author: BEA ANN SMITH, Justice.

text:
    Whitney Georgeann SMITH, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
    No. 03-04-00259-CV.
    Court of Appeals of Texas, Austin.
    March 10, 2005.

      Rosemary Colosky, San Angelo, for Appellant.
    Lana Shadwick, Texas Department of Family & Protective Services, Office of General Counsel, Houston, John E. Merli, San Angelo, for Appellee.
    Sarah Regina Guidry, TDPRS Supervising Attorney, Field Operations Special Litigation, Houston, Ellen Griffith, Midland, for TDPRS.
    Gonzalo P. Rios, Jr., San Angelo, for Ad Litem/KNS.

      Paul D. Stipandvic, Gossett, Harrison, Reese, Wilson & Millican, John W. Caldwell, Jr., San Angelo, for Ad Litem/Appel-lant.
    Jimmy Stewart, Law Office of Jimmy Stewart, San Angelo, for Ad Litem/Father.
    Theodore A. Hargrove, III, San Angelo, for Ad Litem/Inter.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

Appellant Whitney Georgeann Smith appeals from the trial court’s order finding that termination of her parental rights was in the best interest of her child, K.N.S. Smith challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding. We hold that the evidence is sufficient to support termination and affirm the trial court’s decision.

BACKGROUND

Smith is the natural mother of K.N.S., who was born in January 2002, when Smith was 15 years old. Shortly after K.N.S.’s birth, the Texas Department of Protective and Regulatory Services (Department) received a referral alleging that Smith had used drugs during her pregnancy. An investigator interviewed Smith, who admitted using marihuana before she knew she was pregnant. The Department closed the case after ruling out any misconduct.

In March 2002, the Department received two separate referrals alleging that Smith was screaming angrily at K.N.S. The investigator ruled out physical abuse or non-supervision by Smith but determined that her behavior created a considerable risk to K.N.S. As a result, the Department referred Smith to a provider for counseling and parent training. The provider closed Smith’s case approximately five months later because Smith was uncooperative.. At that point, the Department transferred Smith’s case to the Department’s Family Based Safety Services unit.

During this time, Smith was on juvenile probation and under a court order to remain in her father’s home. She and K.N.S. lived in the home with her father and his girlfriend. Her involvement with the Juvenile Probation Department began when she was twelve years old. Her juvenile record includes five referrals for assaults with bodily injury between October 1998 and June 2003, as well as at least nine referrals for running away from home.

In September 2002, when Smith was three months pregnant with her second child, the Department received a referral stating that Smith had run away from her father’s home. She left K.N.S. in the home and provided no information as to her whereabouts or when she would return. The referral also alleged that Smith’s father had beaten her, leaving marks on her back and shoulders. The Department learned that on previous occasions Smith ran away from her father’s home with K.N.S. and stayed with friends or her grandmother.

While Smith was still on runaway status, the Department obtained temporary managing conservatorship of K.N.S. and placed her with a foster family. The Juvenile Probation Department then took custody of Smith and placed her in Smithlawn Maternity Home (Smithlawn) in Lubbock, where she was ordered to stay until the birth of her second child. During her stay at Smithlawn, Smith participated in counseling and a parenting class, and received a psychological evaluation.

Smith and her newborn son were released from Smithlawn in March 2003, and they returned to live with her father. K.N.S. remained in foster care, and Smith attended a weekly, hour-long visitation period with K.N.S. Smith remained under a court order to attend anger management and parenting classes, participate in individual counseling, and complete all other services offered to her by the Department. The Department’s Family Service Plan (Service Plan) indicated that in addition to the court-ordered services, Smith was to complete a psychological evaluation and a drug and alcohol assessment.

Less than a month after returning to her father’s home, Smith called the police because she and her mother had a physical fight outside the father’s home. During the fight, the mother spat in Smith’s face and beat her in the head with a purse. The following month, Smith again called police to her father’s home because she witnessed her father’s girlfriend allegedly threaten him with a knife during an argument.

A third incident occurred in June 2003, when the police responded to a domestic disturbance call at the father’s home. Smith told the police that she had a fight with her father during which he struck her and pulled her hair when she attempted to leave the house. In the course of the fight, Smith brandished a knife at her father. The police officer on the scene observed a bruise on Smith’s inner right arm, red marks on her back, and a scratch on her neck. Her father had a scratch and a bruise on his right wrist. After interviewing Smith and her father, the officer arrested Smith for assault causing bodily injury. Following the fight, the Department removed Smith’s son from her custody, and the Juvenile Probation Department placed Smith in a juvenile facility. Smith ran away from the facility eight days later and remained on the run for more than four months, after which she returned to her father’s home.

Smith was arrested again in November 2003 for outstanding warrants. The arresting officer asked Smith about an investigation in which she was suspected of forging a check. During the interview, Smith admitted that she and a friend stole a purse from which she forged a check, which she used at a restaurant. She also stated that her friend forged another check to pay for both of them to get their nails done. The officer released Smith but instructed her that he would inform her if a warrant issued for her arrest and give her time to turn herself in to authorities. When the officer informed her that he had the warrant, Smith ran away. Ultimately, Smith was arrested and incarcerated in the county jail for approximately two weeks.

During the months after Smith left Smithlawn, she did not fully comply with her Service Plan requirements. In April 2003, the Department arranged for a parent training specialist, Janel Monoghan, to go to Smith’s home to conduct parent training. When Monoghan first called Smith to schedule an appointment, Smith indicated that she did not need parent training and refused to schedule an appointment. Monoghan called Smith once more, and Smith again indicated that she did not need her services but agreed to an appointment for the following day. "When Monoghan arrived at Smith’s home for the appointment, Smith was not there. It was not until Monoghan made an unannounced visit to Smith’s home a week later that Monoghan was able to talk with Smith and schedule an appointment for an assessment. Smith completed the parenting assessment, achieving an average score. Shortly thereafter, Smith ran away from her placement in the juvenile facility, and Monoghan was unable to contact her.

The Department asked Monoghan to reinstate the parenting classes in February of the following year. Appointments were scheduled during Smith’s visitation period with her children, but she missed three appointments because she was either running from authorities or in jail. Smith also failed to complete a drug and alcohol assessment as required by her Service Plan and failed to complete her counseling requirements after she left Smithlawn.

After she was removed from Smith’s custody, K.N.S. has remained with one foster family, the Harpers. Department evaluations and trial testimony indicate that KN.S. is a healthy, happy child who is developing normally for her age. She has established a strong bond with the Harpers, who want to adopt her. During visitations between KN.S. and Smith, KN.S. was hesitant to go into the visitation room alone with Smith, and Mrs. Harper reassured KN.S. by accompanying her into the room until she felt comfortable. Smith and the Department caseworker both testified that Smith only missed visitations with KN.S. when she was running from law enforcement or in jail.

Following a bench trial, the court found that the Department proved by clear and convincing evidence that Smith failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of KN.S. and that termination of the parent-child relationship was in the best interest of K.N.S. This appeal followed.

STANDARD OF REVIEW

To terminate the parent-child relationship, the Department must satisfy a two-prong test. The Department must prove by clear and convincing evidence (1) that the parent committed an act or omission set forth as statutory grounds for termination and (2) that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam.Code Ann. § 161.001 (West 2002). The Department must prove both prongs of the test. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976).

Clear and convincing evidence is the measure or degree of proof that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re C.H., 89 S.W.3d 17, 23 (Tex.2002) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex.1979)). This heightened standard of proof is appropriate because termination is a drastic remedy of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by more substantial proof than a preponderance of the evidence. Id. (citing In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)); see also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (requiring that in termination cases “the state support its allegations by at least clear and convincing evidence”). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d at 26. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.

In reviewing a legal-sufficiency challenge, we consider all of the evidence in the light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). Reviewing the evidence in the light most favorable to the judgment, while assuming the fact-finder resolved disputed facts in favor of its finding if it is reasonable to do so, gives appropriate deference to the fact-finder’s conclusions. Id. The court should disregard evidence a reasonable fact-finder could have disbelieved or found incredible, but should not disregard undisputed facts that do not support the finding. Id.

Termination findings must be upheld against a factual sufficiency challenge if the evidence is such that a reasonable fact-finder could form a firm belief or conviction that grounds exist for termination and that termination is in the best interest of the child. C.H., 89 S.W.3d at 18-19. This departs from the traditional factual sufficiency review, in which the court determines whether a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust. The supreme court has held that the traditional standard is inadequate in parental termination cases in which findings must be based on clear and convincing evidence. J.F.C., 96 S.W.3d at 264 (citing C.H., 89 S.W.3d at 25).

