author: HERVEY, J., KELLER, Presiding Judge,

text:
    Alexander ALONZO, Appellant, v. The STATE of Texas.
    No. PD-0435-02.
    Court of Criminal Appeals of Texas.
    March 16, 2005.
    Brian W. Wice, Houston, for Appellant.
    Alan Curry, Assist. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court in which

MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, J.J., join.

Appellant was convicted of capital murder and sentenced to life imprisonment. The Court of Appeals reversed and remanded for a new trial after deciding that the trial court erroneously excluded defensive evidence. Alonzo v. State, 67 S.W.3d 346, 355-62 (Tex.App.-Waco 2001). We granted the State’s petition for discretionary review to review this decision. After reviewing the parties’ briefs and the relevant portions of the record, we conclude that our decision to grant the petition was improvident. Accordingly, we dismiss the State’s petition for discretionary review. See Tex.R.App. 69.3.

KELLER, P.J., filed a dissenting opinion.

KELLER, Presiding Judge,

dissenting.

The Court of Appeals granted relief on a basis that was not presented to the trial court — the constitutional right to present a defense. Although the merits of the constitutional claim were argued on original submission, the State failed to point out until its motion for rehearing that the claim was never presented at trial. One important question before us is: can the party that prevailed at trial “forfeit” a procedural default issue by failing to timely present it to the court of appeals? I would hold that such a “forfeiture” cannot occur and that we should exercise our discretion to direct that the issue be addressed.

In Rochelle v. State we held that, by failing to present a procedural default argument to the court of appeals, the State failed to preserve for review an argument that the appellant procedurally defaulted his complaint at trial. But we have also said that preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. Significantly, Rochelle predates our decision in Marin v. State, a “watershed” case in the law of error preservation. Given Marin and our other pronouncements on the “systemic” nature of error preservation, we should re-examine the viability of Rochelle. Such a re-examination shows it to be wanting.

In Rochelle, we articulated three reasons for holding that we will not review a court of appeals’s refusal to consider a newly raised error preservation issue on rehearing. First, we stated that doing so is contrary to the policy in the appellate rules of requiring all matters to be raised in the original brief. Second, it would force appellate courts to issue written opinions on rehearing. And finally, it would encourage piecemeal appellate litigation in the courts of appeals. For several reasons, none of these justifications are particularly persuasive.

Since the advent of Marin, errors are categorized into three groups: (1) absolute requirements and prohibitions (also known as “systemic” requirements), (2) rights that must be implemented unless expressly waived, and (3) rights that are to be implemented upon request. Most requirements are of the third type, those that are “optional with the litigants.” The rationale underlying the “optional” nature of most requirements is that the trial judge acts within the adversarial system as an “institutional referee” whose role is to passively enforce rules invoked by the parties.

But appellate courts do not share this passive role with regard to whether the appealing party has properly preserved error. As observed above, several cases after Rochelle have indicated that a first-level appellate court should address preservation of error even if the issue is not raised by the parties. Rochelle’s articulated policy of requiring the parties to raise all their claims in the original brief is irreconcilable with the fact that the party that prevails in the trial court has no duty to file a brief at all. The duty to address preservation issues sua sponte also undercuts Rochelle’s second and third reasons for not addressing such issues on rehearing. If a court of appeals complies with its duty to address the preservation issues on original submission, a motion for rehearing will be unnecessary and the threat of piecemeal litigation will be nonexistent.

And there are good reasons for imposing on the appellate courts a duty to address preservation issues sua sponte. In Saldano v. State, we explained the fundamental importance of error preservation requirements to the proper and efficient functioning of the system: “[OJbjections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.” These judicial economy concerns are most salient, by far, at the trial level. Permitting an appellate court to refuse to consider error preservation when it is first reminded to do so on motion for rehearing may promote the efficient disposition of an appeal, but that small savings of judicial resources is far outweighed by the time and expense of retrial (and subsequent appeal) that would follow a reversal on a complaint that was never presented to trial court.

Moreover, decision-making at the appellate level must take into account not only the parties’ interests but also those of the trial court. On appeal, the trial court has no designated representative. While the party prevailing at trial may generally defend the trial court’s interests in maintaining its judgment, that is not always the case. For instance, the State might choose not to advance a procedural default issue because it wishes to obtain an appellate pronouncement regarding a certain proposition of law that can be made only by considering the merits of the appellant’s claim. While the parties may have latitude to narrow issues in such a manner at trial, the same cannot be said for appeal. The State (or any other appellee) should not be permitted to thrust a legal issue upon an appellate court by strategically deciding to “forfeit” a claim of procedural default. Rather, appellate courts should refrain from being manipulated into giving advisory opinions about the law.

Further, there are sometimes situations in which the State concedes error, and such a concession could occur even when the error was not preserved. In fact, that situation occurred at the federal level in Saldano, where the Attorney General of Texas conceded error in the admission of testimony, even though no objection had been lodged at trial. Such a confession of error would constitute not merely forfeiture but an actual waiver of a claim of procedural default. Nevertheless, we did not feel bound in Saldano by such an attempted waiver, and we expressly disagreed with the notion that the State’s confession of error excused the appellant from having to comply with the rules for preserving error. Analytically, refusing to accept an attempted waiver is the equivalent of treating the preservation requirement as an absolute one, to be implemented regardless of the party’s wishes.

While the State’s failure to protect the trial court’s interests in this case was by negligence, rather than by design, that does not change the fact that the trial courts’ interests in maintaining their judgments and avoiding further proceedings deserve protection by the appellate courts themselves, and not simply by the parties.

Finally, I address the question of estop-pel. Given the need to protect the trial court’s interests, as opposed to simply those of the parties, it is questionable whether estoppel should even apply in this context. But even if principles of estoppel could apply to the failure to invoke procedural default, they are not implicated here. To implicate estoppel, the circumstances would have to show that the State first injected the constitutional issue into the case, and, as a result, misled the court of appeals into ruling upon the merits of the issue. In appellant’s brief on direct appeal, there is a section B, entitled, “The right of an accused to present a defensive theory.” In that section, consisting of a paragraph filling half a page, appellant discusses two United States Supreme Court cases recognizing a constitutional right to present a defense and two Texas cases purportedly recognizing the same rule. That paragraph is then followed by a section C, entitled “The evidence was admissible under Texas Rule of Evidence 803(24),” which consists of a full page discussing appellant’s rule of evidence claim. That section is in turn followed by a section D, which consists of four pages of discussion, evaluating harm under the standard for non-constitutional errors. A good argument could certainly be made that appellant’s brief on direct appeal did not adequately present a constitutional claim to the court of appeals, but the State certainly cannot be blamed for thinking that appellant’s brief might be construed as raising a constitutional claim or might motivate the court of appeals to raise such a claim on its own.

In summary, under the circumstances, the court of appeals ought to have addressed the preservation issue urged in the State’s motion for rehearing. This case involves a serious question about whether error was in fact preserved under common, everyday notions of procedural default. This Court should either remand the case to the court of appeals to consider the issue or it should consider the preservation issue on discretionary review.

I respectfully dissent to the Court’s decision to dismiss this petition as improvidently granted.

      . 791 S.W.2d 121 (Tex.Crim.App.1990).

      . Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997); see also Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1992) (holding that a motion for rehearing regarding a preservation of error issue was an appropriate vehicle to force “appellate courts to observe their systemic requirements”) and Fuller v. State, 829 S.W.2d 191, 199 n. 4 (Tex.Crim.App.1992) ("it has been the common practice of this Court and of the intermediate appellate courts in Texas to examine matters affecting the preservation of error, whether separately argued by the parties or not”).

      . 851 S.W.2d 275 (Tex.Crim.App.1993).

      . Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004).

      . Rochelle, 791 S.W.2d at 125.

      . Id.

      . Id.

      . 851 S.W.2d at 279.

      . Id. at 278.

      . Id. ("The trial judge has no duty to exclude [hearsay evidence] on his own [for example], and would probably fall into error if he did”).

      . 70 S.W.3d 873, 887 (Tex.Crim.App.2002).

      . See Saldano, generally.

      . Id. at 890-891.

