author: Justice LANG-MIERS.

text:
    Susan Lorraine THOMANN, Appellant, v. LAKES REGIONAL MHMR CENTER, Appellee.
    No. 05-04-00203-CV.
    Court of Appeals of Texas, Dallas.
    April 18, 2005.

      John E. Wall, Jr., Jennifer Scherf, Law Offices of John E. Wall, Jr., Dallas, for appellant.
    Joel E. Geary, Brown MeCarroll, L.L.P., Dallas, for appellee.
    Before Justices WRIGHT, FITZGERALD and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Susan Lorraine Thomann appeals the summary judgment granted in favor of Lakes Regional MHMR Center (Lakes Regional) dismissing her claims of employment discrimination and retaliation. We affirm.

Background

Lakes Regional provides professional medical and psychological assistance to citizens with ongoing problems caused by mental illness, developmental delays, mental, retardation or substance abuse. It operates two group homes in Terrell, Texas referred to as the Ninth Street home and the Park Street home. These group homes offer permanent living facilities for individuals who are not physically or mentally capable of living by themselves. The homes are staffed by employees called house parents. Among the job requirements for house parents is the ability to lift a minimum of 44 pounds. House parents are hired as “flexible staff’ because they may be required to cover shifts and locations other than their regular assignments in emergency situations.

The Ninth Street home houses females who, for the most part, are not ambulatory and need assistance in the daily activities of living, such as bathing, dressing, and eating. The Park Street home houses males, all of whom have at least one severe mental illness or physical limitation, and are more ambulatory than the females at the Ninth Street home.

In December 1998, Lakes Regional hired Thomann as a house parent and assigned her to the day shift at the Ninth Street home. In June 1999, Thomann underwent a total left knee replacement and returned to her regular job and duties at the Ninth Street home in September of that year. In September 2000, Thomann underwent back surgery for degenerative disc disease. Three months later, Tho-mann was ready to return to work but told her supervisor that she was no longer physically able to work the day shift at the Ninth Street home because of her limited ability to lift, bend and turn. Thomann traded positions with a worker at the Park Street home and returned to work in December 2000 on the night shift at the Park Street home. Her doctor’s return to work capacity report restricted her to “light duty” and stated she could not lift over twenty pounds or lift patients. Upon reading the doctor’s release, Kim Doyal, residential director of Lakes Regional, told Thomann that Lakes Regional did not have any “light duty” positions. But Tho-mann continued to work the night shift at the Park Street home where the patients were ambulatory and her lifting requirements were minimal.

In October 2001, Doyal asked Thomann for a full-duty work release from her doctor. This request sparked a dispute between Doyal and Thomann culminating in a functional capacity assessment (FCA) that was conducted in January 2002 to determine whether Thomann had any physical limitations that would prevent her from obtaining a full-duty medical release. Following the FCA, Thomann’s doctor released her to “light work per Functional Capacity Assessment,” which restricted her to lifting and carrying no more than twenty pounds at a time. Meanwhile, in December 2001, Thomann made an internal complaint to the Lakes Regional human resources department against Doyal alleging that Doyal was discriminating against her based on her disability because, in November, Doyal had asked Tho-mann to cover a position at the Ninth Street home.

On February 14, 2002, Thomann met with several officers of Lakes Regional who informed her that she could not continue to work in the house parent position because of her lifting restrictions but offered her an opportunity to apply for a position as a receptionist. She rejected the offer. Lakes Regional’s executive director also called Thomann and, without requiring her to apply for it, offered her the receptionist position. He confirmed the offer in writing, stating the receptionist position was at the same grade level as her job as house parent and would be a lateral move. The letter advised Thomann that the position would be held open for a week. After receiving no response to the letter by the end of that week, Lakes Regional terminated Thomann’s employment.

The next month Thomann filed a charge of discrimination with the Texas Commission on Human Rights (TCHR) and the Equal Employment Opportunity Commission (EEOC) alleging that Lakes Regional terminated her employment because she was disabled and because she complained to Lakes Regional about its treatment of her. The TCHR dismissed Thomann’s claim stating “further investigation will not result in a Cause Finding.” The EEOC concluded that “evidence obtained during the investigation does not establish a violation of the statute.” Thomann then filed this lawsuit in district court alleging Lakes Regional violated sections 21.051 and 21.055 of the Texas Labor Code by terminating her employment based on her disability and retaliating against her because she made an internal complaint. Lakes Regional filed a motion for traditional and no-evidence summary judgment on both claims, which the trial court granted. Thomann’s motion for reconsideration was overruled.

Thomann raises four issues on appeal. In her first, second and fourth issues, Tho-mann argues the trial court erred in granting Lakes Regional’s motion for summary judgment because there are genuine issues of material fact regarding her claims for discrimination and retaliation and the trial court erred because it considered the summary judgment evidence in the light most favorable to the movant as opposed to the non-movant. In her third issue, Thomann argues the trial court erred in overruling her objections to the affidavits in support of Lakes Regional’s summary judgment. Thomann argues all four issues together. We consider her third issue first.

TRial Court’s Rulings on SummaRy Judgment Evidence

In Thomann’s third issue, she argues the trial court erred in overruling her objections to Lakes Regional’s summary judgment evidence. She argues that “all of the [affidavits contained hearsay information and none of them demonstrated a basis for personal knowledge.... ” She also argues the claims made in the affidavits contradict Lakes Regional’s letter of termination and contained conelusory assertions. But Thomann fails to identify the objectionable portions of the affidavits, she does not identify the statements in the affidavits which she complains contained hearsay or which affidavits are not based on personal knowledge, and she fails to identify which affidavit contradicts the letter of termination or why this makes the affidavit objectionable. A general directive to review affidavits for hearsay and impermissible conclusions is not sufficient to direct our attention to the error about which Thomann complains. See Tex. R.App. P. 38.1(h); see also Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.); Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex.App.Austin 1989, writ denied). We decide Tho-mann’s third issue against her.

We now turn to Thomann’s first, second, and fourth issues.

Standard of Review for Summary Judgment

We review a grant of summary judgment de novo. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standard of review in traditional summary judgment cases is well established. The issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). The movant bears the burden of proof and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). All evidence and any reasonable inferences must be viewed in the light most favorable to the non-movant. Nixon, 690 S.W.2d at 548-49. Evidence favoring the movant’s position will not be considered unless it is not controverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). A defendant is entitled to summary judgment if it conclusively negates an essential element of the plaintiffs case or conclusively establishes all necessary elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

In a no-evidence summary judgment, a party moves for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which the adverse party has the burden of proof. Tex.R. Crv. P. 166a(i). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 702 (Tex.App.-Amarillo 1999, no pet.).

We review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Accordingly, we examine the record in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). If the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is improper. Tex.R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. A party produces less than a scintilla of evidence when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). A party produces more than a scintilla of evidence if the evidence allows reasonable and fair-minded people to differ in their conclusions. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

Discrimination Claim

Section 21.051 of the labor code prohibits an employer from discriminating against an employee with respect to compensation, or the terms, conditions or privileges of employment because of race, col- or, disability, religion, sex, national origin or age. Tex. Lab.Code Ann. § 21.051 (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991); Williams v. Vought, 68 S.W.3d 102, 107 (Tex.App.-Dallas 2001, no pet.). One purpose of chapter 21 of the labor code is to “provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent amendments (42 U.S.C. Section 12101 et seq.).” Tex. Lab.Code Ann. § 21.001(3) (Vernon 1996). And in 1993, the legislature incorporated the ADA definition of the term “disability” into chapter 21. Little v. Texas Dep’t of Criminal Justice, 148 S.W.3d 374, 381-82 (Tex.2004). Accordingly, we are guided by federal law in construing chapter 21. Id; Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex.2004); NME Hosps., Inc. v. Rennets, 994 S.W.2d 142, 144 (Tex.1999).

To prove a violation of section 21.051 on the basis of disability, an employee must show (1) she is disabled, (2) she suffered adverse employment action, and (3) non-protected employees were not treated similarly. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 64 (Tex.App.Houston [14th Dist.] 1998, no pet.); Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 269-70 (Tex.App.-Fort Worth 2004, no pet.); Greathouse v. Alvin Indep. School District, 17 S.W.3d 419, 423 (Tex.App.Houston [1st Dist.] 2000, no pet.).

Deñnitíon of Disability

A “disability” is (1) a mental or physical impairment that substantially limits at least one major life activity of that individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. Tex. Lab.Code Ann. § 21.002(6) (Vernon 1996); see Kiser v. Original, Inc., 32 S.W.3d 449, 452 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Actual Disability

The EEOC has issued detailed regulations regarding the definition of “disability” under the ADA. Little, 148 S.W.3d at 383. The term “physical impairment” includes:

[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 479-80, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The term “substantially limits” means, among other things:

[u]nable to perform a major life activity that the average person in the general population can perform; or [significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Id.; Little, 148 S.W.3d at 383 (citing 29 C.F.R. § 1630.2(j)). Federal and Texas courts have interpreted “substantially limits” as “a demanding standard for qualifying as disabled.” Toyota Motor Manuf., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see Chevron Corp. v. Redmon, 745 S.W.2d 314, 318 (Tex.1987) (the disability must severely limit performance of work-related functions in general). The factors to be considered in determining whether an individual is substantially limited in a major life activity include:

The nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

Little, 148 S.W.3d at 383. Finally, the term “major life activities” means:

“functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

Id. (quoting 29 C.F.R. § 1630.2(f)).

