source: Caselaw Access Project

author: FRANK F. DROWOTA, III, JUSTICE BIRCH, Justice,

license: Public Domain

text:
    Robert Glen COE, Movant, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee, at Nashville.
    March 21, 2000.
    See also 17 S.W.3d 193.
   ORDER

The movant, Robert Glen Coe, has filed a motion asking this Court to issue a certificate of commutation pursuant to Tenn. Code Ann. § 40-27-106. In support of the motion, Coe relies upon his filings made with the Tennessee Board of Pardons and Paroles requesting executive commutation. These filings include information recounting the circumstances of his childhood, his mental health records dating from 1975, copies of transcripts of testimony presented at prior proceedings in his case, federal court pleadings and affidavits of three jurors who state that they now would prefer that the movant receive a sentence of life without parole rather than death. He submits that these filings demonstrate his severe mental illness and other extenuating circumstances warranting the issuance of a certificate of commutation.

We recently reviewed the constitutional, statutory, and historical principles governing commutation of death sentences in Workman v. State, 2000 WL 190521 (Tenn.2000) (Anderson, C.J., joined by Holder, J. delivered the decision of the Court; Drowota, J. and Barker, J. filed separate concurring orders; Birch, J. filed a separate order concurring in part and dissenting in part). In that case, we noted that this Court’s only role in clemency decisions is that provided by Tenn.Code Ann. § 40-27-106. Under that statute, the governor may commute the punishment from death to life imprisonment upon the certificate of this Court, “that in its opinion, there are extenuating circumstances attending the case, and that the punishment ought to be commuted.” Id. In Workman, we emphasized that this Court will issue certificates of commutation only when the extenuating circumstances attending the case are based upon the facts in the record or a combination of record facts and new evidence that is un-eontroverted.

After careful review of the motion and the supporting documentation, the majority concludes that under the principles announced in Workman the movant has presented no extenuating circumstances warranting issuance of a certificate of commutation. Justice Barker adheres to the views expressed in his separate concurring order in Workman. Accordingly, the motion is DENIED.

FOR THE COURT:

FRANK F. DROWOTA, III, JUSTICE

ANDERSON, C.J., HOLDER and BARKER, JJ., concur.

BIRCH, J., dissents with separate order.

BIRCH, Justice,

dissenting.

Robert Glen Coe has filed a motion requesting that this Court issue a certificate of commutation as provided by Tenn. Code Ann. § 40-27-106 (1997).

After a painstakingly thorough review of the voluminous record filed in this cause, I remain firmly convicted, as I stated previously in Van Tran v. State, 6 S.W.3d 257 (Tenn.1999) (Birch, J., separately concurring and dissenting) and Coe v. State, 17 S.W.3d 193 (Tenn.2000) (Birch, J., dissenting) that

1. The protocol to determine a prisoner’s competency to be executed, adopted by the majority in Van Tran, violates the Fourteenth Amendment to the United States Constitution, public standards of decency, and public standards of propriety; and
2. The ineffective methodology used by the majority to determine a prisoner’s competency to be executed is one with which I expressly disagree.

It results that the application of this protocol in Coe’s proceedings provides, in the least, an extenuating circumstance that mandates the commutation of his sentence of death.

Because this Court is not of one mind on the commutation issue, I am firmly persuaded that it is my duty to separately address Coe’s request for a recommendation of commutation and to do so on the record.

Now, therefore, in accordance with that duty described above, pursuant to and independent of the enabling statute cited herein, and after a careful consideration of the pertinent parts of the entire record, I do hereby certify to His Excellency, the Honorable Don Sundquist, Governor of the State of Tennessee, that the punishment of death ought to be commuted.

      . In Workman the motion for certificate of commutation was filed as part of a response to the State’s motion to set an execution date. The motion in this case was filed less than a week before the movant's scheduled execution. Unless extenuating circumstances warranting the issuance of a certificate arise after an execution date is set, a more appropriate time for filing a motion for certificate of commutation is when this Court is entertaining the State’s motion to set a date for the prisoner’s execution upon the completion of the standard three-tiered review in the state and federal courts as defined in Coe v. State, 17 S.W.3d 193, 200 n. 3 (Tenn.2000).


author: /s/ E. Riley Anderson E. RILEY ANDERSON, CHIEF JUSTICE ADOLPHO A. BIRCH, Jr., Justice,

text:
    Robert Glen COE, Movant, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee, at Nashville.
    April 3, 2000.
    See also 655 S.W.2d 903.
    Michael E. Moore, Solicitor Gen., Glenn R. Pruden, Asst. Atty. Gen., Nashville, for State.
    Robert Hutton, Glankler Brown, PLLC, Memphis, for Robert Glen Coe.
   ORDER

Robert Glen Coe has filed a “Motion to Rescind Order Setting Execution Date; or in the Alternative for Stay of Execution.” He asks this Court to rescind its order of March 30, 2000, setting his execution for April 5, 2000. In the alternative, he requests that this Court stay his execution so that he can appeal the recent denial of his petition for writ of habeas corpus by the United States District Court.

Coe contends that this Court’s order setting his execution violates the procedures set forth in Van Tran v. State, 6 S.W.3d 257 (Tenn.1999), which, he argues, indicated that this Court would set an execution date only upon motion by the Attorney General. Van Tran addressed only the procedure for initially setting the date for a prisoner’s execution upon exhaustion of the prisoner’s standard three-tier appeals process. See Coe v. State, 17 S.W.3d 191 (Tenn.1999). Once an execution date is initially set, this Court possesses continuing jurisdiction to set a new date should the original date of execution expire as the result of a stay issued by a federal court or other appropriate authority. A second motion by the Attorney General is unnecessary.

Coe further contends that the date set by this Court interferes with the federal courts’ ability to consider his claims “in an orderly and judicious manner.” A request for stay of execution in order to litigate claims in a federal court is more appropriately addressed to that court.

Upon due consideration, a majority of the Court concludes that the motion should be and is hereby DENIED.

FOR THE COURT:

/s/ E. Riley Anderson

E. RILEY ANDERSON, CHIEF JUSTICE

/s/ Frank F. Drowota, III

FRANK F. DROWOTA, III, JUSTICE

Dissenting-See Separate Order

/s/ Adolpho A. Birch, Jr.

ADOLPHO A. BIRCH, JR., JUSTICE

/s/ Janice M. Holder

JANICE M. HOLDER, JUSTICE

/s/ William M. Barker

WILLIAM M. BARKER, JUSTICE

ADOLPHO A. BIRCH, Jr., Justice,

dissenting.

I would grant the petitioner’s “Motion to Rescind Order Setting Execution Date; or in the Alternative for Stay of Execution” filed March 31, 2000.

As expressed in the motion, the Court’s sua sponte setting of an execution six days from the date of that order, and seven days after the denial of the habeas corpus petition in the United States District Court, Middle District, does not allow the petitioner a reasonable opportunity to appeal the District Court’s ruling to the United States Court of Appeals, 6th Circuit, or the United States Supreme Court. See Coe v. Bell, 89 F.Supp.2d 922 (M.D.Tenn.2000). As a matter of fact, six days is even less than the time allotted for a petitioner to respond to a motion to set an execution date in the fairly expedited procedure set out in Van Tran v. State, 6 S.W.3d 257, 267 (Tenn.1999) (“The prisoner will have ten days from the filing of the motion of the State Attorney General to file a response and raise this issue.”).

Accordingly, I would:

(1)grant the petitioner’s motion to rescind this Court’s order setting the execution date for April 5, 2000;
(2) require the Attorney General to file a motion for this Court to set another execution date; and following that motion,
(3) set the execution date in an order which allots a reasonable period of at least fourteen days between the date of that order and the execution date.


text:
    UNITED AGRICULTURAL SERVICES, INC., Plaintiff-Appellee, v. John W. SCHERER, Jr., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 3, 1999.
    Application for Permission to Appeal Denied by Supreme Court March 13, 2000.

      Lenard Hackel, Memphis, for Appellee.
    Richard F. Vaughn, Memphis, for Appellant.
   W. FRANK CRAWFORD, Presiding Judge, W.S.

This appeal involves jurisdiction under the long-arm statute. Defendant/appellant, John W. Scherer, Jr. (Scherer), appeals the order of the trial court awarding plaintiff/appellee, United Agricultural Services, Inc. (Ag Services), damages for breach of contract.

Ag Services is a Tennessee corporation based in Memphis that performs environmental site assessments and related activities. Scherer, a resident of Michigan, is the president of Michigan Apple Corporation, Inc. (Michigan Apple), a foreign corporation doing business in Michigan.

In 1994, Michigan Apple attempted to obtain a loan from American Farm Mortgage Company for the purpose of buying property in Michigan. American Farm Mortgage in turn wanted to sell Michigan Apple’s note to Prudential. Prudential required a Phase I environmental site assessment on the property prior to going through with the deal. Ag Services was one of several companies that the involved mortgage companies used for environmental inspection purposes. A member of Prudential’s mortgage department in Chicago contacted Ag Services in regard to performing a site inspection on the land Michigan Apple wished to purchase.

