author: BOB PEMBERTON, Justice.

text:
    ANCIRA ENTERPRISES, INCORPORATED and Ancira GMC Trucks and Motor Homes, Inc., Appellants, v. Frances FISCHER and Law Office of Rique D. Bobbitt, Appellees.
    No. 03-03-00498-CV.
    Court of Appeals of Texas, Austin.
    June 16, 2005.

      Cathy J. Sheehan, Les E. Katona, Plunkett & Gibson, Inc., San Antonio, for appellants.
    Juan Francisco Lopez Jr., Austin, for appellee Frances Fischer.
    Frances Fischer, Temple, pro se.
    Charles E. Lance, Cameron, for appellee Law Office of Rique D. Bobbitt.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.

      . The Law Office of Rique Bobbitt represented Frances Fischer at trial but subsequently withdrew. It appears in this appeal as an assignee of an interest in Fischer's cause of action.

   OPINION

BOB PEMBERTON, Justice.

This is an appeal from a judgment on a jury verdict finding Ancira Enterprises, Incorporated (Ancira Enterprises) and An-cira GMC Trucks and Motor Homes, Inc. (Ancira GMC) hable for retaliatory discharge in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.Code Ann. § 21.001-262 (West 1996 <& Supp.2004-05). The judgment further held Ancira GMC and Ancha Enterprises jointly and severally hable to pay appellee, Frances Fischer, back pay, compensatory damages, punitive damages, attorney’s fees, and prejudgment and post-judgment interest. See id. §§ 21.2585, .259 (West 1996). On appeal, Ancha Enterprises and Ancha GMC argue that Fischer failed to prove that either entity met the statutory definition of “employer” under the TCHRA and that the evidence was legally insufficient to support the award of punitive damages. Finding sufficient evidence to support both TCHRA liability and punitive damages, we affirm the judgment against Ancira GMC. However, because Fischer failed to adduce legally sufficient evidence that Ancira Enterprises is an employer subject to the TCHRA, we reverse and render a take-nothing judgment in its favor.

BACKGROUND

Ancira Enterprises and Ancira GMC are among several entities under the common ownership of Ernesto Ancira that, collectively, have over 700 employees. Ancira GMC is an automobile dealership. Ancira Enterprises provides certain administrative services, including human resources services, for ten Ancira dealerships including Ancira GMC.

Beginning in 1997, Fischer worked at the Temple location of Ancira GMC. She was employed in the dealership’s service department as a “technician flagger,” a job that entailed “flagging” on repair orders the time that Ancira GMC’s technicians worked on each job and either sending the order back to the repair dispatcher or preliminarily billing the order. The evidence at trial was disputed concerning the subsequent events from which this appeal arose.

Fischer testified that, beginning in 1997, she experienced a hostile work environment because of racial slurs, sexual advances, and sexually explicit comments made by other employees and managers. In February and April 1999, Fischer notified management that certain technicians in the service department were placing their service number on repair orders for work they did not perform, in effect stealing commission from other employees. Soon after reporting this conduct, Fischer testified, she began to be treated worse by management, including getting yelled at and, unlike other employees, being prohibited from listening to radio stations of her choice or lighting scented candles to eliminate offensive odors in the service area. Fischer also recounted that, for a period of time, she and another employee lost their right to take breaks. Fischer also claimed that other employees often made sexually suggestive comments to Fischer; made comments regarding the race of men that she and her daughter dated; and defaced, in an obscene and racist manner, pictures which were displayed in her office. Fischer repeatedly complained to management, including submitting a written complaint dated September 27, 1999. In response, Fischer recalled, management sometimes attempted to correct the situation, but often did nothing. In contrast, witnesses for appellants testified that Fischer had difficulty getting along with co-workers and persistently complained to management regarding a wide range of perceived slights and wrongs.

In October 1999, Valerie Tackett, human resources director for Ancira Enterprises, began an investigation into the potential misuse of Ancira’s toll-free telephone number. On November 1, 1999, after the investigation was complete, Fischer and coworker A1 Trevino were suspended without pay for five days. The next day, November 2, Fischer and Trevino traveled to Austin and met with a representative of the Texas Commission on Human Rights (TCHR). Trevino filed a written complaint with TCHR that day. Although Fischer verbally complained to the TCHR representative on November 2, she did not file a written complaint until November 10. The TCHR was required by statute to notify the employer of these written complaints within ten days. See Tex. Lab. Code Ann. § 21.201 (West 1996). Trevino and Fischer were both fired on November 12, 1999, exactly the tenth day after Trevino had filed his complaint. Appellants argued that Fischer was fired because, while she was suspended, an excessive amount of unfinished work was found “hidden” in her desk. Fischer testified that no one had ever complained that she had an excess backlog of back work orders, and that when she left on November 1, her work was caught up to her satisfaction.

On August 16, 2000, Fischer filed suit against Ancira Enterprises, alleging discrimination and retaliation under the TCHRA and negligent and intentional infliction of emotional distress. On January 17, 2003, Fischer amended her petition to name Ancira GMC as a defendant. The case was tried to a jury, who found that Fischer was “employed by” both Ancira Enterprises and Ancira GMC, and that both entities were liable for retaliating against Fischer in violation of the TCHRA, but that Fischer had not been sexually harassed. Fischer was awarded back pay, compensatory damages in the amount of $30,000, punitive damages in the amount of $75,000, attorney’s fees, and prejudgment and postjudgment interest. This appeal ensued.

DISCUSSION

Ancira Enterprises and Ancira GMC present two narrow issues on appeal. In the first, they argue that Fischer failed to prove that either entity met the statutory definition of “employer” against whom Fischer could assert a claim under the TCHRA. In their second issue, Ancira Enterprises and Ancira GMC contend that there was legally insufficient evidence of malice necessary to support liability for punitive damages.

Standard of review

In reviewing the legal sufficiency of the evidence, we view the evidence in the fight favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). There is legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Patlyek v. Brittain, 149 S.W.3d 781, 785 (Tex.App.-Austin 2004, pet. denied). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd,., 896 S.W.2d 179, 183 (Tex.1995).

In reviewing a factual insufficiency point, we consider, weigh, and examine all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

In reviewing a claim that evidence is legally insufficient under the clear and convincing standard applicable to the punitive damages award in this case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Diamond Shamrock Ref. Co. v. Hall, No. 02-0566, 168 S.W.3d 164, 170 (Tex.2005) (quoting Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex.2004)); see In re J.F.C., 96 S.W.3d 256, 264-68 (Tex.2002); see also City of Keller, 168 S.W.3d at 816 . We assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so, and disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. See Hall, 168 S.W.3d at 170 (quoting In re J.F.C., 96 S.W.3d at 266). The evidence is legally insufficient if no reasonable fact-finder could form a firm belief or conviction that the employer(s) acted with malice. See id.

Employer status under the TCHRA

Under the TCHRA, an employee may sue an “employer” who retaliates or discriminates against him/her for opposing a discriminatory practice; making or filing a charge; filing a complaint; or testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. See Tex. Lab.Code Ann. § 21.055 (West 1996). In creating this remedy, the legislature intended to correlate state law with federal law in employment discrimination cases. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003); see also Tex. Lab.Code Ann. § 21.001; Little v. Texas Dep’t of Grim. Justice, 148 S.W.3d 374, 382 (Tex.2004).

For an entity to qualify as an “employer” subject to liability under the TCHRA, (1) it must fall within the statutory definition of employer; and (2) there must be an employment relationship between the parties. Sterkenburg v. Bittner, 1999 WL 190241, at *2, 1999 Tex.App. LEXIS 2577, at *4 (Tex.App.-Austin 1999, no pet.) (not designated for publication); Guerrero v. Refugio County, 946 S.W.2d 558, 566 (Tex.App.-Corpus Christi 1997, no writ) (citing Deal v. State Farm County Mut. Ins. Co. of Tex., 5 F.3d 117, 118 n. 2 (5th Cir.1993)). The statutory definition of “employer,” includes “a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Tex. Lab.Code Ann. § 21.002(8)(A). The “current year” refers to the year of the alleged discriminatory or retaliatory act, not the date of the judgment. Vance v. Union Planters Corp., 279 F.3d 295, 297 (5th Cir.2002).

Accordingly, Fischer had the burden of proof to present evidence that both Ancira Enterprises and Aneira GMC: (1) had an employment relationship with Fischer; (2) were engaged in an industry affecting commerce; and (3) had fifteen or more employees, (a) for each working day in each of twenty or more calendar weeks, (b) in calendar years 1998 or 1999. See Tex. Lab.Code Ann. § 21.002; see also Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 212, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) (“the ultimate touchstone under [the federal statute] is whether an employer has employment relationships with 15 or more individuals for each working day in 20 or more weeks during the year in question.”); Greenlees v. Eidenmuller Enters., Inc., 32 F.3d 197, 198 (5th Cir.1994); Davis v. West Cmty. Hosp., 786 F.2d 677, 681-82 (5th Cir.1986) (analyzing evidence of number of employees pursuant to federal discrimination statute).

