author: SANDEE BRYAN MARION, Justice. PER CURIAM.

text:
    DYNAMIC PUBLISHING & DISTRIBUTING L.L.C. and Axiom Entertainment, Inc., Appellants, v. UNITEC INDUSTRIAL CENTER PROPERTY OWNERS ASSOCIATION, INC., and Royal Joint Venture, Appellees.
    No. 04-04-00132-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 16, 2005.
    Order Substituting Judgment May 18, 2005.

      Ellen B. Mitchell, Cox Smith Matthews Incorporated, San Antonio, for appellants.
    Edward F. Maddox, Person, Whitworth, Borchers & Morales, L.L.P., Laredo, Charles H. Sierra, William M. McKamie, Law Offices of William M. McKamie, P.C., San Antonio, for appellees.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from a summary judgment in favor of appellees, Unitec Industrial Center Property Owners Association, Inc. and Royal Joint Venture. In the underlying lawsuit, appellees sued appellants, Dynamic Publishing & Distributing LLC and Axiom Entertainment, Inc., for enforcement of a restrictive covenant. We affirm.

BACKGROUND

Royal Joint Venture is the developer of and one of the property owners in the Unitec Industrial Center. Unitec Industrial Center Property Owners Association, Inc. (“Unitec”) is a non-profit corporation formed to serve the industrial center property owners. Dynamic Publishing & Distributing LLC (“Dynamic”) is also a property owner, and Axiom Entertainment, Inc. is its tenant (Dynamic and Axiom will be referred to collectively as “Dynamic”). Axiom operates an adult entertainment business in the industrial center.

At the time Royal developed the industrial center, the center lay outside the Laredo City limits. Royal and the City entered into a Water Supply and Controlled Development Contract whereby the City agreed to supply water to the center and Royal agreed the center would be used only for “industrial purposes” as that term is defined in Laredo City Ordinance No. 87-0-163 and any future amendments to the ordinance. The contract required Royal to include restrictive covenants in deeds conveying property within the industrial center. The center’s Covenants, Conditions, and Restrictions were recorded in the Webb County real property records. The covenants are intended to run with the land and for the benefit of the property and all property owners, and the covenants are enforceable by the developer or any property owner.

The introduction to the covenants contains a declaration stating it is “in the best interest of said owner [Royal], and all of the persons, corporations or other entities who might purchase part of the property in the future, that there.be established and maintained a uniform plan for the improvement and development of the land covered hereby as a restricted subdivision[.]” Included in the covenants is a “use restriction,” which states as follows:

(a) Industrial Purposes: No lot of the subject subdivision shall be used except for “industrial purposes” as hereinafter defined.
The subject land is subject to the terms and conditions of Ordinance No. 87-0-163, dated December 8, 1987. In the event of conflict between any provision of the aforesaid Water Supply and Controlled Development Contract and said Ordinance, then said Ordinance shall control. Provided that in the event that “industrial purposes” under said Ordinance No. 87-0-163 is enlarged by subsequent amendment, then in such event the enlarged meaning shall control. “Industrial purposes” as used herein shall have the same meaning as “industrial purposes” in Ordinance No. 87-0-163.

Ordinance No. 87-0-163 provides that the City will not provide water service to or for future developments outside its limits “save and except in the case of any development for industrial purposes.... ” The current version of the ordinance defines “industrial purposes” as follows:

[A]ny and all use or uses of land, first allowed in those Districts which are Ml, and M2, under the Zoning Ordinance of the City of Laredo, and for clarification, those uses which are so allowed within the meaning of the phrase “industrial purposes” are specified herein:
[twenty-five specific uses are listed]

The City annexed the industrial center in 1997 and 1998, and it was zoned M2. Dynamic obtained a special use permit from the City allowing it to operate an adult entertainment business on its Unitec premises.

Unitec and Royal sued Dynamic and the City seeking (1) a declaration of whether and to what extent (a) Dynamic’s use of the property violated the deed restrictions, (b) the restrictions contained in the Water Supply and. Controlled Development Contract remained in force following annexation, and (c) the Water Supply and Controlled Development Contract limits Dynamic’s use of the property to industrial purposes; and (2) a permanent injunction enjoining Dynamic from operating an adult bookstore; exhibiting, promoting or permitting live nude dancing; serving and permitting the consumption .of alcoholic beverages; and any other use prohibited by the restrictions. Unitec and Royal filed a motion for summary judgment, in which they requested that the trial court (1) declare Dynamic’s operation of an adult bookstore prohibited by the restrictive covenants, (2) permanently enjoin Dynamic from operating an adult bookstore featuring live nude dancing within the industrial center for the duration of the restrictive covenants, and (3) grant them attorney’s fees. The trial court denied the motion.

Unitec and Royal then filed a second motion for summary judgment, in which they asked the court to reconsider its denial of their first motion for partial summary judgment. The trial court vacated its first order and rendered judgment that (1) the covenants survived annexation and limited the use of the industrial center property to “industrial purposes” only as set forth in Ordinance 87-0-163 (and its amended form Ordinance 93-0-126), and (2) a sexually oriented business and a business selling, distributing, and displaying adult books, magazines, and movies or featuring live nude dancing is not permitted on the center’s property. The trial court issued the permanent injunction requested by Unitec and Royal and awarded Unitec and Royal $30,000 in attorney’s fees.

Dynamic now appeals. Dynamic states the primary issue as follows: because the restrictive covenant adopts the ordinance’s definition of “industrial proposes,” did Uni-tec and Royal establish, as a matter of law, that the operation of an adult bookstore is not an “industrial purpose”? Dynamic also challenges the trial court’s award of attorney’s fees to Unitec and Royal.

STANDARD OF REVIEW

We review the trial court’s granting or denial of a motion for summary judgment under the appropriate standard of review. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The propriety of summary judgment is a question of law; therefore, we review the trial court’s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

Restrictive covenants are subject to the same rules of construction and interpretation as contracts. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). For a court to be able to construe a contract as a matter of law, the contract must be unambiguous. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). Although the parties assert contrary interpretations, mere disagreement over the interpretation of a provision does not make it ambiguous. Hodas v. Scenic Oaks Prop. Ass’n, 21 S.W.3d 524, 528 (Tex.App.-San Antonio 2000, pet. denied). Whether an instrument is ambiguous is a question of law that must be decided by reviewing the covenant as a whole in light of the circumstances present when the covenant was entered. Pilarcik, 966 S.W.2d at 478. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). On the other hand, if the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, which creates a fact issue on the parties’ intent. See Columbia Gas, 940 S.W.2d at 589. Accordingly, if the restrictive covenant here is ambiguous, the trial court erred in granting the summary judgment because the interpretation of ambiguous contracts is a question of fact for a jury. Coker, 650 S.W.2d at 394.

The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. See National Union, 907 S.W.2d at 520. In determining this intent, the court must liberally construe the covenant’s language to give effect to its purposes and intent. Tex. Prop. Code Ann. § 202.003(a) (Vernon 1995). Instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the instruments were executed at different times and do not expressly refer to each other, and a court may determine as a matter of law that multiple documents comprise a single written contract and construe them accordingly. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.2000).

INDUSTRIAL PURPOSES

In its first issue, Dynamic asserts Royal and Unitec did not establish as a matter of law that its use of the property was not an “industrial purpose.”

Unitec and Royal assert that “industrial purposes” has only one meaning and that meaning is clarified by the purposes listed in the ordinance. Dynamic, on the other hand, asserts the definition of “industrial purposes” encompasses two categories: (1) “any and all use or uses of land, first allowed in those Districts which are Ml, and M2, under the Zoning Ordinance of the City of Laredo” and (2) those purposes specifically listed in the ordinance. Dynamic relies on the statutory-construction principle of ejusdem generis to argue that a reasonable interpretation of the restrictive covenant is that “industrial purposes” encompasses all uses of land permitted under Ml and M2 zoning. In other words, Dynamic argues that the purposes are listed in the ordinance merely as examples of the possible permitted uses and are provided to give guidance and to prevent confusion. Alternatively, Dynamic argues that the phrase “first allowed” encompasses those uses that were permitted under Ml and M2 when those zoning districts were first created. Under either interpretation, Dynamic contends the word “allowed” includes uses that require a special permit, as well as those that do not. Dynamic concludes that its use is “allowed” and whether it is “first allowed” depends on the uses permitted when the Ml and M2 districts were created.

The principle of ejusdem gen-eris applies only when a contract is ambiguous. Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 325 (Tex.App.Houston [1st Dist.] 1995, no writ) see also Dimotsis v. State Farm Lloyds, 5 S.W.3d 808, 811-12 (Tex.App.-San Antonio 1999, no pet.) (Rickhoff, J., concurring). It does not apply when the parties’ intent is apparent. Hussong, 896 S.W.2d at 325. We conclude that the term “industrial purpose” as defined in the City of Laredo’s ordinance is not ambiguous; therefore, we need not apply ejusdem generis to this case. See id.

