author: BEA ANN SMITH, Justice.

text:
    POLICE CIVIL SERVICE COMMISSION, Appellant, v. Rafael GUTIERREZ, Appellee.
    No. 03-05-00241-CV.
    Court of Appeals of Texas, Austin.
    Dec. 22, 2005.

      Chris Edwards, Asst. City Atty., Austin, for appellant.
    William J. Kolb, Law Office of Jamie Balagia, Manor, for appellee.
    Before Justices B.A. SMITH, PATTERSON and PEMBERTON.

      . We note that appellant is generally referred to as the Firefighters’ and Police Officers’ Civil Service Commission for the City of Austin. In addition, the Commission is represented by City of Austin Law Department.

   OPINION

BEA ANN SMITH, Justice.

The Police Civil Service Commission (the Commission) appeals the district court’s denial of its plea to the jurisdiction. In this interlocutory appeal, we must determine whether the Commission established that appellee, Rafael Gutierrez, lacked diligence as a matter of law in serving the Commission with citation. We hold that he did not and affirm the district court’s denial of the Commission’s plea to the jurisdiction.

BACKGROUND

In September 2004, Gutierrez was placed on indefinite suspension by the Austin Police Department (the Department). Gutierrez appealed his suspension to the Commission, and on February 1 and 2, 2005, the Commission held a public hearing. The Commission found the Department’s charges against Gutierrez to be true. Consequently, on February 2, the Commission issued its order permanently dismissing Gutierrez from the Department.

On February 11, Gutierrez filed his petition appealing the Commission’s order with the district court pursuant to local government code section 143.015. See Tex. Loc. Gov’t Code Ann. § 143.015(a) (West 1999). Local government code section 143.015 provides:

(a) If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside. The petition must be filed within 10 days after the date the final commission decision:
(1) is sent to the fire fighter or police officer by certified mail; or
(2) is personally received by the fire fighter or police officer or by that person’s designee.

Tex. Loc. Gov’t Code Ann. § 143.015(a)(1)-(2). Gutierrez filed his petition within the statutory ten-day limitations period; however, he did not serve the Commission with citation until after the tenth day. Subsequently, the Commission filed a plea to the jurisdiction with the district court. The Commission asserted that the district court lacked subject-matter jurisdiction because Gutierrez’s failure to exercise diligence in serving the Commission with citation rendered his filing ineffective as a matter of law. The district court denied the Commission’s plea to the jurisdiction. This interlocutory appeal followed.

STANDARD OF REVIEW

We review the district court’s determination of subject-matter jurisdiction, including its construction of pertinent statutes, de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect apparent from the face of the pleadings, making it impossible for any amendment of the plaintiffs petition to confer jurisdiction on the trial court. Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 914 (1960); City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex.App.-Austin 2002, pet. denied). A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

DISCUSSION

Local government code section 143.015 sets forth a filing deadline for appealing a Commission decision to district court. See Tex. Loc. Gov’t Code Ann. § 143.015. It does not explicitly state that service of citation must be effectuated before the filing deadline expires. Id. Nevertheless, the Commission argues that Gutierrez did not properly file his petition before the ten-day deadline because the record establishes as a matter of law that he did not exercise due diligence in serving the Commission with citation. Accordingly, the Commission suggests that the district court was deprived of subject-matter jurisdiction pursuant to section 143.015. We disagree.

In order to properly bring a lawsuit, a plaintiff must both file the suit and perfect service of citation within the applicable limitations period. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990) (stating that mere filing of suit will not interrupt running of limitations); Riston v. Doe, 161 S.W.3d 525, 530 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). However, if a plaintiff files suit before the limitations period expires, but effects service of citation after the limitations period expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). The standard of due diligence is the diligence an ordinarily prudent person would use under the same or similar circumstances. James v. Gruma Corp., 129 S.W.3d 755, 759 (Tex.App.-Fort Worth 2004, pet. denied). Whether a plaintiff was diligent in serving the defendant is normally a question of fact, but if no excuse is offered for a delay or if the lapse of time coupled with the plaintiffs acts conclusively negate diligence, lack of diligence will be found as a matter of law. Id. at 759-60. Any unexplained delay in effecting service constitutes a lack of diligence. See Parsons v. Turley, 109 S.W.3d 804, 808 (Tex.App.-Dallas 2003, pet. denied); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Here, Gutierrez effected service of citation after the limitations period had expired. Thus, we must determine if the record contains evidence establishing as a matter of law that Gutierrez did not exercise due diligence in procuring the issuance and service of citation. See Parsons, 109 S.W.3d at 808; Taylor, 4 S.W.3d at 65. The record indicates that on February 11, one day before the expiration of the statutory limitations period, Gutierrez filed his petition with the district court and faxed a copy to the Commission and the City Attorney’s office. The record also includes an affidavit from Anne Morgan, Chief of the Litigation Division for the City of Austin Law Department, stating that on February 28 she received a call from Gutierrez’s attorney, William Kolb, asking whether service of citation was still required or if the requirement had been waived. Morgan informed Kolb that the Commission would insist on service. Finally, the record includes a copy of the citation issued by the Travis County District Clerk on March 18. The citation was served on March 24.

The record confirms that the Commission received a copy of the petition on the day that it was filed. Moreover, once Kolb was informed that service of citation would not be waived, the Commission was served with citation in less than a month. Accordingly, we hold that the pleadings and evidence included in this record do not establish as a matter of law that Gutierrez failed to exercise diligence in procuring the issuance and service of citation.

CONCLUSION

We affirm the district court’s order denying the Commission’s plea to the jurisdiction.

      . Gutierrez served the Commission on March 24, 2005; he did, however, fax a copy of the petition to the Commission and the city attorney’s office on February 11 — the same day he filed it with the district court.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Mary PATRICK, Appellant, v. Joshua David PATRICK, Mary Lisa Patrick, Casey Rose Patrick and Nicole Ann Patrick, Appellees.
    No. 03-04-00375-CV.
    Court of Appeals of Texas, Austin.
    Dec. 23, 2005.

      Gregory T. Frazer, Fortson, Frazer & Siegrist, PC, Austin, for appellant.
    Michael H. Ripp, Jr., Giordani, Schurig, Beckett & Tackett, LLP, Austin, for appel-lees.
    Patricia T. Barnes, Barnes & Karisch, P.C., Austin, for Christopher Holland.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Sophie Holland’s mil was admitted to probate. The parties interpret Ms. Holland’s will differently. Mary Patrick, a beneficiary under the will and of several IRAs, contends that the will provided specific instructions directing that estate taxes should be paid entirely out of the assets passing under the will alone and should not be proportionally assessed on funds in the IRAs. The appellees, on the other hand, assert that the will did not provide instruction regarding the payment of estate taxes for the IRAs and, therefore, insist the general rule of apportionment of taxes among all of the assets should apply. The executor filed a motion for summary judgment, requesting the probate court determine whether estate taxes should have been apportioned among all of Ms. Holland’s assets, including the IRAs. The probate court determined that the estate taxes should be apportioned against all of Ms. Holland’s assets. Ms. Patrick appeals the judgment of the probate court. We will affirm.

BACKGROUND

After her death in 1999, Ms. Holland’s will was admitted to probate. The probate court appointed her son, Christopher Holland (“Mr. Holland”), as the independent executor. The will did not make any specific bequests of property but divided her probate estate in the following manner: one-half was to be given to her son, and the remaining one-half was to be divided equally among her daughter, Ms. Patrick, and Ms. Patrick’s four children, Joshua David Patrick, Mary Lisa Patrick, Casey Rose Patrick, and Nicole Ann Patrick.

Ms. Holland’s taxable estate was valued at $6,880,149 and consisted of real property, cash, financial investments, personal effects, and several IRAs. The IRAs specified that they were to be equally distributed to Ms. Holland’s two children upon her death. Accordingly, the proceeds of the IRAs, $976,086, were divided between Mr. Holland and Ms. Patrick.

Article I of the will provided: “All taxes, including any interest and penalties thereon, which may be payable by reason of my death and all of my debts, funeral expenses and administration expenses shall be charged against and paid out of my estate. No contribution for any of the above taxes upon the proceeds of any insurance policy on my life shall be made by the beneficiary (other than my estate) of any such insurance policy.” The independent executor paid $8,213,582 in estate taxes from the assets passing under the will. The executor did not seek reimbursement from the funds represented by the IRAs for the taxes paid.

Ms. Patrick filed a motion for accounting and distribution. See Tex. Prob.Code Ann. § 149B(a) (West 2003) (allowing interested party to petition for accounting two years from date independent administration created). The probate court appointed a guardian ad litem for the minor beneficiaries of Ms. Holland’s will, and the guardian requested the independent executor seek reimbursement for the taxes paid on the IRA. See id. § 322A(n) (West 2003 & Supp.2005). In response, the independent executor filed a petition for a declaratory judgment and a motion for summary judgment, asking the probate court to determine, among other things, whether taxes should have been allocated to the non-probate assets. In addition, the executor wanted a declaration that his interpretation of the will was justified and that he had not improperly administered the estate.

