author: Justice RODRIGUEZ.

text:
    COLUMBIA RIO GRANDE REGIONAL HOSPITAL, Appellant, v. Lucy STOVER, Executrix of the Estate of Gary Reed, Deceased And Motors Insurance Corporation, Appellees.
    No. 13-98-140-CV.
    Court of Appeals of Texas, Corpus Christi.
    April 28, 2000.

      James A. Porter, Porter, Wuest & Koch, Houston, Paul M. O’Neil, Houston, for Appellant.
    Christiana Dijkman, Phillips & Akers, Houston, for Appellees.
    Before Chief Justice SEERDEN and Justices YÁÑEZ and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellant Columbia Rio Grande Regional Hospital (Columbia), a medical provider, filed a declaratory action against Appellee Lucy A. Stover (Stover), independent executrix of the estate of Gary D. Reed (Reed), deceased. , Stover filed a motion for summary judgment asserting, inter alia, the action was barred by res judicata and collateral estoppel. Without specifying the grounds, the trial court granted Stover’s motion. We affirm.

Columbia provided medical services to Reed for an on-the-job injury. Columbia charged Reed for services provided in the amount of $15,395.85, and later filed a hospital lien for that amount in Hidalgo County. Subsequently, Reed filed suit against his employer in the 206th District Court in Hidalgo County (Reed Lawsuit). Columbia filed notice of its hospital lien in the Reed Lawsuit. During the course of the lawsuit Reed died, and Stover filed ah application to probate Reed’s will. The probate court, County Court at Law No. 4, Hidalgo County, in Cause No. 25,040-D, appointed Stover independent executrix of Reed’s estate. Stover stepped in as plaintiff in the Reed Lawsuit. When the lawsuit settled, the 206th District Court entered judgment whereby the defendant’s insurer, Motors Insurance Corporation (Motors), agreed to tender to Stover the settlement amount of $135,000.00, out of which Columbia’s hospital lien was to be satisfied, depending on the outcome of litigation between the estate and Columbia. Motors issued a $15,395.85 check payable to Stover’s trustee and Columbia. Stover refused to sign the check over to Columbia and the district court placed the funds in its registry.

At Stover’s request, the district court ordered Motors’ check transferred to the registry of the county court where the estate was being probated. Columbia then filed an authenticated claim for Reed’s medical expenses in the probate proceeding. In response, Stover filed a motion to bar Columbia’s claim asserting the claim did not attach to the estate or, alternately, the claim was untimely filed. The probate court granted Stover’s motion.

Contemporaneously with these proceedings, Columbia filed an original declaratory judgment action against Stover urging its rights pursuant to the hospital lien. Columbia’s action was assigned the same cause number as the probate proceeding in County Court at Law No. 4. Stover answered, counterclaimed, and filed a motion for summary judgment based on the affirmative defenses of res judicata and collateral estoppel. In her motion, Stover asserted Columbia’s causes of action were barred because Columbia’s claims had been adjudicated by either: (1) the judgment of the 206th District Court regarding Reed’s personal injury cause of action; or (2) the order of the probate court barring Columbia’s claim. Columbia responded and objected to Stover’s summary judgment evidence. Columbia also filed a cross motion for summary judgment and amended its petition. Stover did not amend her motion.

On January 26, 1998, by agreement of the parties, the probate court severed Columbia’s action against Stover from the probate proceeding and assigned the severed action cause number 25,040-D-l. On February 3, 1998, the probate court granted Stover’s summary judgment motion. The probate court did not rule on Columbia’s cross motion for summary judgment. On February 10, 1998, Stover non-suited her counterclaim against Columbia.

In addition to the foregoing litigation, Columbia filed suit against Motors in County Court at Law No. 3, asserting liability for paying over the hospital lien and for not paying the proceeds directly to Columbia. Motors filed an unopposed motion to consolidate Columbia’s suit against Motors with cause number 25,040-D. The motion was granted on February 4, 1998.

By points of error one and three Columbia complains that the summary judgment is not final because it does not dispose of all claims and parties. Columbia first asserts this appeal is taken from cause number 25,040-D, the cause into which its claims against Motors were consolidated. Columbia argues that because the summary judgment does not address its claims against Motors, it is interlocutory. In response, Stover asserts this appeal is from cause number 25,040-D-l, a cause severed out of 25,040-D. Stover contends because Columbia’s claims against Motors were never before the trial court in the severed cause, she did not need to address them.

We agree with Stover that the appeal is from case number 25,040-D-l. On January 26, 1998, the trial court signed an agreed order severing Columbia’s cause of action against Stover from the probate proceeding, cause number 25,040-D, and assigning that action a new cause number, 25,040-D-l. See McRoberts v. Ryals, 868 S.W.2d 450, 452-53 (Tex.1993) (order severing part of a lawsuit is effective when it is signed). The court granted Stover’s summary judgment in the severed action on February 3, 1998. The following day, February 4, 1998, Columbia’s lawsuit against Motors was consolidated with the probate proceeding, cause number 25,040-D, not the severed cause. Columbia’s claims against Motors were never before the trial court in cause number 25,040-D-1. As Motors was never a party to the severed lawsuit, it was not necessary for the summary judgment to address Columbia’s claims against Motors.

Columbia further contends Stover’s summary judgment motion failed to address new causes of action pleaded in its amended petition. Specifically, Columbia asserts Stover did not address: (1) an action to enforce and satisfy its hospital lien; and (2) a request for declaratory relief and judgment and foreclosure of its hospital hen. Columbia’s amended petition contained one new paragraph and one revised paragraph. The new paragraph entitled “Action to Enforce and Satisfy Hospital Lien” repeats or restates alleged facts, assertions and arguments set out in the original petition. The revised paragraph entitled “Request for Declaratory Relief and Judgment” adds the phrase “foreclosure of hen” to the title and body of the paragraph. The substance of the paragraph, however, remains the same. In its original petition Columbia claimed ownership of the monies by virtue of the hospital hen that attached to the settlement proceeds, and requested the court to declare the hen rightfully belonged to Columbia and to issue the monies from the registry of the court to Columbia. The amended petition has simply been reworded, with no additional relief prayed for in the amended petition. We conclude Columbia’s amended petition raises no new issues or causes of action. Stover’s motion addressed all causes of action raised by Columbia.

Finally, Stover concedes that the order was interlocutory because the summary judgment order did not address Stover’s counterclaims. The probate court, however, non-suited Stover’s counterclaim on February 10, 1998, seven days after the entry of the summary judgment. Where an interlocutory order is entered disposing of the interests of less than all parties and claims, that order does not become final until a subsequent order is entered disposing of the remaining parties and claims. Mafrige v, Ross, 866 S.W.2d 590, 591 n. 5 (Tex.1993); H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963). Once an order has been entered disposing of all remaining.parties and issues, all the orders merge, creating a final and appeal-able judgment. Id. Therefore, the probate court’s summary judgment, interlocutory in nature when granted, became final on February 10, 1998, when the trial court disposed of Stover’s counterclaim. Because we conclude the judgment from which Columbia appealed is a final judgment, this Court has jurisdiction to hear Columbia’s appeal. Points of error one and three are overruled.

By its second point of error, Columbia contends the trial court erred in granting Stover’s motion for summary judgment on the basis of res judicata or collateral estoppel. Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiffs cause of action as a matter of law or establishes all the elements of an affirmative defense as a matter of law. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 381 (Tex.1993). If the appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment. Id.

The broad doctrine of res judicata encompasses two distinct principles: (1) res judicata, or claim preclusion; and (2) collateral estoppel, or issue preclusion. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). Because the issue in this case is Columbia’s ability to bring an entire claim against Stover, we look first at the claim preclusion or res judicata component of the doctrine.

Res judicata. prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the earlier suit. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). The claim of res judicata requires proof of the following: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Id.

We note at the outset that Columbia’s brief contains no assertion that Stover failed to establish the identity of parties, the second element of res judicata. Further, while Columbia asserts Stover failed to establish the third element of res judicata, a second action based on the same claims as were raised or could have been raised in the first action, its brief contains no argument, supported by citations to authorities and the record, as to why its declaratory judgment action is not based on claims raised or claims that could have been raised. See Tex.R.App. P. 38.1(h); Nuchia v. Woodruff, 956 S.W.2d 612, 620 (Tex.App. — Houston [14th Dist.] 1997, pet. denied) (appellate rules require brief to contain argument for contentions made, with appropriate citations to authorities and record). Issues not supported by argument and authorities are deemed waived, and we need not address the second and third elements of Stover’s res judicata defense. See Miksch v. Exxon Corp., 979 S.W.2d 700, 706 (Tex.App.— Houston [14th Dist.] 1998, pet. denied) (citing Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983)). Accordingly, Columbia’s argument is restricted to its contention that Stover did not establish the first element of res judicata, a prior final judgment on the merits by a court of competent jurisdiction.

Columbia first argues that there is no prior order adjudicating its claims. Columbia contends that the probate court had no jurisdiction to enter the order; therefore, the prior probate order granting Stover’s motion to bar Columbia’s lien in the probate proceeding is void. Columbia asserts that the probate order constitutes a nullity and cannot be the basis of a defense of res judicata.

Columbia contends claim administration by an independent administrator is to be conducted in accordance with sections 145 and 146 of the Texas Probate Code without further action by the court. Columbia argues section 145(h) expressly denies the probate court jurisdiction in the administration of the estate, including claims administration. Stover asserts the probate court has jurisdiction pursuant to sections 5 and 5A of the code. Stover urges sections 5 and 5A must be read in conjunction with the last phrase of section 145(h) allowing for intervention where the code specifically provides for action in the probate court.

