author: BRIAN QUINN, Chief Justice.

text:
    Larry Brent KITCHENS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 07-04-0527-CR to 07-04-0529-CR.
    Court of Appeals of Texas, Amarillo.
    Aug. 8, 2005.

      Richard L. Wardroup, Law Office of Richard L. Wardroup, L.L.C., Lubbock, TX, for Appellant.
    Kelley K. Messer, Asst. District Atty., Plainview, TX, for Appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Appellant Larry Brent Kitchens appeals from three orders denying his applications for writs of habeas corpus. Through those writs, he sought the dismissal of three indictments through which he was charged with capital murder. According to appellant, the trial court was obligated to so dismiss the causes since their prosecution was barred by double jeopardy. We reverse in part and affirm in part.

Background

The dispute involves the killing of three individuals, Vince Simnacher, Rhonda Kitchens, and Derwin Beauchamp. The three were attending a party at Simnacher’s abode when appellant entered, leveled a firearm at Simnacher, and fired multiple shots. The bullets struck not only Sim-nacher but also Kitchens and Beauchamp. All three died.

The State secured four indictments against appellant charging him with capital murder. Via the first three, appellant was accused of that crime as defined in § 19.03(a)(7)(A) of the Texas Penal Code. That is, in Cause No. 2249, the indictment read that appellant intentionally or knowingly caused the death of Rhonda while also intentionally or knowingly causing the death of Beauchamp and Simnacher. However, through the indictment in Cause No. 2250, the State alleged that he caused the death of Simnacher while also killing Rhonda and Beauchamp, and, in Cause No. 2251, it alleged that he murdered Beauchamp while also intentionally or knowingly causing the death of Rhonda and Simnacher. Via the fourth indictment (which initiated Cause No. 2305), appellant was accused of intentionally or knowingly killing Simnacher while committing or attempting to commit burglary of Simnaeher’s residence. See Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon 2004-05) (stating that one commits capital murder if he murders another while, among other things, committing or attempting to commit burglary).

It was Cause No. 2251 that the State first tried. Moreover, the trial ended in appellant’s acquittal. Having been acquitted of that offense, appellant then petitioned for habeas corpus, contending that double jeopardy barred the State from prosecuting the remaining indictments. The trial court disagreed and denied appellant relief. Thereafter, he appealed the decisions of the trial court.

Causes 224-9 and 2250

We first address the contention that double jeopardy barred prosecution of the remaining indictments founded upon § 19.03(a)(7)(A) of the Penal Code. We conclude that it does and rely on the opinion in Saenz v. State, 166 S.W.3d 270 (Tex.Crim.App., 2005, no pet. h.) to arrive at that decision. In Saenz, the Court of Criminal Appeals held that the applicable unit of prosecution when § 19.03(a)(7)(A) is involved consists of the victim’s murder coupled with the murders of one or more additional people during the same criminal transaction. Id. at 271. And, given that the unit of prosecution was so comprised, the legislature intended that the accused be tried under § 19.03(a)(7)(A) only once for all the murders upon which the charge was based. Id. at 272. In other words, an accused could only be tried once under § 19.03(a)(7)(A) for murdering the individuals named in the indictment. The decedents could not be rotated from the class of primary victim to that of aggravated circumstance to increase the chance of multiple convictions. To do so constituted double jeopardy. Saenz v. State, supra.

Like the situation in Saenz, the prosecutor at bar also used three deaths to satisfy the elements of § 19.03(a)(7)(A). Those three deaths formed the allowable unit of prosecution, as did the three in Saenz. So, to use them again in a second or third indictment that also alleged capital murder under § 19.03(a)(7)(A) but simply rotated the classification of the same decedents from primary victim to aggravated circumstance would ran afoul of the double jeopardy clause. Saenz v. State, supra. Therefore, the trial court erred in refusing to dismiss cause numbers 2249 and 2250 under the circumstances presented to it. Moreover, since the error continues to expose appellant to multiple punishments for the same offense we cannot but say it was harmful.

Cause 2305

As mentioned above, Cause No. 2305 is founded upon § 19.03(a)(2). The latter permits a conviction for capital murder if the accused intentionally or knowingly caused the death of someone while committing or attempting to commit burglary. Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon Supp.2004-05). As can be seen, the elements or acts encompassed under § 19.03(a)(2) differ from those in § 19.03(a)(7)(A). Admittedly, both require proof of murder but § 19.03(a)(2) obligates the State to also prove burglary or attempted burglary while § 19.03(a)(7)(A) obligates it to prove at least one more murder. Thus, the allowable unit of prosecution reflected in the indictment numbered 2305 differs from the unit of prosecution reflected in cause numbers 2249, 2250, and 2251. And, because it does, the prosecution of appellant for capital murder founded upon § 19.03(a)(2) does not violate the double jeopardy clause even though Simnacher is named as the murder victim in both instances. See Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999) (holding that double jeopardy does not arise where the accusation in the second indictment requires proof of an act separate and distinct from the acts alleged in the first).

Accordingly, we reverse the orders entered in cause numbers 2249 and 2250 and render judgment dismissing those two causes. However, we affirm the order entered in cause number 2305.

      . Section 19.03(a)(7)(A) provides that a person commits capital murder if he commits murder and murders more than one person during the same criminal transaction. Tex. Pen.Code Ann. § 19.03(a)(7)(A) (Vernon Supp. 2004-05).

      . Appellant also suggests that jeopardy attached upon his acquittal in Cause No. 2251 because the jury must have found that he did not intend to murder Simnacher. And, if it so found, the determination then would bar the relitigation of that issue in Cause No. 2305. Appellant’s argument may have merit if it could be said that the jury so found. Yet, that inference is far from certain given the record before us. As previously mentioned, the indictment in Cause No. 2251 required proof of three murders to secure a conviction, one of which was that of Rhonda. Yet, appellant testified that he did not intend to kill her. It may well be the jury believed him, and, if it did, then it would have been obligated to acquit him of the offense as charged. Given this scenario, double jeopardy would not prevent the State from prosecuting appellant, in Cause No. 2305, for murdering Simnacher while committing or attempting to commit burglary.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    THE TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Tamara PATE, Derl Anderson, Celia Anderson, and Kyle Pate, Individually and as Representative of the Estate of Casey Pate, Deceased, Appellees.
    No. 06-04-00070-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 16, 2005.
    Decided Aug. 16, 2005.
    Rehearing Overruled Sept. 13, 2005.

      Susan Desmarais Bonnen, Asst. Atty. Gen., Transportation Division, Austin, for Appellant.
    Gregory D. Smith (lead counsel), Ramey & Flock, PC, Tyler, Jeffery B. Badders, Badders Law Firm, PC, Nacogdoches, Kenneth W. Burch, Gray, Burch & Had-dad, Houston, Richard R. Morrisson, III, Kemah, Forrest G. Braselton, Nacogdo-ches, Seth Cortigene, Cortigene Law Firm, La Porte, for Appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

In the wake of the October 2000 collision that killed three young people — Earl Haley, Heather Anderson, and Casey Pate— at the intersection of State Highway 21 and Farm-to-Market Road 95 (FM95) in Nacogdoches County, the evidence suggested the pickup truck driven by Haley and occupied by his two companions either stopped or slowed to a crawl at a stop sign before proceeding slowly onto the highway and into the path of a tractor-trailer truck traveling just above the fifty-five-mile-per-hour speed limit. Evidence also showed that Haley’s view of oncoming traffic on Highway 21 was at least partially obscured by vegetation that had grown up in the state highway right-of-way after the stop sign had been installed.

The survivors sued the Texas Department of Transportation (the Department) under a premises defect theory, alleging that the Department did not keep the trees at the intersection trimmed back enough to provide sufficient visibility so Haley, as he approached Highway 21 on FM95, could see and avoid oncoming traffic. The jury agreed, finding the Department sixty percent responsible and Haley forty percent responsible. The evidence shows that trees and underbrush had grown up in the sight lines from the stop bar, which was beside the stop sign thirty feet from the intersection, and that the truck would not have become visible to Haley until his vehicle was entering or was very near the intersection. The Department raises several issues on appeal.

We affirm the judgment because we hold that (A) sovereign immunity does not bar recovery; (B) the evidence is sufficient on the three challenged components of the jury’s finding that the Department was negligent, (1) unreasonable risk of harm, (2) failure to warn of the condition, and (3) proximate cause; and (C) admitting evidence of subsequent remedial measures was harmless error.

