author: Justice WRIGHT.

text:
    Larry J. ALLBRITTON, Appellant v. GILLESPIE, ROZEN, TANNER & WATSKY, P.C., Gillespie, Rozen & Watsky, P.C., David K. Watsky, and Hal K. Gillespie, Appellees.
    No. 05-04-00132-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 6, 2005.
    Rehearing Overruled Dec. 16, 2005.

      David W. Shuford, Shuford & Associates, Dallas, for Appellant.
    Richard L. Smith, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION ON MOTION FOR REHEARING

Opinion by

Justice WRIGHT.

Before the Court is appellees’ motion for rehearing. We deny appellees’ motion for rehearing. On the Court’s own motion, we withdraw our opinion dated March 4, 2005 and vacate our judgment of that date. This is now the opinion of the Court.

Larry J. Allbritton appeals from a summary judgment in his legal malpractice action. In two points of error, Allbritton asserts the trial court erred in sustaining appellees’ objections to his expert affidavits and in granting summary judgment. We sustain Allbritton’s points of error and reverse the trial court’s judgment and remand this case to the trial court for proceedings consistent with this opinion.

Background

Appellees represented appellant Allbrit-ton and Doug Barnette in a breach of contract suit against their employer. In preparation for the trial, appellees instructed Allbritton and Barnette to calculate their own damages. Barnette has a financial background. Allbritton’s background is in theology. At trial, Allbritton and Barnette each testified as to his damages. The jury found that their employer had breached both Allbritton’s and Bar-nette’s contracts. Although the jury awarded in excess of $4,000,000 in damages to Barnette, it awarded zero damages to Allbritton.

Allbritton filed this legal malpractice lawsuit against his attorneys. He claimed appellees failed to properly prepare the case for the proper presentation of damages. Allbritton claimed appellees were negligent in failing to hire an expert on damages because Allbritton had no financial background or knowledge of the method for calculating damages.

Appellees filed a traditional and no-evidence motion for summary judgment. Ap-pellees alleged there was no evidence that their alleged negligence was the proximate cause of Allbritton’s alleged damages. In response, Allbritton submitted the affidavits of Michael Jones, an attorney, and Sam Rhodes, a certified public accountant. Appellees moved to strike the Jones affidavit as conclusory. Appellees moved to strike Rhodes’s affidavit on the grounds that it was conclusory and that he was not qualified to give expert testimony in a legal malpractice ease. The trial court granted appellees’ motion to strike the two affidavits as conclusory and granted their motion for summary judgment.

Standard of Review

The standard of review in summary judgment is well-established. Tex.R. Civ. P. 166(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). In reviewing a traditional motion for summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgm’t Co., 690 S.W.2d 546, 548-49 (Tex.1985). To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiffs cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine question of fact. Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmov-ant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833.

Affidavits

A legal malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989). The elements of a legal malpractice claim are (1) the attorney owed a duty to the plaintiff, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiffs injuries, and (4) damages occurred. Id.

Summary-judgment evidence must be presented in a form that would be admissible in a conventional trial proceeding. See Tex.R. Civ. P. 166a(f); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). We apply an abuse-of-discretion standard in reviewing whether a trial court erred in admitting or excluding evidence. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995).

An expert witness’s conclusory statement is insufficient to raise a question of fact to defeat summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.2003). An expert must be qualified and provide a reasoned basis for his opinion. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). Burrow was a legal malpractice action stemming from the representation of plaintiffs in a class action lawsuit that ended in settlement. The expert for the defendant attorneys stated that he had reviewed all the relevant facts and concluded that the clients’ settlements were fair and reasonable. Burrow, 997 S.W.2d at 235-36. The supreme court held the expert’s affidavit was insufficient because he did not state the basis for his opinion. Id. The court characterized the expert’s testimony as “Take my word for it, I know: the settlements were fair and reasonable.” Id.

In another legal malpractice case, the appeals court considered three expert affidavits filed in support of the defendant attorneys’ motion for summary judgment. See Cuyler v. Minns, 60 S.W.3d 209 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). The court reviewed the first affidavit which merely stated that the defendant attorneys did a competent job in representing the plaintiff in the underlying lawsuit. Because the expert failed to provide the basis for his opinion, the court held it was conclusory. Id. at 215. The affidavit of the second expert, however, did set forth the basis for his conclusion that the defendant attorneys provided competent representation to the plaintiff. He stated the defendant attorneys introduced medical bills and called two medical experts to testify to the plaintiffs injuries. He also pointed out that the plaintiffs own credibility was an issue in the trial. The court concluded that this affidavit was sufficient. Id.

Appellees moved for summary judgment on the ground that Allbritton had no evidence that their alleged negligence was the proximate cause of his injuries. Allbritton’s response to the motion for summary judgment included the affidavits of Michael Jones, an attorney, and Sam Rhodes, an accountant. Both Jones and Rhodes stated in their affidavits that appellees’ negligence was the proximate cause of Allbritton’s injuries. Appellees moved to strike the affidavits on the ground that they were conclusory. The trial court agreed and struck the statements regarding proximate cause from both affidavits.

The Jones affidavit states, in pertinent part, as follows:

6. Based upon my review of the documents set forth herein, it is my opinion that the Defendants were retained to represent Larry J. Allbritton in the Underlying Case; that the Defendants had a duty to Larry J. Allbrit-ton in the Underlying Case; that the Defendants breached their duty; that the Defendants were negligent in the representation of Larry J. Allbritton in the Underlying Case; and that the Defendants’ negligence was the proximate cause of damages to Larry J. Allbritton for the following reasons:
f. The Defendants failed to properly prepare the case for presentation of Larry J. Allbritton’s damages.
g. The Defendants failed to retain an expert to evaluate and testify as to the damages of Larry J. Allbritton in the Underlying Case.
h. In reaching the foregoing opinions, I have specifically reviewed the testimony of both Larry J. All-britton and Doug Barnette as to damages in the Underlying Case .... (citations to reporter’s record omitted).
7. Based upon my review, it is my opinion that in the Underlying Case a reasonable and prudent attorney would have retained an expert witness to both calculate and testify as to the damages incurred by Mr. Allbritton for the following reasons:
a. Mr. Allbritton did not have the background or education to calculate his damages or present testimony as to the methodology of calculating his damages.
b. The methodology used to calculate damages was not correct because it was not prepared in a manner consistent with the methodology used by qualified damages experts.
c. Mr. Allbritton was not informed that he should retain a qualified damages expert to present his damages.

In his affidavit, Jones lists the documents he reviewed, including the reporter’s record in the underlying lawsuit and the depositions with exhibits from the present lawsuit. Jones concludes that ap-pellees were negligent in faffing to hire an expert to testify as to Allbritton’s damages and that such negligence was the proximate cause of Albritton’s damages. He provides a reasoned basis for his opinion and lists the documents reviewed in forming his opinion. He explains why an expert was needed on the issue of Allbrit-ton’s damages. We conclude Jones’s affidavit is not conelusory and that the trial court abused its discretion in striking paragraph six of the affidavit.

Turning now to Rhodes’s affidavit, the stricken paragraph of his affidavit states as follows:

5. Based upon my review of the documents set forth herein, it is my opinion that the Defendants’ negligence was the proximate cause of damages to Larry J. Allbritton for the following reasons:
a. Mr. Allbritton did not have the background or education to calculate his damages or present competent testimony as to the methodology and calculation of his damages. The methodology was not consistent with what forensic analysis and experts would present to a court for the reasonableness of damages. Mr. Allbritton calculated his damages to be in excess of $7,000,000.00. A copy of my report properly presenting Mr. Allbritton’s damages to be in the range of $1,115,000.00 to $1,381,000.00 is attached hereto.
b. The growth rate used by Mr. All-britton was not reasonable.
c. The presentation of expenses was improper.
d. Mr. Allbritton did not present a net present value analysis.
e. Mr. Allbritton did not adjust his figures for factors, including his life expectancy, his workforce expectancy, and if he would be employed.

In his affidavit, Rhodes states that he has had over 28 years of experience working with attorneys in litigation matters, including legal malpractice lawsuits. Unlike Jones, Rhodes did not testify as to the standard of care for an attorney or whether the appellees breached that standard.

Like Jones in his affidavit, Rhodes listed the documents he had reviewed in preparing his affidavit. Rhodes explained the correct method for calculating damages and he prepared a report calculating AJ1-britton’s damages using the correct methodology. His explanation of the proper method of calculating damages revealed that Albritton’s testimony as to his own damages was riddled with serious errors. We conclude that Rhodes provides a reasoned basis for the statements in his affidavit and that it is not conclusory.

Appellees also moved to strike Rhodes’s affidavit on the ground that he was not qualified to give expert testimony in a legal malpractice case. Appellees contend that only a lawyer may provide expert testimony in a legal malpractice case. However, sometimes in a legal malpractice case, an attorney’s affidavit alone is not sufficient to establish causation. See Rangel v. Lapin, No. 01-03-00351-CV, 177 S.W.3d 17, 2005 WL 90942 (Tex.App.Houston [1st Dist.] January 13, 2005, pet. denied) (not yet released for publication) (holding that expert testimony in the area of accident reconstruction was needed in addition to attorney’s deposition testimony to defeat summary judgment in a legal malpractice case). Initially, we note that we have held that attorney Jones’s affidavit constituted competent expert testimony on proximate cause. Jones’s affidavit alone was sufficient to defeat appellees’ motion for summary judgment.