Unitec’s restrictive covenant adopts its use of the term “industrial purpose” from the City of Laredo’s ordinance and any amendments to the ordinance that enlarged the meaning of the term. The ordinance refers to the Zoning Ordinance of the City of Laredo contained in the Laredo Land Development Code. The Code states that the purpose of the Ml and M2 zoning districts is as follows:

The purpose of the M-l Light Manufacturing District is to encourage the development of manufacturing and wholesale business establishments which are clean, quiet, and free of hazardous or objectionable elements such as noise, odor, dust, smoke or glare. Research activities are encouraged. This district is further designed to act as a transitional use between heavy industrial uses and other less intense and residential uses.
The purpose of the M-2 Heavy Manufacturing District is to provide areas for manufacturing, processing, assembling, storing, testing and industrial uses which are extensive in character, and require large sites, open storage and service areas, extensive services and facilities, ready access to regional transportation; and which may be incompatible with less intensive uses by reason of traffic, noise, vibration, dust, glare, or emissions.

The Code also provides that any property owner who desires to establish a use on land that is not specifically zoned for that use may apply for a special use permit. Special use permits are authorized for sexually oriented businesses. An adult bookstore may be operated on land zoned as Ml or M2 if a special permit is first obtained.

The purposes listed in the ordinance “for clarification” are consistent with the purpose of the Ml and M2 districts. They include: (1) storage facilities; (2) wholesale facilities; (3) cold storage plants, brewery, dairy processing, ice plants; (4) freight and truck terminals and railroad yards; (5) contractors yards for prefabrication and storage of construction equipment and materials; (6) administrative, engineering and scientific research; (7) manufacturing, compounding, processing, packaging or treatment of such items as food products, cosmetics, and pharmaceutical products; (8) manufacturing or processing of small items, including gloves, footwear and textile products; (9) assembling of items such as appliances, radios, and light metal products; (10) custom house brokers and freight forwarders; (11) parking lots for storage of trailers and semi-trailers; (12) essential services, and public service, facilities; (13) detention facilities; (14) acid, asbestos, automobile, truck, and heavy equipment assembly; (15) bleaching, cleaning and dye plants, boiler shops, metal working shops; (16) dextrine, starch, glucose, poison and insecticide manufacturing, grain mills, and stock yards; (17) heat packing, stock yards or slaughter house; (18) poultry processing; (19) sandblasting and cutting; and (20) junk and used appliance yard. Subsequent amendments to the ordinance added specific additional purposes.

Each time the ordinance was amended, the amended ordinance began with an opening paragraph indicating the addition of a new industrial purpose. The first amendment to ordinance 87-0-163 stated: “Amending Ordinance 87-0-163 ... to add to the definitions of ‘industrial uses’ in section 3 thereof that of communications antennae, and providing for incidental uses of vehicle maintenance and/or truck stop facilities.... ” The next amendment stated: “Amending Ordinance 87-0-163 ..., as amended by Ordinance 90-0-11 ... to provide that retail and/or wholesale business may be permitted in conjunction with an industrial use as defined in section 3(1) of said ordinance....” The next amendment stated: “Amending Ordinance 87-0-163 ..., as amended by Ordinances 90-0-11 & 90-0-239, to add to the list of industrial purposes in section 3, item (24) petroleum products terminal business.... ” And, the most recent amendment stated: “Amending Ordinance 87-0-163 ..., as amended by Ordinances 90-0-11, 90-0-239, and 91-0-172, to add to the list of ‘industrial purposes’ in section 3, item (25); glass or plastic related products.... ” Each amendment also stated the reason for the amendment in language substantially similar to the following:

Whereas on December 8, 1987, the City Council enacted an ordinance providing that there shall be no water service outside the city limits, except for properties which are developed for industrial uses as defined in said ordinance .... [and] the City Council has been requested to add to the list of “industrial uses” as defined in said ordinance [the additional purpose] [and] the City Council finds that such additional definition of industrial use and that such incidental uses will advance the purpose and intent of said ordinance which was designed to facilitate the development of land for industrial uses.

When ordinance 87-0-163 and each amending ordinance are read in their entirety, it is clear that the purposes listed in the ordinance are more than mere examples. Instead, the listed purposes are meant to define the use of the term “industrial purpose” in the ordinance and to limit the use of any development to only those enumerated purposes.

The restrictive covenant limits its definition of the term “industrial purposes” to that term as defined in the ordinance or any future amendment. This result satisfies the purpose of the covenants, which is to maintain a “uniform plan for the improvement and development of the land....”

For these reasons, we conclude the trial court did not err in granting summary judgment in Royal and Unitec’s favor limiting the use of the industrial center property to only those “industrial purposes” set forth in Ordinance 87-0-163 and its amendments. Therefore, we do not reach Dynamic’s fifth or sixth issues, and instead, we next determine whether the trial court granted more relief than was requested in the motion for summary judgment.

REQUESTED RELIEF

In its second issue, Dynamic asserts the trial court’s judgment purports to determine whether and to what extent the covenants remained in force following annexation by the City, even though such relief was not requested in Royal and Uni-tec’s motion for summary judgment.

“A judgment that grants more relief than a party is entitled to is subject to reversal.... ” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). In Royal and Unitec’s first motion for summary judgment, they included the following statement:

The framers of the Contract and the Unitec Restrictive Covenants contemplated annexation when drafting, and they made no provision for automatic termination or modification of the restrictive covenants within Unitec upon annexation. On the contrary, Paragraph 13 of the Contract expressly provides, “in the event of annexation of any part of the subject property, Royal, may from time to time, elect to withdraw any unplatted or annexed portion or portions of said tract, from the terms of this contract.” ... All of Unitec has been annexed.... As such, the Contract continues to be in force and continues to require the restrictive covenants. The framers unambiguously intended to preserve the land use restrictions after annexation to ensure compatible land use and protect landowners.
Additionally the conduct of Royal, an original party to the contract, has clearly demonstrated that the terms of the Unitec Restrictive Covenants are intended to continue in force after annexation. ...

(Emphasis in original.) In their prayer for relief, Royal and Unitec asked for “declaratory relief that [Dynamic’s] operation of an adult bookstore is prohibited by the Unitec Restrictive Covenants applicable to any property located within the Unitec Industrial- Center.” Royal and Unitec also asked that Dynamic be permanently enjoined from operating an adult bookstore featuring live nude dancing within the center “for the duration of the Unitec Restrictive Covenants.... ” Royal and Unitec’s second motion for summary judgment reurged and incorporated by reference its grounds, arguments, authority, and evidence from the first motion and requested the relief stated in the first motion for summary judgment.

We conclude Royal and Unitec’s motions for summary judgment asked the court to determine whether and to what extent the covenants remained in force following annexation by the City; therefore, the trial court did not err in reaching that issue.

AFFIRMATIVE DEFENSES

In its third issue, Dynamic asserts the covenant cannot be enforced against it because the covenant lacks mutuality of obligation. In its fourth issue, Dynamic asserts the restrictive covenant is unenforceable because a change in condition has defeated its purpose.

Lack of mutuality and change in conditions are affirmative defenses that must be specifically pled and proved to be available as a defense. See Tex.R. Crv. P. 94; Copeland Well Serv., Inc. v. Shell Oil Co., 528 S.W.2d 317, 321 (Tex.Civ.App.-Tyler, 1975, writ dism’d) (lack of mutuality); Homsey v. University Gardens Racquet Club, 730 S.W.2d 763, 765 (Tex.App.-El Paso 1987, writ ref'd n.r.e.) (change in conditions). Here, Dynamic did not plead lack of mutuality and change in conditions as affirmative defenses in its answer, nor did it raise these defenses in response to Royal and Unitec’s motion for summary judgment. Therefore, Dynamic may not rely, for the first time on appeal, on these affirmative defenses to defeat Royal and Unitec’s entitlement to summary judgment. Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or response shall not be considered on appeal as grounds for reversal.”).

CONCLUSION

We affirm the trial court’s judgment.

MEMORANDUM OPINION

PER CURIAM.

In an opinion and judgment dated February 16, 2005, we affirmed the trial court’s judgment in favor of appellees. On March 3, 2005, appellants filed (1) a Motion for Judicial Notice and (2) a Motion for Rehearing. On April 26, 2005, the parties filed an Agreed Motion to Reverse and Remand, stating that the parties have fully resolved and settled all issues in dispute. The parties request that the trial court’s judgment be reversed, the cause be remanded for the entry of an agreed order dismissing all claims with prejudice in accordance with the parties’ settlement agreement, that this court’s opinion of February 16, 2005 be withdrawn, and that this court issue mandate as soon as possible.

The Motion for Judicial Notice and the Motion for Rehearing are denied as moot. The Agreed Motion to Reverse and Remand is granted in part. The judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment in conformity with the settlement agreement. Tex.R.App. P. 42.1(a)(2). We grant the parties’ request to withdraw our judgment of February 16, 2005, and we substitute this judgment in its place. However, we deny the parties’ request that our opinion of February 16, 2005 be withdrawn. See Tex.R. app. P. 42.1(c). The Clerk of this court is ordered to issue mandate contemporaneously with this opinion and judgment.