Ag Services then contacted American Farm Mortgage in Kentucky and was advised that environmental services were needed by Michigan Apple in order to obtain a loan, and that Ag Services should contact Michigan Apple. The president of Ag Services, Roger Hanes (Hanes), then contacted Scherer in Michigan by telephone. Arrangements were made and employees from Ag Services traveled to Michigan to inspect the property on three separate occasions. On each occasion, the Ag Services employees returned to Memphis where they did the analysis, compilation, interpretation, and preparation of a report for use by Michigan Apple in obtaining its loan. The report on the property was completed in September 1994 and specified that clean up of the property was required. Ag Services again traveled to Michigan and performed the clean-up operation, completing it in the spring of 1995.

After clean-up, Ag Services presented a final report, the loan from American Farm Mortgages came through, and Michigan Apple purchased the property. At the time of closing, Ag Services was not paid for the work it had provided. Hanes testified that it is customary for the purchaser of the land to pay the fees for inspection, and at the time of doing the work, he and Scherer, on behalf of Michigan Apple, discussed the fees for the various phases of work. The parties later agreed to a payment plan, and Ag Services mailed Scherer a promissory note which he signed as president of Michigan Apple and personally guaranteed. The note stated in pertinent part:

PROMISSORY NOTE

$36,816.00 MARCH 4,1996

Memphis, Tennessee

FOR VALUE RECEIVED, the undersigned, Michigan Apple Corp. Inc .... promises to pay to the order of United Agricultural Services, Inc., ... the principal sum of Thirty six thousand, eight hundred sixteen dollars ($36,816.00), together with interest thereon from date hereof until paid, at the rate of twelve percent (12%) per annum. Payment to be paid in six monthly installments, ($6,136.00) first payment to be due and payable on March 25, 1996 and final payment due August 25,1996....
John Scherer, Jr., General Manager and Part-Owner, so warrants that he is duly authorized by Michigan Apple Corp., Inc. to sign this note on behalf of the Corporation. This note, also, is secured by the personal guarantee of John Scherer, Jr.
This note is made and executed under, and is in all respects governed by, the laws of the State of Tennessee.

Scherer and Michigan Apple failed to make timely payments on the note, and on October 28, 1997, Ag Services filed suit against Scherer in Shelby County Chancery Court for breach of contract. Scherer filed a motion to dismiss based on lack of in personam jurisdiction by the courts of Tennessee. The motion to dismiss was denied but the chancellor granted Scherer an interlocutory appeal. However, this Court denied the application.

On October 6, 1998, Scherer filed an answer to the complaint, again asserting lack of jurisdiction. After a nonjury trial, the chancellor entered an order on October 28, 1998 awarding a judgment to Ag Services in the amount of $43,416.00 in damages and $4,000.00 in attorneys’ fees. The chancellor found in pertinent part:

That initially there were, contacts made in such a fashion for the underlying contract that would not give rise to jurisdiction to this Court. However, the Court finds that, after the parties continued their discussion about the disagreement on the payment of that underlying contract, the Defendant had communications with the Plaintiff in this cause knowing that the Plaintiff was here in Tennessee, and the Defendant asked the Plaintiff, who was here in Tennessee, to prepare the underlying document that is before the Court today, the promissory note. He knew that that document would be prepared in Tennessee, and it would be sent to him for his signature, which he did.
He, therefore, in this Court’s opinion, had such contact with the state of Tennessee under those circumstances that were at least minimal contacts such that would reasonably place him on notice that by taking that extra act of creating this document to be in the free flow of commerce that it was one that would reasonably cause it to be haled into the state.of Tennessee.
Accordingly, therefore, the Court finds that this Court has jurisdiction over this matter.

Scherer has appealed, and the only issue for review is whether the Shelby County Chancery Court had in personam jurisdiction over him under the Tennessee Long-Arm Statute.

Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

Scherer, as a nonresident of Tennessee, is sued pursuant to the provisions of T.C.A. § 20-2-214(a) (1994), which provide in pertinent part:

20-2-214. Jurisdiction of persons unavailable to personal service in state— Classes of action to which applicable. — (a) Persons who are nonresidents of Tennessee and residents of Tennessee who are outside the state and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from: (1) The transaction of any business within the state;
(6) Any basis not inconsistent with the constitution of this state or of the United States;

In addition, T.C.A. § 20-2-223 (Supp. 1998) provides in pertinent part:

20-2-223. Personal jurisdiction based on conduct. — (a) A court may exercise personal jurisdiction over a person, who acts directly or indirectly, as to a claim for relief arising from the person’s:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against that person.

The Tennessee long-arm statute confers jurisdiction to the full extent allowable under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Southland Express, Inc. v. Scrap Metal Buyers of Tampa, Inc., 895 S.W.2d 335, 338 (Tenn.App.1994).

In determining whether a court may assert in personam jurisdiction over a nonresident defendant, due process requires that the defendant have certain “minimum contacts” with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); J.I. Case Corp. v. Williams, 832 S.W.2d 530, 531-32 (Tenn.1992). The Due Process Clause requires “fair warning that a particular activity may subject [the defendant] to the jurisdiction of a foreign sovereign.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (quoting Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J. concurring)).

Courts recognize two types of in personam jurisdiction: general jurisdiction and specific jurisdiction. Third Nat’l Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989); Shoney’s Inc. v. Chic Can Enter., 922 S.W.2d 530, 537 (Tenn.App.1995). When a state exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the state is exercising “general jurisdiction” over the defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9,104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984). When a state exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the state is exercising “specific jurisdiction” over the defendant. Id. at 414 n. 8, 104 S.Ct. at 1872 n, 8.

For a court to exercise general in personam jurisdiction over a nonresident defendant without violating the requirements of the Due Process Clause, the proof must show that the defendant maintains “continuous and systematic” contacts with the foreign state. International Shoe Co., 326 U.S. at 317, 66 S.Ct. at 159; J.I. Case Corp., 832 S.W.2d at 532. ‘While it has been held in cases ... that continuous activity of some sort within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity, there have been instances in which the continuous corporate operations within a state were thought to be so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” International Shoe Co., 326 U.S. at 318, 66 S.Ct. at 159. There is no basis for general personal jurisdiction in this case.

However, in the absence of general jurisdiction resulting from continuous and systematic contacts with the forum state, specific in personam jurisdiction still may be found when a commercial actor purposely directs his activities toward citizens of the forum state and litigation results from injuries arising out of or relating to those activities. Burger King Corp., 471 U.S. at 472, 105 S.Ct. at 2182; J.I. Case Corp., 832 S.W.2d at 532. In such a case, “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volks ivagen Corp., 444 U.S. at 297, 100 S.Ct. at 567; Shoney’s, Inc., 922 S.W.2d at 536.

When a controversy is related to or “arises out of’ a defendant’s contacts with the forum, the United States Supreme Court has said that a “relationship among the defendant, the forum, and the litigation” is the essential foundation of in per-sonam jurisdiction. Helicópteros Nacio-nales, 466 U.S. at 414, 104 S.Ct. at 1872 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)).

In Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn.1985), the Tennessee Supreme Court faced the question of jurisdiction of a malpractice suit against a Texas lawyer who had prepared an inaccurate deed for the transfer of real estate in Memphis, Tennessee at the request of a Tennessee resident. Id. at 333. The Court stated:

A three-pronged test had been developed to determine the outer limits of personal jurisdiction based on a single act: the defendant must purposefully avail himself of the privilege of acting in or causing a consequence in the forum State; the cause of action must arise from the defendant’s activities there; and defendant’s acts or consequences must have a substantial connection with the forum to make the exercise of jurisdiction reasonable. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968). Subsection (6) [of the Tennessee long-arm statute] changed the longarm statute from a “single act” statute to a “minimum contacts” statute which expanded the jurisdiction of Tennessee courts to the full limit allowed by due process. Shelby Mutual Ins. Co. v. Moore, 645 S.W.2d 242, 245 (Tenn.App.1981). That decision, quoting extensively from Gullett v. Qantas Airways Ltd., 417 F.Supp. 490 (M.D.Tenn.1975), noted that the Mohas-co test was now too restrictive. The Moore court noted that three primary factors are to be considered in determining whether the requisite minimum contacts were present: the quantity of the contacts, their nature and quality, and the source and connection of the cause of action with those contacts. Two lesser factors to be considered are the interest of the forum State and convenience. The Moore court concluded:
The phrase “fair play and substantial justice” must be viewed in terms of whether it is fair and substantially just to- both parties to have the case tried in the state where the plaintiff has chosen to bring the action. In each case, the quality and nature of those activities in relation to the fair and orderly administration of the law must be weighed. As stated above in Qantas, this must involve some subjective value judgment by the courts.

645 S.W.2d at 246.

Masada Inv. Corp., 697 S.W.2d at 334-35. The Masada Court concluded that “[b]y willfully and knowingly choosing to prepare legal documents which would be filed in Tennessee and be of great consequence here, Allen purposely availed himself of the privilege of doing business within this state.” Id. at 335. The Court stated that “Tennessee has substantial interest in the outcome of this litigation and is the most convenient forum since this action involves a Tennessee defendant, WTFF, Tennessee property, and is controlled by Tennessee law.” Id.

