text:
    SOUTHWEST CONSTRUCTION RECEIVABLES, LIMITED, et al., Appellants, v. REGIONS BANK, f/k/a First Commerce Bank, et al., Appellees.
    No. 06-03-00083-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 16, 2005.
    Decided April 26, 2005.

      John R. Mercy, Mercy, Carter, Tidwell, LLP, Texarkana, Graham Kerin Blair, David A. Brakebill, Baker & McKenzie, Houston, for appellants.
    George L. McWilliams, Sean F. Rommel, Phillip N. Cockrell, Patton, Haltom, Roberts, Texarkana, William A. Waddell Jr., William H. Sutton, Friday, Eldredge & Clark, Little Rock, AR, for Regions Bank.
    Stephen L. Gershner, Davidson Law Firm, Little Rock, AR, Gary D. Grimes, Law Office of Gary D. Grimes, Texarkana, for Charles William Richardson.
    Ronald J. Burke, pro se.
    Before ROSS, CARTER, and CORNELIUS, JJ.

       William J. Cornelius, C.J., Retired, Sitting by Assignment.

   OPINION

Opinion by

Justice ROSS.

Dan Moore, D.D.S., and Dennis O’Ban-ion, M.D., and their two companies, Southwest Construction Receivables, Limited (SCR) and Construction Invoice Funding, Ltd. (collectively, Appellants) sued Regions Bank and several individuals, including Charles William Richardson, for fraud, breach of contract, and civil conspiracy. Some of the defendants, including Regions and Richardson, filed motions for partial, traditional, and no-evidence summary judgment, which the trial court ultimately granted. The trial court also ruled that, as a matter of law, one of the individual defendants, Michael McNew, had not been properly served and was, therefore, not before the court. The plaintiffs nonsuited much of the remainder of their case and appealed those rulings by the trial court.

In their third issue, Appellants contend the trial court erred by ruling, as a matter of law, that McNew had not been served with the plaintiffs’ original or amended petitions and was, therefore, not properly before the trial court. We hold the trial court did so err. Because we conclude McNew is a party to this case, and because claims against him have not been resolved by way of a final judgment, the appeal is now interlocutory, and we lack jurisdiction to consider the remainder of Appellants’ points of error. Accordingly, we sustain Appellants’ third point of error and dismiss the remainder of the appeal for want of jurisdiction.

I. Procedural and Factual History

In the late 1990s, Drs. Moore and O’Banion of Texarkana were introduced to the “factoring” business by McNew and Joe O’Banion (Dr. O’Banion’s brother). “Factoring” is the business of “buying of accounts receivable at a discount. The price is discounted because the factor (who buys them) assumes the risk of delay in collection and loss on the accounts receivable.” Black’s Law Dictionary 630 (8th ed.2004). In this case, Drs. Moore and O’Banion purchased accounts receivable from construction subcontractors that were owed money by their respective general contractors.

In 1997, Drs. Moore and O’Banion created SCR. The doctors borrowed money from First Commercial National Bank to fund their new company. The doctors worked with Joe O’Banion and McNew, who brokered accounts receivable to the doctors and SCR. Working through a company owned by McNew and Joe O’Banion called Funding Sources Support, Inc. (FSSI), McNew was supposed to conduct a background check on each account receivable that he brokered (a process the parties refer to as “due diligence” processing) to ensure both that the work represented by each account receivable had, in fact, been completed by the subcontractor and that the money was due to be paid by the general contractor within ninety days. As a condition of loaning money to SCR, First Commercial National Bank also required of SCR that the bank be allowed to conduct its own due diligence check of each account receivable to be purchased, as required by banking regulations and the bank’s internal policies. For a while, all the parties — Drs. Moore and O’Banion, First Commercial National Bank, McNew and Joe O’Banion, and the subcontractors — seemed to be making a profit.

In July 1998, Regions Bank of Little Rock, Arkansas, acquired First Commercial National Bank. Shortly before then, McNew had encouraged the doctors to purchase, through SCR, a number of additional accounts receivable from Starkey Electric, an electrical subcontractor based in Tyler, Texas. McNew had also encouraged another investor, Richardson — who was the owner of Southwest Financial Funding (SWF) and a Regions customer— to increase SWF’s factoring investment in Starkey Electric and other companies McNew had suggested.

In August 1998, SWF applied to have its credit line increased by Regions. Regions assembled a team of executives from various branch offices to review SWF’s application. One of those executives was Neil West, an official with a Regions branch in Tyler, Texas. In reviewing SWF’s application, West noticed that SWF planned to buy several accounts receivable from Starkey Electric of Tyler. This concerned West because he had experienced problems with Starkey Electric when West had worked for another bank in the Tyler area.

On August 30, 1998, West apprised others within Regions of his suspicions, stating he believed Starkey — and possibly others — were engaging in fraud by trying to sell “bogus” accounts receivable to SWF. West outlined several accounts receivable that SWF’s credit extension application proposed buying from Starkey Electric. West’s written memorandum about the Starkey invoices then detailed why West believed certain of those invoices were fraudulent: the invoices were for work that was either not fully completed or had not yet commenced. West then concluded that, because SWF was already heavily invested in Starkey invoices, and because the value of those invoices already owned by SWF was likely to be less than the money SWF ultimately realized in payments from the general contractors, further funding by Regions of SWF’s investments in Starkey Electric was not in the bank’s best interest. “[A]t this point every advance we [Regions] make, particularly with Starkey as the beneficiary, widens the gap by increasing the loss exposure.” “SWF is a house of cards ready to collapse without substantial capital input — maybe the entire $3.7MM [sic] Starkey owes plus any other scams that we [Regions] don’t know about.”

On September 4, 1998, McNew met with Regions officials and admitted that some of the Starkey invoices — for which Regions had already advanced money to Richardson (and SWF) and which Richardson had, in turn, paid to Starkey — were for work that had not yet been completed. McNew and bank officials identified approximately $695,000.00 worth of problem invoices. Regions then demanded it be paid by McNew for those identified, problem invoices within a short period of time.

Shortly thereafter, McNew obtained money from other sources. These sources were Drs. Moore and O’Banion, and SCR. Drs. Moore and O’Banion borrowed money and deposited that money into SCR’s checking account, to which McNew had access. McNew then took $495,000.00 of SCR’s money, added $200,000.00 of his own money, and paid $695,000.00 to Regions for the identified, problem invoices from Starkey Electric. This payment, made in response to Regions’ demand, absolved Regions’ potential losses associated with the previously identified $695,000.00 worth of problem invoices from Starkey Electric.

McNew was ultimately convicted on federal charges of wire fraud, bank fraud, making a false statement to a financial institution, mail fraud, and conspiracy. At the federal plea, McNew admitted he led Drs. Moore and O’Banion to believe they were buying new invoices when, in fact, he knew that representation was not true. Instead, McNew used the $495,000.00 from the doctors to repurchase the problem invoices from SWF — invoices McNew and Regions both knew were for work that had not been completed or that they suspected to be fraudulent.

On November 18, 1998, Regions executed a “Release of Security Interest” in these Starkey Electric invoices that Regions had reason to believe had either been paid in full or were fraudulent. Regions and FSSI also mutually released each other from any claims relating to certain Starkey Electric invoices; Regions promised not to disclose any of FSSI’s activities to law enforcement, except where required by law.

II. Did the Trial Court Err By Striking McNew As a Party to the Lawsuit?

In their third point of error, Appellants contend the trial court erred by holding, as a matter of law, McNew had not been properly served with either the plaintiffs’ original petition or any amended petition. In the spring of 2003, Richardson asked the trial court to find that McNew had not been properly served with the plaintiffs’ original petition. The trial court ruled May 13, 2003, that McNew was not properly before the court; it followed with a written order June 27, 2003, which stated there had been “no service on Michael L. McNew that validly makes him a party to this case.” The effect of the trial court’s order was to eliminate McNew as a party to the case. This ruling hurt the plaintiffs’ case because McNew, the alleged primary malfeasant (and now federally convicted criminal), was a necessary party to prove the plaintiffs’ claims of conspiracy against the remaining defendants. See, e.g., Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex.1998) (element of civil conspiracy is combination of two or more persons).

Generally, only the entity that has not been properly served has standing to challenge the lack of due process. See, e.g., Illinois v. DeLaire, 240 Ill.App.3d 1012, 183 Ill.Dec. 33, 610 N.E.2d 1277, 1287-88 (1993) (third party has right to contest effectiveness of service, but not defendants). One exception to that general principle is that an insurance company may challenge the propriety of service as to the company’s insured. See, e.g., Koven v. Saberdyne ft/s., Inc., 128 Ariz. 318, 625 P.2d 907, 909-10 (Ct.App.1980) (insurance company had standing to move trial court to set aside default judgment against insured based on lack of service of plaintiffs petition for personal injuries occurring at amusement park).

