author: TERRY McCALL, Justice.

text:
    CITY OF HOUSTON and Susan McMillian, in her individual capacity, Appellants, v. Juanita FLETCHER, Appellee.
    No. 11-03-00200-CV.
    Court of Appeals of Texas, Eastland.
    June 9, 2005.
    Rehearing Overruled July 28, 2005.

      Eliot P. Tucker, Roy L. Barnes, Tucker/Vaughan, Donald J. Fleming, Senior Asst. City Atty., Houston, for appellants.
    Joyce Keating, Law Firm of Joyce A. Keating, Houston, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY McCALL, Justice.

Juanita Fletcher brought this action against her former employer, the City of Houston, and her former supervisor, Susan McMillian. Fletcher asserted age discrimination claims against the City under the Texas Commission on Human Rights Act (TCHRA). TEX. LAB. CODE ANN. § 21.001 et seq. (Vernon 1996 & Supp. 2004-2005). She alleged an intentional infliction of emotional distress claim against McMillian. The jury found (1) that the City had subjected Fletcher to a hostile work environment based upon her age, (2) that the City had discriminated against Fletcher based upon her age, and (3) that the City had terminated Fletcher based upon her age. With respect to Fletcher’s claims against the City, the jury awarded $90,000.00 in past lost wages, $69,000.00 in diminishment in future wages, and $100,000.00 in past mental anguish damages. The jury also awarded attorney’s fees. The jury also found in Fletcher’s favor on her intentional infliction of emotional distress claim against McMillian. On the intentional infliction of emotional distress claim, the jury awarded $100,000.00 in compensatory damages and $64,000.00 in exemplary damages. The trial court entered judgment in accordance with the jury’s verdict. The City and McMillian appeal the judgment. For the reasons stated, we modify the trial court’s judgment against the City and affirm the judgment as modified, and we reverse the trial court’s judgment against McMillian and render judgment that Fletcher take nothing on her claims against McMillian.

Issues Presented

The City presents five issues for review. The City o argues (1) that the trial court erred by submitting an improper instruction to the jury on Fletcher’s hostile work environment claim, (2) that the evidence was legally and factually insufficient to support the jury’s finding that the City subjected Fletcher to a hostile work environment based on age, (3) that the evidence was legally and factually insufficient to support the jury’s finding that the City subjected Fletcher to discriminatory treatment based on age, (4) that the evidence was legally and factually insufficient to support the jury’s finding that Fletcher’s age was a motivating factor in the City’s decision to discharge her, and (5) that the trial court erred in awarding an improper amount of prejudgment interest and post-judgment interest in the judgment.

McMillian presents six issues for review. McMillian argues (1) that the trial court erred in determining that she engaged in conduct that would support a claim for intentional infliction of emotional distress, (2) that the evidence was legally and factually insufficient to support a finding that she committed extreme and outrageous conduct, (3) that the evidence was legally and factually insufficient to support a finding that Fletcher suffered severe emotional distress, (4) that Fletcher may not pursue a claim for intentional infliction of emotional distress — which is a “gap-filler” remedy — because she has an adequate remedy for age discrimination, (5) that the trial court erred in awarding Fletcher a double recovery by awarding Fletcher damages on her age discrimination claim and her intentional infliction of emotional distress claim, and (6) that the trial court erred in awarding exemplary damages against her.

The Evidence

Fletcher was employed by the City from September 3, 1996, until May 30, 1997. She was an Administrative Assistant III in the City’s Department of Public Works & Engineering, Traffic Management & Maintenance Division. She was 53 years old when she began her employment with the City. Fletcher’s supervisor was McMillian. McMillian was 48 years old when Fletcher began her employment with the City. - The City terminated Fletcher for the stated reasons of unsatisfactory service during her probationary period and insubordination.

Testimony of Fletcher

Fletcher said that, during her employment with the City, McMillian called her “incompetent,” a “stupid old woman,” an “old woman,” and “senile.” She said that McMillian verbally abused her and screamed and yelled at her. McMillian called her a “stupid old woman” several times. Most of McMillian’s comments were behind closed doors, but McMillian would come to her desk and “ream” her out and yell at her. McMillian told her that the younger employees were much better than she was. McMillian treated younger employees better than she treated older employees. On occasion, other City employees were present when McMillian yelled at her or called her “stupid” or “stupid old woman.” Fletcher’s “day-today dealings” with McMillian included McMillian’s “litany” that “you were stupid, you were senile, you were old, you were incompetent.” McMillian was demeaning and rude, treated Fletcher like she was nothing, and treated Fletcher that way every day.

McMillian would not allow Fletcher to do a number of the functions listed on the job description for her Administrative Assistant III job. Fletcher learned very early on that the actual job was not going to be what she thought it would be. McMilli-an basically told her that she was a clerk. McMillian did not give her access to information that would have permitted her to do the job. McMillian denied her training that was necessary to do her job. McMil-lian would not allow her to attend city council meetings or neighborhood traffic meetings. Without access to this type of information, she could not obtain information necessary to do her job. McMillian told her that she was totally incompetent and that training would not do any good. Angelo John Santopolo and Mary Nola Miles — also employees over 40 years of age — were not allowed to do the jobs that they were hired to perform.

McMillian gave Fletcher substandard ratings in her seven-month Employee Performance Evaluation (EPE). Fletcher told McMillian that she did not have any training and that the EPE did not bear any relevance to the job that she was hired to do. McMillian said that there was nothing Fletcher could do to improve her performance. Fletcher was frustrated and worried about the evaluation. McMillian permitted her to look for another position with the City. McMillian’s treatment of Fletcher did not change after the performance review. Fletcher was frightened and upset and did not know whether she was going to be able to keep her job.

On May 14, 1997, McMillian approached Fletcher and asked her if she would come to an EPE meeting. By then, Fletcher had contacted the EEOC and an attorney because of the discriminatory environment at work. Fletcher wanted to call her attorney before going to the EPE. She told McMillian that she could attend the meeting after making a phone call or two. McMillian asked her whether she was being insubordinate, and Fletcher responded that she was not. McMillian let her make the call only after verbally abusing her and screaming at her. After making the call, she told McMillian that she was ready to go to the EPE. McMillian told her that it had been cancelled.

On that same day, McMillian told Fletcher that she was not allowed to receive any phone calls at work. Earlier, Fletcher had told McMillian that she had a daughter who was ill at home and that her daughter might need to contact her. McMillian told Fletcher that Miles could take Fletcher’s calls and let Fletcher know about them. After Fletcher learned that she had not received two messages from her daughter in a timely manner, she broke down and started crying. Fletcher got permission from McMillian to go home. When she got home, she learned that her daughter had passed out that morning and, after coming to, had tried to call her at work. Fletcher testified that her daughter could have died that morning.

Fletcher went to work the next day. Shortly after arriving at work, she was placed on administrative leave. Fletcher submitted her resignation at the end of the month. McMillian and two men came to her house. She would not let them in because she was afraid of them. The City terminated Fletcher’s employment before her resignation became effective.

Fletcher considered consulting a physician or a psychologist because of the stressful situation at work. She went to an appointment with her daughter’s therapist, but she could not afford formal counseling. She talked to her pastor about the emotional problems that she was having as a result of McMillian’s conduct. Fletcher was depressed, could not eat or sleep, had violent migraines, had asthma attacks, and was constantly coughing.

Testimony of Santopolo, Ukaegbu, Hu-sain, Hams, Cox, and Van Manen

Santopolo was a former City employee who had worked with Fletcher. Fletcher was being ordered to do a very different job than that of her job title. Fletcher basically just sat at her desk and did nothing more than make copies. Fletcher was not allowed to answer the telephone. San-topolo heard McMillian yell at Fletcher, call her a “stupid old woman,” and tell her that she was “incompetent.” He recalled McMillian calling Fletcher a “stupid old woman” two or three times. Every few days, Fletcher would come into his office crying. Santopolo and others listened to her and consoled her.

Samson Ukaegbu worked for the City from June 1996 until June 1998. Ukaegbu testified that Fletcher was the division secretary. Fletcher came into his office once or twice crying. Fletcher told him that McMillian had talked to her in an unprofessional manner. He never heard McMil-lian use the expression “stupid old woman.”

Naeem Husain worked in the City’s traffic management department. Husain testified that he heard McMillian and Fletcher arguing on one occasion. Fletcher was very professional and capable of doing any kind of work.

