to rule on the ineffective motion,                 and assignee had no right to relief because
        regardless of whether the assignee had capacity             he was never held in contempt, suffered no
        to sue; assignee had no standing in the                     adverse ruling, nor could he suffer an adverse
        case because there was no real controversy                  ruling because the writ of attachment had
        between him and the guardian of estate with                 expired. Vernon's Ann.Texas Rules Civ.Proc.,
        respect to the guardianship itself that would               Rule 18a(d).
        be determined in the guardianship proceeding.
        Vernon's Ann.Texas Rules Civ.Proc., Rule 18a.               Cases that cite this headnote

        Cases that cite this headnote
                                                             [16]   Attachment
                                                                        Service of writ or warrant
 [13]   Judges
                                                                    A writ of attachment that is not served before it
            Objections to Judge, and Proceedings
                                                                    expires becomes “functus officio,” meaning it is
        Thereon
                                                                    without legal force or effect.
        A motion to recuse filed by a non-party does
        not satisfy rule permitting parties to file such            Cases that cite this headnote
        motions, and thus need not be referred before
        proceeding with the case. Vernon's Ann.Texas
                                                             [17]   Guardian and Ward
        Rules Civ.Proc., Rule 18a.
                                                                       Review
        Cases that cite this headnote                               Any claim made by assignee of wife of ward
                                                                    in guardianship proceedings, regarding a writ
                                                                    of attachment issued against him by the judge



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Whatley v. Walker, 302 S.W.3d 314 (2009)


        for violating an order to not send ex parte                  affidavits filed in response to motions on appeal
        email to the judge's personal email address,                 was unnecessary, in an appeal disposed of on the
        was moot; there was no adverse ruling against                basis of the record only, inasmuch as any alleged
        the assignee, the judge never held assignee in               misstatements contained in documents outside
        contempt nor assessed any punishment, and the                the appellate record were irrelevant to the issues
        writ of attachment was returned to the court                 on appeal.
        unserved and expired.
                                                                     Cases that cite this headnote
        Cases that cite this headnote


 [18]   Guardian and Ward
           Review                                            Attorneys and Law Firms

        Any alleged error of judge in issuing a writ of       *317 Peter J. Riga, Michael Easton, Houston, TX, for
        attachment against an assignee of the wife of a      appellants.
        ward in guardianship proceedings, for violating
        the judge's order to not send ex parte email to      Mylus James Walker Jr., pro se.
        the judge's personal email address, was harmless,
        inasmuch as there had been no rendition of           Kevin F. Risley, Houston, TX, Roy L. Fuller, Baytown, TX,
        an improper judgment against assignee. Rules         for appellees.
        App.Proc., Rule 44.1(a)(1).
                                                             Panel consists of Chief Justice HEDGES and Justices YATES
        Cases that cite this headnote                        and BROWN.


 [19]   Costs
                                                                                   *318 OPINION
            Nature and Grounds of Right
        Sanctions would be denied against a probate          ADELE HEDGES, Chief Justice.
        judge that were based on a claim that the judge
        “lied” to the Court of Appeals in his opposition     This is an appeal from the probate court's final order
        to a motion to dismiss by his assertion that         appointing a guardian over the person and estate of Perry Lee
        appellants, who were the wife of a ward in           Whatley (“Perry”). Perry died after the probate court signed
        guardianship proceedings and wife's assignee of      the final order at issue in this appeal, and his widow, Dawn
        certain claims, did not have record support for      Johnson Whatley (“Dawn”), individually and as the executrix
        their argument, although it was true that some       of Perry's estate, now challenges that final appointment order.
        of the items the judge claimed were missing          Dawn raises four procedural issues challenging the probate
        from the record were in fact in it; clerk's record   court's jurisdiction to sign the final order of appointment.
        in case was large, voluminous, and convoluted,       Appellee, Michael Easton (“Easton”), who claims to be an
        with 17 volumes, most of which were groups           assignee of certain claims not before this Court, challenges
        of supplemental volumes with indices only in         a show-cause order signed by the probate court against him.
        the first volume, while many documents were          We affirm.
        attachments, such that it was easy to overlook
        documents in such a record.
                                                                                 I. BACKGROUND
        1 Cases that cite this headnote
                                                             This case has a complex and lengthy history. There have been
 [20]   Appeal and Error                                     multiple mandamus proceedings and a direct appeal from
           Matters not included or shown in general          prior orders signed by the probate court. 1 We discuss only
        Appointment of a special master to conduct a         the portion of the case history that is relevant to the issues
        hearing into the truth of assertions contained in    before us.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Whatley v. Walker, 302 S.W.3d 314 (2009)


                                                                   On September 29, 2005, Judge Wood appointed appellee,
1      Additionally, the parties in this case have filed other     Mylus James Walker, Jr. (“Walker”), as the temporary
       litigation against each other in both state and federal     guardian over the person and estate of Perry. On October
       court, some of which are still pending. Those related       13, 2005, Judge Wood signed an order reaffirming the
       causes have been assigned different cause numbers.          appointment of *319 Walker as Perry's temporary guardian.
       See In re Easton, Nos. 01–07–00488–CV, 01–07–               On December 12, 2005, Dawn filed a petition for writ
       00490–CV, 2007 WL 1953883 (Tex.App.-Houston [1st            of mandamus with this court challenging Judge Wood's
       Dist.] July 6, 2007, orig. proceeding) (mem. op.);          September and October 2005 orders (collectively “temporary
       In re Norman, 14–06–00488–CV, 2006 WL 2947845               guardianship orders”). Two days later, on December 14,
       (Tex.App.-Houston [14th Dist.] Oct. 13, 2006, orig.         2005, Judge Wood signed a final order appointing Walker as
       proceeding) (mem. op.); In re Whatley, 14–06–00843–
                                                                   the permanent guardian of Perry's estate and Jeanie permanent
       CV, 2006 WL 2882789 (Tex.App.-Houston [14th
                                                                   guardian over Perry's person (“permanent guardianship
       Dist.] Oct. 12, 2006, orig. proceeding) (mem. op.);
                                                                   order”). Dawn and Perry filed a direct appeal attacking the
       In re Whatley, 14–06–00079–CV, 2006 WL 2771879
       (Tex.App.-Houston [14th Dist.] Sept. 28, 2006, no pet.)
                                                                   permanent guardianship order.
       (mem. op.); In re Whatley, 14–06–00699–CV, 2006
       WL 2689701 (Tex.App.-Houston [14th Dist.] Sept. 21,         On June 1, 2006, this court granted mandamus relief
       2006, orig. proceeding) (mem. op.); In re Easton, 203       on Dawn's December 12, 2005 petition for writ of
       S.W.3d 438 (Tex.App.-Houston [14th Dist.] 2006, orig.       mandamus. 2 In the mandamus proceeding, this court
       proceeding); In re Whatley, No. 14–05–01222–CV, 2006        reviewed the temporary guardianship orders as well as the
       WL 2257399 (Tex.App.-Houston [14th Dist.] Aug. 8,
                                                                   permanent guardianship order. We concluded that Judge
       2006, orig. proceeding) (supp. mem. op. on reh'g.);
                                                                   Wood erroneously signed all three orders while a motion
       In re Whatley, 14–05–01222–CV, 2006 WL 1490161
                                                                   to recuse Judge Wood was pending. We further concluded
       (Tex.App.-Houston [14th Dist.] June 1, 2006, orig.
       proceeding) (mem. op.), withdrawn and superceded
                                                                   that the September 29, 2005 temporary guardianship order
       by, In re Whatley, No. 14–05–01222–CV, 2006 WL              was signed after the case had been removed to federal
       2948230 (Tex.App.-Houston [14th Dist.] Oct. 13, 2006,       court. Accordingly, we declared all three appointment orders
       orig. proceeding) (mem. op.); In re Whatley, No. 14–        void. 3 On June 6, 2006, five days after we issued our
       05–00826–CV, 2005 WL 3005730 (Tex.App.-Houston              mandamus opinion on the appointment orders, Judge Gladys
       [14th Dist.] Nov. 10, 2005, orig. proceeding) (mem. op.).   Burwell, the judge assigned to hear the pending motion
           Because these related causes do not impact our          to recuse Judge Wood, denied the September 9, 2005
           disposition, we do not address the issues raised in
           those causes. The instant appeal involves only the      recusal motion. 4 On September 28, 2006, the direct appeal
           guardianship orders specifically challenged in the      challenging the permanent guardianship order was dismissed
           notice of appeal under cause no. 355,095.               in light of our mandamus opinion declaring the order
                                                                   void. See In re Whatley, No. 14–05–1222–CV, 2006 WL
On April 15, 2005, Jeanie Anderson (“Jeanie”) and
                                                                   2948230 (Tex.App.-Houston [14th Dist.] Oct. 13, 2006, orig.
Robert Daniel Whatley (“Robert”) initiated this guardianship
                                                                   proceeding).
proceeding under Section 682 of the Texas Probate Code,
seeking a guardianship over the person and estate of their 82
                                                                   2      See In re Whatley, 2006 WL 1490161. This opinion was
year-old uncle, Perry. On May 10, 2005, Perry and Dawn, his
wife of four months, filed responses opposing the application             supplemented and later withdrawn and superceded by
and requesting in the alternative the appointment of Dawn as              our October 13, 2006 memorandum opinion nunc pro
                                                                          tunc. See In re Whatley, 2006 WL 2948230.
Perry's guardian. Beginning in August 2005, Dawn began a
series of motions to recuse and disqualify the probate court       3      In our memorandum opinion nunc pro tunc that
judge, Michael Wood, as well as the administrative judge,                 superseded the June 2006 memorandum opinion, we
Guy Herman. Initially, Dawn filed motions against Judge                   affirmed once more that the appointment orders were
Wood on August 3, 2005 (amended on August 8, 2005),                       void, concluding that “the orders signed by Judge Wood
September 9, 2005, and September 12, 2005. The case was                   on September 29, 2005, October 13, 2005, and December
also removed to federal court several times and remanded                  14, 2005, are void. Additionally, the September 29, 2005,
back to the probate court.                                                order issued by Judge Wood is void because Judge Wood




