author: DAVID PURYEAR, Justice.

text:
    Bernard MAJESKI, Appellant, v. ESTATE OF Sarah Bishop MAJESKI, Deceased, Appellee.
    No. 03-03-00565-CV.
    Court of Appeals of Texas, Austin.
    Feb. 3, 2005.
    Rehearing Overruled April 28, 2005.

      William M. Gatewood, Jr., San Antonio, for Appellant.
    Frank B. Suhr, Jr., New Braunfels, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Geraldine Wesch is the daughter of the decedent, Sarah Bishop Majeski (“Bishop”), and appellant Bernard Majeski was Bishop’s husband for more than twenty years. After Bishop’s death, a dispute arose between Wesch, as administrator of Bishop’s estate, and Majeski. Both sought control of a tract of land owned by Bishop before her marriage and on which she and Majeski lived and worked. Majeski claimed a homestead right as Bishop’s surviving spouse, see Tex. Const, art. XVI, § 52, and Wesch argued that the rental of portions of the property defeated Maje-ski’s homestead rights. The trial court granted summary judgment in favor of Wesch, and Majeski appeals. We reverse the judgment and remand the cause to the trial court for further proceedings.

Before marrying Majeski, Bishop acquired as her separate property a 5.851-acre tract of land in Schertz, Texas. Bishop operated a bar and pool hall, called the Bishop Center, on the property, and lived in the same building. After she married Majeski, they lived in and operated the Bishop Center together. A parking lot lies in front of the Bishop Center, and behind it is a yard and a fence that separates the rest of the property. On the property behind the fence are several mobile homes and rental homes, some of which are uninhabitable, several mobile home lots, junk cars, pieces of equipment, a service station, and a. billboard. Both before and during the marriage, several of the structures behind the fence were rented to third parties.

Bishop died intestate in February 2000, survived by Majeski, Wesch, and two other adult children from a previous marriage. Wesch was appointed independent administrator of Bishop’s estate and filed an inventory of the estate, listing the 5.851 acres as Bishop’s separate property and stating that there were no outstanding claims against the estate. When Wesch informed Majeski that she would begin collecting payments from the rental properties, Majeski sought a temporary restraining order seeking to have Wesch barred from interfering with Majeski’s use of the property and from exercising authority or management over the property. Majeski also sought a judgment declaring the 5.851 acres, including any improvements, rental properties, and businesses, to be Majeski’s homestead, claiming a life estate in the property as Bishop’s surviving spouse. The trial court granted a temporary restraining order but later, faced with competing motions for summary judgment filed by Majeski and Wesch, granted summary judgment in Wesch’s favor finding that Majeski’s homestead consisted only of the Bishop Center, the fenced yard behind the budding, and the parking lot. The remainder of the property behind the fence was found not to be his homestead because it was not used for homestead purposes or to exercise a business or calling.

Majeski appeals, arguing that he is entitled to claim the entire tract as his homestead and that Wesch’s motion did not assert specific grounds for summary judgment. Wesch asserts that the order from which Majeski appeals is interlocutory. We hold that the order was final and ap-pealable and agree that Majeski established that the Bishop Center and its surrounding parking lot and yard were his homestead. We hold that there is a question of fact as to the homestead status of the remaining property behind the fence, reverse the trial court’s granting of summary judgment in Wesch’s favor on that issue, and remand the cause to the trial court for further proceedings.

Is the Trial Court’s Order Final and Appealable?

Wesch filed her administrator’s inventory in the trial court as part of the probate of Bishop’s estate. After Wesch contacted Majeski to state she would be taking control of the property beyond the fence, Majeski sought a declaration that the entire property was his homestead. Wesch countered, asking the court to determine what portion of the property was Majeski’s homestead. She also asked the court to declare “the value and character of all items of personal property” and what assets should be given to Majeski as Bishop’s surviving spouse and to deduct from Majeski’s share of the estate “the value of all assets not accounted for which [were] in his possession.” Both sides moved for summary judgment on the issue of the homestead status of the property. Wesch asserts that the trial court’s order was not a final order because the court did not address her counter-petition requests related to the other assets held by Majeski. We disagree.

We may only consider appeals from final and appealable orders or from interlocutory orders over which we are given statutory jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). The probate code grants appellate courts jurisdiction over “[a]ll final orders of any court exercising original probate jurisdiction.” Tex. Prob.Gode Ann. § 5(g) (West Supp.2004-05). This has been interpreted to mean that we may consider an appeal from an order that, while not a final disposition of a probate matter consisting of a continuing series of events, “adjudicatefe] conclusively a controverted question or substantial right.” Logan v. McDaniel, 21 S.W.3d 688, 688 (Tex.App.-Austin 2000, pet. denied). If no express statute declares a phase of a probate proceeding to be final and appealable, we must consider whether the order is part of a proceeding that left unresolved issues or whether the order “concluded a discrete phase” of the proceedings. Id. at 688-89.

Once an administrator of an estate files an inventory and list of approved claims, a surviving spouse must seek to have “exempt property” excluded and set aside for the spouse’s use. Tex. Prob.Code Ann. § 271 (West 2003). The only dispute at issue at this stage of the probate proceeding was the homestead status of the property. Although Wesch asserted claims related to other assets, those questions were separate from the homestead issue. The trial court’s order made a final resolution of the homestead issue as to the entire tract of land. Therefore, we hold that the order “concluded a discrete phase” of the proceedings and is final and appealable. See Logan, 21 S.W.3d at 689. We overrule Wesch’s motion to dismiss the appeal for lack of jurisdiction.

Homestead Status of the Property

Standard of Review

Majeski moved for a “traditional” summary judgment under rule 166a of the rules of civil procedure, asserting that the evidence established that he was entitled to judgment as a matter of law that the entire 5.851 acres should be considered his homestead. See Tex.R. Civ. P. 166a(c). Wesch countered with a motion for summary judgment asserting that the evidence established as a matter of law that Majeski cannot claim the entire tract as his homestead and a “no-evidence” motion, asserting that there was no evidence to prove Majeski’s case. See Tex.R. Civ. P. 166a(i).

A “traditional” motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiffs theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

A party seeking a “no-evidence” summary judgment, on the other hand, does not bear the burden of establishing her right to judgment by proving a defense or claim, but instead asserts that there is no evidence of one or more essential elements of a claim on which the opposing party will have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Holmstrom, 26 S.W.3d at 530. If the nonmovant produces more than a scintilla of probative evidence raising a genuine issue of material fact as to an essential element on which he has the burden of proof, a no-evidence summary judgment is improper. Tex.R. Civ. P. 166a(i); Holmstrom, 26 S.W.3d at 530.

In reviewing the granting of a summary judgment, we take as true evidence favorable to the nonmovant, making every reasonable inference and resolving all doubts in the nonmovant’s favor. Centeq Realty, 899 S.W.2d at 197. If both parties move for summary judgment, we determine all questions presented and render the judgment the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). An interested party’s testimony, whether live or through an affidavit, may only be used as summary judgment evidence if it is uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being controverted. Tex.R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Summary judgment is improper if based on testimony by an interested witness that does not meet all of the above requirements. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989).

The Texas Constitution provides special protections for homestead property beyond the protections given to other types of property. See Tex. Const, art. XVI, § 50. A homestead is a constitutionally created legal interest that protects a property from all but a few specifically enumerated kinds of liens that may be imposed against a homestead. Heggen v. Pemelton, 836 S.W.2d 145, 148 (Tex.1992). Courts must liberally construe constitutional and statutory homestead provisions to protect the homestead. Whiteman v. Burkey, 115 Tex. 400, 282 S.W. 788, 789 (1926); State ex rel. Texas Dep’t of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 685 (Tex.App.-Austin 1996, no writ). When a spouse dies, the surviving spouse retains the full homestead rights that the couple enjoyed before the death of the spouse. Riley v. Riley, 972 S.W.2d 149, 154 (Tex.App.-Texarkana 1998, no pet.); see Tex. Const. art. XVI, § 52; Tex. Prob.Code Ann. §§ 282, 283 (West 2003). Even if the property was the deceased spouse’s separate property, the surviving spouse may continue to use and occupy the property as long as he does not abandon the homestead. Tex. Const, art. XVI, § 52; Tex. Prob.Code Ann. § 282; Copeland v. Tarrant Appraisal Dist., 906 S.W.2d 148, 151 (Tex.App.-Fort Worth 1995, writ denied). Once property has been designated as a homestead, it will only lose that character through abandonment, death, or alienation. See Patterson v. First Nat’l Bank of Lake Jackson, 921 S.W.2d 240, 246 (Tex.App.-Houston [14th Dist.] 1996, no writ) (“Once a homestead right is established, it can only be lost during the claimant’s life by abandonment or voluntary conveyance. Moreover, once a homestead has been shown to exist, there is a presumption that the homestead continues in the absence of evidence to the contrary.” (citation omitted)); Farrington v. First Nat’l Bank of Bellville, 753 S.W.2d 248, 251 (Tex-App.-Houston [1st Dist.] 1988, writ denied); Long Bell Lumber Co. v. Miller, 240 S.W.2d 405, 406 (Tex.Civ.App.-Amarillo 1951, no writ).

