author: JAMES T. WORTHEN, Chief Justice.

text:
    GILMER INDEPENDENT SCHOOL DISTRICT, Appellant, v. Louis DORFMAN, Appellee.
    No. 12-03-00111-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 29, 2003.

      Donald E. Lindsay, for appellant.
    Tom Thomas, for appellee.
    Amy Warr, Attorney General’s Office, for other.
    Panel consisted of JAMES T. WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Gilmer Independent School District (“GISD”) brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction in a suit brought by Louis Dorfman (“Dorfman”) contesting the constitutionality of Chapters 41 and 42 of the Texas Education Code. We reverse and remand.

BACKGROUND

In 2002 Dorfman paid $8.76 in taxes to GISD on three mineral properties he owned. He then filed a suit against GISD seeking a declaratory judgment that Chapters 41 and 42 of the Texas Education Code “separately and together, individually and otherwise, in their operation and effect” violate the Texas Constitution and are therefore unconstitutional.

GISD responded to the suit with a plea to the jurisdiction. GISD asked the court in its plea to the jurisdiction to dismiss Dorfman’s suit for failure to name the Texas Commissioner of Education (“the commissioner”) as a necessary and indispensable party to the determination of the constitutionality of Chapters 41 and 42 of the Texas Education Code. Dorfman responded to GISD’s plea to the jurisdiction by stating the commissioner was not a necessary party because he was only seeking a declaratory judgment and injunctive relief “against the assessment and collection of an unconstitutional tax.” Following a hearing, the trial court denied GISD’s plea to the jurisdiction. GISD timely filed this interlocutory appeal of the order denying its plea to the jurisdiction. See Tex. Civ. PRAc. & Rbm.Code Ann. § 51.014(a)(8) (Vernon Supp.2003).

Issue

In its first issue, GISD asks us to determine whether the commissioner is a necessary and indispensable party to determine the constitutionality of Chapters 41 and 42 of the Texas Education Code.

Standard of Review

A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action. Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex.App.-Waco 2000, no pet.). Subject matter jurisdiction is a legal question, and the plea to the jurisdiction is reviewed under a de novo standard of review. Id. Dismissing a cause of action for lack of subject matter jurisdiction is only proper when it is impossible for the plaintiffs petition to confer jurisdiction on the trial court. Harris County v. Cypress Forest Pub. Util Dist., 50 S.W.3d 551, 553 (TexApp.-Houston [14th Dist.] 2001, no pet.). For purposes of a plea to the jurisdiction, we take the undisputed factual allegations in the parties’ pleadings to be true. See Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 746 (Tex.App.-San Antonio 1998, pet. denied).

Analysis

Section 37.006(a) of the Declaratory Judgment Act states that “when declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” Tex. Civ. Prac. & Rem.Code Ann. § 37.006(a) (Vernon 1997): Dorfman’s suit sought to have the entirety of Chapters 41 and 42 of the Texas Education Code declared unconstitutional. He did not limit his constitutional attack to any specific provisions of Chapters 41 or 42 that may have implicated only GISD.

Pursuant to the Texas Education Code, the commissioner of education performs duties in connection with the equalized wealth level under Chapter 41 and the Foundation School Program under Chapter 42. Tex. Educ.Code Ann. § 7.055(b)(34), (35) (Vernon Supp.2003). In reviewing Chapters 41 and 42, we see dozens of enforcement mandates assigned to the commissioner by the legislature. See Tex. Educ.Code Ann. §§ 41, 42 (Vernon 1996 & Supp.2003). GISD bases its contention that the commissioner is a necessary and indispensable party in this suit on Texas Rule of Civil Procedure 39 which states in part: “A person who is subject to service of process shall be joined as a party to the action if in his absence com-píete relief cannot be accorded to those already parties-” Tex.R. Civ. P. 39(a). While such a situation is rare, there are parties whose presence is so indispensable to the resolution of a cause of action that their absence can deprive a court of jurisdiction. Nuchia v. Woodruff, 956 S.W.2d 612, 616-17 (Tex.App.-Houston [14th Dist.] 1997, pet. denied) (op. on reh’g).

A requirement that a party with authority to enforce a particular statute be named in a suit to declare the statute unconstitutional is essential to effectuate the well-settled principle that the courts are without jurisdiction to render advisory opinions. Lone Starr Multi Theatres, Inc. v. State, 922 S.W.2d 295, 297 (Tex.App.Austin 1996, no pet.). A state official primarily responsible for enforcement of a statute must be joined in any suit affecting the constitutionality of that statute. See Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n Inc., 37 S.W.3d 538, 541 (Tex.App.-El Paso 2001, pet. denied). Failure to add a 'necessary and indispensable party to the constitutional challenge of a statute leaves the trial court without jurisdiction. See id. The commissioner is an indispensable party to Dorfman’s suit. Therefore, the trial court erred in denying GISD’s plea to the jurisdiction. GISD’s first issue is sustained.

Conclusion

Dorfman failed to name the commissioner of education as a defendant in his suit against GISD. Because the commissioner is an indispensable party, his absence deprives the trial court of jurisdiction. Since GISD’s first issue is dispositive of this interlocutory appeal, we do not consider its second and third issues. See Tex.R.App. P. 47.1.

Accordingly, we reverse the order of the trial court and remand this matter to the trial court with instructions to enter an order dismissing Dorfman’s suit for lack of jurisdiction.

      . GISD also filed a plea in abatement, special exceptions, original answer and affirmative defenses, but those are not germane to this appeal and will not be discussed.

      . In his brief, Dorfman contends that the issue of failing to add the commissioner as a defendant to his suit is now moot because eight days after the trial court entered its written order denying GISD's plea to the jurisdiction, the attorney generál for the State of Texas filed a notice of intervention along with his plea to the jurisdiction, special exceptions and original answer. None of these pleadings are in the record as filed. Only the attorney general’s notice of intervention has been attached to Dorfman’s brief. We cannot consider documents attached to an appellate brief that do not appear in the record. Till v. Thomas, 10 S.W.3d 730, 733 (Tex.App.-Houston [1st Dist.] 1999, no pet.). This court must hear and determine a case on the record as filed, and may not consider documents attached as exhibits to briefs. Id.


source: Caselaw Access Project

license: Public Domain

text:
    Donald Paul DAGLEY and T & J Corporation d/b/a Turner Transportation, Appellants, v. Alberta THOMPSON, Individually, and Vickie Dillard as next friend of Demitrice Thompson, Danny Thompson, and Kim Jones Thompson II, Minor Children, and Joyce Francisco as next friend of Deborah Thompson, and Thelma Green, Intervenor Appellees.
    No. 12-03-00009-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 8, 2003.
    Rehearings Overruled Nov. 4 and 6, 2003.

      R. Brent Cooper, Michelle Robberson, for appellant.
    Bill Rosenstein, Ronald T. McClain, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Donald Paul Dagley and T & J Corporation d/b/a Turner Transportation (hereinafter referred to as “Dagley”) appeal the trial court’s orders granting separate summary judgments, one in favor of Alberta Thompson, Individually, and Vickie Dillard as next Mend of Demitrice Thompson, Danny Thompson, and Kim Jones Thompson II, minor children, and the other in favor of Joyce Francisco, as next friend of Deborah Thompson (collectively “plaintiffs”). Dagley also complains of the trial court’s orders striking the summary judgment evidence of three of his witnesses arguing that these- orders so tainted the subsequent jury trial that he is entitled to a new trial in the interest of fairness and justice. We reverse and remand for a new trial on the merits.

Background

At approximately 8:25 p.m. on October 2, 1997, Kim Jones Thompson (hereinafter referred to as “the deceased”) was driving a 1995 Ford automobile owned by Thelma Green northbound in the far right lane of U.S. Highway 271 in Smith County, Texas. Dagley was crossing the highway where it intersected with Farm to Market Road 757. The deceased’s car hit the right rear of the trailer being pulled by Dagley in his 1993 Mack truck. The deceased was killed instantly upon impact.

Plaintiffs sued Dagley for negligence causing the deceased’s death due to, among other things, his failure to yield the right-of-way before entering the intersection as required by a yield sign on FM 757. Dagley answered that the deceased caused his own death by being intoxicated at the time of the collision, failing to keep a proper lookout, driving at an excessive rate of speed, and failing to take timely action to avoid the collision with the trailer.

The plaintiffs filed motions for partial no-evidence , summary judgment stating that there is no evidence that some act of omission or commission of the deceased was a proximate cause of the accident leading to his death. Dagley filed a response to the motions for partial no-evidence summary judgment which included a properly authenticated autopsy report. This autopsy report contained a toxicology report showing the deceased had a .14 blood alcohol level at the time of the accident. Dagley’s response also included affidavits with deposition testimony of Richard Morrisett, the toxicologist, John Painter, the accident reconstruction expert, and Joseph Hogue, the trooper with the Department of Public Safety who investigated the accident scene. Following Dagley’s response, the plaintiffs filed motions to strike the testimony of Morrisett, Painter, and Hogue. The trial court, without a hearing, granted the plaintiffs’ no-evidence summary judgment motions and their motions to strike the testimony of Morrisett, Painter, and Hogue. A jury found that Dagley’s negligence proximately caused the accident and awarded damages to the plaintiffs. Dagley timely filed this appeal.

