author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    BUILDERS TRANSPORT, INC. (“BTI”), Appellant, v. Loretta Yvette GRICE-SMITH, Individually, and as the Representative of the Estate of Roy Cell Smith, Jr., Deceased, et al., Appellees.
    No. 10-01-00130-CV.
    Court of Appeals of Texas, Waco.
    March 9, 2005.

      Stephen G. Tipps, Baker Botts, LLP, Houston, Joseph H. Pedigo, Bellaire, for appellant.
    Alton C. Todd, Law Office of Alton C. Todd, Friendswood, Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, Dale Williams, Williams, Squires & Wren, Waco, Joseph M. Nixon, Phillips & Akers, Houston, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

The surviving relatives of Roy Cell Smith, Jr. (collectively, “Appellees”) filed a wrongful death and survival action against Builders Transport, Inc. and its employee John Alfred Landry for damages sustained after a semi owned by Builders Transport and driven by Landry overturned, ejecting Smith who died as a result. A jury found in Appellees’ favor and awarded them $4.4 million in damages. Builders Transport contends on appeal that there is no evidence or factually insufficient evidence to support the verdict, that the court improperly charged the jury on Appellees’ theories of recovery, and that the jury’s award of $1 million for Smith’s pain and mental anguish is excessive.

Because the charge faded to require the jury to determine the factual predicates necessary to determine whether Builders Transport was negligent under the theories alleged and because the charge failed to require the jury to determine whether Landry had actual or apparent authority to invite Smith to ride with him, we will reverse and remand.

FACTUAL BACKGROUND

Landry applied for a job with Builders Transport in June 1995. Builders Transport hired Landry after he completed Builders Transport’s three-week driver training program and obtained a commercial driver’s license. Landry then completed a four-week on-the-job training program, driving under the supervision of other company drivers.

On the occasion in question, Landry was delivering a load of tires to a plant in Houston. When he arrived on a Saturday morning, he learned that the plant was closed for the weekend. He decided to visit his brother in Galveston. While there he came in contact with Smith, a friend of his. Smith asked Landry to take him to Builders Transport’s headquarters in Dallas the following Monday so he could apply for a job. Smith also asked him to take Smith’s friend Anthony Henry. Although Landry knew that company policy prohibited drivers from transporting passengers, he agreed to take Smith and Henry to Dallas after delivering the tires to the plant in Houston.

Landry consumed alcoholic beverages and narcotics over the course of the weekend. Henry saw Landry drinking a 40-ounce can of malt liquor shortly before they left Galveston. As they were leaving Galveston, the trailer came unhooked. While Landry reconnected the trailer, he asked Smith and Henry to buy him another drink. They got him a 16-ounce malt liquor which Landry drank as they drove to Houston.

The semi overturned' as Landry exited the interstate in Houston. Smith was ejected from the cab when it overturned. The semi skidded on its side along a concrete retaining wall and a guardrail for about 200 feet.

The medical examiner opined that the trailer ran over Smith and mangled the lower part of his body as it passed over. The medical examiner testified that Smith was conscious when he was ejected from the cab and lost consciousness sometime thereafter.

Landry pleaded guilty to intoxication manslaughter.

PROCEDURAL BACKGROUND

Smith’s wife Loretta Yvette Grice-Smith filed a wrongful death and survival action against Builders Transport and Landry in her individual capacity, as representative of his estate, and as next friend for their three minor children. Smith’s parents and the mother of his fourth .child were also plaintiffs. Appellees alleged that Builders Transport was vicariously hable for Landry’s negligence under the theory of re-spondeat superior. Appellees alleged that Builders Transport was directly liable for its own negligence under theories of negligent hiring, negligent training, negligent supervision, and negligent entrustment.

The court directed a verdict in Appel-lees’ favor on the question of Landry’s negligence. The court submitted questions to the jury regarding: whether Landry was acting in the scope of his employment on the occasion in question; whether the negligence of Builders Transport, if any, was a proximate cause of the occurrence; whether Smith’s negligence, if any, was a proximate cause; the apportionment of responsibility among those found negligent; and compensatory damages.

The jury found that Landry was acting in the scope of his employment and that the negligence of Builders Transport and of Smith were proximate causes of the occurrence. The jury apportioned responsibility among Landry, Builders Transport, and Smith as follows: Landry 55%; Builders Transport 30%; and Smith 15%. The jury awarded $1 million for Smith’s pain and mental anguish and for funeral and burial expenses. The jury awarded $600,000 to Smith’s wife and each of his four children for past and future damages. The jury awarded $200,000 to each of Smith’s parents for past and future damages.

NEGLIGENCE

Builders Transport contends in its third through sixth issues respectively that there is no evidence or factually insufficient evidence to support the jury’s finding of negligence under Appellees’ theories of negligent hiring, negligent training, negligent supervision, .and negligent entrustment. Because the trial court submitted a broad-form negligence question, the verdict must be upheld against a sufficiency challenge if the record contains sufficient evidence to support a finding on any one of these theories. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 160 (Tex.1995); In re C.N.S., 105 S.W.3d 104, 105 (Tex.App.-Waco 2003, no pet.).

Builders Transport argues in its fourth issue that there is no evidence or factually insufficient evidence to support the jury’s finding that it was negligent in training Landry. Because we conclude that the record contains some evidence and factually sufficient evidence to support the jury’s finding under this negligence theory, we do not address Builders Transport’s third, fifth, and sixth issues. Id.

STANDARD OF REVIEW

When we decide a “no evidence” point, “we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor.” Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Burleson St. Bank v. Plunkett, 27 S.W.3d 605, 612 (Tex.App.-Waco 2000, pet. denied). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). “More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002).

A factual sufficiency issue requires us to determine whether the challenged “finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex.2002).

Application

Landry’s trainer James Alexander had only a weekend course to prepare for being a trainer. Alexander had never “failed” a trainee, although an unspecified number of his trainees were subsequently terminated for “carelessness” after they had accidents. Landry testified that Alexander released him from training when Landry told Alexander he was ready, from which a rational juror might infer that Alexander allowed Landry to decide when he had received adequate training.

According to Builders Transport policy, only the terminal manager can formally release an employee to drive solo. The terminal manager did not release Landry to drive solo until ten days after the fatal accident. Despite Builders Transport’s protestations to the contrary, a rational juror could interpret this to mean the terminal manager did not believe Landry had received adequate training to drive solo until ten days after the occurrence in question. Landry’s brother testified that Landry told him he failed the backing portion of his driving test three times, from which a rational juror might infer that Landry never received adequate training for this driving skill.

This constitutes more than a scintilla of evidence that Landry received inadequate training which was a proximate cause of the occurrence in question. See Minyard Food Stores, 80 S.W.3d at 577.

Other evidence in the record tends to contradict the jury’s finding. Alexander testified that his qualifications to train drivers included not only the weekend course but also his years of experience as a driver for Builders Transport and for his previous employer. Alexander explained that on several occasions he had required trainees to continue their training beyond the usual thirty days because they were not ready to be released. Landry explained that a trainer typically released a trainee only when the trainee felt comfortable and the trainer believed the trainee was ready, thus discounting any inference from Landry’s testimony that Alexander released him from training only because Landry told Alexander he was ready. Landry’s evaluation forms indicated that he was “satisfactory” in the area of backing, which discounts his brother’s testimony that he had failed this part of the driving test three times.

Although the record contains some evidence which contradicts the jury’s verdict on Appellees’ negligent training theory, we cannot agree that the jury’s verdict “is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” See C.H., 89 S.W.3d at 25. Accordingly, we overrule Builders Transport’s fourth issue.

NEGLIGENCE CHARGE

Builders Transport presents two issues concerning the court’s instructions and questions on Appellees’ negligence theories. Builders Transport contends in its second issue that the court erred by failing to include an instruction in the charge that Builders Transport could be found hable under Appellees’ negligence theories only if the jury found that Builders Transport knew or should have known that Landry was an incompetent driver. However, because Appellees’ negligence theories do not all require a finding on this factual predicate, we will sustain Builders Transport’s second issue only in part.

Builders Transport contends in its eighth issue that the court should have charged the jury on gross negligence rather than ordinary negligence because Smith was a trespasser. However, because Ap-pellees are not alleging a premises defect or negligent activity claim, we will overrule this issue.

Knew-or-Should-Have-Known Instruction

Builders Transport contends in its second issue that the court erred by failing to instruct the jury that it could be found liable under Appellees’ negligence theories only if the jury found that Builders Transport knew or should have known that Landry was an incompetent driver.

Appellees contend that Builders Transport faded to preserve its second issue for appellate review because its trial objections do not comport with its appellate complaint and because the proposed instruction it submitted to the trial court is not “substantially correct.” Appellees further contend that the negligence question and accompanying instructions and definitions were correct as submitted.

Appellees are correct that Builders Transport’s trial objection does not comport with the appellate complaint. Thus, the objection did not preserve this issue for our review. See Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992) (per curiam); Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 151 (Tex.App.-Amarillo 2001, pet. denied).

Builders Transport submitted a written request that the trial court include the following instruction in the charge in connection with the negligence question:

As to Builders Transport, Inc., “negligence” means hiring or retaining in its employ an incompetent employee whom it knew, or by the exercise of reasonable care, should have known was incompetent, and thereby creating an unreasonable risk of harm to others.

