Thursday, December 8, 2011

Certificate of merit filed in suit against registered surveyor was adequate - no dismissal

   
Court of appeals holds that trial court's denial of  land surveyer's motion to dismiss for plaintiffs' alleged failure to satisfy the certificate-of-merits requirement in lawsuit against a licensed or registered professional seeking damages occasioned by the professonal's failure to perform the services properly. Certificate of merit was sufficiently specific. Plaintiff's expert was not disqualified from submitting the affidavit as a third-party fact or expert witness. 

Joseph G. Gartrell, Jr., vs. Ernest Joseph Wren and Beverly Sue Wren, No. 01-11-00586-CV (Tex.App.- Houston [1st Dist.] Dec. 8, 2011, no pet. h.)


MEMORANDUM OPINION

Appellant Joseph G. Gartrell, Jr., a registered professional land surveyor, brings this statutory interlocutory appeal. He complains that the trial court should have granted his motion to dismiss. The alleged ground for dismissal was that when appellees Ernest Joseph Wren and Beverly Sue Wren sued Gartrell for errors contained in surveys prepared by him, they failed to fully comply with the statute requiring a contemporaneously filed certificate of merit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001–.003 (West 2011). We find no error in the denial of Gartrell’s motion, and accordingly we affirm.



Background



Gartrell performed two surveys on the Wrens’ residential property in 2000 and 2001. According to Gartrell, the Wrens sued him in 2006, but they dismissed that lawsuit without prejudice, only to refile the suit again in 2010. The Wrens’ 2006 petition is not part of the record for this appeal, but the 2010 petition alleged negligence and gross negligence related to Gartrell’s preparation of the surveys. The Wrens alleged that Gartrell



was negligent and fell below the standard of care for surveyors in that he falsely described the two surveys he prepared for [them] to contain acreage that was not part of the subject property; that incorrectly showed on the latter survey prepared by James W. Gartrell, Jr. the location of the house on the subject property; and that included easements and/or “easements not shown” that did not exist on the subject property.



The Wrens attached a certificate of merit to their 2010 petition—an affidavit from Christopher Trusky, a registered professional land surveyor. In it, Trusky stated that he had examined the two surveys prepared by Gartrell. He further attested:



4. I have walked the subject property and have prepared a survey of my own on the subject property;



5. I find that the two surveys of Mr. Gartrell, Jr. are incorrect and note the following:



a. The two surveys incorrectly show the acreage of the subject property;



b. The second survey, which was prepared on or about October l, 2001, incorrectly shows the location of the house located on the subject property;



c. The two surveys incorrectly state that there are pipeline easements and/or “easements not shown” that do not exist on the subject property or that physical evidence does not support.



6. It is my opinion that Mr. Gartrell, Jr. failed to use proper care in connection with the two surveys described above and that this failure and breach of the standard of care required of Mr. Gartrell, Jr. was the proximate cause of loss by Joseph and Beverly Wren.



7. I have read this affidavit, and every statement contained in it is true and correct and is within my personal knowledge.



Gartrell generally denied the allegations, pleaded the affirmative defense of limitations, and moved to dismiss under Chapter 150 of the Civil Practice and Remedies Code. He objected that the certificate of merit was untimely because no such certificate had been filed in 2006 with the previous petition. The motion to dismiss also alleged that the certificate of merit was substantively insufficient for four reasons: (1) inadequate specificity as to the alleged error concerning “acreage of the subject property”; (2) inadequate specificity as to the alleged error concerning “location of the house”; (3) an equivocal reference to easements on the survey; and (4) failure to address the applicable standard of care. Gartrell also objected that the certificate of merit did not satisfy the statute because Trusky was originally “employed” by the Wrens in connection with the sale of their property, and therefore he was “not a disinterested ‘third party’ within the meaning and intent of Chapter 150.”



The trial court rejected Gartrell’s arguments and denied the motion to dismiss. On appeal, Gartrell reurges the same arguments he presented to the trial court, which we summarize as: (1) because the Wrens did not file a certificate of merit in the earlier lawsuit, their current lawsuit should be dismissed; (2) the certificate of merit was insufficiently specific as to the area of the real property, the location of the house, and the description of easements; (3) it also lacked specificity because it did not state a standard of care; and (4) Trusky was not an appropriate third party affiant.



Standards of Review



We review a trial court’s ruling on a motion to dismiss for failure to file a certificate of merit under an abuse of discretion standard. Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Id. We cannot say that a trial court has abused its discretion merely because this Court would decide a discretionary matter differently in a similar circumstance, and we may not substitute our own judgment for that of the trial court. Id. However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Id. (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).



We review questions of statutory construction de novo. Id. (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In construing statutes, our primary goal is to determine and give effect to the legislature’s intent, and we begin with the plain language of the statute and apply its common meaning. Id. When the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless that construction would lead to an absurd result. Id. (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)).



Analysis



The original petition giving rise to this appeal was filed on August 31, 2010. Accordingly, the current version of Chapter 150 of the Civil Practice and Remedies Code applies. Section 150.002 requires that a plaintiff suing for damages arising from the provision of professional services by a licensed or registered professional must file a certificate of merit “with the complaint.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). The certificate of merit is an affidavit of a third-party licensed professional who is competent to testify and holds the same professional license or registration as the defendant, and who is knowledgeable in the area of practice of the defendant. Id. § 150.002(a)(1)–(3). To satisfy the requirement of a certificate of merit, the affiant must offer testimony based on the person’s knowledge, skill, experience, education, training, and practice. Id. § 150.002(a)(3). In addition,



The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.



Id. § 150.002(b). Failure to file a certificate of merit in accordance with the statute shall result in dismissal, which may be with prejudice. See id. § 150.002(e).



