author: Justice ROSS.

text:
    Ram SITARAM and Tom Naug, Appellants, v. AETNA U.S. HEALTHCARE OF NORTH TEXAS, INC., and NYLCare Health Plan, Inc., Appellees.
    No. 06-03-00089-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 12, 2004.
    Decided Dec. 23, 2004.
    Rehearing Overruled Jan. 25, 2005.

      Barrett W. Stetson, Law Firm of Barrett W. Stetson, S. Stewart Frazer III, Dallas, for appellants.
    John B. Shely, M. Katherine Strahan, Dennis N. Ryan, Andrews & Kurth, LLP, Dallas, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Ram Sitaram and Tom Naug (together, Sitaram), independent insurance agents, sued Aetna U.S. Healthcare of North Texas, Inc. (AUSHC) and NYLCare Health Plans, Inc. (NYHPI) for breach of a settlement agreement. The trial court granted summary judgment in favor of AUSHC and NYHPI, and Sitaram appeals.

A substantial number of corporate acquisitions by Aetna, Inc. (Aetna), and a divestiture order, resulting from an antitrust action in federal court, led to questions of whether Aetna or one of its subsidiaries became liable under a settlement agreement entered into by Sitaram and Texas Sanus Health Plan, one of the purchased corporations. Ultimately, the issue is whether the summary judgment evidence raised a genuine issue of material fact regarding whether one of Aetna’s corporate entities was a “successor in interest” under the settlement agreement at issue. Because the record does not reveal a fact issue regarding whether one of Aet-na’s corporate entities assumed, either by statute or express agreement, Sanus’ (now NYLCare SW’s) liabilities, we affirm the summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

A. The GTE Contract and a Settlement Among the Parties (1989-1993)

In 1989, Sitaram obtained GTE (now Verizon) as a client for Sanus. All parties agree that, for approximately five years, Sanus paid Sitaram one percent of the gross premiums paid by GTE for healthcare coverage.

In 1993, Sanus ceased making payments to Sitaram. This caused a dispute between Sitaram and Sanus, which was resolved through a settlement agreement that same year. Sitaram’s claims in the lawsuit underlying this appeal center on three provisions of this 1993 Settlement:

(1) .... The obligations of this Agreement may not be avoided by a change of name or location, sale or transfer of these [GTE] accounts to any parent, subsidiary or affiliate. In the event of a sale, merger, or acquisition of SANUS, this Agreement shall be binding upon the successor in interest.
(5) SANUS agrees to future payments equal to one percent (1%) of the net premium received from GTE from October 1, 1993, until such time as GTE is no longer a client of SANUS for all of the GTE divisions doing business with SANUS as of October 1,1993,....
(13) It is understood and agreed that this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors, and assigns.

At some point in the years between 1993 and 1998, Sanus became NYLCare SW. The record does not delve into this transition, and it is not important to the central issue in this appeal other than to identify the parties. Again, the parties do not dispute that NYLCare SW (formerly Sa-nus) paid Sitaram pursuant to the 1993 Settlement through 1998.

B. Aetna’s Acquisition of NYHPI (including NYLCare SW) (1998)

In 1998, Aetna and New York Life Insurance Company entered into an asset purchase agreement (APA) whereby Aetna purchased NYHPI, the parent corporation of NYLCare SW. Aetna thereby became the ultimate parent corporation of NYHPI and its subsidiaries, including NYLCare SW. After the transaction was finalized, AUSHC and NYLCare SW, competitors in the North Texas market before 1998, became sister affiliates, and their relationship is the focus of this appeal.

The terms of this purchase are set out in Article 2 of the APA. Sitaram focuses on certain definitions and provisions in the APA between Aetna and New York Life. Specifically, they look to the definition of “excluded liabilities” as, among others, “all Liabilities of [NYHPI] or any Subsidiary of [NYHPI] to the extent they do not arise out of or relate to [NYHPI].”

C. AUSHC and NYLCare SW Relationship: Negotiations to “Renew” GTE Contract (1998-1999)

From March 1998 to June 1999, Sitaram continued to receive payments pursuant to the 1993 Settlement. According to the summary judgment evidence, the process of integrating certain functions of AUSHC and NYLCare SW began after the acquisition in the spring of 1998. Functions such as marketing, sales, and certain administrative services for NYLCare SW were coordinated with those of other Aetna affiliates, including sister affiliate AUSHC.

In the spring of 1999, GTE began to solicit proposals from several Dallas area health plans for its employee healthcare coverage for 2000. In May 1999, AUSHC submitted a proposal to GTE. AUSHC and NYHPI concede NYLCare SW did not initially submit a separate option to GTE. Instead, the AUSHC plan was “jointly presented to GTE on behalf of AUSHC and NYLCare SW.” Negotiations between AUSHC/NYLCare SW and GTE then began. The record contains several hundred e-mail messages from within the corporations regarding the “GTE Renewal Presentation.”

D. Antitrust Action and End of NYL-Care SW and GTE Relationship (June-December 1999)

In June 1999, this arguably collaborative effort between AUSHC and NYLCare SW ended when a federal court ordered Aetna and its subsidiaries to divest itself of certain Texas healthcare subsidiaries, NYL-Care SW included. Pending the divestiture, Aetna was ordered to hold out those subsidiaries as competing health plans.

It was only after the federal court order when NYLCare SW made a separate proposal to GTE for employee healthcare coverage for the year 2000. Ultimately, GTE, uncertain as to the future of NYLCare SW, rejected NYLCare SW’s separate, later proposal and instead chose to do business with AUSHC. GTE formally ceased doing business with NYLCare SW in January 2000.

From the time the federal court issued its divestiture order until the completion of the divestiture, NYLCare SW “continued to be held out as a competitor” of AUSHC in the Dallas area. NYHPI sold NYLCare SW to Health Care Service Corporation in March 2000.

E. AUSHC’s Business Relationship with GTE and Early Stages of Litigation

GTE continued to do business with AUSHC until January 1, 2002. In February 2001, Sitaram filed suit against AUSHC for breach of thé 1993 Settlement. Sitaram alleged that AUSHC became a “successor in interest” under the terms of the 1993 Settlement and that AUSHC was liable to them under that agreement for premiums GTE paid to AUSHC during the years 2000 and 2001.

AUSHC moved for summary judgment on the ground that Sitaram had sued the wrong party. In response, Sitaram moved for leave to join five additional Aetna entities as parties. In an effort to reduce the amount of discovery, the trial court ordered AUSHC to stipulate as to the Aetna entity, if any, that would possibly be liable under Sitaram’s theory of recovery. AUSHC designated in writing that NYH-PI is the only party against whom Sitaram could pursue their claims:

To the extent that having at one time been the parent corporation of Sanus [now NYLCare SW] creates any potential legal obligation against any Aetna entity under [NYLCare SW’s] agreement with Plaintiffs, which AUSHC expressly denies, AUSHC stipulates that NYHPI is the only Aetna entity against which Plaintiffs could pursue their claim.