Generally, whether a piece of property qualifies as a homestead is a fact question. Brown v. Bank of Galveston, Nat’l Ass’n, 963 S.W.2d 511, 515 (Tex.1998); see Sims v. Beeson, 545 S.W.2d 262, 264-65 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.) (testimony on issue of homestead raised fact question); Prince v. North State Bank of Amarillo, 484 S.W.2d 405, 409-10 (Tex.Civ.App.-Amarillo 1972, writ ref d n.r.e.) (“a review of all the circumstances indicates that the uncorroborated testimony is not conclusive that the property was a part of the homestead as a matter of law, but presents a fact issue for determination”). Likewise, abandonment of a homestead is a fact question. Long Bell Dumber, 240 S.W.2d at 406.

Summary Judgment Evidence

The parties submitted as evidence Wesch’s affidavit and Majeski’s responses to Wesch’s request for admissions. Wesch and Majeski agreed that two houses and two mobile homes are currently being rented to tenants; the billboard is rented by a third party; three mobile homes and two houses are vacant and uninhabitable; old cars and other items belonging to Majeski and one of his tenants are located on vacant areas, in a large work/storage area, and in a storage unit. Wesch averred that the service station is being rented to third parties; that one mobile home lot is being used by Majeski’s grandson; and that Majeski uses one of the uninhabitable houses as storage. Majeski agreed that his grandson lives on a mobile home lot and that the service station is being used by third parties for commercial purposes, but denied that his grandson or the service station tenant is paying rent. Majeski said the service station tenants instead help around the property. Maje-ski also stated that the fence between the Bishop Center and the rest of the property was “temporary.”

Discussion

The trial court correctly held and Wesch does not dispute that the Bishop Center and its surrounding parking lot and fenced yard qualify as Majeski’s urban homestead. Majeski and his wife lived in and operated the Bishop Center as their livelihood, he continues to do so today, and the operation of the bar requires Majeski’s time, attention, and labor. Thus, Majeski may claim the Bishop Center and its immediate surrounds as homestead. See Tex. Const, art. XVI, § 51; Tex. Prop. Code Ann. § 41.002(a) (West 2000). The only question, therefore, is whether Maje-ski is entitled to claim as his homestead any or all of the property beyond the fence behind the Bishop Center. We hold that the trial court erred in finding that, as a matter of law, Majeski was not entitled to claim any of the lánd behind the fence as his homestead.

Before 1999, an urban property owner could claim both a business homestead and a residential homestead. See Miller v. Menke, 56 Tex. 539, 550-51 (1881). In 1999, the constitution was amended to do away with the separate urban business homestead. See Tex. Const. art. XVI, § 51. Now, a person may claim only one urban homestead up to ten acres in size and consisting of a lot or contiguous lots “used for the purposes of a home, or as both an urban home and a place to exercise a calling or business.” Id.; Tex. Prop. Code Ann. § 41.002(a); see generally Christopher John Kern, Goodbye Texas Urban Business Homestead: An Analysis of the November 1999 Amendment to Article XVI, Section 51 of the Texas Constitution, 52 Baylor L.Rev. 663 (2000).

As originally proposed, the 1999 amendment would have eliminated the “calling or business” language from the provision. Tex. S.J. Res. 22, 76th Leg., R.S. (1999) (introduced version). The original proposal would have provided homestead protection to property up to ten acres, contiguous, and used for purposes of a home, without addressing the issue of business activities being conducted on the property. Id. However, the amendment as enacted retains the old “business or calling” language, which Wesch argues shows a legislative intent to retain the requirements applied to business homesteads before the 1999 amendment.

Texas courts have long defined what qualifies as a “business or calling” when interpreting the original homestead provisions. A calling embraces “all such employments as by course of study or apprenticeship in any of the learned professions, liberal arts, or mechanical occupations, a person has acquired skill or ability to follow, and which has become practically a matter of personal skill.” Shryock & Rowland v. Latimer, 57 Tex. 674, 677-78 (1882). A business occupies a property owner’s time, attention, or labor for purposes of profit or improvement. Id. Renting or leasing property has generally not been considered a business or calling, even if rental income is an individual’s sole source of income. See Mays v. Mays, 48 S.W.2d 148, 152 (Tex.Civ.App.-Beaumont 1931, writ refd); Lyon v. Files, 50 Tex. Civ.App. 680, 110 S.W. 999, 1001 (1908, no writ); Angus S. McSwain, The Texas Business Homestead in 1990, 42 Baylor L.Rev. 657, 670 (1990). Courts have instead viewed rental property as an investment that does not take up a large portion of the property owner’s time, labor, or attention. See In re Kang, 243 B.R. 666, 669 (Bankr. N.D.Tex.1999); C.D. Shamburger Lumber Co. v. Delavan, 106 S.W.2d 351, 357 (Tex. CivApp.-Amarillo 1937, writ refd). Temporarily renting homestead property to another, however, does not change the property’s homestead character. Tex. Const, art. XVI, § 51.

Assuming that the traditional business homestead requirements apply under the new constitutional provision, the evidence does not establish as a matter of law that none of the property behind the fence was Majeski’s homestead. Majeski and his wife claimed and received a homestead exemption on the entire 5.851 acres, and the evidence does not show that anything has changed in the use of the property since Majeski’s wife’s death. The evidence shows that some portion, indeed a substantial portion, of the land behind the fence is either not in use at all or is used by Majeski for storage of his personal items and for his own use. The evidence is unclear about exactly what percentage of the property behind the fence is actually rented. Majeski acknowledged renting four housing units, but stated that several of the other houses or mobile homes are not rented and in fact are uninhabitable. Majeski contradicted Wesch and asserted that the service station was used by a third party who did not pay rent.

Under the trial court’s determination, the fence that Majeski and his wife erected between the Bishop Center and the remainder of the lot is the dividing line between what is homestead and what is not. This designation is arbitrary and begs the question of whether the line would shift if, on a whim, the “temporary” fence had been placed ten feet in either direction or had been torn down altogether. Further, Majeski’s statements contradict some of Wesch’s assertions, thus raising fact issues, and even the un-contradicted evidence does not establish as a matter of law that Majeski’s homestead interest in all of the land behind the fence should be forfeited. Instead, there is a question of fact as to what portion of the tract, some of which is used by Majeski for storage or is vacant, is deserving of homestead protection.

It was Wesch’s burden to show exactly what portions of the property, if any, were not subject to Majeski’s claims of homestead. See Canales v. Oliver, 322 S.W.2d 411, 413 (Tex.Civ.App.-San Antonio 1959, writ ref d n.r..e.) (“appellant, having undertaken to show that portions of said lot had been abandoned for homestead purposes and converted to the use of the rent houses, was charged with the burden of proving just what part of the homestead had been abandoned”). Wesch has not carried that burden, nor has she shown as a matter of law that Majeski may not claim any of the property lying behind the fence as homestead. See Brown, 963 S.W.2d at 515. We therefore reverse the trial court’s order as far as it finds that Majeski may not claim any of the land beyond the fence as his homestead.

Conclusion

We hold that the trial court’s order is final and appealable and we overrule Wesch’s motion to dismiss Majeski’s appeal. We affirm the portion of the trial court’s order finding that Bishop Center and its surrounding parking lot and yard are Majeski’s homestead. We reverse the order so far as it finds that the property beyond the fence is not subject to homestead protections, and we remand the cause to the trial court for further proceedings.

      . An affidavit must be based on the affiant’s personal knowledge and must state that the recited facts are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994); see Tex.R. Civ. P. 166a(f). Any qualification of the affiant’s personal knowledge will invalidate the affidavit. See Humphreys, 888 S.W.2d at 470-71; Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no pet.).