At trial, Fischer sought to hold both Ancira Enterprises and Ancira GMC hable under the retaliation statute. See Tex. Lab.Code Ann. § 21.055. Over objection, the district court submitted a jury issue inquiring only whether Fischer was “employed by” — i.e., had an employment relationship with — Aneira GMC, Ancira Enterprises, or both. The jury found in the affirmative as to both entities. The jury was not asked to make findings regarding the other elements necessary to impose liability for retaliation under the TCHRA, nor was it instructed or provided definitions regarding those elements. Although appellants did not object to the form of this submission on these grounds, they did object to the submission of a TCHRA retaliation issue altogether on the basis that Fischer had failed to present evidence that either Ancira GMC or Anci-ra Enterprises had the minimum fifteen employees for the requisite time period; they also raised this complaint in a directed verdict motion and motion for j.n.o.v. Against this backdrop, we construe Appellants’ first issue as a challenge to the legal sufficiency of the evidence that would support the district court’s deemed findings that both Ancira GMC and Ancira Enterprises had fifteen or more employees for each working day in each of twenty or more calendar weeks in 1998 or 1999. See Tex.R. Civ. P. 279; In re J.F.C., 96 S.W.3d 256, 262-64 (Tex.2002). We also must consider whether there is factually sufficient evidence to support the deemed finding. Tex.R. Civ. P. 279; J.F.C., 96 S.W.3d at 262-64. We accordingly examine the record to determine whether there is legally and factually sufficient evidence that Anci-ra GMC and Ancira Enterprises each had fifteen or more employees for each working day for twenty or more calendar weeks in 1998 or 1999.

Ancira GMC

At trial, Valerie Tackett, human resources director for Ancira Enterprises, testified that Ancira GMC “has between 30 and 35 employees; possibly 36.” Tackett’s testimony establishes only that it is possible that Ancira GMC could have met the TCHRA number-of-employees threshold at the time of trial. The TCHRA requires much more: at least fifteen of the employees must have been employed by Ancira GMC for each working day in each of twenty or more calendar weeks during the calendar year of the retaliation or the preceding year. See Tex. Lab.Code Ann. § 21.002; see also Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001) (‘When possible, each sentence, phrase, clause and word is given effect, so that the statute makes sense as a cohesive whole.”); City of Austin v. Hyde Park Baptist Church, 152 S.W.3d 162, 166 (Tex. App.-Austin 2004, no pet.). Tackett was never asked whether Ancira GMC had employed these employees for the requisite time period during the relevant time period, nor are there payroll documents in evidence showing that at least fifteen employees were on either entity’s payroll for each working day of twenty weeks in 1998 or 1999.

However, we have gleaned, from testimony and exhibits, evidence that at least fifteen individuals had an employment relationship with Ancira GMC for the requisite time period during 1999. Because there is no contrary evidence, it is reasonable to infer that each was employed continuously (each working day) during the interim between the earliest and latest dates each was identified as having been employed by Ancira GMC. See Davis, 786 F.2d at 681-82.

• Fischer, who worked at Ancira GMC’s Temple location from 1997 through November 1999.
• Neil Mentzer, whose Ancira GMC employment dates are listed on a human resources document as September 1994 until August 1999.
• John Hearn, who witnesses testified began his employment at Ancira GMC in October 1995 and remained employed there at the time of trial in April 2003.
• Albert de la Garza, who testified that he was the general manager at Ancira GMC in May 1993 and was still the manager in April 2003.
• Lonnie Clark, who was a technician at Ancira GMC from at least January-1997 until November 1999.
• Andy Henry, who was mentioned in an October 1999 letter from Fischer to Tackett, written on Ancira GMC letterhead. In that letter, Fischer stated that she attended a May 1999 meeting with Andy Henry. Also, Henry conducted Fischer’s performance review in August 1999, and signed a corrective action counseling record for another employee in November 1999. He was a service manager at Ancira GMC, working under de la Garza.
• Trish Garrett, who testified that she was the office manager at Ancira GMC in April 2003 and had been there since at least June 1998.
• Mike Medrano, who testified that he was employed by Ancira GMC in April 2003. An exhibit demonstrates that he was also there in May 1999.
• Renee Horn, who testified that she was an employee of Ancira GMC in April 2003 and began working there sometime before January 1998.
• Jennifer Lawrence — Fischer complained about her in early 1997, and a July 2, 1999, letter addressed to Lawrence reveals that she was still employed by Ancira GMC at that time.
• Ryan Hope, who signed documents related to the investigation of Fischer’s complaint on October 28, 1999; Hope’s 90-day probation period evaluation at Ancira GMC was signed by Andy Henry on August 4, 1999, and Fischer mentioned Hope in a letter dated May 2000. Thus, Hope was employed by Ancira GMC from at least May 1999 through sometime in 2000.
• Lanny Dugan — Fischer wrote a letter to co-worker Dugan in October 1997 complaining of his behavior; he is also mentioned in a letter exhibit dated July 1999.
• Bubba Orr — Fischer testified that, in February 1999, she noticed that he had allegedly altered a repair order. An exhibit shows that Orr was terminated from Ancira GMC in September 1999.
• Doug Dangerfield — the record reflects that he signed paperwork on behalf of Ancira GMC in June 1998 and was terminated in July 1999; and
• A1 Trevino, who testified that he worked at Ancira GMC from November 1995 until November 1999.

The foregoing is legally and factually sufficient evidence that Ancira GMC met the TCHRA’s definition of “employer.” Moreover, on November 4, 1999, in Tack-ett’s formal response to Fischer’s internal complaints, Tackett detailed the results of her investigation and named over fifteen then-current employees with knowledge of the circumstances surrounding Fischer’s complaint. The record also contains an Ancira GMC phone list with names and phone numbers of thirty-two employees, a number that is roughly consistent with Tackett’s testimony that there were approximately thirty-five employees at the Temple location of Ancira GMC. John Hearn, the Ancira GMC manager at the time of trial, referred in testimony to at least eighteen different positions at the Temple location, including: (1) store manager; (2) parts manager; (3) service manager; (4) office manager; (5) finance manager; (6) flagger; (7) warranty clerk; (8) service writer; (9) dispatcher; (10) air conditioning technician; (11) cashier; (12) parts people; (13) shop foreman; (14) service director; (15) sales manager; (16) service secretary; (17) salesman; and (18) assistant sales manager. Although this evidence, standing alone, would be insufficient to establish that Ancira GMC is an “employer” subject to the TCHRA, we hold that when combined with the evidence regarding specific individual employees, reasonable jurors could conclude from this record that Ancira GMC employed fifteen or more employees during the required time period. See City of Keller, 168 S.W.3d at 807, . We overrule Ancira GMC’s first issue.

Ancira Enterprises

At trial, Tackett testified that Anci-ra Enterprises “consists of approximately twelve employees,” and, since 1992, has never had more than fourteen employees. Only one witness, Ashleigh Hall Qualey, testified unequivocally that she worked for Ancira Enterprises. On this record, there is no more than a scintilla of evidence that Ancira Enterprises had fifteen or more employees for the required time period in 1998 or 1999.

Appellees urge that Ancira Enterprises may nonetheless be held hable under the TCHRA because it and Ancira GMC constituted a “single employer” whose employees should be aggregated for purposes of the TCHRA thresholds. The record was unclear and contained conflicting evidence regarding which entity employed certain employees. However, the single employer theory, which is akin to alter ego or piercing the corporate veil, was neither pled at trial nor submitted to the jury. We conclude that it was waived. See George Grubbs Enters. v. Bien, 900 S.W.2d 337, 339 (Tex.1995) (“Disregarding the corporate structure ... demands a fact-specific analysis of each case and therefore demands jury instructions that advise the jury concerning all the factors bearing on their decision.”); Castleberry v. Branscum, 721 S.W.2d 270, 277 (Tex.1986).

Having found legally insufficient evidence to support a deemed finding that Ancira Enterprises had at least fifteen employees for the required time period during 1998 or 1999, we must reverse and render a take-nothing judgment in its favor. Because legally and factually sufficient evidence supports the deemed finding with regard to Ancira GMC, however, we proceed to consider Ancira GMC’s second issue concerning punitive damages.

