author: CATHERINE STONE, Justice.

text:
    Francisca Rodriguez GARZA, Lilia R. Guerra, Eusebia R. Corona, Petra R. Rodriguez, and Apolinar Rodriguez, Appellants, v. Olivia Olivarez RODRIGUEZ and Gabriel Rodriguez, Appellees.
    No. 04-98-00919-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 26, 2000.
    Rehearing Overruled March 31, 2000.

      Adam Pondo, Law Offices of Cerda & Poncio, P.C., San Antonio, for appellant.
    Frank R. Nye, Jr., Law Offices of Frank R. Nye, Jr., Rio Grande City, J.A. Tony Canales, Canales & Simonson, P.C., Corpus Christi, for appellee.
    Sitting: TOM RICKHOFF, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Justice.

Francisca Rodriguez Garza, Lilia R. Guerra, Eusebia R. Corona, Petra R. Rodriguez, and Apolinar Rodriguez (hereinafter collectively referred to as “appellants”) appeal from a dismissal order from the 229th District Court of Starr County, dismissing them suit to construe a previously probated will for want of jurisdiction. Because a court is not permitted to interfere with the final judgment of another court of equal jurisdiction, we affirm the trial court’s order of dismissal.

Factual and ProceduRal Background

Appellants filed a declaratory action in the 229th District Court in Starr County to construe the previously probated will of their aunt Maria Lopez de Pena (hereinafter “Pena”), asserting that they are the legal owners of certain real property bequeathed in Pena’s will. The property at issue consists of nine tracts of land, which have mineral interests. In their action, appellants also sought partition of the land to which they claim entitlement.

Pena’s will, executed on January 22, 1943, provided in relevant part:

It is my will that all the rest and residue of my property, both real and personal and of any nature and kind whatsoever, and wherever situated of which I shall die seized and possessed, shall pass to and be vested in fee simple title to my nephew, Santiago Rodriguez, Jr., son of my sister Eusebia Lopez de Rodriguez, to be owned and enjoyed by him with God’s and my blessings forever.... But should he die without lawful issue of his body, then, and in that event, it is my will and wish that all of my aforesaid property shall pass to and be vested in fee simple in my sister, the said Eusebia Lopez de Rodriguez, her heirs and their descendants per stirpes.

By this provision, Pena granted to Santiago a fee simple interest in her real property subject to a shifting executory interest in favor of Santiago’s mother, Eusebia Lopez de Rodriguez, her heirs and their descendants per stirpes.

Pena died on June 1, 1956; her will was presented for probate the following week in the constitutional county court of Starr County. On July 29, 1957, an order of final probate settling, approving, and closing Pena’s estate was entered in the county court. With respect to Santiago’s interest, it provided that:

[T]he remainder of the lands owned by Maria Lopez de Pena, including all funds in the bank, as well as all real estate and personal property were bequeathed and given to Santiago Rodriguez, Jr.

The final probate order thus granted fee simple absolute title to the remainder of Pena’s estate to Santiago; the final probate order did not account for the springing executory interest expressly stated in the will.

On October 19, 1984, Santiago died intestate, survived by his wife, Olivia Oli-varez Rodriguez, and one adopted son, Gabriel Rodriguez. Because Santiago died without lawful issue, appellants, Eusebia Lopez de Rodriguez’s heirs, concluded that they became the legal owners of the real property Pena conditionally devised to Santiago through the 1943 will.

On July 8, 1986, appellants filed a declaratory action against Olivia Olivarez Rodriguez and Gabriel Rodriguez (hereinafter collectively referred to as “appel-lees”) in the 229th district court of Starr County, asking the court to construe the will of Pena to declare them the legal and beneficial owners of Pena’s property due to the springing executory interest, which they claim divested Santiago of his ownership. Appellants also requested the district court to partition the subject property among them. At the time of this filing, no probate matter concerning either Pena’s estate or Santiago’s estate was pending. On August 4, 1986, appellees filed a declaration of heirship in the county court at law of Starr County. That same day, ap-pellees also filed in the district court.their original answer and a motion to dismiss for lack of jurisdiction, which the trial court later granted.

STANDARD OF REVIEW ■

Because a challenge to jurisdiction presents a question of law, we review the trial court’s determination of subject matter jurisdiction de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). In conducting our review, we take as true the facts plead in appellants’ petition and determine whether the petition supports jurisdiction in the trial court. See Hernandez v. Texas Workers’ Compensation Ins. Fund, 946 S.W.2d 904, 906 (Tex.App.—Eastland 1997, no writ); North Alamo Water Supply Corp. v. Texas Dep’t of Health, 839 S.W.2d 455, 457 (Tex.App.—Austin 1992; writ denied).

As noted, appellants requested the district court to construe the will of Pena to declare them the legal owners of the Pena’s property due to the springing exec-utory interest, which they claim divested Santiago of his ownership. In their petition, appellants also requested the district court to partition the subject property among them.

Arguments on Appeal

Appellants argue that the district court erred in dismissing their suit to construe Pena’s will because the district court has concurrent jurisdiction with the county court over matters “incident to an estate” when, as here, a probate matter is not pending in the county court. Construction of a will and issues of title are matters incident to an estate; thus, the district court had jurisdiction over the matters because the county court’s probate jurisdiction had not been invoked. . Cf. Bank of Southwest, Nat’l Assoc. v. Stehle, 660 S.W.2d 572, 574 (Tex.App.-San Antonio 1983, writ refd n.r.e.) (suit for title filed in district court while administration of estate was pending in probate court was properly dismissed because probate court had acquired exclusive jurisdiction over cause of action incident to estate). Appellants further assert that the district court had jurisdiction to act because their pleadings requested the imposition of a constructive trust. See Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 561-62 (1948).

Appellees counter that the trial court properly dismissed the underlying action because in counties such as Starr County, where there is a county court at law exercising the jurisdiction of a probate court, all probate matters shall be filed and heard in such courts and the constitutional county court, rather than in the district courts. See Tex. PROb.Code Ann. § 5(c) (Vernon Supp.2000). Appellees note that in section 5(c) counties, district court jurisdiction may be invoked by a proper transfer or by pleadings that clearly set out a cause of action and request for relief which the county court at law exercising the jurisdiction of a probate court cannot provide. See Palmer v. Coble Wall Trust Co. Inc., 851 S.W.2d 178, 180 n. 3 (Tex.1992). Appellees note that the instant case does not involve a transfer situation; thus, they contend the district court’s jurisdiction could be invoked only if appellants sought relief which the probate court could not grant. Appellees further argue that because the county court previously acquired jurisdiction over Pena’s estate, the district court would be without authority to consider an attack on the county court’s probate order.

Discussion

County courts have the general jurisdiction of a probate court. See Tex. Const. art. V, § 16; Tex. Prob.Code Ann. § 4 (Vernon Supp.2000). In most counties in Texas, the constitutional county courts (“county courts”) act as the probate court. As a probate court, county courts are empowered to:

[PJrobate wills, grant letters testamentary and of administration, settle accounts of personal representatives, and transact all business appertaining to estates subject to administration or guardianship, including the settlement, partition, and distribution of such estates.

Tex. Prob.Code Ann. § 4 (Vernon Supp. 2000). Historically, a probate court did not have the power to construe provisions of a will or decide matters of title because such matters were considered outside the purview of probate matters; they were considered matters incident to an estate. See Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, 405 (Tex. Comm’n App.1942, opinion adopted); see Statute Note, Probate Code Section 5: Jurisdictional Expansion Through Redefinition: Is It Constitutional?, 37 Baylor L.Rev. 291, 294 (1985) (general discussion regarding history of probate jurisdiction prior to 1973). The construction of a will or issues of title were thus general civil matters within the jurisdictional reach of the district courts. See Tex. Const, art. V, § 8 (district court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases were exclusive, appellate, or original jurisdiction may be conferred by constitution or other law on some other court, tribunal, or administrative body); Benson v. Greenville Nat’l Exch. Bank, 253 S.W.2d 918, 925 (Tex.Civ.App.-Texarkana 1952, writ ref d n.r.e.).

In 1973, the county court’s probate jurisdiction was expanded when the Legislature undertook a two-step reform of probate jurisdiction. Statute Note, Probate Code Section 5: Jurisdictional Expansion Through Redefinition: Is It Constitutional?, 37 Baylor L.Rev. 291, 294-95 (1985). First, it proposed an amendment to article 5, section 8 of the constitution authorizing a statutory revision of probate jurisdiction. Id. at 295-96. Second, to carry out the proposed constitutional mandate, it amended section 5 of the Probate Code. As amended, section 5 expanded the jurisdiction of the county court in probate matters to allow it the power to hear all matters incident to an estate, including, but not limited to, an action to construe a will. See Tex. PROb.Code Ann. § 5(d) (Vernon Supp.2000). Section 5⅛ clause “matter incident to an estate,” however, will not create jurisdiction for the county court in the absence of a pending probate matter. See Sumaruk v. Todd, 560 S.W.2d 141, 144 (Tex.Civ.App.-Tyler 1977, no writ). Stated differently, before a matter can be regarded as incident to an estate over which the county court acting as a probate court would have jurisdiction, a probate proceeding must actually be pending. See 17 M.K. WoodwaRD & Ernest Smith, III, Probate and Decedents’ Estates § 6 (Texas Practice 1971) (West Supp.2000). As explained by the Supreme Court, a court empowered with probate jurisdiction may only exercise its probate jurisdiction over matters incident to an estate when a probate matter proceeding related to such matter is already pending. Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 585 (Tex.1993).

