author: RICHARD BARAJAS, Chief Justice.

text:
    EL PASO HEALTHCARE SYSTEM, LTD., d/b/a Las Palmas Medical Center, Appellant, v. Vincenza CARMONA, Appellee.
    No. 08-03-00129-CV.
    Court of Appeals of Texas, El Paso.

      March 17, 2005.
    Rehearing Overruled April 13, 2005.

      Joseph L. Hood Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for Appellant.
    John P. Mobbs, John Andrew Wenke, Law Offices of John A. Wenke, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in a case arising under the Texas Commission on Human Rights Act (“TCHRA”) claiming damages based upon allegations of age discrimination. The jury awarded $85,952 in back pay, $21,536 for loss of past employment benefits, $75,000 in compensatory damages, prejudgment interest on the actual damages, $1.3 million in exemplary damages, attorneys fees of $54,425, conditional awards of appellate attorneys fees, and post-judgment interest on all the amounts awarded. The Appellant raises ten issues on appeal. Issues One through Five challenge the legal and factual sufficiency of the evidence to support the jury’s answers to the questions submitted. The remaining issues challenge the legal and factual sufficiency of the evidence to support the jury’s finding that Appellant acted with malice or reckless indifference, the legal and factual sufficiency of the evidence to support the jury’s finding regarding lost employment benefits, the trial court’s submission of a circumstantial evidence instruction, whether the cap on damages under the Texas Commission on Human Rights Act applies, and whether, if the cap applies, it also limits the award of front pay found by the jury. For the reasons stated, we reverse and remand.

I. ISSUES SUBMITTED ON APPEAL

Appellant has submitted ten issues on appeal. Issues One through Five complain that the evidence supporting the jury’s answers regarding a finding of age discrimination under the TCHRA, is legally and factually insufficient to support the findings. Because our ruling on Issues One through Five is dispositive of this appeal, we do not reach the remaining issues.

II. SUMMARY OF THE EVIDENCE

Appellee, Vincenza Carmona had been employed as a nurse in El Paso since 1979 and employed by Appellant since 1988. Appellee originally was employed as an oncology nurse by Appellant, but in 1992, became a Case Manager which involved, among other responsibilities, overseeing the placement of patients within the hospital. In May of 1997, Appellee applied for a new position that had recently been created in the Admitting Department, Admitting Nurse. The same position had been eliminated approximately two years earlier during a previous reduction in force but was recreated in 1997. At that time, Juan Murillo, the Assistant Director over the Admitting Department, interviewed Appel-lee for the position and recommended that she be allowed to transfer into the new position. Appellee was 60 years old at- the time of the transfer to the Admitting Department. Appellee acknowledged having a good working relationship with Murillo while she was employed as the Admitting Nurse. She did not have any complaints about unfair treatment on the part of Murillo or Vicky Moreno, her immediate supervisor.

Because of cyclical patient census counts which impact the patient population in the hospital, the hospital occasionally implements steps to control expenses during periods of declining populations. Because hospitals have high fixed costs, wages and salaries are the largest controllable expense. Consequently, the hospital may initiate a reduction in force or RIF, as a cost-cutting measure and has done so in the past.

Appellant’s corporate parent compiles and disseminates statistical data that enables the hospital to compare its staffing levels with those of other hospitals. When considering the implementation of a RIF as a cost-saving measure, upper management, in this case, Terry Smith, the Chief Financial Officer, instructed directors such as Murillo to reduce the number of full-time employees within their respective department. The directors were allowed to review the staffing needs of the various departments and then made a recommendation about which position should be considered for elimination.

While evaluating the Admitting Department, Murillo was provided with a list of employees from the Human Resources Department. The list identified the employees within the department by name, job title, and hire date. The information did not contain any information reflecting the employee’s date of birth or age.

Smith had informed Murillo one to two weeks before the elimination of Appellee’s position that Murillo should reduce the number of employees in the Admitting Department by one employee. Murillo was tasked with reviewing the functions of the department and determining which position was the least essential.

Murillo believed that Appellee’s position was beneficial but felt that most of Appel-lee’s job responsibilities had been handled by other employees regularly in the past, and could, therefore, be absorbed by other employees in the future. Appellee worked a regular schedule of Monday through Friday from 8 a.m. to 5 p.m., though the Admitting Department was open 365 days per year. When Appellee was not on duty, other employees assisted admissions with questions related to the admission of patients. Murillo provided testimony explaining why he felt that other positions within the Admitting Department were more critical and not appropriate for elimination.

Murillo presented his recommendation to his supervisor, Waddell and then to Terry Smith. Smith then decided to eliminate Appellee’s position. Smith did not know Appellee’s age.

On March 9, 2000, Appellee was notified that her position was being eliminated as part of a reduction in force. Appellee was 68 years of age and had been employed by the hospital since 1988. She was both the oldest and highest paid employee in the department. Upon being terminated, Ap-pellee was provided with two weeks pay in lieu of notice, payment of her accumulated “paid time off,” and $6,800 in severance pay.

During November and December of 1999, Appellant created another position in a different department known as Resource Management Specialist in the Case Management Department. Appellee contends that the creation of this position was a pretext for the elimination of her position and her replacement by a younger employee. At the time the position was filled and before the loss of her position, Appellee made some inquires about the scope of the position but did not receive a satisfactory response from her supervisors other than an explanation that the new position was not a replacement for hers. The evidence presented established that Appellant did not formally adhere to its internal reduction in force policies when implementing the RIF. Also presented by Appellee was some statistical evidence describing demographic information about the employees who were affected by the RIF during the time period of May 1999 to May 2001.

Appellee sued, contending that her age was a motivating factor and consideration in the elimination of her position in violation of the TCHRA.

The jury agreed and the trial court entered a judgment in favor of Appellee from which Appellant appeals.

III. DISCUSSION

Appellant’s first five issues attack the legal and factual sufficiency of the evidence of various aspects of the jury’s verdict. We agree with Appellee that these issues should be read as an attack on the legal and factual sufficiency of the evidence supporting the jury’s finding that Appellee’s age was a motivating factor in Appellant’s decision to terminate Appellee.

A. Legal and Factual Sufficiency Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established “as a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, no writ). The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof, in a light most favorable to such findings, and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Southwest Craft Center v. Heilner, 670 S.W.2d 651 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.); Terminix Intern., Inc. v. Lucci, 670 S.W.2d 657, 662 (Tex.App.-San Antonio 1984, writ refd n.r.e.); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 672 (Tex.App.-Houston [1st Dist.] 1986, writ refd n.r.e.). If more than a scintilla of evidence supports the finding, the “no evidence” point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

“Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings “are against the great weight and preponderance of the evidence.” The “insufficient evidence” point of error is appropriate only when the party without the burden of proof on an issue complains of the court’s findings. Neily v. Arron, 724 S.W.2d 908, 912 (Tex.App.-Fort Worth 1987, no writ).

The test for factual insufficiency points is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). The jury’s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. The parlance used by the courts of appeals is that such a finding “shocks the conscience” or that it is “manifestly unjust,” limited by such phrases as “the jury’s determination is usually regarded as conclusive when the evidence is conflicting,” “we cannot substitute our conclusions for those of the jury,” and “it is the province of the jury to pass on the weight or credibility of a witness’s testimony.” Kimsey v. Kimsey, 965 S.W.2d 690, 700 (Tex.App.-El Paso 1998, pet. denied); Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied). Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury, provided the jury finding is supported by probative evidence and is not against the great weight and preponderance of the evidence. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained.

B. Legal Sufficiency of the Evidence

The parties- have agreed that Ap-pellee has met the threshold burden of proof establishing that she was discharged, qualified for the job, and within the protected class. The jury charge included a single question regarding the age discrimination complaint. The jury answered ‘Tes” to the following question:

Question No. One
Was VINCENZA CARMONA’S age a motivating factor in EL PASO HEALTHCARE SYSTEM, LTD.’s decision to eliminate her position?
A “motivating factor” in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor for an employment decision.