Smith challenges the legal and factual sufficiency of the evidence supporting the finding that termination of the parent-child relationship was in KN.S.’s best interest. Although proving grounds for termination under section 161.001(1) does not relieve the Department of proving termination is in the best interest of the child under section 161.001(2), the same evidence may be probative of both issues. C.H., 89 S.W.3d at 28. Factors to consider in determining the best interest of the child include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parenting abilities of the individuals seeking custody; (5) the programs available to assist the parent seeking custody; (6) the plans for the child by the parent or agency seeking custody; (7) the stability of the home or the proposed placement; (8) any acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive; other factors may be considered if appropriate. Id. at 372. Likewise, a fact-finder is not required to consider all the listed factors in coming to a finding that termination is in a child’s best interest. Id. That is, absence of evidence regarding some of the factors does not prevent a reasonable fact-finder from forming a strong belief or conviction that termination is in the child’s best interest. C.H., 89 S.W.3d at 27. We note that this test focuses on the interest of the child, not the needs or desires of the parent. See Brice v. Denton, 135 S.W.3d 139, 160 (Tex.App.-Waco 2004, pet. filed).

SUFFICIENCY OF EVIDENCE

Smith challenges the legal and factual sufficiency of the evidence supporting the finding that termination of the parent-child relationship was in KN.S.’s best interest. She does not challenge the trial court’s finding that her failure to comply with a court order was grounds for termination. However, the evidence presented to support a ground for termination under the first prong of the statutory test may also be probative of whether termination is in the best interest of the child under the second prong. See C.H., 89 S.W.3d at 28.

Accordingly, we first look at evidence supporting the trial court’s finding that Smith failed to comply with a court order. After K.N.S. was placed in foster care, Smith was under a court order to obtain a psychological evaluation and participate in counseling sessions. She was also ordered to complete parenting and anger management classes and submit a certification of completion to the Department or file it with the court within seven days of completion. In addition, Smith was ordered to complete all services offered to her by the Department, including a drug and alcohol assessment. Although Smith completed some of the requirements during her stay at Smithlawn, including enrolling in a parenting class, attending individual counseling, and obtaining a psychological evaluation, she testified that she did not provide proof to the Department even when specifically asked to do so. She also testified that she did not provide the Department with contact information with which to verify that she completed the services. In addition, Smith failed to attend four drug and alcohol assessments scheduled by the Department’s caseworker. When the caseworker referred Smith to a therapist for anger management counseling, Smith did not attend any of the scheduled sessions.

We are mindful of the difficulty Smith experienced in obtaining transportation. However, the record reflects that she failed to attend an appointment with a parenting counselor even when it was scheduled in her own home. In addition, the Department offered Smith transportation for many of the services, including the psychological evaluation and drug and alcohol assessments, but Smith completed only part of her psychological evaluation and none of the drug and alcohol assessments. Smith also missed many services because she was on the run from authorities or in jail.

Given this evidence, the trial court could reasonably have found that Smith’s demonstrated lack of cooperation with the Department, failure to complete services that she knew were required in order to obtain the return of her child, and inability to complete some services due to evading law enforcement and incarceration, weighed in favor of a finding that termination of the parent-child relationship was in the best interest of the child.

We now turn to evidence bearing directly on the second prong of the statutory test, the best interest of the child. Smith first argues that she provided K.N.S. a stable home in Smith’s father’s house or her mother’s house until K.N.S. was removed from her care. Smith’s mother, father, and the father’s girlfriend all testified that Smith was a good mother and that she was the primary caretaker of K.N.S. when she lived in their homes. Both of Smith’s parents testified that they would be willing to support Smith and K.N.S. financially and allow them to live in their homes. At the time of trial, Smith had been living with her mother for approximately two weeks. She testified that she and her mother were getting along well and that she would do anything necessary to have K.N.S. returned to her. From KN.S.’s birth in January 2002 until the time of trial, Smith remained unemployed except for a one-month stint at a fast-food restaurant. At trial, she testified that she remained completely dependent on either her mother or father for financial support and living arrangements, but that she planned to go back to school and obtain employment.

While we acknowledge both Smith’s undoubted love for her child and her family’s testimony that she was a competent caregiver when she was with the child, the trial court was entitled to find that this evidence was outweighed by evidence of a history of violence and instability in Smith’s life that could be detrimental to KN.S.’s safety. Even when under court order to remain in her father’s home, Smith was reported as a runaway several times. In one instance, she left K.N.S. behind without ensuring that her father and his girlfriend were available to take care of the child. Before K.N.S. was born, Smith was reported as a runaway five times and charged with assault six times, including incidents of violence against her mother. After K.N.S. was removed from Smith’s custody, Smith continued to engage in physical altercations with both her mother and father. Smith was arrested and placed in a juvenile facility, ran away from the facility, and was arrested twice more, once for outstanding warrants and once for forging a check. Throughout this period, Smith twice evaded arrest by running away from her father’s home for significant periods of time. Smith admitted that she and a friend stole a purse and each forged a check, and she indicated at trial that she planned to plead guilty to the felony charge. At the time of trial, Smith remained unemployed and completely dependent on her parents, in whose homes she had shown an inability to remain for any significant period of time, and with whom she exhibited a pattern of physically ■violent behavior.

We recognize that the upheaval in Smith’s family life may not be wholly of her making. She did not have the family support needed to provide an appropriate home for her child. We also acknowledge that Smith expressed a desire to turn her life around and to avoid making the same mistakes she had made in the past. However, in considering the best interest of the child, evidence of a recent turn-around in behavior by the parent does not totally offset evidence of a pattern of instability and harmful behavior in the past. See In re M.G.D., 108 S.W.3d 508, 513-14 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). In addition, the trial court was required to focus on the best interest of the child. The court was presented with evidence showing that Smith had an unstable, violent family life, and that she had no means to lift herself and her child out of that life in the foreseeable future. The court could reasonably have formed a firm belief that Smith’s past behavior indicated that she did not have the skills necessary to provide a stable, safe home for K.N.S. in the future.

Smith also argues that there is no evidence that K.N.S. suffered any physical or emotional harm as a result of Smith’s behavior. However, in determining whether a child has been endangered by a parent’s conduct, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. In re M.C., 917 S.W.2d 268, 269 (Tex.1996); In re C.L.C., 119 S.W.3d 382, 392 (Tex.App.Tyler 2003, no pet.). It is sufficient that the child’s well-being be jeopardized or that the child be exposed to loss or injury. C.L.C., 119 S.W.3d at 392. A parent’s violent conduct can produce an environment that endangers the physical or emotional well-being of a child. Id. at 392-93. Moreover, conduct that routinely subjects a child to the probability that the child will be left alone because her parent is jailed endangers both the physical and emotional well-being of the child. Id. at 393; In re S.D., 980 S.W.2d 758, 763 (Tex.App.-San Antonio 1998, pet. denied).

Although there was no evidence that K.N.S. suffered any physical harm as a result of Smith’s conduct, evidence showed that Smith demonstrated a pattern of violent fights with her family, continuing illegal behavior, and running away. The court could have reasonably viewed this evidence as endangering the physical and emotional well-being of K.N.S. In addition to her pattern of chaotic family relationships, Smith testified that she allowed both her son and K.N.S. to be in the company of her son’s father, an alleged sex offender. Even when Smith was under court order to remain in her father’s home after K.N.S. was born, Smith continued to run away with K.N.S. and stay in friends’ homes. When K.N.S. was approximately seven months old, Smith ran away from her father’s house without K.N.S. and did not return for three days. She left the home without ensuring that her father or his girlfriend could take care of K.N.S. and without telling them where she was going or when she would return. After K.N.S. was removed from Smith’s custody, Smith continued to engage in criminal conduct that made her susceptible to arrest and jail time. She was arrested in June 2003 for assault after she brandished a knife at her father during a physical altercation. After the Juvenile Probation Department placed Smith in a juvenile facility, she went on the run from authorities for four months. Smith was arrested again in November 2003 for outstanding warrants, at which time she was interrogated regarding her involvement in the theft of a purse and forgery of a check. Smith confessed to both charges. When Smith was given the opportunity to turn herself in for the theft and forgery, she ran away yet again in an attempt to evade arrest. She was eventually arrested and incarcerated in the county jail. At the time of trial, the felony forgery charge was still pending. In evaluating this evidence, the court reasonably could have formed a firm belief that Smith’s behavior created such instability and uncertainty that it placed K.N.S. in danger of physical and emotional harm, and that returning K.N.S. to Smith’s custody could cause future physical and emotional damage to the child.

