author: Justice WITTIG.

text:
    UNION GAS CORP., Appellant, v. Evelyn TITTIZER, et al., Appellees.
    No. 13-01-735-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Oct. 30, 2003.

      Paul S. Francis, Baker <& Hostetler LLP, Houston, for appellant.
    Emmett Cole, Jr., William L. Seiba, III, Cole, Cole & Easley, P.C., Victoria, for appellees.
    Before Justices HINOJOSA, RODRIGUEZ and WITTIG.

      . Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex Gov't Code Ann. § 74.003 (Vernon 1998).

   MEMORANDUM OPINION

Opinion by

Justice WITTIG.

This memorandum opinion is the second of seven related cases. The factual background, the standard of review, and a majority of the issues are addressed in our prior opinion, Union Gas Corp. v. Gisler, 129 S.W.3d 145 (Corpus Christi, 2003, no pet. h.). In this case, Union Gas Corporation (Union) appeals the summary judgment granted in favor of appellees, Evelyn Tittizer, Individually and as Independent Executrix of the Estate of Louis Tittizer. Union asserts that the trial court entered contradictory summary judgments on essentially the same though separate contract language. It argues appellees should not have been awarded royalties accruing before August 7, 2000, the recordation date of the unit designation. We agree with Union that the trial court erred in awarding unit royalties before August 7, 2000. Thus, we reverse and render only the portion of the summary judgment dealing with this issue, and affirm the balance of the trial court’s judgment. We have previously addressed Union’s other issues relating to severance, interpleader, and its motion to dismiss. We adopt those holdings from Gisler, at 148, 152, 154, and overrule these issues. While Union complained of the attorney’s fee award in the Gisler case, it did not complain of the attorney’s fee award to appellees. Therefore, this issue is waived. Tex.R.App. P. 38.1(e), (h).

I

Union contracted with appellees and various adjoining land owners for multiple oil and gas leases beginning in 1999. These leases contained pooling provisions allowing for unitized production of gas in ten adjacent tracts. The designation for the pooling of the Watts-Gisler # 1 well was recorded August 7, 2000. This is the only well in the unit, and it began production on March 27, 2000. The well is located upon land owned by Jimmie B. Gisler, Jenell Gisler, Ralph H Gisler, and Doris Gisler. While the Gislers became part of the pooled unit, they claimed entitlement to 100% of the royalties from the date of first production until the pooling designation was recorded on August 7, 2000. We agreed with the Gislers and so held in the prior related case. Gisler, at 154.

Union brought appellees into the initial litigation by way of a third party action and interpleader. Appellees filed a general denial and, by their amended counterclaim, sought a declaration that they were due royalties from March 27, 2000, and that Evelyn Tittizer was entitled to a unit royalty of .0241152 on her 100.03-acre tract. Appellees filed a motion for summary judgment on these issues. The motion was granted by the trial court and is the genesis of this appeal.

The Gislers’ lease provided that the unit designation was not effective until its re-cordation (August). While appellees’ lease also had a provision that the lease’s pooling option was effective on the date of recordation, the unit designation itself provided that the pooling was retroactively effective to the date of first production (March). The trial court apparently agreed with appellees and granted their motion for summary judgment. Union appealed. As we noted in our first opinion, appellees did not join the Gislers’ claim for bad faith pooling and other claims. The trial court severed essentially all the contract claims of the various parties and left the tort claims of the Gislers to be adjudicated at a later date.

II

Union filed essentially the same briefs in the seven related cases. We adopt our ruling on Union’s issues two, four, five, and six relating to the Gislers’ claim to the initial royalties, interpleader, severance, and Union’s motion to dismiss. Gisler, at 148, 153, 154. We now address Union’s issues relating to these appellees.

III

Union makes the following arguments. If, as we have previously held, the pooling is not effective until the August 7 recordation date, then there is no unit production until that time. The same effective date should be applied to all leases. There is only one well, and, while that well began production in March, there was no producing well in the pooled unit until August. Thus, no royalty payments were due the appellees until August 7th. In short, ap-pellees were not entitled to royalties until the unit was properly pooled. Furthermore, the court’s construction of the language of the various leases must be consistent, and the same effective pooling date should be applied to all leases. Union cites Sauder v. Frye, 613 S.W.2d 63, 64 (Tex.Civ.App.-Fort Worth 1981, no writ). Sander held:

We find that the provision in the Frye lease evidenced the intent of the parties that for unitization to be effective one of its required conditions was the recordation of the designation of pooling. Only at that point would the unitization validly come into being under the terms of the lease.

Id.

Union further argues that the unit designation language relied on by appellees was not a contract or an offer; there was no new consideration; and the designation was just that, a designation. The unit designation language provided in the last paragraph: “IN WITNESS WHEREOF, this instrument is executed this 29th day of July, 2000 but effective as of the date of first production from the Union Gas Operating Company, Watts-Gisler # 1 well.” This contrasts with appellees’ lease provision that gave Union the right to pool. The lease provided: “[Union] shall exercise said option as to each desired unit by executing an instrument identifying such unit and filing it for record in the public office in which this lease is recorded.”

Appellees counter that Union is es-topped from raising this argument on appeal because in its third-party claim it sought to have the unit retroactively effective to the March date of first production. They cite Samedan Oil Corp. v. Louis Dreyfus Natural Gas Corp., 52 S.W.3d 788 (Tex.App.-Eastland 2001, pet. denied). That case held that because Samedan had consistently asserted that a Colorado court’s arbitration award was a final judgment disposing of all claims and issues, it was estopped to later assert otherwise. Id. at 793.

While appellees’ argument is partially correct that Union made this assertion, they ignore other assertions made by Union. Specifically, Union sought a uniform determination applicable to all royalty owners. It sought to avoid the competing claims of the Gislers, appellees, and the other lessors in the unit. In its supplemental counterclaim and third-party inter-pleader claim, Union asserted it was liable for royalties due to some or all of the other parties. It also delineated the competing claims of the Gislers and other lessors for the first production. Specifically, Union sought relief from having to pay royalties twice and to pay inconsistent claims. Thus, Union did not consistently plead only for retroactive application of royalty payments, and Samedan is not controlling. See id.

Next appellees contend that Union was given the option to determine the effective date and is bound by its election. They argue the lease does not limit the effective date. Specifically, the lease provides:

Each of said options may be exercised by lessee at any time and from time to time while this lease is in force, and whether before or after production has been established either on said land, or on the portion of said land included in the unit, or on other land unitized therewith.

However, the pooling option was effective upon recordation.

Appellees also argue that no provision should be read in isolation from the rest of the contract, citing Gibson Drilling Co. v. B & N Petroleum, Inc., 703 S.W.2d 822, 826, (Tex.App.-Tyler 1986, writ ref'd n.r.e.). We agree. We also note that in the cited case, the unit designation was recorded prior to production, which would have obviated this litigation and the resultant harm to appellees. See id. at 824. We are also constrained to construe all of the leases, Union’s late recorded unit designation, and the interplay of these instruments, which we discuss below. Appellees cite Wahlenmaier v. American Quasar Petroleum Co., 517 S.W.2d 390, 393 (Tex.Civ.App.-El Paso 1974, writ refd n.r.e.), which stated a court may not interpolate terms or provisions into a contract and thus make contracts for the parties under the guise of interpretation. Id. Wahlenmaier further holds where there is no ambiguity, the construction of the assignments is a question of law for the court. Id. We agree. Here, all parties steadfastly maintain there is no ambiguity. All pleadings and motions quarantine the arguments before us to the four corners arena.

Finally, appellees argue that the effective date is determined by the intent of the parties without regard to the other leases. The lease provides a unit established shall be valid and effective even though there may be other interests which are not effectively pooled. Appellees cite Tiller v. Fields, 301 S.W.2d 185 (Tex.Civ.App.-Texarkana 1957, no writ) for the proposition that unitization “agreements” are necessarily in general terms and that appellees, “in executing the unit declaration in question intended that it be effective as of the date of execution.” Id. at 191. In other words, the intent of the parties as expressed in the instrument controls. However, Tiller is distinguishable because there was no requirement for recordation in the pooling agreement. Id. Further, this argument ignores the fact that Union, under the terms of the lease, did not and could not exercise its option to pool until recordation, August 7. Finally, this argument cannot stand if the unit was not effectively pooled until recordation, as we discuss below.

IV

Absent express authority, a lessee has no power to pool the lessor’s interests with the interests of others. Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex.1999); Browning Oil Co., Inc. v. Luecke, 38 S.W.3d 625, 640 (Tex.App.-Austin 2000, pet. denied). “For pooling to be valid, it must be done in accordance with the method and purposes specified in the lease.” Tichacek, 997 S.W.2d at 170. “The lessors’ land may be pooled only to the extent stipulated in the lease.” Jones v. Killingsworth, 403 S.W.2d 325, 327 (Tex.1965).