Jack A. Harris was the operations director of Professional Career Advantage. Harris testified that he counseled people; advised them on career moves; and determined whether a job would be appropriate for them based upon their experience, talents, and abilities. Fletcher came to his firm in 1996 for career assistance. He considered her to be very bright and sharp, and he thought that she had a lot of talent. Fletcher wanted to know how to get back into the work force. Fletcher was interested in an administrative assistant job with the City. Harris examined Plaintiffs Exhibit No. 4, which was the City’s posting for Fletcher’s Administrative Assistant III job. He considered the job to be a professional type of position. He said that it did not make sense for the City to post a job describing a much higher level of functions if it only wanted a clerk. After Fletcher got the job with the City, she contacted him several times, expressing her concerns that she was not being sufficiently challenged. Harris did not expect anyone to be able to walk into a department and assume all of the responsibilities of the job. Fletcher had the capabilities and background necessary to assume the responsibilities listed on the job posting. It would take a level of commitment or time to master the functions. The job posting was not for an office manager position but was for an administrative assistant.

David Cox worked for the City for 16 years. He testified that he started as an Administrative Assistant III. Job postings should be very specific and accurate. The job posting for Fletcher’s job called for a professional rather than a clerk. The posting was not for a clerical type of job. Fletcher was being asked to do clerical duties that were inconsistent with the original job posting.

Steve Van Manen testified that he is a Certified Public Accountant in Victoria, Texas. He provided testimony on Fletcher’s alleged damages.

Testimony ofMcMillian

McMillian testified that she controlled the neighborhood Traffic Calming Section. She was part of the three-person panel that interviewed Fletcher for the Administrative Assistant III job. They were looking for somebody with compositional skills, writing skills, and organizational skills. The panel recommended Fletcher for the job. McMillian thought that the person selected for the job could have grasped the basics of the job within six to eight weeks. Fletcher did not reach the level of proficiency that she expected Fletcher to reach.

McMillian testified that she never called Fletcher “old,” “stupid old woman,” “senile,” or “incompetent.” At times, she was very impatient toward Fletcher. She did not recall raising her voice when it came to dealing with Fletcher, but she stated that she might have.

McMillian criticized Fletcher’s general lack of program knowledge. Employees needed to know policies and procedures. Fletcher’s job initially was to familiarize herself with the program and develop an understanding of the program so that she could apply policy at some point. Fletcher had access to data necessary to learn the program. McMillian did not deny computer training to Fletcher. McMillian restricted all employees’ abilities to attend meetings. Only essential personnel attended the meetings. McMillian did not allow Fletcher to attend city council meetings or neighborhood traffic meetings because Fletcher’s presence was not essential to the meetings.

McMillian performed Fletcher’s five-month EPE. Fletcher rated unacceptable in many areas. Fletcher had made errors that revealed a serious lack of program knowledge. McMillian suggested to Fletcher that she upgrade her computer skills and program knowledge. Fletcher’s understanding of the program and ability to find information in the files was deficient. McMillian thought that Fletcher might improve by gaining an understanding of program details. McMillian suggested that Fletcher obtain a better understanding of all program details and the computer database. Fletcher was unable to interpret and disseminate policies and information. McMillian suggested that Fletcher study the policy book that was kept in her office. Fletcher’s employee rating was 1.10, which was unacceptable. A rating between 3.0 and 3.6 was an “effective” rating. During the EPE, Fletcher did not give McMillian any indication that she was unhappy with the position. McMillian suggested that Fletcher look for other job opportunities with the City.

On May 14, 1997, McMillian asked Fletcher to accompany her to Mark Lu-pher’s office for an EPE. Fletcher asked her if she could make a call, and she gave Fletcher permission to make the call. Fletcher made several calls. The EPE was not performed because Fletcher refused to come to the meeting. McMillian told Fletcher that the EPE could not be done because Lupher had to leave the building. Fletcher received a rating of 1.05 in the EPE. Later that day, Fletcher could not stop crying and needed to leave. Fletcher’s calls were forwarded to another employee on that day.

On May 15, 1997, Fletcher was put on relief of duty with pay. Fletcher’s calls were forwarded to another employee. McMillian recommended that the City terminate Fletcher’s employment. When Fletcher was placed on relief of duty with pay, McMillian’s recommendation for termination was working its way up the chain of command. The City terminated Fletcher, effective May 30, 1997. Fletcher was terminated for refusing to follow a directive, insubordination, and poor work performance.

Testimony of Miles, Garcia, Drabek, Ro-len, Krenek, and Steward

Miles was an Administrative Assistant II in the Traffic Calming Section. Miles testified that McMillian never did anything to humiliate or demean Fletcher. Miles never heard McMillian call Fletcher a “stupid old woman.” Fletcher felt like she was hired to do something different from the job that she actually was performing. On May 14,1997, Fletcher refused to go to the EPE with McMillian and was very upset.

Maria Garcia was an Administrative Assistant II in the Traffic Calming Section. She testified that she did not give Fletcher orders and that Fletcher “bucked heads” with McMillian. It was not easy to work with Fletcher. Garcia never heard McMil-lian criticize or degrade Fletcher or call Fletcher a “stupid old woman” or “senile.”

Gary Drabek was employed by the City as a Planner in the Traffic Calming Section. He testified that he heard Fletcher raise her voice at times. Fletcher had difficulties with understanding the programs. She had problems with accessing information in the database. Drabek never heard McMillian call Fletcher “stupid” or a “stupid old woman.” He never heard McMillian yell or shout at anybody.

Thomas J. Rolen was a Deputy Director in the City’s Public Works Department when Fletcher worked for the City. Rolen testified that McMillian made the recommendation to place Fletcher on relief of duty with pay. McMillian told the facts supporting the recommendation to Lupher, and Lupher told the facts to him. Rolen reviewed the facts that Lupher reported to him. Rolen signed the relief of duty with pay notification that was given to Fletcher. McMillian made the recommendation that Fletcher’s employment be terminated. Rolen agreed with the recommendation; and Jimmie Schindewolf, the Director of the Public Works Department, made the ultimate decision to terminate Fletcher’s employment. Fletcher had provided unsatisfactory service during her probationary period and refused to follow directives, an insubordination.

Eddie Michael Krenek, an attorney representing the City in this case, testified on behalf of the City. He testified on attorney’s fees issues.

Dwight Steward, an economist, also testified on behalf of the City. He testified about Fletcher’s alleged damages.

Standards of Review

The City’s second, third, and fourth issues and McMillian’s second and third issues attack the legal and factual sufficiency of the evidence. Fletcher had the burden of proof on the challenged issues and obtained favorable jury findings on those issues. Consequently, to address the City’s and McMillian’s legal sufficiency/no-evidence challenge, we must consider only the evidence and inferences that tend to support the finding, disregarding any evidence or inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.2002); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); see Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den’d, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). We may sustain a no-evidence challenge only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharmaceuticals, Inc. v. Havner, supra at 711 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEXAS L. REV. 361, 362-63 (1960)). If there is any evidence of probative force to support the finding, we must overrule the no-evidence point. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660, 666 (Tex.1990); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In reviewing the factual sufficiency challenges to the jury’s findings, we must consider all of the evidence and determine whether the evidence in support of the findings is so weak as to be clearly wrong and manifestly unjust or whether the findings are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Ellis v. City of Dallas, 111 S.W.3d 161, 164 (Tex.App.-Eastland 2003, no pet’n). We cannot reverse merely because we conclude that a preponderance of the evidence supports the opposing answer and cannot substitute our opinion for that of the trier of fact and determine that we would have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony and resolves any inconsistencies in the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jury may believe one witness and, disbelieve others. McGalliard v. Kuhlmann, supra at 697.

Hostile Work Environment

In its first issue, the City argues that the trial court erred by submitting an improper instruction to the jury on Fletcher’s hostile work environment claim. In its second issue, the City argues that the evidence was legally and factually insufficient to establish -that the City subjected Fletcher to a hostile work environment based on her age.

The TCHRA prohibits an employer from discharging or in any other way discriminating against an employee because of the employee’s age. Section 21.051; Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). The legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA. Wal-Mart Stores, Inc. v. Canchola, supra; NME Hospitals, Inc. v. Rennets, 994 S.W.2d 142, 144 (Tex.1999). Texas state courts have not addressed whether an age-based hostile work environment claim is available under the TCHRA. Therefore, we examine federal case law on the issue of age-based hostile work environment claims. The Fifth Circuit has not addressed whether a hostile work environment claim is available under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. However, other circuits have recognized that a hostile work environment claim is actionable under the ADEA. Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 318 (2nd Cir.1999); Crawford v. Medina General Hospital, 96 F.3d 830, 834 (6th Cir.1996). Likewise, federal courts in the Northern District of Texas have recognized that such a claim exists. Lacker v. West, 147 F.Supp.2d 538, 542-43 (N.D.Tex.2001); see also Scally v. Burlington Northern & Santa Fe Railway Company, No. 4:00-CV-1849-A, 2001 WL 1577626 (N.D.Tex.2001). Based on the reasoning of these courts, we find that an age-based hostile work environment claim is actionable under the TCHRA.

