author: PER CURIAM.

text:
    In re CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a Christus St. Mary Hospital.
    No. 09-05-124 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 11, 2005.
    Decided June 30, 2005.

      Curry L. Cooksey, L. Susan Herrera, Orgain, Bell & Tucker, LLP, The Woodlands, for relator.
    Mitchell A. Toups, Steven C. Toups, Weller, Green, Toups & Terrell, LLP, Beaumont, for real party in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

PER CURIAM.

This original proceeding involves a discovery dispute. Relator, Christus Health Southeast Texas d/b/a Christus St. Mary Hospital (St. Mary), seeks mandamus relief from the trial court’s order requiring St. Mary to produce certain documents requested by real parties in interest, Terry Naegele Russell, et al. (Russell). These items are set out in Plaintiffs’ Fourth Request for Production, numbers 1-4, as follows:

1. Please produce any and all documents showing the chief complaint of the patients in the emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.
2. Please produce any and all documents showing the triage codes of the patients in the emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.
3. Please produce any and all documents showing the chief complaint of the patients who had been moved into emergency rooms other than emergency rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.
4. Please produce any and all documents showing the triage code of the patients who had been moved into emergency rooms other than rooms 2, 3, 4, and 5 on March 3, 2003 at 8:37 a.m. Plaintiff does not request the identity of these patients and specifically requests that defendant redact the identities of the patients involved.

To each of these four requests, St. Mary provided the same response: “Objection-Physician/Patient privilege, hospital patient privilege, HIPAA privilege.” The record provided to us is silent as to any further action by St. Mary until Russell’s motion to compel was filed. Russell’s motion to compel included the following counter-argument to St. Mary’s privilege objection:

In this case, the de-identified information requested is relevant to the defenses set forth by Christus in this case. Christus claims that the hospital was full and no beds were available. The Plaintiffs’ contend that Christus had beds available and should have moved a patient with a lower acuity level. Christus should not be allowed to use HIPAA as a shield to protect information that is relevant to the defenses asserted by Christus in this litigation. Plaintiffs’ [sic] therefore request that Christus be compelled to answer request for production numbers 1-4 within three (3) days.

St. Mary filed a response to the motion to compel entirely ignoring Russell’s claim that HIPAA provided an exception to the general rule prohibiting disclosure of protected information (“45 C.P.R. § 164.512(e)”), and ignoring Russell’s assertion that Christus was defending the lawsuit by claiming the hospital was full and no beds were available. St. Mary’s response included citations to various cases recognizing the general rule that communications between a physician and patient are privileged and may not be disclosed. The response also focused heavily on portions of statutes and rules, and included authority discussing constitutional recognition of a “zone of privacy,” all in support of its contention that non-party medical records are privileged and, therefore, not discoverable. Although the trial court’s order indicates a hearing on Russell’s motion to compel may have taken place, it also indicates the court only considered “the Motion” in granting Russell the relief requested. Our record does not include a reporter’s record nor do we have any indication that affidavits were attached to either Russell’s motion to compel or to St. Mary’s response. See Tex.R. Civ. P. 193.4(a). Indeed, we have no indication that any evidence was presented to the trial court prior to its ruling.

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. The relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. See Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig.proceeding). With respect to factual matters committed to the trial court’s discretion, the appellate court may not substitute its judgment for that of the trial court. Id. However, review of a trial court’s determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we must focus on the record that was before the court and on whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998) (orig.proceeding).

An examination of the rules of civil procedure pertaining to discovery indicates that upon receipt of a request for discovery, to protect privileged information or material, a party should not object to the request based upon privilege. See Tex.R. Civ. P. 193 cmt. 3. Instead, the comment notes that Rule 193 “requires parties to state that information or materials have been withheld and to identify the privilege upon which the party relies.” Id. Therefore, instead of objecting to discovery based on privilege, a party may withhold the privileged material. See In re Maher, 143 S.W.3d 907, 913 (Tex.App.Fort Worth 2004, orig. proceeding). However, the party must state in the response (or an amended or supplemental response) or in a separate document that: “(1) information or material responsive to the request has been withheld, (2) the request to which the information or material relates, and (3) the privilege or privileges asserted.” Tex.R. Civ. P. 193.3(a); see also Maher, 143 S.W.3d at 913. Then, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld. See Tex.R. Civ. P. 193.3(b); Maher, 143 S.W.3d at 913. Within fifteen days of service of the request, the withholding party must serve a response that: “(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and (2) asserts a specific privilege for each item or group of items withheld.” Tex.R. Civ. P. 193.3(b); Maher, 143 S.W.3d at 913. Thus, the description of the information or material withheld must be specific enough that the requesting party can identify each document withheld and assess the applicability of that privilege. Id. Any party may then request a hearing on a claim of privilege asserted. See Tex.R. Civ. P. 193.4(a); Maher, 143 S.W.3d at 913.

In the instant case, Russell’s request for production also requested a “schedule” containing information roughly corresponding to the contents of the privilege log described under Rule 193.3(b)(1) & (2). Thereafter, as noted above, St. Mary responded to each of the four requests in question with an “objection” and the notations “Physician/Patient privilege, hospital patient privilege, HIPAA privilege.” Although St. Mary should not have objected on the basis of privilege, this was not fatal to its privilege assertion. See Tex.R. Civ. P. 193.2(f). However, our record does not indicate whether or not St. Mary produced a privilege log, as would appear to be necessitated by Russell’s additional request in anticipation of St. Mary’s privilege assertion.

Because there is no presumption that documents are privileged, a party who seeks to limit discovery by asserting a privilege has the burden of proof. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223, 225 (Tex.2004) (orig.proceeding). This is initially accomplished by the party’s making a prima facie showing of privilege, with the “prima facie standard” being defined as requiring the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” See id. at 223 (quoting Texas Tech Univ. Health Sci ences Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.App.-El Paso 1994, wit denied)). However, the Supreme Court has said that “in some limited circumstances the documents themselves may, standing alone, constitute sufficient proof.” See State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991); see also In re Anderson, 973 S.W.2d 410 (Tex.App.-Eastland 1998, orig. proceeding). In Anderson, for example, the court of appeals held it was evident, without any other evidence, that a discovery request for the identities of patients sought privileged information. Id. at 412.

In In re CI Host, Inc., 92 S.W.3d 514 (Tex.2002) (orig.proceeding), the Supreme Court found the relator failed to meet its burden to support its objection to an order requiring production of computer backup tapes containing allegedly privileged information. Id. at 514, 516-17. The Court stated, “Any party making an objection or asserting a privilege must present any evidence necessary to support the objection or privilege. Tex.R. Civ. P. 193.4(a). The trial court should then determine whether an in camera inspection is necessary; if so, the party seeking protection must segregate and produce to the court the materials it seeks to protect from disclosure.” CI Host, Inc., 92 S.W.3d at 516. The Supreme Court then described the procedural background of the case, including the lack of proof by relator, CI Host, Inc., as follows:

At the first discovery hearing, Cl Host had the burden to present evidence supporting its objection, see Tex.R. Civ. P. 193.4(a), but did not present any evidence to the court. At the second hearing, Cl Host offered CEO Faulkner’s affidavit generally describing the nature of Cl Host’s business and stating summarily that the backup tapes contained information such as customers’ e-mails, trade secrets, and business documents. It also offered testimony from its attorney, John Harvey, that he had seen customer lists and customer indexes and directories on two of the March 1st tapes. None of this general testimony provides the factual basis to sustain Cl Host’s objection that all of the information on the tapes is “the contents of a communication” or is “in electronic storage” on the tapes and thus protected from disclosure by the ECPA. See 18 U.S.C. § 2702.... Thus, in light of Cl Host’s failure to produce evidence to support its ECPA objection or to segregate and produce the information it has now admitted is not protected by the ECPA, we cannot conclude that the trial court abused its discretion in overruling that objection and ordering the tapes produced.

Id. at 516-17.

In the instant case, the discovery request sought “any and all” documents showing the emergency room patients’ “chief complaint,” and “any and all” documents showing the triage codes, with any identifying information to be redacted. Relator says these requests for documents would include the patients’ emergency room medical records, and plaintiffs do not contest this assertion. “Records of the identity, ■diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.” See Tex.R. Evid. 509(c)(2). It would seem likely patients seeking treatment in hospital emergency rooms are there to be evaluated, diagnosed, or treated by an emergency room physician. Plaintiffs argue nevertheless that relator is not a physician, and that the privilege is therefore inapplicable here.

The physician-patient privilege belongs to the patient, and the other emergency room patients on that day are not parties to this litigation. Rule 196.1(c)(1) of the Texas Rules of Civil Procedure states, “If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production under Rule 21(a).” Tex.R. Civ. P. 196.1(c)(1). The record before this Court does not indicate service of the request on the nonparties in this case. Rule 196.1(c)(2)(B) provides an exception to the service requirement if “the identity of the nonparty whose records are sought will not directly or indirectly be disclosed by production of the records.” The redaction of the identities of the patients may be sufficient to satisfy Rule 196.1(c)(2)(B). However, Rule 196.1(c)(2)(B) is an exception to the notice requirement, not an exception to the privilege. See In re Columbia Valley Reg’l Med. Ctr., 41 S.W.3d 797, 800 (Tex.App.Corpus Christi 2001, orig. proceeding).