        .But see Saldano v. Roach, 363 F.3d 545, 553-554 (5th Cir.), cert. denied, -U.S.-, 125 S.Ct. 65, 160 L.Ed.2d 29 (2004)(in federal system, on habeas corpus, State’s representative can waive defense of procedural default).

      . See Prystash v. State, 3 S.W.3d 522 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000).

      . Appellant does not claim that the State injected the constitutional issue in its brief to the court of appeals.

      .A claim that is not presented to the Court of Appeals in the briefs may nevertheless be addressed as "unassigned error,” so long as the error was preserved at trial. Wright v. State, 981 S.W.2d 197, 199 n. 2 (Tex.Crim.App.1998).


source: Caselaw Access Project

license: Public Domain

text:
    Barbara BRITTINGHAM-SADA DE POWERS, Guillermo Marroquin-Brittingham, Mauricio Marroquin-Brittingham, Juan Carlos Lobeira-Brittingham, Daniela Lobeira-Brittingham, and Brandon Milmo-Brittingham, Appellants, v. THE ANCILLARY ESTATE OF Juan Roberto BRITTINGHAM-MCLEAN, Deceased, Appellee.
    No. 04-01-00389-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 17, 2004.
    Rehearing Overruled Jan. 14, 2005.

      W. Wendell Hall, Brynley James, III, Lara Grant, Rosemarie Kanusky, Pul-bright & Jaworski L.L.P., San Antonio, C.M. Zaffirini, Zaffirini & Castillo, Laredo, for appellants.
    Homero G. Martinez, Homero G. Martinez, P.L.L.C., Alberto Alarcon, Guillermo G. Alarcon, Hall, Quintanilla & Alarcon, L.L.C., Jesus M. Dominguez, Law Office of Jesus M. Dominguez, Bruce J. Werstak, III, Sames & Werstak, L.L.P., Laredo, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by SANDEE BRYAN MARION, Justice.

The underlying probate suit involves the assets of a Mexican decedent, and a dispute between his surviving spouse and some of his children and grandchildren. This is an appeal from the trial court’s denial of the special appearances filed by one of his daughters and some of the grandchildren. Because we conclude the trial court’s exercise of personal jurisdiction over Barbara Brittingham-Sada de Powers, Guillermo Marroquin-Britting-ham, Mauricio Marroquin-Brittingham, Juan Carlos Lobeira-Brittingham, Daniela Lobeira-Brittingham, and Brandon Mil-mo-Brittingham does not comport with traditional notions of fair play and substantial justice, we reverse the trial court’s order as to those appellants and render a dismissal in their favor. We affirm the trial court’s order denying the special appearances as to all other appellants.

BACKGROUND

Juan Roberto Brittingham-McLean, a resident of Mexico, died in Mexico on January 14, 1998. The two executors named in Mr. Brittingham’s will, Harold Turk and Raul Hernandez-Garcia, submitted the will for probate in Mexico on January 28, 1998. The executors then withdrew funds in the approximate amount of $27,000 deposited in a Laredo, Texas, bank account and distributed the funds to Mr. Brittingham’s children and grandchildren (hereinafter “the heirs”) pursuant to Mr. Brittingham’s instructions. Mr. Brittingham had also funded two foreign companies, Sandfern (an Irish company) and Jubrico (a British Virgin Islands company), but he owned no record interest in those companies at the time of his death. However, Turk and Hernandez, as sole shareholders of Sand-fern and Jubrico, distributed the assets held by those companies to the heirs in accordance with prior instructions from Mr. Brittingham. Apparently, by the end of March 1998, neither the estate nor the two foreign companies held any assets in Texas.

In March 1998, both Turk and Hernandez resigned as executors. After Turk and Hernandez made their distributions and resigned as executors, both appellee, John R. Brittingham Aguirre (“Aguirre”), and one of the appellants, Barbara Brit-tingham-Sada de Powers (“Barbara”), filed multi-million dollar claims against the estate in Mexico based on loans each allegedly made to Mr. Brittingham.

In February 1999, Mr. Brittingham’s widow, Ana Maria Brittingham (“Ana Maria”) sued Mr. Brittingham’s estate in Mexico, seeking to set aside her marital agreement with Mr. Brittingham and asserting a community property claim to assets of Mr. Brittingham’s estate. The Mexican court denied her claim. The Mexican probate proceeding is still pending.

In August 2000, Ana Maria filed an application for ancillary probate of Mr. Brit-tingham’s will in Webb County, Texas. The Texas probate court admitted the will to probate and issued ancillary letters testamentary naming Ana Maria as executrix and requiring her to file a bond. Thereafter, Ana Maria filed suit against her stepdaughter Maria Cristina Brittingham-Sada de Ayala (“Ayala”) and appellants, claiming, among other things, that they illegally withdrew $60-70,000,000 from the assets of the estate without first paying the legitimate debts of the estate. One such debt is a claim asserted by Aguirre. Aguirre intervened in the Texas probate action, tendering his claim against the estate for approximately $11,000,000 based on a 1994 loan he made to Mr. Britting-ham.

Ayala moved to dismiss the entire ancillary probate proceeding for lack of subject-matter jurisdiction and, in the alternative, to remove Ana Maria as executrix of the estate. The trial court denied both motions and confirmed Ana Maria as executrix. Ayala appealed, and this court held that the trial court had subject-matter jurisdiction, but reversed the trial court’s order appointing Ana Maria as executrix. See Ayala v. Brittingham, 131 S.W.3d 3, 8-10 (Tex.App.-San Antonio, July 2, 2003, pet. filed).

Several of the heirs filed special appearances, all of which were denied and are the subject of this appeal. Nine of the heirs filed notices of appeal, but three have since conceded personal jurisdiction. Therefore, this appeal concerns only the special appearances filed by the following heirs: Barbara, Guillermo Marroquin-Britting-ham, Mauricio Marroquin-Brittingham, Juan Carlos Lobeira-Brittingham, Daniela Lobeira-Brittingham, and Brandon Mil-mo-Brittingham.

WAIVER OF SPECIAL APPEARANCE

As an initial matter, we address appellees’ argument that Barbara waived her special appearance because she entered a general appearance at a January 16, 2001 hearing by seeking the trial court’s judgment on such matters as quashing service, requesting a continu-anee, and asking the court not to enter a default judgment.

At the conclusion of the January 16th hearing on Ayala’s motion to dismiss for lack of subject-matter jurisdiction, Ana Maria’s counsel stated he had one more matter for the court to consider: a default judgment against Barbara. Ana Maria’s counsel asserted Barbara had been served, but had not answered. The court said it would sign a judgment against Barbara. Ayala’s counsel, Mr. Zaffirini, stated it was his understanding that Barbara had not been served and that when she was served, she would file a special appearance. Mr. Zaffirini admitted he had not been retained to represent Barbara, but he asked to see the document that showed service upon her. When presented with a copy of service, Mr. Zaffirini argued it was void on its face. Mr. Zaffirini repeatedly stated Barbara would file a special appearance once she was served. He finally entered a “special appearance for her verbally.” Over Ana Maria’s objections and renewed requests that the court render the default judgment, Mr. Zaffirini continued to insist Barbara’s answer was subject to her special appearance. At the conclusion of the hearing, the trial court did not rule on the motion for default judgment. The next day, Mr. Zaffirini filed a written special appearance on Barbara’s behalf. In its subsequent findings of fact and conclusions of law, the court found that Barbara “entered a general appearance at the hearing on January 16, 2001, by affirmatively requesting the Court not to enter a default judgment against her before she filed any special appearance.”

A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court’s jurisdiction. See Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). If a defendant’s act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance. Id. The emphasis is on affirmative action that impliedly recognizes the court’s jurisdiction over the parties. Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex.App.-San Antonio 2004, pet. denied). Here, Mr. Zaffirini’s contention that Barbara had not been served, but that she would file an answer and special appearance if served, was not inconsistent with his contention that the court had no jurisdiction over Barbara. See id. at 9. Based on this record, we conclude Barbara did not waive her special appearance.