I. Effect of prior lawsuit



Gartrell argues that the Wrens first raised their claims in a prior lawsuit filed years earlier. He asserts that they filed no certificate of merit before voluntarily filing a nonsuit of that action. At the hearing on his motion to dismiss the 2010 action, Gartrell conceded that he did not seek dismissal of the prior suit due to the Wrens’ failure to file a certificate of merit.



Without expressing any opinion about the viability of Gartrell’s legal theory that the failure to file a certificate of merit with the 2006 petition requires dismissal of the subsequent 2010 lawsuit, the first step of analysis under this theory would require us to examine the 2006 petition to determine whether a certificate of merit was required. That petition from the earlier lawsuit was not provided to the trial court in support of Gartrell’s motion to dismiss, and it is not part of the record in this appeal. Thus we have no basis to conclude that a certificate of merit was required to be filed with the 2006 petition, and we also cannot conclude that dismissal of the 2010 petition was required for that reason. See Tex. R. App. P. 33.1(a) (preservation of error requires showing of complaint and trial court action on record).



II. Sufficiency of physical description



The adequacy of the Wrens’ certificate of merit was challenged because Trusky merely alleged survey errors concerning acreage, location of the house, and existence of easements. Gartrell argues that Trusky’s failure to describe particular errors in his observation or computation renders the affidavit insufficiently specific.



The statute requires that the affidavit set forth “specifically” for each theory of recovery “the negligence, if any, or other action, error, or omission” of the defendant “and the factual basis for each such claim.” See Tex. Civ. Prac. & Rem. Code § 150.002(b). Trusky testified by affidavit that he had “walked the subject property and [had] prepared a survey of [his] own on the subject property.” We hold that this statement provided the required “factual basis” for his statements identifying Gartrell’s alleged errors.



Gartrell contends that an expert report must list specific “objectively verifiable” acts, errors, or omissions. In support of that argument, he argues that the certificate of merit at issue in Howe-Baker Engineers Ltd. v. Enterprise Products Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *6 (Tex. App.—Houston [1st Dist.] Apr. 29, 2011, no pet.) (mem. op.), survived scrutiny because the affiant included several objectively verifiable acts, errors, or omissions. However, the specificity of the factual basis for errors identified in the affidavit was not at issue in that case. Rather the appellant in Howe-Baker challenged the sufficiency of the affidavit based on the affiant’s qualifications, whether the affidavit addressed both of two projects for which the plaintiff sought damages, and whether the affidavit addressed the negligence of a codefendant, against whom the plaintiff alleged only a theory of vicarious liability. See Howe-Baker, 2011 WL 1660715, at *4–7.



Similarly, Gartrell asserts that the certificate of merit in Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891, at *5 (Tex. App.—Austin Apr. 20, 2011, pet. denied) (mem. op.), was sufficient only because of its “objective specificity.” But the issues in that case were whether the affiant was qualified and whether the affidavit needed to recite a standard of care. See Elness Swenson, 2011 WL 1562891, at *2–5. Moreover, the certificate of merit held to be adequate in that case appears to have been similar to Trusky’s affidavit in terms of its specificity. The affidavit alleged that Elness Swenson deviated from the standard of care by “(1) failing to advise the geotechnical consultant of the final finished floor elevations, (2) failing to provide effective drainage around the building, (3) failing to design a recommended wall drain, and (4) failing to specify backfill of cohesive (clay) soil around the building to control surface water percolation.” Id. The affidavit identified the alleged errors but did not describe how or why the errors occurred. Id. Similarly, Trusky’s affidavit stated the alleged errors, i.e., that Gartrell deviated from the standard of care by: (1) incorrectly showing the acreage of the subject property, (2) incorrectly showing the location of the house located on the subject property, and (3) incorrectly stating that there were pipeline easements “and/or easements not shown” that did not exist on the subject property or that physical evidence did not support.



Gartrell also argues that the certificate of merit was insufficient because it did not address the applicable standard of care. Trusky’s affidavit did state that Gartrell “failed to use proper care in connection with the two surveys” and that “this failure and breach of the standard of care” caused the Wrens’ damages. But Trusky provided no further detail in describing the applicable standards of care or how Gartrell allegedly failed to satisfy them. However, the statute does not expressly require the affiant to state the applicable standard of care as part of the “factual basis” for the professional’s alleged error. See Tex. Civ. Prac. & Rem. Code § 150.002(b). By contrast, the Legislature has expressly required a description of the standard of care in an analogous context. An expert report required to be filed in support of a health care liability claim must provide:



a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.



Id. § 74.351(r)(6) (West 2011); see also Elness Swenson, 2011 WL 1562891, at *5. We conclude that a Chapter 150 certificate of merit need not include an express description of the applicable standard of care and how it allegedly was violated in order to provide an adequate “factual basis” for the identification of professional errors.



III. Third-party affiant requirement



Finally, we consider Gartrell’s contention that Trusky was not a third-party licensed professional within the meaning of Chapter 150 because he had been employed by the Wrens and purportedly had corrected parts of the surveys he criticized in his affidavit. Nothing in the statute expressly precludes a third-party fact or expert witness from serving as the third-party affiant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001–.003. This is consistent with the conventional and common-sense understanding of a “third party” as “[a] person who is not a party to a lawsuit, agreement or other transaction but who is usually somehow implicated in it; someone other than the principal parties.” Black’s Law Dictionary 1617 (9th ed. 2009). Trusky is not the plaintiff, the defendant, or an officer or agent of either. He is a person other than the principal parties to the litigation and is, therefore, a third party with respect to the lawsuit.



Conclusion



Having considered all of the arguments and examined the certificate of merit in light of the statute, we conclude that Gartrell has failed to demonstrate any abuse of discretion by the trial court’s denial of his motion to dismiss. We overrule Gartrell’s sole issue and affirm the judgment of the trial court.