First, we examine only the evidence and inferences that support a factual finding in favor of the party having the burden of proof. The jury heard testimony from seven witnesses concerning Appellant’s conduct including Appellee and her husband. It is clear from the evidence presented that Appellee was a member of a protected class, qualified to perform a job, who was terminated. The evidence established that a younger woman was hired to perform tasks for the hospital which were similar to the job held by Appellee. In examining only the evidence that supports the jury’s findings, we find there is more than a scintilla to support Appellee’s claim that age was a motivating factor in Appellant’s decision to eliminate her position. Appellant’s no-evidence points fail under Issues One through Five so that portion of those issues is overruled.

C. Factual Sufficiency of the Evidence

Next, we consider all of the evidence presented, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. While we agree that there is more than a scintilla of evidence to support the jury’s verdict when considering only the evidence favorable to Appellee to support the verdict, we agree with Appellant however, when considering the cumulative evidence, that the finding is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust.

Appellee argues that she has presented a prima facie case of discrimination by showing that she was discharged from her employment, was qualified for the job, was within the protected class at the time of the discharge, and was replaced by someone outside the protected class or by someone younger, or otherwise discharged because of her age. Appellant agrees that Appellee was discharged from her employment, was a member of the protected class, and was an exemplary employee who was qualified for the job. An issue arises, however, over the last element of the case regarding the replacement of Appellee by a younger employee.

The prima facie case in an age discrimination case requires proof that: (1) the employee was discharged; (2)[s]he was qualified for the position; (3)[s]he was a member of a protected class at the time of discharge; and (4)[s]he was replaced by someone outside the protected class or otherwise show that [s]he was discharged because of his age. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003); Trico Technologies Corp. v. Rodriguez, 907 S.W.2d 650, 651 (Tex.App.-Corpus Christi 1995, no writ).

Holding that Appellee’s evidence does establish a prima facia case of age-based discrimination, we turn to consider Appellee’s argument that Appellant’s reason for elimination of Appellee’s position as part of a routine reduction in force, was pretextual. We agree with Appellant that once an employer comes forward with a non-discriminatory explanation for its decision, the burden shifts back to the employee to show that the explanation is pretex-tual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). In the case before us, however, Appellant presented ample evidence to support its legitimate business-based decision to implement a reduction in force with resulted in Appellee’s loss of her position with no corresponding evidence of age-based discrimination. We do not agree that Appellee’s evidence establishes that the articulated reason was a pretext for Appellant’s elimination of the position for an illegal reason.

The TCHRA prohibits an employer from discharging or in any other way discriminating against an employee because of the employee’s age. Wal-Mart Stores, Inc., 121 S.W.3d at 739. See Tex.Lab.Code Ann. §§ 21.051-.556. The Legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA. Id. at § 21.001; see Wal-Mart Stores, Inc., 121 S.W.3d at 739; see also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142,144 (Tex.1999). In discrimination eases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc., 121 S.W.3d at 739; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742,125 L.Ed.2d 407 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp., 411 U.S. at 802-03, 93 S.Ct. at 1824-25; M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex.2000) (per curiam). But when a discrimination case has been fully tried on its merits, as in this case, a reviewing court does not engage in a burden-shifting analysis. Wal-Mart Stores, Inc., 121 S.W.3d at 739; see also Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir.2000). After reviewing all the evidence, we inquire whether the evidence is legally and factually sufficient to support the jury’s ultimate finding. See Wal-Mart Stores, Inc., 121 S.W.3d at 739; see also Rutherford v. Harris County, Tex., 197 F.3d 173, 180-81 (5th Cir.1999). At trial, it was Appellee’s burden to prove that her age was a motivating factor in Appellant’s decision to terminate her. Wal-Mart Stores, Inc., 121 S.W.3d at 739; see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001) (holding that “a motivating factor” is the plaintiffs standard of causation in a TCHRA unlawful employment practice claim).

Appellee is critical of the decision-making process followed by Appellant which does not, by itself, prove that Appel-lee’s age was a motivating factor in her termination. An at-will employer does not incur liability for carelessly forming its reasons for termination. See Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 609 (Tex.2002); Garcia v. Allen, 28 S.W.3d.587, 591 (Tex.App.-Corpus Christi 2000, pet. denied). As long as its reason for terminating Appellee was not illegal, Appellant could have fired Appellee, an at-will employee, for any reason, or for no reason at all. Sears, 84 S.W.3d at 609. She must show that the reason proffered by Appellant is “false, and that discrimination was the real reason.” St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. at 2752 (emphasis in original).

Appellee points to the creation of a position entitled Resource Management Specialist Registration/Admitting within the Case Management Department as evidence of Appellant’s intention to replace Appellee with a younger employee. The evidence established that during the fall of 1999, Appellant reviewed some functions of the Case Management Department because of problems related to the admission documentation of patients which resulted in problems with Medicaid reimbursement. Smith ultimately concluded that the problems with Las Palmas were related to the Case Management Department’s monitoring of patients once they were admitted to the hospital.

In November of 1999, Nancy Rout, the Chief Nursing Officer, requested a copy of Appellee’s job description from Moreno, Appellee’s supervisor. On December 12, 1999, Appellant posted a new job opening for Resource Management Specialist. In January of 2000, Appellee learned that Karen Mathis had been hired to fill the new position. Mathis, like Appellee, had previously worked in case management. Mathis had been laid off during an earlier RIF. Appellee was asked to orient Mathis and requested a copy of Mathis’s job description for that purpose. The job description posted for the Mathis position was, in many respects, similar to the job description for the position held by Appel-lee. Both Murillo and Moreno explained that many departments within the hospital copied job descriptions when creating a posting for a new job. Mathis’s job description, however, also included additional responsibilities.

We do not agree that the fact that Appellant created a similar position in a different department several months before the elimination of Appellee’s position is evidence of an intent to replace Appellee with a younger employee nor do we believe that such a business decision, standing alone is any evidence of the consideration of Appellee’s age as a reason to eliminate her position. Appellee testified that she had always enjoyed a good working relationship with all her supervisors and had been given excellent performance evaluations. She presented insufficient evidence to suggest that age was ever considered in connection with any management decisions made regarding the creation of the Resource Management Specialist position given to Mathis. She did not even contend that Mathis’s position or hiring was a pretext for the elimination of her position. Appellee’s attorney made the speculative leap in logic to argue that the fact of a similar position in a different department of the hospital, created by different supervisors, reporting to a different chain of command, created in response to a specific management problem that existed for several months before the elimination of Ap-pellee’s position, is evidence of a scheme of age discrimination. We do not agree.

When Appellee became aware of the similarities between the job descriptions, she inquired about the situation by calling Murillo, Sally Walker, the Director of Human Resources, and Moreno who either did not respond to her inquires or did not have any explanation about the similarity. Appellee eventually spoke with Nancy Rout, the Chief Nursing Officer, who explained that Mathis would be performing different tasks and was not a replacement for Appellee. Appellee admitted that Mathis was not performing the same job as she had been and conceded that Mathis did not physically replace her as the admitting nurse. The admitting nurse position has not been filled since Appellee’s position was eliminated in March of 2000.

Appellee presented evidence that Appellant had adopted policies regarding the procedures to be followed during a reduction in force. The evidence reflected that management did not strictly follow the requirements for notification of employees of the possibility of a need for a reduction and force and did not formally convene an “overview” committee to review the decisions related to the elimination of positions. The evidence presented regarding this issue, however, also indicated that Appellant’s management did meet as a group to review the decisions regarding the elimination of all the positions affected including Appellee’s, though the group was never formally designated the “overview” committee. Appellee was paid money in lieu of notice. Significantly, there was insufficient evidence presented that any decisions made included any discriminatory motives. There was insufficient evidence presented to suggest that Appellee was treated differently from any other employee whose position was eliminated as a result of the reduction in force. There was insufficient evidence of any harm caused by the technical failure of Appellant to adhere to its own internal policy. Appellee urges that Appellant’s failure to strictly adhere to its own internal policy is evidence .of- discrimination. Appellee cites to two cases in support of its position that the failure to follow a policy may be evidence of discrimination. Both cases acknowledge that the failure to follow a policy may be some evidence of discrimination but each involves a fact situation replete with specific examples of discriminatory conduct. Each is clearly distinguishable from the facts presented before us today. Here there is insufficient evidence that the failure to follow the policy impacted Appellee in any way nor is there any evidence that the failure was as a result of a motive based upon discriminatory reasons. We do not hold that the mere technical non-compliance with an internal policy is sufficient evidence of discriminatory behavior without more.