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    5
Whatley v. Walker, 302 S.W.3d 314 (2009)


       had no jurisdiction to enter it while the case was removed   case. The crux of this appeal involves the propriety of Judge
       to federal court.” Whatley, 2006 WL 2948230, at *4.          Wood's final appointment order signed January 11, 2007 and
4                                                                   other orders signed prior to his recusal.
       In light of Judge Burwell's ruling, Walker and Ray
       Black, attorney ad litem for Perry, filed motions for
       rehearing in the mandamus proceeding. The rehearing          7        In the Second Amended Notice of Appeal, Dawn is listed
       motions were denied, and we issued a supplemental                     individually and as executrix of Perry's estate, and Perry
       opinion confirming that Judge Wood had erroneously                    is no longer listed as a party.
       signed the appointment orders while a recusal motion
                                                                    8        The recusal motions that were filed after the final
       remained pending. Shortly after we issued our opinion,
       Dawn filed another motion to disqualify Judge Wood.                   appointment order were amended or supplemented on
       Dawn also filed a motion to disqualify Judge Herman on                January 4, 2008, January 8, 2008, and January 27, 2008.
       July 21, 2006, and Easton filed a motion to disqualify
       Judge Herman on April 27, 2006. On August 13, 2006,
       Dawn filed another motion to disqualify Judge Wood.                            II. ISSUES PRESENTED 9
Judge Wood set the case for a final hearing and notified            9        Dawn and Easton jointly raise four issues in their brief.
the parties of the hearing date, which was set for October
                                                                             However, as explained in detail below, only Dawn has
16, 2006. 5 As scheduled, Judge Wood conducted the final                     standing and an interest in issues one through three, while
hearing on October 16, 2006. Neither Dawn nor Perry, nor                     only Easton has standing to raise the fourth issue.
their counsel, appeared at this hearing. 6 After considering        Dawn does not challenge the probate court's finding that Perry
the evidence, Judge Wood signed an order finding Perry              was incapacitated or its selection of the guardian. Instead,
incapacitated and appointing Jeanie the permanent guardian          Dawn brings three procedural issues challenging the probate
of Perry's person and Walker the permanent guardian of              court's authority to sign the final appointment order. Dawn
Perry's estate. Jeanie timely filed a motion to modify the          states the following three issues on appeal:
final appointment order to include a finding, pursuant to
 *320 Texas Rule of Civil Procedure 18a, that good cause                1. Did the Probate Court ever acquire jurisdiction over
existed to proceed with trial even if a motion to recuse                   the person and the estate of Perry Lee Whatley which
remained pending. On January 11, 2007, the trial court signed              allowed it to appoint a temporary, and then permanent,
a modified appointment order that included a “good cause”                  guardian?
finding (“final appointment order”). Perry, Dawn, and Easton
filed a notice of appeal challenging, among other orders, the           2. Could a disqualified trial judge in exercising “discretion”
final appointment order.                                                   enter a new judgment one working day after he
                                                                           reacquired jurisdiction, as the case was in the Court of
5                                                                          appeals until October 13, 2006?
       On October 13, 2006, this Court issued its mandate in the
       direct appeal so that the hearing scheduled for October          3. Could a visiting Judge overrule his own motion to recuse
       16, 2006 could go forward.                                          and disqualify and then enter orders and judgments from
6      The attorney ad litem served the order setting the hearing          outside the County seat?
       on counsel for Perry and Dawn.
                                                                    Easton has challenged a show-cause order signed by Judge
On January 16, 2007, Perry, Dawn, and Easton filed an
                                                                    Wood addressing emails allegedly sent by Easton and states
amended notice of appeal and a motion for new trial, which
                                                                    the following as his issue for this appeal:
included another motion to recuse Judge Wood. On February
14, 2007, Perry died, and Dawn, thereafter, filed a second                        Can a trial judge be a witness, an
amended notice of appeal, removing Perry as an appellant                          accuser, a prosecutor, and the fact-
and adding Dawn, individually and as executrix of Perry's                         finder in a case of criminal contempt;
Estate, as an appellant. 7 Dawn then either joined or filed two                   then, after admitting that the person
additional motions to recuse Judge Wood, on April 19, 2007                        he is personally accusing of the
and November 17, 2007. 8 On February 5, 2008, Judge Olen                          contempt was not served with a show
Underwood signed an order recusing Judge Wood from the                            cause order, can that judge issue a
                                                                                  writ of attachment commanding the


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Whatley v. Walker, 302 S.W.3d 314 (2009)


             arrest of the accused without bond—
             in violation of both the State and the                 (a) On the filing of an application for guardianship, notice
             Federal Constitutions—and while the                       shall be issued and served as provided by this section.
             judge is laboring under constitutional
             disqualification?
                                                                                               ...