Michael Massengale



Justice



Panel consists of Justices Keyes, Higley, and Massengale.



SOURCE: OPINION FROM HOUSTON COURT OF APPEALS - CASE NO NO. 01-11-00586-CV - DECISION DATE: 12/8/2011

Order denying free appeal not appealable

MEMORANDUM OPINION

This is an attempted appeal from an order sustaining a contest to appellant’s affidavit of indigence for trial court costs and ordering that appellant pay the costs of his suit in the trial court. 

Generally, appeals may be taken only from final judgments.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  Interlocutory orders may be appealed only if authorized by statute.  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).

The trial court’s order sustaining the district clerk’s contest to appellant’s affidavit of indigence is an interlocutory order.  Appellant cites no authority, and we have found none, providing for an interlocutory appeal to be taken from this order.  See generally Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (West 2008); see, e.g., Minnfee v. Lexington, No. 04-09-00770-CV, 2010 WL 381367, at *1 (Tex. App.—San Antonio Feb. 3, 2010, no pet.) (mem. op.) (dismissing appeal of order on motion to rule for costs); Aguilar v. Texas La Fiesta Auto Sales LLC, No. 01-08-00653-CV, 2009 WL 1562838, at *1 (Tex. App.—Houston [1st Dist.] June 4, 2009, no pet.) (mem. op.) (dismissing appeal of order sustaining contest to affidavit of indigence for trial court costs).

On September 8, 2011, the Court notified the parties of its intent to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating this court’s jurisdiction on or before September 19, 2011.  See Tex. R. App. P. 42.3(a). Appellant has not filed an adequate response.

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).  We dismiss any other pending motions as moot. 

PER CURIAM

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

SOURCE: OPINION FROM HOUSTON COURT OF APPEALS - NO. 01-11-00669-CV - 12/8/2011  

Wednesday, December 7, 2011

Intermediate court of appeals says it has no habeas corpus jurisdiction in criminal case



A court of appeals does not have original jurisdiction over habeas corpus proceedings in criminal matters.  Chavez v. State, 132 S.W.3d 509, 510 (Tex. App.—Houston [1st Dist.] 2004, no pet.); cfTEX. GOV’T CODE ANN. § 22.221(d) (Vernon 2004) (granting jurisdiction over civil proceedings).  

Jurisdiction to grant post-conviction habeas corpus relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon Supp. 2011); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53 S.W .3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Therefore, we are without jurisdiction to grant the requested relief. 
          
Accordingly, we dismiss for want of jurisdiction.




FIRST COURT OF APPEALS - NO. 01-11-01044-CR - 12/2/2011  (habeas corpus in civil case vs. criminal case)

Out-of-state company had sufficient minimum contacts with Texas to be sued here

  

Court of appeals affirms trial court's denial of special appearance on finding that corporate Defendant had sufficient minimum contacts with Texas for purposes of in-personam jurisdiction. Litigation thus proper in Texas court.  

Morris Industries, Inc. v. Trident Steel Corporation 
(Tex.App.- Houston [1st Dist] Dec. 1, 2011, no pet. h.)

MEMORANDUM OPINION

In this interlocutory appeal, Morris Industries, Inc., appeals the trial court’s order denying its special appearance.1  Trident Steel Corporation sued Morris, a New Jersey corporation, alleging claims for breach of contract and breach of warranty.  Morris filed a special appearance subject to its answer, which the trial court denied.  Morris appeals, contending that it lacks the minimum contacts with Texas required for a Texas court to exercise jurisdiction over it.  Finding no error, we affirm the trial court’s order.

Background

Morris is a New Jersey corporation headquartered in New Jersey. Morris makes and distributes pipes, casings, and other items used in the oil and gas industry.  In February 2008, Trident, a Missouri corporation with offices in Texas, began ordering oilfield couplings from Morris for delivery to its Houston location.

Pursuant to its contract with Trident, Morris shipped couplings to the Port of Houston. Upon their arrival, Morris paid and arranged for the couplings to be offloaded from the ships and trucked to threading facilities designated by Trident.  Morris retained title to the couplings and bore the risk of their loss until this point; possession and title to the couplings transferred to Trident at the threading facilities.  In November 2008, Trident became dissatisfied with Morris’s couplings, asserting that they had failed testing performed by Trident and Trident’s customers.  Trident began rejecting Morris’s deliveries.

In September 2009, Trident sued Morris in Harris County, alleging claims for breach of contract and breach of warranty.  Morris specially appeared, asserting that it was not subject to personal jurisdiction in Texas. Trident moved for a continuance before the special appearance hearing.  The trial court, without ruling on Trident’s motion for continuance, denied Morris’s special appearance.  Morris then appealed the trial court’s ruling to this Court.  On appeal, we held that Morris had negated Trident’s jurisdictional allegations, but remanded the case to the trial court to consider Trident’s request for jurisdictional discovery, pending at the time the trial court denied Morris’s motion. Morris Indus., Inc. v. Trident Steel Corp., No. 01-09-01094-CV, 2010 WL 4484351, at *5 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem. op).  On remand, Trident adduced additional jurisdictional facts relevant to Morris’s contacts with Texas.  

Morris maintains offices in New Jersey, New York, Pennsylvania, and Connecticut.  Morris has no offices in Texas, no employees in Texas and no agent in Texas for service of process.  Morris sells its products via a toll-free number listed on its website and through Iron Angeles of Colorado, Inc., an independent distributor located in Colorado.

Peter Brebach, a sales agent for Iron Angeles, brokers sales between Morris and its customers.  Brebach conducts research on behalf of Morris, locates Texas buyers interested in purchasing steel couplings, and communicates the results of his research to Morris.  For the contracts at issue in this case, Brebach negotiated purchase orders with Trident on behalf of Morris; Morris paid Brebach a commission for these sales pursuant to a “formal agreement.”  Brebach routinely copied corporate representatives from Morris and Trident on his correspondence.  In some instances, Morris directly communicated to Trident its progress in performing the orders.

