Houston Courts & Cases

Sabine-Pilot Wrongful Discharge Suit – No-evidence summary judgment for employer reversed

2012-01-03T16:43:00.000-06:00

Nezat v. Tucker Energy Services, Inc.,

No. 14-11-00185-CV (Tex.App.- Houston [14^th Dist.] Jan. 3, 2011, no pet. h.(wrongful termination claim based on employer’s retaliation for worker’s refusal to commit illegal act as exception to at-will doctrine in Texas).

MEMORANDUM OPINION BY JUSTICE HILL JAMISON

James Nezat appeals from the trial court’s grant of Tucker Energy Services, Inc.’s

no-evidence motion for summary judgment. Nezat sued Tucker Energy for retaliatory

discharge under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734-35 (Tex.

1985), alleging that Tucker Energy terminated his employment because he refused to

drive a truck without a required permit. In its motion, Tucker Energy asserted that Nezat

could produce no evidence that the truck required a permit or that Nezat knew the truck

required a permit. The trial court granted the motion without specifying on which ground 2

or grounds it was being granted. In two issues on appeal, Nezat contends that he

presented evidence raising a fact question regarding whether the truck required a permit

and whether he knew it required a permit. We reverse and remand.

Background

It is undisputed that Nezat was an employee of Tucker Energy in December 2008.

In his original petition, filed July 14, 2009, Nezat alleged that in mid-December 2008, his

supervisor, Tane Herbert, ordered him to drive a fluid pump truck to Arkansas despite the

fact that Tucker Energy knew that the truck required a permit to be operated in Arkansas

and that Tucker Energy had no such permit for that vehicle for the date in question.

Nezat further asserted that it is a misdemeanor offense to operate a vehicle in Arkansas

without a required permit.

He claimed that he was terminated solely for refusing to

drive the truck to Arkansas without the proper permit. Nezat stated a cause of action for

retaliatory discharge under Sabine Pilot. He sought damages for loss of earning capacity

in the past and future as well as mental anguish.

On May 19, 2010, Tucker Energy filed a combined traditional and no-evidence

motion for summary judgment, which the trial court denied. On November 1, 2010,

Tucker Energy filed a second no-evidence motion for summary judgment. In this

motion, Tucker Energy asserted that Nezat could produce no evidence that (1) the truck

was overweight on the date in question and required a permit or (2) Nezat knew that the

truck was overweight and required a permit on that date.

In response, and as will be discussed in more detail below, Nezat presented

evidence that in December 2008, he was the sole employee of Tucker Energy responsible

for or with any knowledge regarding the permitting of trucks and that the truck in

Nezat has represented different dates on which he refused to drive the truck. In his deposition,

Nezat stated that he refused on December 16, 2008. In his original petition, he stated the date as

December 19. In his briefing to this court, he states December 18. Because Nezat’s deposition testimony

was under oath and Tucker Energy also represents December 16 as the date in question, we will assume

for purposes of this opinion that December 16, 2008, is the correct date.

Nezat claims that, though the truck was under the gross weight required by law, there was too

much weight distributed to the two rear axles which made it require a permit.3

question required a permit because it was overweight on its rear two axles. The trial

court granted the motion for summary judgment, and Nezat now brings this appeal.

Standard of Review

Under the employment at-will doctrine in Texas, employment for an indefinite

term can be terminated at will and without cause. Winters v. Houston Chronicle Publ’g

Co., 795 S.W.2d 723, 723 (Tex. 1990). In Sabine Pilot, the Texas Supreme Court set

forth a common law exception to the employment at-will doctrine, prohibiting an

employer from firing an employee solely because that employee refused to perform an

illegal act. 687 S.W.2d at 735. To prevail under the ―very narrow‖ Sabine Pilot

exception, the former employee must prove that ―his [or her] discharge was for no reason

other than his [or her] refusal to perform an illegal act.‖ 687 S.W.2d at 735.

As set forth above, Tucker Energy asserted in its no-evidence motion for

summary judgment that Nezat could produce no evidence that the truck in question was

overweight or that Nezat knew that it was overweight. These grounds essentially

challenged Nezat’s ability to prove that he refused to perform an illegal act. To defeat a

no-evidence motion for summary judgment, the responding party must present evidence

raising a genuine issue of material fact supporting each element contested in the motion.

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When reviewing a trial

court’s grant of such motion, we consider the evidence presented in the light most

favorable to the party against whom summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not. Id. We review a no-evidence summary judgment de

novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004).

Nezat’s Evidence

The crux of Nezat’s claim regarding the truck is not that it was overweight as a

whole but that the rear two axles had too much weight on them, a condition which would

make operation of the truck on Arkansas roads without a permit a misdemeanor offense. 4

See Arkansas Code §§ 27-35-101 (criminalizing operation of overweight vehicles), 27-

35-203(b) (providing that two axles within 96 inches may not exceed 34,000 pounds total

gross load). In response to Tucker Energy’s no-evidence motion, Nezat presented the

following evidence pertaining to the condition of the truck and his knowledge thereof:

(1) excerpt from the deposition of Randy Nitz, president of Tucker Energy’s United

States operations; (2) excerpt from Nezat’s deposition; (3) Nezat’s affidavit; (4) excerpt

from the deposition of Tucker Energy employee Bruce Lester; (5) eight Arkansas permits

issued for the truck on other dates; (6) citation issued in Louisiana for the truck being

overweight and unpermitted; (7) email from Nezat to Tucker Energy sent on December

19, 2008; and (8) excerpt from the deposition of Jason Pitts.

In his deposition, Nitz testified that the only person with Tucker Energy’s United

States operations in December 2008 with ―any knowledge of permitting trucks‖ was

Nezat. Nezat was in charge of permitting trucks for Tucker Energy, in charge of auditing

the permitting process, and had all of the responsibilities for permitting Tucker Energy’s

trucks.

Nezat testified in his deposition that he was a fluid pump/nitrogen pump truck

operator for Tucker Energy in December 2008, but he was also a safety representative for

the company, and he made sure that the company’s equipment ―was in compliance.‖ He

further stated that when he was informed that he would be driving a particular truck to a

jobsite in Arkansas, he told the job supervisor, Jason Pitts, that the truck did not have its

proper permits and that he would not drive the truck without a permit. In his affidavit,

Nezat stated that while the truck was underweight as a whole, ―there was too much

weight distributed to the two rear axles which made it require a permit. Operating a truck

without a permit is a misdemeanor and illegal and I knew that on the day that Tucker

fired me.‖

In his deposition, Lester stated that he heard from ―Jason‖ that Nezat had refused

to drive the truck because of a permitting issue. Lester further described receiving a

citation in Louisiana in November 2008 for driving a Tucker Energy Truck that was 5

―over axle weight.‖ The citation itself also was attached to Nezat’s response. It is

undisputed that the truck in question was the same one that Nezat refused to drive and

that was the subject of the Arkansas permits discussed next.

Each of the eight permits attached to Nezat’s response show the same truck with

the same total gross weight and same weight on the rear two axles. The combined weight

on the rear two axles was 40,000 pounds, which would appear to be a violation of

Arkansas law, described above, which permits two axles within 96 inches to have no

greater than 34,000 pounds total gross load. See Arkansas Code § 27-35-203(b). Each

permit was valid for between two and six days beginning on the following dates at the

end of 2008 and beginning of 2009: December 11, 22, 29, and 31, and January 2, 9, 14,

and 20.

Nezat represented to the trial court, and Tucker Energy did not dispute, that

these permits were all of the permits provided by Tucker Energy in response to discovery

requests covering the relevant time period. None of the permits covered the date on

which Nezat claims that he was ordered to drive the truck to Arkansas without a permit,

December 16, 2008.

In the email sent by Nezat to Randy Nitz and others at Tucker Energy, Nezat

complained that he was fired for refusing to drive a truck to Arkansas without the proper

permits. He further said that he ―was just obeying the law.‖ The email was sent on

December 19, 2008.

In his deposition, Pitts stated that the weight of the truck could be reduced by

removing ―pieces‖ or ―hardware‖ from the truck itself. He specifically noted that

removing the truck’s manifold would reduce the overall weight by 2,000 pounds.

The permit issued on December 11, 2008 was effective only until December 13, 2008. This

would not cover any of the different dates Nezat has suggested as the date on which he refused to drive

the truck.

The excerpt from Pitts’s deposition was attached to a supplemental response to the motion for

summary judgment. In this supplemental filing, Nezat responded to Tucker Energy’s assertion that the

weight of the truck was not always the same. Through the excerpt from Pitts’s deposition, Nezat made

the point that even if it was possible to remove 2,000 pounds from the rear axles, the load on the rear

axles would still be overweight under Arkansas law by 4,000 pounds.6

Analysis

Tucker Energy argues that Nezat failed to produce evidence that the truck was

overweight on the day he refused to drive it. Tucker Energy discounts Nezat’s affidavit,

in which he expressly stated that there was too much weight distributed to the two rear

axles, as well as his deposition testimony, in which he explained that he refused to drive

the truck because it did not have a required permit, because it maintains that Nezat

contradicted this evidence in another part of his deposition which was excerpted and

attached to their no-evidence motion. We may not consider this allegedly contradictory

excerpt, however, because it was not part of Nezat’s evidence. Evidence attached to a

no-evidence motion for summary judgment can be considered only if it creates a question

of material fact. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Ardoin v. AnheuserBusch, Inc., 267 S.W.3d 498, 502 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see

also City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005) (indicating only evidence

contrary to a no-evidence motion can be considered).5

As the testimony of Randy Nitz, Tucker Energy’s president of United States

operations, made clear, Nezat was the best person at Tucker Energy in December 2008 to

Tucker Energy cites City of Keller and Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108,

111 (Tex. App.—Houston [1st Dist.] 1997, no pet.), in arguing that we can consider the deposition

excerpt attached to its motion, but neither case supports its position. While the court in City of Keller did

suggest that when conducting a legal sufficiency review and only circumstantial evidence is offered in

support of a critical fact, a court must consider all of the circumstantial evidence relating to that fact and

not just the evidence favorable to the existence of that fact. 168 S.W.3d at 814. There is no indication,

however, that the Keller court intended for such statement to require consideration of evidence attached to

a no-evidence motion for summary judgment; to the contrary, the court makes it clear in Keller that it is

improper to attach evidence to a no-evidence motion for summary judgment. Id. at 825.

In Farroux, the First Court explained that a party cannot file an affidavit that contradicts his or

her own deposition testimony, without explaining the discrepancy, for the purpose of creating a fact issue

to avoid summary judgment. 962 S.W.2d at 111. However, Farroux was a traditional summary

judgment case wherein the court could properly consider evidence filed by both sides. Id. at 110. Here,

Nezat was under no duty in responding to the no-evidence motion to explain any discrepancy between his

affidavit and deposition testimony attached to the motion. It should also be mentioned that several sister

courts of appeal have declined to follow the Farroux sham affidavit rule. See, e.g., El Sabor de Mi

Tierra, Inc. v. Atascocita/Boone JV, No. 14-06-00652-CV, 2007 WL 2417921, at *6-7 (Tex. App.—

Houston [14th Dist.] Aug. 28, 2007, pet. denied) (mem. op.) (discussing disagreement but declining to

take a side).7

know whether a truck needed a permit due to being overweight. Nezat’s affidavit and

deposition testimony are more than a scintilla of evidence that the truck required a

permit, and that he knew it required a permit, on the day he was instructed to drive the

truck to Arkansas.

Tucker Energy additionally challenges Nezat’s reliance on the eight Arkansas

permits issued for the truck during the same time period as when Nezat allegedly refused

to drive the truck without a permit. Nezat argues that the permits demonstrate that the

vehicle consistently weighed the same and required a permit to be driven into Arkansas

during the relevant time period. Tucker Energy asserts that the permits constitute no

evidence that the truck required a permit on the day Nezat refused to drive it to Arkansas.

Tucker Energy argues that it would be more reasonable to infer from the eight permits

that permits were obtained when required. Tucker Energy further points to Pitts’s

testimony that the weight of the truck could be reduced by removing pieces from the

truck. However, this argument does no more than suggest that there is a fact question as

to whether the truck was overweight on the rear axles on the day in question and thus

required a permit. Viewed in light of the evidence that Nezat was the person at Tucker

Energy in the best position to know whether the truck needed a permit, his insistence that

the truck indeed did need a permit on the day in question, and the testimony from Bruce

Lester that he received a citation for driving the same truck without a required permit in

Louisiana, the eight permits support Nezat’s contention that the truck was typically, if not

always, overweight during that time period.

6 Although no objections were sustained against Nezat’s affidavit, it is clearly not a model one.

However, even if we were to disregard the affidavit, Nezat testified in his deposition that he refused to

drive the truck because it required a permit and did not have one.

7 In its brief to this court, Tucker Energy also complains that Nezat produced no evidence that he

was threatened with termination if he did not drive the truck to Arkansas or that he was fired for refusing

to drive the truck without a permit. Neither of these arguments was raised as a ground for summary

judgment below. Thus, Nezat was not required to present evidence raising a fact issue on these points.

See Hamilton, 249 S.W.3d at 429. Additionally, in the fact section of its brief, Tucker Energy suggests

there is no evidence that the truck did not have a permit on the day Nezat refused to drive it. This

assertion also was not made below; thus, Nezat was not required to present evidence regarding lack of a

permit. Id. Regardless, Nezat did produce his own deposition testimony indicating that the truck was not

properly permitted on the day he refused to drive it to Arkansas.

8 To defeat a no-evidence motion for summary judgment, the nonmovant does not

have to prove his or her case, he or she merely needs to present evidence demonstrating a

genuine issue of fact on the challenged elements. Hamilton v. Wilson, 249 S.W.3d 425,

429 (Tex. 2009). Also in this context, all evidence is considered in a light most favorable

to the nonmovant. Timpte Indus., 286 S.W.3d at 310. Nezat’s evidence demonstrated the

existence of a fact question regarding whether the truck was overweight on the day he

refused to drive it and whether he knew it was overweight. Accordingly, the trial court

erred in granting the no-evidence motion for summary judgment.

We sustain Nezat’s issues, reverse the trial court’s judgment, and remand for

further proceedings in accordance with this opinion.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Seymore, and Jamison.

SOURCE: HOUSTON COURT OF APPEALS – 14^TH DISTRICT - 14-11-00185-CV – 1/3/12

Galveston Porretto Beach Litigation Update: Houston Appeals Court issues new opinion in dispute over property rights effects of moving shoreline; Owners' Open Beaches Act challenge dismissed

2011-12-16T00:26:00.001-06:00

First Court of Appeals, in a new opinion by Justice Jane Bland on re-hearing, holds that the trial court erred in denying the State’s amended plea to the jurisdiction with respect to the submerged land formerly held by the Porrettos, because the State adduced evidence that it is the owner of that submerged land. Based on that determination, the court dismisses for want of jurisdiction the Porrettos’ claims against the General Land Office (GLO), and Texas Land Commissioner Jerry Patterson, seeking a declaration of title.

Texas General Land Office v. Porretto (Tex.App.- Houston [1st Dist.] Dec. 15, 2011, no pet.h.)(opinion on rehearing by Bland)

A little more than fifty years ago, the Porretto family began acquiring tracts of beachfront property on Galveston Island, gulfward of the seawall. The family eventually came to own property along the shoreline between 6th and 27th Streets. They turned the property between 6th and 10th Streets into Porretto Beach and provided paid parking and concessions for beachgoers. They did not develop the tracts between 10th and 27th Streets, known as Porretto Beach West (PBW).