STANDARD OF REVIEW

A plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident defendant within the provisions of the Texas long-arm statute. BMC Software Belgium, N.V. v. Maryland, 83 S.W.3d 789, 793 (Tex.2002). On appeal, we review de novo the trial court’s determination to grant or deny a special appearance. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002); BMC Software, 83 S.W.3d at 794. Whether a court has personal jurisdiction over a defendant is a question of law. Coleman, 83 S.W.3d at 805-06; BMC Software, 83 S.W.3d at 794. However, to resolve the issue of jurisdiction, the trial court must frequently determine questions of fact. Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 794. If a trial court makes findings of fact and conclusions of law, we may review the fact findings for legal and factual sufficiency. BMC Software, 83 S.W.3d at 794. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. at 795. We reverse the ruling for factual insufficiency of the evidence only if the ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Unchallenged fact findings are binding on the appellate court. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). We review de novo the trial court’s legal conclusions based on the findings of fact to determine their correctness. BMC Software, 83 S.W.3d at 794. If we determine a conclusion of law is erroneous but the trial court nevertheless rendered a proper judgment, the erroneous conclusion does not require reversal. Id.

PERSONAL JURISDICTION

A Texas court may assert personal jurisdiction over a non-resident defendant only if the requirements of both the United States Constitution and the Texas long-arm statute are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (orig.proceeding). The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); BMC Software, 83 S.W.3d at 795. The Texas long-arm statute reaches as far as federal and state constitutional guarantees of due process allow. CSR, 925 S.W.2d at 594. Therefore, “the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations.” Id. The due process clause permits a state to exert personal jurisdiction over a non-resident defendant only if the defendant has some minimum, purposeful contacts with the state and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin, 968 S.W.2d at 326. Thus, even if a nonresident defendant has purposely established minimum contacts with the forum state, the exercise of jurisdiction must still be fair and reasonable. See Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex.1991). Because we conclude the issue of fair play and substantial justice is disposi-tive, we limit our discussion to only that prong of the due process analysis.

Under this prong, a defendant’s contacts must be evaluated in light of other factors to determine whether the assertion of personal jurisdiction comports with fair play and substantial justice. Guardian Royal Exch., 815 S.W.2d at 232. These factors include (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiffs interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several States in furthering fundamental substantive social policies. Id. “When the defendant is a resident of another nation, the court must also consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by a state court.” Id. at 228. The unique burdens placed upon a foreign defendant who must defend herself in a foreign legal system carries significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. Id. at 229.

“The state of Texas has an obvious interest in providing a forum for resolving disputes involving its citizens, particularly those disputes in which the defendant allegedly committed a tort in whole or in part in Texas.” D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.). However, the interests of Texas in adjudicating this dispute are minimal. Ana Maria is a citizen and resident of Mexico and she has participated in the Mexican probate proceeding. Aguirre was a resident of Florida at the time he intervened, and now resides in California. Aguirre has entered an appearance in the Mexican probate court by filing a claim on his note in that proceeding. The note upon which Aguirre sues was executed in Mexico. In her original petition, Ana Maria admits all appellants are citizens of Mexico. All appellants, except Barbara, reside in Mexico. Barbara resides in Mexico and occasionally resides in Dallas, Texas and California, but she has participated in the Mexican probate proceeding. All meetings between appellants and Hernandez regarding the transfer of funds occurred in Hernandez’s office in Monterey, Mexico; all faxes regarding the transfers were received at his Monterey office; and all instructions regarding the transfers were given and received in Mexico.

In her petition, Ana Maria alleges the wrongful transfer of funds violates not only Texas probate law, but Mexican probate law as well. Although Texas has a substantial interest in adjudicating probate disputes, including property held in Texas, here, no estate assets, with the exception of the underlying tort action for the wrongful transfer of funds, are in Texas. Although Aguirre has filed a claim on his note in the Texas probate proceeding, the Mexican probate court has already assigned the note a value and priority. A successor executor of the estate has been appointed in the still-pending Mexican probate proceeding. Finally, there is no evidence the Mexican court lacks jurisdiction to resolve the claims presented by the appellees. Under the facts and circumstances of this case, we conclude that the exercise of personal jurisdiction over the appellants is unreasonable and does not comport with fair play and substantial justice.

CONCLUSION

We hold it is inconsistent with federal constitutional requirements of due process for Texas courts to assert in personam jurisdiction over the appellants in this cause. Accordingly, we reverse the trial court’s judgment as to Barbara Britting-ham-Sada de Powers, Guillermo Marro-quin-Brittingham, Mauricio Marroquin-Brittingham, Juan Carlos Lobeira-Brit-tingham, Daniela Lobeira-Brittingham, and Brandon Milmo-Brittingham; and render a dismissal in their favor. We affirm the trial court’s judgment as to Angel Eduardo Marroquin-Brittingham, Maria Cristina Lobeira-Brittingham, and Daniel Milmo-Brittingham.

      . The three are: Angel Eduardo Marroquin-Brittingham, Maria Cristina Lobeira-Britting-ham, and Daniel Milmo-Brittingham.

      . Because this dispute is not between coequal sovereigns in our federal system, "we need not consider the interstate judicial system's interest in obtaining the most efficient resolution of controversies or the shared interest of the several states in furthering fundamental substantive social policies.” Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 232 n. 17 (Tex.1991).


author: DIXON W. HOLMAN, Justice.

text:
    Janet Kay AHMAD, Appellant, v. The STATE of Texas.
    No. 2-04-476-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 24, 2004.
    Rehearing Overruled Feb. 3, 2005.

      David Richards, Fort Worth, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Assistant Criminal District Attorney, Fort Worth, for the State.
    PANEL D: HOLMAN, GARDNER, and WALKER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Janet Kay Ahmad seeks to appeal the denial of her motion to set aside the indictment on limitations grounds. We dismiss the appeal for want of jurisdiction.

Appellant filed a motion in the trial court seeking to set aside the indictment, contending that prosecution of the conduct alleged is barred by the statute of limitations. The trial court denied the motion, and Appellant filed a notice of appeal.

The right to appeal in a criminal case is a substantive right solely within the province of the Legislature. Lyon v. State, 872 S.W.2d 732, 734 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Fry v. State, 112 S.W.3d 611, 612 (Tex.App.-Fort Worth 2003, pet. ref'd) (en banc). “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.” Tex.Code Crim. Proc. Ann. art. 44.02 (Vernon 1979). Generally, a criminal defendant may only appeal from a final judgment. See State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex.Crim.App.1990); Fry, 112 S.W.3d at 612-13; Hilburn v. State, 946 S.W.2d 885, 886 (Tex.App.-Fort Worth 1997, no pet.). “The courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law.” Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App.1991); see Bridle v. State, 16 S.W.3d 906, 907-08 (Tex.App.-Fort Worth 2000, no pet.).

We notified Appellant of our concern that we do not have jurisdiction to review the interlocutory order in this case absent a final judgment of conviction. Appellant responded that interlocutory appellate relief is available to a defendant seeking to set aside an indictment on limitations grounds where the face of the pleading indicates the charged offense is barred by limitations. In support of her contention, Appellant cites Ex parte Tamez, 38 S.W.3d 159, 160-61 (Tex.Crim.App.2001) and Ex parte Smith, 135 S.W.3d 884, 890 (Tex.App.-Fort Worth 2004, pet. granted on other grounds) (both holding pretrial writ of habeas corpus is proper procedural vehicle to raise contention that prosecution is barred by limitations, and denial is appeal-able).

We conclude that neither Tamez nor Smith is applicable to the jurisdiction issue before us because both of those cases were appeals from trial court orders that denied habeas corpus relief. Such appeals are expressly permitted. See Tex.R.App. P. 31; Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex.Crim.App.1991) (holding appellate court has jurisdiction over appeal from denial of pretrial habeas corpus relief following trial court’s consideration of merits of writ application). Appellant in the case at bar did not file a pretrial application for writ of habeas corpus; she filed a pretrial motion to set aside the indictment.

We conclude that the order Appellant is appealing is not a final judgment and is not a permissible interlocutory appeal. Accordingly, we dismiss this appeal for want of jurisdiction.


author: PHYLIS J. SPEEDLIN, Justice. ALMA L. LÓPEZ, Chief Justice

text:
    In the Matter of J.N.L.
    No. 04-04-00539-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 8, 2004.