A contract is not ambiguous if it can be given a certain or definite legal meaning or interpretation. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996). We should favor an interpretation that affords meaning to all parts of the contract, so that none is without consequence. R & P Enters. v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 519 (Tex.1980).

In Luecke, the Austin appeals court succinctly articulated rules for oil and gas contract application of pooling clauses. Luecke, 38 S.W.3d at 640. Luecke observed:

1. Lessee’s authority to pool is derived solely from the terms of the lease; a lessee is without such power absent express authority.
2. Parties to an oil and gas lease must strictly comply with its terms.
3. An oil and gas lease is a contract to be interpreted as such.
4. In construing an unambiguous oil and gas lease, the court must determine the intention of the parties as expressed in the lease.
5. The writing alone expresses the intent of the parties. Thus, the court will enforce an unambiguous lease as written.

Id.

From secondary sources, we also are informed that most pooling clauses now affirmatively require the unitization declaration to be filed of record. Cummings: “Pooling Issues-Avoiding Pitfalls,” 1995 State Bar of Texas Advanced Oil, Gas & Mineral Law Course. If the pooling clause requires recordation, it is not effective until actually filed in the appropriate county; execution and acknowledgment is insufficient. Id.

Union did not pool in accordance with its lease with the Gislers, insofar as the effective inception date is concerned. Union cannot escape its prior and material contractual obligations to the Gislers. As Union admits, it must comply with the leases in forming the unit. See Tichacek, 997 S.W.2d at 170. The Gislers’ lease was the situs of Watts-Gisler # 1 well. The pooling rights of the parties emanated from the various leases. See id.; Killingsworth, 403 S.W.2d at 327-28; Luecke, 38 S.W.3d at 640. Because the unit was not effectively pooled until the August 7 recor-dation date, there was no unit production until that time. See Gisler, at 151-*154. In other words, although there was production from March 27 on the Gislers’ lease, there was no producing well in the pooled unit until August 7. We also agree with Union that the legal construction of the various leases and unit designation should be consistent. We accordingly apply the rationale of Sauder that the leases evidence the intent of the parties that uni-tization be effective upon the recordation. See Sauder, 613 S.W.2d at 64. “Only at that point would the unitization validly come into being under the terms of the lease.” Id.

V

In appellees’ motion for summary judgment, they also contended that Evelyn Tit-tizer was entitled to a unit royalty of .0241152 on the 100.03-acre tract. Union does not dispute the percentage of unit royalty interest, as such. It only indirectly disputed this portion of the summary judgment in its interpleader and severance arguments. As stated, we overrule these arguments. See Gisler, at 152, 154. Union did not appeal the award of attorney’s fees in this case.

VI

The judgment of the trial court is affirmed in all aspects save the inception date of appellees’ rights to royalties. That portion of the judgment awarding royalties before August 7, 2000 is reversed and rendered. The remainder of the judgment is affirmed, including entitlement to proportional royalties beginning August 7, 2000.

      . The argument was in the alternative. Either the Gislers were not entitled to receive 100% of the royalties before August 7, 2000, or the other appellees in the related cases were not entitled to their unit share in the same time period.

      . The Texas Supreme Court notes this authority is usually found in the lease's pooling clause. Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex.1999).


source: Caselaw Access Project

author: SAM NUCHIA, Justice.

license: Public Domain

text:
    Andrea Pia YATES, Appellant, v. The STATE of TEXAS, Appellee.
    Nos. 01-02-00462-CR, 01-02-00463-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 6, 2005.
    Rehearing Overruled April 7, 2005.
    Discretionary Review Refused Nov. 9, 2005.

      Daucie Elana Shefman, Wendell Odom, George J. Parnham, W. Troy McKinney, Schneider & McKinney, P.C., Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices TAFT and NUCHIA.
   OPINION

SAM NUCHIA, Justice.

Appellant, Andrea Pia Yates, was charged by two indictments with capital murder for the drowning deaths of three of her five children. Rejecting appellant’s insanity defense, the jury found her guilty and, having answered the special issue regarding appellant’s continuing threat to society “No,” assessed punishment at life in prison. Following the verdict and before the punishment phase of the trial, appellant learned that the State’s expert witness, Dr. Park Dietz, had presented false testimony. Appellant moved for mistrial, but the trial court denied the motion. Appellant asserts 19 points of error in which she challenges, among other things, the factual sufficiency of the evidence to support the verdict rejecting the insanity defense, the denial of a motion for mistrial based on false testimony, and the denial of her right to due process by the use of false or perjured testimony. We reverse and remand.

BACKGROUND

Appellant and Russell Yates (Yates) were married on April 17, 1993. Their first child, Noah, was born in February 1994; their second child, John, was born in December 1995; and their third child, Paul, was born in September 1997. During this time, the Yates family moved from Friendswood to Florida and back to the Houston area, living in a recreational vehicle. In 1998, they moved from the recreational vehicle to a converted bus and continued to live in a trailer park. At one point, appellant told her husband she felt depressed and overwhelmed, and he suggested that she talk to her mother and a friend.

In February 1999, a fourth child, Luke, was born. On June 18, 1999, appellant suffered severe depression and tried to commit suicide by taking an overdose of an antidepressant that had been prescribed for her father. She was admitted to the psychiatric unit of Methodist Hospital. After her release six days later, she began seeing a psychiatrist, Dr. Eileen Starbranch, as an outpatient. On July 20, 1999, Yates found appellant in the bathroom, holding a knife to her neck. Dr. Starbranch recommended that appellant be admitted to Spring Shadows Glen Hospital. Appellant was admitted, against her wishes, the next day. At Spring Shadows Glen, appellant told a psychologist, Dr. James Thompson, that she had had visions and had heard voices since the birth of her first child. Dr. Starbranch ranked appellant, at the time of her admission to Spring Shadows Glen, among the five sickest patients she had ever seen. Before discharging appellant from the hospital, Dr. Starbranch told appellant and Yates that appellant had a high risk of another psychotic episode if she had another baby.

In August 1999, the Yates family moved from the converted bus to a house that Yates had bought while appellant was in the hospital. That fall, appellant began home-schooling Noah. Appellant saw Dr. Starbranch for the last time on January 12, 2000. She told Dr. Starbranch that she had stopped taking her medication in November 1999. In November 2000, appellant’s fifth child, Mary, was born. In March 2001, appellant’s father died. This death seemed to precipitate a decline in appellant’s functioning, and she began to suffer from depression. On March 28, 2001, Yates contacted Dr. Starbranch and told her that appellant was ill again. Dr. Starbranch wanted to see appellant immediately, but Yates said he could not bring her in until the next Monday.

Appellant was not taken to Dr. Star-branch’s office, but was admitted to Dever-eux Hospital in League City on March 31, 2001. There, she was observed as being catatonic or nearly catatonic and possibly delusional or having bizarre thoughts. She was treated by Dr. Mohammed Saeed and was placed on a suicide watch. Appellant was discharged on April 13, 2001 upon her own and Yates’s request. She began an outpatient program at Devereux, and Dr. Saeed recommended that someone stay with her at all times and that she not be left alone with her children.

On April 19, Yates’s mother came for a visit. She had intended to stay for about one week, but, when Yates told his mother that appellant was suffering from depression, his mother decided to stay longer and moved to a nearby extended-stay hotel.

Yates’s mother went to appellant’s home every day. She observed that appellant was almost catatonic, did not respond to conversation or made a delayed response, stared into space, trembled, scratched her head until she created bald spots, and did not eat. On May 3, appellant filled a bathtub with water, but could not give a good reason for doing so. When asked, she said, “I might need it.” On May 4, appellant was re-admitted to Devereux, and on May 14, she was discharged, seeming to be better. Dr. Saeed had prescribed the medication, Haldol, and appellant continued to take it after her discharge. Dr. Saeed also recommended electroconvulsive therapy, but appellant rejected that recommendation.

After her second discharge from Dever-eux, appellant was able to take care of her children, but was still uncommunicative and withdrawn. She smiled infrequently and seemed to have no emotions, but Yates did not think it was unsafe to leave her alone with the children. On June 4, appellant had a follow-up appointment with Dr. Saeed, who decided to taper her off of Haldol. Appellant denied having any suicidal or psychotic thoughts. Appellant met with Dr. Saeed again on June 18, and she again denied having any psychotic symptoms or suicidal thoughts. She was no longer taking Haldol, and Dr. Saeed adjusted the dosages of her other antidepressant medications.

On June 20, 2001, at 9:48 a.m., appellant called 9-1-1 and told the operator, Sylvia Morris, that she needed the police. Morris transferred the call to the Houston Police Department, and appellant told the police operator that she needed a police officer to come to her home. Appellant also called Yates at his work and told him that he needed to come home, but would not say why. As Yates was leaving, he called her and asked if anyone was hurt, and she said that the kids were hurt. He asked, “Which ones?” She responded, “All of them.”