(A) Sovereign Immunity Does Not Bar Recovery

The Department argues that it enjoys sovereign immunity because the Texas Tort Claims Act does not apply to this situation. We disagree.

Under the doctrine of sovereign immunity, a governmental unit is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision waiving its immunity. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002); Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). The Texas Tort Claims Act creates a limited waiver of this immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000); see Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005). The Act does not waive immunity for discretionary decisions, such as whether and what type of safety features to provide or — as the Department asserts is applicable to this case — where to locate a warning sign. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 2005); State v. San Miguel, 2 S.W.3d 249, 251 (Tex.1999).

The parties’ views of this case diverge on this dividing point: whether the lawsuit is about the Department’s decision on where to set the stop bar — a discretionary act involving safety features — or the Department’s duty to maintain the right-of-way so growing vegetation did not create safety issues — a condition or use of the property.

The plaintiffs acknowledged at trial and on appeal that the Department had the authority to set the stop bar’s location and that the Department’s decision on that point was discretionary. The Department’s argument assumes that the Department had the discretion to place the stop bar where it did. The Department argues that it can design its roads however it chooses and that it has no duty to “provide a clear line of sight distance from the stop line.”

But we believe the Department misconstrues the lawsuit’s claims. Plaintiffs argued that the Department has a statutory duty of maintenance and upkeep, including all activities necessary to “preserve a highway as it was originally designed and constructed.” See Villarreal v. State, 810 S.W.2d 419, 421 (Tex.App.-Dallas 1991, writ denied); Burnett v. Tex. Highway Dep’t, 694 S.W.2d 210, 212 (Tex.App.-Eastland 1985, writ ref'd n.r.e.). The case was submitted to the jury, not as a defect in the design of the roadway or in the location of the stop sign, but as a premises defect allegedly arising from the Department’s failure to properly maintain its right-of-way.

The Department has directed us to no authority that would make the two concepts equivalent. It argues that maintenance is not required by law and that maintenance is therefore discretionary. Yet, there are cases that require maintenance of roadways. The Department attempts to make this case fit into a safety feature design situation such as those for lights and signs, which are treated as part of design and thus discretionary and not actionable. That attempt to recast the lawsuit does not accurately comport with the way the case was submitted.

More on point, the Department next argues that it had no duty “with respect to the condition of the trees, underbrush and obstruction of view on the State’s right-of-way.” To support that argument, the Department directs our attention to Jezek, 605 S.W.2d at 546. Jezek involved a motorist whose car was hit after he pulled out onto a roadway intersection to look for oncoming cars because he could not see past heavy vegetation. In that case, the city had actual knowledge of the hazardous condition, including the knowledge that there was a history of vehicle accidents at that intersection. The court held that “where a city knowingly maintains an intersection right-of-way in a manner which dangerously obstructs the vision of motorists, ... they are under a duty to warn of the danger or ... make safe the defective condition.” Id. at 548; but see Sipes v. Tex. Dep’t of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, pet. denied) (no evidence of Department’s knowledge of obscured view, thus no liability for vegetation blocking view of motorist). The implicit jury finding here that the Department knew of the overgrown vegetation blocking motorists’ views is not contested on appeal.

The Department focuses on a paragraph of the Jezek opinion that acknowledges the problem of imposing this type of duty on counties and states that “counties in Texas have no proprietary functions and thus would have no duty in this area.” Jezek, 605 S.W.2d at 547. But the Department is not a county; and, unlike a county, the Department is given “exclusive and direct control of all improvement of the state highway system,” which system is to be provided “efficient maintenance.” See Tex. Transp. Code Ann. §§ 224.031-.032 (Vernon 1999).

The Department’s argument that keeping its designed sight lines clear is purely a discretionary duty, and that its immunity is therefore not waived by the Texas Tort Claims Act, is therefore not supportable. See Hamric, 718 S.W.2d at 919-20 (efficient maintenance includes trimming vegetation on right-of-way so it will not impair motorists’ views as they approach intersections); see also Olson, 980 S.W.2d at 896 (untrimmed shrubbery invading right-of-way and partially obscuring line of sight from stop position). We overrule this point of error.

(B) The Evidence Is Sufficient To Support the Three Challenged Jury Findings

The Department next complains that the evidence does not support the jury’s verdict. The jury found the Department negligent in response to the following question. It reads (in part) as follows:

Did the negligence, if any, of [the Department] proximately cause the. collision in question?
“Negligence” with regard to the Texas Department of Transportation means that, with respect to the condition of trees, underbrush and obstruction of view on the State’s right-of-way of oncoming traffic at the site of the accident:
a. There existed a condition that posed an unreasonable risk of harm for the ordinary users of the roadway in question;
b. The Texas Department of Transportation had actual knowledge of the dangerous condition, if any, and
c. The Texas Department of Transportation, within a reasonable period of time after it acquired actual knowledge of such condition, failed to warn of the condition and failed to make such condition safe.

(Emphasis added.) The jury found the Department and Haley negligent, and assessed negligence at sixty percent to the Department and forty percent to Haley. The Department contends there is legally or factually insufficient evidence to support the verdict, as to these components: (1) unreasonable risk of harm, (2) failure to warn, and (3) proximate cause.

In determining a no-evidence issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450. When considering a factual sufficiency challenge, we consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

(1) The Finding of Unreasonable Risk of Harm, Is Supported by Sufficient Evidence

The Department first argues the Plaintiffs did not provide evidence of an unreasonable risk of harm. In setting up its argument, it focuses on its own expert’s testimony, which was essentially that, if the driver had gone past the stop bar to the very edge of the intersection and then stopped, he would have been able to see a sufficient distance down the road. The Plaintiffs’ expert relied on sight line minimums as set out by the A.A.S.H.T.O. design information, which showed the distance that was necessary for safety, and in extensive testimony, he explained the necessity for the sight lines to be of that length. Briefly, the sight lines are designed for two purposes: to allow the stopped driver to assess whether he or she could enter the roadway safely, and to allow the oncoming traffic to see the entering traffic in time to stop, if necessary. By allowing the trees to grow until they blocked the sight lines, the Department frustrated both of these purposes.

Further, it is clear that statutes require a driver to stop at the stop sign/stop bar. Despite the Department’s intimations, there is no statute requiring a second stop beyond that point or requiring that drivers “creep through” an intersection, save only for the general duty to drive safely and to yield to oncoming traffic.

In summary, the Plaintiffs provided evidence that the sight line, because of the growth of the vegetation, provided less than one-third of the recommended visibility and that the visibility was so limited that drivers had insufficient reaction time, even if they obeyed the law by stopping at the stop bar and then pulling out, thinking they were clear. The Department introduced evidence that the length of the line of sight improved as a vehicle pulled closer to the road. While that is logical, it does not require a different jury finding. The evidence is legally and factually sufficient to support the jury’s finding of unreasonable risk of harm.

(2) The Finding of Failure To Warn Is Supported by Sufficient Evidence

The Department also argues that the evidence is insufficient to support the jury’s conclusion that the Department failed to adequately warn drivers of the condition and failed to make the condition reasonably safe. The Department essentially says that, since there was a stop sign and a blinking light, that was warning. We agree that those were warnings, but they appeared to be warning of the presence of a requirement that motorists stop and that an intersecting road was ahead. There were no warnings about the specific claim in this case, which was the inability to see far enough down the intersecting road. Further, there is evidence from which the jury could conclude Haley heeded the warnings and obeyed the state-mandated requirement to stop, at the point where the Department had decided he needed to stop.

At most, the fact that Haley could have seen further had he pulled further out and stopped again suggests his possible negligence. That is consistent with the fact that the jury allocated forty percent negligence to Haley.

There is factually and legally sufficient evidence to support the jury’s finding on failure to warn.

(3) The Finding of Proximate Cause Is Supported by Sufficient Evidence

The Department finally argues that the evidence does not support the jury’s finding that the Department’s negligence was a proximate cause of the injuries. Proximate cause may be proven by either direct or circumstantial evidence, but it cannot be based on conjecture, guess, or speculation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722 (Tex.App.-El Paso 2004, no pet.). Proximate cause consists of two elements, cause-in-fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Doe, 907 S.W.2d at 477. We therefore examine the record to determine whether there is legally and factually sufficient evidence to support an affirmative finding on each of these two elements.

Cause-Wr-Fact. Cause-in-fact is established when there is evidence that the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2004); Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998).