Morris purchased couplings from a Chinese foundry and shipped them from China F.O.B. the Port of Houston.  Once the couplings arrived, Morris hired a local trucking company to pick up each order from a shipyard facility and transport the couplings to Trident’s designated “threading” facilities.  Craig Laine, a purchasing agent for Morris, travelled to Houston during the product delivery process to familiarize himself with the threading facilities and to determine how to transport Morris’s couplings to those facilities.  It was Laine who arranged for trucks to deliver Morris’s products from the Port of Houston to the Houston threading facilities.  Morris owned the couplings until their delivery to the threading facilities; Morris therefore bore the risk of loss from the time it shipped the couplings until it transferred possession to Trident at the threading facilities.  After delivering each order, Morris prepared and sent Trident an invoice for expenses.

After Trident notified Morris of the alleged defects, Morris attempted to cure its imperfect tender.  Morris leased a storage facility in Houston so that Laine and Mike Stern, Morris’s Vice President, could inspect the couplings.  Laine travelled to Houston approximately six times on business related to the contracts between Morris and Trident.  While in Houston, he personally segregated the couplings by heat number.  Once Laine segregated the couplings, he arranged for two Houston companies to test them for defects.  One company tested the couplings on behalf of both Trident and Morris, but the other tested the couplings solely at Morris’s direction.  Despite Morris’s efforts to cure, Trident rejected the couplings and filed this suit.

Apart from Morris’s contracts with Trident, Morris has filled sixtytwo purchase orders from Texas residents, shipping goods to fifteen different customers in Texas.  Some orders indicate Morris delivered its products by common carrier, while others reveal Morris arranged for trucks to deliver goods within Texas.

Standard of Review

We review de novo a trial court’s exercise of personal jurisdiction as a question of law, but the resolution of underlying factual disputes may precede that conclusion.  Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805–06 (Tex. 2002); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).  When the trial court issues findings of fact, we review them for legal and factual sufficiency.  BMC Software Belg., N.V., 83 S.W.3d at 795.  When, as here, the trial court does not issue fact findings, “we presume that the trial court resolved all factual disputes in favor of its ruling.” Glatty v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Am. Type Culture Collection, 83 S.W.3d at 805–06); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007).

Discussion

Texas courts may exercise personal jurisdiction over a non-resident defendant if the requirements of the Due Process Clause of the United States Constitution2 and the Texas long-arm statute3 are both satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872 (1984); Am. Type Culture Collection, 83 S.W.3d at 806.  The long-arm statute provides that Texas may assert personal jurisdiction over non-resident defendants who conduct business in the state.  It provides in relevant part, “In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state.” TEX. CIV. PRAC. & REM. CODE ANN. § 17.042.  “Because the Texas long-arm statute reaches ‘as far as the federal constitutional requirements of due process will allow,’ the statute is satisfied if the exercise of personal jurisdiction comports with federal due process.”  Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (quoting CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996)).  We thus examine whether a Texas court’s exercise of jurisdiction over Morris comports with the requirements of federal due process.  See id.

To comply with federal due process requirements, “the nonresident defendant must have purposefully established such minimum contacts with the forum state that it could reasonably anticipate being sued there.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 (1985)).  “If the nonresident defendant has purposefully availed itself of the privileges and benefits of conducting business in a state, it has sufficient contacts to confer personal jurisdiction.” Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2183).  The defendant’s activities must justify the conclusion that the defendant could anticipate being sued in a Texas court.  Am. Type Culture Collection, 83 S.W.3d at 806.  A defendant is not subject to jurisdiction in Texas if its contacts with the state are “random, fortuitous, or attenuated.”  Id.  “Nor can a defendant be haled into a Texas court for the unilateral acts of a third party.” Id.

We apply three principles to determine whether a non-resident defendant has purposefully availed himself of the privileges and benefits of conducting business in Texas.  See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005).  First, only the defendant’s actions may constitute purposeful availment; a defendant may not be haled into a jurisdiction based on the unilateral activities of a third party.  Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2174).  Second, the defendant’s acts must be purposeful; a showing of random, isolated, or fortuitous contacts is insufficient.  Id. (citing Burger King, 471 U.S. at 475, 105 S. Ct. at 2183, and Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 1479 (1984)).  Third, a defendant must seek some benefit, advantage, or profit through his purposeful availment, because jurisdiction is based on notions of implied consent; that is, by seeking the benefits and protections of a forum’s laws, a non-resident consents to suit there.  Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567 (1980)).  The purposeful availment test focuses on “the defendant’s efforts to avail itself of the forum” and not “the form of the action chosen by the plaintiff.”  Moki Mac, 221 S.W.3d at 576.  Due process also requires that the exercise of personal jurisdiction over a nonresident defendant “comport with fair play and substantial justice.”  Preussag Aktiengesellschaft, 16 S.W.3d at 114.

Minimum-contacts analysis is further divided into general jurisdiction and specific jurisdiction.  Preussag Aktiengesellschaft, 16 S.W.3d at 114.  Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either general or specific jurisdiction. Helicopteros Nacionales de Colombia, 466 U.S. at 413–14, 104 S. Ct. at 1872.  In determining whether a nonresident defendant purposefully established minimum contacts with Texas, a court should consider the “quality and nature of the defendant’s contacts, rather than their number.” Am. Type Culture Collection, 83 S.W.3d at 806.

