Wednesday, March 5, 2008

CPS Suits: Termination of parent-child relationship reversed

In the Interest of AS, DS, and LAS (Tex.App.- Houston [14th Dist.] Mar. 4, 2008)(Fowler) (DPFS initiated suit seeking termination of parental rights, reversal of judgment)
Opinion by Justice Fowler
Panel members:
Justices Leslie Brock Yates, Wanda Fowler and Eva Guzman
Full case style: In the Interest of A.S., D.S. and L.A.S
Appeal from 314th District Court of Harris County (Judge John Phillips)
Disposition: Reversed and rendered in part and remanded in part


This is an appeal from a judgment terminating appellants' parental rights to their minor children. In five issues each, appellants challenge the legal and factual sufficiency of the evidence underlying the findings in the termination order and the appointment of appellee Department of Family & Protective Services ("the Department") as sole managing conservator. We reverse and render in part, and reverse and remand in part.

Tuesday, March 4, 2008

Fellow Justices Judge Jeff Brown


Fourteenth Court of Appeals panel does not recuse itself from case, or request transfer to another court of appeals; affirms new Justice Brown's judgment entered as trial court judge of the 55th District Court. Judge Jeffrey Brown was promoted to the Fourteenth Court of Appeals at the end of 2007 by gubernatorial appointment and faces the voters this year.

Norra v. Harris County, Texas No. 14-05-01211-CV (Tex.App. - Houston [14th Dist.] Mar. 4, 2008)(Guzman) (civil penalty for environmental violations affirmed, failure to preserve legal challenge for appellate review)
Opinion by Justice Guzman
Before Justices Leslie Brock Yates, Wanda Fowler and Eva M. Guzman
Carol Ann Norra v. Harris County, Texas; Texas Commission on Environmental Quality; and Texas Department of Health
Trial court: 55th District Court (
Judge now Justice Jeff Brown)
Disposition: Civil Penalties Affirmed


This is an appeal from the trial court's award of civil penalties, injunctive relief and attorney's fees in a civil enforcement proceeding filed by the State of Texas and Harris County against the owner of two mobile home parks in Harris County. In two issues, appellant, Carol Ann Norra, argues that the civil penalties assessed against her for numerous and repeated violations of the State's public health laws are exemplary damages subject to Chapter 41 of the Texas Civil Practice & Remedies Code. She further argues that her United States constitutional right to due process was violated by the imposition of these penalties. She frames these arguments as legal sufficiency challenges to the evidence. But we conclude that these complaints are not challenges to the legal sufficiency of the evidence and are instead legal arguments that were not presented to the trial court. As such, she has failed to preserve error on these challenges, and we therefore affirm the judgment of the trial court.

DWOJ: Interlocutory appeal in forfeiture case dismissed


Finding no statutory authority for immediate appeal of order striking intervention, Court of appeals dismisses for want of jurisdiction.

Daniels v. State (Tex.App.- Houston [1st Dist.] Feb. 21, 2008)(Bland) (forfeiture, intervention, finality of order, interlocutory order, DWOJ)
Opinion by Justice Jane Nenninger Bland
Before Chief Justice Radack, Justices Jennings and Bland
Leiroi M. Daniels, Owner of the 2000 Mercedes Automobile VIN #WDBNG75J4YA39643 v. The State of Texas
Appeal from 157th District Court of Harris County (Hon. Randall Wilson)
Disposition: Attempted appeal dismissed for lack of appellate jurisdiction

MEMORANDUM OPINION

Appellant, Leiroi Daniels, appeals from an interlocutory order striking his petition in intervention. Specifically, Daniels contends that the trial court erred in striking his original answer as the registered owner of the vehicle in this case, and because the trial court struck his answer, he was denied his right to make an appearance in the forfeiture proceeding. Because the record before this court fails to establish that we have jurisdiction over the appeal, we dismiss the appeal.

Background

On October 30, 2006, the State seized the vehicle in this case, a Mercedes S500, because it had allegedly been used in several aggravated robberies prior to that date. In addition, at the time of the seizure, police officers found one kilogram of cocaine in the car. The car was registered to Angel Rodriguez and Olga Joffre, and it was in their possession at the time the police seized it. After officers seized the car, Daniels notified the Houston Police Department and the District Attorney’s office that he was the owner of the car. Daniels claims title to the car, based upon a contract between Rodriguez and Daniels that transferred ownership of the car to Daniels in exchange for legal representation.

On November 29, 2006, the State filed a notice of seizure and intended forfeiture, claiming that the vehicle was subject to forfeiture because it constituted contraband. The State listed only Rodriguez and Joffre as respondents. Daniels filed an answer, alleging that he is the owner of the vehicle and that he has a justiciable interest in the lawsuit. The State filed a Motion to Strike Daniels’ answer, alleging that Daniels did not perfect his title in the automobile until after the date of the seizure. After a hearing on the motion, the trial court struck Daniels’ answer.

Analysis

Daniels seeks to appeal the trial court’s order striking his original answer. Generally, appellate courts have jurisdiction to hear an appeal only if it is from a final judgment. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). A final judgment is one which disposes of all legal issues between all parties. Id.; Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985). The record reflects that the trial court has not yet entered a final judgment in the underlying matter, and no severance order appears in the record. Therefore, the order striking Daniels’ intervention is interlocutory.

An appellate court lacks jurisdiction to immediately review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments. Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000); Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998); Metromedia Long Distance, Inc. v. Hughes, 810 S.W.2d 494, 499 (Tex. App.—San Antonio 1991, writ denied) (order dismissing or striking petition in intervention may not be appealed by intervenor before rendition of final judgment, unless statute explicitly provides for appeal).

As no statute provides for interlocutory appeal of an order dismissing or striking a petition in intervention, Daniels may not appeal until the rendition of a final judgment between the original parties.

Conclusion

We dismiss the appeal for lack of jurisdiction.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Monday, March 3, 2008

Premises Liability: Summary judgment for store affirmed

Lofton v. Marmaxx Operating Corp. (Tex.app.- Houston [1st Dist.] Feb. 28, 2008)(Hanks) (premises liability suit)
Opinion by Justice George C. Hanks
Panel: Justices Nuchia, Hanks and Higley
Style: Debra Lofton v. Marmaxx Operating Corp., Individually and d/b/a T. J. Maxx
Trial court: 113th District Court of Harris County (Judge Patricia Hancock)
Disposition: Summary Judgment for defendant store affirmed

MEMORANDUM OPINION

In this trip and fall case, Debra Lofton appeals the trial court’s grant of Marmaxx Operating Corp. d/b/a T.J. Maxx’s (“T.J. Maxx”) summary judgment. In her sole issue on appeal, Lofton argues that the trial court erred in granting T.J. Maxx’s motion for summary judgment as there is sufficient evidence of a genuine issue of material fact on each element of her cause of action. We affirm.

Background

On May 4, 2004, Lofton shopped in the T.J. Maxx department store, purchased her items, and was walking out of the store when she tripped on the floor mat in front of the exit. Lofton broke her elbow.

Lofton brought a premises liability suit against T.J. Maxx, asserting that T.J. Maxx was negligent for (1) creating the dangerous condition, (2) maintaining the dangerous condition, (3) failing to correct and make safe the dangerous condition, and (4) failing to warn its customers of the dangerous condition, all of which resulted in her injuries. T.J. Maxx filed a no-evidence motion for summary judgment asserting that Lofton had no evidence that (1) T.J. Maxx had any actual knowledge of any defect, (2) T.J. Maxx had any constructive knowledge of any defect, (3) there was a defect, (4) any alleged defect posed an unreasonable risk of harm, (5) T.J. Maxx failed to exercise reasonable care to reduce or eliminate any alleged risk, and (6) T.J. Maxx’s alleged failure was the proximate cause of Lofton’s injuries. Lofton responded to the motion and attached her affidavit, the accident report, a recorded claims statement, T.J. Maxx’s responses to requests for production, and excerpts from the deposition of Leila Marie Baines, T.J. Maxx’s assistant manager. Baines testified that the mats are kept clean and are placed in the area “to make sure they are in the area just in case it rained.” The mats are mostly for people when they are entering the store. Baines also testified that she did not believe Lofton tripped on the mat. Lofton contended that T.J. Maxx created a fact question as to the location of the incident. She further contended that “notice is not an element of [her] claim because [her] claim is based on the actions of [T.J. Maxx] and its employees by creating the hazard.” The placement of the mat created a hazardous or unreasonably dangerous condition. Lofton’s response concluded by arguing that the following arguments prevent the granting of T.J. Maxx’s summary judgment:

(1) the subject mat was placed in an area of the store where invitees would not expect it to be;

(2) because the weather was sunny on the date of the incident, the mat should have been removed since there was no need for the stated purpose of the mat; and

(3) the condition of the mat was more likely to cause someone to trip and fall.
T.J. Maxx objected to Lofton’s summary judgment evidence. T.J. Maxx specifically complained of two statements in Lofton’s affidavit—“It was dangerous for TJ Maxx to have the mat in the exit area.” “The placement of the mat at the exit created an unreasonably dangerous condition.”—because the statements were self-serving, legally conclusory, factually conclusory, and not based on personal knowledge. T.J. Maxx further objected to Lofton’s reference to photographs, which were not attached to the affidavit.

The trial court sustained T.J. Maxx’s objections to Lofton’s summary judgment evidence and granted a take-nothing judgment. Lofton does not contest the ruling on the summary judgment evidence, but appeals the grant of summary judgment.

Standard of Review

Summary judgment is a question of law. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003). Thus, we review a trial court’s summary judgment decision de novo. Id. at 215. A party moving for no-evidence summary judgment must assert only that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. See id. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes, 124 S.W.3d at 172. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. As with a traditional summary judgment, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

If the trial court has granted summary judgment without specifying the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Premises Liability

It is undisputed that Lofton was T.J. Maxx’s invitee. As such, T.J. Maxx owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store, known or discoverable by T.J. Maxx. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). However, an owner-operator’s duty toward its invitee does not make the owner-operator an insurer of the invitee’s safety. Id. To recover damages in a slip-and-fall case, a plaintiff must prove:

(1) Actual or constructive knowledge of some condition on the premises by the owner-operator;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner-operator did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner-operator’s failure to use such care proximately caused the plaintiff’s injuries.
Gonzalez, 968 S.W.2d at 264; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

The owner-operator is considered to have constructive knowledge of any premises defects or other dangerous conditions that a reasonably careful inspection would reveal. Corbin, 648 S.W.2d at 295.

