author: JAMES T. CAMPBELL, Justice.

text:
    In re The W.T. WAGGONER ESTATE.
    No. 07-04-0308-CV.
    Court of Appeals of Texas, Amarillo.
    March 7, 2005.

      E. Glen Johnson, Bart A. Rue, John T. Wilson, IV, Kelly, Hart & Hallman, Fort Worth, for Appellant.
    Lonny D. Morrison, Morrison & Shelton, Wichita Falls, William J. Boyce, Fulbright & Jaworski L.L.P., Houston, Appel-lee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

This is an interlocutory appeal of an order appointing a receiver for the W.T. Waggoner Estate and giving the receiver “the duty, responsibility and power,” subject to the court’s supervision and direction and subject to other provisions of the order, to “sell all assets” of the Estate. We will affirm the trial court’s order.

Background

The W.T. Waggoner Estate is an entity formed by Articles of Agreement and Declaration of Trust (hereinafter, the “Articles”) dated March 31, 1923, among W.T. Waggoner and members of his family. The Estate sometimes has been referred to in this litigation as a business or Massachusetts trust. Originally, and at other times, the Estate has had a trustee. It also has shareholders and directors. It apparently is treated for federal tax purposes as a corporation. The parties agree the Texas Trust Code does not apply to the Estate, and for purposes of this appeal under Texas law it is to be treated as a partnership subject to the Texas Revised Partnership Act.

The Estate was created for an original term of twenty years but its term was extended by subsequent amendments to the 1923 Articles. By a 1948 amendment, the Estate’s existence was extended through March 31,1983. By 1981, half the outstanding shares of the Estate were owned by A.B. Wharton, III (the “Wharton shares”), and half by Electra Waggoner Biggs and the trustees of trusts created by her parents E. Paul Waggoner and Helen Buck Waggoner (the “Biggs shares”). On April 1 of that year, the Articles were further amended and Bylaws for the Estate were adopted. The amended Articles extended the term of the Estate through March 31, 2003, subject to prior termination by any shareholder “pursuant to agreement of the Shareholders.” The Bylaws spelled out that “[njotwith-standing the intention and desire of the shareholders that the Estate continue in existence for the full term” [through March 31, 2003], either the holders of a majority of the Wharton shares or the holders of a majority of the Biggs shares had the “absolute right, with or without cause,” to terminate the Estate as of any one of three dates, on written notice of intention to terminate.

In February 1989, Wharton gave written notice of his intention to terminate the Estate, selecting March 31, 1991, as the termination date. Charles M. Prather, who had served as the Estate’s trustee since April 1, 1981, resigned as trustee in April 1989. The office of trustee has been vacant since Prather’s resignation. On March 13, 1991, the Biggs shareholders filed suit seeking the appointment of a receiver for the Estate. By agreement, the termination date of the Estate was extended to a date later in 1991, but the parties made no express agreement for its extension beyond that date. The Estate nonetheless has continued to operate its properties, under the supervision of its directors.

The trial court entered an agreed scheduling order in September 1992 that abated the case for 120 days, requiring the parties to explore an agreed resolution of the matters in dispute, and set the case for trial a year later. A 1997 agreed order noted that the case had been continued on the court’s docket without a specific resetting so the parties could pursue settlement, and provided either party could request a trial setting at any time if settlement prospects no longer justified further postponement.

Electra Waggoner Biggs died in April 2001. In January 2003, the Biggs shareholders filed a third amended petition for appointment of a receiver, and followed that in March 2003 with a motion for partial summary judgment. That motion stated Wharton “has sometimes contended in this litigation that the assets of the W.T. Waggoner Estate should be divided in kind or partitioned between the parties.” The motion asserted undisputed evidence established that the governing documents require liquidation of the assets of the Estate and distribution of the proceeds in the absence of agreement of the shareholders to a division in kind of particular assets. The evidence submitted by the Biggs included the 1923 Articles, and amendments to that document including the 1981 amendments, and the 1981 Bylaws. The evidence also included a May 2002 deposition given by Wharton.

Wharton opposed the Biggs’ motion. After an April 2003 hearing, the court signed an order of partial summary judgment dated May 8, 2003, decreeing that an event had occurred requiring the winding up of the Estate; that there then was no agreement among the shareholders for partition or division in kind of any particular assets of the Estate; and that except to the extent such an agreement was reached, all of the assets of the Estate would be sold in liquidation and the proceeds distributed to the shareholders after satisfaction of obligations of the Estate.

In February 2004, the Biggs shareholders filed a motion for the appointment of John M. Greer as receiver. Wharton filed a response opposing Greer’s appointment and filed a motion to “correct” the court’s May 8, 2003, order of partial summary judgment. The motion to correct urged the court to delete the language requiring all Estate assets to be sold absent agreement among the shareholders.

The court conducted an evidentiary hearing on March 17, 2004, on the Biggs’ motion for Greer’s appointment as receiver and Wharton’s motion to correct. Wharton testified at that hearing. By a March 29 letter, the court notified the parties of its decision not to appoint Greer as receiver. Noting that the parties had stated in open court that a receiver was necessary, the court stated in the letter its intention, subject to objection, to appoint Wilson D. Friberg as receiver. The court set a hearing for May 4 to hear objections to Fri-berg’s appointment, and to hear further “argument and authorities” on Wharton’s motion to correct. Neither side voiced objection to Friberg’s appointment at the May 4 hearing, but the parties presented extensive argument concerning the powers that should be given him.