In Dagley’s second issue, which we will address first, he contends that the trial court improperly granted the plaintiffs’ motions for no-evidence summary judgment. Those motions addressed only Dag-ley’s affirmative defense of comparative fault for the accident. Dagley contends the deceased was driving while intoxicated and engaged in other negligent conduct as a result of his intoxication. He also asserts that, collectively, these acts were the proximate cause of the accident.

Standard of Review

Under the no-evidence summary judgment rule, a party may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or a defense on which the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The respondent has the initial burden to present sufficient evidence to defeat the no-evidence summary judgment motion. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002).

A request for a no-evidence summary judgment is, in effect, a request for a pretrial directed verdict. Hawkins v. Trinity Baptist Church, 30 S.W.3d 446, 450 (Tex.App.-Tyler 2000, no writ). We apply the same legal sufficiency standard in reviewing no-evidence summary judgments as we apply in reviewing directed verdicts. Id. We must review the summary judgment evidence in the light most favorable to the respondent and disregard all contrary evidence and inferences. See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000) (per curiam); Hawkins, 30 S.W.3d at 450. If the respondent produces more than a scintilla of probative evidence to raise a genuine issue of material fact, a no-evidence summary judgment is improper. See Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 4 (Tex.App.-El Paso 1999, pet. denied). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Hawkins, 30 S.W.3d at 450.

Comparative Negligence

Dagley’s defense to his possible negligence in causing the collision was the deceased’s comparative negligence. See Tex. Civ. PRAC. & Rem.Code Ann. § 33.001-33.004 (Vernon 1997 & Supp.2003). Negligence requires proof of proximate cause. Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 160-61 (Tex.1995). Proximate cause requires proof as to both cause in fact and foreseeability. See City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about an injury, without which the harm would not have occurred. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Id. at 478. Circumstantial evidence and inferences therefrom are a sufficient basis for determining proximate cause. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992).

Driving While Intoxicated

We must determine whether the deceased’s .14 blood alcohol level presents more than a scintilla of evidence of his comparativé negligence. “Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, dangerous drug, a combination of two or more of these substances, or any other substance into the body. See Tex. Pen.Code Ann. 49.01 (Vernon 1994). Driving while intoxicated can be a proximate cause of an accident. See Galveston-Houston Breweries, Inc. v. Naylor, 249 S.W.2d 262, 266-67 (Tex.Civ.App.-Galveston 1952, writ ref d n.r.e.). With regard to foreseeability, we know by common knowledge that alcohol distorts perception, slows reaction, and impairs motor skills while operation of an automobile requires clear perception, quick reaction, and adept motor skills. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The tragic relationship between intoxicated drivers and fatal accidents is unquestionable. Id. A motor vehicle driver’s intoxication is an impairment which is probative evidence to be considered in connection with that driver’s driving ability, vigilance, judgment, reactions, and similar matters. See Gunter v. Morgan, 473 S.W.2d 952, 954 (Tex.Civ.App.-Texarkana 1971, no writ).

Plaintiffs respond that the autopsy report showing the decedent’s .14 blood alcohol level merely establishes the cause of death. Plaintiffs contend that intoxication alone does not “convict” the decedent of negligence and as authority for that contention cite Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 798 (1951). We agree with plaintiffs that intoxication alone does not mean that the decedent was negligent. However, intoxication combined with another act can be an evidentiary fact to be considered by the jury or trier of the facts in determining whether the decedent committed an act of comparative negligence. See id.

The unobjected-to summary judgment evidence showed the decedent was driving a 1995 Ford automobile when he crashed it into the rear of Dagley’s trailer at the intersection of U.S. 271 and FM 757. We hold that decedent’s act of driving a vehicle in a public roadway with a .14 blood alcohol level is more than a scintilla of probative evidence of negligence. See Naylor, 249 S.W.2d at 266. The trial court thus erred in granting plaintiffs’ partial no-evidence motions for summary judgment. Marsaglia, 22 S.W.3d at 4. As a result, Dagley was unable to present evidence of the deceased’s comparative negligence during the jury trial of this matter. Dagley’s issue two is sustained.

Conclusion

Dagley’s evidence presented in response to plaintiffs’ motions for no-evidence summary judgment was sufficient to raise a fact question on the issue of the deceased’s comparative negligence. Accordingly, the trial court erred in granting the motions. Our determination of Dagley’s issue two is dispositive of this appeal. We therefore do not consider issues one and three. See Tex.R.App. P. 47.1.

The judgment of the trial court is reversed and this matter is remanded to the trial court for a new trial on the merits in accordance with this opinion.

      . Although intervenor Thelma Green joined in the motion, her name does not appear in the order granting the motion.


author: DIANE DeVASTO, Justice.

text:
    Bobby Doyle GETTS, Appellant, v. The STATE of Texas, Appellee.
    No. 12-03-00047-CR.
    Court of Appeals of Texas, Tyler.
    Oct. 29, 2003.
    Rehearing Overruled Dec. 16, 2003.
    Discretionary Review Granted May 5, 2004.
    Bobby Doyle Getts, pro se.
    Nancy P. Perkins, for appellant.
    Donna R. Bennett, for State.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   MEMORANDUM OPINION

DIANE DeVASTO, Justice.

Bobby Doyle Getts (“Appellant”) pleaded guilty to felony driving while intoxicated (“DWI”) and was sentenced to three years of confinement. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969). Appellant also filed a brief pro se, contending that the trial court erred in overruling his motion to dismiss the indictment and his motion to quash because one of the convictions the State used to enhance the DWI charge from a misdemeanor to a felony was stale. We reverse, order the entry of a reformed judgment, and remand for further proceedings.

Background

On May 23, 2002, Appellant was indicted for felony DWI. Included in the indictment were allegations that Appellant had two prior convictions for DWI. The first conviction was dated April 26, 1984, and the second conviction was dated September 11, 1997.

Prior to pleading guilty, Appellant filed a motion to dismiss and a motion to quash the indictment, arguing that the 1984 conviction for DWI could not confer felony jurisdiction on the trial court because it occurred more than ten years prior to the commission of the 2002 DWI offense. The trial court overruled both motions.

On January 10, 2003, Appellant pleaded guilty to third-degree felony DWI and was sentenced to three years of imprisonment. On appeal, Appellant contends in his pro se brief that the indictment was defective in that it alleges an offense that cannot be considered for felony enhancement purposes because it occurred more than ten years prior to the date he committed the offense of DWI in 2002. We agree.

Remoteness of the 1984 DWI Conviction

The trial court’s ruling on a motion to dismiss a charging instrument is subject to an abuse of discretion standard of review. Williams v. State, 464 S.W.2d 842, 844-45 (Tex.Crim.App.1971); State v. Hernandez, 830 S.W.2d 631, 635 (Tex.App.-San Antonio 1992, no pet.). To establish an abuse of discretion, the appealing party must show that the trial court’s ruling lies outside the “zone of reasonable disagreement.” DuBose v. State, 915 S.W.2d 493, 496-97 (Tex.Crim.App.1996).

The offense of DWI is a misdemeanor unless it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated. Tex. Pen.Code Ann. § 49.09(b) (Vernon 2003). A conviction may not be used for purposes of enhancing the offense of DWI from a misdemeanor to a felony if:

1) the conviction was a final conviction under Subsection (d);
2) the offense for which the person is being tried was committed more than 10 years after the latest of:
(A) the date on which the judgment was entered for the previous conviction;
(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or
(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and
S) the person has not been convicted of an offense under Section 49.04, 49.05, 39.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

Tex. Pen.Code Ann. § 49.09(e).

Appellant’s 1984 conviction for DWI meets each of the requirements for remoteness because 1) the conviction was a final conviction, 2) the 2002 DWI offense was committed more than ten years after the 1984 date of conviction for DWI, and 3) the 1997 DWI conviction did not occur within ten years of the 1984 DWI conviction. The trial court did not properly apply section 49.09(e) to the facts of Appellant’s case; therefore, his decisions to overrule Appellant’s motion to dismiss and motion to quash the indictment lie outside the zone of reasonable disagreement.

If Appellant had committed the 2002 DWI offense before September 1, 2001, we would reach a different result. Prior to September 1, 2001, section 49.09(e) read as follows:

(e) a conviction may not be used for purposes of enhancement under this section if:
(1) the conviction was a final conviction under Subsection (d) and was for an offense committed more than 10 years before the offense for which the person is being tried was committed; and
(2) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated committed within 10 years before the date on which the offense for which the person is being tried was committed.

Tex. Pen.Code Ann. § 49.09(e) (applies to intoxication-related offenses committed before September 1, 2001). Under the prior version of section 49.09(e), the trial court’s overruling of the motion to dismiss and motion to quash the indictment would have been correct because 1) the 1984 conviction was committed more than ten years before the 2002 DWI offense, and 2) Appellant had been convicted of a DWI in 1997, which was within ten years before Appellant committed the 2002 DWI. The difference between the two versions lies in the final paragraphs. Under the earlier version of section 49.09(e), the ten-year period for an intervening conviction is counted back from the date on which the offense for which the person being tried was committed. Under the current version of section 49.09(e), the ten-year period for an intervening conviction is counted forward from one of three dates related to the conviction alleged to be too remote for enhancement purposes.