Rule 509(d)(1) provides that “[t]he privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient’s behalf.” Tex.R. Evid. 509(d)(1). Rule 509(d)(2) provides that the physician may claim the privilege on behalf of the patient. Relator has not shown it is representing the patients, nor has any physician or patient claimed the privilege. However, merely because relator is not able to control or claim the privilege does not mean the privilege does not exist or can be ignored. The patients have not been given an opportunity to claim the privilege, and a claim of privilege is not defeated by a disclosure which is made without that opportunity. See Tex.R. Evid. 512. Even when a patient consents to disclosure, Rule 509(f)(3) provides the information may be disclosed only to the extent consistent with the authorized purposes for which consent to release the information was obtained. There is nothing in the record indicating the nonparties have consented to disclosure for purposes of this litigation. When nonparties’ privacy rights may be detrimentally affected or even abrogated by disclosure, the Supreme Court has been “loath” to allow a party to unilaterally waive the privacy rights “by its failing to adhere to the discovery rules.” See In re CI Host, Inc., 92 S.W.3d at 517 (involving disclosure of computer back-up tapes). Similarly, we are loath to allow the parties here to waive the other emergency room patients’ physician-patient privileges by failing to adhere to the rules.

However, Rule 509, the physician-patient privilege rule, includes exceptions. The plaintiffs rely on the litigation exception in Tex.R. Evid. 509(e)(4) set out below:

(e) Exceptions in a Civil Proceeding. Exceptions to confidentiality or privilege in administrative proceedings or in civil proceedings in court exist:
(4) as to a communication or record relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party’s claim or defense[.]

The Supreme Court has held that when this exception applies, the physician-patient privilege is terminated “even though the patient is not a party to the litigation.” R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex.1994); see also In re Whiteley, 79 S.W.3d 729, 732 (Tex.App.-Corpus Christi 2002, orig. proceeding). Plaintiffs assert the documents are “relevant to the defense asserted by Christus that all rooms were full. To respond to this defense, the triage codes and chief complaints of the patients in the six (6) emergency rooms when Russell arrived are relevant in order to determine whether a patient with a lower acuity level could have been moved so that Russell could have received the immediate care he so desperately needed.” The Supreme Court has made clear, however, that in applying the litigation exception “relevance alone cannot be the test, because such a test would ignore the fundamental purpose of evidentiary privileges, which is to preclude discovery and admission of relevant evidence under prescribed circumstances.” See Ramirez, 887 S.W.2d at 842.

In Ramirez, the Supreme Court explained as follows the test for determining whether a party relies upon a medical or mental condition as part of the party’s claim or defense for purpose of the litigation exception:

Communications and records should not be subject to discovery if the patient’s condition is merely an evidentiary or intermediate issue of fact, rather than an “ultimate” issue for a claim or defense, or if the condition is merely tangential to a claim rather than “central” to it.... As a general rule, a ... condition will be a “part” of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself.

Id. at 842-43. The Court noted that “[wjhether a condition is a part of a claim or defense should be determined on the face of the pleadings, without reference to the evidence that is allegedly privileged.” Id. at 843 n. 7.

In this case, whether and why the emergency rooms were full with other patients is not part of a defense pled by relator. The record in this mandamus proceeding does not. include plaintiffs’ petition. Plaintiffs say the documents showing chief complaints and triage codes will show whether there were less seriously ill people who should have been moved from ER rooms so that Russell could be treated. They argue these medical conditions are relevant to relator’s assertion that the ER was full. While the medical conditions may be relevant to plaintiffs’ negligence claim, relevance alone is not the test for the litigation exception. As the Supreme Court explained in Ramirez, the test is whether the jury must make a factual determination concerning the conditions as an “ultimate” issue for the claim. Because plaintiffs do not argue, and nothing in the record suggests, that the other patients’ conditions are a part of their claim rather than simply relevant to the case, we do not determine in this proceeding whether the conditions are an ultimate issue for plaintiffs’ claims.

Even if some of the information is within an exception to the privilege, or is otherwise not privileged, any privileged information not meeting an exception must be protected. Ramirez, 887 S.W.2d at 843. The parties’ interest in the evidence is not the same as the nonparty patients’ interest in confidentiality. The trial court must be vigilant in ensuring the protection of the interests of nonparties who have not been given an opportunity to be heard. See generally In re CI Host, Inc., 92 S.W.3d at 517. It falls upon the trial court to give serious consideration to the interests of the nonparties, who are unaware of this litigation, in maintaining the confidentiality of their medical records. See generally id. (noting the trial court in that case had entered a protective order concerning the computer tapes, and expressing confidence the trial court would “give due consideration to any other privacy interests at stake.”).

If the trial court determines in further proceedings that the other patients’ medical conditions are part of plaintiffs’ claims as pleaded and not merely evidentiary or intermediate issues of fact, an in camera inspection of the medical information in question may assist the trial court in tailoring the information sought by plaintiffs so that it is limited in scope to the litigation exception or to information that is otherwise not privileged. Even if it is determined by the trial court that the medical conditions of other emergency room patients are part of plaintiffs’ pleaded claims, the trial court still “must ensure that the production of documents ordered, if any, is no broader than necessary, considering the competing interests at stake.” Ramirez, 887 S.W.2d at 843. “[A]ny information not meeting this standard remains privileged and must be redacted or otherwise protected.” Id.

The record in this proceeding does not demonstrate compliance with the Supreme Court’s opinion in Ramirez. We conditionally grant the petition for writ of mandamus to order the trial court to vacate its order. The writ will issue only if the trial court fails to comply with this opinion.

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED.

      . The provisions cited in the response to the motion to compel included Tex.R. Evid. 509(c); Tex. Occ.Code Ann. § 159.002 (Vernon 2004); 40 Tex. Admin. Code § 19.407 (2005); Health Insurance Portability and Accountability Act of 1996 (HIPAA); Tex. Health & Safety Code Ann. § 241.15[2] (Vernon 2001); Tex.R. Civ. P. 196.1(c)(3), and Tex. Hum. Res.Code Ann. § 102.003(j) (Vernon 2001).

      . Rule 509(d) provides that the privilege of confidentiality is claimed on behalf of the patient.

      . The Court noted the exception represented "a significant departure from the historical scope of the patient-litigant exception. The exception now terminates the privileges whenever any party relies upon the condition of the patient as a part of the party’s claim or defense, even though the patient has not personally placed the condition at issue, and even though the patient is not a party to the litigation.” Ramirez, 887 S.W.2d at 842.

      . But see In re Xeller, 6 S.W.3d 618, 625 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding); In re Anderson, 973 S.W.2d 410, 411-12 (Tex.App.-Eastland 1998, orig. proceeding); In re Dolezal, 970 S.W.2d 650, 652 (Tex.App.-Corpus Christi 1998, orig. proceeding).

      . Relator also argues that the records are protected by federal and state statutes and by a constitutional right of privacy. See fn.1, supra. Because we grant the petition based on Rule 509, we need not address these arguments. We note, however, generally Rule 509 governs disclosures of patient medical records injudicial or administrative proceedings. See Ramirez, 887 S.W.2d at 840 n. 5. With respect to Texas statutes, the Government Code provides that rules adopted by the Supreme Court may serve to repeal conflicting laws and parts of laws governing practice and procedure, but not substantive law, in civil actions. See Tex. Gov’t Code Ann. § 22.004(c) (Vernon 2004). We also note generally the statutes cited have “court order” exceptions. The Supreme Court has said the litigation exception to Rule 509 is not unconstitutional. Ramirez, 887 S.W.2d at 843.


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    SAN JACINTO RIVER AUTHORITY, Appellant, v. Jerry SIMMONS, Appellee.
    No. 09-05-060 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 6, 2005.
    Decided June 30, 2005.

      William S. Helfand, Kevin D. Jewell, Barbara E. Roberts, Chamberlain, Hrdlie-ka, Wfiiite, Williams & Martin, Houston, for appellant.
    Lancelot P. Olinde, Jr., Olinde & Iglesi-as, PC, Houston, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

San Jacinto River Authority (“SJRA”) prosecutes this interlocutory appeal from the trial court’s denial of its plea to the jurisdiction. See Tex. Civ. Peac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005). Appellee, Jerry Simmons, filed suit for personal injuries after he slipped and fell at SJRA’s sewage treatment facility. The fall occurred during the normal course of his employment as a driver for American Water Services Residuals Management, Inc. SJRA raised governmental immunity before the trial court contending it was immune from Simmons’ suit under certain provisions of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Cobe Ann. §§ 101.001-101.109 (Vernon 1997 & Supp.2005). It is undisputed that SJRA is a governmental unit as defined by the Texas Tort Claims Act.

The record indicates SJRA filed its plea to the jurisdiction on January 10, 2005. On February 1, 2005, Simmons filed both a first amended original petition and a response to the plea to the jurisdiction. In his amended petition, Simmons alleged his fall at the SJRA facility was due to the “negligent use and/or misuse” of a belt press and roll-off container by unnamed SJRA employees.

Absent express consent of the state, sovereign immunity from suit defeats a trial court’s subject matter jurisdiction. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, drainage districts, and river authorities. See Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2005); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003) (recognizing that sovereign immunity and governmental immunity are distinct concepts although courts and litigants often use the terms interchangeably). The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.025 (Vernon 1997).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Governmental immunity from suit is properly raised by such a plea. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Jones, 8 S.W.3d at 639. Whether a court has subject matter jurisdiction is a question of law. See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). If a trial court denies the governmental unit’s claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that an interlocutory appeal may be brought. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2005); San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245 n. 3 (Tex.2004).