With the single exception of an insurance company standing in the shoes of its insured, we have found nothing in our statutes or Texas caselaw that supports Richardson’s position that a defendant in a civil suit has standing to challenge whether a codefendant has been properly served; nor have the parties directed this Court’s attention to any such authority. Therefore, we conclude Appellants are correct: only McNew has standing to challenge whether he has or has not been properly served. Cf. Caldwell v. Barnes, 154 S.W.3d 93, 97-98 (Tex.2004) (burden is on nonserved party to prove nonservice in post-judgment bill of review proceeding). The remaining codefendants have no such standing. Because the trial court struck McNew as a party on the motion of a codefendant, the trial, court erred.

Moreover, the record before us shows Appellants served the Texas Secretary of State (as the agent of process for McNew, an Arkansas resident) with the original petition.

(a) The secretary of state is an agent for service of process or complaint on a nonresident who:
(1) is required by statute to designate or maintain a resident agent or engages in business in this state, but has not designated or maintained a resident agent for service of process;
(b) The secretary of state is an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party.

Tex. Civ. PRAC. & Rem.Code Ann. § 17.044 (Vernon 1997) (Texas’ “long-arm” statute). If service is effected via the Secretary of State pursuant to Texas’ long-arm statute, absent evidence of fraud or mistake, the Secretary of State’s certificate of service “conclusively establishes that process was served.” Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex.2004) (citing Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex.1986)); Zuyus v. No’Mis Communications, Inc., 930 S.W.2d 743, 746 (Tex.App.-Corpus Christi 1996, no writ).

In this case, the Texas Secretary of State accepted service of process, as the agent for nonresident McNew, of the plaintiffs’ original petition. The Secretary of State then forwarded that notice to MeNew’s last known address in Arkansas. The plaintiffs had similarly served FSSI, an Arkansas corporation owned by McNew, via the Texas Secretary of State. The record shows McNew’s last known address and FSSI’s last known address are the same location. The Secretary of State’s certification of service shows the certified letter to McNew went “unclaimed” and was returned to the Secretary August 20, 1999, but the certified letter to FSSI was accepted and the return receipt was received by the Secretary August 20, 1999. Appellants contend this constitutes “selective acceptance” by McNew. We tend to agree. However, such conclusion is not necessary in light of the Texas Supreme Court’s holding in Campus Investments.

Regions and Richardson point out that Appellants amended their original petition multiple times, adding plaintiffs (Drs. Moore and O’Banion), new claims, and new damages. Citing Weaver v. Hartford, Accident & Indem. Co., 570 S.W.2d 367, 370 (Tex.1978), they contend that, because McNew had not made an appearance in the case at the time of these amendments, Appellants were required to have a new citation issued on their “live” pleading and served on McNew. Appellants’ “live” pleading at the time the trial court struck McNew as a party was Plaintiffs’ fifth amended original petition, filed December 13, 2001.

A plaintiff who amends its petition may serve the defendant, without regard to whether the amendment seeks a more onerous judgment or adds a new cause of action, by complying with the filing and serving requirements of Rules 21 and 21a, Texas Rules of Civil Procedure. In re R.D.C., 912 S.W.2d 854 (Tex.App.-Eastland 1995, no writ). The record before us shows that Appellants served McNew with Plaintiffs’ fifth amended original petition by certified mail May 5,2003.

As the Eastland court pointed out in R.D.C., Weaver was a liability insurance coverage case holding that the insurance company had no duty to defend a suit against the named insured’s employee where the employee failed to comply with the policy provisions regarding the forwarding of citation to the insurer. The Eastland court went on to state:

While the rule [that new citation is necessary for a party who has not appeared when the plaintiff, by amended petition, seeks a more onerous judgment than prayed for in the original pleading] was discussed in Weaver, it is apparent that the thrust of the opinion is directed at the failure of the “omnibus insured” to comply with the policy provisions.

Id. at 855.

Citing Baker v. Monsanto Co., 111 S.W.3d 158 (Tex.2003), Regions and Richardson further contend that, because Drs. Moore and O’Banion were not added as plaintiffs in the case until Plaintiffs’ second amended original petition, filed February 2, 2001, these doctors were “intervenors” and were therefore required to serve McNew with a new citation. In Baker, the defendant, Monsanto Co., had not been served with citation by any plaintiff when the intervenors attempted to serve Monsanto’s counsel. Id. at 159. The law firm representing Monsanto expressly stated in a letter that they would not accept service on Monsanto’s behalf. Plaintiffs subsequently served citation on Monsanto. Monsanto’s counsel filed an answer, but only to “the petitions of those plaintiffs who have served Monsanto.” Id. The Texas Supreme Court held that Monsanto’s subsequent appearance relieved the inter-venors of serving Monsanto with a new citation. In so holding, the Texas Supreme Court quoted approvingly:

Citation is necessary when the interve-nor asks affirmative relief against a defendant who has not appeared or a plaintiff who does not, by any action subsequent to the intervention, appear thereon.... 1 McDonald and Carlson, Texas Civil PRACTICE § 5:81 at 609 (1992 ed.).

Id. at 160 (emphasis added).

It is apparent the “by any action subsequent to the intervention” language is directed toward plaintiffs because plaintiffs will always have already made an appearance in the case. This language is equally applicable, however, to defendants who, like McNew, have been previously served with citation but have not entered a formal appearance in the case. Such defendants may, “by [their] action subsequent to the intervention,” make issuance of a new citation unnecessary. Such was the case with McNew.

Unlike Monsanto in Baker, where Monsanto unsuccessfully sought to invoke the statute of limitations because it had not been formally served with citation by the intervenors, the record before us shows that McNew never denied his status as a defendant in this case. After Drs. Moore and O’Banion were joined as plaintiffs, McNew appeared “at the instance of the plaintiffs” and gave testimony in the form of an oral deposition. Richardson’s motion for summary judgment included an attached excerpt that shows McNew was questioned in that deposition concerning the claims of Drs. Moore and O’Banion.

Further, McNew participated in a full evidentiary hearing in U.S. Bankruptcy Court on Appellants’ motion for relief from stay to allow the trial of the instant case to proceed based on Plaintiffs’ fifth amended original petition. The bankruptcy court’s order, dated July 1, 2002, granting this motion, reflects that McNew opposed the motion on various grounds, but lack of service was not one of them. Rather, the order reflects that McNew admitted and pled guilty to the specific conduct complained of in Plaintiffs’ fifth amended original petition. Referring to the instant litigation, the order also contains the following judicial finding:

[McNew] has been aware of the litigation and the complaints against him for several years, and due to his guilty plea in the criminal case and admissions in his civil deposition, it does not appear that [McNew] has a viable defense in any case.

Based on these actions by McNew after Drs. Moore and O’Banion were joined as plaintiffs, and based on the original service of citation properly served on him by the Secretary of State, we hold that a new citation was not required and that notice of the additional plaintiffs’ claims, given pursuant to Rules 21 and 21a, was sufficient.

Therefore, even if the trial court had authority to strike McNew as a party based on the motion of a codefendant, the trial court nonetheless erred because the record affirmatively refutes the claims of Regions and Richardson that McNew had not been made a party to the suit. We sustain Appellants’ third point of error.

III. The Appeal Is Now Interlocutory

In their fifth amended petition, the plaintiffs sued Regions Bank, McNew, Michael Starkey (owner of Starkey Electric), Richardson, J. Ronald Burke (Richardson’s business partner), and Joe O’Banion. The plaintiffs alleged the defendants were collectively and separately guilty of fraud, aiding and abetting a breach of fiduciary duty, and civil conspiracy. The plaintiffs sought actual and punitive damages, as well as court costs and pre- and post-judgment interest.

In their notice of partial nonsuit, the plaintiffs took a nonsuit with respect only to their claims of direct fraud (“save and except those claims already adjudicated by partial summary judgment”) and their claims of aiding and abetting a breach of fiduciary duty against Regions, Richardson, and a third defendant (“save and except those claims already adjudicated by partial summary judgment”). The notice of partial nonsuit did not address Appellants’ claims against NcNew.

“[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). “A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.” Id. Except for those statutory exceptions, if the judgment from which the party has appealed does not dispose of all pending parties and claims, then the judgment is deemed to be “interlocutory” and the court of appeals should either abate the case or dismiss it for want of jurisdiction. Id. at 195-96.