In Burger King Corp., the United States Supreme Court stated:

Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this “fair warning” requirement is satisfied if the defendant has “purposefully directed” his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790-(1984), and the litigation results from alleged injuries that “arise out of or relate to” those activities, Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414,104 S.Ct. 1868,1872, 80 L.Ed.2d 404 (1984).... And with respect to interstate contractual obligations, we have emphasized that parties who “reach out beyond one state and create continuing relationships and obligations with citizens of another state” are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Ass’n. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950). See also McGee v. International Life Insurance Co., 355 U.S. 220, 222-223, 78 S.Ct. 199, 200-201, 2 L.Ed.2d 223 (1957).

In defining when it is that a potential defendant should “reasonably antici-paté” out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283 (1958):

“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

This “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts, Keeton v. Hustler Magazine, Inc., 465 U.S. at 774, 104 S.Ct. at 1478; World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 299, 100 S.Ct. at 568, or of the “unilateral activity of another party or a third person,” Helicópteros Nacionales de Colombia, S.A. v. Hall, supra, 466 U.S. at 417, 104 S.Ct. at 1873. Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State. McGee v. International Life Insurance Co., supra, 355 U.S. at 223, 78 S.Ct. at 201; see also Kulko v. California Superior Court, supra, 436 U.S. at 94, n. 7, 98 S.Ct. at 1698, n. 7. Thus where the defendant “deliberately” has engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, 465 U.S. at 781,104 S.Ct. at 1481, or has created “continuing obligations” between himself and residents of the forum, Travelers Health Ass’n. v. Virginia, 339 U.S. at 648, 70 S.Ct. at 929, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.

Burger King Corp., 471 U.S. at 472-76,105 S.Ct. at 2182-84.

In the present case, the trial court found that the initial interaction between the parties to this suit involving the land assessment report and subsequent cleanup did not meet the requirements for minimum contacts to allow the courts of Tennessee jurisdiction. However, the trial court also found that subsequent to the initial interaction, the parties entered into a contract whereby Scherer knew Ag Services was located in Tennessee, and knew the promissory note would be prepared in Tennessee. These factors, the trial court found, were sufficient to satisfy the minimum contacts requirement, and give Tennessee courts jurisdiction over Scherer.

Technically, we agree with the trial court’s finding as it pertains to Scherer in regard to initial interactions of the parties. The proof in this case is that Ag Services and Michigan Apple, acting through Scherer, made an arrangement whereby Ag Services would perform a service in connection with the environmental requirements necessary for a loan that Scherer’s corporation was trying to obtain. The work contracted for required visits to Michigan but more importantly Ag Services did the field work in Michigan then returned to its office in Memphis to perform necessary analyses, compilations, interpretations, and other work in order to prepare and submit the necessary reports. It is undisputed that this work was all done in the Memphis office. This case is somewhat analogous to the factual situation in Bond v. Montego Bay Dev. Corp., 405 F.Supp. 256 (W.D.Tenn.1975). In that case, Bond, an architect, contracted to perform architectural services for the defendant. The contract was signed by the defendants in Maryland, and the architect went to Maryland for the on-site work. However, the architect returned to his Memphis office to prepare the plans and specifications for this out-of-state project. Although no representative of the defendants ever came to the State of Tennessee, the Court noted that it was foreseeable by the parties that at least a substantial part of the work would be performed in the Memphis office. The Court said:

That no representative of the defendants was ever physically in Tennessee is not a controlling consideration. Mohasco, supra at 382. As stated in Mohasco, supra at 382-383: ‘... business is transacted in a state when obligations created by the defendant or business operations set in motion by the defendant have a realistic impact on the commerce of the state; and the defendant has purposefully availed himself of the opportunity of acting there if he should have reasonably foreseen that the transaction would have consequences in that state.’ Here, a business transaction set in motion by defendants had a realistic, foreseeable and considerable impact on commerce in Tennessee. Thus, the first criterion of Mohasco is met, that defendants have purposefully availed themselves of the privilege of acting or causing a consequence in the forum state.

405 F.Supp. at 259-260.

Admittedly, in the instant case the contract was between the foreign corporation and Ag Services, but the defendant, Scherer, was part and parcel of the negotiations and activities leading to the contract. Scherer acted as agent for the corporation and his action created a consequence in Tennessee. Although Scherer could not be subjected to this jurisdiction for his activity in negotiating the contract as agent, the corporation would meet the minimum contacts test.

However, there is a more compelling reason for establishing personal jurisdiction over Scherer. Michigan Apple’s note paid for the services under the contract and was guaranteed by the defendant Scherer. The note specifically provided for payment in the State of Tennessee. Thus,. Scherer guaranteed the payment of sums to be paid in Tennessee by virtue of the note. This comes within the provisions of T.C.A. § 20-2-223(a)(2) as a contract to supply “things” in this state.

The claim for relief by Ag Services arises from the default in the payment of this note. See T.C.A. § 20-2-223(b). The note was prepared in Tennessee, is governed by Tennessee law by the terms thereof, and payments were to be made in Tennessee. We believe this satisfies the requirement of T.C.A. § 20-2-223.

The judgment of the trial court is affirmed. Costs of the appeal are assessed against the appellant. The case is remanded to the trial court for such further proceedings as may be necessary.

HIGHERS, J., and LILLARD, J„ concur.

      . It was disputed whether Scherer contacted Ag Services first or vice-versa. However, Scherer by affidavit stated that Ag Services initially contacted him. Roger Hanes, president of Ag Services, testified at trial that he was unsure whether he contacted Scherer first or not.


author: TOM GRAY, Justice. BILL VANCE, Justice,

text:
    ALEDO INDEPENDENT SCHOOL DISTRICT, Appellant, v. CHOCTAW PROPERTIES, L.L.C., et al., Appellees.
    No. 10-99-239-CV.
    Court of Appeals of Texas, Waco.
    March 22, 2000.

      Thomas P. Brandt, Cathlynn H. Cannon, Fanning, Harper & Martinson, Dallas, for appellant.
    Donald A. Ferrill, Andrew L. Wambs-ganss, Brown, Thompson, Pruitt & Peterson, P.C., Fort Worth, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

A school district denied children admittance to its schools based on the location of the children’s residence. The parents sued the seller of the residential property for misrepresenting the location of that property. Within the same action, the seller sued the school district for a declaratory judgment. The school district filed a plea to the jurisdiction which the trial court denied. The school district appealed. We affirm the trial court’s order.

Factual Backgkound

This action stems from the sale of property by Choctaw Properties (Choctaw) to the Cunningham family upon the alleged representation that the property was located within the boundaries of the Aledo Independent School District (Aledo). . The Cunninghams built a residence on the property, but their children were denied admittance to Aledo’s schools. The Cun-ninghams sued Choctaw for various theories including misrepresentation of the school district in which the property was located.

Choctaw filed a third party petition against Aledo alleging the school district was estopped from denying that the property was within its boundaries and that Aledo breached its agreement with Choctaw that the children residing on the property would attend Aledo’s schools. Aledo filed a plea to the jurisdiction which was denied. Aledo now brings this interlocutory appeal pursuant to the Texas Civil Practice and Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2000).

Applicable Law

Subject matter jurisdiction is essential to the authority of a court to decide a case. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993); Bland Ind. School Dist. v. Blue, 989 S.W.2d 441, 445 (Tex.App. — Dallas 1999, pet. granted). The petitioner in a lawsuit must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause of action. Texas Ass’n of Bus., 852 S.W.2d at 446. A plea to the jurisdiction is the vehicle by which a party contests the trial court’s authority to determine the subject matter of a cause. Bland, 989 S.W.2d at 445.

The trial court must base its decision whether to grant or deny a plea to the jurisdiction solely on the allegátions in the petitioner’s pleadings. Firemen’s Ins. Co. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App. — Austin 1995, writ denied). Where the pleadings do not affirmatively demonstrate an absence of jurisdiction, a liberal construction of the pleadings in favor of jurisdiction is appropriate. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996); Peek v. Equipment Service Co. of San Antonio, 779 S.W.2d 802, 804 (Tex.1989). Whether a trial court has subject matter jurisdiction over a cause is a question of law and is reviewed de novo. Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App. — Houston [1st Dist.] 1999, pet. denied), citing, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In our de novo review, we also base our decision on the allegations in the pleadings and accept factual allegations as true. Firemen’s, .909 S.W.2d at 542. However, we are not bound by legal conclusions nor by any illogical factual conclu-. sions drawn from the facts pled. Id.

Neither party has raised the propriety of whether it is appropriate to challenge or take an interlocutory appeal to only some issues or claims rather than the entire case. Traditionally, sustaining a plea to the jurisdiction requires dismissal of the entire cause of action. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex.1985); City of Cleburne v. Trussell, 10 S.W.3d 407, 409-10 (Tex.App. — Waco 2000, n.p.h.). If the district court has jurisdiction of any claim as alleged in a reasonable interpretation of the plaintiffs petition, then the trial court has jurisdiction of that claim and over that particular defendant; and an order denying a plea to the jurisdiction should properly be affirmed. City of Cleburne, at 409-10 (the granting of a plea to the jurisdiction on the basis that some of the damages pled are not recoverable would be erroneous); Blum v. Restland of Dallas, Inc., 971 S.W.2d 546, 549 (Tex.App. — Dallas 1997, no pet.) (because the trial court had jurisdiction over at least part of the ease, denial of plea to the jurisdiction was proper). We believe it does not serve the legislative purposes for which interlocutory appeals of pleas to the jurisdiction were allowed to fragment the appeal on less than the entire case against a defendant. In this instance Aledo has alleged that the district court does not have jurisdiction of any of Choctaw’s claims against Aledo; thus, the interlocutory appeal is proper. However, if we determine that the trial court has jurisdiction of any claim, but not all the claims, affirmance of the trial court’s denial of the plea to the jurisdiction is the proper result.