Several appellate courts have held that the type of negligence theories alleged by Appellees require a finding that the employer knew or should have known that the employee in question was incompetent. E.g. Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 653-56 & n. 6 (Tex.App.-Dallas 2002, pet. denied); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet.); Robertson v. Church of God, Intl., 978 S.W.2d 120, 124 (Tex.App.-Tyler 1997, pet. denied); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.). Because these authorities support the submission of Builders Transport’s proposed instruction, we conclude that this issue has been adequately preserved. See Tex. Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 637-38 (Tex.1995). However, the proposed instruction is not a substantially correct statement of law as to all of Appellees’ negligence theories.

As stated, Appellees allege that Builders Transport is liable under theories of negligent hiring, negligent training, negligent supervision, and negligent entrustment. Negligent entrustment is generally treated as a separate cause of action. The parties do not dispute that a negligent entrustment claim requires a finding that the defendant knew or should have known that the person to whom it was entrusting a vehicle was a reckless or incompetent driver. See Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex.1985); Rosell, 89 S.W.3d at 655. Builders Transport contends that its proposed instruction applies not only to the negligent entrustment theory but also to Appellees’ other negligence theories.

The Supreme Court and other intermediate courts have consistently held that an employer can be held liable under most of the other negligence theories pleaded by Appellees only on a finding that the employer knew or should have known that its employee was incompetent. See Williams, 699 S.W.2d at 571; Rosell, 89 S.W.3d at 653-56 & n. 6; Morris, 78 S.W.3d at 49; Robertson, 978 S.W.2d at 124; Estate of Arrington, 578 S.W.2d at 178. Thus, it would appear that Builders Transport’s contention is correct.

However, Appellees allege two theories of negligent training: (1) that Builders Transport failed to provide proper training to its drivers (including Landry); and (2) that Builders Transport released Landry from training before he was ready. The “knew-or-should-have-known” requirement applies to the latter but not the former. The former allegation concerns Builders Transport’s driver training program generally. The latter concerns whether Builders Transport knew or should have known that Landry was ready to be released from training. Cf. id.

The former allegation is in effect a negligent undertaking claim, even though Appellees do not use that particular terminology to describe it. Section 324A of the Restatement (Second) of Torts describes when liability to a third party may arise from a negligent undertaking.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm re-suiting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty-owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965). Texas courts have adopted section 324A of the Restatement. See Coastal Corp. v. Torres, 133 S.W.3d 776, 780 & n. 5 (Tex.App.-Corpus Christi 2004, pet. filed); Seay v. Travelers Indem. Co., 730 S.W.2d 774, 776-77 (Tex.App.-Dallas 1987, no writ); accord Torrington Co. v. Stutzman, 46 S.W.3d 829, 837-38 (Tex.2000).

Here, Builders Transport can be held liable under the first of Appellees’ negligent training allegations only if: (1) Builders Transport knew or should have known that its driver training program was necessary to protect others; (2) Builders Transport failed to exercise reasonable care in training its drivers; and (3) Builders Transport’s failure to do so increased the risk of harm to Smith. See Coastal Corp., 133 S.W.3d at 780 & n. 5; Restatement (Second) of Torts § 324A; accord Torrington Co., 46 S.W.3d at 838-39.

Because of the trial court’s failure to include additional instructions regarding these predicate facts with the negligence question, Builders Transport contends that the jury’s negligence finding is immaterial and requests rendition of judgment in its favor. See Torrington Co., 46 S.W.3d at 840. However, because it has been necessary for this Court to clarify the manner in which Appellees’ negligence claim should be submitted, we will remand in the interest of justice. Id. at 840-41. Accordingly, we sustain Builders Transport’s second issue in part.

Duty Owed To A Trespasser

Builders Transport contends in its eighth issue that the court’s negligence charge is defective because if failed to instruct the jury that Smith was a trespasser and thus Builders Transport can be hable for his injuries only on a finding of gross negligence.

Under established tort law, a property owner owes a limited duty of care to trespassers. City of Bellmead v. Torres, 89 S.W.3d 611, 612 n. 13 (Tex.2002) (citing Restatement (Second) of. Torts § 333 (1965)) (other citations omitted). However, this limited duty of care applies only in cases involving alleged premises defects or negligent activities. See e.g. Torres, 89 S.W.3d at 612 (premises defect); Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 599, 603 (1954) (negligent activity).

Appellees plainly do not allege that Builders Transport’s premises (ie., the semi) were defective. Thus, we examine whether they allege a negligent activity theory sufficient to hold a premises owner liable. “Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992)); accord Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 133-34 (Tex.App.Houston [14th Dist.] 2001, pet. denied). Appellees’ negligence theories do not fit within this definition.

Appellees do not allege that Smith was injured “as a contemporaneous result” of Builders Transport’s allegedly negligent hiring, training, or supervision of Landry nor of its allegedly negligent entrustment of the semi to Landry. Therefore, the limited duty owed a trespasser by a property owner in a premises defect or negligent activity case is not the duty applicable to Appellees’ negligence theories.

Rather, a defendant may be liable under the negligence theories alleged by Appellees to any foreseeable plaintiff. Cf. Williams, 699 S.W.2d at 571 (negligent entrustment requires finding of proximate cause); Rosell, 89 S.W.3d at 655 (same).

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is [1] “that the injury be of such a general character as might reasonably have been anticipated; and [2] that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.”

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999) (emphasis added) (quoting Nixon v. Mr. Prop. Mgt. Co., 690 S.W.2d 546, 551 (Tex.1985)).

Thus, we conclude that the trial court properly overruled Builders Transport’s objection to the omission from the charge of a gross negligence instruction. Accordingly, we overrule Builders Transport’s eighth issue.

VICARIOUS LIABILITY

Builders Transport argues in its first issue that there is no evidence to support the jury’s finding that Landry was acting in the course and scope of his employment because Builders Transport’s policies prohibited drivers from transporting unauthorized passengers. Builders Transport claims in the alternative that the court erred by failing to instruct the jury on the “unauthorized passenger rule.” We conclude that the record contains some evidence to support the jury’s finding but that the court did not properly instruct the jury because it failed to submit a question inquiring whether Landry had actual or apparent authority to invite Smith to ride.

Applicable Law

Resolution of this issue lies at the intersection of three settled principles: (1) an employer is liable for the torts of its employee committed while acting within the scope of employment; (2) a property owner owes a limited duty of care to a trespasser; and (3) an agent’s representations to a third party are binding on the agent’s principal when made with actual or apparent authority.

The Supreme Court determined more than a century ago that an employer is liable for the torts of its employee committed while acting within the scope of employment, “although [the employer] may have expressly forbidden the particular act.” Intl. & Great N. R.R. v. Anderson, 82 Tex. 516, 520, 17 S.W. 1039, 1040 (1891). The principle that an employer can be liable for the acts of an employee done in violation of the employer’s policies still obtains. E.g., G.T. Mgt., Inc. v. Gonzalez, 106 S.W.3d 880, 884 (Tex.App.-Dallas 2003, no pet.); Fontenot Petro-Chem & Marine Servs., Inc. v. LaBono, 993 S.W.2d 455, 460 (Tex.App.-Corpus Christi 1999, pet. denied).

The actions of an agent or employee are binding on a principal or employer when those actions are performed with actual or apparent authority. See Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 98 (Tex.1994); Ebner v. First St. Bank of Smithville, 27 S.W.3d 287, 300 (Tex.App.-Austin 2000, pet. denied). Actual authority is authority which the principal intentionally confers on the agent or permits the agent to believe has been conferred. Ebner, 27 S.W.3d at 300; Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 30 (Tex.App.-San Antonio 1998, pet. dism’d w.o.j.). Actual authority has also been defined as authority which “is created by written or spoken words or conduct by the principal to the agent.” McWhorter v. Shelter, 993 S.W.2d 781, 786 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

Apparent authority arises:

either from a principal knowingly permitting an agent to hold herself out as having authority or by a principal’s actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority she purports to exercise _■
A prerequisite to a proper finding of apparent authority is evidence of conduct by the principal relied upon by the party asserting the estoppel defense which would lead a reasonably prudent person to believe an agent had authority to so act.

Baptist Meml. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex.1998); accord Ebner, 27 S.W.3d at 300-01; McDuff v. Chambers, 895 S.W.2d 492, 498 (Tex.App.-Waco 1995, writ denied).

Finally, a property owner owes a limited duty of care to a trespasser. The only duty an owner owes a trespasser is “to refrain from causing injury willfully, wantonly, or through gross negligence.” Torres, 89 S.W.3d at 613. This same duty applies to owners of both real and personal property. Williams v. Bill’s Custom Fit, Inc., 821 S.W.2d 432, 433 (Tex.App.-Waco 1991, no writ).

Section 242 of the Restatement (Second) of Agency encapsulates these three settled principles as they apply here:

A master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master’s premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant’s employment.

Restatement (Second) of Agency § 242 (1958).

This Court applied this principle in a similar case predating the Restatement. See Thomas v. So. Lumber Co., 181 S.W.2d 111, 114-15 (Tex.Civ.App.-Waco 1944, no writ); see also Kirklin v. Stand. Coffee Co., 114 S.W.2d 263, 264-65 (Tex.Civ.App.-Dallas 1938, no writ); Magnolia Petroleum Co. v. Winkler, 40 S.W.2d 831, 832-34 (Tex.Civ.App.-Eastland 1931, no writ). If, as Builders Transport alleges, Landry did not have actual or apparent authority to invite Smith to ride, then the only duty Builders Transport owed Smith was “to refrain from causing [him] injury willfully, wantonly, or through gross negligence.” See Williams, 821 S.W.2d at 434; Thomas, 181 S.W.2d at 114-15.