      . For example, among the listed purposes are bulk storage of building materials; wholesale facilities serving retail laundry or dry cleaning establishments; and parking lots for the storage of trailers and semi-trailers.

      . "[W]hen words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation.” Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex.2003).

      . In its fifth issue, Dynamic asserts Unitec and Royal did not establish their entitlement to injunctive relief because they did not establish that Dynamic's use of the property was a "wrongful act.”

      . In its sixth issue, Dynamic asserts Royal and Unitec are not entitled to attorney's fees if we determine they did not prevail at trial.

      . The only affirmative defenses raised by Dynamic in its answer were waiver, laches, and estoppel. However, Dynamic did not raise these defenses in response to the motion for summary judgment, nor does Dynamic raise these defenses on appeal.


source: Caselaw Access Project

author: JOHN S. ANDERSON, Justice.

license: Public Domain

text:
    Widener Michael WEEMS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01067-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 3, 2005.
    Rehearing Overruled July 14, 2005.

      Perry R. Stevens, Angleton, for appellant.
    Keith G. Allen, Angleton, for appellee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Following the trial court’s denial of his motion to suppress, appellant Widener Michael Weems was convicted by a jury of murder and assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division. He appeals his conviction on a single issue. He contends the trial court erred by denying his motion to suppress and admitting his written and videotaped statements and any evidence discovered through those statements because the State failed to prove the police had probable cause to arrest him, and thus, his in-custody statements were the fruit of an unlawful arrest. We affirm.

I. Factual and PkocbduRal Backgkound

In January 2004, H.P. Weems reported his father, Holmes Weems, missing. Shortly thereafter, investigators discovered Holmes Weems’ vandalized and abandoned vehicle in a field. H.P. Weems gave investigators information that if anything bad had happened to his father, it would be at the hands of the Weems brothers, specifically appellant. Thereafter, investigators questioned appellant’s wife, Emily Weems. Mrs. Weems told investigators appellant and his brother were responsible for murdering her father. After receiving her statement, an investigator allegedly drew up a probable cause affidavit and obtained a warrant for appellant’s arrest. Thereafter, appellant was arrested and brought to the Brazoria County Sheriffs Department. That night, after he received and waived his Miranda rights, appellant made a written confession and directed officers to the location of Holmes Weems’ body. The next morning, appellant accompanied officers to the exact location of the body, and, upon his return to the Sheriffs office, gave a videotaped statement about his involvement in the murder.

Before trial on the instant case, appellant filed a motion to suppress the written and videotaped statements he made following his arrest. The trial court conducted a pre-trial hearing on appellant’s motion, made findings of fact and conclusions of law, and denied the request. In his sole appellate issue, appellant contends the trial court erred by denying his motion to suppress his incriminating statements because, he claims, the State failed to prove the police had probable cause to arrest him, and thus, his in-custody statements were the fruit of an unlawful arrest.

II. Motion to SuppRess

A. Standard of Review

We review the trial court’s ruling on a motion to suppress evidence under an abuse-of-discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). If supported by the record, a trial court’s ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex.Crim.App.1993); Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 589, 543 (Tex.Crim.App.1990). We give almost total deference to the trial court’s determination of historical facts that the record supports, especially when the trial court’s findings turn on evaluating a witness’s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give the same amount of deference to the trial court’s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Ross, 32 S.W.3d at 856.

We consider de novo issues that are purely questions of law, such as whether probable cause existed. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002); Guzman, 955 S.W.2d at 89. Furthermore, if the trial court’s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal, 935 S.W.2d at 138. This is true even if the decision is correct for reasons different from those espoused at the hearing. Id. at 138-39.

B. Preservation of Error

The State argues that appellant’s grounds on appeal do not comport with his objection at trial, and further, that his objection was not specific enough to raise the issue of probable cause. We disagree. Pursuant to Rule 33.1, appellate review is waived unless the record shows appellant timely complained to the trial court stating the grounds for the ruling sought with sufficient specificity, unless the grounds were apparent from the context, and obtained a ruling on the complaint. Tex. R.App. P. 33.1; see Daniels v. State, 25 S.W.3d 893, 897 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Appellant’s written motion to suppress states “the arrest was illegal, in that officers had no lawful warrant for the Defendant’s arrest, nor had authority to arrest without a warrant, when the Defendant was taken into custody.” Defense counsel objected numerous times during the course of the suppression hearing, arguing appellant was not lawfully under arrest, not lawfully in custody, was illegally detained and arrested, and the arrest was warrantless with no authority to arrest without a warrant. These objections were sufficiently specific under Rule 33.1. Therefore, appellant did not waive the issue and we may review it on appeal.

C. Warrants and Probable Cause to Arrest

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in them persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV. The affidavit supporting an arrest warrant is called a complaint. Tex.Code CRIm. PROC. Ann. art. 15.04 (Vernon 1977). A complaint in support of an arrest warrant must: (1) state the name of the accused, if known, and if not known, must give some reasonably definite description of him; (2) show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense; (3) state the time and place of the commission of the offense, as definitely as can be done by the affiant; and (4) be signed by the affiant. Tex.Cobe CRiM. PROG. Ann. art. 15.05 (Vernon 1977).

Affidavits filed for issuance of arrest warrants must provide the magistrate with sufficient information to support an independent judgment that probable cause exists for the warrant. McFarland v. State, 928 S.W.2d 482, 509 (Tex.Crim.App.1996). In determining the sufficiency of an affidavit supporting an arrest warrant, a reviewing court is limited to the “four corners” of the affidavit. Id. at 510. If the State intends to justify an arrest on the basis of a warrant, it is incumbent on the State to produce the warrant and its supporting affidavit for inspection by the trial court. Etheridge v. State, 903 S.W.2d 1, 19 (Tex.Crim.App.1994). “This requirement is imposed so that the trial court may inspect the documents and determine whether probable cause existed and ensure that the arrestee’s rights have been fully protected.” Id. (quoting Garrett v. State, 791 S.W.2d 137, 140 (Tex.Crim.App.1990)).

D. Failure to Produce the Warrant

If a warrant was required to make a valid arrest, the State’s failure to produce the warrant at the suppression hearing does not mandate suppression of the written statement. Dorsey v. State, 964 S.W.2d 701, 703 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). In some instances, the State is excused from producing both the warrant and probable cause affidavit at the suppression hearing if the State introduces sufficient evidence or testimony to permit the trial court to determine the existence of probable cause to effect the arrest. In Garrett v. State, even though no supporting affidavit or other documentation was introduced demonstrating a reasonable belief that appellant violated a condition of parole, the warrant was nevertheless valid. 791 S.W.2d at 141. The warrant was valid because during the suppression hearing, a parole case worker testified regarding appellant’s failure to comply with a parole condition, providing the trial court and defense counsel the opportunity to determine whether the warrant was supported by a reasonable belief. Id.

In Etheridge v. State, a formal complaint in affidavit form was filed with a justice of the peace. 903 S.W.2d at 18. In the complaint, the surviving victim of the offense named the defendant as the attacker of her and the deceased, and identified defendant’s photograph. Id. The justice determined probable cause existed for defendant’s arrest, and issued an arrest warrant for defendant. Id. The complaint made it into the record, but the arrest warrant did not. Id. The magistrate testified at the suppression hearing that he did, in fact, issue an arrest warrant based upon the affidavit, which he concluded established probable cause for the defendant’s arrest. Id. at 19. The defendant had the opportunity to cross-examine the magistrate as to the validity of the arrest warrant, but instead chose to inquire about other matters. Id. No testimony contradicted the existence of the arrest warrant. Id. The Etheridge court held that although the State did not produce the actual arrest warrant, the trial court had an adequate opportunity to determine whether probable cause existed for defendant’s arrest. Id.

In Myles v. State, neither the warrants nor the supporting affidavits were produced at the suppression hearing. 946 S.W.2d 630, 635 (Tex.App.-Houston [14th Dist.] 1997, no pet.). In lieu of the originals, the State produced reconstructed documents on standardized forms. Id. The magistrate testified she issued three arrest warrants on the basis of probable cause affidavits filed by a DPS trooper who had ticketed appellant for three traffic offenses. Id. The officer who issued the original traffic tickets testified that he recalled completing and filing probable cause affidavits with the magistrate because of appellant’s unusual middle name. Id. at 635-36. This court held the State met its burden to prove the existence and validity of the arrest warrants. Id. at 636.