Because an invitee’s suit against a premises owner-operator is a simple negligence action, the standard of care required of the owner-occupier toward its invitees is the ordinary care that a reasonably prudent person would exercise under the same or similar circumstances. Id. at 295. The owner-operator’s liability to an invitee depends, not on whether a specific set of facts or a specific breach of duty is established, but, on whether the owner-operator acted reasonably in light of what it knew or should have known about the risks associated with the condition on the premises. Id.

The core of the duty depends on actual or constructive knowledge of an unreasonably dangerous condition. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).

Lofton argues that T.J. Maxx had constructive knowledge of the mat’s placement in front of the exit door because one of its employees had put the mat there. T.J. Maxx responds that “knowledge that it had placed a floor mat in its foyer is not knowledge that the floor mat presented a hazard.”

We agree.

Lofton presented no evidence that T.J. Maxx had received prior complaints or that the floor mat or its location created an unreasonably dangerous condition. Lofton’s affidavit created some evidence that she tripped on the mat in the T.J. Maxx store, but she offered no evidence that anyone had previously tripped on the mat, that the mat had any defects, that the type of mat was unusual, or that its particular construction and placement should have suggested to T.J. Maxx that it presented a prohibitive degree of danger. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754–55 (Tex. 1970). Accordingly, there was no evidence that the mat presented an unreasonable risk of harm.

We overrule Lofton’s sole issue.Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.
Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Mandamus must be sought against judge who signed order complained of; new judge to be asked to reconsider

In re Allianz Global Risk US (Tex.App.- Houston [1st Dist.] Feb. 29, 2008)(per curiam) (mandamus not appropriate against judge who did not sign the order)
Panel members: Justices Tim Taft, Sam Nuchia and Laura Higley
Style: In re Allianz Global Risk US, Allianz Life Insurance Company of North America, Allstate Insurance Company, Chubb Indemnity Insurance Company, Continental Casualty Company, Fireman's Fund Insurance Company, et al.
Appeal from 11th District Court of Harris County (Judge Mark Davidson)
Dispostion: Denied

Original Proceedings on Petitions for Writs of Mandamus

MEMORANDUM OPINION

The relators complain of a November 30, 2005, order signed by the Honorable Jack Hunter, former presiding judge of the 94th District Court of Nueces County. (1) Judge Hunter denied the relators' motions to dismiss the underlying consolidated case with prejudice and for special exceptions. Relators have not asked the successor judge, the Honorable Bobby Galvan, to reconsider Judge Hunter's order as is normally required by Texas Rule of Appellate Procedure 7.2(b). Instead, relators suggest the proper respondent is the Honorable Mark Davidson, judge of the 11th District Court of Harris County, because Judge Davidson has been assigned as the presiding judge of the pretrial court in which the case is now pending based on asbestos-related injury claims. (2) See Tex. R. Jud. Admin. 13.6(a).

Because mandamus does not lie against a trial judge who did not personally sign the order, we will not grant mandamus relief directed at a trial judge based on an order signed by another judge. See In re Alsenz, 152 S.W.3d 617, 623 (Tex. App.--Houston [1st Dist.] 2004, orig. proceeding). After we requested that the parties address the issue raised in Alsenz, relators asked Judge Davidson to reconsider Judge Hunter's order. On November 5, 2007, Judge Davidson took the position that he is prohibited by statute from ruling on the merits of relators' requested relief. See Tex. Civ. Prac. & Rem. Code Ann. § 90.010 (Vernon Supp. 2007). Relators have not amended their petitions to request mandamus relief specific to Judge Davidson's November 12, 2007 order denying them leave to file motions to set aside Judge Hunter's order denying their pleas to the jurisdiction and special exceptions. Instead, relators continue to request mandamus relief directing Judge Davidson to grant their motions to dismiss with prejudice the underlying consolidated case . Judge Davidson has never reached the merits of those motions.

We deny the petitions for writs of mandamus.

PER CURIAM

Panel consists of Justices Taft, Nuchia, and Higley.

1. Atkinson v. Union Carbide Corp., No. 05-04515-C (94th Dist. Ct., Nueces County, Tex. Nov. 20, 2005). The relators in case number 01-06-00165-CV are Allianz Global Risk US, Allianz Life Insurance Company of North America, Allstate Insurance Company, Chubb Indemnity Insurance Company, Continental Casualty Company, Fireman's Fund Insurance Company, Hartford Steam Boiler Inspection and Insurance Company, Hartford Steam Boiler Inspection and Insurance Company of Connecticut, Liberty Mutual Insurance Company, Maryland Casualty Company, St. Paul Fire and Marine Insurance Company, United States Fidelity and Guaranty Company, The Fidelity and Casualty Co. of New York, and Zurich American Insurance Company. The relators in case number 01-06-00166-CV are Marsh USA Inc. (Delaware) and Marsh USA Inc. (Texas). The real parties in interest in both cases are Filiberto Atkinson, J.C. Diggs, Jimmie Fleeman, Thomas King, and Emilio Mireles.

2. Atkinson v. Union Carbide Corp., No. 2004-03964 (11th Dist. Ct., Harris County, Tex.).

Sunday, March 2, 2008

DFPS Suits: Mother's low income a consideration in terminating her parental rights


Termination of parental rights as an alternative to income support policy?

In this termination case brought by CPS, the mother is considered too poor to keep her child (among other shortcomings), but not poor enough to justify waiver of court fees so she could pursue her appeal. In discussing the mother's ability to provide for her child, the court, in an opinion by Justice Evelyn Keyes, finds that the mother did not have enough income to support her child, but did not consider eligibility for earned income tax credit, public assistance and/or child support. The Court affirms the trial court's order terminating the mother's parental rights.

Hopkins v. DFPS No. 01-07-00313-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Keyes)(termination of parental rights cases , child welfare, poverty)

Opinion by Justice KeyesBefore Justices Taft, Keyes and AlcalaRobyn Rachelle Hopkins, Guadalupe Padilla v. Department Family & Protective Services

Appeal from 315th District Court of Harris County (Judge Michael H. Schneider Jr.)

Disposition: Order terminating parental rights affirmed

MEMORANDUM OPINION

After a bench trial, the trial court terminated the parent-child relationship between appellants, Robyn Rachelle Hopkins and Guadalupe Padilla, and their daughter, L.N.H. In two issues, Hopkins
Guadalupe Padilla filed a notice of appeal in the trial court, but he has not filed abrief. We dismiss Padilla’s appeal for want of prosecution under Tex. R. App. P.42.3(b). We consider the termination only in regard to Hopkins’s relationship withL.N.H.
argues that (1) the evidence was not sufficient to support the trial court’s termination of her parental rights and (2) the trial court abused its discretion in denying her affidavit of indigence.

We affirm.

Background

L.N.H. was born November 9, 2004. Prior to her birth, Hopkins had already had multiple referrals to the Department of Family and Protective Services (DFPS) regarding her parenting of her three older children. None of those children is now parented by Hopkins. Hopkins also has a prior criminal record, including convictions for driving while intoxicated, possession of a controlled substance, and assault.

DFPS removed L.N.H. from Hopkins’ care in January 2006, after Hopkins became intoxicated and pushed the stroller containing L.N.H. into a bush. In March 2006, Hopkins missed a court hearing in which DFPS reviewed a service plan that was intended to help Hopkins address the issues that led to her losing custody of L.N.H. The plan required Hopkins to complete parenting classes, to complete a substance abuse assessment and follow all recommendations, to complete a psychiatric evaluation and follow all recommendations, to participate in individual therapy, to attend all hearings and required meetings, and to maintain stable housing and employment for at least six months. In April 2006, DFPS made the necessary referrals to allow Hopkins to comply with her service plan.

Over the months that followed, Hopkins made attempts to comply with the service plan by attending parenting classes, AA meetings, and hearings and other meetings with DFPS. Hopkins eventually completed the required substance abuse assessment and psychiatric evaluation, but, at the time of the trial, she had not complied with all of the recommendations made by the substance abuse and psychiatric centers.

At trial, Hopkins acknowledged that she had made a lot of bad choices in the past and characterized her behavior as irresponsible. She testified that she had a much better support system now, including members of her church and AA groups. Hopkins gave other testimony that she suffered from depression and anxiety, although she suffered from them less now than she did in the past. She also testified that when she ran out of one of the prescribed medications, she decided without consulting her doctor that she would not get a refill because she did not feel that it was helping. She did not participate in any of the individual counseling required in her service plan or comply with the recommendations resulting from the psychiatric evaluation as required by the service plan.

Hopkins also testified about her relationship with L.N.H. She stated that she loved her daughter very much and was committed to providing a stable home for her. She testified about the nature of her visits with L.N.H., stating that she would go every other week to visit her daughter and that they would play, watch cartoons, or do other tasks together such as cooking and laundry. Hopkins testified that she brought gifts for L.N.H. when she came to visit and that L.N.H. was being supported by money from an investment that belonged to her. However, later testimony showed that the money being used for L.N.H.’s care came from an investment made by Hopkins’ grandfather and left with Hopkins’ mother, Carla Roberts, as a trustee. The grandfather intended for the money to be used for Hopkins’ children, so Roberts used it to pay for childcare for Hopkins’ middle two boys and for a nanny for L.N.H.

Hopkins introduced pay stubs that showed that her monthly income was approximately $1,400. Her expenses were $440 per month for rent, approximately $150 per month for her vehicle, plus other living expenses. Hopkins testified that if she regained custody of L.N.H., she could obtain state certified childcare for $530 a month and that L.N.H.’s insurance coverage would cost her approximately $96 a month. There was also evidence that Hopkins moved several times over the course of the year and had not procured stable housing.

Hopkins’ mother, Carla Roberts, also testified at trial. L.N.H. had been placed with Roberts by DFPS after L.N.H. was removed from Hopkins’ care. Roberts testified that it appeared that some changes had happened in Hopkins’ life, and she believed that Hopkins was trying, but she was very skeptical that the changes would last because she had seen Hopkins in similar situations before. Roberts testified that she did not think that Hopkins had really done anything differently this time compared to previous occassions when Hopkins had tried to get sober and to turn her life around. Roberts testified that she believed Hopkins loved L.N.H. and had been a good mother when L.N.H. was an infant, but that Hopkins was too unstable to provide a permanent, safe home for L.N.H. Roberts favored placing L.N.H. permanently with some of her relatives in Tennessee because Roberts’ age prevented her from caring for L.N.H. permanently.