Appellees contend that this approach has been expressly rejected by the Fourteenth Court of Appeals in J.V. Harrison Truck Lines, Inc. v. Larson, 663 S.W.2d 37 (Tex.App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.). In that case, a track driver invited a Mend to ride with him from Houston to Dallas to deliver three large coils of pressed steel, each weighing between 17,000 and 19,000 pounds. As the driver attempted to unload the coils, one of them rolled off the trailer and fell upon the Mend, killing her. Id. at 39-40.

The track company argued on appeal that the trial court should have submitted an issue to the jury on the issue of whether the driver was authorized to accept riders. The Fourteenth Court concluded that the “unauthorized passenger rule” did not apply in that case because the friend did not receive the fatal injuries while riding in the track but rather during the unloading of the truck. Id. at 40-41.

Here conversely, Smith suffered his fatal injuries while riding in the truck. Accordingly, the reasoning of J.V. Harrison Truck Lines does not apply.

The “No Evidence” Claim

Here, the parties do not dispute that Landry was acting in the course and scope of his employment insofar as he was delivering a load of tires to a plant in Houston. Nor do the parties dispute that Builders Transport had a policy prohibiting drivers from transporting passengers. Therefore, the vicarious liability of Builders Transport for Landry’s negligence turns on whether Landry had actual or apparent authority to invite Smith to ride with him.

However, Builders Transport’s first issue challenges only the jury’s finding that Landry was acting in the course and scope of his employment on the occasion in question. The fact that Landry was performing his duties in a manner contrary to his employer’s instructions does not mean that he was acting outside the course and scope of his employment. See Intl. & Great N. R.R., 82 Tex. at 520, 17 S.W. at 1040; G.T. Mgt., 106 S.W.3d at 884; Fontenot Petro-Chem & Marine Servs., 993 S.W.2d at 460. Thus, we conclude that the record contains more than a scintilla of evidence to support the challenged finding. See Minyard Food Stores, 80 S.W.3d at 577. We likewise conclude that the challenged finding is not “so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias.” See C.H., 89 S.W.3d at 25.

The Charge

Builders Transport contends in the alternative that the trial court erred by denying its requested jury instruction on the “unauthorized passenger rule.” Ap-pellees respond that Builders Transport failed to properly preserve this issue for our review because it did not object to the omission of this instruction from the charge.

The instruction requested by Builders Transport would have instructed the jury that an employee is not acting within the scope of his employment if he permits another to ride in the employer’s vehicle even though the employer prohibits this and has not otherwise authorized the employee to permit another to ride in the vehicle.

An objection preserves for appellate review any error contained in the court’s charge as submitted. Tex.R. Civ. P. 272; Religious of the Sacred Heart v. City of Houston, 836 S.W.2d 606, 613-14 (Tex.1992); In re A.A.B., 110 S.W.3d 553, 557 (Tex.App.-Waco 2003, no pet.); Johnson v. Johnson, 869 S.W.2d 490, 492 (Tex. App.-Eastland 1993, writ denied). A question is defective as submitted if it seeks a finding on a recognized cause of action but does so without limiting instructions or other questions which properly restrict the question to the facts and law applicable to the case. See Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex.1999); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994).

Builders Transport objected to the question regarding its own negligence (Question No. 2) because the question failed to account for Builders Transport’s contention that Smith was a mere trespasser and thus its only duty to Smith was to not cause him injury intentionally or with gross negligence. In response, the court referred Builders Transport back to the scope-of-employment question (Question No. 1), which, in the court’s mind, resolved the issue of whether Smith was a trespasser. In reply, Builders Transport stated its disagreement with the court’s understanding of this issue.

.Question No. 1 as submitted was defective because it failed to include appropriate instructions regarding Landry’s authority. Therefore, the objections raised by Builders Transport with regard to Questions No. 1 and 2 preserved error. See Southeastern Pipe Line Co., 997 S.W.2d at 172-73; Spencer, 876 S.W.2d at 157. Because the charge erroneously failed to inquire whether Landry had actual or apparent authority to invite Smith to ride, we must determine whether this error harmed Builders Transport.

The jury apportioned fifty-five percent (55%) of the responsibility for Smith’s death to Landry’s negligence, thirty percent (30%) to the negligence of Builders Transport, and fifteen percent (15%) to Smith’s own negligence. Based on the findings that Landry was acting in the scope of his employment and that Builders Transport was itself negligent, the judgment requires Builders Transport to pay eighty-five percent (85%) of the damages awarded by the jury. In view of the scant evidence that Landry had actual or apparent authority to invite Smith to ride, the erroneous charge “probably caused the rendition of an improper judgment” insofar as the judgment required Builders Transport to pay the fifty-five percent (55%) of the recovery attributable to Landry’s negligence. See Tex.R.App. P. 44.1(a)(1); Harris County v. Smith, 96 S.W.3d 230, 234-35 (Tex.2002).

As with the errors in the court’s charge with regard to Appellees’ negligence theories, the error here made the jury’s finding on scope of employment immaterial. Thus, we could render judgment in Builders Transport’s favor. See Torrington Co., 46 S.W.3d at 840. However, because it has been necessary for this Court to clarify the manner in which Ap-pellees’ vicarious liability claim should be submitted, we will remand in the interest of justice. Id. at 840-41.

Accordingly, we sustain Builders Transport’s first issue.

REMAND OF CLAIMS AGAINST LANDRY

Builders Transport’s liability for some of the claims against it depends on Landry’s liability. Thus, Builders Transport contends that the claims against Landry should also- be remanded, even though Landry did not appeal. See e.g. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex.1982); Schindler v. Schindler, 119 S.W.3d 923, 933 (Tex.App.-Dallas 2003, pet. denied). We disagree.

On remand, Landry may be designated as a responsible third party under section 33.004 of the Civil Practice and Remedies Code. The jury may then apportion responsibility among Landry, Smith, and Builders Transport as it did in the first trial. See Tex. Civ. PraC. & Rem.Code ANN. § 33.003 (Vernon Supp.2004-2005); cf. Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 446-47 (Tex.1989) (remand of claims against nonappealing party not warranted). The issues of whether Landry was acting within the course and scope of employment and whether he had actual or apparent authority to invite Smith to ride may be litigated regardless of whether the issue of Landry’s personal liability is before the jury on remand.

CONCLUSION

Because of our disposition of Builders Transport’s first, second, fourth, and eighth issues, we need not address the remainder of the issues presented. Because Landry did not perfect an appeal, we do not disturb the judgment against him. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450-51 (Tex.1998) (per curiam); Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 92 (Tex.1973). We reverse the judgment in all other respects and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY, dissenting.

TOM GRAY, Chief Justice,

dissenting.

This is a charge error case in which we fail to follow well-established precedent. What is the proper disposition if, after reviewing charge error preserved by the defendant, we determine there is no proper verdict upon which the plaintiff has shown itself entitled to relief? We are supposed to render judgment that the plaintiff take nothing on that claim. Because we do not, I dissent.

No Verdict That Will Support a Judgment for the Plaintiff

In this case, the Court properly determines there was error in the charge to which Builders Transport objected. The Court properly determines the error was harmful. The Court then properly reverses the trial court’s judgment. But the Court errs in remanding the case for a new trial.

The plaintiffs in this case do not get a new trial if Builders Transport preserves harmful charge error. A new trial would be the proper result if the plaintiffs had also made the objection and had properly brought an issue on appeal in their own interest. But they did not.

The proper result, when a defendant objects to the charge with the result being that the plaintiff has failed to secure a verdict upon which a judgment can be based, is to render judgment for the defendant. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 530 (Tex.1997); Stripling v. McKinley, 746 S.W.2d 502, 505 (Tex.App.-Dallas 1988), aff'd, 763 S.W.2d 407 (Tex.1989).

Defective and Omitted Analysis On Direct Negligence Claim

The situation as presented by the Court under its heading of “NEGLIGENCE” is a gross over-simplification of the analysis necessary to resolve the issues presented. This problem comes from the Court’s having stepped off the analysis on the wrong foot. They start at the end rather than the beginning.

The real issue here is not whether there is sufficient evidence to support any of the negligence theories Smith went to the jury on under the broad form submission. If we get to that question at all, it is the last question, not the first. We must begin the analysis, the first step, with the charge. The special question and related instructions in the charge must be accepted as the controlling law for the case, against which the sufficiency of the evidence will be measured. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). The Supreme Court has recently reaffirmed the position that we do not need to determine whether the charge accurately stated the law, absent an objection to the charge. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 618 (Tex.2004).

But the majority of this Court states: “Because the trial court submitted a broad-form negligence question, the verdict must be upheld against a sufficiency challenge if the record contains sufficient evidence to support a finding on any one of these theories.” Majority op., at p. 6. Smith, and a majority of the Court, relies upon Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 160 (Tex.1995). This case is not on point because in Prudential there was no objection to the charge. And this is an accurate statement of only part of the applicable law. This is the step on which the Court starts but it should be the third step, depending on the answer to the second step.

So, in a proper analysis, the charge is the first step. Next, the second step, is to analyze the objections to the charge. This is where the Court’s opinion falls apart analytically. Because Builders Transport objected to the charge, we do not accept the charge as an accurate statement of the law and must determine whether the objections should have been sustained because the charge was an improper statement of the law, thus requiring correction by the trial court.