The Department’s argument on cause-in-fact is more of a “sole proximate cause” argument than one based on proximate cause alone. It suggests that, because there was nothing to show that the trees caused the accident, cause-in-fact is not supported by the evidence. This is an incorrect application of the standard to the facts. There is evidence that a jury could review to conclude the uncut trees were a substantial factor in bringing about the injury. The evidence indicates that Haley’s pickup truck was moving quite slowly when it came into the line of traffic, that Haley had no time to avoid the accident, and that the driver of the tractor-trailer truck likewise had no opportunity to avoid the accident, each of which could be attributed by the fact-finder, at least in part, to the Department’s failure to cut the vegetation on the right-of-way. Whether a particular act of negligence is a cause-in-fact of an injury is a particularly apt question for jury determination. Farley v. MM Cattle Co., 529 S.W.2d 751, 756 (Tex.1975); Wyatt v. Longoria, 33 S.W.3d 26, 32 (Tex.App.-El Paso 2000, no pet.). The evidence is legally and factually sufficient to support the jury’s determination on the cause-in-fact element of proximate cause.

Foreseeability. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Read, 990 S.W.2d at 737; Doe, 907 S.W.2d at 478. The foreseeability element requires only that the general danger be foreseeable, not the precise sequences of events that produced the harm. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001).

The Department’s argument that the accident was not foreseeable is largely based on the fact that there was no evidence of prior accidents in that location and that, therefore, any suggestion the accident was foreseeable was nothing more than “conjecture, guess or speculation.” Although lack of accident history can be considered by the jury, it is not controlling.

The danger of injury is foreseeable if its general character might reasonably have been anticipated. Doe, 907 S.W.2d at 478. The question of foreseeability, and proximate cause generally, involves a practical inquiry based on common experience applied to human conduct. Id.; City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987). It asks whether the injury “might reasonably have been contemplated” as a result of the defendant’s conduct. Doe, 907 S.W.2d at 478; McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980).

As previously set out, there was clear and uncontroverted evidence that, because of the vegetation growth, the sight line from the stop bar (where the driver is required by law to stop) was less than one third of the amount that is considered necessary by the national engineering standards for such a situation. The basis underlying those computations was explained by the expert witnesses and was not controverted. The Department’s only argument was not that the sight line from the stop bar was adequate, but instead that the sight line should have been measured from a different point, closer to the intersection.

The evidence was legally and factually sufficient to support a finding that the result was foreseeable. We overrule the evidentiary contentions of error.

(C) Admitting Evidence of Subsequent Remedial Measures Was Harmless Error

The Department finally contends the trial court committed reversible error by admitting evidence the Department had, after the accident, cut down the trees which had grown up in the right-of-way. Rule 407 of the Texas Rules of Evidence limits the admissibility of evidence of subsequent remedial measures, so that a fact-finder will not consider them as proof of negligence. Brookshire Bros. v. Lewis, 911 S.W.2d 791, 797 (Tex.App.-Tyler 1995, writ denied). Thus, evidence of remedial measures taken after an accident are ordinarily inadmissible, but such evidence need not be excluded if it is offered for another legitimate purpose. Tex.R. Evro. 407(a); Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 393 n. 4 (Tex.App.-Texarkana 2004, no pet.).

The evidence at issue consists of portions of depositions of Department employees discussing the Department’s post-accident cutting of the trees and photographs depicting the terrain Haley would have had to look across to see the approaching tractor-trailer truck as the two vehicles approached the intersection just before the accident — as that terrain appeared after the trees were removed, post-accident. Plaintiffs’ counsel argued, pretrial, that the Department employees had stated there was no difference in the sight line with or without the trees, and therefore sought to introduce the additional evidence to impeach those statements. After hearing the argument of counsel, the trial court indicated that it would admit the evidence for the sole purpose of impeaching the deposition testimony of Clyde Matthews, a maintenance supervisor for the Department, and also noted that Matthews could not be impeached until he had first testified. At the beginning of trial, the trial court heard argument concerning the contents of a booklet of anticipated exhibits Plaintiffs wished to distribute to each juror. At that time, the Department specifically objected to Plaintiffs’ Exhibits 19, 26, and 28, which were photographs showing the site after the vegetation had been cut, copies of which photographs were included in Plaintiffs’ jury booklets. Plaintiffs’ Exhibits 19, 26, and 28 were admitted at that time, for the sole purpose of impeaching Matthews’ testimony and in anticipation of his testimony. The Department then sought, and was granted, a running objection to any and all evidence depicting the subsequent remedial measures. The exhibit booklet was distributed to jurors after opening arguments.

During their case-in-chief, Plaintiffs read excerpts from Matthews’ deposition into the record. After Matthews’ deposition excerpts were read, various exhibits were admitted. Among those, Exhibit 26 was again admitted, this time after the Department, asked if it had any objection, affirmatively said “none.” Then, Exhibit 28 was again admitted with an affirmatively stated “no objection” from the Department. At trial, Matthews never testified in person, and the only excerpts from his deposition read into the record were tendered by Plaintiffs.

In its motion for new trial, the Department complained that the trial court had abused its discretion in admitting the evidence of subsequent remedial measures “because evidence of subsequent remedial measures was not admissible and the admission probably caused the rendition of an improper judgment.” In its brief on appeal, the Department makes its arguments regarding the subsequent remedial measures in just over four pages. Most of the Department’s argument asserts the Plaintiffs’ purpose in trying to introduce the subsequent remedial measures into evidence was not really impeachment, but proof of negligence. In one phrase on page 31 of its brief, however, the Department cites an Alabama case for the proposition that such evidence was not admissible as impeachment “unless the ... testimony a party seeks to impeach was initiated by the defendant, and the testifying witness had some control over the subsequent repair or alteration.” Blythe v. Sears, Roebuck & Co., 586 So.2d 861, 864 (Ala.1991). The phrase is not commented on or urged beyond the quoted phrase, and the case is not applied to the present facts that Matthews’ testimony was submitted by the Plaintiffs. At oral argument, the Department asserted that Plaintiffs improperly impeached the very testimony they tendered. Although a party can waive an issue by failing to properly brief it, see Tex.R.App. P. 38.1(h); Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 196 (Tex.App.-Dallas 2005, pet. denied), because the Department’s brief touches on the issue, we will address it.

Evidence of subsequent remedial measures should not have been admitted to impeach Matthews, since Plaintiffs tendered his testimony. Rule 607 of the Texas Rules of Evidence permits the credibility of a witness to be attacked by any party, including the party calling the witness. Tex.R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App.1999). But a party may not call a witness primarily for the purpose of impeaching him or her with evidence that would otherwise be inadmissible. Montoya v. State, 65 S.W.3d 111, 114 (Tex.App.-Amarillo 2000, no pet.); see Armstead v. State, 977 S.W.2d 791, 795-96 (Tex.App.-Fort Worth 1998, pet. ref'd), citing Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App.1995). But that does not end our inquiry.

When a party affirmatively asserts during trial that he or she has “no objection” to the admission of the complained-of evidence, any error in the admission of the evidence is waived, even in the face of a pretrial ruling. Tex.R.App. P. 33.1; Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986); accord Sands v. State, 64 S.W.3d 488, 491 (Tex.App.-Texarkana 2001, no pet.).

Plaintiffs’ Exhibits 26 and 28, both in evidence after the Department’s utterance of “no objection” to them, showed the trees, their location, and the sight lines before and after the trees were cut. While those two exhibits do not explicitly demonstrate that the Department cut the trees, a logical deduction was, and the jury could have properly concluded that, the trees, on the Department right-of-way, had been removed by the Department. The photographs show the view before and after the trees were cut down after the accident. They could easily be compared to other photographs depicting the trees present at the intersection the night Haley approached the intersection. Any error in the admission of testimony is rendered harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 896 (Tex.1989); Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728 (Tex.App.-Texarkana 1996, no pet.). Thus, the error in admitting other evidence of the subsequent remedial measures was rendered harmless. We overrule this contention of error.

We affirm the judgment.

      . But see Sipes v. City of Grapevine, 146 S.W.3d 273, 285 (Tex.App.-Fort Worth 2004, no pet.) (holding there was some evidence that city had negligently implemented discretionary act involving stop light, and remanding for trial).