Jeff Edwards, L.N.H.’s guardian ad litem, and Kimberly Morgan, the DFPS case worker, also testified at trial. They both testified that they believed termination of the parent-child relationship between Hopkins and L.N.H. was in L.N.H.’s best interest and that they believed L.N.H. would do well with the relatives in Tennessee. Morgan testified that those relatives had completed the required home study and had had a promising visit with L.N.H. at some point before trial. Morgan also testified that Hopkins had not completed the service plan created for her by DFPS. She testified that Hopkins made only a “minimal effort [at complying with her service plan] ten months into the case.” Morgan also testified that Hopkins had missed more than one hearing and had failed to attend the court-ordered mediation.

In its final judgment, the trial court made the following findings:

The Court finds by clear and convincing evidence that termination of the parent-child relationship between [Hopkins] and the child, [L.N.H.], the subject of this suit[,] is in the child’s best interest.

Further, the Court finds by clear and convincing evidence that [Hopkins] has: (1) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child, pursuant to § 161.001(1)(E) of the Texas Family Code; (2) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261, Texas Family Code[, pursuant to § 161.001(1)(I) of the Texas Family Code]; [and] (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(1)(O) of the Texas Family Code[.]

Hopkins filed a notice of appeal and an affidavit of indigence. The District Clerk challenged the affidavit, and a hearing was conducted in which the trial court heard more evidence of Hopkins’ financial situation. The trial court then denied Hopkins’ affidavit of indigence.

Termination of Parent-child Relationship

In her first issue, Hopkins argues that the evidence was insufficient to support the trial court’s order finding that termination of the parent-child relationship between Hopkins and L.N.H. was justified under § 161.001(1)(E), (I), (O) and was in L.N.H.’s best interest.

Standard of Review

Section 161.001 of the Texas Family Code authorizes involuntary termination of a parent-child relationship if the court finds by clear and convincing evidence that the parent has committed at least one of the acts or omissions listed in subsection (1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2007). A trial court only needs to make one finding of parental misconduct under section 161.001(1) of the Family Code. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Supreme Court has set out some factors that courts can consider when determining the best interest of the child, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This is not an exhaustive list, and a court need not have evidence on every element listed in order to make a valid finding as to the child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because termination findings must be based upon clear and convincing evidence, the Texas Supreme Court has held that, in a legal sufficiency review, “a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. In viewing the evidence in the light most favorable to the finding, we assume that the finder of fact resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id.

In conducting a factual sufficiency review, we consider the entire record, including evidence both supporting and contradicting the finding in determining whether a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which the State bore the burden of proof. Cervantes-Peterson v. Texas Dep’t of Family and Protective Servs., 221 S.W.3d 244, 250 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266.

Analysis

We begin by noting that Hopkins did not challenge the trial court’s finding that she failed to comply with the provisions of the court-order service plan that specifically established the actions necessary for her to obtain the return of L.N.H. pursuant to section 161.001(1)(O) of the Texas Family Code. Because the trial court’s finding under section 161.001(1)(O), together with the trial court’s finding that termination was in L.N.H.’s best interest, is sufficient to support the termination, we do not address Hopkins’ arguments regarding the sufficiency of the trial court’s findings that she also violated sections 161.001(1)(E) and (I). See In re A.V., 113 S.W.3d at 362.

Regarding L.N.H.’s best interest, DFPS presented abundant evidence that Hopkins had not addressed the issues that caused DFPS to remove L.N.H. from her care and that L.N.H. would be better off in a more stable environment. DFPS presented Roberts’ testimony that Hopkins, her daughter, had been sober on and off for the past 20 years or more and that she did not believe Hopkins had truly changed. Hopkins’ own testimony demonstrated that she had not been able to maintain stable housing and that her monthly expenses would exceed her monthly income if she became responsible for paying the cost of L.N.H.’s childcare and other necessities. These facts demonstrated that Hopkins was not in a position to provide for the current or future needs of L.N.H., either physically or emotionally. See Holley, 544 S.W.2d at 371–72.

DFPS also presented evidence that Hopkins had not addressed the substance abuse and psychiatric issues that originally caused Hopkins to lose custody of L.N.H. Roberts’ testimony supported DFPS’s evidence showing Hopkins’ failure to participate in the court-ordered programs designed to help her with those issues. Hopkins’ own testimony failed to show that she recognized the true source of the problems because she stated that she had made bad choices, but she did not admit that she was under the influence of drugs and alcohol when she pushed L.N.H.’s stroller into a bush, in spite of her citation for public intoxication. Hopkins’ testimony also showed that she decided on her own to discontinue doctor-prescribed psychiatric medications and was not seeking further treatment. These facts show that Hopkins would pose physical and emotional danger to L.N.H., both now and in the future, that she could not provide the stability required by a preschool-aged child, and that she did not take advantage of the programs already available to help her. See Holley, 544 S.W.2d at 371–72. The evidence presented by DFPS was legally sufficient to allow the trial court to form a firm belief or conviction that termination was in L.N.H.’s best interest. See In re J.F.C., 96 S.W.3d at 266

The evidence was also factually sufficient. Hopkins testified that she visited L.N.H. every other weekend at Roberts’ home and that they spent quality time together doing household chores, cooking, playing, and watching cartoons. Hopkins also testified that she brought L.N.H. toys and clothing when she would come to visit. Hopkins also presented evidence that she had maintained a steady job, that she was attending AA and other substance abuse programs as required by her service plan, and that she had changed her lifestyle to include people, like her fellow church and AA members, who would support her.

There was, however, countervailing evidence that Hopkins had only made a partial effort to comply with the service plan and that Hopkins blamed DFPS case workers for her failure to comply. It is the province of the trial court to judge the credibility of the witnesses in this case. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (holding that fact finder is sole judge of credibility of witnesses and weight to be given their testimony). When viewed in light of the entire record, including evidence both supporting and contradicting the trial court’s findings, the evidence is factually sufficient to demonstrate that the trial court reasonably formed a firm conviction or belief about the truth of its findings. See Cervantes-Peterson, 221 S.W.3d at 250.

We overrule Hopkins’ first issue.

Affidavit of Indigence

In her second issue, Hopkins argues that the trial court abused its discretion in denying her affidavit of indigence.

Standard of Review

Texas Rule of Civil Procedure 20.1 provides that a party who cannot pay the costs of appeal may proceed without advanced payment if “(1) the party files an affidavit of indigence in compliance with [Rule 20.1]; (2) the claim of indigence is not contested or, if contested, the contest is not sustained by written order; and (3) the party timely files a notice of appeal.” Tex. R. App. P. 20.1. The affidavit must identify the party filing the affidavit, state what amount of costs the party can pay, contain complete information about the nature and amount of any income, contain information about the party’s spouse’s income and whether that is available, and contain complete information about real and personal property, cash, and other assets held by the party. Id. The affidavit must also identify the party’s dependents, debts, monthly expenses, and ability to obtain a loan for court costs, and it must state whether an attorney has agreed to provide free legal services and pay or advance court costs. Id.

To establish indigence, an appellant must show by a preponderance of the evidence that she would be unable to pay the costs of appeal if she “really wanted to and [made] a good faith effort [to] do so.” Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc). We review the trial court’s decision for an abuse of discretion. Id. A court abuses its discretion when it acts without reference to any guiding rules or principles or its ruling is so arbitrary and unreasonable as to be clearly wrong. Id.

Analysis

Hopkins filed her affidavit on April 9, 2006, and the District Clerk filed a contest to the affidavit the next day. Hopkins testified at a hearing that her current monthly income was approximately $1,400, and that she could make more by working overtime. Her current monthly expenses include $403 for rent, $240 a month for food, $125 a month for clothing plus expenses for electricity, telephone, auto insurance, and gasoline, which take up her full monthly income. However, Hopkins’ affidavit stated that she could pay $300 immediately, and at the hearing she stated that she could make other payments on a bi-weekly basis totaling approximately $300 a month. She also testified that she could work more overtime or use the $125 budgeted for clothing to pay her court expenses if necessary.

Hopkins’ ability to pay $300 dollars toward court costs immediately and to make further payments on a bi-weekly basis is sufficient to show that she could pay the court costs if she really wanted to and made a good faith effort to do so. See Arevalo, 983 S.W.2d at 804. Therefore, the trial court did not abuse its discretion in denying Hopkins’s affidavit of indigence. See id.

We overrule Hopkins’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Judge Ray ordered to set aside void reinstatement order

First Court of Appeals, in panel opinion by Justice Keyes, grants mandamus relief and orders trial court to vacate reinstatement order and default judgment entered after trial court had lost plenary power.

In re Shoreline Partners LLC (Tex.App.- Houston [1st Dist.] Fab. 28. 2008)(Keyes)(expiration of plenary jurisdiction, reinstatement order void, default judgment vacated)
Appellate panel members: Justices Tim Taft, Evelyn Keyes and Elsa Alcala
Full style of case: In re Shoreline Partners, LLC, Prenits B. Tomlinson, Jr., Individually and Thomas E. Hardisty, Individually
Trial court: 165th District Court of Harris County (Judge Elizabeth Ray)
Disposition: Mandamus granted (conditionally, as is customary)

MEMORANDUM OPINION

By petition for writ of mandamus, relators, Shoreline Partners, L.L.C., Prentis B. Tomlinson, Jr., and Thomas E. Hardisty (collectively, "Shoreline") challenge the trial court's February 27, 2006 orders reinstating the suit of real party in interest Petrogulf Corporation ("Petrogulf") and granting default judgment to Petrogulf. (1)

Background

In 2004, Petrogulf sued Shoreline for repayment of monies owed for the exploration and development of oil and gas prospects. On August 26, 2005, the trial court dismissed the case for want of prosecution. On September 9, 2005, Petrogulf filed a motion to reinstate and for default judgment. Several months later, on February 27, 2006, the trial court signed the order to reinstate and for default judgment. Shoreline requests a writ of mandamus to require the trial court to vacate its orders reinstating Petrogulf's case and granting default judgment because the court's plenary power had expired when the trial court signed the order granting the reinstatement. In a letter filed with this court, Petrogulf states that it does not oppose the petition for writ of mandamus and accordingly declines to file a response. Standard of Review

Mandamus is an extraordinary remedy available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.--Houston [1st Dist.] 2003, orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). With respect to a trial court's determination of legal principles, "a trial court has no 'discretion' in determining what the law is or applying the law to facts." In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). Thus, a trial court's failure to analyze or apply the law correctly will constitute an abuse of discretion and may result in a reversal by extraordinary writ. Walker, 827 S.W.2d at 840. Mandamus will issue when a trial court erroneously reinstates a case after the expiration of the court's plenary jurisdiction. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994).

