author: CHARLES KREGER, Justice.

text:
    MKC ENERGY INVESTMENTS, INC., Appellant v. Scot SHELDON and Sheldon, Jordan & Dunham, L.L.P., Appellees.
    No. 09-04-235 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 10, 2005.
    Decided Sept. 22, 2005.

      Robert A. Plessala, Cokinos, Bosien & Young, Houston, for appellant.
    Donald B. McFall and Joseph R. Little, McFall, Sherwood & Breitbeil, P.C., Houston, for appellee.
    Before McKEITHEN, C.J., KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

MKC Energy Investments, Inc. (“MKC”) appeals a summary judgment granted in favor of attorney Scot Sheldon and Sheldon, Jordan & Dunham, L.L.P. (“Sheldon”), on all third-party causes of action asserted against them. MKC appeals raising three issues: (1) the statements of Sheldon should not be privileged because they were made prior to and without reference to any pending or proposed judicial proceedings, (2) MKC’s motion to continue the summary judgment should have been granted to allow further discovery, and (3) in the absence of the absolute immunity defense, genuine issues of material fact exist to preclude summary judgment on all causes of action. We affirm the trial court’s judgment on other grounds.

BACKGROUND

MKC owns a building in which the Southeast Texas Regional Planning Commission (“RPC”) was a tenant. During 2000 and 2001, several RPC employees, as well as other tenants in the building, complained of health problems allegedly related to the building. Beginning in July, 2001, various community newspapers began reporting on the alleged problems with the building. RPC retained Sheldon as its attorney with regard to the conflict with MKC and the problems with the building, and MKC retained its own legal counsel. In addition to hiring lawyers, each party retained experts to render opinions about the condition of the building. The expert for RPC eventually prepared a report of her investigation and findings. On August 29, 2001, the Beaumont Enterprise ran an article concerning RPC’s decision to vacate the building. Sheldon responded to a reporter’s telephone call and is quoted in the article with various statements, including that the conditions of the building were “dangerous” and “unhealthy.” Sheldon is further quoted as saying that the building had “dangerous levels of certain types of mold” that prompted Sheldon to “advise [the RPC] to evacuate the premises.” In the same article, Sheldon gave the reporter the name of MKC’s attorney and added that MKC “denied any unsafe conditions.”

Within a week of that newspaper article, MKC sued the RPC in federal court seeking, among other things, a declaratory judgment on concerns over the building. On or about October 16, 2001, the RPC, represented by Sheldon, filed the underlying cause in Jefferson County district court. On or about July 1, 2003, MKC filed its First Amended Counterclaims and Third-Party Claims against Sheldon asserting tortious interference, business disparagement and conspiracy arising out of the quotes attributed to Sheldon in the Beaumont Enterprise. On August 7, 2003, RPC’s Motion to Abate the case for sixty days was granted by the trial court to allow RPC time to obtain new counsel and Sheldon to obtain counsel of its own. No formal discovery was begun by MKC on the claims against Sheldon. On October 27, 2003, Sheldon filed a Motion for Summary Judgment. MKC filed a sworn motion to continue the summary judgment hearing as well as a supplemental motion. MKC filed a response to the Motion for Summary Judgment including a renewed Motion for Continuance, on November 18, 2003. We note that the record does not evidence that the trial court ever heard MKC’s motion for continuance or that any oral hearing was ever requested. Oral arguments were heard on November 21, 2003, and the trial court signed a summary judgment in favor of Sheldon dismissing all of MKC’s third-party claims. By order signed April 23, 2004, the court severed its summary judgment ruling in favor of Sheldon. MKC timely filed a notice of appeal.

Although both a no-evidence and a traditional motion for summary judgment were filed in this case, our analysis is under the traditional standard. The standard of review in a defamation case is the same as in other summary judgment cases, despite the presence of constitutional considerations. See Casso v. Brand, 776 S.W.2d 551, 556-57 (Tex.1989). A summary judgment for a defendant will be upheld when the defendant negates an essential element of plaintiffs theory of recovery. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). In reviewing a summary judgment, an appellate court must take as true the evidence favorable to the nonmovant. Id. Summary judgment is appropriate when a dispositive question of law is involved. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex.1991). Whether an unambiguous statement is reasonably capable of defamatory meaning is a dispositive question of law in a libel case. See Musser v. Smith Prot. Servs., Inc., 723 S.W.2d 653, 655 (Tex.1987). In reviewing a summary judgment in which the trial court has not provided the basis for its decision, as here, we must review each ground asserted in the motion and affirm the trial court’s judgment if any of these grounds are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Williams v. United Pentecostal Church Intern., 115 S.W.3d 612, 614 (Tex.App.-Beaumont 2003, no pet.). Furthermore, where both traditional and “no evidence” motions for summary judgment are filed, the reviewing court must uphold the summary judgment if it can be sustained under either method. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

The elements of a claim for business disparagement are: (1) publication of disparaging words by the defendant, (2) falsity, (3) malice, (4) lack of privilege, and (5) special damages. Granada Biosciences, Inc. v. Forbes, Inc., 49 S.W.3d 610, 615 (Tex.App.-Houston [14th Dist.] 2001), rev’d on other grounds, 124 S.W.3d 167 (Tex.2003) (citing Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987)). “The tort is part of the body of law concerned with the subject of interference with commercial or economic relations. The Restatement identifies the tort by the name ‘injurious falsehood’ and notes its application ‘in cases of the disparagement of property in land, chattels, or intangible things or of their quality.’ Restatement (Second) of Torts § 623A, comment a (1977).” An action for business disparagement is similar in many respects to an action for defamation. Hurlbut, 749 S.W.2d at 766.