A little worn - what with the all the storms, not to mention the protracted litigation

In 1994, the State, acting through the Texas General Land Office (GLO), leased the public land between 10th and 61st Streets—referred to in the lease as “submerged property”—to the City of Galveston for a beach replenishment project. Beginning in 2001, the Porrettos unsuccessfully attempted to sell their property. Citing a cloud on their title as the reason, the Porrettos then sued the GLO and Jerry Patterson, its commissioner, as well as several Galveston municipal officeholders. In the suit, the Porrettos alleged interference with their good title to beachfront property and a governmental taking of their land in violation of the Texas Constitution.

In our first encounter with this case, we reversed the trial court’s ruling dismissing the case for lack of jurisdiction. See Porretto v. Patterson, 251 S.W.3d 701, 701 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (Porretto I). On remand, the State amended its jurisdictional plea and adduced evidence to support it. The trial court denied the amended plea and tried the title dispute and takings claim to the bench. The trial court quieted title in favor of the Porrettos. It further concluded that certain State actions amounted to a taking without adequate compensation, in violation of article 1, section 17 of the Texas Constitution. The trial court then submitted issues regarding property valuation and attorney’s fees to a jury. The trial court entered a judgment on the jury’s verdict and declared title to the contested property in favor of the Porrettos.

In this appeal, the State contends that the trial court lacked subject matter jurisdiction over the Porrettos’ request for declaratory relief, because Commissioner Patterson was immune from suit for the functional equivalent of a trespass to try title claim. The State further contends that the trial court erred in concluding that the Porrettos own all of the contested property and that Chapter 61 of the Texas Natural Resource Code (the Open Beaches Act) is an unconstitutional ex post facto law. It challenges the trial court and the jury findings as legally insufficient. The State also appeals the trial court’s imposition of discovery sanctions. We grant rehearing, withdraw our earlier opinion, and issue this one in its stead. Our disposition remains unchanged.

We conclude that the trial court erred in declaring that the Porrettos hold title to the contested property that is submerged under the Gulf of Mexico. As a result, the trial court erred in denying the State’s amended plea to the jurisdiction with respect to this state-owned property. Because the Porrettos did not identify the scope of their private landholdings to exclude state-owned submerged land, the trial court’s improper declaration of title is fatal to their inverse condemnation claims, as is the absence of any state action by these defendants that constitutes a taking. The trial court erred in entering judgment declaring the Open Beaches Act unconstitutional because the Porrettos’ challenge to it was not ripe for adjudication. Finally, the trial court erred in imposing discovery sanctions against the State. We therefore reverse.

Please STOP here and enjoy the OPEN BEACH
(which did not appear particularly submerged in November 2011, when the Blawgmeister took this pic)

We hold that the trial court erred in denying the State’s amended plea to the jurisdiction with respect to the submerged land formerly held by the Porrettos, because the State adduced evidence that it is the owner of that submerged land. Accordingly, we dismiss for lack of jurisdiction the Porrettos’ claims against the GLO and Commissioner Patterson seeking a declaration of title. We further hold that the Porrettos’ inverse condemnation claims with respect to land above the mean higher high-tide line are without merit, because the state actions challenged were not takings, and no legally sufficient evidence accurately identifies or values their private property interest, nor the State’s encroachment of it. We hold that the trial court also lacked subject-matter jurisdiction over the Porrettos’ constitutional challenge to the Open Beaches Act. We therefore reverse the judgment and (1) dismiss for lack of subject-matter jurisdiction the Porrettos’ title claims and their Open Beaches Act challenge; and (2) render judgment that the Porrettos take nothing on their inverse condemnation claims. Finally, we hold that the trial court erred in imposing discovery sanctions on the State and, therefore, reverse the award of attorney’s fees assessed as sanctions against the State.

Jane Bland

Justice

Panel consists of Justices Keyes, Higley, and Bland.

Read the remainder of the opinion below:

Opinion issued December 15, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00520-CV

———————————

Texas General Land Office and Jerry Patterson, In His Official Capacity as Texas Land Commissioner, Appellants

Sonya Porretto and Rosemarie Porretto, Appellees

On Appeal from the 212th Judicial District

Galveston County, Texas

Trial Court Case No. 02CV0295

OPINION ON REHEARING

Background

Henry Porretto acquired property along the Gulf shore between 6th and 27th Streets through a series of purchases beginning in 1959.[1] The title to these tracts traces back to the Menard Grant, an 1838 conveyance of the eastern end of Galveston by the Republic of Texas to Michael B. Menard. See generally City of Galveston v. Menard, 23 Tex. 349, 1859 WL 6290, *30, *32 (1859). When the Republic conveyed the property to Menard, the entire conveyance was dry land, but much of it is now submerged beneath the Gulf of Mexico.

In 1994, the City of Galveston—which is no longer a party to this case—embarked on a beach renourishment project to replenish and increase the size of the sandy area along the Gulf shore for public recreational use. To this end, the State entered into a ten-year lease with the City for “State Submerged Gulf of Mexico Tracts . . . adjacent to and along the Galveston Seawall from the centerline of 10th Street, extended, to the centerline of 103rd Street, extended.” (emphasis added.) The lease includes a map that generally depicts the span of land included in the proposed beach replenishment project where the City later expected to deposit “beach quality sand in and on said submerged land for beach replenishment and restoration . . . .” (emphasis added.)

The lease recites that “[t]he uplands property littoral to the submerged lands subject to this lease are owned by the County of Galveston,” and specifies that the lease has no effect on the county’s rights or obligations to own and maintain the seawall. The lease also contains an agreement that the City of Galveston would:

cause surveys to be performed by a Licensed State Land Surveyor to locate and document the line of highest annual tide . . . continuing along the length of the submerged lands subject to this lease . . ., and the line of mean high tide along the length of the submerged lands subject [to the lease]. Each survey shall be subject to acceptance and approval by the [State].

During the project’s development stage, a public dispute arose concerning the assertion of property rights on and around the affected part of the beach. In response to a public query about proposed jet-ski concessions, a GLO staff attorney wrote in a June 23, 1997 letter that:

the State does not recognize any claim of private ownership of land in front of the seawall. I have previously directed your attention to Galveston v. Menard and the cases cited therein and pointed out that the pre-project survey of the line of high water clearly shows it to be up on the seawall. The requirement of the park board that the concessionaire obtain consent of “certain adjacent property owners” and the recitations of the Consent form itself ascribe some credence to these specious claims in derogation of the State position and are, therefore, not acceptable.

As the dispute became more heated, the Galveston County Daily News published a series of articles regarding disputes over property ownership in front of the seawall, culminating in an opinion piece by the GLO’s senior deputy commissioner and general counsel explaining that, based on the 1940 Texas Supreme Court case of City of Galveston v. Mann—“which found that there had been no fast land in front of the seawall for a period in excess of 20 years and recognized the State’s ownership of the submerged land due to erosion”—the State took the position that it owned all of the property seaward of the seawall. See 143 S.W.2d 1028, 1033 (Tex. 1940). Individuals representing the State made similar claims at several public meetings of the Galveston Park Board. The State directed the Galveston County Appraisal District [GCAD] to change their records to show state ownership of submerged lands.

In the meantime, the Porrettos made unsuccessful attempts to sell their property. In 2001, the Porrettos met with a group of investors that expressed interest in building a hotel and boardwalk on the Porretto Beach property. In 2006, the Porrettos again sought to sell Porretto Beach to a developer who was interested in constructing a high-rise condominium on the property. Concerns about present and future ownership of the beachfront, however, dissuaded the prospective purchasers.

The trial court found that the Porrettos held title to all of the Porretto Beach and PBW property that the Menard Grant originally had conveyed, including the portions of that property that undisputedly are submerged beneath the Gulf of Mexico. The trial court also held that the State’s actions effected a taking of the Porrettos’ property. The jury found the values of Porretto Beach and PBW, respectively, before and after the dates on which the trial court found that the taking had occurred. The trial court declared title in favor of the Porrettos and held that the Open Beaches Act was an unconstitutional ex post facto law whose regulations did not apply to the Porrettos’ property. It also awarded the Porrettos the takings damages found by the jury, as well as their attorney’s fees as a sanction in connection with a discovery dispute with the State. This appeal followed.

Thank You for your [erstwhile] Business

Discussion

I. Subject-matter jurisdiction

A. Standard of review

Subject-matter jurisdiction is essential for a court to have the authority to resolve a case, and a trial court lacks jurisdiction over a governmental unit that is immune from suit. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party may challenge a court’s subject-matter jurisdiction by filing a plea to the jurisdiction. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). We review de novo a trial court’s ruling on a jurisdictional plea. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In our review we consider only the plaintiff’s pleadings and evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). At the same time we are mindful that a plaintiff may not avoid sovereign immunity through artful pleading. See City of Houston v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007) (“[P]rivate parties cannot circumvent the State’s sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim,” and “if the sole purpose of such a declaration [regarding a governmental body’s statutory authority] is to obtain a money judgment, immunity is not waived”) (quoting Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002)).

A plaintiff bears the burden to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear the case. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect apparent from the face of the pleadings, making it impossible for any amendment of the plaintiff’s petition to confer jurisdiction on the trial court. Bybee v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960). We bear in mind that the government bears the burden to adduce evidence showing as a matter of law that the trial court lacks jurisdiction. Porretto I, 251 S.W.3d at 711 (citing Tex. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004)).

B. The challenged judgment

The State charges that, despite the Porrettos’ abandonment of their trespass-to-try-title claim against Commissioner Patterson, the trial court effectively adjudicated a claim against the State for land in favor of the Porrettos. A plaintiff may request declaratory relief to clarify a person’s legal rights in relation to the State without implicating the State’s immunity from suit. Porretto I, 251 S.W.3d at 708. Nor does sovereign immunity shield the State from a claim based on an unconstitutional taking of property. Id. (citing State v. Holland, 221 S.W.3d 639, 644 (Tex. 2007); Porretto I, 251 S.W.3d at 708. But, if the prevailing party seeks title to, and possession of, the real property interest at issue in the suit, sovereign immunity bars the suit. Id.

The trial court’s judgment declares:

1. That the [Porrettos] own fee simple title to the property at issue . . . between 6th and 10th streets in front of (seaward of) the Galveston seawall above (landward) of the mean higher high tide line . . .

2. That the [Porrettos] own fee simple title to the property at issue in this lawsuit between 6th and 10th Streets in front of (seaward of) the Galveston seawall below (seaward of) the mean higher high tide line . . . .

3. That the [Porrettos] own fee simple title to the property at issue in this lawsuit between 10th and 27th Streets in front of (seaward of) the Galveston seawall above (landward of) the mean higher high tide line . . . .

4. That the [Porrettos] own fee simple title to the property at issue in this lawsuit between 10th and 27th Streets in front of (seaward of) the Galveston seawall below (seaward of) the mean higher high tide line . . . .

In addition to these declarations, the judgment holds the State liable for damages based on the jury’s fair market value findings, but it does not require the Porrettos to relinquish the property to the State. The judgment confirms that the Porrettos’ suit, at bottom, challenges the title and ownership of the property. The judgment attaches, and each of these declarations refers to, a property survey and a legal description of the properties. The trial court had subject-matter jurisdiction to adjudicate such a challenge only absent any showing that the State has a colorable claim to title, or as an antecedent and necessary finding to support a takings claim. As we further discuss, we conclude that the State has proved its title to the submerged land, and the Porrettos have not proved a taking of their dry land by the State or by Commissioner Patterson.[2] Because the State demonstrated immunity from suit, the trial court should have granted the State’s amended plea to the jurisdiction on the Porrettos’ request for a declaration that adjudicated title and property ownership against the State.

Porretto Beach in November 2011

C. The State’s ownership by tidal boundary and the Menard Grant

The State asserted more than a colorable claim to title in its amended plea. In Porretto I, we reversed the trial court’s grant of the State’s initial plea to the jurisdiction as to Commissioner Patterson on the Porrettos’ trespass-to-try-title claims because the State made no assertion of title. Following State v. Lain, 349 S.W.2d 579 (Tex. 1961), we held that the trial court’s decision was premature because Commissioner Patterson had not contested the Porrettos’ claim of title or otherwise asserted that the State had a colorable, superior right to the land. Porretto I, 251 S.W.3d at 711; see also Tex. Parks & Wildlife Dep’t v. Sawyer Trust, No. 07-0945, 2011 WL 3796347, at *3 (Tex. Aug. 26, 2011) (confirming vitality of Lain rule and applying it to determine that Trust’s claims did not dispute boundary between State-owned land and Trust-owned land, but “whether State owned any land at all,” and thus were barred by sovereign immunity). After the appeal, when the proceedings resumed, the State clarified its asserted property rights, explaining that it did not contest the Porrettos’ ownership of the dry-land property seaward of the seawall and landward of the mean higher high-tide line, but it claimed ownership to the contested, now-submerged land—the land seaward of the mean higher high-tide line. The State also adduced evidence to support its right to title to the submerged land.

This evidence, presented at the evidentiary hearing on the amended plea, includes: (1) a copy of the Menard Grant; (2) survey maps delineating submerged land, submerged land later filled as part of the beach renourishment project, and upland property; and (3) the State’s October 13, 1994 lease to the City of Galveston for the beach renourishment project. The lease to the City expressly conveys only the submerged property between 10th and 61st Streets—it does not convey any dry land. We examine this evidence to determine whether the State has asserted a colorable claim to title that rendered the trial court without jurisdiction to adjudicate the Porrettos’ claim to title and possession of the property.

Within the Menard Grant, we find the answer. We have a longstanding duty to strictly construe legislative grants of property in favor of the State, preserving for the State any interest that is not conveyed in unequivocal and explicit terms. Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 272 (Tex. 1932); City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 226 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). In particular, we do not presume that the State made a grant or sale that includes land under navigable waters unless the conveying instrument expressly provides for its inclusion. See Lorino v. Crawford Packaging Co., 175 S.W.2d 410, 413 (Tex. 1943) (citing Mann, 143 S.W.2d at 1033).

The parties agree that we are to interpret the Menard Grant under Spanish civil law. Under the civil law, the nation owns the seashore, bays, and rivers absent the expression of a clear intent to the contrary. See Menard, 1859 WL at *30, *32. In Menard, the Supreme Court determined whether the grant could be properly construed to convey the submerged land between the Bay’s shore and the channel. The call in the title specifies a distance out from the dry land to the channel of the harbor into the bay, creating fixed boundaries on the northern side facing Galveston Bay. Id. at *32. This area, which consisted of mud flats, was “regularly and periodically left bare, dry land, to the channel.” Id. Considering the specific language of the grant and the legislature’s expressed purpose for its authorization, the court concluded that the grant intended to convey the flats into the bay to the channel for the construction of wharves in the area. Id. at *24.

The Menard court addressed the description of the conveyance only as it pertains to the Bay side of Galveston Island. On the Gulf side—which includes the property at issue here—the Menard Grant does not specify a fixed distance seaward: it conveys land “to the meanders.” “A meander line is a series of course and distance calls which follow the river or other natural object or monument as closely as is practically possible for purposes of calculating the amount of land conveyed.” Ely v. Briley, 959 S.W. 2d 723, 725 n.1 (Tex. App.—Austin 1998, no pet.). A conveyance to the meanders, then, is a grant to the shoreline and does not include submerged land. See City of Port Isabel v. Mo. Pac. R.R., 729 S.W.2d 939, 942–43 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.).