                                                                    (c) The sheriff or other officer shall personally serve
                     III. ANALYSIS 10                                  citation to appear and answer the application for
                                                                       guardianship on:
10     We note that, due to the death of Perry, any appeal of
       the order appointing a permanent guardianship over his              (1) a proposed ward who is 12 years of age or older;
       person has become moot. Zipp v. Wuemling, 218 S.W.3d
       71, 74 (Tex.2007). Because there is a continuing dispute
                                                                                               ...
       over who should settle the estate, however, Perry's death
       does not moot the issue of the guardianship of his estate.     (3) any court-appointed conservator or person having
       Id. Accordingly, we dismiss the issues and arguments
                                                                         control of the care and welfare of the proposed ward;
       relevant to guardianship over the person of Perry.
 [1] In her first issue, Dawn challenges the probate court's                  (4) a proposed ward's spouse if the whereabouts
jurisdiction to sign the *321 final order of appointment and                     of the spouse are known or can be reasonably
any other orders by claiming that Perry, Dawn, Walker, and                       ascertained; and
Black were not properly served.
                                                                              (5) the person named in the application to be
                                                                                 appointed guardian, if that person is not the
A. Service of Process                                                            applicant.
 [2] Before a court may enter judgment against a party, the
                                                                      Tex. Prob.Code § 633(a), (c). Failure to serve the
court must have obtained jurisdiction over that party pursuant
                                                                        proposed ward with citation is jurisdictional, and
to applicable rules or statutes. See Tex.R. Civ. P. 124; Ross
                                                                        a court's subsequent order appointing a guardian
v. Nat'l Center for the Employment of the Disabled, 197
                                                                        without proper service on the ward is void. See
S.W.3d 795, 796–97 (Tex.2006); Vance v. Davidson, 903
                                                                        In re Erickson, 208 S.W.3d at 740 (“only through
S.W.2d 863, 866 (Tex.App.-Houston [14th Dist.] 1995, orig.
                                                                        compliance with Section 633 of the Texas Probate
proceeding). A trial court's jurisdiction is a question of law an
                                                                        Code is the trial court's jurisdiction invoked”). The
appellate court reviews de novo by examining the pleadings
                                                                        Code further provides that a person other than the
and any other evidence relevant to the determination. In re
                                                                        proposed ward may waive receipt of notice or the
Erickson, 208 S.W.3d 737, 740 (Tex.App.-Texarkana 2006,
                                                                        issuance and personal service of citation. Section
no pet.). In general, jurisdiction over a party is acquired
                                                                        633(e) provides:
by voluntary appearance, service of process as provided
by law, or waiver of service. See Tex.R. Civ. P. 124 (“In                          A person other than the proposed
no case shall judgment be rendered against any defendant                             ward who is entitled to receive
unless upon service, or acceptance or waiver of process, or                          notice or personal service
upon an appearance by the defendant, as prescribed in these                          of citation under Subsections
rules, except where otherwise expressly provided by law or                           (c) and (d) of this section
these rules.”); Werner v. Colwell, 909 S.W.2d 866, 869–70                            may choose, in person or by
(Tex.1995).                                                                          attorney ad litem, *322 by
                                                                                     writing filed with the clerk,
 [3]    [4] In addition to the civil service of process                              to waive the receipt of notice
requirements articulated under the civil procedure rules, the                        or the issuance and personal
Probate Code prescribes further service requirements specific                        service of citation.
to guardianship proceedings. Specifically, Section 633 of the
Probate Code provides in relevant part:


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Whatley v. Walker, 302 S.W.3d 314 (2009)


                                                                    On October 19, 2006, Judge Wood sent a letter to this Court
      Tex. Prob.Code § 633(e). The Probate Code prohibits           notifying us that he was in receipt of our mandamus opinion,
        waiver of service by the proposed ward, but permits         and states in relevant part:
        waiver of citation by other persons entitled to service
        of process. See id.                                                      All parties have given full effect to the
 [5] Dawn argues that the probate court never invoked                            June 1, 2006 Order. The guardianship
jurisdiction over herself, Perry, Ray Black, or Walker because                   terminated that day. Neither the
they were not properly served. With respect to Perry, the                        guardian nor the attorney ad litem for
record reflects that after several attempts to locate him, he was                the ward have seen him since that day;
personally served with citation by a constable on September                      the ward's present whereabouts and
20, 2005 in a Massachusetts hospital. Likewise, the record                       condition are unknown.
before us reflects that Dawn was personally served with
citation by a constable on May 11, 2005. Thus, the probate           [7] Dawn also points to statements made by Judge Wood
court's jurisdiction over Perry and his estate was properly         at the August and October 2006 hearings that the case
invoked.                                                            was a “new guardianship proceeding.” We do not interpret
                                                                    either statement to mean that the entire proceeding was
 [6] Moreover, Black, the attorney ad litem, was not required       terminated or that the application for a guardianship had
to be served because he did not fall within the list of those       been dismissed. Instead, Judge Wood indicated that the
upon whom citation must be served. See Tex. Prob.Code               guardianship appointments had been terminated. The probate
Ann. § 633(c)(1)-(5). Likewise, Walker was not required             court's statements in the letter simply reassured this Court that
to be served because he was not “the person named in the            the probate court was in compliance with our ruling set forth
application to be appointed guardian.” Tex. Prob.Code Ann.          in the mandamus opinion. Additionally, neither a nonsuit
§ 633(c)(4), (5). Even if Black and Walker were required to         nor other order to terminate or remove the cause from the
be served, however, both Black and Walker filed multiple            lower *323 court's docket was signed, and the proceeding
pleadings with, and personally appeared before, the probate         maintained the same cause number, 355,095.
court without objecting to any lack of service of citation.
A general appearance in the case is a waiver of service             Accordingly, the probate court had jurisdiction over Perry,
of process. See Tex.R. Civ. P. 121 (stating that an answer          Dawn, Black, and Walker in cause number 355,095, the
shall constitute an appearance “so as to dispense with the
                                                                    only guardianship proceeding before the lower court. 11 We
necessity for the issuance or service of citation”); Adcock v.
                                                                    overrule Dawn's first issue.
Sherling, 923 S.W.2d 74, 79 (Tex.App.-San Antonio 1996,
no pet.). The lower court, therefore, had jurisdiction to hold
                                                                    11     Without citing relevant authority, Dawn insists that the
the guardianship hearing.
                                                                           mandamus proceeding voided any order by the probate
                                                                           court from September 9, 2005 forward. Such statement
B. “Second” Guardianship Proceeding                                        misrepresents our mandamus opinion. We held that
Although her briefing is not entirely clear, Dawn appears to               the mandamus proceeding resulted in the declaration
                                                                           that three orders of the probate court, the temporary
additionally argue that the probate court lacked jurisdiction
                                                                           appointment order, the order reaffirming the temporary
over the parties in this case because our opinion voiding the
                                                                           appointment, and the permanent appointment order, were
temporary guardianship orders and permanent guardianship
                                                                           void. In re Whatley, 2006 WL 2948230, at *4. This Court
order of December 14, 2005 terminated the guardianship                     did not declare all subsequent orders in the proceeding
proceeding that was originally filed on April 15, 2005 and                 void.
in turn, created a second guardianship proceeding requiring
service of process, once again, on Perry, Dawn, Black, and          C. Ruling on the Motion to Recuse While The Direct
Walker. To support this particular argument, Dawn relies on         Appeal Was Pending
a letter dated October 19, 2006 and statements made by Judge        In her second issue, Dawn challenges Judge Burwell's
Wood at the August and October 2006 hearings.                       authority to rule on the September 9, 2005 motion to recuse
                                                                    Judge Wood on the following bases: (1) Judge Burwell lacked
                                                                    authority to deny the motion to recuse while the direct appeal



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Whatley v. Walker, 302 S.W.3d 314 (2009)