Thomann must prove a substantial limitation with specific evidence that her particular impairment substantially limits her particular major life activity. Waldrip v. General Elec. Co., 325 F.3d 652, 656 (5th Cir.2003) (plaintiff must show that his impairment has actually and substantially limited the major life activity on which he relies). Courts have held that when an employee complains that a disability prevents her from the major life activity of working, the inquiry is whether she has shown an inability to work in a broad range of jobs, not just a specific job. Toyota Motor Mfg., 534 U.S. at 200, 122 S.Ct. 681; Sutton, 527 U.S. at 492, 119 S.Ct. 2139; Leal, 154 S.W.3d at 100. She must prove her impairment severely restricts or forecloses her ability to work in general; it is not enough that she cannot perform a single or particular job or narrow range of jobs. Leal, 154 S.W.3d at 100; Hartis, 7 S.W.3d at 703.

Record of Disability

To prove a record of disability claim, Thomann must show she “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Kiser, 32 S.W.3d at 453 (quoting Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir.2000)); Union Carbide v. Mayfield, 66 S.W.3d 354, 367 (Tex.App-Corpus Christi 2001, pet. denied). The types of records contemplated under the analogous provision of the ADA to establish a record of disability include educational, medical, or employment records. Morrison v. Pinkerton, Inc., 7 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing 29 C.F.R. Pt. 1630, app. § 1630.2(k)).

Regarded as Disabled

To prove her employer regarded her as having a substantially limiting impairment, Thomann must show (1) the employer believed she has a physical impairment that substantially limits a major life activity when in fact she does not, or (2) the employer believed she has a substantially limiting impairment which in fact is not so limiting. Kiser, 32 S.W.3d at 453. Additionally, she must prove that the employer regarded her as significantly restricted in the ability to perform a class or a broad range of jobs. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir.1998).

Discrimination under any of these definitions of disability applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job. Tex. Lab.Code Ann. § 21.105 (Vernon 1996). An employee may show she can reasonably perfonn a job by showing that she can perform all the essential job functions with or without reasonable modifications or accommodations by the employer. Cornyn v. Speiser, Krause, Madole, Mendelsohn & Jackson, 966 S.W.2d 645, 648-49 (Tex.App.-San Antonio 1998, pet. denied); Pena v. Houston Lighting & Power Co., 978 F.Supp. 694, 697 (S.D.Tex.1997), aff'd 154 F.3d 267 (5th Cir.1998). If she cannot perform the job, with or without reasonable accommodation, the individual is not entitled to protection under chapter 21 of the labor code. Cornyn, 966 S.W.2d at 648-49; Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir.1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994).

Discussion

Thomann contends that Lakes Regional terminated her employment because she has a disability. To survive summary judgment, Thomann was required to produce more than a scintilla of evidence that she has a disability as defined by chapter 21 of the labor code. Thomann argues that she satisfies all three definitions of disability.

Actual Disability

Thomann first argues that her inability to lift more than twenty pounds makes her disabled. But many courts have held that a lifting restriction alone does not rise to the level of a protected disability. See, e.g., Sherrod, 132 F.3d at 1120; Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.1996); Richards v. Seariver Maritime Financial Holdings, Inc., 59 F.Supp.2d 616, 627-28 (S.D.Tex.1998), aff'd 189 F.3d 467 (5th Cir.1999); but see Primeaux v. Conoco, Inc., 961 S.W.2d 401, 405 (Tex.App.-Houston [1st Dist.] 1997, no writ) (holding that plaintiff raised fact question whether lifting restriction substantially limited at least the major life activity of working).

Thomann offered no evidence that her lifting restriction substantially limited her from engaging in any of the activities of daily living. She admitted that her lifting restriction does not substantially limit her ability to care for herself, perform manual tasks, walk, see, hear, speak, breathe, learn, or work. And the lifting restriction does not prevent her from all lifting, only heavy lifting. Thomann offered no evidence that her lifting restriction substantially limits her ability to use public facilities, use common carriers, obtain housing, cross the street, achieve independence, become gainfully employed, or participate in the social or economic life of the state without the protections of chapter 21. See Chevron, 745 S.W.2d at 317 (interpreting the predecessor to chapter 21).

Thomann offered no evidence of other jobs utilizing similar training, knowledge, skills or abilities within her geographical area from which she is disqualified. See Primeaux, 961 S.W.2d at 406 (a factor to consider under ADA regulations in determining whether an employee is substantially limited in the major life activity of working). Additionally, Thomann offered no evidence that she is disqualified from a broad range of jobs because of her lifting restriction. Id.

We conclude Thomann failed to produce more than a scintilla of evidence that she has an impairment that substantially limits a major life activity.

Record of Disability

Next, Thomann argues she has a record of disability because Lakes Regional was aware of the limitations with her knee and back and accommodated these limitations by transferring her to the night shift at the Park Street home. Although Thomann stated in response to Lakes Regional’s motion for summary judgment that she had recurring knee problems, she did not argue in the trial court that her knee problems were a source of impairment. She cannot argue this point for the first time on appeal. See Tex.R.App. P. 33.1(a). Accordingly, we limit our consideration to whether Thomann has a record of disability based on her back problem.

Lakes Regional established that its records concerning Thomann showed a lifting restriction which we have concluded is not a disability. Instead, and viewed in the light most favorable to Thomann, the evidence showed that Thomann experienced back pain prior to her surgery which prevented her from performing some of the functions of the job as house parent and that she is restricted in the weight she can lift, push and pull. It also shows that Lakes Regional transferred her to another position to accommodate these limitations. But this evidence does not demonstrate a record of an impairment that substantially limits a major life activity. Thomann offered no other medical or employment records to support her claim that she had a record of disability.

We conclude Thomann failed to produce more than a scintilla of evidence of a record of disability.

Regarded as Disabled

Finally, Thomann argues that Lakes Regional regarded her as disabled because its employees knew of her restrictions and accommodated her by transferring her to the night shift at the Park Street home. The primary evidence Tho-mann offers to support this argument is Doyal’s statement that Thomann “is not capable of performing the essential functions of her position.” But this statement does not support the conclusion that Lakes Regional regarded Thomann as having an impairment that substantially limits a major life activity. It merely supports the conclusion that Thomann was unable to perform her job as house parent because of the lifting restriction.

The fact that Lakes Regional offered Thomann a different job shows that Lakes Regional believed she was qualified for other positions and that Lakes Regional did not regard her as disabled. See Sherrod, 132 F.3d at 1121. We conclude Thomann failed to produce more than a scintilla of evidence that Lakes Regional regarded her as disabled.

Because Thomann failed to produce evidence sufficient to raise a fact issue on the issue of disability as defined by chapter 21 of the labor code, summary judgment on Thomann’s discrimination claim was proper.

Retaliation Claim

Section 21.055 prohibits an employer from retaliating or discriminating against an employee who opposes a discriminatory practice; makes or files a charge; files a complaint; or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. Tex. Lab.Code Ann. § 21.055 (Vernon 1996). To establish a prima facie case of retaliation, an employee must show (1) she engaged in protected activity, (2) her employer took adverse employment action against her, and (3) the employer took this action due to her engagement in the protected activity. See Higgs v. Trammell Crow Co., No. 05-04-00547-CV, 2005 WL 317791 (Tex.App.-Dallas Feb.10, 2005, no pet. h.); Jones v. Jefferson County, 15 S.W.3d 206, 210 (Tex.App.-Texarkana 2000, pet. denied); Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 223-24 (Tex.App.-San Antonio 1998, pet. denied); Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 315 (Tex.App.-Austin 1997, writ denied).

To prove a causal connection between her filing the complaint and the termination of her employment, Thomann must show that “but for” filing the complaint, her employment would not have been terminated when it was. Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 295 (Tex.App.-Corpus Christi 2000, pet. denied); McMillon v. Texas Dep’t of Ins., 963 S.W.2d 935, 940 (Tex.App.-Austin 1998, no pet.). But she need not establish that filing the complaint was the only reason her employment was terminated. See Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995); Gorges Foodservice v. Huerta, 964 S.W.2d 656, 667 (Tex.App.-Corpus Christi 1997, no pet.).