Discussion

The date a trial court signs an order on dismissal for want of prosecution determines the beginning of the period for the court's plenary power to decide a motion to reinstate a case dismissed for want of prosecution. Tex. R. Civ. P. 306(a)(1). A trial court has plenary power to reinstate a case within 30 days after the order of dismissal is signed. Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.--Houston [1st Dist.] 1995, no writ). A motion to reinstate extends the trial court's plenary power until 30 days after such timely filed motions are overruled, either by a written, signed order or by operation of law. Tex. R. Civ. P. 165a(3); South Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.--Houston [14th Dist.] 1995, orig. proceeding). If a motion to reinstate is not decided by signed written order within 75 days after the judgment is signed, the motion will be deemed overruled by operation of law. Tex. R. Civ. P. 165a(3). An order of reinstatement must be in writing and signed during the trial court's plenary power and jurisdiction. Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989).

The trial court dismissed the instant case for want of prosecution on August 26, 2005. The 75-day period for the court to grant the motion to reinstate by signed order expired November 9, 2005. Accordingly, Petrogulf's motion to reinstate was overruled by operation of law on November 9. The court's plenary power extended for an additional 30 days, until December 9, 2005. Tex. R. Civ. P. 165a(3). However, the district court did not sign the order granting the motion to reinstate until February 27, 2006, 185 days after signing the order to dismiss for want of prosecution. Because the trial court's jurisdiction terminated on December 9, 2005, the orders it signed reinstating the case and granting default judgment on February 27, 2006, are void.

Conclusion

We hold that the trial court abused its discretion by reinstating the case and granting default judgment after termination of its plenary jurisdiction. We conditionally grant the writ of mandamus and order the trial court to vacate its February 27, 2006 "Order on Motion to Reinstate for Default Judgment" and February 27, 2006 Order for "Default Judgment." We are confident that the trial court will promptly comply, and our writ will issue only if it does not.

Evelyn V. Keyes,
Justice

Panel consists of Justices Taft, Keyes, and Alcala.

1. The underlying suit is Petrogulf Corporation v. Shoreline Partners, L.L.C. Prentice B. Tomlinson, Jr., Individually, and Thomas E. Hardisty, Individually, cause no. 2004-73726 in the 165th District Court of Harris County, Texas, the Hon. Elizabeth Ray presiding.

Justice Keyes Dissents on Sanctions Issue

Scott Bader, Inc. v. Sandstone Products, Inc. No. 01-05-00940-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Higley) (products liability, imposition of sanctions by trial court)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley
Panel members: Justices Sam Nuchia, Evelyn Keyes and Lara Carter Higley
Case style: Scott Bader, Inc., Amy C. Wright, Kern & Wooley, L.L.P., and National Pigments & Chemicals, Inc. vs. Sandstone Products, Inc.
Trial court: 127th District Court of Harris County (Judge Sharolyn Wood)
Dissenting Opinion by Justice Keyes in Scott Bader, Inc. v. Sandstone Products, Inc. (sanctions)

[GIST OF] OPINION BY JUSTICE HIGLEY

These two appeals arise from a product liability suit brought by appellee, Sandstone Products, Inc. (“Sandstone”), against appellants, Scott Bader, Inc. (“Scott Bader”) and National Pigments & Chemicals, Inc. In appellate cause number 01–05–00940–CV, Scott Bader and its trial counsel, Amy C. Wright, and Wright’s law firm, Kern & Wooley, L.L.P., appeal sanctions assessed against them. The trial court awarded sanctions against Scott Bader for abusing the discovery process and against Wright and her firm for violating an in limine order during trial. Scott Bader contends that it did not abuse the discovery process and that the sanctions were not otherwise “just.” Wright and her firm challenge the sanctions award against them by asserting that the sanctions were excessive.

In appellate cause number 01–06–00593–CV, Scott Bader and National Pigments challenge the trial court’s judgment rendered against them in favor of Sandstone. Presenting four issues and numerous sub-issues, Scott Bader contends that (1) the testimony of Sandstone’s causation expert was unreliable and constituted no evidence of causation, (2) the evidence was legally insufficient to support the damages awarded by the jury, (3) the trial court erred when it included a “binding instruction” in the jury charge that Scott Bader had breached its contract and breached its warranty with Sandstone, and (4) alternatively, the trial court’s judgment should be modified because it awarded prejudgment interest on future damages.

In appellate cause number 01–05–00940–CV, we affirm, in part, and reverse and remand, in part. In appellate cause number 01–06–00593–CV, we reverse the judgment and remand.

DISSENT BY JUSTICE KEYES:

I respectfully dissent. I would hold that the sanctions assessed against Scott Bader were well within the discretion of the trial court and that there is no requirement that the trial court explain its rejection of lesser sanctions when, as here, the trial court’s order detailed the offending party’s abuses and directly tailored sanctions specifically authorized by Rule 215 of the Texas Rules of Civil Procedure to cure the prejudice to the innocent party caused by the abuse. I would affirm the judgment of the trial court.

The Test for Just Sanctions

The Texas Supreme Court has set out a two-part test for determining whether sanctions are just and therefore within the discretion of the trial court. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). That test requires that there be “a direct relationship . . . between the offensive conduct and the sanction imposed,” i.e., that the sanction be “directed against the abuse and toward remedying the prejudice caused by the innocent party” and that the sanctions not be “excessive.” Id. at 917. In regard to the second prong, the court is required to consider the availability of less stringent sanctions and whether such lesser sanctions would fully provide compliance. Id. These standards set the bounds within which the trial court is to exercise its discretion to assess sanctions under Texas Rule of Civil Procedure 215 governing discovery abuse. Id. That test has been subsequently reaffirmed in Spohn Hospital v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (citing TransAmerican, 811 S.W.2d at 917) and Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004).

The Trial Court’s Sanctions Order

The trial court’s carefully articulated sanctions order in this case is set out in the majority opinion. That court made explicit findings that Scott Bader had “knowingly and in flagrant bad faith engaged in discovery abuse,” including (1) “withholding critical responsive documents until the production of more than 8,000 pages of documents on March 1, 2005, after the depositions in the lawsuit had already taken place”; (2) “producing documents in a manner calculated to conceal information (through removing the key first page of a document and marking out information in other documents), with conflicting and inadequate explanations for the same that lack credibility ”; (3) “presenting deposition witnesses with such critical documents and information concealed or not produced”; (4) “failing to name Terry Strickland as a witness with knowledge of relevant facts, or to produce responsive documents, related to Strickland’s role as director of Defendant SCOTT BADER, his role as the “main lead” in Defendant SCOTT BADER’s transition from using Co-Defendant Goodrich[’s] services to those of Co-Defendant Para-Chem, his direct supervision over specific issues regarding the formulation and testing of Defendant’s product, and his direct involvement in specific issues related to customer reports of problems”; (5) “failing to produce as a corporate representative a witness with knowledge as requested”; and (6) “filing two no-evidence motions for summary judgment on December 10, 2004 and February 23, 2005, respectively, when Defendant SCOTT BADER and its counsel knew that the production of documents and witnesses was deficient.”

The trial court found that Scott Bader’s “actions were calculated to conceal evidence that would indicate . . . that [its] product did not meet its stated specifications; and . . . that the stated specifications were modified.” It further found that Scott Bader’s actions “indicate a pattern or history of bad faith discovery abuse, demonstrate callous disregard for the responsibilities of discovery under the rules, and significantly interfere with the integrity and core judicial functions of this Court and its rulings.” For all of these reasons, the trial court found Scott Bader had prejudiced Sandstone’s ability to present its case, and it concluded that a sanctions order “directly related to the offensive conduct . . . is appropriate and necessary because a lesser sanction will not promote compliance.”

The trial court sanctioned this behavior by requiring that the jury be instructed

“You are to presume (1) that the product that was shipped between mid-1999 and 2001 did not meet the specifications Scott Bader provided to Sandstone, and (2) that the specifications that Scott Bader provided to Sandstone for the product during mid-1999 and 2001 were modified.”
The trial court ordered that Scott Bader and its indemnitee, NPCI, were not permitted to rebut the factual presumptions set forth above, and it struck affirmative defenses addressed to the issue. The court also ruled that Scott Bader could not use Terry Strickland as a witness at trial and that Scott Bader “may not use the deposition testimony of any witness from a deposition unless SCOTT BADER first demonstrates to the Court that such deposition was taken after full production of documents.” The trial court then identified eight witnesses who were deposed before Scott Bader’s “production of critical documents on March 1, 2005.” Finally, the trial court ordered that Scott Bader pay $68,000 in sanctions for attorney’s fees and expenses incurred by Sandstone attributable to Scott Bader’s discovery abuse. The case then proceeded to a full trial in which Scott Bader was allowed to defend itself, with the foregoing limitations, and Sandstone was required to prove its case, including proving that its damages resulted from Scott Bader’s actions.

Additional misconduct by Sandstone’s counsel during trial resulted in the declaration of a mistrial and the necessity of beginning again. The sanctions order at issue in this appeal was issued during the second trial, after a hearing outside the presence of the jury, to clarify what was to be taken as established due to Scott Bader’s misconduct and what Sandstone was required to prove. Scott Bader was permitted to “bring forward evidence that does not rely on any stricken deposition to establish causation for failures other than an affirmative defense of Plaintiff’s conduct.” The trial court made clear, however, that Scott Bader’s affirmative defenses and its general denial were stricken to the extent of precluding litigation of issues rebutting the established issues and that Scott Bader was “not entitled to raise quality control issues about Sandstone to negate evidence that the product was out of specification before reaching Sandstone.”

When the case was presented to the jury in the retrial, the jury was instructed that (1) “the specifications that Scott Bader provided to Sandstone for the product during mid-1999 and 2001 were modified”; (2) “[t]he product that was shipped between mid-1999 and 2001 did not meet the specifications Scott Bader provided to Sandstone”; (3) “[s]uch modification of the specifications is a breach of the sales contract between Scott Bader and Sandstone”; and (4) “[s]uch modification is a breach of the warranty from Scott Bader to Sandstone.” The first jury question following the binding instructions asked the jury, “What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Sandstone Products, Inc. for its damages, if any, that resulted from modification of specifications and failure to meet specifications as instructed?” The jury was instructed to consider as elements of damages solely “[t]he reasonable and necessary cost of the repair or replacement of the failed roof coatings”; Sandstone’s past lost profits; litigation costs associated with Sandstone’s liability to its customers; application fees seeking Dade County, Florida approval for coating material; and costs of property and material testing for roof coating.
Sanctions Available Under Rule 215

Among the sanctions expressly made available to the trial court under Rule 215 of the Texas Rules of Civil Procedure, governing discovery abuse, are

(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;

(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;

(3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(4) an order refusing to allow the disobedient party to support or oppose designated claims or defense, or prohibiting him from introducing designated matters in evidence;

(5) an order striking out pleadings or parts thereof, or . . . dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party;

Tex. R. Civ. P. 215.2(b). The rule further provides:

(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Id.