Section 145(h) of the probate code provides:

When an independent administration has been created, and the order appointing an independent executor has been entered by the county court, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the county court, as long as the estate is represented by an independent executor, further action of any nature shall not be had in the county court except where this Code specifically and explicitly provides for some action in the county court.

Tex. PRob.Code Ann. § 145(h) (Vernon Supp.1999). While the general purpose of section 145 is to free the independent executor from the control of the court, except where the code specifically and explicitly provides otherwise, see Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex.1968), it is equally clear that courts have determined the legislature did not intend for the independent administrator to be completely free from judicial supervision. See Herbst v. Sheppard, 995 S.W.2d 310, 313-14 (Tex.App. — Corpus Christi 1999, writ denied) (probate code section 145(h) only prohibits further action in the county court); Womack v. Redden, 846 S.W.2d 5, 8 (Tex.App. — Texarkana 1992, writ denied) (county court sitting in probate had jurisdiction over independent executor to determine homestead rights of parties); Estate of Kuenstler v. Trevino, 836 S.W.2d 715, 718-19 (Tex.App. — San Antonio 1992, no writ) (statutory probate court had jurisdiction over independent executors in declaratory judgment suit concerning debt owed by estate); Weldon v. Hill, 678 S.W.2d 268, 274 (Tex.App. — Fort Worth 1984, writ ref d n.r.e.) (section 145(h) only prohibits further action in county court and is silent as to prohibition of actions in all other courts). Because we conclude that section 145(h) does not deny a statutory county court jurisdiction over an independent administration, we look to code provisions that address probate jurisdiction in statutory county courts.

The general jurisdiction of a statutory county court sitting in probate is described in sections 5 and 5A. The applicable provisions of section 5 include:

(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate and administrations shall be filed and heard in such comts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any of such courts. In contested matters, the judge of the constitutional county court may on his own motion, and shall on the motion of any party to the proceeding, transfer the proceeding to the statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, which may then hear the proceeding as if originally filed in such court.
(e) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.

Tex. Prob.Code Ann. § 5(c), (e) (Vernon Supp.1999) (emphasis added).

Significantly, probate code section 5(c) states that all motions regarding probate and administrations shall be filed and heard in statutory county courts exercising the jurisdiction of a probate court. See Tex. PROb.Code Ann. § 5(c) (Vernon Supp. 1999). Section 5(e) further provides those courts exercising original probate jurisdiction, which include statutory county courts pursuant to section 5(c), shall have the power to hear all matters incident to an estate. Id. at § 5(e). This is a general grant of authority to statutory county courts. Cf. Womack, 846 S.W.2d at 9 (section 5(e) is general grant of authority to county courts in counties where there is no other statutory court exercising jurisdiction of probate court). Additionally, probate code section 5A(a) plainly states that in proceedings in statutory county courts at law, the phrase “incident to an estate” includes “all claims by or against an estate,” and “generally all matters relating to the settlement, partition, and distribution of estates of deceased persons.” See Tex. Prob.Code Ann. § 5A(a) (Vernon Supp.1999); cf. Herbst, 995 S.W.2d at 313. This statute codifies case law. See, e.g., Pullen v. Swanson, 667 S.W.2d 359, 362 (Tex.App. — Houston [14th Dist.] 1984, writ refd n.r.e.) (citing English v. Cobb, 593 S.W.2d 674, 676 (Tex.1979) and Lucik v. Taylor, 596 S.W.2d 514 (Tex.1980)) (action is “incident to an estate” when outcome will have direct bearing on assimilation, collection, and distribution of estate).

Columbia’s reliance on Carter v. Brady, 423 S.W.2d 946, 951-52 (Tex.Civ.App.— San Antonio 1967, writ refd n.r.e.) for the proposition that a probate court has no jurisdiction to determine the validity of claims against an estate being administered by an independent executor, is misplaced. Carter predates the legislature’s 1973 modification of the jurisdictional framework for probate matters and case law interpreting those changes. See English, 593 S.W.2d at 675-76. In English, the Texas Supreme Court recognized that the obvious purpose of the 1973 changes was “to increase the jurisdiction of such courts in ‘matters incident to an estate’ so that a decedent’s estate could be more efficiently settled in one proceeding.” Lu-cik, 596 S.W.2d at 516 (citing English, 593 S.W.2d.at 675). Subsequently, the legislature added section 5A to the code, further expanding statutory county court jurisdiction to matters including, “but not limited to, all claims by or against an estate. ., and generally all matters relating to the settlement, partition, and distribution of es-tates_See Tex. PROB.Code Ann. § 5A(a) (Vernon Supp.1999). A probate court’s jurisdiction has been greatly expanded since Carter.

County Court at Law No. 4 in Hidalgo County, • a statutory county court, appointed Stover independent executrix of Reed’s estate pursuant to section 145, and administered the probate proceeding. Columbia filed an authenticated claim in the probate court. Stover filed a motion in the court to bar Columbia’s claim, a claim Sto-ver believed to be barred because it did not attach to the estate or, alternately, because it was untimely filed. Columbia’s claim was against the estate. The claim necessarily involved the assets of the estate. The outcome would have a direct bearing on the settlement, partition, and distribution of the estate. Accordingly, we conclude Stover’s motion involved matters “incident to- the estate,” and the probate court had jurisdiction to hear Stover’s motion. The probate court’s order of September 24, 1997, granting Stover’s motion to bar Columbia’s claim is not void for lack of jurisdiction.

The final order barring Columbia’s claim was appealable to this Court. See Tex. Prob. Ann. § 5(f) (Vernon Supp. 1999) (final orders of any court exercising original probate jurisdiction are appealable to courts of appeals). Because no direct appeal of the September 24, 1997, probate order was taken-by Columbia, it cannot now attack the order collaterally. See Walton v. First Nat’l Bank of Trenton, 956 5.W.2d 647, 650 (Tex.App. — Texarkana 1997, writ denied) (because estate did not appeal from final probate order approving bank’s claim, order became final judgment not vulnerable to collateral attack); cf. Carroll v. Carroll, 893 S.W.2d 62, 68-69 (Tex.App. — Corpus Christi 1994, no writ) (void order subject to collateral attack).

Accordingly, we hold there was a prior final judgment on the merits by a court of competent jurisdiction. Stover established the first element of res judicata, the only element about which Columbia complains. Therefore, the summary judgment is sustainable on that ground.

In point of error two, Columbia further contends that the trial court erred in granting Stover’s motion for summary judgment because Stover’s summary judgment evidence is not competent to support her motion. Columbia asserts the trial court overruled all objections, preserving error for appeal. Stover contends that there is no indication in the transcript of the summary judgment hearing that Columbia requested or received a ruling on its objections to preserve the objections for appeal. Stover also argues that the appellate rules require the non-movant in a summary judgment proceeding to secure a written ruling on its objections or they are waived on appeal.

A summary judgment motion is to be decided on the written record. See Clear Creek Basin Auth., 589 S.W.2d at 678. Prior to the new appellate rules which became effective September 1, 1997, a party had to obtain a written ruling or object to the court’s refusal to rule in order to preserve error for appellate review. See Frazier v. Yu, 987 S.W.2d 607, 609-10 (Tex.App. — Fort Worth 1999, pet. denied) (comparing Tex.R.App. P. 52(a) (1997, revised 1997) with Tex.R.App. P. 33.1(a)(2)(A)). However, revised rule 33.1(a)(2)(A), formerly rule 52(a), relaxes that requirement, and now, to preserve any error, the trial court must rule either expressly or implicitly on the objection, or refuse to rule with the complaining party objecting to the refusal. See Tex.R.App. P. 33.1(a)(2)(A); Frazier, 987 S.W.2d at 609-10 (error preserved as long as record indicates in some way that trial court ruled on objection either expressly or implicitly); Cain v. Rust Indus. Cleaning Serv., Inc., 969 S.W.2d 464, 469-70 (Tex.App. — Texar-kana 1998, pet. denied) (ruling on objection must be reduced to written form; therefore, error waived because no written ruling and reporter’s record of hearing showed only that court intended to rule at later date). But see Ausaf v. Highlands Ins. Co., 2 S.W.3d 363, 365 (Tex.App.— Houston [1st Dist.] 1999, pet. denied) (citing Banowsky v. State Farm Mut. Auto. Ins. Co., 876 S.W.2d 509, 513 (Tex.App.— Amarillo 1994, no writ)) (order sustaining objection must be in writing, signed and entered into record to preserve error). Because we approve of the Frazier Court’s reasoning and its comparative analysis of rule 33.1(a) with former rule 52(a), we adopt its conclusions with respect to ruling on objections to evidence under the new rule. Accordingly, this Court concludes no written order overruling Columbia’s objections was necessary to preserve error, if the record indicates the trial court ruled on Columbia’s objections, either expressly or implicitly.

In its response to the motion for summary judgment, Columbia objected to Sto-ver’s exhibits 1, 2, 3 and 4 on the basis of hearsay and to exhibits 1 and 2 on the basis that they were not certified. While there is no written order in the clerk’s record, the reporter’s record of the summary judgment hearing reveals that the probate court explicitly overruled Stover’s objections of hearsay and certification. Columbia reurges those objections on appeal.