Both involve the imposition of liability for injury sustained through publications to third parties of a false statement affecting the plaintiff. The two torts, however, protect different interests. The action for defamation is to protect the personal reputation of the injured party, whereas the action for injurious falsehood or business disparagement is to protect the economic interests of the injured party against pecuniary loss.

More stringent requirements have always been imposed on the ‘plaintiff seeking to recover for injurious falsehood in three important respects — falsity of the statement, fault of the defendant and proof of damage.’ Restatement (Second) of Torts § 623A, comment g (1977). Regarding falsity, the common law presumed the defamatory statement to be false and truth was a defensive matter. The plaintiff in a business disparagement claim, however, must plead and prove the falsity of the statement as part of his cause of action.

Hurlbut, 749 S.W.2d at 767.

To support a claim for business disparagement, the published statements must be, at a minimum, defamatory. Granada Biosciences, 49 S.W.3d at 616; see also Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 427 (Tex.App.-Waco 1997, writ denied). “All assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution.” Carr, 776 S.W.2d at 570. “Whether a statement is an opinion or an assertion of fact is a question of law.” Id.; see also Delta Air Lines, 949 S.W.2d at 426. Whether the words used are reasonably capable of a defamatory meaning is a question of law. Delta Air Lines, 949 S.W.2d at 426; Musser, 723 S.W.2d at 654. “The court construes the statement as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” Musser, 723 S.W.2d at 655. “The question should not be submitted to the jury unless the language is ambiguous or of doubtful import.” See Ezrailson v. Rohrich, 65 S.W.3d 373, 376 (Tex.App.-Beaumont 2001, no pet.) (quoting Garcia v. Burris, 961 S.W.2d 603, 605 (Tex.App.-San Antonio 1997, pet. denied)). The statements alleged to be defamatory must be viewed in their context; they may be false, abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory in light of the surrounding circumstances. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 248 (Tex.App.-San Antonio 1996, no writ). The entire communication — not mere isolated sentences or portions — must be considered. See Musser, 723 S.W.2d at 655.

We must first determine whether the statements attributed to Sheldon in the newspaper articles were actually defamatory as pled by MKC. In order to do so, we must examine the published articles at issue in their entirety rather than examine separate sentences or words excerpted from such articles. See Musser, 723 S.W.2d at 653. “This is true because statements may be made defamatory by taking them out of context, and although they may be false, abusive, unpleasant and objectionable to the plaintiff, they may not be ‘defamatory’ in an actionable sense.” Simmons v. Ware, 920 S.W.2d 438, 444-45 (Tex.App.-Amarillo 1996, no pet.).

The ordinary reader could not reasonably understand the complained-of statements attributed to Sheldon in this case to have a defamatory meaning. Prior to the publication of Sheldon’s comments to the reporter, at least four previous newspaper articles had been published chronicling the allegations of “sick building syndrome” involving the building owned by MKC. In the article made the basis of MKC’s complaints, Sheldon is identified as the attorney for RPC and the statements attributed to him explain the lawsuit being contemplated between his client and MKC regarding the building and the termination of the lease with such landlord. Sheldon’s statements are obviously interspersed, at the sole discretion of the reporter, with other direct quotes of a representative of his client for the writer’s purpose. However, it is important to remember that our task is not to determine what the statement meant to the plaintiff, but whether it would be considered defamatory to the average reader. See Herald-Post Publishing Co., v. Hervey, 282 S.W.2d 410, 415 (Tex.Civ.App.-El Paso 1955, writ ref'd n.r.e.), and San Antonio Express News v. Dracos, 922 S.W.2d 242, 249 (Tex.App.-San Antonio 1996, no writ). Moreover, in the same paragraph wherein Sheldon is reported as saying “[t]he conditions are dangerous and unhealthy,” Sheldon is quoted as saying, “The landlord has denied any unsafe conditions.” The attorney further explained in such article the constructive eviction of his client. Based upon a review of the entire article in light of the circumstances in which it was reported, the statements attributed to Sheldon are not reasonably capable of defamatory meaning but, instead, constitute opinions of the attorney regarding his client’s position in the impending lawsuit. Under the circumstances here, the complained-of statements of Sheldon were not defamatory.

As stated earlier herein, as the trial court did not specify the grounds upon which the summary judgment was granted, the reviewing court will affirm the judgment if any theory advanced in the motion is meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr, 776 S.W.2d at 569. Although not briefed by either party, Sheldon’s Motion for Summary Judgment includes an assertion that the statements were not defamatory as a matter of law. As we have found the statements were not defamatory as a matter of law, the trial court properly could have granted summary judgment on MKC’s business disparagement cause of action. And, because we have determined the statements were not defamatory as a matter of law, we need not determine whether the statements were privileged and thus, do not reach issue number one.