As noted, at the time appellants filed suit in the district court, no probate matter concerning either Pena’s estate or Santiago’s estate was pending. Appellants thus conclude that because a probate matter was not pending when appellants filed suit, and because appellants’ suit concerns matters traditionally outside the scope of a probate court’s jurisdiction, the district court had jurisdiction over the suit to construe the provisions of Pena’s will. In support of this argument, appellants rely primarily upon Crawford v. Williams, 797 S.W.2d 184 (Tex.App.-Corpus Christi 1976, writ denied).

In Crawford, a will was admitted to probate in constitutional county court in 1968. Crawford, 797 S.W.2d at 184. In 1986, several heirs brought suit in the district court seeking a declaration that the will was null and void due to fraud, a partition of certain real property, an accounting of rents, royalties, and waste on the real property, and a distribution of the real property through the laws of intestacy. Id. The district court set aside the will, determined heirship, partitioned the real property, and ordered an accounting. Min sustaining a challenge that the district court lacked jurisdiction over the proceeding, the Corpus Christi Court of Appeals determined that because the county court had already acquired jurisdiction over the estate, and because the later action sought to set aside an already probated will, the district court, under the doctrine of noninterference, was prevented from exercising jurisdiction over the matter. Id. at 185-86. The fact that the action was a direct attack on the county court’s order admitting the will to probate was compelling to the court. See id. at 186. The court also seemed to place much importance on the fact that under amended section 5 of the Probate Code, the county court would have the jurisdiction to hear the will contest. See id. at 185.

It is not clear from the facts of Crawford whether a final order of probate, which would close the estate and end the county court’s jurisdiction over the proceeding, was entered. Appellants assume that the estate was not closed, and therefore argue that Crawford is consistent with the general rule that once the probate court has acquired jurisdiction over a probate matter, the district court lacks the power to act. They argue that since a probate matter was not pending in the instant case, the district court had jurisdiction to act.

At oral argument, appellants argued that Gordy v. Alexander, 550 S.W.2d 146 (Tex.Civ.App.-Amarillo 1977, writ refd n.r.e), a case in which the Amarillo Court of Appeals determined that section 5 of the Probate Code did not divest the district court of jurisdiction to act in a suit to impose a constructive trust on assets of an estate where the will was previously probated, required reversal in the instant case. Gordy, 550 S.W.2d at 147-48.

We disagree with appellants’ ar.gument and their reliance upon Crawford and Gordy in the instant case. In fact, our reading of Crawford requires a result different from the one sought by appellants. Our disagreement with appellants’ argument lies not in their general explanation of Texas probate jurisdiction, which is, “to say the least, [a] somewhat complex [scheme].” Palmer, 851 S.W.2d at 180 n. 3. We agree that under the current statutory scheme of probate jurisdiction, a district court can exercise jurisdiction over a matter incident to an estate where no probate court has otherwise acquired jurisdiction over the estate. This is so because section 5 of the Probate Code does not grant the probate court exclusive jurisdiction over matters incident to an estate. See Tex. PROb.Code Ann. § 5(c), (d) (Vernon Supp.2000). This jurisdictional scheme, however, would not allow a court to interfere with the final judgment of another court of equal jurisdiction. Our disagreement with appellants’ argument concerns this general principle of non-interference. See Crawford, 797 S.W.2d at 186.

By this lawsuit, appellants seek a declaration that they are the legal and beneficial owners of Pena’s property due to the springing executory interest contained in Pena’s will. As previously noted, however, that future interest was not accounted for in the 1957 final probate order settling, approving, and closing Pena’s estate. The final order, whether by mistake or design, unambiguously granted Santiago fee simple absolute title to the remainder of Pena’s estate. That order was not challenged. The current action challenges the 1957 final probate order to the extent that appellants seek a construction of Pena’s will that is contrary to what was previously determined, correctly or incorrectly, by the probate court. A court is not permitted to interfere with the final judgment of another court of equal jurisdiction. See Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex.App.-San Antonio 1996, no writ). An action to undo an incorrect former judgment must be brought in the court rendering the judgment or in a higher court. Id. at 567. Because the instant action seeks to undo the prior probate order, the district court properly determined it did not have jurisdiction. See Crawford, 797 S.W.2d at 186. Accordingly, we overrule appellants’ points of error, and affirm the order of the trial court.

      . After the county court entered its order discharging the administrator and closing the estate, its jurisdiction over the proceeding ended, and it had no power to enter any further orders. See 17 M.K. Woodward & Ernest Smith, III, Probate and Decedents’ Estates § 6 (Texas Practice 1971).

      . At the time Pena executed her will, adopted children were not presumed to be considered "children” of their adoptive parents in wills executed by third persons, unless the intent to include adopted children was expressed in the will or apparent through circumstances surrounding the execution of the will. Penland v. Agnich, 940 S.W.2d 324, 325-26 (Tex.App.Dallas 1997, writ denied) (citing Hoch v. Hoch, 140 Tex. 475, 481-82, 168 S.W.2d 638, 641 (1943)).

      . A county court at law exercising probate jurisdiction is not a statutory probate court unless the court is designated a statutory probate court under the Government Code. Tex Prob.Code Ann. § 3(ii) (Vernon Supp.2000); see also Tex. Gov’t Code Ann. § 25.0003(f) (Vernon Supp.2000). Starr County has one statutory county court (“County Court at Law”), which has concurrent probate jurisdiction with the constitutional county court. See Tex. Gov’t Code Ann. § 25.2161 (Vernon 1988). Starr County does not have a "statutory probate court.” See id.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    John HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-98-00664-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 26, 2000.
    Rehearing Overruled Feb. 11, 2000.

      Julie Pollock, Diana L. Hoermann, Hitchings <& Pollock, San Antonio, for appellant.
    Scott Roberts, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice SARAH DUNCAN, Justice KAREN ANGELINI, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Nature of the case

On July 13, 1996, John Hernandez was arrested for the offense of driving while intoxicated (DWI) under Tex. Penal Code Ann. § 49.04. The indictment alleged the facts supporting the offense and then alleged Hernandez’s three prior convictions for DWI. Prior to trial, Hernandez filed a motion offering to stipulate to the validity of his three prior DWI convictions if the State would be precluded from mentioning these prior offenses during the reading of the indictment and during the trial on the merits. The trial court denied the motion. Hernandez pleaded guilty to the offense, reserving the right to appeal the denial of his motion to stipulate. The trial court assessed punishment pursuant to a plea agreement at three years’ imprisonment. In his sole issue on appeal, Hernandez alleges the trial court erred by denying his motion to stipulate to the previous offenses because such denial would have allowed the State to read to the jury unnecessary and prejudicial portions of the indictment alleging prior DWI convictions and would have allowed the admission of prejudicial evidence of the prior convictions during the guilt-innocence phase of trial. We address this issue in light of the Texas Court of Criminal Appeals’ recent opinion in Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App. 2000)(en banc).

Discussion

Commission of a DWI offense under Section 49.04 is a Class B misdemeanor, unless the person has been convicted of two prior DWI offenses. In such event, the offense may be elevated to a third degree felony. See Tex Penal Code Ann. §§ 49.04(b), 49.09(b) (Vernon Supp. 2000). When the State uses prior convictions to elevate a misdemeanor DWI offense to a felony, the State must plead the prior convictions in the indictment for the trial court to gain jurisdiction over the felony offense, and the State must prove the prior convictions to support prosecution. See Tamez, at p. 201; Tex Penal Code Ann. § 49.09(b). Furthermore, prior to trial, the indictment must be read to the jury; however, such reading at this time may not include any prior convictions alleged for purposes of enhancement, only, but may include any prior convictions alleged to confer jurisdiction. See Tamez, at p. 201; TexCeim. P.Code Ann. § 36.01. Although prior DWI convictions are alleged in an indictment to confer jurisdiction on the trial court, Article 36.01, in conjunction with Tex. Penal Code Ann. § 49.09(b), does not require the reading of those prior convictions beyond the requisite two, it merely allows such reading. See Tamez, at p. 201.

The Court in Tamez discussed the implication of a full reading of the indictment and determined that such reading violated a defendant’s protections under Texas Rule of Evidence 403, which proscribes the admission of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. Tex.R. Evid. 403; see Ta-mez, at pp. 200-03. The Court reasoned that when prior DWI convictions are presented to the jury, there is a strong likelihood that the jury would convict the defendant based upon such previous conduct or “bad character.” Tamez, at p. 202. Tempering Article 36.01(a)(l)’s authorization of the reading of the full indictment with the protections provided by Rule 403, the Ta-mez Court concluded that a defendant’s agreement to stipulate to the requisite two previous DWI convictions alleged in an indictment is sufficient to limit the indictment reading to the two prior convictions, and the stipulation is sufficient to support prosecution of the elevated felony offense. See Tamez, at p. 201. Therefore, a defendant should be allowed to stipulate to such previous offenses if he so chooses. See id.

Because Hernandez filed a proper motion to stipulate to his previous DWI convictions used to elevate his offense from a misdemeanor to a felony, the trial court erred by denying his motion. See Tamez, at pp. 201-03. Therefore, we sustain Hernandez’s sole issue on appeal. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

      . Although the parties do not address the issue, Hernandez's conditional appeal taken from a pre-trial ruling, followed by his guilty plea, is now permissible. See Young v. State, 8 S.W.3d 656, 663-67 (Tex.Crim.App. 2000)(en banc).


text:
    Ralph THOMPSON and Paula Thompson, Appellants, v. CONTINENTAL AIRLINES, Appellee.
    No. 04-99-00249-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 31, 2000.