remained pending with this Court; (2) there was not an             county court sitting in probate appointed an administrator
order of assignment authorizing Judge Burwell to rule on the       of the estate of the deceased. 142 S.W.2d at 307. The
motion; (3) Judge Burwell acknowledged in an affidavit that        administrator later filed an application to resign. Id. at 307–
her involvement in the case terminated on November 3, 2005;        08. The county court accepted the resignation, approved
and (4) Judge Burwell erroneously signed the recusal order         the administrator's final accounting, and ordered the estate
outside of the county seat.                                        turned over to another individual. Id. at 308. Certain parties
                                                                   interested in the estate appealed the county court's order to the
                                                                   district court. Id. While the appeal was pending, the county
1. The Pending Appeal                                              court appointed a successor administrator, who later resigned,
Dawn is correct that there was a direct appeal filed from          and then appointed another temporary and permanent
the probate court's December 14, 2005 order appointing a           administrator. Id. On appeal, the question before the court
guardian. In dismissing that appeal, this Court held that we       was whether the lower court had the “authority, power, and
lacked jurisdiction over the appeal because the December           jurisdiction” to appoint the successor administrator. Id. at
14, 2005 order was declared void in our prior mandamus             309. The court found that it did because, inter alia, the appeal
proceeding. In re Guardianship of Whatley, No. 14–06–              did not involve the validity of the resignation of the prior
0079–CV, 2006 WL 2771879 (Tex.App.-Houston [14th                   administrator but only the acceptance of the final account and
Dist.]. Sept. 28, 2006, no pet.) (mem. op.). Dawn relies on        his discharge from liability. Id. In other words, the lower court
the general rule that once an appeal is perfected, an appellate    could continue its probate court duties because the appeal did
court, with certain exceptions, has exclusive jurisdiction over    not involve those actions.
the cause. See, e.g., Saudi v. Brieven, 176 S.W.3d 108,
113–14 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).           Likewise, Judge Burwell could rule on the September 9, 2005
However, the cases on which Dawn relies do not support             motion to recuse notwithstanding the existence of the direct
the proposition that a trial court has no authority to continue    appeal. The direct appeal did not involve the September 9,
probate proceedings while a voided order is appealed in a          2005 motion to recuse on which Judge Burwell ruled. The
separate appeal. These cases are not on point, and under our       direct appeal involved a claim by Dawn that the probate court
set of facts, do not mandate that a probate court's authority is   had no jurisdiction over the person and estate of Perry because
so restricted.                                                     of an alleged lack of personal service of citation. We hold that,
                                                                   under the unique facts of this case, Judge Burwell could rule
In a proceeding governed by the Texas Probate Code, there          on the September 9, 2005 motion. See id.
are often multiple phases and stages of the case that must be
resolved. This fact has often made it difficult for courts and
parties to determine when a final order has been entered that      2. Order of Assignment to Judge Burwell and Her
can be appealed. See DeAyala v. Mackie, 193 S.W.3d 575,            Affidavit.
578 (Tex.2006) (noting justification for allowing review of        Contrary to Dawn's argument, Judge Burwell acted pursuant
intermediate decisions in probate case so that error does not      to a valid order of assignment. Shortly after the September 9,
harm later phases of proceeding). In a guardianship case, in       2005 motion to recuse was filed, Judge Steve King, Presiding
particular, there are multiple stages to the proceeding, and       Judge of the Statutory Probate Courts of Texas, issued a
the appointed guardian and probate court have continuing           Minute Order assigning Judge Burwell to hear the September
duties even after an appeal is filed. See, e.g., Tex. Prob.Code    9, 2005 motion. The order of assignment expressly states:
§ 655 (pending appeal from order appointing a guardian,
appointee shall continue to act as guardian and shall continue                  IT IS THEREFORE ORDERED that
prosecution of pending suit in favor of guardianship); Tex.                     the HONORABLE GLADYS B.
Prob.Code § 671(a), (b) (judge has duty to examine, at                          BURWELL, Statutory Probate Judge
least annually, well-being of ward); Tex. Prob.Code § 672                       of the Probate Court of Galveston
(court must review annually whether guardianship should be                      County, Texas, is hereby assigned
continued, modified, or terminated).                                            to hear [Perry Lee Whatley and
                                                                                Dawn Johnson Whatley's Motion
*324 [8] The facts of this case are similar to those in                         to Disqualify/Recuse The Honorable
Mellinger v. Nicholson, 142 S.W.2d 307 (Tex.Civ.App.-                           Mike Wood] in the above-referenced
Galveston 1940, writ dism'd judgm't cor.). In Mellinger, the                    and numbered cause with all rights,


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Whatley v. Walker, 302 S.W.3d 314 (2009)


            powers and privileges held by the                    explained that not every act taken or thought pondered by a
            regular judge of the court assigned.                 visiting or assigned judge must be carried out in the county
                                                                 seat. Id. “We do not believe Mellon means to include mental
The order does not impose a deadline or time limit for Judge     processes of judges in its interpretation of ‘proceedings.’ ”
Burwell to rule on the motion to recuse. The order remained      Id. Nor does it include the task of signing orders on motions.
in force at the time Judge Burwell ruled on the September 9,     Id. at 465. “Appellants's interpretation of ‘proceedings' would
2005 motion. Therefore, there was a valid order of assignment    require the State of Texas to pay judges to travel from county
authorizing Judge Burwell to rule on the recusal motion.         to county merely to sign their names or to review copies that
                                                                 could be delivered, faxed, or e-mailed.” Id. The record reflects
Dawn, however, does not acknowledge Judge King's order of        that Judge Burwell signed an order denying the motion from
assignment, but relies on an affidavit filed by Judge Burwell    Clear Lake City. Judge Burwell was not required to be at
on March 1, 2006, which states that she was appointed on         the county seat at the time she signed the order denying the
September 9, 2005 and September 12, 2005 to preside over         September 9, 2005 motion to recuse. See id.
a motion to recuse and that she ruled on November 2, 2005.
Although Judge Burwell thought, at the time this affidavit was   Judge Burwell had the authority to rule on the September 9,
drafted, that she had completed her rulings, our court issued    2005 motion to recuse. She denied that motion on June 6,
an opinion in the mandamus proceeding finding that she had       2006. We overrule Dawn's second issue.
ruled only on the September 12, 2005 motion. After our
opinion issued, Judge Burwell ruled on the September 9, 2005
                                                                 D. Judge Herman's Rulings On His Motions to Recuse
motion. The affidavit of Judge Burwell does not establish that
                                                                 and Disqualify
her appointment to hear the September 9, 2005 motion had
                                                                 In her third issue, Dawn argues that Judge Guy Herman erred
lapsed; *325 it establishes only that she was mistaken as to
                                                                 when he ruled on the motion to disqualify filed against him by
whether both motions had been ruled upon. Her subsequent
                                                                 Dawn and the motion to recuse filed by Easton. Dawn further
ruling on the September 9, 2005 motion acknowledges this
                                                                 contends, without explanation, that the error is dispositive of
fact and was permitted by the Minute Order appointing her to
                                                                 the appeal.
hear the motion.


                                                                 1. Dawn's Motion to Disqualify Judge Herman
3. Signing the Order in Clear Lake
                                                                 Dawn filed a motion to disqualify Judge Herman in his
 [9] Finally, Dawn argues that Judge Burwell's order denying
                                                                 capacity as an individual judge and as the administrative
the September 9, 2005 motion was not effective because the
                                                                 judge on July 21, 2006. Judge Herman dismissed the motion
order reflects that she signed the order in Clear Lake City,
                                                                 on July 27, 2006 on the basis that the motion was procedurally
Texas, outside the county seat. This argument is also without
                                                                 defective. Judge Herman determined that the motion was
merit. Because the record reflects that Judge Burwell did not
                                                                 untimely filed and that there was no statutory authority to
conduct any proceedings outside of the county seat, her order
                                                                 disqualify the Presiding Judge of the Statutory Probate Courts
is not void.
                                                                 in his administrative capacity.
In Mellon Service Co. v. Touche Ross & Co., this Court
                                                                 This Court recently addressed a similar issue in Guilbot v.
addressed whether a visiting judge assigned to hear a case in
                                                                 Estate of Vallejo, 267 S.W.3d 556 (Tex.App.-Houston [14th
Harris County, Texas could hear oral argument on a motion
                                                                 Dist.] 2008, pet. filed). Guilbot also involved an order of
for summary judgment in Galveston County, Texas consistent
                                                                 Judge Herman ruling on his own motion to recuse. Id. at 559.
with article V, § 7 of the Texas Constitution. 946 S.W.2d
                                                                 We stated, “Texas law is clear that, when faced with a motion
862, 863 (Tex.App.-Houston [14th Dist.] 1997, no writ). We
                                                                 to recuse, a judge has only two options: grant the motion
held that a summary judgment hearing met the definition of
                                                                 to recuse or refer the motion to another judge for a *326
a proceeding for purposes of article V, § 7 and thus had to be
                                                                 ruling.” Id. at 561. When Judge Herman ruled on his own
conducted in the county seat. Id. at 869. However, in Burns
                                                                 motion to recuse, he erred and should have instead referred
v. Bishop, we clarified what acts constitute article V, § 7
                                                                 the motion to the Chief Justice of the Texas Supreme Court.
proceedings that must be heard in the county seat. 48 S.W.3d
                                                                 Id. (citing Tex. Gov't Code Ann. § 74.057(a) and Tex.R. Civ.
459, 464 (Tex.App.-Houston [14th Dist.] 2001, no pet.). We
                                                                 P. 18a(g)). Likewise, Judge Herman erroneously ruled on the