Application of the Test of Abuse of Discretion in Assessing Sanctions

Here, the trial court carefully articulated in its oral and written sanctions orders—issued after notice and hearing—the justification of each of its narrowly tailored sanctions. Each sanction was chosen from one expressly permitted by Rule 215.2 to address exactly the behavior the trial court found to have been committed by Scott Bader. There is no evidence in the record that Scott Bader did not do exactly what the trial court found it did do, and the majority acknowledges as much. There is no question that Scott Bader’s actions constituted severe discovery abuse designed to keep Sandstone from presenting its case. The trial court first entered sanctions directed specifically at prohibiting Scott Bader from profiting from its concealment of documents and of a key witness in the first trial. Nevertheless, Scott Bader continued its misconduct during trial, and a mistrial was declared, so that everyone had to start over. During the second trial, after a hearing outside the presence of the jury, the court issued the written sanctions order at issue on appeal, clarifying its specifically targeted sanctions against Scott Bader, and it instructed the jury accordingly. At no point did the trial court enter “death penalty” sanctions that would have prevented Scott Bader from presenting any defense at all. Sandstone was still obliged to prove its case and its damages.

I would hold that the trial court fully satisfied the first prong of the test for the just impositions of sanctions articulated by the supreme court in TransAmerican, namely, the requirement that there be “a direct nexus among the conduct, the offender, and the sanction imposed.” See Spohn Hosp., 104 S.W.3d at 882.

The majority, however, does not even discuss the trial court’s satisfaction of the first prong of the TransAmerican test. Instead, it turns directly to the second prong, which “mandates that the trial court consider less stringent measures before settling on severe sanctions.” Id. at 883. Ignoring the trial court’s targeting of sanctions to address ongoing misconduct and its explanation in the sanctions order for each of the sanctions imposed, the majority finds “conclusory” the trial court’s conclusion that it had “considered the possibility of all lesser available options” but “[u]nder these circumstances, . . . no lesser sanctions are available to address and deter Defendant SCOTT BADER’s conduct while preserving SANDSTONE’s rights.” Bader, Wright, Kern & Wooley, L.LP. and National Pigments & Chemicals, Inc. v. Sandstone Products, Inc., No. 01-05-00940-CV, slip op. at 22 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet. h.). The majority holds that the trial court abused its discretion because this conclusion was “unsupported,” and, in a footnote, it offers its own suggestions for sanctions the trial court might have considered. Bader, slip op. at 22.

In my view, the majority misconstrues the controlling language it quotes from Cire, 134 S.W.3d at 842, and it directly contravenes the holding in Cire, which is controlling authority. I would find Cire to be on all fours with this case with the sole exception that the trial court in Cire levied death penalty sanctions for flagrant discovery abuse, while the trial court in this case did not.

In Cire, the plaintiff refused to produce audiotapes critical to the proof of her case against the defendant and then deliberately destroyed them after being thrice ordered to produce them. See id. at 841. The supreme court observed,

Because the audiotapes sought by Cire would have either proved or disproved Cummings’s claims, her destruction of them justifies a presumption they would have done the latter. On this record, it was within the trial court’s discretion to determine that Cummings deliberately destroyed dispositive evidence; thus, death penalty sanctions are warranted in this exceptional case. As we explained in TransAmerican, discovery sanctions can be used to adjudicate the merits of a party’s claims when a party’s hindrance of the discovery process justifies a presumption that its claims lack merit. Id. at 841 (citing TransAmerican, 811 S.W.2d at 918). In sum, the supreme court in Cire approved death penalty sanctions for behavior virtually identical to that of Scott Bader in this case. Yet in this case, unlike Cire, no death penalty sanctions were imposed.

The appellate court’s error in reversing the trial court’s sanctions order in Cire, as described by the supreme court, was exactly the same as the error made by the majority in this case. The supreme court observed in Cire that the court of appeals had held that “the trial court abused its discretion when it failed to consider alternative, lesser sanctions and when it did not explain why lesser sanctions would not suffice.” Id. The supreme court continued, “The court of appeals also said that the trial court could have and should have considered other, lesser sanctions before it imposed death penalty sanctions,” but “[the court of appeals] suggested a less stringent sanction: a spoliation instruction to the jury directing it to assume the missing audiotapes would have been unfavorable to Cummings” and it concluded that the trial court erred by refusing to consider lesser sanctions. Id. The supreme court granted the petition for review in Cire specifically “to consider the issue of death penalty sanctions and to examine whether a trial court’s sanctions order must recite why every conceivable sanction would be ineffective in securing compliance and curing prejudice before striking pleadings.” Id. at 838.

In reversing the court of appeals, the supreme court held that, in an exceptional case, like that in Cire, even death penalty sanctions may be issued without imposing lesser sanctions so long as the trial court “considers” lesser sanctions. Id. The court explained:

Under this standard, the trial court need not test the effectiveness of each available lesser sanction by actually imposing the lesser sanction on the party before issuing the death penalty; rather, the trial court must analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed. Id. at 840.

The trial court in this case did exactly what Cire and TransAmerican require. It tailored sanctions directly to the abuses perpetuated by Scott Bader and it explained why these sanctions were necessary to cure the specific prejudice to Sandstone caused by each of Scott Bader’s abuse. Nevertheless, like the court of appeals in Cire, the majority in this case would require the trial court’s sanctions order to “recite why every conceivable sanction would be ineffective in securing compliance and curing prejudice” before it would allow the court to the issue targeted sanctions that would impede Scott Bader’s presentation of its case on the issues on which it abused discovery. See id. at 838. Because I believe the majority opinion directly contravenes controlling authority, interferes with the jurisdiction of the trial court, and has the effect of rewarding severe discovery abuse with a retrial without the hindrance of sanctions that were fully within the discretion of the trial court to impose, I must dissent.

I would affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Nuchia, Keyes, and Higley.
Justice Keyes, dissenting.

City of Houston's appeal in firefighter suit fails

Houston Court of Appeals upholds fine against City for failure to promptly implement decision favorable to fire fighter in compensation grievance. City's claim of sovereign immunity rejected in opinion written by Justice Hanks.



City of Houston v. Hildebrandt No. 01-06-00936-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Hanks) (firefighter law suits, UDJA, declaratory judgment, statutory penalty, construction of statute, authority of hearing examiner)
Opinion by Justice Hanks
Panel composition: Justices Sam Nuchia, George Hanks and Laura C. Higley
Case style: City of Houston vs. Alan Hildebrandt
Appeal from 165th District Court of Harris County (
Judge Elizabeth Ray)
Dispostion: Judgment for firefighter affirmed

OPINION BY JUSTICE GEORGE HANKS

The City of Houston (“the City”) appeals the trial court’s judgment denying its request for declaratory judgment and awarding Alan Hildebrandt $24,000 in statutory penalties. On appeal, the City presents three issues, arguing that the trial court improperly: (1) awarded statutory penalties to Hildebrandt because there is no evidence to support the award, (2) denied its request for declaratory judgment, and (3) granted Hildebrandt’s request for declaratory judgment. We affirm.

Background

Following surgery, Alan Hildebrandt, a fire fighter with the Houston Fire Department, began using the sick leave that he had accumulated over his 30 years working in a Fire Department suppression unit. After being on sick leave for 90 consecutive days, Hildebrandt was transferred from his suppression unit to a position with a five-day work schedule.

Pursuant to Fire Department policy, after a member has been on sick or injury leave for 90 days,he is transferred to a position with a five-day work schedule.

The parties agree that this transfer caused Hildebrandt to utilize his sick leave faster than when he was a member of the suppression unit.

Hildebrandt filed a step I grievance, See Tex. Local Gov’t Code Ann. § 143.128 (Vernon 2008) (describing the procedures a firefighter must follow to file a step I grievance and the subsequent obligations of a municipality) requesting that he be allowed to use his sick leave on the same schedule as it was accrued. After his step I grievance was denied, Hildebrandt filed a step II grievance, See Tex. Local Gov’t Code Ann. § 143.129 (Vernon 2008) (describing how a fire fightercontinues the grievance procedure if he finds the proposed solution from his step I grievanceunacceptable and the municipality’s burden once a step II grievance is properly filed) which was also denied. He then submitted a written request to appeal his step II grievance to an independent hearing examiner. See Tex. Local Gov’t Code Ann. § 143.129 (d) (explaining that, if the proposed solutionfollowing a step II grievance is unacceptable, a fire fighter may request an independent hearingexaminer pursuant to section 143.057 or continue to a step III grievance).

After a hearing, the hearing examiner ordered the City to restore Hildebrandt’s sick leave level to the amount it would have been had he remained on a suppression unit.

The hearing examiner’s award noted that “it is left to the parties to work out the exact amount tobe restored to Hildebrandt’s account.”

The City appealed the hearing examiner’s award to a district court, asking for a declaratory judgment that the City is not required to implement the hearing examiner’s award. Hildebrandt brought a counter claim, asserting that he was owed statutory penalties that the City incurred by intentionally failing to implement the hearing examiner’s decision in a timely manner. See Tex. Local Gov’t Code Ann. § 143.134(h) (Vernon 2008) (award must be implementedwithin 10 days).

During opening statements in the trial court, the City clarified that it was claiming that the hearing examiner acted without or exceeded his jurisdiction in entering his award. The trial court denied the City’s declaratory judgment action and awarded Hildebrandt $24,000 on his counter claim. The City now appeals.

Declaratory Judgment

In its second issue, the City argues that the trial court erred in denying its motion for declaratory judgment “because the Fire Chief is statutorily entitled to assign members and to make policy relating to absences from work.”