Appellant’s third issue complains the trial court erred in granting summary judgment on all causes of action. Sheldon’s Motion for Summary Judgment prayed that the court grant a summary judgment on all claims asserted by MKC. MKC’s remaining causes of action of tor-tious interference and conspiracy are both grounded on its business disparagement/defamation cause of action. When non-libel claims are based on a libel cause of action, the person claiming a defamatory statement must first establish the libel elements in order to recover on the non-libel claims. See generally Rogers v. Dallas Morning News, 889 S.W.2d 467, 474 (Tex.App.-Dallas 1994, writ denied); see also Evans v. Dolcefino, 986 S.W.2d 69, 79 (Tex.App.-Houston [1st Dist.] 1999, no pet.). We have already determined the statements attributed to Sheldon were not defamatory as a matter of law. Because MKC failed to establish the elements of its business disparagement/defamation cause of action, it failed to meet a condition precedent to recovery on its other causes of action. Consequently, the trial court did not err in granting summary judgment on all causes of action. We thus overrule issue number three.

We next address MKC’s complaint that its’ motion to continue the summary judgment proceeding should have been granted to allow further discovery. The granting or denial of a motion for continuance is within the trial court’s sound discretion. General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997). We review the trial court’s ruling for an abuse of discretion. See Clemons v. State Farm Fire & Cas. Co., 879 S.W.2d 385, 393 (Tex.App.-Houston [14th Dist.] 1994, no writ). Before the reviewing court will reverse the trial court’s ruling, it should clearly appear from the record that the trial court has disregarded the party’s rights. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986). An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear the trial court’s decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987). In a summary judgment context, it is generally not an abuse of discretion to deny a motion for continu-anee if the party has received the twenty-one days’ notice required by Texas Rule of Civil Procedure 166a(c). White v. Mellon Mortg. Co., 995 S.W.2d 795, 803 (Tex.App.Tyler 1999, no pet.); McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex.App.-Houston [14th Dist.] 1993, no writ).

“A party seeking more time to oppose a summary judgment must file an affidavit describing the evidence sought, explaining its materiality, and showing the due diligence used to obtain the evidence. Tex.R. Civ. P. 166a(g), 251, 252.” Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). “The affidavit must show why the continuance is necessary; eonclusory allegations are not sufficient. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520-22 (Tex.1995) (holding further time for discovery unnecessary as construction of unambiguous contract required no discovery).” Id. Generally, when a movant fails to comply with the requirement of Rule 251 that the motion for continuance be supported by affidavit, we presume the trial court did not abuse its discretion in denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Garcia v. Tex. Employers’ Ins. Ass’n, 622 S.W.2d 626, 630 (Tex.App.-Amarillo 1981, writ ref'd n.r.e.). While MKC did file a verified motion for continuance seeking further discovery, MKC never presented the trial court with an affidavit setting forth with any specificity the evidence sought that was allegedly not obtainable prior to the scheduled hearing on the motion for summary judgment, nor did MKC request a hearing date from the court on such motion. Despite its objections to the trial court’s deadlines, MKC’s counsel was able to file a response to Sheldon’s motion for summary judgment.

Appellant’s reliance upon the holding in Helfand v. Coane, 12 S.W.3d 152 (Tex.App.-Houston [1st Dist.] 2000, pet. denied), to support this issue on appeal is misplaced. Helfand is factually distinguishable from the case at hand regarding the discovery issue but provides some guidance on this issue. In Helfand, the Houston Court noted that in judicial immunity cases, there are multiple components to the absolute privilege: the communication must bear some relationship to a judicial proceeding; the attorney must be employed for that proceeding; and the communication must be in furtherance of that representation. Helfand, 12 S.W.3d at 157. Whether an alleged defamatory communication is related to a proposed or existing judicial proceeding is a question of law. Thomas, 940 S.W.2d at 343. Determining whether a communication is absolutely privileged requires sufficient discovery. Helfand, 12 S.W.3d at 157. The trial court in Helfand entered an order freezing all discovery until after the summary judgment was considered. In the case before us, while the trial court abated the proceedings for a period of sixty days prior to the filing of the summary judgment, the trial court had not entered any order prohibiting discovery after the abatement had terminated.

Further distinguishing Helfand, Hel-fand’s claim arose not only from a publication of statements by Coane in a letter but also from a re-publication of alleged defamatory statements. Discovery was required regarding the circumstances of the re-publication of the alleged defamatory statements. Based on those facts, the Houston Court found an abuse of discretion to deny the motion for continuance. The statements at issue in this case were made by Sheldon and published in the newspaper. The newspaper articles were included in the record and available to the trial court. In this case, unlike Helfand, there is no dispute regarding the' publication of the articles or the facts surrounding the statements. Under the circumstances here, the statements were not defamatory and further discovery was unnecessary. We hold the trial court did not abuse its discretion by denying appellant’s motion to continue the summary judgment proceedings and overrule appellant’s second issue.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: BRIAN QUINN, Chief Justice.

license: Public Domain

text:
    Jose L. CARDENAS and Gloria Cardenas, Appellants/Cross-Appellees, v. Jack N. VARNER and Joyce L. Varner, Appellees/Cross-Appellants.
    No. 07-03-0537-CV.
    Court of Appeals of Texas, Amarillo.
    Dec. 7, 2005.
    Rehearing Overruled Feb. 2, 2006.