      . See Jezek v. City of Midland, 605 S.W.2d 544, 545 (Tex.1980); Tex. Dep’t of Transp. v.
        Olson, 980 S.W.2d 890, 895 (Tex.App.-Fort Worth 1998, no pet.) (allowing vegetation to obscure sight lines at intersection was assumed actionable; immunity not broached); Hamric v. Kansas City S. Ry. Co., 718 S.W.2d 916, 919 (Tex.App.-Beaumont 1986, writ ref'd n.r.e.) (efficient maintenance of state highway rights-of-way includes trimming vegetation to avoid impairing view of motorists approaching intersection).

      . Before 1995, Article 6674q-4 of the Texas Revised Civil Statutes explicitly required the Department to provide efficient maintenance of the state highway system. In 1995, when that statute, with many others, was codified into the Texas Transportation Code, the provisions of Article 6674q-4 were divided into two sections of the new Code, Section 224.031, which gave the Department "exclusive and direct control of all improvements of the state highway system,” and Section 224.032, which mandated that the State Highway Commission provide for the "efficient maintenance of the system." Tex Transp. Code Ann. § § 224.031(a), 224.032(a)(1). That codification was acknowledged to be a nonsubstantive revision of the statutes relating to transportation. See Tex. Transp. Code Ann., Revisor’s Report, 1995 (found at 1 Tex Transp. Code Ann. pp. XV-XVI (Vernon 1999)).

      . See Tex. Transp. Code Ann. §§ 544.008, 544.010(c) (Vernon 1999). An operator required to stop by this section shall stop before entering the crosswalk on the near side of the intersection. In the absence of a crosswalk, the operator shall stop at a clearly marked stop line. In the absence of a stop line, the operator shall stop at the place nearest the intersecting roadway where the operator has a view of approaching traffic on the intersecting roadway.

      . The Department’s argument utilizes the "more likely than not” language as used in proximate cause medical malpractice cases as part of its argument. This language has not been used in a reported case in Texas in any other context than the specialized world of medical malpractice, and we decline the implied suggestion that it is applicable here. See Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex.1993); Welch v. McLean, — S.W.3d —, No. 2-02-237-CV, 2005 WL 1293068, 2005 Tex.App. LEXIS 4231 (Tex.App.-Fort Worth June 2, 2005, no pet).


text:
    Oscar Wardon STILL, et al., Appellants v. EASTMAN CHEMICAL COMPANY, Texas Operations, and Enbridge Pipelines (East Texas), L.P., Appellees.
    No. 06-04-00122-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 13, 2005.
    Decided Aug. 16, 2005.

      Brendan C. Roth, David B. Fugler, The Roth Law Firm, PC, Marshall, for appellants.
    Brian Bunt, Bunt & Wright, PLLC, Longview, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

All-terrain vehicles, including four-wheelers and other motorized vehicles, using the ATV Park operated by Oscar War-don Still, Future Income L.L.C., Rabbit Creek Mountain Mud Blast, Rabbit Creek ATV-RV Park, and East Texas All-Terrain Monsters (collectively Still), ranged over Still’s land, as well as over the pipelines buried in five pipeline easements crossing his land. Soon after personnel of Eastman Chemical Company and En-bridge Pipelines (East Texas), L.P. (collectively Appellees), noticed erosion and rutting of the soil over and adjacent to the pipelines, Appellees sought to stop Still from allowing the vehicles to continue using the pipeline easements in a way that caused such erosion or rutting.

From the trial court’s award of a temporary injunction in favor of Appellees— which prohibits Still from, among other things, allowing four-wheelers or other motorized vehicles to ride over Appellees’ pipelines inside Still’s ATV park — Still appeals. We hold that, since there was conflicting evidence before the trial court and part of that evidence supported a temporary injunction, the trial court did not abuse its discretion in issuing the temporary injunction. Thus, we affirm the trial court’s judgment.

Appellees are the successors-in-interest to five pipeline easements running through Still’s ATV park. In mid-December 2003, Appellees noticed the soil covering their pipelines had begun to erode. On further inspection, they saw evidence of “a lot of ATV traffic on the right-of-way,” including the formation of large ruts above some of the pipelines. These ruts concerned Ap-pellees because the ruts meant a loss of “depth cover” above the company’s pipelines. For example, two of the pipelines at issue carry ethylene and propane, and these pipelines were buried at a general depth of forty to sixty inches below the surface. Appellees discovered, however, that as a result of the ATV traffic, the displaced dirt left only twenty-four inches of soil above these pipelines, which according to Appellees “would be an unsafe situation under the Railroad Commission rules.”

According to Appellees, Still did nothing to prevent any further damage to the soil covering the pipelines between December 2003 and September 2004. To the contrary, Appellees saw evidence of continued erosion of the soil covering the pipelines during the summer and early fall of 2004. So in September 2004, Appellees sued Still and sought to have him enjoined from allowing ATVs to be operated over the pipelines. The trial court ultimately granted a temporary injunction, which Still now challenges on appeal.

The purpose of a temporary injunction is to maintain the status quo pending trial. Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563 (Tex.App.-Texarkana 2003, pet. denied). A temporary injunction should issue only if the applicant demonstrates a probable injury and a probable right to recovery after a final hearing. Id. A temporary injunction may not issue “upon mere fear, apprehension, or possibility of injury.” Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.App.-Corpus Christi 2001, no pet.) (citing Calvary Baptist Church at Tyler v. Adams, 570 S.W.2d 469, 473 (Tex.Civ.App.-Tyler 1978, no writ); Thomas v. Bunch, 41 S.W.2d 359, 362 (Tex.Civ.App.-Fort Worth 1931), aff'd, 121 Tex. 225, 49 S.W.2d 421 (1932)).

“Our review of the trial court’s action in granting a temporary injunction is limited to determining whether the action constituted an abuse of discretion.” Bay Fin. Sav. Bank, FSB v. Brown, 142 S.W.3d 586, 589 (Tex.App.-Texarkana 2004, no pet.) (citing Gannon v. Payne, 706 S.W.2d 304, 305 (Tex.1986)). A trial court abuses its discretion if it acts without reference to guiding rules and principles, acts unreasonably or arbitrarily, or if it misapplies the law to the facts before the court. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). A trial court does not abuse its discretion if its decision is based on conflicting evidence. Id. When the trial court does not issue written findings of fact and conclusions of law, as is the case here, we must affirm the trial court’s judgment if that ruling is correct under any theory applicable to the case. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 126 (Tex.App.-Fort Worth 1994, no writ). We must also view the evidence in the light most favorable to the trial court’s judgment and draw all legitimate inferences from the evidence in support of that judgment. City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571, 575 (Tex.1964).

At the October 8 hearing on Appellees’ request for a temporary injunction, the trial court received testimony from three witnesses. The first witness was David Joseph McDaniel, a pipeline supervisor and chemical engineer for Eastman. McDaniel testified that one mud hole above one of the pipelines appeared to be eighteen or twenty inches deep. McDaniel stated he observed numerous ATV trails running beside and crossing Appellees’ pipelines. McDaniel said he could not tell whether the trails had been created as a result of Still’s purposeful designation or whether the ATV riders had themselves independently created the trails. But during one site visit, McDaniel did find a printed sign reading “Poker Run Station 1” near Eastman’s right-of-way.

McDaniel then testified that the risk , of an explosion, fire, or other injury was so great that it would be imprudent for Ap-pellees to merely seek a legal remedy after the explosion, fire, or other injury had occurred and, therefore, an injunction was necessary to pre-empt Still’s activities from causing the feared injury. McDaniel believed, “From what we’ve witnessed out there, it’s pretty likely that an accident will occur in the next few months.” He even thought it was possible the damage to the pipeline would occur as quickly as the weekend following the trial court’s hearing on the temporary injunction.

Kyle Jack Hart, the North Area Operations Manager for Enbridge, testified next. Hart said the burial depth of one pipeline was thirty-six inches at the time of construction. Another pipeline was buried forty inches below the surface. The depth of a third pipeline, however, which was constructed between 1958 and 1959, varied from “very, very shallow to very deep, depending on what the construction company ran into when they were building it.” Hart admitted on cross-examination that parts of this third pipeline were probably laid at a depth of less than twenty-four inches.