      . Formerly, an urban homestead consisted of a "lot or lots amounting to not more than one acre of land" and "used for the purposes of a home, or as a place to exercise the calling or business of the homestead claimant.” Tex. Const. art. XVI, § 51 (amended 1999).

      . It seems contrary to the requirement of liberal homestead interpretation to hold that the amended provision continues to impose archaic requirements on the type of commercial use made of property. See Hughes v. Team Bank (In re Hughes), 172 B.R. 205, 210 n. 4 (Bankr.N.D.Tex.1993) (observing that restrictive view of "business” used more than a century ago has evolved into more modern conception of business); see also Postal Sav. & Loan Ass’n v. Powell, 47 S.W.2d 343, 352 (Tex.Civ.App.-El Paso 1931, writ ref'd) (stating that "calling” and "business” in homestead provisions were broadly defined and meant to "embrace every legitimate avocation in life by which an honest support for a family may be obtained”). Case law excluding rentals from homestead protection, generally dating to the early 1900s, both seems to comprehend a different business environment than the one that has evolved and concerns the earlier constitutional exemption, which provided two kinds of urban homestead. See Hughes, 172 B.R. at 210 n. 4 (quoting In re Krug, 102 B.R. 98, 99 n. 2 (Bankr.W.D.Tex.1989)) ("It is unlikely the restrictive interpretation of the term 'business’ espoused 'by the Justices of the Texas Supreme Court a century ago contemplated the dramatic shift of service-oriented paper shuffling that marks so much of modem day callings.’ ”). Now that the constitution permits only one urban homestead combining business and residence, and given the modern form "business” has taken, it is not clear that drawing a distinction between rental income and income earned by a traditionally defined “business” or "calling” continues to be useful.
      Instead, it is a reasonable argument that the provision was changed to assure that land owners would not lose homestead status if they used their residences for commercial purposes. Under this view, a person could claim property used as a home, whether or not it is also used for business, calling, or even investment purposes. See Hearings on Tex. S.J. Res. 22 and S.B. 496 Before the Senate State Affairs Comm., 76th Leg., R.S. (Mar. 11, 1999) (Some owners discovered their business homesteads only when they sought to use property as collateral; Stewart Title Guaranty Company representative stated that amendment "won't affect your ability to have a business homestead where you have your home and it won’t let the business aspect of your ten acres destroy your residential homestead. So it has two purposes.”).

      . Under Wesch’s argument, if Majeski had lived and worked in the Bishop Center and left the remainder of the property vacant, the full 5.851 acres would be considered his homestead, but his renting of part of the land divests him as a matter of law of his homestead rights to the entire portion of the property beyond the fence. Further, we note that Wesch asserted that Majeski was committing “waste” by allowing some of the structures to fall into disrepair and leaving vacant land that would be suitable for mobile homes. It seems that Wesch would punish Majeski for failing to fully rent the property and yet deprive him of his homestead rights if he did.

      . See also City of Amarillo v. Loden, 22 S.W.2d 969, 970 (Tex.Civ.App.-Amarillo 1929, no writ) ("If the property or any part of it was rented and thereby abandoned, it rested on the plaintiff to show the extent of such abandonment. There is no proof showing the size of the building which was rented, no proof of a fence or other means of segregating it from the balance of the lot, and nothing in the record to enable the trial court to fix any arbitrary line by which the property comprising the homestead could be separated from the rented properly. Hence, in the absence of such proof, the trial court could not have decreed that any part of said lot was subject to the plaintiff's lien by reason of such abandonment by renting.”). Here, there was a fence, an "arbitrary line,” but the area behind the fence was not used exclusively for rental purposes and instead .was used in part by Majeski for his personal purposes.

      . Having held that there is a question of fact as to the homestead status of the portion of the properly that lies beyond the fence, we need not address Majeski's issue asserting that Wesch did not properly raise the grounds on which the trial court relied in granting summary judgment.


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    Anne THEROUX, Appellant, v. Samuel VICK, M.D., Appellee.
    No. 04-04-00538-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 9, 2005.
    Rehearing Overruled March 30, 2005.

      E.B. Barretto, Law Offices of Sinkin & Barretto, P.L.L.C., San Antonio, for appellant.
    Edward C. Mainz, Jr., Robert R. Biech-lin, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s order rendering summary judgment in favor of appellee. We conclude the trial court properly rendered summary judgment on appellant’s fraud and false imprisonment claims. Therefore, we affirm.

BACKGROUND

In August 1999, appellant, Anne Ther-oux, was a patient under the care of Methodist Healthcare System of San Antonio, Ltd. d/b/a Methodist Specialty Transplant Hospital and appellee, Dr. Samuel. Vick. Theroux was hospitalized for a kidney transplant from herself to her husband. In October 2001, Theroux sued the hospital and Vick, alleging claims for medical negligence, false imprisonment, lack of consent, and failure to disclose. Because Theroux did not file expert reports as required by the Texas Medical Liability and Insurance Improvement Act (“the MLI-IA”), the hospital and Vick moved to dismiss her claims. The trial court granted the hospital’s motion to dismiss and severed Theroux’s claims against the hospital. The trial court dismissed all of Theroux’s claims against Vick, except her claims for fraud and false imprisonment.

Vick filed a motion for traditional summary judgment, asserting that Theroux’s fraud claim was a recast medical negligence claim and her false imprisonment claim was barred by the statute of limitations; and a no-evidence motion for summary judgment, asserting there was no evidence to support the fraud claim. The trial court granted the motion without stating its grounds, and this appeal by Theroux ensued.

FRAUD CLAIM

The MLIIA applies only to “health care liability claims,” which are defined as claims “against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” See former article 4590i, § 1.03(4). Plaintiffs may not avoid the MLIIA by recasting their causes of action as something other than health care liability claims. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543, (Tex.2004); MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40 (Tex.1998) (per curiam); Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778, 781 (Tex.App.-San Antonio 2002, no pet.). However, courts must be equally careful not to extend the MLIIA’s reach beyond its stated bounds. Zuniga, 94 S.W.3d at 781. Not every action taken by a health care provider or every injury suffered by a patient falls within the ambit of the MLI-IA. Id. The act or omission complained of must be an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995); see also Drury v. Baptist Memorial Hosp. Sys., 933 S.W.2d 668, 676 (Tex.App.-San Antonio 1996, writ denied).

A cause of action will be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994); see also MacGregor Med. Ass’n, 985 S.W.2d at 40-11. To determine whether a cause of action fits this definition, we look, not merely at the pleadings, but at the underlying nature of the claim. MacGregor Med. Ass’n, 985 S.W.2d at 40; Sorokolit, 889 S.W.2d at 242. We examine whether the claim involves the diagnosis, care, or treatment of the patient, and whether expert testimony would be required to prove the alleged negligence. See Rogers v. Crossroads Nursing Serv., Inc., 18 S.W.3d 417, 419 (Tex.App.-Corpus Christi 1999, no pet.). Therefore, in determining whether the trial court erred in granting Vick’s motion for a traditional summary judgment, we must decide whether the court correctly characterized Theroux’s fraud claim as a health care liability claim.

In her amended petition, Theroux alleged (1) Vick misrepresented his training and experience; (2) Vick knew that neither she nor her husband would have consented to the surgery if the invasive type of surgery would have been a risk; (3) Vick fraudulently induced her into consenting to the surgery by misrepresenting his experience and training and misrepresenting that only the laproscopic form of surgery would be used; and (4) after the surgery began, Vick performed an invasive surgery without her consent. Ther-oux alleged Vick was hable for fraudulently inducing her into consenting to elective surgery by (1) misrepresenting his prior experience and training; (2) failing to fully and completely disclose the risks and/or hazards of excessive scarring, adhesions, and lesions; and (3) failing to fully and completely disclose and/or misrepresenting the risks of a more invasive surgery that could occur when Vick knew she would not have consented if any such risk existed.

Vick argues that the underlying nature of Theroux’s fraud claim is an informed consent claim, governed by the MLIIA, which provides:

In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

See former article 4590i, § 6.02.

We agree with Vick. The representations Theroux alleges all have to do with whether Vick’s selection of the surgical procedure and performance of it met the standard of care for doctors in such circumstances and whether he adequately disclosed the risks of the surgical procedure to her. These allegations are nothing more than Theroux’s attempt to recast her malpractice claim as a fraud claim. Therefore, Vick conclusively established his entitlement to summary judgment on Ther-oux’s fraud claim and the trial court did not err in dismissing this claim.