Because we have held the trial court erred by ruling, as a matter of law, that McNew was not a proper party to the suit, and because Appellants’ notice of nonsuit did not resolve their claims against McNew, the trial court’s award of summary judgment in this case does not dispose of all the parties or claims. None of the statutory exceptions that grant us jurisdiction to hear certain interlocutory appeals are applicable to this case. See Tex. Civ. PRAc. & Rem.Code Ann. § 51.014 (Vernon Supp.2004-2005). Therefore, we are without jurisdiction to consider Appellants’ remaining points of error. Cf. Brooks v. Pep Boys Auto. Supercenters, 104 S.W.3d 656, 660-61 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (order compelling arbitration not final disposition and not expressly authorized for interlocutory appeal; appellate court dismissed appeal).

IV. Conclusion

For the reasons stated, we sustain Appellants’ third point of error and dismiss the appeal for want of jurisdiction.

      . The plaintiffs had crafted their case so as to depict McNew as the critical link through which the defendants’ alleged conspiracy resulted in Appellants' damages.

      . See Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 102 (Tex.App.-Beaumont 1993, writ denied), overruled in part on other grounds, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex.2002), where the Beaumont court held:
      where it is shown ... that a party has fully complied with the notice requirements set forth in TEX. R. CIV. P. 21a ... yet fails to establish actual receipt of notice upon opposing party or counsel, such notice shall be sufficient constructive notice where it is shown that the intended recipient engaged in instances of selective acceptance/refusal of certified mail relating to the case.

      . Rule 21 provides, in relevant part:
      Every pleading, plea, motion or application to the court for an order, whether in the form of a motion, plea or other form of request, unless presented during a hearing or trial, shall be filed with the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order sought, and at the same time a true copy shall be served on all other parties, and shall be noted on the docket.
      Tex.R. Civ. P. 21.
      Rule 21a provides, in relevant part:
      Eveiy notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party’s last known address ... or by such other manner as the court in its discretion may direct.
      Tex.R. Civ. P. 21a.

      . Plaintiffs did ultimately cause a new citation, with their fifth amended original petition, to be served on McNew by the Secretary of State. The return on this citation, however, was not filed until after the trial court had struck McNew as a party.


source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Steve RODRIGUEZ, Appellant, v. U.S. SECURITY ASSOCIATES, INC., Appellee.
    No. 14-03-00892-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 28, 2005.

      Mason C. Meyer, Houston, for appellant.
    Edward P. Perrin Jr., Jennifer R. Poe, Dallas, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant Steve Rodriguez, third-party defendant below, brought cross-claims against appellee U.S. Security Associates, Inc. (USSA) and others who allegedly represented to his health care providers that he was an employee of USSA entitled to health insurance benefits, but then denied both the relationship and the benefits. After a lengthy procedural history, including two removals, two remands, and a bench trial, the trial court entered a take-nothing judgment against both Rodriguez and USSA on their claims against each other. In three issues, Rodriguez contends the trial court erred in (1) granting USSA’s motion to strike his timely-filed first amended cross-claim and not permitting him an opportunity to replead, (2) dismissing his tort claims based on federal preemption, and (8) holding that he was not a third-party beneficiary of the purchase agreement between USSA and his former employer and thus could not recover on a claim for wrongful termination.

We agree that the trial court erred when it granted USSA’s motion to strike, because that was an unauthorized procedural mechanism used to substantively attack Rodriguez’s pleadings; we therefore sustain his first issue and do not reach his second issue. However, we overrule Rodriguez’s third issue and affirm the trial court’s conclusion that Rodriguez was not a third-party beneficiary of the purchase agreement between USSA and his former employer.

I. Background

A. Factual Background

Rodriguez worked as a security guard for Nation Wide Security, Inc., which provided him with medical coverage and other benefits as part of his compensation. In early December 1996, he became ill while at work and had to leave his post. Rodriguez was eventually hospitalized and diagnosed with acute pancreatitis, a life-threatening illness. He was transferred to Hermann Hospital, where he remained until he was discharged at the end of December.

On December 22, 1996, while Rodriguez was receiving treatment at Hermann Hospital, Nation Wide sold certain assets to USSA under an Asset Purchase Agreement (Purchase Agreement). The Purchase Agreement included the following provision regarding Nation Wide’s employees:

3.2.7 Offers of Employment. ... Buyer will extend an offer of employment to all Persons employed by Seller immediately prior to the Effective Date in its Guard Services business conducted out of those locations listed on SCHEDULE 1.15 hereto at rates of pay no less favorable as their rates as of the Closing Date and with credit for seniority with respect to their rights to benefits under Buyer’s standard benefit plan; provided, however, that such employees execute and enter into employment and/or consulting agreements in form and substance satisfactory to Buyer.

Rodriguez was readmitted to Hermann Hospital on January 28, 1997, and remained there through February 8, 1997. During his hospitalizations and related treatments, USAA representatives repeatedly told Rodriguez and Hermann Hospital that Rodriguez was covered under USSA’s health benefits. Despite its representations, however, USSA refused to pay most of Rodriguez’s medical bills, totaling over $400,000. Instead, it asserted that Rodriguez was discharged when it purchased Nation Wide’s assets and retroactively terminated his eligibility for medical benefits as of December 22,1996.

B. Procedural Background

In September of 1997, Hermann Hospital sued USSA, U.S. Security Employee Benefit Plan, and First Health Benefits Administrators Corp. (USSA defendants), in a Harris County, Texas district court, alleging various claims arising out of USSA’s representations of coverage. The USSA defendants removed the case to federal court, alleging that Hermann Hospital’s claims were preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The case was remanded, and the USSA defendants then filed a third-party petition against Rodriguez for contribution and indemnity. In response, Rodriguez lodged counterclaims against the USSA defendants, including fraud, wrongful termination, promissory estoppel, negligent misrepresentation, and “violations of the Insurance Code, Deceptive Trade Practices, and other rules and regulations of the State Board of Insurance, including the Texas Administrative Code.” The USSA defendants again removed the case, claiming that Rodriguez’s claims implicate ERISA.

While in federal district court, the USSA defendants moved for summary judgment against Rodriguez and Hermann Hospital. On March 25, 2001, the district court signed a Memorandum and Order on Defendants’ Motion for Summary Judgment in which it detailed the parties’ claims, explained its rulings, and rendered judgment. In relevant part, the district court granted summary judgment in favor of USSA on all of Rodriguez’s claims except his wrongful termination claim, which the district court remanded to state court. The district court also held that Hermann Hospital’s claims were not preempted by ERISA and remanded its state law claims as well. That same day, the district court entered a final judgment dismissing the action.

Back again in state court, the USSA defendants unsuccessfully moved for summary judgment on Rodriguez’s wrongful termination claim. The case was then set for trial in August of 2002. In July of 2002, Rodriguez amended his cross-claim to “reassert” the claims the federal district court had ruled on, and to add claims for equitable estoppel and conspiracy. In response, the USSA defendants filed a “Motion to Strike Third-Party Defendant’s First Amended Cross-Claim.” On August 19, 2002, at the start of trial, the trial court granted this motion. Rodriguez’s remaining wrongful termination claim, and the parties’ other claims, were then tried to the court over several days.

On November 8, 2002, the trial court signed a final judgment in favor of Rodriguez on his wrongful termination claim. The trial court also adopted the findings of fact and conclusions of law Rodriguez proposed. A month later, the trial court granted Rodriguez’s motion to modify the final judgment to include additional damages. However, after a hearing on the USSA defendants’ motion to modify the judgment and motion for new trial, the trial court again amended its judgment. In the Second Amended Final Judgment, signed March 5, 2003, the trial court ordered that Rodriguez take nothing on his claims against the USSA defendants and that they take nothing on their claims against him. The trial court also adopted the USSA defendants’ proposed amended conclusions of law. Rodriguez moved to modify the Second Amended Final Judgment, but the trial court denied that motion. This appeal followed.

II. Analysis of Rodriguez’s Issues

A. The Trial Court Erred by Granting USSA’s Motion to Strike Rodriguez’s First Amended Cross-Claims Because This Was an Unauthorized Procedural Mechanism to Substantively Attack Rodriguez’s Pleadings.

In his first issue, Rodriguez contends the trial court’s judgment should be reversed because, in granting the motion to strike his first amended cross-claim and not affording him an opportunity to re-plead, the trial court used an unauthorized procedural mechanism to dismiss his claims. We agree.

1. The circumstances surrounding the motion to strike

After the second remand, and more than seven days before the start of trial, Rodriguez amended his cross-claim to “reassert” the claims for fraud, negligent misrepresentation, and promissory estoppel that the federal district court denied in its grant of summary judgment in favor of the USSA defendants. Rodriguez also added two new claims: equitable estoppel and conspiracy. He also included allegations supporting the wrongful termination claim that the federal court had remanded. In response, the USSA defendants moved to strike the first amended cross-claim.