      Daniel L. Schaap and R. Wade King, Underwood, Wilson, Berry, Stein & Johnson, P.C., Amarillo, for Appellants & Cross-appellees.
    Roger Lee, Gibson, Hotchkiss, Roach & Davenport, Wichita Falls, for Appellees & Cross-appellants.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Jack and Joyce Varner sued Jose and Gloria Cardenas to recover upon a promissory note and foreclose upon a vendor’s lien securing payment of the note. The Cardenas executed the note as partial payment for ranch land bought from the Var-ners. When the Cardenas discovered, after closing of the sale, that the acreage was less than that represented by the Var-ners, they refused to pay the outstanding note balance. This precipitated the aforementioned suit. In response, the Cardenas counterclaimed for breach of the sales contract and warranties, asserting that they were sold less land than promised. Upon trial before the court, the trial judge reformed the purchase price of the land, subtracted the difference from the outstanding balance due on the note, awarded the Varners the remaining sum due, and permitted them to foreclose upon their lien. The issues before us concern the reformation of the purchase price, the attorney’s fees awarded to the Varners, and the interest rates adopted by the trial court. We reverse in part and affirm in part.

First Issue — Reformation of the Agreement

The first issue we address encompasses the trial court’s reformation of the purchase price. The Cardenas argue that it did not reduce the price enough while the Varners assert that it had no basis to reduce it at all. We overrule the Cardenas’ assertion and sustain that of the Var-ners.

No one disputes that the trial court attempted to reform the agreement struck by the parties. Furthermore, the Cardenas believe that the trial court was authorized to do so because the parties were mistaken about the actual amount of land encompassed in the sale. Thus, equity purportedly entitled the trial court to make the changes to reflect the actual property conveyed. Yet, in suing for redress, the Cardenas only pled. causes of action sounding in breached contract and warranties. And, as for relief, they sought only damages in the amount of $204,800, plus court costs, attorney’s fees, and interest. Their live pleading said nothing about mistake (either mutual or otherwise) or reforming the terms of the agreement. This is fatal since one must seek reformation in his live pleading to acquire it. Rattan v. Dicker, 373 S.W.2d 306, 310 (Tex.Civ.App.-Dallas 1963, no writ); accord Liu v. Yang, 69 S.W.3d 225, 229 (Tex.App.-Corpus Christi 2001, no pet.) (stating that to be entitled to reformation of an agreement, a party must plead either mutual mistake, unilateral mistake accompanied by fraud, or other inequitable conduct by the other party). So, because the Cardenas did not, they were not entitled to reformation of the agreement. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983) (stating that a party may not be granted relief in absence of pleadings to support that relief).

The Cardenas, however, cite Scott v. Nunn Elec. Supply Corp., 386 S.W.2d 891 (Tex.Civ.App.-Amarillo 1965, no writ) and Gable Elec. Serv., Inc. v. Mims, 364 S.W.2d 292 (Tex.Civ.App.-Dallas 1963, no writ) for the proposition that the Varners waived any complaint about the lack of pleading. Furthermore, they allegedly did so because they invited the error by submitting to the trial court findings of fact and conclusions of law encompassing the trial court’s decision to reform the agreement. While Scott and Gable indicate that one cannot complain about findings he solicited, we find the cases inapposite for several reasons. First, the Varners are not complaining about the trial court’s findings of fact and conclusions of law. Second, the error at issue occurred before the findings were submitted by the Var-ners. By that time, the trial court had already executed its final judgment effectively reforming the agreement. So, it can hardly be said that the proffered findings induced the trial court to act in an objectionable manner.

In sum, the conditions necessary to obtain any reformation of the agreement were not satisfied. Thus, the trial court could not enter judgment granting relief which no one sought and erred by doing so.

Second Issue — Attorney’s Fees

Next we address the dispute regarding attorney’s fees. The Cardenas allege that the trial court awarded the Varners too much because the Varners did not segregate the recoverable fees from those that were not. On the other hand, the Varners contend that the trial court failed to award them enough. We agree with the Cardenas.

First, we address the Varners’ allegation that the trial court erred in not awarding them attorney’s fees to be incurred on appeal and in conducting the post-judgment foreclosure. The record is bereft of evidence indicating what a reasonable fee would be for pursuing those avenues. Without such evidence, the trial court lacked basis to award them. Thus, we reject the Varners’ contention.

Next, we address the allegation that the Cardenas were entitled to a reduction in fees awarded to their opponents since the trial court reformed the agreement and lowered the damages due the Varners. In other words, since they were partially victorious in defending against the Varners’ suit, the Cardenas believe that they should not have to pay all the fees sought. Assuming that law exists supporting the argument, facts do not. Simply put, the foundation upon which it rests is the validity of the trial court’s reformation of the agreement. Because we have held that the trial court erred in that regard, there is no basis to support the argument. Thus, we reject it.

Next, the Cardenas assert that the Varners did not properly segregate the fees. With this, we agree. One claiming attorney’s fees has the burden to segregate those recoverable from an opponent from those which are not. Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 416-17 (Tex.App.-Amarillo 2003, pet. denied); accord Hruska v. First State Bank, 747 S.W.2d 783, 785 (Tex.1988) (generally requiring segregation of fees). Yet, segregation need not occur if the causes of action are dependent upon the same set of facts or circumstances and, thus, are inseparable. Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 11-12 (Tex.1991); Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d at 416-17.