Appellee also argues that the failure of several supervisors to return Appel-lee’s phone calls is indicative of a discriminatory intent on the part of Appellant. Again, Appellee’s complaints are nothing more than mere suspicion, speculation, and supposition. Noting that one supervisor did discuss the situation with Appellee, we do not find that the non-response of the other supervisors is sufficient evidence of discriminatory intent on the part of Appellant to support the jury’s conclusion. While a return phone call would certainly have been courteous and polite, the failure to do so does not establish a basis for a claim of discrimination.

Appellee also presented evidence that she had applied for other positions at the hospital for which she was not hired which she contends was further evidence of discrimination. The record is confusing and unclear about which positions Appellee applied for and whether she was qualified for the positions in question. What is clear from the evidence is that Appellee testified that she did not know what specific qualifications were required for the positions that she was not offered nor did she know anything about the individuals hired. There was no other evidence presented that established discrimination related to Appellant’s failure to rehire Appellee. We do not agree that the anecdotal testimony provided by Appellee that she had applied for a few positions with Appellant’s hospitals and was not hired for any of the positions is evidence of age-based discrimination. We also note that the trial court record reflects that Appellee’s attorney acknowledged that the evidence of Appel-lee’s attempts to obtain employment from Appellant was not evidence of a discriminatory intent on the part of Appellant and he stated the evidence was offered for the purpose of showing that she attempted to mitigate her damages. Now, on appeal, Appellee argues that the failure to hire rises to the level of creating a “suspicion of mendacity.” We do not agree. Appel-lee’s suspicions or beliefs do not create evidence.

Finally, we consider Appellee’s statistical evidence proffered as proof of a discriminatory scheme during the trial. Appellee called Terry Smith, the Chief Financial Officer, and questioned him about one of Appellant’s exhibits at trial, a list of the individuals who were affected as part of the RIF in 2000. The list included the names of the individuals, the position held, and the age of each. Appellee questioned Mr. Smith about whether this^ist reflected a disproportionate number of older people included in the pool of employees whose positions were terminated. Mr. Smith responded that he believed that the “list is representative of the age groups of all the employees there.... This probably represents in general all of the age classifications.” In her brief, Ap-pellee cites to various exhibits included in the evidence submitted to the jury which consist of an assortment of charts listing the individuals employed in the Admitting Department at the time of the RIF, a list of employees terminated during the 2000 RIF including the age of each, and a list of all employees terminated during the time period from May 1999 to May 2001 including the age of each and information on whether the individual was rehired and if so, when. No witness testified about the significance of these statistics nor how the statistics are evidence of a discriminatory intent on the part of Appellant. They provide insufficient evidence that Appellee’s position was eliminated on a pretextual basis. A review of Appellee’s exhibits, which includes a list of employees included in the reduction in force by Appellant, supports Appellant’s argument that the elimination of Appellee’s position was merely part of a business-wide reduction in force that impacted many employees. A finding that age was a motivating factor in the elimination of Appellee’s position because of the sparse statistics provided is clearly wrong and manifestly unjust. Any conclusion to be drawn from the documents would be nothing more than blatant speculation and as such, a finding of discrimination would be manifestly unjust.

In substance, the parties agree that Appellant contends that Appellee was terminated as a result of the elimination of her position as a result of the reduction in force without regard to her age. Appellee asserts that the reasons proffered by Appellant are pretextual and that the evidence of pretext is established by the following evidence: the hiring of Mathis two months before the elimination of Appel-lee’s position to perform a similar job, the failure of various supervisory employees to return Appellee’s phone calls to discuss Mathis’s job description, a failure on the part of Appellant to strictly follow its own reduction in force policy prior to eliminating Appellee’s position, Appellant’s failure to hire Appellee for another position after the RIF, and certain statistical evidence presented to the jury regarding the numerical demographics of the age of the employees who were terminated by Appellant during the time period from May 1999 to May 2001.

After review of the entire appellate record, we conclude Appellee has presented insufficient evidence to show that Appellant’s decision to eliminate her position was motivated by her age. There is insufficient evidence that the reasons proffered by Appellant were false. There is insufficient evidence of an age-based motivating factor and the jury finding that such existed is against the great weight and preponderance of the evidence. Ap-pellee has proposed that the possible falsity of the reasons the defendant puts forth “may, together with the elements of the prima facie case, suffice to show intentional discrimination.” St Mary’s Honor Ctr., 509 U.S. at 511, 113 S.Ct. at 2749; see also Reeves, 530 U.S. at 147-49, 120 S.Ct. at 2108-10. But even if the reasons Appellant cited for terminating Appellee were false, she still bore the ultimate burden to prove that Appellant discriminated against her because of her age. Reeves, 530 U.S. at 147-49, 120 S.Ct. at 2108-10. The relevant inquiry is not whether the business decisions made by Appellant were appropriate or well-founded. See Wal-Mart Stores, Inc., 121 S.W.3d at 740.

Issues One through Five on the challenge of the factual sufficiency of the evidence to support the jury’s verdict are sustained. Because Issues One through Five are dispositive of this appeal, we do not reach Issues Six through Ten.

We, therefore, having sustained Appellant’s Issues One through Five on the basis of factual insufficiency of the evidence, reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.

LARSEN, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Marina Maese DE GONZALEZ, Sharleen Maese, Patrick Maese, Rojelio Maese, Reyna M. Maese-Nevarez, Romelia Maese De Gonzalez, and Roberto A. Maese-Nevarez, Appellants, v. Josefina MAESE-NEVAREZ, Fabiola Maese-Crespo, Rodolfo Maese-Nevarez, Jose Sanchez-Soriano, and Marisa P. De Olivas, Appellees.
    No. 08-03-00138-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2005.

      John P. Mobbs, El Paso, for Appellants.
    Mark Gregory Briggs, Porras, Stephen & Briggs, L.L.P., El Paso, for Appellees.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the decision of the trial court entering a final judgment finding that one Appellee, Cross-Defendant below, is entitled to claim funds recovered and held in escrow as a result of related litigation. For the reasons stated, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

In March of 1983, Roberto Maese Hor-casitas purchased nine annuities from First Service Life Insurance Company for the benefit of his eight children as named beneficiaries. The first eight annuities designated a specific child as beneficiary and were funded by an amount equal to the percentage of interest in the estate of Roberto Maese Horcasitas bequeathed to each child by his will. The annuities were not funded in equal shares. The purchase amount of the ninth annuity was significantly larger than any of the others and the proceeds were used by Mr. Maese Horcasitas as income to live on until his death. The ninth annuity, Annuity 2008, named Josefina Maese-Nevarez as the designated beneficiary of the annuity. Josefina Maese-Nevarez was the only child named twice as a beneficiary of the annuity policies.

Mr. Maese Horcasitas died in November 1988.

Sometime during 1988, the annuities lost any intrinsic value when the issuing company, First Service Life Insurance Company, was determined to be insolvent. On May 16, 1990, the parties to this action joined with other annuity holders in filing suit against numerous defendants, in El Paso, Texas in the case of Meneses et al. v. First Financial Savings Association of El Paso, et al., Cause No. 88-9254. This lawsuit is the remainder of this initial dispute. Simultaneous to this action, and related to the failure of the First Service Life Insurance Company, another lawsuit styled, El Paso Electric Company v. First Service Life Insurance Company, et al. was being prosecuted as Cause No. 451,-497 in the 345th Judicial District Court in Travis County, Texas. The annuity holders, plaintiffs in this case below, were named as “Creditor Defendants” in the Travis County action and ordered to file administrative claims with the Texas Department of Insurance to protect their respective interests. This same list of claims was later used in connection with related receivership litigation which ultimately disposed of the assets of First Service Life Insurance Company. The annuity holders received distributions of funds from that action.