F.Sitaram’s Claims and AUSHC’s and NYHPI’s Motions for Summary Judgment

In its amended petition, Sitaram made the following allegations:

IV.
Alternatively, and without prejudice to the foregoing, Plaintiffs allege that NYHPI is the successor in interest. Plaintiff[s] further allege[ ] that after acquiring NYLCare [SW] that “NYHPI” assigned or gave the GTE account to AUSHC. Plaintiff[s] allege[ ] that NYHPI directed and controlled the GTE account after the acquisition of NYLCare [SW].
VI.
In 1998, Sanus then doing business as NYLCare [SW], was sold to Aetna. During the calendar year of 1999 Aetna ... paid Plaintiffs pursuant to the 1998 settlement agreement. Aetna was a successor in interest to NYLCare [SW] f/d/b/a Sanus Texas Health Plan Inc. as that term is affirmed in the settlement agreement.

AUSHC moved for summary judgment on the following two grounds:

A. AUSHC is neither a party to the [1993 Settlement] nor a successor-in-interest to the contracting party, and, therefore, is not bound by the terms of the [1993 Settlement].
B. There has been no breach of the [1993 Settlement] because there has been no obligation of payment since GTE terminated its business relationship with NYLCare SW.

Similarly, NYHPI moved for summary judgment on the following two grounds:

1. NYHPI remained a separate corporation from NYLCare SW and, as a matter of law, is not liable for any obligation of NYLCare SW under the [1993 Settlement]; and
2. There is no breach of the [1993 Settlement] because there has been no obligation of payment since GTE terminated its business relationship with NYLCare SW.

The trial court granted summary judgment on both grounds as to both parties. Summary judgment was expressly not granted on the ground that Sitaram had sued the wrong corporate affiliate.

II. ADDITIONAL STIPULATION ISSUE

As noted, following AUSHC’s motion for summary judgment based on the ground that Sitaram had sued the wrong entity, Sitaram moved for leave to join five additional parties. To avoid the delay and paperwork involved in such a joinder, the trial court ordered AUSHC to stipulate as to which Aetna entity, if any, would be liable under Sitaram’s allegations. AUSHC designated NYHPI, NYLCare SW’s former parent corporation, as such entity.

Sitaram’s counsel was perplexed by the designation of NYHPI as the potentially liable party since NYHPI did not appear to be involved in this matter to such an extent. When he expressed his concern regarding NYHPI’s role in this matter and his confusion over AUSHC’s identifying NYHPI as the potentially responsible party, opposing counsel referred to the written stipulation: “He has the stipulation, Your Honor, and that’s — that’s better than reams of discovery.” Then the following exchange occurred:

[Sitaram’s Counsel]: I’ll take them at their word then that that’s — that if we prove it as — if we prove [AUSHC] retains the account, then [NYHPI] would be responsible for the payment of the commission.
THE COURT: Is that fair?
[AUSHC and NYHPI’s Counsel]: As stipulated.
THE COURT: Okay. All right, fine.
[Sitaram’s Counsel]: That works for me.

It is this exchange from which Sitaram’s counsel understood that a new stipulation was reached.

A. Composition of a Rule 11 Agreement

Rule 11 provides that “[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R. Civ. P. 11; London Mkt. Cos. v. Schattman, 811 S.W.2d '550, 552 (Tex.1991).

We must determine the intention of the parties in a trial stipulation from the language used in the entire agreement “in the light of the surrounding circumstances, including the state of the pleadings, the allegations therein, and the attitude of the parties in respect of the issues.” Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 734 (Tex.App.-Corpus Christi 1994, writ denied); Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886-87 (Tex.App.-E1 Paso 1993, orig. proceeding); Mann v. Fender, 587 S.W.2d 188, 202 (Tex.Civ.App.-Waco 1979, writ refd n.r.e.). The trial court should disregard the stipulation if it is ambiguous and uncertain in its terms. Herschbach, 883 S.W.2d at 734. To have a binding, open-court stipulation, the parties must dictate into the record all material terms. Id.

15. The Record Does Not Clearly Demonstrate the Parties Agreed to an Additional Stipulation

The process by which AUSHC designated NYHPI as the party who would have been liable is not entirely clear, and Sitaram’s counsel believed the parties had agreed to a new, clearer stipulation. However, the record does not support such a conclusion for two related reasons: 1) the uncertainty of the alleged oral agreement and AUSHC’s and NYHPI’s assent thereto, and 2) the .circumstances surrounding the execution of the prior written stipulation. See id.; Baskin, 855 S.W.2d at 887.

First, Sitaram’s counsel’s remarks concerning NYHPI did not thoroughly state the terms of any stipulation. More importantly, AUSHC and NYHPI’s counsel did not clearly agree to the stipulation. AUSHC and NYHPI’s counsel’s remark, “As stipulated,” appears to be a reference to the earlier written stipulation, rather than an expression of agreement to a new, oral stipulation. Based on this record, we cannot say the parties entered into a new stipulation. See Herschbach, 883 S.W.2d at 734; Baskin, 855 S.W.2d at 887.

Second, from the discussion surrounding the written stipulation, it is clear AUSHC and NYHPI were entering into the original stipulation for the sole purpose of limiting discovery and expressly rejected the notion the stipulation was an admission of liability. The trial court confirmed this purpose of the stipulation:

THE COURT: Well, I don’t want to box them in. I want them to go back and say — make sure they understand what you’re alleging, and then say: We don’t think any Aetna entity owes you a dime, but under what you’re alleging in your view of the world if we accepted that as true, it would be this Aetna entity. That’s all I’m trying to get to. And it will not be in any way an admission of liability or anything by anyone. It’s just going to get us past this issue of trying to decide who we’re suing.

Based on these statements, we cannot agree with Sitaram’s position that the exchange at issue represented a stipulation that NYHPI would be liable if Sitaram showed that any Aetna entity obtained the GTE account for the years 2000 and 2001. We conclude the record does not clearly demonstrate that AUSHC and NYHPI agreed to this additional, oral stipulation, which would effectively stipulate them out of court since, on these facts, such a stipulation would serve as an admission of liability.

The questioned exchange is uncertain in its terms and whether there was any agreement at all, and the circumstances surrounding the alleged agreement undermine its existence in that AUSHC and NYHPI clearly did not intend to admit liability in the matter. The trial court properly disregarded this alleged, additional agreement. We overrule Sitaram’s contention.

III. SUMMARY JUDGMENT

Having concluded the parties did not enter into a Rule 11 agreement that NYH-PI was liable if the evidence showed any Aetna entity obtained the GTE contract, we must now determine if the record contains a genuine issue of material fact concerning whether AUSHC or NYHPI became a successor in interest pursuant to the 1998 APA between Aetna and New York Life.

A. Standard and Scope of Review

We review the granting of a traditional motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). We are only to determine from the summary judgment evidence whether there is any genuine issue of material fact to try. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995). We accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant’s favor. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

B. Who Is and Is Not a “Successor in Interest”

It is fundamental that a contract is not binding on a nonparty. See Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 337, 341 (Tex.1968). Therefore, in order for the 1993 Settlement to have been in effect during the years 2000 and 2001, a successor in interest was required because it is uncontroverted that GTE opted to not do business with NYLCare SW as of January 1, 2000.