Columbia first complains that exhibits 1 and 2 were not certified. To be considered by the trial or reviewing court, summary judgment evidence must be admissible under the rules of evidence. See United Blood Serv. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997); Murillo v. Valley Coca-Cola Bottling Co., 895 S.W.2d 758, 762 (Tex.App. — Corpus Christi 1995, no writ). Documents submitted as summary judgment proof must be sworn to or certified. ’ See Tex.R. Crv. P.- 166a(f). A properly sworn affidavit stating attached documents are true and correct copies of the .originals authenticates the copies so that they may be considered as summary judgment evidence. See Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). The clerk’s record in this case reveals that exhibits 1 and 2 were authenticated by a properly sworn affidavit. Accordingly, we conclude the trial court was correct in considering exhibits 1 and 2 as summary judgment evidence on the basis that they were authenticated.

Regarding Columbia’s objections to exhibits 1, 2, 3 and 4 on the basis of hearsay, Columbia directs its objections to the exhibits as a whole and does not point out which parts are objectionable hearsay. Specific statements must be identified in order to determine whether they are hearsay. See Moulton v. Vaughn, 982 S.W.2d 107, 110 (Tex.App.— Houston (1st District) 1998, pet. denied) (citing Tex.R.App. P. 33.1(a)(1)(A)). Columbia’s hearsay objections were not specific enough to reasonably apprise either its opponent or the court-of its complaint. See Tex.R.App. P. 33.1(a)(1)(A); Williams v. Conroe Indep. Sch. Dist., 809 S.W.2d 954, 957 (Tex.App. — Beaumont -1991, no writ). Consequently, Columbia’s general hearsay objections preserved nothing for review.

Columbia also objects that Stover’s original affidavit filed in support of attorney fees in the amount of $2,500.00 was not sworn. However, an amended sworn affidavit filed in support of fees in the amount of $9,000.00 was substituted for the original affidavit and admitted by the court at the summary judgment hearing. See Tex.R. Civ. P. 166a(c)(ii); Daniell v. Citizens Bank, 754 S.W.2d 407, 409 (Tex.App. — Corpus Christi 1988, no writ). The amended affidavit appears in the supplemental clerk’s record. Columbia did not object to this amended affidavit. Absent a showing that Columbia apprised the court of its objections regarding the amended affidavit, they are waived, and nothing is" preserved for review. See Tex. RApp. P. 33.1(a)(1)(A).

We therefore conclude Stover’s summary judgment evidence was competent to support her motion. Columbia’s second point of error is overruled.

By point of error four, Columbia contends the trial court erred in awarding attorney fees to Stover in the amount of $9,000.00. Columbia asserts there is insufficient evidence or no evidence to support the award, that Stover failed to provide time records for the fees requested, and that the award is excessive. Columbia further contends the only affidavit before the probate court states an award of $2,500.00 which is reasonable and necessary, and that the award of $9,000.00 is in direct conflict with the $2,500.00 amount Stover stated was a reasonable and necessary fee in her summary judgment motion. We read Columbia’s contentions as challenging the probate court’s factual and legal determinations regarding the fee awarded.

Pursuant to section 37.009 of the Declaratory Judgment Act (the Act), Stover’s answer includes a request for attorney fees for defending Columbia’s action. See Tex. Crv. PRac. & Rem.Code Ann. § 37.009 (Vernon 1997). The award of attorney fees in a declaratory judgment action is within the trial court’s discretion; however, the Act imposes four limitations on the court’s discretion. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Welder v. Green, 985 S.W.2d 170,180 (Tex.App. — Corpus Christi 1998, pet. denied). The fees must be reasonable, necessary, equitable, and just. See Bocquet, 972 S.W.2d at 21 (citations omitted). The reviewing court must make a factual determination as to the reasonableness and necessity of the fees awarded and a legal determination as to whether the fee is equitable and just. See Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 556-57 (Tex.App. — Austin 1999, pet. denied) (citing Bocquet, 972 S.W.2d at 21); Welder, 985 S.W.2d at 180. “It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles, or to rule without supporting evidence.” Bocquet, 972 S.W.2d at 21 (citations omitted); see Welder, 985 S.W.2d at 180.

The following factors prescribed by law are to guide our determination of whether attorney fees are reasonable and necessary:

(1)the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Tex. DISCIPLINARY R. PROF. Conduct 1.04, reprinted in Tex. Gov’t Code, Ann., tit. 2, subtit. G app. (State BaR Rules, art. X, § 9); see Bocquet, 972 S.W.2d at 21 (referring court to rule 1.04) (citations omitted).

This Court has concluded that Stover’s amended attorney fees’ affidavit in support of an award of $9,000.00 was properly before the probate court as summary judgment evidence. In the affidavit, Terry D. Key, counsel for Stover, sets out his qualifications, details the work he conducted in connection with his representation of Sto-ver in this matter, states that the fee was reasonable for services performed, and concludes that the fee charged is one customarily charged in similar matters and under similar circumstances. Columbia filed no controverting affidavit.

Based on the above, although each factor in rule 1.04 is not supported by the evidence, we do find that there was some evidence to support the award. Therefore, we cannot say that the probate court abused its discretion in determining there was sufficient evidence to award the $9,000.00 fee. Further, we cannot say the probate court abused its discretion in determining the fee was equitable and just.

Accordingly, we overrule Columbia’s fourth point of error.

In its fifth point of error, Columbia complains the trial court erred in fading to rule on its cross-motion for summary judgment. Because we conclude that the probate court properly granted summary judgment in favor of Stover on the basis of res judicata, we need not reach this point. See Malmgren v. Inverness Forest Residents Civic Club, Inc., 981 S.W.2d 875, 877 (Tex.App. — Houston [1st Dist.] 1998, no writ) (citing Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996)) (court reviews ruling on opposing motion only if it finds one motion for summary judgment erroneously granted).

The judgment of the probate court is affirmed.

      . In order to secure a lien a hospital must file written notice of the lien with the county clerk of the county in which the injury occurred. See Acts 1983, 68th Leg., p. 3563, ch. 576, § 1, eff. Jan. 1, 1984, amended by Acts 1995, 74th Leg., ch. 1031, § 1, eff. Aug. 28, 1995 (current version at Tex. Prop.Code Ann. § 55.005 (Vernon Supp.2000)).

      . A hospital lien attaches to a cause of action for damages arising from an injury for which the hospital provided treatment, as well as to any proceeds from settlement of that action or the underlying claim brought by the injured individual or another person entitled to make the claim. See Tex. Prop.Code Ann. § 55.003 (Vernon 1995). A hospital lien does not attach to a wrongful death award or judgment. See Tarrant County Hospital Dist. v. Elzie Jones, 664 S.W.2d 191, 195 (Tex.App. — Fort Worth 1984, no writ).

      . Unlike this case, Herbst involved an independent administration in a constitutional county court.

      . There are no statutory probate courts in Hidalgo County. See Tex. Gov’t Code Ann. § 25.1101 (Vernon Supp.2000).

      . Columbia complains only that the probate order barring its claim in cause number 25,-040-D, is void for lack of jurisdiction. Columbia does not argue that it is not a final order. See TexR.App. P. 38.1(h).

      . When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, as in this case, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm, 858 S.W.2d at 380. Thus, although Stover offered multiple grounds for summary judgment, for purposes of this appeal it suffices to address only the ground of res judicata, as it is a sustainable ground. See Rogers v. Ricane Enterprises, Inc., 775 S.W.2d 391, 395 n. 3, (Tex.App.— Amarillo 1987), reversed and remanded on other grounds, 772 S.W.2d 76 (1989) (multiple grounds for summary judgment offered, but appellate court need only address sustainable ground).

      . Columbia also asserts that Stover’s evidence is insufficient, that Stover failed to prove up her attorney fees and to provide time records for the fees requested. These assertions will be addressed under Columbia’s fourth point of error.

      . Exhibit 1 was the judgment of the 206th Judicial District Court; exhibit 2, the transcript from a hearing in that court; exhibit 3, the order of the probate court barring Columbia’s claim; and exhibit 4, the transcript of the hearing on Stover’s motion to bar.


source: Caselaw Access Project

author: LEE DUGGAN, Jr., Justice (Retired).

license: Public Domain

text:
    PURCELL CONSTRUCTION, INC., Appellant, v. Darla T. WELCH, Appellee.
    No. 01-98-00799-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.

      Mary C. Thompson, David W. Medack, Edward D. Burbach, Houston, for Appellant.
    Mark A. McLean, Houston, for Appellee.
    Panel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LEE DUGGAN, Jr., Justice (Retired).

This is the appeal and cross-appeal of a judgment for personal injury damages in a premises liability case.

Appellant/cross-appellee, Purcell Construction, Inc. (Purcell), appeals the entry of a plaintiffs judgment. Appellee/cross-appellant, Darla T. Welch (Mrs. Welch), appeals the trial court’s denial of full prejudgment interest on the judgment because of delay caused by “docket congestion.” We overrule appellant Purcell’s two points of error and sustain cross-appellant Mrs. Welch’s cross-point. We modify that portion of the judgment awarding prejudgment interest to allow interest for the entire period from the filing of suit until the day before final judgment was rendered and we affirm the judgment as so modified.

In 1992, Friendswood Independent School District (“FISD”) contracted with Purcell to perform construction projects at several schools, including Friendswood High School (“Friendswood”). The contract required Purcell to be solely responsible for the construction methods of its subcontractors, to take reasonable precautions to prevent injury to other persons, to erect and maintain reasonable safeguards for safety and protection, including danger signs and other warnings, and to promulgate safety regulations. Purcell’s responsibility for the construction site and the work of its subcontractors is undisputed.

Purcell subcontracted with White Construction Company (“White”) for work that included the installation of a sidewalk and driveway at Friendswood’s parking lot.