Pleadings

In its Second Amended Third Party Petition, Choctaw alleges:

G.

Defendants would show that AISD has collected and accepted ad valorem taxes on the property (“Property”) that is the subject of this cause of action. This caused Defendants to believe that the Property was in the Aledo Independent School District’s boundaries. Defendants relied on this belief to their detriment. AISD is now estopped to deny that the Property is within its boundaries. Defendants request that this Court enter a final judgment or decree declaring that the Property is within AISD’s boundaries and declaring that the school aged children residing at the Property shall attend AISD schools. Defendants further request that the Court award costs and reasonable and necessary attorneys (sic) fees as are eq-uitáble and just.

H.

Defendants would show that prior to April 2, 1996, they have paid ad valorem taxes on the Property to AISD. By letter dated April 2, 1996, AISD agreed that the children residing at the Property will attend AISD schools. Now AISD asserts that it will not allow the children residing at the Property to attend AISD schools. AISD’s breach of its agreement has proximately caused damages to Defendants and may continue to cause damages to Defendants in the future. Defendant’s (sic) would further show they are entitled to an award of attorney’s fees and costs pursuant to Texas Civil Practice & Remedies Code ann. § 38.001 et seq.

In response to Choctaw’s petition, Aledo filed a plea to the jurisdiction, in which it identified four theories upon which the trial court could determine it did not have subject matter jurisdiction over Choctaw’s claims. Those four theories were set out as follows:

1. Whether this [trial] Court has jurisdiction to consider Choctaw Properties’ declaratory judgment action because Choctaw ' Properties has no standing to bring it.
2. Whether this [trial] Court has jurisdiction to consider Choctaw Properties’ declaratory judgment action because the relief requested would not settle all of the issues among the parties.
3. Whether this [trial] Court has jurisdiction to consider Choctaw Properties’ declaratory judgment action because Choctaw Properties is improperly asking the Court for a determination of fact.
4. Whether this [trial] Court has jurisdiction to consider Choctaw Properties’ declaratory judgment action because Choctaw Properties has no contractual relationship with Aledo ISD.

Aledo interprets Choctaw’s petition as a suit on behalf of the children living on the property to require their attendance at Aedo’s schools. Aedo also claims that Choctaw is, in essence, asking the trial court to transfer .the children to Aedo’s schools or change the district boundaries to include the property so that the children may attend Aedo’s schools. Choctaw argues that Aedo misconstrues their third party petition. Interpreting the pleadings liberally in favor of jurisdiction, we agree that Aedo has misconstrued the claims of Choctaw.

TRANSFER OR SWAP

In its first three issues, Aledo contends that the trial court has no jurisdiction over the cause because Choctaw is requesting a transfer of the children and failed to exhaust its administrative remedies. In its fourth issue, Aledo claims Choctaw did not exhaust its administrative remedies through the Texas Education Code to alter the district boundaries or transfer the children to Aledo’s schools before resorting to the courts for relief. Choctaw denies they are asking the trial court to either transfer the children or change the district’s boundaries and thus, had no administrative remedies to exhaust.

Reading Choctaw’s petition and taking its factual allegations as true, we do not interpret the pleadings in the same manner as Aledo. Within the four corners of the petition, we believe Choctaw is primarily pleading for a determination that: (1) the property is in the Aledo school district; (2) that Aledo is estopped from refusing to admit the children into their schools when it collected taxes on the property; and (3) that Aledo contractually agreed the children resided in the school district and is breaching that agreement by refusing to allow them to attend school.

A portion of Choctaw’s pleadings could be construed as a request to compel a transfer or to alter the district boundaries. However, another reasonable construction is that Choctaw wants a judicial declaration that the property is in Aledo’s district and, alternatively, that Aledo breached its contract with Choctaw; two claims over which the district court has jurisdiction. We will not stretch Choctaw’s pleadings to include an action to compel a transfer of the children to the Aledo school district or a request for a change in the district’s boundaries.

We are obligated to construe the pleadings in favor of jurisdiction. Continental Coffee, 937 S.W.2d at 449. We believe under a reasonable reading of the pleadings, Choctaw has not limited then-requested relief to a transfer or alteration of the district boundary claim. Aledo cannot prevail on a jurisdictional challenge to a claim for relief that has not been raised by Choctaw. See Langston v. Eagle Pub. Co., 719 S.W.2d 612, 628 (Tex.App.—Waco 1986, writ refd n.r.e.) (trial court cannot enter, appellate court cannot affirm, summary judgment on unpled cause of action). The trial court has jurisdiction to declare that the property is in Aledo’s district and has jurisdiction over a claim for breach of contract. Aledo’s first through fourth issues are overruled.

Standing

In its fifth issue, Aledo argues that Choctaw has no standing to bring its third party action. Aledo assumes that Choctaw is bringing its action on behalf of the Cunningham children. Again, Aledo gives Choctaw’s pleadings a construction that suits their purposes and refuses to acknowledge an alternative interpretation that would give the trial court jurisdiction. As explained previously, we believe Choctaw has plead for a determination that the property is in the Aledo school district; that Aledo is estopped from refusing to admit children living on the property into their schools when it collected taxes from Choctaw on the property; and that Aledo agreed with Choctaw that the property was in the school district and that children living there would attend Aledo’s schools, and is breaching that agreement by refusing to allow the children that live there to attend their school.

While a determination that the property is in Aledo may affect where the children go to school, none of these claims are brought on behalf of any specific child. Because of the suit against Choctaw over representations regarding where the property was located and which schools the children living there would attend, Choctaw has an interest in a judicial determination of whether the property is located in Aledo’s district and for damages if Aledo made and breached a contract. Aledo cannot reshape Choctaw’s pleadings and then claim a jurisdictional defect on a cause of action not raised by Choctaw. Its fifth issue is overruled.

Same PaRties — DiffeRent Lawsuit

In its sixth issue, Aledo argues that Choctaw is litigating the same issues in its suit against Aledo that are being litigated in a separate suit between the Cunninghams and Choctaw, that being, whether Aledo would permit the children to attend school in Aledo even though they reside in the Granbury ISD. Aledo claims that because two lawsuits raise the same issues, declaratory relief is improper.

The Texas Supreme Court has suggested that trial courts should decline jurisdiction in a declaratory judgment action where it would deprive the real plaintiff of the traditional right to choose the time and place of suit. Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985). However, the controversies between the Cunninghams, Choctaw and Aledo are all combined in one lawsuit, and the real plaintiff is the one who chose the forum. Aledo’s sixth issue is overruled.

Issues of Fact

In its seventh issue, Aledo contends the trial court has no jurisdiction over the third party action because Choctaw improperly asks the trial court to resolve issues of fact in its request for a declaratory judgment.

The purpose of the Uniform Declaratory Judgments Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (Vernon 1997). It is to be liberally construed and administered. Id. There is no provision in this act which forbids a determination of a fact question by declaratory judgment. In actuality, the act contemplates the resolution of factual questions by declaratory judgment. Specifically, Section 37.007 provides:

If a proceeding under this chapter involves the determination of an issue of fact, the issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

Tex Civ. Prac. & Rem.Code Ann. § 37.007 (Vernon 1997). Whether the determination of a pure fact question may or may not be a proper remedy from a declaratory judgment, is not jurisdictionally dispositive of the cause of action. Aledo’s seventh issue is overruled.

Contractual Relationship

In its final issue, Aledo claims that the trial court does not have jurisdiction over Choctaw’s third party action because there is no contractual relationship between Choctaw and Aedo. Choctaw asserts in its pleadings that there was an agreement between the parties. This is not an' unreasonable factual conclusion from the pleadings, and we must accept it as true for this proceeding. See Firemen’s, 909 S.W.2d at 542. Neither Ale-do’s, nor Choctaw’s pleadings affirmatively demonstrate lack of jurisdiction to assert a claim for breach of contract, and we are obligated to construe the pleadings in favor of jurisdiction. See Continental Coffee, 937 S.W.2d at 449. This may be an appropriate claim to dispose of by summary judgment but not by a plea to the jurisdiction. Aledo’s eighth issue is overruled.

Conclusion

This opinion should not be construed as barring Aledo from reasserting its plea to the jurisdiction if the claims over which the trial court does have jurisdiction are disposed of by summary judgment or some other means. Additionally, special exceptions may be necessary to compel Choctaw to clarify in its pleadings that it is not seeking any relief for which an administrative remedy is provided and which Choctaw failed to exhaust prior to bringing this suit. Claims for which there are administrative remedies include a transfer of specific children or modification of district lines. Having overruled all of Aledo’s issues, the trial court’s denial of Aledo’s plea to the jurisdiction is affirmed.