Moreover, assuming without deciding that Rhodes’s opinion as to proximate cause was properly excluded, we conclude the trial court erred in striking the entirety of paragraph five which set forth statements within his expertise. See Roberts v. Davis, 160 S.W.3d 256, 260 (Tex.App.-Texarkana 2005, pet. denied) (affidavit should not be stricken even if it contains an erroneous statement where sufficient facts remain in the affidavit to raise a fact question on issues in controversy). The issue in controversy is the presentation of Al-britton’s damages in the underlying lawsuit. Rhodes’s affidavit raises a fact question on that issue and, therefore, the trial court abused its discretion in striking paragraph five of the affidavit.

We conclude the trial court erred in striking the affidavits of Jones and Rhodes and in entering summary judgment for appellees. We sustain Allbritton’s two points of error.

We reverse the trial court’s judgment and remand this cause to the trial court.


source: Caselaw Access Project

author: Justice MAZZANT.

license: Public Domain

text:
    CITY OF CARROLLTON, Texas, Appellant, v. Darlyne HARLAN, Appellee.
    No. 05-05-00594-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 6, 2005.
    Rehearing Overruled Jan. 12, 2006.

      James R. Jordan, Shannon, Gracey, Ratliff & Miller L.L.P., Dallas, for Appellant.
    Douglas T. Floyd, Plano, for Appellee.
    Before Justices O’NEILL, LANG, MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this interlocutory appeal, the City of Carrollton contends the trial judge erred in denying its plea to the jurisdiction. The City contends appellee’s allegations do not fall within any waiver of governmental immunity. We agree. Accordingly, we reverse the judgment of the trial court and dismiss appellee’s claims against the City.

Factual and Procedural Background

Appellee Darlyne Harlan alleges that, on or about July 19, 2004, her house suffered approximately $8,000 in damages when a service crew from the City was servicing the municipal sewage system near her house. She alleges the system was pressurized by unknown means, causing sewage to blow into her house.

At the hearing on the plea to the jurisdiction, the City employee that worked on the sewer line testified that appellee’s house is tied into the sewer main by an 8-inch feeder line. When he arrived to work on the back-up, the main line by appellees house was full of sewage due to an obstruction. The obstruction turned out to be concrete and a water valve. The City crew dug out the obstruction. The employee testified he was not aware of the feeder lines being full, and none of the activities of his crew caused the main line or the feeder lines to be full or to back-up into the appellee’s house.

Appellee sued the City for damages under Tex. Civ. Prac. & Rem.Code Ann. § 101.0215 (Vernon 2005) and pursuant to article 1, section 17 of the Texas Constitution. The City filed a Plea to the Jurisdiction and requested the trial court dismiss on the ground the City was entitled to immunity. The trial court denied the City’s Plea to the Jurisdiction and the City brought this interlocutory appeal. Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2005).

Standard of Review

A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); My-Tech Inc. v. Univ. of N. Tex. Health Sci Ctr. at Fort Worth, 166 S.W.3d 880, 883 (Tex.App.-Dallas 2005, pet. filed). In performing this review, we do not look to the merits of the case, but consider only the pleadings and evidence relevant to the jurisdictional inquiry. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). The plaintiff has the burden to allege facts affirmatively demonstrating the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

Sovereign Immunity

In Texas, a governmental unit is immune from tort liability unless the legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). There is no dispute that the City, as a municipality, is a governmental unit; rather, the question is whether the City’s immunity has been waived so as to allow appellee to proceed with its claims against the City. See Bell v. City of Dallas, 146 S.W.3d 819, 823 (Tex.App.-Dallas 2004, no pet.); City of Dallas v. Reata Const. Corp., 83 S.W.3d 392, 398 (Tex.App.-Dallas 2002), rev’d on other grounds, No. 02-1031, — S.W.3d-, 2004 WL 726906 (Tex. April 2, 2004).

Texas Tort Claims Act

The Texas Tort Claims Act (the “Act”) identifies the categories of tort liability for which the legislature has and has not waived immunity. See generally Tex. Civ. Prac. & Rem.Code Ann. ch.101 (Vernon 2005). A governmental unit’s sovereign immunity is waived to the extent chapter 101 allows, and a person may sue that governmental unit for damages to the extent authorized by that chapter. Id. § 101.025. The Act speaks specifically to a municipality’s liability, pronouncing that a municipality will be hable for its tortious conduct to the extent provided by chapter 101 “for damages arising from its governmental functions.” Id. § 101.0215(a). The legislature has expressly stated that a municipality’s activities with respect to sanitary and storm sewers are governmental functions. Id. § 101.0215(a)(9); City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex.1997); Reata, 83 S.W.3d at 395.

Section 101.021 waives immunity when the plaintiff urges a claim for:

(1) property damage ... proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage ... arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally hable to the claimant according to Texas law.

Tex. Civ. PRAC. & Rem.Code Ann. § 101.021. This subsection does not apply to the claim against the City in this case. Ap-pellee alleged no facts, and presented no evidence at the hearing on the plea to jurisdiction, indicating a motor vehicle or motorized equipment was used by a city employee in a manner that could have caused the damage at issue in this lawsuit. See id. § 101.021(1). To the contrary, the City employee specifically testified that none of the activities of the City employees caused the sewage to back-up into appellee’s house.

Takings Claim

The City does not have governmental immunity from a vahd claim under article 1, section 17 of the Texas Constitution. See Bell, 146 S.W.3d at 825; Dahl v. State, 92 S.W.3d 856, 862 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Gen. Servs. Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex.2001). However, when a plaintiff does not allege a vahd inverse condemnation claim, governmental immunity does apply and the trial court should grant a plea to the jurisdiction. Dahl, 92 S.W.3d at 862; see also Little-Tex, 39 S.W.3d at 599 (affirming grant of plea to the jurisdiction where plaintiff did not allege proper takings claim). Whether particular facts are enough to constitute a taking is a question of law. Little-Tex, 39 S.W.3d at 598.

Further, although cited in the pleadings, appellee has made no attempt to show she alleged a vahd takings claim in this appeal. Specifically, she has directed us to no factual allegations in her petition to establish that (1) the City intentionally performed certain acts, (2) that resulted in a “taking” of property, (3) for pubhc use. Bell, 146 S.W.3d at 825. Nor has our review of the petition revealed any such allegations. To the contrary, from our review of the petition, it is apparent that the property damage was alleged to be caused by neghgent actions; specifically, the City pressurizing the storm sewage system. Consequently, the pleadings affirmatively negate a vahd takings claim. See Bell, 146 S.W.3d at 825; Dahl, 92 S.W.3d at 862; City of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 678 (Tex.App.-Corpus Christi 2004, no pet.); Little-Tex Insulation Co., Inc. v. Gen. Servs. Comm’n, 997 S.W.2d 358, 362 (Tex.App.-Austin 1999), rev'd on other grounds, 39 S.W.3d 591 (Tex.2001).

Conclusion

We conclude appellee has failed to allege facts sufficient to demonstrate the trial court has subject matter jurisdiction. Further, in this case the City filed its Plea to the Jurisdiction on March 7, 2005. Ap-pellee filed a First Amended Petition on March 10, 2005 and a Second Amended Petition on April 12, 2005. If a plaintiff has been provided a reasonable opportunity to amend its pleadings after a governmental entity files its plea to the jurisdiction, and the plaintiffs amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiffs action with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639-40 (Tex.2004). Such a dismissal is with prejudice because a plaintiff should not be permitted to reliti-gate jurisdiction once that issue has been finally determined. Sykes, 136 S.W.3d at 639-40. For the foregoing reasons, we reverse the judgment of the trial court and render judgment dismissing appellee’s claims against the City with prejudice.


author: DAVID GAULTNEY, Justice.

text:
    PROVIDIAN NATIONAL BANK, Appellant, v. Kerri EBARB and George Ebarb, Appellee.
    No. 09-05-008 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 15, 2005.
    Decided Dec. 8, 2005.

      Brian Staley, Hull & Associates, PC, Houston, for appellant.
    Gary H. Gatlin, Jasper, for appellees.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Providian National Bank sued George Ebarb and Kerri Ebarb in April 1999 to recover amounts allegedly owed on a credit card. A month after the suit was filed, the Ebarbs were divorced. The Bank non-suited the defendants, but in 2001 filed suit against them on the same debt. Providian obtained a default judgment against Kerri Ebarb. She did not appeal.

George Ebarb counterclaimed against the Bank for malicious prosecution. After a bench trial, the court awarded $24,000 in damages to George Ebarb and denied the Bank’s claim against George on the debt. The Bank appeals.

In its first issue, the Bank argues the evidence was legally insufficient to support Ebarb’s malicious prosecution claim. In a no-evidence review, we are to “view the evidence in the light favorable to the [fact finding], crediting favorable evidence if [a reasonable factfinder] could, and disregarding contrary evidence unless [a reasonable factfinder] could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). A reviewing court sustains a no-evidence point when the record discloses, for example, there is a complete absence of evidence of a vital fact or the evidence offered to prove a vital fact is no more than a mere scintilla. See City of Keller, 168 S.W.3d at 810-11, 813-14; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

In a suit alleging the malicious prosecution of a civil claim, the plaintiff must establish the following elements:

(1) the institution or continuation of civil proceedings against the plaintiff;
(2) by or at the insistence of the defendant;
(3) malice in the commencement of the proceedings;
(4) lack of probable cause for the proceeding;
(5) termination of the proceeding in plaintiffs favor; and
(6) special damages.

Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex.1996). The requirement of special damages assures parties the right to access the judicial system without fear of intimidation arising from a countersuit for malicious prosecution. N.T. Dev., Inc. v. Petersen, 79 S.W.3d 230, 234 (Tex.App.Fort Worth 2002, pet. denied). The Texas Supreme Court has held there “must be some physical interference with a party’s person or property in the form of an arrest, attachment, injunction, or sequestration” to satisfy this element of the claim. Texas Beef Cattle Co., 921 S.W.2d at 209.

The testimony on damages was as follows:

Q. [Bank’s attorney]. And then during that first lawsuit were any of your bank accounts ever attached and then seized by my client?
A. [George Ebarb], No.
Q. Did we obtain any injunctions against you?
A. No.
Q. Did my client obtain a receiver, put you in a receivership?
A. No.
Q. [Ebarb’s attorney]. [T]hey did report on your credit, though, that—to credit agencies that you owed Providi-an over $4,000, didn’t they?
A. [Ebarb], Oh, yes, that’s true.

The reference to a report to credit agencies does not describe any interference with Ebarb’s person or property that falls within the strict definition of “special damages.” See Texas Beef Cattle Co., 921 S.W.2d at 209. Furthermore, no evidence was presented of any harm George Ebarb may have suffered. The Bank’s challenge to the legal sufficiency of the evidence is sustained. We reverse the judgment rendered in favor of George Ebarb on the malicious prosecution claim and render judgment that he take nothing. We need not address issues two and three, as those issues would afford the appellant no greater relief.

In issue four the Bank challenges the legal sufficiency of the evidence to support the trial court’s adverse finding on the Bank’s claim. (1) Having the burden of proof at trial, the Bank must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of its claim that George Ebarb is personally hable for the debt. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)).

The Bank did not present evidence that George Ebarb signed any document making him personally hable on the account. His signature was not on the application for credit. Instead, the Bank rehed on evidence that George was “listed secondary” by the Bank on the account, and both spouses’ names were on the credit card and the monthly statement issued by the Bank. There is also evidence George Ebarb became aware of the debt and made some payments on it. The billing was sent to the address where George and Kerri resided while married. However, when Providian’s representative was asked at trial if there was any documentation “saying George Ebarb ever requested any credit be extended” to him, the representative replied “No.”

Providian argues George Ebarb’s subsequent awareness of the debt and payment of some of the monthly bills establish his liability, although there is no contract or other evidence setting out the agreement and responsibilities of the parties, no evidence Kerri was acting as George’s agent, and no evidence George agreed to be responsible for the debt. The Bank argues the evidence nevertheless establishes George’s ratification of the debt. Ratification requires: “(1) approval by act, word, or conduct; (2) with full knowledge of the facts of the earlier act; and (3) with the intention of giving validity to the earlier act.” Gibson v. Bostick Roofing & Sheet Metal, 148 S.W.3d 482, 492 (Tex.App.-El Paso 2004, no pet.). Ratification may occur when a person retains the benefits of a transaction after acquiring full knowledge. Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325 at 343 (Tex.App.-Fort Worth 2003, pet. denied). Largely a matter of intent, ratification may be inferred by a party’s course of conduct and need not be shown by express word or deed. Miller, 142 S.W.3d at 342-43; Eikon King Street Manager, L.L.C. v. LSF King Street Manager, L.L.C., 109 S.W.3d 762, 768 (Tex.App.-Dallas 2003, pet. denied).

As factfinder in this bench trial, the trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. When asked whether he knew anything about the debt of almost $4,500, George testified, “No. I didn’t know things were that bad, no.” There is no evidence he personally benefitted from or used the credit card. He testified part of the “divorce problems” involved financial problems created by Kerri. George indicated that at the time he “was married” and “was trying to help things out at the house and pay bills and try to be responsible and help.” The trial judge reasonably may have concluded George’s subsequent awareness of the credit card account and payment of some of the monthly bills did not establish his approval, full knowledge, or intent to assume personal liability for the debt Kerri had incurred. The Bank asks this Court to reverse the trial court’s finding and render judgment that George Ebarb is personally liable for the entire amount of the debt. Based on the sparse record before us, we cannot conclude the Bank established ratification or its entitlement to that judgment as a matter of law. Issue four is overruled.

In issue five, the Bank argues the trial court erred in applying Tex. Fam.Code ÁNN. § 3.201 (Vernon 1998). Section 3.201 governs a person’s liability for the acts of his or her spouse and provides as follows:

(a) A person is personally liable for the acts of the person’s spouse only if:
(1) the spouse acts as an agent for the person; or
(2) the spouse incurs a debt for necessaries as provided by Subchapter F, Chapter 2.
(b) Except as provided by this subchap-ter, community property is not subject to a liability that arises from an act of a spouse.
(c) A spouse does not act as an agent for the other spouse solely because of the marriage relationship.

Tex. Fam.Code Ann. § 3.201 (Vernon 1998)(footnote omitted). In applying section 3.201, the trial court concluded under the circumstances George was not liable for Kerri’s acts in incurring the debt with the Bank. Asserting error in applying the statute, the Bank relies on Cockerham v. Cockerham, 527 S.W.2d 162, 171 (Tex.1975), and argues there is a presumption that debts incurred during marriage are “community debts” unless the creditor agreed to look solely to the contracting spouse’s separate estate for satisfaction of the debt. See also Sprick v. Sprick, 25 S.W.3d 7, 13 (Tex.App.-El Paso 1999, pet. denied); Morris v. Morris, 894 S.W.2d 859, 863 (Tex.App.-Fort Worth 1995, no writ). However, that argument does not answer the question of whether a spouse is personally liable under section 3.201 on a particular debt. Subsequent to the holding in Cockerham, the Legislature amended the Family Code by adding former Tex. Fam.Code Ann. § 4.031, now Tex. FaM.Code Ann. § 3.201 (Vernon 1998). See also Tex. FaM.Code Ann. § 3.202 (Vernon 1998) (rules of marital property liability); Patel v. Kuciemba, 82 S.W.3d 589, 595 (Tex.App.-Corpus Christi 2002, pet. denied); Nelson v. Citizens Bank & Trust Co. of Baytown, Texas, 881 S.W.2d 128, 130-31 (Tex.App.-Houston [1st Dist.] 1994, no writ). The trial court properly looked to the provisions of that statute to determine whether George Ebarb was liable for the debt incurred by Kerri.

The Bank argues, regardless of section 3.201, community property is reachable by creditors under section 3.202. See Tex. Fam.Code Ann. § 3.202 (Vernon 1998). The two sections of the Family Code relate to two distinct liability concepts. Section 3.201 governs a spouse’s personal liability for the acts of his or her spouse, and section 3.202 sets out rules of marital property liability. However, we disagree that section 3.202 controls the claim here regardless of section 3.201. This is a suit in which the Bank sought to hold George Ebarb personally liable on the debt. The Bank was not attempting to take community property to satisfy the judgment against Kerri. The trial court found the Bank failed to establish George Ebarb is personally liable for the debt, either through Kerri’s acts or through his own acts. We see no error in the trial court’s application of section 3.201 based on the pleadings and evidence presented in this case. Issue five is overruled.

We reverse and render judgment that George Ebarb take nothing on his claim against Providian National Bank. We affirm the trial court’s judgment that Provi-dian National Bank take nothing on its claim against George Ebarb.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . Since the Bank requests a rendition, rather than a remand for a new trial, we interpret issue four as a legal sufficiency issue, though the standard of review the Bank suggests we use is for factual sufficiency review.


author: Justice MOSELEY.

text:
    REED ELSEVIER, INC. d/b/a Lexis Nexis, Appellant v. CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, County of Dallas, and City of Farmers Branch, Appellees.
    No. 05-04-00821-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 12, 2005.

      Bryan P. Neal, Thompson & Knight, P.C., Dallas, for Appellant.
    Daniel K. Bearden, Dallas, Gregg M. McLaughlin, Perdue, Brandon, Fielder, Collins & Mott, L.L.P., Arlington, and Edward Lopez, Jr. and Shelia Fuqua Carter, Linebarger Goggan Blair <& Sampson, LLP., Dallas, for Appellees.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion by

Justice MOSELEY.

Reed Elsevier, Inc. d/b/a Lexis Nexis brings a restricted appeal from a default judgment in favor of Carrollton-Farmers Branch Independent School District (CFBISD), County of Dallas, and City of Farmers Branch for delinquent property taxes. Reed Elsevier contends there is fatal error shown on the face of the return of service. Reed Elsevier argues service of process was defective because the return does not identify the person served as an agent of its corporate registered agent. We agree and we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

I. Factual and Procedural Background

In its original petition for delinquent ad valorem taxes, CFBISD described defendant as follows:

Reed Elsevier, Inc. d/b/a Lexis Nexis Successor in Interest to Courtlink Corporation d/b/a JusticeLink,
by serving Registered Agent, Lexis Document Services, Inc., at:
3610-2 Josey Lane, Suite #223 Car-rollton, TX 75007

The citation for personal service is addressed to the same above description and address for defendant. The return of service indicates service was completed by “delivering to the within named Reed El-sevier Inc DBA Lexis Nexis Successor in Interest to Courtlink Corporation DBA JusticeLink By delivering to Reg Agent Lexis Document Services Inc By delivering to Danielle Smith.”

Reed Elsevier did not file an answer or appear in court and a default judgment was signed on December 3, 2003. Reed Elsevier filed a notice of restricted appeal, with a motion for extension of time to file restricted appeal, on June 16, 2004. Appellant’s motion for extension was granted by this Court, and its restricted appeal deemed timely.