We review cases filed under chapter 21 of the labor code that have not been tried on the merits using the burden-shifting analysis in McDonnell Douglas. See Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir.2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). If Thomann can establish a prima facie case of retaliation, the burden then shifts to Lakes Regional to produce evidence establishing a legitimate, non-diseriminatory reason for the termination of Thomann’s employment. Sherrod, 132 F.3d at 1122; see Canchola, 121 S.W.3d at 739.. If Lakes Regional produces a legitimate reason for the termination of Thomann’s employment, then Thomann must produce sufficient evidence that would permit a reasonable trier of fact to find that Lakes Regional’s proffered reason is a pretext for retaliation. See Sherrod, 132 F.3d at 1122. And even though the burden of production shifts, the burden of persuasion remains continuously with Thomann. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. 1817; Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 251 (Tex.App.-Houston 1st Dist.1993, writ denied). Subjective beliefs of discrimination alone are insufficient to establish a prima facie case. Montgomery v. Trinity I.S.D., 809 F.2d 1058, 1061 (5th Cir.1987); Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir.1985); Farrington, 865 S.W.2d at 251.

Discussion

Thomann has shown that she engaged in a protected activity when she made an internal complaint in December 2001 and that Lakes Regional took adverse action against her by terminating her employment in February 2002. To establish her prima facie case, Thomann next must show that but for making the complaint, Lakes Regional would not have terminated her employment when it did. See Sherrod, 132 F.3d at 1122.

In her response to Lakes Regional’s motion for summary judgment, Thomann argues she made the necessary causal connection by showing (1) she had performed her job for over a year without incident, (2) her employment was terminated directly after she made the complaint, (3) she had never been required to lift patients and lifting patients was not part of the job description, (4) her move to the Park Street home was permanent and not temporary, and (5) no reason existed for why she could not continue to work the Park Street home. The trial court granted Lakes Regional’s motion for summary judgment without stating its basis, so we will uphold the judgment if the motion could have been granted on any ground. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex.2000).

Assuming without deciding that Thomann’s evidence raises a prima facie case of retaliation, Lakes Regional offered evidence of a non-discriminatory reason for the termination of Thomann’s employment. Lakes Regional’s job description required its house parents to have the ability to lift a minimum of 44 pounds, which Thomann was unable to do. Her twenty-pound lifting restriction compromised her ability to perform her duties. Even if Thomann had demonstrated that she is disabled, Lakes Regional is not required to modify the duties of other employees or eliminate or reallocate essential functions of a position in order to provide accommodation. See Herrera v. CTS Corp., 183 F.Supp.2d 921, 930 (S.D.Tex.2002).

Thomann offered no evidence that other persons with lifting restrictions held house parent positions at Lakes Regional. Tho-mann’s subjective belief that Lakes Regional discriminated against her because she has a lifting restriction is her unsubstantiated opinion and is not sufficient to raise a fact issue. See Montgomery, 809 F.2d at 1062.

Additionally, the Lakes Regional executive director, upon learning of Thomann’s meeting with other officers and of their decision to terminate her employment, called her and offered her another position. He confirmed this offer in writing and told her it would be a lateral move with the same rate of pay and benefits. When Thomann did not respond to the offer of another job within the allotted timeframe, Lakes Regional terminated her employment as house parent because she was unable to meet the physical requirements of that job. Lakes Regional refuted Thomann’s claim of retaliation by demonstrating that she refused to even interview for the position that accommodated her physical limitations. See Sherrod, 132 F.3d at 1123.

Thomann failed to make the necessary showing to establish a genuine issue of material fact in her claim for retaliation. Accordingly, summary judgment on her retaliation claim was proper. As a result, we also conclude the trial court did not consider the summary judgment evidence in the light most favorable to the movant as opposed to the non-movant and therefore did not err in granting Lakes Regional’s motion for summary judgment.

We decide Thomanris first, second and fourth issues against her.

Conclusion

We do not address whether the trial court erred in overruling Thomann’s objections to Lakes Regional’s summary judgment evidence because that issue was waived. We conclude Thomann failed to produce more than a scintilla of evidence to support her claims of discrimination and retaliation by Lakes Regional and the trial court did not err by granting Lakes Regional’s motion for summary judgment. We affirm the trial court’s judgment.

      . Actually, Lakes Regional’s predecessor hired Thomann. The entity referred to as Lakes Regional came into existence in December 1999. For clarity purposes, we refer to the entity as Lakes Regional.

      . This was Thomann’s second left knee replacement surgery; the first occurred prior to her employment with Lakes Regional.

      . It is unclear from the record whether Doyal asked Thomann to temporarily cover a position at the Ninth Street home or was transferring her to that home permanently. Tho-maim characterizes her complaint as one of discrimination because of her disability. The complaint actually stated that Thomann’s position on the night shift at the Park Street home was a permanent transfer to accommodate her physical limitations and requested an investigation into Doyal’s assertion that it was only a temporary accommodation for her back surgery and was never intended to be permanent. Thomann conceded in her deposition that no one ever told her the position at the Park Street home was permanent.

      . In 1993, the legislature codified portions of the Commission on Human Rights Act into the labor code and transferred the remainder to the government code. See Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 991-1004. Little v. Texas Dep't of Criminal Justice, 148 S.W.3d 374, 377 (Tex.2004). The revisor’s note indicated that the short title, "the Commission on Human Rights Act,” was omitted from the new statute as unnecessary. Id. Additionally, "the Commission on Human Rights was recently abolished and its powers and duties were transferred to the newly-created Civil Rights Division of the Texas Workforce Commission. See Act of May 30, 2003, 78th Leg., R.S., ch. 302, 2003 Tex. Gen. Laws 1279.” Id. This enactment became effective on March 1, 2004. Id. Accordingly, we will not refer to chapter 21 of the labor code as the TCHRA.

      . When asked to describe how she would assist a patient in an emergency, Thomann did not answer directly. She said there are ways to assist patients other than by having to lift them and that she would have protected the patient from harm, called the on-duty nurse or 911. Later, she stated she would not lift a patient. Thomann testified she never had to lift more than twenty pounds at the Park Street home, but admitted that lifting is a central function of the job as house parent when the patient is not ambulatory. Tho-mann also admitted "there are certain things that, as a parent, that I cannot do.”


source: Caselaw Access Project

author: Justice GARZA.

license: Public Domain

text:
    SERVICE CORPORATION INTERNATIONAL, et al., Appellants, v. Daniel LOPEZ and Consuelo Lopez, Appellees. In re Service Corporation; SCI Texas Funeral Services, Inc. D/B/A Buena Vista Funeral Park; and SCI Management Corporation.
    Nos. 13-04-467-CV, 13-04-472-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    April 21, 2005.

      Lisa Powell, Charles C. Murray, Atlas & Hall, McAllen, for appellants/relators.
    Benigno Trey Martinez, Martinez, Barrera & Martinez, David Willis, Law Office of David Willis, Brownsville, for appel-lees/real parties in interest.
    Before Justices RODRIGUEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice GARZA.

In these consolidated proceedings, appellants/relators Service Corporation International, SCI Texas Funeral Services, Inc. d/b/a Buena Vista Funeral Park, and SCI Management Corporation (collectively “SCI”) complain of the trial court’s denial of their motion to compel arbitration. We conditionally grant SCI’s petition for writ of mandamus and dismiss its interlocutory appeal.

I. BACKGROUND

The underlying suit concerns two “pre-need” funeral contracts executed in July 2002 and a third contract executed in November 2002 by SCI and Daniel Lopez, for the benefit of his father, George Lopez. After the death of George Lopez, Daniel Lopez and Consuelo Lopez, the deceased’s widow, brought suit against SCI alleging causes of action for violation of the DTPA, fraud, negligence, breach of contract, breach of warranty, and intentional infliction of emotional distress.

SCI filed a motion to compel arbitration and for abatement of suit pending arbitration, arguing that the claims raised by the plaintiffs are subject to the arbitration provisions in the contracts between SCI and Daniel. Before the trial court, the Lo-pezes advanced three grounds for avoiding arbitration: (1) the arbitration agreement in the November 2002 contract is a contract of adhesion, (2) the arbitration clause is unconscionable, and (3) the contract containing the arbitration clause was signed under duress. The trial court denied SCI’s motion to compel arbitration because the arbitration agreement contained in the purchase agreements was one of adhesion, unconscionable, and signed under duress.

SCI now appeals the trial court’s denial of its motion, claiming that (1) the trial court clearly abused its discretion in denying defendants’ motion to compel arbitration under the Texas General Arbitration Act (“TGAA”), Tex. Crv. Prac. & Rem:Code § 171.001 (Vernon Supp.2004-05), and (2) the trial court clearly abused its discretion in denying defendants’ motion to compel arbitration under Texas common law. SCI has also filed a petition for a writ of mandamus, claiming that the arbitration clause is enforceable under the Federal Arbitration Act (“FAA”). See 9 U.S.C.S. § 1 (2005).

II. PARALLEL PROCEEDINGS

When a party seeks to compel arbitration under both the TGAA and the FAA, it must pursue parallel proceedings: an interlocutory appeal of the order denying arbitration under the TGAA and a writ of mandamus from the denial of arbitration under the FAA. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992) (orig. proceeding); Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 497 (Tex.App.-San Antonio 2000, orig. proceeding).