Justice VANCE dissenting opinion.

BILL VANCE, Justice,

dissenting.

No matter how Choctaw casts its pleadings in this case, it can be seeking one of only three possible remedies: (1) it may be asking that the court redraw two school districts’ boundaries if the Cunningham’s residence is actually outside AISD; (2) it may be asking the court to resolve a disputed fact to find that the Cunningham’s residence is actually inside AISD’s boundaries, or (3) it may be asking that the court order that the Cunningham’s children be transferred from Granbury I.S.D. to AISD. The Education Code provides an administrative remedy to process each of these requests. Thus, I believe that Choctaw was required to exhaust its administrative remedies before turning to the courts for relief. Its failure to exhaust the available administrative remedies prevents the district court from assuming jurisdiction over AISD and AISD’s plea to the jurisdiction should have been granted. Because the majority holds otherwise, I respectfully dissent.

The underlying controversy fundamentally involves where the Cunninghanfs children will attend school. Which school district a child attends is specifically addressed in the Education Code. Tex. Educ. Code Ann. §§ 13.051, 25.001, 25;035, 25.036 (Vernon 1996 & Supp.2000). If by its request that the court “declare[] that the [Cunningham’s residence] is within AISD’s boundaries and the school age children residing at the [Cunningham’s residence] shall attend AISD schools,” Choctaw is asking that the court redraw the boundaries of AISD, then it is presenting a request that the court usurp the authority granted to the boards of trustees of AISD and Granbury I.S.D. by section 13.051 of the Education Code. Id. § 13.051(a). If by this request Choctaw is asking the court to find as a factual matter that the AISD school board has improperly denied admission to a student who resides within its boundaries, then Choctaw is claiming that AISD is violating section 25.001(b) of the Education Code. Id. § 25.001(b). In both instances, the original decision is assigned to the boards of trustees by the Education Code. Id. §§ 13.051(a), 25.001(b). And under either, Choctaw’s relief from an adverse decision lies through the Commissioner of Education under section 7.057 of the Education Code. Id. §§ 7.057(a)(2)(A), 13.051©; Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 200-01 (Tex.App.— Waco 1998, pet. granted); De Leon v. Harlingen Consol. Indep. Sch. Dish, 552 S.W.2d 922, 927-28 (Tex.Civ.App. — Corpus Christi 1977, no writ).

Choctaw’s request that the court declare that “the school age children residing at the [Cunningham’s residence] shall attend AISD schools” could be granted without affecting the school district boundaries. If by this request Choctaw is asking that the court order the Cunningham’s children transferred to AISD from Granbury I.S.D., it has again presented a request that the trial court usurp the authority of the two school boards. Tex. Educ.Code Ann. § 25.035. If, on the other hand, Choctaw claims that AISD is estopped from voluntarily accepting the Cunningham’s children into its schools, it is claiming that AISD has violated section 25.036. Id. § 25.036; see Palmer v. District Trustees of Dist. No. 21, 289 S.W.2d 344, 347 (Tex.Civ-App. — Texarkana 1956, writ refd n.r.e.). Whether review is available in the first instance when transfer is denied is open to question, but it is clear that Choctaw’s petition does not allege the facts necessary to confer jurisdiction on the district court for an appeal of an adverse decision under section 25.035. Tex. Educ. Code Ann. §§ 25.034(f)(2), 25.035. Here, a claim that AISD is violating section 25.036 must be presented to the Commissioner of Education because whether AISD is es-topped to deny consent is a question of fact. Id. § 7.057; Upchurch v. Albear, 5 S.W.3d 274, 277 (Tex.App. — Amarillo 1999, no pet.); Gibson, 971 S.W.2d at 200-01; Donaldson v. Lake Vista Community Improv. Ass’n, 718 S.W.2d 815, 818 (Tex.App. — Corpus Christi 1986, writ refd n.r.e.).

Subject to certain exceptions not relevant here, a party must exhaust its administrative remedies before turning to the courts. Gibson, 971 S.W.2d at 201. The failure to exhaust administrative remedies is a jurisdictional defect in a proceeding. Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998); Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 375 (Tex.App. — Corpus Christi 1999, no pet.). We are responsible for ensuring that we have jurisdiction over a given proceeding, even if we must do so sua sponte. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); McLendon v. Texas Dept. of Public Safety, 985 S.W.2d 571, 573 (Tex.App. — Waco 1998, pet. filed).

I conclude that Choctaw was required to pursue its administrative remedies before turning to the courts for relief and that its failure to do so in this proceeding deprives the courts of subject matter jurisdiction. Thus, I believe we should reverse the order denying AISD’s plea to the jurisdiction and remand the cause with instructions to dismiss AISD as a party. Because the majority fails to do so, I dissent.

      . We have some doubt that these issues were properly presented to the trial court for resolution. Having failed to present them to the trial court preserves nothing for our review. Tex.R.App. P. 33.1. In the interest of justice and judicial economy, we will exercise our discretion and address them.

      . Apparently the location of the property in relation to the school district lines has not been agreed upon. It appears from the plead-tags that Choctaw intends to attempt to establish that the physical location of the property is actually in the Aledo Independent School District. By the use of on-the-ground surveys identifying the boundary line of the two school districts and the property at issue, this should be a relatively easy factual determination. Once this type of evidence is obtained, a summary judgment, not a plea to the jurisdiction, on this claim may be proper.

      . The Tyler Court of Appeals has held that if a factual dispute is the only issue to be resolved, a declaratory judgment is not the proper remedy. Emmco Ins. Co. v. Burrows, 419 S.W.2d 665, 671 (Tex.Civ.App. — Tyler 1967, no writ). However, this statement has been criticized as dicta from a very narrow interpretation of the Declaratory Judgment Act. Hext v. Price, 847 S.W.2d 408, 416 (Tex.App. — Amarillo 1993, no pet.).

      . The claim that Aledo is estopped from refusing to admit the children living on the properly into Aledo’s schools because Aledo had collected taxes on the property may be such a request. However, until the meaning is clarified by discovery or special exceptions, it could be another way to restate the other two theories: 1) that the property is in Aledo's district, or 2) that Aledo contractually agreed that the children living on the property would attend-Aledo’s schools and has breached that agreement.

      . Section 25.035 refers to sections 25.032, 25.033 and 25.034 for the procedure governing a request for a transfer between school districts. Tex. Educ.Code. Ann. § 25.035 (Vernon 1996). Section 25.034 provides that "the decision of the board ... is final unless the student ... files exception to the decision of the board as constituting a denial of any right of the student guaranteed under the United States Constitution.” Id. § 25.034(e). There is no allegation in the record that the refusal of AISD to admit the Cunningham’s children implicates their constitutional rights. Thus, to the extent that Choctaw claims that the children should be transferred under section 25.035, the board’s decision may be "final.”


author: NELDA V. RODRIGUEZ, Justice.

text:
    CITY OF ROBSTOWN, Noe Garza, Julian Olivera, J.B. Talley, and Jorge Luis Aguilar, Appellants, v. Primitivo RAMIREZ, Individually and Michelle Ramirez, by and through her next friend, Primitivo Ramirez, Appellees.
    No. 13-99-738-CV.
    Court of Appeals of Texas, Corpus Christi.
    March 31, 2000.
    Rehearing Overruled May 11, 2000.

      Robert J. Sigler, Clay E. Coalson, Meredith, Donnell & Abernethy, Corpus Christi, Karen D. Matlock, Asst. Atty. Gen., Austin, for appellants.
    Gail D. C. Dorn, William H. Berry, Jr., Corpus Christi, for appellees.
    Before Justices DORSEY, CHAVEZ, and RODRIGUEZ
   OPINION

NELDA V. RODRIGUEZ, Justice.

This is an accelerated appeal from the denial of a summary judgment based on the affirmative defense of immunity. See Tex. Civ. Prac. & Rem.Codb Ann. § 51.014(a)(5) (Vernon Supp.1999). We affirm.

Appellees Primitivo Ramirez, individually and on behalf of minor Michelle Ramirez, and Librada Ramirez filed suit against Appellants the City of Robstown (City), several of its officers, and Jorge Luis Aguilar of the Texas Department of Public Safety for various torts, violations of rights under the United States and Texas Constitutions, and claims under the Texas Tort Claims Act arising from the execution of a search warrant. ' Appellants filed motions for summary judgment on the grounds of, inter alia, official and sovereign immunity. The trial court denied the motions. By two issues, the City and its officers complain the trial court erred in denying their motion for summary judgment based on the grounds of official and sovereign immunity. By three issues, Aguilar contends the trial court erred in denying his motions for summary judgment because he was entitled to qualified and official immunity and because no cause of action exists under the Texas Constitution for a constitutional tort.

The summary judgment evidence reveals Officer J.B. Talley of the Robstown Police Department obtained information from a confidential informant that appel-lees’ son, Arturo Ramirez, was in possession of cocaine and heroin at appellees’ residence. Talley contacted Officer Jorge Luis Aguilar of the Texas Department of Public Safety for assistance in the investigation, and Aguilar escorted the informant to the location where the informant had seen Arturo in possession of the contraband. The informant identified a structure at the rear of 1010 Ohio Street.