“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003); see also Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993.). To determine if the plaintiff has met that burden, “we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Texas Natural Resource Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001). “A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action upon which the trial court has jurisdiction.” Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004).

An examination of Simmons’ amended petition indicates he provided no citation to any provision of the Texas Tort Claims Act for jurisdictional support. His response to SJRA’s plea to the jurisdiction appears to focus exclusively on a particular part of section 101.021(2) as he asserts:

Plaintiff alleges that he was severely injured at Defendant’s facility because a belt press and a container created the harm proximately causing Plaintiffs injury. In sum, Plaintiffs injury was caused by a condition or use of tangible personal property. Accordingly, this Court has subject matter jurisdiction over this case....
Plaintiff contends that SJRA employees allowed the belt press to overfill the container, causing an anide deep build up of sludge on the metal skid plates. The build up of sludge was also in part due to SJRA employees moving the container under the belt press as parts of it began to fill up with biosolids. Both actions, using tangible property, created the harm....
Plaintiff has identified two pieces of tangible property which separately and in combination were the instrumentalities creating the harm. The SJRA belt press operated by SJRA employees deposited biosolids and over-filled the container in question with biosolids. Second, the container was being moved by SJRA employees that also created the overfilling of the container causing the harm. The use and misuse of both the belt press and the container, by moving it, created the harm, (emphasis added)

■ This theory of waiver appears to be supported by comments made to the trial court during a brief non-evidentiary hearing on a motion to continue and plea to the jurisdiction, viz:

[Simmons’ counsel]: And they had the opportunity to take Mr. Simmons’ deposition at length, and the basis for the Motion for Continuance is for us further identify [sic], tangible pieces of personal property that may have caused the harm to Jerry Simmons, which would create the waiver under Section 101.021.
At this point in time, just based on what my client knows, we’ve identified an overhead belt press and a container that was involved that created the harm. There may or may not be additional pieces of tangible property out there that created the harm. I don’t know without further discovery at this point. And so that is the essence of the Motion for Continuance.

However, seconds later, Simmons’ trial counsel, in somewhat of an “about-face,” responded to SJRA’s argument that Simmons’ pleading amounted to a claim of “negligent activity” and did not waive SJRA’s immunity, with the following “clarification:”

[Simmons’ counsel]: Just a short response, Your Honor. It’s not a negligent activity case. Obviously on the Keech case that doesn’t exist. It’s just a premises defect case and it’s being alleged appropriately the (sic) Court would have jurisdiction over it.
Now their next step might be to file a Motion for Summary Judgment, based upon statements in my client’s deposition. However, that does not mean the Court does not have jurisdiction if we’ve shown that there has been — there has been the use of tangible personal property under 101.021, Section 2 that created harm, (emphasis added)

Now before this Court, Simmons’ reply brief appears to switch his predominant theory of waiver of immunity to “premises liability.” Directing our attention to Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), Simmons contends that he has proven the following premises liability elements: (1) actual or constructive knowledge of some condition on the premises by owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and, (4) that the owner/operator’s failure to use such care proximately caused the plaintiffs injuries. See id. at 296. As we noted above, in a suit against a governmental unit, it is the plaintiffs burden to affirmatively demonstrate the trial court’s jurisdiction by alleging and proving a valid waiver of immunity. See Whitley, 104 S.W.3d at 542; Miller, 51 S.W.3d at 587. In an abundance of caution, we will attempt to address both his waiver by use- or-misuse-of-tangible-personal-property theory, and his waiver by premises defect theory.

The Texas Tort Claims Act provides for a limited waiver of immunity for personal injury caused by a governmental employee’s negligent use or misuse of tangible personal property under section 101.021(2), but only when the governmental unit is itself the user. See Tex. Civ. PRAc. & Rem.Code Ann. § 101.021(2) (Vernon 1997); Cowan, 128 S.W.3d at 245-46. In the instant case, the only record-evidence alleged to support Simmons’ pleadings as to how the excessive biosolid material came to be present in the area where he fell is his deposition testimony, and that testimony merely describes a generalized scenario, either previously witnessed by Simmons or reported to him in some manner, in which a roll-off container is filled with biosolid material by SJRA employees. At no point in his deposition does Simmons indicate he witnessed or had personal knowledge that SJRA employees did indeed cause the roll-off container to overflow with the specific biosolid material in which he slipped and fell.

Furthermore, Simmons’ allegation that his injuries resulted from the use or misuse of the belt press, a motor-driven piece of equipment, is also misplaced. The Texas Supreme Court has consistently required a nexus between the operation or use of motor-driven equipment and a plaintiffs injuries. See Whitley, 104 S.W.3d at 543; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). Such a nexus requires more than mere involvement of equipment but rather “the equipment’s use must have actually caused the injury.” Whitley, 104 S.W.3d at 543 (quoting White, 46 S.W.3d at 869 and Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex.1998)). Even if the evidence sufficiently indicated the excess biosolid material present on the morning of the accident was indeed the result of the belt press having overfilled the roll-off container, these items of “tangible personal property,” (and/or “motor-driven equipment”) were not responsible for Simmons’ injuries if they did no more than furnish the condition that made his injury possible. See Whitley, 104 S.W.3d at 543; Miller, 51 S.W.3d at 588. See also Bossley, 968 S.W.2d at 343 (Unlocked hospital doors which permitted a mental patient to escape into the community where he committed suicide may have “furnishfed] the condition that [made] the injury possible ... [but] the use and condition of the doors were too attenuated from [the patient’s] death to be said to have caused it.”). The record-evidence before us raises nothing more than an inference that the belt-press and roll-off container furnished the condition (presence of excess biosolid material) that made Simmons’ injuries possible. Under his use-or-misuse-of-tangible-personal-property theory of waiver, Simmons has failed to affirmatively demonstrate the trial court’s jurisdiction.

In addition to potential exposure to suit caused by personal injury or death arising out of conditions or use of tangible personal property, a governmental unit may be subject to suit for personal injury or death caused by a condition of real property if the state would be hable if it were a private person. Tex. Civ. Peac. & Rem.Code Ann. § 101.021(2) (Vernon 1997); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002). Simmons relies on Corbin, 648 S.W.2d at 296, in setting out the elements of proving liability for an ordinary premises defect as between a private property owner and an invitee. This is ah well and good; however, Simmons’ classification of himself as an invitee, and not a hcensee, is incorrect. He fails to acknowledge the provisions of Tex. Civ. PRAc. & Rem.Code Ann. § 101.022(a) (Vernon 1997), which state that if a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Simmons’ attempt to turn his status into a “fact issue” is misplaced, as it ignores both the plain language of the statute and established precedent.

Simmons uses interchangeably the terms “premises defect” and “special defect.” Whether a condition is a premise defect or a special defect is a function of the “duty” element in a negligence action requiring statutory interpretation and, therefore, is an issue of law for the court to decide. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992). “A special defect must be a condition of the same kind or class as an excavation or roadway obstruction and present ‘an unexpected and unusual danger to ordinary users of roadways.’ ” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999); Payne, 838 S.W.2d at 238. A special defect is distinguished by some unusual quahty outside the ordinary course of events. A longstanding, routine, or permanent condition is not a special defect. See Stokes v. City of San Antonio, 945 S.W.2d 324, 326 (Tex.App.-San Antonio 1997, no writ). From the entirety of the deposition excerpt provided, we do not find that Simmons’ encounter with an excess amount of biosolid material on the morning in question presented “an unexpected and unusual danger,” or was a condition of “unusual quality outside the ordinary course of events” for him, based upon his four-year experience on the job. Therefore, the duty S JRA owed Simmons upon a claim of ordinary premises defect is that duty which an ordinary person owes to a licensee on private property. See Payne, 838 S.W.2d at 237.

The duty owed to a licensee on private property is not to injure the licensee by willful, wanton, or grossly negligent conduct, and to warn of, or make reasonably safe, a dangerous condition of which the premises owner is aware but the licensee is not. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). The Court in Wal-Mart further stated:

Accordingly, to establish liability for a premises defect, a licensee must prove, among other things, that the hcensee did not actually know about the alleged dangerous condition. See, e.g., State v. Williams, 940 S.W.2d 583, 584 (Tex.1996); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992) (citing [State v.] Tennison, 509 S.W.2d [560,] [] 562 [ (Tex.1974) ]; Restatement (Second) Of ToRts § 342). If the licensee has the same knowledge about the dangerous condition as the licensor, then no duty to the licensee exists. Tennison, 509 S.W.2d at 562; see also Williams, 940 S.W.2d at 584; Payne, 838 S.W.2d at 237.
For example, in Lower Neches Valley Auth. v. Murphy, this Court held that “[a] licensee is not entitled to expect that the possessor [of land] will warn him of conditions that are perceptible to him, or the existence of which can be inferred from facts within his present or past knowledge.” 536 S.W.2d 561, 564 (Tex.1976). In other words, a licensor owes no duty to a licensee so long as the evidence conclusively establishes the licensee perceived the alleged dangerous condition. See id. at 564.