Our first task is to determine which law applies to the arbitration agreements at issue. The agreements in the present case do not specifically invoke either the FAA or the TGAA, and the trial court made no conclusion as to which act applies.

The FAA “applies to all suits in state or federal court when the dispute concerns ‘a contract evidencing a transaction involving commerce.’ ” Anglin Co., 824 S.W.2d at 269-70 (quoting 9 U.S.C.S. § 2 (2000)); In re Profanchik, 31 S.W.3d 381, 384 (Tex.App.-Corpus Christi 2000, orig. proceeding). The United States Supreme Court has held that the word “involving” in the FAA is broad and the functional equivalent of “affecting,” signaling Congress’ intent to exercise its Commerce Clause power to the fullest. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 268, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); In re L & L Kempwood Assocs., L.P., v. Omega Builders, Inc., 9 S.W.3d 125, 127 (Tex.1999) (orig. proceeding) (per curiam). The transaction must in fact involve interstate commerce. Allied-Bruce Terminix, 513 U.S. at 281, 115 S.Ct. 834. The FAA does not require a substantial effect on interstate commerce; rather, it requires only that commerce be involved or affected. L & L Kempwood Assocs., 9 S.W.3d at 127. A party who alleges interstate commerce may show it in several ways: (1) location of headquarters in another state, (2) transportation of materials across state lines, (3) manufacture of parts in a different state, (4) billings prepared out of state, and (5) interstate mail and phone calls in support of a contract. See Stewart Title Guar. Co. v. Mack, 945 S.W.2d 330, 333 (Tex.App.-Houston [1st Dist.] 1997); see also Anglin, 842 S.W.2d at 270

Seeking to establish the contract’s impact on interstate commerce and thus the applicability of the FAA, SCI tendered the affidavit of its employee, Eduvijes Trevino. In response, the Lopezes argued that interstate commerce was not involved because the entire contract was to be performed in Texas and because none of the arbitration provisions in the contracts between the parties stated that the contract involved interstate commerce.

Whether the parties contemplated that their transaction would substantially affect interstate commerce is irrelevant; if the transaction affects interstate commerce “in fact,” the arbitration provision is governed by the FAA. Allied-Bruce Terminix, 513 U.S. at 281, 115 S.Ct. 834. We conclude that the contracts at issue evidence “transactions involving commerce” and are therefore subject to the FAA. See id. (holding that the FAA applied because in addition to the multi-state nature of Terminix and Allied-Bruce, the termite treating and house repairing material used by Allied-Bruce came from outside Alabama); Kempwood Assocs., 9 S.W.3d at 127 (holding that the contract involved interstate commerce because the parties to the contract resided in different states and the renovation work on the Houston apartments was to be done by a Texas business for Georgia owners); BWI Cos. v. Beck, 910 S.W.2d 620, 622-23 (Tex.App.-Austin 1995, orig. proceeding) (holding that arbitration agreement between employer and employee related to interstate commerce, even though employee only worked and made deliveries in Texas, because employer had facilities in Texas and other states and delivered products across state lines); Lost Creek Mun. Util. Dist. v. Travis Indus. Painters, Inc., 827 S.W.2d 103, 105 (Tex.App.-Austin 1992, writ denied) (holding that agreement between Texas residents, concerning work performed in Texas, related to interstate commerce because paint and epoxy were manufactured outside Texas and contractor’s performance bond was issued by nonresident surety company).

III. MANDAMUS

Mandamus will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992); In re Nestle USA-Bev. Div., Inc., 82 S.W.3d 767, 770 (Tex.App.-Corpus Christi 2002, orig. proceeding). When a trial court erroneously denies a party’s motion to compel arbitration under the FAA, the movant has no adequate remedy at law and is entitled to a writ of mandamus. See EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 88 (Tex.1996) (orig. proceeding) (per curiam).

A party seeking to compel arbitration must present sufficient evidence to establish its right to arbitrate under the FAA. Cantella & Co. v. Goodwin,, 924 S.W.2d 943, 944 (Tex.1996) (orig. proceeding) (per curiam). If it does, and the opposing party does not defeat that right, the trial court must compel arbitration. Id. Because state and federal policies continue to favor arbitration, there is a presumption favoring agreements to arbitrate under the FAA. Id. The trial court’s determination of an arbitration agreement’s validity is a legal question subject to de novo review. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); In re Kellogg Brown & Root, 80 S.W.3d 611, 615 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding).

In Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir.2002), the Fifth Circuit set forth the framework for adjudicating motions to compel arbitration under the FAA. Courts must determine whether the parties agreed to arbitrate the dispute. Id. This determination is made on the basis of “ordinary state-law principles that govern the formation of contracts.” Id. (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). The determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties, and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

In the instant case, SCI met its burden of presenting evidence of three arbitration agreements that govern the dispute between the parties. The Lopezes do not deny the existence of arbitration agreements in the three contracts, nor do they dispute that the issues raised in their petition fall within the scope of the arbitration agreements. However, they do challenge the validity of the arbitration agreement contained in the November 2002 contract, as well as the effect of the arbitration agreements on the claims brought by Consuelo.

A. NOVEMBER 2002 CONTRACT

An agreement to arbitrate is valid, irrevocable, and enforceable unless grounds exist at law or in equity for the revocation of any contract, such as fraud or unconscionability. See 9 U.S.C. § 2 (2005); Allied-Bruce, 513 U.S. at 273, 115 S.Ct. 834.

The Lopezes argue that the arbitration agreement in the November 2002 contract is unenforceable for three reasons: (1) it is a contract of adhesion, (2) it is unconscionable, and (3) the contract was signed under duress. We note that these defenses must specifically relate to the arbitration provision itself, not the contract as a whole, if they are to defeat arbitration. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).

1. Adhesion

The Lopezes argue that the arbitration agreement in the November 2002 contract was not a negotiated term, but merely part of a standardized form contract, which was a contract of adhesion. They state, without citing to authority, that contracts of adhesion will not be enforced unless they are conscionable and within the reasonable expectations of the parties. Texas law defines an adhesion contract as a contract in which one party has absolutely no bargaining power or ability to change the contract terms. See In re H.E. Butt Grocery Co., 17 S.W.3d 360, 370-71 (Tex-App.-Houston [14th Dist.] 2000, orig. proceeding). The Lopezes cite Oakwood in support of their contention that adhesion contracts cannot be enforced. However, in Oakwood, the supreme court stated that adhesion contracts are not automatically unconscionable or void. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex.1999) (orig. proceeding). In other words, the party seeking to avoid the arbitration clause must prove more than that the contract was offered on a take it or leave it basis. See In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002) (orig. proceeding); In re Oakwood, 987 S.W.2d at 574. Consequently, we conclude that the trial court could not have properly denied SCI’s motion to compel arbitration solely on the ground that the arbitration clause was an adhesion contract.

2. Unconscionability

There is nothing per se unconscionable about arbitration agreements. EZ Pawn, 934 S.W.2d at 90. The basic test for unconscionability is whether, given the parties’ general commercial background and the commercial needs of the particular trade or case, the arbitration clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract. In re FirstMerit, 52 S.W.3d 749, 757 (Tex.2001) (orig. proceeding). Uncon-scionability includes two aspects: (1) procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision; and (2) substantive unconscionability, which refers to the fairness of the arbitration provision itself. In re Halliburton Co., 80 S.W.3d 566 at 571. Courts may consider both procedural and substantive unconscionability of an arbitration clause in evaluating the validity of an arbitration provision. Id. at 572.

The Lopezes argue that the arbitration clause is unconscionable because the SCI agent who executed the contract was not instructed as to what an arbitration clause was, failed to disclose the provision or explain its implications, and because the contract resulted from unequal bargaining power. These arguments relate to procedural, rather than substantive, unconscionability. Even taken as true, the Lopezes’ allegations do not amount to procedural unconscionability. See In re Am. Homestar of Lancaster Inc., 50 S.W.3d 480, 489 (Tex.2001) (granting mandamus to compel arbitration, noting the strong policy in favor of arbitration and stating that “perceived uneven bargaining power is not a justifiable reason to hold that arbitration agreements are never enforceable”); In re H.E. Butt Grocery Co., 17 S.W.3d at 371 (“A party who signs a contract containing an arbitration provision does not have to be told about the provision, but is presumed to know the contents of the contract.”). Accordingly, the trial court could not have properly denied SCI’s motion to compel arbitration based on procedural un-conscionability.

3. Duress

The Lopezes’ final defense against the validity of the arbitration agreement is that the November 2002 contract was signed under duress. This issue relates to the contract as a whole and not solely the arbitration . provision. It is therefore an issue to be decided in arbitration. See In re FirstMerit, 52 S.W.3d at 756.