In their motion to strike, the USSA defendants asserted that, with the exception of the wrongful termination claim, all of Rodriguez’s claims were barred. Specifically, they contended that (1) the fraud, negligent misrepresentation, and promissory estoppel claims were barred because the federal district court had already ruled on them, (2) equitable estoppel was not an independent cause of action, and (3) the conspiracy claim, which was based on an alleged breach of the Purchase Agreement’s provision that all Nation Wide employees would be offered employment, could not succeed as a matter of law. In support of its contention that the conspiracy claim could not succeed, the USSA defendants argued that (1) no underlying tort remained to support it, and (2) contrary to Rodriguez’s allegations, a principal cannot conspire with its own agent. Rodriguez responded that the federal court’s rulings were not binding on the trial court, and that his amended claims alleged state law claims that were not preempted by ERISA. In reply, the USSA defendants asserted that the claims the federal court ruled on were barred by collateral estop-pel. They also contended that Rodriguez misunderstood the federal court’s order and argued that the federal court denied Rodriguez’s claims on other grounds in addition to preemption, which Rodriguez did not address.

At the start of the trial, the trial court granted the USSA defendants’ motion to strike, and Rodriguez proceeded to trial on his only remaining claim, the wrongful termination claim.

2. The parties’ arguments on appeal

Rodriguez contends the Texas Rules of Civil Procedure do not include a procedure for attacking the substance of an amended pleading filed more than seven days before trial using a motion to strike, and therefore trial court erred by using an unauthorized procedural mechanism to summarily dismiss his claims without giving him an opportunity to replead. He contends that USSA was required to file special exceptions or a motion for summary judgment to obtain dismissal of the claims for the reasons USSA alleged.

USSA responds that (1) Rodriguez has waived this complaint because he did not raise it below, (2) USSA was not required to file a summary judgment or special exceptions on the reasserted claims because it would be unnecessary and illogical to require it to reassert a summary judgment granted in the same case (albeit in federal court) as an “affirmative defense” to an amended pleading, and (3) if necessary, the motion to strike could be viewed as asserting special exceptions to Rodriguez’s new claims of equitable estoppel and conspiracy. Moreover, USSA contends, as to the new claims, the trial court did not err by not allowing Rodriguez an opportunity to replead because the claims alleged are not recognized under Texas law and the defects were incurable.

S. The motion to strike was an improper vehicle for dismissing Rodriguez’s claims on the merits

We recognize USSA’s apparent frustration with Rodriguez’s amended pleading, and we cannot say that, under these circumstances, its arguments are entirely without merit or persuasive effect. However, Rodriguez is correct that the motion to strike is not authorized under the Texas Rules of Civil Procedure as USSA used it here: to summarily dismiss Rodriguez’s substantive claims without an opportunity to replead. See, e.g., Fort Bend County v. Wilson, 825 S.W.2d 251, 252-53 (Tex.App.-Houston [14th Dist.] 1992, no writ); Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 482-83 (Tex.App.-Houston [14th Dist.] 1991, no writ); Susanoil, Inc. v. Cont’l Oil Co., 516 S.W.2d 260, 263-64 (Tex.App.-San Antonio 1973, no writ). Moreover, as in Centennial, we find that Rodriguez has not waived this issue because the trial court’s use of the unauthorized procedural mechanism was the type of error that cannot be waived. See Centennial, 803 S.W.2d at 482 (holding that complaint that appellee used an unauthorized procedure to obtain dismissal of appellant’s claims was not waived because the trial court lacked authority to enter the order of dismissal).

As this court explained in Centennial, motions for summary judgment and special exceptions provide well-settled procedural guidelines and protections, but motions to dismiss claims for failing to state a cause of action do not. Centennial, 80S S.W.2d at 483. Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exception. Id. Special exceptions may also be used to question the sufficiency in law of a plaintiffs petition. Id. And, when special exceptions are sustained, the pleader must be given, as a matter of right, an opportunity to replead. Id. Only after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action. Id.

The circumstances of this case illustrate the dangers of dismissing claims using an unauthorized procedural vehicle like the motion to strike used here. First, the motion was not properly denominated in accordance with the rules of civil procedure. Second, it triggered no specified timetables or protective procedures. Third, it was granted without an opportunity for Rodriguez to amend his pleading before his claims were stricken.

On appeal, the lack of any established procedures or guidelines presents us with additional difficulties. It is not clear what standard of review we are to apply to the trial court’s action. In its brief, USSA mentions the abuse-of-discretion standard, but at oral argument, it suggested de novo review was appropriate, and admitted that it found no cases addressing the appropriate standard of review to apply. We also have had difficulty interpreting the motion as a pleading that is authorized by the rules of civil procedure. The motion to strike cannot be considered a motion for summary judgment, because it did not comply with the specific procedures outlined in Texas Rule of Civil Procedure 166a. See Tex.R. Civ. P. 166a(c) (specifying requirements of summary judgment motion and proceedings). Likewise, it cannot be interpreted as special exceptions because it was not denominated as such, and neither the parties nor the court treated the motion to strike as special exceptions.

Although USSA contends its attack on Rodriguez’s equitable estoppel and conspiracy claims could reasonably be viewed as special exceptions because it alleged that Rodriguez failed to state a claim under Texas law, we reject this claim as well as its secondary claim that repleading would not cure the ills in Rodriguez’s action and so dismissal would be appropriate. These suggestions fail to cure the fundamental problem with USAA’s motion to dismiss: the Texas Rules of Civil Procedure do not recognize or sanction a substantive motion to dismiss. When the motion was filed, it failed to notify Rodriguez what action he must take in response, for the simple reason that none is specified in the rules. To penalize Rodriguez for not responding in a certain way to a fictional pleading and to reward USAA for filing a fictitious pleading when the rules contain two very appropriate pleadings (motions for summary judgment and special exceptions) with very specific responses for this situation would be unwise. That would create confusion when the purpose of the rules is to do just the opposite. See Tex.R. Civ. P. 1 (“The proper objective of rules of civil procedure is to obtain a just,. fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”).

Therefore, we sustain Rodriguez’s first issue, and we reverse and remand his claims of fraud, negligent misrepresentation, promissory estoppel, equitable estop-pel, and conspiracy to the trial court for further proceedings in accordance with this opinion. Because of our disposition of the first issue, we do not reach Rodriguez’s second issue addressing the merits of the stricken claims.

B. The Trial Court Correctly Ruled that Rodriguez was not a Third-Party Beneficiary of the Purchase Agreement and Therefore Could Not Recover on a Claim for Wrongful Termination Based on a Breach of the Agreement.

In his third issue, Rodriguez contends the trial court erred as a matter of law in concluding that he was not a third-party beneficiary of the Purchase Agreement and so could not recover on a claim for wrongful termination based on the agreement. Rodriguez points out that the trial court’s Amended Final Judgment and Supplemental Findings of Fact and Conclusions of Law determined that Rodriguez was a third-party beneficiary of the Pin-chase Agreement and could state a claim for wrongful termination, but it reversed itself in the Second Amended Final Judgment and its Amended Conclusions of Law. Rodriguez requests that we reverse the later judgment and reinstate the Amended Final Judgment. We find, however, that the trial court correctly determined that Rodriguez was not a third-party beneficiary of the Purchase Agreement.

Two provisions of the Purchase Agreement are central to our analysis. As noted in the factual background above, the Purchase Agreement contained the following provision regarding offers of employment to Nation Wide’s employees:

3.2.7 Offers of Employment. ... Buyer will extend an offer of employment to all Persons employed by Seller immediately prior to the Effective Date in its Guard Services business conducted out of those locations listed on SCHEDULE 1.15 hereto at rates of pay no less favorable as their rates as of the Closing Date and with credit for seniority with respect to their rights to benefits under Buyer’s standard benefit plan; provided, however, that such employees execute and enter into employment and/or consulting agreements in form and substance satisfactory to Buyer.

In a later section containing miscellaneous provisions, the Purchase Agreement disavows third-party beneficiaries:

9.3 No Third Party Beneficiaries. The provisions of this Agreement shall not entitle any person not a signatory to this Agreement to any rights as a third party beneficiary, or otherwise, it being the specific intention of the parties hereto to preclude any and all non-signatory parties from any such third party beneficiary rights, or any other rights whatsoever.

The gist of Rodriguez’s contention is that the “Offers of Employment” provision created a specific promise or guarantee of employment benefiting him and other Nation Wide employees. Rodriguez acknowledges the language disavowing third-party beneficiaries, but contends that the trial court misconstrued the Texas Supreme Court’s opinion in MCI Telecommunications Corp. v. Texas Utilities Electric Co. to erroneously conclude that this “boilerplate” provision expressly negates any intent to benefit third parties. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-52 (Tex.1999).

Generally, a plaintiff may not enforce a contract to which he is not a party. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex.2002)(per curiam). A third party may recover on a contract made between other parties only if he can show that the contracting parties intended the contract for his direct benefit. MCI Telecomms., 995 S.W.2d at 651; Drilltec Techs., Inc. v. Remp, 64 S.W.3d 212, 215 (Tex.App.-Houston [14th Dist.] 2001, no pet.). An incidental benefit is not enough. MCI Telecomms., 995 S.W.2d at 651; Drilltec, 64 S.W.3d at 215.