II. Restricted Appeal

A restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party; (3) who did not participate in the trial; and (4) the error complained of must be apparent on the face of the record. Tex. RsApp. P. 26.1(c), 30; Sutton v. Hisaw & Assocs. Gen. Contractors, Inc., 65 S.W.3d 281, 284 (Tex.App.-Dallas 2001, pet. denied). For purposes of a restricted appeal, the face of the record consists of all the papers on file before the judgment as well as any reporter’s record. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). In this case, the first three elements of a restricted appeal are not contested. Rather the dispute concerns whether there is error on the face of the record.

III. Applicable Law on Service of Process

A default judgment cannot withstand direct attack by a defendant who complains he was not served in strict compliance with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990). In a direct attack on a default judgment, there are no presumptions in favor of valid issuance, service, and return of citation. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam). The return of service has long been considered prima facie evidence of the facts recited therein. Id. at 152. In a restricted appeal, defective service of process constitutes error apparent on the face of the record. See id. at 153.

A domestic or foreign corporation authorized to transact business in Texas may be served with process through its president, any vice president, or its registered agent. See Tex. Bus. Corp. Act Ann. Arts. 2.11, 8.10 (Vernon 1980). A corporation may act as the registered agent for another domestic or foreign corporation. See Tex. Bus. Corp. Act Ann. Art. 2.09 (Vernon Supp.2004-05), Art. 8.08 (Vernon 1980). Although a corporation may act as the registered agent for another corporation, a corporation is not a person capable of accepting process, and must be served through its agents. See All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 727 (Tex.App.-Fort Worth 2003, no pet.). The record must show whether the person served was in fact such an agent for the corporation acting as the registered agent. See Nat’l. Med. Enter. of Texas, Inc. v. Wedman 676 S.W.2d 712, 715 (Tex.App.-El Paso 1984, no writ) (holding domestic corporate defendant was properly served where return identified person served with citation as registered agent for defendant’s corporate registered agent); White Motor Co. v. Lo-den, 373 S.W.2d 863, 865 (Tex.Civ.App.-Dallas 1963, no writ) (holding record did not show person served with citation was authorized agent for accepting service for corporate registered agent for foreign corporation defendant).

IV. Discussion

In this case, the return does not indicate the capacity of “Danielle Smith” or why she was served with process. Her name is handwritten on the face of the citation without designation of her status with Lexis Document Services, Inc. The return merely recites service “[b]y delivering to Danielle Smith,” without explaining her authority to receive service. Neither the return nor any other portion of the record designates her authority to receive service on behalf of Reed Elsevier’s registered agent. Without indication of her capacity to receive service on the face of the record, the granting of the default judgment was improper. See Primate Constr. Inc., 884 S.W.2d at 153; see also Nat’l. Med. Enter. of Texas, Inc., 676 S.W.2d at 715; White Motor Co., 373 S.W.2d at 865.

Y. Conclusion

Having determined there is error on the face of the record regarding proper service on Reed Elsevier’s registered agent, we find the trial court lacked jurisdiction to enter the default judgment against Reed Elsevier. Finding this error dispositive of this appeal, we do not need to address appellant’s remaining issues. See Tex. R.App. P. 47.1. We reverse the trial court’s judgment and remand this case for further proceedings.

      . There is no reporter's record in this appeal. On the face of clerk’s record, we can not tell whether Reed Elsevier and its registered agent Lexis Document Services, Inc. are domestic or foreign corporations. However, such status is not critical to our resolution of this restricted appeal. Cf. Infra-Pak (Dallas), Inc. v. Narmour, 852 S.W.2d 565, 567 (Tex.App.-Dallas 1992, no writ) (concluding in regular appeal no distinction between proof of proper service on a foreign and a domestic corporation).


author: Justice LANG.

text:
    Martin PEREZ, Appellant v. CITY OF DALLAS, Appellee.
    No. 05-05-00205-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 13, 2005.

      Daniel P. Clark, Law Office of Daniel P. Clark, P.C., Dallas, for appellant.
    Patricia Medrano, Assistant City Attorney, Dallas, for appellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice LANG.

Martin Perez sued the City of Dallas under a theory of premises liability for injuries he sustained when he fell from the bed of his truck into an open pit at a trash transfer station owned and operated by the City. The trial court granted the City of Dallas’s plea to the jurisdiction where it claimed sovereign immunity and dismissed Perez’s claim against the City. In four points on appeal, Perez contends the trial court erred in granting the City’s plea to the jurisdiction, asserting that the City’s sovereign immunity was waived because the City’s trash disposal pit was an unreasonably dangerous condition, i.e., it constituted a premises defect. We decide Perez’s points against him and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2002, Perez drove his truck to the Northwest (Bachman) Transfer Station to dispose of his personal trash. The Bachman Transfer Station, which is owned and operated by the City of Dallas, is an enclosed location for disposing of trash. Upon demonstrating to a City employee that he was a resident of Dallas, Perez was directed by the City employee where to park in order to deposit his trash. He backed his truck up to the edge of the concrete pit where trash is deposited, climbed into the bed of the truck, and began unloading his trash. While unloading his truck, Perez fell from the bed of his truck into the concrete pit. He fractured his wrist and suffered a comminuted fracture to his right ankle.

Perez brought this suit against the City claiming in his original and amended petitions that the cause of his injuries was a premises defect at the transfer station. He asserts that his pleadings and evidence submitted in response to the City’s plea to the jurisdiction reflect a waiver of sovereign immunity by the City based on the alleged premises defect and that he has met his burden to create at least a fact question as to the trial court’s jurisdiction. In particular, he asserts in his petitions that the alleged premises defect is a “drop-off” of seven to eight feet at the open trash pit, which was not protected by a guardrail, which he states Dallas Building Code section 1716 required, coupled with directions for use of the pit given to him by the City’s employee, in accordance with City policy.

The City filed a plea to the jurisdiction, claiming sovereign immunity. The City challenged the existence of jurisdictional facts, contending that Perez had not pled a premises defect, or in the alternative, that the City’s facility, its design, and any limitations on its use fall within the discretionary function exception to waiver of immunity pursuant to section 101.056 of the Texas Civil Practice and Remedies Code. Evidence was submitted by both parties to support their respective positions. Perez appealed after the trial court granted the City’s plea.

II. STANDARD OF REVIEW

A plea to jurisdiction contests a trial court’s subject matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 348 (Tex.App.-Dallas 2004, pet. denied). The purpose of the plea “is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs’ claims should never be reached.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a court has subject matter jurisdiction is a matter of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Dallas County v. Wadley, 168 S.W.3d 373, 376 (Tex.App.-Dallas 2005, pet. denied). Accordingly, we review a challenge to the trial court’s subject matter jurisdiction de novo. Thompson v. City of Dallas, 167 S.W.3d 571, 574 (Tex.App.-Dallas 2005, pet. filed) (quoting Miranda, 133 S.W.3d at 228); Benefit Realty Corp., 141 S.W.3d at 348.

In Miranda^ the Texas Supreme Court identified the regimen courts are to follow in analyzing whether a plea to the jurisdiction should be granted. See Miranda, 133 S.W.3d at 226-27. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id.; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). “However, if the plea to the juris diction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” Miranda, 133 S.W.3d at 227; see Bland, 34 S.W.3d at 555 (confining the evidentiary review to evidence that is relevant to the jurisdictional issue). “If-the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Miranda, 133 S.W.3d at 227. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id.

III. APPLICABLE LAW

A. Premises Liability and Sovereign Immunity

In Texas, sovereign immunity deprives a tidal court of subject matter jurisdiction for lawsuits against the State or other governmental units unless the State consents to suit. Miranda, 133 S.W.3d at 224; Wadley, 168 S.W.3d at 376. The sovereign immunity of the State also applies to the benefit of a municipality to the extent the municipality engages in the exercise of governmental functions. See City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997). The Texas Tort Claims Act provides for waiver of sovereign immunity, including immunity from lawsuit, under limited circumstances. Miranda, 133 S.W.3d at 224; see Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 2005). Thus, as a political subdivision of the State, the City of Dallas is immune from suit except to the extent its immunity is waived under the Act.

The Tort Claims Act expressly waives sovereign immunity in three areas: (1) property damage and personal injury caused by the use of publicly owned automobiles (section 101.021(1)); (2) personal injury caused by a condition or use of tangible personal or real property (section 101.021(2)); and (3) claims arising out of premises defects (section 101.022). Wadley, 168 S.W.3d at 376; see Miranda, 133 S.W.3d at 225. Under the Texas Tort Claims Act, sovereign immunity is waived for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would be liable to the claimant according to Texas law if it were a private person. Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(2). Liability for premises defects is implied under section 101.021(2) because a premises defect arises from a condition existing on real property. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.); Lamar Univ. v. Doe, 971 S.W.2d 191, 195 (Tex.App.-Beaumont 1998, no pet.). If the condition of real property giving rise to the waiver of immunity is a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property. Tex. Civ. PRAC. & Rem.Code Ann. § 101.022(a). However, if the claimant pays for the use of the premises, the limitation of duty under section 101.022 does not apply and the governmental entity owes the claimant the duty owed to an invitee. See id. The duty to an invitee “requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.” State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

The Texas Tort Claims Act creates certain exceptions to the waiver of sovereign immunity. Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on: “(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) the governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.” Tex. Civ. Peao. & Rem. Code AnN. § 101.056. This latter provision is commonly referred to as the “discretionary function” exception. See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994).

The discretionary function exception to waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. Mitchell, 855 S.W.2d at 745; see also State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979). The “ ‘[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions.’ ” Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999)). Designs for a budding or other municipal premises are discretionary and therefore immunity from liability applies. Mitchell, 855 S.W.2d at 745. Additionally, decisions regarding the installation of safety features are discretionary decisions for which a governmental entity may not be sued. See, e.g., Ramirez, 74 S.W.3d at 867; State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999).