      James Riekerson, Law Office of James A. Riekerson, Jeffery D. Waren, Law Office of Jeffery D. Waren, San Antonio, for appellant.
    Eric R. Turton, Law Office of Eric R. Turton, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice CATHERINE STONE, Justice PAUL W. GREEN, Justice SARAH B. DUNCAN, Justice KAREN ANGELINI, Justice SANDEE BRYAN MARION, Justice PHYLIS J. SPEEDLIN, Justice.
   Opinion on Abatement ORDER

PHYLIS J. SPEEDLIN, Justice.

Appellant, Debra Lopez Liva, perfected her appeal from a judgment signed by the trial court on April 14, 2004, by filing her notice of appeal and a “pro bono pauper’s oath” with the trial court clerk. The issue we must decide is whether a court reporter may file a contest to an affidavit of indigence outside the ten-day period set forth in Texas Rule of Appellate Procedure 20.1(e) when the record suggests the court reporter was not served with notice of the affidavit by the “trial court clerk” as required by Rule 20.1(d)(1). See Tex.R.App. P. 20.1(e), (d)(1) (“[i]f the affidavit of indigence is filed with the trial court clerk ..., the clerk must promptly send a copy of the affidavit to the appropriate court reporter”).

Background

The procedural history of this appeal is important to the issue we must decide. The underlying suit involves a petition to enforce child support. The trial court signed a judgment on April 14, 2004, and appellant, Liva, filed a motion for new trial. Liva timely filed her notice of appeal from the judgment and a “pro bono pauper’s oath” with the district clerk on May 20, 2004. See Tex.R.App. P. 20.1(c)(1) (“[a]n appellant must file the affidavit of indigence in the trial court with or before the notice of appeal”). Under Rule 20.1(e), the clerk, court reporter or any party may challenge the claim of indigence by filing a contest in the trial court within ten days after the date the affidavit of indigence was filed in the trial court. Tex.R.App. P. 20.1(e). The ten-day period in which to file a contest to appellant’s claim of indigence therefore began running on May 20 and expired on May 30, 2004. See Tex.R.App. P. 20.1(e). No contest was filed.

Liva, through her attorney, requested the reporter’s record in a letter to the court reporter dated June 28, 2004. This was well after the expiration of the ten-day period to challenge the claim of indigence, but within the time for perfecting her appeal. See Tex.R.App. P. 34.6(b)(1). Under Rule 34.6(b)(2), Liva was required to file a copy of her written request for the reporter’s record with the trial court clerk, but failed to do so. See Tex.R.App. P. 34.6(b)(2). The clerk’s record was filed in this court on July 27, 2004. The reporter’s record was due on August 12, 2004, but was not filed. On September 2, 2004, we issued an order stating that the clerk’s record contains an uncontested pauper’s oath and that neither the reporter’s record nor a notice of late record had been filed. Accordingly, we ordered the court reporter to file the reporter’s record without prepayment of costs by September 17, 2004. On September 7, 2004, the court reporter filed a letter responding that she never received a copy of the pauper’s oath filed by Liva, and the court’s order was her first notice that Liva was entitled to a reporter’s record without prepayment of costs.

Analysis

Under the current Texas Rules of Appellate Procedure, it is the duty of the trial court clerk to promptly send a copy of the affidavit of indigence to the court reporter so that the reporter has notice and an opportunity to contest the claim of indigence. See Tex.R.App. P. 20.1(d)(1). In fact, the 1997 amendments to the rules specifically shifted the duty to give the court reporter notice from the appellant to the trial court clerk. See Ford v. Whitehead, 2 S.W.3d 304, 305-06 (Tex.App.-San Antonio 1999, no pet.). This court has previously held that if no contest is filed within the ten-day period prescribed by the current Rule 20.1, the allegations in the affidavit of indigence are “deemed true,” and the party is allowed to proceed on appeal without advance payment of costs. Knowles v. Mack, No. 04-04-00422-CV, 2004 WL 1835966, at *1 (Tex.App.-San Antonio Aug.18, 2004, no pet. h.); see In re G.C., 22 S.W.3d 932, 933 (Tex.2000); see also Tex.R.App. P. 20.1(f).

The notice requirement in Rule 20.1(d)(1) is intended to allow the court reporter the opportunity to file a timely written contest to an appellant’s claim of indigence. In the Matter of C.M.G., 883 S.W.2d 411, 413 (Tex.App.-Austin 1994, no writ) (applying former Texas Rule of Appellate Procedure 40, predecessor to the current Rule 20.1). The court reporter’s only interest in filing a contest is monetary. Id. at 414. Here, it appears from the record that the trial court clerk failed to forward a copy of Liva’s pauper’s oath to the court reporter as required by Rule 20.1(d)(1). There is nothing in the record that suggests the court reporter was served with notice of the pauper’s oath, or otherwise acquired actual notice of the filing of the pauper’s oath. Liva’s June 28, 2004 letter to the court reporter requesting the record does not mention that she previously filed a pauper’s oath or that she is seeking a free reporter’s record. Based on the record before us, it therefore appears that, through no fault of her own, the court reporter was deprived of the opportunity to file a contest to Liva’s claim of indigence, and may sustain a monetary injury by having to provide a reporter’s record without prepayment of the costs associated with preparing the record. C.f., id. at 414 (court reporter had no monetary interest in fifing contest where order had been signed charging cost of transcript to the Travis County general fund).

This case is factually distinguishable from those cases in which a court reporter filed an untimely contest, or the trial court failed to timely sign the order on a contest. See, e.g., Knowles, 2004 WL 1835966 at *1 (court reporter filed untimely contest); In re B.A.C., 4 S.W.3d 322, 324 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d) (same); In re G.C., 22 S.W.3d at 933 (affidavit of indigence deemed true where trial court failed to sign order sustaining contest within ten-day period); Muecke v. Woodley, No. 04-03-00347-CV, 2003 WL 22295378, at *1 (Tex.App.-San Antonio Oct.8, 2003, no pet.) (same). Moreover, this case does not appear to be a situation where notice to the court reporter was given, but received late. See In re Jones, 966 S.W.2d 492, 498 (Tex.1998) (orig.proceeding) (holding appellant’s attempt to hand-deliver copy of affidavit of indigence to court reporter, and leaving the copy with clerk under bailiffs instructions, was sufficient notice under former Rule 40). Here, the record does not show that the trial court clerk made any attempt to notify the court reporter of Liva’s claim of indigence. Accordingly, the court reporter did not merely fail to file a timely contest; rather, she was deprived of notice and of any opportunity to file a timely contest.

Because the unique facts of this case suggest the court reporter was deprived of notice and an opportunity to file a contest to Liva’s claim of indigence, we believe good cause exists to suspend the time period for filing a contest set forth in Rule 20.1(e). See Tex.R.App. P. 2 (“[o]n a party’s motion or on its own initiative an appellate court may — to expedite a decision or for other good cause — suspend a rule’s operation in a particular case and order a different procedure ... ”); see, e.g., Wells v. Breton Mill Apartments, 85 S.W.3d 823, 824 (Tex.App.-Amarillo 2001, no pet.) (suspending time period for filing affidavit of indigence under Rule 20.1(c)(1) where pro se appellant was innocently misled by trial court clerk into believing affidavit filed in trial court requesting leave to appear as indigent would establish indigen-cy for appellate purposes). Accordingly, we abate this appeal to the trial court for a hearing on whether the trial court clerk in fact sent a copy of the pauper’s oath to the court reporter as required by Rule 20.1(d)(1), or whether the court reporter otherwise had actual notice of the pauper’s oath. If the trial court determines that the court reporter was not served with a copy of the pauper’s oath, and did not otherwise acquire actual knowledge of the filing, the court reporter shall be permitted to file an out-of-time contest to Liva’s claim of indigence in accordance with the time limits and procedure set forth in Rule 20.1(e). Tex.R.App. P. 20.1(e). If a contest is timely filed, the trial court shall determine the merits of the contest pursuant to Rule 20.1(1). Tex.R.App. P. 20.1(1).

While we understand the 1997 amendment to the Texas Rules of Appellate Procedure placed an additional duty on already busy trial court clerks, we urge all trial court clerks to institute a procedure to ensure that copies of affidavits of indigence are “promptly” sent to the appropriate court reporters so that the court reporters may receive the notice contemplated by the rule. See Tex.R.App. P. 20.1(e).