Simmons’ deposition indicates that, prior to the day he fell, he encountered slippery biosolid material in the area where he worked “every day,” and when he arrived at the SJRA facility on the day of the accident, he knew that the area where he would be working could be “wet and muddy.” This and other similar testimony from Simmons indicates he was fully aware of the slippery conditions in which he admittedly worked “[t]wo to three times a day, three to five days a week ... [f]or four years.” By his own admission, the possibility of an excessively slippery work-area on the day of the accident was well-known to Simmons, or could, have been inferred by him from facts within his then-present or past knowledge. See Wal-Mart, 102 S.W.3d at 709. In summary, Simmons’ testimony that he knew of the potential slip hazard established he was aware of the hazardous condition on the date of the accident. Simmons cannot sustain an action under the Tort Claims Act for injuries which resulted from a condition of which he was aware.

From the discussion and analysis set out above, we find Simmons has failed to affirmatively demonstrate the trial court’s subject matter jurisdiction over the causes of action alleged. Neither the pleadings nor the relevant evidence submitted was sufficient to prove waiver of governmental immunity under the provisions of the Texas Tort Claims Act. The trial court erred in failing to grant SJRA’s plea to the jurisdiction. As the record reflects Simmons amended his original petition following SJRA’s filing of its plea to the jurisdiction, Simmons was given adequate.opportunity to remedy any jurisdictional defects present in its original pleadings, or submit evidence sufficient to show his lack of knowledge. Therefore, we reverse the order of the trial court denying SJRA’s plea to the jurisdiction and render judgment that Simmons’ suit is dismissed with prejudice. See Sykes, 136 S.W.3d at 639-40.

REVERSED AND RENDERED.

      . Section 101.021 provides:
      A governmental unit in the state is liable for:
      (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.


author: LESLIE BROCK YATES, Justice.

text:
    David Michael HARMON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00195-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 5, 2005.

      Stephen Taylor, Humble, TX, for appellants.
    Eric Charles Carcerano, Daniel P. Bradley, Anahuac, TX, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

LESLIE BROCK YATES, Justice.

This is an appeal from a conviction for aggravated robbery. In three issues, appellant, David Michael Harmon, Jr., argues that the evidence is legally and factually insufficient to support the verdict and that the trial court erred in not allowing appellant to stand and walk in front of the jury without subjecting himself to cross-examination. We affirm.

BACKGROUND

On October 22, 2002, while Jennifer Newby washed her car at a self-service car wash, appellant approached her and asked if he could borrow her cell phone. When she responded that she did not have one, appellant went back to his car, which had its hood up. After being unable to get quarters from a change machine, Newby then asked appellant if he would exchange some of her dimes and nickels for quarters. Appellant gave her four quarters, and later appellant asked Newby if she could give him a ride to his mother’s house so that he could get money to fix his car. Based on appellant’s general appearance and conduct, Newby agreed to give him a ride.

During the ride, appellant pulled a gun on Newby and said that he was going to “jack” her. Appellant directed Newby to drive to an isolated area where he choked her and hit her in the head with the gun. Newby tried to escape, but appellant hit her in the head until she passed out.

Newby woke up in the back seat of her car; some of her clothes had been removed. She again tried to get away, but appellant pushed her toward the front seat and made her drive the car to an ATM while he rode in the back seat with the gun pointed at her. They went through a drive-through ATM several times, and Newby withdrew cash and gave it to appellant. Appellant then directed Newby back to the car wash, where he got out and told her not to tell the police what had happened.

Newby immediately drove to the college she attended, where a Mend found her and took her to the hospital. Newby identified appellant in a photo lineup. A jury found appellant guilty of aggravated robbery and assessed a sentence of sixty years’ imprisonment and a $10,000 fine. This appeal followed.

Sufficiency of the Evidence

Appellant contends the evidence is both legally and factually insufficient to support his conviction. In evaluating a legal-sufficiency claim attacking a jury’s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App.2000). In our review, we accord great deference “ ‘to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996) (alteration in original) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 133 n. 13, 99 S.Ct. 2781.

In conducting a factual-sufficiency review of the jury’s determination, we do not view the evidence “in the light most favorable to the prosecution.” Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). We may find the verdict is factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Our evaluation should not intrude upon the fact-finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain, 958 S.W.2d at 407.

In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated robbery. Specifically, appellant claims that there is insufficient evidence that links him to the crime because (1) appellant was identified only by Newby, (2) there was no weapon recovered from appellant, (3) there was no currency found on appellant or at his residence, (4) there were no fingerprints from appellant in Newby’s vehicle, and (5) there was no DNA evidence from Newby recovered from appellant’s clothing or from appellant’s residence.

There was testimony at trial by Newby that while in the car, appellant said that he was going to “jack” Newby. Appellant aimed a gun at Newby, choked her, and hit her in the head with the gun several times, causing serious injuries. Newby also testified that appellant used the gun and forced her to drive to an ATM so that she could withdraw money from her account to give to him. Newby testified that she feared for her life. Further, there are still-frame photos from the ATM surveillance video that Newby testified showed her in the front seat of the car and appellant in the back seat. Newby said that the entire incident lasted about an hour and that she got a good look at appellant. Soon after the incident, Newby quickly identified appellant from a photo lineup and also said at trial that she was “[ajbsolutely sure” that appellant was the person who beat and robbed her. This evidence is legally and factually sufficient to support the verdict.

Appellant argues that the evidence is insufficient because he was only identified by Newby. Newby’s testimony standing alone is sufficient to support appellant’s conviction. See Batts v. State, 673 S.W.2d 666, 668 (Tex.App.-San Antonio 1984, no pet.); Washington v. State, No. 14-02-01095-CR, 2003 WL 21710488, at *2 (Tex.App.-Houston [14th Dist.] July 24, 2003, pet. refd) (not designated for publication). Appellant also argues that the evidence is insufficient because there was no fingerprint or DNA evidence linking appellant with the crime, no weapon was recovered from appellant, and no currency was recovered from appellant. We find these arguments to be without merit. A rational jury could have found appellant guilty of aggravated robbery without DNA evidence, fingerprint evidence, or evidence of the gun or cash Newby gave to appellant. See Santos v. State, 116 S.W.3d 447, 459 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (rejecting argument that lack of fingerprints connecting appellant to robbery rendered evidence insufficient to support conviction).

Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated robbery. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support the verdict. We overrule appellant’s first and second issues.

Appellant’s Request to Stand and Walk in FRONT of Jury

In his third issue, appellant contends that the trial court erred by not allowing him to stand in front of the jury and walk a few steps. Appellant apparently made this request in order to rebut Newby’s initial description to police as to appellant’s height, hair color, and eye col- or. The trial court stated that if appellant stood and walked in front of the jury, appellant would be subject to cross-examination by the State. Appellant therefore opted not to stand and walk in front of the jury. Appellant argues that the trial court’s refusal to allow him to walk in front of the jury without subjecting himself to cross-examination violated his Fifth Amendment privilege against self-incrimination.

“The Fifth Amendment privilege against self-incrimination protects a defendant ‘from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.’ ” Williams v. State, 116 S.W.3d 788, 791 (Tex.Crim.App. 2003) (quoting Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990)). The Fifth Amendment does not apply to every sort of incriminating evidence, only to incriminating evidence that is testimonial. Id. Therefore, whether or not appellant would have been subject to cross-examination upon being allowed to stand and walk in front of the jury depends on whether standing and walking in front of a jury is testimonial. See id.

The State can compel a defendant “ ‘to stand up, to assume a stance, to walk’ ” without violating the Fifth Amendment privilege against self-incrimination because such an action is not testimonial. See Taylor v. State, 474 S.W.2d 207, 210-11 (Tex.Crim.App.1971) (quoting United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)); see also Holder v. State, 837 S.W.2d 802, 805 (Tex.App.-Austin 1992, pet. ref'd). Whether the request that a defendant do some action for the jury is made by the State or by the defense has no effect on determining whether the action is testimonial. See Williams, 116 S.W.3d at 792 (finding that the analysis of whether voice exemplar is testimonial or not is unaffected by which side offered the evidence). Accordingly, a defendant’s act of standing up and walking in front of the jury is not testimonial, whether offered by the State or the defendant. Further, a defendant who offers to stand up and walk in front of the jury does not waive his Fifth Amendment rights or subject himself to cross-examination. See id. at 793. Thus, it was error for the trial court to refuse to allow appellant to stand and walk in front of the jury without being subject to cross-examination.

Having found error, we now must determine whether the error was harmful. Under Rule 44.2 of the Texas Rules of Appellate Procedure, the nature of the error determines the standard under which it is evaluated. Marsh v. State, 140 S.W.3d 901, 908 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Constitutional error requires reversal of the conviction or punishment unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App. P. 44.2(a). Other errors that do not affect the substantial rights of the defendant must be disregarded. Tex.R.App. P. 44.2(b).

Without providing any harm analysis, appellant simply argues for reversal, and the State argues that the trial court’s ruling was non-constitutional error. However, it is unnecessary to determine whether the error was constitutional because, even under the more stringent constitutional error test, we conclude beyond a reasonable doubt that the trial court’s error in not allowing appellant to stand and walk in front of the jury without being subject to cross-examination did not contribute to appellant’s conviction. As discussed above, Newby unequivocally identified appellant at trial and earlier in a photo lineup. Additionally, there are still-frame photos from the ATM surveillance video that Newby testified depict her and appellant in her car. Newby’s initial description of her assailant to police might have differed slightly from appellant’s actual appearance, but the jury was able to see appellant’s height when he entered the courtroom at the beginning of each day of trial. The jury was also able to see appellant’s hair and eyes when he walked into the courtroom and while he sat at the defense table. Further, appellant was able to argue this point during his closing argument. Because we find that the trial court’s refusal to allow appellant to stand and walk in front of the jury without subjecting himself to cross-examination was harmless, we overrule appellant’s third issue.