As the MCI court instructs, in determining whether a third party can enforce a contract, “the intention of the contracting parties is controlling.” MCI Telecomms., 995 S.W.2d at 651. This intention to contract for or confer a direct benefit to a third party must be clearly and fully spelled out, or enforcement by the third party must be denied. Id. Thus, a presumption exists that parties contracted for themselves unless it clearly appears that they intended a third party to benefit from the contract. Id. To determine the parties’ intent, we must examine the entire agreement to harmonize and give effect to all the contract’s provisions so that none are rendered meaningless. Id. at 652.

Rodriguez contends that the trial court’s reliance on the “boilerplate” provision disavowing third-party beneficiaries rendered the “Offers of Employment” provision meaningless in contravention of the contract interpretation principles enunciated in MCI. However, the “Offers of Employment” provision is-not rendered meaningless merely because former Nation Wide employees like Rodriguez may not enforce it. In this provision, USSA was making a promise to Nation Wide to offer employment to its employees; it was not making a promise to the employees themselves. Therefore, recognizing the parties’ intent not to confer rights upon any third-party beneficiaries does not render the “Offers of Employment” provision meaningless.

Moreover, the MCI court determined that a similar provision disavowing third-party beneficiaries, which could be harmonized with rights conferred in other provisions of the contract, reflected the parties’ express intent and held that the plaintiff was prohibited from asserting any rights as a third-party beneficiary under the contract. See MCI Telecomms., 995 S.W.2d at 652. Indeed, the contract provision at issue in MCI was less explicit than the language in the Purchase Agreement, because it did not expressly refer to “third-party beneficiary rights”:

Except as provided in this subpara-graph, neither this Agreement, nor any term or provision hereof, nor any inclusion by reference, shall be construed as being for the benefit of any party not in signatory hereto.

Id. at 649-650.

Thus, considering the contract as a whole and the presumption against the creation of third-party beneficiaries, and given the explicit language reflecting the parties’ intent not to confer rights upon any third-party beneficiaries, we find that the trial court correctly concluded that Rodriguez was not a third-party beneficiary entitled to maintain an action for wrongful termination/breaeh of contract based on the Purchase Agreement.

We therefore overrule Rodriguez’s third issue.

III. Conclusion

We hold that the trial court erred by granting USSA’s motion to strike using an unauthorized procedural mechanism to substantively attack Rodriguez’s pleadings, and we therefore sustain Rodriguez’s first issue and do not reach his second issue. We overrule Rodriguez’s third issue and affirm the trial court’s conclusion that Rodriguez was not a third-party beneficiary of the purchase agreement between USSA and his former employer. Therefore, we affirm in part and reverse in part the trial court’s judgment, and remand for further proceedings in accordance with this opinion.

      . Although U.S. Security Employee Benefit Plan and First Health Benefits Administrators Corp. f/k/a First Health Strategies (TPA), Inc. were parties below, they are not parties to this appeal. Hermann Hospital also sued Nation Wide, Nation Wide Security, Inc. Employee Health Benefit Plan, and Weyco, Inc., but the claims against these defendants were eventually dismissed with prejudice and are not a subject of this appeal.

      . See 29 U.S.C. §§ 1001-1461; see also 28 U.S.C. § 1331 (federal question jurisdiction).

      . Rodriguez’s amended pleading did not reassert the violations of the Insurance Code or Deceptive Trade Practices Act made in the earlier pleading.

      . In the Second Amended Final Judgment, the trial court left in place its judgment in favor of Hermann Hospital and awarded damages of $235,917.66 and pre-and post-judgment interest. Hermann Hospital is not a party to this appeal.


author: LESLIE BROCK YATES, Justice.

text:
    Randall Bruce SPENCER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00059-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 28, 2005.
    David Cunningham, Houston, for appellant.
    Eric Kugler, Houston, for appellee.

      Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant Randall Bruce Spencer appeals from his conviction for the domestic assault of Michelle O’Mealey. O’Mealey did not testify at trial, but the trial court allowed two peace officers who responded to the scene after O’Mealey called 911 to testify that O’Mealey told them appellant had hit her. Appellant contends this ruling deprived him of his right to confront witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution. Because we conclude that O’Mealey’s statements to the officers were not “testimonial,” we affirm.

In the early morning hours of September 5, 2003, Deputies John Igoe and Greg Thomason responded to a 911 hang-up call from a residence in Harris County. When they arrived at the scene less than three minutes later, they found O’Mealey standing in her front yard holding her nine-month old baby. She had red marks on her left cheek and blood coming from her nose and on her clothing. Her eyes were red and puffy as if she had been crying, and she was shaking and visibly distraught. She told the deputies that she was in bed with her baby when appellant came in and laid down next to her. He then jumped on top of her and the baby and started punching her in the face with his fist. She also told the deputies that appellant had been drinking earlier in the day.

After establishing that appellant was no longer on the premises, the deputies accompanied O’Mealey back into the residence, and she made a written statement. After O’Mealey refused any emergency treatment for her injuries, the deputies left. Shortly after, another 911 call came in from the same address. The deputies returned and found appellant at the scene. He was arrested and charged with assault.

As often happens in domestic violence cases, the victim, O’Mealey, did not testify at trial. The State put on its case through Deputies Igoe and Thomason, who testified as to what they saw when they arrived at the scene and what O’Mealey told them before they accompanied her inside the residence and she gave a written statement. Appellant objected to admission of this evidence, arguing that it was hearsay and deprived him of his right to confront his accuser. The trial court admitted O’Mealey’s initial statements to the officers under the excited utterance exception to the hearsay rule. On appeal, appellant does not challenge the trial court’s determination that O’Mealey’s statements were excited utterances. Rather, he contends that even if they were excited utterances, their admission violated his right of confrontation as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was decided shortly after the case was tried.

In Crawford, the petitioner, Crawford, stabbed a man who allegedly tried to rape his wife. Id. at 38, 124 S.Ct. 1354. His wife gave a tape-recorded statement to the police describing the stabbing. Id. She did not testify at trial, based on spousal privilege. Id. at 40, 124 S.Ct. 1354. Crawford claimed self-defense, and the state sought to use his wife’s statement as evidence refuting his self-defense theory. Id. Crawford objected, contending that admitting his wife’s statement to the police violated his Sixth Amendment right to be “‘confronted with the witnesses against him.’ ” Id. (quoting U.S. Const, amend. VI).

The trial court admitted the evidence under the rule of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate indicia of reliability.” Id. at 66, 100 S.Ct. 2531 (internal quotation marks omitted). After thoroughly analyzing the history of the Confrontation Clause and the evils it was designed to prohibit, the Court concluded that the Roberts test strays from the original meaning of the Confrontation Clause. Crawford, 541 U.S. at 42-51, 124 S.Ct. 1354. Therefore, the Court in Crawford established a new framework for analyzing a Confrontation Clause claim. If the statement at issue is “testimonial,” it is inadmissible unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id. at 53-54, 124 S.Ct. 1354. Thus, the threshold issue under Crawford is whether the statement to be admitted is testimonial.

The Court did not define “testimonial,” but it noted three formulations of “core” testimonial evidence: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials,” and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52, 124 S.Ct. 1354. The Court further explained that the term “testimonial” applies “at a minimum to prior testimony at a preliminary heating, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354. The Court also declined to define “police interrogation” but did note that “interrogation” is used “in its colloquial, rather than any technical legal, sense.” Id. at 53 n. 4, 124 S.Ct. 1354.

The issue we address is whether statements made by a crime victim to police on the scene responding to the victim’s call for help shortly after the crime are testimonial. The only Texas case to address this issue is Key v. State, No. 12-04-00030-CR, 2005 WL 467167, - S.W.3d - (Tex.App.-Tyler Feb. 28, 2005, pet. ref'd). In Key, a police officer arrived at a residence in response to a disturbance call and found a man and a woman sitting outside arguing. The woman told the officer the man had been restraining her all day and had pulled her to the ground and injured her when she recently tried to run from the house. At the man’s assault trial, the woman did not testify, but the officer testified as to the woman’s statements to him. Id. at *1, — S.W.3d at -. In evaluating the man’s Crawford issue, the court noted that “[t]he types of statements cited by the Crawford court as testimonial all involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings.” Id. at *2, — S.W.3d at -. In assessing whether the woman’s statements were given in response to police interrogation, the court concluded that the unstructured interaction between the officer and the woman while the officer was responding to a call and securing and assessing the scene did not amount to interrogation. Id. at *4, — S.W.3d at-; see also Gonzalez v. State, 155 S.W.3d 603, 609 n. 4 (Tex.App.San Antonio 2004, pet. filed) (commenting, but not deciding, that investigatory questioning immediately after a crime is likely not interrogation); Wilson v. State, 151 S.W.3d 694, 697-98 (Tex.App.-Fort Worth 2004, pet. ref'd) (finding that admission of non-testifying witness’s self-initiated statements to police officers in response to unstructured questions during the investigation of a crime did not violate Crawford ); Davis v. State, No. 2-03-305-CR, 2005 WL 183141, at *4 (Tex.App.-Fort Worth Jan. 27, 2005, pet. filed) (not designated for publication) (holding that voluntary statements to the police initiated by the witness are not interrogation and therefore are nontestimonial).