We begin with the general presumption in Texas: Courts will recognize the separate identities of corporations even when one corporation dominates or controls another, or even treats the other corporation as a mere department, instrumentality, or agency of the other. Pulaski Bank & Trust Co. v. Tex. Am. Bank/Fort Worth, N.A., 759 S.W.2d 723, 731 (Tex.App.-Dallas 1988, writ denied); Norton v. Integral Corp., 584 S.W.2d 932, 935 (Tex.Civ.App.-Austin 1979, no writ). This presumption applies to a parent corporation and its separate corporate subsidiary as well, presuming, again, they are distinct legal entities. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex.2002).

The Texas Business Corporation Act governs the liability of an acquiring corporation:

B. A disposition of any, all, or substantially all, of the property and assets of a corporation, whether or not it requires the special authorization of the shareholders of the corporation, effected under Section A of this article ... or otherwise:
(1) is not considered to be a merger or conversion pursuant to this Act or otherwise; and
(2) except as otherwise expressly provided by another statute, does not make the acquiring corporation ... responsible or liable for any liability or obligation of the selling corporation that the acquiring corporation ... did not expressly assume.

Tex. Bus. CoRP. Act Ann. art. 5.10(B) (Vernon 2003); C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 778 (Tex.App.-Houston [1st Dist.] 2004, no pet.). In other words, the purchase of all or substantially all of the property or assets of the seller corporation “does not make the acquiring [entity] responsible or liable for any liability or obligation of the selling corporation unless the acquiring entity expressly assumes the liability or obligation, or unless another statute expressly provides to the contrary.” Shapolsky v. Brewton, 56 S.W.3d 120, 137 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (emphasis added) (citing Tex. Bus. CoRP. Act Ann. art. 5.10(B)(2)).

When used as a legal term applying to corporations, the term “successor” has a restricted meaning. See Farm & Home Sav. Ass’n v. Strauss, 671 S.W.2d 682, 685 (Tex.App.-Dallas 1984, no writ). With respect to corporations, “successor” does not ordinarily mean an assignee. Id. Rather, a “successor” is normally used in respect to corporate entities to describe the status of a corporation which has become vested with the rights and has assumed the burdens of another corporation by amalgamation, consolidation, or duly authorized legal succession, and does not contemplate acquisition by ordinary purchase from another corporation. Id.

C. Neither AUSHC nor NYHPI Assumed the Obligation To Pay Per the 1993 Settlement

To be successful in this appeal, Sitaram must show there is some fact issue remaining regarding whether AUSHC (former sister corporation) or NYHPI (former direct parent corporation) is a successor in interest to NYLCare SW. Even though the 1993 Settlement purported to bind “successors and assigns,” such an agreement cannot contravene the protections afforded Aetna by Article 5.10(B) when it purchased the assets of NYHPI. See CM. Asfahl Agency, 135 S.W.3d at 781. Under the law on these facts, only two scenarios may result in the conclusion that Aetna assumed NYLCare SW’s liability under the 1993 Settlement: 1) a statute expressly provides that, on these facts, Aetna became hable for the 1993 Settlement obligations, or 2) Aetna expressly assumed this liability in the 1998 APA. Of course, because neither AUSHC nor NYH-PI was a party to the APA, we recognize that, even if Aetna assumed the obligation, another analytical step would be required to determine whether AUSHC or NYHPI, both subsidiaries of Aetna, would be liable for an obligation assumed by them parent corporation.

1. No Assumption Per Statute

Sitaram does not point us to — and we have not found — any statutory authority which expressly provides for assumption of liability under these facts. The record does reveal significant evidence that AUSHC and NYLCare SW had begun to integrate many corporate resources. Notably, there is also evidence Aetna paid Sitaram pursuant to the 1993 Settlement during 1999 when AUSHC and NYLCare SW were acting as sister corporations. The record also contains a great deal of evidence that AUSHC and NYLCare SW collaborated on the GTE renewal project and that AUSHC used NYLCare SW’s information and its status as an incumbent in good standing to negotiate a deal with GTE. There is evidence, too, that Aetna planned to (and arguably had begun to) integrate the two corporations. Aetna executive Nathan Eudaly, II, stated that there were plans to “convert all NYLCare [SW] paper” into Aetna paper, but those “plans were never carried through” and AUSHC and NYLCare SW remained separate and distinct HMOs at all times.

In their response to AUSHC’s motion for summary judgment, Sitaram asserted that eleven of the 1999 monthly payments were made to them via electronic funds transfer from Aetna. The summary judgment evidence lends some support to this assertion, providing two check stubs from payments made by Aetna Services, Inc., based in Hartford, Connecticut, and two remittance slips confirming deposit of funds via electronic transfer by “Aetna.” Other documentation on NYLCare SW’s letterhead provides a listing of the dates and amounts of each payment for 1999, but does not indicate the source of the payments. Eudaly stated that, at some point, Aetna took over this function, but he maintained that the payments “came from and on behalf of [NYLCare SW].”

Clearly, questions of fact are raised by the evidence of integration and the evidence of the purchasing corporation paying Sitaram’s commissions pursuant to the 1993 Settlement. These fact issues, however, are not material to the existence or application of any statutory authority under which Aetna could be said to have assumed NYLCare SW’s liabilities. See Tex. Bus. Corp. Act Ann. art. 5.10(B). We are unable to find any statutory authority which would allow such evidence to support a conclusion that the acquiring corporation became a successor in interest.

2. No Express Assumption Per Agreement

Second, under the APA between Aetna and New York Life, Aetna does not expressly assume NYLCare SW’s liabilities and obligations. Sitaram argues that the APA’s definition of “excluded liabilities” represents an express assumption by Aetna. To arrive at this conclusion, Sitar-am asks us to follow them on a series of conclusions.

Their construction begins with a portion of the definition of “excluded liabilities”: “Liabilities of [NYHPI] or any Subsidiary of [NYHPI] to the extent they do not arise out of or relate to the NYL Health Care Business.” They argue that whatever is not excluded in this definition is included. Because the 1993 Settlement “arises out of or relates to the NYL Health Care Business,” then the liabilities under the 1993 Settlement are not excluded. Rather, Si-taram contends this liability is an included liability. There are at least three flaws in this conclusion.

First, it conflicts with Article 5.10’s language requiring express assumption. Si-taram’s conclusion centers on the implied converse of the definition of “excluded liabilities,” rather than any express language indicating Aetna’s intent to assume liability under the 1993 Settlement.

Second, the import of the entire lengthy definition of “excluded liabilities” appears to address the liabilities of NYHPI or its subsidiaries, such as NYLCare SW, for which New York Life would no longer be potentially liable as the parent corporation.