Smith also contends that her youth at the time she became a mother should be taken into consideration in determining the best interest of the child. Smith was 15 years old at the time K.N.S. was born. However, the statute setting forth grounds for termination does not provide any exceptions for minor parents. See Tex. Fam.Code Ann. § 161.001 (West 2002). Furthermore, we have found no precedent in the case law for granting a minor parent a special status in parental termination cases. In addition, in determining best interest of the child, a court should focus on the interest of the child, not the needs or desires of the parent. See Brice, 135 S.W.3d at 160. Nevertheless, we recognize that Smith’s youth may have contributed to her inability to provide a stable home for K.N.S. The record shows that Smith did not have the family and financial support necessary to raise her child in a stable environment and that she did not have skills with which to support her child financially on her own. However, Smith essentially asked the court to disregard her past mistakes and look only at the plans she has for her future. Despite the support offered by her parents, her future plans are too uncertain to require the court to find that she can provide stability and financial support for K.N.S. The record indicates that K.N.S. is happy with the Harpers and that she thinks of them as her mother and father. The Har-pers have consistently provided a stable environment for her since she was less than a year old, and they have stated a desire to adopt her.

The record also indicates that Smith acknowledged that she made many mistakes in providing for K.N.S., and we infer from her testimony that she recognized that it may be in KN.S.’s best interest not to be returned permanently to Smith and her family. Smith testified that rather than terminating her parental rights, it would be in KN.S.’s best interest to continue to have visitations with Smith while remaining in foster care. However, the Department caseworker testified that allowing K.N.S. to remain in foster care until she turned eighteen would leave her “in limbo” and that it would generally be unlikely that a child of KN.S.’s age would remain in the same foster family until the age of eighteen without being adopted. In determining the best interest of K.N.S., the court was entitled to consider that such an arrangement would leave K.N.S. in a permanent state of uncertainty, as she would not be returned to Smith but would also not be available for adoption. See M.G.D., 108 S.W.3d at 515 (finding that keeping child in foster care indefinitely leaves child “in limbo”); In re M.N.G., 147 S.W.3d 521, 540 (Tex.App.-Fort Worth 2004, pet. filed) (finding that caseworker’s testimony that leaving child in foster care until age eighteen created instability for child weighed in favor of finding that termination of parental rights was in best interest of child). The court was also entitled to consider that Smith could not show that she had a job or adequate skills for employment, and she could not offer an appropriate support system for the child. Presented with the alternatives, the court reasonably could have formed a firm belief or conviction that termination of Smith’s parental rights was in the best interest of K.N.S.

Although evidence indicated that Smith loved her daughter and wanted to be able to provide a stable home for her, other evidence showed that Smith failed to cooperate with the Department in order to comply with her court order; that she was completely dependent on her parents, with whom she had an unstable, violent relationship; that she routinely ran away when confronted with problems; and that she continued to engage in criminal behavior likely to result in arrest and jail time. The record also indicated that K.N.S. was happy with her foster family and that her foster parents would likely adopt her. Faced with such evidence, the trial court could reasonably have formed a firm conviction that termination of Smith’s parental rights was in the best interest of K.N.S.

CONCLUSION

The evidence in this case was legally and factually sufficient to support the court’s conclusion that termination of Smith’s parental rights was in the best interest of the child, K.N.S. We affirm the order of the trial court terminating the parent-child relationship.

      . Smith later testified that after calling the police, she spoke to her father and his girlfriend and realized that she had misunderstood the situation. She testified that the girlfriend had a knife in her hand during the argument only because she was cutting food for dinner, not with the purpose of threatening the father.

      . In this case, the statutory ground for termination is that Smith "failed to comply with the provisions of a court order that specifically established the actions necessary for [her] to obtain the return of the child who ha[d] been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child’s removal from [Smith] under Chapter 262 for the abuse or neglect of the child.” See Tex. Fam.Code Ann. § 161.001(1)(0) (West 2002).

      . Likewise, the legal sufficiency standard of review set forth in J.F.C. departs from the traditional "anything more than a scintilla" legal sufficiency standard because of the heightened burden of proof required in parental rights termination cases. See In re J.F.C., 96 S.W.3d 256, 264-65 (Tex.2002).


source: Caselaw Access Project

author: JOHN CAYCE, Chief Justice.

license: Public Domain

text:
    Frank E. SANDS, Appellant, v. The ESTATE OF James Craig BUYS, Deceased, Appellee.
    No. 2-04-297-CV.
    Court of Appeals of Texas, Fort Worth.
    March 10, 2005.

      Brackett & Ellis, P.C., Carter L. Ferguson and Hurshell K. Brown, Fort Worth, for Appellant.
    Hartless & Hargrove, PLLC, Thomas F. Fleischer and Ken Hartless, Bedford, for Appellee.
    PANELA: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

I. Introduction

In this accelerated appeal, Frank E. Sands appeals the trial court’s issuance of a temporary injunction for the Estate of James Craig Buys, Deceased. In four issues, Sands complains that the trial court abused its discretion by granting the temporary injunction, the injunction is fatally defective in form and content, the Estate’s unclean hands preclude it from obtaining injunctive relief, and the temporary injunction is an unreasonable restraint of trade. We will reverse and render.

II. Background Facts and Procedural History

Sands is a certified public accountant who has practiced public accountancy in Plano, Texas for well over twenty years. In February 2000, Sands sold his accounting practice to James C. Buys & Associates, P.C. (the Corporation). The purchase agreement between Sands and the Corporation contained a covenant not to compete. Immediately following the purchase of Sands’s practice, Buys moved the clients the Corporation had obtained from Sands from Plano to the Corporation’s Colleyville, Texas office. The Corporation also acquired two other accounting practices in Plano. In 2001, the Corporation retained Sands as an independent contractor to work on special projects assigned by Buys. At that time, none of Sands’s former clients were being serviced out of the Corporation’s Plano office. Instead, virtually all the clients in the Plano office had been obtained through the Corporation’s other acquisitions.

In February 2002, Sands became a full-time employee of the Corporation, serving as manager of the Plano office. Thereafter, about twenty of Sands’s former clients who had been transferred to the Colley-ville office asked to be transferred back to the Plano office so that Sands could provide them accounting services. Sands also actively marketed his services and generated more than twenty-five additional clients for the Corporation.

While Sands was manager of the Plano office, the Corporation had several other employees and three independent contractors. The independent contractors were practicing accountants who did not work exclusively for the Corporation.

Buys died in June 2004. Following Buys’s death, Sands continued to serve as manager of the Corporation’s Plano office at the request of the Estate’s attorney. In addition, the Estate hired a business broker to negotiate the sale of the Corporation’s assets. Sands made an offer of $50,000, which the broker believed was considerably less than the Plano office was worth. Sands also notified Carol Buys-Michela, Buys’s widow, by letter of his intent to open up his own office regardless of whether the Estate accepted his purchase offer. On August 17, Sands tendered his resignation from the Corporation effective August 31, 2004.

Meanwhile, unbeknownst to Sands, the Estate negotiated with other CPAs to sell the assets of the Plano office. One prospective purchaser was David Harvey, a CPA practicing in Richardson, Texas. The Estate also obtained an ex parte temporary restraining order ordering Sands’s removal from the Plano office so that he could not access, use, or disclose any of the Corporation’s trade secrets or confidential or proprietary information.

On August 20, 2004, Sands was removed from the Plano office pursuant to the temporary restraining order. Sands took nothing with him except his personal time log. On August 23, 2004, the Estate sent letters to all the Plano office’s clients advising them that Harvey was assuming the Corporation’s practice and that all future inquiries should be made to him at his Richardson office.

The Estate then sued Sands for misappropriation of the Corporation’s trade secrets and confidential information and for breach of the covenant not to compete contained in the February 2000 purchase agreement between Sands and the Corporation. The Estate sought temporary and permanent injunctive relief. After a hearing, the trial court ruled that the covenant not to compete was unreasonable as a matter of law and refused to grant injunctive relief on that basis. Based on the Estate’s misappropriation of trade secrets claim, however, the trial court entered a temporary injunction prohibiting Sands from “contacting, soliciting or accepting any business” from the Corporation’s clients with whom Sands had had any contact or for whom he had performed services during the time he worked for the Corporation as either an employee or an independent contractor. This appeal followed.