To further illustrate this distinction, the court of criminal appeals has stated that the earlier version of section 49.09(e) meant that a prior intoxication-related conviction may not be used as an element of the offense of felony DWI if that prior offense was committed - more than ten years before the instant offense, unless there is an intervening intoxication-related conviction. Weaver v. State, 87 S.W.3d 557, 561 (Tex.Crim.App.2002) (emphasis added).

Because the indictment alleged a conviction that could not be used for purposes of enhancement to a felony, it only alleged misdemeanor DWI. See Mitchell v. State, 821 S.W.2d 420, 423 (Tex.App.Austin 1991, pet. refd). Therefore, the district court did not acquire jurisdiction of this offense, and was required by law to transfer the cause to a court having misdemeanor jurisdiction. See Tex.Code Ckim. Peoc. Ann. arts. 4.05, 21.26 (Vernon 2003). Therefore, Appellant’s sole issue is sustained.

Conclusion

The conviction used to enhance Appellant’s 2002 DWI offense from a misdemeanor to a felony was improper because the conviction satisfied the statutory requirements applicable to remote convictions. Accordingly, we reverse the judgment of the trial court.and, order that a reformed. judgment of conviction be entered for a misdemeanor class B offense. See Renshaw v. State, 981 S.W.2d 464 (Tex.App.-Texarkana 1998, pet. refd). We also remand this case to the trial court for the appropriate assessment of punishment and sentencing. Id.

The trial court’s jurisdiction was not addressed in the Anders, brief; therefore, Appellant’s counsel’s motion to withdraw in this case is granted and the trial court should appoint new counsel for Appellant. See Guerrero v. State, 64 S.W.3d 436, 441 (Tex.App.-Waco 2001, no pet.) (“The Court of Appeals’ determination that arguable issues were presented by the record ... created a constitutional imperative that [new] counsel be appointed.”).

      . The issue concerning the remoteness of the 1984 conviction was raised in both the motion to dismiss and the motion to quash the indictment. The trial court also granted Appellant the right to appeal. Appellant’s notice of appeal stated that the issue being appealed was raised by written motion and ruled on by the trial court; therefore, the notice complies with rule 25.2(b) of the Texas Rules of Appellate Procedure. Tex.R.App. P. 25.2(b).

      . The State filed a document entitled, "State’s Waiver of Opportunity to Respond to Appellant's Anders Brief” and did not address any of Appellant's arguments set forth in' his pro se brief.

      . Appellant’s presentation of the argument that the 1984 DWI conviction was too remote because that conviction occurred ten years prior to the 2002 offense is incomplete. The correct statement of the issue is that the 1984 conviction was too remote because the 2002 DWI offense occurred more than ten years after the 1984 conviction and there was no intervening intoxication-related conviction. Nevertheless, the remoteness argument was raised in the trial court and was subsequently overruled. See Tex.R.App. P. 25.2(b).


author: SAM GRIFFITH, Justice.

text:
    Glenn D. SHACKELFORD, Appellant, v. Sandra J. BARTON, Appellee.
    No. 12-04-00019-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 25, 2004.
    Rehearing Overruled Nov. 19, 2004.

      Glenn D. Shackelford, pro se.
    Sandra J. Barton, pro se.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

Appellant Glenn D. Shackelford (“Shack-elford”) appeals the trial court’s denial of his motion to set aside a divorce decree. On appeal, Shackelford presents three issues. We dismiss this appeal for want of jurisdiction.

Background

Shackelford and Sandra J. Barton (“Barton”) were divorced on or about November 14, 1996. On December 9, 2003, Shackelford filed a motion to set aside the divorce decree, alleging that the trial court lacked subject matter jurisdiction. Specifically, Shackelford’s motion contended that Henderson County, Texas failed to promulgate the Texas Family Code, thus denying him notice and fair warning of the law to which he was subjected. Further, Shackelford complained that the Texas Family Code did not constitutionally exist, was vague and ambiguous, and that his divorce decree was procured by extrinsic fraud because of the trial court’s misrepresentation that the Texas Family Code constitutionally existed. Thus, Shackelford contended that he was entitled to protection under the constitutions of the State of Texas and the United States.

On the same date, Shackelford also filed a request for a hearing on his motion and a motion requesting to be present by telephone at the hearing because he is a prisoner of the State of Texas. By letter dated December 31, the trial court denied Shackelford’s motion to set aside the divorce decree. This appeal followed.

Collateral Attack

In his first issue, Shackelford contends that the trial court erred by refusing to rule on his request for a hearing on his motion to set aside the divorce decree. Further, Shackelford contends that the trial court erred by refusing to rule on his motion to be present at the hearing by telephone. In his second issue, Shackel-ford argues that the trial court’s written letter order denying his motion to set aside the divorce decree was not valid because it was not filed with the district clerk and made a part of the record. In his third issue, Shackelford complains that the trial court erred by denying his motion to set aside because the trial court lacked subject matter jurisdiction to render his divorce decree. We shall consider Shack-elford’s third issue first.

Applicable Law

A collateral attack is any proceeding to avoid the effect of a judgment that does not meet all the requirements of a valid direct attack, i.e., a motion for new trial or a bill of review. Toles v. Toles, 113 S.W.3d 899, 914 (Tex.App.-Dallas 2003, no pet.); Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 620 (Tex.App.-San Antonio 2001, pet. denied); Glunz v. Hernandez, 908 S.W.2d 253, 255 & n. 3 (Tex.App.-San Antonio 1995, writ denied). For a collateral attack, there is neither a set procedure nor a statute of limitations. Zarate, 40 S.W.3d at 620-21; Glunz, 908 S.W.2d at 255. Collateral attacks may only be used to set aside a judgment that is void or involves fundamental error. Zarate, 40 S.W.3d at 621; Glunz, 908 S.W.2d at 255. A judgment is void if it is shown that the court lacked jurisdiction (1) over a party or the property; (2) over the subject matter; (3) to enter a particular judgment; or (4) to act as a court. Zarate, 40 S.W.3d at 621; Glunz, 908 S.W.2d at 255 (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987)); see also Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985).

When reviewing a collateral attack, we presume the validity of the judgment under attack. Johnson v. Ventling, 132 S.W.3d 173, 177 (TexApp.-Corpus Christi 2004, no pet.); Toles, 113 S.W.3d at 914. The recitations of the judgment control the rest of the record, and extrinsic evidence cannot be used to establish a lack of jurisdiction. Narvaez v. Maldonado, 127 S.W.3d 313, 317 (Tex.App.-Austin 2004, no pet.); Toles, 113 S.W.3d at 914. A collateral attack fails if the judgment contains jurisdictional recitals, even if other parts of the record show a lack of jurisdiction. Johnson, 132 S.W.3d at 178; Toles, 113 S.W.3d at 914.

Analysis

We must first determine whether the judgment being attacked is void. See Zarate, 40 S.W.3d at 621. In this case, the judgment under attack is the final decree of divorce. The final decree contains the following recitation:

The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, finds that it has jurisdiction over this cause of action and the parties and that at least 60 days have elapsed since the date the suit was filed. The Court finds Petitioner has been a domiciliary of this state for at least a six-month period preceding the filing of this action and a resident of the county in which this suit is filed for at least a 90-day period preceding the filing of this action. All persons entitled to citation were properly cited.

This language has been found sufficient to establish the jurisdictional basis for a valid judgment. See Toles, 113 S.W.3d at 914 (citing Ramsey v. Ramsey, 19 S.W.3d 548, 553 (Tex.App.-Austin 2000, no pet.)). Further, the final decree is regular on its face and settles all legal issues and rights between the parties. See Johnson, 132 S.W.3d at 178. Thus, the decree is not void and may not be collaterally attacked. See id.; Toles, 113 S.W.3d at 914-15. Having determined that the final decree of divorce is not void, we must decide whether we have jurisdiction over this appeal. See Zarate, 40 S.W.3d at 623.

A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. Tex.R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 310 (Tex.2000). A trial court’s plenary power may be extended by timely filing an appropriate post-judgment motion within the initial thirty-day period, such as a motion for new trial or a motion to modify, correct, or reform the judgment. Tex.R. Civ. P. 329b(a), (e), (g); Lane Bank Equip. Co., 10 S.W.3d at 310; In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When an appropriate post-judgment motion is filed within the initial thirty-day period, the trial court’s plenary power over the judgment is extended up to an additional seventy-five days, depending on when or whether the court acts on the motion. Lane Bank Equip. Co., 10 S.W.3d at 310. However, if no party to a judgment files a motion that extends the trial court’s plenary power, the trial court loses jurisdiction over the judgment thirty days after the judgment is signed and has no power to set aside a judgment except by bill of review for sufficient cause. Tex.R. Civ. P. 329b(f); Johnson, 132 S.W.3d at 178.

Nonetheless, even after expiration of its plenary jurisdiction, a trial court retains its inherent power to clarify or enforce a divorce decree. Johnson, 132 S.W.3d at 178 (citing McGehee v. Epley, 661 S.W.2d 924, 926 (Tex.1983)). However, any order “that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable.” Tex. Fam.Code Ann. § 9.007(b) (Vernon 1998); Johnson, 132 S.W.3d at 178. Finally, “[i]t is well established in Texas that a divorce judgment, unappealed, and regular on its face, is not subject to a collateral attack in a subsequent suit.” Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex.1980).