Punitive damages

In Ancira GMC’s second issue, it contends that the evidence is legally insufficient to support the jury’s award of punitive damages. Other than contesting that it is subject to TCHRA liability, Ancira GMC does not challenge the jury’s finding that Fischer’s “opposition to a discriminatory practice, making or filing a charge of discrimination, sexual harassment, filing a complaint, assisting, or participating in any manner in a discrimination or sexual harassment investigation or proceeding” under the TCHRA was a “motivating factor” in “Employer’s decision to discharge Frances Fischer.” This finding was the predicate for Fischer’s punitive damages liability issue. In that submission, the jury was asked whether it found, by clear and convincing evidence, that “Employer engaged in the discriminatory practice” made the basis of its TCHRA liability finding “with malice or with reckless indifference to the right of Frances Fischer to be free from such practices.” See Tex. Lab. Code Ann. § 21.2585. The jury answered in the affirmative, and awarded $75,000. Ancira GMC’s sole complaint regarding punitive damages is that there is legally insufficient evidence of malice or reckless indifference to support the jury’s punitive damages liability finding.

When reviewing the legal sufficiency of evidence supporting a jury finding, our starting point is generally the charge and instructions actually submitted to the jury. See Garza, 164 S.W.3d at 615; Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000); Patlyek, 149 S.W.3d at 785 n. 1. Here, the jury charge defined “malice” as:

(a) a specific intent by Employer to cause substantial injury to Frances Fischer; or
(b) an act or omission:
(I) which, when viewed objectively from the standpoint of Employer at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which Employer had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety or welfare of others.

The jury was also instructed that “in order to find that Employer acted with malice you must find that an employee was employed in a managerial capacity and was acting in the scope of employment, or the employer or a manager of the employer’s ratified or approved the act.”

The definition of “malice” submitted to the jury tracks the version of chapter 41 of the civil practice and remedies code in effect at the time of trial. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001 (West 1997). The first prong is specific intent; the second is gross negligence. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). Ancira GMC concedes that while a stricter definition of malice applies in a retaliation suit, the chapter 41 definition nonetheless governs our legal sufficiency review because Ancira GMC did not object to its submission. See Garza, 164 S.W.3d at 615; Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.2000). We accordingly consider whether there is legally sufficient evidence of malice as that term is defined in the jury charge. As previously discussed, we conduct our legal sufficiency review through the “clear and convincing evidence” prism. See Tex. Civ. Prac. & Rem. Code Ann. §§ 41.001-.003 (West 1997 & Supp.2004-05); see also Garza, 164 S.W.3d at 615.

Under our standard of review and the jury charge, the evidence is legally sufficient to support punitive damages liability if, when considering the entire record, evidence exists that is capable of producing a firm belief or conviction that Ancira GMC — specifically, a managerial employee who committed, ratified or approved the act while acting in the scope of employment — retaliated against Fischer for her protected activities with specific intent, reckless indifference, or gross negligence regarding Fischer’s legal right to be free from such practices. See Tex. Civ. Prac. & Rem.Code Ann. §§ 41.001, .003 (West 1997); see City of Keller, 168 S.W.3d at 816-18 . Tackett testified that she and de la Garza, the general manager, made the ultimate decision to fire Fischer. There is no dispute on appeal regarding whether Tackett, the human resources director, or de la Garza, the general manager, were employed in a managerial capacity.

The state-of-mind requirements necessary to support punitive damages refer to Ancira GMC’s awareness that it is or may be violating the law, not merely its awareness that it is engaging in acts constituting retaliation or discrimination. See Kolstad v. American Dental Ass’n, 527 U.S. 526, 535-36, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (emphasis added) (employer may believe discrimination is lawful if discrimination theory is novel or poorly recognized, or employer believes discrimination satisfies exception to liability). Accordingly, even intentional retaliation or discrimination may not support punitive damages if the actor lacks the required awareness that such conduct is illegal. Id. Therefore, under the jury charge in this case, the punitive damages award can be supported by clear and convincing evidence that Ancira GMC managerial employees were grossly negligent with respect to whether their retaliation against Fischer violated that law. This evidence may be either direct or circumstantial. See Moriel, 879 S.W.2d at 23.

The record demonstrates that Tackett was aware of at least the general requirements of anti-discrimination law. She testified that Ancira’s “zero tolerance policy [against sexual harassment] actually takes the legal protections several steps further.” She explained that “the legal guidelines under, for instance, title seven that specifies restrictions against discrimination or sexual harassment and that kind of thing, it’s very specific to behaviors, whereas our zero tolerance policy actually extends it broader than that and offers a greater degree of protection for our employees.” Moreover, page six of the “Team Ancira Team Manual” explicitly states that “[n]o employee is to be subjected to unsolicited and unwelcome sexual overtures or conduct, either verbal or physical, by any person, nor subject to retaliation for reporting such conduct.” (Emphasis added). Although the jury found that Fischer was not in fact subjected to sexual harassment, it is undisputed that Fischer filed sexual harassment complaints with the company and the TCHR, and that Tackett conducted an investigation into Fischer’s complaints. Less than two months after Fischer filed her internal complaint, and only eight days after Tack-ett responded in writing to Fischer’s internal complaints, Fischer was fired for alleged unperformed work.

Ancira GMC does not challenge the jury’s finding, made the predicate for the punitive damages liability finding, that it retaliated against Fischer. We recognize that evidence of retaliation alone is generally insufficient to support an award of punitive damages; otherwise, punitive damages would be awarded automatically in every retaliation case. See Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex.1996). However, in this case, there is evidence that Tackett, the human resources director for entities employing over 700 people, was knowledgeable regarding company anti-discrimination policies and their relationship with underlying law, and that the Team Ancira policy manual expressly prohibited retaliation against employees. We conclude that this evidence would enable a reasonable juror to infer a firm belief and conviction that Tackett actually was aware of the risk that retaliating against Fischer would violate Fischer’s legal rights, yet proceeded with conscious indifference to that risk, and that retaliating objectively involved an extreme degree of risk of violating Fischer’s legal rights. We overrule Ancira GMC’s second issue.

CONCLUSION

We hold that there is legally and factually sufficient evidence to support the district court’s deemed finding that Ancira GMC was an “employer” subject to the TCHRA, but find legally insufficient evidence to support such a finding regarding Ancira Enterprises. We also find legally sufficient evidence to support the punitive damages award against Ancira GMC under the jury charge submitted in this case. We accordingly affirm the judgment of the district court against Ancira GMC, and we reverse and render a take-nothing judgment in favor of Ancira Enterprises.

      . Appellants argued that the policy regarding breaks was applied uniformly to all workers in certain payroll categories. However, there was conflicting evidence on this issue and whether it was enacted in order to punish Fischer and another employee.

      . A source of contention was Fischer’s practice of writing letters to co-workers informing them of ways in which they had offended Fischer.

      . At trial, there was evidence that other employees who were found to have abused the toll-free number more than Fischer or Trevino received less severe discipline, or none at all.

      . A performance review dated March 30, 1999 reflected that Fischer’s "performance of duties” and "knowledge of duties” was "excellent”; that she had "good” punctuality, and a "very good” attitude. The review noted that Fischer was on the safety committee and "works well with other employees and strives to be a 'Team Player.’ ” It recommended that she continue with her current position, but "be available for consideration to a position of more responsibility and advancement within the company.”

      . Appellee argues that Ancira Enterprises and Ancira GMC waived the issue because they did not file a verified plea asserting they lacked legal capacity to be sued, or affirmative defenses that they were not subject to the statute or had immunity from liability. We disagree. As plaintiff, Fischer had the burden of proving the mandatory statutory requirements necessary to recover on her retaliation claim. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 182-83 (Tex.2004).

      . Appellants do not challenge this finding on appeal. At trial, Appellants admitted that Fischer had an employment relationship with Ancira GMC but disputed the existence of such a relationship with Ancira Enterprises.

      . Both at trial and on appeal, Ancira Enterprises and Ancira GMC have characterized this issue as one of "subject matter jurisdiction.” Under federal employment discrimination law, the failure to meet the statutory definition of "employer” deprives federal courts of subject-matter jurisdiction. See Greenlees v. Eidenmuller Enters., Inc., 32 F.3d 197, 198 (5th Cir.1994). However, federal courts are courts of limited jurisdiction, whereas Texas’ state courts are courts of general jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). Especially in recent years, the trend among Texas courts has been to view state statutory prerequisites for claims as mandatory but not jurisdictional. See, e.g., Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 182-83 (Tex.2004); Dubai, 12 S.W.3d at 76-77. We conclude, in light of these authorities, the issue of whether Ancira GMC or Ancira Enterprises had the requisite number of employees for the required time period would not implicate the jurisdiction of the district court. See Tex. Lab.Code Ann. § 21.002.
      While they have mislabeled their argument, the substance of Appellants’ complaint is that the evidence is legally insufficient that either Ancira GMC or Ancira Enterprises met the statutory employee number threshold for the time period required to impose TCHRA liability. Appellants preserved this complaint by raising it in their directed verdict motion, objections to the submission of a TCHRA retaliation liability issue, and a motion for j.n.o.v. See Tex.R.App. P. 33.1; Tex.R. Civ. P. 279; Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 543 (Tex. 1998).