Within minutes of appellant’s 9-1-1 call, several police officers arrived at appellant’s home. They discovered four dead children, soaking wet and covered with a sheet, lying on appellant’s bed. The fifth child, Noah, was still in the bathtub, floating face down. Appellant was quiet and cooperative with the police officers.

At trial, ten psychiatrists and two psychologists testified regarding appellant’s mental illness. Four of the psychiatrists and one of the psychologists had treated appellant either in a medical facility or as a private patient before June 20, 2001. They testified regarding the symptoms, severity, and treatment of appellant’s mental illness. Five psychiatrists and one psychologist saw appellant on or soon after June 20 for assessment and/or treatment of her mental illness. Four of these five psychiatrists and the psychologist testified, in addition to their observations and opinions regarding appellant’s mental illness, that appellant, on June 20, 2001, did not know right from wrong, was incapable of knowing what she did was wrong, or believed that her acts were right.

The tenth psychiatrist, Dr. Park Dietz, who interviewed appellant and was the State’s sole mental-health expert in the case, testified that appellant, although psychotic on June 20, knew that what she did was wrong. Dr. Dietz reasoned that because appellant indicated that her thoughts were coming from Satan, she must have known they were wrong; that if she believed she was saving the children, she would have shared her plan with others rather than hide it as she did; that if she really believed that Satan was going to harm the children, she would have called the police or a pastor or would have sent the children away; and that she covered the bodies out of guilt or shame.

On cross-examination, appellant’s counsel asked Dr. Dietz about his consulting work with the television show, “Law <& Order,” which appellant was known to watch. The testimony was as follows:

Q. Now, you are, are you not, a consultant on the television program known as “Law & Order”?
A. Two of them.
Q. Okay. Did either one of those deal with postpartum depression or women’s mental health?
A. As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before the crime occurred.

The second mention of “Law & Order” came during Dr. Lucy Puryear’s testimony. Dr. Puryear, a defense expert witness, was cross-examined by the State regarding her evaluation of appellant. The State specifically asked about her failure to inquire into whether or not appellant had seen “Law & Order.” Dr. Puryear testified as follows:

Q. You know she watched “Law & Order” a lot; right?
A. I didn’t know. No.
Q. Did you know that in the weeks before June 20th, there was a “Law & Order” episode where a woman killed her children by drowning them in a bathtub, was defended on the basis of whether she was sane or insane under the law, and the diagnosis was postpartum depression and in the program the person was found insane, not guilty by reason of insanity? Did you know that?
A. No.
Q. If you had known that and had known that Andrea Yates was subject to these delusions, not that she was the subject of a delusion of reference, but that she regularly watched “Law & Order” and may have seen that episode, would you have changed the way you went about interviewing her, would you have interviewed whether she got the idea somehow she could do this and not suffer hell or prison?
A. I certainly wouldn’t have asked her that question. No.
Q. Would you have — you didn’t have to ask her that question, but you could have explored that?
A. If I had known she watched that show, I would have ask[ed] her about it, yes.

In his final argument at the guilt-innocence phase of the trial, appellant’s attorney referred to Dr. Dietz’s testimony by stating, “Or maybe even we heard some evidence that she saw some show on TV and knew she could drown her children and get away with it.”

The prosecutor, in his final argument, made the following reference to Dietz’s testimony about the “Law & Order” episode:

She gets very depressed and goes into Devereux. And at times she says these thoughts came to her during that month. These thoughts came to her, and she watches “Law <& Order” regularly, she sees this program. There is a way out. She tells that to Dr. Dietz. A way out.

After the jury had returned a guilty verdict, appellant’s counsel discovered that Dr. Dietz had given false testimony. The producer of “Law & Order” spoke to counsel by telephone and said he could not recall such an episode. An attorney representing the producer, after talking to Dr. Dietz and researching the shows, verified to counsel that there was no show with a plot as outlined by Dr. Dietz. Dr. Dietz acknowledged that he had made an error in his testimony. Appellant and the State entered into the following written stipulation:

1. Dr. Park Dietz testified on cross-examination that “As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before this crime occurred.”
2. Dr. Park Dietz would testify that he was in error and that no episode of “Law & Order” and/or “Law & Order: Criminal Intent” as described above was ever produced for the “Law & Order” television series.

Appellant moved for a mistrial based on Dr. Dietz’s false testimony, and the trial court denied the motion. Appellant then requested that the stipulation be admitted into evidence and read to the jury. The trial court granted this request. In connection with the stipulation, the trial court, in response to appellant’s request, made the following statement to the jury:

Ladies and gentlemen, during the course of this trial there have been occasions when written stipulations have been introduced for your consideration .... While those witnesses that give information which is contained in this stipulation do not physically appear here in court to testify, you must consider the matters which they have indicated in the written stipulation as if they actually appeared in court and give it whatever weight you wish to give to it. So the witness does not have to actually appear in court, but the matters contained in the stipulation are offered into evidence as if they had appeared.

The jury returned verdicts on both charges that at least 10 jurors had a reasonable doubt that appellant would commit criminal acts of violence that would constitute a continuing threat to society.

DISCUSSION

Motion for Mistrial

In her second point of error, appellant contends that the trial court abused its discretion by denying her motion for mistrial when it was revealed that the State’s expert witness had presented false testimony. Appellant argues that Dr. Dietz’s testimony was essential to the jury’s “guilty” verdict and that his testimony relating to the “Law & Order” episode was the most compelling testimony supporting Dr. Dietz’s conclusion that appellant knew right from wrong.

The State recognizes that the State’s knowing use of perjured testimony that is likely to materially affect the judgment violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Ex parte Castellano, 863 S.W.2d 476, 485 (Tex.Crim.App.1993). The State argues that it did not know that the testimony was false, did not use the false information, and the information was not material. We agree that this case does not involve the State’s knowing use of perjured testimony. At the hearing on appellant’s motion for mistrial, appellant did not complain that there had been prosecutorial misconduct. Rather, appellant stated,

[M]ake no mistake, the issue is not whether or not the State was aware and we have no reason to believe the State was aware that such a program did not exist. The issue is that the defense of insanity was rebutted by the testimony of Dr. Dietz relative to an act of premeditation, that is a planned and/or a deceptive act on Mrs. Yates’ part, that is something that would give her an idea, a way out of these particular allegations. And that was relayed to this jury and we believe that the jury relied upon the presentation of Dr. Dietz as well as the cross-examination by [the State’s attorney] of Dr. Puryear relative to this particular issue.

We review the denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). In this case, the motion for mistrial was the functional equivalent of a motion for new trial; therefore, we look to the standards governing the review of the granting or denial of a motion for new trial. See State v. Garza, 774 S.W.2d 724, 726 (Corpus Christi 1989, pet. ref'd) (concluding that State may appeal order granting mistrial that is functionally indistinguishable from order granting motion for new trial).

Generally, if a witness has testified to material, inculpatory facts against a defendant and, after the verdict but before a motion for new trial has been ruled upon, the witness makes an affidavit that he testified falsely, a new trial should be granted. Williams v. State, 375 S.W.2d 449, 451 (Tex.Crim.App.1964). The exceptions to this rule — such as, when the recanting witness is an accomplice, or the recantation is found to be incredible in light of the evidence, or the recantation has been coerced — do not apply in the present case. See Villarreal v. State, 788 S.W.2d 672, 674 (Tex.App.-Corpus Christi 1990, pet. ref'd) (applying general rule to determine that, because State offered no evidence to controvert recantation or testimony, denial of motion for new trial was abuse of discretion). We note that this rule does not require that the State have knowledge that the testimony was false. We review the record to determine whether the State used the false testimony and, if so, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. See Ramirez v. State, 96 S.W.3d 386, 394-95 (Tex.App.-Austin 2002, pet. ref'd).

It is uncontested that the testimony of Dr. Dietz regarding his consultation on a “Law & Order” television show having a plot remarkably similar to the acts committed by appellant was untrue and that there was no “Law & Order” television show with such a plot. The State is bound by its stipulation to these facts. See Dougherty v. State, 745 S.W.2d 107, 107 (Tex.App.-Amarillo 1988), aff'd, 773 S.W.2d 320 (Tex.Crim.App.1989) (stating that State was bound by its stipulation). However, the State asserts that it is “very questionable whether it can be said that the trial prosecutors used Dr. Dietz’ testimony on cross-examination, especially in light of the fact that it played absolutely no role in the development of Dr. Dietz’ conclusion that the appellant knew that her conduct was wrong....”