III. Applicable Law

In his first issue, Sands contends that the trial court abused its discretion by entering the temporary injunction because, among other things, the Estate failed to establish a probable right to recovery on its misappropriation of trade secrets claim.

The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id,; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204.

Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Id. A reviewing court should reverse an order granting injunc-tive relief only if the trial court abused that discretion. Id, A trial court abuses its discretion if it grants a temporary injunction when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). To show a probable right of recovery, the applicant need not establish that it will finally prevail in the litigation, but it must, at the very least, present some evidence that, under the applicable rules of law, tends to support its cause of action. In re Tex. Nat. Res. Conserv. Comm’n, 85 S.W.3d 201, 204 (Tex.2002); Camp, 348 S.W.2d at 519.

A person is liable for disclosure or use of trade secrets if (1) he discovers the secret by improper means or (2) his disclosure or use, after properly acquiring the knowledge, constitutes a breach of confidence reposed in him by the other in disclosing the secret to him. Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 769, cert. denied, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148 (1958); Mabrey v. SandStream, Inc., 124 S.W.3d 302, 310 (Tex.App.-Fort Worth 2003, no pet.). As a general rale, in the absence of an enforceable agreement not to compete, an employer is not entitled to an injunction preventing a former employee from soliciting the employer’s clients. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex.App.-Dallas 1993, no wilt). A former employee is, however, precluded from using for his own advantage, and to the detriment of his former employer, confidential information or trade secrets acquired by or imparted to him in the course of his employment. Id. Rugen, 864 S.W.2d at 551.

A trade secret is “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” In re Bass, 113 S.W.3d 735, 739 (Tex.2003). It may include a list of customers. Hyde Corp., 314 S.W.2d at 776; Rugen, 864 S.W.2d at 552. But before information can be termed a “trade secret,” there must be a substantial element of secrecy. Rugen, 864 S.W.2d at 552. To determine whether a trade secret exists, courts apply a six-factor test: (1) the extent to which the information is known outside of the employer’s business; (2) the extent to which it was known by employees and others involved in the business; (3) the extent of the measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and its competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Bass, 113 S.W.3d at 739.

IV. Probable Right of Recovery

When applied to this case, the Bass factors show that the Estate has not established a probability of success in proving, at trial on the merits, that its clients’ identities deserve trade secret protection.

A.Extent to Which Information Was Known Outside Corporation’s Business

The record shows that the identities of “a lot” of the Plano office’s clients were known outside the Corporation’s business because many of the clients knew each other. In addition, Sands testified that the names of clients came up in casual conversation with other clients and on social occasions. For instance, if asked at a social gathering whether he knew a particular person, Sands would say yes (if he did) and, if the person was client, would mention this fact. Sands explained that he “never really gave ... much thought” to this practice of his because he considered the clients’ identities public information. Further, when prospective clients .asked Sands for references, he gave them the names of the Corporation’s existing clients. He and Buys had no agreement preventing this, nor was he aware of any ethical rules prohibiting it.

B. Extent to Which Clients’ Identities Were Known to Employees and Others in the Business

The identities and addresses of the Plano office’s clients were completely available to Sands and all the other employees and independent contractors in the Plano office. They were also accessible to employees from the Corporation’s Las Coli-nas office. Buys and another employee routinely accessed information on the Plano office’s computers from the Las Colinas office. Further, the independent contractors at the Plano office were practicing accountants who worked only part-time for the Corporation. At least one of these individuals was free to maintain his own accounting practice while he worked for the Corporation. Many of the Plan'o office’s clients were also known to Rick Lewis, the former owner of one of the accounting practices that Buys had acquired to start the Plano office. There is no evidence that the Corporation had a confidentiality agreement or covenant not to compete with Lewis.

C. Measures Taken by the Corporation to Guard the Secrecy of Client Identities

The Corporation made few, if any, efforts to guard client identities. For instance, in addition to giving its employees and independent contractors complete access to client information, the Corporation had no confidentiality policies and did not require its employees to sign confidentiality or nondisclosure agreements. Further, Sands was never asked to sign such an agreement as an independent contractor or as manager of the Plano office. Although the covenant not to compete in the February 2000 sales agreement between Sands and the Corporation contained a confidentiality provision, that provision just covered Sands’s former clients, who comprised only about twenty of the over five hundred clients in the Plano office at the time of Buys’s death.

In addition, at Buys’s instruction the computers in the Plano office were left on twenty-four hours a day, and the information on them was accessible from the Corporation’s other offices. Thus, anyone with a computer password could access the names and addresses of all the Plano office’s clients at any time. Although each computer had its own password and firewall protection, the passwords were generally known to everyone in the Plano office.

The Estate points out that, two months before he sold his own business to Buys in February 2000, Sands faxed a client list to Buys on which individual client names were not listed because he wanted to protect his clients’ confidentiality. The Estate contends that Sands’s conduct is evidence that identities of the Corporation’s clients were confidential. We disagree. Even if relevant, evidence that Sands treated his clients’ identities as confidential while negotiating the sale of his business is not evidence that the Corporation treated its clients’ identities as confidential. The only personal knowledge upon which Carol Buys-Miehela based her belief that Buys had considered his clients’ identities confidential was Buys’s statement that “it was his practice and his clients.”

D. Value of Client Identities to Corporation and Its Competitors

There is some evidence that the clients’ identities, although not confidential, were valuable to the Corporation’s competitors. For example, Sands himself used this information. Before he was removed from the Plano office, Sands mentioned to one client by letter and as many as fifteen by telephone that he might be opening his own accounting practice. Sands also acknowledged that an accounting firm’s revenue would be negatively affected if its clients left.

E. Amount of Money or Effort Expended in Developing Information

The record shows that the Corporation expended little, if any, money, time, or other resources in developing or compiling a list of its clients. Carol Buys-Michela testified that she had seen a customer list several times in the past and that she believed her attorney may have printed a partial list from the Plano office’s computers. There is no evidence, however, that such a list was made available or even known to the Corporation’s employees or independent contractors. Sands testified that the Plano office had no client or customer list that he was aware of and that he did not take one with him when he left. Moreover, no client list was tendered at the temporary injunction hearing, even under seal.

F. Ease or Difficulty With Which Information Could Be Properly Acquired or Duplicated by Others

Finally, there is evidence that'information regarding the clients’ identities could be properly acquired by others fairly easily. For instance, after Sands was removed from the Plano office, six of the office’s clients sought him out and asked him to provide accounting services for them, even though Sands had not contacted them. Further, there is evidence that many of the clients’ identities were generally known, at least to each other, because they knew each other. Also, Sands testified that some of the Plano office’s clients were his personal friends.

In addition, besides Sands, the Plano office had two full-time employees and three independent contractors who knew the identities of the Corporation’s clients. There is no evidence that any of these individuals was subject to a confidentiality or nondisclosure agreement, a temporary restraining order, or a temporary injunction. Consequently, anyone desiring to obtain the clients’ identities could obtain that information from them. The identities of many of the Plano office’s clients could also be obtained from Rick Lewis, one of the former owners of the accounting practices that Buys had acquired to start the Plano office.

Moreover, client identities could be acquired from David Harvey. Buys-Michela testified that the Estate had reached an agreement with Harvey for him to maintain the Plano office until matters were resolved in the probate court. The Corporation had -sent letters to all the Plano office’s clients stating that Harvey would be assuming the Plano office’s practice. The Estate and Harvey had not, however, agreed on a purchase price for the Plano office practice, and there is no evidence that the Corporation obtained a confidentiality or noncompete agreement from Harvey in the interim or in the event the sale fell through. Therefore, Harvey could disclose the clients’ identities to others or, at the very least, compete with the Corporation himself. Indeed, Harvey had attempted to discuss the Plano office’s clients with Sands, but Sands had given him no information because of the temporary restraining order.

Y. Conclusion

In summary, the evidence presented at the temporary injunction hearing clearly shows that the identities of the Corporation’s clients, although of some value to the Corporation and its competitors, were not confidential. Indeed, the only evidence of confidentiality presented at the hearing was the Corporation’s use of passwords and firewall protection on its computers-preeautionary measures that are virtually universal on office and home computers alike. The evidence further shows that many of the clients’ identities were known outside the Corporation’s business and could be easily and properly acquired by others.