In Torres v. State, the defendant complained on appeal the trial court erred in denying his motion to suppress evidence seized in connection with his arrest because the State failed to present either the warrant or the probable cause affidavit at the suppression hearing. 933 S.W.2d 339, 339 (Tex.App.-Houston [14th Dist.] 1996, no pet.). Instead, the State offered testimony and presented the motion to adjudicate upon which the arrest was based. Id. at 340. The witnesses who testified as to the existence of, and basis for, the arrest warrant included the arresting officers who testified they verified the existence of a felony warrant prior to the appellant’s arrest, the custodian of records at the Sheriff Department’s warrant division, the district court clerk regarding the motion to adjudicate and capias issued prior to the appellant’s arrest, and the court liaison for the probation office who filed the motion to adjudicate. See id. This court held the trial court was given the opportunity to determine whether the capias was supported by probable cause and the appellant’s rights were protected. Id. at 341.

The common thread woven through all of these cases is compliance with the rule in Miller: when the State seeks to justify an arrest on the basis of an arrest warrant issued by a magistrate, the warrant and affidavit must be produced. Miller v. State, 736 S.W.2d 643, 648 (Tex.Crim.App.1987). This requirement is imposed so that the trial court may inspect the documents and determine whether probable cause existed and ensure that the arres-tee’s rights have been fully protected. Garrett, 791 S.W.2d at 140. When the State fails to introduce the warrant and supporting affidavit, there nevertheless must be sufficient evidence introduced at the suppression hearing to provide the trial court with an adequate opportunity to determine whether probable cause existed for the accused’s arrest. We have seen in Garrett, Etheridge, Myles, and Toms that this may be accomplished in a variety of ways.

Here, however, absolutely no evidence was produced at the suppression hearing which would permit the trial court to determine the existence of probable cause to arrest Weems. The meager evidence consisted almost entirely of hearsay and double hearsay that a warrant and affidavit even existed, without any testimony as to the contents of the probable cause affidavit.

In this case, the State did not present an arrest warrant or affidavit stating probable cause to the trial court. Instead, the State presented testimony of three investigators from the Brazoria County Sheriffs Department. Investigator Buck Henson testified that H.P. Weems, II, the victim’s son, reported his father missing. H.P. believed that if anything bad happened to his father, it would be at the hands of the Weems brothers, specifically, the appellant. Thereafter, Henson questioned Emily Weems, wife of appellant and daughter of the victim. Mrs. Weems told investigators appellant and his brother were responsible for murdering her father. According to Henson, after receiving Mrs. Weems’s statement and finding the victim’s abandoned vehicle, Investigator Kin-chloe wrote the probable cause affidavit for the arrest on either kidnaping or aggravated assault. Henson was not aware of the magistrate’s name or exact time the warrant was issued, but said it was issued before appellant’s arrest. Detective Richard Foreman, like Henson, testified Kin-chloe wrote the probable cause affidavit but he did not know who signed the warrant. He testified further that Kinchloe told him he had “good warrants.” Appellant testified the police arrested him for aggravated kidnaping and never showed him a warrant.

Following the suppression hearing, the trial judge made written findings of fact and conclusions of law. The trial judge’s conclusions of law provide that an arrest warrant based on probable cause was issued for the arrest of appellant for the offense of murder. The trial judge’s findings of fact include in relevant part:

1. Investigator Henson spoke with several people during the course of his investigation, including family members of the deceased.
2. Based on Henson’s interviews, the investigation was narrowed to three individuals. The three individuals were Emily Weems, appellant, and appellant’s brother.
3. Investigators spoke with Emily Weems at the Brazoria County Sheriffs Office. Emily Weems told the investigators appellant and his brother were responsible for the murder.
4.Based on the information received from Emily Weems, Investigators Henson and Kincheloe requested and obtained a warrant for appellant’s arrest. Thereafter, appellant was arrested.

A valid arrest warrant must be accompanied by an affidavit with enough factual information to support probable cause, and reflect the approval of a detached and neutral magistrate. In • this case, the record contains no warrant, no affidavit, no evidence of the factual information within the affidavit, and no evidence a warrant was actually issued by a detached and neutral magistrate. The State failed to call the investigator who allegedly wrote the affidavit or the magistrate who allegedly issued the warrant. Instead, the state called two officers. Both officers testified to the existence of a warrant and a supporting affidavit written by another officer. However, neither officer had ever seen the warrant or the affidavit, and neither officer knew who had allegedly issued the warrant. We hold the record does not support the trial court’s conclusion there was a valid arrest warrant based on probable cause. The trial court’s finding a warrant existed was error. Therefore, appellant was illegally under arrest when he made the written and videotaped statements. The question remains whether the resulting taint infecting the evidence in question was attenuated, thereby making the evidence admissible notwithstanding the illegal arrest. See Jones v. State, 833 S.W.2d 118, 124 (Tex. Crim.App.1992) (citing Wong Sun v. United States, 871 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1968)).

E. Attenuation Doctrine

The attenuation doctrine provides that evidence may be admitted at trial if the connection between the initial illegality and the means through which the evidence was secured is so attenuated as to dissipate the taint. See Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). In determining whether the taint infecting the evidence obtained after an illegal arrest is sufficiently attenuated to permit the use of the evidence at trial, the United States Supreme Court has identified the following factors to be considered:

(1) whether Miranda warnings were given;
(2) the temporal proximity of the arrest and the confession;
(3) the presence of intervening circumstances; and
(4) the purpose and flagrance of the official misconduct.

Self v. State, 709 S.W.2d 662, 666 (Tex.Crim.App.1986) (citing Brown v. Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). This four-part test assures “that the State cannot violate the Fourth Amendment with impunity by washing its hands in the procedural waters of the Fifth Amendment.” Bell v. State, 724 S.W.2d 780, 787 (Tex.Crim.App.1986).

Appellant gave two confessions while he was illegally detained. Therefore, we will examine each confession separately to determine whether the taint on the evidence was sufficiently attenuated.

1. First Statement

Miranda Warnings

Repeated warnings alone are not enough to purge the taint of an otherwise illegal arrest. Bell, 12A S.W.2d at 788. With respect to the written statement, the trial court’s findings of fact and the record reflect that appellant received the Miranda warnings at least three times prior to making his written statement. Appellant was advised of his Miranda rights when he was taken into custody at his home in Bay City, Texas. Appellant was told of his rights a second time after being transported from the Brazoria County Jail to the Brazoria County Sheriffs Office in Angleton, Texas. Appellant was again read his Miranda rights a third time in the confession room. Appellant waived his rights and gave the confession. After the confession was written, appellant was read the Miranda warnings from the form another time. After appellant read his confession, he wrote his initials in the space provided, signifying he understood his rights, and signed the confession. This factor clearly favors of the State.

Temporal Proximity

Temporal proximity of the arrest and the confession has been described as an “ambiguous” factor and one that is “generally not a strong determining factor per se.” Self, 709 S.W.2d at 666; cf. Dunaway v. New York, 442 U.S. 200, 221, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (Stevens, J., concurring) (stating that even an immediate post-arrest confession may have been motivated by a pre-arrest event). Nevertheless, when the time between the arrest and confession is short and there are no significant intervening circumstances, a court may infer lack of time for reflection. Bell, 724 S.W.2d at 788-89 (finding appellant’s first confession inad-missable when made within one-and-a-half to three hours of his illegal arrest and without significant intervening circumstances). In this case, appellant was arrested at his home by Investigator Kin-chloe sometime between 9:30 p.m. and 10:00 p.m. on January 15, 2003, and brought to the Brazoria County Jail. Investigators Henson and Foreman picked appellant up at the jail and brought him to the Brazoria County Sheriffs Department. The investigators interviewed appellant for approximately fifteen to twenty minutes before taking him into an office to take his statement. Appellant began making his written statement at 11:55 p.m. and finished it at 12:35 a.m. on January 16. From the time appellant was arrested until the time he began making his written statement, approximately two to two-and-a-half hours had elapsed. This second factor tends to favor appellant.

Intervening Circumstances

An event or circumstance need not actually occur after the arrest, but rather it must manifest itself so as to significantly intervene and thus attenuate the taint of an illegal arrest. Foster v. State, 677 S.W.2d 507, 509 (Tex.Crim.App.1984). Significant intervening circumstances include an appearance before a magistrate, termination of the illegal custody, consultation with counsel, voluntary statement not made in response to police interrogation, consultation with parents, and the procurement of a valid arrest warrant before the confession. Bell, 724 S.W.2d at 789 n. 5 & 791; see also Dunn v. State, 951 S.W.2d 478, 482 (Tex.Crim.App.1997) (Mansfield, J., concurring) (finding an intervening circumstance when co-defendant’s confession implicated appellant in the murder); Wicker, 667 S.W.2d at 141 (finding an intervening circumstance when defendant was allowed to consult with his psychiatrist). In the instant case, there was no such significant intervening circumstance in the State’s favor. See Self, 709 S.W.2d at 667 (stating that no intervening circumstances in favor of the State appears to fall on appellant’s side). However, there was one event that intervened in appellant’s favor between his arrest and his first written confession. Appellant was confronted with a small shovel that apparently had been used to dig a grave. See Farmah, 883 S.W.2d at 679 (finding that detective’s false statement to appellant that complainant identified him was an intervening circumstance in favor of appellant); Bell, 724 S.W.2d at 789 (finding that appellant’s consent to search, the finding of evidence, and appellant’s confrontation with the evidence were intervening circumstances between the arrest and confession in favor of appellant). Although the sequence of events do not flow directly from the arrest as they do in Bell, this third factor falls in appellant’s favor.