      . Although Fischer testified that she was employed by Ancira Enterprises, Ancira GMC argued that it was her employer, and the jury resolved the disputed evidence by finding that both entities were Fischer's employer. Appellants do not challenge this finding on appeal.

      . As part of Tackett’s investigation of Fischer's complaint, Horn described a situation with David Yargo. Yargo was employed at Ancira GMC from 1997 through January 1998.

      . Although Trevino originally testified that he was employed by Ancira Enterprises, after reviewing his complaint to the TCHR, and his application for employment, he decided that he was employed by Ancira GMC. Both documents list Ancira GMC as his employer.

      . However, a section of her termination paperwork, identifying “dealership," states '‘An-cira Motorhomes.”

      . Nor does it dispute the jury’s award of back pay, compensatory damages, or attorney’s fees predicated on the liability finding against it. See Tex. Lab.Code Ann. §§ 21.2585, .259 (West 1996).

      . No definition of “reckless indifference” was submitted to the jury.

      . Appellants objected to this instruction at the charge conference, and requested an instruction requiring the names of specific individuals, but the issue was not raised on appeal.

      . In a post-submission letter, appellants cite Hoffmann-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.2004) for the proposition that a punitive damages award cannot be based on the same facts as the finding of discrimination or retaliation. In Hoffmann, the Supreme Court considered whether a sexual harassment claim and cause of action for intentional infliction of emotional distress could be subject to damages based on the same conduct. 144 S.W.3d at 441. The court noted that "[w]here the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available.” Id. at 447.

        Hoffmann is distinguishable. In this case, punitive damages are not a separate cause of action distinct from Fischer’s retaliation claim, but are additional statutory damages for the same underlying conduct that are awarded based on jury findings regarding An-cira GMC’s culpable state of mind. See Tex. Lab.Code Ann. § 21.2585; Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 406 (5th Cir.2000).


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    Jimmy Lance RANDON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00411-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 16, 2005.
    Rehearing Overruled July 19, 2005.

      Lucinda Kay Marshall, Houston, TX, for Appellant.
    William J. Delmore, III, Chief Prosecutor, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

A jury found appellant, Jimmy Lance Randon, guilty of the felony offense of aggravated assault, and the trial court assessed his punishment at 15 years’ confinement. In his sole issue, appellant contends that his trial counsel was ineffective. We affirm.

Background

The female complainant and appellant, her next door neighbor, had a history of problems. One morning, the complainant arrived home around nine or ten and was greeted by a barrage of cursing from appellant. Shortly after going into her house, the complainant noticed that appellant’s clothes were scattered throughout her backyard. The complainant went to appellant’s house to ask him to remove his clothes from her backyard. Appellant answered the door holding a knife. His response to the complainant’s request was, “F* * * you, b* * * *. I’ll kill you.”

Noticing that Houston Police Department (HPD) officers were investigating an unrelated incident down the street, the complainant went to the officers and reported the encounter. The complainant told the officers that appellant had “broken into her residence, placed some items inside her garage, and threatened her with a knife.” The officers went to appellant’s house and attempted to speak with him. Appellant did not respond to the officers’ repeated knocks. Based on the facts available to them, the officers concluded that appellant was armed and had likely barricaded himself inside his house. Following HPD protocol, the officers requested a SWAT team. The SWAT team tried unsuccessfully to communicate with appellant via loudspeakers. Appellant responded by turning up the volume on his stereo. HPD then cut the power supply to appellant’s house, and appellant voluntarily left the house. After appellant was arrested, his father allowed an officer to go into the house. The officer found a knife in a bedroom. The complainant later identified the knife as the weapon appellant had used when he answered the door.

In pre-trial proceedings, the trial court appointed an attorney to represent appellant. The trial court granted defense motions, which were unopposed by the State, ordering Harris County Forensic Psychiatric Services to examine appellant to determine his competency and his sanity at the time of the offense. In February 2003, Dr. R. Laval found that appellant “manifested active symptoms of a severe mental illness” and, in his opinion, was incompetent to stand trial. Dr. Laval stated that appellant’s thinking was disorganized and his speech was loose and tangential. The doctor opined that appellant’s cognitive functioning was compromised. However, due to appellant’s “deteriorated mental condition” during the examination, Dr. Laval was unable to offer an opinion regarding appellant’s mental state at or near the time of the offense and, therefore, recommended that appellant be re-examined after his mental state improved.

The trial court conducted a competency hearing in March 2003. At the hearing, a jury found appellant mentally incompetent to stand trial. The jury also found that there was a substantial probability that appellant would attain competency within the foreseeable future. The trial court adopted these findings and ordered appellant committed to North Texas State Hospital (NTSH), Vernon Campus, for up to 18 months because appellant’s “conduct did involve an act, attempt or threat of serious bodily injury to another person.”

In July 2003, Dr. R. Brimmer, a psychiatrist at NTSH, sent the trial court a written request to civilly commit appellant pursuant to the relevant portions of article 46.02 of the Code of Criminal Procedure. See Act of May 26, 1999, 76th Leg., R.S., ch. 561, § 7, 1999 Tex. Gen. Laws 3098, 3099 (repealed 2003). In his evaluation, Dr. Brimmer described appellant’s behavior as “considerably influenced by hallucinations and delusions.” Dr. Brimmer noted that appellant had been a patient at Rusk State Hospital in the past and that several mental health evaluations were conducted at that time. Dr. Brimmer also noted that appellant’s records included a copy of a Letter of Guardianship from a Harris County court dated May 17, 2002. Dr. Brimmer stated that he believed that there was no substantial probability that appellant would become competent in the foreseeable future because appellant had a “chronic disorder [and was] responding slowly to appropriate treatment.”

The trial court appointed new counsel in July 2003. On the same day he was appointed, appellant’s counsel filed two more requests for psychiatric examinations to determine appellant’s sanity and competency. Neither of these requests was opposed by the State. The trial court granted both motions.

The trial court appointed Dr. N. Decker to provide an independent mental examination of appellant. Dr. Decker reviewed appellant’s record and conducted an interview with him. The interview was brief because appellant became angry and terminated the interaction after about a half an hour. Nevertheless, Dr. Decker reported in his evaluation that, “because of the pervasive persecutory beliefs [appellant] espoused, he clearly demonstrated a paranoid delusional system, involving the police and the medical/psychiatric establishment.” The doctor noted that appellant was “grossly inappropriate about the role of his attorney and, clearly, had no ability to work with him in court, for his defense.” Based on appellant’s records and his own observations, Dr. Decker stated he would diagnose appellant either as a paranoid schizophrenic or as suffering from schizoaffective disorder. In Dr. Decker’s opinion, appellant was “clearly NOT competent to stand trial and to, knowingly, act appropriately in his defense.” (Emphasis in original.) Dr. Decker agreed with Dr. Brimmer’s recommendation to extend appellant’s commitment for further treatment.

Dr. A. Abdulla, examining appellant on behalf of Harris County, filed a Physician’s Certifícate of Medical Examination. In his evaluation, Dr. Abdulla opined that appellant was likely to cause serious harm to himself and others and that, if not treated, appellant would continue to experience deterioration of his ability to function independently. During Dr. Abdulla’s interview with appellant, appellant stated that he did not need any medication.

The trial court conducted a second civil commitment hearing in September 2003, in which Dr. Decker’s and Dr. Abdulla’s evaluations and a Letter of Guardianship from a Harris County Probate Court were admitted into evidence. The jury found appellant incompetent to stand trial. The jury also found that there was no substantial probability that appellant would attain competency in the foreseeable future. The trial court ordered appellant transferred back to NTSH, Vernon Campus for up to 12 months.

In January 2004, Dr. M. Ferguson, a Unit Psychiatrist at NTSH, Vernon Campus, notified the trial court that, in her opinion, appellant was competent to stand trial. Dr. Ferguson included a written evaluation conducted by Dr. S. Shipley, a psychologist. Before writing her evaluation, Dr. Shipley interviewed appellant for about one hour and reviewed appellant’s medical records and ward records. Dr. Shipley noted that appellant had repeatedly refused to take his medication, so the hospital gave him intramuscular injections. She further noted that after appellant’s medications were changed, appellant made significant improvements. Dr. Shipley stated that, “[although medication compliant, [appellant] continues to voice some complaints about his need for medication and has required repeated reassurance of the necessity of the medication for the improvement of his psychiatric symptoms.” Dr. Shipley noted that appellant is at a “very high risk to suspend taking his medication while in jail.” Dr. Shipley opined that if appellant were to stop taking his medications completely his competency would be at issue. Dr. Shipley stated that, “[i]t is recommended that [appellant] return to court and that his trial be initiated soon in order to minimize the adverse impact that time in jail may have on his overall mental state and his treatment compliance.” Dr. Shipley concluded by offering her opinion that appellant was competent to stand trial.