The probate court partially granted the executor’s motion for summary judgment, stating that the taxes should have been allocated among all the assets, including non-probate assets, and that the executor did not improperly administer the estate.

DISCUSSION

On appeal, Ms. Patrick contends that the probate court erred in holding that the estate taxes should be apportioned among all the assets because Ms. Holland’s will included instructions to the contrary. Specifically, she asserts that the language “[a]ll taxes ... which may be payable by reason of my death ... shall be charged against and paid out of my estate” constitutes a specific instruction directing the manner of apportionment of estate tax that excluded non-probate assets. Further, Ms. Patrick insists that this construction of the will is the only reasonable interpretation.

Although the parties disagree about the application of the law, the facts are undisputed. The propriety of summary judgment is a question of law; therefore, we review the trial court’s decision de novo. TX Far West, Ltd. v. Texas Invs. Mgmt., Inc., 127 S.W.3d 295, 301 (Tex.App.-Austin 2004, no pet.). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.” Id. (quoting Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)).

Testamentary intent is the critical inquiry when construing a will. Rosen v. Wells Fargo Bank Tex., N.A., 114 S.W.3d 145, 149 (Tex.App.-Austin 2003, pet. filed). In determining the testator’s intent, we are limited to the language within the four corners of the will. Id. We focus not on what the testator intended to write but on the meaning of the words actually used. Id. “An appellate court must give the words in a will their normal meaning, in light of the testator’s intent.” Id. (quoting Barker v. Rosenthal, 875 S.W.2d 779, 781 (Tex.App.-Houston [1st Dist.] 1994, no writ)). Common words should be given their plain meaning unless the context indicates the words were used in another sense. Vinson v. Brown, 80 S.W.3d 221, 231 (Tex.App.-Austin 2002, no pet.). When construing a will, we presume the testator intended every word used to have a meaning. Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex.App.-Austin 1992, no writ). We should construe the will to give effect to every part of it, as long as the language is reasonably susceptible to that construction. Rosen, 114 S.W.3d at 149. All rules of construction must yield to the testator’s basic intent and purposes as reflected by the entire instrument. Id. However, we will not redraft the will or add provisions under the guise of construction to effectuate some presumed intent of the testator. Id.

Apportionment of death taxes among both probate and non-probate assets is the general rule, which is subject to an exception only when there is a contrary direction in the will. See Peterson v. Mayse, 993 S.W.2d 217, 221 (Tex.App.-Tyler 2000, pet. denied). The exception applies when the testator provides a specific directive as to the manner of payment of estate taxes. See Tex. Prob.Code Ann. § 322A(b) (West 2003 & Supp.2005); Peterson, 993 S.W.2d at 221.

The general rule and exception are found in section 322A of the probate code. Section 322A(b)(l) provides, in part, as follows:

The representative shall charge each person interested in the estate a portion of the total estate tax assessed against the estate. The portion of each estate tax that is charged to each person interested in the estate must represent the same ratio as the taxable value of that person’s interest in the estate included in determining the amount of the tax bears to the total taxable value of all the interests of all persons interested in the estate included in determining the amount of the tax.

Tex. Prob.Code Ann. § 322A(b)(l).

Section 322A(b)(2) provides as follows: Subdivision (1) of this subsection does not apply to the extent the decedent in a written inter vivos or testamentary instrument disposing of or creating an interest in property specifically directs the manner of apportionment of estate tax or grants a discretionary power of appointment to another person. A direction for the apportionment or nonap-portionment of estate tax is limited to the estate tax on the property passing under the instrument unless the instrument is a will that provides otherwise.

Id. § 322A(b)(2).

In support of her argument that the instructions in Ms. Holland’s will negate the general apportionment rule, Ms. Patrick cites to Peterson v. Mayse, 993 S.W.2d at 221, and to Estate of Miller v. Commissioner, 1998 WL 800960, 1998 Tax.Ct. Memo LEXIS 412, 76 T.C.M. (CCH) 892, 1998 T.C. Memo 416 (1998). In Peterson, the court concluded that the language of the will overcame the general apportionment rule because the will unambiguously specified that all “death taxes,” including estate taxes, were to be paid out of Peterson’s residuary estate. 993 S.W.2d at 220, 222. The court in Miller also concluded that the terms of the will negated the general apportionment rule because the will provided that all estate taxes be paid out of the residuary estate “without apportionment.” 1998 WL 800960, 1998 Tax Ct. Memo LEXIS 412, at *4.

In this case, however, there is not a comparable, specific instruction about the apportionment of estate taxes. Ms. Holland’s will does not limit the property to be used in paying her estate taxes to her residuary estate and does not specify that taxes are to be paid without apportionment. The language requiring all taxes be paid out of her estate is general in nature and does not provide specific directions for the apportionment of taxes that are different from the general rule.

Further, Ms. Holland’s will states that taxes are to be paid out of her “estate.” Ms. Patrick insists this language limited the payment of estate taxes to assets passing under her will. However, “an estate is the total property a decedent owns at death.” Nguyen v. Morales, 962 S.W.2d 93, 95 (Tex.App.-Houston [1st Dist.] 1997, no writ); see also Tex. Prob.Code Ann. § 3(Z) (West 2003) (defining estate as “the real and personal property of the decedent .... ”). Rather than limiting the payment of estate taxes to assets passing under the will, the language of the will seems to apportion the obligation for the payment of estate taxes among all of Ms. Holland’s assets.

The only specific instruction contrary to the general apportionment rule is found in the second sentence of article I, which exempts beneficiaries of Ms. Holland’s life insurance policies from the responsibility of paying estate taxes. The sentence does not mention IRAs or other forms of non-probate assets. See Peterson, 993 S.W.2d at 219 (life insurance and IRA non-probate assets transferred to beneficiaries through instruments other than will); Tex. Prob. Code Ann. § 450(a) (West 2003) (provision in retirement account that money paid upon death of decedent nontestamentary). Were we to construe the will as meaning the estate taxes were to be paid out of the assets passing under Ms. Holland’s will only, the specific instruction exempting life-insurance beneficiaries from the burden of paying estate taxes would be superfluous as life-insurance policies are non-probate assets and are generally transferred upon the death of the decedent through the terms of the policy, not a will. See Johnson, 840 S.W.2d at 672 (every word in will presumed to have meaning). Accordingly, we overrule Ms. Patrick’s issue on appeal.

CONCLUSION

Because we have overruled Ms. Patrick’s issue on appeal, we affirm the judgment of the probate court.

      . Her estate was valued at $7,483,140 and included probate assets of $6,507,054 and non-probate assets valued at $976,086. However, deductions for various expenses and debts resulted in a total taxable estate of $6,880,149.

      . Section 322A(n) provides, in relevant part, as follows:
      If property includable in an estate does not come into possession of the representative obligated to pay the estate tax, the representative shall recover from each person interested in the estate the amount of the estate tax apportioned to the person under this section or assign to persons affected by the tax obligation the representative's right of recovery.
      Tex. Prob.Code Ann. § 322A(n) (West 2003 & Supp.2005).

      . Under both interpretations of the will, Mr. Holland would be responsible for the same amount of taxes because he received 50% of the probate assets and 50% of the proceeds from the IRA. However, the proportion of taxes attributable to Ms. Patrick and her children varies depending on which interpretation of the will is followed.

      . In addition, under section 322A, estate is defined as "the gross estate of a decedent as determined for the purpose of estate taxes.” Tex. Prob.Code Ann. § 322A(a)(l) (West 2003 & Supp.2005). The IRAs were included in Ms. Holland's estate for the purposes of calculating estate taxes.

      . In addition, one commentator has suggested that a directive to pay all taxes from the residuary estate is too general to be a specific directive that circumvents section 322A. Jo-hanson's Texas Probate Code Annotated 335 (West 2005).


author: Opinion by Justice HINOJOSA.

text:
    Lon CARTWRIGHT, Lane T. Sealy, Trustee of the Holman Cartwright Irrevocable Trust, and Richard Lucas, Appellants, v. COLOGNE PRODUCTION COMPANY, Robert Hausser, and Lawrence J. Flume, Jr., Appellees.
    No. 13-04-00031-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Jan. 5, 2006.
    Rehearing Overruled Feb. 9, 2006.

      V.E. Lanfear, Jr., Attorney At Law, San Antonio, for Appellants.
    Calhoun Bobbitt, Attorney At Law, James L. Drought, Attorney At Law, San Antonio, for appellees.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by Justice HINOJOSA.

This is a gas royalty case. Appellants, Lon Cartwright, Lane T. Sealy, Trustee of the Holman Cartwright Irrevocable Trust, and Richard Lucas, claimed that neither the lease nor the gas division order authorized appellees, Cologne Production Company, Robert Hausser, and Lawrence J. Flume, Jr., to deduct gas compression and treatment costs. Appellants contend the trial court erred in granting appellees’ motion for summary judgment and in denying their motion for partial summary judgment. We affirm in part and reverse and remand in part.