Hildebrandt asserts that the City actually challenges whether the hearing examiner ignored the FireChief’s right to transfer members of the Fire Department. Hildebrandt contends that such anargument is foreclosed, because the City can only appeal a hearing examiner’s award on “groundsthat the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order wasprocured by fraud, collusion, or other unlawful means.” Tex. Local Gov’t Code Ann. §143.057(j) (Vernon 2008); see City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006); City ofPasadena v. Smith, __ S.W.3d __, 2006 WL 2640410, at *3–4 (Tex. App.—Houston [1st Dist.] Sept.4, 2006, pet. denied, rehearing on pet. filed, Jan. 23, 2008). Hildebrandt contends that the City’sappeal fails because it does not concern the hearing examiner’s jurisdiction.
In Smith, we held that, because it was not arguing that the hearing examiner exceeded hisstatutorily conferred jurisdiction, but rather that he misapplied the law, the City was not affordedthe protection of section 143.057(j). 2006 WL 2640410 at *3–4. Here, however, the crux of theCity’s challenge is that, because “the Fire Chief has the unchallengeable right to assign members,the hearing examiner did not have jurisdiction to enter his award.” Therefore, we address whetherthe trial court erred in denying the City’s motion seeking a declaration that the hearing examiner hadno jurisdiction to enter his award.
Standard of Review

We review declaratory judgments under the same standards as other judgments and decrees. Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (Vernon 1997). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.] 1995, no writ). The City’s motion for declaratory judgment required the trial court to interpret the City’s rights and those of the hearing examiner under the Local Government Code. Interpreting statutes is a legal matter, subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). A trial court has no discretion when evaluating a question of law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The overriding goal of statutory interpretation is to determine the Legislature’s intent. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the Legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 2005); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002). It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. In re Bell, 91 S.W.3d 784, 790 (Tex. 2002). In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001).

Analysis

The City directs us to section 143.1095, which states that the head of a fire department may transfer a fire fighter for numerous reasons, including for “any other specified reason the department head considers necessary.” Tex. Local Gov’t Code Ann. § 143.1095(a)(6) (Vernon 2008). Thus, the City argues that the trial court erred in denying its motion for declaratory judgment, because the hearing examiner lacked jurisdiction to enter an award which usurped the Fire Chief’s statutorily prescribed authority to manage the Fire Department.

After his step II grievance was denied, Hildebrandt decided to appeal to an independent hearing examiner pursuant to the provisions of section 143.057. See Tex. Local Gov’t Code Ann. § 143.129. Under subsection 143.057(f), the hearing examiner has the same duties and powers as the Fire Fighters’ Civil Service Commission. Tex. Local Gov’t Code Ann. § 143.057(f); see also City of Houston v. Jackson, 192 S.W.3d 764, 768 (Tex. 2006). This includes the authority to determine whether Chapter 143 and its rules are being obeyed. Tex. Local Gov’t Code Ann. § 143.009 (Vernon 2008). Therefore, hearing examiners are given the power to apply, interpret, and enforce the rules that are contained in the chapter that permits the Fire Chief to transfer fire fighters. See Lindsey v. Fireman’s and Policeman’s Civil Serv. Comm’n, 980 S.W.2d 233, 236 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

Here, the hearing examiner interpreted section 143.045 and ordered an award based upon his interpretation; therefore, he acted within the jurisdiction afforded him by the Local Government Code. We hold that the trial court did not err in denying the City’s request for declaratory judgment.

We overrule the City’s second issue.

Sovereign Immunity

In its third issue, the City argues that the trial court improperly granted Hildebrandt’s suit for statutory penalties because the claim was barred by sovereign immunity.

Additionally, the City contends that the trial court erred by allowing Hildebrandt to avoid sovereignimmunity by using a declaratory action to claim monetary damages against it. However, the finaljudgment shows that the trial court did not grant Hildebrandt declaratory relief, but, rather, found thathe was entitled to judgment on his counter claim for statutory penalties. Therefore, a declaratoryaction was not used to circumvent the City’s sovereign immunity.

Specifically, the City asserts that Chapter 143 includes no enabling clause allowing for judicial review of Hildebrandt’s claim for statutory penalties.

Standard of Review

As with the City’s second issue, we review interpretation of the Local Government Code de novo. See Bragg, 71 S.W.3d at 734. Additionally, the Texas Supreme Court has consistently held that penal statutes should be strictly construed. See, e.g., Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004). Statutes waiving sovereign immunity and statutes waiving governmental immunity are similarly construed. See, e.g., Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2007).

Analysis

Hildebrandt responds to the City’s argument by asserting that subsection 143.134(h) clearly and unambiguously allows for a penalty to be pursued against the City. Subsection 143.134(h) provides for a statutory penalty as follows:

If the decision of the commission under Section 143.131 or the decision of a hearing examiner under Section 143.129 that has become final is favorable to a fire fighter, the department head shall implement the relief granted to the fire fighter not later than the 10th day after the date on which the decision was issued. If the department head intentionally fails to implement the relief within the 10-day period, the municipality shall pay the fire fighter $1,000 for each day after the 10-day period that the decision is not yet implemented.
Tex. Local Gov’t Code Ann. § 143.134(h).

In determining whether a statute affords a clear and unambiguous waiver of immunity absent express language to that effect, one interpreting guideline is that a statute must waive immunity “beyond a doubt,” such as “when the provision in question would be meaningless unless immunity were waived.” See Wichita Falls State Hosp, 106 S.W.3d at 697.

Here, the mandatory penalty in subsection 143.134(h) would be meaningless unless the municipality’s immunity were waived. Therefore, because subsection 143.134(h) mandates that a municipality pay a penalty for noncompliance with a hearing examiner’s decision after 10 days, there is a clear and unambiguous waiver of the municipality’s immunity. We also note that the Texas Supreme Court has recently recognized that subsection 143.134(h)applies where a municipality fails to comply with an independent hearing examiner’s decision. Jackson, 192 S.W.3d at 772.

We hold that sovereign immunity did not bar the trial court from determining whether Hildebrandt was owed statutory penalties under subsection 143.134(h).

We overrule the City’s third issue.

Legal Sufficiency

In its first issue, the City argues that the trial court erred in awarding statutory penalties to Hildebrandt because the evidence is legally insufficient to support the trial court’s finding that the Fire Chief intentionally failed to implement the hearing examiner’s award.

Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal sufficiency of the evidence used to support them just as we would review a jury’s findings. Catalina v. Blasdel, 881 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 challenged, a trial court’s findings of fact are not conclusive if, as in the present case, there is a complete reporter’s record. In re K.R.P., 80 S.W.3d at 673. When a party who does not have the burden of proof at trial challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

Analysis

Under subsection 143.134(h), “[i]f the department head intentionally fails to implement the relief” awarded to the fire fighter, the municipality must pay the fire fighter statutory penalties. Tex. Local Gov’t Code Ann. § 143.134(h). The City notes that “department head” is defined in the Local Government Code as “the chief or head of a fire or police department or that person’s equivalent, regardless of the name or title used.” Tex. Local Gov’t Code Ann. § 143.003 (Vernon 2008). Therefore, the City argues that, because there is no evidence that the Fire Chief knew of the award, let alone intentionally failed to implement it, the trial court’s finding is legally insufficient.

We rejected the identical argument in City of Houston v. Jackson. 135 S.W.3d 891, 898 (Tex. App.—Houston [1st Dist.] 2004), overruled on other grounds, 192 S.W.3d 764 (Tex. 2006). “Intent is generally a question of fact,” which “may be proven by circumstantial evidence.” Id. Therefore, in conducting our sufficiency review, we look to see whether there is more than a scintilla of evidence, actual or circumstantial, that the Fire Chief intentionally failed to implement the award within 10 days.

Here, Hildebrandt sent a letter to the City on February 12, informing it that implementation of the award was five days past due, and that subsection 143.134(h) provides for a statutory penalty for noncompliance after 10 days. In the letter, Hildebrandt directed that the Fire Chief be provided a copy of the letter to ensure timely implementation of the award. Nevertheless, the evidence shows that the City did not implement the award until March 3, 34 days after the decision was issued. Therefore, we hold that there was legally sufficient evidence that the Fire Chief intentionally failed to implement the hearing examiner’s award within 10 days. See Haggar Clothing, 164 S.W.3d at 388.

We overrule the City’s first issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.
Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

HCAD Property Tax Protest Suit Dismissed

Houston Court of Appeals, in opinion by Chief Justice Radack, holds that previous owner had no standing to challenge appraisal and to bring judicial review suit. New owner had failed to challenge appraised value of the property, and was precluded from joining judicial review suit for failure to exhaust the remedies provided by the Property Tax Code. First Court of Appeal affirms Harris County district court's dismissal of the tax protest suit for want of jurisdiction.

Koll Bren Fund VI LP v. HCAD, No. 01-07-00321-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008) (Radack) (ad valorem property tax protest, tax appeal, judicial review, standing doctrine, exhaustion of administrative remedies)
Opinion by Chief Justice Sherry Radack
Panel composition: Chief Justice Sherry Radack, Justices Terry Jennings and Jane Bland
Full style of case: Koll Bren Fund VI LP and Hartman 3100 Weslayan Acquisitions, LP v. Harris County Appraisal District and The Appraisal Review Board of Harris County Appraisal DistrictAppeal from 113th District Court of Harris County (Judge Hon. Patricia Hancock)
Disposition: Affirm trial court's judgment of dismissal without prejudice

MEMORANDUM OPINION

Appellants, Koll Bren Fund VI LP (Koll Bren) and Hartman 3100 Weslayan Acquisition, LP (Hartman), appeal dismissal of their suit for judicial review of resolution of an ad valorem tax-valuation protest for the 2005 tax year. The trial court dismissed the suit, without prejudice, in response to a plea to the jurisdiction by appellee, Harris County Appraisal District (HCAD). (1) HCAD argued that the trial lacked subject-matter jurisdiction because the original plaintiff, Koll Bren, lacked standing to seek judicial review, having sold the property before January 1, 2005. (2) Koll Bren and Hartman bring a single, multi-pronged issue contending that the trial court erred by sustaining HCAD's jurisdictional challenge (1) because newly enacted section 42.21(e) of the Tax Code allows a petition for judicial review to be amended, (3) (2) because section 42.21(a) is not jurisdictional, (4) and (3) because Koll Bren filed its suit "as the property owners and the property owners," which necessarily encompassed the true owner, Hartman. We conclude that neither Koll Bren nor Hartman had standing in the trial court and affirm. (5)

Facts and Procedural History

The property at issue is located at 3100 Weslayan Street, Houston, Texas 77027. It is undisputed that Koll Bren sold the property to Hartman by special warranty deed dated August 20, 2004. On January 1, 2005, therefore, Koll Bren was no longer the owner of the property; instead, Hartman was the owner, by virtue of the August 20, 2004 transfer. Koll Bren nonetheless filed a notice of protest as owner of the property for the year 2005. In the protest, Koll Bren claimed that it owned the property in tax year 2005, and that the ad valorem tax valuation of the property for that tax year was excessive. (6) Though authorized to pursue a protest as the new owner of the property, pursuant to section 41.412 of the Property Tax Code, Hartman did not pursue that remedy. See Tex. Tax Code Ann. § 41.412 (Vernon 2001).
After conducting a hearing on the protest, the Appraisal Review Board of HCAD (Board) issued an order, dated August 26, 2005, stating the Board's determination that initial ad valorem valuation of the property at $5,961,630 should be reduced to $5,420,000 for the tax year 2005. It is undisputed that the Board issued its order to Koll Bren, and that Hartman did not appear in the protest hearing before the Board.