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Whatley v. Walker, 302 S.W.3d 314 (2009)


motion to disqualify and should have referred the motion to             procedure for recusal and disqualification except that the
the Chief Justice of the Texas Supreme Court. Id. Following             judge shall continue to:
our decision in Guilbot, we conclude that Judge Herman erred
in ruling on Dawn's motion to disqualify him. Finding Judge             (1) preside over the case;
Herman's ruling to be error, we must now determine if such
                                                                        (2) sign orders in the case; and
error requires reversing this appeal. See id. at 562–63.
                                                                        (3) move the case to final disposition as though a tertiary
                                                                           recusal motion had not been filed.
2. Judge Herman's Error
The August 3, 2005, September 9, 2005, and September 12,
                                                                   Tex. Civ. Prac. & Rem.Code § 30.016. 14 The June 6, 2006
2005 motions were all disposed of prior to the final order at
                                                                   motion to disqualify Judge Wood was the fourth motion filed
issue in this appeal. 12 Our review of the record shows that,      by Dawn against Judge Wood. It thus satisfies the definition
once any orders signed by Judge Herman after the motion to         of a tertiary recusal motion and did not prevent Judge Wood
disqualify him was filed are declared void, there remained         from moving the case to “final disposition as though a tertiary
pending at the time of the final order signed by Judge Wood        recusal motion had not been filed.” Id.
the following: (1) a motion to disqualify Judge Wood filed
by Dawn on June 6, 2006; and (2) a motion to recuse and            14     Section 30.016 was amended after Perry's guardianship
disqualify Judge Wood filed by Easton on September 17,
                                                                          proceeding was filed. We, refer to the version of Section
2006. Both motions are tertiary and did not prevent Judge                 30.016 in effect at the time of filing.
Wood from signing the final order. 13                              Furthermore, Judge Wood modified his order to reflect
                                                                   the good cause required *327 under Texas Rule of Civil
12     Motions to recuse were also filed against Gladys Burwell    Procedure 18a for proceeding with a ruling when a motion
       and Russell Austin, the judges assigned to hear some        to recuse is pending. Rule 18a(d) provides that, where a
       of the recusal motions. The motions to recuse Judge         judge declines to recuse himself, he must refer the motion to
       Burwell and Judge Austin are not at issue in this appeal.   recuse and, except for good cause stated in the order in which
13     Dawn claims in her motion to dismiss her own appeal         further action is taken, shall make no further orders and take
       that there were five recusal motions pending at the         no further action in the case. Tex.R. Civ. P. 18a(d). Judge
       time Judge Wood signed the October 16, 2006 order           Wood modified his final order of appointment to reflect the
       appointing permanent guardian. Dawn is incorrect. The       necessary good cause finding.
       record shows that only the two motions cited were
       pending. There were several motions filed after the final    [11] We acknowledge that Section 30.016(e) provides that
       order in this case was signed; of course, any post-order    if a tertiary recusal motion is finally sustained, the new judge
       motions could not prevent the judge from signing the        for the case shall vacate all orders signed by the sitting judge
       final order.                                                during the pendency of the tertiary recusal motion. Tex. Civ.
 [10] Section 30.016 of the Texas Civil Practice and               Prac. & Rem.Code Ann. § 30.016(e). We also recognize that
Remedies Code provides that a trial court may continue to          Judge Olen Underwood did ultimately recuse Judge Wood on
dispose of a case even after a motion to recuse is filed, if the   February 5, 2008 while this case was on appeal. Dawn and
motion is a tertiary motion. The version of Section 30.016         Easton filed a motion to dismiss the current appeal on the
in effect at the time the final order in this case was signed,     basis of Judge Underwood's order of recusal, claiming that
titled Recusal or Disqualification of Certain Judges, provided     the order rendered void (and thus not appealable) any order
in pertinent part as follows:                                      signed by Judge Wood. We disagree. Judge Underwood's
                                                                   recusal order states that he was ruling on the “Motion to
  (a) In this section, “tertiary recusal motion” means a third     Recuse” filed pursuant to Rule 18a. The only pending motions
     or subsequent motion for recusal or disqualification          to recuse Judge Wood at the time Judge Underwood ruled
     filed against a district court, statutory probate court, or   were motions filed after the final order was signed. The final
     statutory county court judge by the same party in a case.     order appealed from in this case was not signed during the
                                                                   pendency of the recusal motion that was ultimately sustained.
  (b) A judge who declines recusal after a tertiary recusal
                                                                   Thus, the final order does not have to be vacated under
     motion is filed shall comply with applicable rules for
                                                                   Section 30.016(e).


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Whatley v. Walker, 302 S.W.3d 314 (2009)


                                                                   [14] Easton additionally claims that his standing in this
                                                                  case cannot be challenged because no one filed a verified
3. Easton's Recusal Motion                                        denial of capacity under Texas Rule of Civil Procedure 93.
 [12] Easton filed a motion to recuse Judge Herman on April       Easton is correct that the record does not reflect a challenge
27, 2006. Easton, however, had no standing to file a motion       to capacity under Rule 93. Easton's right to file a motion to
to recuse any judge in the guardianship proceeding. Thus, his     recuse, however, is predicated on the existence of a justiciable
motion to recuse was ineffective, and Judge Herman was not        interest in the case. Whether Easton had the capacity to
required to rule on that motion.                                  sue is not the issue. The question of whether a party has a
                                                                  justiciable interest in a case is a question of standing that can
 [13] Texas Rule of Civil Procedure 18a provides that a party     be raised at any time, even on appeal. See Austin Nursing
may file a motion to recuse. Tex.R. Civ. P. 18a(a). The First     Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005). To
Court of Appeals has recently held that, under Rule 18a, a        have standing, and thus a justiciable interest in a case, there
motion to recuse filed by a non-party does not satisfy Rule 18a   must be: “(1) a real controversy between the parties,” that
and thus need not be referred before proceeding with the case.    (2) “will be actually determined by the judicial declaration
Bell v. State, No. 01–05–1180–CR, 2006 WL 3628916, at *6          sought.” Id. Easton has no standing in the case because there
(Tex.App.-Houston [1st Dist.] Dec. 14, 2006, no pet.) (mem.       is no real controversy between him and Walker with respect
op.). We agree with the Bell court's reasoning and hold that a    to the guardianship over Perry that will be determined in the
motion to recuse filed by a person with no justiciable interest   guardianship proceeding. Because Easton has no justiciable
in the case is not effective and does not have to be ruled upon   interest in the guardianship proceeding, his motions to recuse
or referred before a court may continue with the case.            in that proceeding are ineffective.