B. Scope op ARBITRATION clause

We now address whether the claims raised by the Lopezes fall within the scope of the arbitration agreement. When the FAA applies, federal law determines whether a dispute is arbitrable. Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995) (orig. proceeding) (per curiam) (applying federal law); Prudential-Bache Sec., Inc. v. Garza, 848 S.W.2d 803, 806 (Tex.App.-Corpus Christi 1993, orig. proceeding). We use federal common law to interpret the arbitration clause at issue. Prudential Sec., Inc., 909 S.W.2d at 899. To determine whether a claim falls within the scope of an arbitration agreement, the court looks at the terms of the agreement and the factual allegations in the petition, not the causes of action asserted. See id. at 900. Generally, if the facts alleged “touch matters,” have a “significant relationship” to, are “inextricably enmeshed” with, or are “factually intertwined” with the contract that is subject to the arbitration agreement, the claim will be arbitrable. See Anglin, 842 S.W.2d at 271; Nestle, 82 S.W.3d at 776; Hou-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205-06 (Tex.App.-Houston [1st Dist.] 1997, orig. proceeding) (citing cases). However, if the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract, the claim is not subject to arbitration. See Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.-El Paso 1995, writ dism’d w.o.j.).

The FAA favors arbitration and any doubts as to whether a claim falls within the scope of an arbitration agreement must be resolved in favor of arbitration. Prudential, 909 S.W.2d at 899. Thus, a court should not deny a motion to compel arbitration “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Id. (quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir.1990)).

The November 2002 contract contains a broad arbitration clause that states in relevant part “by signing this agreement, you are agreeing that any claim you may have against the seller shall be resolved by arbitration....” In their petition, the Lopezes alleged that SCI (1) placed incorrect flowers for viewing, (2) failed to properly prepare the deceased for viewing, (3) did not provide three days of viewing as agreed upon, (4) failed to properly store the deceased in a refrigeration unit, (5) failed to provide a current payoff schedule, and (6) delivered the deceased’s body at the incorrect time. These allegations are sufficiently related to the transaction to be within the scope of the arbitration agreement.

Consuelo also alleged a cause of action against SCI for intentional infliction of emotional distress. The Lopezes argue that Consuelo’s claim is not within the scope the arbitration agreement because she was not a party to any of the contracts and was not a third party beneficiary. The Lopezes cite to MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999) in support of their argument that a court will not create a third party beneficiary contract by implication. They assert that because Consuelo did not sign the contract she is not subject to arbitration because to bind a non-signatory to an arbitration provision in a contract, the intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out.

SCI argues that Consuelo’s claims are for breach of contract and her claims are factually intertwined with the claims of Daniel. SCI reasons that because all the allegations are made by all plaintiffs generally, against all defendants generally, the claims asserted by Consuelo are subject to arbitration. See In re FirstMerit, 52 S.W.3d at 755; In re MacGregor (FIN) Oy, 126 S.W.3d 176, 183 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

To determine whether Consuelo is bound by the arbitration agreement under Texas contract law, we apply the law as interpreted by the state’s highest court, in this case, the Texas Supreme Court. See Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272, 274 (5th Cir.1991). Texas courts have found non-signatories bound to arbitration agreements in two situations: first where the non-signatory sued on the contract; and second, where the non-signatory was a third-party beneficiary of the contract. Fleetwood, 280 F.3d at 1074.

The Lopezes argue that Consuelo is exempt from arbitration because she did not sign the contract. However, a non-signatory can be bound by the terms of an arbitration provision in an agreement if the non-signatory is asserting claims that require reliance on the terms of the written agreement containing the arbitration provision. S.W. Tex. Pathology Assocs. v. Roosth, 27 S.W.3d 204, 208 (Tex.App.-San Antonio 2000, pet. dism’d w.o.j.) (holding that a non-signatory can only be bound by the terms of an arbitration provision in an agreement if the claims asserted require reliance on the terms of the written agreement containing the arbitration provision.). In other words, the non-signatory’s claim must seek to enforce the terms of the written agreement containing the arbitration provision in order for the non-signatory to be bound to arbitrate. Id. The non-signatory cannot enforce specific terms of the agreement while seeking to avoid the arbitration provision. Id.; see In re FirstMerit, 52 S.W.3d at 755-56 (holding that the owners of a mobile home, who received the home as a gift from their parents and were non-signatories to the arbitration agreement between the seller and the parents, were bound by the agreement because “a litigant , who sues based on a contract subjects him or herself to the contract’s terms”). We believe that First-Merit controls the issue before us because Consuelo fully joined Daniel’s contract claims and therefore subjected herself to the contract’s terms, including the arbitration provision. In re FirstMerit, 52 S.W.3d at 755-56. In fact, the Lopezes’ live petition makes no distinction between Daniel’s claims and Consuelo’s claims. Accordingly, we hold that Consuelo’s claim for intentional infliction of emotional distress must be submitted to arbitration.

IV. CONCLUSION

As we have already stated, to defeat arbitration, the defenses must specifically relate to the arbitration agreement itself, not the contract between the parties as a whole. See id.; Prima Paint, 388 U.S. at 403-04, 87 S.Ct. 1801. Because we have found that the Lopezes’ defenses relate to the entire contract and must be decided by the arbitrator, and we have found that their claims are within the scope of the agreement, we conclude that the trial court abused its discretion by denying SCI’s motion to compel arbitration. A party erroneously denied the right to arbitrate under the FAA has no adequate remedy on appeal, and mandamus relief is appropriate. See Anglin, 842 S.W.2d at 272-73.

Accordingly, we conditionally grant the writ of mandamus. The trial court is directed to vacate its order denying arbitration and to issue an order compelling arbitration. We are confident that the trial court will comply promptly. The writ will issue only if this confidence proves misplaced. We dismiss SCI’s interlocutory appeal.

      . This opinion disposes of the appeals in cause numbers 13-04-467-CV and 13-04-472-CV.

      . The three contracts include: the July 2002 Goods and Services contract, the July 2002 Cemetery Lot contract and the November 2002 Goods and Services contract.

      .It is unclear whether the reasoning applied only to the arbitration agreement in the November 2002 contract or to the arbitration agreements in all of the contracts.

      . Trevino averred that, through Buena Vista, SCI sells merchandise and services to out-of-state and international customers. Such items include cemetery, lawn crypt, and mausoleum spaces; interment services; memorials; and related items. Further, many of the goods that Buena Vista sells to Texas residents are purchased or manufactured outside of Texas, such as caskets and grave markers. Buena Vista also utilizes goods purchased or manufactured outside of Texas for the tent set-up used during funeral services, including, but not limited to, the tents, the lowering devices, carpets, and chair covers.

      . See Serv. Corp. Int'l v. Fulmer, 883 So.2d 621, 629 (Ala.2003) (finding that the provision of funeral goods and services is within Congress's commerce power).

      . As evidence of arbitration agreements, SCI produced the July 2002 Goods and Services contract, the July 2002 Cemetery Lot contract and the November 2002 Goods and Services contract signed by Daniel, all of which contain arbitration agreements. The arbitration clauses provide in relevant part: "You agree that any claim, including interpretation of this arbitration clause, shall be submitted to and resolved by mandatory and binding arbitration in accordance with the laws of Texas.” "By signing this Contract, You agree that any claim shall be resolved by arbitration. You further agree to give up your right to a court or jury trial as well as any right to appeal.”

      . In a similar argument, the Lopezes contend that the arbitration agreement should not be enforced because when Daniel signed the contract, it lacked prices, names, or terms. However, these arguments also relate to the contract as a whole and not to the arbitration clause itself. See Prima Paint, 388 U.S. at 403-04, 87 S.Ct. 1801. Therefore, this issue should be submitted to arbitration. See Shearson Lehman Bros. v. Kilgore, 871 S.W.2d 925, 928 (Tex.App.-Corpus Christi 1994, orig. proceeding).

      . The Lopezes’ claim for violations of the DTPA is also subject to arbitration. Statutory causes of action, such as the Lopezes' DTPA claim, have been held to fall within the scope of arbitration agreements. See Anglin, 842 S.W.2d at 270-71 (holding that DTPA claim held subject to arbitration, since FAA preempts DTPA’s non-waiver provisions).

      . On appeal, the Lopezes now assert that only Daniel is suing for breach of contract, but we base our conclusion on the allegations in the petition which do not distinguish Daniel’s claims from Consuelo’s claims.


author: RICHARD H. EDELMAN, Justice.

text:
    COLUMBUS INDEPENDENT SCHOOL DISTRICT, Appellant, v. FIVE OAKS ACHIEVEMENT CENTER, Appellee.
    No. 14-04-00129-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 21, 2005.

      Todd Aaron Clark, Austin, for appellant.
    Kevin Thomas O’Hanlon, Leslie L. McCollom, Austin, for appellee.

      Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

In this accelerated interlocutory appeal, Columbus Independent School District (“CISD”) appeals the denial of its plea to the jurisdiction on the grounds that: (1) Texas Education Code section 11.151 does not provide a waiver of its immunity from suit; (2) a school district cannot waive such immunity by conduct; and (3) Five Oaks Achievement Center (“Five Oaks”) did not adequately exhaust its administrative remedies before filing suit. We affirm.