On January 7, 1993, Mrs. Welch, the parent of a Friendswood student, arrived at the school at about 7 p.m. for a scheduled parents’ meeting. She parked her car in the school parking lot and walked toward the school’s side entrance where White had removed a section of the sidewalk adjoining the driveway. She stepped into what she thought was a puddle of water standing on the sidewalk, but was actually White’s excavation filled with water. She fell, striking and severely injuring both knees. Mrs. Welch sued Purcell and White for negligéntly causing her injuries. The jury found Purcell and White 75% negligent, and awarded Mrs. Welch $261,154.71 in damages. Subcontractor White settled and is not a party to this appeal. Purcell’s motion for judgment n.o.v. and motion for new trial were both overruled.

At trial, Mrs. Welch and three other witnesses testified that there were no warnings or barricades present at 7 p.m. on the evening of her fall to alert her to the presence of a construction excavation. A Purcell employee, Michael Caldwell, testified that White’s employees left the job early that day because of bad weather; that he personally had inspected the site at 5 p.m. after White’s employees left; and that he saw six orange cones and two white barricades in place around the excavated portion of the sidewalk. Bryan White, White’s owner, testified that it was his habit to inspect the premises visually at the end of each work day and that he personally put up barricades that day in the area where Mrs. Welch fell. He speculated that the barricades had been “ stolen, vandalized, [or] misplaced” between 5 p.m. and 7 p.m.

Mrs. Welch’s counsel argued to the jury and again urges on appeal that the testimony by Purcell and White witnesses that cones and barricades were placed at the accident site was fabricated. Mrs. Welch conceded in testimony that if barricades had been in place at 7 p.m., they would have provided sufficient warning for her to avoid the fall.

In the first of two interrelated issues on appeal, Purcell asserts there is no evidence or legally insufficient evidence to establish that Purcell had actual or constructive notice of the allegedly dangerous condition. In its second issue, Purcell asserts the evidence “failed to establish that it is more likely than not that the dangerous condition existed long enough to give [Purcell] a reasonable opportunity to discover the condition.” Both issues presume that constructive knowledge of the dangerous condition was not established.

Actual or constructive knowledge of a dangerous condition by an owner or operator is required for a premises liability claim, “whether [the claim is] predicated upon negligent maintenance, a failure to warn, or the absence of safety devices.” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996).

When the injured party is an invitee, as Mrs. Purcell was, the elements of a premises liability case are:

1.Actual or constructive knowledge of some condition on the premises by the owner/operator;
2. That the condition posed an unreasonable risk of harm;
3. That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
4. That the owner/operator’s failure to use such care proximately caused the plaintiffs injuries.

Id.

Purcell analogizes the fact situation presented here to the scenario found in a typical retail store “slip and fall” case, and relies on Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex.1998), for legal principles concerning an owner/operator’s constructive knowledge of a dangerous situation. “Slip and fall” cases frequently present a fact situation wherein undisputed evidence shows a generally clean floor, and the injured plaintiff must show that the slippery foreign substance causing the fall was present long enough to charge the premises owner/operator with constructive notice.

Our case is not a “slip and fall” case, and constructive notice is not an issue. Here, subcontractor White created the excavation into which Mrs. Welch fell. White was therefore aware of it and the hazard it would create either with no signs and barricades or with inadequate signs and barricades. Purcell’s witness, Caldwell, and Bryan White both testified that the excavation White’s employees dug was unsafe if it was not barricaded.

No signs or barricades?

The only evidence that any signs and barricades, adequate or inadequate, had been erected was the self-serving testimony of subcontractor White and contractor Purcell’s employee, Caldwell. If the jurors did reject this testimony, they could reasonably believe that the defendants were negligent in failing entirely to warn the public of the hole.

Inadequate signs or barricades?

White and Purcell representatives testified that White made the unsafe excavation “safe” by putting up two sawhorse barricades and some orange pylons, and that some unforeseen act of a third party created the “danger” to plaintiff by removing the warning cones and barricades.

The jury had an ample evidentiary basis to reject Purcell’s contention that these steps by White, if taken, were reasonable. Assuming the truth of Purcell’s stolen barricade evidence, Mrs. Welch’s safety expert, Roger Craddock, testified that the barricade that Purcell’s employee described seeing at 5 p.m. (two-foot stands and orange traffic cones), was inadequate to make the excavation safe, and did not-meet industry standards. Exhibits stating industry standards, together with photographs admitted before the jury, showed that a “barricade” means a method to deny access to an excavation, as opposed to a mere warning of its presence. Another exhibit, which excerpted the 1980 Texas Manual on Uniform Traffic Control, showed a pictorial diagram with appropriate types of warnings and barricades to be used where pedestrians encounter construction areas. Purcell’s own safety manual required that OSHA standards be followed, and an exhibit excerpting pertinent OSHA regulations defined “barricade” to mean “an obstruction to deter passage of persons.”

With no objection, the trial court correctly defined “negligence” to the jury to mean, as to contractor Purcell and subcontractor White, “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that the contractor knows about or in the exercise of ordinary care should know about,” following Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983) and Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992). The evidence was legally and factually sufficient to show that Purcell had actual notice of the alleged dangerous condition,, and negligently failed-to act to reduce or eliminate it.

Purcell’s two issues are overruled. '

Mrs. Welch argues in her cross-point that the trial court erred in disallowing prejudgment interest for the entire time from the filing of her .suit until final judgment. The trial court granted Purcell’s and White’s post-verdict motion to limit prejudgment interest, and entered its order allowing prejudgment interest from June 15, 1993 through January 27, 1997 only, finding that “there was delay in the trial of this matter after January 27, 1997, that was caused by the crowded nature of the Court’s docket, for which the defendants were not responsible.” Mrs. Welch’s motion to modify the final judgment was denied.

We review a challenge to a trial court’s award of pre-judgment interest using an abuse of discretion standard, giving limited deference to the court’s application of the law to the facts. Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex.App. — Houston [14th‘ Dist.] 1997, no writ); European Crossroads’ Shopping Center, Ltd. v. Criswell, 910 S.W.2d 45, 55 (Tex.App. — Dallas 1995, writ denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Marsh, 949 S.W.2d at 744. Further, a trial court’s clear failure to apply the law correctly constitutes an abuse of discretion. NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989); Marsh, 949 S.W.2d at 744.

Prejudgment interest for personal injury claims is governed by Sections 304.104-108 of the Texas Finance Code. See Tex. Fin. Code §§ 304.101-08 (Vernon Supp.2000). Section 304.104 provides in relevant part that,

Except as provided by Section 304.105 or 304.108, prejudgment interest accrues on the amount of a judgment during the period beginning on the 180th day after the date the defendant receives notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered.

Id. at § 304.104. Section 304.105 provides that prejudgment interest accrues only on that portion of the judgment in excess of a settlement offer for that portion of time in which the offer remains open. Id. at § 304.105. Section 304.108(a) provides that “[i]n addition to the exceptions provided by Section 304.105, a court may order that prejudgment interest does not accrue during periods of delay in the trial.” Id. at § 304.108(a). Section 304.108(b) states:

A court shall consider:

(1) periods of delay caused by a defendant; and
(2) periods of delay caused by a claimant.

Id. at § 304.108(b).

Construing these provisions together, we conclude that the only statutorily recognized exceptions to prejudgment interest for personal injury are for (1) the amount of a settlement offer during the period it may be accepted, (2) delay caused by a defendant, or (3) delay caused by a claimant. Here, the record reflects that Mrs. Welch, the claimant, did not seek to delay the trial, but consistently pursued a speedy resolution of her claim. In contrast, first Purcell and then White filed motions to strike the available visiting judges during succeeding setting periods. The trial court’s sole stated ground for denying interest after January 27, 1997 was delay “caused by the crowded nature of the court’s docket, for which the defendants were not responsible.”

Although statutory provisions give the trial court discretion to deny a claimant prejudgment interest for delay caused by that claimant, nothing authorizes the trial court to deny prejudgment interest because of delay attributed to the court’s crowded docket. To the contrary, section 304.108 allows denial of prejudgment interest only for delay caused by the parties.

See, e.g., Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529 (Tex.1998) (noting that Section 304’s predecessor, with substantially the same language, allowed “tolling accrual of prejudgment interest as to the amount of a settlement offer during its pendency, allowing a trial court the discretion to order accrual or nonaccrual during periods of delay caused by a defendant or a plaintiff”) (emphasis added).

These statutory prejudgment interest provisions encourage parties to seek prompt resolution of their disputes; nothing in the statutory language, however, suggests that a court may deprive a plaintiff of the time value of its monetary judgment simply because of a crowded docket. Here, the only party-related delay was caused by Purcell and White, defendants below, who struck available visiting judges upon successive settings. We hold the trial court abused its discretion by denying Mrs. Welch prejudgment interest for delay for which she was not responsible.

Mrs. Welch’s cross-point is sustained.

We modify the judgment to award prejudgment interest from the date of filing suit until the day before rendition of judgment and we affirm the judgment as so modified.


text:
    Elsa SAENZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-98-00475-CR, 01-98-00476-CR and 01-98-00625-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.
    Rehearing Overruled May 25, 2000.

      Henry L: Burkholder, III, Houston, Appellant.
    Rikke Burke Graber, John B. Holmes, Houston, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LEE DUGGAN, Jr., Justice (Retired).

Appellant, Elsa Saenz, appeals the trial court’s order overruling her pre-trial motion to suppress contraband. We affirm.

i.

PROCEDURAL HISTORY

Appellant pled guilty in 1994 to two charges of delivery of cocaine weighing less than 28 grams, and was admitted to 10 years probation for each offense. When she was indicted in 1997 for possession of cocaine weighing more than 400 grams with intent to deliver, the State moved to revoke both probations.