Official Misconduct

Finally, we must look to the purpose and flagrancy of the official misconduct. “All Fourth Amendment violations are, by constitutional definition, ‘unreasonable,’ but practical differences between violations should dictate different outcomes. The point at which the taint can be said to have dissipated should be related, in the absence of other controlling circumstances, to the nature of that taint.” Bell, 724 S.W.2d at 789 (quoting Brown, 422 U.S. at 610, 95 S.Ct. 2254 (Powell, J., concurring in part)). The purpose and flagrancy of the police conduct may be the most important factor of the four. Self, 709 S.W.2d at 668. The Court of Criminal Appeals has found official misconduct when the arrest: (1) was without probable cause; (2) was calculated to cause surprise, fright, and confusion; and (8) was conducted purely in hope that something would turn up. We find this factor weighs in favor of appellant, although we do not believe the official misconduct was flagrant.

Summary

In summary, the temporal proximity and intervening circumstances factors weigh heavily against admission of appellant’s first confession. The repeated Miranda warnings do not significantly affect this conclusion. The immediate fruits of appellant’s arrest—his first confession— were tainted and should not have been admitted into evidence at trial. We find the State has not met its burden of proof to show the first confession was obtained by means sufficiently distinguishable from the illegal arrest to purge it of the primary taint. See Bell, 724 S.W.2d at 789 (finding appellant’s first confession inadmissable when made within one-and-a-half to three hours of his illegal arrest and without significant intervening circumstances). The first confession was inadmissable and it was error to deny the motion to suppress appellant’s written statement.

2. Second Statement

We now turn to the admissibility of appellant’s second confession, which is a videotaped oral confession. Again, the factors concerning admissibility of evidence following an illegal arrest are: (1) the giving of Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 604-05, 95 S.Ct. 2254.

Miranda Warnings

After appellant’s first confession and before his second confession, appellant had been read his Miranda rights three times. The first was during an arraignment hearing before a magistrate, the second was before appellant led officers to the location of the body, and the third was on the videotape before his second confession. This factor clearly weighs in favor of the State.

Temporal Proximity

Before appellant’s second confession, he had been in custody for more than thirteen hours. Appellant had been in custody overnight with time to rest and reflect. See Dunn, 951 S.W.2d at 482 (Mansfield, J., concurring) (stating several hours was sufficient time to reflect and to consider the consequences of confessing); Bell, 724 S.W.2d at 791 (stating before appellant’s second confession, he had been in custody over a day, with time to eat, rest, and reflect); see also Hankins, 132 S.W.3d at 390 (stating nine and one-half hours time between appellant’s arrest and confession is not so long that it becomes a particularly weighty factor for the State, but it is not so little that it favors appellant). Although somewhat of a close question, this factor tends to favor the State.

Intervening Circumstances

Unlike the first statement, significant intervening circumstances occurred between the arrest and initial confession on the night of January 15th and the second confession the morning of January 16th. The most significant intervening factor is that appellant appeared before a magistrate. After his arraignment, upon an investigator's request, appellant agreed to show detectives the exact location of the body. Appellant stated he already knew his rights from the night before and from the arraignment, but the investigator repeated them again. Appellant then led detectives to the location of the body and remained on the scene until officers confirmed the location was correct. After confirming the body’s location, appellant returned to the Sheriffs office and gave his second statement on videotape. Given the intervening circumstance that appellant was taken before a judge for arraignment, we find this third factor weighs in the State’s favor. See Hankins, 132 S.W.3d at 390 (stating that the most important intervening circumstance was appellant’s arraignment).

Official Misconduct

As previously stated, the Court of Criminal Appeals has found official misconduct when the arrest: (1) was without probable cause; (2) was calculated to cause surprise, fright, and confusion; and (8) was conducted purely in hope that something would turn up. When the official misconduct is flagrantly abusive, the clearest indications of attenuation should be required. Bell, 724 S.W.2d at 789.

We have already held the trial court committed error in finding there was a valid warrant supported by an affidavit establishing probable cause. The record contains little elaboration on the issue because the State failed to provide sufficient facts to support an affirmative finding of probable cause. In Bell, the Court of Criminal Appeals stated official misconduct is flagrant when the police, in making an arrest, rely on factors which are so lacking in indicia of probable cause as to render belief in their existence entirely unreasonable. 724 S.W.2d at 789. In the instant case, although there was misconduct, we find that it was not flagrantly abusive because the factors in making appellant’s arrest were not so lacking in indi-cia of probable cause as to render belief in their existence entirely unreasonable. In Ussery, the appellant called the police to a murder scene and brought attention to himself by making inconsistent statements. 651 S.W.2d at 770. The Court of Criminal Appeals found that although officers may have had reasonable or articulable suspicion that appellant was connected with the commission of the crime, they did not have probable cause to arrest. Id. at 770-71. The Court of Criminal Appeals stated that “[w]hile we decline to condemn the officers’ conduct as flagrant, the purpose and impropriety of their acts are clear.” Id. at 771. Like the Ussery court, we conclude there was un-excused official misconduct here, but it was not flagrant.

The officers’ conduct in arresting appellant was not calculated to cause surprise, fright, or confusion. Although appellant was arrested at night, the other facts of this case are not similar to Duncan or Green. In Duncan, appellant was awakened at 3:00 a.m. for interrogation purposes and was interrogated until 6:00 a.m., when she signed the confession. 639 S.W.2d at 318. In Green, appellant was roused from his sleep in the middle of the night by officers pointing shotguns in his direction, then led into the freezing weather with no coat, outer clothing, or shoes. Green, 615 S.W.2d at 708-09. In the instant case, investigators called appellant on the telephone and advised him they were looking for him and needed to speak with him. Appellant told the investigators he would call them when he arrived home. When appellant arrived at his house, he called the investigators and said he would wait for them on his front porch. Shortly thereafter, appellant was arrested by Investigator Kinchloe. Unlike Duncan and Green, this case does not present a situation in which the arrest was calculated to cause surprise, fright, or confusion.

There is no suggestion by appellant or the record that appellant’s arrest was conducted by officers in hope that something would just “turn up.” In Beasley, the court found appellant’s arrest was made with “purpose and flagrancy” when he was arrested without probable cause and on the basis of nothing more than a missing person report. 674 S.W.2d at 768. The court found the officers had set out on a patently investigatory mission, and on the basis of nothing more, detained appellant with the apparent hope that “something would turn up.” Id. at 768-69. In the instant case, nothing in the record suggests appellant was arrested in hope that something would turn up. Appellant was arrested after his wife told investigators that he was responsible for the murder. Officers already had discovered the victim’s abandoned car and a shovel they suspected was used to bury the victim’s body. Although we do not condone the officers’ actions, their conduct was not a flagrant fishing expedition for incriminating statements.

We find the final factor regarding official misconduct weighs in favor of the appellant. However, we also find the official misconduct was not flagrantly abusive.

Summary

After reviewing all of the factors, we find that before his second confession appellant received repeated Miranda warnings, was able to rest and reflect over the course of a night and the following morning on the consequences of a confession, and was arraigned before a judge and apprised of his rights. We hold these facts, of which arraignment is the most important, broke the nexus between the illegal arrest and appellant’s second confession. These intervening circumstances attenuated the taint of the illegal arrest on the second confession, rendering it admissible during appellant’s trial.

Appellant’s second confession is essentially the same as his first confession and more detailed. “Since the second confession is more complete with details and it was properly admitted in evidence, the admission of the first confession is not reversible error.” Bell, 724 S.W.2d at 793 (quoting Daniel v. State, 668 S.W.2d 390, 392 (Tex.Crim.App.1984)); see Tex.R.App. P. 44.2.

Conclusion

We conclude, appellant’s initial arrest was without a warrant based on probable cause. Accordingly, the first confession was tainted and the trial court erred in admitting the confession during trial. However, intervening circumstances between the illegal arrest and the second confession, including appellant’s appearance before a magistrate and his receipt of additional Miranda warnings, severed the causal relationship between the illegal arrest and the second confession, rendering it admissible at trial.

We overrule appellant’s sole issue and affirm the judgment of the trial court.

      . Appellant is the son-in-law of the victim and, coincidently, shares the same surname with the victim and his family.

      . The State contends it never developed testimony regarding the adequacy of probable cause because of appellant's purported lack of specificity in his objections.

      . One of the investigator's testimony concerned only the details concerning a videotaped statement and is not relevant to the issue on appeal.