The trial court appointed the attorney about whom appellant now complains as appellant’s trial counsel. During pre-trial proceedings, the following exchange took place between trial counsel and the court:

THE COURT: All right. Before we take up this matter, prior to jury selection, it is — according to the file you submitted to a competency and sanity evaluation. Is that correct, Mr. Godinich? DEFENSE COUNSEL: Yes, it is, Your Honor.
THE COURT: And he was found to be sane and competent?
DEFENSE COUNSEL: That is my understanding, Your Honor.
THE COURT: All right. I will make that finding at this time.

Appellant and the State agreed to a motion in limine that required counsel to approach the bench before going into any mental health issues, any issues of competency, or any issue of sanity regarding appellant. Trial counsel also informed the court that appellant wished to testify. After the trial court swore appellant in, trial counsel asked appellant if he understood that testifying would subject him to cross-examination by the State and would allow his criminal history to be presented to the jury. Appellant said he understood.

During trial, appellant testified that the complainant was lying. Appellant stated that when the complainant came to his house, he was holding a knife because he was eating lunch. Appellant testified that he had fallen asleep after lunch and did not hear the police officers knocking on his door. In closing arguments, trial counsel highlighted the fact that none of the police officers saw the assault, and the State was not pursuing a burglary charge against appellant. Trial counsel implied that the complainant had fabricated the story and that appellant had subjected himself to cross-examination on his prior convictions in the hope of gaining credibility with the jury.

The jury found appellant guilty of aggravated assault. The trial court assessed punishment at 15 years’ confinement. Appellant did not file a motion for new trial. This appeal followed.

Discussion

Appellant makes three arguments to challenge the effectiveness of his trial counsel: (1) counsel failed to research pri- or proceedings in appellant’s case; (2) he failed to investigate an insanity defense; and (3) he ignored appellant’s rights to a jury hearing and to an independent examination for competency. Appellant contends his counsel’s ineffectiveness prejudiced his defense.

In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 774 (Tex.Crim.App.1999). First, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel’s performance deviated from prevailing professional norms. Id. 466 U.S. at 688, 104 S.Ct. at 2065; McFarland v. State, 845 S.W.2d 824, 842-43 (Tex.Crim.App.1992). Second, the defendant must show prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This requires the defendant to show that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 466 U.S. at 694, 104 S.Ct. at 2068. The failure to satisfy one prong of the Strickland test negates a court’s need to consider the other. See id. 466 U.S. at 697,104 S.Ct. at 2069. An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

We must look to the “totality of the representation and the particular circumstances of each case” in evaluating the effectiveness of counsel. Id. In so doing, we recognize the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Thompson, 9 S.W.3d at 813. As the Supreme Court observed:

It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To defeat the presumption of reasonable professional assistance, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996).

We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions taken were part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App.1999). The appellant must overcome the presumption that his trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Thompson, 9 S.W.3d at 814.

In his first argument, appellant contends that his trial counsel did not research the prior proceedings in the case and, therefore, did not discover that a determination of appellant’s sanity was never completed. Appellant was twice deemed incompetent in prior proceedings. He contends here on appeal, however, that no mental health professional has determined whether he was sane at the time of the offense, despite two orders to do so. Appellant asserts that “it takes no great leap of imagination to deduce that the delusions appellant exhibited during his competency examinations may well have influenced his actions on the date of the offense.” Thus, in his second argument, appellant contends that his trial counsel was ineffective for failing to investigate and present an insanity defense.

In his third argument, appellant contends that he was entitled to a hearing on the issue of his incompetence pursuant to former article 46.02 section 8(e) of the Texas Code of Criminal Procedure. See Act of May 26, 1999, 76th Leg., R.S., ch. 561, § 7, 1999 Tex. Gen. Laws 3098, 3099 (repealed 2003). Appellant also contends that he was entitled to the appointment of experts or other disinterested witnesses under section 3 of article 46.02. See id. Appellant’s brief further argues that “there is no indication in the record that [he] waived his right to a jury hearing, or that anyone even considered that entitlement.” Appellant contends that his trial counsel was ineffective for depriving him of these rights because counsel informed the trial court that he understood appellant was competent and sane.

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066). Counsel’s strategic choices made after a less than complete investigation of the law and facts relevant to plausible options are considered reasonable, on a claim of ineffective assistance, precisely to the extent that reasonable professional judgment supports limitations on the investigation. Wiggins, 539 U.S. at 521-22, 123 S.Ct. at 2535 (quoting Strickland, 466 U.S. at 690-91,104 S.Ct. .at 2066).

Here, appellant did not file a motion for new trial. The Texas Court of Criminal Appeals has held, however, that a motion for new trial claiming ineffective assistance of counsel is not always required to preserve the claim. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.Crim. App.2000). A timely filed appeal is a proper procedure for seeking relief regarding ineffective assistance of counsel. Id. at 810. A hearing on a motion for new trial is required only when the motion raises matters extrinsic to the record. Rivera v. State, 123 S.W.3d 21, 29 (Tex.App.-Houston [1st Dist.] 2003, pet. ref d). When an appellant’s allegations of ineffective assistance of counsel are firmly founded and affirmatively demonstrated in the record, no evidentiary hearing is required. Id.; see McFarland, 928 S.W.2d at 500. Therefore, we address whether the record affirmatively demonstrates ineffective assistance of counsel. See Rivera, 123 S.W.3d at 29.

The record in this case is nearly bare as to counsel’s trial strategy and as to the depth of counsel’s investigation. The record does not contain any motions from trial counsel requesting a third competency evaluation. The record lacks a report from a physician evaluating appellant’s sanity at the time of the offense. Indeed, the only opinion made in response to the two court orders to determine appellant’s sanity was Dr. Laval’s statement that he could not offer an opinion on appellant’s sanity because of appellant’s “deteriorated mental condition.” The record is silent as to any further inquiry into appellant’s competency after Dr. Ferguson’s report. Trial counsel must have been at least somewhat aware of appellant’s mental health history and must have done at least some research because counsel called an expert from the Texas Department of Mental Health and Mental Retardation (MHMR) to testify during the punishment phase of the trial.

Given the record before us, we are unable to evaluate the strategy of appellant’s trial counsel to determine whether it was reasonable or not. Therefore, we cannot determine on the basis of this record whether appellant’s trial counsel provided effective assistance of counsel. The Court of Criminal Appeals has observed that the record on direct appeal in ineffective assistance of counsel cases will rarely provide the reviewing court an opportunity to conduct a fair evaluation of the merits. Thompson, 9 S.W.3d at 813. “In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at 813-14. As a result, the Court of Criminal Appeals has held that, “when direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal.” Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998). This is a ease in which direct appeal has not provided an adequate record to determine counsel’s effectiveness.

Without a record of what additional mental health information counsel based his trial strategy on, we cannot find him ineffective. To do so would call for speculation. See Young, 991 S.W.2d at 837-38. When the record is silent regarding counsel’s reasons for his conduct, we will defer to counsel’s decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App.2002).

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . A person commits aggravated assault if the person commits assault as defined in 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex Pen. Code Ann. § 22.02 (Vernon 2003). Section 22.01 states that a person commits an offense if the person (1) intentionally, knowingly, or recklessly causes bodily injury to another in-eluding the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Id. § 22.01 (Vernon 2003).

      . Appellant's records from Rusk State Hospital are not a part of the appellate record.

      . According to the Letter of Guardianship, appellant was deemed incapacitated on December 21, 1993. The letter appointed Harris County Guardianship Program as appellant’s guardian.

      . Article 46.02 section 8(e) states that:
      The court in which the criminal charges are pending may hold a hearing to determine the competency of the defendant to stand trial. The hearing shall be before a jury unless waived by agreement of the parties .... The court may appoint disinterested experts to examine the defendant in accordance with the provisions of section 3 of the article. If the defendant is found to be competent to stand trial, the proceedings on the criminal charges may continue.
      Act of May 26, 1999, 76th Leg., R.S., ch. 561, § 7, 1999 Tex. Gen. Laws 3098, 3099 (repealed 2003) (emphasis added).


text:
    Alan WINTERS and Janet Winters, Appellants, v. Lance PARKER, a/k/a Mabco, Inc., a/k/a Currentsonline.com, Inc., a/k/a Mind-print, Inc., a Texas Corporation and Patrick Flinn, A/K/A Hasty Ticen, Inc., A/K/A Currentsonline.com, Inc., A/K/A Mindprint, Inc., a Texas Corporation, Appellees.
    No. 01-03-01334-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 16, 2005.