While a governmental entity is immune from liability if an injury results from the formation of policy, a governmental entity is not, however, immune if an injury is caused by the negligent implementation of that policy. Mitchell, 855 S.W.2d at 745; see also Terrell, 588 S.W.2d at 787-788. Thus, sovereign immunity is preserved for even negligent discretionary formulation of policy, but not for the negligent implementation of the policy at the operational level. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995); Terrell, 588 S.W.2d at 787-788; Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, rule 53.7(f) mot. for extension of time granted). However, the negligent implementation theory of liability does not itself waive immunity. See Pitonyak, 84 S.W.3d at 342; City of Orange v. Jackson, 927 S.W.2d 784, 786 (Tex.App.-Beaumont 1996, no writ). A plaintiff must first establish a waiver of immunity under some other provision of the Texas Tort Claims Act before he can invoke a claim of negligent implementation. See Pitonyak, 84 S.W.3d at 342; Jackson, 927 S.W.2d at 786. Finally, “a governmental entity’s right of sovereign immunity is [not] waived by the negligent implementation of policy ... if the death or injury involved did not arise from the use or condition of tangible personal property or from the operation or use of a motor-driven vehicle.” Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bruen, 92 S.W.3d 24, 28 (Tex.App.-San Antonio 2002, pet. denied) (quoting Jackson, 927 S.W.2d at 786); see Tex. Civ. PRAC. & Rem.Code ANN. § 101.021(1)(A).

B. Statutory Construction

Because Perez argues that section 1716 of the 1973 Dallas Building Code applies to the transfer station and the City disputes that it applies, we must address the rules of interpretation for municipal ordinances. The same rules apply to the construction of municipal ordinances that apply to the construction of statutes. Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (1958); Seawall East Townhomes Ass’n, Inc. v. City of Galveston, 879 S.W.2d 363, 364 (Tex.App.-Houston [14th Dist.] 1994, no writ). Matters of statutory construction are legal questions. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). Therefore, we review the issue de novo. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003).

Where the construction of municipal ordinances is involved, the primary duty of this Court is to carry out the intentions of the municipal legislative body. Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex.1962). In doing so, we look first to the plain meaning of the words of the provisions. Bd. of Adjustment of the City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex.2002); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex.1998); Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223 (Tex.App.-Dallas 2005, no pet.). If the statutory language is unambiguous, we must adopt the interpretation supported by the plain language of the provision unless that interpretation would lead to absurd results. See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004); Fitzgerald, 996 S.W.2d at 865; see also Tune v. Dep’t of Pub. Safety, 23 S.W.3d 358, 363 (Tex.2000) (“We must enforce the plain meaning of an unambiguous statute.”); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (“Unless a statute is ambiguous, we must follow the clear language of the statute.”); Fenet v. McCuistion, 105 Tex. 299, 147 S.W. 867, 869 (1912) (holding that we adopt the construction that avoids absurd results).

If a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity. Fitzgerald, 996 S.W.2d at 866. When interpreting a statute or municipal ordinance, we read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). Words are given their ordinary meaning. See Fitzgerald, 996 S.W.2d at 866; Jones v. Fowler, 969 S.W.2d 429, 431 (Tex.1998); Garrison Contractors, 966 S.W.2d at 484; see also In re BACALA, 982 S.W.2d 371, 380 (Tex.1998) (discussing interpretation of civil statutes). Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not considered vague and indefinite. One Thousand Four Hundred Sixty Two Dollars in U.S. Currency and One 1982 Buick v. State, 774 S.W.2d 17, 20-21 (Tex.App.-Dallas 1989, writ denied) (citing Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App.1978)). Legal or other well-accepted dictionaries are a method of determining the ordinary meaning of certain words. See Pratt-Shaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 833 (Tex.App.-Dallas 2003, pet. denied); Rivas v. State, 787 S.W.2d 113, 115 (Tex.App.-Dallas 1990, no pet.); Corpus Christi v. Bayfront Assocs., 814 S.W.2d 98, 104 (Tex.App.-Corpus Christi 1991, writ denied).

IV. DISCUSSION AND ANALYSIS

In this case, Perez alleges in his second amended petition that the City’s sovereign immunity was waived because the unguarded trash disposal pit is a premises defect. The transfer station disposal location of which Perez complains in his second amended petition is an open pit with a drop-off of seven to eight feet, which is not protected by a guardrail. He argues that the unguarded pit, along with the requirements imposed on his use of the premises by the City’s operational policies and the directions given to him by the employees of the transfer station, constituted an unreasonably dangerous condition, of which the City was aware, and which caused his injuries. Perez further alleges that the placement of a guardrail at the disposal pit was required by section 1716 of the 1973 City of Dallas Building Code and the failure to comply with section 1716 removes the City’s design decision regarding the transfer station from the discretionary function exception. In its plea and here, the City contends that Perez failed to adequately plead or submit any evidence of a waiver of immunity from suit for a premises liability claim under the Texas Tort Claims Act. The City asserts that no premises defect has been alleged which falls within the Texas Tort Claims Act. Moreover, even if a premises defect was successfully alleged, the design of the pit is within the discretionary function exception, an exception to waiver of sovereign immunity. We agree with the City that immunity from suit is not waived and that the trial court did not err in granting the plea to the jurisdiction.

In this case, the City challenges the pleadings by contending that Perez did not plead a premises defect claim. Under the analytical framework articulated in Miranda, we must determine whether the pleader has alleged facts affirmatively demonstrating the trial court’s jurisdiction over the matter when a plea to the jurisdiction challenges the pleadings. See Miranda, 133 S.W.3d at 226. However, evidence submitted by both Perez and the City was before the trial court when the plea to the jurisdiction was granted. Specifically, the City offered evidence to support its contention that no jurisdictional facts existed. Accordingly, we proceed to the next step directed, by Miranda, to consider the relevant evidence submitted by the parties as necessary to resolve the issues raised regarding the existence of jurisdictional facts. Id. at 227. In doing so, we must determine whether the evidence creates a fact question regarding the jurisdictional issue. Based on our review of the pleadings and the evidence presented by the parties, we conclude it does not.

We need not decide whether the trash pit without guardrails is a premises defect since the alleged defect relates to the design of the transfer station. Design decisions by the City are discretionary under section 101.056. See Tex. Civ. Prao. & Rem.Code Ann. § 101.056; see also Ramirez, 74 S.W.3d at 867; Rodriguez, 985 S.W.2d at 85; Mitchell, 855 S.W.2d at 745. Thus, under section 101.056, unless the City was required by law to have guardrails around the pit, the City’s discretionary decision regarding the design of the pit cannot be the basis for a claim of waiver of sovereign immunity. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.056.

In an attempt to overcome the discretionary function exception, Perez claims that section 1716 of the 1973 City of Dallas Building Code requires the City to have guardrails around the pit. Under section 1716,

All unenclosed floor and roof openings, open and glazed sides of landings and ramps, balconies and porches which are more than 30 inches above grade or floor below, and roofs used for other than service of the building, shall be protected by a guardrail. Guardrails shall be not less than 42 inches in height. Open guardrail and stair railings shall have intermediate rails or an ornamental pattern such that a sphere 9 inches in diameter cannot pass through. The height of stair railings on open sides may be as specified in Section 3305(1) in lieu of providing a guardrail. Ramps shall, in addition, have handrails when required by Section 3306. EXCEPTION: Guardrails need not be provided on the loading side of loading docks.

It is Perez’s position that the requirement of a guardrail contained in section 1716 constitutes an act that the City was required to perform under section 101.056 of the Tort Claims Act. He urges this Court to determine that the exception for loading docks is inapplicable to the pit at the transfer station because, according to Perez, the pit does not conform with the common purposes and functions of a loading dock, which he claims are to provide for the easy crossing, back and forth, of men, machines, or materials between a building and the loading surface of a truck or rail-car.

The City contends that section 1716 does not apply to the transfer station because the transfer station is an enclosed location which does not fall within any of the terms mentioned in section 1716. The City notes that, by its own terms, section 1716 applies to “unenclosed floor and roof openings, open and glazed sides of landings and ramps, balconies and porches.” Furthermore, the City contends that even if section 1716 does apply to the transfer station, the exception for loading docks also applies, and there is no dispute that the side of the pit was for unloading trash.

Our construction of section 1716 need not address whether it applies to the “enclosed” premises at the transfer station. Rather, we need only address whether the exception for “loading docks” applies to the City’s facility. Construction of section 1716 is a legal matter. See Dallas Morning News, 22 S.W.3d at 357. Accordingly, because section 1716 is unambiguous, we construe the term “loading dock” according to its plain meaning. See Fitzgerald, 996 S.W.2d at 865; Walton, 156 S.W.3d at 224.

While the term “loading dock” is not defined in section 1716, the plain meaning of the words “loading dock” in section 1716 indicates a place where things are loaded or unloaded. Specifically, the term “load” is defined by Webster’s Dictionary as “[t]o put a load in or on.” WebsteR’s ThiRD Int’l Dictionary 1325 (1981); see also Pratt-Shaw, 122 S.W.3d at 833; Rivas, 787 S.W.2d at 115 (both stating that legal or other well-accepted dictionaries are a method of determining the ordinary meaning of certain words). The definition of a “dock” includes “a place for the loading or unloading of materials (as from ships or carts) or for their storage.” Webster’s Third Int’l Dictionary 669; see also Pratt-Shaw, 122 S.W.3d at 833; Rivas, 787 S.W.2d at 115. “Unloading” is the very act in which Perez was engaged at the time his injuries occurred. Even if section 1716 were to apply here generally, Perez has not articulated a convincing reason why the loading dock exception does not exclude the transfer station from the guardrail requirement. Nevertheless, we conclude that, even if section 1716 were applicable, the exception excludes the premises in question and section 1716 does not require guardrails on the premises where Perez was injured. Accordingly, the design for the premises in question is a discretionary act and sovereign immunity has not been waived for even an alleged premises defect under the Texas Tort Claims Act.