Morris contends that the trial court does not have general jurisdiction over it because Morris does not have systematic and continuous contacts with Texas.  Morris also contends that the trial court does not have specific jurisdiction because it conducted no activity in Texas.  For reasons set forth below, we conclude that Morris’s contacts with Texas demonstrate Morris purposefully availed itself of the privilege of conducting activities in Texas and that Trident’s suit against Morris arises out of those contacts.  We thus do not examine whether Morris’s contacts give rise to general jurisdiction. 

Specific Jurisdiction

A court may exercise specific personal jurisdiction over a nonresident defendant if: (1) the non-resident purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there, and (2) the controversy arises out of or is related to the non-resident’s contacts with the forum state.  Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 343 (5th Cir. 2004); see Moki Mac, 221 S.W.3d at 576.  The non-resident defendant’s purposeful conduct, not the plaintiff’s unilateral acts, must have caused the contact.  See Helicopteros Nacionales de Colombia, 466 U.S. at 414, 104 S. Ct. at 1872; see also Michiana, 168 S.W.3d at 788.

1)    Purposeful availment

Morris contends that its contacts with the forum state do not confer specific jurisdiction, because Trident initiated them.  Morris argues that its few contacts with Texas—inspecting and testing the couplings—occurred after Trident complained of defects.  We disagree.
Peter Brebach of Iron Angeles serves as a sales agent for various steel suppliers, including Morris.  Brebach solicited Trident’s business in Texas on behalf of Morris.  Trident asks this Court to impute Brebach’s contacts to Morris.

Texas contacts of an agent are attributable to the principal.  See Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see also Schott Glas v. Adame, 178 S.W.3d 307, 315 (Tex. App.—Houston [14th Dist.] 2005, pet. denied), abrogated on other grounds by PHC-Minden, L.P. v. KimberlyClark Corp., 235 S.W.3d 163, 169 (Tex. 2007).  An “agent” is one who is authorized by a person or entity to transact business on behalf of the person or entity.  Bottle Rock Power Corp., 108 S.W.3d at 549.  The defining feature of an agency relationship is the principal’s control over the agent.  Id.  Whether an agency relationship exists is a question of fact.  Schott Glas, 178 S.W.3d at 315. The trial court did not expressly conclude that Brebach acted as Morris’s agent, but we presume that the trial court impliedly found all facts necessary to support its judgment.  Glatty, 177 S.W.3d at 445.

The trial court reasonably could have concluded that Brebach acted as Morris’s agent in these transactions.  Morris exercised control over Brebach and paid him a commission for the sales pursuant to a “formal agreement” between Morris and Brebach.  Laine testified that Brebach conducted research on behalf of Morris, communicated the results of his research to Morris, and entered into contracts with Texas clients on behalf of Morris.  In an affidavit in the trial court, the President of Trident averred that when Brebach first approached Trident, Brebach represented that Morris retained him to develop business in the Gulf Coast.  Thus, some evidence shows that Morris worked directly with Brebach, dictating the means and details of where to target business on Morris’s behalf.

In these particular transactions, Brebach located Trident as a customer for Morris’s couplings.  Brebach negotiated and executed the sales agreements with Trident; Brebach had actual authority to enter into and negotiate these contracts on behalf of Morris.  After Brebach solicited Trident’s business, Morris paid Brebach a commission for his sales.  Based on this evidence, the trial court could have found that Morris exercised a degree of control over Brebach sufficient to make Brebach Morris’s sales agent in these transactions. Cf. Schott Glass, 178 S.W.3d at 315–16 (concluding no agency relationship existed between parent company and Texas distributor to impute contacts for general jurisdiction where agent alone decided how to conduct sales).  These marketing contacts reveal that Morris purposefully availed itself of Texas by soliciting coupling sales from Trident.  “A nonresident defendant that directs marketing efforts to Texas in the hope of soliciting sales is subject to suit here for alleged liability arising from or relating to that business.”  Moki Mac, 221 S.W.3d at 576; accord IRA Res. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007) (“[T]argeting marketing efforts in a state to generate business there suffices to justify jurisdiction in disputes arising from that business.”).

Morris also purposefully availed itself of Texas by performing parts of the underlying contracts in Texas.  Morris delivered couplings to the Port of Houston.  Morris then paid and arranged for the couplings to be offloaded and trucked to Houston threading facilities.  Morris sent its corporate representative to Houston to investigate the threading facilities and directly arrange for transportation to those facilities.  The companies Morris hired to deliver the couplings all operated within Texas.  Morris maintained title and possession throughout the delivery process, transferring ownership to the couplings in Texas.  Morris therefore bore the risk of loss for the transactions until it delivered the couplings to Trident at the threading facilities.  We conclude that these contacts demonstrate Morris partially performed its contracts with Trident in Texas and purposefully availed itself of the privileges of conducting business here.  See Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 886–88 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (finding delivery to Houston, regular communication, and visit to Houston to inspect product conferred specific jurisdiction); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 283 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (finding specific jurisdiction in a negligence action based on plane defect where defendant chose to hire Texas resident to perform engineering work on plane); Fleischer v. Coffey, 270 S.W.3d 334, 338 (Tex. App.—Dallas 2007, no pet.) (finding specific jurisdiction where buyer of German Shepherd knew dog was trained in Texas, travelled twice to Texas to oversee training, and picked up dog in Texas).