Finally, the only other reference to “excluded liabilities” in that portion of the APA before us is not a reference to assumption of liability by Aetna. Rather, the term is used with reference to what must be and need not be included on the “Preliminary Closing Balance Sheet” to be provided on the closing of the purchase between Aetna and New York Life. “Excluded liabilities,” according to the APA, need not be included in this documentation. It is a tenuous connection we would have to make to read this reference as an assumption of liability by Aetna, and a far more tenuous connection to go so far as reading this as an assumption of liability by nonparty subsidiaries AUSHC or NYH-PI. Sitaram’s usage of “excluded liabilities” stretches the use of this term in the APA beyond what either party plainly intended. The record therefore does not reveal remaining genuine issues of fact regarding whether, in the APA, Aetna expressly assumed NYLCare SW’s obligations to Sitaram.

IV. CONCLUSION

The parties agree that, in order for there to be any obligation under the 1993 Settlement, there must have been a successor in interest to the 1993 Settlement. As used with respect to corporations, the term “successor” has a specialized meaning beyond simple acquisition. Texas courts generally recognize the distinction among corporate affiliates, even when one clearly dominates the other. In order for there to be a successor in interest, Aetna was required to expressly assume the liabilities of NYHPI, or there must be another statute which expressly provides for such assumption of liability on these facts. See Tex. Bus. CoRP. Act Ann. art. 5.10(B); Shapolsky, 56 S.W.3d at 137. We have found no such language in the 1998 APA and no such statutory authority.

While we find some evidence giving rise to genuine issues of fact, these fact issues have no bearing on the material issue here, i.e., whether AUSHC or NYHPI assumed liability pursuant to either statutory provision or by agreement. Thus, we cannot conclude that the record demonstrates a remaining genuine issue of material fact.

We overrule Sitaram’s points of error and affirm the summary judgment.

      . Naug died October 26, 2003. Sitaram, acting as executor of Naug’s estate, moved this Court to allow him to act as a substitute for Naug in this appeal. We granted Sitaram's motion, allowing him to represent himself individually and as representative of Naug’s estate. For clarity’s sake throughout this opinion, we will not refer to Sitaram's dual capacity on appeal and, instead, refer to Si-taram and Naug, together, as "Sitaram.”

      . Had this transaction constituted a merger of Aetna and NYHPI, Sitaram would have been afforded special protections. See Tex. Bus. Corp. Act Ann. art. 1.02(A)(18) (Vernon Supp. 2004-2005). In the instance of a merger, in the absence of specific language to the contrary, both assets and liabilities of the acquired entity are transferred to the surviving entity. See Duke Energy Field Servs. Assets, L.L.C. v. Nat'l Union Fire Ins. Co., 68 S.W.3d 848, 851 (Tex.App.-Texarkana 2002, pet. denied). Here, the transaction between Aetna and New York Life was an asset purchase agreement rather than a merger. See In re Cap Rock Elec. Coop., Inc., 35 S.W.3d 222, 228 (Tex.App.-Texarkana 2000, no pet.) (1991 merger agreement titled "An Agreement to Combine ...” provided that one entity was to be legally dissolved and all members of the dissolved entity automatically became members of the surviving entity with their patronage capital vested in the surviving entity). Here, we note the nature of the transaction as evidenced by the APA and the ample evidence that NYLCare SW continued to exist after the transaction. Therefore, Sitaram does not enjoy the protections offered had this transaction constituted a merger.

      . See United States v. Aetna Inc., No. 3-99CV 1398-H, 1999 WL 1419046 (N.D.Tex. Dec. 7, 1999).

      . According to figures provided by AUSHC and NYHPI, the premiums GTE paid to AUSHC for the years 2000 and 2001 were $12,096,471.00.

      . Citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.1970), AUSHC and NYHPI argue that the Court should affirm the trial court’s summary judgment because Sitaram failed to challenge one of the two grounds on which AUSHC and NYHPI sought and received summary judgment. We have treated Sitaram’s issues as fairly including subsidiary issues. See Tex.R.App. P. 38.1(e). By arguing that another corporate entity became a successor in interest to the GTE account, Sitar-am impliedly challenge AUSHC and NYHPI’s ground that the 1993 Settlement expired by its own terms when GTE no longer did business with NYLCare SW. By order dated January 27, 2004, we granted Sitaram’s request to supplement its brief with one which separately addresses this issue. See Tex.R.App. P. 38.7.

      . We recognize that the parties’ stipulation forecloses us from going behind the agreement to examine the issues to which the parties stipulated. See Missouri Pac. R.R. Co. v. Whittenburg & Alston, 424 S.W.2d 427, 428 (Tex.1968).

      . Other jurisdictions have cited Strauss and agreed that the term ‘‘successor in interest,” when used with respect to corporate mergers and acquisitions, is a term with a meaning beyond mere acquisition. See Aldrich v. ADD Inc., 437 Mass. 213, 770 N.E.2d 447, 453 (2002); Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553, 557 (2001).

      . Texas strongly embraces the nonliability rule. Lockheed Martin Corp. v. Gordon, 16 S.W.3d 127, 139 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). Article 5.10(B) eliminates the "de facto merger” doctrine, the third exception to the nonliability rule under the Restatement. See Tex. Bus. Corp. Act Ann. art. 5.10(B)(1); see also Suarez v. Sherman Gin Co., 697 S.W.2d 17, 20 (Tex.App.-Dallas 1985, writ ref'd n.r.e.) (finding “the legislature’s prompt action to override” W. Res. Life Ins. Co. v. Gerhardt, 553 S.W.2d 783 (Tex.Civ. App.-Austin 1977, writ ref’d n.r.e.), and "statutorily preclude application of the de facto merger doctrine in Texas clearly states a public policy opposed to the doctrine"). In Mud-gett v. Paxson Mach. Co., 709 S.W.2d 755, 758-59 (Tex.App.-Corpus Christi 1986, writ ref’d n.r.e.), the Corpus Christi Court of Appeals rejected the "mere continuation” theory, the fourth exception recognized by the Restatement, as contrary to the legislative intent of Article 5.10(B).

      . Not reproduced in full in the record.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    Thurman Ross MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00040-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 12, 2004.
    Decided Jan. 4, 2005.

      Ebb B. Mobley, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Thurman Ross Mayfield appeals from his conviction of two counts of aggravated robbery. The jury assessed his punishment at fifty years’ imprisonment on each count. The sentences are concurrent. He contends the trial court erred by overruling his motion to suppress evidence obtained from a suggestive photographic lineup.

The evidence shows that the victim in one count, Ricky Crain, was approached while walking home from his job by a black male who walked and talked with him for a couple of minutes. The man then pulled a knife on Crain and took his sun visor, shoes, and pager. Crain was not carrying any money.

The following day, June 15, 2003, the victim in the other count, Craig Ansel, was approached by a black male while waiting at the bus terminal. The man chatted with Ansel for a while and then pulled a knife on Ansel and demanded money. An-sel gave him his wallet. Mayfield was arrested almost immediately, and Ansel identified him as the robber.

On June 16, police detective David Cheatham took a photographic array of six individuals to Crain’s home. Crain identified Mayfield as the robber. The contentions raised in this appeal do not question Ansel’s identification of Mayfield, but only Crain’s identification of Mayfield as the person who robbed him.