The judgment of the trial court is affirmed.


author: Opinion by Justice LANG.

text:
    PLANO LINCOLN MERCURY, INC., Appellant v. James ROBERTS, H.M. Jr. Management, LC, H.M. Adams, Jr., John Tinsley d/b/a Motor Cars of South Texas, Appellee.
    No. 05-04-01118-CV.
    Court of Appeals of Texas, Dallas.
    July 6, 2005.

      Jeffrey L. Clark, Robert L. Kelsoe, Kel-soe, Anderson, Khoury & Clark, P.C., Dallas, for appellant.
    Carl Joseph Kolb, San Antonio, for ap-pellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by Justice LANG.

Plano Lincoln Mercury, Inc., plaintiff below, appeals the trial court’s final judgment on the jury verdict. The trial court’s final judgment orders that Plano-Lincoln-Mercury take nothing in its lawsuit against H.M. Jr. Management, LC, H.M. Adams, Jr., and John Tinsley d/b/a Motor Cars of South Texas, defendants below (H.M. Jr. Management, LC, and H.M. Adams, Jr. are referred to as “Adams”). Also, the trial court’s final judgment awards Adams and Tinsley damages and attorneys’ fees on their counter-claim against Plano-Lincoln-Mercury.

Plano-Lincoln-Mercury raises six issues on appeal: (1) the trial court erred when it denied its objections to the jury charge and its motion for judgment notwithstanding the verdict because there was no evidence that Tinsley and Adams gave notice of sale; (2) the trial court erred when it denied its objections to the jury charge and motion for judgment notwithstanding the verdict because the measure of damages was incorrect and there was no evidence of the claimed incidental expenses; (3) the trial court erred when it denied its motion for judgment notwithstanding the jury verdict because the purchase price of the vehicles was unconscionable; (4) the trial court erred when it denied its objection to the jury charge and its motion for judgment notwithstanding the jury verdict because there was no pleading or presentment concerning Tinsley’s and Adams’ claim for attorneys’ fees; (5) the trial court erred when it granted Tinsley’s and Adams’ motion to reopen to offer additional evidence thirty days after the jury was discharged; and (6) the trial court erred when it allowed Tinsley’s and Adams’ counsel to testify to attorneys’ fees when they had not been timely designated as expert witnesses.

Plano-Lincoln-Mercury’s first issue on appeal is decided in its favor. Based on our resolution of Plano-Lincoln-Mercury’s first issue on appeal, we need not address its remaining five issues. See Tex.R.App. P. 47.1. The trial court’s final judgment is reversed, in part, and judgment is rendered that Adams and Tinsley take nothing. See Tex.R.App. P. 43.2(c).

I. FACTUAL AND PROCEDURAL BACKGROUND

Roberts was employed by Plano-Lincoln-Mercury to purchase used vehicles from wholesalers and to resell the vehicles to other wholesalers at a profit. Roberts was instructed not to purchase any vehicle unless he had presold it for a profit. He received a commission based on a percentage of the profit made on each resale of the vehicles.

Plano-Lincoln-Mercury determined that it was losing money on Roberts’ purchases because he was paying $5,000 to $10,000 too much for each vehicle he purchased. Roberts’ employment at Plano-Lincoln-Mercury was terminated. Plano-Lincoln-Mercury calculated that it had lost $169,000 on the vehicles purchased by Roberts and that $100,000 of that loss was from vehicles purchased from Tinsley and Adams. On behalf of Plano-Lincoln-Mercury, Roberts had bought 23 vehicles from Tinsley and sold 21 vehicles to Tinsley for a loss of $77,000. Also, Roberts bought 17 vehicles from Adams and sold 18 vehicles to Adams for a total loss of $23,000. Further, Roberts had repeatedly purchased and sold the same vehicles back and forth between Tinsley and Adams.

After Roberts’ employment was terminated, three purchase drafts payable to Tinsley and four purchase drafts payable to Adams were received by Plano-Lincoln-Mercury. Plano-Lincoln-Mercury rejected these seven purchase drafts.

Plano-Lincoln-Mercury sued Roberts for fraud and breach of fiduciary duty based on his purchase of the used vehicles at a substantially excessive price from vehicle wholesalers. In its lawsuit, Plano-Lincoln-Mercury alleged that Roberts was receiving kickbacks from the wholesalers for his agreement to overpay for the vehicles. A no-answer default judgment was entered by the trial court on Plano-Lincoln-Mercury’s suit against Roberts.

Plano-Lincoln-Mercury also sued Adams and Tinsley for civil conspiracy and violations of the Texas Deceptive Trade Practices Act. Further, Plano-Lincoln-Mercury sought rescission of the sales and the seven vehicle purchase drafts it received after Roberts’ employment was terminated. Adams and Tinsley filed a counter-claim against Plano-Lincoln-Mercury for breach of contract, fraud, breach of duty of commercial good faith and fair dealing, theft, deceptive trade practices, and liability on instruments. During the charge conference, Plano-Lincoln-Mercury objected to two questions in the charge addressing Tinsley’s and Adams’ damages arguing there was no evidence of prior notice of their intention to resell or the commercial reasonableness of the resale. The trial court overruled Plano-Lincoln-Mercury’s objection. After the trial, the jury returned the following verdict finding: (1) against Plano-Lincoln-Mercury’s claims for civil conspiracy and violations of the Texas Deceptive Trade Practices Act; (2) in favor of Adams and Tinsley on their claim for breach of contract awarding Tinsley $32,335 in damages and $30,000 in attorneys’ fees for trial, and awarding Adams $14,965.05 in damages and $30,000 in attorneys’ fees for trial; and (3) against Tinsley and Adams on their remaining claims.

Plano-Lincoln-Mercury filed a motion for judgment notwithstanding the verdict arguing, in part, that there was no evidence that the resale of the seven vehicles was done in a commercially reasonable manner or that it had prior notice of the private sale. Tinsley and Adams responded to the motion and moved to reopen the proof to admit into evidence two letters they say reflect their demand and presentment. Although the jury had been discharged, the trial court admitted the two letters offered and denied Plano-Lincoln-Mercury’s motion for judgment notwithstanding the verdict.

II. NOTICE OF SALE

In its first issue on appeal, Plano-Lincoln-Mercury argues the trial court erred when it denied its objections to the jury charge and its motion for judgment notwithstanding the jury verdict because there was no evidence that Tinsley and Adams gave prior notice of their intention to resell. Tinsley and Adams respond that there is ample evidence of their notice of intent to resell the vehicles and, even if they did not give prior notice of the private sale, they are not precluded from recovering on their counter-claim for breach of contract. Also, Tinsley and Adams respond that Plano-Lincoln-Mercury did not preserve this issue for appeal.

A. Preservation of Issue for Appeal

Tinsley and Adams argue that Plano-Lincoln-Mercury did not preserve its first issue for appeal because it did not file special exceptions to their pleadings and did not object to the evidence or jury submission on the ground that it was not supported by the pleadings.

Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R.App. P. 33.1; In the Interest of L.M.I. and J.A.I., 119 S.W.3d 707, 711 (Tex.2003), cert. denied, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004). Therefore, to preserve a complaint, the argument made to the appellate court must have been included in a motion presented to the trial court or was otherwise presented to the trial court. See Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex.App.-Dallas 2004, no pet.); Sherman v. Triton Energy Corp., 124 S.W.3d 272, 279 (Tex.App.-Dallas 2003, pet. denied). A no-evidence point of error is preserved for appellate review if the appellant raised the issue through one of the following: (1) a motion for directed verdict; (2) a motion for judgment notwithstanding the verdict; (8) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510—11 (Tex.1991).

The record shows that Plano-Lincoln-Mercury objected to Questions 12 and 15 of the jury charge addressing the measure of Tinsley’s and Adams’ damages arguing there was no evidence of prior notice of their intention to resell or the commercial reasonableness of the resale. The trial court overruled Plano-Lincoln-Mercury’s objection. The record also shows that Plano-Lincoln-Mercury tiled a motion for judgment notwithstanding the verdict arguing, in part, that there was no evidence that the resale of the seven vehicles was done in a commercially reasonable manner or that it had prior notice of the private sale. Accordingly, Plano-Lincoln-Mercury preserved for appeal its first issue, which argues there was no evidence that Tinsley and Adams gave it prior notice of their intention to resell.

B. Standard of Review

A judgment notwithstanding the verdict is proper when there is no evidence supporting the jury’s findings or when the movant is entitled to judgment as a matter of law. Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). A trial court may disregard a jury’s answer and render a judgment notwithstanding the verdict only if a directed verdict would have been appropriate. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). However, if there is any evidence of probative force to support the jury’s findings, a trial court must deny a motion for judgment notwithstanding the verdict. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986).

The denial of a motion for judgment notwithstanding the verdict is reviewed on appeal as a “no evidence” point of error. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241-42 (Tex.1988). A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. State Dept. of Transp. v. Barraza, 157 S.W.3d 922, 925 (Tex.App.-El Paso 2005, no pet.). A legal sufficiency review of both a judgment notwithstanding the verdict and a no-evidence point of error must credit the favorable evidence if reasonable jurors could, and disregard the contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, No. 02-1012, 2005 WL 1366509, at **3, 11, 14, 168 S.W.3d 802, 810, 823, 827 (Tex. June 10, 2005).