Morris argues that the trial court erred in concluding that it had jurisdiction, relying mainly on Michiana. 168 S.W.3d at 787–88 (finding single product sale stemming from single phone call initiated by Texas buyer to non-resident defendant was not purposeful contact where buyer alone decided where to deliver RV and paid for shipping, and risk of loss for RV passed outside forum state).  But, unlike the RV seller in Michiana, Morris did not only send products to Texas at its customer’s direction, but also solicited Trident’s business and performed its contracts in Texas by hiring local companies to transport couplings within Texas.  During their Texas transit, Morris maintained ownership of the goods and bore the risk of their loss.  Because Morris directed Brebach to locate Texas customers on its behalf and hired local transportation companies to perform its contractual obligations, we conclude that Morris purposefully availed itself of Texas to form and perform its contracts with Trident.[1]

2)    Contacts “arising out of” this dispute

Even if a non-resident has purposefully availed himself of the benefits of conducting business in Texas, Texas courts do not have specific jurisdiction over the non-resident unless the cause of action “arises from or is related to an activity conducted within the forum.”  BMC Software Belg., N.V., 83 S.W.3d at 796.  We focus our analysis on the relationship amongst the non-resident, the forum, and the litigation to determine if the alleged liability arises from or is related to an activity conducted in Texas.  Counter Intelligence, Inc. v. Calypso Waterjet Sys., Inc., 216 S.W.3d 512, 518 (Tex. App.—Dallas 2007, pet. denied).  That is, the non-resident’s conduct must have either purposely been directed towards or occurred in the forum and must have a “substantial connection” with the litigation’s operative facts.  Moki Mac, 221 S.W.3d at 584–85; Glattly, 177 S.W.3d at 447.

We conclude that Trident’s claims against Morris arose out of Morris’s business contacts with Texas.  Trident’s breach of contract and breach of warranty claims all arise out of Morris’s delivery of nonconforming goods to Trident in Houston.  Morris delivered the couplings to Houston at its own expense and attempted to fix the couplings here after Trident claimed imperfect tender.  Accordingly, we hold that there is a substantial connection between Morris’s business contacts with Texas and the operative facts of the litigation.

Fair Play and Substantial Justice

Having found that Morris purposefully established minimum contacts with Texas, we must consider whether the exercise of personal jurisdiction over Morris comports with traditional notions of fair play and substantial justice.  See Glatty, 177 S.W.3d at 447 (citing Burger King, 471 U.S. at 47576, 105 S. Ct at 2183–84).  Where appropriate, we consider: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental, substantive social policies.  Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).  Considering these factors, we hold that exercising personal jurisdiction over Morris comports with traditional notions of fair play and substantial justice.  Morris sent products and corporate representatives to Texas in connection with the transactions that are the subject of this suit, supporting a finding that defending itself in Texas would not be unduly burdensome.  Texas has a particular interest in resolving this dispute: its subject, defective oilfield couplings are located in Texas and were intended for use here.  Texas has “a substantial interest in protecting its citizens against [the] harm from breach of contract.”  Cappucitti v. Gulf Indus. Prods., Inc, 222 S.W.3d 468, 487 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Accordingly, we hold that the trial court’s exercise of jurisdiction over Morris does not offend traditional notions of fair play and substantial justice.

Conclusion

We conclude that Morris has sufficient minimum contacts with Texas to confer specific jurisdiction in this case.  We therefore hold that the trial court did not err in denying Morris’s special appearance.  Accordingly, we affirm the order of the trial court.
  
                                                                   Jane Bland
                                                                   Justice

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

1  See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West 2011) (authorizing interlocutory appeal of order denying special appearance).
2  U.S. CONST. AMEND. XIV, § 1.
3  See TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West 2011).

[1] Trident contends that we should consider Morris’s further contacts with Texas after Trident rejected the couplings, because Morris stored and tested them for defects in Texas in an effort to cure the alleged problems.  In opposition, Morris claims these curative measures do not confer jurisdiction.  Attempting to fulfill its warranty obligations under the contract, Morris sent corporate representatives to Houston, stored couplings in Houston warehouses, and hired Houston companies to test them for defects.  Trident sued Morris, in part, for failing to meet warranty obligations under the contract.  Morris’s contacts with Houston after Trident claimed defective performance buttress the conclusion that Morris partially performed the underlying contracts in Texas.  However, we need not rely on these particular contacts to hold that Morris purposefully availed itself of Texas because Morris paid Brebach to solicit Trident’s business and hired Texas companies to transport its products.


City of Houston's jurisdictional plea properly denied in tort case, First Court of Appeals says, in opinion by its newest member


Election of remedies provision did not provide basis for dismissal of claims against the City of Houston in addition to dismissal of claims against its employee who drove the vehicle involved in the crash that was the cause of the plaintiff's injuries and basis for tort claim. Opinion, by Justice Huddle, cites the Court's recent decision in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.)(“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”). 

City Hall - City of Houston

City of Houston v. John McClain and Carita Douvio 
(Tex.App- Houston [1st Dist.] Dec. 1, 2011, no pet. h.)


MEMORANDUM OPINION

After a car accident, John McClain[1] sued the City of Houston and its employee, Larry Horton, alleging negligence on the part of Horton as the cause of the accident.  The trial court granted the City’s motion to dismiss Horton under the Texas Tort Claims Act’s election-of-remedies provision.  The City then filed a plea to the jurisdiction, claiming that McClain’s filing suit against Horton perfected the City’s statutory immunity from suit.  The trial court denied the City’s plea to the jurisdiction, and the City brought this interlocutory appeal.[2]  We conclude that the trial court properly denied the City’s plea to the jurisdiction.  We affirm.