FALSE IMPRISONMENT CLAIM

Vick alleged, and Theroux did not dispute, that she was hospitalized from August 3,1999 until August 10, 1999. It is during this time period that Vick allegedly prevented Theroux from leaving the hospital. Theroux filed suit on October 15, 2001, two years and two months after her claim accrued. When Theroux filed her amended petition, in which she raised only her fraud and false imprisonment claims, she deleted all reference to the MLIIA. In his motion for summary judgment, Vick asserted Theroux’s false imprisonment claim was barred by the general two-year statute of limitations. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a) (Vernon 2002). In response to Vick’s motion for summary judgment, Theroux alleged she timely sent an article 4590(i) notice letter to Vick, which notice tolled the limitations period for seventy-five days. See former article 4590i, § 4.01(a); see also De Checa v. Diagnostic Center Hospital, Inc., 852 S.W.2d 935, 937-38 (Tex.1993) (notice given in accordance with section 4.01(a) tolls the applicable statute of limitations for seventy-five days, effectively creating a two-year- and-seventy-five-day statute of limitations). As a result, according to Theroux, the deadline to file suit was extended until October 23, 2001; thus, her suit was timely filed.

In his reply to her response, Vick argued that (1) the tolling period did not apply because Theroux’s false imprisonment claim did not fall within the scope of the MLIIA and (2) even if the tolling period applied, Theroux’s false imprisonment claim should be dismissed because she failed to file an expert’s report as required by the MLIIA. Theroux does not dispute that she failed to file an expert’s report. Instead, she argues that “not all theories of recovery ... brought under [the MLIIA] require an expert [sic] report.”

A medical malpractice plaintiff must furnish each defendant physician or health care provider with one or more expert reports no later than the 180th day after the lawsuit is filed. See former article 4590i, § 13.01(d). The written report must provide a fan* summary of the expert’s opinions regarding the applicable standard of care, the breach of that standard by the physician or health care provider, and the causal relationship between the breach and the injury. See id. at § 13.01(r)(6). If the plaintiff fails to furnish a suitable expert report to a medical malpractice defendant within the 180-day time period, upon the filing of a motion challenging the existence or adequacy of such a report, the statute directs the trial court to enter an order dismissing the lawsuit. See id. at § 13.01(e)(3).

We need not decide whether Theroux’s false imprisonment claim is a health care claim. If her claim does not fall within the scope of the MLIIA, the claim is barred by the general two-year statute of limitations because she did not file suit within two years of the alleged claim. On the other hand, if her claim falls within the MLIIA’s scope and the tolling period applies, Ther-oux was required to file an expert report, which she did not do. Therefore, in either event, the trial court did not err in dismissing this claim.

CONCLUSION

The trial court properly rendered judgment in favor of Vick on Theroux’s fraud and false imprisonment claims. Accordingly, we affirm the trial court’s judgment.

      . Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, (formerly codified at Tex.Rev.Civ. Stat. Ann. art. 4590i), repealed by, Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (hereafter "former article 4590i”). Many of the provisions of former article 4590i have been recodified in the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-74.507 (Vernon Supp.2004-2005). However, a medical malpractice suit that was filed before September 1, 2003, such as the present case, "is governed by the law in effect immediately before" the changes in the law that were made by the Legislature. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899. Therefore, all citation references hereinafter are to the former statute.


author: KAREN ANGELINI, Justice.

text:
    Raul RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 04-03-00443-CR, 04-03-00444-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 9, 2005.
    Rehearing Overruled April 1, 2005.

      Mark' Stevens, Patrick Hancock, San Antonio, for appellant.
    Lynn Ellison, Dist. Atty., 81st Judicial Dist., Jourdanton, Herb Hancock, Asst. Dist. Atty., Beeville, Jennifer B. Rosen-blatt, The Rosenblatt Firm, San Antonio, Melinda Mayo, Special Prosecution Unit, Amarillo, for appellee.
    Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Raul Rodriguez appeals from the sentence rendered against him for his felony convictions of Escape and Implements for Escape. On appeal, Raul contends that the trial court erred when it admitted evidence of extraneous crimes (1) because this evidence was irrelevant to sentencing under article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure; (2) because this evidence was substantially more prejudicial than probative under rule 403 of the Texas Rules of Evidence; and (3) because its admission violated the due process clause of the Fourteenth Amendment to the United States Constitution.

Factual and PROCEDURAL Background

Raul pled guilty to one count of felony Escape and one count of felony Implements for Escape. By his own account, Raul provided a vehicle so that his oldest son, Michael Rodriguez, could escape from the Connally Unit of the Institutional Division of the Texas Department of Criminal Justice located in Kenedy, Texas.

During a prison visit on December 10, 2000, Michael, a convicted capital murderer serving a life sentence, informed Raul that he had a plan to escape from prison. According to Michael, a prison guard he had befriended was going to help him escape and had agreed to drive him to the Wal-Mart in nearby Kenedy, Texas. Michael asked his father to leave a car at the Wal-Mart so that he could drive it to Houston. Michael told his father that, once he got to Houston, he could get a job offshore on an oil rig, save his money, and move to South America. By his own account, Raul testified that he had answered Michael’s requests for help in the negative. Nevertheless, Raul testified that he also told Michael that if he did provide a vehicle, Michael could identify it by a red Christmas bow on the dashboard and that the key would be hidden in the muffler.

On December 13, 2000, Michael and six other inmates (hereinafter the “Connally Seven”) escaped from the Connally Unit in a 1994 GMC pickup truck. The Connally Seven later abandoned the pickup truck at the Wal-Mart in Kenedy for a 1989 GMC Suburban. The Suburban, marked by a red bow, had been purchased by Raul following his visit with Michael, and he had arranged its delivery to the Wal-Mart in Kenedy, as per Michael’s request. Title to the vehicle and approximately $300.00 in cash was placed under the mat in the front seat. The Connally Seven’s flight from justice continued until January 22, 2001, when authorities were able to apprehend the individuals in Teller County, Colorado.

As a result of the escape, Raul was charged with the third-degree felony offense of Implements for Escape and the second-degree felony of Escape in cause numbers 03-01-043-CRW and 03-01-045-CRW, respectively. Raul entered a plea of guilty as to both offenses and elected to have his punishment tried before a jury of his peers.

At the punishment phase of Raul’s trial, the State admitted evidence regarding crimes and misconduct that were committed by the Connally Seven following their escape from prison. Pertinent evidence concerned three armed robberies that the convicts had committed while at large, including one incident, at an Oshman’s Sporting Goods store, that ended in the murder of an Irving, Texas, police officer. Throughout the punishment hearing, the defense contended that Raul should not be punished for the misconduct of other persons, and that this misconduct should not have been admitted at trial. Consistent with this position, at the end of the case, just before summations, the defense filed its Special Requested Jury Instruction Number One, which sought to tell the jury that this evidence had been erroneously admitted and that the jury should wholly disregard it. The trial court refused to give this instruction. Instead, the trial court instructed the jury not to consider the other crimes evidence unless it found beyond a reasonable doubt that Raul “intended that such bad acts or offenses would be committed by the other persons, or that he should reasonably have anticipated that such bad acts or offenses would be committed by the other persons.”

Following deliberations, the jury returned a verdict of ten (10) years confinement in the Institutional Division of the Texas Department of Criminal Justice and a ten thousand dollar ($10,000.00) fine for the offense of Escape. Additionally, for the offense of Implements for Escape, the jury assessed punishment at five (5) years confinement in the Institutional Division of the Texas Department of Criminal Justice and a ten thousand dollar ($10,000.00) fine. Rodriguez appeals from these sentences.

Admissibility of Evidence

Raul contends that the trial court erred when it admitted evidence of extraneous crimes (1) because this evidence was irrelevant to sentencing under article 87.07, section 3(a)(1) of the Texas Code of Criminal Procedure; (2) because this evidence was substantially more prejudicial than probative under rule 403 of the Texas Rules of Evidence; and (3) because its admission violated the due process clause of the Fourteenth Amendment to the United States Constitution. On appeal, we choose to address these issues of admissibility under a single analysis. We review questions regarding whether the trial court erred in admitting evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990). Therefore, so long as the trial court’s ruling was at least within the “zone of reasonable disagreement,” we will not intercede. Id. at 391.