During the fourteen years following the failure of First Service Life Insurance Company, numerous claims were pursued against numerous parties by the parties to this case. Some of those actions resulted in the recovery of funds. In 2001, this case was referred by the trial court to mediation and a mediation took place on July 31, 2001. The parties reached a settlement of the bulk of the claims asserted in the action. On January 28, 2002, before the entry of a final judgment, some of the plaintiff parties filed a Cross-Claim for Declaratory Relief against some of the other plaintiff parties. The substance of the cross-claim dispute centered around the distribution of the proceeds recovered in the various actions specifically related to two annuities. The parties requested that the court determine the appropriate distribution of the funds. On February 7, 2002, the majority of the plaintiffs and defendants filed a Joint Motion to Dismiss and for Severance, informing the court of the settlement of the claims and requesting that the court dismiss all the claims with the exception of the cross-claims asserted in the January 28, 2002 motion.

On February 7, 2002, a Judgment was entered by the Court purporting to dismiss the case-in-chief but reserving the cause of action asserted among the various plaintiffs. A subsequent mediation was held on February 20, 2002 which resulted in a further narrowing of the issues and the filing of a Joint Motion to Dismiss and for Severance on February 27, 2002. Also on February 27, 2002, the parties filed an Agreed Judgment which further narrowed the action and limited the parties to the following: Marina Maese de Gonzalez, Sharleen Maese, Reyna M. Maese-Neva-rez, Roberto A. Maese-Nevarez, and Romelia Maese de Gonzalez as Cross-Plaintiffs v. Fabiola Maese-Crespo, Josefina Maese-Nevarez' and Rodolfo Maese-Nevarez as Cross-Defendants all of whom are the heirs of Roberto Maese Horcasitas. These are the parties presently pursing this appeal.

On July 3, 2002, a non-jury trial was held to resolve the remaining issues. The trial court signed a Declaratory Judgment on November 7, 2002. Appellants filed a Motion for New Trial and to Vacate or Clarify and Modify the Judgment.

On December 18, 2002, a hearing was held on Appellants’ Motion for New Trial and to Vacate or Clarify and Modify the Judgment. The trial court vacated the earlier Declaratory Judgment and signed a “Clarified Final Declaratory Judgment” on December 18, 2002. Appellants filed another Motion for New Trial on January 16, 2003. A hearing was held on February 28, 2003 and the trial court denied the motion.

II. DISCUSSION

In a single issue supported by two arguments, Appellants have asserted that, as a matter of law, the trial court erred in ordering that Josefina Maese-Nevarez have and recover the remaining funds held in escrow as proceeds of the Annuity 2008. Though the issue on appeal is not clearly stated, it appears to argue two reasons in support of Appellants’ argument that the trial court’s issuance of a judgment in favor of Josephina Maese-Nevarez should be reversed as a matter of law.

This remaining dispute, which is the substance of the lawsuit presently pending before the Court, revolves around a conflict among the children of Roberto Maese Horcasitas over funds held in escrow that are attributed to a recovery of funds related to Annuity 2008. Annuity 2008 was the sole annuity used by Roberto Maese Hor-casitas for income during his life and was the largest of the nine annuities originally purchased. It named Josefina Maese-Nevarez as the only beneficiary at the time of the purchase. Some of the children (and heirs of a previously deceased child) are claiming a right to some of the proceeds and assert that the funds must be distributed pursuant to the ratios established by the Texas Department of Insurance in the receivership litigation or in amounts equal to percentages identified by the will of Roberto Maese Horcasitas.

The Appellants here are siblings or relatives of Josefina Maese-Nevarez and are claiming a right to some of the proceeds still being held. Appellants contend that they are entitled to a share of the proceeds because Josefina Maese-Nevarez has previously agreed, pursuant to a Stipulation and Agreement signed as a result of a mediation of some of the claims, that a determination made by the Texas Department of Insurance established the ratios for distributions of all funds received by all the plaintiffs. Appellants contend that the previous agreement is binding on Josefina Maese-Nevarez as to the specific proceeds of Annuity 2008 and requires that any funds be distributed either pro rata or as per the percentages outlined in the late Mr. Maese Horcasitas’s will.

The second argument in support of Appellants’ issue is that Ms. Maese-Nevarez’ conduct during the previous litigation and in relation to this dispute, constituted a waiver of her right to assert sole interest in the funds now at issue.

Standard of Review

Where the trial court’s decision involves both factual determinations and legal conclusions, we review under an abuse of discretion standard. Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex.App.-El Paso 1999, no pet.) citing Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.-San Antonio 1996, no writ). Purely legal conclusions, however, are reviewed de novo. Id.; Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.-El Paso 1995, writ dism’d w.o.j.). A conclusion of law will not be reversed unless it is erroneous as a matter of law. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). Even an incorrect conclusion of law will not require a reversal if the controlling findings of fact support a correct legal theory. Id.

Appellants have asserted that the only issue pending before the Court requires an analysis of the trial court’s order for a determination of appropriateness as a matter of law. Of necessity, this Court must also determine whether the trial court’s decision was supported by the factual evidence.

Despite the long and acrimonious history of the case pending before us, the trial court was left with the narrowed question of determining which of the party plaintiffs is entitled to receive the proceeds of the last vestiges of the funds originally deposited by Roberto Maese Horcasitas with First Service Life Insurance Company for the benefit of his children. The majority of the plaintiffs in the litigation below reached a settlement of the majority of the claims by virtue of a mediation that took place on July 31, 2001. An agreement was reached and reduced to writing and eventually included in the court’s record as a filed Stipulation and Agreement memorializing the terms of the settlement. Unfortunately, this agreement did not dispose of the entire case nor resolve the dispute among the Maese heirs surrounding the proceeds attributable to one of the original annuities, Annuity 2008. Though Appellants cite to some paragraphs of the agreement that dispose of related issues among the parties in support of their position, they neglect to acknowledge the clear and unequivocal language of paragraph F. Paragraph F of the agreement provided “[t]he fund distributions to which entitlement arises from FSLIC Annuity numbers 2007 and 2008 are to remain in said escrow account until there is agreement pertaining to such distribution by all parties, or the matter is adjudicated by this Court.” It is clear from the plain reading of the agreement that at the time of the mediation, all the parties recognized that a dispute about the distribution of some of the proceeds continued to exist and that a resolution by settlement or further litigation was contemplated.

Appellants contend that this agreement provides that, as a matter of law, the beneficial interest in the proceeds from Annuity 2008 must be divided as discussed in previous parts of the agreement. The Appellants did not provide the trial court with any documents which reflect the substance of the determination made by the Special Deputy Receiver and whether that determination addressed the issue of the entitlement to the proceeds of Annuity 2008 in more specific terms. At the trial before the judge, the Appellants did not provide any testimony from any witness regarding the terms of the agreement or the actual amount of any distributions made pursuant to the agreement. Nor have they presented any evidence to establish that the agreement was intended to govern the distribution of the proceeds of Annuity 2008. We hold, as a matter of law, that the Stipulation and Agreement filed of record on December 19, 2002 did not resolve the question of the right to the proceeds from Annuity 2008 and the trial court’s decision in this regard is affirmed.