Hart told the trial court he had seen a significant loss of soil cover over the pipelines at Still’s ATV park. Hart hypothesized that, if the ATVs continued cutting deep ruts along the pipelines, the pipelines would eventually be exposed, which “increases the likelihood of significant damage to the pipeline.” “The exposure will— can take the coating of the pipeline off, which will then accelerate the rate of corrosion .... ”

Finally, Still testified in opposition to the injunction. Still began operating Rabbit Creek RV Park on Memorial Day weekend of 2002. Still claimed he has not designated, built, or created any specific four-wheeler trails over Appellees’ pipelines. Instead, he merely allowed patrons to roam across the surface estate as they saw fit. Still does not try to regulate where the ATV riders go, and his testimony made it clear he plans to continue allowing ATV patrons unfettered access to the entire park. Still discounted the impact that ATVs had on the soil cover over Appellees’ pipelines. Instead, he blamed Appellees’ own tractors, used to mow the rights-of-way, for causing the deep ruts in question. At oral argument, however, Still made certain factual concessions:

Now, for purposes of this issue and this argument, I will concede that the conduct complained of was intended to be continued. I will concede that the conduct complained of did some disturbance or damage to the surface estate— that it caused ruts. There’s no question [that] riding four-wheelers across the .ground is going to disturb the grass; it’s eventually going to cause a rut if you ride it through mud.... It’s going to do it whether you do it on this pipeline or whether you do it anywhere in the world.

(Emphasis added.)

At common law, a fee owner may not interfere with an easement holder’s reasonable use and enjoyment of that easement. Harris County v. S. Pac. Transp. Co., 457 S.W.2d 336, 340 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ). Nor may the property owner make a use of the surface that might endanger or interfere with a pipeline. Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691, 695 (Tex.1967); Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 159-60 (Tex.App.-El Paso 1993, writ dism’d w.o.j.). The rights of an easement holder may be protected by injunction. Craft v. Freeport Oil Co., 563 S.W.2d 866, 867-68 (Tex.App.-Amarillo 1978, no writ).

In this case, Appellees sought to enjoin Still from allowing his ATV patrons to further erode the soil covering Appel-lees’ pipelines. The trial court heard conflicting evidence over who was responsible for the loss of depth cover. Appellees’ testimony and evidence attributed the lost depth cover to ATV use, use which was clearly sponsored and encouraged by Still. Appellees’ witnesses warned of an imminent threat of a pipeline breach that would endanger the pipeline and the nearby neighborhood if the ATV use were allowed to continue over Appellees’ pipelines.

Viewing the evidence in the light most favorable to the trial court’s ruling, we cannot say the trial court’s ruling was made without reference to guiding rules and principles, was arbitrary and unreasonable, or was not supported by any evidence. There was direct testimony that the harm caused by allowing the ATVs to continue to ride over Appellees’ pipelines could lead to an explosion as quickly as the weekend following the hearing on the temporary injunction (or, alternatively, within the next few months). Such an explosion would, in turn, endanger the surrounding homes and neighborhood. The common law in Texas expressly forbids a surface estate owner from making use of the surface in any way that endangers a pipeline, and — drawing all reasonable inferences from the evidence before the trial court — it is clear that the trial court had before it evidence that would support a conclusion that allowing Still to continue his activities, unfettered, would endanger Appellees’ pipelines. Accordingly, we cannot say the trial court abused its discretion by granting the temporary injunction. We overrule Still’s first point of error.

Because the common law supports the trial court’s judgment, we need not reach Still’s second point of error, which asks us to determine whether Section 756.103 of the Texas Health and Safety Code supports the trial court’s decision to issue a temporary injunction. See Tex. Health & Safety Code Ann. § 756.103 (Vernon Supp. 2004-2005).

For the reasons stated, we affirm the trial court’s judgment.

      . Still would later explain that a "poker run” is where several ATV riders — usually groups of women and children — set out Eve stations inside an ATV park. At each station is placed a deck of cards. The riders take one card from each deck of cards as they ride from station to station. After the riders return to the starting point with their five cards, the rider with the best poker hand wins a jackpot from money contributed by all the riders to a central pot. According to Still, participants in the poker runs generally tend to be leisurely riders who avoid trying to make ruts in pathways and even avoid going through wet areas. While Still disclaimed any responsibility for the poker runs, he did confess that he provides the participants with playing cards for what he termed an “organized ride.”


author: Justice CORNELIUS (Retired).

text:
    Frank RICHARDSON, Appellant v. The STATE of Texas, Appellee.
    No. 06-04-00144-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 17, 2005.
    Decided Aug. 17, 2005.

      Ebb Mobley, Longview, for appellant.
    Ray Bowman, Assistant District Attorney, Longview, for appellee.
    Before MORRISS, C.J., ROSS and CORNELIUS, JJ.

         William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.

   OPINION

Opinion by

Justice CORNELIUS (Retired).

A jury convicted Frank Richardson of aggravated assault with a deadly weapon. Richardson’s punishment, enhanced by two prior felony convictions, was set by the jury at forty years’ confinement.

Richardson’s only contention on appeal is that his conviction should be reversed because the State’s notice that it intended to enhance his punishment by prior convictions was untimely. We reject this contention and affirm the judgment.

If the State intends to enhance a defendant’s punishment by prior convictions, it must give the defendant reasonable notice of its intent by some kind of pleading. Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997); Cochran v. State, 107 S.W.3d 96 (Tex.App.-Texarkana 2003, no pet.). There is no statutory requirement that the notice of enhancement be given at any specific time before trial, but a judicial rule has been adopted that notice given at least ten days before trial is presumptively reasonable. Splawn v. State, 160 S.W.3d 103 (Tex.App.-Texarkana 2005, pet. filed); McNatt v. State, 152 S.W.3d 645 (Tex.App.-Texarkana 2004, pet. filed); Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.). However, courts have found notice reasonable when given less than ten days before trial. See Hackett v. State, 160 S.W.3d 588 (Tex.App.-Waco 2005, no pet.); Barnes v. State, 152 S.W.3d 144 (Tex.App.-Dallas 2004, no pet.). Thus, the presumption that reasonableness requires a minimum of ten days’ notice may be rebutted depending on the circumstances of the case and the actions of the defendant and the State. For example, in Hackett, where only five days’ notice was given, the State gave notice as soon as it became aware of the enhancement convictions. The defendant was “well aware” of the enhancements, and he did not move for a continuance after receiving notice of the intent to enhance. In Barnes, where notice was given only seven days before trial, the defendant did not present any evidence or argument of surprise or inadequate time to prepare to defend against the enhancements. The defendant pleaded true to the enhancement allegations and did not seek to change his selection of the jury as the assessor of his punishment after learning of the State’s intent to enhance the punishment.

We conclude that the ten days reasonableness presumption was rebutted in this case as well. Richardson’s case was set for a guilty plea on September 16, 2004. Apparently Richardson and the State had agreed on a plea arrangement where Richardson would plead guilty and the State would recommend a punishment of fifteen years with no enhancement of the punishment. This was stated at the guilty plea hearing on September 16, 2004, with Richardson and his attorney present. At the guilty plea hearing, however, Richardson rejected the plea arrangement and told the trial court he wanted to hire an attorney and go to trial. At that time, the prosecutor stated into the record:

Ms. Nielsen: Your Honor, if I can just add something. I know Mr. Hurlburt has made his client aware of this, but I’d like it to be on the record as well. The defendant, if found guilty, is an habitual felon and is looking at 25 minimum if I enhance him, which I have not done.
The Court: With a deadly weapon?
Ms. Nielsen: Correct. And today it’s capped at 20 years, and I know that Mr. Hurlburt has relayed the fact that the State’s recommendation would be 15. If he were to pull back or try to find another counsel, this afternoon I will file the enhancement notice, and the very minimum will be 25 years. And I know he’s aware of that. I just want it on the record.

The guilty plea hearing was on Thursday. The State filed its written enhancement notice on the following Tuesday, September 21, 2004, which was two week days and two weekend days after the plea hearing and six days before the trial began on September 27, 2004.

The State at first refrained from using enhancements because there was an agreement for a guilty plea, and the State only sought enhancements after Richardson rejected the plea arrangement. The written notice of the intent to enhance was filed six days before the trial began. Richardson did not move for a continuance; he was fully informed on September 16, eleven days before trial, about the State’s intent to use the enhancements; he has not claimed or produced evidence that he was surprised or lacked time to prepare to defend against the enhancements; and he pleaded true to the enhancement allegations at the punishment stage of the trial. In view of all these facts and circumstances, we conclude the State’s notice of intent to use enhancements was reasonable and timely.

For the reasons stated, we affirm the judgment of the trial court.


author: Justice RICHTER.

text:
    Bert A. NELSON, Appellant, v. REGIONS MORTGAGE, INC. and Barrett Burke Wilson Castle Daffin & Frappier, L.L.P., Appellees.
    No. 05-04-00599-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.