After a pretrial hearing, the trial court denied Mayfield’s motion to suppress. At trial, Crain identified Mayfield as the robber. Counsel did not object to the in-court identification.

We have recently addressed a similar situation in Wallace v. State, 75 S.W.3d 576, 584 (TexApp.-Texarkana 2002), rev’d on other grounds, 106 S.W.3d 103 (Tex. Crim.App.2003).

The underlying basis for a complaint about identification is that a pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Wallace, we recognized that, generally, the defendant’s attack is against an in-court identification as being tainted by an impermissibly suggestive pretrial identification procedure. In this case, Mayfield filed a motion to suppress the identification, with the hearing held outside the jury’s presence. See Barley v. State, 906 S.W.2d 27, 32 (Tex.Crim.App.1995). As part of that proceeding, counsel also complained that any in-court identification would be tainted by the pretrial identification procedure. Specifically, counsel stated, “Basically we’re just asking that you suppress the photo I.D. We’re asking that you suppress any evidence — I mean any testimony from the witness based on the photo I.D. due to the suggestive nature of it.” We do not approve of the array used in this case. Using a photograph of the suspect wearing distinctive jail clothing along with five other individuals wearing normal clothing in the array is impermissi-bly suggestive. See Turner v. State, 614 S.W.2d 144, 146 (Tex.Crim.App. [Panel Op.] 1981). The more serious question is whether that objection has been waived.

In Wallace, the defendant objected to the introduction of the photographic array, but did not object to the in-court identification of the defendant by the witnesses who had viewed the array. Wallace, 75 S.W.3d at 584. When a defendant is contending the in-eourt identification was improperly suggested by a photographic array, we recognized in Wallace that there should have been a trial objection to such identification made by the witnesses who viewed the array. Id. The failure to complain about or object to in-court identifications constituted a procedural default and waiver of any complaint on appeal. In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Here, the events are different. When the photographic array was offered at trial, counsel stated, “No objection,” thereby waiving the previous objection made at the suppression hearing to such an array. However, when Crain identified Mayfield as the robber, counsel made no comment. The question is whether counsel’s waiver of the objection to introduction of the photographic array also effected a waiver of the objection to the in-court identification based on the impermissible suggestiveness of that array. We find that it did not.

When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Wyle v. State, 111 S.W.2d 709, 715 n. 5 (Tex.Crim.App.1989); Livingston v. State, 739 S.W.2d 311, 334 (Tex.Crim.App.1987); Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App.1985); Welch v. State, 993 S.W.2d 690, 694 (Tex.App.-San Antonio 1999, no pet.); Bennett v. State, 831 S.W.2d 20, 21 (Tex.App.-El Paso 1992, no pet.); see Tex.R. Evid. 103(a)(1). However, when the defendant affirmatively asserts during trial that he or she has “no objection” to the admission of the complained-of evidence, he or she waives any error in the admission of the evidence despite the pretrial ruling. Livingston, 739 S.W.2d at 334; Gearing, 685 S.W.2d at 329; Montes v. State, 876 S.W.2d 538, 539 (Tex.App.-El Paso 1994, no pet.).

We conclude that, even though the complaint to the introduction of the photographic array itself was waived by the “[n]o objection” comment, the complaint about the taint arising from that array was not. That objection had been properly presented during the suppression hearing and was not affirmatively waived during trial and remained viable. Therefore, we will analyze the admissibility of the in-court identification of Mayfield by Crain.

Determining the admissibility of an in-court identification involves a two-step analysis: (1) whether the out-of-court identification procedure was impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Barley, 906 S.W.2d at 33. A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was im-permissibly suggestive. Barley, 906 S.W.2d at 33-34. The analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 33; Morrow v. State, 139 S.W.3d 736, 741 (Tex.App.-Texarkana 2004, no pet.). We have found that the procedure was impermissibly suggestive and that May-field has met the first step in the analysis.

In considering the second factor,

five non-exclusive factors should be “weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances”: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.

Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999); see Neil v. Biggers, 409 U.S. 188,199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We are to consider the five Biggers factors, all issues of historical fact, deferentially in a light favorable to the trial court’s ruling. Ibarra, 11 S.W.3d at 195. The factors, viewed in this light, are then to be weighed de novo against “the corrupting effect” of the suggestive pretrial identification procedure. Id. at 195-96; Loserth v. State, 963 S.W.2d 770, 773-74 (Tex.Crim.App.1998).

Even though we have concluded that the identification procedure was im-permissibly suggestive, we find that it did not create a substantial likelihood of irreparable misidentifieation. The record clearly demonstrates that the in-court identification by Crain was of an independent origin. Crain testified unequivocally that his identification was based on his observations at the time of the offense. He testified he walked and talked with the defendant, in the light of day, for several minutes before being robbed, and he saw the robber’s face clearly. Crain testified that there was “[n]o doubt” that Mayfield was the robber and that he remembered Mayfield “[f]rom that day that it happened.” Crain provided a description of the robber and the clothing he was wearing that was consistent with Mayfield’s actual appearance. Crain’s in-court identification occurred approximately nine months after the robbery. Based on the facts recited above, the trial court could reasonably conclude Crain had an adequate opportunity to observe Mayfield and formulate a basis for his in-court identification. Weighing this evidence of reliability against the suggestiveness of the pretrial identification procedure, we conclude that no substantial risk of irreparable mis-identification was created to deny May-field due process. See Simmons, 390 U.S. at 384, 88 S.Ct. 967. The contention of error is overruled.

We affirm the trial court’s judgment.


author: Justice MOSELEY.

text:
    Frederick L. SELZ, Appellant, v. FRIENDLY CHEVROLET, LTD., Appellee.
    No. 05-03-00430-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 6, 2005.

      Carmen Carrasco Urias, Irving, for Appellant.
    Jeffrey L. Clark, Kelsoe, Anderson, Khoury & Clark, P.C., Dallas, for Appel-lee.
    Before Justices MOSELEY, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice MOSELEY.

Frederick L. Selz sued Friendly Chevrolet, Ltd. alleging Friendly refused to pay him pursuant to the terms of a written compensation agreement. The trial court granted summary judgment on Selz’s claims. For the reasons that follow, we affirm the trial court’s judgment.

Factual and Procedural Background

In August 2001, Friendly hired Selz, who was then living in Georgia, to be a general sales manager in Dallas, Texas. Selz and his family moved to Dallas. It is undisputed that Selz was an at-will employee. On September 9, 2001, Selz and John Trautman, Friendly’s general manager, signed a written compensation agreement, titled “Payplan.” On November 15, 2001, Friendly fired Selz.

Selz sued Friendly. Friendly answered, generally denying the allegations and specifically alleging the affirmative defense of payment and that Selz had been an at-will employee. Friendly filed a motion for summary judgment and a supplemental motion for summary judgment that included both traditional and no-evidence grounds. Attached as an exhibit to one of the affidavits filed in support of Friendly’s original or supplemental motion was a copy of the Payplan. (In his brief, Selz states that the “Payplan” Friendly submitted with its supplemental motion for summary judgment is the parties’ written compensation agreement.)