Appellants’ second argument under their sole issue is that the conduct of Jose-phina Maese-Nevarez during the course of the underlying and related litigation acts as a waiver of her right to claim an interest in the funds in question. A review of the record establishes that Ms. Maese-Nevarez was an active participant in the underlying litigation along with her siblings. Several of the Maese heirs were represented by one attorney, Mr. Hal Monk. Appellants tendered numerous letters and documents to the trial court which reflect communications between Mr. Monk and various attorneys and parties to the litigation. Those documents discuss offers of settlement or compromise of the various disputes pending in the case, legal positions to assert and strategies to pursue in handling of the lawsuit. Appellants are suggesting that the negotiations and discussions regarding this litigation, which took place over the course of many years, create a legal obligation on the part of the Appellee and a right on behalf of the Appellants. Such is not the case. There is no evidence before the court of the intentional or implied waiver of a legal right to the funds in question on the part of Jose-phina Maese-Nevarez. Appellants have attached numerous documents and letters, many of which are unsigned, as evidence of Ms. Maese-Nevarez’ waiver. A review of those documents, however, establishes that the documents clearly contemplate ongoing negotiations and discussions among the Maese heirs about possible settlements or compromises of the parties’ disputes. Nothing provided reflects a consummated agreement memorializing the parties’ final intentions or decision to resolve the matters.

Waiver is defined as “ ‘an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that light.’ ” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003) citing Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987); U.S. Fid. & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Motor Vehicle Bd. of the Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex.1999). There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Maryland Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex.1966). Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, as in this case, the question becomes one of law. Motor Vehicle Bd., 1 S.W.3d at 111.

No evidence of an intent to waive Jose-phina Maese-Nevarez’ interest in the proceeds attributed to Annuity 2008 has been shown by the Appellants. For that reason, Appellants’ sole issue is overruled in its entirety.

Having overruled Appellants’ sole issue on review, we affirm the judgment of the trial court.

LARSEN, J., not participating.

      . Though three of the Maese heirs are named as Appellees in the style of this case, only one heir, Josephina Maese-Nevarez is defending this appeal. The other Appellees through their position at trial agree with her positio-nand, though remain parties-in-interest with a potential stake in the outcome, have not participated in this appeal. A motion to dismiss claims against Appellees, Jose Sanchez-Sori-ano, and Marisa P. De Olivas was signed by all attorneys and filed on February 27, 2002 though no order granting the motion was included in the clerk’s record.

      . One of Mr. Maese Horcasitas’s sons, Rogelio Maese-Nevarez predeceased Mr. Maese Horcasitas in 1988, his heirs, his wife and two children, Sharleen Maese, Patrick Maese, and Rojelio Maese, were substituted as Appellants.

      . The dispute surrounding Annunity 2007 was resolved independently and is not a subject of this appeal.


author: Justice CARTER.

text:
    In re Glenn Martin GREENWELL and the City of Texarkana, Arkansas.
    No. 06-05-00035-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 23, 2005.
    Decided March 24, 2005.

      Ned A. Stewart Jr., Autrey, Autrey & Stewart, Texarkana, for appellant.
    E. Ben Franks, Law Offices of E. Ben Franks, Texarkana, for real party in interest.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

The City of Texarkana, Arkansas, has filed a petition for writ of mandamus requesting that this Court order the Honorable Leon Pesek, Jr., Judge of the 202nd Judicial District of Texas, to rule on its motion for partial summary judgment. We conditionally grant the petition.

April Nicole Brown Davis, the plaintiff, and Glenn Martin Greenwell, a police officer on duty with the City of Texarkana, Arkansas, Police Department, had an accident on the Texas side of State Line Avenue. Davis sued the City of Texar-kana, Arkansas, and Greenwell alleging that the negligent conduct of Greenwell caused the collision. The City filed a motion for partial summary judgment alleging that Arkansas sovereign immunity should be applied through the doctrine of comity. According to the City, Arkansas law waives sovereign immunity only for the amount covered by liability insurance. See AbkCode Ann. § 21-9-301 (LEXIS through 2004 legislation). Judge Pesek refused to rule on the motion, stating that the Arkansas law was a “limitation of damages under sovereign immunity” and that he saw no reason to rule on the motion until after trial.

Mandamus will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839—40 (Tex.1992). Mandamus is an extraordi nary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985) (orig. proceeding).

According to the City, Judge Pesek’s refusal to rule denies it the opportunity to take an interlocutory appeal. The City relies on the First District Court of Appeals’ decision in Grant v. Wood, which ordered a trial judge to rule on a motion for summary judgment when the trial judge’s express purpose was to deny an interlocutory appeal. 916 S.W.2d 42 (Tex. App.-Houston [1st Dist.] 1995, orig. proceeding). But see In re Am. Media Consol., 121 S.W.3d 70, 74 (Tex.App.-San Antonio 2003, orig. proceeding) (limiting Grant to circumstances where the express purpose of the trial court in refusing to rule is to prevent an interlocutory appeal). However, we find other grounds that lead us to conclude the writ should be issued.

Once a ruling has been requested on a motion pending before a trial court, the trial court is required to consider and rule on a motion within a reasonable time. In re Kleven, 100 S.W.3d 643, 644 (Tex.App.-Texarkana 2003, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); see Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992). While a trial court has some discretion in the manner in which it rules on motions, the trial court commits a clear abuse of discretion when it refuses to rule on pending motions. Grant, 916 S.W.2d at 45. ‘"When a motion is properly filed and pending before a trial court, considering and ruling on the motion is a ministerial act, and mandamus may issue to compel the trial court to act.” Kleven, 100 S.W.3d at 644; Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). However, if a reasonable time has not yet passed, the trial court’s failure to rule may not be a clear abuse of discretion. In re Mission Consol. Indep. Sch. Dist., 990 S.W.2d 459, 460—61 (Tex.App.-Corpus Christi 1999, orig. proceeding) (mandamus not available when only thirty days had passed).

Under the facts of this case, the trial court abused its discretion by refusing to rule on the motion for partial summary judgment before trial. The motion for partial summary judgment was filed September 9, 2004. A hearing concerning the motion was held and the trial court issued a letter October 13, 2004, indicating it would not rule on the motion before trial. The City filed a motion requesting a ruling before trial on November 9, 2004. The motion for partial summary judgment has been pending for over six months. Further, we recognize that the City has an argument that it may be entitled to an interlocutory appeal if the motion is denied. While we have jurisdiction to direct the trial court to exercise its discretion in some manner, we may not tell the trial court what that decision should be. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.1962); In re Tasby, 40 S.W.3d 190, 191 (Tex.App.-Texarkana 2001, orig. proceeding); Cooke v. Millard, 854 S.W.2d 134, 135 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). The City is entitled to have a ruling on its motion for partial summary judgment before trial. The relief sought is therefore conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.

      . State Line Avenue is a street inside the City of Texarkana which straddles the border of Texas and Arkansas.

      . If the motion is denied, the City claims it is entitled to an interlocutory appeal. The City claims Arkansas law must be applied through the doctrine of comity. See Lee v. Miller County, Arkansas, 800 F.2d 1372 (5th Cir.1986). If the motion is denied, the City argues it would be a denial of a motion for summary judgment based on an assertion of sovereign immunity, which would entitle it to an interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2004-2005). We note Davis argues that whether comity applies is within the discretion of the trial court and claims that Section 51.014 only applies to denial of sovereign immunity by the officials and entities of the State of Texas. In response, the City argues that the Full Faith and Credit Clause requires Texas to afford the same remedy to governmental entities of the State of Arkansas. Because we are issuing this writ on other grounds, it is unnecessary to decide whether the denial of this motion would entitle the City to an interlocutory appeal.


author: Justice ROSS.

text:
    In re Barbara GOSS.
    No. 06-05-00033-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 17, 2005.
    Decided March 25, 2005.

      P. Michael Jung, Strasburger & Price, LLP, Dallas, George A. Boll, Jeff R. Ward, Juneau, Boll & Ward, PLLC, Addison, for relator.
    Deborah J. Race, Ireland, Carroll & Kelley, PC, Charles H. Clark, Clark, Lea, Ainsworth & Porter, Tyler, for real party in interest.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Barbara Goss, the plaintiff below, has filed a petition for writ of mandamus asking us to order the trial court to vacate its order granting Brookshire Grocery Company’s motion for new trial. She contends the grant is not valid because the trial court had lost plenary power before it granted the motion.