      Mark H. How, Short, How & Freís P.C., Dallas, for Appellant.
    Michael J. McKleroy, Robert F. Maris, Maris & Lanier, P.C., Dallas, for Appellee.
    Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
   OPINION

Opinion by

Justice RICHTER.

Bert A. Nelson appeals the summary judgment rendered against him and in favor of appellees Regions Mortgage, Inc. and Barrett Burke Wilson Castle Daffin & Frappier, L.L.P. Nelson raises three issues on appeal, contending that the trial court erred (1) in granting appellees’ no-evidence motions for summary judgment, (2) in granting appellees’ traditional motion for summary judgment, and (3) in denying his traditional motion for summary judgment. We affirm.

Background

Nelson’s son William was experiencing marital and financial difficulties. When William and his wife Karen defaulted on their mortgage, Regions retained Barrett Burke to enforce the deed of trust securing payment of the note. Through Barrett Burke, Regions accelerated the maturity of the note and posted the property for foreclosure. Nelson sought to purchase the note from Regions to avoid the foreclosure and, because Karen had filed for divorce, to deprive her of any community property interest in the house. William hand-delivered Nelson’s payment to Barrett Burke to effectuate the purchase of the note from Regions. Over time, Nelson received an assignment of the mortgage and copies of the note and deed of trust. However, the original note and deed of trust were never delivered to Nelson.

William and Karen reconciled. They continued to live in the home, but they made no payments to Nelson after he purchased the note. Nelson never attempted to enforce the note against the couple. According to Nelson, his reason for foreclosing “disappeared” when Karen moved back into the house.

More than four years after the maturity of the note was originally accelerated, Nelson filed suit against Regions and Barrett Burke seeking to rescind the agreement to purchase the note. Specifically, Nelson sought to recover the purchase price of the note, plus interest, and to return ownership of the note to Regions. In addition, he sought damages for misrepresentation, fraudulent concealment, violations of the Texas Deceptive Trade Practice/Consumer Protection Act, and breach of contract. Finally, Nelson sought a declaratory judgment that Regions and Barrett Burke were obligated to deliver the original note and deed of trust or to refund his payments plus interest and attorney’s fees.

The SummaRY Judgment Motions

Appellees filed identical no-evidence motions for summary judgment. These motions challenged Nelson’s ability to produce competent summary judgment evidence of each specific element of each of Nelson’s claims against appellees, i.e., his claims for misrepresentation, fraudulent concealment, violations of the DTPA, breach of contract, rescission, and declaratory judgment.

At the same time, appellees filed a joint traditional motion for summary judgment, which also sought judgment on all of Nelson’s claims against appellees. Here ap-pellees attacked what they called the “premise” of Nelson’s claims for relief: because Nelson did not receive the original note and deed of trust, he did not receive the benefit of his bargain. Appellees’ traditional summary judgment motion attempted to establish that Nelson’s damages, if any, were not caused by the failure to deliver the original documents. Instead, they were caused by Nelson’s own failure to take any action to enforce the note against his son and daughter-in-law. In support of their joint motion, appellees offered deposition testimony of both Nelson and William establishing that Nelson did not ever attempt to enforce the note.

Nelson filed separate responses to ap-pellees’ no-evidence and traditional motions, and he filed his own traditional cross-motion for summary judgment on breach-of-contract and rescission grounds. Nelson’s responses and motion were based on an identical articulation of forty-six “un-controverted facts.” The substance of these facts, Nelson argued, defeated appel-lees’ motions and supported the granting of his own. Nelson also objected to appel-lees’ no-evidence motions on procedural grounds, asserting the motions were improperly “global” in their attack on each element of every one of his claims.

Without specifying the grounds for its ruling, the trial court denied Nelson’s motion and granted summary judgment in favor of Regions and Barrett Burke. Nelson appeals both rulings.

Appellees’ No-Evidence Summary Judgment Motions

Nelson’s first issue argues the trial court erred in granting appellees’ no-evidence summary judgments on both procedural and substantive grounds. We disagree on both points.

Adequacy of Motions

At the outset, Nelson objects to appellees’ no-evidence motions for summary judgment, arguing the motions are defective because they challenge each element of each of his claims. According to Nelson, this renders the motions improper “global” motions. In support of this assertion, he relies solely on the comment to rule 166a(i), which explains that there may be no eonclusory motions or general no-evidence challenges to an opponent’s ease.

A no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. See Tex.R. Crv. P. 166a(i); see also Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex.App.-Dallas 2000, no pet.). The rule plainly allows the movant to identify whatever elements he believes are unsupported by evidence; it imposes no restrictions on the number of challenges that may be made. Because appellees’ no-evidence motions for summary judgment complied with the requirements of rule 166a(i) by specifically identifying each challenged element of each claim, we conclude the motions were not defective and Nelson’s objection is without merit.

Sufficiency of Nelson’s Response to Appellees’ No-Evidence Summary Judgment Motions

Nelson next argues that his summary judgment evidence sufficed to raise material issues of fact on all elements of each of his claims. A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine issue of material fact. See Tex.R. Civ. P. 166a(i); see also Espalin, 27 S.W.3d at 683. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In determining whether the nonmovant has met his burden, we consider the evidence in the light most favorable to the nonmovant. Gen. Mills Rests. Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.). We affirm a summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

Nelson’s Claims for Damages

We look first at Nelson’s claims for damages on theories of misrepresentation, fraudulent concealment, DTPA violation, and breach of contract. Having reviewed the record, we disagree that Nelson’s summary judgment evidence successfully raises material fact issues on the elements of these claims.

At the outset, we address Nelson’s purportedly separate claims for misrepresentation and fraudulent concealment. Misrepresentation and fraudulent concealment are not separate causes of action. Instead, a misrepresentation is an essential element of common law fraud. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). Concealment by silence, or fraudulent concealment, is a type of misrepresentation. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986) (silence is equivalent to false representation when circumstances impose duty to speak and one deliberately remains silent). Therefore, we treat Nelson’s complaints of misrepresentation and fraudulent concealment as complaints of common law fraud.

Evidence of injury or damage to the plaintiff is an essential element of fraud, violation of the DTPA, and breach of contract. Formosa Plastics, 960 S.W.2d at 47 (elements of fraud); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995) (elements of DTPA action); Southwell v. Univ. of Incarnate Word, 974 S.W.2d 351, 354-55 (Tex.App.San Antonio 1998, pet. denied) (elements of breach of contract). In his response to the no-evidence motions, Nelson identified his injury as his inability to receive payments from William despite having purchased the note evidencing William’s debt.

After reviewing Nelson’s summary judgment evidence, we conclude that Nelson failed to present more than a scintilla of evidence to raise a genuine issue of material fact with respect to damages he incurred because he did not receive the note and deed of trust. Nelson offered no evidence that he made a demand on William to pay what he owed and that William refused. On the contrary, Nelson’s evidence establishes that he initially thought he would have to carry the note or foreclose because William had no ability to refinance the transaction. Nelson offered no evidence that he attempted to foreclose. Instead, the evidence suggests Nelson chose to carry the note rather than attempt to enforce it. His evidence does not raise a genuine issue of material fact concerning any injury he suffered that was caused by a failure to deliver the original instruments.

We conclude Nelson failed to carry his burden of proof with respect to his claims of fraud, violation of the DTPA, and breach of contract and that the trial court properly granted summary judgment with respect to these claims for damages.

Rescission

Rescission is an equitable remedy that is available in some circumstances to a claimant that has been injured by such violations as breach of contract or fraud. Boyler v. MCR Const. Co., 673 S.W.2d 938, 941 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). Nelson pleaded entitlement to rescission “because of a failure of consideration, to wit: [appellees] have not and apparently cannot deliver to [Nelson] the original Note and Deed of Trust.” Appel-lees’ no-evidence summary judgment motion challenged Nelson to come forward with evidence showing his entitlement to this equitable remedy. He has not done so. We have already concluded Nelson failed to raise a material issue of fact concerning any injury he suffered that was caused by his failure to receive the original documents. Moreover, we are not persuaded to extend an equitable remedy in this case. Nelson clearly accepted one benefit of his bargain: his purchase of the accelerated note saved William’s home from foreclosure and relieved William of four years of obligation on the note. Then Nelson delayed in asserting his claim for rescission until Regions’ claim against William on the note had been extinguished by limitations. Equitable relief is not appropriate in this case.