The record reflects that the State used Dr. Dietz’s testimony twice. First, the State used the testimony to cross-examine Dr. Puryear, who had seen appellant for several months while appellant was in the county jail, asking Dr. Puryear whether she knew that appellant watched “Law <& Order” and whether she knew that there was an episode with a plot line mirroring appellant’s acts. In so doing, the State repeated those facts that were common to appellant’s acts and the referenced episode, thus emphasizing those facts already stated by Dr. Dietz. Second, the State connected the dots in its final argument by juxtaposing appellant’s depression, her dark thoughts, watching “Law & Order,” and seeing “a way out.” Thus, the State used Dr. Dietz’s false testimony to suggest to the jury that appellant patterned her actions after that “Law & Order” episode. We emphasize that the State’s use of Dr. Dietz’s false testimony was not prosecuto-rial misconduct. Rather, it served to give weight to that testimony.

The State argues that Dr. Dietz’s testimony regarding the “Law & Order” episode was not material. The State asserts that “there is no reasonable likelihood” that the testimony “could have affected the judgment of the jury,” but does not make any argument to support such a conclusory statement. We conclude that the testimony, combined with the State’s cross-examination of Dr. Puryear and closing argument, was material. The materiality of the testimony is further evidenced by the fact that appellant’s attorney felt compelled to address it in his own closing argument.

The State also asserts that Dr. Dietz did not suggest that appellant used the plot of the show to plan killing her children. Although it is true that Dr. Dietz did not make such a suggestion, the State did in its closing argument.

Five mental health experts testified that appellant did not know right from wrong or that she thought what she did was right. Dr. Dietz was the only mental health expert who testified that appellant knew right from wrong. Therefore, his testimony was critical to establish the State’s case. Although the record does not show that Dr. Dietz intentionally lied in his testimony, his false testimony undoubtedly gave greater weight to his opinion.

We conclude that there is a reasonable likelihood that Dr. Dietz’s false testimony could have affected the judgment of the jury. We further conclude that Dr. Dietz’s false testimony affected the substantial rights of appellant. Therefore, the trial court abused its discretion in denying appellant’s motion for mistrial.

Accordingly, we sustain appellant’s second issue.

CONCLUSION

Having sustained appellant’s second issue, we need not reach her other issues. We reverse the trial court’s judgment and remand the cause for further proceedings.

      . Appellant was charged in cause number 880205 with intentionally and knowingly causing the deaths of Noah Yates and John Yates. See Tex. Pen.Code Ann. § 19.03(a)(7)(A) (Vernon Supp.2004-2005) (providing that murder of more than one person in same transaction is capital murder). Appellant was charged in cause number 883590 with intentionally and knowingly causing the death of Maty Yates. See Tex. Pen.Code Ann. § 19.03(a)(8) (Vernon Supp.2004-2005) (providing that murder of an individual under six years of age is capital murder).

      . The fifth psychiatrist in this group, Dr. Melissa Ferguson, testified that she had not made a determination regarding appellants ability to know whether her actions were wrong. However, she testified that appellant made the statement that, in the context that the children would perish in the fires of hell, [their drowning] was the right thing to do.

      . Dr. Dietz’s acknowledgment is not on the record. The record is unclear as to whether it was made to the attorney representing the producer or to appellant’s counsel.

      . In our case, Dr. Dietz did not make an affidavit that he testified falsely. However, because the State stipulated that Dr. Dietz would testify that his testimony was in error, there is no credibility issue requiring an affidavit. See Dougherty v. State, 745 S.W.2d 107, 107 (Tex.App.-Amarillo 1988), aff'd, 773 S.W.2d 320 (Tex.Crim.App.1989) (stating that State was bound by its stipulation).

      . We recognize that Ramirez v. State involved the prosecutor’s knowing use of false testimony. 96 S.W.3d 386, 393 (Tex.App.-Austin 2002, pet. ref'd). However, when false testimony is a factor in securing a conviction, the effect is the same, regardless of whether the State used the false testimony knowingly or not. See Trujillo v. State, 757 S.W.2d 169, 172 n. 1 (Tex.App.-San Antonio 1988, no pet.) (Cadena, C.J.concurring).

      . On the other hand, had the juiy known prior to their deliberations in the guilt-innocence phase of the trial, that Dr. Dietz's testimony regarding the “Law & Order” episode was false, the jury would likely have considered him, the State’s only mental health expert, to be less credible.


author: JANE BLAND, Justice.

text:
    King CHAPMAN & Broussard Consulting Group, Inc. and William Broussard, Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Appellee.
    No. 01-03-00989-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 6, 2005.
    Rehearing Overruled Feb. 16, 2005.

      Donn C. Fullenweider, Fullenweider & Wardell, L.L.P, Houston, TX, for appellants.
    Jeff Nobles, David A. Clark, Beirne Maynard & Parsons, L.L.P., Houston, TX, for appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

Appellants, King Chapman & Broussard Consulting Group, Inc. (KCB) and William Broussard, sued appellee, National Union Fire Insurance Company of Pittsburgh, PA (National Union), for breaching its defense and indemnification obligations under a directors and officers’ (D & 0) insurance policy. National Union moved for summary judgment based upon the policy exclusions for contractual liability and pri- or litigation, and the trial court granted National Union’s motion. We hold that the trial court properly rendered summary judgment for National Union based on the policy’s exclusions. We therefore affirm.

The Facts and Procedural History

Turner v. Broussard

Broussard is an officer and director of KCB, a management consulting corporation. In 1996, William Broussard and Evelyn Turner divorced. Five years later, in 2001, Turner sued Broussard in his individual capacity, seeking alimony and other contractual rights allegedly accorded to her in the divorce decree. Among other allegations, Turner alleged that the divorce agreement recited: “Broussard covenants that he will be receiving funds for the benefit of Evelyn Grace Turner and as such is acting in a fiduciary capacity with regard to her interests as reflected therein.” Based on this provision, Turner alleged Broussard had breached his fiduciary duty to her.

In December 2001, Broussard and Turner settled their dispute relating to the amounts owed under the divorce agreement. In addition to Broussard, the settlement agreement released KCB, its subsidiaries, and its affiliates.

The D & O Policy

In September 1999, National Union issued a D & O policy to KCB that insures KCB’s directors, officers, and employees against losses for “wrongful acts” committed “in their capacities” as directors, officers, or employees. The policy excludes coverage for claims that allege contractual liability or that arise out of prior litigation. Under exclusion (f), National Union is not liable for claims:

alleging, arising out of, based upon or attributable to any actual or alleged contractual liability of the Company or any other Insured under any express contract or agreement, [except for employment practice claims].

Under exclusion (h), National Union is not liable for claims:

alleging, arising out of, based upon or attributable to as of the Continuity Date, any pending or prior litigation ...

The “Continuity Date” to which the prior litigation exclusion refers in this case is the policy inception date of September 9, 1999.

Broussard and KCB v. National Union

In February 2001, Broussard and KCB demanded that National Union provide coverage for Turner’s lawsuit against Broussard under KCB’s D & 0 policy. National Union denied coverage. In July 2002, after Broussard and Turner settled their dispute relating to the divorce agreement, Broussard and KCB together sued National Union in this case, seeking reimbursement for defense and settlement costs incurred in the Turner lawsuit and for National Union’s breach of the duty of good faith and fair dealing in its denial of coverage and a defense of the Turner lawsuit. Broussard and KCB sought damages of $783,000, consisting of: $100,000 for Broussard’s attorney’s fees, $100,000 for KCB’s attorney’s fees, $183,000 for the present value of the agreed judgment in the divorce case, $25,000 for reproduction and photo copying costs, and $375,000 in loss to the company for time spent on the Turner matter by Broussard and others.

National Union moved for summary judgment on three grounds: (1) the allegations in Turner’s lawsuit are not within the D & O policy’s scope of coverage, because Turner did not allege wrongful acts committed in Broussard’s capacity as a director or an officer; (2) the D & O policy excludes Broussard and KCB’s claims because the Turner lawsuit arises out of prior litigation; and (3) the D & O policy excludes Broussard and KCB’s claims because Turner’s allegations arise out of an alleged liability under an “express contract,” i.e., the divorce agreement. The trial court granted National Union’s motion for summary judgment, but later set it aside.

National Union then filed a supplemental motion for summary judgment, in which it dropped the first ground and asserted only the two policy exclusions as grounds. Broussard and KCB presented evidence in opposition to the motion, including affidavits by Broussard, Don Peterson, Thomas Oldham, and Donn Fullen-weider. National Union objected to these, save Peterson’s original affidavit. The trial court rendered summary judgment in favor of National Union, ordering that Broussard and KCB take nothing. The summary judgment order does not expressly rule on National Union’s objections, nor does it state the specific ground upon which the trial court granted the motion. Broussard and KCB appeal the trial court’s summary judgment. National Union raises a cross-issue, asking that we affirm on the alternative basis that the D & 0 policy does not afford coverage.

Standard of Review

We review a summary judgment under a de novo standard. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We view all evidence in a light favorable to the nonmovant, and we indulge every reasonable inference in the nonmovant’s favor. Id. For a traditional summary judgment, as here, the moving party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c). If, as here, the trial court’s order does not specify the grounds for its summary judgment, then we affirm should any of the theories presented to the trial court and preserved for appellate review have merit. See Knott, 128 S.W.3d at 216.