Her motion to suppress the 1997 contraband was overruled, and she pled true to the motions to revoke both 1994 probations and guilty to the 1997 charge. The trial court assessed punishment at 10 years confinement in each of the probated cases and 20 years confinement in the new case.

Appellant appeals the two revocations and the new conviction, asserting in each case that the contraband in the new case should have been suppressed.

II.

FACTUAL BACKGROUND

Houston Police Officer Fernando Villa-sana received information around 8 a.m. on June 23, 1997 about a possible shipment of cocaine coming into Houston. Relying on this information, Villasana and other police officers began surveillance on the area of Studewood and White Oak for a 1993 Mazda van driven by two Hispanic females. Villasana located the unoccupied van by a hair salon on White Oak. After watching the van all day, the officers saw appellant come out, walk past the van twice, look around, enter the van, and drive it across the street to an auto detail shop. She parked the van in front of the shop, entered the front door, remained inside for 10-30 seconds, returned to the van, and drove it into the shop stall or bay area farthest from the office.

Appellant went to the shop’s office, returned to the van after a few minutes, backed the van out of the stall, turned it around, and backed it into the same stall. This placed the van’s rear passenger sliding door away from the office and next to the wall. Someone then closed the garage door in front of the stall. Because the officers could no longer view the van, they converged on the shop. Villasana went to the front office and spoke with Mario Reyna, the shop owner. Villasana identified himself, stated that he was conducting a narcotics investigation, and received Reyna’s permission to search the shop.

Upon entering the shop’s garage, Villa-sana saw appellant standing alone in the bay area nearest the office. When he identified himself and told her he was conducting a narcotics investigation, appellant appeared concerned and upset. Meanwhile, Officer Oscar Pena walked around the van and saw, on the garage floor, three one-kilogram packages that he recognized as containing cocaine. When Pena informed Villasana of his discovery,'Villasa-na told appellant she was under arrest, read her Miranda warnings, and asked for her consent to search the van. She signed a consent form, and the officers briefly searched the van for weapons before waiting for a narcotics detection dog to arrive. The dog led the officers to discover 10 kilograms of cocaine inside the van and 12 kilograms of cocaine in a bag placed on the floor outside the van. Including the three kilograms Pena originally discovered on the floor in plain view, the officers found a total of 25 kilograms of cocaine.

Appellant argues this evidence of cocaine possession was obtained through an illegal search and seizure.

III.

STANDARD OF REVIEW

In reviewing a trial court’s denial of a motion to suppress, we “must be deferential to the trial court’s judgment, not only as to historical facts, but also as to the legal conclusions to be drawn from the historical facts.” DuBose v. State, 915 S.W.2d 493, 497 (Tex.Crim.App.1996). We review the trial court’s decision for abuse of discretion, reversing the court’s decision only when it “applied an erroneous legal standard, or when no reasonable view of the record could support the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion.” Id. at 497-98.

IV.

DISCUSSION

Appellant concedes that the owner of the auto detail shop gave the police officers permission to search the garage, and that she, appellant, gave the officers permission to search the van after she was arrested. She contends, however, that the search of the individual stall where the van was located violated her right to privacy, and that the subsequent search and seizure of cocaine in the van was illegal. The State argues that appellant did not have a privacy interest in an open stall in the garage.

The Fourth ’ Amendment of the United States Constitution and Article I, section 9 of the Texas Constitution safeguard “ ‘an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.’ ” Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996) (quoting from Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1993)). A defendant, therefore, has standing under these constitutional provisions “to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded.” Villarreal, 935 S.W.2d at 138. The defendant bears the burden of establishing:

(a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and
(b) that circumstances existed under which society is prepared to recognize his subjective expectation as objectively reasonable.

Id.

Villarreal set out the following non-inclusive list of factors that tend to show whether a defendant’s- subjective expectation of privacy is objectively reasonable:

(1) whether the accused had a property or possessory interest in the place invaded;
(2) whether he was legitimately in the place invaded;
(3) whether he had complete dominion or control and the right to exclude others;
(4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy;
(5) whether he put the place to some private use; and
(6) whether his claim of privacy is consistent with historical notions of privacy.

Id.

Viewed in the necessary light, the evidence established that appellant parked the van in a stall of a garage owned by another individual, that the police had permission to search the garage, and that the police found cocaine lying on the open floor near the van. We note that the search of the van, with appellant’s permission, was conducted only after the cocaine on the garage floor had been found. Her argument is premised- entirely on the contention that the search of the garage and stall around the van was illegal, and that all of the subsequent events (including her consent to search the van) were thus tainted by this initial violation. Our inquiry is therefore confined to whether the search of the garage and floor around the van violated both appellant’s subjective privacy expectation and an expectation that society would view as reasonable.

Appellant argues she had a privacy interest in the stall where her van was parked, likening it to the situation of an overnight guest, a hotel room occupant, or a taxi passenger. See, e.g., Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990) (finding that an overnight guest had “an expectation of privacy in the home that society is prepared to recognize as reasonable”); Stoner v. California, 876 U.S. 483, 490, 84 S.Ct. 889, 893,11 L.Ed.2d 856 (1964) (concluding that “a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures”); Chapa v. State, 729 S.W.2d 723, 729 (Tex.Crim.App.1987) (holding that a fare-paying passenger “in a taxicab had a legitimate expectation of privacy in, and hence standing to challenge the search of, the area under the front seat of the taxicab”).

These situations are distinguishable. First, in this case, appellant presented no evidence that she paid rent or had any type of lease agreement for the stall where the van was parked; thus, this case is distinguishable from cases involving a hotel guest or taxi passenger. Taken in the light most favorable to the trial court’s ruling, this evidence established, at best, that appellant was a temporarily invited guest on someone else’s property. Second, as a temporarily invited guest, appellant did not have the same privacy expectation as would an overnight guest. By way of comparison, Villarreal found that a non-overnight guest had no reasonable expectation of privacy in a residence when there was no evidence that he “had a property or possessory interest in, or unrestricted access to” the residence, “dominion or control over the residence, ... the right to exclude others,” or an intention to stay overnight. 935 S.W.2d at 139.

Similarly, appellant cannot show a property or possessory interest in the garage stall, unrestricted access to the stall (which was apparently open to anyone from within the garage), dominion or control over the stall, the right to exclude others, or even an intention to leave the van in the stall for a definite period of time. Even assuming appellant could have shown that she was a paying customer of the detail shop, we find that an open stall in an auto shop garage does not imply the same expectation of privacy for its users as does a private home for an overnight guest, or as a hotel room or taxi cab for its paying customer. Without addressing whether appellant had a privacy interest in the van while it was in the shop, we note that appellant did not have a reasonable privacy expectation in the floor of the garage. Appellant should have expected that the shop owner would admit other persons into the garage, and that once the police officers were given permission by the shop owner to inspect the premises, they would be able to observe the three kilogram-sized packages of cocaine in plain view outside the van on the open stall floor. Under these facts, appellant has failed to show that she had a subjective expectation of privacy in the open stall where she had parked her van, much less that society as a whole would view this expectation as objectively reasonable.

The trial court did not abuse its discretion in denying appellant’s motion to suppress.

Appellant’s point of error is overruled for each of the three appeals.

The judgments are affirmed.


author: TIM TAFT, Justice. FRANK C. PRICE, Justice (Assigned),

text:
    David M. DONOVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-98-00427-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.

      Mary Acosta, Houston, for Appellant.
    Dan McCrory, John B. Holmes, Houston, for State.
    Panel consists of Chief Justice SCHNEIDER and JUSTICES TAFT and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

TIM TAFT, Justice.

Appellant, David M. Donovan, entered a plea of nolo contendere to a charge of aggravated sexual assault of a child. The trial court deferred adjudication of. guilt, assessed a fine of $300, and placed appellant on five years community supervision. We address whether the'trial court erred in refusing to hear appellant’s motion for new trial asserting that his plea was involuntary. We affirm.

Procedural Facts

Appellant filed a motion for new trial on • April 16, 1998, two weeks after entering a plea and being assessed deferred adjudication. Appellant asserted that his plea was involuntary and attached affidavits supporting his claim. Appellant claimed he did not know that the trial court could order several conditions of community supervision, such as registration as a sex offender, avoidance of children, attendance at sex offender counseling, and performance of 300 hours of community service. Appellant also claimed that he was not told the trial court could order him to participate in boot camp, and to wait in prison for an opening in boot camp. Appellant claimed his attorney had not informed him of these matters, and appellant would not have entered his plea of nolo contendere if he had known of them.

On April 20, 1998, appellant filed notice of appeal and a motion to set reasonable bail. The trial court set appellant’s motion for new trial for a hearing on May 5, 1998. At the hearing, the State took the position that the trial court did not have authority to hear appellant’s motion for new trial in the absence of an adjudication. Appellant argued that the voluntariness of a plea is something the trial court can consider at any time after the plea is taken. Appellant also argued that a hearing on his motion for new trial would provide the opportunity to develop a record to show the involuntariness of his plea.

The trial court denied the motion for new trial. Appellant then made a bill of exceptions including a proffer of affidavits of appellant and an experienced criminal defense attorney, setting forth appellant’s position that his plea was involuntary based on inadequate advice of counsel.