This is the part of a proper analysis that the Court misplaces in its opinion. The Court must address this critical step in a proper sequence. Builders Transport directs our attention to the shortcomings in the charge that were brought to the trial court’s attention by way of its objections to the charge and its request for certain additional instructions to be included in the charge. Builders Transport argues that the charge is defective because elements of some of the theories were omitted from the charge. The Court addresses these complaints in the section of its opinion entitled “NEGLIGENCE CHARGE” beginning on page 7 of its opinion. And the Court’s analysis properly concludes that the issue was preserved by objection. Further, the Court properly concludes that the charge was defective because it omitted necessary instructions regarding the elements of the plaintiffs theories of negligence. See Majority op., at pg. 9.

Smith recognizes the validity of these arguments and attempts to overcome them. First, Smith argues the objection does not comport with the issue on appeal. As stated above, the issue here was preserved and is properly presented as charge error. Second, Smith argues that if the objection does comport, the objection to a defective instruction only applies to one theory being submitted by the broad form question. Smith then argues “if this court were to find any element missing under either [theory], this court must deem a finding on the omitted element that supports the trial court’s judgment if there is some evidence that supports the issue.” Appellee’s Brief, pg. 31. This is where Smith and the majority go astray.

Smith fails to recognize that the implied finding analysis is only applicable if there is no “request or objection” to the omission from the charge. Tex.R. Civ. P. 279; There was a request or objection. This brings us squarely within Crown Life v. Casteel’s, and its prodigy’s, application to a broad form submission when the broad form question submits an invalid theory. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000).

Because there is a request or objection regarding the omission of an element of one of the theories being submitted under a broad form negligence charge, Smith has a real problem. The jury’s affirmative finding could be based upon a ground that was defectively charged due to an omitted element. Upon appeal we are unable to determine whether the jury found on that defectively submitted ground or a properly submitted ground. Builders Transport is entitled to relief. But at least for now this is a problem a majority of this Court is willing to ignore. I am not. The majority can avoid this ultimate resolution of this issue because it took the arguments in the wrong order. The majority took the third step first. The fact that a broad form submission includes a proper theory of negligence is irrelevant if it is joined with a defectively submitted theory to which a complaint was made. Crown Life, 22 S.W.3d at 389.

Defective and Omitted Analysis on Vicakious Liability

The majority also makes the same error in its analysis of whether Builders Transport is vicariously liable for Landry’s negligence. Here again the majority gets the analysis out of order. Only after analysis that there was evidence to support the answers to the charge as submitted on vicarious liability does the Court move to its analysis of the objections to the charge. The Court again holds that Builders preserved the issue for review, that the charge was defective as submitted, and that the defective submission harmed Builders Transport.

Reverse and render is the proper result. There is no need to remand.

Relying on Torrington, the Court concludes that because they needed to clarify the manner of submitting the issue, we should remand for a new trial.

But it is already well-settled law that Landry had to have actual or apparent authority to invite Smith to ride with him before Builders Transport could be vicariously liable for Landry’s negligence. It was part of the Restatement (Second) of Agency in 1958. See Restatement (Second) of Agency § 242 (1958). And it has been applied by this Court at least as early as 1944. See Thomas v. So. Lumber Co., 181 S.W.2d 111, 114-15 (Tex.Civ.App.-Waco 1944, no writ). Unlike Torrington, there is no law that we are altering or clarifying. Torrington Co. v. Stutzman, 46 S.W.3d 829, 840 (Tex.2000). Thus, we should render, rather than remand, this proceeding. See id.

Trespasser — Duty Owed?

You may find it strange that the duty owed to a trespasser is discussed by the majority under each section, negligence and vicarious liability. I did. Builders Transport only briefs this as part of its complaints about the negligence finding and charge.

The importance of this issue should not go unmentioned though it serves no useful purpose for me to go into an exhaustive analysis because I would reverse and render for other reasons. But, as I understand Builders Transport’s argument, a person riding in a truck without permission of the owner is a trespasser. And, the argument continues, as a trespasser the owner only owes that person the duty to not actively engage in the activity that caused the trespasser’s injury. Thus, Builders Transport’s argument is that they are not liable for Landry’s negligence because they were not actively engaged in a “negligent activity” that caused the injury to Smith.

The majority summarily dismisses this “negligent activity” argument with the statement: “Appellees’ negligence theories do not fit within this definition.” Majority op., pp. 10-11. And somehow this dismissive response is supposed to resolve the issue. But this response is precisely why Builders argues, in addition to the argument addressed by the majority, that the charge was defective. Indeed, Builders argues the duty that should have been charged is precisely as the majority states it: “The only duty an owner owes to a trespasser is ‘to refrain from causing injury willfully, wantonly, or through gross negligence.’ ” Majority op., pg. 12.

This is an entirely different argument as to why the charge was defective on the negligence theories, an argument that the majority has failed to properly analyze and resolve.

Conclusion

Accordingly, I would reverse and render judgment that Grice-Smith et al, take nothing from Builders Transport on either the theories of negligence or vicarious liability. Because the majority remands for a new trial, I respectfully dissent.

      . Landry did not perfect an appeal.

      . Even though, as previously stated, we will ' reverse because of charge error, we must first address at least one of Builders Transport's “no evidence” issues because an affirmative finding thereon would afford Builders Transport the greatest relief. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999) (per curiam).

      . Builders Transport objected to the submission of the negligence question on the basis that: (1) it could be found liable only under a theory of gross negligence because Smith was a trespasser; and (2) Appellees presented no evidence or factually insufficient evidence to warrant submission of the question.

      . Section 333 of the Restatement provides:
      Except as stated in §§ 334-339, a possessor of land is not liable to' trespassers for physical harm caused by his failure to exercise reasonable care
      (a) to put the land in a condition reasonably safe for their reception, or
      (b) to carry on his activities so as not to endanger them.

        Restatement (Second) of Torts § 333 (1965).

      . “The two elements of proximate cause are cause in fact (or substantial factor) and foreseeability.” IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).


source: Caselaw Access Project

author: PER CURIAM. TOM GRAY, Chief Justice,

license: Public Domain

text:
    BUILDERS TRANSPORT, INC. (“BTI”), Appellant, v. Loretta Yvette GRICE-SMITH, Individually, and as the Representative of the Estate of Roy Cell Smith, Jr., Deceased, et al., Appellees.
    No. 10-01-00130-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2005.

      Stephen G. Tipps, Baker Botts, LLP, Houston, Joseph H. Pedigo, Bellaire, for appellant.
    Alton C. Todd, Law Office of Alton C. Todd, Friendswood, Anthony P Griffin, Anthony P. Griffin, Inc., Galveston, Dale Williams, Williams, Squires & Wren, Waco, Joseph M. Nixon, Phillips & Akers, Houston, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION ON REHEARING

PER CURIAM.

In our opinion and judgment dated March 9, 2005, we reversed the judgment of the trial court as to Defendant/Appellant Builders Transport, Inc. but did not disturb the judgment as to Defendant John Alfred Landry, who did not perfect an appeal. Despite Builders Transport’s request that we reverse the judgment in its entirety, we held that such action was unnecessary because Landry could “be designated as a responsible third party under section 33.004 of the Civil Practice and Remedies Code [and][t]he jury [could] then apportion responsibility among Landry, Smith, and Builders Transport as it did in the first trial.” 167 S.W.3d 1, 15 2005 WL 552486, at *10, 2005 Tex.App. LEXIS 1839, at *30 (Tex.App.-Waco Mar. 9, 2005, no pet. h.).

By further motion for rehearing, Builders Transport again requests that we reverse the judgment in its entirety and remand the entire case for a new trial because the provisions of section 33.004 applicable to this case do not permit Landry to be so designated. We will grant Builders Transport’s motion.

The current version of section 33.004 provides that, subject to certain limitations, a defendant may designate any person as “a responsible third party.” See Tex. Civ. Prac. & Rem.Code Ann. § 33.004 (Vernon Supp.2004-2005). However, the current version of section 33.004 applies only to cases filed on or after July 1, 2003, and Appellees filed this suit in 1996. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(c), 2003 Tex. Gen. Laws 847, 898-99.

Under the version of section 33.004 applicable to this case, a defendant may join only a person “who has not been sued by the claimant” as a responsible third party. See Act of May 8,1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 972-73 (amended 2003) (current version at (Tex. Crv. PRAC. & Rem.Code Ann. § 33.004)). Because Appellees sued Landry, Builders Transport cannot seek to designate him as a responsible third party under section 33.004 on remand. Id.

Appellees’ claims against Landry and Builders Transport are significantly interwoven. So that a jury on remand will be able to apportion responsibility among all parties, we will reverse the judgment in its entirety and remand this cause to the trial court for further proceedings consistent with the opinion of this Court. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex.1982); First Natl. Acceptance Co. v. Dixon, 154 S.W.3d 218, 225 (Tex.App.-Beaumont 2004, pet. denied).

Builders Transport’s further motion for rehearing is granted. The judgment of this Court dated March 9, 2005 is withdrawn, and the judgment of even date herewith is substituted therefor.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting on rehearing.

Nothing about the Opinion on Rehearing issued today alters the analysis of my dissenting opinion of March 9, 2005. That dissenting opinion has not been withdrawn. Therefore, the dissenting opinion applies with equal force to the judgment issued today.

      . This Court issued its first opinion in this appeal on November 3, 2004. After Builders Transport filed a motion for rehearing, the Court withdrew the November 2004 opinion and issued a new opinion on March 9, 2005. The Court also denied Builders Transport’s motion for rehearing on March 9. Builders Transport then filed its further motion for rehearing. See Tex.R.App. P. 49.5.

      . I agree that if there is to be a remand, the entire case, including the case against Landry, must be remanded.