There is no record that either party appealed the decree or filed any post-judgment motion that extended the trial court’s plenary power. Thus, after expiration of its plenary jurisdiction, the trial court retained only its inherent power to clarify or enforce the 1996 divorce decree. See Johnson, 132 S.W.3d at 179. The motion to set aside the divorce decree was filed on December 9, 2003. By that time, the trial court’s plenary power to change the 1996 final decree of divorce had expired because the motion was filed more than thirty days after the decree was signed. See Tex.R. Civ. P. 329b; Zarate, 40 S.W.3d at 623. An untimely motion to set aside a judgment provides no basis for consideration on appeal. See Zarate, 40 S.W.3d at 623 (citing Clements v. Barnes, 822 S.W.2d 658, 660 (Tex.App.-Corpus Christi 1991), rev’d on other grounds, 834 S.W.2d 45 (Tex.1992); Dean v. Warren, 464 S.W.2d 672, 673 (Tex.Civ.App.-Tyler 1971, no writ)). As a result, the trial court’s order denying Shackelford’s motion to set aside was not an appealable order. See id. (stating that appeals are allowed only from final judgments). Therefore, we have no jurisdiction to consider the trial court’s ruling on the motion to set aside the divorce decree. See id.

Disposition

We dismiss this appeal for want of jurisdiction. Having determined that we lack jurisdiction to consider the appeal of the trial court’s ruling, it is unnecessary for us to address Shackelford’s first and second issues.


author: Justice O’NEILL.

text:
    Ex parte Chance Renee SMALLEY.
    No. 05-04-00908-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 9, 2004.
    Rehearing Overruled Jan. 3, 2005.

      Blake Withrow, Dallas, for appellant.
    William T. (Bill) Hill, Jr., Melissa C. Dominquez, Dallas, for state.
    Before Justices O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice O’NEILL.

Chance Renee Smalley is charged with violating section 41A-18.1(a) of the Dallas City Code. Appellant filed a pretrial application for writ of habeas corpus asserting that the information on which she is being prosecuted is void. Following a hearing, the trial court denied appellant relief. In two points of error, appellant contends the trial court erred in holding that: (1) the legislature properly delegated authority to municipalities to “make any regulation of sexually oriented businesses punishable as a Class A misdemeanor”; and (2) the City of Dallas may regulate personal conduct of employees and customers of sexually oriented businesses by making such conduct punishable as a Class A misdemeanor. We affirm the trial court’s order.

Facts

Appellant, a dancer at an adult cabaret called Baby Dolls, is charged by information with recklessly touching a customer by rubbing her buttocks against the clothed genitals of the customer while appellant was exposing a portion of her breast, in violation of section 41A-18.1(a) of the Dallas City Code. Appellant filed a pretrial application for writ of habeas corpus challenging the validity of section 41A-18.1. She contended that the provision in section 243.010(b) that makes any violation of a municipal ordinance related to sexually oriented businesses punishable as a Class A misdemeanor is an unconstitutional delegation of authority from the legislature to municipalities because the statute is undefined and grants unlimited authority to municipalities. Following a hearing, the trial court denied appellant relief. This appeal followed.

Applicable Law

Appellate courts will uphold the trial court’s ruling on an application for writ of habeas corpus absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003). Because the issue of whether the legislature unconstitutionally delegated authority to municipalities is a question of law, we review the trial court’s ruling de novo. See id.; see also Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999); State v. Nkwocha, 31 S.W.3d 817, 820 (Tex.App.-Dallas 2000, no pet.).

The power to make law has been placed by the people, through the Constitution, with the legislature. Ex parte Leslie, 87 Tex.Crim. 476, 223 S.W. 227, 227 (1920); see also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 466 (Tex.1997) (Tex. Boll Weevil ). However, the “legislative delegation of power to enforce and apply law is both necessary and proper.” Tex. Boll Weevil, 952 -S.W.2d at 466. Texas courts have generally upheld delegations to state and municipal agencies. Id. at 467. Such delegation must establish reasonable standards to guide the entity to which the powers are delegated. R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992) (quoting State ex rel. Grimes County Taxpayers Ass’n v. Tex. Mun. Power Agency, 565 S.W.2d 258, 273 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ dism’d)); see also Ex parte Leslie, 223 S.W. at 228.

Chapter 248 of the Texas Local Government Code involves the delegation of legislative authority to municipalities. See generally Tex. Local Gov’t Code Ann. §§ 243.001-.011 (Vernon 1999 & Supp. 2004-05). Therefore, we review the propriety of the delegation under the factors set out in Housing Authority of the City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 87 (1940), and its progeny. See Tex. Boll Weevil, 952 S.W.2d at 472. The court in Higginbotham said,

In the delegation of legislative authority the legislature must set up standards, leaving to selected municipalities the making of those rules and the determination of facts to which legislative policy is to apply. Such standards may be broad where conditions must be considered which cannot be conveniently investigated by the legislature.

Higginbotham, 143 S.W.2d at 87. The existence of an area for the exercise of discretion under delegation of authority does not render the delegation unlawful where the standards formulated for guidance, though general, are capable of reasonable application. See Ex parte Granviel, 561 S.W.2d 503, 514 (Tex.Crim.App.1978) (en banc). As long as the statute is sufficiently complete to accomplish regulation of the matter that falls within the legislature’s jurisdiction, the matters of detail reasonably necessary to the ultimate application, operation, and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Id.

We presume a statute is valid, and the challenging party has the burden of showing beyond a reasonable doubt that the statute is invalid. See id. at 515. An act will not be declared unconstitutional unless the legislature has clearly exceeded its powers. Id.

Analysis

Appellant argues her two issues together. In sum, she contends that chapter 243 does not permit municipalities to regulate employee/customer conduct as Class A misdemeanors. Appellant asserts that section 243.001(b) gives municipalities authority to regulate such conduct, but only within their Class C misdemeanor penal authority. Appellant further contends that if chapter 243 does permit municipalities to regulate employee/customer conduct as Class A misdemeanors, then it is an unconstitutional delegation of legislative authority. In either case, appellant' asserts, section 41A-18.i(a) of the Dallas City Code is void. Appellant recognizes that the two Houston courts of appeals have held that chapter 243 encompasses employee/customer conduct. See Thompson v. State, 44 S.W.3d 171, 176 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Haddad v. State, 9 S.W.3d 454, 459 (Tex.App.Houston [1st Dist.] 1999, no pet.). She argues, however, that the Houston courts did not address whether such a delegation of authority was constitutional.

The State responds that chapter 243 does permit municipalities to regulate employee/customer conduct in sexually oriented businesses and to punish violations as Class A misdemeanors. The State also argues that chapter 243 provides sufficient guidance and limitation on the exercise of that authority to make the delegation constitutionally valid.

First, we agree with the two Houston courts of appeals that chapter 243 of the local government code does permit municipalities to regulate employee/customer conduct and make violations punishable as Class A misdemeanors. See Thompson, 44 S.W.3d at 176; Haddad, 9 S.W.3d at 459. Chapter 243 of the local government code grants municipalities the authority to regulate sexually oriented businesses. See generally Tex. Local Gov’t Code Ann. §§ 243.001-.011. In enacting chapter 243, the legislature found that “the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity.” Id. § 243.001(a). The purpose of chapter 243 is to give local governments a means of dealing with this problem. Id. The legislature granted municipalities authority to enact ordinances regarding sexually oriented businesses as considered necessary to promote the public health, safety, and welfare. Id. § 243.003(a). The legislature also specifically said that chapter 243 does not diminish the authority of local governments to regulate sexual7 ly oriented businesses with regards to “any matters.” Id. § 243.001(b) (emphasis added). While chapter 243 does contain certain provisions related to licensing and zoning, contrary to appellant’s assertion, nothing in the language of section 243.006 or the other sections on which she relies limits the entirety of chapter 243 or the penal provisions of section 243.010 to licensing and zoning. See generally id. §§ 243.006-.008.

Moreover, we conclude chapter 243 provides sufficient guidance and limitations to municipalities in enacting ordinances regulating employee/customer conduct in sexually oriented businesses. The standards for regulation may be broad where conditions must be considered that cannot be conveniently investigated by the legislature. See Higginbotham, 143 S.W.2d at 87. As long as the statute is sufficiently complete to accomplish regulation of the matter that falls within the legislature’s jurisdiction, the matters of detail reasonably necessary to the ultimate application, operation, and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Id.

Section 243.001(a) specifically refers to the public health, safety, and welfare and the criminal activity that springs up around sexually oriented businesses. See Tex. Local Gov’t Code Ann. § 243.001(a). The chapter defines what types of businesses constitute sexually oriented businesses. See id. § 243.002. Municipalities may only adopt regulations concerning sexually oriented businesses that are necessary to promote the public health, safety, or welfare, and those regulations apply only within the corporate limits of the municipality. See id. § 243.003(a), (b). The terms “health,” “safety,” and “welfare”, are not defined in chapter 243, so we may give them their ordinary meaning,' and the terms are common and easily comprehended. See Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003), cert. denied, - U.S. -, 124 S.Ct. 2098, 158 L.Ed.2d 713 (2004). That there are areas for the exercise of discretion under the delegation of authority does not render the delegation unlawful where the standards formulated for guidance, though general, are capable of reasonable application. See Ex parte Granviel, 561 S.W.2d at 514. Thus, we conclude chapter 243 does not unconstitutionally delegate authority to municipalities to regulate employee/customer conduct in sexually oriented businesses.