A. Factual Backokound

On September 20, 1922, Holman Cartwright and Claire L. Cartwright (appellants’ predecessors) executed an oil and gas lease to Houston Oil Company of Texas. Cologne Production Company acquired the lease on January 1, 1968, and since then has operated the wells on the leased premises. The Cartwrights and Cologne executed a gas division order, dated January 1, 1968, which expressly provides for the computation of gas royalties as follows:

Each of the undersigned agrees as follows:

In making settlements for the interests of the undersigned in said proceeds, you are authorized to' use the net proceeds received by you at the wells when the gas is sold at the wells; but if sold or used off of the premises, you are authorized to use the market value at the wells of the gas so sold or used off of the premises, such market value at the wells is in no event to exceed the net proceeds received by you from such sale.

Throughout the time that Cologne has operated these wells, the gas produced has flowed into gathering lines located on the leased premises, into facilities for the removal of hydrogen sulfide, also located on the leased premises, and into compressors on the leased premises, which compress the gas to pressures sufficient to enable it to enter the sales pipeline. Since it acquired the lease, Cologne has deducted the royalty owners’ proportionate shares of the costs of treating and compressing the gas in calculating royalties.

Appellants filed suit requesting (1) a declaratory judgment that appellees were not authorized to deduct any operating expenses before calculating and paying gas royalties, and (2) an itemized accounting of these expenses. Appellants then moved for partial summary judgment requesting that the court find as a matter of law that appellees were not authorized to deduct any expenses from revenues of all gas produced and sold, except taxes levied by the State of Texas on the severance and production of the gas. Appellees also moved for summary judgment, asserting that no genuine issue of material fact existed regarding appellees’ entitlement to deduct post-production marketing expenses. The trial court (1) granted appellees’ motion for summary judgment, except appel-lees’ request for attorney’s fees, which was denied, (2) denied appellants’ partial motion for summary judgment, and (8) rendered judgment that appellants take nothing.

In two issues, appellants contend the trial court erred in denying their motion for partial summary judgment and in granting appellees’ motion for summary judgment. In three cross-issues, appellees contend that (1) the trial court erred in denying their request for attorney’s fees and (2) conditionally, in the event of reversal, the trial court erred in denying their motion to transfer venue and upon remand, the case should be transferred to Bexar County.

Normally, we would address the venue issue first. However, because the issue is raised in a cross-issue conditioned upon a reversal, we first determine if any of appellants’ issues present reversible error. See Russell v. Panhandle Producing Co., 975 S.W.2d 702, 707-08 (Tex.App.-Amarillo 1998, no pet.).

B. Finality of Judgment

We first address the issue of the finality of the trial court’s judgment. A judgment must be final before it can be appealed. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex.2001). A judgment is not final unless it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam); Garcia v. Comm’rs Court, 101 S.W.3d 778, 784 (Tex.App.-Corpus Christi 2003, no pet.). There can be no presumption that a motion for summary judgment addresses all of the movant’s claims. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.2001) (per curiam). In cases in which only one final and ap-pealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if it either states with unmistakable clarity that it is a final judgment or actually disposes of all claims and parties then before the court, regardless of its language. Lehmann, 39 S.W.3d at 204; Garcia, 101 S.W.3d at 784. The law does not require that a final judgment be in any particular form. Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784. Therefore, whether a summary-judgment order is a final judgment must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784.

Here the judgment at issue (1) is entitled “Final Judgment,” (2) states that the “foregoing orders are dispositive of all claims and causes of action alleged by all parties, and that final judgment should be rendered,” (3) provides that appellants take nothing, and (4) states that “[a]ll relief not expressly granted herein is hereby denied.” Because the trial court’s judgment states “with unmistakable clarity that it is a final judgment,” we conclude we have jurisdiction to consider this appeal.

C. SummaRY Judgment

We review a trial court’s grant or denial of a motion for summary judgment de novo. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A summary judgment movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 548; Cigna Lloyds Ins. Co. v. Bradleys’ Elec., Inc., 33 S.W.3d 102, 104 (Tex.App.-Corpus Christi 2000, pet. denied). Where the only question presented to the trial court was a question of law and both sides moved for summary judgment, the appellate court should render the judgment the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Bradleys’ Elec., Inc., 33 S.W.3d at 104.

In their first issue, appellants contend the trial court erred by failing to apply relevant rules of law applicable to the interpretation of the intent of the parties to an unambiguous written contract. Appellants assert that the “net proceeds” language in the 1968 gas division order does not authorize deductions for post-: production costs, other than State taxes, in computing appellants’ gas royalties. Ap-pellees argue that “net proceeds” means gross proceeds minus post-production marketing costs.

In construing an unambiguous oil and gas lease, our task is to. ascertain the parties’ intentions as expressed in the lease. Heritage Res. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Sun Oil Co. v. Madeley, 626 S.W.2d 726, 727-28 (Tex.1981). To achieve this goal, we examine the entire document and consider each part with every other part so that the effect and meaning of one part on any other part may be determined. Heritage Res., 939 S.W.2d at 121; Steeger v. Beard Drilling Inc., 371 S.W.2d 684, 688 (Tex.1963). We presume that the parties to a contract intend every clause to have some effect. Heritage Res., 939 S.W.2d at 121; Ogden v. Dickinson State Bank, 662 S.W.2d 330, 331 (Tex.1983). We give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense. Heritage Res., 939 S.W.2d at 121; Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953). We will enforce an unambiguous document as written. Sun Oil Co., 626 S.W.2d at 728.

Royalty is commonly defined as the landowner’s share of production, free of expenses of production. Heritage Res., 939 S.W.2d at 121-22; Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 147 (1960). Production costs are the expenses incurred in exploring for mineral substances and in bringing them to the surface. Parker v. TXO Prod. Corp., 716 S.W.2d 644, 648 (Tex.App.-Corpus Christi 1986, no writ). Absent an express term to the contrary, these costs are not chargeable to the non-operating royalty interest. Id. Whatever costs are incurred after production of the gas or minerals are normally proportionately borne by both the operator and the royalty interest owners. Id. These post-production costs include taxes, treatment costs to render the gas marketable, compression costs to make it deliverable into a purchaser’s pipeline, and transportation costs. See Martin v. Glass, 571 F.Supp. 1406, 1410 (N.D.Tex.1983), aff'd, 736 F.2d 1524 (5th Cir.1984); Heritage Res., 939 S.W.2d at 122; Parker, 716 S.W.2d at 648; Le Cuno Oil Co. v. Smith, 306 S.W.2d 190, 193 (Tex.Civ.App.-Texarkana 1957, writ ref'd n.r.e.). The parties may, however, modify this general rule by agreement. Heritage Res., 939 S.W.2d at 122.

The royalty provision language in the instant case is similar to that of the division order in Judice v. Mewbourne Oil Co., 939 S.W.2d 133 (Tex.1996). In Judice, the division order provided, “Settlement for gas sold shall be based on the net proceeds realized at the well by you.” Id: at 136. Holding that the trial court erred in concluding that the lessee was prohibited from deducting post-production compression costs from the proceeds received for the sale of gas, the supreme court explained that such language “unambiguously provides that royalty is based on net proceeds at the well. ‘Net proceeds’ expressly contemplates deductions, and we note once again that ‘at the well’ means before value is added by preparing the gas for market.” Id. at 137.

Appellants contend that the law in force at the time of the execution of a contract governs its construction. Appellants rely on Pan Am. Petroleum Corp. v. Southland Royalty Co., 396 S.W.2d 519 (Tex.Civ.App.-El Paso 1965, writ dism’d), for the definition of “net proceeds.” The lease in Pan American contained the following royalty provision:

To deliver to the credit of lessor, free of cost, in the pipe line to which they may connect their wells, the equal one-eighth part of all oil produced and saved from the leased premises and 1/8 of the net proceeds of potash and other minerals in the mine.

In construing this royalty provision, the El Paso Court of Appeals held that there were no costs to be deducted from the proceeds of the sale of the gas. We find this case to be distinguishable and unreliable for the following reasons.

First, unlike the gas in the instant case which requires compression to enable it to enter the sales pipeline, the gas in Pan American required no compression. The court, agreeing with the trial court below, explained, “... it is clear there are no properly deductible items of expense involved in the sale of the gas and distillate, as it is set forth without dispute that the gas flows from the wells by its own power, some thirty to sixty feet, to a separator and/or meter and pipeline installed by the purchaser.” Id. at 524 (emphasis added). Further, the language “no properly deductible items of expense” used by the El Paso court indicates the possibility that there were other items of expense that would have been deductible.

Second, the El Paso court cited Miller v. Speed, 259 S.W.2d 235 (Tex.Civ.App.-Eastland 1952, no writ), for the proposition that “a royalty interest is one that is free of cost of producing, saving and preparing the product for market.” Pan Am., 396 S.W.2d at 524. However, after thoroughly reviewing the Miller decision, we conclude that this statement was taken out of context.