Selz filed a response, a supplemental response, and a two affidavits directed to the merits of his claims. The first hearing on Friendly’s motion was continued, and the final hearing was held on March 11, 2003. Eight days before the final hearing, Selz filed his response to Friendly’s supplemental motion, as well as his second amended petition. Accordingly, the second amended petition is Selz’s active pleading as of the final hearing.

In his second amended petition, Selz alleged three “counts”: breach of contract, promissory estoppel, and fraudulent misrepresentation. Under his breach of contract count, Selz alleged that he was not paid a $16,000 per month base salary and 2.25 percent of gross profits pursuant to the parties’ written agreement. Under his promissory estoppel count, Selz alleged that in reliance on the promise of $16,000 monthly salary and 2.25 percent of gross profits, he and his family moved to Texas, his wife resigned from her employment, and Selz “incurred expenses pursuant to relocation and to his detriment.”

Under his fraudulent misrepresentation count, Selz alleged: (1) Friendly represented to him that his salary would be $16,000 per month, commissions of 2.25 percent of gross profits, and the agreement would be reduced to a written contract; (2) Friendly’s promise was material to Selz’s acceptance of the employment offer and relocation; (3) the representation was false because Friendly “failed to keep promise to [Selz] by failing to conform agreement to a written contract and refusing to pay for relocation expenses agreed upon”; (4) Friendly made the representation with the intent that Selz would accept the employment offer; (5) Selz relied on this representation by accepting the position and relocating his family; and (6) because of Selz’s reliance on Friendly’s representation, Selz suffered injury “including loss of earning capacity and loss of wages and commission.”

After the March 11 hearing, the trial court specifically granted Friendly’s motion for summary judgment and supplemental motion, but without stating the grounds on which it relied, and ordered that Selz take nothing on each of his claims. This appeal timely followed. In three issues, Selz challenges the summary judgment granted in Friendly’s favor on each claim on the grounds that the cause of action “should have been sustained in light of the evidence before the trial court.”

Adequate Time FOR DiscoveRY

Before addressing the evidence before the trial court, we first address the argument embedded in Selz’s brief that “there was a genuine issue of material fact” because the discovery period had not ended by the time the order granting summary judgment was entered and Selz had not yet requested production of the documents to prove his claim. The production or non-production of documents is not germane to whether the summary judgment record supports the trial court’s judgment — either it does or it does not. Rather, we interpret Selz’s argument as a contention that the trial court abused its discretion in ruling on Friendly’s motions for summary judgment before the end of the discovery period because it failed to give Selz adequate time to respond to the motion.

However, when a party “contends that it has not had adequate time for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” Tenneco Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 647 (Tex.1996) (citing Tex. Rs. Civ. P. 166a(g), 251, 252). Neither of Selz’s responses to Friendly’s motions for summary judgment was verified. Nor is there an affidavit explaining the need for further discovery or a verified motion for continuance in the record on appeal. Accordingly, we reject any argument that the trial court erred in granting summary judgment in Friendly’s favor because of lack of adequate time for discovery. We now turn to the issues of whether the trial court erred in granting summary judgment “in light of the evidence before the trial court.”

STANDARD OP REVIEW AND APPLICABLE LAW

The standard of review in a traditional summary judgment case is well-established. See Tex.R. Civ. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). In reviewing a summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference in favor of the nonmovant is allowed, and all doubts are resolved in its favor. Id. To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiffs cause of action. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.-Dallas 1992, writ denied). We note that payment is an affirmative defense under rule of civil procedure 94. See Tex.R. Civ. P. 94; Southwestern Fire & Cas. Co. v. Larue, 367 S.W.2d 162, 163 (Tex.1963); Rea v. Sunbelt Sav., FSB, 822 S.W.2d 370, 372 (Tex.App.-Dallas 1991, no writ).

Rule 166a(i) also permits a party to file a “no-evidence” motion for summary judgment:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex.R. Civ. P. 166a(i). “The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Tex.R. Civ. P. 166a(i) Notes & Cmts.

When the trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, the summary judgment will be affirmed on appeal if any theory advanced has merit. Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Discussion

Selz argues that he presented evidence as to each of his claims, thus precluding summary judgment in Friendly’s favor. There appears to be no dispute about the terms of the Payplan. Selz would be paid a monthly “guaranteed draw against commission” of $16,000, a 2.25 percent commission on the monthly amount of Friendly’s gross profits, and a year-end bonus. The Payplan also provided that Friendly would “reimburse one month housing and moving expenses.”

Payment of Salary and Commissions

In its supplemental motion for summary judgment, Friendly asserted that its affirmative defense of payment was established as a matter of law. In support of its motion, Friendly attached the affidavit of Mark Eddins, Friendly’s president. Eddins identified the “Payplan” (which was attached to his affidavit), signed by both Selz and Trautman, as the parties’ written compensation agreement and stated that Selz was “paid all amounts due in accordance with said written compensation agreement.” Also attached to Eddins’s affidavit were Friendly’s payroll records showing monthly payments to Selz for August through November 2001 for both the $16,000 base salary and the 2.25 percent commission on gross profits. Thus, Friendly conclusively established that it had paid the base salary and commission, thereby establishing its affirmative defense to Selz’s causes of action asserting these items as damages. See Clear Creek Basin Auth., 589 S.W.2d at 678. Accordingly, the burden shifted to Selz to raise a fact issue as to payment of these amounts.

In his responses, Selz asserted that he had not been properly paid for all earned wages and commissions. In his first and third affidavits, Selz stated that Friendly refused to fully pay him for earned commissions. Friendly objected to these statements in Selz’s affidavits on grounds that they were legal conclusions. The trial court did not rule on Friendly’s objections. On appeal, Friendly argues that “[tjhere is no summary judgment evidence from Selz disputing any of the specific facts contained” in the exhibits showing monthly payments.

Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). When summary judgment evidence raises only a mere suspicion or surmise of a fact in issue, no genuine issue of material fact exists to defeat summary judgment. Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex.App.-Houston [14th Dist.] 1998, writ denied).

Selz’s affidavits did not point to any facts supporting his conclusion that Friendly refused to pay him in full. For example, he presented no evidence or argument that there was a written compensation agreement or a promise of payment other than the Payplan; the payroll records were incorrect or did not reflect the amounts he was paid; or that Friendly miscalculated any payment amount or used incorrect gross profit figures to calculate commissions. We conclude that Selz’s statements are nothing more than sworn repetitions of the allegations in his pleadings. They are no more than conclusions or a mere surmise or suspicion. See id.

Selz also relied on his second amended petition as evidence to raise a fact issue on payment of these amounts. However, pleadings themselves do not constitute summary judgment proof. See Clear Creek Basin Auth., 589 S.W.2d at 678. Accordingly, Selz’s second amended petition is not proper summary judgment evidence.