      Jonathan C. Juhan, Grossman & Wald-man, L.L.P., Beaumont, for appellant.
    Ron A. Sprague, R. Matt Lair, Gendry & Sprague, P.C., San Antonio, for appel-lee.
    Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, KAREN ANGELINI, Justice.
   OPINION

KAREN ANGELINI, Justice.

Factual and Procedural Background

While deplaning from a Continental Airlines flight, Ralph Thompson allegedly fell and was injured. On April 26, 1995, Thompson, and his wife, Paula Thompson, filed a petition under Chapter 13 of the United States Bankruptcy Code. In their petition they failed to list the potential cause of action they had against Continental. The following year, on April 17, 1996, the Thompsons brought .a personal injury claim against Continental Airlines. The cause was tried before a jury on October 7, 1997. The jury was unable to reach a verdict and the presiding judge declared a mistrial. Thereafter, Continental moved for summary judgment against the Thompsons. In doing so, Continental alleged it was entitled to summary judgment as a matter of law because the doctrine of judicial estoppel precluded the Thompsons from assuming a position in this lawsuit inconsistent with the position they took in the previous bankruptcy proceeding. The trial court agreed and Continental’s motion was granted. The Thompsons appealed. We reverse and remand the judgment.

Standard of Review

The underlying purpose of Texas’s summary judgment rule is to eliminate unmer-itorious claims. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). Accordingly, Texas Rule of Civil Procedure 166a(c) provides that where there is no genuine issue as to any material fact, the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e). In a summary judgment proceeding, the burden is on the moving party. See Roskey v. Texas Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex.1982). To meet this burden, the movant must either disprove at least one element of the plaintiffs theory of recovery, or plead and conclusively establish each element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). Once the movant establishes its right to summary judgment, the burden then shifts to the nonmovant to present issues that preclude summary judgment. See id. at 678; see also Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 430 (Tex.App.-San Antonio 1993, writ denied).

We review a summary judgment de novo. See Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 725 (Tex.App.-San Antonio 1999, pet. denied). In deciding whether there was an alleged fact issue raised to preclude summary judgment, we take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in the nonmovant’s favor. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

Judicial Estoppel

In the Thompsons’ sole issue, they assert the trial court erred in granting Continental’s motion for summary judgment based on the doctrine of judicial estoppel.

Judicial estoppel is a common law doctrine that applies when a party tries to contradict his or her own sworn statement made in a prior judicial proceeding. See In Re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999); Stewart v. Hardie, 978 S.W.2d 203, 208 (Tex.App.-Fort Worth 1998, pet. denied). “The policies underlying the doctrine include preventing internal inconsistency, precluding litigants from playing fast and loose with the courts, and prohibiting parties from deliberately changing positions according .to the exigencies of the moment.” United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993). The doctrine was designed to prevent “cold manipulation and not an unthinking or confused blunder” and is applied when a party uses intentional self contradiction as a means of obtaining an unfair advantage in a legal proceeding. See In Re Coastal Plains, 179 F.3d at 206; Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir.1973).

The Fifth Circuit has recognized some limitations on the application of the doctrine. See In Re Coastal Plains, 179 F.3d at 206-207. It may be applied only when the position of the party to be es-topped is clearly inconsistent with its previous one, the court must have accepted the prior position and the party must have acted' intentionally, not inadvertently. See id. (citing multiple cases where courts throughout the circuits impose such restrictions).

In considering judicial estoppel for bankruptcy cases, the debtor’s failure to disclose is “inadvertent” only when the debtor lacks knowledge of the undisclosed claims or has no motive for their concealment. See id. at 210.

Inadvertency

In its motion for summary judgment, Continental argues that as debtors in a bankruptcy action, the Thompsons had an “absolute duty to report whatever interests they hold in property.” Continental additionally maintains that prior to filing for bankruptcy, the Thompsons were clearly aware of their potential cause of action against Continental, and that failing to include it in the bankruptcy petition prevents their attempt to pursue their personal injury cause of action.

However, in their response to Continental’s motion for summary judgment, the Thompsons raised a fact issue as to whether the omission of their possible cause of action in their bankruptcy petition was intentional or simply a mistake. The Thompsons submit that their failure to disclose the potential cause of action resulted from their belief that the language “other contingent and unliquidated claims of every nature”included in the standard bankruptcy petition did not encompass lawsuits involving claims for injuries.

In reviewing the granting of a summary judgment, all evidence favorable to the non-movant should be taken as true, and every reasonable inference or doubt must be resolved in his or her favor. Viewed in this light, the Thompsons met their burden by raising the fact issue of whether their failure to disclose the cause of action was intentional and in bad faith. See Dawson v. J.G. Wentworth & Co., Inc., 946 F.Supp. 394, 397 ( E.D.Pa.1996) (finding that although the debtor disclosed his claim in his amended bankruptcy schedules, the fact issue regarding his good or bad faith in not disclosing his claims in the original bankruptcy schedules precluded summary judgment based on judicial estoppel); see also In re Okan’s Foods, Inc., 217 B.R. 739, 755 (Bkrtcy.E.D.Penn.1998) (stating that a person’s motivation or intent is generally considered to be a question of fact which is not subject to resolution on summary judgment); Richardson v. Kraft-Holleb Food Service, Inc., a Div. of Philip Morris, 774 F.Supp. 1108, 1111 (N.D.Illinois 1991), aff'd, 998 F.2d 1016 (7th Cir.1993) (stating that resolution by summary judgment is inappropriate when questions of motive and intent are in dispute).

Policy Behind Judicial Estoppel

Although the Thompsons initially failed to include their personal injury cause of action in their bankruptcy petition, they amended their petition and thus cured any defect that might give rise to judicial es-toppel. The parties stipulate that the Thompsons’ bankruptcy cause was amended from a Chapter 13 to a Chapter 7 on January 22, 1999. The Chapter 7 petition includes the cause of action against Continental as an asset of the estate. Therefore this case does not present a situation where the results would be inconsistent with those reached in the bankruptcy proceeding. Accordingly, granting the motion for summary judgment would not promote the goal of the doctrine of judicial estoppel, namely to prevent a party from using self-contradiction to attain an unfair advantage. See Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5 th Cir.1996); Andrews, 959 S.W.2d at 649.

Stewart v. Hardie

In making their argument that judicial estoppel is the proper means of disposing with the Thompsons’ claim, Continental relies on the case of Stewart v. Hardie, professing the cases are “virtually identical.” 978 S.W.2d 203 (Tex.App.-Fort Worth 1998, pet. denied).

In the Stewart case, Dr. Hardie admitted Mrs. Stewart to the hospital for surgery. Id. at 205. She suffered from postoperative bleeding, and eventually died. Id. She was survived by her husband Theodore Stewart and three children. Id. The debtor, Stewart, filed for bankruptcy on May 3,1991 and on September 5 of that same year, the bankruptcy court discharged Stewart as a debtor. Id. at 206. On November 15, 1991, Stewart filed his original petition asserting survival and wrongful death actions on behalf of his deceased wife. Id. Hardie, the defendant, filed affirmative defenses to both actions claiming that Stewart was judicially es-topped from asserting his wrongful death claim because he had failed to list it as an asset in his bankruptcy petition six months before. Id. The parties submitted an “agreed case” to the court. Id.; see Tex.R. Crv. P. 263. After considering the evidence, the trial court ruled that Stewart was barred from asserting his wrongful death claim on the basis of judicial estop-pel. Id.

On appeal, the Texarkana appellate court held that Stewart was barred from bringing his wrongful death claim under the doctrine of judicial estoppel. Id. at 208. The court determined that Stewart was “playing fast and loose” with the courts by the timing of his filings and that it appeared he deliberately waited until after the bankruptcy proceeding was discharged to bring his claim. Id. at 208.

Despite the factual similarity of these two cases, Continental’s reliance on this case is misplaced. Initially, Stewart’s cause of action was disposed of as an agreed case. See Tex.R. Civ. P. 263 In reviewing an agreed case the only issue on appeal is whether the trial court correctly applied the law to the stipulated facts. See id. at 206; State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex.App.-Fort Worth 1996, writ, denied). In this case, the Thompsons’ claim was eliminated on summary judgment grounds. The standard for reviewing summary judgment is not whether the trial judge correctly applied the law to the facts of the case, but whether there were no longer any issues of material fact remaining. In light of the different standards of review used, the Stewart case cannot be adequately analogized to this case.

Secondly, and more importantly, in Stewart, only after the debtor’s bankruptcy was discharged did he file his wrongful death claim. The court found that by the timing of his filings, Stewart was “playing fast and loose” with the courts, stating “Stewart deliberately waited until his bankruptcy was over to file the wrongful death action.” Stewart, 978 S.W.2d at 208. In this case, however, the Thompsons filed their personal injury claim against Continental during the pendency of their bankruptcy petition. Their actions indicate that they were not aware of the requirement that they include any legal claims as-assets in their bankruptcy petition, and that they were not “playing fast and loose” with the courts. Continental incorrectly relied on the Stewart case in making their argument for summary judgment.

Accordingly, we reverse and remand the judgment.

      . We will apply federal law to the issue of judicial estoppel in order to "promote the goal of uniformity and predictability in bankruptcy proceedings” and to "give the proper effect to the judgment of the bankruptcy court.” See Stewart v. Hardie, 978 S.W.2d 203, 208 n. 1 (Tex.App.-Fort Worth 1998, pet. denied); Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 649 n. 1 (Tex.App.-El Paso 1997, writ denied).