During the punishment phase, the State may offer evidence “as to any matter the court deems relevant to sentencing.” See TexCrim. PROC.Code Ann. art. 37.07, § 3(a) (Vernon Supp.2004-05). Regarding this instruction, however, the Code of Criminal Procedure does not specifically define the term “relevant.” In our analysis, we are guided by article 37.07, section 3(a) of the Texas Code of Criminal Procedure, which provides that evidence “relevant to sentence” includes, but is not limited to: (1) the prior criminal record of the defendant; (2) the defendant’s general reputation; (3) the defendant’s character; (4) an opinion regarding the defendant’s character; (5) the circumstances of the offense being tried; and (6) notwithstanding Texas Rules of Evidence 404 and 405, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which the defendant could be held criminally responsible, regardless of whether the defendant has previously been charged with or finally convicted of the crime or act. See TexCrim. Prog.Code Ann. art. 37.07, § 3(a) (Vernon Supp.2004-05).

Given the broad standard of article 37.07, § 3(a), the admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App.1990). Accordingly, the Court of Criminal Appeals has observed that in determining what is “relevant to sentencing,” the important question is “what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.” See Rogers, 991 S.W.2d at 265. As previously stated, the trial court’s decision in answering this question is discretionary, and this discretion is broad. Ford v. State 919 S.W.2d 107, 115 (Tex.Crim.App.1996); see also Frank v. State 992 S.W.2d 756, 757 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).

Here, the trial court determined that evidence concerning the misconduct of the Connally Seven was relevant to the proper assessment of Raul’s punishment. Given this predicate for review, we cannot as a matter of law disagree. By his own account, Raul provided a vehicle and money so that his oldest son, Michael Rodriguez, could escape from prison. Based in no small part on Raul’s provisions, Michael, along with six fellow inmates, managed to elude apprehension by law enforcement authorities for a period of over one month following their escape. During this period, the Connally Seven committed several violent offenses against the people of the State of Texas, even murdering one Irving police officer. Yet, throughout these events, Raul consciously withheld information from the authorities, including information regarding the identity of the vehicle he had given the escapees, that could have served to aid in their re-capture. Instead, Raul continually, and by his own admission, lied and misrepresented to the authorities regarding his knowledge of the escape.

On appeal, Raul contends that evidence of offenses attributed to the Connally Seven was inadmissible because it concerned extraneous acts for which he could not be held criminally responsible. We do not contest this argument. Based upon these particular facts, however, the trial court could reasonably find that the evidence bore heavily upon Raul’s character and moral blameworthiness, and thus was helpful to the jury in determining an appropriate sentence for his crimes. Accordingly, we cannot say that this evidence was irrelevant to sentencing.

Nevertheless, admissibility of punishment phase evidence that the trial court deems relevant is still subject to a rule 403 analysis. See Rogers v. State, 991 S.W.2d 263, 266-67 (Tex.Crim.App.1999). Under Texas Rule of Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. See TEX. R. EVID. 403; see also Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App.2000) (holding that relevant rule 403 criteria includes: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence). Here, we have already concluded that the evidence of extraneous acts was probative in determining an appropriate sentence for Raul. However, we also recognize the potential that this type of evidence has to confuse or impress the jury in some irrational, yet indelible, way. Nevertheless, in our review, we cannot say the trial court’s decision to admit the evidence lay outside the “zone of reasonable disagreement.” See Robbins v. State, 88 S.W.3d 256, 260 (Tex.Crim.App.2002). Likewise, the admission of this evidence did not deny Raul a fair trial. Having overruled all issues, therefore, we conclude the trial court did not err in admitting evidence regarding the post-escape crimes and misconduct attributed to the Connally Seven.

Conclusion

We affirm the judgments of the trial court.

      . The Court of Criminal Appeals has observed that the definition of "relevant” within the Texas Rules of Evidence is not a perfect fit in the punishment context. See Rogers v. State 991 S.W.2d 263, 265 (Tex.Crim.App.1999) (en banc). Under the Texas Rules of Evidence, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See TEX. R. EVID. 401. At the punishment phase of the trial, however, relevance presents different issues to sentencing than to a verdict of guilt or innocence. See Rogers, 991 S.W.2d at 265. ("[t]his is so because by and large there are no discreet factual issues at the punishment stage.... Rather, '[djeciding what punishment to assess is a normative process, not intrinsically factbound’ ").

      . At the punishment hearing, John Moriarty, Inspector General for the Department of Criminal Justice, testified that an identification of the vehicle would have been more readily available had the convicts been forced to obtain a vehicle by force. Both the National Crime Information Center and the Texas Crime Information Center process information on stolen vehicles and cross-reference warrants with vehicles. Thus, law enforcement personnel would have been aided significantly in their ability to track and capture the convicts.


text:
    HO WAH GENTING KINTRON SDN BHD, d/b/a and f/k/a Kintron SDN BHD, Appellant, v. LEVITON MANUFACTURING CO., INC., Appellee.
    No. 04-03-00878-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 23, 2005.
    Rehearing Overruled April 4, 2005.

      Kevin F. Risley, Thompson, Coe, Cousins & Irons, L.L.P., Robert D. Arredondo, Manning, Gosda & Arredondo, L.L.P., Houston, for appellant.
    Ruth B. Downes, Byron C. Keeling, Holman & Keeling, P.C., Houston, for appel-lee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s denial of appellant’s special appearance. The underlying lawsuit was brought by several plaintiffs for injuries suffered in a mobile home fire allegedly caused by a defective extension cord. Plaintiffs alleged appellant and/or appellee negligently manufactured and marketed the cord. After appellee filed a cross-claim for indemnification against appellant, appellant filed a special appearance. The trial court denied the special appearance and severed appel-lee’s cross-claim from the main action. On appeal, appellant asserts the trial court erred in (1) asserting personal jurisdiction over it based upon the acts of other corporations; (2) admitting into evidence documents of these other corporations; and (3) overruling its special appearance. Appellant also contends the evidence is legally and factually insufficient to support the trial court’s findings of fact. We affirm the trial court’s order.

STANDARD OF REVIEW

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

THE CORPORATE ENTITIES

According to appellee, Levitón Manufacturing Co., Inc., a company named Kintron Sdn Bhd manufactured the extension cord, which the plaintiffs purchased at a Wal-Mart store in 2000. Levitón alleges that, in 2001, Ho Wah Genting Berhad acquired a controlling interest in Kintron Sdn Bhd, at which time the company changed its name to Ho Wah Genting Kintron Sdn Bhd (hereinafter, “HWG Kintron”). After the acquisition, Kintron Sdn Bhd ceased to exist as a separate entity. Levitón argues that HWG Kintron, under the name of Kintron Sdn Bhd, formed contacts with the State of Texas by maintaining an office in Texas, by employing representatives in Texas, and by soliciting business in Texas. Levitón also argues that HWG Kintron, both before and after its name change, formed contacts with Texas by purposefully taking steps to place a significant, flow of its cubetap extension cords into the stream of commerce with the reasonable expectation that they would enter Texas.

On appeal, HWG Kintron contends its correct name is Ho Wah Genting Kintron Sdn Bhd and it does not agree it was doing business as or was formerly known by a different name.

PLEADINGS

In its first issue, HWG Kintron asserts the trial court erred in asserting personal jurisdiction over it based upon the acts of other corporations because Levitón did not plead any facts or legal theories that would support a theory of successor liability, alter ego, single business enterprise, or any other basis for ignoring its separate corporate existence. Levitón counters that this case involves the liability of a successor to the “same entity,” not an attempt to pierce the corporate veil.

In its second amended cross-claim, Levitón alleged “Ho Wah Genting Kintron Sdn Bhd d/b/a and f/k/a Kintron Sdn Bhd (‘Kintron’)” is “a nonresident, has done business in Texas and has continuing contacts with Texas. More specifically, Kintron has formed specifically affiliating contacts with the State of Texas.” We conclude that Levitoris allegations put HWG Kintron on notice that Levitón sought to assert its claims against HWG Kintron in its corporate form as it currently exists, as it was “doing business,” and as it was “formerly known.” These allegations were sufficiently clear with regard to personal jurisdiction allegations. See Whalen v. Laredo Nat’l Bancshares, Inc., 37 S.W.3d 89, 92-93 (Tex.App.-San Antonio 2000, pet. denied) (applying general rules of notice pleading to determine petition provided defendant with sufficient information to prepare a challenge to the assertions of jurisdiction). Further, to the extent Leviton’s pleadings were not sufficient to allege personal jurisdiction in Texas, HWG Kintron waived its complaint because it did not raise the issue in a motion to quash. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985).