The elements of an age-based hostile work environment claim are as follows: (1) the employee belongs to a protected group (40 years old or older); (2) the employee was subject to unwelcome harassment; (3) the harassment complained of was based upon age; (4) the harassment complained of affected a “term, condition or privilege of employment,” i.e., the harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; (5) re-spondeat superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Lacher v. West, supra at 543; see also Watts v. Kroger Company, 170 F.3d 505, 509 (5th Cir.1999); Crawford v. Medina General Hospital, supra at 834-35 (setting forth elements of sexual harassment hostile work environment claim). However, employees bringing a hostile work environment case, such as in this case, alleging that a supervisor with immediate (or successively higher) authority over the employee harassed the employee need only satisfy the first four elements of the test outlined above. Watts v. Kroger Company, supra; Lacker v. West, supra.

To be actionable, the work environment must be both objectively and subjectively offensive — one that a reasonable person would find hostile or abusive and one that the victim in fact did perceive to be so. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Crawford v. Medina General Hospital, supra at 835. Courts determine whether an environment is sufficiently abusive to be actionable by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or it is a mere offensive utterance, and whether it unreasonably interferes with the employee’s work performance. Butler v. Ysleta Independent School District, 161 F.3d 263, 269 (5th Cir.1998)(citing Faragher v. City of Boca Raton, supra at 787-88, 118 S.Ct. 2275); Nash v. Electrospace System, Inc., 9 F.3d 401, 403-04 (5th Cir.1993). Incidental or occasional age-based comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker’s employment. Butler v. Ysleta Independent School District, supra at 269 n. 3 (citing Faragher v. City of Boca Raton, supra 524 U.S. at 788, 118 S.Ct. 2275).

Even when a hostile environment is shown, the plaintiff must establish that the workplace environment had the effect of altering the terms and conditions of his employment. Lacker v. West, supra at 544 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Central to the court’s inquiry into a hostile environment claim is whether the alleged harasser’s actions have undermined the victim’s workplace competence, discouraged him from remaining on the job, or kept him from advancing in his career. Lacker v. West, supra (citing Harris v. Forklift Systems, Inc., supra 510 U.S. at 22, 114 S.Ct. 367; Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir.), cert. den’d, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999); Butler v. Ysleta Independent School District, supra at 270). The availability of a hostile work environment claim is intended to prohibit and prevent conduct “that is so severe and pervasive that it destroys a protected class member’s opportunity to succeed in the workplace.” Lacher v. West, supra at 544 (citing Shepherd v. Comptroller of Public Accounts, supra; Weller v. Citation Oil & Gas Corporation, 84 F.3d 191, 194 (5th Cir.1996), cert. den’d, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997)). The law’s overall goal of equality is not served if a claim can be maintained solely based on conduct that wounds or offends, but does not hinder an employee’s performance. Lacher v. West, supra (citing Weller v. Citation Oil & Gas Corporation, supra at 194).

The trial court submitted the following issue and instructions on Fletcher’s hostile work environment claim:

Do you find that the City of Houston created a hostile work environment in relation to Juanita Fletcher based upon her age?
Age discrimination may also be shown by the creation of a hostile work environment. A hostile work environment is shown when: (1) a supervisor (2) because of age (3) subjects an employee to (4) unwelcome conduct (5) that is severe and pervasive, (6) creates an abusive work environment, and (7) affects a term, condition, or privilege of employment.
Certain factors can be considered in assessing whether a' work environment is hostile or abusive: the frequency and severity of the abusive conduct, whether the conduct was physically threatening or humiliating, and whether the conduct unreasonably interfered with the plaintiffs work performance. You must determine from all the circumstances whether a reasonable person would find the environment hostile or abusive, provided the plaintiff personally and subjectively perceived the environment to be abusive. A showing of “tangible psychological injury” is not required.

The City contends that the seven-element hostile work environment instruction set forth above was improper and an incorrect statement of the law. We review a jury charge under an abuse of discretion standard. Texas Department of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). An abuse of discretion occurs only when the trial court acts without reference to any guiding principle. Texas Department of Human Services v. E.B., supra. Pursuant to TEX.R.CIV.P. 277, a trial court is required to submit “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Trial courts are afforded considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex.1997). For an instruction to be proper, it must (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and the evidence. Texas Workers’ Compensation Insurance Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000).

In this case, the trial court’s instruction accurately stated the elements of a hostile work environment claim. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 472 (Tex.App.-Austin 2000, pet’n den’d)(setting forth elements of a hostile work environment claim based on sexual harassment). Viewed in their entirety, the trial court’s hostile environment instructions accurately stated the law in accordance with the authorities cited above. See Watts v. Kroger Company, supra at 509; Crawford v. Medina General Hospital, supra at 834-35; Lacher v. West, supra at 543. The trial court did not act without reference to any guiding principle. Therefore, the trial court did not abuse its discretion in submitting its instructions on Fletcher’s hostile work environment claim. The City’s first issue is overruled.

The City contends that the evidence was legally and factually insufficient to support the jury’s hostile work environment finding. Fletcher testified that McMillian screamed and yelled at her. She said that McMillian called her “incompetent,” a “stupid old woman,” an “old woman,” and “senile.” Fletcher said that the abuse was part of McMillian’s litany that “you were stupid, you were senile, you were old, you were incompetent.” She said that the abuse was part of her “day-to-day” dealings with McMillian. Santopo-lo said that he heard McMillian yell at Fletcher and call her a “stupid old woman” two or three times. He also heard McMil-lian tell Fletcher that she was “incompetent.” Fletcher said that McMillian told her that younger employees were so much better than she was. Santopolo and Uka-egbu said that Fletcher came into their offices crying after McMillian had talked to her. McMillian denied that she ever called Fletcher any of the above names. However, the jury, as the sole judge of the credibility of the witnesses, could have believed Fletcher and disbelieved McMillian. McGalliard v. Kuhlmann, supra at 697.

Fletcher said that McMillian frightened her and upset her. She said that McMilli-an treated her like she was nothing. She said that she became depressed; that she could not eat or sleep;' and that she had violent migraines, asthma attacks, and constant coughing. Fletcher received unacceptable performance reviews from the City. The jury could have concluded that the harassment interfered with Fletcher’s ability to do her job, undermined her workplace competence, and hindered her performance.

We hold that the evidence was both legally and factually sufficient to support the jury’s hostile work environment finding. Based on the evidence, the jury could have concluded that Fletcher was subjected to severe and pervasive harassment and that the harassment altered the conditions of her employment and created an abusive environment.

The City’s second issue is overruled. In light of our disposition of the City’s second issue, we need not address the City’s third and fourth issues. TEX.R.APP.P. 47.1.

Intentional Infliction of Emotional Distress

To recover on an intentional infliction of emotional distress claim, a plaintiff must establish the following elements: (1) that the defendant aeted intentionally or recklessly; (2) that the defendant’s conduct was extreme and outrageous; (3) that the defendant’s actions caused the plaintiff emotional distress; and (4) that the resulting emotional distress was severe. Hoffmann La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex.2004); GTE Southwest, Incorporated v. Bruce, 998 S.W.2d 605, 611 (Tex.1999). Extreme and outrageous conduct is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Hoffmann La Roche, Inc. v. Zeltwanger, supra at 445 (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (quoting Restatement (Second) of Torts § 46 cmt. d (1965))). Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Hoffmann La Roche, Inc. v. Zeltwanger, supra.

A claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. GTE Southwest, Incorporated v. Bruce, supra at 612. To establish an intentional infliction of emotional distress claim, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. GTE Southwest, Incorporated v. Bruce, supra at 613. Such extreme conduct exists only in the most unusual of circumstances. GTE Southwest, Incorporated v. Bruce, supra.

It is for a court to determine, in the first instance, whether a defendant’s conduct was extreme and outrageous. Hoffmann La Roche, Inc. v. Zeltwanger, supra. But when reasonable minds may differ, it is for the jury, subject to the court’s control, to determine whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in liability. Hoffmann La Roche, Inc. v. Zeltwanger, supra.