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice

text:
    CITY OF WACO, TEXAS, Appellant, v. Louis E. BITTLE, Appellee.
    No. 10-03-00098-CV.
    Court of Appeals of Texas, Waco.
    March 16, 2005.

      Art Pertile, Christopher Taylor, Kevin W. Cole, Waco, for appellant.
    R. John Cullar, Mills <& Cullar, L.L.P., Waco, B. Craig Deats, P.C., Austin, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

An independent hearing examiner determined that the City of Waco had improperly suspended Louis Bittle from his position as a firefighter and later ordered the City to restore to Bittle the compensation and benefits he lost as a result of the suspension. A dispute arose over the manner in which the City sought to restore Bittle’s compensation and benefits, and Bittle filed suit. The trial court granted Bittle’s motion for summary judgment, finding that the City had failed to comply with the hearing examiner’s decision and with section 143.053(f) of the Local Government Code and that Bittle is entitled to mandamus relief directing the City to pay Bittle the compensation and benefits due him.

The city contends in three issues that: (1) a genuine issue of material fact exists on the question of whether the City failed to comply with the hearing examiner’s decision and with section 143.053(f); (2) a genuine issue of material fact exists on the question of whether the attorney’s fees awarded were reasonable and necessary; and (3) the trial court did not have jurisdiction to entertain Bittle’s suit because (A) governmental immunity bars the suit and (B) Bittle failed to exhaust his administrative remedies. We will reverse and remand.

BACKGROUND

The City indefinitely suspended Bittle for failing a breath-alcohol test given with a promotional exam. At the time of suspension, Bittle had accrued the following hours of leave: 1268.5 sick, 216 vacation, and 48 holiday. The City treated the suspension as a termination and paid him $20,462.23, which was a “cash out” of the following hours of leave: 1080 sick, 216 vacation, and 48 holiday.

Bittle timely appealed the indefinite suspension to an independent, third-party hearing examiner. Following a hearing, the hearing examiner issued his decision, which stated in relevant part:

Since the City has not met its burden of establishing that Louis Bittle was under the influence, indefinite suspension is not the appropriate remedy. Mr. Bit-tie is to be reinstated to the position he held August 31, 2001. He is entitled to a new promotional physical. Then, upon reinstatement on February 15, 2002, he will submit to a physical so the City’s promotion policies can be complied with, and he can be, upon passing the physical, promoted to lieutenant.
The arbitrator maintains jurisdiction to assist the parties.

Bittle was reinstated and returned to work. Subsequently he inquired of the City whether he would receive back pay. Because the hearing examiner’s decision did not mention back pay, the City requested reconsideration/clarification of whether Bittle was entitled to same. The City argued that he was not because (1) the time he was off without pay is the appropriate discipline for failing the breath-alcohol test and for failing to mitigate his damages and (2) there is no evidence in the record upon which to base such an award. The hearing examiner issued the following decision:

Having found that the City failed to meet its burden of proof, we ordered Mr. Bittle to be reinstated to the position he held August 31, 2001. He is entitled to compensation for the actual time lost as a result of the suspension. He is entitled to the wages he would have earned had he not been improperly suspended. All his rights and benefits are restored. If there is no basis for disciplinary action, there is no basis to treat the period of time it took to reinstate Louis Bittle as time off without pay. He is returned to work with back pay, minus interim earnings.
Award
Mr. Louis Bittle is to be paid all wages and benefits due from September 5, 2001, to his reinstatement on February 15, 2002, minus interim earnings.

Bittle then sent a written demand to the City to comply with section 143.053(f), which states in pertinent part:

If the suspended fire fighter or police officer is restored to the position or class of service from which the person was suspended, the fire fighter or police officer is entitled to:
(1) full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended; and
(2) restoration of or credit for any other benefits lost as a result of the suspension, including sick leave, vacation leave, and service credit in a retirement system.

Tex. Loo. Gov’t Code Ann. § 143.053(f) (Vernon Supp.2004-2005).

When Bittle did not receive the back pay he demanded, he filed suit alleging:

(1) The decision of the hearing examiner is final and binding on all parties.
(2) Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government . Code § 143.053(f).
(3) Plaintiff is entitled to mandamus relief requiring the City to (1) pay him “full compensation for the actual time lost as a result of the suspension,” and (2) restore and give credit for the sick leave, vacation leave, and holiday leave lost as a result of the suspension, pursuant to Texas Local Government Code § 143.053(f).

The City asserted a plea to the jurisdiction in its original answer contending that Bittle failed to exhaust his administrative remedies. In an amended answer, the City raised the issue of governmental immunity and filed a countersuit seeking (1) a declaration that section 143.053(f) does not require the City to restore Bittle’s lost compensation and benefits in the manner sought by Bittle, (2) a declaration that restoring the compensation and benefits in the manner sought would result in an unconstitutional gift of public funds in violation of article III, section 52(a) of the Texas Constitution, and (3) reasonable and necessary attorney’s fees.

The summary judgment granted in favor of Bittle states in relevant part:

IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that the January 28, 2002, decision of the hearing examiner is final and binding on all parties.
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Plaintiff is entitled to mandamus relief requiring the City to (1) pay him “full compensation for the actual time lost as a result of the suspension” (in the total sum of $19,914.56), and (2) restore and give credit to Plaintiff for sick leave, vacation leave, and holiday leave lost as a result of the suspension (263.5 hours of sick leave, 75 hours of vacation leave, and 48 hours of holiday leave), pursuant to Texas Local Government Code § 143.053(f), for which a writ of mandamus shall be issued by the Clerk of the Court to be served on Defendant.
All relief requested in this case and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable.

JURISDICTION

The City contends in its first issue that the trial court did not have jurisdiction to entertain Bittle’s suit because governmental immunity bars the suit and Bittle failed to exhaust his administrative remedies. However, because Bittle’s suit for declaratory relief does not seek to impose liability on the City and because Bit-tie exhausted all available administrative remedies, the City’s immunity is not implicated, and the trial court had jurisdiction.

Suit for Declaratory Judgment

The Uniform Declaratory Judgments Act authorizes a person who is “affected by a statute” to “have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. PeaC. & Rem.Code Ann. § 37.004(a) (Vernon 1997). Thus,

Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority. This is because suits to compel state officers to act within their official capacity do not attempt to subject the State to liability. Therefore, certain declaratory-judgment actions against state officials do not implicate the sovereign-immunity doctrine.

Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (plurality) (citations omitted).

In contrast, declaratory-judgment suits against state officials seeking to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State. That is because such suits attempt to control state action by imposing liability on the State. Consequently, such suits cannot be maintained without legislative permission. And, private parties cannot circumvent the State’s sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim.

Id. at 855-56 (citations omitted).

These same principles apply to declaratory judgment actions brought against municipalities. See Tex. Mun. Power Agency v. Pub. Util. Commn., 100 S.W.3d 510, 515-17 (Tex.App.-Austin 2003, pet. denied); City of San Benito v. Ebarb, 88 S.W.3d 711, 721-22 (Tex.App.Corpus Christi 2002, pet. denied).

The City contends that, because Bittle’s suit seeks restoration of compensation lost as a result of his suspension, the suit is one for money damages. Applying this characterization, the City posits that under the rule of IT-Davy the City’s immunity from suit is not waived by the Uniform Declaratory Judgments Act. See IT-Davy, 74 S.W.3d at 855-56; Ebarb, 88 S.W.3d at 722-24. We disagree with the City’s characterization of Bittle’s suit.

When a jurisdictional challenge is raised regarding the allegations of a plaintiffs pleadings, “[w]e construe the pleadings liberally in favor of the plaintifff ] and look to the pleader[’s] intent.” Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Here, Bittle requests in his second amended petition that the trial court make a declaration of his rights with respect to section 143.053(f) and the hearing examiner’s order on the issues of whether: (1) the hearing examiner’s order is final and binding; (2) the City has failed to comply with the order and with section 143.053(f); and (3) Bittle is entitled to mandamus relief requiring the City to fully compensate him for time lost as a result of the suspension and to restore benefits lost as a result of the suspension.

Liberally construing these allegations in Bittle’s favor, we construe them to seek (1) declaratory relief regarding whether the City has complied with section 143.053(f) and (2) upon a finding of noncompliance, mandamus relief requiring the City to comply. See Miranda, 133 S.W.3d at 226; City of Sherman v. Hudman, 996 S.W.2d 904, 912 (Tex.App.-Dallas 1999, pet. granted, judgm’t vacated w.r.m.); cf. Ebarb, 88 S.W.3d at 722-24 (suit seeking declaration that law enforcement officers were entitled to compensation under ordinance which had been superceded was suit for money judgment from which city was immune under IT-Davy).

The City argues that Ebarb controls. We disagree. Ebarb is distinguishable because the plaintiffs in that case did not join a request for mandamus relief with their petition for declaratory relief. In addition, they “did not argue that they were not seeking money damages but instead stoutly asserted that sovereign immunity for municipalities was waived by the UDJA.” Ebarb, 88 S.W.3d at 723.

Here, Bittle does not make such a broad assertion. Rather, he contends that “a declaratory action, coupled with a petition for mandamus, was appropriate in order to compel the City to act within the requirements of the statute.”

Accordingly, we conclude that immunity from suit does not pose a bar to Bittle’s petition for declaratory relief because he seeks thereby to compel the City to comply with the requirements of section 143.053(f) rather than to impose liability on the City. See IT-Davy, 74 S.W.3d at 855-56; Hudman, 996 S.W.2d at 912.