Here, the Varners sought to recover approximately $45,000 in attorney’s fees. The billing summary tendered into evidence illustrated that those fees encompassed action taken to prosecute their claims against the Cardenas and founded upon the promissory note. Yet, so too did it disclose that fees incurred in prosecuting causes of action against defendants other than the Cardenas were also included in the sum. Moreover, the causes of action asserted against the other defendants and operative facts underlying them were distinct from those entitling the Varners to recovery against the Cardenas.

The Varners cite us to no authority obligating the Cardenas to pay for attorney’s fees incurred by the Varners in prosecuting distinct claims against distinct parties and involving distinct facts. Thus, they were obligated to segregate the recoverable fees from those that were not. And, while the trial court awarded less fees than requested (approximately $40,000 instead of $45,000), we cannot say, upon the record before us, that the difference equaled the amount incurred in prosecuting the claims against the other defendants. Thus, the issue of fees must be remanded to the trial court. Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d at 12.

The same can be said of the fees incurred in defending against the Cardenas’ counterclaim. The latter was based not upon the note and vendor’s lien. Nor did they attempt to vitiate or otherwise alter either instrument. Rather, they sued for breach of the underlying sales contract. Furthermore, the damages sought represented the difference in cost between the acreage they thought they acquired and the acreage that they actually received. The difference was then to be used to reduce (by offset) the sum due under the note. So, while there was some relationship between the claims, the causes of action differed. Moreover, the operative facts upon which they depended were not so intertwined as to be inseparable. Thus, the fees incurred by the Varners in prosecuting their claims were capable of segregation from those incurred in defending against the counterclaim.

Third Issue — Pre and Post-Judgment Interest

The Cardenas next complain about the trial court’s application of the default interest rate to the sums found outstanding. That rate, as specified in the note, was 18% per annum. Furthermore, their argument is two-fold. We address each part in turn.

First, they assert that because the trial court afforded them some relief by reforming the agreement, they were not in default. Our having determined that the trial court erred in reforming the contract price vitiates this contention, however.

The next ground of contention concerns the acceleration of the note payments. According to the Cardenas, no evidence exists of record establishing that the Varners accelerated payment of the note prior to the date of suit. And, because of that circumstance, the trial court could not order that the entire balance under the note accrue interest at 18% from the date the Cardenas first failed to make an installment payment. We agree.

The promissory note executed by the Cardenas had a principal of $185,000. That principal, with accrued interest, was to be paid through equal annual installments of $34,448.66. The first installment was due on December 15, 1998, and it is undisputed that the Cardenas made one payment of $34,448.66. Under the terms of the note, the second payment was due on December 15, 1999. However, it was not paid, nor was any other. The Varners then sued to collect the entire principal on July 27, 2000, or approximately five months before the third installment fell due. And, the allegation in their petition and pertaining to acceleration simply involved the statement that “all sums due and owing under the terms of said note have been declared accelerated and past due and owing.”

Our review of the record uncovered no evidence illustrating that the Varners ever notified the Cardenas of their intent to accelerate the note. Similarly undiscovered was evidence of actual acceleration any time before July 27, 2000. Nor did either party cite us to any such evidence. Nonetheless, the trial court ordered, via its judgment, that interest accrue on the entire unpaid principal at the rate of 18% from December 15, 1998. The latter date was one year before the second installment was due and the Cardenas breached the terms of the note.

To lawfully accelerate a promissory note (assuming, of course, the creditor has the right to accelerate), the creditor must afford the debtor notice of its intent to accelerate and of actual acceleration. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566-67 (Tex.2001); Baldazo v. Villa Oldsmobile, Inc., 695 S.W.2d 815, 817 (Tex.App.-Amarillo 1985, no writ). Moreover, notice that the debt was accelerated has no legal effect unless preceded by notice of intent to accelerate. Baldazo v. Villa Oldsmobile, Inc., 695 S.W.2d at 817. Given the want of evidence illustrating that the Cardenas were ever notified of the Varners’ intent to accelerate, the Varners did not prove lawful acceleration. Thus, the trial court erred in not only concluding that the entire unpaid principal was due on December 15, 1998, but also that interest at the default rate (or 18%) accrued on the entire sum as of that date.

Fourth Issue — Post-Judgment Interest on Attorney’s Fees and Court Costs

Next, the Cardenas allege that the trial court erred in ordering that interest accrue at the rate of 10% on the award of attorney’s fees. The correct rate was 5%, they contend. The Varners concede the issue. Therefore, we sustain it.

Final Issue — Award of Cost for Survey

The final issue before us involves that portion of the judgment awarding the Cardenas “their survey costs in the amount of $7,000.00.” The Varners contend that the trial court had no basis for doing so. We sustain the issue.

To the extent the award may have been made as part of the assessment of court costs, we note that the survey in question was not ordered by the trial court. See Tex.R. Crv. P. 796 (allowing the trial court to appoint a surveyor to survey the premises in controversy). Nor did the trial court appoint the surveyor. Authority holds that if the surveyor is not appointed by the court and acts solely on behalf of one party, his fees may not be assessed as costs. Whitley v. King, 581 S.W.2d 541, 544 (Tex.Civ.App.-Fort Worth 1979, no writ). Given Whitley and the evidence indicating that the Cardenas unilaterally hired the surveyor, the fees incurred in conducting a survey cannot be taxed to the Varners as court costs.