We conclude that after Friendly produced evidence establishing its defense of payment of monthly salary and commissions, Selz failed to carry his burden to present evidence raising a fact issue precluding summary judgment. Accordingly, the trial court did not err in granting summary judgment in Friendly’s favor on Selz’s claims for failure to pay monthly salary and commissions pursuant to the parties’ written compensation agreement.

Payment of Relocation Expenses

Friendly’s payroll records showed payment only for monthly salary and commissions, not for any relocation expenses. Accordingly, Friendly’s summary judgment evidence does not support its assertion that it established its defense of payment by paying “all monies due.” Because Friendly did not conclusively prove its affirmative defense of payment of the relocation expenses, Selz had no burden to present summary judgment evidence to the contrary under the traditional summary judgment standard. See Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 200-01 (Tex.App.-Dallas 1990, no writ).

However, Friendly also moved for summary judgment on no-evidence grounds. Citing rule 166a(i), Friendly asserted that Selz “has no evidence that any compensation amount is due and owing to [him].” In his supplemental motion, citing rule 166a(i), Friendly asserted that “there is no evidence of any monies due to [Selz] under the written pay plan.”

We note that a no-evidence summary judgment motion must state the specific elements as to which there is no evidence, that is, it must not be general or conclusory. Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002); Thomas v. Omar Invs., Inc., 129 S.W.3d 290, 294 (Tex.App.-Dallas 2004, no pet.); In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex.App.-El Paso 2003, no pet.). We also note the movant cannot file a no-evidence motion for summary judgment on an affirmative defense that it has the burden to prove at trial. Thomas, 129 S.W.3d at 294; Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

However, Selz did not challenge the legal sufficiency or propriety of the motions on appeal. See Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.) (holding that nonmovant may challenge legal sufficiency of no-evidence motion for first time on appeal). And although Selz asserts that the trial court erred in granting summary judgment on his claims “in light of the evidence before the trial court,” he does not cite the no-evidence standard and does not point to any evidence regarding the agreed-upon relocation expenses.

We may not reverse a trial court’s judgment in the absence of properly assigned error. Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990). Accordingly, we cannot conclude the trial court erred in granting summary judgment in Friendly’s favor on Selz’s claims for failure to pay relocation expenses.

CONCLUSION

' Because Friendly conclusively proved its affirmative defense of payment of monthly salary and commissions pursuant to the parties’ written compensation agreement and Selz failed to produce evidence raising a fact issue as to payment of those amounts and, furthermore, Selz failed to challenge the legal sufficiency of the no-evidence motions as to payment of relocation expenses, the trial court did not err in granting summary judgment on all Selz’s claims. We need not address the other ground on which Friendly moved for summary judgment, i.e., that Selz’s at-will status precluded all his claims as a matter of law. We affirm the trial court’s judgment.

      . Selz’s original petition named "Friendly Chevrolet Management LLC” as the defendant. Selz’s claims against this defendant were dismissed on summary judgment. This appeal concerns Selz’s claims against Friendly Chevrolet Ltd. Because Selz acknowledges in his brief that Friendly Chevrolet, Ltd. is the proper defendant, we need not consider the summary judgment record as to Friendly Chevrolet Management LLC.

      . There is no reporter's record of either hearing in the appellate record.

        .See Tex.R. Civ. P. 63 (providing for calculating time periods for filing amended pleadings); Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 115 (Tex.App.-Corpus Christi 1995, writ denied) (noting “key date for purposes of Rule 63 [is] the date of the final hearing from which the summary judgment sprang”).

        .See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex.1992) (stating elements of fraudulent misrepresentation); English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983) (stating elements of promissory estop-pel); Kay v. N. Tex. Rod & Custom, 109 S.W.3d 924, 927 (Tex.App.-Dallas 2003, no pet.) (stating elements of breach of contract).


author: Justice LANG-MIERS.

text:
    Cleveland GREEN III, Appellant, v. Mary Alice KAPOSTA, Appellee.
    No. 05-04-00133-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 12, 2005.

      Cleveland Green, III, Huntsville, pro se.
    Mary Alice Kaposta, Irving, pro se.
    Before Justices O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Pro se appellant Cleveland Green III appeals the trial court’s dismissal of his lawsuit for want of prosecution. In his first six issues, he claims the trial court abused its discretion by: (1) failing to follow proper recusal procedures; (2) denying his motion for continuance; (3) failing to grant his requests for aid in retrieving legal documents, to rule on his motion to subpoena documents, and to respond to letters regarding the documents; (4) dismissing his lawsuit for want of prosecution; (5) refusing to reinstate his case; and (6) failing to act on his motion to vacate a void judgment. In his seventh issue, he claims that he was not afforded effective assistance of counsel. We affirm the trial court’s order.

BACKGROUND

Green, a prison inmate, filed suit against Mary Alice Kaposta, whom he alleges is his common law wife. He contended that his conviction for aggravated assault with a deadly weapon and subsequent incarceration resulted from her perjured testimony. He requested a divorce and brought claims against her for his property that he claims she sold or destroyed, deprivation of society, lost wages,' denial of love, defamation of character, slander, and “placing [his] life in danger everyday that [he has] been incarcerated in this hostile environment.” After Green filed a pro se petition and amended petition, the trial court appointed an attorney to represent him.

As the case progressed, the trial court granted Green at least three motions for continuance. On the date Green’s case was set for trial, Kaposta failed to appear. Green requested a continuance^ but the trial court denied it. According to the court docket, Green was removed from the courtroom when he became belligerent, and the matter was continued in the jail. The trial court dismissed the case for want of prosecution, noting that Green did not want to proceed with a default judgment after Kaposta failed to appear.

IMPROPER BRIEFING

A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex.App.-Dallas 2004, no pet.). On appeal, as at trial, the pro se appellant must properly present its case. Id. at 678. The rules of appellate procedure require an appellant’s brief to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R.App. P. 88.1(h).

At the outset, we note that Green’s arguments are largely incomprehensible, that he failed to properly brief any of his issues, and that he provided us an incomplete appellate record. Throughout his brief, he cites to documents found in its appendices, but not included in the appellate record and to hearings that are also not included in the record. But we cannot consider the documents or hearings in our review because they are not part of the record. See Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 423 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (stating that the attachment of documents as appendices to briefs does not constitute formal inclusion in the record on appeal).

Additionally, Green includes no citations to legal authority in issues three, five, and six; and the authority to which he refers in issues two, four, and seven are noncontrolling federal eases and cases that do not relate to the points he attempts to make. An issue on appeal unsupported by argument or citation to legal authority presents nothing for the court to review. Strange, 126 S.W.3d at 678.

We have little latitude on appeal and cannot remedy deficiencies in a litigant’s brief or supply an adequate record. Strange, 126 S.W.3d at 678. We also have no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. Id. Because he failed to provide us with a complete record or to adequately brief his issues on appeal, Green has preserved nothing for our review. Id. Nevertheless, we will consider his issues individually to the extent possible.