Easton claims to have an assignment from Dawn of certain of       Although we agree Judge Herman erred when he ruled on his
her claims. We do not rule on the validity of this assignment     own recusal motion, we find that the error is not reversible.
as it has not been raised as an issue in this appeal. We          Accordingly, we overrule Dawn's third issue.
do find, however, that, notwithstanding any assignment of
certain claims, Easton does not have a justiciable interest in
the guardianship proceeding and thus is not considered a party    E. Easton's Challenge to the Show-cause Order
for purposes of a Rule 18a motion to recuse. On February 17,       [15] In issue four, Easton challenges the probate court's
2006, Easton stated in open court, “I don't have an interest in   show-cause order and accompanying writ of attachment
Mr. Whatley's guardianship.” At another hearing on March 2,       issued against him. In the argument section of his brief,
2006, the following exchange occurred:                            Easton includes many statements and allegations that do
                                                                  not pertain to the show-cause order, thus making it difficult
  Court: Now, saying that, I wonder what it is that you think     to discern the exact bases of Easton's challenge. He does,
    you can have assigned to you. Do you think you can have       however, complain that there were pending motions to recuse
    a contest assigned to you?                                    Judge Wood at the time that Judge Wood issued the show-
                                                                  cause order. He also complains that the show-cause order
  Easton: No, sir.
                                                                  was not personally served on him before the arrest warrant
  Court: So, you're not here on a contest?                        was issued, thus making it void. We hold that the probate
                                                                  court's show-cause order was not void based on any motions
  Easton: No, sir.                                                to recuse and that Easton has no right to relief because
                                                                  he has never been held in contempt and has suffered no
These statements reflect Easton's own admissions that he          adverse ruling. Moreover, Easton will suffer no adverse ruling
has no justiciable interest in the guardianship proceeding.       because the writ of attachment has expired. We, therefore,
The guardianship proceeding is the only claim at issue in         overrule Easton's issue.
this appeal. Any motion to *328 recuse filed by Easton
against Judge Herman or Judge Wood with respect to
the guardianship proceeding was, therefore, ineffective. See      1. The show-cause order and writ of attachment
Tex.R. Civ. P. 18a; Bell, 2006 WL 3628916, at *6.                 On February 7, 2006, Judge Wood issued an order with the
                                                                  following:




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           12
Whatley v. Walker, 302 S.W.3d 314 (2009)


                                                                   contempt proceeding. Id. at 201–02. The court held that the
             On this day the Court on its                          motion to recuse prevented the trial court from hearing the
             own motion orders that all counsel,                   contempt proceeding. Id. at 203. It did not hold that the trial
             specifically including Michael Easton,                court was prevented from even issuing the show-cause order.
             pro se, are to cease and desist                       Id. Nothing in Jamilah prevented Judge Wood from issuing
             using Judge Mike Wood's personal                      the show-cause order in this case. And, Judge Wood never
             email address. Such action constitutes                held a contempt hearing because Easton could not be located.
             ex parte communication with Judge                     Thus, Jamilah provides no support for Easton's claim that the
             Wood.                                                 show-cause order could not be issued.

Easton then filed a motion to vacate the order, claiming he
had no advance notice, no opportunity for hearing, and he was      3. Easton's appeal is moot
denied due process. The court held a hearing on the motion to      Easton also argues that Judge Wood should not have issued
vacate the February 7 order and expressly told Easton in court     the writ of attachment because Easton was not personally
that sending an email to the judge's personal address would be     served with the show-cause order, citing Ex parte Briscoe,
an ex parte communication and that anyone sending him an           561 S.W.2d 26 (Tex.App.-Houston [1st Dist.] 1977, orig.
email to his personal address would be held in contempt. The       proceeding) and In re Aguilera, 37 S.W.3d 43 (Tex.App.-
very next day, Easton allegedly sent an email to Judge Wood's      El Paso 2000, orig. proceeding). These cases hold that a
personal email address. The court then issued a personal           party must be served with a show-cause order for the court
citation commanding *329 Easton to appear at a show-cause          to acquire jurisdiction over the contempt proceeding. These
hearing on August 3, 2006. Easton failed to appear, and the        cases, however, do not support Easton's issue on appeal.
trial court then issued a writ of attachment. The sheriff was      Because Easton has suffered no injury, and will suffer no
not able to locate Easton to serve the writ, and it was returned   injury from the writ of attachment, his issue is moot.
unserved and expired on December 4, 2006.
                                                                   As we held in In re Easton, the mere existence of the writ
                                                                   of attachment did not infringe upon Easton's liberty. In re
2. The order was not void
                                                                   Easton, 203 S.W.3d at 441. Judge Wood never held Easton
Easton's challenge to the show-cause order based on any
                                                                   in contempt and never assessed any punishment. At the time
pending motions to recuse Judge Wood was the subject
                                                                   we issued In re Easton, there was no adverse ruling against
of his previous writ of habeas corpus proceeding in this
                                                                   Easton from which he could pursue a writ of habeas corpus.
Court. In re Easton, 203 S.W.3d 438 (Tex.App.-Houston
                                                                   Id.
[14th Dist.] 2006, orig. proceeding). As we held in In re
Easton, any pending motions to recuse would not prevent
                                                                    [16]     [17]    [18] There is still no adverse ruling against
Judge Wood from issuing the show-cause order. Texas Rule
                                                                   Easton, nor will there be. The writ of attachment was returned
of Civil Procedure 18a(d) states that while a recusal motion
                                                                   to the court on December 4, 2006 unserved and expired. A
is pending “the judge shall make no further orders and shall
                                                                   writ of attachment that is not served before it expires becomes
take no further action in the case.” Tex.R. Civ. P. 18a(d);
                                                                   functus officio, meaning it is without legal force or effect.
In re Easton, 203 S.W.3d at 442. By issuing the show-cause
                                                                   See Ex Parte Arapis, 157 Tex. 627, 306 S.W.2d 884, 885–
order prohibiting ex parte communications, Judge Wood did
                                                                   86 (1957). Any claim Easton may have regarding the writ of
not take any action in disposing, adjudicating, or resolving
                                                                   attachment is moot. See *330 Allstate Ins. Co. v. Hallman,
any aspect of the guardianship proceeding. In re Easton, 203
                                                                   159 S.W.3d 640, 642 (Tex.2005) (“A case becomes moot
S.W.3d at 442. Thus, any pending motions to recuse would
                                                                   if a controversy ceases to exist or the parties lack a legally
not have rendered the show-cause order void. Id.
                                                                   cognizable interest in the outcome.”); see also Davison v.
                                                                   Lane, 350 S.W.2d 244, 248 (Tex.Civ.App.-Waco 1961, no
Easton relies on Jamilah v. Bass, 862 S.W.2d 201 (Tex.App.-
                                                                   writ) (finding that alleged wrongful issuance of writ of
Houston [14th Dist.] 1993, orig. proceeding) in support of his
                                                                   attachment against cattle became moot question where cattle
argument. Jamilah is distinguishable. In that case, the trial
                                                                   owner had suffered no damage). Moreover, any alleged error
court issued the show-cause order and set a contempt hearing.
                                                                   in issuing the writ of attachment would be harmless; there has
Id. at 201. After receiving the notice of the contempt hearing,
                                                                   been no rendition of an improper judgment against Easton.
the party filed a motion to recuse the judge from hearing the
                                                                   See Tex.R.App. P. 44.1(a)(1) (stating appellate court cannot


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           13
Whatley v. Walker, 302 S.W.3d 314 (2009)