      . In Texas, judicial estoppel is a common law doctrine that applies when a party to a suit attempts to contradict his or her own sworn statement given in prior litigation. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956). The elements required for judicial estoppel are: 1) a sworn, inconsistent statement made in a prior judicial proceeding; 2) the party who made the statement successfully maintained the prior position; 3) the prior statement was not made inadvertently or by mistake, fraud, or duress; and 4) the statement was deliberate, clear, and unequivocal. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850 (Tex.1980); Long, 291 S.W.2d at 295; In the Interest of M.M.O., 981 S.W.2d 72, 84 (Tex.App.-San Antonio 1998, reh’g overruled). Under either the federal or Texas standard for judicial estoppel, the outcome of this case would be the same.


author: PHIL HARDBERGER, Chief Justice.

text:
    LONG DISTANCE INTERNATIONAL, INC. and Star Marketing Service, Inc., Appellants, v. TELEFONOS DE MEXICO, S.A., SBC International, Inc., and SBC Communications, Inc., Appellees.
    No. 04-98-00873-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 31, 2000.

      Randall A. Pulman, John M. Castillo, Stumpf, Falgout, Craddock & Massey, P.C., San Antonio, for appellant.
    Javier Aguilar, James S. Golden, SBC Communications, Inc., Hubert W. Green, Daniel W. Lanfear, The Kleberg Law Firm, P.C., George H. Spencer, Jr., Jorge E. Canseco, Jeffrey I. Kavy, Clemens & Spencer, P.C., San Antonio, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice ALMA L. LÓPEZ, Justice.
   Opinion on Appellants’ Motion for Rehearing

PHIL HARDBERGER, Chief Justice.

The motion for rehearing filed by appellants, Long Distance International, Inc. and Star Marketing Service, Inc., is denied. This court’s opinion and judgment dated November 24, 1999 are withdrawn, and this opinion and judgment are substituted.

We substitute this opinion to cite the laws and regulations of Mexico we relied on in reaching our decision. We also acknowledge that since our opinion issued the Fifth Circuit issued Access Telecom, Inc. v. MCI Telecommunications Corp., et al., 197 F.3d 694 (5th Cir.1999). We have read the Fifth Circuits opinion with great interest and respect; however, we also are aware that petitions for rehearing en banc are pending, that the Fifth Circuit has requested Access Tele-com, Inc. to file a response to the petitions for rehearing en banc, and that the SCT has filed an amicus curiae brief in support of the petitions for rehearing en banc. In addition, while this court may certainly draw upon Fifth Circuit precedent in reaching a decision, we are obligated to follow only higher Texas courts and the United States Supreme Court. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993); see also Lee M. Bass, Inc. v. Shell Western E & P, Inc., 957 S.W.2d 159, 162 n. 4 (Tex.App.—San Antonio 1997, no pet.).

Long Distance International, Inc. (“LDI”) and Star Marketing Service, Inc. (“Star”) appeal an order granting summary judgment in favor of Telefonos de Mexico, S.A. (“Telmex”), SBC International, Inc. (“SBI”) and SBC Communications, Inc. (“SBC”). LDI and Star generally challenge the order granting the summary judgments and specifically assert: (1) LDI/Star’s conduct was legal and comity considerations are not applicable; (2) the conduct engaged in by Telmex, SBI, and SBC was wrongful and without privilege; (3) LDI/Star’s antitrust claims are valid and the Texas Antitrust Act is applicable; (4) Telmex, SBI and SBC conspired against LDI/Star; (5) the Texas Deceptive Trade Practices Act is applicable; (6) LDI/ Star’s breach of contract claim is valid; and (7) LDI/Star have suffered damages. Telmex filed a cross-appeal challenging the trial court’s order denying its special appearance. We overrule Telmex’s contention regarding the special appearance, but we affirm the trial court’s summary judgment based on principles of comity.

Factual and PROCEDURAL History

On March 10, 1976, the Mexican government awarded Telmex an exclusive concession or franchise to build, operate, and exploit a public telephone service network for a period of thirty years. On December 10, 1990, the exclusive concession was amended with a view to open the Mexican telecommunications market to competition as of January 1, 1997. The amendment to the concession required Telmex to permit its users to resell excess capacity contracted with Telmex beginning in August of 1996. The amendment, therefore, contained terms that contemplated competition in 1997; however, Telmex retained its exclusive concession for an additional six years.

In an effort to prepare itself for competition with U.S. carriers, Telmex entered into an agreement with SBI pursuant to which SBI provided advice regarding organizational issues and preparation for competition.

In October of 1992, Telmex and MCI entered into an agreement for the purpose of providing International 800 (“1800”) service. The agreement provided that outbound 1800 service from the U.S. to Mexico would allow callers in the U.S. to reach Telmex subscribers in Mexico at no cost to the caller. Likewise, outbound 1800 service from Mexico to the U.S. would allow callers in Mexico to reach MCI subscribers in the U.S. at no' cost to the callers. The agreement then set forth the rates each company would charge the other for their respective “leg” of an 1800 call and contained a method for the monthly settlement between the two companies. Because Telmex was prohibited from discriminating among the various U.S. carriers, similar agreements were entered into with three other carriers, including AT & T and Sprint.

The parties dispute the nature of the arrangement between Telmex and the U.S. carriers. LDI/Star contend that the agreement resulted in the sale of excess capacity to the U.S. carriers. Telmex’s position is that the arrangement was in the nature of an interconnection agreement. Based on the agreement, the arrangement between Telmex and MCI does not appear to be one of sale, but rather one of service. Telmex agreed to provide a service to MCI by carrying the Mexican leg of a call from a Mexican caller to an MCI 1800 subscriber to the border, where it was transferred to MCI’s facilities, and Telmex would charge MCI the rates stated in the agreement for that service. Similarly, MCI agreed to carry the United States leg of a call from an American caller to a Telmex 1800 subscriber to the border, where it was transferred to Telmex’s facilities, and MCI would charge Telmex the rates stated in the agreement for that service.

The parties also dispute the nature of the arrangement between MCI and its customers, like LDI/Star. LDI/Star contend that this arrangement is a resale of the Telmex excess capacity sold to MCI. Tel-mex contends that the 1800 numbers to which MCI’s customers subscribed were MCI’s, and Telmex’s sole involvement in the arrangement was its agreement with MCI to carry the Mexican leg of calls using MCI’s 1800 numbers pursuant to their agreement.

MCI had various types of customers that utilized the 1800 numbers. First, MCI entered into contracts with end users, who had an 1800 number and provided it to Mexican callers. The Mexican callers would use the 1800 number to purchase goods or services from the end user or to otherwise contact the end user for business purposes. Examples of these types of end users are Ford, which Mexican callers would contact on its 1800 number to purchase parts, and Kentucky Fried Chicken, who would subscribe to an 1800 so that its regional offices in Mexico could contact its regional office in the United States to provide business information. All the parties agree that the arrangement between MCI and this first type of customer was legal.

The second type of customer with which MCI entered into contracts were those who were not the end user of the 1800 call, like LDI/Star. LDI/Star entered into contracts with Mexican residents, charging them for the use of an 1800 number that LDI/Star obtained from MCI. The Mexican resident would call the 1800 number which would provide a second dial tone that would be used to call other places. Although Telmex received payment for this call, it only received payment from MCI for the Mexican leg of the call in accordance with its agreement with MCI, despite the fact that the call did not fit within the definition of outbound 1800 service as defined by that agreement. That is, the caller was being billed for the 1800 call, rather than the recipient. Telmex determined that this service was a resale and was illegal under Mexican law. As a result, Telmex undertook to locate those 1800 numbers that were being used for this type of service and disconnect them.

A third type of customer that entered into contracts with MCI engaged in callback services. This customer would link the 1800 number to a caller identification system. The 1800 call would not be connected, so that no charge was incurred for that call; however, the caller who was identified as having dialed the 1800 number would receive a return call, providing the caller with a new dial tone that was used to place a call to any location. As a result, the charge that Telmex would normally receive for the Mexican leg of the 1800 call would be circumvented because that call would appear to have gone unanswered.

In October of 1993, Jose Maria Rivas Moncayo, the general manager of the Office of the Secretary of Communications and Transportation (“SCT”), sent a letter to each of the U.S. carriers.

The letter stated:

This Ministry has learned that a service is being offered in Mexico to make long distance telephone calls to the United States and the rest of the world by way of using an 800 number, or a 3 “Rings” call, and receiving a callback from the United States whereby a dial tone is provided in order that the user, eluding TELMEX, can dial another part of the world or access other modalities.
This practice is illegal in Mexico, and in violation of the exclusivity provisions agreed to between the Federal Government and the TELMEX Company. Therefore, if the company you so aptly head finds itself in any of these circumstances, or has knowledge that one of your subscribers resorts to this practice, I would be very grateful if these services were suspended.

During the latter part of 1993 and early 1994, Telmex, with the assistance of SBI, began the process of identifying those subscribers of the U.S. carriers who were not end users. Telmex and SBI considered these subscribers to be engaged in resale, which was illegal under the terms of the SCT’s letter and Mexican laws and regulations, and also considered them to be providing services in Mexico in violation of Telmex’s exclusive concession.

In April of 1994, Telmex sent a letter to MCI, noting that it had come to Telmex’s attention that services provided to MCI by Telmex were being used by MCI’s subscribers for resale purposes. Telmex informed MCI that resale was prohibited in Mexico, and since none of the resellers had permits or concessions, they were in violation of the applicable telecommunications rules. The letter requested a list of MCI subscribers that engaged in the resale business. The letter stated that once the list was provided, Telmex would forward a letter to MCI explaining who would be disconnected and the scheduled range of disconnect dates.

In May of 1994, MCI responded to Tel-mex’s letter, requesting a copy of the specific laws and regulations that prohibit resale. MCI also stated that it could not provide Telmex with a list of its customers engaged in resale because such disclosure was prohibited by United States law and MCI was unclear on how resale was defined under Mexican law.