Perez also claims that the directions given by the City employees at the transfer station regarding his use of the trash pit amount to negligent implementation of policy and do not qualify for immunity. We disagree.

The negligent implementation of policy theory does not itself waive sovereign immunity. Waiver of immunity must be demonstrated under some provision of the Texas Tort Claims Act before a claim of negligent implementation of policy can be invoked. See Pitonyak, 84 S.W.3d at 342; Jackson, 927 S.W.2d at 786. Additionally, “[a] governmental entity’s right of sovereign immunity is [not] waived by the negligent implementation of policy ... if the death or injury involved did not arise from the use or condition of tangible personal property or from the operation or use of a motor-driven vehicle.” Bruen, 92 S.W.3d at 28; Jackson, 927 S.W.2d at 786-87 (emphasis added); see Tex. Civ. Prao. & Rem. Code Ann. § 101.021(1)(A). Because waiver of immunity has not been demonstrated under a provision of the Texas Tort Claims Act and because Perez’s alleged negligent implementation claim did not arise from the use or condition of tangible personal property or the operation or use of a motor-driven vehicle, Perez’s claim of negligent implementation of policy is unavailing.

Perez has raised and combined separate recognized legal propositions to support his claim of waiver of sovereign immunity: a premises defect due to the absence of a guardrail around an open garbage pit and negligent implementation of policy due to allegedly faulty directions given by City employees, pursuant to City policy. Whether we analyze these propositions individually or in combination, we conclude no fact question is raised as to the jurisdictional issue by Perez’s amended petition or by the evidence submitted. Immunity from liability has not been waived. We decide Perez’s points against him.

V. CONCLUSION

Perez’s allegations fail to establish a waiver of sovereign immunity. We decide Perez’s points against him and affirm the trial court’s order of dismissal.


text:
    William A. BOOTHE, M.D., Individually and d/b/a Boothe Eye Care & Laser Center, Appellant v. Joe DIXON, Appellee.
    No. 05-04-01260-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 13, 2005.

      Carol Elaine Davis, Edward P. Quillin, Quillin Law Firm, P.C., Dallas, for appellant.
    Robert C. Sullivan, Jr., Tracey Edward Gajak, Sullivan Parker & Cook, Kent Frank Brooks, Law Office of Kent F. Brooks, Dallas, for appellee.
    Before Justices WRIGHT, MOSELEY, and LANG.
   OPINION

Opinion by

Justice MOSELEY.

In a single issue, William A Boothe, M.D., individually and d/b/a Boothe Eye Care and Laser Center, challenges the trial court’s order denying Boothe’s motion to dismiss and motion for summary judgment on grounds that Joe Dixon failed to comply with the expert report requirements of section 74.351(b) of the civil practice and remedies code. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(b) (Vernon Supp.2005). Because we conclude that Dixon’s claims are “health care liability claims” making them subject to section 74.351(b), we resolve Boothe’s issue in his favor, reverse the trial court’s order, render judgment dismissing Dixon’s claims with prejudice, and remand this case solely for a determination of reasonable attorney’s fees and costs of court incurred by Boothe.

I. FACTUAL AND PROCEDURAL BACKGROUND

Based on Dixon’s allegations, Dixon sought treatment for his vision from Boothe and underwent laser eye surgery in July 2001. His eyesight improved, but “then dramatically deteriorated.” Dixon contacted Boothe, who told Dixon that he needed “touch up” surgery. Boothe performed another laser surgery, after which Dixon’s vision did not significantly improve and “began further deterioration.” Dixon reported this result to Boothe, who told Dixon a new procedure called “custom abrasion” would be approved within the next year and that this surgery would solve Dixon’s problems. Boothe told Dixon he would be an “ideal candidate” for custom abrasion and he would refund Dixon’s money on the two previous surgeries. Based on Boothe’s representations that custom abrasion would be available and would solve Dixon’s problems, Dixon and his wife executed a “Release of All Claims” in November 2002. In April 2003, Dixon contacted Boothe’s office, but was informed that Boothe did not see patients after one year. Subsequently, Dixon learned that he was not a candidate for the initial surgery or the touch up surgery and, as a result of the two surgeries, he was not a candidate for custom abrasion.

In his first amended petition, Dixon asserted claims for fraud, breach of fiduciary duty, and violation of the DTPA. As to the fraud claim, Dixon alleged Boothe made material representations to Dixon to induce him into obtaining the first and touch up laser eye surgeries and executing the Release of All Claims. As to the breach of fiduciary claim, Dixon alleged Booth “made misrepresentations to Plaintiff regarding the appropriateness of and availability of medical procedures to induce Plaintiff into executing the ‘Release of All Claims.’ ” As to the DTPA claim, Dixon alleged Boothe “engaged in an unconscionable course of action in misrepresenting the availability of future medical procedures to Plaintiff’; “represented that an agreement conferred or involved rights, remedies, or obligations which it does not have or involve”; “knowingly made false or misleading statements of fact concerning the need for corrective service”; “failed to disclose information about goods or services that was known at the time of the transaction to induce Plaintiff into entering into a transaction that the consumer would not have entered into had the information been disclosed”; and “further represented that Plaintiff had an astigmatism to ‘upcharge’ Plaintiff for the initial surgery.” Dixon requested actual, economic, and exemplary damages, pre — and post-judgment interest, attorney’s fees, costs, and injunctive relief.

Boothe filed a motion to dismiss and motion for summary judgment and a first amended and supplemental motion to dismiss. Boothe argued that all Dixon’s claims were based on Boothe’s medical treatment or medical opinion as to future events and thus were a recasting of medical negligence claims, which were subject to dismissal for failure to file an expert report within the deadline required by section 74.351(b). In addition, Boothe argued that Dixon’s DTPA claims were barred by section 74.004 because they were recast medical negligence claims. Boothe also argued that he was entitled to summary judgment because the Release of All Claims barred all claims as a matter of law. He requested attorney’s fees and costs of court. Dixon responded to the motion to dismiss and motion for summary judgment. After a hearing, the trial court denied Boothe’s motion to dismiss and motion for summary judgment without specifying the grounds on which its decision was based.

II. MOTION TO DISMISS FOR FAILURE TO FILE EXPERT REPORT

In his single issue, Boothe argues that the trial court erred in denying his motion to dismiss because all Dixon’s claims were improperly recast medical negligence claims subject to dismissal for noncompliance with the expert report requirement of section 74.351(b).

A. Applicable Law and Standard of Review

The version of section 74.351(a) that applies to this case provided that a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. Act of June 2, 2003, 78th Leg., R.S., ch. 205, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. PRac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2005)). If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant the trial court “shall” dismiss the action with prejudice and award reasonable attorney’s fees and court costs incurred by the defendant. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(b).

The expert report requirements of section 74.351(b) apply to a patient’s claims, regardless of whether they are tort claims, when those claims come within the statutory definition of a “health care liability claim,” defined as:

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

Id. § 74.001(a)(13) (Vernon 2005). “Health care” is defined as:

any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

Id. § 74.001(a)(10) (Vernon 2005). “Medical care” is defined as:

any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.

Id. at § 74.001(a)(19) (Vernon 2005). “Practicing medicine” means

the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:
(A) publicly professes to be a physician or surgeon; or
(B) directly or indirectly charges money or other compensation for those services.

Tex. Occ.Code Ann. § 151.002(a)(13) (Vernon Supp.2005).

Artful pleading cannot avoid the requirements of section 74.351 when the essence of the suit is a health care liability claim. Diversicare Gen. Partner, Inc. v. Rubio, — S.W.3d -, -, 2005 WL 2585490, at *7 (Tex. Oct. 14, 2005) (“It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the MLIIA”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004); MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40 (Tex.1998). To determine whether a cause of action falls under chapter 74’s definition of a health care liability claim, we examine the claim’s underlying nature. Id. (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994)). If the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of a standard of care applicable to health care providers, then the claim is a health care liability claim. Id. at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)). One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. Garland Cmty. Hosp., 156 S.W.3d at 544 (citing Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex.App.-Corpus Christi 1999, no pet.)); see Diversicare Gen. Partner, Inc., — S.W.3d at -, 2005 WL 2585490, at *4. Whether a claim is a health care liability claim pursuant to section 74.351 is a question of law and is reviewed de novo. Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied); Gomez v. Matey, 55 S.W.3d 732, 735 & n. 2 (Tex.App.-Corpus Christi 2001, no pet.).

B. Discussion

Boothe argues that Dixon improperly recast medical negligence claims to avoid dismissal. Boothe argues that all Dixon’s claims are intertwined with Boothe’s rendition of medical services, which involved Boothe’s diagnosis of Dixon’s medical condition and Boothe’s medical judgment and advice as to the choice of medical procedures; the potential risks and complications such as visual deterioration and candidacy for further medical treatment; and Dixon’s alleged physical injury from the two surgeries. We agree.