•A search and arrest warrant was subsequently issued to search 1010 Ohio Street, rear, Robstown, Nueces County for cocaine and heroin. Appellees’ actual address, however, was 1013-B Indiana Street. Several Robstown police officers and Aguilar executed the warrant by en-termg the back door of appellees’s residence, which faced Ohio Street, with their guns drawn. In executing the warrant, the officers pushed aside Librada Ramirez, an elderly woman, while she was standing on the porch, and forced their way into the house. An officer found Primitivo Ramirez, who was married to Librada and was also elderly, in his bedroom and pointed a gun at him, grabbed his arms, and handcuffed him. Primitivo was on his bed, and when he attempted to get up, the officer held him down on the bed. Primiti-vo was then taken to the kitchen, and the handcuffs were removed. According to Primitivo, the handcuffs were on him for eight to ten minutes.

Two officers also entered the bedroom of Michelle Ramirez, who was fourteen years old. One of the officers pointed his gun at her, and told her not to move. The officer holstered his gun after Michelle sat on her bed. The officer then told her to close the curtains because people were looking inside, and she did so. One or both of the officers searched Michelle’s room for approximately ten minutes. The officers never touched her. In total, the officers searched appellees’ home for approximately twenty to thirty minutes and left the home in a disheveled state. Arturo was not at the premises and no cocaine or heroin was found. Appellees claim they suffered fright, nervousness, and humiliation as a result of the search.

Appellees originally filed suit in the United States District Court for the Southern District of Texas, which granted partial summary judgment in favor of appellants as to all federal claims and some state claims. The court dismissed appel-lees’ remaining state claims without prejudice. The United States Court of Appeals for the Fifth Circuit affirmed the summary judgment. Appellants bring this interlocutory appeal from the denial of motions for summary judgment from the 214th Judicial District Court of Nueces County, Texas.

The City and its officers, in their first issue, and Aguilar, in his second issue, contend the trial court erred in denying their motions for summary judgment because the officers were entitled to official immunity. To prevail in a motion for summary judgment, the movant 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. See City of El Campo v. Rubio, 980 S.W.2d 943, 948 (Tex.App. — Corpus Christi 1998, review dismissed w.o.j.). This burden may be satisfied by conclusively establishing all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); City of Pharr v. Ruiz, 944 S.W.2d 709, 712, (Tex.App. — Corpus Christi 1997, no writ). Official immunity is an affirmative defense. See Rubio, 980 S.W.2d at 948. Consequently, the burden was on appellants to establish the elements of their affirmative defense. See id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984)). In determining whether there is a genuine issue of material fact precluding summary judgment, we indulge every reasonable inference in favor of the non-movant and view evidence favorable to the non-movant as true. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Employees of the government are entitled to official immunity from suit for the performance of discretionary duties, that are within the scope of their authority, and performed in good faith. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Ruiz, 944 S.W.2d at 712. We conclude, and the parties do not contest, that the officers performed discretionary duties in obtaining and executing the warrant. See City of Coppell v. Waltman, 997 S.W.2d 633, 637 (Tex.App. — Dallas 1998, pet. denied) (officer’s search of arrestee is discretionary act); City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex.App. — Houston [1st Dist.] 1995, no writ) (police officers exercise discretion in conducting investigation before seeking warrant); Closs v. Goose Creek School Disk, 874 S.W.2d 859, 876 (Tex.App.—Texarakana 1994, no writ) (investigation of criminal activity and execution of search warrant are generally discretionary acts calling for personal deliberation and judgment).

Officials act within the scope of their authority when they discharge duties generally assigned them. See Chambers, 883 S.W.2d at 658; City of Hidalgo v. Prado, 996 S.W.2d 364, 368 (Tex.App.— Corpus Christi 1999, no pet.). Even if the action is wrongful or negligent, the official still acts within the scope of his authority. See Prado, 996 S.W.2d at 368. We conclude that the peace officers acted within the scope of their authority by obtaining and executing a search and arrest warrant. Thus, the remaining issue is whether the officers acted in good faith.

In evaluating good faith, we apply an objective legal reasonableness test, disregarding the officer’s subjective state of mind. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997); City of Lancaster, 883 S.W.2d at 656. An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to take action outweighed a clear risk of harm to the public in taking the action. See Wadewitz, 951 S.W.2d at 466-67; City of Lancaster, 883 S.W.2d at 656-57.

When the summary judgment mov-ant satisfies the legal reasonableness test, the non-movant must controvert that proof by showing that “no reasonable person in the [officer’s] position could have thought the facts were such that they justified [the officer’s] acts.” City of Lancaster, 883 S.W.2d at 657; see Geick v. Zigler, 978 S.W.2d 261, 265 (Tex.App.—Houston [14th Dist.] 1998, no writ). Thus, there is “an elevated standard of proof for the non-movant seeking to defeat a claim of official immunity in response to a motion for summary judgment.” City of Lancaster, 883 S.W.2d at 656.

According to appellees, the officers acted unreasonably in obtaining and executing the warrant. Specifically, appellees maintain Talley failed to investigate the accuracy of the information provided by the informant and failed to verify the informant’s credibility. Additionally, appel-lees assert the search was unreasonable because the warrant contained an address that was different from their address. Finally, appellees contend the officers used excessive force in execution of the warrant.

Appellants urge that appellees are precluded from asserting the warrant was invalid, under the doctrines of collateral estoppel and res judicata, because a federal district court and appellate court previously found the warrant valid. As appellants note, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s granting of summary judgment, and found the warrant was properly issued. See Ramirez v. City of Robstown, et al., No. 95-40037, slip op., 68 F.3d 467 (5th Cir.1995) (unpublished). The court also found that, although the warrant misstated appellees’ address, it described their residence with sufficient particularity. Finally, the court concluded that no jury could have determined the officers exercised anything more than a de mini-mus use of force.

We lack jurisdiction to consider the defenses of res judicata or collateral estoppel independent of appellants’ assertions of immunity. See Tex. Crv. PRac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.1999); Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.—Corpus Christi 1999, no pet.) (interlocutory appeal is only available for assertion of immunity, and not other issues advanced in motion for summary judgment); City of Alamo v. Holton, 934 S.W.2d 833, 836 (Tex.App.— Corpus Christi 1996, no writ) (review of interlocutory appeal under section 51.014(a)(5) is limited to merits of immunity defense); Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.—Houston [1st. Dist.] 1998, no writ) (“assertion of immunity is the only ground for summary judgment whose denial we can review under” section 51.014(a)(5)). Although appellants clearly tie their assertions of res judicata and collateral estoppel into their arguments for immunity on appeal, they failed to do so in their motions for summary judgment. In their motion for summary judgment, unlike their brief to this Court, the City and its officers raised the issues of res judicata and collateral estoppel in separate paragraphs from their assertion of official immunity. Nowhere within their discussion of official immunity, did they assert that the trial court should apply the doctrines of collateral estoppel or res judi-cata to resolve the issues of the validity of the warrant or the reasonableness of the officers’ use of force. Similarly, Aguilar did not discuss res judicata or collateral estoppel in the context of official immunity in his motions for summary judgment. Issues not raised to trial court by written motion, answer or other response may not considered on appeal as grounds for reversal. See Tex.R. Civ. P. 166a(c); Abbott Lab., Inc. v. Segura, 907 S.W.2d 508, 507 (Tex.1995). As the trial court did not have an opportunity to consider appellants’ res judicata and collateral estoppel arguments as part of their official immunity defense, we may not consider such an argument on appeal. See Tex.R. Civ. P. 166a(c); Kassen v. Hatley, 887 S.W.2d 4, 13 (Tex., 1994); Benson v. City of San Antonio, 715 S.W.2d 143, 144-45 (Tex.App. — San Antonio 1986, writ ref d n.r.e.) (parties are not permitted to make arguments on appeal that were not made in summary judgment because it would preclude trial judge from reviewing issues and allow parties to lay behind the log). Consequently, we must conduct an independent review of whether the officers exercised good faith.

Appellants concede the warrant named the wrong address, but assert the warrant adequately described the premises otherwise, and maintain that the correct residence was actually searched. The underlying affidavit in this case described the premises as:

A building used as a dwelling in the 1000 block of Ohio Street, Robstown, Nueces County, Texas. The dwelling is on the southside of Ohio Street facing North. The dwelling is white in color. The dwelling is on the same lot with a dwelling that is beige in color with brown trim and this dwelling has the numbers 1010 on the front of the dwelling. The suspect dwelling is southwest of 1010 Ohio Street, Rob-stown, Texas. The address to 1010 Ohio Street, rear, Robstown, Nueces County, Texas to include the dwellings surrounding curtilage and vehicle(s) on property.

In support of their motion for summary judgment, appellants provided the affidavit of Aguilar, who stated appellees’ residence had its front door on Indiana Street, and back door on Ohio Street. The back portion of appellees’ residence was where the informant told Aguilar he had seen Arturo in possession of the contraband. Aguilar further affied that the residence described in the affidavit was the residence searched.

Talley stated, by affidavit, that after the search was completed, he verified that the physical description on the warrant was correct and stated that the informant had directed the officers to Arturo’s parents’ home. Talley affied that the description of the home, as set forth in the warrant, was the residence pointed out to Aguilar as the location where the informant had seen Arturo in possession of contraband.