MOTION TO RECUSE

In his first issue, Green contends that the trial court abused its discretion by failing to follow recusal procedures after he filed a motion to recuse. He cites to a motion to recuse in an appendix to his appellate brief. But because neither the motion to recuse nor any proceeding or order relating to it has been included in the appellate record on appeal, Green’s first issue is waived. Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 445 (Tex.App.-El Paso 1994, pet. denied); see Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-Dallas 1987, no pet.).

MOTION FOR CONTINUANCE

In his second issue, Green apparently contends that the trial court abused its discretion by denying his November 21, 2003 motion for continuance. He claims that he was unable to obtain from the Texas criminal justice system the legal documents he needed to prosecute the case. He admits that the trial court previously granted other motions for continuance to enable him to acquire the documents, but contends that the trial court should have granted an indefinite continuance until he obtained them.

The decision whether to grant a motion for continuance rests within the discretion of the trial court. Crooks v. Moses, 138 S.W.3d 629, 634 (Tex.App.-Dallas 2004, no pet.). Before the reviewing court will reverse the trial court’s ruling, it should clearly appear from the record that the trial court has disregarded the party’s rights. Id. at 635.

The only evidence in the record of a November 21 motion for continuance is a notation in the judge’s docket that Green requested and the trial court denied a continuance. The record does not contain a written motion for continuance, an affidavit, or a reporter’s record of any type of a hearing on the motion. Therefore, Green has not even shown that he preserved error on this point. Cronen v. County Storage Lot, 831 S.W.2d 895, 897 (Tex.App.-Houston [1st Dist.] 1992, no pet.). Even if he had preserved error, we do not have a record of any evidence presented to the trial court supporting a motion for continuance. We must presume that the evidence presented supported the trial court’s ruling denying his motion and that the trial court did not abuse its discretion. Wil-Roye Inv. Co. II v. Wash. Mut. Bank, FA 142 S.W.3d 393, 401 (Tex.App.-El Paso 2004, no pet.); Roob v. Von Bereg-shasy, 866 S.W.2d 765, 767 (Tex.App.Houston [1st Dist.] 1993, writ denied). We overrule Green’s second issue.

REQUESTS, LETTERS, AND MOTIONS TO THE TRIAL COURT

In a multifarious and confusing third issue, Green contends the trial court abused its discretion in failing to grant his requests that the court aid in retrieving legal documents, to rule on his motion to subpoena documents, and to respond to his letter informing the court that he needed his legal documents to proceed with a trial. But the documents to which he refers are included in appendices to his brief and not in the appellate record. As a result, we cannot consider the documents and therefore cannot decide this issue. See Adams, 120 S.W.3d at 428. We overrule Green’s third issue.

DISMISSAL FOR WANT OF PROSECUTION

In his fourth issue, Green contends that the trial court abused its discretion when it dismissed his suit for want of prosecution because it knew he was without the legal documents needed to proceed at trial. He provides little argument on this point, and incorporates his arguments from his second and third issues.

The power of a trial court to dismiss for want of prosecution is not unbridled as it rests in the exercise of sound judicial discretion, subject to review. Lopez v. Harding, 68 S.W.3d 78 (Tex.App.Dallas 2001, no pet.). On appeal, the trial court’s judgment of dismissal will not be reversed unless, as a matter of law, the trial court clearly abused its discretion. Id.; Manning v. North, 82 S.W.3d 706, 709 (Tex.App.-Amarillo 2002, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption that the action of the trial court was justified. Manning, 82 S.W.3d at 709; Hosey v. County of Victoria, 832 S.W.2d 701, 704 (Tex.App.-Corpus Christi 1992, no writ).

The trial judge’s authority to dismiss a case for want of prosecution derives from two sources: Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power.' Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). A trial court may dismiss under Rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice,” or when a case is “not disposed of within the time standards promulgated by the Supreme Court_” Tex.R. Civ. P. 165a; Villarreal, 994 S.W.2d at 630. In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 630. Whether a case has been diligently prosecuted is also an issue committed to the trial court’s sound discretion. Maida v. Fire Ins. Exch., 990 S.W.2d 836, 842 (Tex.App.-Fort Worth 1999, no pet.).

Here, the trial court’s order of dismissal for want of prosecution states that Kaposta failed to appear after being given proper notice. The order states that the court gave Green the election of having the court render a default judgment or having the cause dismissed; but because Green did not desire to proceed with a default judgment, the trial court dismissed the case. Given these facts, we cannot conclude that the trial court abused its discretion in finding that Green failed to prosecute the case with due diligence and in dismissing the case. We overrule Green’s fourth issue.

MOTION FOR REINSTATEMENT

In his fifth issue, Green contends that the trial court abused its discretion in refusing to reinstate his case. A case dismissed pursuant to the trial court’s inherent power must be reinstated upon a showing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained. Rampart Capital Corp. v. Maguire, 1 S.W.3d 106, 106-07 (Tex.1999).

Green contends that he could not prosecute the case without his legal documents and that it was only by a mistake of his attorney that he did not have these documents on the day the court dismissed his ease. However, as stated in its order dismissing the case, the trial court did not dismiss the case because Green did not have his legal documents but because he refused to proceed with a default judgment when Kaposta failed to appear in court. Because the record does not show that Green demonstrated that this refusal was not intentional or the result of conscious indifference, we conclude that the trial court did not abuse its discretion in refusing to reinstate Green’s case. We overrule Green’s fifth issue.

MOTION TO VACATE A VOID JUDGMENT

In his sixth issue, Green contends that the trial court abused its discretion by not acting on his motion to vacate a void judgment. He argues that by taking no action on his motion, the trial court denied it. In his brief, he refers to two motions to vacate a void judgment and a hearing during which he claims the motions were “discussed at length.” However, neither the motions nor the hearing are found in the appellate record. He fails to identify the void judgment that should have been vacated or to explain why the trial court abused its discretion in denying the motion. Consequently, Green presents nothing for review on this point. See Strange, 126 S.W.3d at 678. We overrule Green’s sixth issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his seventh issue, Green contends that the trial court appointed him an attorney who was ineffective, thereby violating his right to effective assistance of counsel. However, the doctrine of ineffective assistance of counsel does not extend to civil cases. Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex.App.-Beaumont 1998, pet. denied). Accordingly, we overrule Green’s seventh issue.

CONCLUSION

Having overruled all of Green’s issues on appeal, we affirm the trial court’s order.

      . When a party moves for continuance, civil procedure Rule 251 requires the party to show sufficient cause supported by affidavit, consent of the parties, or operation of law as support of its motion. Tex.R. Civ. P. 251; Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex.App.-Dallas 2003, pet. denied). A party who does not comply with Rule 251 fails to preserve a complaint for appellate review. Taherzadeh, 108 S.W.3d at 928.

      . A point of error addressing more than one specific ground of error is multifarious. Shull v. United Parcel Service, 4 S.W.3d 46, 51 (Tex.App.-San Antonio 1999), pet. denied, 531 U.S. 835, 121 S.Ct. 94, 148 L.Ed.2d 53 (2000). If a court concludes that a point of error is multifarious, it may refuse to review it or it may consider the point of error if it can determine, with reasonable certainty, the error about which complaint is made. Id.