Telmex began disconnecting 1800 numbers that it identified as being used for resale purposes in July of 1994. Carlos Kauachi, a Telmex executive, was identified as the person who made the decision to disconnect after many discussions with the Telmex directors and the SCT. In response to MCI’s complaint that the disconnections were a surprise, Telmex responded that MCI knew of the illegal activity as early as October of 1998, when the SCT sent its notification to all U.S. carriers, and Telmex had further notified MCI in its April 1994 letter that disconnections would occur.

LDI/Star, one of MCI’s subscribers whose 1800 numbers were disconnected, filed the lawsuit giving rise to this appeal in June of 1996 asserting numerous causes of action, including tortious interference with contractual relations, tortious interference with prospective contractual relations, conspiracy to commit tortious interference, violations of the Texas Free Enterprise and Antitrust Act, breach of contract, and DTPA violations. Telmex filed a special appearance, challenging the trial court’s jurisdiction, which was denied. SBC and SBI filed a motion for summary judgment, as did Telmex. ■ Each of the motions asserted various grounds for rendering judgment in their favor. A joint appendix and various motions to take judicial notice of Mexican law were filed. The trial court granted summary judgment in favor of both SBC/SBI and Tel-mex as to all of the asserted causes of action. LDI/Star timely filed this appeal

Special Appearance

1. Standard of Review

A nonresident defendant must negate all bases of personal jurisdiction to prevail in a special appearance. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996). We review the granting of a special appearance for an abuse of discretion. Klenk v. Bustamante, 998 S.W.2d 677, 681 (Tex.App. — San Antonio 1998, no pet.). Under this standard, we review the trial court’s legal conclusions de novo. Id. With regard to factual issues, however, we may not disturb a trial court’s resolution of factual issues unless the trial court could reasonably have reached only one conclusion. Id. Because the record lacks findings of fact and conclusions of law, all questions of fact are presumed to support the judgment. Id.

2. Personal Jurisdiction Test

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Texas long-arm statute are satisfied. CSR Ltd., 925 S.W.2d at 594. The Texas Supreme Court has repeatedly interpreted the Texas long-arm statute to reach as far as the federal constitutional requirements of due process will allow. Id. Consequently, the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. Id.

The federal constitutional test of due process consists of two parts: (1) whether the nonresident defendant has purposely established “minimum contacts” with the forum state; and (2) if so, whether the exercise of jurisdiction comports with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The minimum contacts requirement is satisfied if either general or speciñc jurisdiction exists. CSR Ltd., 925 S.W.2d at 595. In this case, the trial court ruled that no specific jurisdiction existed, but it overruled the special appearance on the basis that general jurisdiction existed.

3. General Jurisdiction

General jurisdiction is present when a defendant’s contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Id. General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. Id.

4. Application

The parties basically agree on the type of contacts Telmex has with Texas, but they strongly disagree as to whether those contacts are sufficient to establish general jurisdiction.

a.Revenues from Texas residents. LDI/Star contend that the revenues Tel-mex makes on calls from Texas residents to Mexican residents should be considered as a contact for purposes of the jurisdictional analysis. Telmex concedes that it makes revenues from such calls, but asserts that those revenues are pursuant to interconnection agreements with U.S. carriers. Under those agreements, the Texas residents that call Mexican residents are the customers of the U.S. carriers. The Texas residents only receive invoices from their U.S. carriers. The services Telmex performs are for the U.S. carrier pursuant to the interconnection agreements and are performed solely within Mexico.
b. Entry into U.S. Market. In response to the opening of competition in Mexico, Telmex explored the possibility of entering into competition in the U.S. Telmex formed an entity with a U.S. carrier through an indirect subsidiary which has filed an application with the Federal Communications Commission. Telmex retained the services of a marketing research company to conduct a market survey of Texas customers. Tel-mex entered into a lease for real property located in Texas. Telmex has been invoiced for personal property taxes in Texas. Telmex hired a former employee of SBC, who works in Texas on Tel-mex’s behalf.
c. Trademark. Telmex has filed applications to protect various trademarks. An attorney representing Telmex sent a letter to a Texas corporation, demanding that it cease infringing on Telmex’s trademark.
d. Securities. Telmex has registered securities that are sold in the U.S.
e. Agreement with SBI. Pursuant to its agreement with SBI, various SBC employees have transferred to Mexico to provide consulting services to Telmex.

We agree with Telmex that some of the contacts relied on by LDI/Star are not relevant to the jurisdictional issue; however, we conclude that general jurisdiction is supported by the record as a whole, including: (1) the activities undertaken by Tel-mex in its efforts to enter into competition in the U.S., which include: (a) the retention of the market research firm; (b) the employment and actions of Telmex’s employee in Houston; and (c) the lease of real property in Texas and the location of personal property in Texas; and (2) the demand letter with regard to the trademark infringement. Telmex’s cross-appeal is overruled.

SummaRY Judgment Standaed of Review

A defendant moving for summary judgment has the burden of establishing that no genuine issue of material fact exists as to one or more essential elements of the plaintiffs cause of action and that the defendant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on the targeted element of the plaintiffs cause of action. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.—Corpus Christi 1991, writ denied).

In reviewing a summary judgment, an appellate court accepts as true all evidence supporting the non-movant. Nixon, 690 S.W.2d at 549. All inferences are indulged in favor of the non-movant, and all doubts are resolved in his favor. Id. Where, as here, the trial court does not state the grounds for granting the motion, and several grounds are provided, the reviewing court must determine if any of the grounds would support the judgment. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

Legality of Resale Service

One of the grounds raised in both of the motions for summary judgment is that LDI/Star cannot recover under any of their asserted causes of action because their actions were illegal under Mexican law. Telmex and SBC/SBI presented numerous documents and the testimony of an expert to support the assertion that LDI/ Star’s activities were illegal, including: (1) the notification from the SCT to U.S. carriers regarding the illegality of call-back resale activities; (2) the Mexican telecommunications laws and regulations and the terms of the exclusive concession granted Telmex that precludes the provision of telecommunications services in Mexico without a permit or concession; and (3) the declaration (opinion) of Francisco Man-zanero; and (4) a letter dated June 6,1996, to all the director generals of SCT centers regarding the illegality of the provision of long distance services by means of alternate call procedures, such as access using 800 numbers. LDI/Star rely on the deposition testimony of Elvia Salas de de Stefa-no (“Salas”) and a letter from the SCT dated February 2, 1996 to support their contention that their actions were not illegal.

No action will lie to recover damages if the recovery requires the showing of an illegal transaction or unlawful action to which the plaintiff was a party. Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 328 (Tex.App.—Fort Worth 1998, pet. denied); Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466, 469 (Tex.App.—San Antonio 1994, writ denied). Similarly, a contract that is illegal or a contract to do a thing that cannot be performed without violating a law cannot be interfered with. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660, 664-65 (Tex.1990); Robles v. Consolidated Graphics, Inc., 965 S.W.2d 552, 561 (Tex.App.—Houston [14th Dist.] 1997, pet. denied); Ralston Purina Co. v. McKendrick, 850 S.W.2d 629, 638-39 (Tex.App.—San Antonio 1993, writ denied). A contract made with a view of violating the laws of another country, though not otherwise obnoxious to the laws either of the forum or of the place where the contract was made, is illegal and will not be enforced. Ralston Purina Co., 850 S.W.2d at 639. If a prospective contract is unenforceable because it is void, the unenforceability of the contract provides a defense to a tortious interference claim. Id.

Under the laws of Mexico, if LDI/Star were providing telecommunications services in Mexico, their actions would be illegal because they did not have a permit or concession. See Ley Federal De Tele-communicaciones, Capitulo III, Sección I, Artículo 11 (concession from Department required to install, operate or exploit public telecommunications network); Reglam-ento De Tblecommunicaciones, Capitulo II, Articulo 6a (to install, establish, operate and exploit telecommunications services, it shall be necessary to obtain a concession or permit from the Federal Executive). Moreover, they could not have been given such a permit or concession until August of 1996, when Telmex’s exclusive concession expired. The parties disagree, however, on whether LDI/Star’s activities involved the provision of services in Mexico.

LDI/Star’s expert concluded that LDI/ Star did not provide services in Mexico because the actual telecommunications service from the Mexican customer was carried to the border by Telmex in accordance with its interconnection agreement with MCI. MCI would then continue to service from the border to LDI/Star’s switch in accordance with its agreement with LDI/Star, and LDI/Star would then continue service from its . switch to the call’s termination point in accordance with its agreement with its subscriber, who was a Mexican resident. However, the testimony of LDI/Star’s owner, Tomas Revesz, refutes Salas’s premise that LDI/Star did not provide its services in Mexico. Revesz testified that LDI/Star solicited Mexican residents as subscribers through telemarketers and salespeople in Mexico. LDI/ Star programmed its 1800 numbers into the subscribers’ equipment, which numbers enabled the subscribers to access a switch which was used to transfer the calls to their termination point. LDI/Star billed the Mexican customer for this service. This service was unlike the services provided under the interconnection agreements with U.S. carriers. Under those agreements, the U.S. carriers would only solicit U.S. customers, the Mexican residents were Telmex’s subscribers or users, and the only entity that billed the-Mexican residents was Telmex.