Background

Five Oaks sued CISD to collect payments allegedly due on a contract to provide special education services. CISD filed a plea to the jurisdiction, claiming immunity from suit and failure to exhaust administrative remedies, which the trial court denied.

Immunity from Suit

Governmental immunity provides immunity from suit to subdivisions of a state, including school districts. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). When a governmental unit contracts with a private party, it thereby waives immunity from liability, but not immunity from suit. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003). As applicable to this case, immunity from suit can be waived only by a constitutional provision or legislative enactment that is expressed in clear and unambiguous language. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695-96 (Tex.2003). A party suing a governmental entity must establish the State’s waiver of immunity from suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A trial court’s ruling on a plea to the jurisdiction based on immunity from suit is reviewed de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The statute upon which Five Oaks relies to provide a waiver of CISD’s immunity from suit is section 11.151 of the Texas Education Code (“section 11.151”):

The trustees of an independent ■ school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands.

Tex. Educ.Code Ann. § 11.151 (Vernon Supp.2004-05) (emphasis added). In Missouri Pacific, the Texas Supreme Court (the “Court”) held that a statute similarly authorizing navigation districts to “sue and be sued” was a “general consent for [the] District to be sued in the courts of Texas in the same manner as other defendants!’ and that the District was therefore a “political subdivision that is always subject to suit by virtue of a general statute.... ” Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970). Based on this conclusion, the Court reversed the decisions of the lower courts that had granted the district’s plea to the jurisdiction based on immunity from suit. Id. at 814.

Thereafter, the Legislature added section 311.034 to the Government Code, providing, “In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2004). However, rather than effecting a change in the law, this provision merely ratified the standard that the Court had previously recognized to be well-established since at least 1942. In addition, the Court has since acknowledged that “sue and be sued” language at least arguably shows intent to waive immunity from suits (against counties), and that “we have little difficulty recognizing the Legislature’s intent to waive immunity from suit when a statute provides that a state entity may be sued or that ‘sovereign immunity to suit is waived.’ ” Wichita Falls State Hosp., 106 S.W.3d at 696-97 (emphasis added). Based on these considerations, and particularly that the Court has not since overturned or limited its holding in Missouri Pacific, we are not at liberty to depart from its holding that “sue and be sued” language, such as in section 11.151, is a clear and unambiguous waiver of immunity from suit. Therefore, we overrule CISD’s first issue and need not address its second issue, challenging any finding of waiver of immunity by conduct.

Exhaustion of Administrative Remedies

CISD’s third issue contends that the trial court lacked jurisdiction because Five Oaks failed to exhaust its administrative remedies before filing suit on its claims. As authority for this position, CISD relies on section 7.057 of the Texas Education Code (the “Code”), which provides, with exceptions not applicable here, that “a person may appeal in wilting to the commissioner if the person is aggrieved by: (1) the school laws of this state; or (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of this state.... ” Tex. Educ. Code Ann. § 7.057(a)(1), (2)(A) (Vernon Supp.2004-05). For this purpose, “school laws of this state” means Titles 1 and 2 of the Code and rules adopted thereunder. Id. § 7.057(f)(2).

District courts have general subject matter jurisdiction over disputes absent a showing to the contrary, such as that Texas law vests exclusive jurisdiction over a matter in an administrative agency. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004). A state agency, such as the Texas Education Agency (the “TEA”), has exclusive jurisdiction where the Legislature has provided a pervasive regulatory scheme that is intended to be the exclusive means of remedying the problem to which the regulation is addressed. Id.

The predecessor statute to the Code provided, among other things, that “[t]he State Superintendent shall be charged with the administration of the school laws.... He shall hear and determine all appeals from the rulings and decisions of subordinate school officers. Based on this provision, civil courts were held to have no jurisdiction over matters relating to the administration of school laws until resort was first made to school authorities. See, e.g., Warren v. Sanger Indep. Sch. Dist., 116 Tex. 183, 288 S.W. 159, 160 (1926). However, even then, such exclusive jurisdiction applied only to matters placed under the supervision of school authorities. Id. Thus, a suit against a school district for breach of contract to buy school equipment was not a matter of administration of school laws that required exhausting administrative remedies before filing suit in district court. Spring Branch Indep. Sch. Dist. v. Metalab Equip. Co., 381 S.W.2d 48, 48 (Tex.1964).

The current version of the Code no longer contains a provision charging the Commissioner (the “Commissioner”) of the TEA (or other state official) with the administration of school laws, but does provide, as did its predecessors, that persons aggrieved by school laws of the State or decisions of school boards pertaining to those laws may appeal to the Commissioner. See Tex. Educ.Code Ann. § 7.057(a). Therefore, to whatever extent any exclusive jurisdiction remains with the Commissioner or TEA under the current Code, it does not extend beyond issues governed by the school laws of the State, as set forth in the Titles 1 and 2 of the Code. In this case, because the pleadings of the parties purport to state no such issues, we see no basis to conclude that this lawsuit falls within any exclusive jurisdiction of the TEA. Accordingly, CISD’s third issue is overruled, and the judgment of the trial court is affirmed.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(8) (Vernon Supp.2004) (allowing interlocutory appeal of an order denying a plea to the jurisdiction); TexR.App. P. 28.1 (providing that appeals allowed from interlocutory orders are to be accelerated).

      . Although not applicable to this case, immunity from suit can also be waived by a governmental entity affirmatively asserting claims in a lawsuit. See Reata Constr. Corp. v. City of Dallas, - S.W.3d -, -, 2004 WL 726906 (Tex.2004).

        .See Wichita Falls State Hosp., 106 S.W.3d at 696; Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980) ("It is a well-established rule that for the Legislature to waive the State’s sovereign immunity, it must do so by clear and unambiguous language. Texas Prison Board v. Cabeen, 159 S.W.2d 523 (Tex.Civ.App.-Beaumont 1942, writ ref'd).”).

      . Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 249-50 (Tex.2002).

      . Because of this disjunctive, we find no basis to conclude that express waivers are only those specifically referring to a waiver of immunity.

      . Act of June 8, 1949, 51st Leg., R.S., ch. 334, 1949 Tex. Gen. Laws 644, repealed by Act of Sept. 1, 1969, 61st Leg., R.S., ch. 889, § 2, 1969 Tex. Gen. Laws 3024.

      . The Code further provides that the TEA "shall conduct hearings involving state school law at the direction and under the supervision of the commissioner.” Tex Educ.Code Ann. § 7.021(b)(3) (Vernon Supp.2004-05).


author: WANDA McKEE FOWLER, Justice. RICHARD H. EDELMAN, Justice,

text:
    NORTHBOROUGH CORPORATE LIMITED PARTNERSHIP, L.L.P., Appellant, v. CUSHMAN & WAKEFIELD OF TEXAS, INC., Appellee.
    No. 14-04-00364-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 21, 2005.

      Mary A. Van Kerrebrook, Houston, for appellant.
    Arthur Val Perkins, Houston, for appel-lee.
    Panel consists of Justices FOWLER, EDELMAN, and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

This appeal arises from a suit Cushman & Wakefield of Texas, Inc. (“Cushman”) filed for lease brokerage commissions allegedly due it from Northborough Corporate Limited Partnership, L.L.P. (“North-borough”). Although both parties moved for summary judgment, the court granted Cushman’s motion. Northborough now appeals both that decision and the trial court’s denial of Northborough’s own motion for summary judgment.

Factual Background

Cushman, the plaintiff below, is a real estate brokerage firm. Northborough owns a Houston office building that was the subject of a lease brokerage commission agreement between Cushman and the building’s former owner, Alliance Enterprises, Inc. This appeal’s factual background is complicated not only by the change in the building’s ownership, but also by the fact that the original lease was renewed and assigned several times. The parties dispute whether the present lease was a “new arrangement” that negated Northborough’s obligation to pay Cush-man’s commissions under a previous lease, and whether Northborough assumed Alliance’s obligation to pay Cushman’s commissions under a subsequent lease agreement.

Cushman and Alliance enter into a commissions agreement (Texaco lease).

In 1988, Alliance agreed to pay Cush-man a real estate brokerage commission if Texaco or any of its affiliates, subsidiaries, or nominees became a tenant of Alliance’s office building. Texaco did become a tenant of the building. The schedule of commissions provided that, if the lease was renewed or extended, or if a tenant leased additional space, Alliance would pay an additional commission to Cushman. The schedule of commissions obligated Alliance to pay Cushman’s commissions in the event Alliance sold its interest in the property, and also obligated Alliance to ensure that the new owner agreed in writing to assume Alliance’s obligation to pay Cush-man’s commissions under the agreement. The parties agree that Alliance fully paid Cushman’s commissions related to the Texaco lease.

Texaco assigns its lease to Star Enterprises (Star lease).