      Harold Eisenman, Houston, TX, for Appellants.
    Leonard H. Simon, The Simon Law Firm, Katherine Taylor Mize, Houston, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellants, Alan and Janet Winters, brought suit against appellees, Lance Parker (a/k/a Mabco, Inc., a/k/a Currentson-line.com, Inc., a/k/a Mindprint, Inc., a Texas Corporation) and Patrick Flinn (a/k/a Hasty Ticen, Inc., a/k/a Currentson-line.com, Inc., a/k/a Mindprint, Inc., a Texas Corporation). In three points of error, appellants contend that the trial court erred in granting appellees’ no-evidenee motions for summary judgment and Flinn’s special exceptions.

We affirm.

Background

Appellants invested in ProEducation International Inc. (ProEducation) in return for 50% ownership in a studio to be created for long distance learning courses and the provision that the appellants’ health insurance would be paid for by ProEducation. Evidently, appellees sought additional funds from appellants, and appellants refused to pay. On July 1, 1999, Flinn sent a letter informing appellants that they must pay their own insurance premiums or the health insurance would be cancelled retroactive to June 1, 1999. Alan Winters (Winters) contacted HMO Blue to inquire about his coverage. HMO Blue told Winters that his coverage was in effect until September 1999. Winters did not pay the premiums.

On July 28, 1999, HMO Blue notified Winters that ProEducation had cancelled the health insurance retroactive to May 31, 1999. Winters contends that the next day he suffered a ruptured aneurysm which, in turn, caused a hemorrhagic stroke.

In May 2001, appellants filed this suit against Parker and Flinn, officers of ProE-ducation. Appellants claimed that when Winters learned that the health insurance was cancelled he became stressed, which elevated his blood pressure and was a cause of the ruptured aneurysm.

Parker and Flinn filed special exceptions. They argued that appellants had not pleaded the elements for either fraudulent transfer or conspiracy and that they had not stated a cause of action for personal injury. Parker and Flinn asked that appellants be ordered to replead, and the trial court so ordered. Appellants filed their third amended petition on May 22, 2008.

In August 2003, Parker and Flinn filed separate no-evidence motions for summary judgment. Both argued that appellants had not pleaded a cause of action, but that, even if appellants had, there was no evidence of any of the elements of any cause of action pled. Flinn also filed special exceptions to appellants’ third amended petition, arguing that appellants’ allegations still did not allege a cause of action.

Appellants responded to the summary judgment motions by pointing to Winters’s affidavit, which stated:

In my case I most probably had a silent aneurysm as a congenital anomaly and the acute stress from the discovery that Flinn and Parker maliciously canceled my family’s health insurance retroactively, sharply elevated my blood pressure and was a cause for the rupture of the aneurysm the very next morning. During my years as a primary care provider I saw many patients with stress-related diseases. Among them were patients with elevated blood pressure due to stress from external conditions. I screened these patients with elevated blood pressure for a variety of medical conditions, including vascular anomalies.

Appellants responded to Flinn’s special exceptions by arguing they had pled the tort of “willful intent to injure.” Appellants neither identified the elements of “willful intent to injure” nor cited to case law or a statute that recognizes “willful intent to injure” as a cause of action.

The trial court granted Flinn’s special exceptions against appellants and dismissed the case against Flinn with prejudice. The trial court also granted Parker’s and Flinn’s no-evidence summary judgments.

Appellants moved for a new trial, which was denied. This appeal followed.

Discussion

In their first point of error, appellants contend that they pleaded a cause of action. Appellants argue that they pleaded every element of intentional infliction of emotional distress in their third amended petition.

Summary judgment based on a pleading deficiency is proper if a party has had an opportunity by special exception to amend and the party fails to do so, or files a further defective pleading. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). In such a case, we subject the pleadings to a de novo review. Id.; see Higbie Roth Const. Co. v. Houston Shell & Concrete, 1 S.W.3d 808, 811-12 (Tex.App.Houston [1st Dist.] 1999, pet. denied).

Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exception. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983) (quoting Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex.1974)). The trial court cannot dismiss the case at the same time it sustains special exceptions. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 (Tex.1998). Once special exceptions are sustained, the trial court must give the party an opportunity to amend before dismissing the case. Id. at 658. If the party does not amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted. Id. Moreover, if the remainder of the pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Jackson v. City of Galveston, 837 S.W.2d 868, 869 (Tex. App.-Houston [14th Dist.] 1992, writ denied); Cole v. Hall, 864 S.W.2d 563, 566 (Tex.App.-Dallas 1993, writ dism’d w.o.j.).

The trial court granted Parker’s and Flinn’s special exceptions and allowed appellants to replead. Appellants repleaded by filing their third amended petition. Parker and Flinn filed no-evidence motions for summary judgment arguing that appellants had not pleaded a cause of action. Flinn also filed his second special exceptions.

Appellants contend that they pleaded intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress, and (4) the emotional distress suffered by the plaintiff was severe. City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000). Appellants have failed to plead any extreme or outrageous conduct by appellees. Liability for outrageous conduct may be found only where “the conduct has been so outrageous in character, and so extréme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993).

Here, appellants have cited no authority and offered no evidence that the notice of cancellation of their health insurance policy was extreme, outrageous, or outside appellees’ legal rights. The Texas Supreme Court has held that a party must have some latitude to exercise his rights, even if some emotional distress will result. See O’Bryant, 18 S.W.3d at 217; Gaspard v. Beadle, 36 S.W.3d 229, 237-38 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) (holding that sending a bill and ending a relationship does not constitute extreme and outrageous behavior).

After carefully reviewing appellants’ third amended petition, we conclude that the trial court did not err by granting Parker’s and Flinn’s summary judgments. Appellants did not plead a cause of action. Appellants cite no authority and offer no evidence that the cancellation of their health insurance constituted extreme and outrageous behavior.

We overrule appellants’ first point of error.

Because the trial court properly dismissed the suit against Parker and Flinn after first allowing appellants the opportunity to replead, we need not reach appellants’ remaining two points of error.

Conclusion

We affirm the judgment of the trial court.

      . Appellants did not file a second amended petition with the trial court. Instead, appellants filed a third amended petition.


author: SAM NUCHIA, Justice.

text:
    Ebodio RUEDA, Appellant, v. Anne and Clifford PASCHAL, Individually and d/b/a Country Hearts Ranch, Appellees.
    No. 01-04-00744-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 23, 2005.
    Rehearing Overruled Dec. 19, 2005.

      Ronald G. Bankston, Bankston Riley, LLP, Houston, TX, Scott Rothenberg, Law Office of Scott Rothenberg, Bellaire, TX, for appellant.
    David E. Lueders, Lueders & Boanerg-es, Houston, TX, for appellees.
    Panel Consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

SAM NUCHIA, Justice.

This is an appeal of a summary judgment rendered in favor of appellees, Ann and Clifford Paschal. In five issues, appellant, Ebodio Rueda, contends that the trial court erred in rendering a no-evidence summary judgment for appellees because the Paschals (1) had control over the work performed and had actual knowledge of the “danger or condition” resulting in appellant’s injury, (2) did not invoke the entirety of section 95.003 in their no-evidence motion for summary judgment, (3) did not prove each element of their affirmative defense under section 95.003, and (4) were not entitled to judgment on appellant’s claim of gross negligence. We affirm.

I. Facts

In June 2002, the Paschals, who owned a ranch near Kenney, Texas, hired contractors to assist in improvements and construction on the ranch. One of the contractors, Bumpass Builders, Inc., hired a subcontractor, Jose M. Ramirez. Ramirez then hired several workers, including appellant.

At the Paschals’ ranch, appellant was instructed by Ramirez to get some tools from the basement, where the tools were stored and some work was being done. To climb down into the basement, appellant used a wooden ladder furnished by the Paschals. Appellant climbed up the ladder after retrieving some tools, but as he did so, the ladder slipped, and appellant fell, landing on the ladder and the concrete floor and sustaining severe injuries.

Appellant brought suit against several parties, including the Paschals. In January 2004, the Paschals filed a no-evidence motion for summary judgment, asserting that appellant had not produced any evidence of the elements required to establish the liability of property owners under section 95.003 of the Civil Practice and Remedies Code. The Paschals specifically asserted that there was no evidence that (1) they exercised some control over appellant’s work or (2) they had knowledge of the danger that resulted in appellant’s injury and, therefore, they could not be held liable for appellant’s injury.

The trial court granted the no-evidence motion for summary judgment and, upon a motion by the Paschals, granted a severance of appellant’s claims against the Pas-chals.

II. Discussion

Section 95.003 of the Texas Civil Practice and Remedies Code provides as follows:

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Pkac. & Rem.Code Ann. § 95.003 (Vernon 2005).