An appellate court will sustain a no-evidence point of error when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Mary Kay Inc. v. Woolf, 146 S.W.3d 813, 817 (Tex.App.-Dallas 2004, no pet.), cert. denied, - U.S. -, 125 S.Ct. 2530, 161 L.Ed.2d 1112 (2005); see Wilson, 2005 WL 1366509, at *2, 168 S.W.3d at 810.

C. Applicable Law

When the buyer breaches a contract for the sale of goods, the seller may: (1) withhold delivery of such goods; (2) stop delivery by any bailee as provided in § 2.705; (3) proceed under the next section respecting goods still unidentified to the contract; (4) resell and recover damages as provided in § 2.706; (5) recover damages for nonacceptance as provided in § 2.708, or in a proper case the price as provided in § 2.709; or (6) cancel. Tex. Bus. & Com. Code Ann. § 2.703 (Vernon 1994 & Supp. 2004 — 05).

The Uniform Commercial Code § 2.706, as adopted in Texas, authorizes an aggrieved seller to resell the contract goods and to measure its damages by the difference between the contract price and the resale price. Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 137 (Tex.App.-Houston (14th Dist.) 2000, pet. dism’d). Where the seller chooses to resell privately, § 2.706 sets out three simple steps the seller must follow: (1) identify the resale contract to the broken contract; (2) give the buyer reasonable notice of the seller’s intention to resell; and (3) resell in good faith and in a commercially reasonable manner. Tex. Bus. & Com.Code Ann. § 2.706 (Vernon 1994 & Supp.2004— 05).

Presale notice and commercial reasonableness are elements of a prima facie claim for damages. Cook, 15 S.W.3d at 138. Recovery under § 2.706 is precluded if the seller does not prove both: (1) presale notice; and (2) commercial reasonableness. See id. at 137.

A person has “notice” of a fact when (1) he has actual knowledge of it; (2) he has received a notice or notification of it; or (B) from all the facts and circumstances known to him at the time in question he has reason to know that it exists. Tex. Bus. & Com.Code Ann. § 1.202(a) (Vernon Supp.2004-05)(formerly § 1.201(25)). Actual notice may be either express or implied. See Exxon Corp. v. Raetzer, 533 S.W.2d 842, 846 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). However, mere rumors, vague statements, and circumstances that are dubious or equivocal and do no more than arouse suspicion or create speculation are not sufficient to constitute actual notice. BarclaysAmerican/Business Credit, Inc. v. E & E Enterprises, Inc., 697 S.W.2d 694, 702 n. 2 (Tex.App.-Dallas 1985, no writ); Exxon Corp., 533 S.W.2d at 846.

Section 2.706(3) requires that reasonable notification of the seller’s intention to resell must be given to the buyer where the resale is a private sale. Tex. Bus. & Com.Code Ann. § 2.706 cmt. 8. Reasonable notification means notification reasonably calculated to give actual notice of the relevant fact. See Gray v. F.D.I.C., 841 S.W.2d 72, 84 (Tex.App.-Houston [1st Dist.] 1992, writ dism’d by agr.)(discussing reasonable notification under former Tex. Bus. & Com.Code Ann. § 9.504, currently §§ 9.610 — 13). What constitutes reasonable notice will vary with the particular facts and circumstances of each case. Id. However, giving best notification or full and complete notification is not required. Id. The length of the notification of a private sale depends on the urgency of the matter, and the notification of the time and place of this type of sale is not required. See Tex. Bus. & Com.Code Ann. § 2.706, cmt. 8.

The seller’s inability to prevail under § 2.706, however, is not necessarily fatal to its recovery of damages on a breach of contract claim. Cook Composites, 15 S.W.3d at 138. The comments to § 2.706 provide that the failure to comply with its procedural provisions still leaves the seller with its remedy under § 2.708. See Tex. Bus. & Com.Code Ann. § 2.706 cmt. 2; Cook Composites, 15 S.W.3d at 138. Section 2.708 embodies the seller’s right to traditional contract market differential recovery and allows an aggrieved seller to measure its damages by: (1) the difference between the market price and the unpaid contract price together with any allowed incidental damages; or (2) the profit which the seller would have made from full performance together with any allowed incidental damages. Tex. Bus. & Com.Code Ann. § 2.708 (Vernon 1994 & Supp.2004— 05); Cook, 15 S.W.3d at 138. However, a party bringing suit under § 2.708 must plead and prove each element of recoverable damage. Cook, 15 S.W.3d at 138.

D. Application of the Law to the Facts

Plano-Lincoln-Mercury contends that the two letters admitted after the jury returned its verdict do not comply with § 2.706 of the Texas Business and Commerce Code. Tinsley and Adams respond that: (1) there is ample evidence of their notice of intent to resell the vehicles; (2) even if they were not in strict compliance with Texas Business and Commerce Code § 2.706, they gave Plano-Lincoln-Mercury notice of the business customs and practices; and (3) even if they did not give prior notice of the private sale, they are not precluded from recovering on their counter-claim for breach of contract.

During the charge conference, Plano-Lincoln-Mercury objected to two jury questions respecting the measure of damages for Tinsley’s and Adams’ counterclaim for breach of contract because there was no evidence of prior notice of their intention to resell or the commercial reasonableness of the resale. The jury awarded Tinsley and Adams damages based on the difference between the resale price and the contract price. See Tex. Bus. & Com.Code Ann. § 2.706(a). Plano-Lincoln-Mercury filed a motion for judgment notwithstanding the verdict arguing, in part, that there was no evidence of prior notice of their intention to resell or the commercial reasonableness of the resale. In the face of Plano-Lincoln-Mercury’s argument that there was no evidence of prior notice of their intention to resell, Tinsley and Adams sought leave to reopen the evidence to offer two letters, weeks after the jury returned its verdict. The trial court granted them leave to offer the two létters into evidence and the letters were admitted. One of those letters specifically gave notice of Plano-Lincoln-Mercury’s breach and stated the following:

Unless you request additional time, our client will hold the vehicles for not more than 10 days and will then exercise his remedies for the buyer’s breach pursuant to statute.

Tinsley and Adams contend that the portion of the letter restated above is evidence of their advance notice of their intention to resell the vehicles, which they acknowledge was by private sale. We disagree with Tinsley’s and Adams’ contention as to the effect of the letters.

Resale is only one of six remedies that were available to Tinsley and Adams pursuant to the statute. See Tex. Bus. & Com.Code Ann. § 2.703. When the seller selects private resale as its remedy, § 2.706(c) requires that “the seller must give the buyer reasonable notification of his intention to resell.” Tex. Bus. & Com. Code Ann. § 2.706 [emphasis added]. Further, reasonable notice means that the notification must be calculated to give actual notice. See Gray, 841 S.W.2d at 84. The vague statement that Tinsley and Adams would “exercise [their] remedies for the buyer’s breach pursuant to statute” is not sufficient to constitute actual notice that Tinsley and Adams had selected private resale from among the six remedies set out in § 2.703. See BarclaysAmerican, 697 S.W.2d at 702 n. 2; Exxon Corp., 533 S.W.2d at 846.

Tinsley and Adams also contend we should conclude the notice is sufficient because the letter provides notice of business customs and practice. They rely on Waples v. Overaker, 77 Tex. 7, 13 S.W. 527 (1890) for the proposition that the buyer’s knowledge of the legal right to resell, resulting from his refusal to comply with the contract, is sufficient notice of the seller’s intention to resell to allow the seller to recover the damages sustained by the resale. 77 Tex. at 12, 13 S.W. at 528. However, we cannot agree with this argument either. Where the Uniform Commercial Code applies, common law rules regarding breach of contract do not apply. See Tex. Bus. & Com.Code Ann. § 2.102 (Vernon 1994 & Supp.2004—05); Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 235 (Tex.App.-San Antonio 2001, no pet.). To the extent they do not conflict with the Uni form Commercial Code’s provisions, common law principles complement the Uniform Commercial Code. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 443 (Tex.App.-Houston [14th Dist.] 2003, no pet.); see Tex. Bus. & Com.Code Ann. § 1.103(b) (Vernon Supp.2004—05); Bryan v. Citizens Nat’l Bank, 628 S.W.2d 761, 764 (Tex.1982). Adoption of Tinsley’s and Adams’ contention that pursuant to Waples, Plano-Lincoln-Mercury’s knowledge of their right to resell is sufficient notice, would allow an aggrieved seller to avoid the mandatory language of § 2.706 requiring advance notice of the intention to resell. We decline to adopt this position.

Tinsley and Adams further contend that even if they did not give prior notice of their intention to resell, they are not precluded from recovering on their counter-claim for breach of contract pursuant to § 2.708. We cannot agree. The jury charge does not include a question that would have permitted the jury to award Tinsley and Adams damages based on traditional market contract differential pursuant to § 2.708. Further, to bring suit under § 2.708, Tinsley and Adams were required to plead and prove the elements of § 2.708 to make its prima facie case for damages. See Cook, 15 S.W.3d at 138. The record shows that Tinsley and Adams did not do so because they pleaded damages for the “sum of the amount paid plus any losses upon resale for the vehicles, plus interest.”