Claims on Appeal

Appellant raises three interrelated points of error on appeal: (1) the trial court abused its discretion in refusing to hear and grant appellant’s motion alleging that his plea was involuntary; (2) the trial court abused its discretion in refusing to hear appellant’s motion for new trial; and (3) the trial court denied appellant’s right to equal protection under the Texas and United States Constitutions when the court refused to hear his motion for new trial. The common thread of appellant’s arguments is that he has a right to a hearing to develop his claim of an involuntary plea, whether that be pursuant to a hearing on a motion for new trial (raising a claim of involuntary plea) or pursuant to the substance of that motion for new trial, i e., a motion to withdraw his plea. Appellant’s argument seems to be strengthened by the recent holding of the court of criminal appeals that matters relating to the original plea proceeding resulting in deferred adjudication must be raised in an immediate appeal from the deferral of adjudication. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999) (“a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed”). How is a defendant to successfully raise an appeal to the voluntariness of his plea without a hearing to develop .those matters, which are usually outside the record, that show involuntariness?

How to Raise Involuntariness of the Plea?

The trial prosecutor provided the answer when she argued that appellant should have moved for final adjudication within 30 days, as prescribed by article 42.12, section 5(a), of the Code of Criminal Procedure. Tex.Code CRiM. P. Ann. art. 42.12, sec. 5(a) (Vernon Supp.2000). This would have afforded appellant a motion for new trial, and the applicable rules would have required the trial court to give appellant a hearing on his allegations of an involuntary plea. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993) (trial court must afford defendant a hearing on motion for new trial raising matters not determinable from the record). There is no similar rule requiring a trial court to provide a defendant a hearing on his motion to withdraw his plea. See DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981) (holding that denial of hearing on motion to withdraw plea of guilty was no abuse of discretion where defendant’s decision to withdraw was too late, ie., after the trial court had taken the case under advisement).

Motions for new trial and motions to withdraw guilty pleas are different. They have different purposes and different procedures, even though the result of granting each is the same. Furthermore, at least one court has found the similarity of result to be an insufficient reason to apply the rules governing a motion for new trial to a motion to withdraw a plea of guilty. See Durst v. State, 900 S.W.2d 134, 138 (Tex.App. — Beaumont 1995, pet. ref'd) (holding that motion to withdraw guilty plea need not be in writing).

A motion for new trial gives a defendant a right to a hearing on matters not determinable from the record, but only if the defendant files the motion in writing within 30 days after sentence and presents the motion to the trial court within 10 days after filing, requesting a hearing. See Tex. R.App. P. 21.4(a), 21.6. A motion to withdraw a plea of guilty need not be presented at any particular time, see, e.g., State v. Ellis, 976 S.W.2d 789, 791 (Tex.App.— Houston [1st Dist.] 1998, no pet.), but the trial court has broad discretion to deny a motion to withdraw a plea when it is raised after the case is taken under advisement. See DeVary, 615 S.W.2d at 740.

In a case very similar to this one, this Court held that the trial court’s granting a motion for new trial was a nullity because there had been no adjudication. Ellis, 976 S.W.2d at 791. Nevertheless, because the trial court not only granted a motion for new trial, but went on to grant Ellis’s request to withdraw his plea of guilty, this Court upheld the trial court’s second action because the granting of a motion to withdraw the plea of guilty was within the trial court’s discretion. Id. at 792. It would be a mistake, however, to equate our Ellis holding, that it was proper for the trial court to grant relief under circumstances where it granted a hearing and considered the merits of the defendant’s requested relief, with a holding that it is improper for the trial court to deny a hearing on a defendant’s motion for new trial raising an involuntary plea claim.

It is also troubling that appellant did not request the trial court to consider his motion for new trial as a motion to withdraw his plea, as he asks this Court to do. The way in which the issue was framed before the trial court was whether appellant had a right to a motion for new trial after receiving deferred adjudication. The trial court correctly decided that issue. Even if appellant had framed the issue at trial in terms of requesting the trial court to allow appellant’s withdrawal of an involuntary plea, appellant presents no authority requiring the trial court to hold a hearing to allow a defendant to introduce evidence on the matter. Furthermore, as pointed out above, DeVary is authority supporting the trial court’s discretion in denying a hearing on a motion to withdraw a plea on the sole basis that the motion is filed after the trial court had taken the case under advisement. 615 S.W.2d at 740. Here, of course, the proceedings had gone even farther beyond taking the case under advisement than those in DeVary.

Under these circumstances, appellant should have first requested to withdraw his plea of nolo contendere. If the trial court denied appellant’s request, as well as the opportunity to present evidence in support of the request, appellant should have, within 30 days of having received deferred adjudication, moved the trial court to a final adjudication. Appellant would have then been entitled to a motion for new trial, and a hearing on the motion, because of the affidavit attached. This approach is in harmony with prevailing law and does not require judicial imposition of new rules upon an unsuspecting trial court to reach an equitable result.

The dissenting opinion interprets rule 21.1 of the Rules of Appellate Procedure as allowing new trials after a trial court’s findings other than a verdict of guilt. Present rule 21.1 of the Rules of Appellate Procedure provides: “New trial means the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside a finding or verdict of guilt.” Tex.R.App. P. 21.1 (emphasis in original). The present rule tracks the language of the former rule 30(a), which provided: “A ‘new trial’ is the rehearing of a criminal action after a finding or verdict of guilt has been set aside upon motion of an accused.” Former Tex.R.App. P. 30(a) (repealed). The former rule was derived from a statute that was repealed upon transfer of the provision for motions for new trial to the appellate rules. Former article 40.01 of the Code of Criminal Procedure defined “new trial” as “the rehearing of a criminal action after verdict, before the judge or another jury.” Act of May 27, 1965, 59th Leg., R.S., ch. 722, art. 40.01, 1965 Tex. Gen. Laws 317, 476 (repealed by Act of May 26, 1985, 69th Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472, 2472-73). The plain language of the former statute clearly contemplated an adjudication before a new trial. The interpretation of the dissenting opinion would enlarge the scope of a new trial to include a trial court’s findings, in addition to adjudications.

The same statute authorizing the court of criminal appeals to make appellate rules that would replace articles of the Code of Criminal Procedure expressly provided: “The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of the litigants.” Act of May 26, 1985, 69th Leg., R.S., ch. 685, § 1, 1985 Tex. Gen. Laws 2472, 2472. In 1987, the rulemaking powers of the court of criminal appeals were recodified in the Texas Government Code, again expressly limiting rulemaking powers so as not to modify the substantive rights of a litigant. Tex. Gov’t Code Ann. § 22.108(a) (Vernon Supp.2000).

In Davis v. State, 870 S.W.2d 43 (Tex.Crim.App.1994), the court of criminal appeals was confronted with an issue of whether the rules of appellate procedure impermissibly gave a defendant a greater scope of appeal than the predecessor statute. Id. at 45. The court construed the rule so that it conformed to the predecessor statute in order to abide by the legislature’s prohibition against abridging, enlarging, or modifying the substantive rights of a litigant. Id. at 46.

Here, we are confronted with a change of wording in the definition of new trial from “the rehearing of a criminal action after verdict, before the judge or another jury” to “the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside a finding or verdict of guilt.” Applying an approach similar to that taken in Davis to the change in wording presented here, the new rule should be construed so that “of guilt” modifies both “finding” and “verdict.” So construed, the new rule conforms to the former statute in providing for rehearings after adjudications in both bench trials and jury trials. Indeed, the Code of Criminal Procedure uses different terms for adjudications depending on whether the trial was to the court or to a jury. An adjudication in a court trial is a finding of guilt, while the adjudication in a jury trial is a verdict of guilt. See Tex.Code CRiM. P. Ann. art. 42.01, § 1(7) (Vernon Supp.2000) (“The judgment should reflect: ... The verdict or verdicts of the jury or the finding or findings of the court;”). Thus, rule 21.1’s use of the terms “finding” and “verdict” corresponds to the two types of trials, bench and jury, respectively, rather than two types of rulings a trial court can make.

What appellant did in this case was file a motion for new trial raising involuntariness of his plea, which the trial court properly denied in the absence of an adjudication. See Ellis, 976 S.W.2d at 791.

Accordingly, we overrule appellant’s three points of error.

Conclusion

We affirm the judgment of the trial court.

Justice PRICE dissenting.

FRANK C. PRICE, Justice (Assigned),

dissenting.

The question to be resolved here is whether a trial court judge can deny a defendant, who has received deferred adjudication, the right, under Rule 21 of the Texas Rules of Appellate Procedure, to pursue a motion for new trial without first asking the trial court to adjudicate guilt.

Pursuant to a partial plea agreement, appellant entered a plea to the offense of aggravated sexual assault and received deferred adjudication community supervision for five years. The conditions of community supervision, instead of being part of the agreement, were left to the discretion of the trial court. After the trial judge accepted the plea and heard the evidence, she made the finding the evidence substantiated guilt and announced the conditions of community supervision. Appellant felt they were too onerous and unreasonable. He filed a motion for new trial, pursuant to rule 21 of the Rules of Appellate Procedure, claiming his plea was involuntary because it was based on bad advice from his attorney. Tex.R.App. P. 21.2. Accompanying his motion were affidavits claiming ineffective assistance of counsel, maintaining that had he been made aware of the conditions of community supervision, he would never have entered his plea. See Tex.R.App. P. 21.7. Appellant, as a prerequisite to appeal, requested the hearing on the motion for new trial in order to develop evidence of the ineffective assistance that otherwise would not be determinable from the record. See Tex.R.App. P. 21.2. On the date of the hearing, the trial court refused to let appellant proceed.