                                                                      request for sanctions, stating that the documents were merely
reverse based on trial court error unless error complained of
                                                                      overlooked. After reviewing the record, the Court can attest
“probably caused the rendition of an improper judgment.”).
                                                                      that the clerk's record in this case is large, voluminous, and
Because Easton's challenge to the show-cause order is without
                                                                      convoluted. There are seventeen volumes of clerk's record,
merit, we overrule his issue.
                                                                      most of which are groups of supplemental volumes with
                                                                      indices only in the first volume. Many of the documents
F. The Ancillary Appellate Motions are Overruled                      necessary for review are attachments, requiring the reader to
The following motions have been filed by Dawn and Easton              page through documents that do not seem relevant. It is easy
and remain pending: Appellants' Motion to Strike Exhibits             to overlook documents in the record, and we find no basis for
to Appellee's Brief; Appellants' Emergency Motion to Set              imposing sanctions. The motions for sanctions are denied.
the Case for Submission and to Render; Appellants' Motion
for Sanctions (filed August 1, 2007); Appellants' Motion to            [20] Finally, Appellants ask the Court to appoint Retired
Recalendar the Cause and Dismiss the Appeal for Lack of               Chief Justice Paul Murphy as a special master to conduct
Jurisdiction; Appellants' Motion to Dismiss (filed February           a hearing into the truth of assertions contained in affidavits
22, 2008); Appellants' Motion for Appointment of a Special            filed in response to certain motions on appeal. We deny this
Master; and Appellants' Motion for Sanctions and Reply to             request. Our disposition of this appeal is based on the record
Appellee's Response to Dismiss Appeal (filed March 12,                only. Any alleged misstatements contained in documents
2008). The Motion to Strike Exhibits to Appellee's Brief, the         outside the appellate record are irrelevant to the issues on
Motion to Recalendar the Cause, and the Emergency Motion              appeal. The motion to appoint a special master is denied.
to Set the Case for Submission and to Render are denied as
moot.
                                                                                           IV. CONCLUSION
Appellants' motions to dismiss the appeal and render
judgment in their favor are based on the claim that Judge             The probate court had jurisdiction over the person and estate
Underwood's order granting recusal of Judge Wood made                 of Perry Whatley at the time the final guardianship order
the final order being appealed void. We overrule Appellants'          was *331 signed. There were no procedural impediments to
motions to dismiss the appeal for the reasons set forth earlier       the entry of the final order at issue in this appeal. Easton's
in this opinion.                                                      challenge to the show-cause order and writ of attachment are
                                                                      without merit. We, therefore, overrule appellants' issues and
 [19] Appellants also filed a request for sanctions, claiming         affirm the probate court's order.
that Walker lied to this Court in his opposition to the motion
to dismiss by asserting that appellants did not have record
support for their argument. It is true that some of the items         All Citations
Walker claimed were missing from the record are in fact in
                                                                      302 S.W.3d 314
the record. Walker admitted this fact in his opposition to the

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               14
Zipp v. Wuemling, 218 S.W.3d 71 (2007)
50 Tex. Sup. Ct. J. 543


                                                                          [3]     Guardian and Ward
     KeyCite Yellow Flag - Negative Treatment                                        Removal
Distinguished by In re Guardianship of Norris,   Tex.App.-San Antonio,
                                                                                  Ward's death did not render moot former
 January 6, 2010
                                                                                  guardian's appeal of trial court decision to
                       218 S.W.3d 71                                              remove her; current or former guardian would
                   Supreme Court of Texas.                                        need to present accounting of the guardianship
                                                                                  estate to the district court, the interests of
                  Cynthia ZIPP, Petitioner,                                       ward's estate required full consideration of
                           v.                                                     former guardian's claims because estate would
          Alisa WUEMLING, Individually and                                        be best served by person deemed most qualified,
            as the Guardian of the Estate and                                     ward and estate were not the real parties in
         Person of Jewel W. Keller, Respondent.                                   interest, and former guardian's rights and duties
                                                                                  regarding attorney fees and costs depended
             No. 05–0731.         |   March 9, 2007.                              on determination of just cause for removal.
                                                                                  V.A.T.S. Probate Code, §§ 665(e)(2), 668(1–2).
Synopsis
Background: Former guardian appealed the order of the                             9 Cases that cite this headnote
220th District Court, Hamilton County, James E. Morgan, J.,
removing her as guardian of incapacitated ward, but while
                                                                          [4]     Guardian and Ward
the appeal was pending, the ward died. The Waco Court of
                                                                                     Death of ward
Appeals, Felipe Reyna, J., 171 S.W.3d 498, dismissed appeal
                                                                                  With the death of the ward, the guardianship of
as moot. Review was granted.
                                                                                  the person must end, but the estate must still be
                                                                                  settled. V.A.T.S. Probate Code, § 745(a)(2).

[Holding:] The Supreme Court held that ward's death did not                       5 Cases that cite this headnote
render appeal moot.


Reversed and remanded.                                                   Attorneys and Law Firms

                                                                         *72 David J. Patton, Euless, Stephanie Katriana Gonzalez,
                                                                         Grapevine, for Petitioner.
 West Headnotes (4)
                                                                         Wayne S. Weaver and Scott D. Allen, Stephenville, for
 [1]     Appeal and Error                                                Respondent.
            Want of Actual Controversy
                                                                         Connie White, Crouch & White, Hamilton, for interested
         An appeal is moot when a court's action on the                  party Jewel W. Keller.
         merits cannot affect the rights of the parties.
                                                                         Opinion
         14 Cases that cite this headnote
                                                                         PER CURIAM.

 [2]     Appeal and Error                                                Cynthia Zipp challenges the Tenth Court of Appeals' decision
            Effect of delay or lapse of time in general                  to dismiss as moot her appeal of a district court's guardianship
         The death of a party can, under certain                         decision. We reverse the court of appeals' judgment and
         circumstances, render an appeal moot.                           remand the case to the court of appeals for further proceedings
                                                                         consistent with this opinion.
         8 Cases that cite this headnote




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
Zipp v. Wuemling, 218 S.W.3d 71 (2007)
50 Tex. Sup. Ct. J. 543

Approximately two years after Jewel W. Keller was                  and argues Zipp's claim to guardian fees was forfeited when
incapacitated, and upon the resignation of a prior guardian,       the district court removed her for cause. See TEX.R.APP. P.
the County Court of Hamilton County appointed Zipp to be           33.1(a); TEX. PROB.CODE § 665(e)(2). The district court's
the guardian of Keller's person and estate. When a dispute         finding of cause for removal, Wuemling argues, should stand
arose between Zipp and Keller's family, the county court           because a district court's findings of fact should generally
transferred the case to the 220th District Court. After a          not be disturbed on appeal and Zipp failed to urge that the
bench trial, the district court ordered Zipp removed for           finding was against the great weight and preponderance of the
cause and appointed Alisa Wuemling as successor guardian. 1        evidence.
Zipp appealed her removal to the court of appeals. During
the pendency of that appeal, Keller died of natural causes.         [1] [2] [3] An appeal is moot when a court's action on
A divided court of appeals concluded that Keller's death           the merits cannot affect the rights of the parties. VE Corp.
rendered Zipp's complaint moot and, holding no justiciable         v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993). Thus,
controversy existed, dismissed the appeal. 171 S.W.3d 498,         the death of a party can, under certain circumstances, render
502 (Tex.App.-Waco 2005, pet. granted).                            an appeal moot. See, e.g., Olson v. Comm'n for Lawyer
                                                                   Discipline, 901 S.W.2d 520, 524–25 (Tex.App.-El Paso 1995,
1                                                                  no writ) (holding an appeal of a judgment in an attorney
       The district court removed Zipp as guardian and
                                                                   disciplinary action, pursued by the attorney's widow, was
       appointed Wuemling successor guardian pursuant to
                                                                   moot because the judgment did not affect the property rights
       section 761(c)(5), (6), and (7) of the Probate Code. The
       court justified Zipp's removal by stating it found: (1)     of the parties involved). But neither party to this controversy
       Zipp moved from the area of Keller's residence; (2)         has died. Instead, though Keller died, the repercussions of the
       she neglected to maintain Keller “as liberally as the       controversy between Zipp and Wuemling continue. Someone,
       means of [Keller] and the condition of [Keller's] estate    whether Zipp, Wuemling, or someone else, will ultimately
       permit”; and (3) she interfered with Keller's “progress     be required to present a final accounting of the guardianship
       and participation in programs in the community and her      estate to the district court. The trial court found Zipp was
       family.”                                                    disqualified from doing so and appointed Wuemling. Zipp has
Zipp raises two issues. First, she contends the court of appeals   a right to appeal that decision. Allowing her appeal, which
erred in dismissing her appeal as moot because, despite            could foreseeably result in her reinstatement as guardian, will
Keller's death, there remains a controversy between Zipp and       not, as Wuemling argues, result in needless duplication of
Wuemling over who should wind up the affairs of the estate.        effort and cost to the estate. To the contrary, the interests of
Second, Zipp argues her appeal is not moot because she has         the estate require full consideration of Zipp's claims because
a legally cognizable interest in guardian fees, attorney's fees,   an estate is best served by the person the courts deem
and costs.                                                         most qualified to perform guardianship duties. Moreover,
                                                                   Wuemling is incorrect that the real parties in interest in this
 *73 Wuemling argues the issue of guardianship became              case are Keller and her estate. With Keller's death and the
moot with Keller's death because a guardian of the person is       guardianship of her person no longer at issue, the parties with
no longer necessary and, as the current guardian, she is the       a remaining interest in this dispute are the parties relevant to
only one who should be charged with the duty of preserving         the guardianship of Keller's estate, namely Zipp, Wuemling,
Keller's estate. The real parties in interest, Wuemling reasons,   and the estate itself. All of those parties' interests are best
are not Zipp and Wuemling but rather Keller and her                served by hearing the merits of Zipp's appeal.
estate. Reinstating Zipp as guardian, Wuemling contends,
would result in Wuemling having to prepare and file a final        At the heart of this controversy is whether there was just
accounting, submit it to the court, and then turn over any         cause for Zipp's removal as guardian. The Probate Code
remaining assets to Zipp, who would use the information            makes a guardian's fees and her obligation to pay the
to submit her own final report as successor guardian. Such         costs and attorney's fees incurred by removal dependant on
needless duplication of effort and cost to the estate, Wuemling    this determination. See TEX. PROB. CODE §§ 665(e)(2),
argues, would run counter to sound public policy.                  668(1)-(2). Thus, her appeal is not moot. See Allstate Ins.
                                                                   Co. v. Hallman, 159 S.W.3d 640, 643 (Tex.2005) (“Hallman's
Wuemling also contends Zipp waived any claim to guardian           remaining interest in obtaining attorney's fees ‘breathes
fees, attorney's fees, and costs by failing to preserve error      life’ into this appeal and prevents it from being moot.”);