Our reading of the Mexican laws is consistent with the SCT interpretations. Tel-mex and SBC/SBI introduced the letter from the SCT to all U.S. carriers dated October 1993, stating that callback services were illegal in Mexico and in violation of Telmex’s exclusive concession. In addition, Telmex and SBC/SBI introduced the June 1996 letter to the director generals of SCT centers, stating that providing international long distance services by means of alternate call procedures, such as access using 800 numbers, return call systems known as “call back,” automatic direct dial to preset numbers using some other similar or equivalent procedures with the same purpose, is outside the legal provisions established by the Federal Law on Telecommunications. Telmex and SBC/SBI assert that these letters should be given the same deference that courts give to interpretations of law by regulatory agencies that administer and enforce those laws. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Telmex and SBC/SBI further assert that this deference is even more applicable in the case of an interpretation by a foreign nation of its laws, as a matter of international comity.

Comity is a principle under which the courts of one jurisdiction give effect to the laws of another jurisdiction not as a rule of law, but rather out of deference or respect. See Hawsey v. Louisiana Dept. of Social Services, 934 S.W.2d 723, 726 (Tex.App.—Houston [1st Dist.] 1996, writ denied); see also Brady v. Brown, 51 F.3d 810, 816 (9th Cir.1995) (comity based on respect for sovereignty of other countries and under its forum state applies substantive law of foreign sovereign). In the legal sense, it is neither a matter of absolute obligation, on the one hand, nor mere courtesy or good will, upon the other. Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.1986). It is one jurisdiction’s recognition of the legislative, executive or judicial acts of another jurisdiction. Id.

Having reviewed the relevant Mexican laws and regulations and the SCT interpretations, which are consistent with our review of those laws, we conclude that the actions undertaken by LDI/Star were illegal. See Ley Federal De Telecomunica-ciones, Capitulo III, Sección I, Artículo 11 (concession from Department required to install, operate or exploit public telecommunications network); Reglamento De Te-lecommunicaciones, Capitulo II, Articulo 6a (to install, establish, operate and exploit telecommunications services, it shall be necessary to obtain a concession or permit from the Federal Executive). As a result, LDI/Star cannot recover under any of their asserted claims. See Littlepage, 984 S.W.2d at 328; Saks, 880 S.W.2d at 469. The trial court’s summary judgment in favor of Telmex and SBC/SBI as to ah causes of action is affirmed.

      . Because we disagree with LDI/Star’s reasoning that the arrangement between Telmex and MCI was a sale, we do not further consider LDI/Star’s contention that its actions were the resale of excess capacity sold to MCI by Telmex.

      . This standard was adopted by this court in Klenk and subsequently applied by this court in later decisions See Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 689-90 (Tex.App.—San Antonio 1998, no pet.); see also Jones v. Beech Aircraft Corp., 995 S.W.2d 767 (Tex.App.—San Antonio 1999, pet. dism’d). In Transportes Aereos de Coahuila, S.A. v. Falcon, 5 S.W.3d 712 (Tex.App.—San Antonio 1999, pet. filed.), we noted that it could be argued that the proper standard of review, even with respect to factual issues, should be de novo. We noted that such an argument would be particularly persuasive in that case because the trial court had the same record to review as was presented to this court, i.e., no live testimony was introduced at the hearing that would place the trial court in a better position to evaluate credibility. We did not reconsider the proper standard of review because we found that applying the more deferential abuse of discretion standard did not affect the ultimate outcome in that case. Similarly, we do not reconsider the proper standard in this case because it would not affect its outcome.

      . Although LDI/Star seek to rely on a separate SCT letter dated February 2, 1996, that letter relates only to Telmex's authority to interrupt services to its "users.” The "users” contemplated by that letter are those who necessarily have entered into service agreements with Telmex pursuant to which they pay Telmex fees for such services. No service agreement existed between LDI/Star and Tel-mex; therefore, LDI/Star was not a "user” to which the SCT letter refers, and LDI/Star’s reliance on this letter is misplaced.


text:
    GUNN INFINITI, INC., Appellant, v. Donald O’BYRNE, Appellee.
    No. 04-97-00270-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 2, 2000.
    Jonathan Yedor, San Antonio, for Appellant.
    Harry B. Adams, III, Adams & Flake, Universal City, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice.

This case is on remand from the Texas Supreme Court. The jury in this case found that Gunn Infiniti, Inc. (“Gunn Infin-iti”) knowingly engaged in conduct that violated the Texas Deceptive Trade Practices Act and committed common law fraud in its dealings with Donald O’Byrne (“O’Byrne”). The jury awarded. O’Byrne: (1) $10,500 in damages for the difference in the fair market value of the car Gunn Infiniti sold O’Byrne in the condition it was sold and the value the car would have had if it had been in the condition represented; (2) $11,000 in damages for mental anguish; and (8) $50,000 in additional and exemplary damages. The jury also awarded O’Byrne attorneys’ fees.

In our original opinion, we affirmed the trial court’s judgment based on the jury’s verdict. See Gunn Infiniti, Inc. v. O'Byrne, 963 S.W.2d 787 (Tex.App.—San Antonio 1998), rev’d, 996 S.W.2d 854 (Tex.1999). The Texas Supreme Court, however, held that there was no evidence to support O’Byrne’s recovery of mental anguish damages and reformed the award of DTPA damages to $31,500, or three times O’Byrne’s benefit-of-the-bargain damages of $10,500. Gunn Infiniti, Inc. v. O’Byme, 996 S.W.2d at 861. The Court remanded the DTPA claim to this court to consider Gunn Infiniti’s point of error as to the amount of attorney’s fees recoverable under the DTPA. See id. The Court also remanded O’Byrne’s alternative fraud theory for this court to determine the effect, if any, the reduction in actual damages has on the factual sufficiency of the evidence supporting the exemplary damages award. See id at 861-82. The Court then instructed that after we resolved the two issues on remand, O’Byrne would be entitled to elect his remedy under either the DTPA or common-law fraud. See id. at 862.

ATTORNEY’S FEES

O’Byrne concedes that the reduction in actual damages should result in a reduction of attorney’s fees awarded him because of his election to take a percentage of damages awarded. In the event O’Byrne elects to recover under his DTPA claim, therefore, the judgment should be reformed to reflect an award of attorney’s fees in an amount equal to 33% of $31,500 (the damages awarded under the DTPA as reformed by the Texas Supreme Court).

ExemplaRY Damages

In our original opinion, we noted that m determining whether to award punitive damages, a jury is to consider: (1) the nature of the wrong; (2) the character of the conduct; (3) the degree of culpability; (4) the situation and sensibilities of the parties; (5) the offensiveness of the conduct to a public sense of justice and propriety; and (6) the size of an award needed to deter similar future conduct. See Gunn Infiniti Inc., 963 S.W.2d at 798. We held that the evidence was sufficient to support the exemplary damages award, asserting:

[Tjhere is evidence showing wilful misrepresentation: Gunn representatives knew about body damage and repairs, both relatively minor and more extensive, and in spite of repeated questions by O’Byrne, determined for themselves that those repairs were not material and did not need to be disclosed. The fact that some employees were not aware of the extent of the repairs performed does not aid Infiniti. Rather, it suggests that those who should have known — individuals involved in direct sales to customers — did not know, and it raises some questions as to why this should be.
There was testimony that Gunn Infiniti had a policy of not disclosing repairs. Although Gunn representatives testified that this policy only addressed minor lot damage and that employees were instructed to disclose even this when asked, a jury was entitled to find that any non-disclosure policy constituted ’outrageous conduct. Further, the Gunn representatives’ unilateral determination that a hood replacement did not constitute material repair that a customer should know about may also be viewed as outrageous.' This is conduct the jury may have wished to deter through an award of exemplary damages.

Id. at 798-99.

Contrary to the issues briefed by Gunn Infiniti, we do not read the Texas Supreme Court’s opinion as requiring us to revisit the sufficiency of the evidence to support an exemplary damage award. Even if the opinion were to be read this way, we would reach the same result for the reasons previously given. The fact that the mental anguish suffered by O’Byrne was held not to be compensable by the Texas Supreme Court does not alter the nature of his suffering or the conduct that caused it. It simply means that O’Byrne’s testimony regarding the nature of his suffering was not sufficient evidence to rise to the level of “a high degree of mental pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger.” Gunn Infiniti, Inc., 996 S.W.2d at 861.

We do read the Texas Supreme Court’s opinion as requiring us to revisit the sufficiency of the evidence to support the amount of the award. The Court cites Southwestern Inv. Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970), in support of its decision to remand. See Gunn Infiniti, Inc., 996 S.W.2d at 861-62. In Nee-ley, the Court held that “when a court of civil appeals suggests a remittitur of a substantial portion of the actual damages found by a jury, the court of civil appeals is under an obligation to give consideration to the ratio between exemplary and actual damages as established by the jury in passing on the further question of exces-siveness of exemplary damages.” 452 S.W.2d at 708. Under that holding, a reduction in actual damages calls into question the “excessiveness” or “amount” of the exemplary damages award, not the finding that exemplary damages are warranted. The Court also cites to its decision in Tatum v. Preston Carter Co., 702 S.W.2d 186 (Tex.1986), in which the Court held that a court of appeals erred in ordering a reduction in exemplary damages based on the same proportion by which the actual damages were reduced. In Tatum, the Court cautioned that where the actual damages are reduced, the same factors considered in determining the reasonableness of an exemplary damages award must be considered in determining the reasonableness of the resulting proportion between the reduced actual damages and the exemplary damages. 702 S.W.2d at 188.

In Neeley, the reduction in actual damages caused the ratio between actual damages and punitive damages to increase from approximately four to one to approximately twenty-eight to one. 452 S.W.2d at 705. In Tatum, the reduction in actual damages caused the ratio to increase from approximately two to one to approximately seven and one-half to one. 702 S.W.2d at 188. In this case, the reduction in actual damages only caused the ratio to increase from approximately two to one to approximately five to one. Although we are bound to consider the change in the ratio that was established by the jury, we also must consider the other factors the jury was instructed to consider in reaching its award. See Tatum, 702 S.W.2d at 188.