On October 13, 2005, Koll Bren timely challenged the Board's determination by filing an original petition for judicial review with the trial court. See id. § 42.21(a) (Vernon 2001). Koll Bren continued to assert that it owned the property. Over 15 months later, on December 27, 2006, Koll Bren amended its pleadings to include Hartman as a plaintiff in the suit for judicial review. Shortly thereafter, HCAD filed a plea to the jurisdiction contending that the trial court lacked jurisdiction because Koll Bren did not own the property on January 1, 2005 and therefore had no standing to seek judicial review. HCAD provided the trial court with a copy of the deed by which Koll Bren conveyed the property to Hartman on August 20, 2004. The trial court sustained HCAD's plea to the jurisdiction and dismissed the cause without prejudice. (7)
Controlling Statutes & Standard of Review

A. Suit for Judicial Review

Chapters 31 through 43 of the Tax Code contain the Property Tax Code. See Tex. Tax Code Ann. §§ 31.01-43.04 (Vernon 2001 & Supp. 2007). Subchapter C of Chapter 41 of the Code governs a "taxpayer protest" of an ad valorem tax assessment by an appraisal-review board. See id. §§ 41.41-.47 (Vernon 2001 & Supp. 2007). Chapter 42 of the Code then permits judicial review of an appraisal-review board's resolution of the protest. See id. §§ 42.01-.29 (Vernon 2001 & Supp. 2007).

When the owner of a property has exercised its right to protest under Chapter 41, section 42.01 of the Property Tax Code establishes a "right of appeal" that entitles the owner to challenge that resolution. Appeal is by petition for review to the district court for the county, and review is by trial de novo. Id. §§ 42.21(a) (petition for review), 42.23(a) (scope of review) (Vernon 2001 & Supp. 2007).

B. Plea to Trial Court's Subject-Matter Jurisdiction--Standing

Standing is a component of subject-matter jurisdiction that cannot be waived; therefore, a party's lack of standing deprives a court of authority to decide a pending case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Subject-matter jurisdiction is essential to a court's power to decide a case and may be challenged by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2001). A trial court determines a plea to the jurisdiction by construing the pleadings in the plaintiff's favor, but the court may also examine and consider any evidence that pertains to the jurisdictional inquiry. Id. at 555; see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004) (describing trial court procedure for evidentiary hearing regarding jurisdiction). We review a trial court's ruling on a plea to the jurisdiction de novo; therefore, we construe the pleadings in the plaintiff's favor and examine the pleader's intent. See Miranda, 133 S.W.3d at 225.

Standing to Seek Judicial Review

Koll Bren's and Hartman's standing to bring the suit for judicial review underscores their issue on appeal and its sub-issues. We address their standing as a preliminary consideration because it pertains to subject-matter jurisdiction. E.g., Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995); Tourneau Houston, Inc., 24 S.W.3d at 909.

Standing demands a real controversy between the parties that will be determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996); Garcia, 893 S.W.2d at 518. Without a breach of a legal right that belongs to the plaintiff, no cause of action can accrue to the plaintiff's benefit. See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976).

Rights and responsibilities under the Property Tax Code derive from ownership of the subject property. See, e.g., Tex. Tax Code Ann. § 32.07(a) (Vernon Supp. 2007) (stating that, "[P]roperty taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed. . . . .") (emphasis added); Tex. Tax Code Ann. § 41.41(a)(1) (Vernon 2001) (recognizing right of property owner to determination of the appraised value of property, among other rights); Id. § 41.412(a) (recognizing right of protest in favor of party who acquires ownership of property after January 1 of, and before deadline for filing protest in, given tax year). (8)

Sections 42.01 through 42.43 of chapter 42 of the Code govern suits for judicial review, as sought by Koll Bren in this case. See id. §§ 42.01-.43 (Vernon 2001 & Supp. 2007). These statutes demonstrate that the right to judicial review derives from ownership of the subject property. Section 42.21(a) of the Code states the procedural requirements that a party who seeks to appeal by the suit for judicial review must meet, as follows:

A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had. Failure to timely file a petition for review bars any appeal under this chapter. Id. § 42.21(a) (Vernon 2001) (emphasis added). Section 42.21(a) does not state who may be an appealing "party," except by description as one "who appeals as provided by this chapter." See id. But "this chapter" is necessarily chapter 42, which governs judicial review. See id. §§ 42.01-.43. And section 42.01, entitled "Right of Appeal by Property Owner," specifies that "a property owner is entitled to appeal . . . an order of the appraisal review board determining . . . a protest by the property owner" as provided by section 41.41 et seq. of the Property Tax Code. Id. § 42.01(1)(A) (emphasis added). (9) The requirement of ownership of the property applies, therefore, to both the right to protest an assessment to a local appraisal board and the right to appeal the board's resolution of the protest to the district court. A property owner must, therefore, protest a determination by the appraisal review board in order to be entitled to appeal by petition for judicial review to the district court. See id.; accord, id. § 42.09 (providing that remedies under Property Tax Code are exclusive).

To qualify as a "party" entitled to seek judicial review of an appraisal-review board determination, Koll Bren and Hartman had to either (1) own the property, (2) be the properly designated agent of the owner, or (3) be the lessee of the property under the circumstances stated in section 41.413. A person or entity who does not meet one of these criteria, but nonetheless seeks judicial review of an appraisal-review board determination, has neither a "legal right" to enforce, see Nobles, 533 S.W.2d at 927, nor any "real controversy" at issue, see Nootsie, Ltd., 925 S.W.2d at 661, and, therefore, no standing under the Code. See Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909 (addressing question of standing of owner or agent to protest ad valorem taxation and resulting lack of standing to seek judicial review).

A. Koll Bren's Standing to Seek Judicial Review

Despite claiming ownership of the property in its protest to the Board's valuation, Koll Bren conceded in the trial court that it did not own the property on January 1, 2005, having transferred it to Hartman the previous August 20 by special warranty deed. Having never claimed rights under the Property Tax Code as either lessee or agent, the only possible basis on which Koll Bren could assert standing under the Code is section 42.01(1)(A), which governs the right of a property owner to appeal to the district court by petition for review. Tex. Tax Code Ann. § 42.01(1)(A). But Koll Bren did not own the property on January 1, 2005 and thus had no legal right to appeal under section 42.01(1)(A) and, therefore, no standing to seek judicial review in the district court. See id.; Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909. Koll Bren's lack of standing as owner thus precludes Koll Bren's "party" status under section 42.21(a). See Tex. Tax Code Ann. § 42.21(a).

B. Hartman's Standing to Seek Judicial Review

Having acquired the property on August 20, 2004, Hartman acquired standing, as "new owner," to protest the valuation by the appraisal-review board, as provided by chapter 41. See id. § 41.412(a). But Hartman did not pursue its chapter 41 right of protest; instead, Koll Bren pursued that remedy, despite lack of ownership. Thus, the Board did not ever determine "a protest" by the actual "property owner," specifically, Hartman, on which Hartman could premise any "right of appeal" as "property owner." See id. § 42.01(a).

The provisions of the Property Tax Code further provide that its remedies for adjudication of property-tax protests are "exclusive," except as provided by that statute. Id. § 42.09. Accordingly, failure to comply with those procedures deprives the reviewing court of jurisdiction. See Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006); Matagorda County Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex. 2005); Reed v. Prince, 194 S.W.3d 107-08 (Tex. App.--Texarkana 2006, pet. denied); see also Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 637 (Tex. App.--Houston [14th Dist.] 2006, pet. denied) (deferring to Cameron's holding, with reservations).

Because Hartman did not pursue its chapter 41 right to protest the valuation before the Board, the Board never determined "a protest" by Hartman as "the property owner." See Tex. Tax Code Ann. § 42.01(a). (10) Accordingly, Hartman had neither a "legal right" to enforce, see Nobles, 533 S.W.2d at 927, nor any "real controversy" for the trial court to determine, see Nootsie, Ltd., 925 S.W.2d at 661, and, therefore, like Koll Bren, no standing under the Code. See Nobles, 533 S.W.2d at 927; Nootsie, Ltd., 925 S.W.2d at 661; Tourneau Houston, Inc., 24 S.W.3d at 909.

Having concluded that neither Koll Bren nor Hartman had standing to challenge the Board's determination of Koll Bren's protest by seeking judicial review in the trial court, we turn to Koll-Bren's and Hartman's sub-issues.

Timeliness of Amendment

In their first issue, Koll Bren and Hartman contend that the trial court erred by granting HCAD's plea to the jurisdiction because section 42.21(e) authorized Koll Bren to amend its petition to "correct or change the name of a party." In their third issue, they argue that Koll Bren's petition for judicial review encompasses Hartman because Koll Bren sought review "as the property owners and the property owners."

Section 42.21(a) requires a property owner must file its petition for review of an appraisal-review board determination "within 45 days after the party has received notice that a final order has been entered from which an appeal may be had." Tex. Tax Code Ann. § 42.21(a). Subsection (e)(1) of this statute further provides that a "timely filed petition" may "subsequently be amended" to "correct or change the name of a party." Id. § 42.21(e)(1). Koll Bren and Hartman contend that because Koll Bren timely filed its petition for review, subsection (e) authorized Koll Ben to amend the petition to include the actual owner, Hartman. We disagree.