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Zipp v. Wuemling, 218 S.W.3d 71 (2007)
50 Tex. Sup. Ct. J. 543

                                                                         v. Alford, 62 Tex. 576, 580 (1884)). But the estate must
Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544, 545–
                                                                         still be settled. TEX. PROB.CODE § 745(a)(2). When there
46 (Tex.2003) ( “Because an appellate court's action in either
                                                                         is a dispute as to who shall settle the estate, a justiciable
affirming *74 or reversing the trial court's dismissal order
                                                                         controversy exists. See Weatherly v. Byrd, 552 S.W.2d 573,
would affect substantial rights of the parties ... there is a live
                                                                         574 (Tex.Civ.App.-Fort Worth 1977) (overruling appellant's
issue in controversy....”). Wuemling contends the trial court's
                                                                         motion to declare the case moot after the ward's death), rev'd,
finding of cause to remove Zipp as guardian should not be
                                                                         566 S.W.2d 292 (Tex.1978) (reversing on the merits without
disturbed on appeal and argues that, regardless, Zipp failed
                                                                         addressing the mootness issue). In this case, two of Zipp's
to preserve the issues of guardian fees, attorney's fees, and
                                                                         issues remain in controversy: (1) whether the district court
costs. But these are the very issues the court of appeals should
                                                                         properly removed Zipp as guardian, and (2) whether Zipp has
have addressed; they in no way indicate the mootness of the
                                                                         a legally cognizable interest in fees and costs.
underlying controversy. The court of appeals should have, at
a minimum, reviewed the record to determine whether Zipp
                                                                         Accordingly, we reverse the court of appeals' judgment
preserved error and, if so, considered the merits of Zipp's
                                                                         and remand the case to that court for further proceedings
claims.
                                                                         consistent with this opinion.
 [4] It is axiomatic that, with the death of the ward, the
guardianship of the person must end. See Alford v. Halbert,
                                                                         All Citations
74 Tex. 346, 12 S.W. 75, 76 (1889) (“Death of the ward
necessarily terminates the guardianship.”) (quoting Fortson              218 S.W.3d 71, 50 Tex. Sup. Ct. J. 543

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
               THE         ATTORNEYGENERAL
                                   OF     TEXAS

                            AURTIN,       TFXAS      78711




                              September      24,   1974


The Honorable Homer A.        Davis                       Opinion No.   H- 410
County Attorney
Hartley County                                            Re: Authority of county clerk
Box 1110                                                  to issue certified copy of
D&hart,  Texas  79022                                     letters testamentary  after
                                                          estate has been closed.

Dear Mr.   Davis:

        Your letter    to us asks:

                I would like to know what authority,     if any,
                the C o u n t y Clerk of Hartley County has to
                issue a Certified Copy of Letters Testamentary
                after an estate has been closed.

         The duties of a county clerk as recorder       of public records are
determined    by the Legislature  in accordance    with Article    5, 5 20 of the
Texas Constitution.    Article 1942, V. T. C. S., provides that county clerks
shall be keepers of the records,     books, papers and proceedings        of their
respective   courts,  including matters of probate.       Article 6591, V. T. C. S.,
requires the clerk to record all instruments       of writing “ authorized    or
required to be recorded in the c o u n t y clerk’s  office . . . .” Article 6600,
V. T. C. S., requires him to “give attested copies whenever demanded of
all papers recorded in his office . . . .‘I Therefore,         the answer to your
question depends      on whether     the clerk is authorized      to record   letters
testamentary.

         We have not found any provision in the Texas Probate Code, or any
other s t a t u t e , which authorizes  the clerk to record the letter testamentary
itself.   However,        the clerk is authorized by the Texas Probate Code to
record such facts a s the name of the e x e c u t o r   t o whom letters testamentary



                                             p. 1911
The Honorable         Homer     A.   Davis    page 2 (H-410)




are issued,  Texas Probate Code, $13, and each order, judgment,      decree
and proceeding of the probate court,    $15. Among the orders,  decrees
and judgments of the Probate Code which will appear in both the Judge’s
Probate Docket,   5 13, and in the Probate Minutes, $15, will be a full and
complete copy of the order granting letters testamentary.

           The letters testamentary         themselves,     however,   are not official
orders;     decrees   o r a c t s of the c o u r t such as the clerk is authorized    to
record.’     They are rather:

                      . .   . a certificate
                                          of the clerk of the court granting
                      the same, attested by the seal of such c o u r t , and
                      stating that the executor . . . has duly qualified as
                      such as the law requires,    the date of such qualifica-
                      tion, and the name of the deceased.     Texas Probate
                      Code, $183.

The distinction between facts which are required to be recorded and a
letter testamentary is recognized in $186 of the Texas Probate Code
which provides:

                      Letters testamentary,       of administration,   or of
                      guardianship,     or a certificate  of the clerk of the
                      court which granted the same, under the seal of
                      such court, that said letters have been issued,
                      shall be sufficient evidence of the appointment
                      and qualification    of the personal representative     of
                      an estate . . . and of the date of qualification.

         The Legislature   has not required the exhibit of a certified letter
testamentary    as evidence of an executor’s   appointment and qualification.
It is sufficient for the clerk when requested,    simply to certify that letters
testamentary    have been issued.

           Attorney     General      Opinion V-575     (1948) reached   the same   conclusion.

                      The County Clerk may not record in the probate
                      minutes a copy of letters of administration,


                                                  p.   1912
,
    -.   -




             The Honorable   Homer   A.   Davis   page 3 (H-410)




                             testamentary    or guardianships.   Neither is he
                             authorized to issue such letters to third persons.
                             However,   after such letters have been issued to
                             the proper persons,    the County Clerk m a y then
                             issue a certificate  of such facts which may appear
                             of record.

                      Thus, the county clerk is authorized to certify from the record
             that letters testamentary    were issued and any other recorded facts per-
             tinent to a particular  estate.  However,  since letters testamentary   are
             not authorized to be recorded in the probate records,     the county clerk has
             no authority to issue certified copies of s~uch letters.

                                              SUMMARY

                                  Although a county clerk can certify from the
                             record that letters testamentary   were issued to
                             a personal representative,   the clerk has no
                             authority to issue certified copies of letters
                             testamentary.




                                                       //    Attorney   General   of Texas




             DAVID M. KENDALL,        Chairman
             Opinion Committee


             lg
                                                      p. 1913