In Miller, the court was required to review the effect of a reservation in a deed and for an accounting of royalty accrued from the production of oil. The reservation provided, “[o]ut of the above described tract of land there is hereby expressly reserved to the vendor herein, its successors and assigns an undivided 1/24 of all the oil, gas and other minerals produced, saved and made available for market....” Miller, 259 S.W.2d at 236. The issue to be determined was whether the reservation was of a mineral interest or a royalty interest. See id. at 237. Holding that the reservation was of a royalty interest, the Eastland Court of Appeals explained that “[t]he language of the reservation in the instant case, to-wit ... together with the additional provisions of the reservation, clearly disclosed the intent to reserve 1/24 of the gross amount of oil produced ... free of cost of producing, saving and preparing for market.” Id. at 241-42.. The reservation clause in Miller clearly provided that royalty was to be calculated after the minerals were “produced, saved and made available for market.” No such language exists in the gas division order before us.

Third, the El Paso court relied on the “lessee’s obligation to market the product” as a basis for its holding. Pan Am., 396 S.W.2d at 524. However, the oil and gas lease before us expressly provides that the lessee “shall be under no obligation whatsoever to market said gas.” Thus, there is no implied duty to market in the present case.

Finally, the royalty provision in Pan American expressly states that the royalty is “free of cost.” Id. at 521. The gas division order in the present case is devoid of any such language.

Accordingly, we conclude that appellants’ reliance on Pan American is misplaced. Not only are we not bound by a decision of the El Paso court, but we find Pan American to be thoroughly distinguishable.

Appellants further argue that “net proceeds received” means proceeds derived from the sale of all natural gas, less only production and severance required to be paid. In support of this contention, appellants point to a provision in the gas division order which provides:

You are authorized to deduct and pay to the proper taxing authorities all production and severance taxes required to be paid with respect to the interest of the undersigned in the gas produced from the above described land.

Appellants argue that Cologne drafted the division order providing itself authority to deduct taxes, and if it sought the right to deduct other costs, such costs would have been included in the division' order. We disagree.

The Texas Tax Code imposes a tax on each producer of gas. See Tex. Tax Code Ann. § 201.051 (Vernon 2002). “Producer” is defined as a person who takes gas from the earth or water, a person who owns, controls, manages, or leases a gas well, or a person who owns an interest, including a royalty interest, in gas or its value, whether the gas is produced by the person owning the interest or by another on his behalf by lease, contract, or other arrangement. Tex. Tax Code Ann. § 201.001 (Vernon 2002). This tax is imposed directly upon the royalty owner and does not constitute a deduction from royalty. We conclude that the language authorizing Cologne to deduct and pay the taxes merely shifted the burden of paying the taxes to Cologne.

We conclude that the gas division order did not modify the general rule that post-production costs are proportionately borne by both the operator and the royalty interest owners. See Heritage Res., 939 S.W.2d at 122. Because appellees were entitled to deduct compression and treatment costs in computing gas royalties owed to appellants, we hold the trial court did not err in granting appellees’ motion for summary judgment on this ground. Appellants’ first issue is overruled.

D. PROOF of Reasonable Expenses

In their second issue, appellants contend the trial court erred by rendering a final take-nothing judgment against them on the summary judgment record without any proof of costs deducted from their royalty payments.

In their live petition, appellants sought an itemized accounting of the expenses deducted by appellees. After reviewing the record, we conclude that ap-pellees did not raise this issue in their motion for summary judgment. In their motion for summary judgment, appellees only asserted that in computing appellants’ gas royalty under the gas division order, they were entitled to deduct post-production or marketing expenses. When, as here, the trial court grants more relief than is requested in a motion for summary judgment, we must reverse and remand those issues after addressing the merits of the properly addressed claims. See Bandera Elec. Co-op., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex.1997). Accordingly, we sustain appellants’ second issue.

E. ATTORNEY’S FEES

In their first cross-issue, ap-pellees contend the trial court erred in denying their request for reasonable attorney’s fees pursuant to the Texas Declaratory Judgment Act (“the Act”). The Act allows a trial court to grant reasonable and necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997). However, the prevailing party is not entitled to attorney’s fees as a matter of law. Sava Gumarska in Kemijska Industria D.D. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 324 (Tex.App.-Dallas 2004, no pet.). The grant or denial of attorney’s fees in a declaratory judgment action is within the discretion of the trial court, and its decision will not be reversed on appeal absent a clear showing that it abused its discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985). In the exercise of its discretion, a trial court may decline to grant attorney’s fees to either party, or the trial court may grant attorney’s fees to the nonprevailing party. Advanced Polymer Sci, Inc., 128 S.W.3d at 324. A review of the record shows no abuse of discretion. Appellees’ first cross-issue is overruled.

F. Venue

Because we sustained appellants’ second issue, which requires a reversal and remand, we must consider appellees’ conditional cross-issue that the trial court erred by denying their motion to transfer venue.

An appellate court must conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993); see Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002); see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663 (Tex.App.-Corpus Christi 1998, no pet.). This review should be conducted like any other review of a trial court’s findings of fact and legal rulings, except that the evidence need not be reviewed for factual sufficiency. Ruiz, 868 S.W.2d at 758; Colonial County Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 527 (Tex.App.-Corpus Christi 2000, pet. denied). If there is probative evidence to support the trial court’s determination, even if the preponderance of the evidence is to the contrary, the appellate court must uphold the trial court’s venue determination. Valdez, 30 S.W.3d at 527; see also Ruiz, 868 S.W.2d at 758. Although we view the record in the light most favorable to the trial court’s ruling, we do not defer to the trial court’s application of the law to the facts of the case. See Ruiz, 868 S.W.2d at 758.

As a general rule, all suits must be brought (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred, (2) in the county of the defendant’s residence at the time the cause of action accrued if the defendant is a natural person, (3) in the county of the defendant’s principal office if the defendant is not a natural person, or (4) in the county in which the plaintiff resided when the cause of action accrued. Tex. Civ. PRAC. & Rem.Code Aun. § 15.002(a) (Vernon 2002); Madera Prod. Co. v. Atlantic Richfield Co., 107 S.W.3d 652, 657 (Tex.App.-Texarkana 2003, pet. denied). However, venue is mandatory in the county in which all or a part of property is located in (1) actions for recovery of real property or an estate or interest in real property, (2) actions for partition of real property, (3) actions to remove encumbrances from the title to real property, (4) actions for recovery of damages to real property, or (5) actions to quiet title to real property. Tex. Civ. Peac. & Rem.Code Ann. § 15.011 (Vernon 2002); Madera, 107 S.W.3d at 657. A plaintiff must allege the following two “venue facts,” and establish them by prima facie proof if specifically denied, to show that venue is mandatory under Section 15.011:(1) that the nature of the suit fits within those listed in Section 15.011; and (2) that all or part of the realty at issue is located in the county of suit. In re Stroud Oil Prop., Inc., 110 S.W.3d 18, 24 (Tex.App.-Waco 2002, orig. proceeding). Because the venue provision of section 15.011 is mandatory, we strictly construe the statute. Maranatha Temple, Inc. v. Enter. Prods. Co., 833 S.W.2d 736, 739 (Tex. App.-Houston [1st Dist.] 1992, no writ).

Appellants brought suit in Live Oak County based upon the mandatory provision of section 15.011 of the civil practice and remedies code, alleging that they are royalty owners under an oil and gas lease which covers land located in Live Oak County, and appellees have unlawfully deducted certain expenses in calculating their royalty payments. They argue that such an action constitutes one for recovery of damages to real property. Appellees counter by arguing that the nature of the suit is about the calculation and computation of royalty payments under a contract, not a dispute regarding ownership of appellants’ royalty interests. We agree.

Appellants sought a declaratory judgment that the royalties should be computed without deducting any operating expenses, in accordance with the language of the gas division order. Neither party disputed the amount of land owned or the percentage interest owned by appellants. Nor did the parties dispute appellants’ rights to a royalty interest. Because appellants only sought a declaration from the trial court regarding the amount of the royalty, title was not an issue in the lawsuit. See Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex.App.-Dallas 2000), aff'd, 53 S.W.3d 368 (Tex.2001); see also Allison v. Fire Ins. Exch., 98 S.W.3d 227, 243 (Tex.App.-Austin 2002, pet. abated) (holding addition of “recovery of damages to real property” to section 15.011 does not expand the scope of the provision beyond question relating to recovery of real property or affecting title to “land”). Because title was not involved, we hold the mandatory venue provision of section 15.011 does not apply. Therefore, venue is governed by the general venue rule contained in section 15.002(a). See Tex. Civ. PRAC. & Rem.Code Ann. § 15.002(a) (Vernon 2002).

Appellants do not allege that the unlawful deduction from gross sales of unspecified operating expenses or their entitlement to royalty calculations based on gross sales proceeds occurred in Live Oak County. The individual appellees, Robert Hausser and Lawrence J. Flume, Jr., reside in Bexar County, and Cologne Production Company has its principal office in Bexar County. Therefore, because section 15.011 does not control here, we hold that venue is proper in Bexar County. Appel-lees’ cross-issue is sustained.