Koll Bren and Hartman emphasize that section 42.21(e) imposes no strict time limits, in contrast to the 45-day limit of section 42.21(a). Yet, the Supreme Court of Texas recently affirmed that appraisal-review determinations become final if not appealed to the district court within 45 days. Cameron Appraisal Dist., 194 S.W.3d at 502 (citing Tex. Tax Code Ann. § 42.21(a)). Koll Bren sought judicial review within the 45-day time limit of 42.21(a) in this case, but Koll Bren had no standing and was thus not a proper "party" to bring the suit for judicial review under Property Code sections 42.01(1)(A) and 42.21(a). No proper party having appealed to the district court within 45 days, the trial court never acquired subject-matter jurisdiction, and the Board's valuation became final when those 45 days expired. See Cameron Appraisal Dist., 194 S.W.3d at 502; Taufiq ex rel. Patrick O'Connor and Assocs., Inc. v. Harris County Appraisal Dist., 6 S.W.3d 652, 654 (Tex. App.- Houston [14th Dist.] 1999, no pet.); see also M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 711 (Tex. 2001) (holding, in context of class action, that lack of standing of individual plaintiff when suit was filed deprived court of subject-matter jurisdiction of individual's claims and claims of class members).

The contention that section 42.21(e) authorized Koll Bren to amend its petition to add the true owner, Hartman, is further flawed because the contention assumes that Hartman was a proper party. As noted above, though a proper party, as new owner, to protest the valuation determined by the appraisal-review board, see Tex. Tax Code Ann. § 41.412, Hartman did not exercise that right. Having not exercised its right as owner, Hartman was not a proper party to seek the chapter 42 remedy of petitioning the district court for judicial review. See id. §§ 42.01(a), 42.21(1)(A), 42.09.

Koll Bren's and Hartman's contention, in their third issue, that Koll-Bren's filing the petition "as the property owners and the property owners" likewise assumes that Hartman was a proper party to seek judicial review, which it was not.
We overrule the first and third sub-issues.

Jurisdictional Challenge

In their second issue, Koll Bren and Hartman contend that the trial court erred by dismissing their petition for review because section 42.21 of the Tax Code is not jurisdictional. (11) The thrust of these arguments is to bring Hartman within the jurisdiction of the district court, despite not attempting to join Hartman until over a year after the 45-day deadline of section 42.21(a) of the Property Code. See Cameron Appraisal Dist., 194 S.W.3d at 502 ("Administrative decisions are final if not appealed to the district court within 45 days."). (12) In addition, Koll Bren and Hartman seek to circumvent the requirement that Hartman must have first filed a protest in order to challenge the results of the protest in the district court. See Tex. Tax Code Ann. §§ 42.01(a), 42.21(1)(A), 42.09.

In challenging these statutory requirements, Koll Bren and Hartman rely on Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000), in which the supreme court stated that "all claims are presumed to fall within the jurisdiction of the district court unless the Legislature or Congress has provided that they must be heard elsewhere." Kazi overruled Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926), which recognized the "general rule," that statutory provisions are "mandatory and exclusive, and must be complied with in all respects" when a "cause of action and remedy for its enforcement are not derived from the common law but from the statute." Kazi, 12 S.W.3d at 75.

Before Kazi, the supreme court upheld, as mandatory and jurisdictional, the statutory prerequisites for a petition for judicial review of a resolution of a valuation protest to the district court. See Appraisal Review Bd. v. Int'l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986). Koll Bren and Hartman emphasize, however, that Church of Foursquare Gospel relied, in turn, on the reasoning of Mingus, which Kazi overruled. See Church of Foursquare Gospel, 719 S.W.2d at 160 (citing Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex. 1980). Koll Bren and Hartman also rely on a footnote in Matagorda County Appraisal Dist., in which the supreme court stated, "[W]e have yet to address whether [the] holding [in Church of Foursquare Gospel] survives" the holding in Kazi that compliance with statutory requirements for asserting wrongful death claims was "case determinative," but not a jurisdictional question. Matagorda County
Appraisal Dist., 194 S.W.3d at 331 n.5. (13)

The supreme court decided Matagorda County Appraisal District in 2005 and decided Cameron Appraisal District in 2006, five and six years after Kazi, respectively. Both cases affirm that the exhaustion of remedies provisions of section 42.09 of the Property Tax Code are mandatory and jurisdictional. See Cameron Appraisal Dist., 194 S.W.3d at 501-02 (holding that, "Because exhaustion of administrative remedies was mandatory, we reverse.") (quoting Matagorda County Appraisal Dist. 165 S.W.3d at 331); Matagorda County Appraisal Dist., 165 S.W.3d at 331 (recognizing as "true [that] a taxpayer's failure to pursue an appraisal review board proceeding deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes.") (dicta).

Koll Bren and Hartman acknowledge these statements, but contend that they do not apply. More specifically, they argue that section 42.09 of the Property Code does not apply--and that section 42.01 is not jurisdictional in this case--because "there is no question in this case that the administrative review process was exhausted" by Koll Bren. Despite having invoked the administrative process by filing a protest before the Board, it is undisputed, and Koll Bren concedes, that it did not own the property, though it claimed ownership, both before the board and the district court. Because Koll Bren did not own the property, it had no standing to seek judicial review, which deprived the trial court of jurisdiction. We decline to invoke Kazi policy concerns in order to premise the standing of Hartman on an entity that lacks standing as a matter of law. Koll Bren and Hartman have failed to demonstrate that section 42.21(a) is not jurisdictional.

More importantly, as explained above, Hartman also has no standing as matter of law because it did not file a protest with the Board and thus failed to exhaust the administrative procedures required to invoke the trial court's jurisdiction to address the petition for review. See Tex. Tax Code Ann. § 42.09. As the supreme court reiterated just recently, in Cameron Appraisal District, "[W]e have repeatedly held that a taxpayer's failure to pursue an appraisal[-]review board proceeding deprives the courts of jurisdiction to review most matters relating to ad valorem taxes." 194 S.W.3d at 502 (citing Tex. Tax Code Ann. § 42.09; Matagorda County Appraisal Dist., 165 S.W.3d at 331, among other cases).

Given the supreme court's having unequivocally enforced section 42.09 as mandatory and jurisdictional, and Hartman's failure to exhaust its remedies by filing a protest to the board, though authorized to do so by section 41.412, we hold that Hartman's failure to pursue its remedies also barred the trial court's subject-matter jurisdiction to review determination of the protest filed by Koll Bren in this case, and, therefore, that Koll Bren's and Hartman's reliance on Kazi is further misplaced. See Tex. Tax Code Ann. § 42.09; Cameron Appraisal Dist., 194 S.W.3d at 501; Matagorda County Appraisal Dist., 165 S.W.3d at 331; see also Reed, 194 S.W.2d at 107-08 (applying exhaustion-of-remedies principles); Houston Indep. Sch. Dist., 217 S.W.3d at 637 (deferring to Cameron precedent).

We overrule the second issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1. Koll Bren's and Hartman's live pleadings and their notice of appeal identify both HCAD and the Appraisal Review Board of HCAD (Board) as party defendants. The record on appeal does not show, however, that the Board ever appeared in the trial court, and HCAD asserts that its Board was never served and did not appear. We note at the outset that an appraisal-review board is no longer a necessary party to a suit for judicial review filed by a property owner under the circumstances presented here. See Tex. Tax Code Ann. § 42.21(b) (Vernon 2001); cf., Poly-Am., Inc. v. Dallas County Appraisal Dist., 704 S.W.2d 936, 937-38 (Tex. App.--Waco 1986, no writ) (construing former section 42.21(b), which required joinder of appraisal-review board in suit for judicial review). Because the Board was not a necessary party, and because the record does not affirmatively demonstrate that the Board was ever served or appeared, we hold that HCAD is the only appellee properly before this Court. We further hold that the trial court's judgment of dismissal is final despite lack of disposition of appellants' claims against the Board. See generally In re Sheppard 193 S.W.3d 181, 187 (Tex. App.--Houston [1st Dist.] 2006) (orig. proceeding) (holding that judgment that expressly disposed of served defendants, but did not dispose of named, but unserved, defendants, was final for purposes of appeal) (citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)).
2. See Tex. Tax Code Ann. § 42.01 (Vernon 2001).
3. Tex. Tax Code Ann. § 42.21(e) (Vernon 2001).
4. See Tex. Tax Code Ann. § 42.21(a) (Vernon 2001).
5. Appellate courts have jurisdiction to consider appeals of interlocutory orders, provided a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2007) (authorizing courts of appeal to review interlocutory order that grants or denies plea to jurisdiction). Our jurisdiction over this appeal, however, derives not from section 51.014(a)(8), but from section 51.012 of the Remedies Code, which governs ordinary, traditional appeals from final judgments, see Tex. Civ. Prac. & Rem.Code Ann. § 51.012 (Vernon 1997), because the trial court rendered a final judgment when it dismissed Koll Bren's and Hartman's suit for judicial review.
6. Koll Bren filed the protest through "an authorized tax agent" identified as O'Connor & Associates.
7. After the trial court granted HCAD's plea to the jurisdiction, Koll Bren and Hartman filed a motion for rehearing or, alternatively, for new trial, by which they sought to introduce evidence that Hartman attempted to identify itself as the owner of the property after January 1, 2005, and that the Board held the hearing that resulted in the final order in Hartman's name. The trial court sustained HCAD's objections to Koll Bren's and Hartman's evidence and denied their motion. Koll Bren's and Hartman's issues on appeal do not challenge these rulings by the trial court.
8. The Tax Code envisions and provides for circumstances, not applicable here, in which the owner of the property designates a lessee or other person to act as the agent of the owner in exercising the rights and responsibilities of the owner. See Tex. Tax Code Ann. § 1.111 (Vernon 2001); see also id. § 41.413(b) (Vernon 2001) (authorizing lessee of real property who is contractually obliged to reimburse property owner for property taxes to protest appraised value of property if owner does not protest).
9. The right of appeal of a person leasing the property is governed by Tex. Tax Code Ann. § 42.015.
10. Like Koll Bren, Hartman has never asserted rights as lessee or agent.
11. Reading the third issue broadly and in accordance with the supporting arguments, we construe the challenge as encompassing the entirety of chapter 42 of the Property Tax Code, which governs judicial review.
12. In support of their jurisdictional challenge, Koll Bren and Hartman also contend that the trial court strayed from the pleadings in determining jurisdiction by considering evidence of ownership of the property. We reject this contention, given that the ownership facts in this case are undisputed. Moreover, Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) confirms that trial courts may properly consider evidence pertinent to jurisdictional inquiry.
13. As the supreme court noted, the question whether both owner and lessee can pursue chapter 41 protest was not a jurisdictional issue in Matagorda County Appraisal Dist. v. Coastal Liquids Partners, Inc., 194 S.W.3d 501, 331 (Tex. 2005).