Under the civil law, a conveyance to the meanders extends to the mean higher high-tide line.[3] John & Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 270, 280 (Tex. 2002) (relying on Luttes v. State, 324 S.W.2d 167, 175 (Tex. 1958), and recognizing that Luttes was not limited to its facts; it “generally determine[d] shoreline boundaries under the civil law”); TH Invs. Inc. v. Kirby Inland Marine, L.P., 218 S.W.3d 173, 184 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). The conveyance along the Gulf shoreline thus does not include submerged land or land seaward of the mean higher high-tide line. See John & Stella Kenedy Mem’l Found., 90 S.W.3d at 270, 280; Luttes, 324 S.W.2d at 175; see also Lorino, 175 S.W.2d at 414 (holding that Galveston City Council lacked power to grant exclusive rights to Gulf shore and surf for operation of private bathhouse because Menard Grant “stops with the shore,” leaving right to enjoyment of waters and shores of Gulf to state and its citizens). “The soil covered by the bays, inlets and arms of the Gulf of Mexico within tidewater limits belongs to the State, and constitutes public property that is held in trust for the use and benefit of all people.” Id. at 413.

Texas law recognizes that littoral boundaries can shift over time. “[W]hen the location of the margin or bed of a body of water that constitutes the boundary of a tract of land is gradually and imperceptibly changed or shifted . . ., the margin or bed of the body of water, as so changed, remains the boundary line of the tract, which is extended or restricted accordingly.” Brainard v. State, 12 S.W.3d 6, 17‑18 (Tex. 1999); see TH Invs., 218 S.W.3d at 185 (observing that boundary established by tideline moves over time and that “the location of the shoreline, wherever it may be at any given time, represents the boundary of a littoral owner’s property”); Natland Corp. v. Baker’s Port, Inc., 865 S.W.2d 52, 57 (Tex. App.—Corpus Christi 1993, writ denied) (observing that “an upland owner acquires or loses title to the land gradually or imperceptibly added to or taken from his shoreline”); City of Corpus Christi v. Davis, 622 S.W.2d 640, 642, 644 (Tex. App.—Austin 1981, writ ref’d n.r.e.) (noting that landward advance of tide and attendant shoreline erosion causes upland owner to lose title to state when dry land becomes submerged) (citing State v. Balli, 190 S.W.2d 71, 100 (Tex. 1944)). As a result of these forces, what was once dry land conveyed by the Menard Grant has returned to state ownership as the mean higher high-tide line reaches further inland. See TH Invs., 218 S.W.3d at 195 (holding that state gained ownership of tract that became submerged through indistinguishable effects of erosion and subsidence).

The State could not divest itself of title to any submerged land by facilitating the replenishment of the beaches on that land. “Accretions along the shores of the Gulf of Mexico and bays which have been added by artificial means do not belong to the upland owners, but remain the property of the State.” Lorino, 175 S.W.2d at 414; accord Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592, 2611 (2010) (Florida law); see Davis, 622 S.W.2d at 646 (applying presumption that state holds title to land covered by sea when reclamation project began).

D. Conclusion

The State’s evidence proves, as a matter of law, its entitlement to the submerged land it claims, because the Porrettos’ title is valid only to the meanders—their title stops short of any submerged land. We therefore hold that the trial court erred in declaring the Porrettos to be owners of the submerged land and in denying the State’s amended plea to the jurisdiction on the Porrettos’ claims for a declaration of title.

II. Inverse Condemnation Claims

The State also challenges the legal sufficiency of the evidence that the State’s actions with respect to Porretto Beach or PBW constituted a taking. The Texas Constitution prohibits the taking of private property for public use without adequate compensation. Tex. Const. art. I, § 17. If the government appropriates private property without paying adequate compensation, the property owner may recover the resulting damages in an inverse condemnation suit. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). “An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner’s right to use and enjoy the property, such as by restricting access or denying a permit for development.” Id.

Whether government action amounts to a taking is a question of law that we review de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) (whether zoning ordinance constituted compensable taking); State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (whether property owners could seek compensation for diminution in value of property caused by impaired access after receiving compensation for value of land taken). To amount to a regulatory taking, the governmental action must, at a minimum, create a “current, direct restriction on the property’s use.” Westgate, 843 S.W.2d at 452. “[P]ublicly targeting a property for condemnation, resulting in economic damage to the owner, generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property.” Id. at 453.

A. The takings evidence

As support for their takings claims, the Porrettos point to the GLO’s actions in:

(1) Representing, in June 23, 1997 correspondence from its staff attorney concerning proposed jet ski concessions, that “the State does not recognize any claim of private ownership of land in front of the seawall,” and that the State owned all the land covered by the Beach Replenishment Project, in front of (seaward of) the seawall;

(2) Notifying Galveston County Appraisal District that “there are no private beach owners south of the seawall” during an October 1997 Galveston Park Board meeting;

(3) Authoring, through senior deputy commissioner and general counsel, an editorial published in the Galveston County Daily News in July 1997, claiming all beaches in front of the Galveston seawall as state-owned property;

(4) Executing a lease of submerged land, as grantor, to the City of Galveston;

(5) Requesting that the State be substituted as the owner of portions of the property in the Galveston County real property records; and

(6) Claiming state ownership of the property in this court proceeding.

The trial court determined, however, that the takings occurred on specific dates: October 13, 1994—the date the State leased the submerged property to the City of Galveston for the beach renourishment project—for PBW, and June 23, 1997—the date of the correspondence from the GLO staff attorney about the proposed jet ski concession—for Porretto Beach. The jury’s fair market value findings for the properties also hinge on these dates. We therefore determine whether the specific acts occurring on these dates support the taking claims. Cf. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (observing that, absent objection, court must measure sufficiency of evidence under charge submitted).

B. Analysis

With respect to PBW, we agree with the State that its lease to the City is no evidence of a taking. The October 13, 1994 lease expressly declares the parties’ intent for the establishment of a public recreation area on the “state-owned submerged lands” improved by the beach renourishment project. The Porrettos may assert a claim of title only for the property above the mean higher high-tide line, which the State does not claim to own, and its lease does not purport to convey.

With respect to the remainder of Porretto Beach, the June 23, 1997 correspondence authored by the GLO staff attorney is not the kind of direct restriction on use of the property that supports an inverse condemnation claim, particularly here, where the State later expressly disavowed any claim to land other than the submerged land to which it was entitled. See Westgate, 843 S.W.2d at 453; see also TCI West End, Inc. v. City of Dallas, 274 S.W.3d 913, 918 (Tex. App.—Dallas 2008, no pet.) (Texas Historical Commission’s lawsuit to enforce statutory right to seek damages for destruction of historic structure or property did not constitute act to support regulatory takings claim; suit did not allege facts sufficient to show Commission’s lawsuit caused private property owner to suffer physical invasion of property or destroyed all economically viable use of property; possibility that trial court might create constructive trust sometime in future does not destroy all economical viable use of property, nor does it unreasonably interfere with owner’s use and enjoyment of property); Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 396 & n.6 (Tex. App.—Fort Worth 2008, no pet.) (observing that city employees’ and officials’ statements to press and/or to community that plaintiff was absentee owner whose property was “mismanaged, unsafe for habitation, crime-ridden or otherwise not suitable as apartment dwellings [and was] going to be closed or condemned,” and exclusion of plaintiff’s apartments from city’s list of available housing for hurricane evacuees were not regulatory acts that could provide basis for regulatory takings claim); Wilkinson v. Dallas/Fort Worth Int’l Airport Bd., 54 S.W.3d 1, 14–15 (Tex. App.—Dallas 2001, pet. denied) (holding that allegations that included bad faith and premature announcement of runway expansion project, refusal to include certain landowners in mitigation program, and destruction of areas adjacent to appellants’ neighborhood, all of which decreased market value of appellants’ property, did not amount to physical or legal restriction of property use required for inverse condemnation claim).

As we noted in Porretto I, the title is central to the Porrettos’ claims, as they bear the burden to prove that they own the property allegedly taken by the State. 251 S.W.3d at 711; see Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 617, 644 (Tex. 2004) (“It is fundamental that, to recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken.”). The record does not identify the specific portion and value, if any, of the Porrettos’ property that the State allegedly took. Essential to the regulatory takings analysis is whether the privately-held strip of land has any economically viable use, that is, whether the property owner has any distinct investment-backed expectations for its development. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 672 (Tex. 2004) (quoting Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646 (1978)); Mayhew, 964 S.W.2d at 936 (“[A] regulatory taking occurs when governmental regulations deprive the owner of all economically viable use of the property or totally destroy the property’s value.”); see also Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 641 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Texas Bay Cherry Hill, L.P., 257 S.W.3d at 396 (holding that, even assuming city’s adoption of redevelopment plan was regulation, it did not constitute taking; plan did not compel property owner to suffer physical invasion of its property or deprive owner of all economically viable use of property, nor did it constitute unreasonable interference with owner’s right to use and enjoy property). The contours of the Porrettos’ private holding as well as any pre-existing public easements and restrictions on its development all factor into this analysis. See Sheffield Dev. Co., 140 S.W.3d at 672–73 (quoting Mayhew, 964 S.W.2d at 93–33); see generally Gulf View Courts, Inc. v. Galveston Cnty., 150 S.W.2d 872, 873 (Tex. Civ. App.—Galveston 1941, writ ref’d) (affirming injunction requiring private beach owners to remove permanent buildings from County’s seawall easement and declaration that County had right to maintain sand dump on its right-of-way). The Porrettos’ takings claim, without any evidence of their ownership interest and the State’s invasion of it, cannot stand.

The State’s use of state-owned submerged land does not effect a taking. Neither the State’s lease of the land nor the GLO’s letter supports the Porrettos’ takings claims. The record does not elsewhere identify the property actually owned by the Porrettos or contain any evidence that government action by the State deprived them of the use of their property, as opposed to state use of State-owned submerged land. The character of the lease—to allow for a beach replenishment project on submerged land—does not restore to the Porrettos the submerged land they lost by time and tide. More than a half century ago, the Texas Supreme Court held that artificial accretions to submerged land inure to the benefit of the State. Lorino, 175 S.W.2d at 414. Accordingly, the Porrettos have failed to establish that the State took their private property for public use without adequate compensation in violation of article I, section 17 of the Texas Constitution. See Mayhew, 964 S.W.2d at 937–38 (reversing and rendering judgment against plaintiffs on inverse condemnation claim because fact findings made by trial court after bench trial and relied on by plaintiffs were insufficient to constitute taking). We reverse the trial court’s judgment on Porrettos’ inverse condemnation claims against the State and render judgment that they take nothing on those claims.

III. Ripeness of Open Beaches Act Challenge

According to the State, the trial court erred in granting declaratory relief on the Porrettos’ constitutional challenge to the Open Beaches Act because it was not ripe for decision. “Ripeness is an element of subject matter jurisdiction.” Mayhew, 64 S.W.2d at 928. In considering whether a claim is ripe, we consider whether, at the time a lawsuit is filed, the facts are sufficiently developed “so that an injury has occurred or is likely to occur, rather than being contingent or remote.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000) (quoting Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439, 442 (Tex. 1998)); Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 138–39 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A claim is not ripe if it concerns “uncertain or contingent future events that may not occur as anticipated or may not occur at all.” Gibson, 22 S.W.3d at 852 (quoting Patterson, 971 S.W.2d at 442). “A case is not ripe when determining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass.” Id. (citing Patterson, 971 S.W.2d at 443). A threat of harm can constitute a concrete injury, but the threat must be “direct and immediate” rather than conjectural, hypothetical, or remote. Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 152, 87 S. Ct. 1507 (1967)).

The Porrettos have not identified any property right threatened with imminent injury or injured by the statutory recognition of the public’s right to unrestricted access to the Gulf shore along state-owned beaches or where the public has “acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public.” Tex. Nat. Resource Code Ann. § 61.011(a) (West 2001). The Open Beaches Act does not create a public beach easement where none exists. Brannan v. State, No. 01-08-00179-CV, 2010 WL 375921, at *9 (Tex. App.—Houston Feb. 4, 2010, pet. filed) (mem. op. on reh’g) (citing Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App.—Austin 1989, writ denied)). In the trial court, the Porrettos did not identify any property right they currently hold and held before the enactment of the Open Beaches Act that has been threatened or lost as a result of its application. We therefore hold that subject-matter jurisdiction does not exist over the Porrettos’ challenge to the Open Beaches Act.

IV. Discovery Sanctions

The State also challenges the trial court’s imposition of sanctions requiring the State to pay the Porrettos’ attorney’s fees and expenses based on a finding of discovery abuse. We review the imposition of sanctions for an abuse of discretion. A trial court abuses its discretion if it issues a discovery sanction in an arbitrary or unreasonable manner, or without reference to guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding).

Approximately six weeks before trial, the Porrettos served the State with a request for production. The parties made arrangements for the Porrettos’ attorneys to visit the GLO offices in Austin, and the State gave them access to review its archived correspondence and other materials kept in the ordinary course of business. The State did not conduct a previous search through its archives to select responsive documents and organize them according to each request. In their motion for sanctions, the Porrettos complained of the State’s failure to review its own files and select responsive documents.

Texas Rule of Civil Procedure 196.3 governs the production of documents and tangible things during the discovery process. With respect to the organization of produced materials, the rule provides that “[t]he responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.” Tex. R. Civ. P. 196.3(c). Much as a trial court cannot compel a party to create indices or reduce information to tangible form in response to a request for production, a trial court cannot sanction a party for failing to organize responsive materials according to the method its opponent prefers when the discovery response complies with an alternate method permitted under the rules. Cf. In re Colonial Pipeline Co., 968 S.W.2d at 941 (holding that trial court abused its discretion in ordering party to produce inventory in response to request for production); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 73 n.2 (Tex. 1989) (declaring that rule governing requests for production “cannot be used to force a party to make lists or reduce information to tangible form”). Because the State’s response to the Porrettos’ request for production did not violate the discovery rules, the trial court abused its discretion in imposing sanctions.

Conclusion

We hold that the trial court erred in denying the State’s amended plea to the jurisdiction with respect to the submerged land formerly held by the Porrettos, because the State adduced evidence that it is the owner of that submerged land. Accordingly, we dismiss for lack of jurisdiction the Porrettos’ claims against the GLO and Commissioner Patterson seeking a declaration of title. We further hold that the Porrettos’ inverse condemnation claims with respect to land above the mean higher high-tide line are without merit, because the state actions challenged were not takings, and no legally sufficient evidence accurately identifies or values their private property interest, nor the State’s encroachment of it. We hold that the trial court also lacked subject-matter jurisdiction over the Porrettos’ constitutional challenge to the Open Beaches Act. We therefore reverse the judgment and (1) dismiss for lack of subject-matter jurisdiction the Porrettos’ title claims and their Open Beaches Act challenge; and (2) render judgment that the Porrettos take nothing on their inverse condemnation claims. Finally, we hold that the trial court erred in imposing discovery sanctions on the State and, therefore, reverse the award of attorney’s fees assessed as sanctions against the State.