Dissenting opinion by: ALMA L. LÓPEZ, Chief Justice, joined by CATHERINE STONE, Justice.

ALMA L. LÓPEZ, Chief Justice

dissenting, joined by CATHERINE STONE, Justice.

While I applaud the majority’s effort to assist the court reporter in this case, and am sympathetic that the court reporter may have to produce a record without pay due to a possible omission by a third party, I do not believe Rule 2 should be applied in this circumstance to enlarge the time limit for filing a contest to an affidavit of indigence. If this appeal involved a criminal matter, I would be even more emphatic because the Texas Court of Criminal Appeals has cautioned:

[W]e think it is clear that using Rule 2(b) to “suspend” or enlarge appellate time limits which regulate the orderly and timely process of moving a case from trial to finality of conviction is overstepping the contemplated uses of Rule 2(b).... Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants.

Oldham v. State, 977 S.W.2d 354, 359-60 (Tex.Crim.App.1998). As that court noted in an earlier case, “rule 2(b) does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court.” State v. Garza, 931 S.W.2d 560, 563 (Tex.Crim.App.1996). Because Old-ham and Garza are decisions in criminal appeals and because the Texas Supreme Court has been more liberal than the Texas Court of Criminal Appeals in its application of the appellate rules, I am comfortable that we can disregard the problematic language in those decisions. Compare Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997) with Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).

In the civil context, however, appellate courts have similarly been unwilling to apply Rule 2 to expand either the trial court’s jurisdiction or the appellate court’s jurisdiction. See Kacal v. Cohen, 13 S.W.3d 900, 901-02 (Tex.App.-Waco 2000, no pet.); Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 336-37 (Tex.App.-Corpus Christi 1997, pet. denied). Although a few appellate courts have been willing to invoke Rule 2 to permit a late filed affidavit of indigence to ensure that an appellant was provided a record on appeal, not all of the judges on one of those courts were in agreement. See Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2003 WL 1759587 (Tex.App.-El Paso Apr.3, 2003, no pet.) (not designated for publication); Wells v. Breton Mill Apts., 85 S.W.3d 823, 824 (Tex.App.-Amarillo 2001, no pet.); see also Gonzalez, 2003 WL 1759587, at *5-6 (McClure, J., dissenting). Moreover, applying Rule 2 to ensure that the merits of an appeal are decided with a complete record is vastly different than applying Rule 2 to ensure that a court reporter has the ability to contest an affidavit in an effort to be paid. While in the former context, the application of Rule 2 arguably protects the substantive rights of the appellant by ensuring that the appellate court has a sufficient record to review the merits of the appeal, applying Rule 2 in the latter context only serves the financial motive of a non-party. Although the Texas Supreme Court has instructed us to construe the Rules of Appellate Procedure reasonably, yet liberally, this instruction was in furtherance of the policy of disposing of appeals on their merits. See Verburgt, 959 S.W.2d at 616-17.

Applying Rule 2 in this case does not expedite our decision, and I disagree that “good cause” has been shown for suspending Rule 20 in these circumstances. The Texas Supreme Court established time limits in Rule 20 for a reason, and I do not believe Rule 2 should be invoked to suspend its operation in this appeal. Accordingly, I respectfully dissent.

      . Rule 20.1(d) specifically references the “trial court clerk,” which is not defined. Tex.R.App. P. 20.1(d). In Bexar County, all civil district court pleadings, pleas, motions and applications to the court for orders are filed with the centralized office of the district clerk. Therefore, as used in this opinion, the term "trial court clerk” means the Bexar County district clerk’s office.

      . Because May 30, 2004, was a Sunday, and May 31, 2004, was a legal holiday, the deadline for filing a contest to appellant's claim of indigence was the next working day, June 1, 2004. See Tex.R.App. P. 4.1(a).

      .The failure to file the request for the reporter’s record with the trial court clerk does not deprive appellant of the reporter’s record, but may explain why the clerk did not send a copy of the pauper’s oath to the court reporter. See Tex.R.App. P. 34.6(b)(3).


author: PAUL W. GREEN, Justice.

text:
    Fernando FERNANDEZ and wife, Deborah M. Fernandez, AEE Construction, LLC, and Alamo Farmsteads-Babcock Road Neighborhood Association, Inc., Appellants, v. CITY OF SAN ANTONIO, San Antonio Planning Commission, William D. Jackson, and Kitchener Land Development, Lt., Appellees.
    No. 04-03-00512-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 29, 2004.
    Richard J. Karam, Law Office of Richard J. Karam, San Antonio, for appellants.
    Barbara L. Quirk, William M. McKamie, Law Office of William M. McKamie, P.C., Emerson Banack, Jr., Gayla Corley, Langley & Banack, San Antonio, for appellees.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

PAUL W. GREEN, Justice.

This appeal highlights the conflict between the desire of landowners to preserve the pastoral quality of a suburban neighborhood and the press of modern development. Appellants, the neighborhood association and several landowners within the Alamo Farmsteads neighborhood of San Antonio, brought suit against several developers and the City of San Antonio, seeking to enjoin certain development within the Alamo Farmsteads neighborhood. Alternatively, appellants sought monetary damages for the decrease in property values they alleged would result from the planned development within their neighborhood. At issue was the number of houses planned per acre, and whether the planned development violated the terms of the Alamo Farmsteads Neighborhood Plan developed by the neighborhood residents and recognized by the City of San Antonio in 1994. The City and the developers sought summary judgment on numerous grounds. The landowners also sought summary judgment. After several hearings, an intervening appeal to this coui’t, and a mandamus proceeding, five summary judgments were entered, ultimately resulting in a final judgment in favor of the City and the developers. On appeal the landowners challenge the summary judgments on numerous grounds. We affirm the summary judgments in this memorandum opinion pursuant to Tex.R.App. P. 47.4.

1. Motion to Dismiss

Initially we address the joint motion to dismiss this appeal filed by the City and the developers. The motion alleges the matter is moot because all lots at issue in this case have been sold, homes have been built on the lots, and the homes have been sold to homeowners who now occupy the homes. Accordingly, the City and the developers contend the relief requested by appellants “can have no practical effect on the outcome of this case” and the appeal should therefore be dismissed as moot. We agree the injunctive relief requested by appellants, which would have ultimately precluded the density of development that occurred, is now moot. However, the landowners also sought damages for the “diminution of their property values” caused by the development of the land in question. This claim for damages was not rendered moot by the actual development of the land. We therefore deny the joint motion to dismiss the appeal.

2. The Alamo Farmsteads Neighborhood Plan

In the 1980s the residents of Alamo Farmsteads, in conjunction with the City of San Antonio Planning Department, conferred to develop a plan for the development of their neighborhood. The result was the Alamo Farmsteads Neighborhood Plan, which expressed the desire of the neighborhood residents to maintain a ratio of one to four houses per acre. The Plan was self-described as providing “guidelines for the preservation of the quality of life and the harmonious growth” of the neighborhood. Additionally, the Plan made “the neighborhood’s desires available in writing to City decision makers who decide on policies and/or actions that could affect the neighborhood’s future.”

By resolution dated December 22, 1994, the City of San Antonio recognized the Neighborhood Plan as an addendum to the neighborhood planning component of the City’s Master Plan. In 1998, a second resolution was passed by the City continuing recognition of all neighborhood plans until “expressly repealed.” Appellants contend the Neighborhood Plan remains in effect and is binding on the City because it has never been “expressly repealed.” We do not agree that the Neighborhood Plan is still in effect. The Neighborhood Plan specified that it was of limited duration:

After recognition by the Planning Commission and the City Council of the City of San Antonio, the Plan becomes an addendum to the Neighborhood Planning Process of the Master Plan. The Plan remains in effect for a period of no more than five years.