We conclude the trial court erred when it denied Plano-Lincoln-Mercury’s objections to the jury charge and its motion for judgment notwithstanding the verdict regarding the measure of damages for Tins-ley’s and Adams’ counter-claim for breach of contract. There was no evidence of notice of their intention to resell the vehicles as required by Texas Business and Commerce Code § 2.706(c).

Plano-Lincoln-Mercury’s first issue on appeal is decided in its favor.

III. CONCLUSION

We conclude the trial court erred when it denied Plano-Lincoln-Mercury’s objection to the jury charge and motion for judgment notwithstanding the verdict because there was no evidence that Tinsley and Adams gave it prior notice of their intention to resell the vehicles. Plano-Lincoln-Mercury’s first issue on appeal is decided in its favor. Based on our resolution of Plano-Lincoln-Mercury’s first issue, we need not address its remaining five issues. See Tex.R.App. P. 47.1.

We reverse the trial court’s final judgment on the jury verdict as to the award of damages and attorneys’ fees to Tinsley and Adams and render judgment that Tinsley and Adams take nothing. See Tex. R.App. P. 43.2(c). In all other respects, the trial court’s judgment on the jury verdict is affirmed.

      . Comment 8 of the Texas Business and Commerce Code refers to a private sale under subsection 3. We note that the only subsection 3 is § 2.706(d)(3), which address public resale. However, § 2.706(c) of the Texas Business and Commerce Code and § 2-706(3) of the Uniform Commercial Code address private resale. Compare Tex. Bus. & Com.Code Ann. § 2.706(c), cmt. 8, with U.C.C. § 2-706(3), cmt. 8. Accordingly, we construe comment 8 to address § 2.706(c) of the Texas Business and Commerce Code.


author: Opinion by Justice BRIDGES.

text:
    COLLIN COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE, Appellant v. Amanda K. DOBSON, Appellee.
    No. 05-04-01314-CV.
    Court of Appeals of Texas, Dallas.
    July 6, 2005.
    John R. Roach, Collin County District Attorney, John A. Stride, Assistant District Attorney, McKinney, for appellant.
    Anthony Devries Randall, Dallas, for ap-pellee.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by Justice BRIDGES.

The Collin County Criminal District Attorney’s office (D.A) appeals the trial court’s order granting Amanda K. Dob-son’s petition for expunction of criminal records related to her arrest for misdemeanor assault. In two issues, the D.A. argues the evidence is legally and factually insufficient to support the expunction because Dobson did not offer any proof that the limitations period had expired or that the charges against her were the result of mistake, false information, or other similar reason indicating absence of probable cause. We reverse the trial court’s judgment granting expunction and render judgment denying Dobson’s petition for expunction.

On August 10, 2003, Dobson was arrested by Frisco police on a charge of misdemeanor assault. On September 25, 2003, the charge was “refused” by the D.A. because it was “[ujnable to prove case beyond a reasonable doubt as to who was the initial aggressor.” The refusal also contained the following language:

The charge listed below in regard to the defendant named will not be prosecuted by this office. If in custody, the defendant should be RELEASED OF THE CHARGE LISTED. If a warrant is outstanding, please return unexecuted to the issuing magistrate. If the defendant has been released on a cash bond ON THIS CHARGE, it may be released to the surety.

On June 14, 2004, Dobson filed her petition for expunction of the records relating to her arrest. After a hearing, the trial court found that Dobson was arrested for assault, but an information charging her with the offense was never presented, and the case was “refused and/or dismissed” by the D.A. The court further found that Dob-son had been released and there were no charges pending, there was no court-ordered supervision, and she had not been convicted of a felony during the five years preceding the issuance of citation. The court ordered that all records concerning Dobson’s arrest be expunged, and the D.A. brought this appeal.

In its first issue, the D.A. argues the evidence is legally insufficient to show the limitations period on the charges had expired or that the charges were the result of mistake, false information, or other similar reason indicating an absence of probable cause. In reviewing the legal sufficiency of the evidence or a “no evidence” point, we may consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the order of expunction, and we must disregard all contrary evidence and inferences. Houston Police Dept. v. Berkowitz, 95 S.W.3d 457, 460 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When a record discloses a complete absence of a vital fact, however, we must sustain the no evidence point. Id.

Article 55.01 of the Texas Code of Criminal Procedure controls the right of a person who has been placed under arrest for either a felony or misdemeanor to have all records and files relating to the arrest expunged. Tex.Code CRiM. Peoc. Ann. art. 55.01(a) (Vernon Supp. Pamph.2004-05). A statutory expunction proceeding is civil rather than criminal in nature, and the burden of proving compliance with the statutory conditions rests with the petitioner. Berkowitz, 95 S.W.3d at 460; Tex. Dep’t of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex.App.-Houston [1st Dist.] 1994, no writ). Article 55.01 requires strict compliance with conditions imposed by the statute; courts have no equitable power to expunge criminal records. Berkowitz, 95 S.W.3d at 460; Tex. Dep’t of Pub. Safety v. Woods, 68 S.W.3d 179, 183 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Article 55.01, in pertinent part, requires that, to be entitled to expunction of records and files relating to an arrest, a person must show:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex.Code Cmm. PROC. Ann. art. 55.01(a)(2)(A)-(C) (Vernon Supp. Pamph. 2004-05).

Here, the record shows the date of the arrest was August 10, 2003, and Dobson filed her petition for expunction was filed June 14, 2004. Thus, the record shows Dobson’s petition was filed before the applicable two-year period of limitations had run. See Tex.Code Crim. PROC. Ann. art. 12.02 (Vernon 2005). Because there was no presentment of an indictment or information in this case, subsection (ii) is not applicable. State v. Bhat, 127 S.W.3d 435, 436 (Tex.App.-Dallas 2004, no pet.). Accordingly, we conclude the evidence is legally insufficient to show strict compliance with article 55.01 or support the trial court’s expunction order under either subsection (i) or (ii). See Bhat, 127 S.W.3d at 436; Berkowitz, 95 S.W.3d at 460. We sustain the D.A.’s first issue. Because of our disposition of the D.A.’s first issue we need not address the D.A.’s second issue.

We reverse the trial court’s judgment granting expunction and render judgment denying Dobson’s petition for expunction.


author: Opinion By Justice LANG.

text:
    John F. BROWN, Appellant v. John A. VANN, Appellee.
    No. 05-04-00917-CV.
    Court of Appeals of Texas, Dallas.
    July 7, 2005.

      William L. Wolf, William L. Wolf, P.C., Barton M. Reeder, Dallas, for appellant.
    Bill Boyd, Boyd & Veigel, P.C., McKinney, for appellee.
    Before Justices O’NEILL, RICHTER and LANG.
   OPINION

Opinion By Justice LANG.

This is a restricted appeal pursuant to Texas Rule of Appellate Procedure 30. Appellant, John F. Brown, is the defendant below. The jury rendered a verdict favorable to him, yet the trial court dismissed the case for want of prosecution when a proposed judgment was not submitted by the parties. In two issues, Brown argues that the trial court’s dismissal of this case for want of prosecution is an abuse of discretion.

Brown asserts specifically that the error of abuse of discretion is apparent on the face of the record since: 1) the trial court should have “rendered” a take-nothing judgment on the jury’s verdict even though neither party submitted a proposed judgment to dispose of the case; 2) the trial court has a mandatory, ministerial obligation to render a judgment on a verdict; and 3) the dismissal was an abuse of discretion since it is clear that the case was diligently prosecuted to verdict.

Brown suggests that, in deciding whether the trial court abused its discretion in this case, we must resolve a conflict in the rules of civil procedure. He contends that the conflict is between: 1) the trial court’s duty to “render” judgment on the jury verdict as dictated by Rules 300 and 301, and 2) the trial court’s discretion to dismiss a case for want of prosecution under Rule 165a.

We disagree with appellant that the rules require us to resolve a direct conflict in the rules. For the reasons set out below, we decide against appellant on his issues and affirm the trial court’s judgment.

I. Factual Context and Procedural Background

The record reflects that a jury verdict was returned on September 14, 2003. Approximately two months later, the trial court sent a letter to counsel, dated November 12, 2003, which called a hearing on December 12, 2003. This letter appeared to be a form letter, since it called for a “pre-trial” hearing. However, the November 12th letter was clear that a hearing was being called by the trial court on this case since the case was identified by style and case number. The docket sheet supplied as part of this record reflects a handwritten entry that no one appeared for that hearing.

The trial court sent a second letter to counsel dated December 16, 2003, calling for a second healing. That hearing, set for January 23, 2004, was approximately four months after the jury verdict. The second letter appears to be an original letter, not a form, and refers to this case by style and case number. The trial court made it clear in this letter that no proposed judgment had been received to dispose of the case. Further, the trial judge warned that if no judgment was provided to the court by the January 23 hearing date, the case would be dismissed for want of prosecution. No one appeared at that hearing on January 23, 2004, and an order was signed and dated that very day dismissing the case for want of prosecution.

II. Standard of Review: Dismissal for Want of Prosecution

Rule 165a provides:

A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the ease to be maintained on the docket. Tex.R. Civ. P. 165(a).

A trial court may exercise its discretion to dismiss for want of prosecution either under rule 165(a) or its inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Veterans’ Land Board v. Williams, 543 S.W.2d 89, 90 (Tex.1976); Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957). The trial court’s decision is subject to review only upon clear abuse of discretion. Williams, 543 S.W.2d at 90.