Fletcher states in her brief that “McMil-lian spent eight months engaged in a relentless and abusive pattern of degrading, threatening, and humiliating conduct towards Fletcher that went well beyond a mere employment dispute.” In part, Fletcher relies on the following evidence to support her claim that McMillian’s conduct was extreme and outrageous: (1) that McMillian engaged in daily, humiliating verbal confrontations, insults, and name-calling against Fletcher such as calling her stupid, senile, and incompetent; (2) that McMillian often screamed at her in front of other employees; (3) that McMillian, while knowing that Fletcher’s daughter was very ill at home, did not allow Fletcher to receive phone calls at work but, rather, transferred Fletcher’s phone line to another employee’s phone line; (4) that McMillian demoted Fletcher; (5) that McMillian took away her job duties and made her perform menial tasks; (6) that McMillian permitted younger employees to give her orders; (7) that McMillian permitted younger, less-qualified employees to perform her job duties; (8) that McMil-lian imposed overly burdensome reporting requirements on her; (9) that McMillian refused to allow her to attend key meetings or to conduct field work necessary to do her job; (10) that McMillian did not allow her to receive essential e-mail communications; and (11) that McMillian prohibited her, but not others, from communicating with persons in other departments in the City.

We find that the evidence was legally insufficient to support a finding that McMillian engaged in extreme and outrageous conduct. Fletcher did not “prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct.” GTE Southwest, Incorporated v. Bruce, supra at 613. This case is nothing like the employees’ “den of terror” that existed in Bruce. Fletcher argues that the denial of telephone access to her ill child took this case out of the realm of an ordinary employment dispute. However, the evidence showed that Fletcher’s phone line was transferred to another employee’s line and that the other employee could give phone messages to Fletcher. The transferring of the phone calls did not constitute extreme and outrageous conduct. Likewise, McMillian’s name-calling of Fletcher did not rise to the level of extreme and outrageous conduct. See Union Pacific Railroad Company v. Loa, 153 S.W.3d 162, 170-72 (Tex.App.-El Paso 2004, no pet’n).

McMillian’s first issue is sustained. Therefore, we need not address McMilli-an’s other issues. Rule 47.1.

Interest Issues

In its fifth issue, the City complains that the trial court erred in awarding an improper amount of prejudgment interest in the judgment. The City also argues that the judgment contains an excessive rate of postjudgment interest. The trial court awarded Fletcher prejudgment interest on the $259,000.00 in actual damages found by the jury. The following awards made up the $259,000.00 amount: (1) $90,000.00 in past lost wages; (2) $69,000.00 in diminishment in future wages; and (3) $100,000.00 in past mental anguish damages. The trial court awarded prejudgment interest and postjudgment interest at the rate of 10 percent per an-num.

The City argues that Fletcher was not entitled to recover prejudgment interest because she failed to plead a claim for prejudgment interest. Fletcher’s age discrimination claims against the City were based on the TCHRA. A plaintiff is not required to plead a claim for prejudgment interest when the claim is based on statute; a prayer for general relief will support an award of prejudgment interest for statutory claims. Ralston Purina Company v. McKendrick, 850 S.W.2d 629, 638 (Tex.App.-San Antonio 1993, writ den’d)(citing Benavidez v. Isles Construction Company, 726 S.W.2d 23, 25 (Tex. 1987)). Fletcher’s prayer for general relief supported her claim for prejudgment interest.

The City also argues that the trial court erred in awarding Fletcher prejudgment interest on her recovery of $90,000.00 in past lost wages. However, an award of prejudgment interest on past lost wages is proper under the TCHRA. City of Austin v. Gifford, 824 S.W.2d 735, 743 (Tex.App.-Austin 1992, no writ).

The City also argues that the trial court erred in awarding prejudgment interest to Fletcher on her future damages — $69,000.00 in diminishment in future wages. An award of prejudgment interest on Fletcher’s future lost wages was improper. Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 672-73 (Tex.App.-Corpus Christi 1997, no pet’n). The trial court erred in awarding prejudgment interest on Fletcher’s future economic damages. Gorges Foodservice, Inc. v. Huerta, supra.

The City also argues that the trial court erred in awarding postjudgment interest at the rate of 10 percent per annum. The City contends that a 2003 amendment to TEX. FIN. CODE ANN. § 304.003(c) (Vernon Supp.2004-2005) that lowered the minimum postjudgment interest rate from 10 percent to 5 percent applies in this case.

In 2003, the legislature amended Section 304.003(c) to reduce the postjudgment interest rate from 10 percent to 5 percent in two different bills (Tex.H.B.4, 78th Leg., R.S. (2003) and Tex. H.B. 2415, R.S. (2003)). The amendments had different effective dates — June 20, 2003, and September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.01, 2003 Tex. Gen. Laws 847, 862.(effective date'Sept. 1, 2003); see also Act of June 1, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096, 2096-97 (effective date June 20, 2003). Each bill provided that the changes in the law applied in cases “in which a final judgment is signed or subject to appeal.on or after the effective date of this Act.” See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 847, 862; see also Act of June 1, 2003, 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex. Gen. Laws 2096, 2097.

We assume, without deciding, that the effective date of the amendment was June 20, 2003, the earlier of the effective dates. The trial court signed the judgment in this ease on March 31, 2003; and the judgment disposed of all issues and parties. Thus, the judgment was signed and subject to appeal before, the effective date of the amendments. City of Dallas v. Redbird Development Corporation, 143 S.W.3d 375, 388-89 (Tex.App.-Dallas 2004, no pet’n); In re Kajima International, Inc., 139 S.W.3d 107, 113-17 (Tex.App.-Corpus Christi 2004, orig. proceeding); Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 864-66 (Tex.App.-Fort Worth 2003, pet’n den’d). Therefore, Section 304.003(c), as amended in 2003, does not apply in this case. City of Dallas v. Redbird Development Corporation, supra at 389; In re Kajima International, Inc., supra; Columbia Medical Center of Las Colinas v. Bush, supra. The trial court did not award an excessive rate of post-judgment interest.

We, therefore, sustain the City’s fifth issue to the extent that the City complains of the trial court’s award of prejudgment interest on Fletcher’s recovery of $69,000.00 in diminishment of future earnings. The trial court awarded prejudgment interest in the amount of $119,423.83 on Fletcher’s recovery of $259,000.00 in actual damages against the City. The rate of prejudgment interest was $70.96 per day. The trial court should have awarded prejudgment interest on the amount of $190,000.00 ($259,000.00 — $69,000.00), at the rate of $52.05 per day. Therefore, the prejudgment interest awarded in the judgment is reduced from $119,423.83 to $87,652.20.

This Court’s Ruling

The paragraph in the trial court’s judgment awarding prejudgment interest on Fletcher’s recovery of damages from the City is modified to read as follows:

It is further ORDERED, ADJUDGED, and DECREED that Plaintiff Juanita Fletcher have and recover of and from Defendant City of Houston the sum of $87,652.20 as prejudgment interest on the amount of $190,000.00 of her actual damages ($90,000.00 in past lost wages plus $100,000.00 in past mental anguish) calculated at the rate of 10% per annum from August 4, 1998 (180 days after suit is filed) until March 15, 2003 (1,684 days). For each day that accrues after March 15, 2003, until the date of this Judgment, prejudgment interest shall accrue at the rate of $52.05 per day, for which amount Plaintiff Juanita Fletcher shall have and recover of and from Defendant City of Houston.

The trial court’s judgment in favor of Fletcher against the City is affirmed as modified by this opinion. The trial court’s judgment in favor of Fletcher against MeMillian is reversed, and judgment is rendered that Fletcher take nothing by her claims against MeMillian.

      . Equal Employment Opportunity Commission.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Katherine TRENOLONE, et al., Appellants, v. COOK EXPLORATION COMPANY, individually and d/b/a Ponderosa Gathering L.L.C., Appellee.
    No. 06-03-00158-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 20, 2005.
    Decided June 16, 2005.

      John R. Mercy, Mercy, Carter, Tidwell, LLP, Texarkana, Clay Wilder, Wilder & Wilder, PC, Henderson, for appellants.
    Elizabeth G. Bloch, Craig A. Morgan, Brown McCarroll, LLP, Austin, for appel-lee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

From an abandoned, subsurface, natural-gas pipeline under a residential development has erupted a dispute over whether Cook Exploration Company and Ponderosa Gathering, L.L.C.. (collectively called “Cook”) could rightfully transport gas through the pipeline under the homes and over the objections of Katherine Trenolone and her neighbors and fellow plaintiffs (collectively called “Homeowners”). From a summary judgment in favor of Cook, Homeowners appeal, asserting that fact issues exist as to ownership of both the pipeline and the easement and as to the right to use the pipeline. Cook asserts both that its lease entitles it to use the pipeline and also that the pipeline, as abandoned personalty, became owned by Cook, the first to possess the pipeline after its abandonment. We hold the summary judgment was improper because (1) fact issues exist as to whether Cook, as gas lessee, has a right to use the easement, and — although (2) the pipeline is conclusively personalty — (3) neither side conclusively proved ownership of it.