To prove that Boothe’s diagnoses and treatment were to Dixon’s detriment, Dixon would have to provide proof of his medical condition before and after the laser surgeries and in relation to custom abrasion. Dixon must also prove Boothe undertook a mode or form of treatment that a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances and rely on expert medical testimony. See Gomez, 55 S.W.3d at 735 (concluding allegations of “knowing” misrepresentation regarding necessity of hysterectomy a health care liability claim). Dixon’s claim that Boothe’s misrepresentations regarding the release were improper is an inseparable part of Boothe’s rendition of medical services because Dixon’s claim rests on alleged misrepresentations regarding medical care and treatment. See Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509, 513 (Tex.App.-Texarkana 2005, no pet.) (concluding allegations of improper restraint related to course of care or treatment a health care liability claim); Williams v. Walker, 995 S.W.2d 740, 741-42 (Tex.App.-Eastland 1999, no pet.) (concluding allegations of assault and battery regarding use of medical procedure without patient’s consent a health care liability claim).

Nevertheless, Dixon contends that his cause of action for fraudulent misrepresentation in procuring a release of health care liability claims is not within the report requirements of chapter 74 because Boothe knowingly made a false statement about Dixon’s condition. Dixon contends that this representation constitutes fraud pursuant to Shannon v. Law-Yone, 950 S.W.2d 429 (Tex.App.-Fort Worth 1997, pet. denied). In Shannon, the plaintiff alleged specific fraudulent conduct in connection with keeping him hospitalized, including deceiving him into rescinding requests for release, creating false records, misrepresenting that insurance would not cover his medical bills if he were released against medical advice, and misrepresenting his condition to others. Id. at 432-34. The plaintiff did not allege negligence in his treatment or medical malpractice. Id. at 437. However, an allegation that a misrepresentation is made “knowingly” is not determinative when analyzing the underlying nature of a claim. See Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 752 (Tex.App.-Fort Worth 1998, pet. denied). Here, the underlying nature of the claim is whether Dixon would be a candidate for custom abrasion after two laser surgeries, which is a question of medical condition, diagnosis, and treatment. See id. Consequently, Shannon is distinguishable.

Moreover, the only question at this stage is whether the underlying nature of each of Dixon’s claims is a health care liability claim; this is a threshold requirement, not a recovery requirement. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005) (per curiam). Consequently, Dixon’s reliance on cases regarding the submission of issues of fraud and informed consent in medical malpractice cases is misplaced. See Gaut v. Quast, 510 S.W.2d 90 (Tex.1974) (per curiam); Crundwell v. Becker, 981 S.W.2d 880 (Tex.App.-Houston [1st Dist.] 1998, pet denied); Melissinos v. Phamanivong, 823 S.W.2d 339 (Tex.App.-Texarkana 1991, writ denied).

Relying primarily on Sorokolit, Dixon next argues that statements amounting to specific promises of cure or a particular result are actionable under the DTPA. In Sorokolit, 889 S.W.2d at 240, a surgeon “guaranteed and warranted” a specific result, instructing the plaintiff to select a picture and promising, following surgery, her breasts “would look just like those in the picture she selected.” Here, in contrast, Boothe’s alleged representations were that Dixon was an “ideal candidate” for custom abrasion that would “resolve his problems.” Thus, the alleged representation related to a possible future procedure that was never performed; in any event, they were not the specific statements necessary to establish a knowing misrepresentation or breach of an express warranty regarding the results of treatment. See Mulligan v. Beverly Enters.Tex. Inc., 954 S.W.2d 881, 884 (Tex.App.Houston [14th Dist.] 1997, no pet.) (contrasting representations as to guaranteeing a particular result to representations as to providing care and service).

Finally, Dixon contends that any medical malpractice claim is the basis of his damages, not his claims in this suit. However, there are no separate damages pleaded as between a fraudulent inducement claim and other claims. Moreover, proof of the economic value of the claims released requires proof of those claims, that is, whether Boothe’s medical and treatment of Dixon met the applicable standard of care.

CONCLUSION

We conclude that all Dixon’s claims meet the statutory definition of a “health care liability claim” and are thus subject to the expert report requirement of section 74.351(b), and we reject all Dixon’s arguments to the contrary. Accordingly, we resolve Boothe’s issue in his favor. Because of our resolution of Boothe’s argument regarding section 74.351(b), we need not address his argument regarding section 74.004. Because Dixon failed to file an expert report as required by section 74.351(b), we reverse the trial court’s order denying motion to dismiss and motion for summary judgment and render judgment in Boothe’s favor dismissing Dixon’s claims with prejudice.

In his motion to dismiss and motion for summary judgment and in- his prayer in his brief on appeal, Boothe requested attorney’s fees and costs of court, which are mandatory under the statute when a claimant fads to file an expert report in a health care liability claim. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1). Accordingly, we remand this suit solely for a determination of attorney’s fees and costs of court incurred by Boothe.

      . The Release of All Claims provides, in pertinent part:
      IN CONSIDERATION of a reimbursement payment made to us in the sum of [$2,890], we, the undersigned being of lawful age, do hereby release [Boothe] and their successors, predecessors and agents, employees, partner and all those in privity with them form [sic] all claims or causes of action which we now or may hereafter have against the said [Boothe], including but not limited to claims arising out of Lasik eye surgery performed on Joe Dixon and claims not now known. We hereby declare that we fully understand the terms of this release and voluntarily accept the above stated sum for the purpose of making full and final settlement of our claim against [Boothe].
      WE FURTHER state that the foregoing release has been carefully read; and we understand the contents thereof and have signed the same as our own free act and have not been influenced in making this settlement by any representative of the party or parties released.
      WE FURTHER understand that the provisions of this release are contractual and not mere recitals....

      . Dixon’s original petition is not included in the record on appeal. Boothe contends that the only difference between the original petition and the first amended petition is that Boothe deleted claims for medical negligence from the first amended petition. Neither party contends that Dixon’s factual allegations in his first amended original petition differed substantively from those in his original petition.

      . Section 74.004(a) provides: "Notwithstanding any other law, Sections 17.41-17.63, Business & Commerce Code, do not apply to physicians or health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider.” Tex. Civ. Prac. & Rem.Code Ann. § 74.004(a) (Vernon 2005).


text:
    HUMANE SOCIETY OF DALLAS, Appellant, v. DALLAS MORNING NEWS, L.P. and Steve Blow, Appellees.
    No. 05-05-00036-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 13, 2005.
    Rehearing Overruled Jan. 17, 2006.

      Susan Barilich, Dallas, for appellant.
    Paul C. Watler, Jenkens & Gilchrist, P.C., Dallas, for appellee.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice WRIGHT.

The Humane Society of Dallas appeals the summary judgment granted in favor of the Dallas Morning News, L.P. and Steve Blow. In four issues, appellant contends (1) the trial court erred by granting appellees’ objections to certain summary judgment evidence; (2) the trial court erred by denying appellant’s objections to certain summary judgment evidence; (3) fact issues preclude summary judgment on appellees’ defenses for defamation; and (4) appellant presented sufficient summary judgment evidence to create a fact issue on its business disparagement and tortious interference claims. We affirm the trial court’s judgment.

Factual and Procedural Background

Appellant sued appellees for defamation after Blow wrote a column published by the Dallas Morning News about a family’s experience after discovering the family’s lost dog at an adoption event sponsored by appellant. Appellees filed a motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant’s defamation claim because: (1) the column was not defamatory; (2) the column was an opinion protected by the Texas and United States Constitutions; (3) the column was fair comment and criticism protected by Texas statute; (4) the column was true or substantially true; and (5) appellant was a public figure and appellees had negated actual malice. After appellant amended its petition adding claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships, appellees filed a supplemental motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant’s additional claims because the column was true, was privileged, and was published without malice. Appellees also asserted, “in the event the trial court denied summary judgment on the elements of falsity, malice and privilege,” that there was no evidence of the elements of appellant’s tor-tious interference claim and the special damage element of the business disparagement claim.

Appellant responded to appellees’ motions, claiming: (1) material statements in the column were false; (2) Blow was malicious; (3) the column was not protected opinion because many statements in it were expressed as facts; (4) appellant is not a public figure; and (5) its summary judgment evidence was sufficient to create fact issues regarding malice, each element of the business disparagement claim, and special damages.

After considering the motions, the summary judgment evidence, the objections to summary judgment evidence, and the argument of counsel, the trial court sustained appellees’ objections to appellant’s summary judgment evidence, denied appellant’s objections to appellees’ summary judgment evidence, and granted appellees’ motions. The trial court did not specify a basis for its ruling on the motions for summary judgment. This appeal followed.

Discussion

The standards for reviewing summary judgments are well established. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). When, as here, the trial court does not specify the basis for its ruling, it is the appellant’s burden on appeal to show that each of the independent grounds asserted in support of summary judgment is insufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied); Cullen Frost Bank v. Commonwealth Lloyd’s Ins. Co., 852 S.W.2d 252, 256 (Tex.App.-Dallas 1993), writ denied per curiam, 889 S.W.2d 266 (Tex.1994). If the appellant does not challenge one of the grounds for summary judgment, the judgment may be affirmed on that ground alone. Star-Telegram, Inc., 915 S.W.2d at 473; Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.-Dallas 2003, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied).