Appellants note that Michelle testified that appellees’ house was white and her neighbor’s house had brown trim, consistent with the description in the affidavit.

Appellants provided summary judgment evidence of the reliability and veracity of the informant through the affidavit of Talley. Talley stated that based on the informant’s knowledge of street narcotics and his prior credibility, he was able to determine the informant was reliable. Talley also relied on his personal knowledge in obtaining the warrant, as he had previously arrested Arturo. Appellants also note that Arturo is presently serving a twenty year sentence for burglary of a habitation with intent to commit theft and possession of .herpin; thus, Arturo was ultimately found in possession of heroin, as alleged in the warrant.

Regarding execution of the warrant, appellants note that Librada stated in a deposition that the officers did not harm her or treat her roughly. Concerning the allegation that Librada was pushed when the officers entered the house, Raul Galvan, appellees’ expert, testified by deposition that it is necessary for officers to enter a house as quickly as possible in conducting a search and arrest warrant. Primitivo testified that none of the officers were rough on him while they were in his home. However, Primitivo also testified that the placing of handcuffs on him hurt his hands, arms, and wrist. Talley stated in his affidavit that many of the officers were uniformed dining the search.

Finally, appellants provided the affidavit of expert Tommy Arp, an officer of the Texas Department of Public Safety, who stated that a reasonable and prudent officer, under the same or similar circumstances could have believed that the proper address was named in the warrant and that the force used by the officers was necessary. Arp stated that the officers acted upon a valid warrant and that the search was executed in a reasonable and legal manner. As Arp noted, drug dealers are often violent and frequently armed; consequently, the officers use of force un- ' der the circumstances was justified.

Appellants’ summary judgment evidence clearly established that a reasonably prudent officer in their position could have believed the facts were such that they justified their actions in obtaining and executing the search warrant. Accordingly, the burden of proof shifted to appellees to show that no reasonable person in their positions could have thought the facts were such that they justified their acts. See City of Lancaster, 883 S.W.2d at 657.

In attempting to controvert appellants’ summary judgment evidence, appellees noted that one of the officers admitted knowing appellees; thus, according to appellees, he knew or should have known Arturo was not residing at their home. Primitivo testified by deposition that Arturo had not lived at the premises for four to five years. It had been three to four months since Primitivo had seen him. Michelle testified by deposition that Arturo did not receive mail at appellees’ home.

Appellees provided summary judgment evidence that one of the officers had previously used excessive force and was not recommended for rehire, and that another was suspended because of accusations of shoplifting.

Appellees relied on the affidavits and depositions of several experts. D.P. Van Blaricom, former Chief of Police for the City of Bellevue, Washington for approximately ten years, stated in his affidavit that the search warrant was facially invalid because it listed the wrong address and failed to describe the place to be searched with particularity. He noted that the affidavit supporting the warrant incorrectly stated that‘Arturo was in charge of and controlled the described premises. Moreover, there was no evidence that the informant was reliable. For the above reasons, he concluded that the search of appellees’ home was unlawful.

Van Blaricom opined that Aguilar played a key role in the unlawful search because he accompanied the informant to the premises, gave the incorrect description of the premises, and participated in the search. He affied that the force used against appellees was excessive and objectively unreasonable based on the fact that two of the appellees were elderly and in poor health, the other appellee was a young girl, two of the appellees were in bed, and the officers had no reason to believe that appellees presented any threat to them. According to Van Blaricom, the officers should have given verbal commands, rather than using force to carry out the search.

Raul Galvan, a licensed private investigator who was formerly employed by the Corpus Christi Police Department, concluded the affidavit used to get the warrant was facially defective because it did not reasonably describe the place to be searched. Galvan examined the affidavit supporting the warrant and visited the premises in question and concluded, in his deposition, that the location described in the affidavit was not appellees’ house. This was because the affidavit described the house as to the rear of 1010 Ohio, but appellees’ residence was side by side and not to the rear. According to Galvan, the only house with a rear building was the one next door to appellees’ residence and was white like the one described in the affidavit.

In Galvan’s opinion, a reasonable and prudent officer would have investigated the entire property and area before obtaining a warrant. Furthermore, a reasonable officer would not have believed the affidavit used to obtain the warrant was valid, or that the information provided by the informant was reliable. Finally, he opined the officers used excessive and unreasonable force, and that the officers did not need to point their weapons at a child or elderly person, particularly when the informant did not indicate there were any weapons at the residence.

C. Gerard Miller, a licensed attorney in the State of Texas, affied that the warrant was defective on its face and was unsupported by probable cause based on the fact that the address was incorrect and because the credibility of the informant had not been established prior to issuance of the warrant. Miller noted that the affidavit described the house to be searched as 1010 Ohio Street, rear, but appellee’s residence was not to the rear of 1010 Ohio Street. According to Miller, the officers should have conducted further surveillance to avoid describing the incorrect address on the affidavit. For example, the officers could have checked with public utilities to see who was paying the bills and to determine who was in charge of the premises. The officers also could have surveyed the premises and talked to neighbors before executing the warrant. Although Talley had previously arrested Arturo, Miller observed, he had never done so at appellees’ residence. According to Miller, a reasonably prudent police officer would not have submitted the affidavit to obtain the warrant, and would have known there was not probable cause to obtain the warrant. Significantly, Miller stated that no reasonable officer could have had a good faith belief that he was executing a proper affidavit. Finally, Miller affied that the officers used excessive force.

Because appellees’ controverting evidence is sufficient to raise a fact question on the issue of good faith, the trial court did not err in denying appellants’ motions for summary judgment on the ground of official immunity. Aguilar’s second issue and the City and its officers’ first issue are overruled.

By its second issue, the City asserts it was entitled to summary judgment on the grounds of sovereign immunity based on the official immunity of the officers. The Texas Tort Claims Act subjects a governmental entity to liability for the torts of its employees if “the employee would be personally liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1) (Vernon 1997). Conversely, when a governmental employee is protected from suit under the doctrine of official immunity, the governmental entity’s sovereign immunity remains intact. See City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993). A governmental entity is only entitled to appeal from an interlocutory order pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code when its claim of sovereign immunity is “based on” an individual’s assertion of qualified or official immunity in order for the sovereign. See Id. Because the official .immunity of the individual officers was not established, the City was not derivatively entitled to sovereign immunity. Appellant City’s second issue is overruled.

In his first issue, Aguilar contends the trial court erred in failing to grant summary judgment as to appellees’ federal claims because the federal district court and appellate court previously found that appellees’ constitutional rights were not violated. Essentially, Aguilar’s argument relies on the doctrines of res judicata and collateral estoppel. We lack jurisdiction to consider any ground except that of immunity in an interlocutory appeal under section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5); Holton, 934 S.W.2d at 836; Boozier, 846 S.W.2d at 596. To the extent that Aguilar’s argument on appeal is based on qualified immunity, we aré unable to consider it as he did not raise the issues of res judicata or collateral estoppel within an argument of qualified immunity in his motions for summary judgment. See Tex.R. Civ. P. 166a(c); Segura, 907 S.W.2d at 507. Aguilar’s first issue is overruled.

By his third issue, Aguilar complains the trial court erred in failing to grant summary judgment as to appellees’ claims under the Texas Constitution. As Aguilar observes, several courts have recognized that there is no private cause of action for a violation of the Texas Constitution. However, we lack jurisdiction to consider grounds for summary judgment outside of immunity in an interlocutory appeal under section 51.014(a)(5). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5); Holton, 934 S.W.2d at 836. Appellant Aguilar’s third issue is overruled.

We AFFIRM the trial court’s denial of the motions for summary judgment.

      . Appellees also named the Department of Public Safety for the State of Texas and the State of Texas as defendants in the petition. However, the only parties appealing the denial of the summary judgment are the officers and &e City of Robstown. According to Aguilar's brief, neither the State of Texas nor the Texas Department of Public Safety were served, and are therefore not parties to the proceeding.

      . Our review of the City’s claim of sovereign immunity is limited to its derivative claim of immunity based on the officer’s claim of official immunity. We lack jurisdiction to consider the City’s assertion of sovereign immunity against appellees’ claims arising out of the City’s performance of a governmental function, including appellees' allegations of negligent hiring, failure to train, and inadequate policies. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.1999); Cameron County v. Alvarado, 900 S.W.2d 874, 879 (Tex.App. — Corpus Christi 1995, writ dism'd w.o.j.).

      . See e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995) (noting that Texas has no comparable provision to 42 U’.S.C. § 1983 and holding “there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution”); Tutt v. City of Abilene, 877 S.W.2d 86, 87-89 (Tex.App.— Eastland 1994, writ denied) (finding no "self-operative creation of a constitutional tort liability”); Bagg v. University of Tex. Medical Branch at Galveston, 726 S.W.2d 582, 584 n. 1 (Tex.App. — Houston [14th Dist.] 1987, writ refd n.r.e) (explaining “there is no state 'constitutional tort’ ”).


author: MELCHOR CHAVEZ, Justice.

text:
    Geneva Tillery SWOBODA, Appellant, v. Norman Lee SWOBODA, Appellee.
    No. 13-98-632-CV.
    Court of Appeals of Texas,. Corpus Christi.
    March 31, 2000.