To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff’s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In reviewing a summary judgment, we accept all the nonmovant’s proof as true and indulge every reasonable inference in the nonmovant’s favor. Martinez, 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).

1. Fact Issues Exist as to Whether Cook, as Gas Lessee, Has a Right to Use the Easement

Homeowners contend the release of the pipeline right-of-way easement vested ownership of the easement back into the owners of the real property; hence, absent a right-of-way easement, Cook could not use the pipeline. Cook argues that it, as mineral lessee, has the right to make reasonable use of both the surface and the subsurface of the property to give effect to its oil, gas, and mineral lease, and that part of that reasonable use is the use of this pipeline.

In 1983, C.P. and Edna Denson executed an oil, gas, and mineral lease to Cook Exploration Company. In 1991, Eugene and Jo Ann Porter also executed an oil, gas, and mineral lease to Cook Exploration Company. In 1992, the oil, gas, and mineral leases of Denson and Porter were pooled and consolidated to form a single production unit known as the “Cook Exploration Company C.P. Denson Gas Unit. No. 2.” The consolidated lease covers the right-of-way property held by Trident N.G.L., Inc.

The mineral lease gives Cook the dominant estate. Ball v. Dillard, 602 S.W.2d 621, 523 (Tex.1980). The holder of the dominant estate has the right to use the land, both surface and subsurface, absent an express limitation, as is reasonably necessary to enjoy the terms of the lease contract and to carry out the purposes and intentions of the parties. Id.; Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, 865 (1961).

But whether the lease’s grant of the dominant estate carries the right to use the particular easement is a fact question.

Although the mineral estate is the dominant estate, the rights implied in favor of the mineral estate are to be exercised with due regard for the rights of the surface owner. Getty [Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971) ]; General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668, 669 (1961); Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 563 (1939).
The accommodation doctrine is based on this concept of “due regard.” [Getty, 470 S.W.2d] at 622. The accommodation doctrine, also known as the “alternative means” doctrine, was first articulated in Getty as a means to balance the rights of the surface owner and the mineral owner in the use of the surface:
Where there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under established practices in the industry there are alternatives available to the lessee whereby minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee. [Footnote omitted.]
Getty, 470 S.W.2d at 622. This right of accommodation between the surface and mineral estates is dependent upon the state of the evidence and the findings of the trier of the facts. Id. at 623. In Getty, the surface owner’s “most advantageous, and perhaps the only reasonable means of developing the surface for agricultural purposes” was the rolling irrigation system that was blocked by Getty’s pumpjacks. Id. at 622. Getty had available either submerged pumps in concrete cellars or surface-mounted hydraulic pumps that were no taller than the irrigation system, which this court held to be “reasonable alternatives to its present use of the surface.” Id. (emphasis added).
The burden of proof to show that the use of the surface by the lessee is not reasonably necessary is upon the surface owner. Id. This may be proven by showing that the lessee’s use of the surface is not reasonably necessary because of non-interfering and reasonable ways and means of producing the minerals that are available, the use of which will permit the surface owner to continue the existing use of the surface. Id.

Tarrant County Water Control & Improvement Dist. Number One v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex.1993). Fact questions exist. Therefore, further proceedings are required to resolve the fact question whether Cook, as gas lessee, has a right to use the easement in question.

2. The Pipeline Is Conclusively Personalty

Homeowners argue that the pipeline is real property and not personal property; hence, the “finders keepers law” does not apply and the abandoned pipeline reverted to the owners of the surrounding real property. Whether property embedded in the soil is realty or remains personal property is a fact question. Logan v. Mullis, 686 S.W.2d 605, 608 (Tex.1985). It is the intent of the party placing the property that is critical in determining the character of the property. Id.; Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475, 479 (Tex.1995).

To determine if personal property has become part of the realty, three factors are relevant:

(1) the mode and sufficiency of annexation, either real or constructive; (2) the adaptation of the article to the use or purpose of the realty; and (3) the intention of the party who annexed the chattel to the realty. The third criterion dealing with intention is preeminent, whereas the first and second criteria constitute evidence of intention.
Intent is made apparent by objective manifestations. As a general rule, intent is a question of fact to be decided by the jury. However, even testimony of intention that the chattel was not meant to become a fixture will not prevail in the face of undisputed evidence to the contrary. Where reasonable minds cannot differ, the issue is one of law rather than one of fact.

Mullis, 686 S.W.2d at 607 (citations omitted). Homeowners argue the testimony of Jim Hawkins, Trident’s plant superintendent, demonstrates Trident’s clear intent for homeowners to become the owners of the pipeline, thus making the pipeline part of the land. Trident’s intent is not relevant here.

A thirty-six inch diameter, 390 mile long, pipeline carrying natural gas was deemed not a part of the realty. See Lingleville Indep. Sch. Dist. v. Valero Transmission Co., 763 S.W.2d 616 (Tex.App.-Eastland 1989, writ denied). That resulted because the pipeline installer expressly retained its right to remove the pipeline and the agreement provided that “Valero would have a right to access to and from the right-of-way in order to construct, inspect, repair, maintain, replace, or remove Valero’s property.” Id. at 618 (emphasis added).

An agreement may evidence the intention of the contracting parties that the improvements placed on the realty would not become a part of the land and thus not the property of the landowner. Id. Here, in 1961 Cities Services acquired a right-of-way easement to construct, repair, and maintain a gas transportation pipeline under what became the residential neighborhood of Homeowners. The right-of-way easement provided:

This right-of-way agreement may be assigned by GRANTEE, its successors and assigns, in whole or in part, vesting in any other person, firm or corporation any or all rights granted hereby, including the ownership of any facilities in place, together with full rights of ingress and egress for the maintenance, repair, operation, replacement and removal thereof.

(Emphasis added). The written easement between Cities Services and the landowners expressed the intent of the parties that the pipeline would not become a permanent accession to the freehold. As per the agreement, Trident — successor in interest to Cities Services — even removed portions of its pipeline and capped the rest.

The pipeline was also not an accessory to the enjoyment of the' freehold. It was adapted just for the transmission of gas, accessory to the business of Cities Services and for its sole purpose. On similar facts, the Texas Supreme Court found that property installed on realty remained personalty-

[The railroad] parts were merely accessory for its business, and were put on the land for this purpose, and not as accessories to the land over which the road was to pass.... [Thus,] the spur track involved in this controversy was not at any time, and never became, a permanent fixture and a part of the realty....

Tex. & New Orleans R.R. Co. v. Schoenfeld, 136 Tex. 173, 178, 146 S.W.2d 724 (1941). Cities Services’ intent to keep the pipeline personalty is apparent from the evidence. Homeowners did not submit any contrary evidence of Cities Services’ intent. In light of the undisputed evidence, the pipeline is personal property.

S. Neither Side Conclusively Proved Ownership of the Pipeline

A. Homeowners Did Not Conclusively Prove Their Ownership

Homeowners contend that, by virtue of Trident’s intentions when it released its right of way, August 12, 1993, the pipeline is now owned by Homeowners, not Cook. As part of their argument, Homeowners claim Trident released the easement “to the property owners,” but the release names no recipient or beneficiary of the release. Homeowners also assert that the legal effect of the release is to vest the easement in the surface owners, citing Shaw v. Williams, 332 S.W.2d 797, 800 (Tex.Civ.App.-Eastland 1960, writ ref d n.r.e.). Shaw involved an easement for access to, and rights to pump water from, a lake. The appellate court held that, once the easement holder, released the easement, it reverted to the landowner. True, the court examined intent, but it focused on the intent of the parties to the deed which created the rights in question and, from that intent, determined the deed created an easement — which, once abandoned, reverted to the landowner — not a determinable fee simple as was claimed by one of the parties. Id. In Shaw, the intent of the party abandoning the easement was not important. Likewise, here, the intent of the parties to the original pipeline agreement is important, not Trident’s intent. We conclude, - on the authority of Shaw, that the easement, when released, reverted to the associated landowners, possibly subject to reasonable use by the holder of the dominant estate, dependent on a fact issue.