In 1993, Texaco assigned its lease of the office building to Star Enterprises. Star Enterprises was a joint venture between Texaco and Aramco Services. When the original Texaco lease ended in 1994, Alliance entered into a “Renewal and Amendment of Lease” with Star. The Star lease was for a ten-year term beginning August 1, 1994 and ending in August of 2004. Cushman acted as the lease broker for Star and, once again, Aliance agreed to pay Cushman’s commission. Again, the parties agree that Aliance paid Cushman’s commissions while Star was the building’s tenant. Like the original Texaco lease, the Star lease permitted Star to assign its lease, which Star later did.

Alliance sells the building to Northbor-ough.

Four years into the Star lease, North-borough purchased the office building from Aliance. In the purchase agreement, Northborough agreed to assume Aliance’s obligation to pay Cushman’s commissions with respect to the Star lease. Cushman did not represent Alliance or Northbor-ough in connection with the purchase of the office building.

Equiva leases from Northborough (Equiva lease).

In August of 1999, with five years remaining on the Star lease, Star assigned its lease to Equiva, a Texaco joint venture between Texaco and Shell Oil Company. Cushman did not participate in the lease negotiations and, in the Equiva lease, Equiva and Northborough represented they did not have a broker.

Immediately after this, Northborough entered into an “Amended and Restated Lease” with Equiva. At that point, North-borough stopped paying Cushman’s commissions and refused Cushman’s demands to do so.

Procedural History

In 2002, Cushman sued Aliance and Northborough, seeking commissions for the remaining time period on the ten-year Star lease. Aliance was dismissed from the suit because it was dissolved more than three years before Cushman filed suit. Cushman filed a motion for partial summary judgment asserting that North-borough owed it commissions based on the Star lease. The trial court granted Cush-man’s motion for partial summary judgment but denied Northborough’s motion for summary judgment, in which North-borough gave several reasons Cushman could not prevail. In the final judgment, the trial court found that Northborough was liable to Cushman for Cushman’s commissions through August of 2004 — when the Star lease would have ended — and also awarded Cushman reasonable and necessary attorney’s fees. This appeal followed.

Standard of Review

Because both Cushman and Northbor-ough moved for summary judgment and the trial court granted Cushman’s motion and denied Northborough’s, we must determine all questions that were presented to the trial court. FM Props. Oper. Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000) (“When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented.”) (citing Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997)). Each party “bears the burden of establishing that it is entitled to judgment as a matter of law.” City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000) (citing Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993)). When a trial court’s order granting summary judgment does not specify the grounds, we must affirm if any of the summary judgment grounds have merit. FM Props. Oper. Co., 22 S.W.3d at 872 (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)).

Northborough asserts the trial court erred in concluding that Northborough assumed Alliance’s obligation to pay commissions on the Equiva lease. Additionally, Northborough urges us to find that the original lease commission agreement between Alliance and Cushman is void because it lacks a termination date. Alternatively, Northborough argues that, should we find Northborough fully assumed Alliance’s obligations under the original commission agreement and the agreement is enforceable, the trial court erred in granting Cushman’s motion for summary judgment because it raised a fact issue as to whether the Equiva lease was a “new arrangement,” meaning that Cushman would not be entitled to any commission for the Equiva lease.

Cushman contends the original commission agreement is enforceable. Cushman also asserts that Northborough was obligated to pay Cushman’s commissions until the expiration of the Star lease in 2004 because Northborough assumed Alliance’s obligation to do so and because the Equiva lease did not supersede or vitiate the Star lease.

The parties’ arguments require us to construe Cushman’s commission agreement, which no one claims is ambiguous. When we construe a contract, we are to seek the parties’ intent as expressed in the contract. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003) (stating court’s primary concern is to ascertain the parties’ true intentions as expressed in the instrument); Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 743 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (same). We must give effect to all of the contract’s clauses and read them in such a way that any potential conflicts are harmonized. See Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983); see also Derr Constr. Co v. City of Houston, 846 S.W.2d 854, 862 (Tex.App.-Houston [14th Dist.] 1992, no writ) (stating court should examine the entire writing “seeking to harmonize and reconcile the conflicting provisions to the greatest extent possible”) (citations omitted).

Analysis

We will first address whether the original lease commission agreement is void, as Northborough suggests, because it lacks a termination date.

The original lease commission agreement is not void for lack of a termination date.

As Northborough points out, the original lease commission agreement between Cushman and Alliance does not contain an express termination date. Northborough argues that this makes the commission agreement unenforceable. In response, Cushman argues that a termination date is not required, but if it is required, the date is supplied by the.underlying lease. Because we reject North-borough’s argument that an express termination date is statutorily required under the facts of this case as a prelude to recovery, we do not address whether the termination date could be supplied by implication from the underlying lease.

Our determination is guided by section 1101.806(c) of the Real Estate License Act, which governs when a person may sue to recover a commission for the sale of real estate. “A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or a person authorized by that party to sign the document.” Tex. Occ. Code § 1101.806(c). Thus, to be actionable — and, consequently, enforceable — a commission agreement must be “in writing and signed by the party to be charged.” Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 681, 635 (Tex.1997). These code provisions governing the recovery and payment of commissions consider a lease a “sale” and therefore also allow recovery of a commission for a lease. Tex. Occ.Code § 1101.002(5). The commission agreement between Alliance and Cushman clearly satisfies these requirements — the agreement is in writing and is signed by the executive vice president of Alliance.

Northborough, relying on section 1101.652(b)(12) of the Real Estate License Act and Perl v. Patrizi, urges us to find that a broker’s failure to specify a termination date in the commission agreement precludes the broker from suing for commissions. See Tex. Occ.Code § 1101.652(b)(12); Perl v. Patrizi, 20 S.W.3d 76, 80 (Tex.App.-Texarkana 2000, pet. denied). This section, entitled “Grounds for Suspension or Revocation of License,” allows the Texas Real Estate Commission to suspend or revoke a broker’s license if the broker “fails to specify a definite termination date that is not subject to prior notice in a contract.” Tex. Occ.Code § 1101.652(b)(12). Based on this section, another court of appeals has held that a broker cannot enforce a commission agreement if it lacks a termination date. See Perl, 20 S.W.3d at 80 (finding the failure to provide a termination date is a failure to meet a condition precedent that renders the contract unenforceable). We decline to follow Perl for the reasons given below.

First, section 1101.652(b)(12), the section relied on by the Perl court, has nothing to do with the enforceability of a broker’s commission agreement. Instead, it relates solely to the suspension or revocation of a broker’s real estate license. Section 1101.806, on the other hand, lists the requirements for a commission agreement in order for a broker to recover the promised commission.

Second, nothing in section 1101.652 references a broker’s ability to maintain a cause of action. See Tex. Occ.Code § 1101.652. As noted earlier, 1101.652 relates solely to the suspension or revocation of a broker’s real estate license. Id. § 1101.652(b). Yet, section 1101.806 does state the circumstances under which a broker may maintain a cause of action. Id. § 1101.806. As the Texas Supreme Court has noted, “[In section 1101.806 t]he Legislature was quite explicit: a broker may not recover a commission unless the commission agreement is in writing and signed by the party to be charged.” Trammel Crow, 944 S.W.2d at 635. In section 1101.652, we do not find the same legislative mandate. Cf. Tex. Occ.Code § 1101.652(b)(1), (23) and § 1101.806. For these reasons, we disagree with the Perl court and conclude that the commission agreement between Cushman and Alliance met the statutory requirements for an enforceable commission agreement.

Cushman was entitled to commissions on the Star lease.

Next, Northborough claims the trial court wrongly concluded that the Equiva lease obligated Northborough to pay Cush-man real estate brokerage commissions because it assumed Alliance’s agreement to pay the fees. But, the motion for summary judgment did not claim that Cush-man was entitled to broker fees under the Equiva lease and the trial court did not hold that Northborough was obligated to pay Cushman broker fees based on the Equiva lease. The trial court held that Northborough was required to pay broker fees based on the original Texaco lease, which was renewed via the Star lease, and that Northborough assumed Alliance’s obligations under the Texaco and Star leases — including the obligation to pay Cush-man broker fees until July 31, 2004.

In our view, the real question before us is whether Cushman was still entitled to commissions under the Star lease once Northborough executed the Equiva lease. Northborough claims first that when it purchased the building, it did not expressly assume the obligation to pay Cushman broker fees on the Star lease. It then claims that, even if it did assume an obligation to pay Cushman on the Star lease, it still is not obligated to pay Cushman broker fees because the Equiva lease, being a “new arrangement” between Equiva and Alliance, replaced and superseded the Star lease. Thus, Northborough continues, because a “new arrangement” was created and because Cushman was not involved in the negotiation of that arrangement, Cushman was not entitled to recover commissions under the lease.

We find both of these arguments flawed and, as explained below, we reach two conclusions: (1) under the Star lease, Northborough explicitly assumed Alliance's obligations to pay Cushman’s brokerage fees; and (2) the Equiva lease was not a new arrangement that superseded the Star lease and extinguished Northbor-ough’s obligations under it. We consider first the assumption issue.