We conclude Nelson failed to carry his burden with respect to his claim for rescission and that the trial court properly granted summary judgment with respect to this claim.

Declaratory Relief

To be entitled to declaratory relief, Nelson was required to establish a justiciable controversy within the trial court’s jurisdiction. See Grinnell v. Munson, 137 S.W.3d 706, 720 (Tex.App.-San Antonio 2004, no pet.). Nelson pleaded for a declaration that appellees were required to deliver the original note and deed of trust to him or to refund his payments. We have concluded Nelson has no claim against appellees based on the failure to deliver the original loan instruments to him. Accordingly, there is no basis for a judicial declaration on those grounds, and the trial court properly granted summary judgment on Nelson’s declaratory judgment claim. See id. (when summary judgment properly granted on two causes of action pending, and no evidence offered of any other imminent cause of action, summary judgment properly granted on claim for declaratory relief).

We have affirmed the trial court’s no-evidence summary judgment on each of Nelson’s claims for relief. We decide Nelson’s first issue against him. Given that resolution, we need not address Nelson’s second issue concerning appellees’ traditional motion for summary judgment. See Joe, 145 S.W.3d at 157.

Nelson’s Motion FOR SummaRY Judgment

In his third issue, Nelson contends the trial court erred in denying his cross-motion for summary judgment. Again, we disagree.

When the plaintiff moves for summary judgment on its own cause of action, the plaintiff must prove it is entitled to summary judgment by establishing each element of its claim as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Nelson’s cross-motion is based on the identical grounds as his opposition to appellees’ traditional and no-evidence summary judgment motions. Specifically, Nelson argues he is entitled to summary judgment on his breach of contract and rescission claims because he did not receive the original note, he received no payment on the note, and he could not have enforced the note in his role as “owner.”

Appellees’ response to Nelson’s cross-motion incorporated the evidence they offered in support of their traditional motion for summary judgment. This record includes uncontroverted evidence from both Nelson and William that Nelson never attempted to enforce the note.

Nelson argues, however, that he could not legally have enforced the note had he tried to do so because he lacked possession of the original instrument. Nelson did receive a certified copy of the note and an assignment of the note from appellees. We agree that Nelson was not a “holder” of the note within the meaning of the law of negotiable instruments. See Tex. Bus. Comm.Code Ann. § 3.201(a) (Vernon 2002) (defining “negotiation” as “a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.”). However, under certain circumstances, Texas law provides that:

even if a person is not the holder of a note, he may still be able to prove that he is the owner and entitled to enforce the note, foreclose on collateral and obtain a deficiency judgment under common-law principles of assignment.

Leavings v. Mills, — S.W.3d —, —, 2004 WL 1902536 at *5 (Tex.App.-Houston [1st Dist.] Aug. 26, 2004, no pet.). Likewise, under certain circumstances, common law principles of agency allow enforcement of a note by one not in possession. See, e.g., Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 443 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The law of negotiable instruments is supplemented not only by principles of law such as assignment and agency, but also by principles of equity. Tex. Bus. & Comm. Code § 1.03(b) (Vernon Supp.2004-05). Thus, we cannot say a court would never uphold enforcement of a note by an owner who was not in possession of an original note. When Nelson chose not to attempt to enforce the note, he deprived the trial court of a specific set of facts to which the law could be applied. Instead, Nelson asked the trial court-and asks this Court-to speculate that, if demand had been made, his son would have refused to pay the debt. He further asks us to speculate that his son’s hypothetical refusal would have been based on Nelson’s inability to produce the original note. We decline Nelson’s invitation to speculate as to such an injury.

We conclude Nelson has not established that he suffered any damages as a result of the failure of appellees to deliver the original note to him. On the contrary, the summary judgment record establishes that any damages Nelson may have incurred were caused by his failure to take any action to enforce the note. Speculation as to what might have happened had Nelson attempted to enforce the note is no basis for summary judgment.

Nelson has not proved he is entitled to summary judgment on his breach of contract or rescission claims. We decide Nelson’s third issue against him.

Conclusion

We conclude the trial court properly granted appellees’ no-evidence motion for summary judgment and properly denied Nelson’s cross-motion for summary judgment. Accordingly, we affirm the summary judgment orders of the trial court.

      . Nelson identifies this injury in terms of his misrepresentation claim. We read his response to claim this same injury as the basis of all of his claims for damages. He identifies no other injury that might support an award of damages.

      . Nelson argues the assignment was not valid. Resolution of the appeal does not require resolution of the validity of the assignment.


author: Justice ROSS.

text:
    Clyde Murff HARDY and Barbara J. Hardy, Appellants v. Denver C. MARSH, Jr., M.D., Appellee.
    No. 06-05-00056-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2005.
    Decided Aug. 17, 2005.

      Larry L. Gollaher, Law Office of Larry L. Gollaher, Dallas, for appellants.

      Dana D. Banks, Smith, Rose, Finley, Harp & Price, San Angelo, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Clyde Murff Hardy and Barbara J. Hardy sued Denver C. Marsh, Jr., M.D., for medical malpractice. The trial court dismissed the suit because of an inadequate expert report filed pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code, and awarded Marsh his reasonable attorney’s fees. The Hardys appeal, contending the report complied with the statute and further contending that, if the report was not in compliance, the trial court abused its discretion in failing to grant them a thirty-day extension in which to cure the defect. We affirm. Background

Clyde Hardy was a known diabetic. On August 5, 2002, he was admitted to Shannon West Texas Memorial Hospital in San Angelo, suffering from an acute myocardial infarction. Marsh, a cardiologist, was Clyde’s attending physician. Marsh performed a catheterization and coronary angioplasty on Clyde. Following the surgery, Clyde initially appeared to be doing well, but eventually developed the onset of pain and weakening in his legs, particularly on the right side. Clyde thought he had a “blood clot,” as he had suffered from them in the past. Marsh dismissed Clyde from the hospital August 9, 2002. The pain in Clyde’s right leg persisted, and on August 12, 2002, he was readmitted to the hospital. A “right iliofemoral thromboem-bolectomy” was performed immediately, but three days later an above-the-knee amputation of Clyde’s right leg became necessary. The Hardys alleged in their lawsuit that Marsh’s negligence in failing to properly investigate Clyde’s complaint and in failing to consult a specialist proximately caused the loss of Clyde’s leg and the other attendant injuries and resulting damages.

In compliance with Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a), the Hardys filed an expert report prepared by Robert R. Cassella, M.D. Claiming the report did not comply with the Code requirements, Marsh moved to dismiss the lawsuit with prejudice. See Tex. Crv. PRAC. & Rem.Code Ann. § 74.351(Z), (r)(6). The trial court agreed and dismissed the Hardys’ case with prejudice. The trial court also denied the Hardys’ motion for an extension of time in which to cure the expert report.

The Report

The Hardys first contend the trial court abused its discretion when it determined Cassella’s expert report did not constitute a good-faith effort to meet the statutory requirements of the Code. See Tex. Crv. PRAC. & Rem.Code Ann. § 74.351(Z). Marsh alleges the report is deficient in its failure to adequately state the standard of care, a breach of that standard, and causation. Marsh also contends the report is conclu-sory and speculative.