The underlying lawsuit is a tort action by Goss against Brookshire in which the jury awarded substantial damages in her favor. Following the jury’s verdict, but before judgment, Brookshire filed a combined motion for judgment notwithstanding the verdict, and in the alternative, motion for new trial. A hearing was held on Brookshire’s motions, after which the trial court rendered judgment on the jury’s verdict. Brookshire’s motions were denied by written order signed the next day. Brookshire later filed a much more extensive motion for new trial, which the trial court ultimately granted. The question is whether, when that order was finally issued, the trial court still had the plenary authority to do so. We conclude that it did not.

Mandamus is appropriate relief when a trial court issues an order after its plenary power has expired, because such an order is void. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000).

The following timetable shows the relevant filings, hearings, and rulings:

Brookshire files motion for judgment notwithstanding the verdict and alternative motion for new trial: 12/03/2004

Hearing on motions and judgment signed 12/09/2004

Order overruling motions signed: 12/10/2004

Brookshire files second motion for new trial: 01/07/2005

Hearing on second motion for new trial: 01/25/2005

Order granting second motion for new trial signed: 02/01/2005

The relevant plenary power provisions of Tex.R. Civ. P. 329b are as follows: (1) if no motion for new trial is filed, the court has plenary power for thirty days after the judgment is signed; (2) if a motion for new trial is filed and there is no formal ruling, it is overruled as a matter of law seventy-five days after the judgment is signed; (8) if a motion for new trial is filed, the court has plenary power over its judgment until “thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.” Under these provisions, a trial court retains plenary power for thirty days after it rules, or for seventy-five days (when overruled as a matter of law), plus thirty more. The motion in this case, partially titled “In the Alternative Motion for New Trial” was overruled December 10, 2004. Goss contends the trial court lost plenary power January 10, 2005; thus, the court was clearly without authority when it granted Brookshire’s second motion February 1, 2005. Brookshire responds with two alternative arguments.

Brookshire contends the initial motion entitled “Motion for Judgment Notwithstanding the Verdict and in the Alternative Motion for New Trial” was not considered as such by the trial court. Brookshire posits that the trial court understood that motion to be only a motion for judgment notwithstanding the verdict and that Brookshire would later file a more complete motion for new trial. Language suggesting that is what Brookshire contemplated can be found in the motion itself:

In the event the court declines the relief requested in this motion and enters a judgment, Brookshires intends to file a more comprehensive motion for new trial raising all insufficiency and other complaints not addressed herein.

Comments made at the hearing by the trial court also support Brookshire’s argument:

realistically what’s before the Court right now is whether or not the Court should enter a judgment on the, on the verdict or a judgment notwithstanding the verdict.

Therefore, Brookshire argues, because the first motion was purely a motion for judgment notwithstanding the verdict (and not a motion for new trial), the rules permitted it to file its complete motion for new trial within the initial thirty-day time period. If correct, then the standard seventy-five-day time period applied as started by the filing of that complete (second) motion filed within thirty days of the signing of the judgment. Under this argument, a timely motion was filed within thirty days, and because there was still an outstanding and unruled-on motion pending, the court had the full seventy-five days from judgment to rule. Thus, under this view, the order granting a new trial was valid.

The language of the trial court’s order, however, belies Brookshire’s argument:

On December 9, 2004, came on to be heard Defendant Brookshire Grocery Company’s Motion for Judgment Notwithstanding the Verdict and In the Alternative Motion for New Trial and Plaintiffs Response to same. Having considered the pleadings and the evidence presented, and having heard and considered the arguments of counsel, the Court finds that said Motions are DENIED.

Although the hearing on the first motion was mostly directed at a discussion of the motion for judgment notwithstanding the verdict, it was not exclusively so. This was partly because of an overlap in the requested relief and the reasons for that relief. The result is, we cannot say conclusively that the court ruled solely on the motion for judgment notwithstanding the verdict and that it did not consider the motion for new trial. Even if the court did at one time have that intention, the judgment itself clearly and unambiguously disposes of both motions, and to make such a decision was clearly within the authority of the court.

Brookshire also argues that, at the hearing on the first motion, the trial court impliedly granted it permission to file an amended motion for new trial. This argument is supported by the transcription of the hearing where the trial court was informed of, and was expecting, a much more extensive motion for new trial to be filed. In the context of a discussion of whether there was any evidence to support the jury’s verdict, the court made these comments:

when [the judgment is] entered, I will look more carefully at the other points that you have given me a heads up on at least.
I will go ahead then and ... enter the judgment so you can get a copy of that and go ahead and proceed on then with the, with the motion for new trial.

Arguably, the trial court did at least impliedly grant permission to file an amended motion. Assuming that such permission can be granted by implication under these facts, the remaining question is whether it would serve to extend the plenary authority of the trial court. The Texas Supreme Court has held that it does not.

In order for Brookshire to prevail, it must distinguish In re Dickason, 987 S.W.2d 570 (Tex.1998). In that case, the Texas Supreme Court stated that, once the trial court overrules a motion for new trial, the court retains plenary power for another thirty days, and that “[f]iling an amended motion for new trial does not extend the court’s plenary power.” Id. at 571; see also In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding).

Brookshire argues that its position is nonetheless controlled by Rule 329b(e), which provides that, if a timely motion for new trial is filed (and this one was filed within thirty days of judgment), then the court retains plenary power until thirty days after the timely-filed motion is overruled, either by written order or as a matter of law — whichever comes first.

Brookshire argues that Dickason is distinguishable because it does not show that the second motion for new trial was either timely filed or filed with the permission of the court. Under its analysis, the critical distinction is whether the motion was timely filed with permission of the court — and if it was, then Rule 329b(e) leaves plenary power with the trial court until thirty days after that motion is overruled.

That argument is not persuasive. In Dickason, the court would have analyzed the matter substantially differently had it been of the opinion that no timely motion was filed. The opinion is predicated on the assumption that a proper amended motion was before the court — and yet concludes that the plenary time periods are exclusively based on the original motion— not on the amended motion.

We conclude the trial court acted outside the period of its plenary authority over its judgment in granting the motion for new trial. We therefore conditionally grant the writ of mandamus, and direct the trial court to vacate its February 1, 2005, order granting Brookshire a new trial.

The writ will issue only if the trial court fails to comply.

      . Even though Brookshire's motions predated the judgment, under Tex.R. Civ. P. 306c, they became effective on the date of the judgment.

      . We note cases cited by Goss to the effect that an amended motion can only be filed within the thirty-day time frame if a preceding motion has not yet been ruled on. Milam v. Nat'l Ins. Crime Bureau, 989 S.W.2d 126, 129 n. 1 (Tex.App.-San Antonio 1999, no pet.); Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 419 n. 2 (Tex.App.-Amarillo 1995, no writ).


text:
    In the Interest of Daniel R. NAYLOR, II, and Tanna R. Naylor, Children.
    No. 06-04-00046-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 17, 2005.
    Decided March 29, 2005.
    Rehearing Overruled April 26, 2005.

      Richard C. Naylor, Amarillo, for appellant.
    John B. Worley, Rhonda A. Pressley, Appeals & Research MC 038-1, Office of Atty. Gen. (Child Support Division), Austin, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

On February 1, 2002, Richard R. Naylor moved to modify his child support decree. On January 9, 2004, the trial court signed an order reducing Naylor’s monthly child support obligation and applied the modification retroactively to February 1, 2003. Naylor appeals from this order, contending the new order should have retroactively dated back to the date of the sendee of citation. He also contends the new order violates public policy of this State. Naylor further contends the trial court erred in refusing to implement an “agreement” concerning support arrived at between the parties. Finally, he complains of the trial court’s failure to award him attorney’s fees. We affirm the trial court’s judgment.