Nor can the award be viewed as damages or relief due to any purported breach of contract. While it may be that the Varners allegedly agreed to provide their opponents with a survey and ultimately did not, nothing was said about the obligation in the counterclaim filed by the Cardenas. So too did the Cardenas omit from their live pleading any request for equitable relief; thus, their suggestion on appeal that the fee was awarded “as an equitable remedy” lacks foundation. Finally, no one posits that the cause of action entitling the Cardenas to recover the expense was tried by consent. Because the relief granted must conform to the live pleadings, Tex.R. Civ. P. 301; see Cunningham v. Parkdale Bank, 660 S.W.2d at 812-13 (stating that a party may not be granted relief in absence of pleadings to support that relief), and the relief in question was not encompassed by the Cardenas’ pleadings, the trial court erred in awarding it. See Cunningham v. Parkdale Bank, 660 S.W.2d at 812-13 (stating that a judgment must be supported by the pleadings, and, if it is not, then it is erroneous).

In sum, we reverse that portion of the judgment reforming the purchase price of the land and, thereby, reducing the outstanding principal of the promissory note by $57,767 to $105,914.00 and render judgment that the unpaid principal was and is $163,681.00. Next we reverse that portion of the judgment awarding the Varners their attorney’s fees, sever that issue from this appeal, and remand it to the trial court. Next, we reverse that portion of the judgment awarding the Cardenas $7,000 for the cost of the survey. Finally, we reverse that portion of the judgment declaring that prejudgment interest accrue on the entire unpaid principal at the rate of 18% from December 15, 1998, until judgment and remand the issue to the trial court for further proceedings. In all other aspects, the judgment is affirmed.

      . The Cardenas do not assert in their appellate brief that the theory was tried by the consent of the parties.

      . It should be recalled that the Cardenas did not include in their live pleading a demand for reformation of the note or lien.


author: JOHN G. HILL, Justice, Assigned.

text:
    Stephen Paul PATEL, Appellant, v. STATE of Texas, Appellee.
    No. 11-04-00165-CR.
    Court of Appeals of Texas, Eastland.
    Dec. 8, 2005.
    Scott Seamster, Fort Worth, for appellant.
    Russell D. Thomason, District Attorney, Eastland, for appellee.

      Panel consists of: WRIGHT, C.J., and MeCALL, J., and HILL, J.

      . John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.

   OPINION ON PETITION FOR DISCRETIONARY REVIEW

JOHN G. HILL, Justice, Assigned.

Following the filing of Stephen Paul Patel’s petition for discretionary review, in accordance with TEX.R.APP.P. 50, we withdraw our prior opinion and substitute this opinion for that prior opinion. Stephen Paul Patel appeals his conviction by a jury of the offense of aggravated sexual assault. The jury assessed his punishment at eight years in the Texas Department of Criminal Justice, Institutional Division. He contends in a single issue that the evidence is legally and factually insufficient to support his conviction. We affirm.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004).

The complainant testified that, while he was in jail following his conviction of the offense of possession of child pornography, he started having problems with Dustin Keith and Patel after first Keith and then Patel were placed in his cell. He indicated that Keith began by grabbing the back of his head and ramming it into a brick wall. He said that Patel was very close when that happened but that he did not remember exactly where he was. After that, they would walk around the cell and slap him every time they would pass. He specifically mentioned that Patel punched him in the gut and then hit him in the side of the head. He stated that the whole ordeal lasted a day and a half.

The complainant testified that they made him do squats and sit on the wall. He said that Patel would count how long he would have to do this and that he would count “extremely slow.” He related that, if he could not stay in the desired position, Patel would kick him. He stated that they would make him do push-ups, with Patel kicking him when he fell while attempting them. According to the complainant, Patel told him that, if he ever reported it, he would come to his house and fight him again and that then he would either fight back or be six feet under.

The complainant testified that either Keith or Patel, he could not remember which, told him to stick his thumb up his rectum. According to the complainant, they said, “Do it.” He said that, after more exercising and kicks to the chest, one of them handed him a pencil and told him to stick it up his rectum. He stated that during this ordeal Keith and Patel were “pretty much always together.” He related that after a couple of minutes one of them told him to take it out, stick it in his mouth, and lick the feces off. The complainant said that, after he did it, they told him to do it again.

The complainant testified that, after more physical abuse that day and the next, either Keith or Patel told him to stick his toothbrush holder up his rectum. He insisted that, when he was told what to do, Keith and Patel were working in “concert together.” He said that, after he put the toothbrush holder up his rectum, Keith told him to sit on it and bounce up and down. He stated that, after five to ten minutes, he thought it was Keith who told him to take it out. He testified, “And they told me to put it in my mouth and lick the feces off of it.”

Nathan Daniels testified that he was present when Keith and Patel “went off on” the complainant one day. He said that they took him in the corner and “beat the fool” out of him. He stated that they both participated in the beating. He insisted that Patel helped beat the complainant but that Keith instigated it. When asked to describe what he saw Keith and Patel do, Daniels indicated:

Off-the-wall stuff, stick his head in the toilet, make him drink the toilet water. Plus Dustin Keith urinated in a cup and made him drink it... .They made him sit down, put a toothbrush holder up in his anal cavity, made him sit down and bounce up and down.