Because the record is virtually devoid of evidence that the identities of the Corporation’s clients are trade secrets, it provides no reasonable basis for concluding that those identities are entitled to trade secret protection until trial on the merits. See Bass, 113 S.W.3d at 739; Camp, 348 S.W.2d at 519; Mabrey, 124 S.W.3d at 311. Accordingly, we hold that the trial court abused its discretion by granting the temporary injunction in this case. See Camp, 348 S.W.2d at 519. We sustain Sands’s first issue, reverse the temporary injunction, and render judgment denying the Estate’s request for a temporary injunction.

      . The Estate does not contend on appeal that the temporary injunction would also have been proper based on the covenant not to compete.

      .As an aside, we note that Sands has not been enjoined from doing business with nearly fifty of his seventy former clients who continued their association with the Colleyville office rather than transferring back to the Plano office after Sands became manager there. The trial court ruled that the covenant not to compete, which precluded Sands from doing business with these clients, was unenforceable, and the temporary injunction only enjoins Sands from doing business with clients he had serviced while working as an independent contractor or employee of the Corporation. Sands never performed any work for the Corporation's Colleyville office.

      . One or more of the passwords was also known to at least one employee in the Las Colinas office, who routinely accessed information on the Plano office’s computers.

      . Sands also testified that he’d had face-to-face conversations with six other clients, but he did not contact them. Instead, when they became aware that he was no longer at the Plano office, they went to his home and asked if he would do their accounting work. Sands had not contacted any of the Corporation’s clients since his removal from the Plano office.

      . Sands testified that he took nothing with him when he was removed from the Plano office except his personal time log. Later, he was allowed to return to the office with his attorney to retrieve his personal signature stamp.

      . Sands testified that Nancy Sigley, the Plano office's bookkeeper, was also removed from the office on the same day he was; however, Sigley is not mentioned in the temporary restraining order or temporary injunction.

      . Sands testified that, when he began working as the Plano office’s manager in 2002, about sixty-five percent of its clients were from the two accounting practices that the Corporation had acquired. John Gilliad, the former owner of the second practice, worked as an independent contractor for the Corporation, although not exclusively. He was also free to maintain his own accounting practice.

      . In light of our disposition of Sands’s first issue, we need not consider his remaining three issues. See Tex.R.Apf. P. 47.1 (only requiring court of appeals to address issues raised that are necessary to final disposition of appeal).


author: Justice MAZZANT.

text:
    Scott R. BELL, Christopher W. Bly, John T. Blake, Darwyn B. Case, Mark Fischer, Boyd Hansbro, David P. Lane, Thomas Lee Mendenhall, Branten C. Rose, Derek Townsend, and Darrell Yick, Appellants, v. CITY OF GRAND PRAIRIE, TEXAS, Appellee.
    No. 05-03-01749-CV.
    Court of Appeals of Texas, Dallas.
    April 20, 2005.

      B. Craig Deats, Deats & Levy, P.C., Austin, for Appellants.
    Bettye S. Lynn, Lynn, Pham, Moore & Ross, P.C., Fort Worth, Donald R. Postell, City Atty., Grand Prairie, for Appellee.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Scott R. Bell, Christopher W. Bly, John T. Blake, Darwyn B. Case, Mark Fischer, Boyd Hansbro, David P. Lane, Thomas Lee Mendenhall, Branten C. Rose, Derek Townsend, and Darrell Vick are firefighters for the City of Grand Prairie, Texas (the City) who sued the City for violating their seniority pay rights under chapter 143 of the Texas Local Government Code. The City filed a plea to the jurisdiction asserting governmental immunity from suit, which the trial court granted, dismissing appellants’ suit. Appellants contend (Í) the City’s immunity from suit was waived by chapter 143 of the Texas Local Government Code, and (2) if the City is immune from suit, then the trial court erred in dismissing their claims with prejudice. We affirm the trial court’s judgment.

BACKGROUND

The City’s relationship with its fire and police departments is governed by the Fire Fighter and Police Officer Civil Service Act, chapter 143 of the Texas Local Government Code. Under the Act, the City provides different classifications of firefighters, with all firefighters in each classification receiving the same base pay. In 1998, the City added a system of steps within each classification. There were seven steps, and a firefighter moved through them based on seniority at a rate of one step per year until he reached the top step within the classification. Appellants allege they were started a step too low based on their seniority and, thus, have not been paid the same as similarly situated firefighters. They sued the City seeking (1) a declaration the City had violated the Act by not paying them the same as similarly situated firefighters; (2) a permanent injunction barring the City from failing to pay them correctly; (3) back pay and benefits; and (4) attorney’s fees, costs, and pre- and post-judgment interest.

The City filed a plea to the jurisdiction asserting its governmental immunity from suit barred the trial court’s jurisdiction to determine appellants’ claims. The trial court sustained the plea to the jurisdiction and entered judgment dismissing appellants’ cause of action for want of subject-matter jurisdiction and ordering that appellants “take nothing by their suit.”

STANDARD OF REVIEW

In their first issue, appellants assert the trial court erred by sustaining the City’s plea to the jurisdiction and by dismissing appellants’ claims for want of subject-matter jurisdiction. A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Osburn v. Denton County, 124 S.W.3d 289, 292 (Tex.App.-Fort Worth 2003, pet. denied). “In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002), (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001), Blue, 34 S.W.3d at 554-55). The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the trial court’s ruling on a plea to the jurisdiction. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

SOVEREIGN IMMUNITY

Sovereign immunity protects the State from lawsuits for money damages. IT-Davy, 74 S.W.3d at 853. Generally, the State possesses both immunity from suit and immunity from liability. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003); IT-Davy, 74 S.W.3d at 853. The State has immunity from suit unless expressly waived by the legislature. IT-Davy, 74 S.W.3d at 853. Any waiver of sovereign immunity must be clear and unambiguous. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). A city is deemed an agent of the State for sovereign immunity purposes when exercising its powers for a public purpose. See City of San Benito v. Ebarb, 88 S.W.3d 711, 720 (Tex.App.-Corpus Christi 2002, pet. denied). Sovereign immunity bars suits for declaratory judgment when used to establish the basis for money damages. IT-Davy, 74 S.W.3d at 856. Likewise, sovereign immunity bars suits seeking increased future compensation. Ebarb, 88 S.W.3d at 722-23.

In this case, appellants seek a declaratory judgment that the City has underpaid them. They would then use that declaratory judgment as the basis for their suit for damages of back pay, interest on these damages, and for injunctive relief ordering future increased compensation. These claims, unless expressly waived by the legislature in clear and unambiguous language, are barred by the City’s immunity from suit. See id. at 724.

Appellants assert Labrado v. County of El Paso, 132 S.W.3d 581, 592-94 (Tex.App.-El Paso 2004, no pet.), supports their argument that the City’s immunity from suit for declaratory judgment and injunc-tive relief was waived. We disagree. In Labrado, the court stated the county’s immunity from suit for declaratory judgment leading to injunctive relief was waived because a specific statute, local government code section 262.033, expressly permitted the plaintiffs’ to seek injunctive relief. Id. at 593. Labrado is distinguishable because, in this case, no statute waived the City’s immunity from appellants’ claim for an injunction ordering increased future compensation.

Appellants assert the City’s immunity from suit is waived by section 51.075 of the Texas Local Government Code, which provides, “The municipality may plead and be impleaded in any court.” Tex. Local Gov’t Code Ann. § 51.075 (Vernon 1999). Appellants also assert the City expressly waived its immunity from suit by providing in its charter that it “may sue and be sued; may contract and be contracted with; implead and be impleaded in all courts and places and in all matters whatever.... ” GRAND PRAIRIE, Tex., Code Pt. 1, art. Ill, § 1(a) (2002). This Court has held similar provisions in city charters do not waive immunity from suit but “simply speak to the City’s capacity to sue and its capacity to be sued when immunity has been waived.” City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 398 (Tex.App.-Dallas 2002), rev’d on other grounds, 2004 WL 726906 (Tex. Apr.2, 2004) (motion for rehearing granted Oct. 15, 2004); see also Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Disk, 123 S.W.3d 63, 66 (Tex.App.-Dallas 2003, pet. filed) (quoting Reata). We decline appellants’ request to reconsider our holdings in those cases. We conclude the City’s charter and section 51.075 of the Texas Local Government Code do not waive the City’s immunity from suit.