      William A. Dudley, Cook, Dudley & Associates, Corpus Christi, for appellant.
    John A. George, Fly & Moeller, Victoria, for appellee.
    Before Justices DORSEY, CHAVEZ and RODRIGUEZ.
   OPINION

MELCHOR CHAVEZ, Justice.

Appellant Geneva Tillery appeals from a summary judgment granted in favor of her former husband, Norman Lee Swoboda. By three issues, appellant contends the trial court erred in granting summary judgment, in failing to enforce the provisions of the parties’ divorce decree, and in failing to file findings of fact, and conclusions of law. We affirm.

Tillery and Swoboda were divorced on December 28,1995. Among other community property divisions, the divorce decree provided that appellant would receive as her sole and separate property: the cash sum of Six Hundred Ninety-Five Thousand ($695,000.00) Dollars to be paid by Respondent out of Respon-, dent’s interest in the VICTORIA MA- ■ CHINE WORKS, INC. THRIFT PLAN (‘Thrift Plan’), which is administered by the Victoria Bank & Trust Company of Victoria, Texas.

Petitioner is further awarded sixty-five (65%) percent of any and all accrued earnings on the account balance of Norman Swoboda as of September 7, 1995....

The decree made no provisions for federal income tax liability associated with this distribution.

In March 1996, appellant filed a motion to enforce the award. Appellee responded with a cross-motion and explained that under federal law, the Employee Retirement Income Security Act ,(ERISA) prevents the withdrawal of funds from a qualified retirement plan without a qualified domestic relations order (QDRO). On April 1, the district court held a hearing on the motions. With both parties in agreement, the court entered a QDRO entitling Geneva Tillery, as an alternate payee, to be paid $770,910.44 from the 'thrift plan. Consequently, the trial court dismissed appellant’s motion to enforce.

Although the issue of which party should be responsible for the tax consequences of this payment was discussed, both parties indicated that the determination of federal tax liability would be governed by the Internal Revenue Code. The court agreed and no tax provision was included in the QDRO. Later that same month, when this amount was paid to appellant, she chose to roll part of it over into an individual retirement account and paid federal withholding tax on the remainder that was distributed to her.

Thereafter, appellant filed two more motions to enforce in October 1996 and November 1997. The latter motion complained of the tax liability she had incurred as a result of taking her share of the monies from the thrift plan pursuant to the divorce decree and the QDRO. In this motion, appellant sought a declaratory judgment that the divorce decree had actually awarded her a non-taxable sum of cash payable from her former husband that obligated him to incur all the penalties and tax liability associated with withdrawing funds from his thrift plan. Appellee’s response argued that because federal law pre-empted state law on the subject of taxability, the trial court was without jurisdiction to alter the parties’ respective tax liability.

Appellee simultaneously filed a motion for summary judgment asserting the following grounds in support of his motion: res judicata, collateral estoppel, compromise and settlement, accord and satisfaction, lack of subject matter jurisdiction, waiver and estoppel, and impossibility of performance. Appellant did not file a response to appellee’s motion. In October 1998, the trial court granted appellee’s motion for summary judgment without stating the specific grounds for doing so. This appeal followed.

In reviewing a summary judgment, the central inquiry is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the plaintiffs causes of action. Tex.R. Crv. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). The burden of proof is on the movant, and all doubts regarding material facts are resolved against the movant. Nixon, 690 S.W.2d at 548-49. Grounds supporting or opposing a summary judgment must be raised in the motion or written response to the motion before the trial court renders judgment. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). Because appellant failed to respond to the summary judgment motion, the only ground for reversal we can consider is the legal sufficiency of the appellee’s summary judgment proof. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993); Camp v. Camp, 972 S.W.2d 906, 908 (Tex.App.-Corpus Christi 1998, pet. denied). Because the trial court’s judgment did not specify the ground relied upon for its ruling, we will affirm the judgment if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

By her first and second issues, appellant contends the trial court erred in granting summary judgment and in failing to enforce the divorce decree. Appellant claims the divorce decree awarded her, tax-free, $695,000 in cash plus accrued earnings. In order to satisfy this award, she argues the decree contemplated that appellee would be required to take the necessary steps to withdraw these funds from the thrift plan, incur all associated penalties and taxes himself, and then ton that amount of money over to her.

A property settlement agreement, although incorporated into a final decree of divorce, is treated as a contract and its legal force and its meaning are governed by the law of contracts. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex.1984). In construing an unambiguous contract, the court should give effect to the intention of the parties as expressed or as is apparent in the writing. Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 302 (Tex.1993). The language of a contract shall be given its plain grammatical meaning if possible, and the court should avoid any construction of a contract which is unreasonable, inequitable, and oppressive. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Horizon Resources, Inc. v. Putnam, 976 S.W.2d 268, 270 (Tex.App. — Corpus Christi 1998, no pet.).

Contrary to appellant’s subjective interpretation of what the decree contemplated, the language of the decree does not support appellant’s argument. In reading what the divorce decree actually states, there is no indication that the parties intended for the appellee to incur the tax liability associated with appellant’s property award. If it had been intended that appellant receive a non-taxable cash award of $695,000, then the decree could have made that provision without mandating the source of these funds. By providing that the cash award would be paid out of appel-lee’s interest in the thrift plan, the decree contemplated that this distribution would constitute a taxable event. Furthermore, if the language of the decree supported appellant’s position, then there would have been no reason for appellant to agree to the QDRO that was subsequently entered by the court which identified her as an “alternate payee” of the thrift plan.

But once the QDRO was entered without objection, and appellant received her distribution, she had knowledge or should have had knowledge that she-would be responsible for the federal income tax on the award. In fact, during the April 1, 1996 hearing on appellant’s first motion to enforce, her counsel conceded that with regard to the tax liability, “That’s something that the Internal Revenue Service is going to determine.... ” He was correct. The Internal Revenue Code provides that any amount of money actually distributed to the distributee of a qualified trust, such as the thrift plan in this case, shall be taxable to the distributee. 26 U.S.C.A. § 402(a) (Supp.1999). However, where a distribution is made from a qualified plan to a participant’s former spouse pursuant to a QDRO, as here, the former spouse is to be considered the “alternate payee” and will be taxed on such distribution as the distributee. 26 U.S.C.A. § 402(e)(1)(a) (Supp.1999).

Two cases cited by appellee are determinative on this issue. In Hawkins v. Commissioner of Internal Revenue, 86 F.3d 982 (10th Cir.1996), Arthur and Glenda Hawkins were divorced by a New Mexico district court, and as a compromise distribution of the community property, the wife was awarded cash of one million dollars from the husband’s pension, plan. This distribution was made, but when neither party reported it as income on their separately filed tax returns, the Commissioner of Internal Revenue issued notices of deficiency to both sides. The United States Tax Court concluded that the divorce decree did not constitute a QDRO and ordered the husband tq include the one million dollar distribution in his gross income. The Court of Appeals for the Tenth Circuit reversed and held that the decree was a QDRO. Id. at 993-94. It further held that, under the provisions of the Internal Revenue Code dealing with distributions from qualified retirement plans, the wife was an “alternate payee” and was responsible for payment of all income taxes associated with her award. Id.

A similar result was reached by the United States Tax Court in Clawson v. Commissioner of Internal Revenue, 72 T.C.M. (CCH) 814 (1996). There, the court held that amounts payable to the wife under a QDRO from her ex-husband’s pension plan were taxable to the wife, notwithstanding the fact that the state court trial judge had ordered the taxes paid by the husband. Id. at 815. Citing the provisions of the Internal Revenue Code that we have cited in the present case, the court stated:

State law may indeed determine the rights to and ownership of property, as the divorce decree, settlement agreement and QDRO provide in this case, Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239 (1930), but the Internal Revenue Code will determine how those property rights, once established, shall be taxed. Morgan v. Commissioner, 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585 (1940).

Because the decree was silent with regard to which party was responsible for the tax obligation, we cannot agree that the trial court modified its provisions or failed to enforce the decree. But even if the decree had specified that the appellee was obligated to pay the taxes, once the QDRO was entered, the tax court decision in Clawson mandates that appellant would have been liable for the taxes • notwithstanding a determination from the state district court. Thus, the trial court properly granted summary judgment on the ground that it was without jurisdiction to interfere with the Internal Revenue Code’s determination of taxability. Appellant’s first and second issues are overruled.

By her final issue, appellant contends the trial court committed reversible error by failing to file findings of fact and conclusion of law in connection with the summary judgment. Findings of fact and conclusions of law “have no place” in a summary judgment proceeding because in order for a summary judgment to be rendered, there cannot be a “genuine issue as to any material fact,” and the legal grounds are limited to those stated in the motion and response. IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex.1997) (citing Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994)). Appellant’s third issue is overruled.

Accordingly, we affirm the summary judgment.

      .The term "qualified domestic relations order” means a domestic relations order which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under the plan. 29 U.S.C.A. § 1056(d)(3)(B)(i) (1999).

      . The amount of $770,910.44 includes the award of $695,000 plus accrued earnings.

      . In February 1997, appellant received a final, additional distribution of $61,977.55 which represented earnings that could not be calculated until after September 30, 1996.