In assessing exemplary damages, the jury was properly instructed to consider six factors. Out of those six factors, only one factor — the situation and sensibilities of the parties — included any consideration of O’Byrne’s mental anguish. The other five factors — the nature of the wrong, the character of the conduct, the degree of culpability, the offensiveness of the conduct to a public sense of justice and propriety, and the size of the award needed to deter similar conduct in the future or the net worth of the defendant — focus on the reprehensibility of the conduct itself, its offensiveness to the public at large and the need to deter similar future conduct. See Gunn Infiniti, Inc., 963 S.W.2d at 798 (listing factors to be considered). The jury’s award of mental anguish damages possibly had some effect on the jury’s assessment of exemplary damages. The effect though, if any, is only a partial one. The exemplary damages instruction directs the jury’s attention primarily to (1) the wilful nature of Gunn Infiniti’s misrepresentation; (2) the outrageous nature of Gunn Infiniti’s non-disclosure policy; and (3) Gunn Infiniti’s unilateral determination that a hood replacement did not constitute a material repair. See Gunn Infiniti, Inc., 963 S.W.2d at 798-99. None of these change whether there are mental anguish damages or not. We conclude that a reasonable award of exemplary damages would be $40,000 and that the award of $50,000 is excessive by $10,000.

Conclusion

O’Byrne originally elected his remedy under the DTPA, and the judgment based on that election is affirmed as reformed and modified by this opinion and the opinion of the Texas Supreme Court. The Texas Supreme Court has instructed that O’Byrne is entitled to make a new election based on our resolution of the issues we have considered in this opinion. This cause is remanded to the trial court to permit O’Byrne to make his election.

      . We also reject Gunn Infiniti’s contention that exemplary damages could not be awarded based on the nature of the actual damages awarded, i.e., benefil-of-the-bargain damages. See Peco Const. Co. v. Guajardo, 919 S.W.2d 736, 741 (Tex.App.—San Antonio 1996, writ denied)


author: ALMA L. LÓPEZ, Justice.

text:
    NORTHWESTERN NATIONAL COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. Lourdes RODRIGUEZ, Appellee.
    No. 04-99-00027-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 9, 2000.

      J. Gordon McHaney, Lea & Chamberlain, Austin, for appellant.
    Claudio Heredia, Knickerbrocker, Here-dia, Jasso, Dovalina <& Stewart, Eagle Pass, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice.
   OPINION

Opinion by:

ALMA L. LÓPEZ, Justice.

This court’s opinion dated January 31, 2000 is withdrawn, and this opinion is substituted. We substitute this opinion to correct errors in footnote 1 and to correct the spelling of trial judge’s name in the body of the opinion. Our original opinion remains the same in all other respects.

Can an insured motorist, in settling claims with her insurance carrier, reserve for later determination that she is legally entitled to statutory penalties and attorney’s fees? We hold that she can, and for the reasons stated in this opinion, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

On December 2, 1995, Lourdes Rodriguez was driving east in her ’93 Ford pickup when an unidentified motorist, heading west, crossed into her lane of travel, collided head-on with her truck, and fled the scene. The evidence is undisputed that her injuries resulted from a collision with a “hit-and-run” driver. Accordingly, four days later, Rodriguez submitted a claim to Northwestern National County Mutual Insurance Company for uninsured motorist or UIM benefits.

On March 28, 1996, Rodriguez sent Northwestern medical records and bills with a demand letter requesting prompt settlement. Northwestern neither notified Rodriguez in writing within fifteen days of her letter of the insurer’s acceptance or rejection, nor paid the claim within sixty days of receipt of her letter.

On June 23, 1997, Northwestern offered to settle the claim, but Rodriguez rejected the offer. On August 21, 1997, Rodriguez filed suit against Northwestern seeking UIM benefits under her insurance policy. Northwestern filed a general denial and averred that Rodriguez had not proven that she was legally entitled to recover damages from the owner/operator of the uninsured motor vehicle involved in the accident.

On August 11, 1998, Rodriguez accepted Northwestern’s $10,000.00 settlement offer for bodily injuries, excluding attorney’s fees and statutory penalties. The agreement specifically stated that it did not apply to claims under Article 21.55. A hearing on this issue was held on October 23, 1998, wherein the district court awarded Rodriguez attorney’s fees in the amount of $2,500.00. On January 11, 1999, Rodriguez released all other claims and causes of action except statutory penalties and attorney’s fees, and Northwestern filed this appeal.

Discussion

The central issue in this appeal is whether or not Rodriguez, in settling her UIM claims with her insurer, can reserve for later determination statutory penalties and attorney’s fees. Article 21.55, section 6 of the Texas Insurance Code states that in all cases where a claim is made pursuant to a policy of insurance and the insurer liable therefor fails to comply with the requirements of this article, the insurer shall be liable to pay the holder of the policy, in addition to the amount of the claim and damages, reasonable attorney’s fees. It further states that if suit is filed, such attorney’s fees shall be taxed as part of the costs in the case. And, it is the province of the trial court to fix reasonable attorney’s fees if the hable insurer does not pay a loss within thirty days of demand. Tex. Ins.Code Ann. art. 21.55 § 6 (Vernon Supp.1999). Also significant to the disposition of this case is section 8 of Article 21.55 which states that the article shall be liberally construed to promote its underlying purpose which is to obtain prompt payment of claims made pursuant to policies of insurance. Id. § 8.

Proof of Claim

Recovery of attorney’s fees from the opposing party is permitted when a statute or contract between the parties authorizes such recovery. See Tex. Civ. PRAC. & Rem.Code Ann. 38.001 (Vernon 1997). Under the Texas Insurance Code, the requirements to recover attorney’s fees are: (1) recovery of a valid claim, (2) representation by an attorney, (3) presentment of the claim to the insurance company, and (4) failure of the insurance company to tender payment of the amount owed within thirty days from the date of presentment. Tex. Ins.Code Ann. art. 21.55 § 2, 3, 4, 6, 7, 8.

Opposing the award of penalties and attorney’s fees, Northwestern first argues that Rodriguez faded to comply with all conditions precedent to suit and failed to establish the amount of damages, if any, she was legally entitled to recover from the owner/operator of an uninsured motor vehicle. Northwestern cites Essman v. General Acc. Ins. Co. of America, 961 S.W.2d 572, 573 (Tex.App.—San Antonio, 1997, no writ) as a basis for its argument. The issue in Essman, however revolved around two different law suits. In the first suit,' Essman as defendant settled with two plaintiffs, Trevino and Contreras, for damages sustained in an automobile accident. At no time during the litigation did Essman claim that either Trevino or Contreras were at fault or responsible for any injuries or damages Essman may have sustained. The outcome of this first suit was an agreement to an order of dismissal stating that the parties had settled and compromised all existing controversies. Then a few months later, Essman, as plaintiff himself, sued his insurance carrier for UIM benefits for his own injuries sustained in the accident with Trevino and Contreras. The difference between Essman and the case at bar is that no fault was established in Essman and the case was dismissed with a settlement of all existing controversies. Contrary to Essman, Northwestern • acknowledged that UIM coverage applied here. In addition, the court’s denial of Essman’s claim was for future claims based on the same set of facts, but the court in the Rodriguez’s case merely confirmed a statutory right derived from her claim and reserved in the settlement contract. Without contradicting our holding in Essman, that the settlement of one suit bars a later suit on the same set of facts, we find the appellants’ use of Essman an inapposite attempt to overturn a legitimate order of the court to which the insurer initially agreed. We therefore overrule appellant’s first issue.

Article 21.55

Alternatively, Northwestern argues that if Rodriguez could assert a claim under Article 21.55, Northwestern accepted the claim within the statutory deadline after it received the information it requested, i.e., it tendered an offer within fifteen business days of finally receiving the requested information. We agree that Rodriguez was not entitled to payment within fifteen days of her claim; however, Article 21.55 does not require an insurer to pay every claim within fifteen days. It simply requires steps to be taken within that time. Dunn v. Southern Farm Bureau Cas. Ins. Co., 991 S.W.2d 467, 474 (Tex.App.—Tyler 1999, pet. denied). Requiring Rodriguez to wait until the completion of an arbitrary amount of treatment before knowing whether or not her claim was accepted or rejected would frustrate the purpose and intent of the statute. If the insurer is unable to accept or reject the claim within the period specified, section (d) of Article 21.55 requires the insurer to so notify the claimant within fifteen days. The notice must give reasons why the insurer needs more time. See Tex. Ins. Code Ann. art. 21.55 § 6. Northwestern stipulated that it failed to take such steps. We therefore overrule Northwestern’s second issue.

We rejected a similar attempt to avoid liability for the payment of attorneys’ fees in Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546 (Tex.App.—San Antonio 1994, no writ). In rejecting such an argument, we stated that to require the amount owed under the contract to be proven to a specific amount before its insured could recover attorney’s fees would virtually eliminate the recovery of attorney’s fees in any UIM contract dispute, a result contrary to established law. See id. at 552.

Article 22.55 is relatively new and its provisions have not been interpreted or applied in many reported cases. However, the statute is simple and its language unambiguous. Construction of a statute must be consistent with its underlying purpose and the policies it promotes. See Dunn, 991 S.W.2d at 473; Tex. Gov’t Code Ann. § 311.023(1). The plain objective of the statute at issue is to obtain prompt payment of claims, and we, as a court, must liberally construe the statute to promote its underlying purposes. See Tex. Ins.Code Ann. art. 21.55, § 8.