Clearly the Plan was intended to remain in effect for a maximum of five years. The 1998 resolution continuing recognition of the Plan by the City until “expressly repealed” could not breath life into the Plan beyond the time period specified in the Plan itself. There is no indication in the Plan or anywhere else in the record that residents of the Alamo Farmsteads neighborhood or the members of the Alamo Farmsteads Neighborhood Planning Team who drafted the Plan ever intended to grant the City the right to alter the terms of the Plan. By -its own terms the Plan expired on December 22, 1999, five years after it was first recognized by the San Antonio City Council. Accordingly, the Neighborhood Plan was not in effect in 2001 when the City approved the replat of the property in question, thereby allowing the property to be more densely developed than contemplated by the Neighborhood Plan. The trial court’s summary judgment in favor of the City and the developers can be sustained on this ground alone. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995) (If the trial court grants a motion for summary judgment without stating the grounds on which it relied, an appellate court must affirm the summary judgment if any ground argued in the motion was sufficient.).

3. The Advisory Nature of the Neighborhood Plan

The summary judgment in favor of the City and the developers is further supported on the ground that the Neighborhood Plan, regardless of its expiration date, was merely advisory and not binding on the City. The Plan is self-described as providing “guidelines” to the City designed to preserve the quality of life within the neighborhood. Pertinent to the specific issue at hand — density of housing development — the Plan seeks to “encouragfe] additional low-density residential development on vacant or under-utilized land.” To facilitate this goal, “the neighborhood will ask the San Antonio Zoning Commission to create two new low-density residential zoning districts” within the neighborhood. Finally, the Plan is intended to make “the neighborhood’s desires concerning its atmosphere and suggestions for retention of that atmosphere known to City decision makers who decide on policies and actions that could affect its future _”

From the language employed in the Plan it is evident that the Plan is merely advisory. Indeed, as the City argues, even the City’s Master Plan, of which the Neighborhood Plan was a component, is merely a guide for rezoning requests rather than a mandatory restriction on the City’s authority to regulate land use. To allow the residents of the Alamo Farmsteads neighborhood to impose its desires on the City’s authority to regulate land use raises issues about the propriety of such a delegation of the City’s legislative power to private entities. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 469 (Tex.1997) (acknowledging the constitutional issues presented by private delegation of public powers). The trial court properly entered judgment in favor of the City and the developers based on the purely advisory nature of the Plan.

Because the City and the developers proved their entitlement to summary judgment as a matter of law, the summary judgments entered by the trial court are in all things affirmed.

      . The summary judgments granted in favor of the City and the developers were signed on May 7, 2002; May 9, 2002; May 12, 2003; and June 12, 2003. The order denying the landowners’ requested summary judgment was signed on June 12, 2003. The Honorable Karen Pozza, presiding judge of the 407th Judicial District Court signed the 2002 judgments. The 2003 judgments were signed by the Honorable John D. Gabriel, Jr., presiding judge of the 131st Judicial District Court.


author: ALMA L. LÓPEZ, Chief Justice.

text:
    METRA UNITED ESCALANTE, L.P., et al., Appellants, v. The LYND COMPANY, Appellee.
    No. 04-04-00540-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 29, 2004.

      Lamont A. Jefferson, Ben L. Meches, Lisa S. Barkley, Haynes and Boone, L.L.P., Thomas D. Bracey, Law Office of Thomas D. Bracey, San Antonio, for appellants.
    Rochel J. Lemler-Clark, Lemler & Associates, P.C., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

This is an accelerated appeal of a temporary injunction order. The issues presented on appeal are: (1) whether the trial court abused its discretion in granting the temporary injunction; (2) whether the temporary injunction violates Rule 683 of the Texas Rules of Civil Procedure; and (3) whether the compliance provisions of the temporary injunction are imprecise. We conclude that the injunction order is overly broad. Accordingly, we reverse the order and remand the cause to the trial court with instructions to enter a modified order consistent with this opinion.

Background

Metra United Escalante, LP, Metra United Ashley Oaks, LP, Metra United Audubon, LP, Metra United Cimarron, LP, Metra United Grand Cypress, LP, Metra United Kenton, LP, Metra United Peppermill, LP, Metra United Promontory, LP, Metra United Canyon, LP, and Metra United Bluffs, LP are Delaware limited partnerships that each own an apartment complex in San Antonio, Texas. Around December of 2002, each of the Metra limited partnerships entered into a management agreement with The Lynd Company. Each of the management agreements except those relating to Esca-lante and Promontory contain a mandatory arbitration clause.

In December of 2003, the Metra limited partnerships terminated Lynd’s management agreements without the requisite notice. Lynd was owed certain fees and expenses as a result of the termination which were not paid.

In March of 2004, Escalante sold its apartment complex. The proceeds from the sale were deposited into an intercom-pany account controlled by Metra United Holding LLC. Within days, the proceeds from the sale were distributed to Esca-lante’s equity holders with the exception of approximately $500,000, which remained in an intercompany account. Other than the intercompany account receivable, Esca-lante’s only asset was an operating account that did not contain a balance sufficient to pay the liability owed to Lynd arising from the termination of the management agreement.

On March 25, 2004, Lynd filed an application for temporary restraining order and temporary injunction. A temporary restraining order was entered, and the case was removed to federal court where the temporary restraining order was extended. After the case was remanded to the trial court, the trial court held a two-day hearing on Lynd’s request for a temporary injunction. At the conclusion of the hearing, the trial court entered a temporary injunction. After a hearing on Metra’s request to dissolve the temporary injunction, the trial court entered an amended order.

Standard op Review

In an interlocutory appeal from a temporary injunction, we do not review the merits of the applicant’s case. See Davis v. Huey, 571 S.W.2d 859, 861 (Tex.1978); Menna v. Romero, 48 S.W.3d 247, 252 (Tex.App.-San Antonio 2001, pet. dism’d w.o.j.). Rather, we limit our review to whether there has been a clear abuse of discretion. Davis, 571 S.W.2d at 861; Menna, 48 S.W.3d at 252. We may not substitute our judgment for that of the trial court’s; we merely determine whether the court’s action was so arbitrary as to exceed the bounds of reasonable discretion. Davis, 571 S.W.2d at 861; Menna, 48 S.W.3d at 252. An abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence. Davis, 571 S.W.2d at 861.

Effect of ARbitration

In the &st issue presented on appeal, Metra contends the trial court abused its discretion in entering the temporary injunction contrary to the Federal Arbitration Act (“FAA”) and the public policy favoring arbitration. Metra asserts that Texas courts have held that trial courts have no authority to enter a temporary injunction when the case is properly subject to arbitration under the FAA. Lynd responds by asserting: (1) Metra waived any complaint under the FAA by failing to raise the complaint before the trial court and by contending that New York law was applicable; (2) Texas law permits a trial court to grant a temporary injunction in aid of arbitration; (3) even if preserved, the FAA does not preclude injunctive relief under the majority view; and (4) in-junctive relief is proper under the FAA because the arbitration clause in the management agreements contain a no-encumbrance provision.

Lynd initially contends that Metra waived or is estopped from asserting its complaint under the FAA. Lynd correctly notes that Metra’s arguments during the healings preceding the injunction order addressed the application of New York law and the propriety of arbitrating in New York under the choice of law provisions contained in the management agreements. However, Metra presented its argument that the FAA applied and the injunction invaded the province of the arbitrator at the hearing on its motion to dissolve held October 12, 2004. Accordingly, we reject Lynd’s waiver and estoppel arguments.

Other than asserting waiver and estop-pel, Lynd does not assert any reason the FAA should not apply to the transaction between the parties. The management agreements are between Delaware limited partnerships and a Texas corporation. Money collected by the Texas corporation is deposited into a bank account and subject to withdrawal by the Delaware limited partnerships at any time. See Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 883 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (noting FAA extends to any contract affecting commerce as far as the Commerce Clause of the United States Constitution will reach). Accordingly, we conclude that the FAA is applicable to the transaction. The question then becomes whether the FAA precludes the granting of injunctive relief.

In RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227, 228 (5th Cir.1988), the Fifth Circuit considered whether the FAA bars the issuance of a preliminary injunction pending arbitration. The Fifth Circuit noted that the other federal circuits were split on the issue. Id. The Fifth Circuit concluded that its resolution of the differences between the two views was unnecessary because the circuits opposing injunctive relief left open the possibility of granting injunctive relief where the parties had contemplated its use beforehand. Id. at 230. The Fifth Circuit noted that the agreement in question in RGI contained a provision requiring the agreement to continue in full force and effect until an arbitration decision was reached. Id. The Fifth Circuit reasoned that the bargained-for provision clearly contemplated that the status quo would continue pending arbitration and injunctive relief was appropriate to prevent one of the parties from terminating the contract. Id.

In Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp., the Houston court noted that the federal courts in Texas generally agree that the issuance of a preliminary injunction is not appropriate when the underlying claims are subject to arbitration under the FAA. Id. at 885. The Houston court acknowledged the ex-eeption to this general rule created in RGI but concluded that the agreement before it contained no express language demonstrating that the parties contemplated court intervention to maintain the status quo. Id. at 885-87. The Houston court further reasoned, “And, we agree with Feldman that the relief Settlement Capital seeks is not to maintain the status quo provided in the legal services agreement, but to temporarily enjoin Feldman from conducting business.” Id. at 887.

In this case, the arbitration clause in the management agreements contains the following provision:

(g) Manager to Continue Performance. It is hereby agreed that any differences of opinion between the parties, whether brought before the said Arbitrator or not, shall not constitute cause to the Manager to delay or cease the services or any of its obligations under this Agreement. In addition, it is hereby agreed that in any case, the process of arbitration under this Agreement, shall not delay the performance of any other work in connection with the Project, and the Arbitrator is not authorized to give any decision which may hinder the effective management and operation of the Project.

While this contractual provision would arguably provide a basis for Metra to insist on performance by Lynd pending arbitration of a dispute, it ceased to be applicable when the management agreements were terminated and three months lapsed before Lynd sought any relief. Because the management agreements contain no express language demonstrating that the parties contemplated court intervention to maintain the status quo, the exception to the general rule created in RGI is not applicable. Feldman/Matz, 140 S.W.3d at 885-87. We therefore follow the general rule applied by federal courts in Texas and conclude that the issuance of a preliminary injunction is not appropriate when the underlying claims are subject to arbitration under the FAA. Id. at 885. As a result, the temporary injunction is overly broad in its application to the eight limited partnerships whose management agreements contained mandatory arbitration provisions, and the trial court is instructed to modify the injunction order to eliminate the enjoining of sales of the apartment complexes owned by those eight limited partnerships. Because the FAA is not applicable to Escalante and Promontory, we separately address Metra’s remaining issues only as to those two limited partnerships.

Texas Uniform Fraudulent Transfer Act

In their second issue, Metra contends that the trial court erred in granting in-junctive relief under the Texas Uniform Fraudulent Transfer Act (“TUFTA”). In support of this contention, Metra asserts: (1) the temporary injunction’s fraudulent transfer findings do not satisfy Rule 683; (2) the trial court improperly placed the burden of proof on Metra; and (3) no evidence supports any finding of a fraudulent transfer.

1. Rule 683

Metra contends that the temporary injunction’s fraudulent-transfer findings do not satisfy Rule 683 because the injunction fails to state how Metra violated TUFTA. Metra asserts that the injunction was required to explain why payments to investors were fraudulent and identify the section of TUFTA that Metra violated. Lynd responds that the injunction satisfies Rule 683’s requirements.

Rule 683 of the Texas Rules of Civil Procedure provides that an order granting an injunction “shall set forth the reasons for its issuance [and]; shall be specific in terms.” Tex.R. Civ. P. 683. The rule requires that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons the court believes the applicant’s probable right will be endangered if the writ does not issue. Zuniga v. Wooster Ladder Co., 119 S.W.3d 856, 864 (Tex.App.-San Antonio 2003, no pet.). If the trial court’s order for a temporary injunction does not state reasons why injury will be suffered if the interlocutory relief is not ordered, the order is void and must be dissolved. Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex.App.-Houston [1st Dist.] 1991, no pet.).

In this case, the trial court’s order generally states that injunctive relief is warranted to prevent immediate and irreparable injury, loss, and damage if Metra were permitted unfettered control of their assets. The order then states:

Specifically, this Court finds that [Me-tra’s] prior transfer of assets from the sale of the Escalante Apartments to Israel, beyond the jurisdictional reach of [this] Court, and to its insiders and investors, along with [Metra’s] admission that it intends to continue to make further transfers, mandate extraordinary relief including the entry of this Temporary Injunction. Absent the entry of this Temporary Injunction Order, [Me-tra’s] propensity for improperly [sic] transfer of assets in violation of the Texas Fraudulent Transfers Act, will most likely deprive Plaintiff of the ability to recover its losses and satisfy a judgment.

We conclude the order’s findings are sufficiently specific.

2. Burden of Proof

Metra contends that the trial court improperly imposed the burden of proof on Metra rather than on Lynd. Metra quotes the trial court as stating, “I think the burden is on you to demonstrate that Me-tra United Escalante, LP of Delaware Limited Partnership has any assets.” The record does not support Metra’s contention.

After the trial court was provided with an overall view of the issue, the trial court stated its belief that the most important issue for the hearing was whether or not the transfers would render the owners under the contracts insolvent. In response, Lynd’s attorney stated that she had enough deposition testimony to support a summary judgment on that issue. Lynd’s attorney then provided the trial court with deposition excerpts from Robert Bracing-ton’s deposition. Bracington was the financial manager of the Metra holding company. The trial court read the excerpts and commented that it appeared that after the property was sold, the proceeds were distributed to the investors, and the owner no longer had any assets. Metra’s attorney responded that the owner had $400,000 on deposit and an operating account. The court then re-read the depositions excerpt, in which Bracington responded as follows:

“Regardless, Metra had 28 million, and they were dead broke on March 3rd, correct?”
“ANSWER: No, they still had an equity, 5 million.
‘Where was that money? Where was the money?”
“They didn’t receive it. It was returned to the investors as a return of their equity. So that’s gone.”
“What did Metra United Escalante, L.P. own or have title to March 3rd?”
“Nothing.”

After reading the excerpt, the trial court commented that the witness seemed to “say pretty clearly that the owner has zip after they distributed the proceeds from the sale.” Metra’s attorney stated that he had the right to call Bracington as a witness and that Bracington intended his answer to mean that Escalante had no income-producing asset remaining but did have cash. After additional discussion regarding possible accounts, the following exchange occurred:

MR. BRACEY [Metra’s attorney]: I was just about to say that I think Mr. Bracington, who’s here to testify, understood the lack of asset question, in the sense of an accountant understands an asset; in this venture, means real property or personal property. And all that was conveyed on March 1st to the new owner. And we made a profit, a significant profit. We purchased these properties—
THE COURT: Okay. I think the burden is on you to demonstrate that Metra United Escalante, L.P. of Delaware Limited Partnership has any assets.
MR. BRACEY: Yes, Your Honor.
THE COURT: Because I have just read Bracington’s deposition to say to the contrary. So you can call Bracington or what other evidence you wish to call on that issue.
MR. BRACEY: We will be glad to, Your Honor. Yes, Your Honor.
THE COURT: Okay. It’s your turn, Mr. Bracey. I’m prepared to rule that they have no assets in the United States or elsewhere, based upon the transcript of Bracington’s deposition that I’ve read. And if you wish to contest that with his or other testimony, I’d like to go forward and do that.

This exchange between Metra’s attorney and the trial court did not improperly place the burden of proof on Metra. The trial court had the deposition testimony of the Metra holding company’s chief financial officer, who stated that Escalante had no assets after the sale on March 3rd. The trial court’s statement merely acknowledged that the deposition excerpt established that Escalante was insolvent as a matter of law, and unless Metra had some evidence to reasonably explain the statements made during the deposition, Lynd would prevail in proving the insolvency issue. Cf. Cantu v. Peacher, 53 S.W.3d 5, 10-11 (Tex.App.-San Antonio 2001, pet. denied) (analyzing need for affidavit in summary judgment context to explain differences between affidavit and earlier deposition or affidavit would be disregarded and deposition would support summary judgment).

3. Evidence of Fraudulent Transfer

Metra contends that no evidence supports the trial court’s fraudulent transfer findings because there was no evidence that the Escalante sale was made with the intent of depriving Lynd of the ability to recover its losses or satisfy its judgment. In addition, Metra contends that no evidence supports a finding that the transfer was for less than reasonably equivalent value or that the transfer made Escalante insolvent.