G. Conclusion

We affirm the trial court’s order granting appellees’ motion for summary judgment declaring that appellees are entitled to deduct post-production marketing expenses. Because appellants’ pleading requests an itemized accounting of these expenses and appellees did not move for summary judgment on that issue, the trial court granted more relief than was requested. Accordingly, we remand the accounting issue to the trial court for further proceedings. However, because we have sustained appellees’ conditional cross-issue, we order the trial court to immediately transfer this case to the District Court of Bexar County for those proceedings.

      . See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex.2001) ("An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition.”).

      . The Texas Supreme Court held that "other minerals" included gas. Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 54 (Tex. 1964).


author: Opinion by Justice ROSS.

text:
    Curtis Ray WOLF, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, et al., Appellees.
    No. 06-05-00073-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 28, 2005.
    Decided Jan. 6, 2006.
    Curtis Ray Wolf, New Boston, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Curtis Ray Wolf appeals from a judgment dismissing his lawsuit with prejudice. While an inmate at the Barry Telford Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ), Wolf was in a TDCJ bus that was involved in an accident April 4, 2003. He brought Step One and Step Two grievances. In the Step One grievance, he complained that he was injured and that, although he complained to medical staff that he was in continuing pain, he was still assigned “to the hoe squad in violation of my injuries capability.” In the Step Two grievance appeal, Wolf complained that TDCJ had merely sent a boilerplate response. He also set out the injuries he believed he had sustained, stated he was in continuous pain, and complained that the attending doctor was not properly medicating him.

On August 21, 2003, a final administrative decision was rendered. That decision stated that Wolfs assignment was appropriate, that his medical concerns had been reviewed, and explained how to seek additional review if he believed his medical problems were not being properly assessed.

Wolf filed his lawsuit April 4, 2005. The lawsuit is a claim for damages based on injuries caused by the bus accident. On May 10, 2005, the trial court dismissed the lawsuit with prejudice because Wolf did not comply with Tex. Civ. PRac. & Rem.Code Ann. § 14.005 (Vernon 2002) and the procedural requirements for pursuing grievances as set out by the TDCJ. The court further stated that Wolf failed to file his initial grievance within fifteen days of the incident or occurrence stated as the basis for the lawsuit and that the grievance did not address any acts or omissions in regard to the bus accident as alleged in his lawsuit.

An inmate may not file a claim in state court regarding operative facts for which the TDCJ grievance system provides the exclusive administrative remedy (which is, by statute, virtually all complaints) until the inmate receives a written decision issued by the highest authority provided for in the grievance system, or the 180th day after the date the grievance is filed, if the inmate has not received a written decision. Tex. Gov’t Code Ann. § 501.008(d) (Vernon 2004). An inmate who files a claim that is also subject to the grievance system must file an affidavit stating the date a grievance was filed and the date a written decision was received, along with a copy of the written decision. Tex. Crv. Prac. & Rem.Code Ann. § 14.005(a). If the inmate fails to file a claim within thirty-one days of receiving a final decision from the grievance system, the trial court must dismiss the suit. Tex. Civ. PRAC. & Rem.Code Ann. § 14.005(b); Smith v. Tex. Dep’t of Criminal Justice—Institutional Div., 33 S.W.3d 338, 340 (Tex. App.-Texarkana 2000, pet. denied).

The statute directs the department to develop and maintain a system for resolving grievances. In so doing, the TDCJ created an “Offender Orientation Handbook,” setting out time frames in which grievances must be brought. The Step One grievance form must be completed and forwarded to the Unit Grievance Investigator within fifteen days of the date of the incident on which it is based. Tex. Dep’t of CRIM. Justice, Offender ORIentation Handbook, p. 52 (Nov.2004), available at http: www.tdej.state.tx.us/publica-tions/cid/OffendOrientHbkNov04.pdf.

In this case, the incident occurred April 4, 2003. The Step One grievance was due fifteen days later. The document was signed by Wolf and dated by him May 31, 2003, and marked received by the office June 4, 2003. Under any formulation, it was not timely. Nevertheless, it is clear the TDCJ officials reviewed the grievance and made a determination on the merits of the claim, not on a procedural shortfall, and the form itself indicates it was received before the due date, which the form sets out as being July 14, 2003.

Even assuming Wolf adequately complied with the administrative procedures to the point of reaching the final administrative decision required, other problems with this proceeding are apparent.

First, the grievance itself is not couched in terms of a claim of injuries seeking damages. Wolf complains he was hurt in the wreck, but the only relief he sought was additional pain medication, more medical attention, and ultimately to get off the hoe squad. Wolfs grievance does not address the issues he brought in his civil petition, and we cannot say he either sought or received a final administrative decision on those issues.

Second, even assuming the decision did stretch so far as to cover a personal injury claim, the inmate is required to file an affidavit informing the court of the date on which he received the final decision of the administrative proceeding. If the lawsuit is not filed within thirty-one days of receipt of the final decision, the trial court is required to dismiss the claim. See Moore v. Zeller, 153 S.W.3d 262, 264 (Tex.App.-Beaumont 2004, pet. denied).

In this case, Wolf did not file the affidavit/declaration required by statute. Thus, he did not provide the trial court with the information required so it could determine whether the lawsuit was timely filed. However, judging from the fact that the administrative decision and interoffice communications attached were prepared and filed nearly two years earlier (August 21, 2003), and in the complete absence of any complaint or indication from Wolf that he did not receive it in a timely manner, it is entirely reasonable for the trial court to conclude that over thirty-one days had elapsed since Wolf was informed of the administrative decision.

Accordingly, we hold the trial court did not abuse its discretion in dismissing Wolfs suit for his having failed to comply with the requirements of Chapter 14 as discussed above. Wolfs issues are overruled.

We affirm the trial court’s order of dismissal.

      . The relevant section was added through an administrative directive effective August 1, 2002, before the date of the incident in this case. Tex. Dep’t of Crim. Justice, Administrative Directive, AD-03.82 (3d rev.Aug.l, 2002).


author: Opinion by Chief Justice THOMAS.

text:
    Brian PARSONS, Appellant, v. DALLAS COUNTY, TEXAS and Sheriff Jim Bowles, Appellees.
    No. 05-04-01824-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 6, 2006.

      Brian Parsons, Leonard, pro se.
    Karen Ann Schroeder-Tabary, Greg Long, Asst. Dist. Atty., for appellees.
    Before Chief Justice THOMAS and Justices LANG and LANG-MIERS.
   OPINION

Opinion by Chief Justice THOMAS.

In this restricted appeal, appellant Brian Parsons challenges the trial court’s dismissal of his inmate lawsuit. Appellees Dallas County and Sherriff Jim Bowles filed a motion to dismiss asserting this is not an appropriate case for a restricted appeal because appellant participated in the decision-making event that resulted in the trial court’s judgment. For the reasons that follow, we deny appellees’ motion to dismiss.

Appellant is an inmate of the Collin County jail. While temporarily being housed at the Dallas County jail; appellant fell when he leaned against a table in the dayroom. Appellant sued Dallas County and then Dallas County Sheriff Jim Bowles alleging, among other things, that they were negligent in allowing the table to remain in disrepair.

In the trial court, appellees filed a motion to dismiss appellant’s case as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies. Appéllant filed a motion to' extend time to respond to appel-lee’s motion to dismiss and a motion to attend the hearing on the motion to dismiss by telephone. The trial court did not rule on appellant’s motions. Appellant did not file a response to appellee’s motion to dismiss prior to the hearing. On October 18, 2004, after conducting a hearing, which appellant did not attend, the trial court concluded that appellant’s suit was frivolous and granted appellee’s motion to dismiss. Appellant filed a notice of restricted appeal on January 31, 2005. Appellees filed a motion to dismiss this appeal asserting this Court does not have jurisdiction.

A restricted appeal is allowed only if (1) the notice of appeal is filed within six months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004). In their motion to dismiss, appel-lees sole complaint is that appellant participated in the hearing that resulted in the judgment.

The nature and extent of participation precluding a restricted appeal in any particular case is a matter of degree because trial courts decide cases in a myriad of procedural settings. Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996). The issue is whether the appellant participated in the decision-making event that results in the judgment adjudicating the appellant’s rights. Id. It is the fact of nonparticipation, not the reason for it, that determines the right to a restricted appeal. Id. at 590.

Although appellant did not file a response to appellee’s motion to dismiss and did not attend the hearing on the motion, appellees argue that appellant participated in the decision-making event that resulted in the judgment based on his filing of various pleadings and motions pri- or to the hearing. Appellees rely heavily on Starks v. Texas Department of Criminal Justice, 153 S.W.3d 621 (Tex.App.-Amarillo 2004, no pet.). In Starks, the trial court dismissed an inmate suit as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code prior to service of process on the named defendants and without a fact-finding hearing. Id. at 623. The appellate court noted that appellant participated in the events leading to the dismissal of his case by filing various motions and pleadings. Id. at 625. However, Starks differs from the case before us. In Starks, “[t]he trial court did not hold a hearing prior to dismissing appellant’s complaint as frivolous; dismissal accordingly was based on the pleadings on file at the time of the dismissal.” Id. at 626.