Because chapter 243 permits municipalities to regulate employee/customer conduct and punish violations as Class A misdemeanors and such is not an unconstitutional delegation of authority, we conclude section 41A-18.1(a) of the Dallas City Code is not void. Therefore, the trial court did not abuse its discretion in denying appellant the relief sought by her application for writ of habeas corpus. We overrule appellant’s two points of error.

We affirm the trial court’s order denying appellant the relief she sought in her application for writ of habeas corpus.

      . This subsection provides as follows: "An employee of an adult cabaret, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.” See Dallas, Tex., Code § 41A-18.1(a) (2000).


author: PHYLIS J. SPEEDLIN, Justice.

text:
    In the Interest of B.T.T., a Child.
    No. 04-03-00946-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 15, 2004.

      Michael D. Robbins, San Antonio, for appellant.
    Justine M. Daly, Law Office of Justine M. Daly, Frank E. Gonzalez, Asst. Atty. Gen., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Emily Braddy appeals from a final order in a suit affecting the parent child relationship which sets aside a child support order and arrearage judgment in her favor. In her sole issue on appeal, Braddy contends that the trial court lacked jurisdiction to nullify its prior order and enter a money judgment against her. We affirm.

Factual and PROCEDURAL Background

The factual history of this case dates back to November 13, 1996 when a Uniform Interstate Family Support suit was initiated in Bexar County by the Texas Office of the Attorney General (OAG) on behalf of Braddy alleging that Harold Thomas was the biological father of her daughter. At that time, Thomas was serving on active duty in the military, stationed in Hawaii; and a reciprocal suit was filed in Hawaii. On April 11, 1997, the Hawaii court entered a default order against Thomas establishing paternity of B.T.T. and obligating Thomas to pay child support. As a result of the Hawaii order, the OAG filed suit in Bexar County, Texas and a notice of registration of foreign support order in August 1999. Ultimately, unpaid child support under the Hawaii order was reduced to a Texas arrearage judgment against Thomas on August 4, 2000.

Soon thereafter, Thomas had a DNA test done at his own expense which excluded him as the biological father of the child. Thomas then initiated two suits, one in Texas and one in Hawaii. In Texas, Thomas filed a voluntary petition to terminate the parent-child relationship. In Hawaii, Thomas filed a suit to set aside the 1997 paternity and child support order as being null and void under the Soldiers’ and Sailors’ Civil Relief Act of 1940. On February 28, 2003, the Hawaii family court granted Thomas’ motion, set aside its 1997 order as “null and void,” and further ordered that the presumption of Thomas’ paternity had been rebutted.

Thomas then filed a motion in May 2003 in Bexar County to set aside the arrearage judgment against him because the underlying (1999) Hawaii child support order was void under the Soldiers’ and Sailors’ Relief Act. Thomas’ motion also sought repayment of money previously paid in child support.

On June 23, 2003, the Honorable Pat Boone conducted a hearing and granted Thomas’s motion. The trial court filed findings of fact and conclusions of law stating (1) the Hawaii Court found the April 11,1997 order relating to child support (and paternity) was signed as the result of fraud, duress, or material mistake of fact and in violation of the Soldiers’ and Sailors’ Civil Relief Act; (2) the Hawaii Court found that genetic tehts show by clear and convincing evidénce that Thomas is not the father of B.T.T.; and (3) that any Texas judgment against Thomas for arrears was null and void due to the fact that the underlying default order in Hawaii was declared null and void, and thus the Texas Order no longer had any basis in fact or in law. The court further entered a cumulative judgment against Brad-dy in the amount of $16,847.19, representing the amount of child support Thomas has previously paid. Finally, Braddy was ordered to pay Thomas $3,500 in attorney fees. Braddy appeals the trial court’s order.

Discussion

In her sole point of error, Braddy claims that the trial court lacked jurisdiction to consider Thomas’ motion to nullify the prior Texas order and enter a judgment against her. Braddy asserts that under the Texas Family Code, Thomas was required to contest the registration of a foreign support order in Bexar County within twenty days of notice in order to prevent the registration from being confirmed by operation of law. Tex. Fam.Code Ann. § 159.606(a) (Vernon 2002). Since Thomas failed to timely contest the Texas registration of the 1999 Hawaii child support order, Braddy claims the trial court did not have jurisdiction to nullify either the registration of Hawaii’s order or the August 4, 2000 arrearage judgment. We disagree.

The Soldiers’ and Sailors’ Civil Relief Act of 1940 (“SCRA”) provides protection to members of the armed services from default judgments being taken against them during their service in the military. See 50 U.S.C. app. § 521 (2004). The provisions apply to any civil action or proceeding in which the defendant service member does not make an appearance. 50 U.S.C. app. § 521(a) (2004). In a proceeding covered by SCRA, the plaintiff must file an affidavit stating that the defendant is not a member of the military service or that the plaintiff is unable to determine whether the defendant is in the military. See 50 U.S.C. app. § 521(b)(1) (2004). If a default judgment is taken against a service member during their military service, the SCRA permits the default judgment to be reopened if it appears that: (1) the service member was materially affected in making a defense due to their military service; and (2) the service member has a meritorious legal defense to the action. See 50 U.S.C. app. § 521(g)(1) (2004). Applying the SCRA, the Hawaii court set aside its paternity finding and child support order as being null and void.

Braddy contends that the trial court did not have jurisdiction to nullify its prior orders because Thomas did not file a contest within twenty days after the notice of registration of the first Hawaii order. Tex. Fam.Code Ann. § 159.606(a). Under the Full Faith and Credit Clause of the United States Constitution, however, the introduction of a facially valid foreign order creates a prima facie case for its recognition and enforcement. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); Villanueva v. Office of the Atty. Gen., 935 S.W.2d 953, 954-55 (Tex.App.-San Antonio 1996, writ denied). Once a judgment is properly authenticated and admitted into evidence, the party seeking to oppose it has the burden of proving that the judgment is not entitled to full faith and credit. Mitchim, 518 S.W.2d at 364. Braddy has failed to explain any reason the trial court should not have given full faith and credit to the second Hawaii court order declaring its previous 1997 order to be null and void.

In addition, the Texas Supreme Court has acknowledged that the SCRA creates a distinct right for which relief may be sought. See Winship v. Gargiulo, 761 S.W.2d 301, 301 (Tex.1988). Disapproving the intermediate appellate court’s attempt to classify a service member’s action as either a bill of review or a motion for new trial, the court stated, “There is no reason that this federally created procedure should be required to fit within one of our state’s existing procedures for vacating a default judgment.” Id. Similarly, there does not appear to be a reason that an effort to nullify the registration of an order that has been set aside under the SCRA should be required to fit within the provisions of section 159.606 of the Texas Family Code. Furthermore, Section 159.603 of the Texas Family Code provides that a registered order issued in another state is subject to the same procedures as an order issued by a tribunal of this state. Tex. Fam.Code. Ann. § 159.603(b) (Vernon 2002). Under the SCRA, child support orders issued by Texas courts are subject to being reopened on the basis of paternity challenges. See Hawkins v. Hawkins, 999 S.W.2d 171, 177 (Tex.App.-Austin 1999, no pet.). Moreover, a trial court is required to recognize an order issued by a court in another state modifying an order previously registered. See Tex. Fam.Code Ann. § 159.612 (Vernon Supp.2004r-05).

Finally, the provisions of the Texas Family Code only preclude a further contest “with respect to any matter that could have been asserted at the time of registration.” See Tex. Fam.Code Ann. § 159.608 (Vernon 2002). In this case, Thomas’ defense that the order had been vacated by a later order could not have been asserted at the time of the registration of the first Hawaii order. See Tex. Fam.Code. Ann. § 159.607 (Vernon Supp.2004r-05).

Conclusion

The order of the trial court is affirmed.

      . The trial court subsequently consolidated the underlying suit affecting the parent child relationship in which the arrearage judgment was entered with the suit filed by Thomas for termination of parental rights.

        .See Soldiers' and Sailors’ Civil Relief Act of 1940, 50 U.S.C. app. §§ 501 et seq. (1990), amended by Servicemembers Civil Relief Act, 501 U.S.C. app. §§ 501-596 (2003).


author: WHITTINGTON, Justice.

text:
    Scott LOYE, Little Bit Productions, Inc., Jennifer Johnson, Phillip Rowe, William Rourke, Melanie Aalbers, Robert Semrow, Mark Perez, Scott Hamilton, Paul Moriarty, and Todd Olsen, Appellants/Intervenors, v. TRAVELHOST, INC., Appellee.
    No. 05-04-00430-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 16, 2004.

      Julia F. Pendery and Daon Robbins, Godwin Gruber, LLP, Dallas, for Appellants.
    Talmage Boston, Chad E. Robinson, Winstead, Sechrest & Minick, P.C., and John A. Price, Dallas, for Appellee.
    Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
   OPINION ON REHEARING

WHITTINGTON, Justice.