With regard to intent, section 24.006(a) defines a fraudulent transfer as to a present creditor as including a transfer made: (1) without receiving reasonably equivalent value; where (2) the debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer. Tex. Bus. & Com.Code Ann. § 24.006(a) (Vernon 2002). Unlike a fraudulent transfer defined by section 24.005(a)(1), a fraudulent transfer defined by section 24.006(a) does not include intent as an element of required proof. Compare Tex. Bus. & Com.Code Ann. § 24.005(a)(1) (Vernon 2002) with Tex. Bus. & Com.Code Ann. § 24.006(a) (Vernon 2002); see also FCLT Loans, L.P. v. Estate of Bracher, 93 S.W.3d 469, 478 n. 10 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (presuming fraudulent transfer claim limited to section 24.006 where plaintiff conceded that it was not asserting an actual intent to defraud); Pyle v. First Nat. Bank in Cameron, No. 03-98-00008-CV, 2000 WL 422894, *4 (Tex.App.-Austin April 20, 2000, no pet.).

With regard to whether Escalante received reasonably equivalent value and whether the transfer made Escalante insolvent, Metra seeks to focus on the value of the asset and the purchase price paid by the buyer. Metra seeks to ignore the evidence that Escalante never received the proceeds from the sale. Instead, the proceeds went directly to the Metra holding company and were immediately distributed to the investors. Accordingly, Escalante never received the purchase price paid by the buyer and, therefore, never received reasonably equivalent value for the apartment complex. Next, Metra contends that there was no evidence of Escalante’s insolvency because it had a $500,000 intercom-pany receivable on its books that it was entitled to be paid by the Metra holding company. Bracington, however, testified that the Metra holding company determined when, whether and in what amount Escalante would be entitled to receive the receivable. Accordingly, the receivable was not an asset over which Escalante had control. Bracington further conceded that if the Metra holding company would not distribute the funds to Escalante, Esca-lante would likely be required to file a lawsuit to obtain the money. Because insolvency must be evaluated from the creditor’s perspective, Escalante’s lack of control over the sole asset on its books that was sufficient to satisfy its debt to Lynd is some evidence of insolvency. National Loan Investors, L.P. v. Robinson, 98 S.W.3d 781, 784 (Tex.App.-Amarillo 2003, pet. denied).

Scope of Injunction, Actual Imminent Hakm & Status Quo

Metra next complains about the scope of the injunction, contending that it was overly broad because it prevented Metra from selling any of the apartment complexes when the only evidence related to the Es-calante sale. A temporary injunction should be specific enough to inform the defendants of the acts they are refrained from doing, but not so broad as to prohibit the enjoyment of lawful rights. Kaufmann v. Morales, 93 S.W.3d 650, 655 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 583 (Tex.App.-San Antonio 1998, pet. denied).

Because we previously have held that the injunction may not extend to any entity other than Escalante and Promontory, we only address whether evidence was presented that would enable the trial court to enjoin the sale of the apartment complex by Promontory. Section 24.008 of TUFTA allows a trial court to enjoin “further disposition by the debtor or a transferee, or both, of the asset transferred or other property.” Tex. Bus. & Com.Code Ann. § 24.008(a)(3)(A) (Vernon 2002). As a result of the actions taken with regard to the proceeds of the sale of Escalante’s apartment complex, both the Metra holding company and Escalante’s investors became transferees. See Telephone Equipment Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 611 (Tex.App.Houston [1st Dist.] 2002, no pet.). The record reflects that the Metra holding company had the same control over each of the Metra limited partnerships. It also appears from the record that each of the Metra limited partnerships had the same investors. The evidence showed how quickly the Metra holding company was able to control the sales proceeds from the Escalante apartment complex and distribute them following a sale. Metra appears to take the position that any sale by Promontory is based on mere speculation; however, the financial manager for the Metra holding company testified as follows:

THE COURT: Okay. Are the sales in the other properties currently pending?
THE WITNESS: I believe there’s a pending sale on Promontory Point, or a pending contract.
THE COURT: And that is one of the— that is one of the ten?
THE WITNESS: That’s one of the ten in San Antonio, yes.
THE COURT: And are there — -Other than Promontory Point, are there any other sales pending at this time?
THE WITNESS: Not to my knowledge.
THE COURT: Okay.
Q. (BY MR. BRACEY [Metra’s counsel] ) Mr. Bracington, are you aware, do you know one way or another, whether a contract out on Promontory Point expired?
MS. LEMLER-CLARK [Lynd’s counsel]: Objection; leading.
THE COURT: Oh, he can answer it.
THE WITNESS: I believe, if I remember correctly, in April, there was an expiration, I don’t know if it was extended or not.

From this testimony, the trial court could have found that the possible sale by Promontory was more than mere speculation or a future possibility particularly when the financial manager of the Metra holding company was unclear as to whether or when the pending sales contract potentially expired. Accordingly, the trial court was within its discretion in enjoining the disposition of “other property” which would include Promontory’s apartment complex. See Davis, 571 S.W.2d at 861 (trial court does not abuse its discretion when basing its decision on conflicting evidence).

Metra also contends that the temporary injunction is void because the scope of the persons subject to the injunctive relief is beyond the scope permitted by Rule 683. Rule 683 provides that an injunction order is “binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” The order in this ease states: “It is further Ordered that the Metra United Property Owners, their agents, successors, substitutes, assigns, partners, representatives, servants, employees, attorneys and any other persons or entities in active concert or participation with the Metra United Defendants (or with notice of this Order or the restrictions imposed by this Order) are hereby restrained from hindering .... ” (italics added). The inclusion of italicized language makes the scope of the injunction overly broad; accordingly, the trial court is instructed to modify its order by limiting the scope of the persons enjoined to those provided in Rule 683.

Status quo is defined as the last, actual, peaceable, noncontested , status which preceded the pending controversy. Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 284 (Tex.App.-San Antonio 2003, no pet.). The trial court did not abuse its discretion in determining that the last peaceable, contested status of the parties was the operation of the apartment complexes in the ordinary course of business. The sale of one of the apartment complexes and the distribution of the proceeds therefrom resulted in the litigation.

An injunction order must be as definite, clear, and precise as possible and should inform the defendant of the acts he is restrained from doing, without leaving anything for further hearing. Khaledi, 126 S.W.3d at 280-81. A defendant should not be required to draw inferences or conclusions about which persons may differ. Id. But obviously the injunction must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in a form identical to that employed prior to the injunction or in somewhat different form calculated to circumvent the injunction as written. Id.

Metra contends that the injunction provisions requiring disclosure of the location of the funds from the Escalante sale and prohibiting Metra from making expenditures not in the ordinary course of business are too imprecise. At the hearing on the motion to dissolve the injunction, however, Metra’s attorney stated that he did not have any objection to the provision regarding the disclosure of the location of funds. Furthermore, at the hearing setting a date for the injunction hearing, Metra’s attorney acknowledged that he would certify the expenditures were in the normal course of business by submitting an affidavit and a list of the expenses paid. Furthermore, the phrase “ordinary course of business” is commonly used and has no special legal or technological meaning. Helpinstill v. Regions Bank, 33 S.W.3d 401, 405 (Tex.App.-Texarkana 2000, pet. denied). Accordingly, Metra has waived its complaint as to the provisions regarding disclosure and has either waived its complaint as to the “ordinary course of business” phrase or such phrase is sufficiently precise.

Conclusion

The trial court’s order is overly broad with regard to all of the Metra limited partnerships except Escalante and Promontory. The trial court’s order is also overly broad with regard to the scope of the persons included. The trial court’s order is reversed, and the cause is remanded to the trial court with instructions to modify the scope of the injunction order consistent with this opinion.

      . Although we recognize that appellate courts have the authority to modify an injunction order on appeal, under the unique circumstances presented in this case, we believe the more efficient means to clarify the scope of the injunction order is to remand the cause to the trial court with instructions regarding the entry of a modified order. See Stocks v. Banner American Corp., 599 S.W.2d 665, 668 (Tex.Civ.App.-Texarkana 1980, no pet.) (reversing injunction order and remanded with instruction to the trial court to reform order).