EVIDENCE ADMITTED BY TRIAL COURT

In its second issue, Kintron asserts the trial court erred in admitting into evidence certain of Leviton’s exhibits, which Kin-tron contends were hearsay and irrelevant because the exhibits relate to other companies and consist of statements by other companies.

HWG Kintron first asserts the exhibits were inadmissible because they are irrelevant. As discussed above, HWG Kintron contends there are no pleading allegations that jurisdiction could be based on the conduct of other parties or because it is the successor-in-interest to Kintron Sdn Bhd. Therefore, HWG Kintron believes the exhibits were not relevant to any of the jurisdictional issues actually raised by the pleadings.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Generally, relevant evidence is admissible unless otherwise made inadmissible by the Constitution, statute, the Texas Rules of Evidence, or other rules prescribed pursuant to statutory authority. See Tex.R. Evid. 402. Because we have determined Levitón met its initial burden of pleading sufficient allegations to bring HWG Kintron within the provisions of the Texas long-arm statute, HWG Kintron’s relevancy argument is without merit.

HWG Kintron next argues the exhibits are the documents of Kintron Sdn, Kintron Berhad, and Ho Wah Getting Ber-had and are inadmissible hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). “Out-of-court statements are not hearsay if offered for a purpose other than to prove the truth of the matter asserted.” McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992). “An out of court statement, offered to show what was said, rather than the truth of what was said, is not hearsay.” Soliz v. State, 794 S.W.2d 110, 112 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (emphasis in original).

The exhibits about which HWG Kintron complains are emails and letters that reference a date code process, products’ tooling, price quotations, price negotiations, and purchase orders; invoices; letters and emails that reference product pricing, product testing, drawings, shipment of parts, and certificates of compliance and inspection data; an email regarding travel information; corporate records search results on companies other than the parties to this appeal; emails regarding an Austin, Texas company; emails and letters regarding past due payments, letters of credit, and product shipments; a letter that appears to contain information from the Kuala Lumpar Stock Exchange regarding Ho Wah Genting Berhad; and a company profile of Kintron Sdn Bhd. None of these exhibits were offered to prove the truth of any matter asserted within the documents. Therefore, HWG Kintron’s inadmissible hearsay objection is without merit.

SUCCESSOR LIABILITY

In its third issue, HWG Kintron challenges the legal and factual sufficiency of the evidence in support of certain of the trial court’s findings of fact. HWG Kin-tron first asserts the evidence is legally and factually insufficient to support the trial court’s findings that “Ho Wah Gent-ing Kintron Sdn Bhd is the successor in interest to Kintron Sdn Bhd, which no longer exists as a separate company.” Levitón argues that Kintron Sdn Bhd and HWG Kintron are not separate entities; instead, HWG Kintron is Kintron Sdn Bhd’s successor-in-interest “under either a stock merger transaction or a name change.”

Stock Merger Transaction

Levitón first asserts the evidence supports a finding that HWG Kintron is the successor-in-interest to Kintron Sdn Bhd under a stock merger transaction. Following a merger, “all liabilities and obligations of each domestic or foreign corporation and other entity that is a party to the merger shall be allocated to one or more of the surviving or new domestic or foreign corporations and other entities as set forth in the plan of merger....” Tex. Bus. Corp. Act Ann. art. 5.06A(3) (Vernon 2003) (emphasis added); see Shapolsky v. Brewton, 56 S.W.3d 120, 137 (Tex.App.-Houston [14th Dist.] 2001, pet. denied)(applying Texas Business Corporations Act to Florida corporation’s acquisition in bankruptcy of assets of New York corporation); Lockheed Martin Corp. v. Gordon, 16 S.W.3d 127, 139 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (“The [Texas Business Corporations Act] protects both Texas corporations and foreign corporations like Lockheed, which is incorporated in Maryland.”). Here, there appears to be no dispute that: (1) Ho Wah Genting Berhad and Kintron Sdn Bhd existed as separate entities prior to 2001; (2) Ho Wah Genting Berhad acquired Kintron Sdn Bhd in 2001; and (3) following the acquisition, Kintron Sdn Bhd changed its name to Ho Wah Genting Kintron Sdn Bhd. However, the record contains no documents or testimony indicating the manner in which Ho Wah Genting Berhad acquired Kintron Sdn Bhd. Therefore, nothing in the record supports an implied finding that HWG Kintron is the successor-in-interest to Kin-tron Sdn Bhd under a stock merger transaction.

Name Change

Levitón argues, in the alternative, that HWG Kintron is the successor-in-interest to Kintron Sdn Bhd under “a name change” and HWG Kintron is the “same entity” as Kintron Sdn Bhd. A corporate name change does not affect a company’s identity, property rights, or liabilities. See Zuniga v. Wooster Ladder Co., 119 S.W.3d 856, 862 (Tex.App.-San Antonio 2003, no pet.); Northern Nat. Gas Co. v. Vanderburg, 785 S.W.2d 415, 421 (Tex.App.-Amarillo 1990, no writ). The entities are the same for liability purposes. See, e.g., Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 818 (Tex.App.-Amarillo 1995, writ denied).

In support of its name change theory, Levitón relies on the following evidence. HWG Kintron’s Director of Marketing, Johnny Jan, held the same position at Kintron Sdn Bhd. In his deposition, Jan testified as follows:

Q. Before 2001, there was a company-known as Kintron, correct?
A. Because the name of the company changed many times, but I don’t have the information.
Q. In any event, people who buy products from your company have known your company as Kintron for some period of time, correct?
A. The abbreviation would be called Kintron, yes.
Q. Before 2001, the abbreviated name of your company was Kintron?
A. In my recollection it’s — it was Kin-tron Sdn Bhd.
Q. Okay. Well, just to make clear, when you said that you’ve been with Kintron since 1989, what you meant to say is that you have been with Ho Wah Genting Kintron and Kintron Sdn Bhd and Kintron Berhad and other Kintron entities since 1989, correct?
A. Correct. Yeah, because this name is a new name and this new name was established in 2001.
Q. Here’s all I’m trying to figure out. Did you have different entities sell to different regions or are we just talking about name changes in the corporation?
A. I think that it should only be name change.
[Counsel] I’m not sure he knows about what name change means and all that kind of stuff.
Q. Let me approach it this way, Mr. Jan. The Kintron entities that have sold extension cords in the last three years, are they one corporation that has changed its name three times or are they three separate entities?
A. Because the company had changed name at one time, so legally I don’t know whether it, is the same company or different company.
Q. Okay. But it’s basically the same group of people making the same product under different names, whatever the legal effect of that is?
A. The management had done some part changes.
Q. Okay. I feel the slope slipping. Let me — can we just agree that when we talk about Kintron that we are discussing whatever Kintron entity has been selling electrical cords in the last four years?
A. Yeah, regardless which Kintron.
Q. Okay. And the factories that formerly belonged to Kintron Sdn Bhd now belong to Ho Wah Genting Kin-tron, right?
A. It should belong to the present company.
Q. And with the exception of the natural give and flow of people who come and- go, the people who formerly worked for Kintron Sdn Bhd now work for Ho Wah Genting Kintron, right?
A. That’s the way it should be.
Q. And to the best of your knowledge, that’s the way it is?
A. It should be the way it is.
Q. Well, you’ve already told me, sir, that Kintron is the abbreviation that your customers use when referring to your company, correct?
A. Uh-huh, correct.
Q. And that’s the name that’s imprinted on Kintron’s products; Kintron, correct?
A. No.
Q. The word “Kintron” isn’t imprinted on Kintron’s products?
A. Some has it, some don’t have them.
Q. Some of Kintron’s products have the word Kintron stamped on them, correct?
A. Some do.
Q. [Referring to the website www.kin-tron.com] Okay. And that really wasn’t the point of my question, Mr. Jan. My question is — my question is this: Whether it is operated or maintained by Ho Wah Genting Kintron or not, there’s no other Web site out there for Ho Wah Genting Kintron or any other Kintron entity in a language other than English, correct?
A. Correct. Just this one in English.

In his affidavit, Jan explained that the website was established by Kintron Sdn Bhd prior to 2001 and it still exists, however, it has not been updated in several years and it is not possible to order or purchase products from the site. The site contains a link to Jan’s email address.