We grant appellants’ October 19, 2004 motion for rehearing. We vacate our opinion and judgment, minute book volume 93, page 4334, dated October 4, 2004. This is now the opinion of the Court.

In this interlocutory appeal, we must determine whether the trial judge erred in granting Travelhost, Inc.’s request for a temporary injunction. In four issues, Scott Loye, Little Bit Productions, Inc., Jennifer Johnson, Phillip Rowe, William Rourke, Melanie Aalbers, Robert Semrow, Mark Perez, Scott Hamilton, Paul Moriarty, and Todd Olsen claim the trial judge erred in granting the temporary injunction because (i) it constituted an “advance ruling on the merits,” (ii) the covenant not to compete is unenforceable, (iii) the temporary injunction enjoins Loye who is not competing with Travelhost and is overly broad in that it restrains appellants and “all those in concert or in active participation with them or any one of them,” and (iv) Travelhost did not establish immediate irreparable harm. We affirm the trial court’s order.

On December 3, 2002, Loye, the sole shareholder and sole director of Little Bit Productions, executed a “Distributorship Agreement” with Travelhost to distribute Travelhost magazines in the Bossier City and Shreveport area. Loye and Little Bit Production’s office was located at 400 Travis Street, Suite 518 in Shreveport, Louisiana. Loye had at least two independent contractors assisting him in the Travelhost operation-Jennifer Graham, who provided services, selling advertising and assisted in producing the publications, and Johnnie Johnson, who was the vice president of marketing. During the last week of September 2003, Loye stopped distributing the Travelhost magazine.

Prior to the contract with Travelhost, Loye had incorporated and served as an officer of On The Go Travel, Inc. of Louisiana and On The Go Travel, Inc. of Arkansas. In October of 2003, a new magazine, On the Go in the Arkr-La-Tex, began publication from the same office space occupied by the Travelhost operation. Loye testified he knew On the Go in the Ark-Lar-Tex was in the planning stages sometime in September of 2003 and he would not be surprised if 116 of the advertisements in the new magazine were the same as those contained in the Travelhost magazine. The new magazine is a “competitive publication” with the Travelhost magazine. Loye was aware that Jennifer Graham had switched advertisers from the Travelhost magazine to On the Go in the Ark-Lar-Tex magazine, and he had done nothing to stop her. He was further aware she had replaced the Travelhost magazine with the On The Go in the Arkr-La-Tex magazine in hotels and did nothing to stop her. Loye further testified On The Go in the Ark-La-Tex is published by Jennifer Graham, doing business as Shelby Publishing.

In November 2003, Travelhost filed suit against Loye and Little Bit Productions, alleging various causes of action and seeking injunctive relief. Thereafter, several other parties intervened. After a hearing, the trial judge granted Travelhost’s request for injunctive relief. This interlocutory appeal- followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (Vernon Supp.2004-05).

We review a trial judge’s order granting or denying a request for a temporary injunction under an abuse of discretion standard: Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Walter v. Walter, 127 S.W.3d 396, 398 (TexApp.-Dallas 2004, no pet.). The reviewing court should reverse an order granting injunctive relief only if the trial judge abused his discretion in granting said relief. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58. The reviewing court must not substitute its judgment for that of the trial judge unless the trial judge’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204 (citing Johnson v. Fourth Ct. of App., 700 S.W.2d 916, 918 (Tex.1985)).

In reviewing the trial judge’s decision, we draw all legitimate inferences from the evidence in the light most favorable to the trial court’s judgment. Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex.App.-Dallas 2003, no pet.); Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex.App.-Dallas 1993, no writ). When the trial judge considers conflicting evidence, there can be no abuse of discretion. Tom James, 109 S.W.3d at 883; Rugen, 864 S.W.2d at 551. However, the trial judge abuses his discretion when he misapplies the law to established facts or when the evidence does not reasonably support the trial judge’s determination of the existence of probable injury or probable right of recovery. Tom James, 109 S.W.3d at 883; Rugen, 864 S.W.2d at 551. We review de novo any determinations on questions of law that the trial judge made in support of the order. Tom James, 109 S.W.3d at 883; see Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding).

The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru, 84 S.W.3d at 204; Rugen, 864 S.W.2d at 550; Elec. Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.-Dallas 1974, no writ). To obtain a temporary injunction, the applicant must plead and prove (i) a cause of action against the defendant, (ii) a probable right to the relief sought, and (iii) a probable, imminent, and irreparable injury in the interim. Tom James, 109 S.W.3d at 882 (citing Butnaru, 84 S.W.3d at 204); see Walling, 863 S.W.2d at 57. Thus, the legal issues before the trial judge at a temporary injunction hearing are whether the applicant showed a probability of success and irreparable injury; the underlying merits of the controversy are not presented. It follows that the appeal of an order granting or denying a temporary injunction based on a covenant not to compete does not present for appellate review the ultimate question of whether the covenant is enforceable under section 15.50 of the business and commerce code. See TEX. BUS. & COM. CODE ANN. § 15.50 (Vernon 2002). Therefore, in this case, we review only the trial judge’s exercise of discretion in determining that Travelhost showed it would likely succeed on the merits of the issue at final trial. We will reverse the temporary injunction order only if we determine that the record shows the trial judge clearly abused that discretion. See Tom James, 109 S.W.3d at 883 (citing Rugen, 864 S.W.2d at 550-51).

In their first issue on appeal, appellants claim the trial judge erred in granting the temporary injunction because (i) there is no evidence Loye was competing with Travelhost, and (2) the order was an advance ruling on the merits of the underlying case. We disagree with both contentions.

With respect to appellants’ complaint that there is no evidence Loye was competing with Travelhost, the record contains conflicting evidence. Loye testified at the temporary injunction hearing that he had previously incorporated and served as an officer of corporations with names similar to the new competing publication. On The Go in the Arkr-La-Tex began operations shortly after Loye stopped distributing the Travelhost magazine, in the same office occupied by Loye and Travelhost. Loye stated he knew On The Go in the Ark-LaTex was in the planning stages in September 2003, the same month he stopped distributing the Travelhost magazine. Loye testified On The Go in the Ark-La-Tex was a “competitive publication” with Trav-elhost. According to Loye, he was aware that Graham, his “independent contractor” who sold advertising and helped in producing both publications, switched advertisers from Travelhost to the On The Go in the Ark-La-Tex and that he had done nothing to stop her from doing so. He also testified he knew she replaced the Travelhost magazines in hotels with the On the Go in the Ark-La-Tex and did nothing to stop her. Loye also testified On the Go in the Arkr-La-Tex is published by Jennifer Graham, doing business as Shelby Publishing. We are mindful that the trial judge was able to observe the witnesses and make a determination as to their credibility. Because there is some evidence that Loye and Little Bit Productions were competing with Travelhost, we cannot conclude the trial judge abused his discretion. We overrule this portion of appellants’ first issue.

Next, appellants claim the trial judge abused his discretion because he made an advance ruling on the merits of the underlying case. We addressed a similar argument in Tom James. In that case, the parties argued the trial judge had reached the ultimate issue based on the wording in the trial court’s order. Tom James, 109 S.W.3d at 884. After a lengthy analysis and discussion, we concluded that, regardless of how we classified the “findings” set forth in the trial court’s order and “despite the breadth of the trial court’s language,” the ultimate issue of whether the covenant not to compete was enforceable was not before the trial judge at the temporary injunction hearing and the trial judge had not addressed the merits of the underlying case. • Tom James, 109 S.W.3d at 884-85.

Although appellants in this case argue the language of the trial court’s order makes “an affirmative ruling that the covenant is enforceable,” we follow the reasoning and analysis developed in Tom James and look to the entire order as well as the record of the temporary injunction hearing in determining the effect of the trial judge’s ruling. The trial judge’s decision to grant a temporary injunction was based on the evidence presented at the temporary injunction hearing. We cannot assume this evidence will be the same as the evidence developed at a full trial on the merits. See Tom James, 109 S.W.3d at 885 (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978)). Furthermore, despite the breadth of much of the order’s language, the trial judge concluded Travelhost was entitled to maintain the status quo because Travelhost appeared to be entitled to relief and had a “substantial likelihood of prevailing on the merits of its claims regarding the enforceability” of the covenant not to compete. Thus, as in the Tom James case, the trial judge did not reach the ultimate issues in the case. We overrule appellants’ first issue.

In their second issue, appellants claim the covenant not to compete is unenforceable as a matter of law. Because the issue of whether the covenant not to compete is enforceable must await a final judgment on the merits, we decline to address appellants’ second issue. See Tom James, 109 S.W.3d at 885 (“Despite our de novo review of legal issues related to the trial court’s decision on the application for temporary injunction, the trial court did not, and we do not, reach the ultimate issue of the enforceability of the non-compete agreements. That issue awaits a final judgment on the merits, such as a final judgment entered after a jury or bench trial or a hearing on a motion for summary judgment.”). We overrule appellants’ second issue.