According to Daniels, it was Keith, not Patel, who kicked the complainant while he was trying to do push-ups. He insisted that, for the most part, it was Keith, not Patel, who was “doing most of the torment” to the complainant. He said that he guessed that on some days they would come over there and make the complainant do things but that it was Keith that would egg it on and push the issue. When asked whether he had seen Keith order the complainant to do any other “sexual abuse type act,” Daniels said, “Well, they made him a few times take a pencil, put it up in his tail and then get on his hands and knees like an animal or hog, and push a rag across the floor with his nose that they used to wipe the urinal with.” He stated that, when the complainant was ordered to put the toothbrush holder in his anus, he was ordered to sit up and down on the seat at the table and jump up and down. He related that, while this was happening, Keith was asking, “Is it in there? I just want to make sure.” Daniels said that he told them to stop when Keith told the complainant to take the toothbrush holder out and put it in his mouth. He said that they stopped for a few days.

David HuIIum testified that he was the Texas Ranger who investigated the allegations of child pornography against the complainant. He said that, when he spoke with him concerning the incident in question, the complainant was “shaking like a leaf.” He related that the complainant told him he was afraid of Patel.

The evidence shows that, over an extended period, Patel and Dustin Keith assaulted the complainant and made threats of retaliation in the event he reported it and that the assault included making him put a pencil and a toothbrush holder in his anus. We hold that a reasonable jury could have found from this evidence that Keith intentionally or knowingly caused the penetration of the complainant’s anus with a pencil and a toothbrush holder; that Patel, by acts or words occurring in the complainant’s presence, threatened to cause or place the complainant in fear that serious bodily injury would be imminently inflicted on him; and that, acting with intent to promote or assist the commission of the offense, he aided Keith to commit the offense, by his own actions and conduct during the offense. We further find that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that any contrary evidence is not so strong that the standard of proof beyond a reasonable doubt could not have been met. We, therefore, find that the evidence is legally and factually sufficient to support Patel’s conviction.

Patel seeks to separate the beatings from the sexual assault, asserting that there was no testimony establishing that Patel aided Keith in any way in committing the portion of the assault relating to requiring the complainant to put a pencil and a toothbrush holder in his anus. This assertion overlooks the testimony of the complainant that the beating occurred both before and after the sexual assaults and that, when he was told what to do, Keith and Patel were working in concert together. It also ignores Daniels’s testimony that “they made him sit down, put a toothbrush holder up in his anal cavity, made him sit down and bounce up and down,” and that “they made him a few times take a pencil, put it up in his tail and then get on his hands and knees like an animal or hog.” While Daniels sought to place most of the blame on Keith, he acknowledged that, on some days, both men would come over and make the complainant do things.

In his petition for discretionary review, Patel urges that we failed to specifically indicate our ruling on his issue that the evidence is factually insufficient to support his conviction. We agree that the opinion should have been more specific; accordingly, we have specifically addressed the issue in this modified and corrected opinion.

Additionally, Patel contends in his petition for discretionary review that the evidence is insufficient because the State failed to prove that either Patel or Keith penetrated or touched the victim’s anus; that the evidence is insufficient because the State failed to prove that the victim received serious bodily injury or was threatened with or placed in fear of death or serious bodily injury; that the evidence is insufficient because any threat was not imminent; and that the evidence is insufficient because there was no threat. Patel failed to present these contentions in his appellate brief. Consequently, these issues have not been briefed by the State. Furthermore, the time in which we may alter our original opinion following the filing of a petition for discretionary review is limited. The briefing rules in the Texas Rules of Appellate Procedure do not contemplate new issues being raised after the filing of the appellate briefs. Rochelle v. State, 791 S.W.2d 121, 125 (Tex.Cr.App.1990). Generally, this court has discretion not to consider matters raised after the filing of the appellate briefs. Id. at 124. Therefore, because Patel’s presentation of these issues is not presented in a timely or orderly fashion, we exercise our discretion not to consider these new matters raised for the first time by Patel in his petition for discretionary review. We overrule Patel’s sole issue on appeal.

The judgment is affirmed.


author: DAVID PURYEAR, Justice.

text:
    The STATE of Texas, Appellant v. Alex Garcia GUZMAN, Appellee.
    No. 03-04-00525-CR.
    Court of Appeals of Texas, Austin.
    Dec. 8, 2005.

      James F. Booher, Asst. Criminal District Atty., San Marcos, for Appellant.
    James M. Pape, San Marcos, for Appel-lee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

The State appeals orders sustaining ap-pellee Alex Garcia Guzman’s plea of former jeopardy and dismissing the indictment in this cause. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(1), (4) (West Supp. 2005). The question presented is whether Guzman’s previous conviction for driving while intoxicated (DWI) is a double jeopardy bar to the instant prosecution for endangering a child. We hold that it is not and reverse the district court’s orders.

The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). That guarantee protects against a second prosecution for the same offense after a conviction or an acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Whether offenses defined in two distinct statutory provisions are the same for double jeopardy purposes is determined by a “same elements” test: the two offenses are the same if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Duvall v. State, 59 S.W.3d 773, 777 (Tex.App.-Austin 2001, pet. ref'd). When applying the “same elements” test in the successive prosecutions context, we compare the elements of the offenses as alleged in the charging instruments. State v. Perez, 947 S.W.2d 268, 270 (Tex.Crim.App.1997); Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994). If, as alleged, one offense is included within the other, the two offenses are the same for double jeopardy purposes. Parrish, 869 S.W.2d at 354-55.

