Court of Civil Appeals of Texas, 2015

in the Guardianship of Lonnie Phillips, Jr., an Incapacitated Person

Court of Civil Appeals of Texas · Decided October 22, 2015

Opinion

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 [email protected] 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.

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.

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: [email protected]

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 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 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 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 [email protected] 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.

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.

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

Is/ Veronica L. Dayis Veronica L. Davis

Page 36 EXHIBIT A

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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: [email protected]

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: [email protected] 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: [email protected] Attorney at Law 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.

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: [email protected]

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 [email protected] Attorney at Law 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 §

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: [email protected] 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.

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 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.

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.

(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;

(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.

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

(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.

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.

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

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.

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.

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.

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.

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 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. 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

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

(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

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.

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.

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.

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.

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.

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 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.

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, 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 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 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.

[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 Cases that cite this headnote WALLACE, Justice.

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

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

[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, 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 Cases that cite this headnote is made. Rules App.Proc., Rule 38.1(f).

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. * 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 Cases that cite this headnote court eventually signed an order severing appellant's causes of action against Dr. Tita from the original lawsuit. On

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.

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.

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

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 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 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.

appointed to represent minor children in custody 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 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 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 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.

[1] [2] We do not reach the merits of the sufficiency 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

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

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 (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.

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

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 (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

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

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.

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 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 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.

Fiduciary or Confidential Relations 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 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 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 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/

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 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 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 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.

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 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 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,

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

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]. ....

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

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 (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

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,

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

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

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

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 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 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 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

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.

[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

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

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., 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 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 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 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 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 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 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 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 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 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 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 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 (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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 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.

[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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 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 (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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 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, (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.

[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, 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.

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 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 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 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 (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 (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 (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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 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 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 (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.

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

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 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.

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 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

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

[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

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.

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.

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 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 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

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, 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

‘(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

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 (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

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).

[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,

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 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.

and thus alleged misrepresentations did not 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 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 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,

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 Cases that cite this headnote period of two or three years, and friendship could best be described as a casual friendship.

[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 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 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

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 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).

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.,

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.

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

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

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

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

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 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

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).

Admissibility 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 Cases that cite this headnote Injury to family relationship was worthy of compensation in medical malpractice action. [15] Health

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 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

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 (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 (Tex. 1989); Gee, 765 S.W.2d at 396. the purpose of “exhibit[ing] the child's injuries, that is the

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

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).

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

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

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

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

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.

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 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-

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 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

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

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,

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,

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.]

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)).

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,

& 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

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

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

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

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

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

[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 (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

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.

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; 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Robinson v. Alief Independent School Dist., 298 S.W.3d 321 (2009) 251 Ed. Law Rep. 942 controversy, even if such question may require 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 Cases that cite this headnote enjoin to satisfy teacher's request to expunge his records. [10] Declaratory Judgment 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 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 (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 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– (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

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

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 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

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 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 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 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 Cases that cite this headnote [19] Declaratory Judgment

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 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 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

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

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.,

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

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

“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 (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

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

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

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 (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.

[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) 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 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 Cases that cite this headnote would presume that trial court had adequate

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 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

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 (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.

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).

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 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

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.

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

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

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 (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 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

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 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 (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

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

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 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 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 § comment. 26 Cases that cite this headnote 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 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 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 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 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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.

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

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 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 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

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.

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

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 (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

*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”).

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, 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

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 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 Cases that cite this headnote

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. * 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 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

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 (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

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.

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 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

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 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

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 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 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 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

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 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 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

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

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 (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 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

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

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.

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

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).

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 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 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 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 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 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 et seq. or moderate income and, coincidentally, as members of minority racial or ethnic groups, 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 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 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 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 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 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 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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 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 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. Cases that cite this headnote Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282—287, 50 L.Ed. 499.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 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 (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 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 (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 (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

© 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 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 (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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 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 (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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 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.

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

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.

[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 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;

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 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 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

[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

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 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.

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

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

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:

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

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,

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

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).

[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:

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 (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

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.

[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 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 (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 (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 (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.

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

Case-law data current through December 31, 2025. Source: CourtListener bulk data.