But that does not answer the question about the ownership and right to use the pipeline itself. Given that it is personalty, its ownership does not necessarily follow ownership of the easement. See Pearson v. Black, 120 S.W.2d 1075, 1079 (Tex.Civ. App.-Eastland 1938, no writ) (discussed below). Homeowners did not conclusively prove ownership of the pipeline.

B. Cook Did Not Conclusively Prove Its Ownership

Cook claims ownership of the pipeline through its use of the abandoned personal property. Title to abandoned personal property vests in the first person lawfully reducing it to possession. Black, 120 S.W.2d at 1079. In general, abandonment means “the relinquishment of the possession of a thing by the owner with the intention of terminating his ownership, but without vesting it in any one else.” Id. “Abandoned personalty is no man’s property until reduced to possession with intent to acquire title.” Gregg v. Caldwell-Guadalupe Pick-Up Stations, 286 S.W. 1088, 1084 (Tex. Comm’n App.1926, holding approved).

In 1911, Black entered into an oil and gas lease with Texas Company. Black, 120 S.W.2d at 1077. Link Oil Corporation (“LOC”), the successor in interest to Texas Company, drilled a well on the property, placed on it a quantity of drilling equipment and well casings, built a rig, and discovered gas. Id. The well continued to produce gas until about January 1,1932, at which time LOC abandoned it. Id. Pearson entered on the land and removed 3,027 feet of casing. Id. at 1078. The court ruled that the casing, as personalty, did not revert to the landowners upon abandonment:

Assuming, as said before, that title to the oil, gas, coal and other minerals granted by the instrument and being a freehold estate in land — a determinable fee estate — could be lost or extinguished by simple abandonment, and that the title would as a consequence revest in the former owners of the land, it does not follow, in our opinion, that title to the casing would by abandonment ipso facto vest in such former owners of the land. Under the lease, such personal property was not a part of the land.... There was a contract right to remove such personal property at will which would not have been affected by an abandonment of the lease.... We know of no rule or principle of law to the effect that abandoned personal property becomes the property of him upon whose land it happens to be left.

Id. at 1079. The court held in favor of Pearson, based on the evidence that Pearson was the first to take an actual possession of the casings once abandoned. See id. Similarly, the pipeline here is personalty; hence, on abandonment the pipeline did not automatically revest in the former or current owners of the land.

The facts of the case at hand do not, in our opinion, satisfy the requirement of Black to vest the interest in Cook. We understand Black to mean that, to ripen title to personalty, a person must reduce it to lawful possession after the property has been abandoned. To read Black otherwise is contrary to its language and would reward one who, at least initially, was a converter — or at least an unauthorized possessor — of personalty before it had been abandoned. The evidence suggests at least the possibility that Cook possessed the pipeline before it had been abandoned, but exactly when it was abandoned appears to be a fact issue.

Certainly on August 12, 1993, Trident formally released the right-of-way easement and abandoned the pipeline. By this time, however, Cook was already using the pipeline to transport gas from Denson No. 2 well. It is not disputed that Cook began using the pipeline in 1991 and continued using it after August 12, 1993, the date it was officially abandoned. This is in contrast to the facts of Black, in which Pearson and Jensen carried away the well casing only after its abandonment.

Here, if the pipeline was abandoned only in 1993 and not before, Cook took possession of unabandoned personal property contrary to the expressed wishes of its owner. Yet there is evidence suggesting the pipeline may have been informally abandoned before Cook started using it in 1991. That is a fact question. Therefore, further proceedings are required in the trial court to determine whether the evidence shows the pipeline’s abandonment before Cook began its use.

We reverse the judgment and remand this cause for further proceedings in accordance with this opinion.


author: JOHN T. BOYD, Senior Justice

text:
    Willie Ray SHULTS, Appellant, v. BAPTIST ST. ANTHONY’S HOSPITAL CORPORATION and Baptist St. Anthony’s Health System, Appellees.
    No. 07-04-0012-CV.
    Court of Appeals of Texas, Amarillo.
    June 23, 2005.

      Mark N. Buzzard, Buzzard Law Firm, P.C., Pampa, for Appellant.
    Dan L. Schaap and W. Wade Arnold, Underwood, Wilson, Berry, Stein & Johnson, P.C., Amarillo, for Appellees.
    Before QUINN, C.J., REAVIS, J. and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp.2004).

   Opinion

JOHN T. BOYD, Senior Justice

(Retired).

In this appeal, appellant Willie Ray Shults (Shults) challenges a take-nothing summary judgment in favor of appellees, Baptist St. Anthony’s Hospital Corporation and Baptist St. Anthony’s Health System (collectively BSA). In challenging the judgment, Shults presents ten issues for our determination. In those issues, Shults contends the trial court erred in entering its summary judgment because: 1) BSA failed to prove its affirmative defense of limitations as a matter of law, and 2) Schults’ evidence was sufficient to show fact issues regarding the necessary elements of his healthcare liability claims. Disagreeing that reversal is required, we affirm the judgment of the trial court.

Background

Shults, who suffers from diabetes, was admitted to BSA Hospital for a surgical procedure on his right leg. In preparation for this surgical procedure, he was directed to take, a shower. After taking the shower, and while returning to his bed, Shults noticed a trail of blood leading from the restroom to the bed. He contends that this injury occurred on April 28, 2000, the day he took the shower, and that it occurred when he stepped on a sharp paint chip on the bathroom floor. He informed a nurse that he had suffered an injury to his left foot. The nurse inspected the injury and placed a bandage on it. A few days later, the bandage was changed and Shults was discharged from the hospital. Later, after Shults’s discharge, the cut to his left foot became infected requiring extensive treatment and, ultimately, surgical intervention.

On June 25, 2002, Shults filed suit, alleging that BSA had been negligent in failing to: 1) provide a reasonably safe shower, 2) inspect the shower, 3) adequately supervise the renovation of the shower, 4) properly diagnose and treat the cut to his left foot, 5) provide appropriate emergency treatment for the injury, 6) provide medical specialists to treat the injury, 7) provide accurate information to the hospital to which Shults was transferred, 8) document the medical care that was provided, 9) follow medical directives, and 10) provide appropriate follow-up treatment:

In its successful motion for summary judgment, BSA alleged that Shults’s claims were not health care liability claims but were ordinary negligence or premises liability claims barred by limitations or, in the alternative, that Shults had produced no evidence of one or more of the essential elements of a healthcare liability claim.

In this appeal, and in seeking reversal of-the trial court judgment, Shults presents ten issues for our determination. The first five of those issues relate to BSA’s summary judgment contention that Shults’s claims are barred by limitations and will be considered and addressed together. Shults’s sixth through ninth issues relate to BSA’s summary judgment contention that he produced no evidence of the elements necessary to sustain a healthcare liability claim and they will be addressed together; Finally, Shults’s tenth issue is a general challenge to the trial court’s grant of the summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

Limitations

As we have noted above, BSA contended that Shults’s claims were not healthcare liability claims as that phrase is defined in the Texas Medical Liability and Insurance Improvement Act and, therefore, are barred by limitations as a matter of law.

It is now axiomatic that we review a grant of summary judgment using the standards explicated in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), i.e., the movant has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, evidence favorable to the non-movant will be taken as true, and all reasonable inferences from the evidence must be indulged in favor of the non-movant and any doubts resolved in its favor. When the movant is the defendant, the movant must disprove at least one of the elements of the non-movant’s cause of action, or alternatively, the movant must prove each element of an affirmative defense. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). The affirmative defense of limitations is an appropriate ground for summary judgment. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex.1999).

As applicable to the first three claims contained in Shults’s petition, we conclude that BSA has affirmatively proven that these claims are not healthcare liability claims and that they are, therefore, barred by limitations. We agree with BSA’s characterization of Shults’s claims as involving two distinct theories of recovery, one based upon premises liability and the other on medical negligence. Personal injury claims resulting from departures from accepted standards of safety may be included within the scope of article 4590i, but such departures must be inseparable parts of the rendition of medical services and the standards of safety within the health care industry to be covered by the Act. Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995); Buck v. Blum, 130 S.W.3d 285, 291 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We do not believe that the presence of a sharp paint chip in the shower of Shults’s hospital room could be considered in any way an inseparable part of the medical services rendered to Shults. We must, therefore, conclude that BSA has established that Shults’s claims relating to the shower are barred by limitations as a matter of law. We affirm that portion of the trial court’s summary judgment that Shults take nothing under these three allegations.