Northborough explicitly assumed the obligation to pay commissions on the Star lease.

Northborough does not deny that the Star lease contains language obligating Alliance to pay Cushman’s broker fees; it merely maintains that once it purchased the building from Alliance, and entered into the Equiva lease, the contract was not explicit enough to bind it to assume Alliance’s obligation to pay Cushman’s commissions on the Star lease. We conclude otherwise.

Under Texas law, a building’s purchaser must expressly assume the obligation to pay a broker’s commission before the purchaser can be held liable. Regency Advantage Ltd. P’ship v. The Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996) (per curiam). Here, Northborough did expressly assume Alliance’s obligation to pay Cushman’s commissions generated by the Star lease. Two sections of the purchase agreement specifically bind Northborough. First, section 2.1(b) provides that Northborough would assume Alliance’s commission obligations stated with particularity in another section of the agreement: “[Northborough] shall assume [Alliance’s] obligations under the commission agreement described in Section 12.1(h) arising after the Closing Date.” Section 12.1(h) provides that Northbor-ough would be responsible only for leasing commissions owed to Cushman from the Star Lease: “Except for the leasing commission payable to [Cushman] with respect to the Star lease, there are no leasing commissions accrued but unpaid with respect to any Lease or which may become payable at any time prior to the Closing Date.” We find this language sufficiently explicit to prove, as a matter of law, that Northborough expressly assumed Alliance’s obligation to pay Cushman’s commissions for the Star lease.

The Equiva lease did not supercede the Star lease, nor extinguish North-borough’s obligation to pay Cush-man’s commissions under it.

Finally, we address Northbor-ough’s assertion that the Northbor-ough/Equiva lease agreement, which we have called the Equiva lease, was a “new arrangement” that extinguished Alliance’s/Northborough’s obligations under the Star lease. As proof of this, it points to the following sentence contained in the brokerage agreement Alliance executed with Cushman:

If the tenant remains under a new arrangement, then C & W [Cushman] shall not be entitled to a commission for a period greater than the term of the original letting unless, however, C & W [Cushman] participates in the new negotiations.

This sentence, Northborough claims, holds two keys to its claimed release from obligation on the Star lease. First, seizing upon the phrase “new arrangement,” which is not defined in the agreement, it points out that its lease with Equiva involved more space and different parties than the Star lease, making the Equiva lease a “new arrangement.” Second, it notes that Cushman did not participate in the negotiations that culminated in the Equiva lease and thus is not entitled to broker fees. By focusing on this one sentence, however, Northborough (1) ignores the remainder of the commission agreement which clarifies and narrows the “new arrangement” section, and (2) ignores one practical implication of its argument.

First, the “new arrangement” sentence is in a section entitled “Cancellation Clauses.” But this record contains no evidence to suggest that the Star lease was ever cancelled. Paragraph 6 states that a lease is not cancelled “unless the tenant vacates the premises.” That did not happen here; Equiva assumed Star’s position in the Star lease through the “Assignment and Amendment of Lease,” and the premises remained occupied. In fact, at oral argument, counsel for Northborough was unwilling to say that the Star Lease was cancelled.

Second, even if we were to conclude that the Equiva lease somehow can-celled the Star lease, the evidence in this record points to the conclusion that the cancellation would have been by mutual agreement of the parties: representatives for Star, Equiva and Northborough each signed the document by which Star assigned the lease to Equiva, and Equiva and Northborough, the tenant and landlord, executed the “Amended and Restated Lease.” According to Section 6, “[i]f the cancellation is by mutual agreement ... [Cushman] shall be paid a commission for the entire lease term.” The Star lease’s entire term was ten years, or until August of 2004.

In short, nothing in the lease reflects that the Star lease was cancelled. But, even if it were, this record supports the conclusion that it would have been can-celled by mutual agreement of the tenant and landlord. In that event, Cushman would have been entitled to commission payments through August of 2004.

Finally, we note that the practical result of Northborough’s argument, rather than supporting Northborough’s position, militates against it. The logical extension of Northborough’s argument is that it could extinguish its obligation to pay Cushman merely by ignoring the current lease agreement — the Star lease — and entering into a new one with its tenant. Yet, this contract was written to ensure that Cush-man would receive its commissions even if the lease was renewed or extended, even if the lease was assigned, even, in some cases, if the lease was cancelled.

As a result, we reject Northborough’s contention that Cushman was not entitled to commissions because the Equiva lease was a “new arrangement.” The trial court correctly concluded there was no issue of material fact. Cushman was entitled to commissions until the end of the Star lease term despite Star’s assignment to Equiva and Alliance’s assignment to Northbor-ough.

Conclusion

In conclusion, despite the lack of an express termination date in the original agreement, Cushman and Alliance entered into an enforceable commission agreement with respect to the Star lease. Further, Northborough expressly assumed, and is properly held liable for, Alliance’s obligation to pay Cushman’s commission for the duration of the Star lease. Finally, we have determined that the obligation to pay commissions related to the Star lease extended through its ten-year lease term. This obligation was not terminated by Star’s assignment of the lease to Equiva, or by the actions of Equiva and Northbor-ough when they entered into an Amended and Restated Lease agreement. We conclude the trial court properly denied Northborough’s motion for summary judgment and properly granted Cushman’s motion for summary judgment. Having found no error in the trial court’s judgment, we affirm.

EDELMAN, J., concurring.

RICHARD H. EDELMAN, Justice,

concurring.

Because the Texas Real Estate License Act (the “Act”) provides, as a ground for revoking a real estate license, a license holder’s failure to specify a definite termination date in a contract, Northborough contends that the inclusion of such a date in a commission agreement is a statutory prerequisite to recovering a brokerage commission under the Act. Our decision in this case addresses only this specific contention and does not reach the separate issue (not asserted by Northborough) of whether a commission agreement is unenforceable as against public policy if it does not specify such a date.

In addition, preceding its revision in 1997, article 6573a, the predecessor to section 1101.652, stated as the corresponding ground for revocation, “failing to specify in a listing contract a definite termination date which is not subject to prior notice.” Act of Sept. 1, 1991, 72nd Leg., R.S., ch. 553, 1991 Tex. Gen. Laws 1913, repealed by Act of June 1, 2003, 77th Leg., R.S., ch. 1421, § 13, 2001 Tex. Gen. Laws 5020 (emphasis added). In 1997, this language was expanded to “failing to specify in a listing contract or in another contract in which the licensee agrees to perform services for which a license is required under this Act a definite termination date which is not subject to prior notice.” Act of Sept. 1, 1997, 75th Leg., R.S., ch. 839, 1997 Tex. Gen. Laws 2705, repealed by Act of June 1, 2003, 77th Leg., R.S., ch. 1421, § 13, 2001 Tex. Gen. Laws 5020 (emphasis added). Therefore, in 1994, when the Star lease was entered, it was not subject to the termination date requirement because it was not a listing contract.

      . Alliance was Northborough’s predecessor in interest, having sold the building to Northbor-ough in 1998. Alliance was also a defendant below but is not a party to this appeal.

      . The Equiva lease is before us only to enable us to determine if it extinguished Northbor-ough’s obligations to pay commissions under the Star lease.

      . The cases Northborough relies upon are distinguishable. In Lucas, the United States District Court for the Northern District of Texas concluded that a general assumption of obligations was not specific enough to obligate the new landlord to pay the broker’s commission. Harry B. Lucas Co. v. Grand Dallas Warehouse, No. 3:01-CV-0938-M, 2002 WL 1489504, *5 (N.D.Tex. Jul. 9, 2002) (not designated for publication). Here, Northborough specifically assumed Alliance’s obligation to pay Cushman’s commissions in connection with the Star lease. In Duggan, the Dallas court of appeals concluded that the commission agreement’s express language made the broker’s commission contingent on the original landlord owning the building. Duggan v. Northpark Central VEFII, L.P., No. 05-98-00099-CV, 2001 WL 985144, *2 (Tex.App.-Dallas Aug. 29, 2001, no pet.) (not designated for publication). Here, there is no express language in the commission agreement that makes Cushman’s commission contingent upon Alliance being the building’s owner nor upon Star being the building’s tenant.

      . We recognize the Equiva lease contains slightly different terms than the Star lease, specifically additional space and a longer time period. Paragraph three of Cushman’s commission agreement provides the following:
      Where the ultimate terms of a renewal, extension or lease of additional space do not strictly conform to the terms of the option or right in the lease, C & W [Cush-man] shall not be entitled to a commission for any period or for any space in excess of that set forth in the applicable lease provisions unless, however, C & W [Cushman] participates in the new negotiations,
      (emphasis added). The trial court’s judgment awarded Cushman commissions only for the space and time period covered by the Star lease; no additional space or time period covered by the Equiva lease was included.

      . For all practical purposes, that happened in this case, for both Northborough and Equiva are successors in interest who agreed to hon- or the obligations of their assignors; one of the obligations Northborough agreed to assume was the Star lease.