A. Standard of Review

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer and Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197. If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

B. Actual Knowledge of the Danger or Condition

In the second part of his first issue on appeal, appellant contends that the trial court erred in granting the motion for summary judgment because there was “a genuine issue of material fact as to whether the Paschals ... had actual knowledge of the danger that resulted in appellant’s injuries.” Appellant does not direct us to any evidence establishing that the Pas-chals’ knew about any danger. Instead, appellant contends that the Paschals’ knowledge of the existence of the ladder and its use by the workers to access the basement is enough to raise “a genuine issue of material fact as to whether or not the Paschals had actual knowledge of the condition (the ladder in question) that resulted in Mr. Rueda’s serious personal injuries.”

We first note that a ladder is not a condition; a ladder may be in a condition, i.e., new, old, sturdy, unsteady. A condition may or may not be dangerous. Under section 95.003, a property owner has a duty to warn only if he knows of a dangerous condition. See Tex. Civ. PRác. & Rem. Code § 95.003. Therefore, knowledge of the existence of the ladder is not knowledge of a dangerous condition so as to impose section 95.003 liability on a property owner.

In jFisher v. Lee & Chang Partnership, we held that, although a contractor was injured by a defective ladder when repairing an air conditioner, the landowner was not hable under section 95.003 because he did not know of the defect. 16 S.W.3d 198, 202 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A property owner has the duty to warn only of known dangers. Id.

We overrule that portion of appellant’s first issue as it relates to the Paschals’ actual knowledge of the danger that resulted in appellant’s injuries.

C. Invoking the Entirety of Section 95.003

In his second issue, appellant contends that the trial court erred in granting the motion for summary judgment on the ground that there was no evidence that the Paschals had actual knowledge of the danger that resulted in appellant’s injuries because the Paschals failed to move for summary judgment on the additional ground that there was no evidence that the Paschals had actual knowledge of the condition that resulted in appellant’s injuries. Appellant argues that section 95.003(2) contains two prongs — danger and condition — -and that a property owner’s knowledge of either will subject him to liability under section 95.003. Appellant further argues that, because the Paschals only asserted that there was no evidence that they had knowledge of the danger that resulted in appellant’s injuries, they left unchallenged whether they had knowledge of the condition that resulted in appellant’s injuries. Therefore, according to appellant, the trial court, in granting the Paschals’ motion, rendered judgment on a ground not presented in the motion.

Appellant contends that he could prevail at trial by proving that the Paschals had either actual knowledge of the danger or actual knowledge of the condition that resulted in his injury. Appellant asserts that the statute’s disjunctive language, “danger or condition,” supports his contention. We disagree.

The only cases discussing the “knowledge” prong of section 95.003 use the terms “danger,” “danger or condition,” and “dangerous condition” interchangeably. See Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 880 (Tex.App.-El Paso 2005, pet. filed) (finding no evidence to support “knowledge of a danger or condition” and holding that appellants “had no actual knowledge of ... dangerous condition”); Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699, 705, 707, 709, 710 (Tex.App.Houston [14th Dist.] 2004, pet. filed) (referring to knowledge of “dangerous condition,” “knowledge of the danger,” being “aware of the danger,” and second prong of statute as “knowledge of the danger”); Fisher v. Lee, 16 S.W.3d 198, 202-03 (Tex. App.-Houston [1st Dist.] 2000, pet. denied) (referring to knowledge of “dangerous condition” and knowledge that ladder was “dangerous”). We find no case referring only to knowledge of a condition without specifying that it is a dangerous condition. It would be absurd to require a property owner to warn of a condition without some knowledge that the condition is dangerous. Reading the statute in context, we view the terms “danger” and “condition” to be synonymous. Accordingly, we hold that the Paschals were not required to move for summary judgment on two separate bases: that they had no knowledge of a danger and that they had no knowledge of a condition that resulted in appellant’s injury.

We overrule appellant’s second issue.

D. Burden of Proof

In his third issue on appeal, appellant contends that section 95.003 is an affirmative defense, thereby requiring the Paschals to establish all the elements of section 95.003. Although section 95.003 has been referred to in some opinions as a defense and as an affirmative defense, it is clear that a defendant need only establish that chapter 95 applies to him. Under the clear language of the statute, once a defendant has shown the applicability of chapter 95, a plaintiff has the burden to establish both prongs of section 95.003: (1) that the property owner exercised or retained some control over the manner in which the work was performed and (2) that the property owner had actual knowledge of the danger and did not adequately warn of that danger. Tex. Crv. Peac. & Rem.Code § 95.003; Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (Tex.App.-Houston [1st Dist] 2003, no pet.). Those courts that have referred to the burden of proof required in establishing control and knowledge are consistent with this reading of the statute and have placed that burden on the plaintiff. See Dyall, 152 S.W.3d at 699 (reasoning that burden rests on plaintiff to show both control and knowledge of danger); Kelly v. LIN Television, 27 S.W.3d 564, 567 (Tex.App.-Eastland 2000, pet. denied) (stating that plaintiff must prove that defendant exercised some control and had actual knowledge of danger); Fisher, 16 S.W.3d at 203 (“Appellant failed to carry his burden to produce evidence of either control or knowledge.”).

We hold that, while it is the defendant’s burden to establish the applicability of chapter 95 of the Texas Civil Practice and Remedies Code, it is the plaintiffs burden to prove the two prongs of section 95.003: control and knowledge.

We overrule appellant’s third issue.

III. Conclusion

In light of our ruling on the Paschals’ knowledge in appellant’s first issue and our rulings on the second and third issues, we need not consider the first part of his first issue, which relates to whether the Paschals retained or exercised control over the work, or the fourth issue complaining of the trial court’s implied ruling on appellant’s gross negligence claim.

We affirm the judgment of the trial court.

      . Tex. Civ. Prac. & Rem.Code Ann. § 95.003 (Vernon 2005).

      . In addition, we do not consider the "Supplemental Brief of Appellant With One Additional Issue on Appeal,” filed three and one-half months after appellant's original brief and challenging the applicability of chapter 95. Appellant did not raise this challenge in the trial court, and all of appellant’s responses to the Paschals’ motion for summary judgment assumed that the chapter applied. Moreover, appellant’s reply brief states, "Rue-da acknowledges the applicability of 95.003 to this case....” Having failed to challenge the applicability of section 95.003 in the trial court, appellant has waived that issue on appeal. See Tex.R.App. P. 33.1. This would be true even if appellant had raised the issue in his original brief. Appellant’s motion for leave to file his supplemental brief is denied.


author: JANE BLAND, Justice.

text:
    Noelia BENDIGO and Colin Bendigo, Appellants, v. CITY OF HOUSTON, Burns Management Group, Inc., Central Parking System of Texas, Inc., New South Parking Texas, and Aztec Facility Services, Inc., Appellees.
    No. 01-04-00443-CV.
    Court of Appeals of Texas,' Houston (1st Dist.).
    June 23, 2005.
    Francis I. Spagnoletti, James T. Liston, Spagnoletti & Associates, Houston, TX, for Appellants.
    John B. Wallace, Giessel, Barker & Lyman, P.C., Kevin B. Finkel, Hill Kinkel & King, LLP, Houston, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

Appellants, Noelia and Colin Bendigo, challenge the traditional and no-evidence summary judgments rendered against them in their trip-and-fall premises liability lawsuit against appellees, City of Houston, Burns Management Group, Inc., Central Parking System of Texas, Inc., New South Parking Texas, and Aztec Facility Services, Inc. (collectively “Burns Management”). We conclude that the trial court did not err in granting Burns Management’s summary judgment and therefore affirm.

Facts

In July 2001, Noelia Bendigo and her friend Yolanda Feindt arrived at Bush Intercontinental Airport with the intent that Bendigo would board a flight bound for Miami, Florida. Bendigo walked through the Terminal C parking garage on her way to the flight gate. As she walked down the parking garage stairwell — holding her garment bag in one hand and the stairwell railing in the other — Bendigo slipped on a disposable cup, fell down the remaining stairs, and injured her ankle.

Bendigo sued Burns Management, contending that it owned, operated, and maintained the parking garage in which she fell and that it was negligent in maintaining the stairwell. Burns Management moved for a traditional and no-evidence summary judgment. In March 2004, the trial court granted summary judgment.

Standard of Review

The propriety of summary judgment is a question of law, and thus we review the trial court’s decision de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Burns Management filed both traditional and no-evidence summary judgment motions. See Tex.R. Civ. P. 166a(c),(i). On review, we make inferences, resolve doubts, and view the evidence in the light most favorable to the non-movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999).

The movant for a traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for summary judgment must either disprove at least one element of each of the plaintiffs causes of action, or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiffs causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

In a no-evidence summary judgment under Rule 166a(i), the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims, upon which the non-movant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict, and a no-evidenee motion asserts that no evidence exists as to at least one essential element of the non-movant’s claims on which the non-movant would have the burden of proof at trial. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). On review, we ascertain whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. Merrell Dow Pharms. Inc., 953 S.W.2d at 711.