Appellant does not contend, either in its response to summary judgment, in its brief, or in its reply brief, that the column was not fair comment and criticism protected by section 73.002(b)(2) of the Texas Civil Practices and Remedies Code. Section 73.002(b)(2) affords a privilege to the publication in a newspaper of a fair, true, and impartial account of a “reasonable and fair comment on or criticism of ... [a] matter of public concern published for general information.” Tex. Civ. Peac. & Rem.Code Ann. § 73.002 (Vernon 2005). Although appellant briefed the issue of the truth of the article extensively, the briefing was only in the context of state and federal constitutional protection for statements that are true or substantially true. In its brief, appellant did not address or discuss in any way appellees’ ground that appel-" lees are not liable for publication of the article because pursuant to Texas statute, the column was privileged as a fair comment or criticism on a matter of public concern. Even after appellees argued in their brief that the summary judgment should be affirmed because appellant had failed to address this ground, appellant did not address or discuss the privilege in its reply brief. Nor did appellant challenge, within the context of the fair comment or criticism privilege, appellees’ assertion that because the column was true, privileged and published without fault, appellant’s claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships claims must likewise fail.

Appellant was entitled to present argument on all grounds upon which it contends summary judgment was improper. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). However, appellant has not done so. Appellant’s failure to take advantage of the opportunity to present argument on this ground results in waiver. See Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858, 871 (Tex.App.-San Antonio 1997, no writ). Because summary judgment may have been granted, properly or improperly, on a ground not challenged by appellant, we affirm the summary judgment with respect to appellant’s defamation claim. See Holloway, 840 S.W.2d at 23. Likewise, because summary judgment was proper on appellant’s defamation claim, its claim for statutory libel must also fail. See Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 249 (1942) (proof required to establish statutory libel is no different than proof necessary to establish common law libel); Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.1994) (qualified privilege against defamation exists at common law if it affects an important public interest); Associated Press v. Walker, 393 S.W.2d 671, 678 (Tex.Civ.App.-Fort Worth 1965, writ ref'd n.r.e.) (fair comment or criticism privilege is well recognized by common law), rev’d on other grounds, 388 U.S. 130, 158, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

Further, appellees contended, in their supplemental motion for summary judgment, that they were entitled to judgment on appellant’s business disparagement and tortious interference with prospective commercial relationships because the column was true, was privileged, and was published without malice. The fair comment or criticism privilege precludes recovery on these claims because it operates to negate an element of each of the claims. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex.2003) (to recover on business disparagement claim, plaintiff must show (1) defendant published false and disparaging information about it; (2) with malice; (3) without privilege; (4) that resulted in special damages to the plaintiff); COC Services, Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex.App.-Dallas 2004, pet. filed) (to recover on tortious interference with a prospective business relationship claim, plaintiff must show (1) a reasonable probability that the parties would have entered into a contractual relationship; (2) an “independently tortious or unlawful act” by defendant prevented the relationship from occurring; (3) defendant did such act with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and (4) plaintiff suffered actual harm or damage as a result of defendant’s interference). We overrule appellant’s third and fourth issues. Having done so on procedural grounds, we need not address appellant’s remaining issues regarding the trial court’s evidentiary rulings.

Accordingly, we affirm the trial court’s judgment.


text:
    R.K. PANDITI, Appellant v. James N. APOSTLE, Appellee.
    No. 05-05-00553-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 4, 2006.

      R.K. Panditi, Plano, pro se.
    James N. Apostle, Dallas, pro se.
    Before Justices O’NEILL, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice LANG.

R.K. Panditi, pro se, appeals the trial court’s summary judgment in favor of James N. Apostle, plaintiff below. Apostle has not filed a brief in this appeal. On appeal, Panditi argues the trial court erred when it granted traditional summary judgment in favor of Apostle because Apostle did not properly plead his suit on a sworn account. We conclude the trial court did not err when it granted summary judgment in favor of Apostle. The trial court’s summary judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Apostle, an attorney who formerly represented Panditi, filed a lawsuit against Panditi for breach of contract and a suit on a sworn account to collect his unpaid legal fees as well as attorney’s fees incurred in bringing the instant suit for collection. Apostle moved for traditional summary judgment on his sworn account claim arguing Panditi’s unsworn general denial did not satisfy Texas Rules of Civil Procedure “185 and 93(l)[sic],” precluding him from denying Apostle’s claim. Panditi did not file a response to Apostle’s motion for summary judgment. The trial court granted summary judgment in favor of Apostle and “denie[d] all relief not granted in th[e] [summary] judgment.” Panditi filed a motion for a new trial which was overruled by operation of law.

II. SUIT ON SWORN ACCOUNT

Panditi argues the trial court erred when it granted traditional summary judgment in favor of Apostle on the ground that Panditi failed to file a sworn denial. He contends he was not required to file a sworn denial because Apostle did not properly plead his suit on a sworn account. Specifically, he claims Apostle’s sworn account was defective because Apostle failed to support his petition with evidence that his attorney’s fees were reasonable and necessary, and the fees were assessed at the usual and customary rate.

A. Standard of Review

When a defendant fails to file a sworn denial, a court of appeals is limited in what it can consider to set aside a summary judgment on a sworn account because the defendant will not be permitted to dispute the plaintiffs claim. See Price v. Pratt, 647 S.W.2d 756, 757 (Tex.App.-Corpus Christi 1983, no writ). However, it is within the province of the court of appeals to determine, as a matter of law, whether the pleadings are sufficient on their face to constitute a sworn account. See id.

B. Applicable Law

Rule 185 states an open account includes, “any claim ... for personal services rendered.” See Tex.R. Civ. P. 185; Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex.App.-Dallas 2003, pet. denied). Rule 185 is not a rule of substantive law. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979); A & J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676, 682 (Tex.App.-Dallas 2004, no pet.). Rather, it is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery. See Rizk, 584 S.W.2d at 862; A & J Printing, 153 S.W.3d at 682.

Texas Rule of Civil Procedure 185 provides that when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath. See Tex.R. Civ. P. 185; Abe I. Brilling Ins. Agency v. Hale, 601 S.W.2d 403, 404 (Tex.Civ.App.-Dallas 1980, no writ). Also, a plaintiffs suit on a sworn account must “reveal” any offsets made to the account. See Tex.R. Crv. P. 185; Nguyen, 108 S.W.3d at 562; Howard v. Weisberg, 583 S.W.2d 920, 922 (Tex.Civ.App.-Dallas 1979, no writ). The account must show with reasonable certainty the name, date, and charge for each item, and provide specifics or details as to how the figures were arrived at. See Abe I. Brilling Ins. Agency, 601 S.W.2d at 405 (discussing bill for insurance premiums); Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330, 333 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.); see also Powers v. Adams, 2 S.W.3d 496, 499 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (itemized monthly statements of legal services reflecting offsets, payments, and credits sufficient). Also, a suit on a sworn account must be accompanied by the affidavit of the plaintiff, his agent, or his attorney taken before an officer authorized to administer oaths. See Tex.R. Crv. P. 185; Solano v. Syndicated Office Sys., No. 08-04-00166-CV, -S.W.3d -, -, 2005 WL 2044604, at *2 (Tex.App.-El Paso Aug.25, 2005, no pet.); Andrews v. E. Tex. Med. Ctr-Athens, 885 S.W.2d 264, 267 (Tex.App.-Tyler 1994, no writ). The affidavit must state the following: (1) the claim is within the knowledge of the affi-ant; (2) the claim is just and true; (3) the account is due; and (4) all just and lawful offsets, payments, and credits have been allowed. See Tex.R. Civ. P. 185; Nguyen, 108 S.W.3d at 562. If there is a deficiency-in the plaintiffs sworn account, the account will not constitute prima facie evidence of the debt. Nguyen, 108 S.W.3d at 562.

A defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges. See Tex.R. Civ. P. 93(10), 185; Vance v. Holloway, 689 S.W.2d 403, 404 (Tex.1985); A & J Printing, 153 S.W.3d at 682; see also Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 190-91 (Tex.App.-Dallas 2000, pet. denied). A defendant’s sworn denial must be writ ten and verified by an affidavit. See Tex.R. Civ. P. 185, 93(10); Andrews, 885 S.W.2d at 267. However, a defendant is not required to file a sworn denial if the plaintiffs suit on a sworn account was not properly pleaded. See Howard, 583 S.W.2d at 922; Price, 647 S.W.2d at 757-58.

C. Application of the Law to the Facts

Attached to Apostle’s petition were four statements addressed to Panditi, dated January 28, 2004, April 2, 2004, May 14, 2004, and July 20, 2004. The statements describe legal services rendered from September 10, 2003 through July 17, 2004. These four statements list the date and type of legal services rendered, the total number of hours spent on those legal services, the total fees for the professional services and expenses, and the total combined amount owed. The last statement dated July 20, 2004, lists the cumulative total fees and expenses owed as $26,684.81. Attached to Apostle’s petition was his affidavit which reveals offsets by stating the balance due is $16,334.81:

The foregoing and annexed account, claim and cause of action in favor of James N. Apostle, in the principle sum of sixteen thousand three hundred thirty four [sic] and 81/100 dollars ($16,334.81), is within the knowledge of affiant, just and true, and that it is due and unpaid and that all just and lawful offsets, payments and credits have been allowed.

Apostle’s billing statements and affidavit complied with the requirements of rule 185. See Tex.R. Civ. P. 185. As a result, Panditi was required to file a verified denial. See Tex.R. Civ. P. 93(10), 185. Panditi did not file a verified denial and he was precluded from denying “the claim, or any item therein.” See Tex.R. Civ. P. 185. Pursuant to the rules applicable to a sworn account, Apostle presented a prima facie case and was not required to offer additional proof, as argued by Panditi, that the fees and expenses were reasonable and necessary, and assessed at the usual and customary rate.

III. CONCLUSION

The trial court did not err when it granted summary judgment in favor of Apostle. The trial court’s summary judgment is affirmed.