HWG Kintron presented no evidence to controvert Leviton’s contention that HWG Kintron was the “same entity” as Kintron Sdn Bhd because the company had merely undergone a name change.

The evidence is legally and factually sufficient to support an implied finding that HWG Kintron is the successor-in-interest to Kintron Sdn Bhd under a name change. Therefore, HWG Kintron did not satisfy its burden of negating this basis for personal jurisdiction. See BMC Software, 83 S.W.3d at 798. Under a “successor liability” theory, a nonresident defendant corporation not otherwise subject to the personal jurisdiction of a Texas court becomes so by virtue of succeeding to a corporation that is subject to personal jurisdiction in Texas. Shapolsky, 56 S.W.3d at 136. Because the evidence is sufficient to support the trial court’s finding that HWG Kintron is the successor-in-interest to Kintron Sdn Bhd, Kintron Sdn Bhd’s contacts may be imputed to HWG Kintron for the purpose of determining whether the evidence establishes that HWG Kin-tron had sufficient contacts with Texas to establish personal jurisdiction.

PERSONAL JURISDICTION

In its fourth issue, HWG Kintron asserts the trial court erred in denying its special appearance because the evidence properly before the court established that it did not have sufficient contacts with Texas to establish either specific or general jurisdiction.

A Texas court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the United States Constitution and the Texas long-arm statute are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (orig. proceeding). The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); BMC Software, 83 S.W.3d at 795. The Texas long-arm statute reaches as far as the federal and state constitutional guarantees of due process allow. CSR, 925 S.W.2d at 594. Therefore, “the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations.” Id.

The due process clause permits a state to exert personal jurisdiction over a nonresident defendant only if the defendant has some minimum, purposeful contacts with the state and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex.1998). A nonresident has sufficient contacts with the forum if it has purposely availed itself of the privileges and benefits of conducting business in Texas. CSR, 925 S.W.2d at 594. However, a nonresident should not be subjected to the jurisdiction of a Texas court based upon random, fortuitous, or attenuated contacts. CSR, 925 S.W.2d at 595. A nonresident defendant must have purposely established such minimum contacts with the forum that it could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985).

The minimum-contacts analysis is further divided into general and specific personal jurisdiction. General jurisdiction is present when a defendant’s contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. CSR, 925 S.W.2d at 595. General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. Id.

The minimum-contacts analysis for specific personal jurisdiction focuses on the relationship between the defendant, the forum, and the litigation. Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex.1991). Specific personal jurisdiction is established if the defendant’s alleged liability arises from, or is related to, an activity conducted within the forum. Id. The defendant’s contacts must have been “purposely directed” at the forum and must have had a “substantial connection” that resulted in the alleged injuries. Id. at 228.

Speciñc Jurisdiction

Levitón asserts the trial court has specific jurisdiction over HWG Kintron because HWG Kintron formed “specifically affiliating” contacts with Texas under the stream of commerce doctrine. Under the stream of commerce doctrine, a defendant has purposefully availed itself of the privilege of conducting activities in the forum state if the nonresident defendant sells its product to an independent distributor and there is a reasonable expectation that the product will enter the forum state. See Kawasaki Steel, 699 S.W.2d at 201. However, a nonresident defendant’s mere awareness that its products might end up in the forum state is not enough to show that it purposely availed itself of the market of that forum state. See CMMC v. Salinas, 929 S.W.2d 435, 438 (Tex.1996) (citing Asahi Metal Indus. Co. v. Superior Court of Calif, 480 U.S. 102, 110-11, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). There must be a substantial connection between the defendant and the forum state necessary for a finding of minimum contacts. Id. In Asahi, Justice O’Connor, writing for a four-member plurality, stated as follows:

The “substantial connection”- between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.

Asahi 480 U.S. at 110-112, 107 S.Ct. at 1081-1032 (citations omitted).

Thus, a manufacturer cannot fairly be expected to litigate in every part of the world where its products may end up; rather, its contacts with the forum must be more purposeful. See CMMC, 929 S.W.2d at 440.

Here, the evidence supports a finding that HWG Kintron purposefully directed its activities at Texas and had a “reasonable expectation” that its product would enter Texas. Levitón presented evidence that HWG Kintron was aware that its shipment orders called for delivery of its goods to Texas stores. HWG Kintron shipped its cords directly to Texas retailers such as Michaels Stores, Inc. and Garden Ridge, L.P. HWG Kintron admits two Texas companies, Austin Innovations and Hikari Corporation, were customers of Kintron Sdn Bhd. Contrary to HWG Kin-tron’s assertion that it is not aware of the distribution or retail facilities of its United States customers and does not discuss those matters with its customers, the evidence showed that HWG Kintron invoiced Michaels Stores, Inc. and Austin Innovations directly, and had letters of credit with Texas companies, such as HE Butt Grocery and Michaels Stores, Inc. Finally, HWG Kintron complies with the Underwriters Laboratory electrical standards for cords sold in the United States.

In 2000, when plaintiffs purchased the extension cord, HWG Kintron maintained its “US Liaison Office” in Dallas, Texas, and, out of this office, solicited business from and negotiated commercial transactions with American companies. HWG Kintron contends that George Pan, the “representative” who worked in Dallas, acted only as a broker and translator. However, in correspondence directed to Jan, Mr. Pan requested prices from Jan and informed Jan of negotiations he was conducting with another company on “Kin-tron’s” behalf. Other correspondence from the “US Liaison Office” discussed purchase order shipment dates.

We hold that HWG Kintorn had minimum contacts with Texas sufficient to authorize an exercise of jurisdiction over it.

Fair Play and Substantial Justice

Even when minimum contacts are established, a Texas court may not exercise jurisdiction over a nonresident defendant unless the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. CMMC, 929 S.W.2d at 437. The Texas Supreme Court has stated that “[i]n this inquiry, it is incumbent upon the defendant to present ‘a compelling case that the presence of some consideration would render jurisdiction unreasonable.’ ” Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 231 (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). The following factors, when appropriate, should be considered: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. “Only in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” Id. Also, “distance alone is not ordinarily sufficient to defeat jurisdiction: ‘modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.’ ” Id. However, “[w]hen the defendant is a resident of another nation, the court must also consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by a state court.” Id. at 228. The unique burdens placed upon a foreign defendant who must defend itself in a foreign legal system carries significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. Id. at 229.

We hold that the Texas court’s exercise of personal jurisdiction over HWG Kintron does not offend traditional notions of fair play and substantial justice. Merely because this is an “international dispute” does not mean that maintaining jurisdiction in Texas is unfair. See LeBlanc v. Kyle, 28 S.W.3d 99, 106 (Tex.App.-Texarkana 2000). “While international litigation does present a substantial burden on the defendant, the burden is not unreasonable considering the fact that a significant number of [HWG Kintron’s] products are regularly shipped to and sold in this state.” S.P.A. Giacomini v. Lamping, 42 S.W.3d 265, 276-77 (Tex.App.-Corpus Christi 2001, no pet.); see also Asahi, 480 U.S. at 117, 107 S.Ct. 1026 (Brennan, J., concurring in part) (“A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity.”); LeBlanc, 28 S.W.3d at 105-06 (“Considering that LeBlanc sent over 450 of its water heaters into Texas pursuant to its contract with Controlled Energy, LeBlanc could reasonably anticipate being brought into court here.”).

It also appears that Texas has a strong interest in adjudicating this dispute. Levi-ton’s claim for indemnification against HWG Kintron was triggered when the plaintiffs sued Levitón for injuries they sustained due to an alleged defect in an extension cord manufactured by HWG Kintron. HWG Kintron ships thousands of these cords to Texas, the cords are sold in Texas stores, and are alleged to have caused serious injury in Texas. The underlying lawsuit by plaintiffs is on-going in a Texas court. Thus, the circumstances of this case lead us to conclude that Texas has an interest in deciding whether HWG Kintron must indemnify Levitón.

Accordingly, we conclude that the exercise of jurisdiction by the Texas court over HWG Kintorn does not offend traditional notions of fair play and substantial justice.

CONCLUSION

We affirm the trial court’s order denying HWG Kintron’s special appearance.

      . On February 12, 2004, plaintiffs intervened in the suit between appellant and appellee. On September 24, 2004, the trial court signed an Order Confirming Nonsuit, dismissing plaintiffs' claims against appellant.