The Eight Corners Rule

Under the eight corners rule, the allegations in the pleadings and the language of the insurance policy determine an insurer’s duty to defend. National Union Fire Ins. Co. of Pittsburgh, PA v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997). We view the factual allegations in the petition liberally, resolving any doubt in favor of the insured. McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725, 728 (Tex.App.-Austin 1999, no pet.). An insurer must defend a suit if the petition alleges facts within the scope of coverage. Merchants Fast Motor Lines, 939 S.W.2d at 141. “The duty to defend is not affected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit.” American Alliance Ins. v. Frito-Lay, Inc., 788 S.W.2d 152, 154 (Tex.App.-Dallas 1990, writ dism’d); see also Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (“It is not the cause of action alleged that determines coverage but the facts giving rise to the alleged actionable conduct.”) (emphasis in original).

In general, a coverage determination does not consider matters outside the policy and the pleadings. Capital Bank v. Commonwealth Land Title Ins. Co., 861 S.W.2d 84, 88 (Tex.App.-Houston [1st Dist.] 1993, no writ). We will not read facts into the pleadings, nor will we “imagine factual scenarios which might trigger coverage.” Merchants Fast Motor Lines, 939 S.W.2d at 142. We therefore examine whether the allegations in Turner’s petition together with the D & 0 policy language impose a duty upon National Union to defend and indemnify Broussard and KCB in the Turner lawsuit.

The Petition

In her petition, Turner alleges as follows:

(1) Constructive Trustee and Fiduciary Duty Obligations. In paragraphs 9-11, Turner alleges that Broussard breached his constructive trustee and fiduciary duty obligations, established under section 7.16 of the divorce agreement. Section 7.16 provides that Broussard is a constructive trustee for any property or monies he receives that are to be awarded to Turner under the agreement and “as such is acting in a fiduciary capacity with regard to her interests.” Turner also alleges that Broussard is “guilty of fraud in connection with the divorce agreement and is furthermore liable for punitive damages.”
(2) Breach of Contractual Alimony Obligations. In paragraphs 12-15, Turner alleges that Broussard breached sections 3.02 and 3.03 of the divorce agreement, which require him to pay Turner $6,600 per month as contractual alimony and to prepay Turner a portion of the alimony. Turner alleges that failure to pay the alimony payments “as the parties agreed is a breach of contract.”
(3) 1992 Personal Billings. In paragraphs 16-17, Turner alleges that Broussard failed to pay Turner 50% of all payments received by Brous-sard arising from his 1992 “Personal Billings” as required by schedule 2, section 11 of the divorce agreement.
(4) KCB & G Outplacement Company. In paragraphs 18-21, Turner alleges that Broussard failed to pay Turner 50% of all payments he received as a result of the sale of a certain entity, KCB & G, to AIM, Inc., as required by section 7, schedule 2 of the divorce agreement. She complains of accountings prepared by Peterson, because Peterson owes “allegiance to Broussard and the corporations in which Broussard owns an interest.”
(5) Improper Income Deductions. In paragraphs 22-24, Turner alleges that Broussard made improper income deductions in calculating his alimony prepayment obligations under section 3.03 of the divorce agreement.
(6) Insurance Policy. In paragraphs 25-26, Turner alleges that Brous-sard failed to maintain a life insurance policy naming Turner as an irrevocable beneficiary, as required by the divorce agreement.
(7) Industrial Transformation, Ltd. Union/Labor Management Initiative Payments. In paragraphs 27-31, Turner alleges that Broussard failed to pay Turner 50% of all pre-tax revenues paid directly or indirectly to Broussard from KCB’s union/labor management initiative conducted through Industrial Transformation, Ltd., as required by section 10, schedule 2 of the divorce agreement.
(8) KCB Holding Company Stock. In paragraphs 32-34, Turner alleges that she is entitled to the stock under section 2.02 of the divorce agreement, which provides that any community property omitted from the schedule to the divorce agreement shall be awarded to the party not in possession. The stock of KCB Holding Company was omitted from the schedules, and Broussard was in possession of such property.
(9) Tekniko License Debt Payment. Broussard received a distribution in connection with a Tekniko License, based on a separate debt that existed prior to the divorce agreement. In paragraphs 35-37, Turner alleges that the prior obligation was community property; therefore, she is entitled to payment under section 2.02 of the divorce agreement.
(10) Concealment of Bonus Rights. In paragraphs 38-41, Turner alleges that she is entitled to bonus rights under section 2.02 of the divorce agreement. Turner alleges that a unanimous consent of the board of directors of KCB Holding Co. deferred Broussard’s bonus rights for 1993 and 1994, and Broussard omitted the bonus rights from the schedule of the divorce agreement.
(11) Breach of Fiduciary Duty/Constructive Fraud. In paragraph 42, Turner alleges, “Broussard, as Turner’s former spouse, becomes partner and pursuant to the terms of the Divorce Agreement had a fiduciary relationship with and a fiduciary duty to Turner.” Turner claimed that Broussard violated these duties by forgiving KCB’s obligations to pay 1992 personal billings, of which Turner was to receive 50%, and voting/assisting in the alleged dissolution of Industrial Transformation, Ltd.

Under the eight corners rule, we compare these allegations with the relevant D & 0 policy provisions to determine coverage.

The Policy Exclusions

An insurer has no duty to defend if a petition against an insured alleges facts excluded by the policy. Fidelity & Guar. Ins. Underwriters, Inc. v. McManus, 633 5.W.2d 787, 788 (Tex.1982). National Union moved for summary judgment on the basis that the D & 0 policy excludes coverage for claims “alleging, arising out of, based upon or attributable to” an express contract or prior litigation. Broussard and KCB respond that these exclusions do not apply, because Turner’s allegations pertain at least in part to Broussard’s allegiance and duty to KCB as a director and officer, and not to the Turner divorce litigation or the divorce decree contract settling that litigation.

Express Contract

Exclusion (f) of the D & 0 policy provides that National Union is not liable for claims “alleging, arising out of, based upon or attributable to any actual or alleged contractual liability of the Company or any other Insured under any express contract or agreement.” National Union contends that the D & 0 policy excludes Broussard and KCB’s claims because Turner’s allegations arose out of an alleged liability under an “express contract” — the divorce agreement. Broussard and KCB respond that Turner’s petition “is riddled with allegations of malfeasance by corporate officers” and that her allegations “directly concern Broussard’s conduct as an officer-not any alleged failure to abide by the divorce agreement.”

Turner’s suit against Broussard alleges that Broussard breached his obligations under the divorce settlement agreement by failing to pay alimony and other amounts due under the agreement. A review of Turner’s amended petition, as set forth above, demonstrates that each of Turner’s allegations arises out of, is based upon, and can be attributed to specific sections of the divorce decree. For example, Turner did not allege that Broussard breached any fiduciary duty in his capacity as a corporate officer or director — and the parties agree that Turner owned no stock in KCB and was not a shareholder. Rather, Turner alleged that Broussard breached his constructive trustee and fiduciary duty obligations expressly established under section 7.16 of the divorce agreement. Broussard and KCB respond that a breach of fiduciary duty claim sounds in tort. In this case, however, the only breach of duty Turner alleges is one expressly created by the settlement contract. Such a claim “arises out of’ and is “attributable to” the alleged breach of the divorce agreement.

Broussard and KCB further respond that certain of the alleged breaches of contract necessarily required Broussard to undertake acts in his capacity as an officer of KCB. In particular, they point to paragraph 42 of Turner’s petition, in which she alleges that Broussard breached the divorce agreement when he voted or assisted in the dissolution of Industrial Transformation, Ltd. Assuming that such an allegation falls within the scope of coverage under the D & 0 policy, it nevertheless also falls within the policy’s contract exclusion, because it plainly arises out of Broussard’s contractual obligation to Turner.

In addition, the jurisdiction and venue paragraphs in Turner’s petition expressly refer to the divorce agreement. Turner alleges that jurisdiction is proper in the 308th District Family Court because the parties divorced in that court and “there are controversies between the parties arising under the divorce agreement which are ripe for adjudication. [Broussard] breached this agreement.” Turner’s venue paragraph alleges that Broussard “breached the agreement,” causing damage in Harris County, Texas.

Under the eight corners rule, we evaluate whether National Union’s duty to defend exists based on the allegations in Turner’s petition and the D & O policy. See Merchants Fast Motor Lines, 939 S.W.2d at 142. Turner sued Broussard individually, and each of her allegations relate to Broussard’s contractual liability under the divorce agreement. We hold that Turner’s claims “allege, arise out of, are based upon or attributable to” the divorce agreement; therefore, exclusion (f) precludes coverage under the express contract exclusion, and the trial court properly rendered summary judgment based on this exclusion.