Jane Bland

Justice

Panel consists of Justices Keyes, Higley, and Bland.
[1] Henry Porretto died while this case has been pending. His daughter Sonya Porretto is the current owner of the property and assignee of her mother’s claims.

[2] In Porretto I, the Porrettos also asserted takings claims against certain Galveston municipal authorities in connection with beach concession agreements. See Porretto v. Patterson, 251 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We do not address either these claims or the alleged actions underlying them, as the Galveston authorities are not parties to this appeal.

[3] The Texas coast experiences two high tides daily, one of which is higher than the other. The mean high tide—used for calculating a shoreline boundary under the Texas common law—is an average, over the 18.6-year tidal cycle, of the tidal boundary’s location using a calculation that accounts for the daily reach of both tides. The mean higher high-tide line—used in the civil law applicable to Spanish and Mexican land grants, as well as those of the Republic of Texas—is an average, over the 18.6-year tidal cycle, of the tidal boundary using a calculation that accounts only for the daily location of the higher high tide. See John & Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 272 (Tex. 2002). “[T]he vertical difference between these two tidal datum planes is very slight along the Texas coast, varying from zero in many inland bays to about 0.1 foot along the open Gulf coast.” William Gardner Winters, Jr., The Shoreline for Spanish and Mexican Grants in Texas, 38 Tex. L. Rev. 523, 530 (1960) (citing Texas Surveyors Ass’n, Report of Riparian Boundary Committee (Mar. 21, 1957)).

Personal jurisdiction challenge can be waived even with special appearance on file

2011-12-15T23:45:00.002-06:00

In a protective order case against a resident of another state, Houston's First Court of Appeals today makes clear that it is not enough to just file a special appearance under the relevant rule to contest personal jurisdiction. The plea must also be heard and ruled upon. If the nonresident defendant shows up for court and participates with the special appearance merely on file, he has made a general appearance and waived the personal jurisdiction issue. Unlike subject-matter jurisdiction, in-personam jurisdiction can be waived.

CHALLENGING IN-PERSONAM JURISDICTION BY SPECIAL APPEARANCE

A [nonresident / foreign / out-of-state Defendant] may challenge personal jurisdiction by filing a special appearance. TEX. R. CIV. P. 120a; see Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985). But a special appearance is waived by participation in the trial. See TEX. R. CIV. P. 120a(1) (“Every appearance, prior to judgment, not in compliance with this rule is a general appearance.”); Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 875 (Tex. App.—Texarkana 2008, no pet.); see also Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (“[A] party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.”).

“A specially appearing defendant may not go to trial on the merits of the case without first obtaining a ruling on his special appearance.” Milacron, 262 S.W.3d at 875. “For this reason, Rule 120a requires that the specially appearing defendant timely request a hearing, specifically bring that request to the trial court’s attention, and secure a ruling on the preliminary question of personal jurisdiction.” Id. at 875–76 (citing TEX. R. CIV. P. 120a).

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT  - 01-10-00604-CV - 12/15/11

[Respondent] filed a special appearance, but the record does not reflect any ruling on the special appearance. [Respondent] contends that the lack of a record showing the trial court’s denial of his special appearance is not fatal to his complaint on appeal, relying on Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782–84 (Tex. 2005). That case is inapposite. There was no issue in Michiana about whether the trial court actually had denied the special appearance, see Michiana, 168 S.W.3d at 781, and the error-preservation issue addressed by the Texas Supreme Court related to the failure to obtain a record of the non-evidentiary special-appearance hearing, see id. at 781–84. Thus, because the record does not reflect that [Respondent] obtained a ruling on his special appearance before he appeared and testified at trial, his jurisdictional objection is waived. See TEX. R. CIV. P. 120a; Milacron, 262 S.W.3d at 876. We therefore hold that he has waived his first issue on appeal.

Default judgment and un-liquidated damages: What is deemed admitted?

2011-12-15T23:21:00.002-06:00

Default judgment may be granted when the Defendant was properly served, but failed to answer; but whether evidence on damages is required depends on whether the damages are liquidated. In a case decided today, Houston's First Court of Appeals holds that the Plaintiff, who obtained injunctive relief by default, did not prove monetary lost-profit damages when he moved for default judgment. When he attempted to do that in connection with his motion for new trial, it was too late. Nor did he challenge the denial of the new trial motion on appeal.

OPINION EXCERT WITH RELEVANT CASELAW

When a no-answer default is entered against a party on an unliquidated claim, the non-answering party is deemed to have admitted all facts properly pleaded, except for the amount of damages. Texas Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex App.—Houston [14th Dist.] 2007, no pet.).

“After a default judgment occurs, unliquidated damages, i.e., damages not expressly provided for within a written instrument, must be proven to the trial court.” Lucas v. Clark, 347 S.W.3d 800, 803 (Tex. App.—Austin 2011, no pet.) (citing Tex. R. Civ. P. 243). Unliquidated damages can be proved up through an evidentiary hearing or with affidavits. Texas Commerce Bank, Nat’l Ass’n, 3 S.W.3d at 517.

“Recovery for unliquidated damages in the form of lost profits . . . requires that the injured party do more than show that it suffered some lost profits.” Lucas, 347 S.W.3d at 803. The amount of the loss must be shown by competent evidence with reasonable certainty. Heine, 835 S.W.2d at 84. To meet this reasonably-certain-evidence standard, opinions or estimates of lost profits must, at a minimum, be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Id.

ANALYSIS

Larry complains that he requested in his petition an award of actual damages “in an amount within the jurisdictional limits of this Court,” but was not awarded lost profit damages by the trial court. Absent special exceptions, a plaintiff’s request for an award of damages “within the jurisdictional limits of the court” is sufficient to provide notice pleading of a claim for unliquidated damages. Tex. R. Civ. P. 47; see also Cont’l Sav. Ass’n v. Gutheinz, 718 S.W.2d 377, 383 (Tex. App.—Amarillo 1986, writ ref’d n.r.e.) (“[T]he pleadings met the requirement to state that the damages sought exceed the minimum jurisdictional limits of the court.”).

Whether Larry pleaded actual damages, however, is not the relevant inquiry because pleadings cannot prove up unliquidated damages in a default judgment. See Tex. R. Civ. P. 243. In his motion for default judgment, Larry did not request an award of damages. He also failed to provide any evidence of lost profit damages at the default judgment hearing or with supporting affidavits.

The trial court did not err by not awarding unliquidated lost profits damages to Larry that were not requested nor proven up with evidence.

Larry purported to prove up his lost profits for the first time with an affidavit attached to his motion for new trial. We need not address the deficiencies in that evidence or whether Larry otherwise satisfied the requirements for obtaining a new trial based on new evidence[2] because Larry does not argue here that the trial court abused its discretion by denying his motion for new trial.

For full opinion and case style, click below.

Opinion issued December 15, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00943-CV

———————————

James Larry, Appellant

City of PRAIRIE View Board of Adjustment & Appeals, Appellee

On Appeal from the 506th District Court

Waller County, Texas

Trial Court Case No. 06-09-18499

MEMORANDUM OPINION

Plaintiff-appellant James Larry appeals the trial court’s failure to award damages in conjunction with a default judgment rendered against defendant-appellee City of Prairie View Board of Adjustment & Appeals (Prairie View Board). We affirm.

BACKGROUND

Larry sued the Prairie View Board alleging that it did not follow the proper procedures for deeming a building he owns “substandard” and ordering it be demolished.

A. Larry’s Claims

Larry’s verified Original Petition, filed September 29, 2006, asserts that

(1) he was not given information about why his building was considered substandard, and (2) he was improperly denied the opportunity to repair the building to remedy any code violations. According to Larry, the Prairie View Board’s actions with respect to his property violated the Prairie View Code of Ordinances and were thus illegal and violated his due process rights.

B. Requested Relief

Larry’s petition contained the following prayer for relief:

WHEREFORE, Plaintiff’s [sic] pray that the Defendant be duly cited to appear and answer herein; that upon a final trial of this cause, Plaintiff is granted an injunction to prevent the demolition of said premises and

1. Judgment against Defendants for Plaintiff’s damages as set forth above, in an amount within the jurisdictional limits of this Court;

2. Costs of court;

3. Attorney’s fees; and

4. Such other and further relief to which Plaintiff’s [sic] may be entitled.

C. Larry’s Motion for Default Judgment

In 2010, Larry filed a motion for default judgment alleging that the Prairie View Board had failed to answer after being properly served and requesting that “the court grant[] this Motion for Default Judgment and enter a default judgment against the Defendant.” Attached to this motion was (1) proof of service on the Prairie View Board, and (2) an affidavit setting forth the details and dates of Larry’s various communications with the Prairie View Board’s representatives and stating that the “actions and lack of response by the City of Prairie View has affected the normal operations of my business activities since 2006.”

D. The Trial Court’s Judgment

On August 31, 2010, the trial court held a hearing on Larry’s motion for default judgment. Larry appeared and announced ready. No one appeared on behalf of the Prairie View Board. Without hearing evidence, the court deemed the allegations in Larry’s petition admitted and ruled that “plaintiff is entitled to an injunction as prayed for.” It thus ordered that the Prairie View Board “desist and refrain from demolishing” Larry’s building “until defendant has complied with the provisions of the Substandard Building Code as adopted by the City of Prairie View City Council.” The court’s judgment did not award damages, as “[n]o damages ha[d] been prayed for, nor presented, nor proven.”

E. Larry’s Motion for New Trial

Larry filed a motion for new trial stating that he had “previously prayed for damages in his Original Petition,” but “inadvertently did not include an affidavit concerning damages with his motion for default judgment.” He attached an affidavit “concerning damages” and requested that the court grant his motion for new trial and “enter a new default judgment which includes an award of damages to Plaintiff.” The attached affidavit stated that “the actions and lack of response by the City of Prairie View has affected the normal operations of my business activities since 2006.” It further averred that he had operated a towing business out of his building and that he had “suffered lost profits of at least $4,234,862 from [his] inability to operate his towing business” since 2006.[1] The motion was overruled by operation of law.

PARTIES’ ARGUMENTS

Larry brings two issues on appeal:

1. Did the City of Prairie View Board of Adjustment & Appeals violate James Larry’s due process rights, thereby causing damages?

2. Did the Trial Judge deny James Larry damages, caused by the City of Prairie View Board of Adjustments & Appeals, which were prayed for in his original petition?

Larry contends that the Prairie View Board improperly interfered with his business operations by ordering his building demolished and depriving him of an avenue to resolve the dispute. He argues that he prayed for damages in his petition that the trial court should have awarded to him in the default judgment. He thus requests that this Court award him $4,234,862.

In response, the Prairie View Board asserts that Larry’s request in his petition that he be awarded “damages as set forth above in an amount within the jurisdictional limits of this Court” was insufficient to provide fair notice of the damages Larry sought. It points out that there are no damages “set forth above” in the petition. It thus requests that we affirm the trial court’s judgment.

APPLICABLE LAW

When a no-answer default is entered against a party on an unliquidated claim, the non-answering party is deemed to have admitted all facts properly pleaded, except for the amount of damages. Texas Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex App.—Houston [14th Dist.] 2007, no pet.).

“After a default judgment occurs, unliquidated damages, i.e., damages not expressly provided for within a written instrument, must be proven to the trial court.” Lucas v. Clark, 347 S.W.3d 800, 803 (Tex. App.—Austin 2011, no pet.) (citing Tex. R. Civ. P. 243). Unliquidated damages can be proved up through an evidentiary hearing or with affidavits. Texas Commerce Bank, Nat’l Ass’n, 3 S.W.3d at 517.

“Recovery for unliquidated damages in the form of lost profits . . . requires that the injured party do more than show that it suffered some lost profits.” Lucas, 347 S.W.3d at 803. The amount of the loss must be shown by competent evidence with reasonable certainty. Heine, 835 S.W.2d at 84. To meet this reasonably-certain-evidence standard, opinions or estimates of lost profits must, at a minimum, be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Id.

ANALYSIS

Larry complains that he requested in his petition an award of actual damages “in an amount within the jurisdictional limits of this Court,” but was not awarded lost profit damages by the trial court. Absent special exceptions, a plaintiff’s request for an award of damages “within the jurisdictional limits of the court” is sufficient to provide notice pleading of a claim for unliquidated damages. Tex. R. Civ. P. 47; see also Cont’l Sav. Ass’n v. Gutheinz, 718 S.W.2d 377, 383 (Tex. App.—Amarillo 1986, writ ref’d n.r.e.) (“[T]he pleadings met the requirement to state that the damages sought exceed the minimum jurisdictional limits of the court.”).

Whether Larry pleaded actual damages, however, is not the relevant inquiry because pleadings cannot prove up unliquidated damages in a default judgment. See Tex. R. Civ. P. 243. In his motion for default judgment, Larry did not request an award of damages. He also failed to provide any evidence of lost profit damages at the default judgment hearing or with supporting affidavits.

The trial court did not err by not awarding unliquidated lost profits damages to Larry that were not requested nor proven up with evidence. Larry purported to prove up his lost profits for the first time with an affidavit attached to his motion for new trial. We need not address the deficiencies in that evidence or whether Larry otherwise satisfied the requirements for obtaining a new trial based on new evidence[2] because Larry does not argue here that the trial court abused its discretion by denying his motion for new trial.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice

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

--------------------------------------------------------------------------------

[1] The affidavit references attached “financial statements.” It is not apparent, however, if or how the lost profits amount of $4,234,862 was derived from the attached one-page income statement for Black Cat Towing and Recovery reflecting revenues, expenses, and net income before taxes for the years 2002–2005.

[2] See, e.g., Chapman v. Abbot, 251 S.W.3d 612, 620 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“A party who seeks a new trial on the ground of newly discovered evidence must satisfy the court that (1) the evidence has come to his knowledge since the trial, (2) it was not owing to want of due diligence that the evidence did not come to his attention sooner, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted.”).

Are res judicata and collateral estoppel one and the same?

2011-12-15T22:44:00.001-06:00

Court of appeals says res judicata and collateral estoppel are separate and distinct bases for summary judgment. Therefore, if the trial court grants summary judgment on both (or does not say which), the appellant may lose on appeal if he or she focuses only on one ground, but neglects to challenge and brief the other. In a case in which the First Court of Appeals issued a new opinion (on motion for rehearing) today, it would not have made a difference. But next time, it may.

McSchaffry v. Amegy Bank NA (Tex. App. - Houston [1st Dist.] Dec. 15, 2011, no pet. h.)(Opinion by Justice Jane Bland)

Mark McShaffry v. Amegy Bank National Association; Amegy Corporation; LBM-Jones Road, L.P; LBM-Jones Road GP, Inc; WDJ Management, LLC; Gerald Peter Jacob and Lee Gittleman -- Appeal from 125th District Court of Harris County (Hon. Kyle Carter)

EXCERPT FROM OPINION ON MOTION FOR REHEARING BY JUSTICE BLAND

When multiple grounds for summary judgment exist and the trial court does not specify the ground on which it granted summary judgment, an appellant must negate on appeal all possible grounds. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each possible ground upon which the judgment may have been granted, an appellate court must uphold the summary judgment. See Ellis, 68 S.W.3d at 898. An appellant also may assert a general complaint that the trial court erred in granting summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). McShaffry, however, makes no such assertion.