Appellants also argue that courts in earlier cases under the Act and its predecessors must have concluded they had jurisdiction over the suits brought against municipalities because those courts reached the merits of the cases, something they could not do if they lacked subject-matter jurisdiction. Tijerina v. City of Tyler, 846 S.W.2d 825, 829 (Tex.1992); Lee v. Downey, 842 S.W.2d 646, 649 (Tex.1992) (orig.proceeding); Kierstead v. City of San Antonio, 643 S.W.2d 118, 121-22 (Tex.1982); Int’l Ass’n of Firefighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562, 563 (Tex.1981) (per curiam); Duckett v. City of Houston, 495 S.W.2d 883, 886-87 (Tex.1973); Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 161 (1961); City of San Antonio v. Bullock, 34 S.W.3d 650, 652 (Tex.App.-San Antonio 2000, pet. denied); City of Austin v. Castillo, 25 S.W.3d 309, 314 (Tex.App.-Austin 2000, pet. denied); City of Fort Worth v. Nyborg, 999 S.W.2d 451, 457 (Tex.App.-Fort Worth 1999, pet. denied); City of Harlingen v. Avila, 942 S.W.2d 49, 51 (Tex.App:-Corpus Christi 1997, writ denied); City of Austin v. Austin Professional Fire Fighters Ass’n, 935 S.W.2d 179, 183 (Tex.App.-Austin 1996, no writ) (vacated pursuant to settlement); City of Lubbock v. Eckles, 888 S.W.2d 621, 623 (Tex.App.-Amarillo 1994, writ denied); Int’l Ass’n of Firefighters, Local Union No. 624 v. City of San Antonio, 822 S.W.2d 122, 131 (Tex.App.-San Antonio 1991, writ denied); City of San Antonio v. Kuykendall, 749 S.W.2d 169, 170-71 (Tex.App.-San Antonio 1988, writ denied); Burkhart v. Moore, 580 S.W.2d 108, 109 (Tex.Civ.App.-Eastland 1979, no writ); Michna v. City of Houston, 521 S.W.2d 331, 332 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ). As appellants state in their brief, “Beginning with Stauffer and continuing to date, none of the above-cited cases have suggested that a city’s immunity from suit would preclude a backpay remedy.” Appellants are correct; however, not only did the opinions not suggest it, it appears the courts never considered that possibility. Accordingly, we conclude these cases do not constitute holdings that governmental immunity from suit does not bar a claim for back pay under the Act.

We conclude the trial court did not err in determining immunity barred appellants’ claim and in dismissing appellants’ suit for want of subject-matter jurisdiction. We resolve appellants’ first issue against them.

In their second issue, appellants assert the trial court erred by stating in the judgment that appellants “take nothing by their suit,” which they argue effectively dismissed them claims with prejudice. Appellants rely on Li v. University of Texas Health Science Center, 984 S.W.2d 647, 653-54 (Tex.App.-Houston [14th Dist.] 1998, pet. denied), which held that a dismissal of a breach-of-contract claim for want of jurisdiction due to sovereign immunity should be without prejudice. However, the supreme court subsequently ruled that when a governmental entity files a plea to the jurisdiction based on governmental immunity, the plaintiff has an opportunity to amend its pleading, and any amended pleading fails to allege facts constituting a waiver of immunity, then the trial court should dismiss the cause with prejudice. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004). “Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined.” Id, As the concurring Justices in Sykes noted, the intermediate courts of appeals’ opinions to the contrary, including Li, are “impliedly disapproved.” Id. at 641 & n. 3 (Brister, J., concurring). In this case, appellants amended their petition six months after the City filed its plea to the jurisdiction, yet the amended petition failed to allege facts constituting a waiver of the City’s immunity from suit. Accordingly, following Sykes, we conclude the trial court did not err in dismissing appellants’ claims with prejudice. We resolve appellants’ second issue against them.

We affirm the trial court’s judgment.


author: Justice LANG-MIERS.

text:
    Medina Evelina Littlejohn BROWN, Appellant, v. Samuel Mort ZIMMERMAN and Interfederal Capital, Inc., Appellees.
    No. 05-04-00285-CV.
    Court of Appeals of Texas, Dallas.
    April 20, 2005.

      Irwin Lightstone, Law Office of Irwin Lightstone, P.C., Dallas for Appellant.
    George S. Henry, Law Office of George S. Henry, Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Medina Evelina Littlejohn Brown is the ex-wife of Samuel Mort Zimmerman who is the founder and President of Inter-federal Capital, Inc. She appeals the judgment rendered by the trial court on the jury verdict awarding Interfederal recovery against her on its claims for unjust enrichment and equitable subrogation. Littlejohn also appeals the trial court’s failure to award attorney’s fees for her successful declaratory judgment action against Zimmerman. We affirm.

Background

This case is before us for the second time. It essentially began as a divorce case. Prior to their marriage, Zimmerman helped Littlejohn borrow the money to buy a house at 4223 High Summit in Dallas, Texas (the High Summit property). Littlejohn borrowed $88,000.00 from the predecessors of Flagstar Bank, FSB, signing a note (the First Note) for that amount secured by a deed of trust on the High Summit property. Zimmerman arranged a $55,194.66 loan for her from Interfederal for the down payment on the High Summit property. She signed a second note for that amount secured by a deed of trust on the High Summit property in Interfederal’s favor (the Second Note).

Less than a year later, Littlejohn expressed a desire to end the marriage and moved to Minnesota. In an effort to reconcile, Zimmerman agreed to have Inter-federal purchase the First Note, to refinance Littlejohn’s obligations under both the First Note and the Second Note, and to defer her repayment obligations so that Littlejohn would not have to make the monthly payments. On February 20,1997, Interfederal purchased the First Note from Flagstar Bank. Zimmerman and Litt-lejohn signed an agreement referred to as the High Summit Agreement agreeing that they would repay Interfederal from proceeds of policies insuring the lives of Zimmerman and Littlejohn. But the reconciliation did not last and Zimmerman sued Littlejohn for divorce in July 1997. A final decree of divorce was entered September 29,1997.

As part of the property division, the divorce decree awarded the High Summit property to Littlejohn as her sole and separate property and declared null and void all agreements in the parties’ premarital agreement and any amendments or modifications, which included the High Summit Agreement. Zimmerman, on behalf of In-terfederal, forgave the $55,000 owed by Littlejohn to Interfederal under the Second Note, but the decree did not specifically address the $87,658.99 liability under the First Note.

After the divorce was final, Littlejohn attempted to sell the High Summit property and learned that Interfederal had placed a lien on the property. Littlejohn filed a declaratory judgment action against Zimmerman and Interfederal seeking to quiet title to the property. The trial court granted summary judgment declaring title to the High Summit property quieted in Littlejohn against Interfederal and dismissing Interfederal and Zimmerman’s counterclaims for subrogation, breach of contract, fraud, and unjust enrichment. Zimmerman and Interfederal appealed.

We affirmed the summary judgment in favor of Littlejohn against Zimmerman to quiet title to the High Summit property but remanded the issue of attorney’s fees. We also affirmed the summary judgment in favor of Littlejohn dismissing Interfed-eral’s counterclaims for breach of contract and fraud. We reversed the summary judgment in favor of Littlejohn dismissing Interfederal’s counterclaims for unjust enrichment and equitable subrogation and remanded those issues to the trial court.

On remand, Littlejohn raised affirmative defenses of limitations and res judicata as a bar to Interfederal’s counterclaims. The parties tried these claims to a jury, which found in favor of Interfederal against Litt-lejohn. At the conclusion of the trial, Litt-lejohn moved for instructed verdict on the issue of limitations which the trial court denied. Littlejohn then filed a motion for judgment non obstante veredicto (nov) reurging her limitations and res judicata defenses and requesting attorney’s fees against Zimmerman in the declaratory judgment action. Without ruling on the motion for judgment nov, the trial court rendered judgment on the jury verdict for Interfederal and awarded Interfederal $229,042.22, plus attorney’s fees and costs. Littlejohn filed a motion for new trial, reurging her defenses of limitations and res judicata and her request for attorney’s fees against Zimmerman on her declaratory judgment claim. The trial court denied the motion.

Littlejohn raises three issues on appeal: (1) Interfederal’s' counterclaims of unjust enrichment and equitable subrogation are barred by the two-year statute of limitations, (2) Interfederal’s counterclaims are barred by the doctrine of res judicata, and (3) the trial court failed to award her attorney’s fees for her successful appeal of the declaratory judgment action against Zimmerman.

Limitations

In her first issue, Littlejohn, contends Interfederal’s equitable subrogation and unjust enrichment counterclaims are barred by limitations. Littlejohn moved for instructed verdict and a new trial raising this issue. The trial court denied both motions but did not state the specific limitations provision on which it relied.