Background
         
McClain sued the City and its employee, Horton, alleging that Horton negligently operated a motor vehicle, causing a collision involving McClain.  The City moved to dismiss McClain’s claims against Horton under section 101.106(e) of the Act.  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (West 2011).  That provision states:

If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

Id.  The trial court granted the City’s motion to dismiss Horton from the suit.  The City later filed a plea to the jurisdiction, asserting that section 101.106(b) of the Act bars McClain’s claims against the City.  That provision states:

The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the government unit consents.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2011).  The trial court denied the City’s plea to the jurisdiction.  In its single issue, the City contends that the trial court erred in denying its plea to the jurisdiction.  Specifically, the City asserts that because McClain filed suit against the City and Horton, McClain perfected the City’s section 101.106(b) immunity and McClain is forever barred from pursuing his claims against the City.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Whether a governmental entity is immune from suit is a question of subject matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.  In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.  Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681.
Section 101.106 of the Texas Tort Claims Act

A.   The Parties’ Contentions

Citing Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653 (Tex. 2008) and Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), the City contends that because McClain sued both Horton and the City, McClain lost the opportunity to sue either.  The City asserts that Horton was properly dismissed under section 101.106(e) of the Act, and, because McClain initially sued both Horton and the City, the City is immune from suit under section 101.106(b).  The City asserts that the necessary consent to suit described in section 101.106(b) cannot be found within section 101.021 of the Act, which waives immunity for claims arising from the alleged negligence of a government employee in operating a motor vehicle, because, according to the City, where section 101.106(b) applies, it “operates to trump” the limited waiver of immunity in section 101.021.  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

McClain disagrees.  He contends that because Horton was operating a motor vehicle in the course and scope of his employment at the time of the accident, section 101.021’s waiver of immunity for claims arising from negligence of operating a motor vehicle constitutes the consent described in section 101.106(b).  See id.  Thus, according to McClain, section 101.106(b) does not operate to bar his suit against the City.

B. City of Houston v. Esparza
         
This court recently construed section 101.106 of the Texas Tort Claims Act in a case with facts similar to this case.  City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.).  In that case, the plaintiff, Esparza, filed suit against both the City of Houston and its employee, claiming that the employee was negligent in causing a car accident.  Id. at *1.  The City moved to dismiss the employee under section 101.106(e).  Id.  It also filed a plea to the jurisdiction asserting that Esparza’s claims against the City were barred by section 101.106(b) of the Act.  Id.  The trial court granted the motion to dismiss the employee but denied the City’s plea to the jurisdiction.  Id.

On rehearing, this Court affirmed the judgment of the trial court. We rejected the City’s contention that subsections (b) and (e) apply without reference to each other when a claimant sues both the government and its employee together, thus requiring dismissal of both defendants.  Id. at *6.  We concluded, instead, that when a claimant fails to elect between defendants and instead sues both the government unit and its employee, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed.  See Esparza, 2011 WL 4935990, at *10 (“By operation of subsection (e), Esparza’s filing of suit and the City’s motion to dismiss [the employee] resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than [the employee].”).

With regard to what constitutes “consent” under section 101.106(b), we held “a claimant may find ‘consent’ to suit within the Act’s limited waivers of immunity only if the claimant has satisfied the Act’s other jurisdictional requirements, including those set forth in the election-of-remedies provision.”   Id. A claimant satisfies section 101.106 by electing—voluntarily or involuntarily—whether he will prosecute his claims against a governmental unit or its employee, forever forgoing prosecution against the other.  Id.

C.   Application of Section 101.106 to McClain’s Claims

Following Esparza, we reject the City’s contention that subsections (b) and (e) apply without reference to each other.  Under section 101.106, McClain’s filing of suit against both Horton and the City invoked subsection (e).  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e).  By operation of subsection (e), McClain’s filing of suit and the City’s motion to dismiss Horton resulted in a forced election: whether he intended to or not, McClain elected to pursue his claims against the City rather than Horton.  Id.; see Esparza, 2011 WL 4925990, at *10; see also Garcia, 253 S.W.3d at 657 (“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”).  Thus, McClain satisfied the Act’s election-of-remedies provision.

We also reject the City’s contention that the limited waiver of immunity in section 101.021 cannot constitute “consent” to suit in cases in which section 101.106(b) applies.  See Esparza, 2011 WL 4935990, at *10 (concluding that  claimant may find “consent” to suit within the Texas Tort Claims Act limited waivers of immunity if he has satisfied the Act’s other jurisdictional requirements).   But we do not go so far as to adopt McClain’s contention that the limited waiver of immunity found in section 101.021, alone, is sufficient to find the City consented to suit within the meaning of section 101.106(b).  See id. at *7–8.  Rather, we conclude that the limited waiver of immunity found in section 101.021 may constitute the “consent” required by section 101.106(b), and section 101.106(b) therefore does not bar McClain from pursuing his claims against the City, his elected defendant, if he has satisfied the Act’s other jurisdictional requirements.[3]  See Esparza, 2011 WL 4925990, at *10; See TEX. CIV. PRAC. & REM. CODE ANN.  § 101.106(b), (e).

Conclusion

We hold that the trial court properly denied the City’s plea to the jurisdiction under section 101.106(b) of the Texas Tort Claims Act.  We therefore affirm the trial court’s order.

                                                                   Rebeca Huddle
                                                                   Justice

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


[1]           Carita Douvio was also a plaintiff when this suit was initially filed.  Because she
was dismissed from the suit for failure to respond to discovery and is not a party to
this appeal, we will address only McClain’s claims.  
[2]           TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (authorizing interlocutory appeal from denial of governmental unit’s plea to jurisdiction).
[3]           The City does not challenge McClain’s compliance with any of the Texas Tort Claim Act’s jurisdictional requirements other than the election-of-remedies provision.


Rules governing timeliness of notice of appeal are rather unforgiving

  
Unsigned opinion of Houston Court of Appeal illustrates severe consequences of failing to comply with appellate deadlines. Once the allotted time thas run, the issue becomes jurisdictional and the attempted appeal will result in dismissal.

The clock keeps ticking 

MEMORANDUM OPINION

Appellant,[name omitted], attempts to appeal from the trial court’s judgment signed January 31, 2011. Because appellant’s notice of appeal was untimely filed, we dismiss.