Expert Testimony

Thirdly, Northwestern argues that since Rodriguez failed to identify an expert on attorney’s fees, it was error for the trial court to consider testimony regarding the same. In its first set of interrogatories, Northwestern asked Rodriguez to identify all persons with knowledge of relevant facts, including persons who may testify about damages and all persons who may be called as an expert witness at trial. There is no dispute that Heredia, Rodriguez’s attorney, was properly permitted to testify as a fact witness.

A party is obligated to designate any expert it expects to call and to disclose the substance of his testimony as soon as practical, but not less than thirty days before trial. Tex.R. Crv. P. 166b(6)(b)(repealed by orders of Aug. 5 and Nov. 9, 1998, eff. Jan. 1, 1999); Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990). If a party fails to designate an expert pursuant to Rule 166b(6)(b), the expert may not testify “unless the trial court finds that good cause sufficient to require admission exists.” Tex.R. Civ. P. 215(5)(amended by orders of Aug. 5 and Nov.9, 1998, eff. Jan.l, 1999). The trial court has the discretion to determine whether the offering party met its burden of showing good cause. Aluminum Co. of. America v. Bullock, 870 S.W.2d 2, 3 (Tex.1994); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986), citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442 (Tex.1984). Rodriguez did not specifically identify Heredia as an expert witness in her first answers to interrogatories, but the circumstances of this case as a whole indicate that the trial court had good cause to admit Here-dia’s testimony.

Each of the cases on which Northr western relies to support its contention is distinguishable from the case of Rodriguez. In E.F. Hutton, the plaintiff, after receiving erroneous advice, sued E.F. Hutton & Co., Inc., for damages. The trial court rendered for the plaintiff and the court affirmed the judgment insofar as it allowed recovery of damages but reversed in part and rendered judgment that the plaintiff was not entitled to collect attorney’s fees. See E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987). The facts of Hutton reveal a very different set of circumstances than those of the instant case. The attorney in Hutton failed to designate himself as an expert witness knowing that at trial he would call upon himself and one other attorney to testify as to whether attorney’s fees were recoverable. This was a calculated, pretrial strategy. In the case at bar, the primary case was already settled, and a post-settlement hearing was called specifically to determine attorney’s fees. At this hearing, the court called upon Heredia to describe his fee structure to inform the judge of facts necessary to render a reasonable decision. Rodriguez’s case was already settled regarding ■ the primary claim, and there was good cause for the court to admit Heredia’s testimony as no other person, expert or otherwise, had accurate and full knowledge of hours spent and fees charged by Heredia himself. He did not have to be an expert to testify as to personal knowledge of his own work.

The only other case Northwestern cited in support of this issue was held to have insufficient evidence of reasonableness for the court to find good cause. See GATX Tank Erection Corp. v. Tesoro Petroleum Corp., 693 S.W.2d 617, 620 (Tex.App.—San Antonio, 1985, writ ref d n.r.e.).

The record in the instant case reveals that Rodriguez answered interrogatory number thirteen which requested the name of each and every person who may testify about “damages.” In answer to this interrogatory, Rodriguez identified “her attorneys” and named “Heredia” as one. To this part of the record the court took judicial notice. It has been held that a trial judge does not abuse his discretion in receiving the attorney’s factual testimony, taking judicial notice of the necessity and reasonableness of the attorney’s fees awarded, and thereby impliedly finding good cause for its admission. See In the Interest of Striegler, 915 S.W.2d 629, 644 (Tex.App.—Amarillo 1996, writ denied).

In the instant case, whether the judgment was improper is to be determined in light of the record as a whole. The reporter’s record of the hearing by Judge Ber-chelmann on October 23, 1998, confirms that Northwestern was not unfairly surprised by Heredia’s testimony regarding attorney’s fees, for Heredia was the only attorney responsible for Rodriguez’s case and Northwestern already knew that the very reason for the hearing was to decide on the award of attorney’s fees.

In awarding attorney’s fees, a court may take judicial notice of the usual and customary attorney’s fees in a proceeding before the court without receiving evidence. Thus, even if the court erred in permitting an attorney, an undesignated expert witness, to testify, the error was cured in light of the fact that the court also took judicial notice of the attorney’s fees. See Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 747 (Tex.App.—San Antonio 1999, pet. denied).

In a similar case, the Court held that a party may properly testify where discovery responses viewed in combination may satisfy the good cause requirement. See Henry S. Miller Company v. Bynum, 836 S.W.2d 160 (Tex.1992). In Miller, the plaintiff objected to defendant’s testimony on the ground that defendant was not disclosed in response to discovery requests. Defendant’s counsel stated that he did not respond to the interrogatories because he had been deposed shortly after receiving the interrogatories and sought to testify as a fact witness and as an expert witness. The trial court allowed him to testify as a fact witness regarding facts that were disclosed in his deposition. However, the trial court found that there was no good cause to permit his testimony as an expert witness. See Henry S. Miller Company v. Bynum, 836 S.W.2d at 161.

On appeal, Miller challenged the admission of Bynum’s testimony as a fact witness. The court of appeals affirmed the trial court’s admission of Bynum’s testimony as a fact witness. The court held that even though the trial court did not make an express finding of good cause permitting Bynum to testify as a fact witness, Bynum showed good cause on the record: (1) Miller had deposed Bynum; (2) By-num’s trial testimony was limited to the scope of the deposition; and (3) Bynum was a named party to the suit so he would obviously be the principal witness at trial. In the case at bar, Rodriguez also showed good cause on the record: (1) Northwestern knew that Rodriguez designated Here-dia as one who may testify about damages involved in this case; (2) the hearing was limited to the scope of the attorney’s fees particular to Heredia; and (3) Heredia was the only possible witness capable of informing the court on the particulars of his fee schedule, making him the most obvious witness at the hearing. We therefore hold that the trial court did not abuse its discretion in holding that Rodriguez is entitled to reasonable attorney fees. The judgment of the trial court is affirmed.

      . And though Rule 215(5) mandates exclusion of trial testimony of any undisclosed person having knowledge of discoverable matter, unless the trial court finds good cause sufficient to require admission, Rule 193.6 of the Texas Rules of Evidence now provides an alternative to the draconian sanctions . of Rule 215(5)’s lack of "good cause” requirement. Texas Rule of Civil Procedure 193.6 states that a party who fails to respond to a discovery request to name a witness may not offer the testimony of a witness who was not so identified, unless the court can find good cause or that the failure to timely make the discovery response will not unfairly surprise or unfairly prejudice the other parties. The Supreme Court’s inclusion of the coordinating conjunction, "or,” means that a party, who is seeking to introduce a witness, must merely meet the burden of showing either good cause or lack of unfair surprise or lack of unfair prejudice and support it with the record.


text:
    Scott William JESSUP, Appellant, v. The STATE of Texas, Appellee.
    No. 04-98-00796-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 16, 2000.
    Rehearing Overruled March 30, 2000.

      M. Ariel Payan, Law Office of Ariel Payan, Austin, for Appellant.
    Enrico B. Valdez, Asst. Crim. Dist. Atty., San Antonio, for Appellee.
    Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

ALMA L. LÓPEZ, Justice.

On September 23,1998, this court granted Scott William Jessup an out-of-time appeal in Cause No. 87-CR-1651-B. Upon Further consideration, and for the reasons stated below, we now determine that this court does not have jurisdiction to consider the appeal.

Jurisdiction

On July 14, 1998, the judgment of the United States District Court for the Western District of Texas, San Antonio Division, ordered that Scott William Jessup be granted an out-of-time appeal in Cause No. 87-CR-1651-B. The district court further ordered that it would grant Jessup’s petition for writ of habeas corpus if the state court of appeals did not grant Jessup an out-of-time appeal. Although the district court’s order was never received in the trial court or this court, Jessup personally delivered a copy of the district court’s order to this court on September 10, 1998.

In an attempt to comply with the district court’s order, this court ordered the trial court to conduct a hearing to determine whether Jessup desired to prosecute an appeal and whether Jessup required the appointment of appellate counsel. The trial court determined that Jessup wanted to pursue an out-of-time appeal and appointed an attorney to represent him. Both Jessup’s appellate attorney and the State filed briefs in this court.

Despite this course of events, an appeal was never perfected in this cause. The district court’s order stated that “Jessup’s time for filing his appeal shall run from the date of this Order’s entry.” The order was signed on July 14, 1998. The Texas Rules of Appellate Procedure require an appellant to perfect an appeal by filing a notice of appeal within 30 days after the day sentence is imposed or suspended in open court. Tex.R.App. P. 25.2(a), 26.2(a). Because the granting of an out-of-time appeal returns the appellant to a point that the appellant can begin the appellate process, see Moreno v. State, 954 S.W.2d 97, 98 (Tex.App.—San Antonio 1997, no pet.), Jessup’s notice had to be filed on August' 13, 1998 — 30 days after July 14, 1998, in order to perfect an appeal. But no notice of appeal was ever filed in this cause. As a result, we have no jurisdiction to consider Jessup’s appeal. See Charles v. State, 809 S.W.2d 574, 576 (Tex.App.-San Antonio 1991, no pet.) (court of appeals jurisdiction is invoked by a timely, written notice of appeal). Even if we were to construe Jessup’s delivery of the district court’s order to this court as a notice of appeal, the notice was not timely and thus, could not perfect an appeal. See Jones v. State, 900 S.W.2d 421, 422 (Tex.App.-Texarkana 1995, no pet.) Because this court’s jurisdiction was never invoked, we dismiss the appeal for lack of jurisdiction.