The indictment in this cause alleges that on or about July 13, 2003, Guzman:

intentionally, knowingly, recklessly and with criminal negligence engage[d] in conduct that placed ALBIN GUZMAN, a child younger than 15 years, in imminent danger of death, bodily injury or physical or mental impairment, to wit: the said ALEX GARCIA GUZMAN did then and there drive and operate a motor vehicle while intoxicated, namely: the said ALEX GARCIA GUZMAN did then and there have an alcohol concentration of 0.08 or higher and the said ALEX GARCIA GUZMAN did not have the normal use of his physical or mental faculties by reason of the introduction of alcohol into his body, and the said ALEX GARCIA GUZMAN did then and there drive and operate said motor vehicle while intoxicated while the aforesaid ALBIN GUZMAN was then and there a passenger in said vehicle.

See Tex. Pen.Code Ann. § 22.041(c) (West Supp.2005). Guzman filed a special plea of former jeopardy urging that prosecution on this indictment is barred by his misdemeanor DWI conviction in Hays County cause number 71,070. See Tex.Code Crim. Proc. Ann. art. 27.05 (West 1989). Attached to the special plea were certified copies of the complaint, information, and judgment of conviction in that cause. These documents reflect that Guzman was convicted by the county court at law following his plea of no contest to an information alleging that, on or about July 13, 2003, he:

while operating a motor vehicle in a public place was then and there intoxicated in that the said Alex Garcia Guzman did not have the normal use of his or her mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of these substances into his or her body, or by reason of having an alcohol concentration of 0.08 or more.

See Tex. Pen.Code Ann. § 49.04 (West 2003). It was undisputed that the DWI for which Guzman was convicted and the child endangerment of which he now stands accused arise out of the same transaction. The court sustained the special plea after considering the arguments of both parties.

The trial court expressly relied on two opinions cited by Guzman at the hearing: May v. State, 726 S.W.2d 573 (Tex.Crim.App.1987), and Ex parte Peterson, 738 S.W.2d 688 (Tex.Crim.App.1987). In May, the court of criminal appeals held that the defendant’s DWI prosecution was barred by his previous conviction for involuntary manslaughter arising out of the same automobile accident. 726 S.W.2d at 577. In Peterson, the court held that the defendant’s. prosecution for involuntary manslaughter was barred by his previous DWI conviction. 738 S.W.2d at 691. In both opinions, the court went beyond the Block-burger “same elements” test and applied an additional “same conduct” test. May, 726 S.W.2d at 576; Peterson, 738 S.W.2d at 691; see Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (subsequent prosecution barred if government, to prove essential element of offense, will prove conduct constituting offense for which defendant has already been prosecuted). The “same conduct” test has been repudiated by the Supreme Court. United States v. Dixon, 509 U.S. 688, 704-08, 712, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Grady v. Corbin and reaffirming that “same elements” is only test for determining whether two different statutory offenses are the same for double jeopardy purposes). Whether May and Peterson retain any vitality is an open question, but it is clear that the “same conduct” analysis used in those opinions does not. Id.; see Ortega v. State, 171 S.W.3d 895, 898-99 (Tex.Crim.App.2005) (holding that court of appeals erred by employing “same conduct” analysis); Ervin v. State, 991 S.W.2d 804, 806 & n. 3 (Tex.Crim.App.1999) (noting that Peterson used “same conduct” analysis repudiated in Dixon).

The child endangerment indictment in this cause requires the State to prove that Guzman intentionally, knowingly, recklessly, or with criminal negligence placed a child under fifteen in imminent danger of death, bodily injury, or physical or mental impairment. Such proof was not required in the DWl prosecution. To convict Guzman of DWI, the State was required to prove that Guzman operated a motor vehicle in a public place. Such proof is not required by the instant indictment. As alleged, both offenses have a unique element, and the DWI offense is not included within the proof required to establish the child endangerment offense. Applying the Blockburger/Parrish “same elements” test, we conclude that the two offenses are not the same and that Guzman’s conviction for DWI in cause number 71,070 does not constitute a double jeopardy bar to his prosecution in this cause for endangering a child.

The orders sustaining Guzman’s special plea of former jeopardy and dismissing the indictment are reversed, and the cause is remanded to the district court.

      . In his special plea and arguments to the trial court, Guzman relied solely on the Fifth Amendment and opinions applying it. Guzman did not file a brief in this Court.

      . The alleged offense was committed before the effective date of penal code section 49.045, proscribing driving while intoxicated with a child passenger. Tex. Pen.Code Ann. § 49.045 (West Supp.2005). Whether Guzman's DWI conviction would constitute a double jeopardy bar to a subsequent prosecution under this statute is not an issue in this cause.

      . The records from cause number 71,070 were not formally introduced in evidence at the hearing on the special plea. They were, however, discussed by counsel and considered by the court. The State did not object to the format of the hearing. See Hill v. State, 90 S.W.3d 308, 312 (Tex.Crim.App.2002); State v. Torres, 805 S.W.2d 418, 421 (Tex.Crim.App.1991).

      . The involuntary manslaughter offense at issue in May and Peterson is now defined as intoxication manslaughter. See Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, sec. 19.05(a)(2), 1973 Tex. Gen. Laws 1122, 1124 (amended and renumbered 1993) (current version at Tex. Pen.Code Ann. § 49.08 (West 2003)).