The majority opinion takes the position that a defendant is not entitled to pursue a motion for new trial until the judgment reflects that a verdict of guilty has been entered. It does, however, acknowledge that an appeal on issues relating to the original plea proceeding that resulted in deferred adjudication community supervision is appropriate without a judgment of guilt being entered on the record. In fact, it is mandatory that such appeals be taken within 30 days of the imposition of the deferred adjudication community supervision. Tex.R.App. P. 26.2(a)(1) (where no motion for new trial is filed, defendant must appeal within 30 days after sentence is imposed or suspended); Tex.Code Crim. P. Ann. art. 42.12 § 23(b) (Vernon Supp. 2000) (defendant’s right to appeal conviction and punishment accrues when defendant is placed on community supervision); see Manuel v. State, 994 S.W.2d 658, 661— 62 (Tex.Crim.App.1999).

The majority opinion’s answer to the dilemma that a defendant can appeal to a higher court from a deferred adjudication holding, but cannot pursue a new trial under the same circumstances, is that appellant should have moved for a final adjudication as provided in article 42.12, section 5(a) of the Code of Criminal Procedure. After adjudication of guilt, according to the majority, appellant could then pursue his motion for new trial and develop his evidence on his allegation that he was denied effective assistance of counsel.

Based on the majority’s reasoning, let us examine appellant’s options. He can directly appeal his claim of ineffective assistance, but he will automatically lose because the issue would not have been developed enough to be determinable from the record. See Tex.R.App. P. 21.2. Secondly, appellant can move for final adjudication, and because this is an article 42.12, § 3g offense, the trial judge must sentence him to the penitentiary as a first degree felon, and then he is ineligible to make bond pending appeal. Tex.Code CRiM. P. Ann. art. 42.12, § 3g(a)(l)(E) (Vernon Supp. 2000) (prohibiting the trial judge from assessing a community supervision sentence); Tex.Code CRiM. P. Ann. art. 44.04(b) (Vernon Supp.2000) (defendant may not be released on bail pending the appeal where the defendant has been convicted of an offense listed under Section 3g(a)(l), article 42.12). Therefore, is it better for a defendant to automatically lose his appeal, or automatically lose his freedom with the possibility of losing his appeal? I cannot answer that question, but there is no justice in either of these options.

I think the majority opinion, requiring appellant to first move for an adjudication of guilt before pursuing a motion for new trial, misconstrues the law governing such motions. Rule 21.1 of the Texas Rules of Appellate Procedure controls the situation. Tex.R. App. 21.1. It defines a new trial as “the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside a finding or verdict of guilt.” (Emphasis added.) The rule contemplates that some findings by a trial court, other than a verdict of guilt, will dispose of a criminal action and still impose sanctions on a defendant.

In the present case, the trial court made its finding of guilt as required by the statute regulating motions for new trial. Prior to deferring proceedings and placing appellant on community supervision, the trial judge accepted appellant’s plea, heard evidence, and made the requisite finding that the evidence substantiated appellant’s guilt. See Tex.Code CRiM. P. Ann. art. 42.12 § 5(a) (requiring such finding before community supervision is imposed.) It is from this finding that appellant predicates his motion for new trial.

The majority claims this interpretation of rule 21.1 modifies and enlarges the substantive rights of a defendant beyond the requirements of a former rule which - allowed the pursuit of a motion for new trial only after an adjudication of guilt. I disagree. The rules should be read and interpreted to harmonize with existing statutes, not used to treat a litigant unfairly.

When the legislature enacted article 42.12, sec. 23(b) of the Code of Criminal Procedure, it started the time running on the defendant’s right to appeal from the date community supervision is imposed. Tex.Code CRiM. P. Ann. art. 42.12 § 23(b) (Vernon Supp.2000). To harmonize with this statute, rule 26.2 was promulgated to require the filing of a notice of appeal within 30 days after the day sentence is imposed or suspended in open court. Tex. R.App. P. 26.2(a)(1).

Likewise, Texas Code of Criminal Procedure Annotated, article 42.12 § 5 requires the trial court judge, before assessing deferred adjudication community supervision after a plea of guilty or nolo contendere, to hear the evidence and make a “finding” that the evidence substantiates the defendant’s guilt. I believe that Texas Rule of Appellate Procedure 21.1, should be interpreted to harmonize with this statute. It allows for a new trial after the trial court sets aside a finding or verdict of guilt. The finding of guilt should be interpreted as the finding required in article 42.12 § 5 of the Code of Criminal Procedure. Otherwise, rules 21.1 and 21.2 cannot be harmonized with any existing statute, and rule 21.2 becomes meaningless.

Contrary to the majority’s opinion, it is not harmonizing to require a defendant to ask the trial court to send him to the penitentiary where he must sit without bail before he can pursue a required motion for new trial after being assessed deferred adjudication community supervision.

The trial court erred in denying appellant his hearing on his motion for new trial. I, therefore, respectfully dissent from the majority’s holding.

      . Appellant's claim of constitutional violation was not preserved by trial objection. See Russell v. State, 665 S.W.2d 771, 777 (Tex.Crim.App.1983). Consequently, we do not address appellant's third point of error.

      . It is true that the court of criminal appeals has not always recognized the prohibition against modifying the substantive rights of the litigants. For example, in Reyes v. State, 849 S.W.2d 812 (Tex.Crim.App.1993), the court upheld the rule of appellate procedure which had deleted the former statute’s phrase "and for no other" after the enumerated reasons for granting a new trial. Id. at 815. This change enlarged the scope of a motion for new trial thereby enlarging the substantive rights of the defendant. The court apparently did not consider the prohibition, however, in Reyes. Moreover, the court was dealing with ineffective assistance of counsel which, the court acknowledged, had been considered a ground for granting a new trial even under the former statute. Id. at 814. Indeed, two judges concurred on the basis that ineffective assistance of counsel falls within a listed ground, where the defendant "has been denied counsel." Id. at 816.

      . Tex.Code Crim. P. Ann. art. 42.12 § 5(a) (Vernon Supp.2000).

      . Act of May 19, 1999, 74th Leg., R.S., ch. 546, § 1, 1999 Tex. Gen. Laws 3042-43, 3044.


author: SAM NUCHIA, Justice.

text:
    GALVESTON HISTORICAL FOUNDATION, Appellant, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF GALVESTON, TEXAS, and Broadway SE, LP, Appellees.
    No. 01-99-01200-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.

      Kenneth J. Bower, Galveston, for appellant.
    Robert J. Gervais, Stephen W, Baker, Galveston, Kevin D. Jewell, Houston, for appellee.
    Panel consists of Justices, O’CONNOR, NUCHIA, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

SAM NUCHIA, Justice.

This is an appeal of a final order upholding the decision of the Board of Adjustment that Galveston Historical Foundation did not have standing to appeal. We reverse, render, and remand for further proceedings.

BACKGROUND

The City of Galveston has established, by ordinance, a special zone on Broadway from 19th Street to 59th Street extending from the alley on the south side of Broadway to the alley on the north side. This zone is known as the “Broadway Overlay Zone,” and various building restrictions, including size and types of signs, apply within this zone.

Broadway SE, LP, a limited partnership applied for and was granted a permit by the planning department of the City of Galveston to erect two freestanding monument signs at the site of a newly constructed Eckerd drug store at the southeast corner of 25th and Broadway in Galveston. The signs were to be built of brick and were to be nine feet high and thirteen feet wide, with an Eckerd logo on the upper portion to be twelve feet wide and four feet high. One sign was to be located on Broadway, and the other on 25th Street.

Galveston Historical Foundation, a nonprofit organization, leases Ashton Villa, an historical mansion on the northeast corner of Broadway and 24th Street, and conducts a variety of fundraising activities there. GHF appealed the decision of the planning department to the Zoning Board of Adjustment, an administrative agency created under section 211.008 of the Texas Local Government Code. GHF contended that each of the signs far exceeded the maximum “sign face” size of 48 square feet allowed in the Overlay Zone. Broadway SE challenged GHF’s standing to appeal to the Zoning Board of Adjustment, and the Board held a hearing on the issue of standing. After hearing testimony from GHF and Broadway SE and statements by a city attorney, one member of the Board moved that GHF had standing. The motion was not seconded, and it failed for lack of a second. This had the same effect as a ruling that GHF did not have standing to appeal to the Board.

GHF filéd a petition for a writ of certio-rari with the district court. The district court, after reviewing the pleadings and briefs of GHF and the Board and the transcript of the hearing, found that the Board did not abuse its discretion in concluding that GHF lacked standing and ordered that GHF take nothing, upheld the action of the Board, and denied the requested temporary and permanent injunctions.

DISCUSSION

Standard of Review

A decision of a zoning board of adjustment on the merits of an issue is reviewed for abuse of discretion, City of San Angelo v. Boehme Bakery, 144 Tex. 281, 286,190 S.W.2d 67, 70 (1945); see also Board of Adjustment of City of Corpus Christi v. Flores, 860 S.W.2d 622, 626 (Tex.App. — Corpus Christi 1993, writ denied). However, standing is a component of subject matter jurisdiction, and appellate courts review the issue of standing as they review subject matter jurisdiction generally. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Because a board of adjustment is a quasi-judicial body, we use the standard of review by which we review the issue of standing in a trial court. See Flores, 860 S.W.2d at 626. Under this standard, the party bringing an appeal to the board is required to allege facts that affirmatively show it is an aggrieved person. See Texas Ass’n of Bus., 852 S.W.2d at 446. In our review of the board’s determination that GHF, as petitioner, did not have standing, we construe the allegations in favor of the petitioner.

GHF’s Standing

The first issue raised by GHF is whether the Board abused its discretion when it did not rule that GHF was “aggrieved.” We construe this issue to be a challenge to the Board’s failure to rule that GHF had standing to bring its appeal to the Board.

Regarding an appeal to the board of adjustment, the Local Government Code provides:

Except as provided by Subsection (e), any of the following persons may appeal to the board of adjustment a decision made by an administrative official:
(1) a person aggrieved by the decision; or
(2) any officer, department, board, or bureau of the municipality affected by the decision.