      . Even if probable cause to arrest appellant existed, the arrest was still unlawful because it was not authorized by articles 14.01-.04 of the Texas Code of Criminal Procedure. War-rantless arrests in Texas are authorized by statute and only permitted in limited circumstances. See Tex.Code Crim. Proc. Ann. art. 14.03 (Vernon Supp.2004); Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). The State bears the burden to prove that a warrantless arrest falls within one of those exceptions. Amores, 816 S.W.2d at 413. No such showing was made here.

      . The Court of Criminal Appeals has suggested this second factor tends to weigh in appellant's favor with similar time frames. See e.g., Farmah v. State, 883 S.W.2d 674, 679 (Tex.Crim.App.1994) (approximately four hours); Maixner v. State, 753 S.W.2d 151, 156 (Tex.Crim.App.1988) (less than two hours); Bell, 724 S.W.2d at 788 (first confession: one and-a-half to three hours); Self, 709 S.W.2d at 666 (approximately two hours); Ussery v. State, 651 S.W.2d 767, 771 (Tex.Crim.App.1983) (one to one-and-a-half hours).

      . See Hankins v. State, 132 S.W.3d 380, 390 (Tex.Crim.App.2004); Jones, 833 S.W.2d at 125; Barber v. State, 737 S.W.2d 824, 832 (Tex.Crim.App.1987).

      . See Maixner, 753 S.W.2d at 156 (finding intervening circumstances when appellant had been released from custody and informed he was free to leave, however, he chose to stay because he "wanted to get everything out in the open”).

      . See Wicker v. State, 667 S.W.2d 137, 141 (Tex.Crim.App.1984).

      . See Wicker, 667 S.W.2d at 141.

        . See Little v. State, 758 S.W.2d 551, 566 (Tex.Crim.App.1988) (finding intervening circumstances when police made a valid arrest on a formal charge shortly after the illegal arrest and detention, which transformed the arrest into a legal one).

        . See Farmah, 883 S.W.2d at 679 (finding the illegality of the arrest weighed heavily in appellant’s favor when the officers lacked probable cause to arrest because the only connection between the appellant and the offense was the possession of the car and his race, and noting, this was not a situation with some technical error that invalidated the arrest); Townsley v. State, 652 S.W.2d 791, 797-98 (Tex.Crim.App.1983) (finding appellant was initially detained without probable cause, and had probable cause not been established by evidence independent from the illegal detention before appellant confessed, the court would have been forced to look at the full range of police activity occurring between appellant’s illegal detention and first written confession).

      . See Duncan v. State, 639 S.W.2d 314, 316-18 (Tex.Crim.App.1982) (finding flagrant misconduct when appellant was taken from his bed at 3:00 a.m. for interrogation purposes and was interrogated until 6:00 a.m. when she signed the confession); Green v. State, 615 S.W.2d 700, 708-09 (Tex.Crim.App.1980) (finding flagrant misconduct when appellant was roused from his sleep in the middle of the night with officers pointing shotguns in his direction, leading him into the freezing weather with no coat, outer clothing, or shoes).

      . See Beasley v. State, 674 S.W.2d 762, 768-69 (Tex.Crim.App.1982).

      . Appellant was taken into custody at approximately 9:30 p.m. to 10:00 p.m. on January 15, and the videotaped confession began the next day, January 16, at 11:41 a.m.

      . See Farmah, 883 S.W.2d at 679 (finding the illegality of the arrest weighed heavily in appellant’s favor when officers lacked probable cause to arrest because the only connection between appellant and the offense was possession of the car and his race, and noting, this was not a situation with some technical error that invalidated the arrest); Townsley, 652 S.W.2d at 797-98.

        . See Duncan, 639 S.W.2d at 316-18 (finding flagrant misconduct when appellant was taken from her bed at 3:00 a.m. for interrogation purposes and was interrogated until 6:00 a.m. when she signed the confession); Green, 615 S.W.2d at 708-09 (finding flagrant misconduct when appellant was roused from his sleep in the middle of the night with officers pointing shotguns in his direction, leading him into the freezing weather with no coat, outer clothing or shoes).

      . See Beasley, 674 S.W.2d at 768-69.

      . Based on the evidence introduced at the suppression hearing, the officers may have had information providing them with probable cause to arrest appellant, but that information was not in a probable cause affidavit. Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. Amores, 816 S.W.2d at 413. In determining whether an officer has probable cause for an arrest, Texas courts apply the totality-of-the-circumstances analysis. Tribble v. State, 792 S.W.2d 280, 284 (Tex.App.-Houston [1st Dist.] 1990, no pet.). In analyzing whether an officer had probable cause to arrest when receiving information from a crime victim or witness, the focus does not appear to be on the validity or accuracy of the information, but on whether the officer was justified in relying on the statement. Mungia v. State, 911 S.W.2d 164, 167 (Tex.App.-Corpus Christi 1995, no pet.). Indeed, the modern position is that any person purporting to be a crime victim or witness may be presumed reliable, though the police must remain alert to the existence of any circumstances which would make that presumption inoperative in a particular case. Id. (citing W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.4(a), p. 719 (West 1987)).


text:
    EMMETT PROPERTIES, INC., Trend, L.P., La Git 88 Trust, Individually and through its Trustee Tom McKinney, and John Powers, Appellants, v. HALLIBURTON ENERGY SERVICES, INC., Dresser Industries, Inc., Varco Systems, Inc., Varco International, Inc., Baroid Drilling Fluids, Inc., Baroid Corporation, Varco/Shaffer, Inc., and N L Industries, Inc., Appellees.
    No. 14-04-00281-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 3, 2005.
    Rehearing Overruled July 14, 2005.

      James Elmore Hudson and Kenneth A. Keeling, Houston, for appellants.
    Daniel V. Flatten, Houston, for appellants.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Appellants appeal the trial court’s dismissal of their claims against the appel-lees. We affirm.

Factual and Procedural Background

Appellants Emmett Properties, Inc. and Trend, L.P. each own real property located northwest of property owned by appellee Halliburton Energy Services, Inc., and its predecessors, appellees Dresser Industries, Inc., Vareo Systems, Inc., Vareo International, Inc., Baroid Drilling Fluids, Inc., Baroid Corporation, Varco/Shaffer, Inc., and N L Industries, Inc. Emmett’s property is adjacent to Trend’s property, and both Emmett and Trend allege hydrocarbons and hazardous chemicals discharged into the ground and the groundwater system on the Halliburton property migrated to their properties, resulting in pollution and contamination of their respective properties. On June 13, 2002, Emmett and Trend filed suit against the appellees asserting claims of negligence, negligence per se, gross negligence, trespass, nuisance, strict liability, and fraud/fraudulent concealment stemming from the appellees’ alleged pollution and contamination of Emmett’s and Trend’s real properties.

On August 22, 2003, more than a year after Emmett and Trend filed suit, appel-lees filed a “Motion to Dismiss/Motion for Partial Summary Judgment” seeking dismissal of Emmett’s claims on the grounds that Emmett is an involuntarily dissolved corporate entity without the ability to file suit or prosecute its claims and Emmett’s claims were filed outside the three-year window provided by article 7.12, section C of the Texas Business Corporation Act. A hearing on the motion was held September 30, 2003, and, on October 3, 2003, the trial court granted the appellees’ motion and dismissed Emmett’s claims.

Emmett filed a motion for new trial and a motion to reconsider arguing the October 3, 2003 judgment should be set aside because the Secretary of State reinstated Emmett to active status on September 30, 2003, and Emmett’s reinstatement revived its corporate privileges. Emmett claims it did not learn of its reinstatement until after the hearing on the summary judgment. Emmett’s reinstatement to active status is evidenced by a certificate issued by the Secretary of State, dated September 30, 2003. The trial court denied both of Emmett’s motions.

On November 12, 2003, John Powers and La Git 88 Trust, shareholders of Emmett, filed a petition in intervention as owners of the Emmett real properties. In response, the appellees filed a joint motion to dismiss, a motion for summary judgment, and special exceptions to the petition in intervention, seeking dismissal of Powers’ and La Git’s claims on several grounds. In addition, the appellees filed a joint no-evidence motion for summary judgment against Trend, asserting there is no evidence that Trend’s property had suffered any groundwater contamination or that any such contamination was caused by the appellees. The appellees also subsequently filed a motion to strike the expert report attached to Trend’s response to the appellees’ no-evidence summary judgment motion.

On March 1, 2004, the trial court granted the appellees’ motions and dismissed Trend’s, Powers’, and La Git’s claims.

On appeal, appellants raise six issues, arguing the trial court erred by: (1) granting the appellees’ Motion to Dismiss/Motion for Partial Summary Judgment against Emmett; (2) not granting Emmett a new trial; (3) not granting Emmett’s motion to reconsider; (4) granting the ap-pellees’ motion to dismiss, motion for summary judgment, and special exceptions to Power’s and La Git’s petition in intervention; (5) striking Trend’s expert report; and (6) granting the appellees’ no-evidence summary judgment against Trend.