      . In its findings and conclusions, the trial court stated that Jan was "not a credible witness. As a result, this Court has discounted the self-serving, and facially inconsistent, testimony in Jan’s deposition and affidavits.” Prior to and during the special appearance hearing, Levitón objected to Jan’s affidavits. The objections were overruled and the affidavits were admitted into evidence. Levitón offered Jan’s entire deposition into evidence. Because the trial court did not strike Jan's affidavits or deposition, and it did not identify the specific testimony it "discounted” as "self-serving and facially inconsistent,” we are not limited in our review of the record.

      . Compare CMMC v. Salinas, 929 S.W.2d 435 (Tex.1996) (determining that a French corporation was not subject to the jurisdiction of Texas courts, even though the company knew the product was being shipped to Texas, because there had been no efforts to market the product in the forum and its reaching Texas was due to an isolated sale of the product); CSR Ltd. v. Link, 925 S.W.2d 591 (Tex.1996) (holding that an Australian company was not subject to the jurisdiction of Texas courts because it had no connections with Texas and there was no direct evidence that it knew its product would be distributed in Texas); with Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91 (Tex.1988) (concluding that an Israeli entity was subject to Texas jurisdiction because it delivered its product into the stream of commerce with a reasonable expectation that its product would enter Texas); Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex.1985) (holding that a Japanese corporation, which confirmed orders for millions of dollars of steel shipped to Texas annually, could reasonably expect its product would end up in Texas, subjecting it to the jurisdiction of Texas courts).

      . HWG Kintron asserts this evidence is not determinative because title to its products passed to its customers in Malaysia, and there is no evidence it participated in or controlled the decision to ship its electrical cords to Texas. However, the controlling issue under the stream of commerce doctrine is the "reasonable expectation" that the product will be sold in Texas, not the "right of control.” Kawasaki Steel, 699 S.W.2d at 201.


author: ALMA L. LÓPEZ, Chief Justice.

text:
    Heliodoro TORREZ, Appellant, v. Devin M. SANDERS and Samuel Sanders, Appellees.
    No. 04-04-00390-CV.
    Court of Appeals of Texas, San Antonio.
    March 2, 2005.

      Kevin B. Miller, Mark A. Cevallos, Law Office of Miller & Associates, San Antonio, for appellant.
    Ian M. McLin, Shaddox, Compere, Wal-raven & Goode, P.C., San Antonio, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by:

ALMA L. LÓPEZ, Chief Justice.

The trial court granted a directed verdict in favor of Devin M. Sanders and Samuel Sanders in a negligence action arising from an automobile accident. After evidence of workers’ compensation benefits paid to Helidoro L. Torrez was excluded by the trial court, Torrez’s attorney represented to the court that the benefits were the only evidence he intended to introduce with regard to damages. Based on that representation, the trial court granted a directed verdict. Torrez appeals contending the trial court erred in excluding the evidence; therefore, the directed verdict was improper. We affirm the trial court’s judgment.

Whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.2001) The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). The trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Id. at 839.

The Texas Supreme Court addressed the admissibility of evidence relating to compensation benefits paid by an employer to an employee who was injured by a third party in Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811 (1945). In holding that the trial court erred in admitting evidence of the benefits paid to the employee, the supreme court reasoned, “the only effect of such evidence ‘was to becloud the issues in the case and divert the minds of the jury.’ ” Id. at 813 (quoting Johnson v. Willoughby, 183 S.W.2d 201 (Tex.Civ.App.-Fort Worth 1944, writ ref'd)). The court emphasized that the prejudicial effect of the evidence was heightened by the fact that “the general relevancy of evidence of that character upon the general issues involved is not only very slight but wholly indirect. Certainly, it has no direct relevancy to the issues upon which the jury decides whether the third party defendants are negligent, or upon the amount of damages, if any, to be assessed against them.” Id.

Torrez contends that after the 1989 amendments to the Texas Workers’ Compensation Act, evidence of benefits should be admitted because the enforcement and adjudicatory powers of the Texas Workers’ Compensation Commission (“TWCC”) were “beefed up” and the guidelines for the payment of medical benefits are presumed reasonable when the workers’ compensation carrier asserts its lien in a third party case. Torrez cites Texas Workers’ Comp. Ins. Fund v. Serrano, 962 S.W.2d 536 (Tex.1998), to support the assertion that the guidelines are presumed reasonable. Serrano, however, did not consider the issues presented in this case. In Serrano, the question presented was whether the carrier must prove that the amount of benefits paid was reasonable and necessary before it was entitled to reimbursement as an intervenor in a third party action. 962 S.W.2d at 537. As the court expressly noted, the statute -permitting the carrier to be reimbursed out of any third-party recovery “does not limit reimbursement to only those benefits that were reasonable and necessary.” Id. at 538. In order for a plaintiff to recover from a defendant, however, proof that medical benefits were reasonable and necessary is required in order to recover damages for those benefits. State Dept. of Transp. v. Esquivel, 92 S.W.3d 17, 21 (Tex.App.-El Paso 2002, no pet.) Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531, 532 (Tex.App.-Fort Worth 2000, no pet.).

With regard to the relevancy of the benefits to the issues in the case, although temporary income benefits compensate for lost wages while an injured employee is convalescing, they are based on a percentage of the difference between the claimant’s average weekly wage and the post-injury weekly earnings and are subject to a statutory maximum and minimum. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 513 (Tex.1995). Furthermore, the Texas Supreme Court has stated, “It is beyond question that impairment does not directly translate into disability to work.” Id. at 522. Even if we were to conclude that evidence of the impairment benefits had some probative value with regard to damages for lost wages and loss of earning capacity, we would not conclude that the trial court abused its discretion in excluding the evidence. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998) (noting appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling). The trial court could have determined that explaining the differences between the damage concepts of lost wages and lost earning capacity and the manner in which workers’ compensation benefits are calculated would “becloud the issues in the case and divert the minds of the jury.” Myers, 186 S.W.2d at 818.

Finally, we agree with the El Paso court that a showing of the amount of medical expenses paid does not alone establish that the expenses were reasonable and necessary. State Dept. of Transp. v. Esquivel, 92 S.W.3d at 20-21. “Proof of amounts charged or paid is not proof of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing the charges were reasonable and necessary.” Rodriguez-Narrera v. Ridinger, 19 S.W.3d at 532.

The reason Torrez’s attorney chose to exclusively rely on evidence of Torrez’s workers’ compensation benefits to establish damages is unclear from our record; however, the trial court’s decision to exclude the benefits was not arbitrary or unreasonable. Because the trial court did not err in excluding the evidence of the workers’ compensation benefits paid to Torrez, which her attorney represented was the only evidence to be offered with regard to damages, the trial court did not err in granting the directed verdict.

The trial court’s judgment is affirmed.

      . The Sanders contend that the trial court’s ruling was a ruling on a motion in limine; therefore, Torrez's complaint is not preserved for our review. Although the ruling was made in response to a motion in limine, the trial court appeared to treat its ruling as evidentiary. In response to the ruling, Tor-rez's attorney stated, "I have made an offer, an evidentiary offer, outside the presence of the jury pursuant to the 100 series of the Texas Rules of Evidence, and that is that I intend to offer medical and wage evidence from the workers’ compensation lien.... You have made, your Honor, a ruling on the admissibility of that pursuant to the Rules of Evidence, saying that will be stricken. That being the case, I have no additional evidence on wages and on medical benefits or any other element of damage, arid I see no reason to waste the Court's time in picking a jury and trying the case and have by the defendant, based on those damage issues, make a motion for directed verdict.” Before making an offer of proof, Torrez’s attorney reiterated, "In yesterday’s ruling on the motion in limine as well as the 103 offer of proof, your ruling was that all evidence relative to the worker’s compensation lien was inadmissible based on the objection that it’s irrelevant in this case, which you sustained and excluded the evidence. And so we're placing our offer of proof on the record for the Court of Appeals.” In response, the trial court stated, "I’m ready.” Accordingly, we conclude that the issue of the exclusion of the benefits has been preserved for our review.

      . The issues decided in Marvin Frank Motor Co. v. Harris County, No. 01-02-01105-CV, 2004 WL 549487 (Tex.App.-Houston [1st Dist.] Mar. 18, 2004, pet. denied), cited by Torrez, are distinguishable from the issues presented in the instant case. In Marvin Frank Motor Co., the designated doctor testified regarding the reasonableness and necessity of the medical fees. 2004 WL 549487, at *5. Furthermore, the Houston court only addressed the admissibility of impairment benefits in response to an objection based on the collateral source rule. Id. at *4.