No Evidence

As an alternative argument, in its summary judgment motion, BSA urged that Shults had not produced any evidence of the essential elements of a healthcare claim governed by article 4590i and, as a result, it was entitled to summary judgment under Rule of Civil Procedure 166a(i). As we stated above, we agree with BSA’s characterization of Shults’s claims as presenting both premises liability and medical negligence theories. Indeed, all theories presented by Shults, other than those above discussed, present claims that are properly classified as healthcare liability claims. See Walden v. Jeffery, 907 S.W.2d at 448; Buck v. Blum, 130 S.W.3d at 291.

- After adequate time for discovery, a party may move for summary judgment as to all or any part of a lawsuit on the basis that there is no evidence of one or more essential elements of a claim or defense upon which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(a), (b), & (i). In considering whether a judgment on that basis is justified, we view the evidence in a fight most favorable to the party against whom a no-evidence judgment was ■ rendered, disregarding all contrary evidence and inferences. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact as to the element upon which the motion is based. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d at 711; Roth v. FFP Operating Partners, L.P., 994 S.W.2d at 195. More than a scintilla of evidence exists when such evidence rises to a level that would enable reasonable and fair minded persons to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d at 711; Roth v. FFP Operating Partners, L.P., 994 S.W.2d at 195.

In determining the no-evidence question, we look first to the two expert reports of Steven Davis, D.O., to see if they contain evidence that BSA’s inadequate treatment caused Shults’s foot infection. In both of his reports, his emphasis is that BSA was negligent in allowing the paint chip to be in the shower. However, that is evidence of a premises defect. To the extent that Davis addresses any medical negligence on BSA’s part, he opines that the laceration to Shults’s left foot “led to” or “subsequently developed” into the infection. Those statements do not address any inadequate treatment that might have caused Shults’s infection. In his May 13, 2003 report, Davis opines that appropriately disinfecting and monitoring the wound would have lessened the chance of infection, but he does not opine that disinfection and monitoring would have prevented the infection. An expert’s statement that the standard of care was breached and that, but for the breach, the claimant possibly would have had a better outcome is not sufficient. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). Thus, because the Davis reports fail to explain how the failure to disinfect or monitor the wound caused the infection, even when viewed in a light most favorable to Shults, they are too concluso-ry ■ to constitute more than a scintilla of evidence of causation.

Further, the deposition testimony of Bryan Bullard, D.P.M., Shults’s podiatrist, never addresses any causal connection between the nurses’ treatment of the foot injury and the subsequently developed infection. Likewise, the testimony of Primi-tivo Cuellar fails to identify any causal connection between BSA’s treatment and the infection.

Therefore, after reviewing all the record evidence, we find it insufficient to show more than a scintilla of evidence regarding causation. That being so, the trial court did not err in granting summary judgment as to Shults’s claims of healthcare liability.

In summary, none of Shults’s issues reveal reversible error. They are, therefore overruled, and the judgment of the trial court is affirmed.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon 2002).

      . See Tex.R. Civ. P. 166a(c).

      . See Tex.R. Civ. P. 166a(i).

      . Formerly article 4590i of the Texas Revised Civil Statutes. Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985-87 (repealed 2003) current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-74.507 (Vernon 2005). Further references to subsections of article 4590i will be by reference to "section_"

      .The significance of whether Shults's claims constitute healthcare liability claims (based upon the undisputed evidence that Shults gave appropriate notice of healthcare liability claims under article 4590i) is the statute of limitations was tolled for 75 days on any such claim. See section 4.01(c). Therefore, Shults’s claims were timely filed to the extent they asserted healthcare claims.

      . We note that Shults attempts to present two issues in his appellate brief relating to "new and independent cause.” However, he wholly fails to brief this issue or support it by citation to authority. We therefore deem those issues waived. See Knie v. Piskun, 23 S.W.3d 455, 460 (Tex.App.-Amarillo 2000. pet. denied); Lewis v. Deaf Smith Electric Cooperative, Inc., 768 S.W.2d 511, 512-13 (Tex.App.-Amarillo 1989, no writ).

      . Shults presented an issue contending that the trial court erred in granting summary judgment because it relied upon conclusory opinions favorable to BSA stated by Jan Willis, R.N. However, as review of a no-evidence summary judgment, both at the trial level and on appeal, is limited to evidence of causation viewed in a light most favorable to the non-movant, we cannot see that such a conclusory opinion contained in the affidavit could, or would, affect the propriety of the trial court’s summary judgment.

      . Shults challenges the sufficiency of BSA’s motion by contending that it failed to specify the element of his action upon which no evidence was produced. However, we conclude that BSA's recitation in its motion that ”[p]er-haps the most important evidence of the Plaintiff's failure to carry his burden of proof on the issue of causation ...” was sufficient to identify causation as an element that was being challenged. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d at 195.


author: Justice CARTER.

text:
    In re Darrin BUGGS.
    No. 06-05-00078-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 23, 2005.
    Decided June 24, 2005.

      Darrin Buggs, Rosharon, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Darrin Buggs has filed a petition for writ of mandamus seeking two separate types of relief. The underlying lawsuit is against a former employee of the Texas Department of Criminal Justice (TDCJ). In the petition, Buggs asks us to (1) order the district judge, in whose court Buggs’ civil lawsuit is pending, to order the district clerk to take a number of actions that would culminate in serving citation by publication, and (2) order the district judge to rule on his discovery motion, in which he asked the trial court to order the director of the TDCJ to take all necessary actions to obtain an address for its now Kansas-bound former employee.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court is required to consider and rale on a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). One court has held that eighteen months is too long and found mandamus appropriate as a means to compel the court to rule. In re Ramirez, 994 S.W.2d 682, 684 (Tex.App.San Antonio 1998, orig. proceeding).

Once a plaintiff initiates a lawsuit by filing an original petition, citation should issue and be served, along with the original petition, on all named defendants. Tex.R. Civ. P. 21, 99(a), 106, 108, 109. “Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition.” Tex.R. Civ. P. 99(a); see Allen v. Rushing, 129 S.W.3d 226, 230 (Tex.App.-Texarkana 2004, no pet.). Rules 109, 114, and 116 address service by publication. Tex.R. Civ. P. 109, 114, 116. It is therefore the duty of the district clerk to issue service of process in accordance with the rules.

Buggs asks this Court to order the district judge to order the district clerk to do her duty. Under these circumstances, however, on the record presented to this Court, we cannot say that such a duty has arisen. The motion referenced is an “Advisory to the Court,” which merely points out that Buggs has no good means of access to resources needed to obtain service through a media outlet in Kansas. He seeks to have the court-order the clerk to retrieve an address of a newspaper in Kansas and secure the publication of notice to the defendant in such outlet. It is clearly not part of the duty of the district clerk to seek out and locate either person or newspaper in Kansas for the benefit of a plaintiff. It is.also not the obligation of the clerk to provide payment to the media outlet for such service. As set out in Rule 99(a), the responsibility lies on the party requesting citation.

Further, the “advisory” is not a motion seeking relief, and there is nothing within it seeking action by the district court. Thus, no error of law adequate to justify mandamus has been shown.

In the remaining argument, Buggs asks us to order the district judge to rule on his discovery motion, in which he asked the trial court to order the director of the TDCJ to take all necessary actions to obtain an address for its now Kansas-bound former employee. Although a district judge does have a duty to rule on motions properly before it, we also note that only three months have elapsed since the date on which Buggs states the motion was presented to the court. In the absence of additional information, we cannot say that, as a matter of law, sufficient time has elapsed to justify ordering the court to rule on the motion.

Further, we note that the motion on its face neither indicates that any request for discovery has been sent to the TDCJ nor has it had an opportunity to respond. It would be premature to order that entity to provide information for which no proper request has been made. Finally, we note that Buggs does not seek information in the custody of the TDCJ, but seeks to direct that entity to seek out and obtain information. The scope of discovery for tangible items only requires production of items within the person’s possession, custody, or control. See Tex.R. Civ. P. 192.3(b).

For all of these reasons, we deny the petition for writ of mandamus.

      . We note that the duty may be negated by the trial court under certain circumstances. See Tex. Civ. Prac. & Rem.Code Ann. art. 14.003(a) (Vernon 2002).


text:
    Lisa PARKER, Individually and on Behalf of Kristopher “Cody” Parker, Appellant, v. CCS/MEADOW PINES, INC., Appellee.
    No. 06-04-00097-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted April 14, 2005.
    Decided June 28, 2005.