Discussion

I. Dismissal of Emmett’s and the In-tervenors’ Claims

A. Emmett’s Claims

1. Standard of Review

The movant for summary judgment has the burden to show there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him. Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex.App.-Houston [14th Dist.] 2001, no pet.). We review the summary judgment evidence using familiar standards of review. See Dolcefino v. Randolph, 19 S.W.3d 906, 916-17 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

2. Discussion

On appeal, Emmett contends the trial court erred in granting appellees’ motion because summary judgment was not the proper vehicle for appellees to obtain dismissal of Emmett’s claims. Emmett argues the appellees’ motion should have been brought as a verified motion to abate because the motion is directed at Emmett’s capacity to prosecute its claims. Emmett further asserts the defect of forfeiture of its corporate charter was curable at any time, and fact questions precluded summary judgment in favor of appellees.

Appellees counter the trial court’s dismissal of Emmett’s claims was proper because Emmett’s claims against appellees were extinguished by statute. Their motion states,

While corporations have an ability to cure [a revocation or forfeiture of a corporate charter and privileges for violation of the franchise tax statute] and conduct limited acts, this right is limited to a three year window from the date of dissolution. Tex. Bus. Corp. Act Ann. art. 7.12, § C (Vernon 2003); Durham, Clinic, P.A. v. Barrett, 107 S.W.3d [761] at 764; Dorney v. Henderson Clay Prods., Inc., 838 S.W.2d 314 (Tex.App.-Texarkana 1992, writ denied).
It is undisputed that Emmett has been dissolved. It is undisputed that Emmett did not cure its corporate status within three years of dissolution. This Court should dismiss Emmett’s claims as Emmett is not a corporate entity, it was dissolved three years prior to filing suit, it is still dissolved and has no right to file suit in the State of Texas. [ (References to exhibits omitted).]

The appellees cite article 7.12, section C of the Texas Business Corporation Act in their motion, along with two Texas cases in which courts enforced the part of this statute that extinguishes existing claims by or against a “dissolved corporation” unless an action or proceeding on the claims is brought within three years of dissolution. See Tex. Bus. CoRP. Act Ann. art. 7.12, § C (Vernon 2003); Durham Clinic, P.A. v. Barrett, 107 S.W.3d 761, 762-63 (Tex.App.Waco 2003, pet. denied) (holding claim against dissolved corporation was barred under article 7.12, section C because it was brought more than three years after the date of dissolution); Dorney v. Henderson Clay Prods., Inc., 838 S.W.2d 314, 316 (Tex.App.-Texarkana 1992, writ denied) (holding same). The evidence attached to appellees’ motion shows the Secretary of State forfeited Emmett’s corporate charter on February 12, 1999, pursuant to section 171.309 of the Texas Tax Code. Appellees argue Emmett’s failure to cure its corporate status within three years of its forfeiture by the Secretary of State extinguished Emmett’s claims against them.

Under article 7.12, the definition of a “dissolved corporation” includes a corporation whose charter has been forfeited under the Texas Tax Code, unless the forfeiture has been set aside. See Tex. Bus. CoRP. Act Ann. art. 7.12, § F(l)(e). The summary judgment evidence showed that, for the purposes of article 7.12, Emmett was a “dissolved corporation” with a dissolution date of February 12,1999. As such, Emmett was required to bring suit on its claims within three years of this date, which was February 12, 2002. Emmett, however, did not file suit until June 13, 2002, more than three years after the dissolution date. Therefore, Emmett’s claims were extinguished under article 7.12, section C, and the trial court properly-granted the appellees’ motion for summary judgment.

Emmett counters that on September 30, 2003, its corporate charter and privileges were restored after payment of its delinquent franchise taxes and its reinstatement revives the extinguished claims. We disagree. Emmett’s subsequent reinstatement to active status does not revive the extinguished claims. The parties have not cited any statutory provision that would reverse the extinguishment of Emmett’s claims under article 7.12, section C, and the Texas Tax Code states only a corporation’s corporate privileges and charter are restored upon payment of delinquent taxes. Tex. Tax Code Ann. §§ 171.312, 171.313 (Vernon 2002). The Tax Code does not state a corporation’s extinguished claims are revived.

Emmett further asserts the appellees’ argument regarding the extinguishment provision of article 7.12, section C conflicts with this court’s opinion in Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 600 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In Lighthouse Church, this court correctly noted that a corporation whose charter has been forfeited under the Texas Tax Code may request the Secretary of State to set aside the forfeiture of its corporate charter under section 171.313 of the Texas Tax Code at any time by paying the delinquent taxes. 889 S.W.2d at 600; see Tex. Tax Code Ann. § 171.313. This court, however, did not address article 7.12, section C in the opinion. Affirming the trial court’s judgment based on article 7.12, section C presents no conflict with Lighthouse Church.

The trial court’s grant of summary judgment in appellees’ favor was proper because Emmett’s claims against appellees ceased to exist after the three-year window closed. We overrule issue one.

In issues two and three, appellants assert the trial court erred in not granting (1) Emmett’s motion for new trial in light of newly discovered evidence consisting of the September 30, 2003 certificate of reinstatement; and (2) Emmett’s motion to reconsider in light of additional statutory law. Emmett’s reinstatement four and a half years after its forfeiture does not revive the extinguished claims. Emmett’s claims against appellees ceased to exist after the three-year window closed. Accordingly, we overrule issues two and three.

B. The Intervenors’ Claims

In issue four, appellants seek reversal of the trial court’s March 1, 2004 order dismissing intervenors John Powers and La Git’s claims. The intervenors seek to avoid the consequences of article 7.12, section C of the Texas Business Corporation Act by asserting Emmett’s claims in their individual capacities.

Appellees argued in the trial court below, inter alia, the intervenors may not sue in their own name for their own benefit on a cause of action belonging to the corporation and sought dismissal of the intervenors’ claims on the ground that “the intervenors do not have standing to file individually.”

1. Standard of Review

Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The standard of review applicable to subject matter jurisdiction also applies to standing. Id at 446. Under this standard, the pleader must allege facts affirmatively demonstrating the court’s jurisdiction to hear the case. On appellate review, we construe the pleadings in favor of the plaintiff and look to the pleader’s intent. Id. A party’s standing to pursue a cause of action is a question of law. Coons-Andersen v. Andersen, 104 S.W.3d 630, 634 (Tex.App.-Dallas 2003, no pet.). We review the trial court’s actions de novo. Id.

2. Discussion

A cause of action for damages to the property of a corporation is vested in the corporation. White v. Independence Bank, N.A., 794 S.W.2d 895, 897 (Tex.App.-Houston [1st Dist.] 1990, writ denied); see also Hajdik v. Wingate, 753 S.W.2d 199, 201 (Tex.App.-Houston [1st Dist.] 1988), aff'd, 795 S.W.2d 717, 719 (Tex.1990). A corporate stockholder cannot recover damages personally for a wrong done solely to the corporation, even though he may be injured by that wrong. White, 794 S.W.2d at 898. An action for damages to corporate property must be brought by the corporation for obvious reasons: to avoid multiplicity of suits and so that any recovery will be available to pay the corporation’s debts. Even though stockholders may sustain indirect losses, they have no independent right to bring an action for injuries suffered by the corporation. For corporate injuries, a stockholder is required to file suit on behalf of the corporation. Id.

In their petition in intervention, the intervenors, shareholders of Emmett, individually sought to intervene and bring suit in their own name for damages belonging to Emmett, a Texas corporation. As explained above, the intervenors do not have an independent right to bring an action for injuries suffered by Emmett. Moreover, even if the intervenors had standing, their claims, being derivative of Emmett’s, were extinguished. Accordingly, the trial court properly dismissed the intervenors’ claims, and we overrule issue four.

III. Messenger’s Expert Report and the No-Evidence Summary Judgment Against Trend

In issues five and six, Trend contends the trial court erred in striking Allen Messenger’s expert report and granting appel-lees’ no-evidence motion for summary judgment. Appellees’ no-evidence motion alleged there was no evidence Trend’s property had suffered groundwater contamination or that any groundwater contamination sustained was caused by appel-lees. Trend attached Messenger’s expert report to its response to the appellees’ no-evidence motion for summary judgment.

Trend asserts the trial court abused its discretion in striking Messenger’s expert report because it is admissible, reliable, and competent, and contains more than a scintilla of probative evidence precluding summary judgment in favor of appellees. Trend also complains of the appellees’ failure to obtain or request a notice of hearing on the motion to strike. Appellees respond that Messenger’s expert report was properly struck because it does not meet the reliability requirements for scientific evidence, shows no special knowledge or analysis of the matter under consideration, does not address alternative causes, is un-sworn, and is inadmissible hearsay.