The doctrine of equitable subro-gation allows a person, not acting voluntarily, who pays the debt owed by another to seek repayment of that debt by the person who in equity and good conscience should have paid it. Matagorda County v. Texas Ass’n of Counties County Gov’t Risk Mgmt. Pool, 975 S.W.2d 782, 785 (Tex.App.-Corpus Christi 1998), aff'd, 52 S.W.3d 128 (Tex.2000). There is no specific statute of limitations for subrogation actions. Instead, these actions generally are subject to the same statute which would apply had the action been brought by the subrogee. See Guillot v. Hix, 838 S.W.2d 230, 233 (Tex.1992) (two-year statute of limitations applied to personal injury and death claims in a workers’ compensation subrogation action); Lusk v. Parmer, 114 S.W.2d 677, 681 (Tex.Civ.App.-Amarillo 1938, writ dism’d) (right of subrogation not barred by the four-year statute of limitations because the suit involved real estate).

Littlejohn argues that Interfederal’s claim is governed by the two-year statute of limitations for actions for the detention of personal property because the claim is that she retained the benefit of Interfederal’s purchase of the First Note. See Tex. Civ. PRAc. & Rem.Code Ann. § 16.003(a) (Vernon 2002). She also argues that the claim is barred because Interfederal failed to file its counterclaim within two years of purchasing the First Note from Flagstar’ Bank.

We disagree. The final judgment holds that Interfederal is the equitable owner of the First Note for $88,000, the beneficiary of the deed of trust securing the Note, that it has all rights as the holder and owner of the Notes, and as the beneficiary of the deed of trust. Because Interfederal’s action was based on the claim the prior note and lien holder would have had, Interfed-eral’s equitable subrogation claim is an action on a debt, not a claim for detention of personal property.

Section 16.004(a)(3) establishes a four-year limitations period for actions on a debt and has been construed to apply to debts whether or not in writing. See Tex. Civ. Pra.c. & Rem.Code Ann. § 16.004(a)(3) (Vernon 2002). To the extent it is a suit for the recovery of real property under a real property lien, it is governed by the four-year statute of limitations. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.035(a) (Vernon 2002). Additionally, because In-terfederal’s counterclaim seeks equitable relief which is not covered specifically by another limitations provision, the trial court could have based its ruling on the four-year residual limitations period. See Tex. Civ. PRAC. & RemCode Ann. § 16.051 (Vernon 2002). Interfederal’s counterclaim was filed on May 7, 1999, well within four years of the payment to Flagstar Bank. As a result, Interfederal’s counterclaim for equitable subrogation is not barred by limitations.

Because we conclude that Interfederal’s claim for equitable subrogation is also not barred by res judicata, as discussed below, and because the judgment does not distinguish between equitable subrogation and unjust enrichment as the basis for the recovery, we need not address the remaining subpart of Littlejohn’s first issue which argues that Interfederal’s counterclaim for unjust enrichment is barred by limitations. We decide Littlejohn’s first issue against her.

Res Judicata

In her second issue, Littlejohn contends that the doctrine of res judicata bars In-terfederal’s claims. Specifically, she argues that the divorce decree awarded her the High Summit property “as her sole and separate property, and the husband is divested of all right, title, interest and claim in and to that property.” She contends that Interfederal was in privity with Zimmerman and was, by the decree’s language, also divested of claims to the property including the claims made below. In-terfederal responds that res judicata does not apply because Zimmerman and Inter-federal were not in privity in the divorce action for purposes of the First Note and because the divorce action did not involve the First Note, which is the subject of this action.

Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). The elements of res judicata are: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action based on the same claims as were raised or could have been raised in the first action. Id.

Res judicata is an affirmative defense. See Tex.R. Civ. P. 94. The party asserting an affirmative defense has the burden of pleading and proving its elements. Williams v. Nat’l Mortgage Co., 903 S.W.2d 398, 401 (Tex.App.-Dallas 1995, writ denied). The failure to request a jury instruction on an affirmative defense results in waiver of that ground by the party relying on it unless the issue was conclusively established. Tex.R. Civ. P. 279; see Abraxas Petroleum Corp. v. Hornburg, 20 5.W.3d 741, 764 (Tex.App.-El Paso 2000, no pet.); Neuhaus v. Kain, 557 S.W.2d 125, 136 (Tex.CivApp.-Corpus Christi 1977, writ ref'd n.r.e.); Lyles v. T.E.I.A., 405 S.W.2d 725, 727 (Tex.Civ.App.-Waco 1966, writ refd n.r.e.); Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 138 (Tex.App.-El Paso 1997, pet. denied); City of El Paso v. Kolster, 931 S.W.2d 365, 367 (Tex.App.-El Paso 1996), rev’d on other grounds by Koster v. City of El Paso, 972 S.W.2d 58 (Tex.1998).

In a jury trial, an issue that there was no evidence or that a matter was conclusively established by the evidence must be preserved for appeal by a motion for instructed verdict, a motion for judgment nov, an objection to the submission of the question to the jury, a motion to disregard the jury’s answer to a vital fact question, or a motion for new trial. Citizens Nat’l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459, 476 (Tex.App.-Fort Worth 2004, no pet. h.). Littlejohn did not submit the elements of res judicata to the jury, did not move for instructed verdict but did move for judgment nov. Consequently, we construe Littlejohn’s second issue as a complaint that the trial court erred in not granting her motion for judgment nov.

We review the denial of a motion for judgment nov under a legal sufficiency standard. Whitney Nat’l Bank v. Baker, 122 S.W.3d 204, 207 (Tex.App.Houston [1st Dist.] 2003, no pet.). When, as here, a party does not submit her affirmative defense to the jury, we review the record to determine whether the issue was disputed or whether- the defense was conclusively established by the evidence. Baker, 122 S.W.3d at 207; see T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222-23 (Tex.1992) (holding that only disputed issues must be submitted to the jury). A motion for judgment nov should be granted when the moving party has established each element of her defense so conclusively that reasonable minds could not differ as to the truth of the controlling facts. Baker, 122 S.W.3d at 207; Kolster, 931 S.W.2d at 368; see Watts v. St. Mary’s Hall, Inc., 662 S.W.2d 55, 59 (Tex.App.-San Antonio 1983, writ refd n.r.e.).

For Littlejohn to obtain a reversal here, she has the burden to show that she so conclusively proved each element of her affirmative defense, res judicata, that there was no fact question to submit to the jury on any of its elements. The first element, finality of the judgment in the divorce action, is not contested. So, Little-john must show that the evidence conclusively established that Interfederal was a party or was in privity with a party to the divorce action and that the divorce action and this action involve the same subject matter.

1. Was Interfederal in privity with Zimmerman?

It is undisputed that Interfederal was not a party to the divorce action. Generally a person is not bound by a judgment in a suit to which he was not a party. See Tex. Civ. Prac. & Rem.Code Ann. § 37.006(a) (Vernon 1997). However, res judicata applies when a party in the second action is in privity with a party to the first action. Amstadt, 919 S.W.2d at 652.

No prevailing definition of privity exists that automatically applies to all cases involving res judicata. Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24, 27 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Rather, the determination of who are privies requires careful examination of the circumstances of each case. Id. A person may be in privity with a party in at least three ways: (1) he can control the action even though not a party to it; (2) his interests can be represented by a party; or (3) he can be a successor in interest, deriving his claim through a party to the prior action. Amstadt, 919 S.W.2d at 653.

Privity connotes those who are in the law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. Gaughan v. Spires Council of Co-Owners, 870 S.W.2d 552, 555 (Tex.App.-Houston [1st Dist.] 1993, no writ); Amstadt, 919 S.W.2d at 653. However, privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same facts. Ayre, 942 S.W.2d at 27.

a. Did Interfederal control the divorce action?

Littlejohn argues that Inter-federal was in privity with Zimmerman in the divorce action because Interfederal “was an active participant in the property settlement and had a strong pecuniary interest in its outcome.” In support, Little-john argues that in the divorce action, Interfederal, through Zimmerman, forgave her indebtedness on the Second Note and gave her a Cadillac owned by Interfederal. However, mere participation in a prior trial does not suffice to bar the participant on principles of res judicata, nor does knowledge of an ongoing trial. Maxson v. Travis County Rent Account, 21 S.W.3d 311, 316 (Tex.App.-Austin 1999, pet. dism’d by agr.). And a party’s status as an officer of a corporation does not necessarily create privity with the corporation absent further evidence. See Texas Capital Sec. Mgmt., Inc. v. Sandefer, 80 S.W.3d 260, 266 (Tex.App.-Texarkana 2002, pet. struck).