In this case, the decision-making event that resulted in the judgment was the hearing on appellees’ motion to dismiss. Appellant did not respond to the motion to dismiss and did not participate in the hearing. Because appellant did not participate in the decision-making event that resulted in the judgment, appellant satisfies the non-participation element of a restricted appeal. See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424 (Tex.App.-Dallas 2004, no pet.) (concluding appellant did not participate in decision-making event where he did not respond to summary judgment motion and did not attend hearing on motion for summary judgment); Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181, 185 (Tex.App.-Fort Worth 2004, no pet.) (concluding that because decision-making event was dismissal hearing and appellants did not respond to motion to dismiss and did not attend dismissal hearing, appellants did not participate in trial); McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (concluding that while appellant may have participated up to the point of the final divorce decree, he did not participate in the proceedings resulting in the final divorce decree, therefore he satisfied the nonparticipation element of a restricted appeal).

Accordingly, we deny appellees’ motion to dismiss.

      . Appellant filed an original petition, an amended petition, Declaration of Inability to Pay Costs, an Affidavit Relating to Previous Filings, Plaintiff's Response to Defendants’ Original Answer, Plaintiff’s Motion for Hearing by Conference Call, and Plaintiff's Motion for Extension of Time to Respond to Defendants’ Motion to Dismiss.


text:
    R & R WHITE FAMILY LIMITED PARTNERSHIP, Appellant, v. Rodney D. JONES, Appellee.
    No. 06-04-00135-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 14, 2005.
    Decided Jan. 10, 2006.

      Stephen T. Arnold, Attorney At Law, Texarkana, for appellant.
    Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellee.
    Before MORRISS, C. J, ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

The R & R White Family Limited Partnership (R & R) has appealed from a take-nothing judgment. In the initial lawsuit, R <& R sued Rodney D. Jones. Jones then sued Robert White, individually, in a cross-action. In a bench trial, the court concluded that, based on the fraudulent and unlawful behavior of the parties, neither side deserved to win and that, in any event, the damages claimed by one were offset by the damages claimed by the other. Jones has not appealed.

Based on a finding that “White was the proper party in interest — and that he had not brought suit against Jones — the trial court concluded that R & R was not the proper party in interest to bring the claims. The court then reviewed the issues raised at trial, and based on detailed findings of fact, concluded that White and Jones were in a fiduciary relationship, that the “putative” sale of certain properties was tax fraud, that R & R’s claims were barred by fraud, estoppel, and unclean hands, that any partnership damages were offset by Jones’ damages, and that both White and Jones violated the “clean hands” doctrine and should not receive a benefit from their conduct.

The lawsuit was based on a series of three realty transactions where Crown Leasing, Ine., sold three properties to Jones for a total of $800,000.00, with a side agreement that Jones would later sell the properties to White, individually (and Jones would receive $100,000.00 for his efforts). The “sale” was structured so that Crown had a loss for tax purposes and could increase its tax return (by over $400,000.00). White testified that the properties were valued on the tax rolls at approximately $3,000,000.00. In the midst of these transactions, Crown was involved in several class-action lawsuits (and was apprehensive about its ability to survive) and went through bankruptcy proceedings.

The eventual resale of these properties is somewhat more convoluted. Jones sold the Quail Creek Ranch property — at White’s insistence — directly to a separate individual. Before this sale could be consummated, White had to pay off an outstanding judgment against Jones. It appears the proceeds from the sale of the ranch were placed into an account under White’s control. Jones, however, became liable for a $96,000.00 federal tax on the transaction because the sale was in his name. Apparently, Jones simply acted as a conduit for the majority of the funds, but paid taxes on the entirety of the gain on the sale.

The trial court found that the resale of the other two properties was to White’s son, Patrick.

White contended in the trial court that, based on several other transactions set out below, and because of his satisfaction of a judgment for Jones, Jones owed him $242,833.96. Jones claimed that, based on a series of transactions, including the tax set out above, White owed Jones money in approximately the same amount.

The “LaSalle” investments account was also a part of the various disputed transactions between White and Jones. The testimony concerning this account, however, is very sparse. That testimony suggests that White or R & R initially funded this account with about $350,000.00, using Jones as the account holder for the purpose of facilitating Jones’ purchase of the judgment in one of the class-action lawsuits against White (or one of his businesses). Jones testified that “LaSalle” was a d/b/a under his name and that, ultimately, more than $600,000.00 was paid for the judgment from this account. Jones feared the Internal Revenue Service might wonder why he abruptly had an account with that much money in it that simply appeared and then disappeared. He speculated that this account might cause him to become liable for unpaid taxes and penalties. White testified Jones “decided he needed some of that money [from this account], so he just cut him a check for $30,540.00.” Jones testified he and White “commingled” money in that account and did not deny he received funds from that account for his own personal benefit, but claimed to have no way of knowing how much.

Another transaction related to the sale of the properties involved the purchase of cattle. Jones testified that White had a class-action lawsuit pending against him (White) in federal court and that White needed to shelter enough money to address that lawsuit. White and Jones purchased an unspecified number of cattle for an unspecified amount of money, but Jones’ testimony is clear that he lost $200,000.00 as a result, and that he had lost that money by doing White the favor of setting up the cattle operation as a tax shelter. Although not clear from the testimony, it appears some of the money from the Quail Creek Ranch sale was also tunneled into the cattle operation to protect that sale from tax consequences.

There was also evidence that White and Jones, together, had a stock trading account that worked on margin trading and that they had lost a large amount of money when the stocks failed to perform as anticipated. Counsel has not directed us to any concrete evidence about amounts lost.

The first question we must address is whether the court correctly determined R & R was not the proper party to bring this lawsuit.

Standing/Capacity

A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp. L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). The general test for standing in Texas requires that there (1) shall be a real controversy between the parties, which (2) will be actually determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). Standing pertains to a person’s justiciable interest in a suit and is a component of subject-matter jurisdiction. See Tex. Air Control Bd., 852 S.W.2d at 443, 445-46. A controversy is justiciable only if there exists a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995).

A party has capacity to sue when it has legal authority to act, regardless of whether it has a justiciable interest in the controversy. Nootsie, Ltd., 925 S.W.2d at 661. Capacity is a party’s legal authority to go into court to prosecute or defend a suit. El T. Mexican Rests., Inc. v. Bacon, 921 S.W.2d 247, 249-50 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Capacity must be challenged by a verified pleading, or it is waived. TexR. Civ. P. 93; see Pledger v. Schoellkopf, 762 S.W.2d 145, 145-46 (Tex.1988) (contention that corporation rather than plaintiff shareholder owned fraud and tortious interference claims challenged capacity to sue and was waived); Spurgeon v. Coan & Elliott, 180 S.W.3d 593, 597 (Tex.App.-Eastland, 2005, no pet. h.); Southwest Indus. Inv. Co. v. Berkeley House Investors, 695 S.W.2d 615, 617 (Tex.App.-Dallas 1985, writ ref'd n.r.e.).

Analysis

R & R first contends the court erred by concluding it was not a proper party to the action. Its argument is not based on the merits, but on an alleged procedural shortfall. R & R contends the court could not find it was not a proper party to the suit because Jones did not file a verified answer disputing its capacity to sue.

R & R is correct in stating that the rule requires a party to complain about a lack of capacity with a verified denial. Tex.R. Crv. P. 93. However, the rule goes on to provide that a verified pleading is not required when the truth of the matter appears in the record. Id. This is based on the concept that a party could provide evidence at the trial affirmatively showing it was not the party in interest, when that might not be apparent from the pleadings. Preservation

Jones initially argues waiver of the waiver, because R & R failed to object or otherwise complain to the court when Jones first raised this issue in his motion for a directed verdict. Jones’ contention is correct. The requirement to use a verified pleading to raise this issue is a procedural matter, required by rule, and complaints about pleadings may be waived if a complaint is not promptly raised by the aggrieved party. Tex.R. Civ. P. 90 (“Every defect, omission or fault in a pleading ... which is not specifically pointed out by exception in writing and brought to the attention of the judge ... shall be deemed to have been waived .... ”); see Burks v. Yarbrough, 157 S.W.3d 876, 879 n. 1 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

Even if the rule controlled, however, it is not applicable to this argument. As framed before the Court, this is not an issue of the entity’s capacity to bring suit, but of its possession of a justiciable interest in the lawsuit, i.e., standing.

Standing

Standing implicates a court’s subject-matter jurisdiction and cannot be waived. Nootsie, Ltd., 925 S.W.2d at 662. The court’s findings and conclusions show it concluded that R & R was not the aggrieved party, but that White was the one with the justiciable interest. The question, therefore, is whether a real controversy existed between R & R and Jones that would be determined by the judicial declaration sought, i.e., whether R & R has standing; not whether it has the legal authority to act and therefore has the capacity to sue. See id. at 661.