After concluding the statements were not made in response to police interrogation, the Tyler court did not end its analysis there. Because the woman’s statements were admittedly excited utterances, the court concluded they were not testimonial as a matter of law because with an excited utterance, the declarant has had no time for reflection or deliberation and thus has not made the statement in contemplation of its .use in a future trial. Key, — S.W.3d at -, 2005 WL 467167, at *4-5. We disagree with the Tyler court’s conclusion that all excited utterances are nontestimonial. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). The State urges us to categorically conclude, as did the Tyler court, that excited utterances are nontestimonial. This position has support in cases from other jurisdictions. Some courts have expressed skepticism as to whether an excited utterance can ever be testimonial. See, e.g., People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); People v. King, No. 02CA0201, — P.3d -, -, 2005 WL 170727, at *5 (Colo.Ct.App. Jan.27, 2005); Hammon v. State, 809 N.E.2d 945, 952-53 (Ind.Ct.App.2004). Others have concluded that the characteristics that make a statement an excited utterance are inconsistent with the statement being testimonial. See, e.g., Fowler v. State, 809 N.E.2d 960, 964 (Ind.Ct.App.2004); People v. Isaac, No. 23398/02, 2004 WL 1389219, at *4 (N.Y.Dist.Ct. June 16, 2004)(unpublished disposition); State v. Anderson, No. E2004-00694-CCA-R3-CD, 2005 WL 171441, at *4 (Tenn.Crim. App. Jan. 27, 2005). All of these courts have focused on the declarant’s lack of deliberation in making the excited utterance, which they conclude indicates that the declarant could not have anticipated the statement being used prosecutorially. See Corella, 18 Cal.Rptr.3d at 776; King, - P.3d at -, 2005 WL 170727, at *5; Folder, 809 N.E.2d at 964; Hammon, 809 N.E.2d at 952-53; Isaac, 2004 WL 1389219, at *4; Anderson, 2005 WL 171441, at *4.

Certainly, the fact that a statement is an excited utterance is a factor that can be considered when determining whether the statement is testimonial. However, we note that Texas courts have held that a declarant’s state of excitement can last long after the initial crime and that excited utterances can be made both spontaneously and in response to questioning. See, e.g., Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App.2003) (holding that statement made twenty hours after altercation in response to a question was an excited utterance and stating: “Declarations made either in response to questioning or after some time had elapsed are only two factors in determining whether a statement is an excited utterance. Neither factor alone is dispositive.” (citation omitted)). It is not unreasonable to imagine a situation in which officers secure a scene and then begin formal, structured questioning of witnesses (or the victim) who are still under the stress of the situation. We are not convinced that responses to questions under such circumstances would be nontesti-monial. Each situation should be analyzed individually. See Standi v. United States, 866 A.2d 799, 809 (D.C.Ct.App.2005) (“Some excited utterances are testimonial, and others are not, depending on the circumstances.”). Accordingly, we decline to join those courts that have established a bright-line rule that excited utterances can never be testimonial.

Though we disagree with its excited utterance analysis, we agree with the Tyler court’s conclusion that statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial. See Key, 2005 WL 467167, at *4, — S.W.3d at -. A majority of courts in other jurisdictions have also held “that initial police-victim interaction at the scene of an incident is not an interrogation.” Id, at *3, - S.W.3d at -. For example, in Ham-mon, in concluding that a police officer’s questioning did not constitute interrogation, the Indiana Court of Appeals noted that the “common denominator” in the various examples of testimonial statements given in Crawford, which was lacking here, “is the official and formal quality of such a statement.” Hammon, 809 N.E.2d at 952. Even though the victim’s statements were given in response to questioning from the officer, such informal questioning is not the same as interrogation. Id. The court held that the victim’s statements were not testimonial:

We thus hold that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not “testimonial.” Whatever else police “interrogation” might be, we do not believe that word applies to preliminary investigatory questions asked at the scene of a crime shortly after it has occurred.

Id.; accord Rogers v. State, 814 N.E.2d 695, 701-02 (Ind.Ct.App.2004); Fowler, 809 N.E.2d at 962-64.

The California Court of Appeal reached a similar conclusion in Corella. The court held that the victim’s statements, made to an officer responding to her call for help, were not given in response to structured police questioning and therefore were not testimonial:

Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an “interrogation.” Such an unstructured interaction between an officer and a witness bears no resemblance to a formal or informal police inquiry that is required for a police interrogation as that term is used in Crawford.

Corella, 18 Cal.Rptr.3d at 776.

In State v. Forrest, 164 N.C.App. 272, 596 S.E.2d 22 (2004), the North Carolina Court of Appeals analyzed whether a kidnap victim’s spontaneous statements to police immediately after being rescued were testimonial. Id. at 24-25. The court concluded that such statements were not the product of police interrogation and therefore not testimonial. Id. at 27. “Crawford protects defendants from an absent witness’s statements introduced after formal police interrogations in which the police are gathering additional information to further the prosecution of the defendant. Crawford does not prohibit spontaneous statements from an unavailable witness like those at bar.” Id.

The relevant Texas authority, along with Hammon, Corella, Forrest, and a majority of other courts, establish several principles that guide our analysis in this case:

(1)Testimonial statements are official and formal in nature. See Key, 2005 WL 467167, at *2, -S.W.3d at -; Wilson, 151 S.W.3d at 698; Corella, 18 Cal.Rptr.3d at 776; Fowler, 809 N.E.2d at 964; Hammon, 809 N.E.2d at 952; Forrest, 596 S.E.2d at 27; see also People v. Watson, No. 7715/90, 2004 WL 2567124, at *10 (N.Y.Sup.Ct. Nov.8, 2004) (unpublished disposition) (“Crawford, therefore, suggests that a testimonial statement in the context of a police interrogation is one which the declarant makes knowingly in response to structured questioning which the government is undertaking in furtherance of the prosecution of the defendant, or under some other circumstances which renders the statement a ‘formal’ declaration.”).
(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police. See Wilson, 151 S.W.3d at 698; Davis, 2005 WL 183141, at *4; Corella, 18 Cal.Rptr.3d at 776; see also People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (Crim.Ct.2004) (finding that statements made during 911 call were nontestimonial, in part because the call is typically initiated by the victim, not the police).
(3) Spontaneous statements to the police are not testimonial. See Davis, 2005 WL 183141, at *4; Forrest, 596 S.E.2d at 27; see also Watson, 2004 WL 2567124, at *14 (holding that an unprompted remark by witness to police on the scene was nontestimo-nial); Commonwealth v. Gray, 867 A.2d 560, 577 (Pa.Super.Ct.2005) (noting the consensus that excited utterance statements volunteered to police to obtain their assistance are nontestimonial).
(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial. See Key, — S.W.3d at -, 2005 WL 467167, at *3-4; Gonzalez, 155 S.W.3d at 609 n. 4; Wilson, 151 S.W.3d at 698; Corella, 18 Cal.Rptr.3d at 776; Fowler, 809 N.E.2d at 964; Hammon, 809 N.E.2d at 952; see also United States v. Webb, No. DV-339-04, 2004 WL 2726100, at *3 (D.C.Super.Ct. Nov. 9, 2004) (finding “investigatory questioning at the scene of a crime soon after the criminal event” to be nontestimonial (emphasis omitted)).

Applying these principles to the case at bar, we find that O’Mealey’s statements to the deputies were not testimonial. O’Mealey summoned the police for help. She, not the police, initiated the contact. The record is unclear as to whether her statements to the deputies were unprompted or in response to questioning. Deputy Igoe testified that he immediately asked O’Mealey if appellant was still on the scene as he could be a threat to O’Mealey or the officers. This simple, preliminary question designed to ensure the safety of those on the scene does not amount to interrogation. The deputies’ remaining testimony merely reflects what O’Mealey “said” or “told” them. However, even assuming O’Mealey’s statements were made in response to questioning, preliminary questions when police arrive at a crime scene to assess and secure the scene do not constitute interrogation. They bear no indicia of the formal, structured questions necessary for statements to be testimonial. Thus, we conclude that O’Mealey’s statements to the deputies upon their arrival at the scene were not testimonial, and the trial court’s admission of the statements did not violate appellant’s rights under the Confrontation Clause. We overrule appellant’s sole issue.