Suit for Mandamus Relief

Bittle also seeks a writ of mandamus compelling the City to comply with section 143.053(f) by paying “him ‘full compensation for the actual time lost as a result of the suspension’ ” and restoring any benefits lost as a result of the suspension.

The City affirmatively recognizes in its reply brief that “[a] district court has authority to issue a writ of mandamus to compel a public official to perform a ministerial act.” The authority of district courts to issues writs of mandamus against municipalities has been regularly upheld on this basis. See e.g. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.1991); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex.App.-Houston [14th Dist.] 2003, no pet.); City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 927 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n.r.e.); see also Tex. Const. art. V, § 8 (describing extent of district court’s jurisdiction); Tex. Gov’t Code Ann. § 24.011 (Vernon 2004) (describing district court’s jurisdiction to issue writs).

Exhaustion of Remedies

The City next contends that the trial court lacked jurisdiction because Bittle faded to exhaust his administrative remedies. Under the City’s theory, Bittle should have filed another administrative complaint with the civil service commission raising the issue of the City’s compliance with section 143.053(f) and with the hearing examiner’s order. This contention requires us to determine whether chapter 143 of the Local Government Code vests the civil service commission with exclusive or primary jurisdiction to resolve disputes arising under section 143.053(f). See Suban of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220-21 (Tex.2002).

Under article V, section 8 of the Texas Constitution, trial courts are vested with general jurisdiction which extends to all cases except those in which “exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Subaru of Am., 84 S.W.3d at 220 (quoting Tex. Const. art. V, § 8). Conversely, administrative bodies have limited jurisdiction. See id. “[T]hey may exercise only those powers the law, in clear and express statutory language, confers upon them. Courts will not imply additional authority to agencies, nor may agencies create for themselves any excess powers.” Id. (citations omitted); accord In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004) (orig.proceeding).

“An agency has exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that [the Legislature] intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.’” Subaru of Am., 84 S.W.3d at 221 (quoting Andrew G. Humphrey, Student Author, Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze, 52 U. Chi. L.Rev. 1090, 1107 n. 78 (1985)); accord Entergy Corp., 142 S.W.3d at 322.

The judicially-created primary jurisdiction doctrine operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute. Trial courts should allow an administrative agency to initially decide an issue when: (1) an agency is typically staffed with experts trained in handling the complex problems in the agency’s purview; and (2) great benefit is derived from an agency’s uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations.

Subaru of Am., 84 S.W.3d at 221 (citations omitted).

The issue of whether an administrative agency has exclusive or primary jurisdiction involves statutory construction and is a question of law which an appellate court reviews de novo. Id. at 222. Accordingly, we address in turn whether the provisions of chapter 143 vest the civil service commission with exclusive or primary jurisdiction over the issues presented in Bittle’s case.

Texas courts have historically found that chapter 143 (and its predecessor article 1269m) expressly authorize a civil service commission to hear appeals from promotional pass-overs, disciplinary suspensions, and demotions. See Cantu v. Perales, 97 S.W.3d 861, 863 (Tex.App.-Corpus Christi 2003, no pet.); Corbitt v. City of Temple, 941 S.W.2d 354, 355 (Tex.App.Austin 1997, writ denied); see also Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 160 (1961). More precisely, chapter 143 authorizes a commission to conduct hearings to determine:

(1) whether a department head’s recommendation to demote a firefighter or police officer should be granted; Tex. Loo. Gov’t Code AnN. § 143.054 (Vernon 1999); and
(2) whether a firefighter or police officer “indicted for a felony or officially charged with the commission of a Class A or B misdemeanor” should be suspended for civil service violations directly related to the allegations of the indictment or complaint; Id. § 143.056(c), (d) (Vernon 1999).

Conversely, a commission has “appellate jurisdiction” under chapter 143 to consider:

(1) a firefighter’s or police officer’s challenge to a promotional examination; Id. § 143.034 (Vernon 1999);
(2) an allegation of irregularities in an election to adopt an alternate promotional system in a police department; Id. § 148.035(g) (Vernon 1999);
(3) the propriety of a disciplinary suspension; Id. § 143.053 (Vernon Supp.2004-2005); and
(4) whether to award back pay for a temporary suspension based on a firefighter or police officer having been “indicted for a felony or officially charged with the commission of a Class A or B misdemeanor,” where the firefighter or police officer “is not found guilty of the indictment or complaint in a court of competent jurisdiction”; Id. § 143.056(e) (Vernon 1999).

Because of the nature of the limited jurisdiction possessed by administrative bodies, courts have found that a civil service commission does not have jurisdiction to address other issues. See e.g. City of Austin v. Phipps, 162 Tex. 112, 344 S.W.2d 673, 674-75 (1961) (commission not authorized to determine firefighter’s right to injury leave of absence); Stauffer, 344 S.W.2d at 159-60 (commission not authorized to determine whether firefighter who had returned from military leave was entitled to reinstatement); Cantu, 97 S.W.3d at 863 (commission not authorized to determine effectiveness of firefighter’s resignation); Perez v. City of Laredo, 21 S.W.3d 371, 373-74 (Tex.App.-San Antonio 2000, no pet.) (commission not authorized to determine promotion eligibility based on 2-year service requirement of section 143.031); Corbitt, 941 S.W.2d at 356-57 (commission not authorized to determine propriety of temporary revocation of permission to engage in off-duty employment); cf. Thomas v. Long, 97 S.W.3d 300, 302-03 (Tex.App.-Houston [14th Dist.] 2003, pet. granted) (sheriffs department civil service commission established under chapter 158 does not have exclusive jurisdiction to determine whether reinstated employee must comply with department testing procedures before returning to work); City of Houston v. Jackson, 42 S.W.3d 316, 321-23 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d w.o.j.) (firefighter need not pursue separate administrative grievance proceeding to enforce grievance examiner’s order as a prerequisite to a suit to enforce the order).

Consistent with these authorities, the commission has exclusive jurisdiction only to conduct hearings or appeals regarding the six issues enumerated hereinabove. Stated another way, these six issues are the only ones for which chapter 143 evinces a legislative intent that “the regulatory process ... be the exclusive means of remedying the problem to which the regulation is addressed.” Entergy Corp., 142 S.W.3d at 322; Subaru of Am., 84 S.W.3d at 221.

Here, Bittle’s suit seeks to compel the City to comply with the hearing examiner’s order and with section 143.053(f). Chapter 143 does not provide an enforcement mechanism for compliance with an order of the commission or a hearing examiner. Cf. Jackson, 42 S.W.3d at 321-23.

Section 143.053(f) (hereinafter, “subsection (f)”) provides that a suspended firefighter or police officer who is reinstated “is entitled to” the compensation and benefits lost as a result of the improper suspension. The City contends that, because the commission or hearing examiner has exclusive jurisdiction to hear the appeal of a firefighter’s or police officer’s suspension under section 143.053, it also has exclusive jurisdiction to award compensation and benefits under subsection (f). We disagree.

According to section 311.016(4) of the Code Construction Act, the phrase “is entitled to” “creates or recognizes a right.” Tex. Gov’t Code Ann. § 311.016(4) (Vernon 1998). Thus, the hearing examiner’s determination that Bittle should be reinstated necessarily recognized Bittle’s right to compensation and benefits under subsection (f). If the Legislature had intended for the commission or a hearing examiner to also determine whether a reinstated firefighter or police officer is entitled to compensation and benefits under subsection (f), or the amount of such compensation and benefits, it could have easily stated this intent in the statute. See Miller v. Keyser, 90 S.W.3d 712, 719 (Tex.2002); cf. Tex. Loc. Gov’t Code Ann. § 143.056(e) (“If the department head temporarily suspends a fire fighter or police officer under this section and the fire fighter or police officer is not found guilty of the indictment or complaint in a court of competent jurisdiction, the fire fighter or police officer may appeal to the commission or to a hearing examiner for recovery of back pay. The commission or hearing examiner may award all or part of the back pay or reject the appeal.”).

Rather, the sole issue to be decided in an appeal under section 143.053 is the propriety of a disciplinary suspension or the length of the suspension. Upon reinstatement, the firefighter or police officer has a statutory right to the compensation and benefits lost as a result of the improper suspension. Thus, the commission does not have exclusive jurisdiction to determine whether a reinstated firefighter or police officer is entitled to compensation and benefits under subsection (f) or the amount of such compensation and benefits.

Because subsection (f) does not authorize the commission to determine these issues, the commission does not have primary jurisdiction either. See Subaru of Am., 84 S.W.3d at 221 (primary jurisdiction must be determined when “courts and agencies ... both have authority to make initial determinations in a dispute”).

Therefore, if a municipality fails to restore the compensation and benefits required by subsection (f), a firefighter or police officer may seek relief in the courts. Accordingly, we conclude that Bittle did not need to seek further administrative relief before filing this suit. Thus, we overrule the City’s third issue.

COMPLIANCE WITH THE HEARING EXAMINER’S DECISION

The City contends in its first issue that a genuine issue of material fact exists on the question of whether it has failed to comply with subsection (f) (and the hearing examiner’s order). Bittle argued in his summary judgment motion that the City’s failure to pay him the amount of compensation due under subsection (f) conclusively established the City’s non-compliance. The City responded that, after offsets are allowed for the benefits payment the City made to Bittle after he was suspended and for Bittle’s interim earnings from other sources, Bittle actually owes the City almost $3,100.