Standing is a component of subject-matter jurisdiction and may be raised at any time. Tex. Air Control Bd., 852 S.W.2d at 445-46; Antonov v. Walters, 168 S.W.3d 901, 904 (Tex.App.-Fort Worth 2005, pet. denied). A party’s standing to pursue a cause of action is a question of law, and we apply a de novo standard of review to the trial court’s determination regarding standing. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Emmett Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365, 371 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). An appellant may not challenge a trial court’s conclusions of law for factual insufficiency; however, the reviewing court may review the trial court’s legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Templeton v. Dreiss, 961 S.W.2d 645, 656 n. 8 (Tex.App.-San Antonio 1998, pet. denied).

R & R attacks the conclusion of law; it does not, however, argue evidentiary sufficiency as to this contention. The evidence reflects that, at some point, White’s advisors created a plan to protect White’s assets from possible creditors. In that plan, Crown’s remaining assets were transferred to an entity called Equichase Limited, a limited partnership described by White as “the main entity that owns the assets of the family.” R & R was set up as the general partner of Equichase. Thus, the question is: Did R & R have standing, as the general partner of Equi-chase, to bring suit?

Generally, except as provided by the Limited Partnership Act, or a partnership agreement, a general partner of a limited partnership has the rights and powers and is subject to the restrictions of a partner in a partnership without limited partners. Tex.Rev.Civ. Stat. Ann. art. 6132a-l, § 4.03(a) (Vernon Supp.2005). A partnership may sue or be sued in the partnership name — and a partner may individually sue for the benefit of the partnership and other partners. See Tex.R. Civ. P. 28; Chien v. Chen, 759 S.W.2d 484 (Tex.App.-Austin 1988, no writ); 57 Tex. JuR. 3D Parties § 14 (1997); 57 Tex. JüR. 3D Partnerships § 242 (1997).

The more specific question in the instant case is: Did Equichase, through its general partner R & R, or did R & R separately, have standing to bring this lawsuit as alleged?

The trial court specifically found that the action as set out was personal to White and was not one belonging to the partnership(s). There was evidence that White personally instigated the transactions, that he personally transferred the properties, that he personally set out the requirements for resale, and that he personally demanded sale and resale in accord with the terms of them oral and written agreements. It is also apparent that, at the time of the initial transactions in issue, the real estate properties were under the legal ownership of Crown.

The written agreement with Jones, however, does not require sale back to a corporation, or to a partnership (either limited or otherwise). It explicitly requires Jones to sell the properties described “back to ROBERT WHITE at a fair profit within two years from the date of this AGREEMENT, the profit not to exceed $100,000.00.”

In its finding of fact number 18, the trial court found that White was the proper party plaintiff and that there was no evidence the “arrangement” was legally and properly assigned to the plaintiff named in the lawsuit and that the two properties not sold from “the property” (the three real estate properties involved) were conveyed back, not to the named plaintiff, but to Patrick White, White’s son. The court found there was also a claimed personal loss on stock investments, but nothing that illustrated the account, no partnership agreement, and no agreement defining the responsibilities of the parties.

R & R contends that, because family assets were ultimately placed into Equichase, the cause of action was necessarily transferred as well. To recover under the theory that a cause of action was assigned to another party, the party claiming the assigned rights must prove that the cause of action was in fact assigned. Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex.App.-San Antonio 2004, no pet.); Exxon Corp. v. Pluff, 94 S.W.3d 22, 28 (Tex.App.-Tyler 2002, no pet.); Tex. Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215, 217 (Tex.App.-Fort Worth 1994, writ denied).

There is no testimony or documentary evidence that the cause of action was in fact assigned, or even that its existence was ever acknowledged. There was testimony about the completely personal nature of the transaction, and about the manner in which the property was actually transferred pursuant to the personal agreement, and documentary evidence that the properties were to be transferred not to an assignee, or to a partnership, but to White.

Accordingly, applying a de novo review as required, from the pleadings and evidence presented to the court, we conclude the trial court’s conclusion of law that R & R was not the proper party is supported by the evidence that R & R had no justiciable interest in the lawsuit, and that there is not conclusive proof to the contrary. Thus, it had no standing to bring this lawsuit, and the trial court correctly so held.

Conclusion

In fight of the fact that Jones did not appeal, this analysis disposes of the appeal, and we find it unnecessary to address the remaining points of error brought by R & R.

We affirm the judgment.

      . White testified that he owned 95% of the stock in Crown; however, an exhibit indicates he owned 100% of the stock.

      . The three properties are described as: the Moores Lane Building, Quail Creek Ranch, and Landco Development (Whispering Hills).

      . Ultimately, Crown’s chain of stores was sold to Rent-A-Center, Inc.


author: Opinion by Justice O’NEILL.

text:
    Hugo BAXTER, Rosana Morales, Vincente Marino, Jose Luis Herrera, and Eduardo Alvarado, Appellants, v. GARDERE WYNNE SEWELL LLP and Julian Nihill, Appellees.
    No. 05-04-01672-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 18, 2006.

      Susan Lea Hays, Law Office of Susan Hays, P.C., Dallas, Edward C. Snyder, Jesse R. Castillo, Martin, Drought & Torres, Inc., San Antonio, for Appellants.
    Edward F. Fernandes, David P. Whitt-lesey, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Austin, for Appellees.
    Before Justices WHITTINGTON, MOSELEY, and O’NEILL.
   OPINION

Opinion by Justice O’NEILL.

The primary issue in this appeal is how the discovery rule operates with respect to the statute of limitations for claims under the Texas Security Act (TSA). Appellants Hugo Baxter, Rosana Morales, Vincent Marino, Jose Luis Herrera, and Eduardo Alvarado appeal a summary judgment granted in favor of Gardere Wynne Sewell LLP and Julian Nihill (referred to collectively as Gardere) based on limitations. Appellants contend the trial court erred in granting summary judgment because the discovery rule delayed accrual until they knew or should have known of Gardere’s alleged involvement with fraud committed by one of its clients. In the alternative, they assert summary judgment was improper because they raised a fact question regarding fraudulent concealment. For the following reasons, we affirm the trial court’s judgment.

In the 1980s and 1990s, appellants, all citizens and residents of Mexico, opened “investment advisory accounts” with Sharp Capital, Inc., an investment advisor located in Texas. Appellants sent money to Sharp to invest in conservative, liquid investments, such as CDs issued by U.S. banks. Sharp, however, began making very high risk investments, including making loans to a related company. Sharp’s handling of its client funds violated the TSA. In the mid-1990s Sharp retained Gardere. According to appellants, Gardere, with knowledge of Sharp’s securities violations, assisted Sharp in setting up offshore entities to allow it to avoid the regulatory purview of the Securities and Exchange Commission (SEC).

In late 1998, due in part to the default on several allegedly illegal loans, Sharp failed. In November 1998, the SEC obtained a federal court order freezing Sharp’s assets and appointing a special master to take over and manage Sharp. Appellants were sent a letter notifying them of the SEC’s actions. Consequently, by November 1998, appellants were aware of their injuries and Sharp’s misconduct.

Meanwhile, after Sharp’s collapse but before the special master was appointed, Gardere took possession of Sharp’s internal documents. After the special master was appointed, he requested copies of all the Sharp documents. Gardere delivered seventy-five boxes of documents to the special master. Gardere represented to the SEC that the seventy-five boxes it sent to the special master constituted all Sharp documents “excepting privileged documents.”

However, appellants subsequently determined that Gardere had in fact held back twenty-seven boxes of Sharp’s documents, only four of which did Gardere ultimately claim were privileged. The retained documents consisted of documents related to Gardere’s representation of Sharp and according to appellants, showed Gardere’s involvement with and complicity in Sharp’s fraud.

Gardere did not deliver the documents to the special master until June 2001 and appellants did not obtain copies of the documents until April 2002. After they reviewed the documents, appellants filed suit against Gardere that same month. The claims against Gardere are all based on its actions in assisting Sharp to “get away with” violating Texas securities laws. Appellants specifically alleged claims under the TSA for aiding and abetting the sale of unregistered securities and for the sale of securities by untruth or omission. Appellants also alleged common law aiding and abetting securities violations and alleged a claim for “aiding & abetting/conspiracy” to commit fraud and conversion. Appellants alleged the discovery rule and fraudulent concealment prevented the statute of limitations from barring their claims.

Gardere moved for summary judgment asserting it conclusively established limitations barred appellants claims. The trial court granted Gardere’s motion.

SummaRY Judgment

The standards for reviewing summary judgment under rule 166a(c) are well-established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex.App.-Dallas 2004, no pet.). A party moving for summary judgment on the statute of limitations must conclusively prove all the elements of that defense. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). To meet this burden, a defendant must negate the discovery rule if raised. Murphy v. Mullin, Hoard, & Brown, 168 S.W.3d 288, 291 (Tex.App.-Dallas 2005, no pet.).