LBM moved for summary judgment against McShaffry on the grounds of res judicata and collateral estoppel. Res judicata and collateral estoppel are independent affirmative defenses. Because the order granting summary judgment did not specify the particular grounds on which it was rendered; McShaffry must defeat each of these grounds. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Res judicata has been used as a broad term for the related concepts of claim preclusion (res judicata) and issue preclusion (collateral etoppel). Barnes v. United States Parcel Serv., Inc., No. 01-09-00648-CV, 2010 WL 6808024, at *4 (Tex. App. Houston—[1st Dist.] June 23, 2011); see Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). However, within this doctrinal umbrella there are two distinct legal theories—namely res judicata and collateral estoppel. Barr, 837 at 628. Res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated in a prior lawsuit. Id. Collateral estoppel, or issue preclusion, prevents relitigation of a fact issue resolved in a prior dispute. Id. Although claim preclusion and issue preclusion are related concepts, each provides a distinct affirmative defense. Therefore, McShaffry must negate on appeal both grounds upon which the trial court’s judgment may have been granted.

We conclude that McShaffry has not briefed the alternative ground of collateral estoppel. See Williams v. Crum & Forster Commercial Ins., 915 S.W.2d 39, 42–43 (Tex. App.—Dallas 1995) (noting that issue is waived when appellant fails to cite legal authority in support of issue, as required by rules of appellate procedure, and thereby affirming summary judgment because appellant had not properly challenged each ground asserted in support of summary judgment), rev’d on other grounds, 955 S.W.2d 267 (Tex. 1997). McShaffry confines his appeal to res judicata, asserting that “[t]he trial court erred in granting Appellees’ res judicata Motion for Summary Judgment because McShaffry did not have a claim against Appellees until after the trial court entered a Judgment resolving all claims against all parties in the previous lawsuit.” McShaffry offers no legal analysis, argument, citations to the record, nor any authorities to support his contention on appeal that his claims are not barred by collateral estoppel. See TEX. R. APP. P. 38.1(h). Because the trial court could have granted summary judgment on the basis that McShaffry’s claims were barred by either res judicata or collateral estoppel, and McShaffry did not brief the collateral estoppel ground, we must affirm the summary judgment. See Ellis, 68 S.W.3d at 898; Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.—Houston [1st Dist.] June 7, 2007, no pet.) (mem. op.) (affirming summary judgment on collateral estoppel because appellant did not address it as possible ground for trial court’s summary judgment ruling); McIntyre v. Wilson, 50 S.W.3d 674, 681–82 (Tex. App.—Dallas 2001, pet. denied) (upholding summary judgment because trial court could have granted summary judgment on ground that appellant failed to adequately brief, by offering no discussion on issue, making passing reference to ground in other issues, and citing generally to law review article).

Nonetheless, we conclude that the trial court properly granted summary judgment based on res judicata. Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207. Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if: (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim; (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim; and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Judgments—except judgments void for lack of jurisdiction—are not subject to collateral attack; they may only be challenged on direct attack by appeal. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack, seeks to avoid the effect of a judgment in a later proceeding not instituted for the purpose of modifying or vacating the judgment, but instituted in order to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud claim was collateral attack on prior judgment); see Kendziorski v. Saunders, 191 S.W.3d 395, 408 (Tex. App.—Austin 2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). “[T]he prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable.” In re Cantu, 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing Glenn v. Dallas Cnty. Bois D’Arc Island Levee Dist., 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md., 564 S.W.2d 459, 462 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

McShaffry sued LBM alleging that LBM interfered with a contract between McShaffry, Brindsen and Gerow by settling with Brindsen and assigning the county court judgment to him. McShaffry also alleged that LBM engaged in fraud by procuring false testimony in the county court. According to McShaffry, Brindsen paid LBM to settle the breach of commercial lease claim in exchange for LBM’s participation in a county court trial. LBM then assigned the resulting judgment to Brindsen so that Brindsen could obtain more money from McShaffry than he could have under their agreement. In all material respects, McShaffry’s claims in this case attack the judgment against him in the county court, because each of them stems from allegations that LBM obtained perjured testimony, with Brindsen’s help, in the earlier suit. McShaffry was a party to the suit, but chose not to appear at the trial. McShaffry’s claims present a collateral attack on the county court judgment: they are in substance claims that the county court proceedings were intrinsically fraudulent. But he makes no showing that he could not raise have raised these claims before the county court, during the proceeding to which he was a party. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (holding that bondholders’ claims that directors fraudulently undervalued company in earlier bankruptcy proceeding were intrinsic to bankruptcy court’s order and collateral attack on the judgment); see also Henderson, 208 S.W.3d at 550 (holding that wife’s suit based on claims her ex husband and lawyers fraudulently mischaracterized property was collateral attack on prior judgment). Because McShaffry’s claims represent an attack on the integrity of the county court proceedings—proceedings that involved the same nucleus of operative facts and to which he was a party—his claims present an impermissible collateral attack and are res judicata. [1] See Browning, 165 S.W.3d at 346; see also Henderson, 208 S.W.3d at 550.

Conclusion

We conclude that the trial court’s judgment, as based on collateral estoppel grounds, was not challenged on appeal; the judgment may stand on this basis alone. Further, the trial court properly granted summary judgment based on the affirmative defense of res judicata. Accordingly, we affirm the judgment of the trial court.

Jane Bland

Justice

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

Dismissal of inmate’s suit affirmed for failure to follow procedure, but judgment clarified to show dismissal without prejudice

2011-12-13T23:13:00.001-06:00

Lawsuits brought by people who are in jail are subject to different rules, which are spelled out in Chapter 14 of the Civil Practice and Remedies Code. Noncompliance constitutes ground for dismissal without the need for a hearing even, but the dismissal should be without prejudice, as the First Court of Appeals makes clear in an opinion issued December 8, 2011.

The trial courts are given broad discretion to determine whether a suit brought by an inmate should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Williams v. Tex. Dep’t of Criminal Justice, 176 S.W.3d 590, 593 (Tex. App.—Tyler 2005, pet. denied). When a trial court does not state the basis for its dismissal, we will affirm the dismissal if it is proper under any legal theory. Walker v. Gonzales Cnty. Sheriff’s Dep’t, 35 S.W.3d 157, 162 (Tex. App.—Corpus Christi 2000, pet. denied).

Legal Principles

A party who is unable to afford trial court costs may file an affidavit of indigence that conforms with the requirements of Rule 145 of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 145(a), (b). An inmate who brings a suit in which he has filed an affidavit of indigence or an unsworn declaration of inability to pay costs must also comply with the procedural requirements set forth in Texas Civil Practice and Remedies Code Chapter 14. Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon Supp. 2011); Scott, 209 S.W.3d at 265.

Civil Practice and Remedies Code sections 14.004 and 14.006 require that an inmate file in the trial court, along with his affidavit of indigence or unsworn declaration of inability to pay costs, a certified copy of his inmate trust account statement. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004(c) (Vernon Supp. 2011), 14.006(f) (Vernon 2002). Section 14.006(f) requires that the inmate file a statement that “reflect[s] the balance of the account at the time the claim is filed and activity in the account during the six months preceding the date on which the claim is filed.” Tex. Civ. Prac. & Rem. Code Ann. § 14.006(f).

“A prisoner at a Texas Department of Criminal Justice [facility] who has no money or property is considered indigent.” McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.) (citing Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). However, “[a]n inmate who has funds in his trust account is not indigent.” Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 14.006(b)(1)). An inmate’s trust funds may be utilized for payment of costs. Id.

Failure to fulfill the Chapter 14 procedural requirements may result in the dismissal of the inmate’s suit before or after service of process. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(1), 14.006(h) (Vernon 2002); Scott, 209 S.W.3d at 265 (“A trial court may dismiss an inmate’s lawsuit for failing to comply with the procedural requirements of Chapter 14.”); Bell v. Texas Dep’t of Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)).

Dismissal

The record before us does not reflect that Yates filed a certified copy of his inmate trust account statement with his declaration of inability to pay costs in the trial court, as required. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(c), 14.006(f). The requirement to file a statement of the inmate trust account is mandatory, and Yates’s failure to file the statement is sufficient grounds for the trial court’s dismissal of his suit. See id. § 14.003(a); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see also Jedkins v. Varghese, No. 14-08-00895-CV, 2009 WL 5149877, at *2 (Tex. App.—Houston [14th Dist.] Dec. 31, 2009, no pet.) (mem.op., not designated for publication) (“Chapter 14 does not provide an inmate with the right to file a suit without the trust account statement, no matter the reason that the inmate has not provided it.”).

Yates complains that the trial court did not rule on his second affidavit of indigence, which he filed October 20, 2008. The record reflects, however, that the trial court had just days before, on October 6, 2008, ruled on Yates’s first declaration of indigence. See Tex. Civ. Prac. & Rem.Code Ann. § 14.004(c) (allowing unsworn declaration of inability to pay costs). In his brief on appeal, appellant acknowledges that his first “request to proceed without costs contained in [the] Petition was recognized by the trial court.” Moreover, the record reflects that Yates also failed to attach a copy of his inmate trust account to his second affidavit of indigence. After the trial court’s dismissal, appellant filed a statement of his inmate trust account in conjunction with his affidavit of indigence for costs on appeal.

In addition, appellant complains that the trial court failed to notify him of a deficiency in his declaration of inability to pay costs prior to dismissing his suit. Because a trial court may dismiss a suit that fails to comply with Chapter 14 either before or after service of process and without a hearing, a trial court has no duty to suggest or recommend that an appellant amend his pleading. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c); Hickman v. Adams, 35 S.W.3d 120, 125 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Because the trial court did not specify the grounds for dismissal, we will affirm the decision if any theory is meritorious. See Walker, 35 S.W.3d at 162. Because Yates failed to file a certified copy of his inmate trust account statement with his declaration of inability to pay costs in the trial court, as required, we hold that the trial court did not abuse its discretion by dismissing Yates’s suit. See Tex. Civ. Prac. & Rem.Code Ann. § 14.004(c), 14.006(f); Brown, 33 S.W.3d at 412.

Accordingly, we overrule appellant’s issue.

The dismissal order does not, however, state whether the dismissal is with or without prejudice. “Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided.” Brown, 33 S.W.3d at 412 (quoting Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). In the present case, dismissal without prejudice is proper. We modify the judgment to reflect that the cause is dismissed “without prejudice.”

Conclusion

As modified, the judgment is affirmed. We dismiss pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Sharp, and Brown.

SOURCT: FIRST COURT OF APPEALS – HOUSTON – CASE NO 01-09-00031-CV – OPINION OF 12/8/11

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

2011-12-08T14:05:00.001-06:00

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

2011-12-08T13:42:00.000-06:00

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

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

2011-12-07T22:15:00.002-06:00

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.); cf. TEX. 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

2011-12-07T22:07:00.001-06:00

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 sixty‑two 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 non‑resident 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. Kimberly‑Clark 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 non‑conforming 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 475‑76, 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

2011-12-07T21:52:00.001-06:00

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 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

2011-12-07T01:45:00.000-06:00

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.

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

2011-12-07T01:39:00.000-06:00

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

2011-12-07T01:27:00.000-06:00

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

　

Irregular service of lawsuit papers by certified mail and substituted service nixes default judgment on appeal

2011-11-21T15:03:00.003-06:00

Sometimes something can still be done about a default judgment even when the deadline for an ordinary appeal has expired, as an appellate opinion released by Houston's First Court of Appeals last week illustrates.

Default judgment set aside in restricted appeal based on defective service of lawsuit. Proof of service of process by certified mail lacked signature of defendant on green card and order for substituted service was not complied with. Citation and petition delivered to wrong person and affixed to incorrect door in an apartment complex.

No presumption that defendant was properly served.

A no-answer default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Hubicki, 226 S.W.3d at 407. In contrast to the usual rule that presumptions will be made in support of a judgment, when examining a default judgment, we accord no presumption of valid issuance, service, or return of citation. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam). Failure to strictly comply with the Rules of Civil Procedure renders any attempted service of process invalid and of no effect. Hubicki, 226 S.W.3d at 408; Wilson, 800 S.W.2d at 836.

Marcus Todd v. Sport Leasing & Financial Services Corp., Appellee,
NO. 01-10-00608-CV (Tex.App. - Houston [1st Dist.] Nov. 17, 2011, no pet. h.)

MEMORANDUM OPINION BY JUSTICE JANE BLAND

In this restricted appeal from a default judgment, Marcus Todd contends that he was not properly served with process, and thus lacked notice of the suit against him. We hold that the trial court erred in entering the default judgment because Sport Leasing & Financial Services Corporation ("Sport Leasing") did not strictly comply with the rules for service of process in the Texas Rules of Civil Procedure. We reverse the judgment of the trial court and remand for further proceedings.

BACKGROUND

In August 2006, Marcus Todd leased a 2005 BMW 530i from Nxcess Motorcars. Nxcess assigned Todd’s lease contract to Sport Leasing. In August 2009, Sport Leasing sued Todd to recover amounts due and owing under the lease agreement.

Sport Leasing attempted to serve Todd with notice of its suit at Todd’s address listed on the lease agreement: 4315 South Kirkwood #138, Houston, TX 77072 ("apartment 138"). After one unsuccessful attempt, the process server tried six times to serve Todd at his father’s apartment located in the same building ("apartment 104"). When the process server could not serve Todd in person, Sport Leasing moved for substituted service. The trial court granted Sport Leasing’s motion. It approved substituted service by: (1) delivering a copy of the citation and petition to anyone over sixteen years of age at apartment 138; or (2) attaching a copy of the citation and petition to the front door of apartment 138. The trial court did not authorize any other method or location for service. Nevertheless, when the process server issued service under the order authorizing substituted service of process at apartment 138, the process server posted the citation on apartment 104.

In addition to posting citation on apartment 104, Sport Leasing mailed a copy of the petition and citation to apartment 104, return receipt requested. Sport Leasing believed Todd lived at apartment 104 because the process server had indicated that Todd might live there instead of apartment 138. Sport Leasing certified that Todd’s last known address was apartment 104. A citation returned to Sport Leasing contained the signature of Arthur Todd, not Marcus Todd.

In March 2010, after receiving no answer to the underlying suit, Sport Leasing moved for entry of a default judgment against Todd. The trial court granted the motion, ordering Todd to pay principal and interest under the lease and Sport Leasing’s attorney’s fees. Todd never answered the suit or otherwise appeared in the trial court proceedings.

DISCUSSION

Appellate Jurisdiction

Rule 30 of the Texas Rules of Appellate Procedure provides that:

A party who did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).

Tex. R. App. P. 30. Todd appeals within six months of a default judgment and did not participate in the default judgment hearing or file any post-judgment motions or requests. He filed a notice of appeal within six months as required by Rule 26.1(c). Tex. R. App. P. 26.1(c). Accordingly, we determine whether error appears on the face of the record. Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007) (per curiam) (citing Wachovia Bank of Del. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007)).

Standard of Review

A no-answer default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Hubicki, 226 S.W.3d at 407. In contrast to the usual rule that presumptions will be made in support of a judgment, when examining a default judgment, we accord no presumption of valid issuance, service, or return of citation. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam). Failure to strictly comply with the Rules of Civil Procedure renders any attempted service of process invalid and of no effect. Hubicki, 226 S.W.3d at 408; Wilson, 800 S.W.2d at 836.