The parties do not dispute that Bittle would have earned $19,914.56 had he not been suspended. The dispute centers on whether an offset should be allowed for the City’s $20,462.23 benefits payment or Bittle’s accumulated leave hours should be reduced by the number of hours that payment represents. We believe that the City is entitled to offset the amount of compensation owed to Bittle because of the actual time lost as a result of the suspension with the prior benefits payment.

The purpose of subsection (f) is to restore a firefighter or police officer who has been improperly suspended to the position he would have occupied had the suspension not occurred. Thus, a firefighter or police officer who has been reinstated is entitled to: (1) “full compensation for the actual time lost as a result of the suspension”; and (2) “restoration of or credit for any other benefits lost as a result of the suspension.” Tex. Gov’t Loc.Code Ann. § 143.053(f) (emphasis added). We begin by addressing what restoration of lost benefits entails.

Bittle contends that he did not lose the leave hours for which the City paid him because the City voluntarily chose to convert those hours to cash. He suggests that there is no prohibition against the City taking this action, citing Willis v. City of Lubbock 385 S.W.2d 617 (Tex.Civ.App.-Amarillo 1964, writ refd n.r.e.). In that case, a City of Lubbock policy provided that employees leaving the classified service should be paid for their accumulated vacation leave hours. The Amarillo court noted that the pertinent civil service statutes did not provide for this type of payment to an employee leaving the classified service and that the city’s policy was one which the city “voluntarily adopted.” Id. at 618 (citing Act of May 23, 1957, 55th Leg., R.S., ch. 391, § 7, 1957 Tex. Gen. Laws 1171, 1175-76 (repealed 1987)) (current version at Tex. Loc. Gov’t Code Ann. § 143.046 (Vernon 1999)).

However, the Amarillo court also noted that the pertinent statutes do have express provisions regarding payment for accumulated sick leave hours. Id. (citing Act of May 23, 1957, 55th Leg., R.S., ch. 391, § 6, 1957 Tex. Gen. Laws 1171, 1175 (repealed 1987) (current version at Tex. Loc. Gov’t Code Ann. § 143.045 (Vernon 1999)). Section 143.045 (like its predecessor) requires a lump-sum payment for a certain portion of accumulated sick leave hours when a person leaves the classified service. See Tex. Loc. Gov’t Code Ann. § 143.045(c); Act of May 23, 1957, 55th Leg., R.S., ch. 391, § 6, 1957 Tex. Gen. Laws at 1175 (repealed 1987). Section 143.045 does not permit a municipality to voluntarily cash out sick leave hours before a person leaves the classified service. See Geron v. City of Sweetwater, 368 S.W.2d 151, 154 (Tex.Civ.App.-Eastland 1963), rev’d on other grounds, 380 S.W.2d 550 (Tex.1964)).

True, this prohibition applies to only accumulated sick leave hours and not to accumulated vacation or holiday leave hours. However, to ensure a uniform and predictable application of subsection (f)(2), all accumulated leave hours should be treated the same.

Therefore, to comply with subsection (f)(2), the City must restore to Bittle the sick, vacation, and holiday leave hours which he had accumulated when he was suspended and credit him for those leave hours he would have accumulated during the period of his suspension. See Tex. Loc. Gov’t Code Ann. § 143.053(f)(2).

Conversely, to comply with subsection (f)(1), the City must pay Bittle $19,914.56 as compensation for the actual time lost as a result of the suspension. Id. § 143.053(f)(1). However, because the City has already paid Bittle $20,462.23 for accumulated leave hours which must be restored, the City is entitled to offset the sum paid against the sum owed. See Geron, 368 S.W.2d at 154.

Because the City has paid Bittle more than he is owed for lost compensation, Bittle failed to conclusively establish the City’s non-compliance with subsection (f) (and the hearing examiner’s order). Accordingly, we sustain the City’s first issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice

concurring.

In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.

Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the pri- or opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex.2000).

This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court’s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this concurring opinion.

Prior History of This Appeal

Appellee’s Motion for rehearing is granted. The Court’s opinion vacating the trial court’s judgment and dismissing the case for want of jurisdiction, and Chief Justice Gray’s dissenting opinion, all dated November 10, 2004, are withdrawn and the Court’s opinion, Chief Justice Gray’s concurring opinion, and the judgment of this date are substituted therefore.

Conclusion

With these comments regarding the history of this appeal, I concur in the Court’s new opinion.

      . The City raises this "third issue” in its reply brief. Because jurisdiction can be raised at any time, we will address this issue. See Univ. of Tex.Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358-59 (Tex.2004).

      . A firefighter can appeal an indefinite suspension to an independent third-party hearing examiner instead of to the civil service commission. Tex. Loc. Gov’t Code § 143.057(a) (Vernon 1999). The hearing examiner’s decision is final and binding on all parties, and the appealing firefighter automatically waives all rights to appeal to a district court except on the grounds that the examiner was without jurisdiction or exceeded his jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Id. § 143.057(c), (j) (Vernon 1999).

      . The reconsideration/clarification decision did not state that "[t]he arbitrator maintains jurisdiction to assist the parties” as the original decision did. The statute is silent about the duration of the examiner’s jurisdiction, and we express no opinion about it.

      . 188.5 sick leave hours not "cashed out” and 75 sick leave hours accrued during time of suspension.

      . The Court also awarded Bittle reasonable and necessary attorney’s fees in the amount of $14,600.00 for the prosecution of the suit in the trial court and an additional $10,000.00 in attorney's fees in the event of an appeal.

      .The City characterizes its immunity as "sovereign” immunity. However, sovereign immunity is the immunity possessed by the State and its various agencies and divisions, while governmental immunity is the immunity possessed by political subdivisions of the State, including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003).

      . The City of Biyan was also a defendant/ap-pellee in this suit. See Tex. Mun. Power Agency v. Pub. Util. Commn., 100 S.W.3d 510, 513 (Tex.App.-Austin 2003, pet. denied).

      . The City of Sugar Land was also a respon-denf/appellee in this case. See Guthery v. Taylor, 112 S.W.3d 715, 717 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

      . Our review of chapter 143 does not include subchapters G through J, because those sub-chapters apply only to municipalities with populations of 1.5 million or more (or, in the case of subchapter I, 460,000 or more). The 2000 federal census found the population of the City of Waco to be 113,726. See U.S. Census Bureau, Census 2000 Demographic Profile Highlights for City of Waco, Tex., http://factfin der.census.gov/servle1/SAFF-Facts?_event=Search & geo _id= &-geo-Context= & _street= & _county=waco & _cityTown=waco & _state= 04000US48 & _zip= & _lang=en & _sse=on (accessed Feb. 17, 2005). Accordingly, we take judicial notice that the population of the City of Waco is less than 460,000. See In re Rose, 144 S.W.3d 661, 678 n. 12 (Tex.Rev.Trib.2004, affirmed); Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Assn., 77 S.W.3d 487, 504 (Tex.App.-Texarkana 2002, pet. denied); Tex. Dept. of Pub. Safety v. Ackerman, 31 S.W.3d 672, 676 (Tex.App.-Waco 2000, pet. denied).

      . The Supreme Court granted review in Thomas on the following issues:
      1. The court of appeals erred by holding that Sheriff Thomas could not appeal the interlocutory denial of his jurisdictional challenge under § 51.014(a)(8) simply because he raised it in a motion for summary judgment over the appeal in contravention of other appellate courts’ clear precedents.
      2. The court of appeals incorrectly held, in dictum, that the jurisdiction of a civil service commission was primary as opposed to exclusive.

        Thomas v. Long, No. 03-0204, 47 Tex. Sup.Ct. J. 233, 234 (Tex. Jan. 16, 2004) (order granting petition for review).


author: FELIPE REYNA, Justice.

text:
    John and Vicki BARR, Appellant, v. AAA TEXAS, LLC, Appellee.
    No. 10-03-00243-CV.
    Court of Appeals of Texas, Waco.
    March 23, 2005.

      Mitchell Madden, Law Office of Mitchell Madden, Dallas, for appellant.
    A.W. Arnold, Casey Erick, A.W. Arnold & Associates, Dallas, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

John and Vicki Barr appeal a take-nothing judgment rendered in a bench trial. The Barrs filed suit against AAA Texas, LLC and Terry Davis dba D & D Wrecker Service for negligence and breach of contract in connection with the towing of John’s car, which had broken down. The Barrs contend in five issues that: (1) they offered some evidence to establish that the costs of repair for the car were reasonable and necessary; (2) the court erred by granting AAA’s motion for judgment at the conclusion of the Barrs’ case-in-chief because they offered this evidence; (8) they adequately designated a witness to provide expert testimony regarding the reasonableness and necessity of the cost of repairs; (4) the court abused its discretion by not permitting this witness to testify regarding the reasonableness and necessity of the cost of repairs; and (5) the court abused its discretion by denying two continuance motions.

Background

The Barrs’ son was driving John’s 1974 Cadillac El Dorado convertible from Dallas to Ft. Worth when it broke down. John called AAA to arrange for the car to be towed. AAA had D & D Wrecker Service tow the car. John contends that D & D damaged the front end of the car when it towed it. Aristaacraft Paint <& Body repaired John’s car. Aristaacraft initially charged John $8,270 for the repairs but after negotiations agreed to accept $5,000.

The Barrs filed suit against D & D and AAA alleging that AAA breached the membership agreement it had with Vicki, that AAA negligently referred the towing job to D & D, and that D & D negligently towed the Barrs’ car.