Generally, a notice of appeal is due within thirty days after the judgment is signed. See Tex. R. App. P. 26.1(a). The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. Id. We may extend the time to file the notice of appeal if, within 15 days after the deadline to file the notice of appeal, the party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day extension period provided by Rule 26.3. See Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).

The record reflects that appellant timely filed a motion to vacate the trial court’s judgment, which extended the deadline for appellant to file his notice of appeal to 90 days after the date the judgment was signed, or Monday, May 2, 2011. See Tex. R. App. P. 26.1(a). Appellant’s notice of appeal was not filed until Wednesday, May 18, 2011. Appellant did not file a motion to extend time to file his notice of appeal and did not file his notice of appeal within the Verburgt period. See Tex. R. App. P. 26.3; Verburgt, 959 S.W.2d at 617–18.

Appellant’s notice of appeal was untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P. 25.1.

On August 26, 2011, we notified appellant that his appeal was subject to dismissal for want of jurisdiction unless, by September 15, 2011, he filed a response showing that this Court has jurisdiction of the appeal. No response was filed by that date. Appellant later filed a new notice of appeal, but it does not show that this Court has jurisdiction of the appeal.

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

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

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00437-CV - 12/1/11

Immediate appeal of temporary orders not available in SAPCR cases

  
Houston Court of Appeals again dismisses a premature appeal, holding that unlike temporary injunction orders in civil cases, temporary orders in family law cases governed by the Texas Family Code cannot be challenged in an interlocutory appeal.

MEMORANDUM OPINION

Appellant [in family law case - name omitted] filed her initial brief on August 15, 2011 and her amended brief on October 11, 2011. Neither brief complies with Texas Rule of Appellate Procedure 38.1. Specifically, neither contains "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). The appendix does not comply either. See Tex. R. App. P. 38.1(k)(1).

The briefs fail to identify any error; they simply request a different result. See Tex. R. App. P. 38.1(f), (j). It does not appear that Appellant sought the clarifications and modifications of the agreed orders that she requests in her brief from the trial court in the first instance. As a court of appeals, we may only review the trial court’s judgments or other rulings as permitted under statute; we cannot undertake the duties assigned to the trial court. See Tex. R. App. P. 43.2 (limiting courts of appeals to affirming, modifying, reversing, or vacating trial court judgment, or dismissing appeal); see also In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003) ("Requiring parties to raise complaints at trial conserves judicial resources by giving trial judges the opportunity to correct an error before an appeal proceeds.") (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999)).

Appellant’s first brief addresses the trial court’s agreed order in suit to modify the parent-child relationship signed on October 13, 2010. Her amended brief addresses recent agreed temporary orders signed August 2, 2011, which are contained in a recently filed supplement to the clerk’s record. Those temporary orders address the same subject matter and thus appear to supersede the earlier agreed order at issue in this appeal. The Texas Family Code specifically precludes the interlocutory appeal of temporary orders in suits affecting the parent-child relationship. See Tex. Fam. Code Ann. § 105.001(e) (West 2008); see also Tex. Fam. Code Ann. § 6.507 (West 2006) (specifically precluding interlocutory appeal of temporary orders, except those appointing receiver); Mason v. Mason, 256 SW3d 716, 718 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Marley v. Marley, No. 01-05-00992-CV, 2006 WL 3094325, at *2 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (mem. op) (holding that section 51.014(4) of Civil Practice and Remedies Code permitting appeals from temporary injunctions did not control over statutory prohibition of interlocutory appeals from temporary orders in Family Code). Because Appellant has not identified any issue over which this Court can exercise jurisdiction, we dismiss this appeal.

PER CURIAM

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

SOURCE: HOUSTON COURT OF APPEALS -
01-10-00966-CV - 12/1/11

Failure to perform under settlement agreement actionable as breach of contract

NATURE OF SETTLEMENT AGREEMENT & REMEDY IN CASE OF BREACH THEREOF

A settlement agreement is a contract between parties, a breach of which gives rise to a cause of action for breach of contract. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995).

To be entitled to summary judgment on this claim, the employees were required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Parties form a valid and enforceable contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) the execution and delivery of the contract with the intent that it be mutual and binding. See Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet. denied). "Meeting of the minds" describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Whether a contract is ambiguous is a question of law for the court. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). A contract is not ambiguous if its wording permits a definite or certain legal meaning. DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). "[A]n ambiguity does not arise simply because parties advance conflicting interpretations of the contract." Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 728 (Tex. 2001); see also DeWitt Cnty. Elec. Coop., 1 S.W.3d at 100. We construe the parties’ intentions as expressed in the document, considering the entire writing and attempting to harmonize and give effect to all of the contract’s provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., 165 S.W.3d 310, 311–12 (Tex. 2005).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00764-CV - 12/1/11

Settlement agreement moots the underlying controversy

In his first issue, Yellowe contends that he preserved for appeal his complaint that the trial court did not rule on his motion for summary judgment concerning his affirmative defense of limitations to the lawsuit originally brought by the employees. In his second issue, he contends that the trial court erred by failing to grant his motion.

We need not decide Yellowe’s first issue. Even if Yellowe preserved this complaint for appeal, the trial court properly determined that a valid and enforceable settlement agreement existed and that the underlying case was settled. Thus, there is no live controversy regarding the employees’ claims under the employment contracts. See Bd. of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex. 2002) (holding that when parties have settled dispute, there is no longer a live controversy between them, and case is moot); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (stating if controversy ceases to exist, case becomes moot and "[i]f a case becomes moot, the parties lose standing to maintain their claims."). A court is prohibited from deciding a moot case. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). Because it found that the employees’ claims under the employment contracts were rendered moot by the settlement agreement, the trial court did not commit error by declining to reach the merits of the employees’ claims or Yellowe’s affirmative defenses to those claims. See id.; see also Williams, 52 S.W.3d at 184.
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00764-CV - 12/1/11