Analysis

Sport Leasing attempted to serve Todd by certified mail and substituted service. In both instances, Sports Leasing failed to strictly comply with the Texas Rules of Civil Procedure. First, Sport Leasing did not serve Todd by certified mail at the correct address and his signature does not appear on the return receipt. Second, Sport Leasing did not serve Todd under the court’s order authorizing substituted service because Sport Leasing posted its notice at a different apartment number from the number identified in the order. We address the governing rules for each method in turn.

(1) Mailing to apartment 104

Rule 106 of the Texas Rules of Civil Procedure provides:

Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized . . . by (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.

Tex. R. Civ. P. 106. If a defendant is served by certified mail under Rule 106(a)(2), then Rule 107 requires that "the return by the officer or authorized person must also contain the return receipt with the addressee’s signature." Tex. R. Civ. P. 107. Failure to affirmatively show strict compliance renders the attempted service of process invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. Several Texas courts have held that process is invalid where the face of the record shows that the addressee or a person designated to receive service did not sign the green slip. See id. (holding service invalid where registered agent named "Henry Bunting, Jr." but service delivered to "Henry Bunting"); see also Sw. Sec. Serv., Inc. v. Gamboa, 172 S.W.3d 90, 93 (Tex. App.—El Paso 2005, no pet.) (concluding that service directed to registered agent named "Jesus Morales" was invalid when signed for by "Guillermo Montes"); All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 727 (Tex. App.—Fort Worth 2003, no pet.) (holding that return receipt signed by "Mark," with illegible last name, was invalid, given Kelly Lynn Arreola was designated to receive service for defendant); Pharmakinetics Labs., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.—San Antonio 2001, no pet.) (holding service of process defective when receipt card was signed by someone other than registered agent); Bronze & Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29 (Tex.App.—Texarkana 1988, no writ) (same). "If someone other than the defendant named in the citation is served with process, the court [does] not secure jurisdiction over the named defendant." P&H Transp. v. Robinson, 930 S.W.2d 857, 860 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

The return receipt shows that Arthur J. Todd was served with a copy of Sport Leasing’s petition at apartment 104. The record does not indicate that Arthur Todd was authorized to accept service on behalf of Marcus Todd. Without evidence in the record supporting that Arthur Todd was authorized to accept service on Marcus Todd’s behalf, we may not presume that he was. Because Marcus Todd did not sign the return receipt and Arthur Todd was not authorized to accept service on his behalf, the record does not show that Sport Leasing strictly complied with the Rules of Civil Procedure. Accordingly, Sport Leasing did not accomplish service by mail.

(2) Substituted service under the trial court’s order

Rule 106(b) authorizes a court to order substituted service of process upon a proper showing that the plaintiff has been unable to serve the defendant through any default method listed in Rule 106(b). Tex. R. Civ. P. 106(b). When a court orders substituted service under Rule 106(b), the order itself provides the only authority for the substituted service. Berkefelt v. Jackson, No. 01-07-00526-CV, 2008 WL 4530693, at *1 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008) (mem. op., not designated for publication). As a result, "any deviation from the trial court’s order necessitates a reversal of the default judgment based on service." Id. (citing Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ)).

The trial court authorized Sport Leasing to serve Todd by affixing a copy of the citation to the door of apartment 138 or by delivering a copy of the petition and citation to any person over the age of sixteen at apartment 138. Sport Leasing was required to follow the trial court’s instructions exactly. However, instead of affixing the citation on apartment 138 as specified in the trial court’s order, Sport Leasing posted the citation on apartment 104. Accordingly, Sport Leasing did not comply with the trial court’s order substituting service of process. Failure to strictly comply with the trial court’s order is fatal. Because Sports Leasing affixed the citation to the wrong apartment, we hold that there is error on the face of the record and that Sport Leasing did not serve Todd under Rule 106(b).

CONCLUSION

We hold that neither service attempt in this case was valid. Accordingly, we reverse the default judgment and remand the case to the trial court for further proceedings.

Jane Bland

Justice

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

Caveat Appellant: Don't appeal a judgment without a Reporter's Record (unless its a summary judgment)

2011-11-16T23:32:00.002-06:00

Court of Appeals concludes that Appellant-Defendant did not preserve his objection to the trial court’s lack of a court reporter for appeal. In the absence of a record of the trial proceedings (a bench trial), appellant could not show that the trial court judge committed reversible error by denying his motion for new trial or in awarding attorney’s fees. Judgment for Plaintiff in sworn-account suit is accordingly affirmed

BACKGROUND

In September 2010, E&R Generation sued [Defendant] on a sworn account to recover unpaid invoices from a series of shoe shipments. Tex. R. Civ. P. 185. [Defendant] answered by an unverified general denial. [Defendant] also counterclaimed against E&R Generation for storage costs. Id. In January 2010, the trial court entered judgment in favor of E&R Generation for $89,396.10, plus $29,790.00 in attorney’s fees. [Defendant] timely filed a motion for new trial. In his motion for new trial, [Defendant] contended that he was unable to obtain competent counsel to properly defend his case. The motion was overruled by operation of law. Tex. R. Civ. P. 329b.

The appellate record does not contain a reporter’s record from the bench trial. A letter from the Official Court Reporter confirms that there is no record of any portion of the trial.

DISCUSSION

Failure to employ a court reporter

[Defendant] first asserts that the trial court erred, because it did not employ a court reporter during the trial as the law requires. Specifically, [Defendant] observes that Texas Government Code section 52.046 requires the court to appoint a court reporter to record the proceedings. Tex. Gov’t Code Ann. § 52.046(a) (West 2005).

A court reporter must transcribe court proceedings. Tex. Gov’t Code Ann. § 52.046(a). However, the parties may waive their right to a record. Tex. R. App. P. 13(a). In the absence of an express waiver, the failure to transcribe trial proceedings is error. In re Estate of Arrendell, 213 S.W.3d 496, 502 (Tex. App.—Texarkana 2006, no pet.) (court reporter’s failure to record proceedings constitutes error in the absence of an express waiver by parties); Reyes v. Credit Based Asset Serv. & Securitization, 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (court reporter’s failure to transcribe the proceedings in accordance with Tex. R. App. P. 33.1(a) is error). Nonetheless, to preserve this issue for appeal, the complaining party must object to the court reporter’s failure to record the proceedings. Tex. R. App. P. 33.1(a); Reyes, 190 S.W.3d at 740 ("[I]n order to preserve the error for appeal, a party has the burden of objecting to the court reporter’s failure to record the proceedings"); see Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 582 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (presuming sufficient evidence supporting judgment where defendant failed to request court reporter record county court bench trial).

[Defendant] contends that the trial court erred because his bench trial was not recorded, but raises this issue for the first time on appeal. He did not, for example, complain about the lack of a court reporter in his motion for new trial. In a similar case, this Court affirmed a trial court’s judgment—after a bench trial on the merits—because the party seeking reversal had not complained about the lack of a reporter in the trial court. Nicholson, 226 S.W.3d at 583. Because [Defendant] did not object to the absence of a court reporter either by motion or written objection in the trial court, we hold that he has failed to properly preserve the error. See Reyes, 190 S.W.3d at 740 (error not preserved without objection in the trial court); In re Estate of Arrendell, 213 S.W.3d at 502 (same).

Motion for New Trial

[Defendant] next asserts that the trial court abused its discretion when it overruled his motion for new trial. We review a trial court’s denial of a motion for a new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the abuse-of-discretion standard, we view the evidence in the light most favorable to the trial court’s actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

When no reporter’s record exists and the trial court has made no findings of fact, we presume that sufficient evidence supports the trial court’s judgment. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (holding that absent record, reviewing court must presume that evidence before trial court was adequate to support decision); Nicholson, 226 S.W.3d at 583 (assuming sufficient evidence supporting judgment in absence of reporter’s record). Without a reporter’s record, [Defendant] has not shown that the trial court abused its discretion in overruling the motion by operation of law. Moreover, with rare exception, a defendant is not entitled to court-appointed counsel in a civil case. Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003). Accordingly, we hold that the trial court did not abuse its discretion in overruling [Defendant]’s motion for new trial.

Attorney’s Fees

We review an award of attorney’s fees for abuse of discretion. Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). A decision to award attorney’s fees is an issue of fact. See Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex. App.—Corpus Christi 1989, writ denied); Magids v. Dorman, 430 S.W.2d 910, 912 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref. n.r.e.). "Where an appellant has not produced a record before this Court showing the evidence considered by the trial court in making the award, we cannot say that the trial court erred in the amount awarded." Houston Lighting & Power Co. v. Russo Props., Inc., 710 S.W.2d 711, 716 (Tex. App.—Houston [1st Dist.] 1986, no writ). Accordingly, we hold that the trial court did not abuse its discretion in awarding attorney’s fees.

Conclusion

[Defendant] objects to the absence of a court reporter for the first time on appeal. We conclude that, because [Defendant] did not challenge the lack of a reporter in the trial court, he has waived such a challenge on appeal. Without a record, we cannot find that the trial court abused its discretion in overruling [Defendant]’s motion for new trial or in awarding attorney’s fees. We therefore affirm the judgment of the trial court.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00044-CV - 11/10/11

Lack of Diligence: After more than 4 years, continuance for further discovery was not warranted in debt collection suit brought by Citibank

2011-11-16T23:03:00.000-06:00

After the debt collection case had been pending for longer than the limitations period, a continuance of hearing on Citibank's motion for summary judgment for the purpose of taking depositions was not warranted. So found the trial court and the court of appeals agreed. But the motion for continuance by the credit-card debtor/defendant also suffered from formal defects. It was not verified (sworn) as required.

Motion for Continuance

In his second issue,[Credit card holder/defendant] argues that the trial court erred in granting Citibank summary judgment because his motion for continuance "included an affidavit showing sufficient cause for the continuance."

We review for an abuse of discretion a trial court's decision to deny a motion for continuance. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The denial will be reversed only if the trial court acted in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 800 (Tex. 2002). The party complaining of an abuse of discretion has the burden to present a record showing the abuse. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

When a party contends that it has not had an adequate opportunity for discovery before a summary judgment, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing TEX. R. CIV. P. 166a(g)); see TEX. R. CIV. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or consent of the parties, or by operation of law."); TEX. R. CIV. P. 252 (providing, among other things, that if motion for continuance is filed on ground of "want of testimony," movant must present affidavit "showing the materiality" of such testimony and that he "used due diligence to procure such testimony" and "stating such diligence, and the cause of failure, if known"). If a motion for continuance is not verified or supported by affidavit, an appellate court must presume that the trial court did not abuse its discretion in denying the motion. City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd). The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.-Austin 2002, no pet.). If these requirements are met, then the appellate court considers three non-exclusive factors in determining the propriety of a trial court's ruling on a motion for continuance: (1) the length of time the case was on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance exercised due diligence to obtain the discovery sought. Joe, 145 S.W.3d at 161.

It is undisputed that[Credit card holder/defendant]'s motion for continuance was not verified and was not supported by an attached affidavit. However,[Credit card holder/defendant] argues that although his motion for continuance did not contain an affidavit "per se," his motion was supported by an affidavit attached to his summary-judgment response in which he listed "the names of the employees of Citibank whom he would seek to depose."

[Credit card holder/defendant] alleged in his motion for continuance that Citibank's representatives "had been effectively non-responsive" to his discovery requests and it was "unclear" whether Citibank's counsel had the "proper want of authority to prosecute this suit." Even assuming that we could consider[Credit card holder/defendant]'s affidavit attached to his summary-judgment response, this affidavit was deficient in multiple respects. See Rocha, 69 S.W.3d at 319. Despite his assertions on appeal, the record reflects that his affidavit did not list the names of the Citibank employees that he wanted to depose, describe the anticipated testimony of these representatives, or explain how such testimony was essential to his summary-judgment response. See West v. SMG, 318 S.W.3d 430, 443-44 (Tex. App.-Houston [1st Dist.] 2010, no pet.). [Credit card holder/defendant]'s motion for continuance also failed to show that he had used due diligence in procuring the desired depositions and that such testimony was material to his summary-judgment response. See TEX. R. CIV. P. 252.

As noted above, Citibank filed its summary-judgment motion more than four and one-half years after the case's commencement, providing [Credit card holder/defendant] more than enough time to conduct discovery and seek the aid of the trial court, if any, in compelling discovery. See Rest. Teams Int'l v. MG Secs. Corp., 95 S.W.3d 336, 339-41 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Accordingly, we hold that the trial court did not abuse its discretion in denying[Credit card holder/defendant]'s motion for continuance.

We overrule[Credit card holder/defendant]'s second issue.

SOURCE: First Court of Appeals Houston - No. 01-10-00768-CV 11/10/11

Claim of an informal marriage (aka "common law marriage") five years after man's death fails

2011-11-03T23:26:00.003-06:00

Landaverde v. Estate of Abedinzadeh (Tex.App.- Houston [14th Dist.] Nov. 1, 2011) (belated post-mortem claim of an informal marriage not successful)

In The

Fourteenth Court of Appeals

___________________

NO. 14-11-00143-CV

___________________

NOEMY LANDAVERDE, Appellant

THE ESTATE OF HABIBOLLAH ABEDINZADEH, Appellee

On Appeal from Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 358,163

M E MO R A N D U M O P I N I O N

Appellant, Noemy Landaverde, appeals a summary judgment on her claim to establish common-law marriage to Habibollah Abedinzadeh.

We affirm.

Although the summary judgment is partial in that it does not dispose of the entire probate
proceeding, we have jurisdiction to consider appellant‘s appeal because the proceeding to determine the propriety of appellant‘s common-law marriage claim is not a proceeding that may logically be considered a part of the complete heirship proceeding. See Tex. Prob. Code Ann. § 5(g); Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).2

Background

Habibollah Abedinzadeh died on July 8, 2005. On October 17, 2006, Mehdi
Abedinzadeb was appointed administrator of the estate. On January 20, 2010, appellant,
Noemy Landaverde, filed a notice of appearance, and asserted interest in the estate of
Abedinzadeh. Appellant alleged that she was the widow of Abedinzadeh having been
married to him for more than eight years through a common-law marriage.
On December 8, 2010, appellee, Maria de los Angels Ruiz, filed a motion for
traditional summary judgment and a motion for no-evidence summary judgment in which
she alleged appellant failed to produce evidence that she was married to Abedinzadeh, or
that there was no genuine issue of material fact as to whether appellant and Abedinzadeh
were married. Attached to the motion for summary judgment was appellant‘s deposition
in which she admitted that she had been ceremonially married to Fausto Ramirez on March
8, 2001. Appellant claimed to have been married by common-law marriage to
Abedinzadeh in 1992 when they began to live together. Also attached to the motion is a
warranty deed in which appellant and Ramirez purchased property as husband and wife.
Appellant produced no evidence in response to Ruiz‘s motion for summary judgment, and
on January 4, 2011, the trial court granted the summary judgment on no-evidence grounds.
On January 10, 2011, appellant filed a motion for rehearing of the motion for
summary judgment. Attached to her motion for rehearing is a ―Motion to Contest
Hearing,‖ in which appellant claimed she was married to Abedinzadeh pursuant to section
2.401(2) of the Texas Family Code, that all necessary documentation was filed with the
court to establish the marriage, and that she and Abedinzadeh lived together as husband
and wife and represented to others that they were married. She also stated that her
marriage to Ramirez was not legal because at the time she married Ramirez she was still
married to Abedinzadeh. In the clerk‘s record filed on appeal there is a copy of a United
States income tax return filed jointly by appellant and Abedinzadeh for the 2002 tax year.