A. Standard of Review

A defendant may file a no-evidence motion for summary judgment, after sufficient time for discovery has passed, if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). In reviewing a “no evidence” summary judgment, we review the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

B. Discussion

As an initial matter, we address Trend’s complaints that “no notice of hearing was obtained or requested” on the appellees’ motion to strike Trend’s expert report “as required by Tex.R. Civ. P. 21a” and that the trial court erred by ruling on the motion without the motion having been noticed for submission or a hearing. The record shows the following with regard to the motion to strike: appellants filed the motion to strike on February 13, 2004; Trend filed a response to the motion to strike on February 16, 2004, in which it objected to appellants not setting the motion to strike for a hearing; Trend filed a supplemental response to the motion to strike on February 17, 2004; Trend filed a second supplemental response on February 25, 2004; and the trial court granted the motion to strike on March 1, 2004. Trend contends it renewed its objection to the lack of notice of a hearing on the motion to strike at the summary judgment hearing. However, a transcription of the summary judgment hearing is not part of the appellate record.

The record does not show Trend secured any ruling on its objection to the lack of notice of a hearing on the motion to strike. Therefore, Trend has waived any complaint on appeal. Tex.R.App. P. 33.1(a)(2). Furthermore, Trend does not argue on appeal that the error probably caused the rendition of an improper judgment or probably prevented it from properly presenting its case to the court of appeals. See Tex.R.App. P. 44.1(a). We oven-ule this part of issue five.

To defeat the appellees’ no-evidence motion, Trend was required to show that halogenated hydrocarbons from the Halliburton property migrated onto Trend’s property and caused injury. Causation cannot be established by mere speculation or conjecture, but must be established by evidence of probative value. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). Therefore, to overcome the no-evidence motion, Trend was required to present more than a scintilla of evidence that contamination of its property was caused by the appellees.

Admissibility of expert testimony is governed by the Texas Rules of Evidence and the Robinson factors. See Tex.R. Evid. 702, 705(c); E.I du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex.1995). An expert’s testimony must be both relevant to the issues and based on a reliable foundation. Robinson, 923 S.W.2d at 556. An expert’s failure to rule out other causes of the damage renders his opinion little more than speculation and therefore, unreliable. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (“[I]f there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty.”); Robinson, 923 S.W.2d at 559 (“An expert who is trying to find a cause of something should carefully consider alternative causes.”); Hess v. McLean Feedyard, Inc., 59 S.W.3d 679, 687 (Tex.App.-Amarillo 2000, pet. denied) (“[A]n expert should carefully consider and rule out alternative causes, and the failure to rule out other causes results in speculation and conjecture and amounts to no evidence of causation.”); Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 934 (Tex.App.-Texarkana 1997, pet. denied) (analyzing expert testimony under Robinson factors and concluding testimony unreliable when experts failed to exclude other potential causes).

In Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 446 (Tex.App.-Fort Worth 1997, pet. denied), the Fort Worth Court of Appeals held an expert’s testimony constituted no evidence when the expert failed to testify that gas from the defendant’s oil wells was found in the plaintiffs water or that either the defendant’s oil wells or plaintiffs water supply contained hydrogen sulfide. The court also held a second expert’s testimony was no evidence because the expert failed to rule out other causes:

An expert who is trying to find the cause of something should carefully consider and rule out alternative causes. [The expert’s] failure to rule out other causes of the presence of hydrogen sulfide in appellees’ water renders his opinion “little more than speculation.” Mere guess or conjecture is not probative evidence.

Id. at 448 (citations omitted). Similarly, in Martinez v. City of San Antonio, 40 S.W.3d 587, 595 (Tex.App.-San Antonio 2001, pet. denied), the San Antonio Court of Appeals held the plaintiffs’ expert testimony constituted no evidence the defendant caused the plaintiffs’ injuries because the expert failed to rule out alternative sources of lead contamination in arriving at his lead calculation. See also Weiss v. Mechanical Associated Servs., Inc., 989 S.W.2d 120, 125-26 (Tex.App.-San Antonio 1999, pet. denied) (holding expert testimony properly struck when experts were unable to rule out other potential causes of the plaintiffs illness with reasonable certainty).

Trend contends the foundational data underlying Messenger’s opinion is reliable because it is “based on interpolation of the data found on two sides of the Trend property which establishes the presence of halogenated hydrocarbons consistent with contaminants from the Halliburton property.” Based on this “interpolation,” Messenger opines in his report that “there is a reasonable probability that one or more of the halogenated hydrocarbons contaminate the shallow groundwater beneath the Trend L.P. property at concentrations that require remediation under the application TCEQ Texas Risk Reduction Regulations PCL for usable groundwater.”

In his report, Messenger does not consider alternative causes for the contamination. Furthermore, he simply concludes the shallow groundwater beneath Trend’s property is contaminated with halogenated hydrocarbons based on the fact that Hali-burton consultants have found halogenated hydrocarbons that are the same halogenated hydrocarbons as those found under the Halliburton property under each property that is between Trend and the Halliburton property.

Conspicuous by its absence from the record is any testimony by Messenger that halogenated hydrocarbons had been found beneath the Trend property. Moreover, in arriving at his conclusion that there is a “reasonable probability” that halogenated hydrocarbons are beneath the Trend property, Messenger fails to rule out alternative sources for the assumed contamination, such as other surrounding properties. Messenger’s opinion constitutes no more than mere possibility, speculation, and surmise.

After considering the evidence presented to the trial court, we conclude the trial court did not abuse its discretion in striking Messenger’s report. Having failed to respond with any evidence raising a genuine fact issue on the element of causation, the no-evidence summary judgment in favor of appellees was proper, and we affirm the no-evidence summary judgment against Trend. Accordingly, we overrule issues five and six.

Conclusion

We affirm the judgment of the trial court.

      . Based on the record presented to this court, Halliburton Affiliates L.L.C. as successor to Baroid Equipment, Inc. Pk/a Shaffer Tool Works, Inc. ftk/a Shaffer, Inc. ftk/a the Rucker Company ("Halliburton Affiliates”) did not file an answer to the appellants’ suit, and we must conclude Halliburton Affiliates is neither a beneficiary of or party to the final judgment below or the judgment of this court.

      . References to "La Git" in this opinion are to La Git 88 Trust, individually and through its trustee Tom McKinney.

      . Section 171.309 permits the Secretary of State to forfeit the charter or certificate of authority of a corporation if the Secretary (1) receives the comptroller’s certification, (2) the corporation does not revive its forfeited corporate privileges within 120 days after forfeiture of its privileges, and (3) the corporation does not have assets from which a judgment for any taxes may be satisfied. See Tex. Tax Code Ann. § 171.309 (Vernon 2002).

      . Emmett argues article 7.01, section E applies to this case so as to reverse any effects of the dissolution other than the personal liability of Emmett’s directors, officers, and agents, which is not an issue in this case. However, trader the unambiguous language of the statute, article 7.01, section E applies only to corporations that have been dissolved, by the Secretary of State under article 7.01, section B and that successfully have applied for reinstatement under article 7.01, section E. See Tex. Bus. Corp. Act. Ann. art. 7.01, §§ B, E (Vernon 2003). Emmett was not dissolved by the Secretary of State under article 7.01, section B; rather, the Secretary of State forfeited Emmett’s charter under section 171.309 of the Texas Tax Code. Compare Tex. Bus. Corp. Act Ann. art. 7.01, § B, with Tex. Tax Code Ann. § 171.309. Regardless of the scope of article 7.01, section E's amnesty provision, under its unambiguous language, it does not apply to Emmett. See Tex. Bus. Corp. Act Ann. art. 7.01, § E. Emmett is treated as a “dissolved corporation” only under article 7.12. See Tex. Bus. Corp. Act Ann. art. 7.12, § F(l)(e) (stating ”[i]n this Article ... [t]he term ‘dissolved corporation' means a corporation ... whose charter was forfeited pursuant to the Tax Code, unless the forfeiture has been set aside”) (emphasis added).

      . Article 5.14 of the Texas Business Corporation Act allows a shareholder to bring a derivative suit. Tex. Bus. Corp. Act Ann. art. 5.14 (Vernon 2003). The intervenors did not file a shareholder’s derivative suit.

      . The intervenors’ petition commences with the following description of the parties:
      Intervenor John Powers is a shareholder of Emmett Properties, Inc. If Emmett Properties, Inc. did not have capacity to Ele suit in this action in its own name, then shareholder John Powers was one of two true parties in interest and should be substituted in place of Plaintiff Emmett Properties to the extent of his ownership.
      The petition describes intervenor La Git in the same manner. The intervenors do not sue on behalf of the corporation, and at the time the intervenors petitioned to intervene, Emmett had been reinstated.

      . The two cases Trend cites in support of its contention that the filing of a motion to strike an expert report does not constitute submission of the motion are distinguishable and do not support Trend’s argument. See Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex.App.Houston [14th Dist.] 1991, no writ) (holding in the context of a summary judgment proceeding that a plaintiff may take a nonsuit at any time prior to the time the court renders judgment); Mainland Sav. Ass’n v. Wilson, 545 S.W.2d 491, 493 (Tex.App.-Houston [1st Dist.] 1976, no writ) (holding partial summary judgment in favor of defendant improper when plaintiffs non-suit was timely filed prior to submission of summary judgment motion).