      Steven L. Rushing, Longview, for appellant.
    Kenneth C. Stone, Amanda L. Hopkins, Gwinn & Roby, Dallas, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Kristopher “Cody” Parker, while a patient at Meadow Pines Hospital, a private mental health hospital in Longview, allegedly suffered injuries related to restraints used on him. After suit and the passage of an appropriate time period, the defendant Hospital moved for, and received, dismissal of the lawsuit because of Parker’s failure to file an expert report under Section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Crv. PRAC. & Rem.Code Ann. § 74.351 (Vernon 2005).

Parker’s appeal asserts the trial court erred by dismissing Parker’s lawsuit— based on an apparent finding that Parker alleged only “healthcare liability claims”— and also by awarding attorney’s fees to the Hospital. We conclude (1) Parker’s claims are “healthcare liability claims” as used in the statute — so the dismissal was proper— and (2) the attorney’s fee award was proper. For that reason, we affirm the judgment of the trial court.

The trial court’s decision to dismiss a case under Section 74.351(b) is reviewed for abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). An abuse of discretion occurs when a trial court "acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Jones v. Christus Health Ark-LaTex, 141 S.W.3d 790, 792 (Tex.App.-Texarkana 2004, no pet.). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Id. A trial court, however, has no discretion in determining what the law is or in applying the law to the facts. Id. Thus, a “clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion....” Id.

If a plaintiffs cause of action is a healthcare liability claim, and if the plaintiff fails to file an expert report within the statutory time period, a trial court does not abuse its discretion by dismissing the case with prejudice. Id. If, however, the plaintiffs claim is not one for healthcare liability, or if the trial, court dismissed.in the erroneous belief that the plaintiff had faded to file an expert report, then the trial court abused its discretion, and the dismissal must be reversed. Id. Whether a cause of action advances a healthcare liability claim is a question of law to be reviewed de novo on appeal. Jones, 141 S.W.3d at 793.

(1) Parker’s Claims Are “Healthcare Liar bility Claims” as Used in the Statute

Section 74.351(a) provides a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. Tex. Civ. PraC. & Rem.Code Ann. § 74.351(a). If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant, the trial court is required to dismiss the action with prejudice and award reasonable attorney’s fees and court costs incurred by the defendant, Tex. Civ. Peac. & Rem.Code Ann. § 74.351(b). Section 74.351(a) applies only to healthcare liability claims. Jones, 141 S.W.3d at 792.

A healthcare liability claim is
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in'injury to or death of a claimant, whether' the claimant’s claim or cause of action'sounds in tort or contract.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005) (emphasis added).

Parker argues on appeal that, because the claims relate to nonmedical, administrative, ministerial, and routine care, which are within the knowledge of laypersons, expert testimony is not required. To support this argument, Parker cites three cases: Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984); St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 812 (Tex.App.-Dallas 1992, no writ); and Golden Villa Nursing Home v. Smith, 674 S.W.2d 343, 349 (Tex.App.-Houston [14th Dist.] 1984, writ ref d n.r.e.). But Morgan, Cecil, and Smith, deal with expert testimony at trial, not pretrial expert reports required by Section 74.351(a). Therefore, we find those cases inapplicable.

To determine if Parker’s claims are healthcare liability claims, we must examine the underlying nature of the claims. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994); Jones, 141 S.W.3d at 793. We are not bound by Parker’s characterization of the claims. Buck v. Blum, 130 S.W.3d 285, 291 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Plaintiffs cannot use artful pleading to avoid the statutory requirements when the essence of the suit is a healthcare liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004) (negligent cre-dentialling claim is healthcare liability claim). A cause of action is a healthcare liability claim if, to prove it, the claimant must establish an applicable standard of care for healthcare providers or if the act or omission complained of was “an inseparable part of the rendition of medical services.” Jones v. Khorsandi, 148 S.W.3d 201, 206 (Tex.App.-Eastland 2004, pet. filed); Buck, 130 S.W.3d at 291; Rubio v. Diversicare Gen. Partner, Inc., 82 S.W.3d 778 (Tex.App.-Corpus Christi 2002, pet. granted); Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 672 (Tex.App.-Dallas 2001, no pet.); Williams v. Walker, 995 S.W.2d 740, 741 (TexApp.-Eastland 1999, no pet.).

Parker’s petition alleges that Hospital employees improperly restrained Cody, failed to have sufficient staff, failed to properly train staff, violated Cody’s rights as set out in the Patient’s Bill of Rights, failed to abide by the Hospital’s “own standards in the care and treatment” of Cody, failed to exercise “due care and caution” as to Cody, and failed to timely and appropriately treat Cody’s injuries— all claims which are healthcare claims, because proving them would require establishment of the appropriate standards of care to be used when restraining or otherwise caring for mental patients. But Parker also alleged Hospital employees abused, neglected, or exploited Cody and then covered up or misrepresented those wrongs — claims we will refer to as Parker’s “abuse” claims. The abuse claims bear additional scrutiny.

Even in a medical setting, claims of torts which are not inseparably part of healthcare services or of “safety or professional or administrative services directly related to health care” are not healthcare liability claims. For example, unwanted sexual advances by a doctor produced claims that were not healthcare liability claims. See Khorsandi, 148 S.W.3d 201; see also Buck, 130 S.W.3d 285; Rubio, 82 S.W.3d 778; Bush, 39 S.W.3d 669.

If employees of the Hospital abused Cody in some way unrelated to his course of care or treatment, such as by assaulting him outside of efforts to care for or to restrain him for safety purposes, then claims for such acts would not be healthcare liability claims. But we have reviewed the petition and find, even with a liberal reading of the pleading, no allegations of any act committed by anyone who had turned aside from the Hospital’s mission to care for and restrain Cody during his course of care. All of Parker’s claims would require reference to the standards by which mental health institutions restrain patients. See Jones, 141 S.W.3d at 794. Accordingly, the entirety of Parker’s suit is properly characterized as one claiming healthcare liability.

Because Parker never filed a medical expert report, the trial court, on the Hospital’s motion, was required to dismiss the action with prejudice. See id.

(2) The Attorney’s Fee Award Was Proper

The trial court awarded the Hospital $9,000.00 in attorney’s fees. Section 74.351(b)(1) provides that, if an expert report has not been served within the period specified, the trial court, on a proper motion, shall award attorney’s fees and costs of court to the affected party. Tex. Civ. Prao. & Rem.Code Ann. § 74.351(b)(1). We find nothing in Section 74.351(b)(1) dictating the timing of a trial court’s award of attorney’s fees. Parker cites no authority to support the contention that the trial court deferring a finding on the Hospital’s attorney’s fees was improper, nor did this Court find any authority to support Parker’s argument. The trial court did not abuse its discretion by awarding attorney’s fees in the manner it did.

We affirm the trial court’s judgment.

      . Cody’s mother, Lisa Parker, individually and on his behalf, sued CCS/Meadow Pines, Inc. We refer to plaintiff as Parker and CCS/Meadow Pines, Inc., as the Hospital.

      . Cody’s alleged injuries occurred November 10, 2001. Parker filed suit November 10, 2003, but never filed an expert report. The Hospital filed its motion to dismiss May 12, 2004, and the trial court granted that motion June 9, 2004, delaying consideration of attorney’s fees until later.

      . Tex Civ. Prac. & Rem.Code Ann. § 74.001(a)(13).

      . An issue on appeal can be waived for inadequate briefing. See Tex.R.App. P. 38.1(h); Santillan v. Nat’l Union Fire Ins. Co., 166 S.W.3d 823, No. 08-04-00101-CV, 2005 WL 1362709, at *2, 2005 Tex.App. LEXIS 4427, at *3-4 (Tex.App.-El Paso June 9, 2005, no pet.); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).


text:
    In re SILICA PRODUCTS LIABILITY LITIGATION.
    No. 04-0606.
    Texas Judicial Panel on Multidistrict Litigation.
    Nov. 10, 2004.
   APPOINTMENT OF PRETRIAL JUDGE IN THE FOLLOWING MULTIDISTRICT LITIGATION CASE:

Pursuant to Administrative Rule 13, the cases listed on Appendix A, attached hereto and incorporated herein for all purposes, and tag-along cases if any, are transferred to Judge Tracy Christopher of the 295th District Court of Harris County.

Justice CASTILLO not sitting.

APPENDIX A .

Amended Appendix A, Part I and II

This amended appendix contains the statutory information regarding cases requested for transfer. For ease of reference, the amended Appendix consists of two parts. Part I identifies Cause Number, Style, Court, Plaintiffs and Plaintiffs’ Counsel. Part II identifies defendants, the cases in which they are a party and their counsel.