Here, because the summary judgment order does not specify the ground' or grounds on which the trial court relied for its ruling, we will affirm the summary judgment if any theory the non-movant advances has merit. See Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex.1996).

Premises Liability

Burns Management owed Bendigo, its invitee, a duty to exercise reasonable care to protect Bendigo from dangerous conditions in the garage that were known or reasonably discoverable. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). It was not, however, an insurer of Bendigo’s safety. Id.

In order to recover from Burns Management, Bendigo must prove the following:

(1) [That the owner/operator had] actual or constructive knowledge of some condition on the premises;
(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.

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983)). A trip-and-fall plaintiff satisfies the notice element by establishing one of three things: (1) that the defendant placed a substance on the floor; (2) that the defendant actually knew that a substance was on the floor; or (3) that it is more likely than not that the dangerous condition existed long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002) (citing Gonzalez, 968 S.W.2d at 936 and Keetch, 845 S.W.2d at 265).

A. Constructive Knowledge of Cup

In its motion for no-evidence summary judgment, Burns Management contends that Bendigo failed to produce evidence of its actual or constructive knowledge of the alleged dangerous condition. Bendigo does not contend that an employee of Burns Management placed the cup on the floor. Moreover, Bendigo concedes that she raises no fact issue regarding whether Burns Management had actual knowledge that the cup was present in the stairwell at the time that she fell. Bendigo thus relies on constructive knowledge. To prevail, she must produce more than a scintilla of provative evidence that the cup had been on the floor for a sufficient period of time to allow Burns Management a reasonable opportunity to discover it. See Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 554-56 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Although Bendigo concedes that she does not know the exact time that the cup was dropped in the stairwell, she contends that she satisfies her burden by providing circumstantial evidence that Burns Management failed to check the stairwell for litter after the late afternoon rush at Terminal C. A plaintiff may rely on circumstantial evidence to prove constructive notice of a dangerous condition if the circumstantial evidence establishes that a proposition is more likely than not probable, but such evidence is insufficient if it raises two equally possible propositions. Id. (citing Gonzalez, 968 S.W.2d at 936). If circumstances are consistent with any possibility, and nothing shows that one is more probable than the other, then no fact can be inferred by a reasonable factfinder. Id. (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001)). Likewise, a reasonable jury may not infer an ultimate fact from meager circumstantial evidence that could give rise to any number of inferences, none more probable than another. Id.

Bendigo directs us to the following circumstantial evidence. First, Burns Management knew that thousands of people use the Terminal C garage on a daily basis. Second, Burns Management knew that an “exodus of customers” occurred from the parking garage between approximately 5:30 p.m. and 6:30 p.m. each day. Third, after its daily 10:00 a.m. cleaning, Burns Management did not again inspect the stairwell until approximately midnight or 1:00 a.m. Fourth, Bendigo fell in the stairwell around 8:30 p.m. Finally, when Bendigo fell, at least two other pieces of garbage — including empty food wrappers and a Coca-Cola can — littered the stairwell. Bendigo contends that this evidence raises a fact issue “that the cup could well have been on the stairs for 10-12 hours — a sufficient amount of time to allow a party to be deemed to have constructive knowledge.”

Bendigo provides no evidence that the collection of trash that she found existed in the stairwell after her fall was a usual occurrence. No evidence suggests that, even if an accumulation of trash is usual, it is likely to accumulate at a certain time of the day. No evidence exists of prior reports of slips or falls or injuries of any kind in the Terminal C stairwell. No evidence "suggests that the condition of the cup indicated that it had been in the stairwell for a long time. Mere evidence that Burns Management had not cleaned the stairs for approximately ten hours before Bendigo’s fall is riot evidence of the time that a passerby actually discarded the cup in the stairwell. Bendigo’s speculation— that the cup “could have been there” for ten to twelve hours — is not more probable than a number of other scenarios, including that the cup was dropped minutes before Bendigo fell. Bendigo’s facts “create a mere surmise or suspicion of fact,” and therefore amount to less than a scintilla of evidence of Burns Management’s constructive knowledge of a dangerous condition. See Reece, 81 S.W.3d at 816-17 (holding that evidence that store had time to discover liquid spill on floor was insufficient evidence to support finding that store had constructive notice of spill); Gonzalez, 968 S.W.2d at 937-38 (holding that dirt in macaroni salad on floor is no evidence of length of time macaroni had been on floor and thus is no basis for constructive notice); Joachimi v. City of Houston, 712 S.W.2d 861, 864-65 (TexApp.-Houston [1st Dist.] 1986, no pet.) (holding plaintiffs contention that more inspections could have discovered oil spot on parking garage floor was not enough to find that garage owner had constructive notice of it); see also Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.2003) (“an inference stacked only on other inferences is not legally sufficient evidence.”).

B. Liability Without Constructive Knowledge

Bendigo cites Corbin, 648 S.W.2d at 295-96, for her contention that she did not have to provide evidence of Burns Management’s actual or constructive notice of the cup in the stairwell. In Corbin, a grocery store customer slipped on a grape in front of a self-service grape bin. The customer sued the store, claiming that three dangerous conditions existed: (1) the grape on which he slipped; (2) excessively dirty floors; and (3) the self-service display of green grapes, in an open, slanted bin above a green linoleum floor. Id. at 296. The court held that because the store did not have actual or constructive notice of the grape on the floor, it could not be liable under the customer’s first theory. Id. Second, even though evidence existed that the store had a history of letting its floors become filthy, it could not support a finding that the dirty floor proximately caused the customer’s fall “since he testified that he slipped on a grape, not on dirt or other slippery matter.” Id. The customer could recover against the store under his third theory because there was evidence that the store knew of an unusually high risk associated with its grape display. Id. In its holding, the Corbin court noted the difference from other “slip and fall” cases: “there is usually no basis for a claim that the store owner maintained an unreasonably dangerous method of display that frequently caused such food items to become floor hazards.” Id. at 297 (emphasis in original).

Bendigo’s reliance on Corbin is misplaced. First, Bendigo’s failure to provide evidence of Burns Management’s actual or constructive knowledge of the cup is similar to the customer in Corbin failing, to provide evidence of the store’s knowledge of the grape — in both instances, the lack of knowledge is fatal. Moreover, unlike the customer in Corbin, Bendigo did not provide evidence that Burns Management caused the cup to be on the floor or that the stairwell itself was a dangerous condition. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000) (distinguishing facts from those in Corbin because the self-service grape display in Corbin “constituted a dangerous condition from the moment it was used.”).

Common Law Duty of Ordinary Care

In a separate argument, Bendigo contends that Burns Management had an additional “common-law legal duty to exercise ordinary care to protect business invitees from danger.” Bendigo contends that under this common-law; duty, Burns Management is liable because it failed to conduct inspections of a known danger, and thus, the trial court erred in granting summary judgment because her evidence “raises a genuine issue of material fact about whether [Burns Management’s] questionable practice of cleaning stairways only once per day satisfies [its] common-law legal duty to exercise ordinary care to protect business invitees from danger.”

First, Bendigo’s argument is circular. Before an alleged dangerous condition can be “known,” Burns Management must have either actual or constructive knowledge of the condition. Second, the cases Bendigo cites concerning a duty to inspect do not support her contention. These cases discuss the duty to inspect premises once a defendant has knowledge of a dangerous condition. Third, Bendigo provides no support for her argument that, in a trip-and-fall case based on the condition of the premises, there is a common-law legal duty separate from that provided in premises liability law. In Keetch, the Texas Supreme Court confirmed that “general negligence principles in a premises liability case are stated in Section 343 of the Restatement Second of Torts (1956).” 845 S.W.2d at 266 (emphasis added) (citing Corbin, 648 S.W.2d at 295). Premises liability analysis simply tailors the traditional test of the conduct of a reasonably prudent person under a general negligence action to the specific category of premises owners. A separate “general negligence duty” thus does not exist.

Conclusion

We hold that Bendigo failed to provide more than a scintilla of evidence that Burns Management had knowledge of a dangerous condition. We conclude that the trial court properly granted a no-evidence summary judgment on Bendigo’s premises liability claims and therefore affirm its judgment.

      . Her husband, Colin Bendigo, alleged purely derivative claims of loss of consortium and household services.

      . Two motions were filed (one by Aztec Facility Services, Inc. on February 13, 2004, and a second by City of Houston, Burns Management Group, Inc., Central Parking System of Texas, Inc., and New South Parking Texas on February 17, 2004). Because they raise the same issues, we refer to them together.

      . Bendigo also cites two out-of-state cases, without an analysis of the other states' accompanying premises liability law. In light of the well-established premises liability law through holdings of the Texas Supreme Court, we decline to follow these cases.