A cause of action generally accrues when a wrongful act causes some legal injury to the plaintiff, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997); Prostok v. Browning, 112 S.W.3d 876, 896 (Tex.App.-Dallas 2005), aff'd in part, rev’d in part, on other grounds, 165 S.W.3d 336 (Tex.2005). However, under the discovery rule, a cause of action will not accrue until the plaintiff knew or should have known of the wrongfully caused injury. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 735 (Tex.2001); Prostok, 112 S.W.3d at 896. For the claim to accrue, the plaintiff need not know the specific nature of each wrongful act that may have caused his injury. Prostok, 112 S.W.3d at 896. Rather, it accrues when the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the “nature of his injury.” Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998). Thus, the discovery rule only defers accrual of a cause of action until the plaintiff discovered, or should have discovered through reasonable diligence, the injury and that it was likely caused by the wrongful acts of another. Id. Once these requirements are satisfied, “limitations commences, even if the plaintiff does not know the exact identity of the wrongdoer.” Id.

Discovery Rule — TSA Claims

In its motion for summary judgment, Gardere asserted that, as a matter of law, appellants claims were barred by the TSA’s three-year statute of limitations. Specifically, they maintained the summary judgment evidence conclusively established appellants knew or should have known of their injury and that it was caused by the wrongful acts of another no later than November 1998, when appellants were notified of Sharp’s collapse and the SEC take over. Thus, appellants’ April 2002 suit was untimely. The trial court agreed and granted Gardere’s motion for summary judgment.

Appellants assert summary judgment was improper because the statute of limitations did not begin to run until they knew or should have known of Gardere’s involvement in causing their injury. To support their interpretation of the discovery rule, they rely on federal cases decided under the Federal Securities Act. These cases hold that the federal discovery rule delays accrual until the plaintiff knew or should have known of the particular defendant’s involvement in fraudulent conduct. See, e.g., Levitt v. Bear Stearns, 340 F.3d 94, 102 (2d Cir.2003); Rahr v. Grant Thornton, 142 F.Supp.2d 793, 797 (N.D.Tex.2000). Appellants acknowledge the federal eases are not binding, but assert we should follow them because the TSA was modeled after the federal act.

However, the Texas Supreme Court has clearly stated that the discovery rule delays accrual of a cause of action until the plaintiff knew or should have known of their injury, not the identity of the wrongdoer. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998); see also KPMG Peat Marwick, 988 S.W.2d at 749. Contrary to appellants’ suggestion, nothing in our precedent would suggest our discovery rule injury-by-injury analysis is dependent upon the particular claims at issue. See KPMG Peat Marwick, 988 S.W.2d at 748-49 (DTPA claims against independent auditor); Childs, 974 S.W.2d at 40 (tort claims). Until the Texas Supreme Court carves out an exception for cases under the TSA, we will continue to apply the discovery rule as previously announced by that Court.

Moreover, the statute of limitations for the TSA has a “built-in” discovery rule. It provides that no person may sue more than three years after discovery of the untruth or omission or after discovery should have been made by the exercise of reasonable diligence. Tex.Rev.Civ. Stat. Ann. art. 581-33(H)(2) (Vernon Supp. 2005). Thus, the statutory limitations period expressly establishes the relevant inquiry for discovery rule purposes, i.e. discovery of the “untruth or omission.” Id. It is not disputed that the untruth or omission for which Gardere is being sued was Sharp’s untruth or omission regarding the sale of securities. It is also not in dispute that appellants knew or should have known of this untruth or omission no later than November 1998 when they were made aware not only of Sharp’s failure, but the SEC take over. Consequently, under the plain language of the TSA, appellant’s April 2002 suit was not timely.

Moreover, as Gardere points out, while the TSA was modeled after the Federal Securities Act, differences between the federal law and Texas law justify treating the TSA discovery rule differently. For example, part of the reason the federal courts have applied the federal act’s discovery rule on a “defendant-by-defendant” basis is that the federal act has a very short one-year limitations period. See Levitt, 340 F.3d at 103-04; Zurich Capital Mkts., Inc. v. Coglianese, 332 F.Supp.2d 1087, 1102-03 (N.D.Ill.2004). Despite the very short limitations period, claims under the federal act are governed by a heightened pleading requirement. See Fed. R.Civ.P. 9(b); Zurich Capital, 332 F.Supp.2d at 1102. In contrast, the TSA not only has a significantly longer three-year limitations period, Texas does not require the same pleading specificity as required under the federal rules. See Tex.R. Civ. P. 45. These differences support our refusal to interpret the TSA’s discovery rule in lock-step with the federal act.

Finally, we note that we cannot agree with appellants’ assertion that it was not possible for them to discover Gardere’s involvement in Sharp’s misconduct until June 2001, when Gardere delivered the withheld documents to the special master. Although appellants may not have known of Gardere’s specific “existence” until June 2001, they undoubtedly knew or should have known that Sharp had legal counsel and that counsel was assisting Sharp with setting up its U.S. business entities. Moreover, Gardere did not conceal its identity from the special master or the fact that it had withheld some documents— although there was a dispute regarding the number and nature of the documents withheld. Thus, with minimal investigation, appellants could have discovered not only that Gardere existed and represented Sharp, but that it had withheld Sharp documents. Under these circumstances, we cannot agree discovery of Gardere’s involvement was impossible.

FRAUDULENT CONCEALMENT— Common Law Claims

Appellants next assert fact issues concerning fraudulent concealment preclude summary judgment in favor of Gard-ere on their non-TSA claims. Here, appellants assert that unlike the discovery rule, the doctrine of fraudulent concealment, if proven, will toll limitations until appellants discovered the identity of each defendant involved with Sharp’s misconduct. In Otis v. Scientific Atlanta, 612 S.W.2d 665, 667 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.), this Court held that concealment of one’s identity does not toll the statute of limitations when, regardless of the defendant’s identity, the plaintiff knows, or reasonably should know, he has a cause of action. In other words the doctrine of fraudulent concealment will not toll limitations unless the wrongdoer fraudulently conceals the plaintiffs cause of action. Otis v. Scientific Atlanta, 612 S.W.2d 665, 667 (Tex.Civ.App.-Dallas 1981,); see also Burns v. Thomas, 790 S.W.2d 1, 2 (Tex.App.-Amarillo 1988), rev’d, on other grounds, 786 S.W.2d 266 (Tex.1990). Here, appellants were aware of their cause of action in the fall of 1998, but were unaware of all the potential defendants. Under these circumstances, the doctrine of fraudulent concealment will not toll the running of the statute of limitations. See Burns, 790 S.W.2d at 2.

In the alternative, appellants assert that “equitable estoppel” prevents Gardere from relying on limitations. According to appellants, Gardere should be “estopped” from relying on limitations because it concealed its wrongdoing by withholding the Sharp documents from the special master. Appellants are merely restating their fraudulent concealment claim, a doctrine based on equitable estoppel. See Li v. Univ. of Tex. Health & Science Center at Houston, 984 S.W.2d 647, 653 (Tex.App.Houston [14th Dist.] 1998, pet. denied). To the extent they assert “equitable tolling” apart from fraudulent concealment, they have not made an effort to show the applicability of that doctrine. See, e.g., Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex.App.-Austin 1987, writ ref'd n.r.e.) (equitable tolling applies when a defendant induces a plaintiff not to file suit regarding a claim the plaintiff knows it has).

Finally, appellants assert summary judgment was improper on their claim for common law “aiding and abetting fraud” because that claim is governed by a four-year statute of limitations, making their April 2002 suit timely. In their petition, appellants included a paragraph requesting relief for “Aiding & Abetting/Conspiracy to Commit Fraud.” In the motion for summary judgment, Gard-ere asserted all appellant’s claims were governed by either a two- or three-year limitations period. It asserted all claims were time barred because appellants filed suit more than three years after accrual. In its response, appellants did not dispute the applicable limitations periods, but argued that the discovery rule and fraudulent concealment prevented the statute of limitations from barring their suit. Now, for the first time on appeal, appellants assert their claim for “aiding and abetting fraud,” as opposed to “adding and abetting conspiracy,” is governed by a four-year statute of limitations.

Appellants’ petition did not separate their claim for aiding and abetting fraud from their claim for aiding and abetting conspiracy. Nor did their response to the motion for summary judgment separate these claims, much less argue that the two claims were governed by different limitations periods. Indeed, appellants acknowledge this claim has not been recognized as an independent claim by the Texas Supreme Court and, for the first time on appeal, rely on federal precedent to argue the claim is governed by a four-year, instead of a two-year, limitations period. Issues a nonmovant contends avoid summary judgment that are not expressly presented to the trial court by written answer or other written response to the summary judgment motion are waived on appeal. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 677 (Tex.1979). We conclude appellants waived any argument that the aiding and abetting fraud claim was governed by a different limitations period than their other claims.

After reviewing the briefs and the summary judgment record, we conclude appellants have failed to establish reversible error. We affirm the trial court’s judgment.