Littlejohn does not cite us to any evidence in the record to support a finding that she conclusively established Interfed-eral controlled the divorce action. As a result, Littlejohn failed to satisfy her burden because her evidence that Interfederal participated in the divorce action falls short of conclusively establishing that In-terfederal controlled that action.

b. Did Zimmerman represent Interfederal’s interests?

Littlejohn also contends that the issue of privity was previously decided in our earlier opinion in this case. Specifically, Littlejohn points to the following language in that opinion:

For purposes of res judicata, a non-party may be bound by a judgment if it was in privity with a party, [citations omitted]. Privity extends to non-parties whose interests are represented by a party to the action, [citations omitted]. There is no genuine issue of material fact that Interfederal was in privity with Zimmerman. In the. Divorce Decree, Zimmerman explicitly represents that he has authority to act on behalf of Interfederal with respect to the Second Note. Res judicata prevents relitigation of Littlejohn’s liability on the Second Note.

Littlejohn generally argues that this language supports a finding of privity between Interfederal and Zimmerman for purposes of the First Note. However, this Court’s opinion only referred to the Second Note, not the First Note. In fact, the opinion specifically noted “the Divorce Decree makes no mention of the [First] Note.”

Additionally, there is nothing in the record that shows Zimmerman represented in the divorce action that Interfederal authorized him to act or that he was acting on its behalf generally or specifically with regard to the First Note. And Zimmerman testified in this trial that no one had ever asked him to forgive any other debt related to Interfederal. Conversely, Litt-lejohn testified generally that she thought Zimmerman and Interfederal were “altogether. .. .They are one thing. He used Interfederal the same as he used his own money.... He used it like he chose to use it.” But her testimony does not conclusively establish that Zimmerman represented Interfederal’s interest in the First Note in the divorce action.

The third way in which a person may be in privity with another party — being a successor in interest and deriving his claim through a party to the prior action — does not apply here so we need not review it. As a result, Littlejohn did not conclusively establish that Interfederal was in privity with Zimmerman in the divorce action for purposes of the First Note.

2. Does this lawsuit involve the same subject matter as the divorce action?

Littlejohn argues that Inter-federal’s claims are barred because this action involves the same subject matter as the divorce action. To determine whether the divorce action and this action involve the same basic subject matter, we focus on the factual basis of the complaints. Am-stadt, 919 S.W.2d at 653. Res judicata does not bar a second suit based on a different cause of action. Id.; see Ogletree v. Crates, 363 S.W.2d 431, 435-36 (Tex. 1963).

In the previous appeal, this Court specifically noted that liability on the First Note was not addressed in the divorce decree. In fact, Littlejohn testified that the First Nóte was not addressed in the divorce decree because she thought Zimmerman had paid the Note in full and that the debt and lien were satisfied and released. On the other hand, Zimmerman testified the First Note was not addressed in the divorce decree because it was not part of his settlement agreement with Littlejohn. Regardless of the reason, the testimony from both Littlejohn and Zimmerman shows that neither party intended to address the First Note in the divorce decree.

Nevertheless, Littlejohn now argues that by awarding her “all right, title and interest” to the High Summit property that the divorce decree disposed of her liability on the First Note. She also contends the trial court’s order declaring all premarital agreements and amendments null and void, including the High Summit Agreement, disposed of her liability on the First Note. We disagree.

The divorce decree ordered Littlejohn to pay all encumbrances, liens, “or other charges due or to become due on the real ... property awarded to the wife in this decree unless express provision is made herein to the contrary. ” (emphasis added). This residuary liability clause is sufficient to encompass Littlejohn’s liability under the First Note. See Tharp v. Tharp, 772 S.W.2d 467, 468 (Tex.App.-Dallas 1989, no writ) (residuary clause that awarded “the remainder of the marital estate” to the ex-husband was sufficient to encompass husband’s retirement benefits which were not specifically mentioned in the divorce decree); Buys v. Buys, 924 S.W.2d 369, 372 (Tex.1996). And while the decree voided the High Summit Agreement in which Littlejohn and Zimmerman agreed that the First Note would be repaid from proceeds of their life insurance policies, it did not specifically release Littlejohn from repayment of the First Note altogether.

Additionally, whether Littlejohn’s liability for the First Note is addressed in the divorce decree is a separate question from whether Interfederal’s equitable interests in the First Note and Deed of Trust were addressed. The divorce decree does not address those equitable interests. We conclude the subject matter of this action is different from the subject matter of the divorce action. See, e.g., Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 629 n. 3 (Tex.1992) (citing Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 8-10 (1904)).

In summary, Littlejohn failed to show that each element of her affirmative defense of res judicata was conclusively established by the evidence such that she did not need to submit the issue to the jury. Accordingly, we conclude that the trial court did not err in denying her motion for judgment nov.

We decide Littlejohn’s second issue against her.

Littlejohn’s ATTORNEY’S Fees

In her third issue, Littlejohn appeals the trial court’s failure to award her attorney’s fees as part of the judgment in her favor against Zimmerman which was affirmed on the first appeal. In the first appeal, the parties agreed the award of attorney’s fees to Littlejohn on her declaratory judgment action should stand if she prevailed on appeal. We affirmed Little-john’s declaratory judgment as to Zimmerman and reversed her declaratory judgment as to Interfederal but, because the attorney’s fees award was not segregated, we remanded that issue to the trial court for determination of attorney’s fees attributable to her claims against Zimmerman.

Littlejohn complains that on remand, the trial court failed to award her those attorney’s fees. In her motion for new trial, Littlejohn argued “the stipulation of the parties regarding the amount of reasonable attorney’s fees governs the remanded action against Zimmerman.” However, the only stipulation the Court has found is one in which the parties agreed to an award of attorney’s fees for the prevailing party in the trial. We have found nothing to show that the issue of attorney’s fees in the declaratory judgment action against Zimmerman was raised on remand. Accordingly, we find this issue has not been preserved. See Tex.R.App. P. 33.1(a).

Conclusion

We conclude that Interfederal’s equitable subrogation claim is not barred by the statute of limitations or by the doctrine of res judicata. Because the trial court entered judgment on the jury verdict and assessed damages in a lump sum amount rather than segregated by claim, we need not reach the issue of whether Interfederal’s unjust enrichment claim is barred. We conclude Littlejohn’s request for attorney’s fees in her declaratory judgment action against Zimmerman has not been preserved. Accordingly, we affirm the judgment of the trial court.

      . Since the first appeal in this case over two years ago, appellant changed names. For consistency, we refer to her as Littlejohn.

      . The parties are familiar with the facts of this case, which we recited at length in our opinion on the first appeal. Rather than listing them again, we cite only the facts necessary to this appeal and refer the parties to our earlier opinion: Zimmerman v. Littlejohn, 2002 WL 2005514 (Tex.App.-Dallas 2002, no pet.) (not designated for publication).

      . The High Summit Agreement modified the parties’ original prenuptial agreement. In the High Summit Agreement, the parties agreed that the proceeds of Zimmerman’s life insurance policy would be used to repay the $142,000 (apparently a combination of the indebtedness on the First Note and the Second Note) to Interfederal if Zimmerman predeceased Littlejohn, and that the proceeds of Littlejohn’s life insurance policy would be used to repay the $142,000 if Littlejohn predeceased Zimmerman.

      . The relevant portions of the statutes cited in this opinion were not changed in subsequent amendments. Accordingly, we cite the latest version of the statute.

      . See Williams v. Khalaf, 802 S.W.2d 651, 656-57 (Tex.1990) (tracing the history of the limitations provisions for actions on debts in writing and debts not in writing and concluding all actions on debt are now governed by the same provision, which is four years). In Khalaf, the court noted the predecessor of section 16.051, the residual limitations period, applies to equitable actions not governed by a specific limitations provision. Id. at 658.

      . Littlejohn requested, and received, a jury charge on whether Zimmerman was responsible for the conduct of Interfederal but did not request a charge on the elements of res judi-cata.

      . The trial court did not rule on the motion for judgment nov therefore the motion was overruled by operation of law. We treat that as if the motion had been denied. Tex.R.App. P. 33.1(b).

      . In fact, in answer to question number four, the jury found that Zimmerman was not responsible for the conduct of Interfederal.