In their third issue, appellants contend the judge erred in granting the temporary injunction because the language of the injunction is overly broad, restraining appellants and “all those in concert or in active participation with them or any one of them.” Under this argument, appellants complain the relief granted in the temporary injunction order “clearly exceeds the relief requested by Travelhost.” Appellants also claim the temporary injunction has “serious due process implications” because people who actively participate with a representative of Little Bit Productions would be covered by the injunction without having a “chance to contest that restraint on their livelihood.”

Initially, we note that appellants did not raise a due process challenge below. Thus, to the extent they attempt to raise it on appeal, we conclude it has been waived. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 707 (Tex.2008) (concluding appellant waived certain complaints for failure to raise them below). Regarding the language of the order, we conclude appellants’ complaint lacks merit. In its original petition, Travelhost requested temporary injunctive relief against “Defendants, jointly and severally, and all those in active convert or participation with them.” In its motion for temporary injunction, Travelhost moved for injunctive relief against appellants, including their officers, directors, employees, and agents and “all those acting in concert or active participation with them.” The language of rule 683 of the rules of civil procedure provides that orders granting injunctive relief are “binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those person in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” TEX. R. CIV. P. 683 (emphasis added). Thus, the language of the order tracks the relief requested as well as that permitted under rule 683. To the extent appellants argue the addition of the phrase “or any one of them” expands the scope of the order to a class of persons beyond the scope of the rule, we disagree. By adding the phrase “or any one of them,” the order simply refers to the parties named in the rule singularly as well as collectively. We overrule appellants’ third issue.

In their final issue, appellants argue the trial judge abused his discretion in granting the temporary injunction because Travelhost failed to establish immediate irreparable harm. Specifically, appellants argue Travelhost’s evidence established the damages could be calculated and, therefore, there is an adequate remedy at law. We disagree.

No adequate remedy at law exists if damages are incapable of calculation or if a defendant is incapable of responding in damages. Hilb, Rogal & Hamilton Co. of Tex. v. Wurzman, 861 S.W.2d 30, 32 (Tex.App.-Dallas 1993, no writ); Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848, 851 (Tex.App.-Dallas 1990, no writ); R.H. Sanders Corp. v. Haves, 541 S.W.2d 262, 265 (Tex.Civ.App.-Dallas 1976, no writ). A plaintiff does not have an adequate remedy at law if the defendant is insolvent. Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 611 (TexApp.-Houston [1st Dist.] 2002, no pet.); Blackthome v. Bellush, 61 S.W.3d 439, 444 (Tex.App.-San Antonio 2001, no pet.); Surko Enter., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex.App.-Houston [1st Dist.] 1989, no writ).

During the hearing, Loye testified Little Bit Productions has no assets. Additionally, he testified he transferred his personal assets to his wife fifteen years before the temporary injunction hearing. According to Loye, the only assets he had to satisfy any judgment rendered against him or Little Bit Productions were a 1990 Dodge Caravan, some cash, and personal items such as clothing and a watch. In light of this testimony, we cannot conclude the trial judge abused his discretion in concluding Travelhost had no adequate remedy law.

Finally, appellants claim Travelhost cannot claim imminent injury when it delayed two months in filing its motion for temporary injunction. Because appellants cite no authority for their proposition and do not provide any record cites in support of their complaints, we conclude this argument is- waived. See TEX. R.APP. P.38.1(h) (brief to court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); see also McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied) (appellant who offered no legal analysis and cited only generally to law review article failed to adequately brief ground raised). We overrule appellants’ fourth issue.

We affirm the trial court’s order.

      . Under their fourth issue, appellants also argue Travelhost did not show a probable right to relief. In support of this complaint, appellants refer us to their discussion in issues one and two. Likewise, we refer to our previous discussion of this issue-in which we concluded appellants’ issues were meritless-and do not revisit it here.


author: Justice WRIGHT.

text:
    Donna MITCHELL and Timothy T. Mitchell, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 05-03-01592-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 30, 2004.
    Rehearing Overruled March 10, 2005.

      Donna Kaye Rashti and Timothy T. Mitchell, Rashti and Mitchell, Dallas, for Appellant.
    Eric Scott Lipper and Michael D. Conner, Hii’sch & Westheimer, P.C., Houston, for Appellee.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice WRIGHT.

Donna and Timothy Mitchell appeal a take nothing judgment based on a jury verdict in favor of Bank of America. In fifteen points of error, the Mitchells contend generally: (1) the trial court erred in excluding certain testimony and exhibits; (2) the trial court erred in denying an agreed continuance; (3) the evidence is factually insufficient to support the breach of contract finding; (4) Bank’s counsel made improper jury argument; (5) the trial court erred in failing to grant their motion for new trial based on newly discovered evidence; (6) certain trial court rulings violated their constitutional rights; and (7) the trial court erred in awarding the Bank its costs. We overrule the Mitchell’s points of error and affirm the trial court’s judgment.

Background

In 1991, the Mitchells opened a safe deposit box at the Bank. Subsequently, the Mitchells moved twice and informed the bank of the address changes. In 1997, the Mitchells went to the Bank and learned that their safety deposit box was about to be drilled for nonpayment. The Bank had mailed payment notices to the old addresses. The Mitchells paid the past due rent and the Bank assured them the box would not be drilled.

On June 12, 1998, the Mitchells went to the Bank to close the safety deposit box and move the contents to a bank closer to their home. At this time, the Bank informed them that the box had been drilled because of nonpayment and that the contents had been sent to Austin. The Mitch-ells paid the rental and drilling fee and the Bank had the contents of the box transferred back to the Greenville Avenue branch. The Mitchells returned to the Bank on June 19, 1998 to retrieve the contents of the box.

The Mitchells verified the contents of the box and signed a receipt stating that they had received all of the contents. They placed the contents into a Blockbuster tote bag and left the Bank. The Mitch-ells got into their suburban and drove about two miles before experiencing a flat tire on Central Expressway. They exited the highway and called AAA. While waiting for assistance, a man approached and offered to help change the tire and they accepted. Mr. and Mrs. Mitchell then got out of the suburban. While Mr. Mitchell was attempting to remove the flat tire, the stranger left the scene. Shortly thereafter, the Mitchells discovered the Blockbuster bag and its contents were missing. They called the police and filed a report.

The Mitchells sued the Bank alleging that the Bank breached the contract by drilling the safety deposit box when the rent was paid and they had not been notified of a problem. The case proceeded to trial and the jury found in favor of the Bank.

Continuance

In their second point of ei’ror, the Mitchells contend the trial court erred in denying an agreed continuance. We review a trial court’s denial of a motion for continuance for an abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002); Dallas Ind. Sch. Dist. v. Finían, 27 S.W.3d 220, 235 (Tex.App.-Dallas 2000, pet. denied).

The Mitchells faded to provide a record citation-for their motion for continuance, and we do not find such motion in the record. They direct the Court to the Rule 11 agreement filed in the trial court on the day of the pretrial hearing, on July 28, 2003. At the pretrial hearing, the trial judge acknowledges the Rule 11 agreement and initially states that he will not allow the parties to postpone trial.' Following a brief discussion, however, the trial judge states, “maybe I’m going to have to grant the continuance you both agreed to.” Mr. Mitchell then tells the trial court, “we’re happy to go to trial tomorrow.” At the end of the pretrial hearing, the status of the Rule ll continuance was pending. The following morning, the parties addressed several pretrial motions before the trial began. There was no discussion of a continuance.

Before the trial court ruled on the continuance, Mr. Mitchell announced that the plaintiffs were “happy to go to trial tomorrow.” The Mitchells cannot complain of proceeding to trial the following day when they agreed to do so. See Reyna v. Reyna, 738 S.W.2d 772, 775 (Tex. App.-Austin 1987, no writ). Moreover, the Mitchells failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error. See Tex.R.App. P. 33.1(a); Rangel v. State Bar of Texas, 898 S.W.2d 1, 3 (Tex.App.San Antonio 1995, no writ) (refusing to consider appellant’s complaints with respect to motion for continuance because trial court did not rule on motion). We overrule the Mitchells’ second point of error.

Exclusion of Evidence

In points of error one and' eleven, the Mitchells complain of the exclusion from evidence of certain exhibits. In points of error nine and ten, the Mitchells contend the trial court erred in excluding certain testimony.

We review a trial court’s rulings on the admission or exclusion of evidence for an abuse of discretion. United Blood Svcs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court will not reverse an erroneous ruling on the exclusion of evidence unless the ruling probably caused the rendition of an improper judgment. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.2000).

1. Exhibits

In point of error one, the Mitchells contend the trial court erred in excluding exhibits 41 and 84. With respect to exhibit 41, however, counsel for the Mitchells, after initially offering exhibit 41 for admission, subsequently withdrew that offer. Having withdrawn its offer of exhibit 41, the trial court never ruled on its admissibility. Accordingly, the Mitchells cannot show that the trial court abused its discretion in not admitting that exhibit. See Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 777 (Tex.App.-Corpus Christi 1999, pet. denied).