The judgment of the trial court is affirmed.

      . As the Indiana Court of Appeals recently noted, "[o]ne recent scholarly article estimates that between eighty and ninety percent of domestic violence victims recant their accusations or refuse to cooperate with a prosecution." Fowler v. State, 809 N.E.2d 960, 965 (Ind.Ct.App.2004) (citing Tom Lininger, Evi-dentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L.Rev. 687, 709 n. 76 (2003)).

      . The Court of Criminal Appeals has only briefly addressed a Crawford issue, noting that "casual remarks that [a witness] spontaneously made to acquaintances” were not testimonial. Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App.2004). This court addressed Crawford in a different context than we consider here, holding that a videotaped statement given to police was testimonial. See Gutierrez, v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also Jahanian v. State, 145 S.W.3d 346, 350 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (finding that written statement given during police investigation after witness had become a suspect was testimonial). The only real split of authority in Texas cases involves whether police questioning of a victim at the hospital is testimonial. Compare Wall v. State, 143 S.W.3d 846, 851 (Tex.App.-Corpus Christi 2004, pet. granted) (statements given following questioning at hospital testimonial), with Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. ref'd) (statements given following questioning at hospital non-testimonial), cert. denied, - U.S. -, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005).

      . It is not surprising that the testimony was not developed this way, given that this case was tried before Crawford was decided and highlighted the significance of police interrogation in assessing whether a statement is testimonial.

      . The lead case expressing an alternative view is Lopez v. State, 888 So.2d 693 (Fla.Dist.Ct.App.2004). In Lopez, when officers encountered an alleged kidnap victim and asked what happened, the victim said he had been abducted at gunpoint by the defendant. Id. at 695. In assessing whether the victim's statements to the officer were testimonial, the court agreed that they did not fall within the first or second of the core classes of testimonial statements outlined in Crawford because they were informal and not made in response to a structured police inquiry. Id. at 698. However, the court concluded the statements were testimonial under the third core class of testimonial statements, which it characterized to include statements "meant to be used against someone in court." Id. Thus, if a statement is made to a person with authority, such as a police officer, for the purpose of accusing someone, it is testimonial. Id. at 699. We disagree with the Lopez court's use of this third category to broaden the spectrum of statements to the police that are testimonial. Crawford clearly states that responses to police interrogations are testimonial statements, see 541 U.S. at 52, 124 S.Ct. 1354, and we do not read .Crawford as indicating that responses to questions that do not rise to the level of interrogation are testimonial. See Hammon, 809 N.E.2d at 952 (distinguishing between police interrogation, which gives rise to testimonial statements, and police questioning, which does not); accord King, 2005 WL 170727, at *5, - P.3d at -; Webb, 2004 WL 2726100, at *3; Fowler, 809 N.E.2d at 964.

      .The State does not argue that the written statement O’Mealey provided once the deputies accompanied her into her house is non-testimonial. Indeed, at that point, the entire character of the interaction changed, taking on a much more formal and structured quality-


author: Justice MORRIS.

text:
    Joan Weathersbee ELLASON, Appellant, v. Don Thomas ELLASON, Appellee.
    No. 05-04-00569-CV.
    Court of Appeals of Texas, Dallas.
    May 13, 2005.

      Joan Weathersbee Ellason, Plano, TX, for Appellant.
    Don Thomas Ellason, Plano, TX, for Ap-pellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

In this appeal from an order in a suit affecting a parent-child relationship, appellant Joan Weathersbee Ellason contends the trial court erred in granting appellee Don Thomas Ellason the exclusive right to determine their child’s primary residence. Appellant also contends the order was signed without due process, is inconsistent with the rulings made at trial, and is not supported by legally or factually sufficient evidence. Finally, appellant argues the trial court demonstrated bias in the proceedings and ignored her requests that the child receive counseling. After reviewing the record and arguments on appeal, we conclude appellant’s contentions are without merit. We affirm the trial court’s order.

I.

Appellant and her former husband, ap-pellee, were divorced in May 2001. The original divorce decree named appellant as the sole managing conservator of appellant and appellee’s only child, C.W.E. The decree also granted appellant the exclusive right to determine C.W.E.’s primary residence.

On June 26, 2003, the trial court signed an agreed order modifying the original divorce decree and naming both appellant and appellee as joint managing conservators of C.W.E. In the new order, neither appellant nor appellee was given the exclusive right to determine C.W.E.’s primary residence. Instead, the order stated that both appellant and appellee “shall each have the joint right to establish the child’s primary residence within the Plano I.S.D., Plano, Collin County, Texas.”

Approximately two months after the agreed order was signed, appellant filed a petition to modify the parent-child relationship requesting that she be reappointed as sole managing conservator of C.W.E. with the right to determine his primary residence. Appellant based her petition on allegations that appellee had violated an injunction regulating the parties’ consumption of alcohol in C.W.E.’s presence. Ap-pellee responded with a general denial and, on November 21, 2003, filed a cross-petition requesting that he be named as sole managing conservator of C.W.E. Attached to appellee’s cross-petition was an affidavit signed by C.W.E. stating his desire to have appellee named as his managing conservator and be the person with whom he would live.

A trial was conducted before the court without a jury. As part of the trial, the trial court interviewed C.W.E. in chambers to determine his wishes as to conservator-ship. On February 11, 2004, after both sides presented their case, the trial court ruled orally that appellant and appellee would remain as joint managing conservators but granted appellee the exclusive right to determine C.W.E.’s residence. The court asked the parties to confer and submit a written order for signature within thirty days.

On March 10, appellee submitted a written order along with a motion for the trial court to sign the order. Attached to the motion was a copy of correspondence from appellee to appellant’s counsel discussing appellant’s requested changes to the draft order. A hearing was set on the motion for March 26.

On March 26, the trial court conducted a hearing on appellee’s motion to sign. Neither appellant nor her counsel appeared at the hearing. The trial court signed the order submitted by appellee naming him as the joint managing conservator with the exclusive right to determine C.W.E.’s primary residence. Appellant brings this appeal.

II.

In her first issue on appeal, appellant contends the trial court erred in failing to dismiss appellee’s counter-petition to modify the parent-child relationship because the counter-petition did not include a supporting affidavit as required by section 156.102of the Texas Family Code. Section 156.102states that if a person files suit seeking to modify the designation of the person having the exclusive right to determine the primary residence of a child within one year after the order sought to be modified was rendered or signed, the person filing the suit must execute and attach an affidavit showing that at least one of three conditions exists. Tex. FajiCobe Ann. § 156.102 (Vernon Supp.2004-05). The affidavit supporting the petition must contain an allegation and supporting facts showing that either (1) the child’s present environment is endangering his physical health or emotional development, (2) the person who has the exclusive right to determine the primary residence is seeking or consenting to the modification, or (3) the person who has the exclusive right to determine the primary residence has voluntarily relinquished primary care and possession of the child for at least six months and the modification is in the best interests of the child. Id. Appellant argues appellee failed to submit the required affidavit and, therefore, his counter-petition should never have been considered by the trial court.

We recently held in In re R.C.S., T.C.S., J.C.S., andM.C.S., that, by its clear and unequivocal terms, the affidavit requirement found in section 156.102 is applicable only to suits seeking to modify the designation of a person with the exclusive right to determine the primary residence of a child. See In re R.C.S., — S.W.3d -, -, No. 05-04-00305-CV, 2005 WL 977827, at *2 (Tex.App.-Dallas 2005, no pet. h.). We further concluded the affidavit requirement does not apply when at the time suit is filed no person possesses this exclusive right. Id. The order appellee sought to modify in this case stated that both he and appellant had a joint right to establish C.W.E.’s primary residence. Therefore, as in In re R.C.S., appellee was not seeking to modify a previously existing exclusive right to determine the child’s residence. See id. Because appellee was not seeking to modify an exclusive right to determine C.W.E.’s residency, section 156.102does not apply to appellee’s counter-petition. We resolve appellant’s first issue against her.

In her second issue, appellant contends the hearing on appellee’s motion to sign his proposed order was conducted without due process because neither she nor her attorney was able to attend. Appellant argues there were objections to the final order she was not given an opportunity to present because the order was signed in her absence. Appellant concedes her attorney was notified of the hearing a week before it took place. Despite being aware of the hearing, appellant never moved for a continuance as required by rule 251 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 251. Appellant contends her counsel requested a continuance by leaving a phone message with the trial court’s Court Coordinator. Such a request does not meet the requirements of rule 251. See id. Furthermore, there is no evidence in the record showing that such a request was made. The only evidence of a request that the hearing be rescheduled is an affidavit signed by appellant’s counsel attached to her appellate brief. We cannot consider documents attached to briefs that do not also appear in the appellate record. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). We resolve appellant’s second issue against her.