The expert report states, in relevant part, as follows:

This 77-year old [sic] gentleman presented to the emergency room with an acute myocardial infarction in progress, associated with severe bardycardia [sic] and hypotension. According to the records, his attending physician was a Dr. Denver C. Marsh, a cardiologist.
Accordingly, the patient underwent ang-iography, which included left heart catherterization [sic], left ventricular an-giogram, supra-valvular aortogram, bilateral coronary angiogram, saphenous vein graft, left internal mammary artery graft and coronary angioplasty of the circumflex coronary artery. Following his surgery, he initially appeared to be doing well, but he eventually developed the onset of pain and weakening in his legs, particularly on the right side. He made several complaints regarding this, both to Dr. Marsh and the attending staff. In one instance pri- or to release from the hospital, his right leg gave out....
Approximately one week following his surgery, there was noted gross discoloration of his right lower extremity from the knee down. It was noted that, although he had a strong femoral pulse on the left, he had no femoral pulse on the right. Upon readmission to the hospital, impressions were as follows:
1. Thrombosis of the right limb of aor-to-femoral bypass graft
2. Post cardiac catheterization with severe ischemia prolonged of the right lower extremity for four days
On one of his recent post-operative visits to his physician Dr. Marsh, he relatedly [sic] stated that the pain in his right leg continued. There was a pulse in the right lower extremity with mottle and some coolness of the right leg below the level of the knee. He was seen by surgeon Dr. J. Michael Cornell regarding this, whose impression [was] that this patient had a superficial femoral artery occlusion and dysfunction of the right limb of the aortal femoral bypass. He suggested an emergency thromboembo-lectomy, a possible fem-fem bypass graft to salvage the right lower extremity. On 8-12-02, the patient underwent a right iliofemoral thromboembolectomy and a right four compartment fascioto-my, under the direction of Dr. J. Michael Cornell. Dr. Cornell states that should he not show improvement the following day, that it was likely that he should be returned to the operating room for debridement or amputation as the findings of surgery would dictate.
An important consideration which would help discern procedures to be followed would be a demonstration of an adequate run-off to the vessels supplying the legs. Judicious use of aortagrams [sic] and more distal arteriorgrams [sic] are considered important adjuncts in the precise and effective management of is-chemic disease of the lower extremities. It is my opinion that this patient should have had a consultation with a vascular surgeon in view of his complaints before his discharge on 8-9-02. I recognize fully the importance of his other medical problems. It is my opinion then that if this patient had had more immediate treatment that a salvage of his right leg would have been more probable. In my opinion, Dr. Marsh’s failure to seek such a consultation and to use such diagnostic means was not in accordance with the applicable standard of care.

A Standard of Review

To constitute a good-faith effort to establish the causal relationship element under the Act, the expert report need not marshal all of the plaintiffs proof, or present evidence as if the plaintiff was actually litigating the merits. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52-53 (Tex.2002); American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). No magic words such as “reasonable probability” are required for the report to comply with the Act. Wright, 79 S.W.3d at 53. The report, however, must provide enough information within the document both to inform the defendant of the specific conduct at issue and to allow the trial court to conclude that the suit has merit. Id. at 52; Palacios, 46 S.W.3d at 879. A report merely stating the expert’s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. Finally, in assessing the adequacy of the report, the trial court must look only within the four corners of the report, and inferences are not permitted. Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878. We review under an abuse of discretion standard a trial court’s dismissal of a suit for failure to comply with the Code. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 877.

B. The Report Failed To State an Applicable Standard of Care and its Breach

The Hardys rely primarily on two sentences in Cassella’s report as establishing the standard of care:

An important consideration which would help discern procedures to be followed would be a demonstration of an adequate run-off to the vessels supplying the legs. Judicious use of aortagrams [sic] and more distal arteriorgrams [sic] are considered important adjuncts in the precise and effective management of is-chemic disease of the lower extremities.

Thus, the Hardys argue that the failure to use such diagnostic procedures was not in accordance with the applicable standard of care.

The standard of care for a doctor is what a reasonable and prudent doctor would have done under the same or similar circumstances. See Snow v. Bond, 438 S.W.2d 549, 550-51 (Tex.1969). Identifying the standard of care is critical because “[w]hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.” Palacios, 46 S.W.3d at 880.

The statements on which the Hardys rely are not statements of a standard of care. The first statement refers to “[a]n important consideration” — not a standard of care — “which would help discern procedures to be followed.” The report then identifies that “important consideration” as “a demonstration of an adequate run-off to the vessels supplying the legs.” And the second sentence refers to two tests presumably used in diagnosing or treating diseases of the lower extremities. The report does not state the procedures or treatments that should have been followed when Clyde complained of leg pain; instead, it merely states the general procedures and tests used to diagnose and treat “ischemic disease of the lower extremities.”

Cassella’s further statement — that Marsh’s failure to seek consultation with a vascular surgeon and to use “such diagnostic means” was not in accordance with the applicable standard of care — does not put Marsh on notice of the specific conduct at issue. “It is not sufficient for an expert to simply state that he or she knows the standard of care and concludes it was [or was not] met.” Palacios, 46 S.W.3d at 880; see Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex.App.-El Paso 1995, writ denied). Nowhere does Cassella’s report identify Clyde’s specific symptoms requiring consultation with a vascular surgeon, when such consultation was required, or what treatment by such surgeon was required. Neither does the report specify what results the diagnostic tests would have been expected to reveal or what treatment would have been appropriate as a result of those tests.

When the eonclusory statements in the expert report do not put a defendant on notice of the conduct complained of and allow the trial court to deduce that the suit has merit, Section 74.351(0 affords the trial court no discretion but to conclude, as the trial court did here, that the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was breached, as Section 74.351(r)(6) requires. Because the 120 days prescribed by Section 74.351(a) had passed when the trial court made that determination, Section 74.351(b) required the court to dismiss the Hardys’ claims against Marsh with prejudice.

C. The Expert Report Failed To Establish a Causal Relationship

The Hardys rely mostly on one paragraph in the report to establish causation:

It is my opinion that this patient should have had a consultation with a vascular surgeon in view of his complaints before his discharge on 8-9-02. I recognize fully the importance of his other medical problems. It is my opinion then that if this patient had had more immediate treatment that a salvage of his right leg would have been more probable.

Nothing in this paragraph links Marsh’s alleged inaction (immediate treatment as opposed to discharge) to Clyde’s injury (the amputation). The report merely states that Clyde “should have had a consultation with a vascular surgeon.” It does not state what additional procedures or treatment would have been provided by the surgeon. Nor does it connect the consultation to avoidance of the amputation. Nowhere in the expert report does Cassel-la set forth factors or explain the medical basis for his opinion that “if this patient [Clyde] had had more immediate treatment that a salvage of his right leg would have been more probable.”

While a “fair summary” is something less than all the evidence necessary to establish causation at trial, even a fair summary must contain sufficiently specific information to demonstrate causation beyond mere conjecture in order to meet the Code’s requirements and satisfy the Palac-ios test. See Wright, 79 S.W.3d at 52. Cassella’s report fails to provide sufficiently specific information to show more than speculation on the element of causation.

We conclude it was well within the trial court’s discretion to find that the report did not meet the Code’s requirement on the element of causation and to dismiss with prejudice the Hardys’ claims against Marsh. See Tex. Civ. PRac. & Rem.Code Ann. § 74.351(b), (l).

Granting An Extension

In the Hardys’ second issue, they contend the trial court abused its discretion in denying their motion for a thirty-day extension because, in case of an inadequate expert report, “may” in Section 74.351(c) must be read as a “shall” or very close to a “shall.” See Tex. Civ. PRac. & Rem.Code Ann. § 74.351(c).

Section 74.351(c) provides:

If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.

The use of the word “may” in a statute shows that the provision is discretionary and not mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied); Weldon v. Weldon, 968 S.W.2d 515, 518 (Tex.App.-Texarkana 1998, no pet.). When a trial court’s function is discretionary and not mandatory, the reviewing court should give deference and wide latitude to the decision of the trial court. Roberts, 988 S.W.2d at 402. We should reverse only on a showing of a clear abuse of discretion. Id.

The Hardys argue that the Legislature has not provided any guidance as to what the word “may” means in this provision. Hence, in the absence of any guidance, “may” should be treated as “shall.” We disagree. The word “may” creates discretionary authority. See Tex. Gov’t Code Ann. § 311.016(1) (Vernon 2005). By using the word “may,” Section 74.351(c) plainly vests the trial court with discretion to grant an extension. See Tex. Gov’t Code Ann. § 312.002 (Vernon 2005) (“words shall be given their ordinary meaning”). The Hardys have not presented us with authority to hold otherwise.

We agree that a trial court should not arbitrarily or unreasonably withhold an extension. However, as pointed out to the trial court at the hearing on Marsh’s motion to dismiss, the Hardys gave presuit notice of their claims almost a year before filing suit. The trial court could have reasonably believed the Hardys had already had sufficient time to obtain an adequate report. Under these circumstances, we cannot say the trial court abused its discretion in refusing to grant an extension. Conclusion

We affirm the trial court’s judgment.

      . Tex Civ. Prac. & Rem.Code Ann. § 74.351 (Vemon 2005).

      . Palacios provides detailed analysis of why the standard of review is abuse of discretion, rather than de novo. 46 S.W.3d at 876-79. One of the reasons the Palacios court articulates is that the dismissal of the suit is a sanction, reviewed under an abuse of discretion standard. When codifying the statute, the Legislature did not include the “sanction" language. The Legislature did, however, codify the same remedy — dismissal of the suit with prejudice — as had been provided in the statute.