The preparation date listed on the tax return is September 25, 2009.3
This tax return does not appear to have been part of appellant‘s summary-judgment
response. Also in the clerk‘s record is a letter from the Harris County Toll Road Authority
addressed to appellant and Abedinzadeh, dated June 15, 2000, giving notice that they have
outstanding tolls and charges.

Standard of Review

We review de novo a trial court‘s grant of summary judgment. Ferguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d. 642, 644 (Tex. 2009). In a no-evidence motion for
summary judgment, the movant must specifically state the elements as to which there is no
evidence. Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473–74 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). The trial court must grant the motion unless
the respondent produces summary-judgment evidence raising a genuine issue of material
fact. Tex. R. Civ. P. 166a(i). However, the respondent is ―‗not required to marshal its
proof; its response need only point out evidence that raises a fact issue on the challenged
elements.‘‖ Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (quoting Tex. R. Civ.
P. 166a cmt).

Under the traditional summary-judgment standard of review, a movant has the
burden to show there are no genuine issues of material fact, and she is entitled to judgment
as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A movant is entitled to summary judgment only if she
conclusively proves all essential elements of her claim. Johnston v. Crook, 93 S.W.3d
263, 273 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

If the proponent of the marriage does not commence a proceeding to prove the marriage within two years of the date on which the parties to the alleged marriage separated and ceased living together, there is a rebuttable presumption the parties did not enter into an agreement to be married. Tex. Fam. Code Ann. § 2.401(b); Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The effect of a presumption is to force the party against whom it operates to produce evidence to negate the presumption. General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993). At summary judgment, that means the resisting party must come forward with evidence
sufficient to neutralize the effect of the presumption in order to properly allow the case to proceed to trial. See, e.g., In re J.A.M., 945 S.W.2d 320, 323 (Tex. App.—San Antonio 1997, no writ) (affirming summary judgment where paternity test militated in mother‘s favor and father presented no evidence to rebut presumption of paternity).

Common-Law Marriage

In a single issue, appellant contends the trial court erred in granting summary judgment by failing to find that she rebutted the presumption in section 2.401 of the Texas Family Code.

Section 2.401 of the Texas Family Code provides in pertinent part:
(a) In a judicial, administrative, or other proceeding, the marriage of a man
and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this
subchapter; or
(2) the man and woman agreed to be married and after the agreement
they lived together in this state as husband and wife and there
represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by
Subsection (a)(2) is not commenced before the second anniversary of the
date on which the parties separated and ceased living together, it is rebuttably
presumed that the parties did not enter into an agreement to be married.
Tex. Fam. Code Ann. § 2.401(a)(2) & (b).

Appellant, as the proponent of the marriage, had the burden of proof on all elements. Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.—Dallas 2005, pet. denied). An agreement to be married may be established by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). In Russell, the supreme court considered the legislature‘s repeal in 1989 of a provision permitting agreement to be inferred from cohabitation and representations.

The court held that the repeal did not bar use of circumstantial evidence, bu
did require such evidence to be ―more convincing‖ than before:
If evidence of an express agreement to marry is not offered, the fact finder
will have to treat the facts of cohabitation and holding-out as circumstantial
evidence of the agreement in order to find a tacit agreement to be married.
This process is, however, virtually identical to the prior process of inference.
But by repealing the provision authorizing the fact-finder to infer an
agreement from proof of two elements of an informal marriage, the
legislature has not excluded a finding of a tacit agreement to be married. In
making such a finding, however, it seems that the evidence of holding-out
must be more convincing than before the 1989 [amendment].
Id. at 932.

Evidence of cohabitation and representations that the couple is married may
constitute circumstantial evidence of an agreement to be married, but ―the circumstances of
each case must be determined based upon its own facts.‖ Id. To establish the element of
an agreement to be married, the evidence must show the parties intended to have a present,
immediate, and permanent marital relationship and that they did in fact agree to be husband
and wife. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st Dist.] 1991,
writ denied).

The only arguable evidence in the record of an agreement to be married was
contained in appellant‘s deposition testimony attached to appellee‘s motion for summary
judgment. In that testimony, appellant stated:
Q. Have you ever taken a position that you were married to Habib prior to
your birthday in 1993?

Prior to the 1989 amendment, section 1.91 of the Texas Family Code provided that ―(b) ... [T]he
agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.‖ Act of May 31, 1969, 61st Leg., R.S., ch. 888, § 1, 1969 Tex. Gen. Laws 2707, 2717, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461. Following the 1989 amendment, section 1.91 provided that ―(a) the marriage ... may be proved by evidence that: ... (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.‖ Id.6

A. I don‘t remember.
Q. Do you recall signing an affidavit wherein you said you were the wife of
Habib and you were married to him since 1992?
A. Yes, because it was ‘92, ‘93, you know.
* * * * *
Q. Okay. When did you specifically begin this marriage, the date? I want
to know when the marriage began.
A. It was ‘92, we were dating ‘92.
Q. Okay. Well, I can date a lot of girls.
A. Uh-huh. ‘92.
Q. It doesn‘t mean I‘m married. I want to know —
A. And for my birthday we were already together because I have the picture
and we were living together. So, it must have been December of ‘92.
Q. Okay. What day in December, ‘92, did y‘all formally get married?
A. At the end of December.
Q. When did y‘all — you understand, common-law marriage —
A. I don‘t remember.

Appellant also testified that she had a marriage license dated March 8, 2011, stating
that she was married to Fausto Rodriguez. In filling out the application for the marriage
license, appellant stated that she was not married at that time. When questioned about this
statement in her deposition, appellant testified that she lied on the application because at
the time she did not know she needed a legal divorce from a common-law marriage. She
testified that she was informally married to Abedinzadeh, but thought she was divorced
from him because they no longer lived together.

Appellant has not come forward with evidence sufficient to neutralize the effect of
the presumption in order to properly allow the case to proceed to trial. Appellant‘s 7
testimony is not evidence of an agreement to marry. Further, any evidence that appellant
presented showing a representation of marriage, or ―holding out‖ is just as consistent with
other relationships as with marriage. Representations may be shown by conduct rather
than spoken words, but inherent in the concept is behavior intended as a communication to
third parties. Lee v. Lee, 981 S.W.2d 903, 907 (Tex. App.—Houston [1st Dist.] 1998, no
pet.) (requiring representations to public by both parties to establish common-law
marriage).

Moreover, a person may not be a party to an informal marriage or execute a
declaration of an informal marriage if the person is presently married to a person who is not
the other party to the informal marriage. Tex. Fam. Code Ann. § 2.401(d). The
documents appellant alleged prove her common-law marriage were filed after her
ceremonial marriage to Ramirez. ―The act of one of the parties to an alleged common-law
marriage in celebrating a ceremonial marriage with another person, without having first
obtained a divorce, tends to discredit the first relationship and to show that it was not
valid.‖ Small v. McMaster, No. 14-09-01080-CV___ S.W.3d ___, ___ 2011 WL
5008412, *6 n.4 (Tex. App.―Houston [14th Dist.] Oct. 20, 2011, no pet. h.) (citing Estate
of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Flores v. Flores, 847 S.W.2d
648, 652 (Tex. App.—Waco 1993, no writ)).

Appellant waited almost five years after Abedinzadeh‘s death to claim she was
married to him. Appellant presented no evidence of an agreement to marry, that she and
Abedinzadeh lived together as husband and wife, or that they held themselves out to others
as husband and wife. Appellant did not come forward with sufficient evidence to
neutralize the presumption that she was not married to Abedinzadeh. Appellant‘s sole
issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Brown, Boyce, and McCally.

No mandamus jurisdiction over district clerk, appellate panel rules (but district court may issue mandmus against clerk)

2011-11-03T22:45:00.002-06:00

In re Lonnie Mack Brook,
No. 01-11-00658-CV (Tex.App.- Houston [1^st Dist.] Nov. 3, 2011)
Appeal from 306th District Court of Galveston County

MEMORANDUM OPINION

Relator, Lonnie Mack Brooks, has filed a pro se petition for writ of mandamus, complaining that the respondent, the Galveston County District Clerk, has refused to file Brooks’s application for a writ of habeas corpus. [Fn 1]

This Court’s mandamus jurisdiction is governed by the Texas Government Code. Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs necessary to enforce the jurisdiction of the court of appeals and (2) writs against specified district or county court judges in the court of appeals district. TEX. GOV’T CODE ANN. § 22.221(a), (b) (West 2004). We, therefore, lack jurisdiction to issue a writ of mandamus against a district clerk or a court coordinator unless necessary to enforce our jurisdiction. See id. § 22.221(a), (b); see alsoIn re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Brooks has not shown that issuance of a writ of mandamus is necessary for this court to enforce its jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a), (b); In re P.L.M., No. 01-11-00086-CV, 2011 WL 1234692, at *1 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, orig. proceeding) (holding this court lacked jurisdiction to issue mandamus against district clerk for refusing to file application for writ of habeas corpus because relator made no showing that issuance of a writ of mandamus was necessary for this court to enforce its jurisdiction); cf. In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (holding this court could issue mandamus against clerk who refused to file notice of appeal because filing of notice of appeal vests jurisdiction this court).

Nevertheless, a clerk has a “mandatory, ministerial duty” to file documents submitted for filing. See In re Smith, 263 S.W.3d at 95. It is then up to the court—not the clerk—to determine whether the court has jurisdiction or otherwise determine the propriety of the filing. See id. Additionally, the Texas Court of Criminal Appeals has noted that, while it lacks jurisdiction of a habeas proceeding from an adjudication against a juvenile, district courts have jurisdiction under the Texas Constitution. See Ex parte Valle, 104 S.W.3d 888, 890 (Tex. Crim. App. 2003).

We conclude that we do not have jurisdiction to issue a writ of mandamus against respondent. Accordingly, we dismiss Brooks’s petition for lack of jurisdiction, and we dismiss all outstanding motions as moot. [Fn 2]

PER CURIAM

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

[Fn 1] Relator has identified the underlying case as the adjudication proceeding from which he seeks habeas relief, No. 88jv310, in the 306th District Court of Galveston County, Texas.

[Fn 2] Although this court lacks jurisdiction, the district court has jurisdiction to issue a writ of mandamus against a clerk in appropriate cases. See In re P.L.M, 2011 WL 1234692 at *1 (noting that Texas Government Code section 24.011 grants district court judge mandamus jurisdiction for the enforcement of the court’s jurisdiction).

Battle over O'Quinn's Fortune: Was he informally married? - 1st Court of Appeals weighs in on dispute between John M. O'Quinn Foundation and O'Quinn Girlfriend-Companion-Partner Darla Lexington

2011-11-03T22:31:00.003-06:00

POST-MORTEM CLAIM OF INFORMAL MARRIAGE ALIVE AND WELL. LITIGATION OVER O'QUINN ESTATE TO CONTINUE AFTER APPELLATE COURT DECLINES TO STEP IN AND STOP IT.

IN RE DARLA LEXINGTON O'QUINN,

No 01-11-00641-CV (Tex.App. -- Houston [1st Dist.] Nov. 3, 2011)(mandamus denied)

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

Relator, Darla Lexington O’Quinn (“Darla”), complains of the trial court’s order denying her motion in limine, plea to the jurisdiction, and motion to strike the petition in intervention of real party in interest, The John M. O’Quinn Foundation (“the Foundation”).^[1] She contends that the trial court erred in denying her motions because the Foundation, as the sole beneficiary under the decedent’s will in an independent administration, does not have a justiciable interest in the underlying proceeding and thus lacks standing to assert its declaratory judgment claims.

We deny the petition for writ of mandamus.

Background

On July 17, 2008, decedent John M. O’Quinn (“O’Quinn”) executed a self-proving will. In this will, O’Quinn devised all of his personal effects to the Foundation, a charitable organization dedicated to providing funding to educational institutes, hospitals, and other charities. O’Quinn also devised the residue of his estate to the Foundation and provided that the Foundation would receive any assets remaining in the O’Quinn Law Firm Testamentary Trust after the trustees dissolved the law firm and sold or transferred the firm’s assets. The will specifically recited that at the time of execution O’Quinn was unmarried, and the will did not include any devises or bequests in favor of Darla.

O’Quinn died in a car accident on October 29, 2009. The Probate Court Number 2 of Harris County admitted the will to probate on November 17, 2009, appointed T. Gerald Treece as independent executor (“the Executor”), and issued letters testamentary.

On April 16, 2010, the Foundation intervened in the ongoing probate proceeding. The Foundation’s petition in intervention listed only the Foundation and the Executor as parties; it did not name Darla as a party. The Foundation alleged that at the time of his death, O’Quinn was neither formally nor informally married. The Foundation sought declarations that: (1) O’Quinn was not married, either formally or informally, at the time of his death; (2) no children were born to or adopted by O’Quinn after he executed his will; (3) O’Quinn devised all personal effects under the will to the Foundation; (4) O’Quinn devised all remaining property under the will to the Foundation; and (5) the Foundation is the sole residual beneficiary of the O’Quinn Law Firm Testamentary Trust.

On July 7, 2010, the Executor filed a petition for declaratory judgment and named Darla, the Foundation, and Hartford Financial Services Group, Inc., the holder of the proceeds of O’Quinn’s 401(k) plan, as defendants. In his petition, the Executor stated that, “It is anticipated that the Foundation will intervene in this matter.” The Executor alleged that, although O’Quinn and Darla had dated for several years, O’Quinn never married her and, thus, was single when he died. The Executor sought, among other things, declarations from the trial court that: (1) O’Quinn never married Darla and (2) O’Quinn did not gift any art or cars to Darla except for the items for which the Executor had already paid the required gift taxes.

On July 8, 2010, Darla sued the Executor in the 125th District Court of Harris County “for the return and delivery of property that belongs to Darla Lexington as a result of her community property interests acquired by marriage, and received by gifts” and asserted causes of action for breach of fiduciary duty, negligence, tortious interference, and conversion. Darla also sought the imposition of a constructive trust against the Estate and applied for a temporary restraining order to prevent the Executor from “proceeding with the auction of any property belonging to Darla Lexington.” Darla contended that she and O’Quinn had informally married in 2003, that O’Quinn had made several inter vivos gifts to her of personal property and classic cars, and that O’Quinn had promised her that “he would provide for her welfare in the event something was to happen to him” and that she “did not need to worry about living expenses.” Darla sought, among other things, preliminary and permanent injunctive relief to prevent the sale of her property, a declaration that she and O’Quinn had informally married, and receipt of one-half of the community estate.^[2]

Four days later, the Foundation filed an amended petition in intervention in the Executor’s suit for declaratory relief, this time naming Darla as a defendant. The Foundation again sought declarations that: (1) O’Quinn was not married at the time of his death; (2) no children were born to or adopted by O’Quinn after he executed his will; (3) all of O’Quinn’s personal effects were devised under the will to the Foundation; (4) those personal effects included all right, title, and interest in O’Quinn Land & Cattle Co., the O’Quinn River Ranch, and Classy Classic Cars, Ltd., and all cars purchased through or titled in the name of Classy Classic Cars, Ltd.; (5) O’Quinn devised all remaining property to the Foundation; and (6) the Foundation is the sole residual beneficiary of the O’Quinn Law Firm Testamentary Trust.

The probate court subsequently issued an order pursuant to Probate Code section 5B transferring Darla’s lawsuit to it from the 125th District Court and consolidating her suit with the Executor’s and the Foundation’s petitions for declaratory relief.