Appellant’s third issue alleges that the order signed by the trial court is inconsistent with the oral rulings it made at the end of trial. Specifically, the mother complains of four portions of the written order that state: (1) the child’s residency is restricted to the Plano Independent School District; (2) appellee is given the option to change one of the summer visitation weekends upon notice to appellant; (8) appellee is given the exclusive right to represent the child in legal matters; and (4) court costs are allocated to appellant. Appellant contends these provisions in the written order contradict statements made by the trial court at the end of trial in which he ordered “a joint managing conservatorship with the father primary” and that the mother would be allowed “standard visitation.” Appellant further argues the trial court erred in signing a decree that included matters not discussed at trial because she was not given a chance to object. As discussed above, appellant had the opportunity to object to the proposed order at the hearing on the motion to sign, but she failed either to attend the hearing or request a continuance.

It is well established that “a suit properly invoking the jurisdiction of the court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child.” See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967). Furthermore, “courts are given wide discretion in such proceedings.” Id. The matters about which appellant complains are details involving custody and control of C.W.E. and an allocation of court costs. It was well within the trial court’s jurisdiction, as well as its discretion, to make these rulings. Appellant makes no argument that the rulings were unsupported or an abuse of discretion.

Appellant suggests that appellee misrepresented the contents of the order when he presented it to the trial judge to be signed. To the extent appellant is implying that appellee committed a fraud on the trial court, she gives no argument or authority to support such a claim. We resolve appellant’s third issue against her.

Appellant combines her arguments under her fourth and tenth issues to contend that the trial court demonstrated bias against her during the course of the proceedings in this case. Appellant points to various rulings and actions at trial, as well as the trial judge’s comment that he had a son the same age as C.W.E., to argue there is “significant concern” the court was not objective. All parties have a right to a fair and impartial trial before a neutral judge. See Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). It is only in the rarest circumstances, however, that judicial rulings demonstrate the degree of favoritism or antagonism necessary to show that a fair and impartial trial was not possible. Id. at 87. Rulings with which a party disagrees are best brought as grounds for appeal rather than evidence of judicial bias. Id.

The only ruling about which appellant complains is the trial court’s refusal to dismiss appellee’s counter-petition under section 156.102 of the Texas Family Code. As discussed above, this ruling was correct because section 156.102 did not apply to appellee’s counter-petition.

Appellant also states the court made comments during trial that showed bias against her. For example, appellant notes the trial court referred to appellant’s private investigator’s report as hearsay and “initially declined to allow [the report] as an exhibit.” A review of the record demonstrates that, when appellant’s counsel offered the investigator’s report as an exhibit, the trial court questioned whether the report would be hearsay because the investigator was present to testify about its contents. The trial court never denied any request for its admission but, after discussing the hearsay issue, told the lawyer to “do whatever you want to do, do it your way.” Appellant’s lawyer never re-offered the report as an exhibit. The trial court did nothing, therefore, to prevent the report from being admitted into evidence.

Another trial court comment about which appellant complains is the, court’s statement made when it asked the parties to prepare an order. The judge stated that he hoped the parties would not “go back and forth forever on what the appropriate order is.” It is unclear why appellant feels this comment demonstrates bias against her as it was not directed solely to her or her counsel. Indeed, if the comment was directed at any party, it appears to have been intended for appellee who, the court noted, was appearing pro se and, therefore, would not have a lawyer helping him prepare the order.

The remaining matters noted by appellant involve the trial court’s alleged disregard of her evidence at trial. These complaints are properly brought as challenges to the legal or factual sufficiency of the evidence. See id. After examining the record, we conclude the trial court did not exhibit any bias or antagonism in this case that would prevent it from rendering a fair judgment. We resolve appellant’s fourth and tenth issues against her.

Appellant’s challenges to the sufficiency of the evidence are found in her fifth, sixth, seventh, eighth, and ninth issues. All five issues center on the trial court’s decision to grant appellee the exclusive right to determine C.W.E’s primary residence and its failure to require counseling for the child. A court may modify an order providing the terms and conditions of conservatorship if the modification would be in the best interests of the child and “the child is at least twelve years of age and has filed with the court, in writing, the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.” Tex. Fam.Code Ann. § 156.101 (Vernon Supp.2004-5). In this case, C.W.E. signed an affidavit stating his choice of appellee as the person with whom he wished to live. Accordingly, the trial court had grounds upon which to modify the order to grant appellee the right to determine the child’s residence so long as the evidence also showed this modification was in C.W.E.’s best interest.

Appellant argues there is insufficient evidence of C.W.E.⅛ preference of residency because there was no reporter’s record made of the trial court’s interview of the child in chambers. The Texas Family Code provides, that in a nonjury trial, the court may “interview the child in chambers to determine the child’s wishes as to conservatorship.” Tex. Fam.Code Ann. § 153.009 (Vernon 2002). The Code further provides that “on the motion of a party or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older.” Id. Because C.W.E. was fifteen years old at the time of his interview, appellant had the right to request that a record be made of C.W.E.’s discussion in chambers with the trial court. Appellant fails to point out anywhere in the record, however, where she requested such a record. Absent a request that a record be made, appellant has waived her right to complain that no record was made of the interview. See Voros v. Turnage, 856 S.W.2d 759, 763 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Even without a record of the interview, there is sufficient evidence that C.W.E. made a deliberate choice to reside with his father. The affidavit signed by C.W.E. attached to appellee’s cross-petition states that C.W.E. wants to live with his father. This alone fulfills the requirements of section 156.101. Tex. Fam.Code Ann. § 156.101 (Vernon 2002). Additionally, the social study prepared at the trial court’s request states that, although C.W.E. would be “agreeable” to continuing the present custody arrangements with some modifications to allow him more time with his father, his true desire is to “live with his dad and visit with his mom by agreement between him and her.” The only evidence appellant points to in an attempt to contradict the above evidence is the fact that appellee prepared the affidavit C.W.E. signed several months after appellant sought to modify the conservatorship arrangement. Appellee suggests the affidavit was signed as a result of undue influence. But appellant produced no actual evidence of undue influence. We conclude the evidence produced at trial was sufficient to show that C.W.E. properly made his choice of residency as required by the Texas Family Code. See Tex. Fam.Code Ann. § 156.101 (Vernon Supp.2004-5).

In challenging the trial court’s finding that granting appellee the exclusive right to determine C.W.E.’s residency was in the child’s best interests, appellant focuses on her own extensive testimony accusing appellee of having a drinking problem. In contrast to appellant’s testimony, the record contains evidence that appellee is a pilot and was subjected to random drug and alcohol testing, all of which he passed. Appellee also passed a screening test ordered by the court and the court ordered social study contains statements from friends and relatives stating that they never saw appellee intoxicated. Appellee had no record of driving while intoxicated or any other alcohol-related offenses.

Appellant also states the court erred in concluding that residing with appellee was in C.W.E.’s best interests because appel-lee’s job as a pilot requires him to be away from home much of the time. Although appellee travels with his job, he has remarried and lives with his new wife and two step-children. There is evidence that C.W.E. has a good relationship with his step-mother and step-siblings and that the home environment would be a positive experience for C.W.E.

The remainder of appellant’s complaints involve her disagreements with appellee about various aspects of parenting, such as discipline, education, and medical treatment. This “evidence” shows only a divergence of opinion between appellant and appellee and does not demonstrate that residing with appellee would not be in C.W.E.’s best interests.

It should be noted that in initially ordering a joint managing conservatorship, the trial court was required to designate a conservator with an exclusive right to determine the child’s primary residence. See Tex. Fam.Code Ann. § 153.134 (Vernon 2002). The trial court’s earlier order granting appellant and appellee the joint right to determine C.W.E.’s residence was not in compliance with the Texas Family Code. See id.; see also, In re R.C.S., - S.W.3d at -, 2005 WL 977827, at *2. Modification of the order was necessary, therefore, to meet the requirements of state law. After examining the record, we conclude the evidence is legally and factually sufficient to support the trial court’s decision to grant the exclusive right to determine C.W.E.’s residency to appellee instead of appellant.

Appellant also challenges the sufficiency of the evidence to support the trial court’s decision not to require counseling for C.W.E. It is unclear from the record whether the trial court denied appellant’s request that C.W.E. receive counseling or merely left it to the parties to resolve before submitting a written order. Even if the court refused to order counseling, we conclude the evidence was sufficient to support the trial court’s decision and the trial court did not abuse its discretion in failing to require counseling for the child.

We resolve appellant’s fifth, sixth, seventh, eighth, and ninth issues against her. We affirm the trial court’s order.