Sufficiency Of The Evidence

The Ban’s contend in their first issue that they offered “some competent evidence” that the cost of repairs was reasonable and necessary. They contend in them second issue that the court erred by granting AAA’s motion for judgment because they offered this evidence. Because this was a bench trial however, the court’s granting of AAA’s motion for judgment will be overturned only if the judgment is contrary to the great weight and preponderance of the evidence.

The Barrs cite the standard of review for the granting of a directed verdict as the applicable standard for this case. However, the standard of review is different because the trial court is the finder of fact.

A directed verdict for a defendant may be proper in two situations. First, a court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery. Second, as other courts have held, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action.

Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (citations omitted). Therefore, “[i]n reviewing a directed verdict, we decide whether there is any evidence of probative value to raise an issue of material fact on the question presented. We examine the evidence in the light most favorable to the party suffering the adverse judgment.” Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004) (citations omitted).

In a bench trial however, the trial court is the finder of fact. Thus, when a defendant moves for judgment at the conclusion of the plaintiffs case in chief, a trial court may grant the motion under either of the scenarios for which a directed verdict may be granted in a jury trial, but the court may also grant the motion if the court concludes that the plaintiffs evidence is factually insufficient. See Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 (Tex.1993) (citing Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 304-05 (Tex.1988)); see also Hatch v. Williams, 110 S.W.3d 516, 521 (Tex.App.-Waco 2003, no pet.).

Therefore, even if the plaintiff presented more than a scintilla of evidence on each element of a cause of action, this Court will reverse the grant of a motion for judgment in a bench trial only if the implied findings supporting the judgment are “so against the great weight and preponderance as to be manifestly unjust.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003).

Here, no witness testified that the $5,000 the Barrs paid for the repair of the car was a reasonable and necessary charge. The Barrs contend that the fact they paid this much after negotiating with Aristaaeraft over the amount owed constitutes evidence “that the amount ultimately paid was reasonable.”

However, “[ejvidence of the amounts charged and paid, standing alone, is no evidence that such payment was reasonable and necessary.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200-01 (Tex.2004). The fact that the Barrs and Aristaaeraft negotiated a different payment than Aristaaeraft initially charged is no evidence that the amount ultimately agreed to was a reasonable and necessary charge for repairs.

Therefore, even when viewed in a light most favorable to the Barrs, they presented no evidence that $5,000 was a reasonable and necessary charge for the repairs to the car. Accordingly, we overrule their first two issues.

Designation of Expert Witness

The Barrs contend in their third and fourth issues that they adequately designated Aristaaeraft owner Jerry Condra as an expert in their discovery responses and that the court abused its discretion by excluding his testimony on the issue of the reasonableness and necessity of the cost of repairs.

AAA served a standard request for disclosure on the Barrs. In response, the Barrs identified Condra as a person with knowledge of relevant facts. AAA objected when the Barrs called Condra to provide expert testimony that the cost of repairs was reasonable and necessary. The Barrs replied that including a copy of the repair bill in their discovery response gave AAA adequate notice “as to what [Condra] would testify to with the reasonable and necessary charges for the repairs.”

For testifying experts, Rule of Civil Procedure 194.2(f) permits a party to request disclosure of:

(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography.

Tex.R. Civ. P. 194.2(f).

Here, the parties do not dispute that Condra was not a retained expert. Therefore, the Barrs were required by Rule 194.2(f) to disclose: (1) Condra’s name, address, and telephone number; (2) the subject matter of his testimony; and (3) “the general substance of [Condra’s] mental impressions and opinions and [documents reflecting] a brief summary of the basis for them.” Id.

The Barrs never disclosed in their discovery responses that Condra would testify as an expert or that Condra would testify about the reasonableness and necessity of the repair costs (ie. the “subject matter of his testimony” and “the general substance of [his] mental impressions and opinions”). Thus, the Barrs did not provide the disclosure required by Rule 194.2(f).

Rule 193.6 prohibits a party from offering evidence which was not timely disclosed in a discovery response “unless the court finds that:

(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.”

Tex.R. Civ. P. 193.6(a). The party seeking to offer the evidence at issue has the burden to establish good cause or lack of unfair surprise or prejudice. Id. 193.6(b).

The Barrs did not disclose the information required by Rule 194.2(f). The only explanation they offered for their failure to disclose was that Condra was not under their control because of their dispute with him over the charges. We hold as a matter of law that this is not good cause for the failure to disclose. It would have been a simple matter for the Barrs to provide a discovery response: (1) identifying Condra as an expert, (2) stating that Condra would provide expert testimony regarding reasonable and necessary costs of repair, and (3)attaching the final bill as documentation to support the opinion.

The Barrs also contend that AAA was not surprised or prejudiced because their disclosure to AAA of Condra’s invoices and the correspondence regarding the Barrs’ dispute with Condra over the amount they would pay him gave AAA sufficient notice that Condra had knowledge regarding the reasonableness and necessity of the charges. We construe this as a contention that AAA should have anticipated that the Barrs would call Condra to establish this element of their claim.

However, “[t]he rules were revised to make that sort of anticipation unnecessary.” Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex.App.-Austin 2002, pet. denied) (quoting Snider v. Stanley, 44 S.W.3d 713, 717 (Tex.App.-Beaumont 2001, pet. denied)); see also Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (“A party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory.”) (quoting Sharp v. Broadway Natl. Bank, 784 S.W.2d 669, 671 (Tex.1990) (per curiam)).

Finally, the Barrs contend that the court should have permitted Condra to provide lay opinion testimony regarding the reasonableness and necessity of the charges. However, the Barrs did not ask the trial court to allow Condra to give lay opinion testimony on this issue. Thus, they cannot pursue this theory of admissibility on appeal. See Tex.R.App. P. 33.1(a)(1); Ganesan v. Vallabhaneni 96 S.W.3d 345, 352 (Tex.App.-Austin 2002, pet. denied).

Accordingly, the Barrs’ third and fourth issues are overruled.

Denial of Continuances

The Barrs contend in their fifth issue that the court abused its discretion by denying their continuance motions.

The Barrs filed a verified continuance motion before trial seeking additional time to obtain substituted service on D & D, which they had thus far been unable to serve. The trial court denied this motion.

After the court refused to allow Condra to testify regarding the reasonableness and necessity of the charges and refused to allow the Barrs’ attorney to testify about attorney’s fees (because counsel had not been listed as a potential expert witness), the Barrs requested a continuance to supplement their discovery responses. The court denied this request as well.

We review the trial court’s ruling on a continuance motion under an abuse-of-discretion standard. See Joe v. Two Thirty Nine Jt. Venture, 145 S.W.3d 150, 161 (Tex.2004).

With regard to the Barrs’ pretrial continuance motion, it should be noted that the Barrs’ claims against D & D are all grounded in negligence. The statute of limitations for negligence claims involving damage to personal property is two years. See Tex. Crv. Prao. & Rem.Code Ann. § 16.003(a) (Vernon 2002); Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 539-40 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Toro v. First City Bank-Westheimer Plaza, N.A, 821 S.W.2d 633, 634 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

The Barrs filed their original petition more than two years after the date D & D towed their car. Therefore, their claims against D & D are barred by limitations, and we cannot say that the court abused its discretion by denying their pretrial continuance motion.

With regard to the Barrs’ verbal request for a continuance after the court excluded Condra’s expert opinion testimony and their own counsel’s testimony regarding attorney’s fees, Rule 193.6(c) permits a trial court to “grant a continuance or temporarily postpone the trial” to allow the proponent of the evidence to amend or supplement that party’s discovery responses and to allow the opposing party time for additional discovery concerning any new information revealed by the amended or supplemental discovery. Tex.R. Civ. P. 193.6(c).

The Supreme Court has identified several nonexclusive factors to be considered when deciding whether a trial court abuses its discretion in denying a pretrial continuance motion premised on a need for additional time to conduct discovery: “the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.” Joe, 145 S.W.3d at 161. We hold that these factors are likewise relevant in determining whether a trial court has abused its discretion by denying a continuance under Rule 193.6(c).

Here, the Barrs’ case had been on file less than a year. The discovery sought is material to their claims for damages and for attorney’s fees. However, they made no effort to respond to AAA’s request for disclosure with regard to expert witnesses.

The requirement of expert testimony to establish reasonable and necessary attorney’s fees is not new. See e.g. E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987) (per curiam); Cantu v. Moore, 90 S.W.3d 821, 826 (Tex.App.-San Antonio 2002, pet. denied). Likewise, expert testimony is traditionally employed to establish that costs of repair are reasonable and necessary. See e.g. Llanes v. Davila, 133 S.W.3d 635, 639-40 (Tex.App.-Corpus Christi 2003, pet. denied); Woodlands Land Dev. Co. v. Jenkins, 48 S.W.3d 415, 430 (Tex.App.-Beaumont 2001, no pet.).

The Barrs’ original petition sought damages in an amount that is “reasonable” to compensate them for them loss and sought “reasonable [attorney’s] fees.” However, they made no effort to disclose the expert witnesses they intended to call to establish damages and attorney’s fees. Because of their lack of diligence, we cannot say that the court abused its discretion by denying their verbal request for a continuance after excluding Condra’s expert testimony and their own counsel’s expert testimony. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.1988); Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 412-13 (Tex.App.-Eastland 2002, pet. denied); Grace v. Duke, 54 S.W.3d 338, 343 (Tex.App.-Austin 2001, pet. denied).

Thus, we overrule the Barrs’ fifth issue.

We affirm the judgment.

      . Lay opinion testimony can be offered to prove that costs of repair are reasonable and necessary. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). However, the Barrs did not seek to prove up their damages by lay opinion testimony. Rather, they proffered Condra as an expert.