Tex. Local Gov’t Code Ann. § 211.010(a) (Vernon 1999). Thus, GHF could only appeal the issuance of the sign permits if it could establish that it was a “person aggrieved by the decision.” The Local Government Code does not define “person aggrieved.”

The only issue considered by the Board at the hearing was the issue of standing. The attorney for the City of Galveston advised the Board that they should consider the issue of standing first, and if they reached-a decision adverse to GHF on that issue, they would not need to address the merits. He also made a closing argument that if Ashton Villa were adjacent to the drug store, it would have standing, but that because of its distance from the store, the fact that it is on the opposite side of Broadway, and the speculative nature of the harm that might occur, GHF had not established its standing to appeal to the ■ board.

We find only two Texas cases in which standing before a zoning board of adjustment was an issue. In Austin Neighborhoods Council, Inc. v. Board of Adjustment of City of Austin, the appealing party did not establish standing because it made no attempt whatever to show how it was injured or damaged other than as a member of the general public. 644 S.W.2d 560, 563 (Tex.App. — Austin 1982, writ refd, n.r.e.). In Texans to Save the Capitol, Inc. v. Board of Adjustment of City of Austin, standing was challenged, and the appellants presented uncontested evidence to the Board of their aggrievement. 647 S.W.2d 773, 775 (Tex.App.— Austin 1983, writ refd n.r.e.). The court of appeals noted that the evidence showed some unique harm to appellants, but it “at best is very weak.” Id. The court does not set out the evidence that was presented.

In Scott v. Board of Adjustment, a case involving standing to appeal a board’s decision to a district court, the supreme court stated, “Where the statute requires that the person be interested, affected, or aggrieved ... the plaintiff must allege and show how he has been injured or damaged other than as a member of the general public....” 405 S.W.2d 5.5, 56 (Tex.1966). However, the damage or injury need not reach the level of a legal injury. See Austin Neighborhoods Council, 644 S.W.2d at 563.

In another context, the supreme court stated, “The terms ‘aggrieved’ and ‘affected’ are synonymous and both relate to the requirement that a person show a ‘justicia-ble interest.’” Hooks v. Texas Dept. of Water Resources, 611 S.W.2d 417, 419 (Tex.1981). The issue in Hooks was whether the Hookses had standing to bring appeal to the district court from an order of the Department of Water Resources. The court held that the Hookses had standing to appeal the Department’s order and noted that the hearing examiner designated the Hookses as parties “who may be affected by the action that may be taken as a result of the hearing.” Id.

In Hunt v. Bass, a case -involving standing to assert a claim in a district court, 11 plaintiffs in separate suits in Harris County filed a petition for writ of mandamus alleging that the delay in bringing their suits to trial denied them valuable property rights. 664 S.W.2d 323, 324 (Tex.1984). The district court dismissed their petition on the basis that they had no standing. The supreme court said, “[Ojnce the plaintiffs alleged an interest peculiar to themselves and distinguishable from the public generally, they were entitled to a factual hearing.” Id.

Courts in at least two other jurisdictions have determined that persons residing or owning property within a zoned area have standing to challenge zoning decisions affecting that area. In Byers v. Board of Clallam County Commissioners, residents and taxpayers challenged an interim zoning ordinance that was passed for a portion of the county. 84 Wash.2d 796, 529 P.2d 823, 826 (1974). The Board of Commissioners argued that the residents and taxpayers did not have standing to attack the ordinance. The supreme court, recognizing its previous holding that residents of an area encompassed by a zoning plan have a sufficient protected interest to have standing to challenge the reasonableness and validity of a zoning ordinance, affirmed the trial court’s determination that the residents and taxpayers had standing. Id.

In Davis v. Richardson, Davis’s application for a permit to locate a private social club in a residential zone was granted. 507 S.W.2d' 446, 447 (Ky.1974). Several residents, including one owning property adjacent to the proposed club, appealed. Id Davis contended the residents did not have standing as persons who were injured or aggrieved by the decision to grant the permit. Id. at 448. The court explained that the restrictions imposed by “the statutory scheme of the concept of an area called a zone” required the conclusion “that property owners within the affected zone to whom the same regulations are applicable are sufficiently interested in preserving the character and integrity of the zone” to have standing. Id. The court held that the property owners residing within the affected zone were within the definition of “injured or aggrieved parties.” Id. at 448-49.

In 21st Century Development Co., LLC v. Watts, a neighbor objected to a requested amendment to the zoning ordinance that would allow increased residential density in a portion of the zone. 958 S.W.2d 25 (Ky.Ct.App.1997). In determining that Watts had standing to challenge the zone change, the court stated, “Kentucky courts [have recognized] that zoning issues affected more than just the adjacent property owner or those in the same neighborhood.”

Id. at 28. The court quotes the Kentucky high court, “[T]he purpose of zoning is not to protect the value of the property of particular individuals but rather to promote the welfare of the community as a whole.” Id.

We agree with the reasoning of the Washington and Kentucky courts. The Broadway Overlay Zone is a narrow strip on both sides of Broadway from 19th Street to 59th Street. The ordinance creating the overlay zone provides, under “Purpose, intent and location of Zone,”

The area located within the Zone is considered vital to the future economic growth of the City of Galveston and to improve the quality of life for' all residents ....

The ordinance further provides, under “Definition,”

A set of zoning requirements that as described in the preceding sections, mapped and imposed in addition to those of the underlying district. Development within the overlay zone must conform to the requirements of both zones. In instances of discrepancy the more restrictive shall apply.

The ordinance provides for numerous conditions and restrictions for buildings within the zone, including front, side, and rear yard setbacks, building materials, landscaping, street lighting, building height, signage, driveways, fencing, and amenities, such as pay phones and vending machines. These restrictions apply to all structures built or rebuilt after the effective date of the ordinance.

We find that persons who reside or operate a business in the restricted zone are persons who have “an interest peculiar to themselves and distinguishable from the public generally.” See Hunt, 664 S.W.2d at 324. They “are sufficiently interested in preserving the character and integrity of the zone” to have standing to appeal administrative decisions to the board of adjustment because they are within the definition of “injured or aggrieved parties.” We conclude that GHF’s allegations that it operated a business within the overlay zone and that the approved signs were not in conformance with the restrictions imposed on the zone were sufficient to establish that it, was an aggrieved party who had standing to appeal to the board of adjustment.

GHF introduced evidence that supported its allegations of standing. GHF presented the following uncontested facts to establish standing to appeal to the board. GHF had a 40-year lease on Ash-ton Villa, an historical mansion, from the City of Galveston. Ashton Villa is located across Broadway and one block east of the Eckerd drug store. Both Ashton Villa and Eckerd are within the Broadway Overlay Zone. GHF raises a substantial amount of its $2.5 million dollar operating budget from activities at Ashton Villa, including being open for business 362 days of the year, selling tickets to and conducting tours of Ashton Villa and other historical mansions in the vicinity, operating a gift shop on the premises, and renting a ballroom at the rear of the property for weddings, receptions, and parties. Betty Massey, the executive director of GHF, testified that these activities are directly connected to the unique historical setting of that area of Broadway. In addition, GHF has purchased a second building, the John Sealy Garage, which is around the corner from Ashton Villa and just outside the Overlay Zone, to be used to recycle architectural pieces of old buildings for resale. Massey testified that this business, also, relies on the historical nature of the immediate area. Her concern was that permitting the Eckerd signs would make the area less attractive to their patrons, visitors, guests, and shoppers as well as the groups that rent the ballroom for special occasions.

In the hearing before the Board, Broadway SE argued that GHF was required to show some direct link between the proposed sign and the activities at Ashton Villa, and that GHF should show how other signs affect Ashton Villa either positively or negatively. However, Broadway SE admitted, when questioned by a board member, that it knew of no similar signs in the area.

The city attorney told the Board that GHF had to demonstrate how it was injured or damaged other than as a member of the general public and that there was some unique or particular effect on them not suffered by the general public. He argued that the statements made by those representing GHF were conclusory or speculative.

Broadway SE and the city attorney attempted to place a higher standard of proof on GHF than was required to establish standing. GHF was not required to establish a direct link between the Eckerd sign and the activities at Ashton Villa, nor did it have to show that legal harm had already occurred. GHF established that its business would be affected other than as a member of the general public if nonconforming signs were permitted, and it had an interest peculiar to itself in preserving the historical nature of the neighborhood.

Even if a higher standard of proof were imposed, GHF’s allegations, when construed in its favor, were sufficient to establish standing. Accordingly, we sustain GHF’s first issue.

In light of our determination on GHF’s ■ first issue, we need not reach its second issue.

We reverse the judgment of the trial court, render judgment that the Zoning Board of Adjustment abused its discretion in concluding that GHF lacked standing to pursue the merits of its appeal before the Zoning Board of Adjustment of the City of Galveston, and remand the cause to the Board of Adjustment for further proceedings.

      . Tex. Local Gov't Code Ann. § 211.008(f) (Vernon 1999).

      . The Zoning Board and Broadway SE contend that the sign is in compliance with the zoning restrictions because the "sign face” is not the entire brick monument, but is the four feet by twelve feet logo placed on the monument. However, the interpretation of the ordinance governing the size of signs is not an issue in this appeal.

      . The Board evidently relied on Roberts Rules of Order as a procedural mechanism for avoiding a vote on the issue of standing. By not bringing the issue to a vote, the Board also avoided the statutory requirement of recording the vote of each member on the issue. See Tex. Local Gov’t Code Ann. § 211.008(f) (Vernon 1999).