When reviewing a dismissal for want of prosecution, the sole issue is whether the appellant can demonstrate a clear abuse of discretion by the court. City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ). To determine whether there is an abuse of discretion, the reviewing court must determine whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Thus, a failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

III. Applicable Law: The Verdict, Rendition of Judgment, and the Written Judgment

Pertinent to our consideration are rules 300 and 301:

a) Rule 300 provides: “Where a special verdict is rendered, or the conclusions of fact found by the judge are separately stated the court shall render judgment thereon unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding under these rules.” Tex.R. Civ, P. 300.

b) Rule 301 states:

The judgment of the court shall conform to the pleadings, the nature of the ease proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante ve-redicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Tex.R. Civ. P. 301.

A judgment may be rendered by the trial court either orally or by memorandum. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976); Henry v. Cullum Companies, Inc., 891 S.W.2d 789, 792 (Tex.App.-Amarillo 1995, writ denied). In order to render judgment, the trial court must clearly state that a decision has been made, rather than expressing an intention to rule in the future. Reese, 534 S.W.2d at 330 (“[t]he judge’s intention to render judgment in the future cannot be a present rendition of judgment.”); Able Cabling Services, Inc. v. Aaron-Carter Elec. Inc., 16 S.W.3d 98, 101 (Tex.App.-Houston [1st Dist.] 2000, writ denied) (“the words used by the trial court must clearly indicate the intent to render judgment at the time the words are expressed.”); Green v. Smart, 333 S.W.2d 880, 884 (Tex.Civ.App.-Dallas 1960, no writ).

Typically, there are three stages to a judgment: rendition, reduction to writing, and judicial signing. Oak Creek Homes, Inc., v. Jones, 758 S.W.2d 288, 290 (Tex.App.-Waco 1988, no writ); In re Marriage of Wilburn, 18 S.W.3d 837, 840 (Tex.App.-Tyler 2000, pet. denied). These stages are to be addressed when a jury returns its verdict. In its verdict, the jury has found facts on which a judgment may be based. Then, it is the court’s province to pronounce the law based on the facts so found. Young v. Kilroy, 673 S.W.2d 236, 247 (Tex.App.-Houston [1st Dist.] 1984, ref. n.r.e.); Scott v. King, 647 S.W.2d 394 (Tex.App.-Dallas 1983, no writ). That pronouncement is embodied in the judgment the court renders.

A trial court may, on its own motion, disregard an immaterial jury finding. “When the issue is material, however, the judgment must conform to the finding. Southern Pacific Transportation Co. v. Allen, supra, [525 S.W.2d 300] at 304 [ (Tex.Civ.App.-Houston [14th Dist.] 1975) ]; Massie v. Hutcheson, 270 S.W. 544 (Tex.Com.App.1925, judgmtadopted). Under Rule 301 of the Texas Rules of Civil Procedure the trial court may disregard a material special issue only on a motion asserting that the finding has ‘no support in the evidence.’” Scott, 647 S.W.2d at 396; Tex.R. Civ. P. 301. However, a trial court may not freely, sua sponte, interpret the facts found by the jury.

Rule 305 provides:

Any party may prepare and submit a proposed judgment to the court for signature.
Each party who submits a proposed judgment for signature shall serve the proposed judgment on all other parties to the suit who have appeared and remain in the case, in accordance with Rule 21a.
Failure to comply with this rule shall not affect the time for perfecting appeal. Tex.R. Civ. P. 305.

IV. Analysis

It is appellant’s position that the case law mandates that the trial court in this case render, 'sua sponte, a take-nothing judgment. Therefore, appellant suggests the dismissal for want of prosecution is an abuse of discretion. We are cited to Ponce v. Sandoval, 68 S.W.3d 799 (Tex.App.Amarillo 2001, no pet.). However, in Ponce, the trial court did not enunciate that precise rule. The Amarillo Court of Appeals said “[w]hen a jury renders a verdict, the trial judge is mandated to enter judgment thereon unless the verdict is set aside, a new trial is granted, or judgment is rendered notwithstanding [sic] the verdict or jury finding according to the Texas Rules of Civil Procedure.” Id. at 805. Certainly, that conclusion by the Amarillo Court of Appeals recognizes, at least impliedly, that the trial court will render judgment after a jury verdict by applying the law to a verdict in response to motions filed by the parties. See Scott, 647 S.W.2d at 396.

Also, on this same point, appellant cites us to Wright v. Longhorn Drilling Corp., 202 S.W.2d 285, 287 (Tex.App.-Austin 1947, writ ref'd). That case is distinguishable. In Wright, the court of appeals was faced with a markedly different situation involving the entry of a judgment nunc pro tunc after the expiration of the court’s term. There, the jury returned a verdict absolving'the defendant of negligence. Id. at 286. Accordingly, the defendant filed a motion for judgment on the verdict. No judgment was “pronounced or rendered” by the trial court before the end of its term. Id. The defendant brought a motion to enter a judgment nunc pro tunc. The trial court responded by entering the judgment. The plaintiff objected since the term had ended and no judgment had been rendered for which a correction or judgment, nunc pro tunc, was warranted. The court of appeals upheld the judgment nunc pro tunc citing the trial court’s duty to render judgment on a verdict and that since the status of the case was brought to the trial court’s attention, he performed his duty by rendering the judgment which “should or could be rendered.” Id. at 288. Here, in the case before us, there was no response to the two notices for hearing and no post-verdict motion or proposed judgment was filed. Wright is not controlling.

One particular case provides direction by its contrast to the case before us. Ellmossallamy v. Huntsman, 880 S.W.2d 299 (Tex.App.-Houston [14th Dist.] 1992, no writ). In Huntsman, the trial court refused to reinstate a case it had dismissed for want of prosecution, and the court of appeals reversed. The undisputed facts showed that there was substantial discovery completed, beginning with the filing of the suit and continuing until shortly before a trial setting. On the date set for trial, appellee’s counsel announced that the parties had settled the case. The trial court vacated the trial setting. According to the court of appeals’ opinion, there was no evidence that the parties were not ready for trial. Id. at 301.

During a period of four months after the trial setting, neither party set the case for trial or filed a motion to enforce the settlement agreement. Id. Accordingly, the trial court dismissed the case for want of prosecution. In the appellant’s motion to reinstate, which was opposed by the appel-lee, appellant advised the trial court that the parties thought they had a settlement, but it turned out that they disagreed on the terms which appellee’s counsel, the sole party appearing at court, read into the record on the trial date. Id. at 300. The court of appeals called this the “misunderstood settlement agreement.” Id. at 299. While the court of appeals concluded that the parties could have easily avoided the disagreement had they both appeared to read the settlement into the record, back on the original trial date, the court of appeals concluded that this was an unintentional delay. The appellant diligently pursued the case up to the point where it mistakenly assumed that the parties had a settlement agreement. Accordingly, the majority of the court of appeals panel concluded that appellant “deserved his day in court” and an abuse of discretion was shown in the trial court’s dismissal. Id. at 302.

The facts in Huntsman are distinguishable from these before us. Huntsman involved the “misunderstood” terms of a settlement. During the four-month period between the trial setting and the dismissal, in Huntsman, there was no warning from the trial court that the case would be dismissed if not reset for trial. On the face of this record, we cannot find a misunderstanding or confusion which would support the contention that the trial court abused its discretion. Rather, the record before us reflects that subsequent to the jury verdict, the trial court issued notices of two hearings. No one appeared at either hearing. The last of the two notices warned of dismissal if a proposed judgment was not provided.

We recognize that rule 305 suggests a party “may” offer the trial court a proposed judgment, but that is not a requirement. We cannot agree with appellee’s assertion that Rule 305 suggests appellant should have supplied a proposed judgment to the trial court. The parties even acknowledge in oral argument that it is customary for the party in whose favor the verdict was returned to provide a proposed judgment to the trial judge.

V. Conclusion

Certainly, this case comes before us with unusual circumstances. Additionally, this restricted appeal gives us no latitude to review issues such as whether notice of the two hearings had been received by the parties. We are confined to a determination of whether an error is apparent from the face of the record.

The record does not reflect a lack of diligent prosecution, at least to the jury verdict. In fact, the party seeking relief from the dismissal for want of prosecution is the defendant below, whom the parties agree was favored by the jury’s answers to the charge. However, as the parties acknowledge, it would have been customary for a take-nothing judgment to be submitted to the trial court after the verdict. Yet Brown, the defendant below, did not do that. Accordingly, over a period of approximately four months after the verdict, the trial court sought the parties’ assistance in disposing of the case. Specifically, in the letter to the parties which gave notice of the second hearing, the court explained that it needed a judgment to dispose of the case, and if one was not submitted, the case would be dismissed for want of prosecution. On this record, the direction to the parties was clear. The parties were sent two notices which should have caused one or both to act. They did not. The trial judge ruled as he said he would in the absence of a proposed judgment.

On this record, on this restricted appeal, we cannot conclude that the trial court abused its discretion. We decide appellant’s points against him and affirm the trial court’s judgment.

      . Texas Rule of Appellate Procedure 30 allows a party who did not participate in the hearing that resulted in the judgment and who did not timely file a postjudgment motion or notice of appeal, to file its appeal within six months after the date the judgment is signed. Tex. R.App. P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004).