Likewise, admission of exhibit 84 was never ruled upon. Prior to trial, the Mitchells’ attorney stated, “Your Honor, I have a complete book of 88 exhibits in here, none ■ of — all of which will not be admitted, but I’m going to give the Court all 88.” (Emphasis supplied.) Out of those eighty-eight exhibits, the parties discussed the admission of twelve of them. The Bank agreed to and the trial court admitted exhibits seven, thirty-four, thirty-six, and fifty. The Mitchells withdrew exhibit 3. After considering the Bank’s objections, the trial court admitted exhibits four, five, six, thirty-eight, thirty-nine, and eighty-eight. The trial court sustained the Bank’s objection to exhibit eighty-nine. Exhibit eighty-four was not discussed at this time and the Mitchells never offered it during the trial. Accordingly, the Mitch-ells cannot show the trial court abused its discretion in not admitting that exhibit. We overrule the Mitchell’s first point of error.

In point of error eleven, the Mitch-ells complain of the exclusion of exhibits three and eight. We have already addressed exhibit three and concluded that trial court did not abuse its discretion because the Mitchells withdrew the exhibit. The Mitchells’ argument that the trial court erred in excluding exhibit eight fails for the same reason as exhibit eighty-four discussed above. There is no indication in the record that the Mitchells ever offered exhibit eight either prior to or during the trial. Thus, the trial court did not abuse its discretion in excluding exhibit eight. We overrule the Mitchells’ eleventh point of error.

2. Testimony

In point of error nine, the Mitchells contend the trial court erred in excluding testimony as to the intrinsic or sentimental value of the lost property. The Bank counters the trial court properly excluded this testimony because the Mitchells failed to provide this information in response to discovery.

It is well established in Texas that no recovery is allowed unless liability has been established. In the absence of liability, the question of damages becomes immaterial. Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex.App.-Houston [1st Dist.] 1987, writ refd n.r.e.). The jury found that the Bank was not liable for the Mitchells’ damages. We have held that the evidence is sufficient to support this finding. Accordingly, the exclusion of any evidence on the issue of damages is harmless because it could not have resulted in the rendition of an improper judgment. We overrule the Mitchells’ ninth point of error.

In point of error ten, the Mitchells contend the trial court erred in excluding their evidence on attorney’s fees. A prevailing party may recover attorney’s fees in a suit on a contract. Tex Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 1997). Because the Mitchells did not prevail in their lawsuit, any error in excluding this testimony, if any, was harmless. We overrule the Mitchells’ tenth point of error.

Sufficiency of Evidence

In their third point of error, the Mitch-ells complain of the jury finding that the Bank did not breach the contract. They make two arguments under this point of error. First, they assert the trial court erred in submitting the question to the jury because whether a contract has been breached is a question of law. Second, they assert the evidence does not support the jury finding.

With regard to their first assertion, rule 272 of the Texas Rules of Civil Procedure, requires a party to object to the court’s charge, either orally or in writing, before the court reads the charge to the jury. Tex.R. Crv. P. 272; State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992). If the party does not present the objections to the court before the court reads the charge to the jury, he waives his objection. Tex.R. Civ. P. 274; Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762, 769 (Tex.App.-Dallas 1993, writ denied). The record must show that the party presented the objections to the eourt for its ruling. Id. Objections to the court’s charge in a motion for a new trial are untimely and preserve nothing for review. Id. The Mitchells complained of the jury question in their motion for new trial, but they did not complain about the question before the court read the charge to the jury. We conclude the Mitchells have waived their assertion of charge error because they made no objection to the court’s charge prior to the trial court reading it to the jury.

We turn now to the Mitchells assertion that the evidence is insufficient to support the jury finding that the Bank did not breach the contract. In contrast, an appellant attacking the legal sufficiency of an adverse jury finding on which he had the burden of proof must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam). In reviewing such a claim, we first examine the record for evidence supporting the jury’s finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). . If there is no evidence to support the fact finder’s answer, only then will we review the entire record to assess whether the contrary proposition was established as a matter of law. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). If an appellant challenges a jury finding regarding an issue upon which the appellant had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 241. In reviewing this challenge, we consider all of the evidence in determining whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King’s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951). We may reverse and remand for a new trial if we conclude the jury’s failure to find is against the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

The Mitchells contend the Bank breached the contract by failing to send the required pre-drilling notice to their correct address. The safety deposit box contract provides: “Lessee shall notify Lessor in writing of any change of Lessee’s address. All communications may be sent to Lessee at the address reflected on the Lessor’s records.” The Mitchells contend that the evidence introduced at trial along with the newly discovered documents establish that they met their obligation to notify the bank of their address change. At trial, Timothy Mitchell testified that he notified the Bank of their change of address, but he did not remember how he provided the notice. The record does not contain any evidence that the Mitchells sent correspondence to the Bank alerting it to an address change. The Bank’s records reflected several addresses for the Mitchells. The Bank sent the required notice to one of the addresses reflected in its records. This evidence supports the jury finding that the Bank did not breach the contract. We overrule the Mitchells’ third point of error.

Jury Argument

In their fourth, fifth, and sixth issues, the Mitchells contend that counsel for the Bank made improper jury arguments.

The standard of review for improper jury argument requires reversal under the following circumstances: (1) there is error in the argument, (2) it was not invited or provoked, (3) the error was preserved by an objection, motion for mistrial, or motion to instruct, (4) the error was not curable by instruction, reprimand by the judge, or proper withdrawal of the statement, and (5) the argument by its nature, degree and extent constituted reversible harmful error. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979).

The Mitchells assert counsel for the Bank committed three instances of incurable jury argument. However, the record reveals that the Mitchells did not object to the complained — of arguments at the time they were made, and so have failed to preserve error. Hagen v. Jameson, 127 S.W.3d 387, 388 (Tex.App.-Dallas 2004, no pet.); Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 477 (Tex.App.-Dallas 2003, pet. denied). We overrule the Mitchells’ fourth, fifth, and sixth points of error.

Newly Discovered Evidence

In their seventh point of error, the Mitchells contend the trial court erred in denying their motion for new trial based on newly discovered evidence. They contend this new evidence shows that they provided the Bank with notice of their current address.

We review a trial court’s ruling on a motion for new trial based on newly discovered evidence for an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003). A party seeking a new trial on the ground of newly discovered evidence must show the trial court that: (1) the evidence has come to his knowledge since the trial; (2) it was not owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted. Jackson, 660 S.W.2d at 809; Finlan, 27 S.W.3d at 240.

In their motion for new trial, the Mitchells argued that they had recently discovered four documents that they contend represented notices by them to the Bank of their most recent address. These four documents were: (1) an envelope from the Bank postmarked June 27, 2995 addressed to the Mitchells at their current address; (2) a June 27, 1995 notice from the Bank of a returned check fee containing the Mitchells’ names and current address; (3) a July 10, 1995 letter from Timothy Mitchell to the Bank on the Mitchell law firm letterhead reflecting their current address; and (4) a $30.00 check with the Mitchells’ names and current address payable to the Bank.

At trial, the Mitchells introduced a copy of a bank statement for July, 1994 and 1994 and 1995 tax forms sent to the Mitch-ells at their current address. This evidence showed that the Bank had the Mitchells’ current address. Accordingly, the four newly discovered documents are merely cumulative of evidence that the Mitchells introduced at trial. Because these documents are cumulative of trial evidence, the Mitchells failed to meet the required showing for a new trial based on newly discovered evidence. See Jackson, 660 S.W.2d at 809; Finían, 27 S.W.3d at 240. We overrule the Mitchells’ seventh point of error.

Implied Duty to Cooperate

In point of error eight, the Mitch-ells contend the Bank breached an implied duty to cooperate. The Mitchells did not raise the implied duty to cooperate claim in its pleadings. This new theory of recovery cannot be raised for the first time on appeal. Tex.R.App. P. 33.1; Sher v. Fun Travel World, Inc., 118 S.W.3d 500, 503 (Tex.App.-Dallas 2003, no pet.). Accordingly, we overrule the Mitchells’ eighth point of error.

Constitutional Claims

In points of error twelve and thirteen, the Mitchells contend they were deprived of their constitutional rights to due process and to confront witnesses. Specifically, they contend those rights were violated by the Bank’s failure to produce documents and the trial court’s failure to abide by a rule 11 agreement and an agreed continuance. In their fourteenth point of error, they assert improper jury argument deprived them of their constitutional rights to due process and cross-examination.

As a rule, a claim, including a constitutional claim, must first be raised in the trial court in order for it to be considered on appeal. Tex.R.App. P. 33.1(a); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993). Because the Mitchells did not raise these constitutional claims in the trial court, we do not address them on appeal. See Elbar, Inc. v. Claussen, 774 S.W.2d 45, 53 (Tex.App.-Dallas 1989, writ dismissed). We overrule the Mitchells’ twelfth, thirteenth, and fourteenth points of error.

Costs

In their final point of error, the Mitchells contend the trial court erred in awarding costs to the Bank. We review a trial court’s award of costs under an abuse of discretion standard. Hasty Inc. v. Inwood Buckhom J.V., 908 S.W.2d 494, 502 (Tex.App.-Dallas 1995, writ denied). Absent an abuse of discretion, we will not reverse the trial court’s assessment of costs. Id.

Rule 131 states: “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex.R. Civ. P. 131. The Bank was the successful party in this lawsuit. Accordingly, the trial court did not err in awarding costs to the Bank. We overrule the Mitchells’ fifteenth point of error.

We affirm the trial court’s judgment.