In her answer to the Foundation’s amended petition in intervention, Darla asserted, by verified denial, that the Foundation lacks the capacity to intervene because only the Executor has the right to seek declaratory relief regarding the alleged marriage and alleged gifts made to Darla by O’Quinn. Darla also asserted that the Foundation lacks standing to pursue its claims because it does not have a justiciable interest “in the outcome of this litigation.”

On May 10, 2011, Darla filed a motion in limine, plea to the jurisdiction, and motion to strike the Foundation’s petition in intervention. Darla again asserted that the trial court lacks subject-matter jurisdiction over the Foundation’s petition in intervention because the Foundation “lacks the requisite interest, standing, and capacity to participate in this matter.” Darla argued that the Executor, who virtually represents all beneficiaries under the will, is the sole party who has the right to prosecute and defend lawsuits on behalf of the Estate. Darla also contended that the Executor, as the representative of the Estate, is the only party who has a justiciable interest in the claims being litigated. Darla further contended that the Executor could adequately protect the Foundation’s interests, and thus its intervention was not necessary.

At a hearing, the trial court denied Darla’s motions. The court reasoned that “[i]f [the Foundation] was not a party to the decision as to whether or not Ms. Lexington was common-law spouse, I think they would have a sufficient interest to come back in and try it again.” This mandamus proceeding followed.

Standard of Review

Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. See In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam). A trial court commits a clear abuse of discretion when its action is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam). A trial court has no discretion in determining what the law is or in applying the law to the particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). Mandamus relief is permissible when a trial court abuses its discretion by erroneously denying a motion to strike a petition in intervention. See In re Union Carbide Corp., 273 S.W.3d 152, 156–57 (Tex. 2008) (per curiam).

We must uphold a trial court’s decision on any grounds that are before the court and supported by the record. See Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (“We must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.”). “This approach is even more compelling in a mandamus proceeding where the issue is abuse of discretion. A trial court cannot abuse its discretion if it reaches the right result . . . .” Luxenberg v. Marshall, 835 S.W.2d 136, 142 (Tex. App.—Dallas 1992, no writ).

Foundation’s Standing to Assert Claims

Darla contends that the Foundation lacks a justiciable interest in the underlying proceedings and, thus, lacks standing to assert its claims for declaratory relief. The Foundation contends that it has a justiciable interest because if Darla succeeds on her claims and the fact-finder determines that she was informally married to O’Quinn and that he made several gifts to her, this result diminishes the size of the estate passing to the Foundation under the will. The Foundation also contends that, as a devisee, it may permissibly seek declaratory relief to “determine any question arising in the administration of the . . . estate” under Civil Practice and Remedies Code section 37.005(3). We agree with the Foundation.

A. Justiciable Interest

Texas Rule of Civil Procedure 60 authorizes a party with a justiciable interest in a pending suit to intervene as a matter of right. TEX. R. CIV. P. 60 (“Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.”); In re Union Carbide, 273 S.W.3d at 154. To constitute a justiciable interest, “‘[t]he intervenor’s interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought’ in the original suit.” In re Union Carbide, 273 S.W.3d at 155 (quoting King v. Olds, 12 S.W. 65, 65 (Tex. 1888)). “[A] party may intervene if the intervenor could have ‘brought the [pending] action, or any part thereof, in his own name.’” Id. (quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)); Harris Cnty. v. Luna-Prudencio, 294 S.W.3d 690, 699 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

The Uniform Declaratory Judgments Act (“UDJA”) is “merely a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A declaratory judgment is appropriate only if (1) a justiciable controversy exists regarding the rights and status of the parties and (2) the declaration sought will resolve the controversy. Di Portanova v. Monroe, 229 S.W.3d 324, 329 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). “To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute.” Id.; see also In re Estate of Webb, 266 S.W.3d 544, 548 (Tex. App.—Fort Worth 2008, pet. denied) (“This interest must be more than ‘a mere contingent or remote interest.’ The intervenor has a justiciable interest in a lawsuit ‘when his interests will be affected by the litigation.’”) (quoting Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no pet.)). A court does not have the power to “pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy.” Di Portanova, 229 S.W.3d at 330. If a justiciable controversy does not exist, the court must dismiss the case for lack of subject-matter jurisdiction. Id.

Under Probate Code section 37, “[w]hen a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will . . . shall vest immediately in the devisees or legatees of such estate . . . .” TEX. PROB. CODE ANN. § 37 (Vernon 2003); see also Nowlin v. Frost Nat’l Bank, 908 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1995, no writ) (“[U]nder the Probate Code, title to property vests in the beneficiary immediately upon a testator’s death.”). During the administration of the estate, the testator’s executor holds legal title to estate assets and retains the right of possession, but the devisees hold the equitable title to the assets. SeeTEX. PROB. CODE ANN. § 37; see also Bailey v. Cherokee Cnty. Appraisal Dist., 862 S.W.2d 581, 584 (Tex. 1993) (“[I]t is true that the heirs hold equitable title to estate property . . . .”); Nowlin, 908 S.W.2d at 288 (“A ‘vested interest’ is a present right or title to a thing, which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future.”).

In In re Estate of York, the Corpus Christi Court of Appeals addressed the factually analogous situation of whether a beneficiary’s executor had standing to intervene in an heirship proceeding. 934 S.W.2d 848 (Tex. App.—Corpus Christi 1996, writ denied). Charles York’s will provided that all of his assets were to be placed in a testamentary trust for the benefit of his mother, Myrtle, for her life, and were then to pass to the Mallettes, who ultimately disclaimed their interest in the assets. Id. at 849. Several years after York died and the Mallettes disclaimed their interest, Kristopher Gostecnik brought an heirship proceeding, alleging that he was York’s illegitimate son and only heir, and thus was entitled to the remainder of the trust assets. Id. Myrtle intervened to assert her own claims as York’s sole heir, but she died before the conclusion of the heirship proceeding. Id. As a result, her executor, the Victoria Bank, sought to pursue her claim in intervention on behalf of her estate. Id. The trial court ruled that the bank was not an interested party in Charles York’s estate, concluded that the bank lacked standing to intervene in the heirship proceeding, and struck Myrtle’s petition in intervention. Id.

In reversing the trial court’s ruling, the Corpus Christi Court of Appeals concluded that Myrtle, as a potential heir, was a person interested in Charles York’s estate and thus had standing to contest the heirship claims. See id. at 850. The court then noted that Myrtle’s estate “may be augmented or diminished by the outcome of Gostecnik’s heirship proceeding.” Id. Thus, “[b]ecause Myrtle York’s estate could benefit from such a contest, we hold that Victoria Bank as executor of Myrtle York’s estate has standing to contest Gostecnik’s claims in the proceeding to declare heirship.” Id. The court further distinguished between the bank’s capacity as executor of Charles York’s estate and its capacity as executor of Myrtle York’s estate:

Charles York’s estate does not stand to gain or lose anything by Gostecnik’s heirship proceeding; the disposition of the estate’s assets may be affected, but the gross assets will be unaffected. In contrast, Myrtle York’s estate will be affected by the outcome of Gostecnik’s heirship proceeding.

Id. at 851.

Darla cites our previous opinion in Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ), for the proposition that lawsuits seeking to establish the decedent’s liability on a claim are properly brought against the personal representative of the estate and that heirs and devisees are not necessary and proper parties to such claims. We first note that, unlike in this case, the heir in Wilder sought a jury trial to oppose the settlement of a claim against the estate but asserted no claims for affirmative relief in her own right. Id. at 668. Second, we agree with the Foundation that, as in Lieber v. Mercantile National Bank at Dallas, Darla’s claims are not a “routine suit to establish a claim against the estate,” but are instead more like “a suit attacking and seeking to reform a will.” 331 S.W.2d 463, 472 (Tex. Civ. App.—Dallas 1960, writ ref’d n.r.e.).

In Lieber, the widow, who was a beneficiary under the decedent’s will, sought a declaratory judgment to establish an antenuptial agreement that the decedent had allegedly made to provide financially for the widow for the rest of her life. Id. at 466–67. The executor sought a declaration that no such agreement existed, and he named the decedent’s four sisters, who were the beneficiaries of the bulk of the decedent’s estate under the will, as necessary parties. Id. at 466. The Dallas Court of Civil Appeals, in affirming the trial court’s denial of the widow’s motion to dismiss the sisters as parties, held that Lieber’s suit “was really an attack on the will of [the decedent]” because “the effect of sustaining her claim would be to defeat and prevent the full effect and operation of other parts of the will.” Id. at 472, 471. The court also held that, because resolution of the widow’s claims would affect their interests as legatees, the sister-beneficiaries were proper parties to the suit. Id. at 473. Similarly, by contending that she was informally married to O’Quinn and that he had made numerous gifts to her and had promised to take care of her financially after his death, Darla essentially attacks the provisions of O’Quinn’s will that (1) state that he was unmarried, and (2) leave all of his personal effects and remaining property to the Foundation as the sole beneficiary.

As the sole beneficiary under O’Quinn’s will, the Foundation has a vested interest in property owned by O’Quinn, subject to possession and administration by the Executor, as of the moment of death. By contending that she was O’Quinn’s common-law spouse, and thus entitled to a community property interest, and that O’Quinn had made several inter vivos gifts and promises to her, Darla seeks to significantly reduce the total amount of assets that are part of O’Quinn’s probate estate. The Foundation opposes Darla’s claims and argues that she has no community property interest in estate assets because she was not married to O’Quinn and that O’Quinn never made any gifts or financial promises to Darla. If she is successful, the determination that Darla has a one-half community interest and that particular assets belong to her reduces the gross assets available for the Estate, which affects the total amount of assets to be distributed to the Foundation as the sole beneficiary under O’Quinn’s will. See Lieber, 331 S.W.2d at 473 (“This suit also involves that executor’s cross-action for declaratory judgment which we have held the executor was entitled to remain. Since their interest would be affected as legatees the Four Sisters are proper parties.”).

We therefore conclude that a “real and substantial controversy involving a genuine conflict of tangible interests” exists between the Foundation and Darla and that this dispute is not merely theoretical, hypothetical or contingent. See Di Portanova, 229 S.W.3d at 329. We hold that the Foundation has a justiciable interest in the underlying proceeding.

B. Applicability of Civil Practice and Remedies Code Section 37.005(3)

Civil Practice and Remedies Code section 37.005(3) provides:

A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor,devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolventmay have a declaration of rights or legal relations in respect to the trust or estate:

. . . .

(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 37.005(3) (Vernon 2008) (emphasis added). Under this section, devisees “are among the classes of persons who are given the power to seek a declaration of rights with respect to the estate to, among other things, determine any question arising in the administration of the estate . . . .” In re Estate of Bean, 120 S.W.3d 914, 918 (Tex. App.—Texarkana 2003, pet. denied) (holding that devisees in independent administration have power to seek declaration concerning construction of decedent’s will).

The plain language of section 37.005(3) allows a devisee to seek a declaration of rights or legal relations to determine “any question arising in the administration” of an estate. TEX. CIV. PRAC. & REM. CODE ANN. § 37.005(3) (emphasis added). The statutory language of this section does not include any limitations on the types of questions on which an interested party may seek a declaration by the trial court. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) (noting that, when interpreting statute, we start with plain language because “it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent”). Darla cites no authority holding that a devisee may not seek declarations under this section that a purported widow was not married, either formally or informally, to the decedent and that the decedent did not make certain inter vivos gifts and financial promises to the purported widow.

Darla cites numerous cases for the proposition that, except in certain limited situations, the personal representative has the exclusive right to sue and defend on behalf of the estate. SeeChandler v. Welborn, 294 S.W.2d 801, 806 (Tex. 1956); Burns v. Burns, 2 S.W.3d 339, 342 (Tex. App.—San Antonio 1999, no pet.); Glover v. Landes, 530 S.W.2d 910, 911 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). As the Foundation notes, this line of cases is limited to situations in which the heirs or devisees are suing to recover or collect property belonging to the estate. See, e.g., Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850–51 (Tex. 2005) (survival action for personal injury); Chandler, 294 S.W.2d at 804 (suit for trespass to try title to recover property conveyed to third party); see also Roach v. Rowley, 135 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that general rule did not apply in suit in which devisee objected to final accounting because “[devisee] was not filing a lawsuit to recover property belonging to the estate”). Here, the Foundation is not asserting a claim against Darla alleging, for example, that she owes money to O’Quinn’s Estate or that Darla is wrongfully possessing property that belongs to the Estate; instead, it is seeking, among other things, a declaration to resolve the question of whether property properly belongs to the Estate, and thus passes to the Foundation under O’Quinn’s will, or to Darla. Civil Practice and Remedies Code section 37.005(3) specifically authorizes a devisee, such as the Foundation, to bring a declaratory relief action such as this one. See TEX. CIV. PRAC. & REM. CODE ANN.§ 37.005(3) (allowing devisee to seek declaration of rights or legal relations to “determine any question arising in the administration of the . . . estate”). Darla cites no authority supporting a contention that the general rule that only the personal representative may maintain a suit to recover estate assets trumps the Foundation’s statutory right as a beneficiary to seek a declaration resolving a question arising during the administration of the estate that involves the proper ownership of purported estate assets.

We conclude that the Foundation, as the devisee under O’Quinn’s will, may permissibly seek declaratory relief pursuant to Civil Practice and Remedies Code section 37.005(3) to determine “any question arising in the administration” of O’Quinn’s estate, including questions of whether O’Quinn and Darla were married and whether O’Quinn made gifts and financial promises to Darla. We therefore hold that because the Foundation may seek declaratory relief under this section, the trial court did not abuse its discretion in denying Darla’s motion in limine, plea to the jurisdiction, and motion to strike the Foundation’s petition in intervention.^[3]

Conclusion

We deny the petition for writ of mandamus.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and Massengale.

^[1] The Honorable Mike Wood, Judge of the Probate Court No. 2 of Harris County, Texas, Respondent. The underlying lawsuit is T. Gerald Treece, Independent Executor of the Estate of John M. O’Quinn, Deceased v. Darla Lexington, The John M. O’Quinn Foundation, and Hartford Financial Services Group, Inc., 392,247-402 (Prob. Ct. No. 2, Harris Cnty., Tex.).

^[2] In her ninth amended original petition, which is her live pleading, Darla specified that she was seeking, among other things: (1) title and possession of all cars promised to her by O’Quinn; (2) $20 million in cash that O’Quinn had promised her upon his death; (3) the fair market value of 750 acres of O’Quinn’s Hays County ranch; (4) the value of all gifts from O’Quinn that became her separate property and were wrongfully converted by the Executor; (5) one-half of the community estate; and (6) the value of a life estate in O’Quinn’s River Oaks residence, which she contends was their homestead.

^[3] Because we hold that the Foundation has standing to pursue its own declaratory relief claims under Civil Practice and Remedies Code section 37.005(3), we do not address the Foundation’s additional grounds for standing. We also note that although Darla argues that, under Civil Practice and Remedies Code section 37.006, the Foundation is not a necessary party to the Executor’s declaratory relief claims, in which the Executor named the Foundation as a defendant, she seeks only to dismiss the Foundation’s own declaratory relief claims in its petition in intervention. She does not challenge, either in the trial court or in this mandamus proceeding, the Executor’s declaratory relief claims.