Prior Litigation

Exclusion (h) of the D & 0 policy provides that National Union is not liable for claims “alleging, arising out of, based upon or attributable to as of the Continuity Date [September 9, 1999], any pending or prior litigation.” Broussard and Turner divorced in 1996; thus, the divorce litigation occurred before the 1999 continuity date. Turner sued Broussard in 2001, alleging that Broussard failed to pay alimony or other amounts due under their divorce agreement. After reviewing the allegations in Turner’s amended petition, we conclude that each of Turner’s allegations arises out of specific sections of the 1996 divorce decree. The prior litigation exclusion therefore precludes coverage.

Broussard and KCB rely on Whitworth v. Chiles Offshore Corp. for the proposition that the prior litigation exclusion in the D & O policy is ambiguous. No. 92-1504, 1993 WL 177186, at *1 (E.D.La. May 14, 1993). In Whitworth, the litigation alleged to trigger coverage had been pending before the insurance policy’s inception date. Id. The plaintiff in the underlying litigation, however, did not name the officers and directors as defendants until after the inception date. Id. Whitworth is distinguishable, because Broussard was the sole defendant in the 1996 Turner divorce litigation, and it concluded before the D & O’s policy’s 1999 continuity date. Thus, no interpretive issue as to whether the divorce litigation was “prior” to the inception date arises. The prior litigation exclusion is not ambiguous in this case, and the trial court properly rendered summary judgment for National Union based on this exclusion.

The Summary Judgment Affidavits

Broussard and KCB urge this court to consider extrinsic evidence in addition to the petition and policy. For example, they point to Turner’s discovery responses, in which she names KCB as “a potential party” to the suit. Broussard and KCB also rely on the affidavits they filed in opposition to National Union’s motion for summary judgment by Broussard, Peterson, Oldham, and Fullenweider. Broussard and KCB contend that these affidavits raise a genuine issue of material fact as to whether Broussard acted solely as Turner’s ex-husband or at least in part as a KCB officer/director.

Broussard and his co-officer, Peterson, offer affidavits that interpret the factual allegations in Turner’s pleadings as ones involving Broussard’s role as an officer and a director. Broussard’s original affidavit avers that “all of [Turner’s] claims for future contingency payments through me for her shares in KCB came down to a claim that I, acting as an officer and director, took actions which prevented her from receiving her interests.” Broussard’s amended affidavit characterizes Turner’s suit as one alleging that Broussard “defrauded [Turner] out of money she was owed by abusing my power as a corporate officer and/or director.” In other words, Turner’s allegations concerned business decisions requiring corporate approval. In his supplemental affidavit, Peterson, the Chief Financial Officer of KCB, similarly states that Turner’s allegations refer to decisions by KCB officers and/or directions to dissolve Industrial Transformation, Ltd. and to defer certain bonuses and the AIM sale.

Broussard also offers an affidavit that interprets the legal character of the Turner lawsuit. Thomas Oldham, a professor of law at the University of Houston Law Center, opines in his affidavit that Turner’s suit “would have to be sounded in tort for breach of fiduciary duty based on Broussard’s being a shareholder, officer, and director of KCB. There was not a claim for breach of contract against him for failure to perform a specific provision of the [divorce agreement] because he didn’t breach that agreement.”

Broussard urges that these affidavits create a fact issue as to coverage, because they cast a different light on the allegations in the petition. The Texas Supreme Court, however, has never recognized an exception to the strict eight corners rule so as to allow courts to examine extrinsic evidence in determining an insurer’s duty to defend. Landmark Chevrolet Corp. v. Univ. Underwriters Ins. Co., 121 S.W.3d 886, 890 (Tex.App.-Houston [1st Dist.] 2003, pet. filed). Moreover, even the Texas appellate courts that have allowed such evidence have done so in the most limited of circumstances. For example, in State Farm Fire & Cas. Co. v. Wade, the Corpus Christi Court of Appeals considered extrinsic evidence about the use of a boat that was the subject of the policy, because the court could not determine whether the personal boat owner’s private liability policy provided coverage. 827 S.W.2d 448, 453 (Tex.App.-Corpus Christi 1992, writ denied). The court held that the boat’s use at the time of the accident — whether commercial or private- — -was an essential fact of coverage that did not question the truth or falsity of any facts alleged in the underlying petition. Id. Here, the Turner petition specifically alleges acts that give rise to liability under the settlement agreement-which expressly determine that coverage is excluded.

For further support, Broussard and KCB cite to Utica Lloyd’s of Texas v. Sitech Engineering Corp., in which the Texarkana Court of Appeals, citing to the Wade exception, stated that a court may consider extrinsic evidence if the policy terms are ambiguous, or the petition does not contain factual allegations sufficient to enable the court to determine whether the claims are within the policy coverage. 38 S.W.3d 260, 263 (Tex.App.-Texarkana 2001, no pet.). The Utica court, however, held that the trial court had erred in considering extrinsic evidence in that case, as neither of the exceptions applied. Id. at 263-64. Similarly, in this case, we find the factual allegations in the Turner petition sufficient to determine whether the prior litigation and breach of contract exclusions apply.

Finally, our court has rejected the Wade exception and applies a strict eight corners rule. Landmark Chevrolet, 121 S.W.3d at 890-91; Tri-Coastal Contractors, Inc. v. Hartford Underwriters Ins. Co., 981 S.W.2d 861, 863-64 (Tex.App.Houston [1st Dist.] 1998, pet. denied). We observe that the Fifth Circuit also recently made an Erie guess that the Texas Supreme Court does not recognize any exception to the strict eight corners rule:

In light of the Texas appellate courts’ unwavering unwillingness to apply and recent repudiations of the Wade type of exception, this Court makes its Erie guess that the current Texas Supreme Court would not recognize any exception to the strict eight corners rule. That is, if the four corners of the petition allege facts stating a cause of action which potentially falls within the four corners of the policy’s scope of coverage, resolving all doubts in favor of the insured, the insurer has a duty to defend. If all the facts alleged in the underlying petition fall outside the scope of coverage, then there is no duty to defend. However, in the unlikely situation that the Texas Supreme Court were to recognize an exception to the strict eight corners rule, we conclude any exception would only apply in very limited circumstances: when it is initially impossible to discern whether coverage is potentially implicated and when the extrinsic evidence goes solely to a fundamental issue of coverage which does not overlap with the merits of or engage the truth or falsity of any facts alleged in the underlying case.

Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir.2004).

We follow our precedent and decline to apply an exception to the eight corners rule. See Landmark Chevrolet, 121 S.W.3d at 891; Tri-Coastal, 981 S.W.2d at 863-64. We therefore do not consider Broussard’s extrinsic evidence about the pleadings of the underlying case. See Landmark Chevrolet, 121 S.W.3d at 891; Tri-Coastal, 981 S.W.2d at 863-64.

Cross-Issue: Scope of Coverage

In its cross-issue, National Union contends that the trial court should have granted National Union’s original summary judgment on its alternative ground that Broussard and KCB’s claims are not within the scope of the coverage under the D & O policy. We hold that the trial court properly granted National Union’s supplemental motion for summary judgment based on the policy exclusions. We therefore need not address whether Turner’s petition alleges wrongful acts that afford D & O coverage under the policy under circumstances in which the two exclusions do not apply.

Conclusion

Under the eight corners rule, National Union’s duty to defend depends on the allegations in Turner’s petition and the scope of coverage established in the D & O policy. We hold that trial court properly granted National Union’s motion for summary judgment based on the contractual liability and prior litigation policy exclusions. We therefore affirm the judgment of the trial court.

      . The parties do not distinguish between National Union's defense and indemnification obligations in evaluating coverage under the policy. Thus, we similarly evaluate the two obligations together.

      . The 308th District Court of Harris County issued the divorce decree. Turner sued Broussard in the same court, alleging that jurisdiction was proper because "there are controversies between the parties arising under the divorce agreement which are ripe for adjudication.”

      .National Union issued the D & O policy number 859-52-97, which ran from September 9, 1999 to January 5, 2001. National Union renewed this policy with number 872-37-61, which ran from January 5, 2001 to January 5, 2002. Turner filed her suit on January 30, 2001; therefore, the second policy is applicable. The relevant provisions of both D & O policies are identical.

      . Peterson is the chief financial officer of KCB; Oldham is a professor of law at the University of Houston Law Center; and Ful-lenweider is the attorney for KCB and Brous-sard.

      . In opposition to National Union’s original motion for summary judgment, Broussard and KCB filed affidavits by Broussard, Peterson, and Oldham. In opposition to National Union’s supplemental motion for summary judgment, Broussard and KCB filed Brous-sard’s original affidavit and a revised affidavit, Oldham’s original affidavit, Fullenweider's revised affidavit, and Peterson’s revised affidavit.

      . Broussard and KCB contend that Turner was a "putative” shareholder. Turner, however, never characterizes her claims against Broussard as shareholder claims — putative or otherwise — nor does she allege that her claims against Broussard arise out of any obligation separate from the divorce settlement agreement.

      . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Transcontinental Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir.1992) ("[I]t is the duty of the federal court to determine as best it can, what the highest court of the state would decide.”)-


author: Justice MAZZANT.

text:
    In the GUARDIANSHIP OF Eva Manning BAYNE, an Incapacitated Person. In re Estate of Eva Manning Bayne, Deceased.
    No. 05-04-00291-CV.
    Court of Appeals of Texas, Dallas.
    April 25, 2005.
    Rehearing Overruled Sept. 23, 2005.

      Emil Lippe, Jr., Lippe & Associates, P.C., Dallas, for Appellant.
    David S. Mallard, Terrell, for Appellee.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

William R. Bayne appeals three orders from the guardianship and probate proceedings in favor of the American National Bank of Texas (the Bank) concerning the guardianship and the estate of his mother, Eva Manning Bayne (Ward and Deceased, respectively). We reverse in part and affirm in part.

BACKGROUND

In 2000, William Bayne applied to have his mother declared incapacitated and to have a guardianship imposed on her person and estate. The county court granted the application, declared Mrs. Bayne to be incapacitated, imposed a temporary guardianship on her person and estate, and appointed the Bank the temporary guardian of her estate. In an order signed March 28, 2003, the county court made the temporary guardianship permanent and appointed Bayne the permanent guardian of the Ward’s estate, but the court also declared that the Bank “shall continue to serve as the Temporary Guardian of the Ward and continue to manage all assets belonging to the Ward ... until such time as this Court ... relieves such Temporary Guardian of its duties.”

In June 2003, Mrs. Bayne died. Bayne filed her will for probate and was appointed independent executor of her estate. In August 2003, the county court signed an order agreed to by the Bank and Bayne ordering the Bank to transfer all the assets of the Ward’s estate to Bayne as independent executor of the Deceased’s estate except for $11,500 cash, which the Bank could retain “pending resolution of certain disputed expenditures, and/or further orders of this court.” The Bank followed the order and transferred all of the Ward’s estate to Bayne except $11,500.

In November 2003, the Bank applied in both the guardianship and probate proceedings for the county court to transfer over $100,000 of the Deceased’s estate back into the Ward’s estate.

On December 15, 2003, the court signed an order in the guardianship proceeding authorizing and directing the Bank “and any other party having possession or control of the funds of the ward” to pay the Bank’s claim for $5668.32 and attorney Jerry Huffs claim for $8283.

On January 21, 2004, the Bank applied to the county court in both proceedings for authority to pay Huff $2953.50 from the remaining assets in the Ward’s estate. That same day, the county court signed an order in both proceedings approving payment of $2953.50 to Huff, found there were ample funds in the Ward’s estate to pay this amount, that “payment of same would be in the best interests of this estate,” and ordered the Bank as temporary guardian to pay Huff that sum. Bayne filed a notice of appeal concerning this order. The guardianship and probate proceedings were then transferred to the county court at law.

On January 29, 2004, the Bank applied in both proceedings for authority to pay attorney David Mallard $6191.10 for his fees through January 16, 2004; the Bank requested that the court order either it or Bayne as executor of the Deceased’s estate to pay Mallard. On March 8 and 15, 2004, the county court at law heard evidence and testimony concerning the November 2003 application to transfer assets and the January 29, 2004 application to pay Mallard’s fees. On March 16, 2004, the county court at law signed an order in both proceedings requiring Bayne as independent executor of the Deceased to “immediately re-transfer to the custody and control” of the Bank as temporary guardian of the Ward $20,000 of the money previously transferred from the Bank as guardian to Bayne as independent executor. The court also signed an order in both proceedings for the Bank as guardian “and/or” Bayne as independent executor to pay Mallard $6191.10 “out of the funds belonging to the Estate of Eva Manning Bayne, _” Bayne filed notices of appeal from both of these orders.

STANDARD OF REVIEW

A court’s rulings on guardianship and probate applications are generally reviewed under the abuse of discretion standard. See, e.g., Epstein v. Hutchison, No. 01-02-01274-CV, — S.W.3d —, —, 2004 WL 2475220, at *1 (Tex.App.-Houston [1st Dist.] Nov. 4, 2004, pet. denied) (review of attorney’s fees incurred by guardian); In re Estate of Robinson, 140 S.W.3d 801, 807 (Tex.App.-Corpus Christi 2004, pet. dism’d) (review of order finding person unsuitable to serve as executor). A court abuses its discretion when its actions are unreasonable or arbitrary or are without reference to any guiding rules or principles. Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 497 (Tex.App.-Austin 2003, no pet.). However, when an issue involves only a question of law, we review that determination de novo. Epstein, — S.W.3d at —, 2004 WL 2475220, at *1.

JANUARY 21, 2004 ATTORNEY’S FEES ORDER

Bayne argues the January 21, 2004 order granting the Bank’s application filed that same day to pay Huff $2953.50 is void because Bayne received no notice of the application before the order was signed, he had no opportunity to be heard, and he had a right to a jury trial on the issue. He also asserts the award is void because the Ward was deceased, an independent executor of the Deceased’s estate had been appointed, and the Bank had not applied to the independent executor for payment of the claim as required by the probate code. Finally, he argues the application did not follow the correct claims procedures.

Notice

Bayne argues the order is void because he received no notice of the application for attorney’s fees before the court granted it. Section 632 of the guardianship provisions in the probate code provides, “A person does not need to be cited or otherwise given notice in a guardianship matter except in situations in which this chapter expressly provides for citation or the giving of notice.” Tex. PROb.Code Ann. § 632(a) (Vernon 2003). Nothing in the relevant chapter of the probate code indicates that notice is statutorily required for a guardian’s application to pay attorney’s fees incurred in administering the ward’s estate. Bayne had the right to file a request to “be notified of any or all specifically designated motions, applications, or pleadings filed by any person.” Id. § 632®. Nothing in the record shows Bayne filed a request for notice of any application for payment of attorney’s fees; accordingly, he was not entitled to notice.

Bayne asserts he had to be entitled to notice because he was entitled to a jury trial under section 643 of the probate code, and he argues that the right to a jury trial is meaningless without notice. Section 643 provides, “A party in a contested guardianship proceeding is entitled, on request, to a jury trial.” Id. § 643 (emphasis added). The record does not show the guardianship proceeding on the application for Huffs fees was contested; thus, the record does not support Bayne’s argument that he had a statutory right to a jury trial. To the extent Bayne asserts he could not contest the proceeding without notice, we observe he had no right to notice unless he filed a request for notice under section 632(j).

Death of the Ward

Bayne also argues the Ward’s death ended the guardianship, and what had been the Ward’s estate immediately became the Deceased’s estate. Because there was an independent executor of the Deceased’s estate, no payment from the Deceased’s estate could be made without first applying to the independent executor as required by section 298 of the probate code. Id. § 298(a). We disagree.

The Ward’s estate did not cease to exist at the Ward’s death. Section 745 provides, “A guardianship of the estate of a ward shall be settled when: ... (2) an incapacitated ward dies....” Id. § 745(a)(2). The settlement of the estate requires the guardian to file an “account for final settlement of the estate” and to deliver the estate to a person legally entitled to it. Id. §§ 749, 758. However, contrary to Bayne’s argument, those are not the only actions the guardian may take. Section 746 provides,

Before the guardianship of a person or estate of a ward is closed on the death of a ward, the guardian, subject to the approval of the court, may make all funeral arrangements, pay for the funeral expenses out of the estate of the deceased ward, and pay all other debts- out of the estate. If a personal representative of a deceased ward is appointed, the court shall on the written complaint of the personal representative cause the guardian to be cited to appear and present a final account as provided in Section 749 of this code.

Id. § 746. If, at death, a ward’s estate became the deceased’s estate, requiring presentment of all claims to the personal representative of the deceased, then section 746 would be rendered meaningless. As written, however, section 746 permits the guardian to pay any of the remaining debts of the ward’s estate before transferring the estate to the deceased’s representative, but only with the court’s approval to do so, and it provides a remedy for the representative of the deceased should he allege misapplication of property by the guardian. In this case, the Bank, as temporary guardian, applied for payment of one of the debts, Huffs fees, out of the Ward’s estate, and the court approved that expenditure.

Claims Procedures

Bayne also argues the application “was totally deficient in failing to follow the claims procedures set forth in subpart G ... of the Probate Code.” Subpart G has twenty-six sections containing at least that many requirements, but Bayne does not specify which provisions were not followed. Regardless, however, section 789 provides that defects of form or claims of insufficiency of exhibits or vouchers are deemed waived unless the objection to the form or sufficiency is presented in writing and filed with the county clerk within thirty days of the presentment of the claim. Id. § 789 (Vernon 2003). The record does not show Bayne filed any such objections with the county clerk. Thus, to the extent Bayne complains of the defects in the form or sufficiency of the exhibits supporting the attorney’s-fees claim, they are waived. To the extent Bayne may be complaining of any lack of authentication of the claim, section 792 permits a guardian to pay an unauthenticated claim the guardian believes is just, “but the guardian ... shall be liable for the amount of any payment of the claim if the court finds that the claim is not just.” Id. § 792. In this case, the record does not show Bayne has challenged the claim in the lower court as “not just.”