Naylor’s initial child support obligation was established by an Oklahoma divorce decree in 1996. In 2000, the office of the Attorney General of Texas filed a notice of registration of this order to pay child support and a motion to enforce. Naylor contested the Attorney General’s motion. A hearing was held, and the trial court then signed an order — agreed to by both Naylor and Donna Gail Hamlin, the children’s mother — setting Naylor’s child support at $610.00 per month. It is this order that Naylor then petitioned to modify in February 2002. He contends — and it is not disputed — that this petition was served on Hamlin February 7, 2002. Following this service of citation, Naylor made offers of settlement, which were all ultimately rejected. On January 31, 2003, the Attorney General’s office informed Naylor in writing that no settlement offer would be accepted and that the matter should be set for hearing. The hearing was held September 12, 2003. On January 9, 2004, the trial court signed an “Order on Motion to Modify Support in Suit Affecting the Parent Child Relationship” that reduced the amount of monthly support and made the effective date for the modification February 1, 2003.

In his first point of error, Naylor contends the trial court erred in not retroactively applying the modification back to the time the petition was served. Section 156.401(b) of the Family Code empowers a court to retroactively modify support obligations. Tex. Fam.Code Ann. § 156.401(b) (Vernon Supp.2004-2005); In re J.G.Z., 963 S.W.2d 144, 149 (Tex.App.-Texarkana 1998, no pet.). However, a support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam.Code Ann. § 156.401(b); J.G.Z., 963 S.W.2d at 149.

The effective date of the modified order is within the broad discretion of the trial court. J.G.Z., 963 S.W.2d at 149. In determining whether the trial court erred in awarding retroactive child support, the applicable standard is abuse of discretion. Id. at 146. The test under the abuse of discretion standard is whether the court acted arbitrarily or unreasonably, without reference to any guiding rules and principles. Id. at 146-47.

In this case, no findings of fact or conclusions of law were requested or filed. It is therefore implied the trial court made all the findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). In determining whether some evidence supports the judgment and the implied findings of fact, “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Id. The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id.

Naylor filed the petition to modify child support in February 2002, but a hearing on his petition was not held until September 2003. The Attorney General’s office contends that the trial court’s action was justified because Naylor caused this delay. However, we have not been directed to any place in the record showing the reason for the delay. Petitions such as the one at issue may be set for a hearing at the request of either party or on the trial court’s own initiative. Based on this record, we are unable to attribute the delay in this case solely to Naylor.

Nonetheless, a trial court has broad discretion under the Family Code to set the effective date of the modified order any time after the earlier of the date of service of citation or an appearance by the respondent. In the instant case, the trial court had the broad range of from February 7, 2002, when there was service of citation, to September 12, 2003, the date of the hearing, to apply the modification retroactively. Setting the effective date of the modification back to February 1, 2003, was within the discretionary range provided by statute. Hence, the trial court did not abuse its discretion by acting arbitrarily or unreasonably, but rather, the court acted within the range provided by the Family Code.

The trial court had discretion to either deny, grant, or permit partial relief sought. The court therefore did not err in setting the modification date later than the date the petition was served. Naylor’s first point of error is overruled.

In the second point of error, Nay-lor contends the modification order violates public policy by penalizing efforts to obtain amicable and nonjudicial settlements. Naylor argues he made many efforts to resolve the matter by nonjudicial agreement, but the respondent continued to refuse to sign the agreement. This penalizes the party who made the effort to comply with state policy to enter into an out-of-court settlement.

The settlement offers claimed to have been extended by Naylor, however, are not part of the record; thus, this Court does not have authority to consider them. Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 675 (Tex.App.-Houston [14th Dist.] 1985, writ ref d n.r.e.) (appellate court has no authority to consider matter outside record). Naylor’s second point of error is overruled.

In his third point of error, Naylor contends the trial court erred in refusing to implement an alleged child support modification agreement. The alleged agreement was submitted neither as evidence during the hearing nor through a bill of exception. The alleged agreement therefore is not part of the record. This Court is without authority to review matters outside the record. Id. Naylor’s third point of error is overruled.

Naylor contends in his last point of error the trial court erred in not awarding him attorney’s fees. A party may complain on appeal only when it sought relief from the trial court and the trial court either denied the relief or refused to rule over the party’s objection. TexR.App. P. 33.1(a). At the trial court level, Naylor sought a modification of the prior child support order filed November 14, 2000, and “such other and further relief to which the Petitioner may be justly entitled.” Naylor did not expressly request attorney’s fees at the trial court level. An appellate court cannot award additional relief not sought at the trial court level.

Moreover, under the Family Code, at the conclusion of a Title IV-D case, the trial court may not assess attorney’s fees against the Title IV-D agency. See Tex. Fam.Code Ann. § 231.211(a) (Vernon 2002). “The office of the attorney general is designated as the state’s Title IV-D agency.” Tex Fam.Code Ann. § 231.001 (Vernon 2002). Here, the Attorney General’s office is providing a service to the respondent, who is a custodial parent. Therefore, Naylor is not entitled to attorney’s fees from the Attorney General’s office. Naylor’s fourth point of error is overruled.

We affirm the trial court’s judgment.


text:
    Doug MILLER and Miller Cattle Company, Appellants, v. Jimmy D. McNIEL, Vera Sellers, and Niverado Javalera, Appellees.
    No. 08-03-00188-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2005.

      Ted Hollen, Lago Vista, for appellants. Hal Upchurch, Monahans, for appellees.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the decision of the trial court entering a final judgment finding that one Appellee, is entitled to judgment. For the reasons stated, we affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

This dispute involves responsibility for errors made during a business transaction for the purchase of cattle. Appellant Miller is a rancher who purchases and sells cattle on a frequent basis. During calendar year 2001, he purchased several thousand head of cattle from Appellee Jimmy D. McNiel who functioned as a middle man for a Mexican national, Niverado Javalera, who delivered the cattle to the United States border. In January 2002, Appellee informed Appellant that due to Appellee’s inability to advance funds to the Mexican seller, he would no longer be able to sell cattle to Appellant. Appellant proposed a new financial arrangement agreeing to purchase the cattle directly from Mr. Ja-valera and agreeing to make certain payments in advance as front money for the cattle sales. Appellant and Appellee had a side agreement whereby Appellant agreed to sell some of the Mexican cattle to Ap-pellee for a predetermined price. None of the agreements were in writing.

Vera Sellers, Appellee’s employee, had prepared invoices for payment for the cattle sold by Appellee to Appellant under the 2001 arrangement. Appellant and Appel-lee agreed to allow Vera Sellers, Appellee’s employee, to prepare the daily invoices for the various transactions which were then faxed to Appellant for payment in the same manner as Vera Sellers had been handling the invoices in the past. Sometime during February or March of 2002, the parties agreed that they would split the cost of Vera Sellers’s salary. On March 18, 2002, Vera Sellers prepared an invoice reflecting the purchase of 96 head of cattle by Appellant. The invoice was faxed to Appellant in the routine manner. On March 19, 2002, Vera Sellers prepared another invoice for 312 head of cattle which inadvertently included a duplicate billing for the 96 head of cattle billed in the March 18, 2002 invoice. The error in the invoice, resulted in an overpayment to Niverado Javalera in the amount of $32,935.34.

The procedure established by the parties provided that backup information, which consisted of brokerage sheets and sorting sheets, for the invoices would be faxed by Appellee to Vera Sellers at the end of each day. Vera Sellers would prepare an invoice and fax it to Mrs. Miller and also fax a copy back to Appellee’s fax machine. Appellant would pick up the invoice at Appellee’s office and meet with Javalera. Some payment of funds was made on a daily basis though the record does not clearly describe the procedure followed nor does it describe the details for determining the amount to be paid. Appellant apparently had a very complicated arrangement with Mr. Javalera which required that Appellant pay for some additional costs as well as advance funds for the cattle actually delivered. Neither Ap-pellee nor Ms. Sellers received the proceeds from the sale of the 96 head of cattle, those funds were paid directly to Niverado Javalera. The parties speculate that back-up information for the 96 head of cattle in dispute was faxed on two consecutive days resulting in the fee for the 96 head of cattle being invoiced twice. The invoiced amount was included in a payment to Niverado Javalera in the amount of four hundred two thousand six hundred forty-seven dollars and fifty cents.

After trial to the court, the judge entered a judgment finding that the Appellant had non-suited Vera Sellers, that Appellant should take nothing from Appellee and finding against Niverado Javalera in the amount of $32,935.34. The Appellant appeals from this judgment asserting five issues on review.

II. DISCUSSION

In five issues on review, Appellant complains of the findings of fact and conclusions of law found and filed by the trial court below. Issue Nos. One and Two complain that the trial court erred in finding that there was no evidence or insufficient evidence that “Appellee was negligent in regard to any duty he owed Appellant which proximately caused any Damage to Appellant.” Issue No. Three complains that the trial court erred because there is “no evidence or insufficient evidence to support Trial Court’s finding that Appellant was negligent and such negligence proximately caused Appellant’s Damages [sic].” Issue No. Four complains that the trial court erred because there is “no evidence or insufficient evidence to support Trial Court’s finding that Yera Sellers was negligent and such negligence proximately caused Appellant’s Damages [sic].” In Issue No. Five, Appellant complains that the trial court erred in denying the request for additional findings of fact and conclusions of law.

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref d n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding is factually insufficient or so against the great weight and preponderance as to be manifestly unjust. Id.

An “insufficiency” point invokes a broader standard, requiring this Court to consider all of the evidence and ascertain whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

After a trial to the court, the court entered findings of fact and conclusions of law. The Appellant complains only of the findings related to the negligence of Ap-pellee, Appellant, and Vera Sellers. Finding number VII finds that there was “no evidence that Defendant McNeil [sic] was negligent in regard to any duty he owed Plaintiff which proximately cause[d] any damage to Plaintiff.” Finding number VIII finds there was “insufficient evidence that Defendant McNeil [sic] was negligent in regard to any duty he owed Plaintiff which proximately caused any damage to Plaintiff.” Finding IX finds defendant Sellers negligent in preparation of the invoice. Finding XII finds “Defendant Sellers’s negligence was a proximate cause of Plaintiffs Damages.” Finding XIII finds “Plaintiff’s negligence was a proximate cause of Plaintiffs Damages.”

The court made several other findings which were germane to the entry of a judgment in this case against Appellant but about which Appellant does not complain. Specifically with regard to actionable conduct, the court found that: (X) Vera Sellers was a borrowed employee by Appellant from Appellee, (XI) Sellers’s negligence could not be attributed to Appellee, and (XIV) Sellers’s negligence constituted 40 percent and Appellant’s negligence constituted 60 percent of the negligence which proximately caused Appellant’s damages. None of these findings are challenged on appeal.

Appellant’s pleading originally asserted a cause of action against Appellee and Sellers for fraud and conspiracy to overcharge Appellant. During the trial of the case, Appellant dictated an oral trial amendment claiming a cause of action on the basis of negligence. Appellee did not object to the trial amendment and it was granted by the court. After hearing the testimony of several witnesses including Appellant, Appellee, Mrs. Glenna Miller, (Appellant’s wife), and Vera Sellers, and receiving copies of the relevant documents, the court entered an Order entering judgment against Appellant and in favor of Appellee. The court acknowledged and accepted the non-suit against Vera Sellers filed by Appellant in his letter brief of January 22, 2003.

The evidence at trial was essentially undisputed. Both sides agreed that the parties had an oral agreement governing the purchase and sale of cattle among them. Approximately twenty-two thousand head of cattle were purchased and sold by the parties in a short time frame. The transactions occurred on a daily basis and involved a very informal method of tracking and documenting the sales. It is clear from the evidence that Vera Sellers agreed to prepare invoices for the transactions between Appellant and Niverado Javalera, the seller of the cattle, as an employee of Appellant. Appellant admitted that he paid half her salary and agreed to allow her to perform the service for him of preparing the invoices for payment. It is also clear that Appellant had an extremely informal arrangement with Mr. Javalera that involved daily contacts and negotiations which involved the payment of funds. The exact terms of the agreement was not described but seemed to be subject to change on a daily basis and ultimately often required Appellant to pay funds on behalf of Mr. Javalera to various entities. Appellant is an experienced cattle rancher, well familiar with the buying and selling of cattle, and was dealing in several hundred thousand dollars worth of cattle in a very “frantic” manner yet had no written agreement with any party to the transactions, Appellant admitted that the payment of over four hundred thousand dollars to Mr. Javalera was an estimation of the amount owed based on various invoices and deductions to which Appellant and Mr. Javalera agreed. This payment ostensibly includes the payments for the 96 head of cattle which were double billed.

The parties are not certain how the error occurred but it is admitted by Appellant, Appellee, and Vera Sellers that 96 head of cattle were included in two invoices and, therefore, Appellant was doubled billed for the cattle. Appellant paid Mr. Javalera for the cattle directly, neither Appellee nor Vera Sellers received any proceeds from the transaction.

Based upon the totality of the record presented, there is no evidence to establish exactly why or how Vera Sellers double invoiced Appellant for the 96 head of cattle. Because the court made a finding that Vera Sellers was a borrowed servant of Appellant, and such finding is not challenged on appeal, any negligence in her actions was properly attributed to Appellant. A review of the record also establishes that there is no evidence to establish any negligence on the part of Appellee that caused Vera Sellers to invoice Appellant twice. Further, there is ample evidence in the record that Appellant was negligent in his review and processing of the paperwork and in negotiating the payments to Mr. Javalera. Appellant did not implement additional safeguards to insure that the payments made were for cattle delivered nor did he personally review the back-up documentation available each day prior to paying any invoice. The payments involved daily negotiations between Appellant and Mr. Javalera and in no way involved Appellee. Because of his decisions with regard to the informal manner of processing the paperwork for the cattle, the large number of cattle sold and purchased, and the general environment surrounding the transactions, the court had ample evidence to support its findings.

In sum, there is ample evidence in the record to support the court’s finding that Appellee was not negligent, there is ample evidence in the record to find that Appellant was negligent, and there is ample evidence in the record to establish that Vera Sellers was - negligent and that her negligence should be imputed to Appellant. Accordingly, Issue Nos. One through Four are overruled in their entirety.

In Issue No. Five, Appellant complains of the trial court’s denial of the request for additional findings of fact and conclusions of law. Though Appellant makes a vague reference to this point in his argument, he does not brief the issue. Because the issue is not properly briefed or argued, the point is not preserved for appeal. When a party fails to include any citation of authority or discussion of relevant facts to support its sufficiency contention, “we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred.” Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ). Thus, we consider appellant’s challenge regarding the court’s failure to file additional facts and conclusions of law to be waived. See, e.g., Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d as moot). Issue No. Five is overruled.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.

LARSEN, J., not participating.

      . Appellant has pursued this appeal in the name of himself and Miller Cattle Company. The original action was tried on pleadings filed under Doug Miller individually, though Mr. Miller contended he was pursuing the claim on behalf of the Miller Cattle Company during direct examination. The Order entered by the trial court enters judgment against plaintiff Doug Miller only. Subsequent to the trial, trial counsel filed pleadings in the name of both Doug Miller and Miller Cattle Company. The style of the case is no less confusing when addressing the putative Appellees. Though the style of the case reflects three parties as Appellees, the Appellant as Plaintiff below non-suited Appellee Vera Sellers in a post-trial letter brief. The court recognized the motion in its Order signed on January 23, 2003 which sets out the court’s judgment. That Order also entered a judgment against Niverado Javalera for damages in the case. On May 1, 2003, the court filed Findings of Fact and Conclusions of Law which noted the non-suit of Vera Sellers but found that no proof of service of citation on Niverado Javalera was proven by plaintiff and, therefore, concluded that the judgment as to Niverado Javalera should be set aside and a dismissal entered as to him in this cause of action. No order actually vacating the judgment against Javalera was filed.