We conclude Bayne’s arguments that the January 21, 2004 judgment is void lack merit.

MARCH 16, 2004 TRANSFER ORDER

Bayne next asserts the court lacked authority to order him to re-transfer assets from an independently administered probate estate back to a guardianship proceeding. We agree.

In an independently administered estate, the court’s involvement in the administration of the estate is limited to the specific provisions of the probate code. Collins v. Baker, 825 S.W.2d 555, 556 (Tex.App.-Houston [14th Dist.] 1992, orig. proceeding). The probate code sets out the specific actions the court may take when an independent executor has been appointed. See Tex. PROB.Code Ann. §§ 148-150, 152. None of those provisions permits the court to order the independent executor to “re-transfer” or “pay” funds from the Deceased’s estate to the Ward’s estate. Those assets had been transferred from the Ward’s estate to the Deceased’s estate through an agreed order on August 28, 2003 pursuant to section 747(a). See id. § 747(a) (Vernon Supp.2004-05). The court’s order to “re-transfer” a portion of those assets back to the guardianship was without any basis in the law. The Bank argues that section 5A gives the court broad authority over the administration of estates, but section 5A also provides that it “shall not be construed so as to increase permissible judicial control over independent executors.” Id. § 5A(b).

We conclude the court’s March 16, 2004 order requiring Bayne, as independent executor, to “re-transfer” or “pay” assets to the Bank as temporary guardian was an abuse of discretion. Accordingly, we vacate the order.

MARCH 16, 2004 ORDER TO PAY ATTORNEY’S FEES

Bayne also appeals the March 16, 2004 order requiring the Bank as guardian “and/or” Bayne as independent executor to pay Mallard $6191.10.

The probate code sets out the procedure for obtaining payment of a debt owed by a deceased’s estate with an independent administration. The claimant must timely file a claim with the independent executor. Id. §§ 146, 298 (Vernon 2003). If the claim is rejected, the claimant may bring suit against the independent executor, and if the claimant prevails, the judgment is executed against the estate. Id. § 147. In this case, neither the Bank nor Mallard presented a claim to Bayne as independent executor, and neither brought suit against Bayne as independent executor. Instead, the Bank filed an application for payment in the guardianship and probate proceedings. The court’s order requiring the Deceased’s estate to pay Mallard’s attorney’s fees constitutes an unwarranted intrusion into the independent administration of the estate. Accordingly, we set aside the order to the extent it orders Bayne, as independent executor, to pay Mallard.

Bayne also argues that the court abused its discretion by ordering the Bank to pay Mallard. Bayne first asserts that on March 16, 2004, the Bank was no longer the temporary guardian because the letters of guardianship had expired. “All letters of guardianship expire one year and four months after the date of issuance unless renewed.” Id. § 659(b). ‘Whenever temporary letters expire ..., the court shall immediately enter an order requiring the temporary appointee to deliver the estate remaining in the temporary appointee’s possession to the person who is legally entitled to the possession of the estate. The temporary appointee shall be discharged.” Id. § 879. In this case, the letters of temporary guardianship were issued to the Bank on December 5, 2001, so they expired on April 5, 2003. However, the court did not immediately order the Bank to deliver the estate “to the person who is legally entitled to the estate,” and the court did not discharge the Bank. Despite the expiration of the letters, the Bank’s authority as temporary guardian continued.

Bayne also asserts the Bank’s temporary guardianship ceased when Bayne was appointed permanent guardian. Section 875 provides, “The term of the temporary guardian expires ... on the date a permanent guardian the court appoints for the proposed ward qualifies to serve as the ward’s guardian.” Id. § 875(Z) (Vernon Supp.2004-05). The court’s order appointing Bayne permanent guardian, however, specifically provided that the Bank’s temporary guardianship was to continue and that the Bank was to “manage all assets,” accept funds, and pay the expenses for the Ward until the court approved a final account filed by the Bank and relieved it of its duties. The order did not require the Bank to submit its final account within any time period. The record does not show the Bank has filed its final account or that the court has relieved the Bank of its duties as temporary guardian. Despite the use of the title “permanent guardian,” this order did not appoint Bayne permanent guardian because, with the Bank managing all the Ward’s assets, the primary responsibility of a guardian of the estate was placed with the Bank, not Bayne. Thus, notwithstanding section 875(l), the Bank’s temporary guardianship did not cease with Bayne’s purported appointment to permanent guardian.

Bayne also asserts the court lacked authority in the guardianship proceeding to enter the order to pay Mallard’s fees because, Bayne argues, after the death of the ward, the court is without jurisdiction to take any action other than ordering the guardian to make a final accounting and conclude the guardianship, citing Carroll v. Carroll, 893 S.W.2d 62 (Tex.App.-Corpus Christi 1994, no writ).

In Carroll, the Corpus Christi Court of Appeals considered the jurisdiction of a county judge in a guardianship proceeding to order, one year after the ward’s death, the sale of land in the ward’s estate to pay the ward’s debt to the nursing home in which she resided for twenty-one years before her death. Carroll, 893 S.W.2d at 63-64. After reviewing various provisions of the probate code, the court stated, “We believe that the Probate Code is clear. A guardianship ceases to exist upon the death of the ward and the guardian is required only to exercise those powers necessary to settle and close the guardianship as a prerequisite to his discharge.” Id. at 68. We disagree with Corpus Christi Court’s interpretation. The probate code makes clear that a guardianship may be “kept open after the death of the ward.” See Tex. Pkob.Code Ann. §§ 781(a)(7), 805(a)(2), 818, 820(1). The probate code permits a court overseeing a guardianship to make orders following the ward’s death other than requiring a final accounting and closing the guardianship. For example, the code permits the court, after the ward’s death, to order or approve the guardian’s payment of funeral expenses, inheritance taxes, and “all other debts out of the estate.” Tex. PROb.Code Ann. § 746, 754. Accordingly, we cannot agree with the Corpus Christi Court that a guardianship necessarily ceases to exist on the death of the ward but can stay open after the death of the ward. The code leaves the decision of what debts to pay in the hands of the guardian, who must have the approval of the court, and the code provides a remedy should the deceased’s personal representative have a complaint about the guardian’s postmortem spending. Id. § 746. Thus, to the extent Mallard’s fees were a debt owed by the Ward’s estate, the court had authority to order their payment. Id.

Bayne also asserts the court erred in approving the application to pay Mallard because the evidence did not show Mallard’s services were necessarily incurred in the management of the Ward’s estate. Whether the fees benefitted the Ward’s estate was a disputed issue of fact determined by the court. In the order to pay Mallard’s fees, the court stated, “[T]he Court finds that such attorney’s fees and expenses are reasonable and just; that such fees were necessarily incurred in the administration of the Guardianship.... ” Bayne did not request the court to file findings of fact and conclusions of law, and the court did not file findings of fact and conclusions of law. In a trial to the court, where no findings of fact or conclusions of law are filed, the judgment of the court implies all necessary findings of fact to support it. Gibson v. Ellis, 126 S.W.3d 324, 335 (Tex.App.-Dallas 2004, no pet.). Where the implied findings of fact are supported by the evidence, it is our duty to uphold the judgment on any theory of law applicable to the ease. Id. Likewise, when the court makes some findings on a claim but has omitted one or more elements of the claim, the omitted elements will be presumed when supported by some evidence. Tex.R. Civ. P. 299.

In this case, Mallard’s testimony explained how the fees were necessarily incurred in the management of the Ward’s estate. Bayne argues that Mallard’s testimony shows his fees were not necessarily incurred in the management of the Ward’s estate because the fees were incurred after the Ward had died and included fees for representing the Bank as guardian at a probate hearing. Neither of these events prevents the fees from having necessarily been incurred in the management of the Ward’s estate. Bayne also cites evidence that the Bank had not filed the annual accountings or the final accounting as required by statute and had improperly accepted and cashed Social Security and Veterans Administration checks after the Ward’s death; none of these events interferes with the propriety of Mallard’s services and fees.

We conclude the record does not show the court abused its discretion in ordering the Bank as guardian of the Ward’s estate to pay Mallard’s fees.

CONCLUSION

We affirm the January 21, 2004 order. We vacate the March 16, 2004 order to re-transfer $20,000 from the Deceased’s estate to the Ward’s estate. We vacate the March 16, 2004 order to pay Mallard insofar as it orders Bayne as independent executor to pay Mallard’s attorney’s fees, and we affirm the order to the extent it orders the Bank as temporary guardian to pay Mallard.