On May 14, the court signed the order made the subject of this appeal. It appointed Friberg as receiver. The order states that the receiver “shall have, subject to the Court’s continued supervision and direction, the duty, responsibility and power, subject to [a later provision of the order], to sell all assets of the W.T. Wag-goner Estate, except to the extent that the [shareholders] agree to a partition or division in kind of particular assets,” and states the appointment is made in accordance with Art. 6132b-8.03 of the Texas Revised Partnership Act. The later provision of the order states that the receiver shall consummate no sale, irrespective of value, of any real or personal property of the Estate without the court’s approval, after notice and hearing.

Notwithstanding the appointment of the receiver, the order directs that day-to-day operation of the Estate is to remain, subject to further order of the court, under the control and direction of the shareholders through the directors.

Issue on Appeal

On appeal, Wharton challenges neither the necessity for a receiver nor the selection of Friberg to serve in that capacity. He acknowledges the parties agreed the appointment of a receiver was necessary because of their inability to reach any other agreed course for winding up the Estate. Wharton states his single issue as follows:

The trial court erred in ordering a receiver for the W.T. Waggoner Estate to sell all of the assets of the Estate in liquidation when, as a matter of law, neither the Estate’s governing documents nor the controlling law provide for or allow a sale of all of the assets.

The preliminary statement in his brief restates the relevant issue as “How should the assets of the W.T. Waggoner Estate be transferred to the Waggoner family when the Estate is wound up?” It succinctly states the parties’ positions: “Appellees [the Biggs shareholders] suggest that the entire corpus of the Estate, including 520,-000 acres of real property, be sold and the cash proceeds distributed among the shareholder groups. Appellant Wharton insists he has a legal right, after the liabilities of the Estate are extinguished, to receive his share or, at a minimum, some portion of the Estate ‘in kind’ without a forced sale of all the Estate’s assets.”

Applicable Law

We review the court’s order appointing a receiver under an abuse of discretion standard. See Balias v. Balias, Inc., 748 S.W.2d 253, 256 (Tex.App.-Houston [14th Dist.] 1988, writ denied); Carroll v. Carroll, 464 S.W.2d 440, 447 (Tex.Civ.App.-Amarillo 1971, writ dism’d); Strategic Minerals Corp. v. Dickson, 320 S.W.2d 882, 884 (Tex.Civ.App.-Austin 1959, writ ref'd n.r.e.). A court may abuse its discretion by ruling arbitrarily, unreasonably or without reference to any guiding rules and principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When conducting an abuse of discretion review, we examine the entire record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987).

The law applicable to construction of contracts has been applied to partnership agreements, Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex.1976), and we will apply it here. Neither side contends the governing documents are ambiguous. We agree they are not ambiguous. The construction of an unambiguous contract is a matter of law for the court. Edwards v. Lone Star Gas Co., a Div. of Enserch Corp., 782 S.W.2d 840, 841 (Tex.1990); Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.-Amarillo 2000, no pet.). When a court construes a written contract, its primary concern is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). In so doing, the court considers the entire writing, seeking to understand, harmonize and give effect to all its provisions so that none are rendered meaningless. Id. at 393; Cross Timbers, 22 S.W.3d at 26. See Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 53 (Tex.1964). All the shareholders signed the amendments to the Articles dated April 1, 1981, and the Bylaws dated the same date. We will construe the amended Articles and the Bylaws together. See Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.1981) (stating general rule that instruments executed at same time, for same purpose and in same transaction are read and construed together), cited in Fort Worth Ind. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.2000).

Document Provisions

Articles

We find several provisions of the amended Articles and the Bylaws pertinent to the issue presented. We begin with Article IV, Section 1 of the Articles, which states, in relevant part:

Section 1. This Trust shall first continue for its original term of twenty years; and at the end of said period of time, the term of this Trust shall thereupon and then be extended and continued ... for a term ending ,at midnight on the 31st day of March, 2003, but subject to prior termination pursuant to agreement of the Shareholders.... Upon the expiration of the last mentioned period of time, or upon earlier termination, the Trustee shall proceed to wind up the affairs of the Trust and to liquidate its assets and distribute the proceeds of same among the then existing Shareholders. Notwithstanding the expiration of the term of the Trust or any voluntary dissolution of the Trust, the Trust shall continue in existence as an entity until completion of liquidation and distribution of its assets; and all of the powers herein granted to the Trustee and which may be necessary, convenient or useful in winding up the affairs of the trust, in liquidating and distributing its assets, or in carrying on the business operations of the Trust prior to final distribution, shall remain in full force and effect until the completion of such liquidation and distribution. Subject to the approval of the Shareholders, the Trustee may distribute to the Shareholders in kind, rather than to liquidate, all or any part of the assets of the Trust as they exist at the termination of the Trust or at any time thereafter; but in such event the Trustee shall be entitled to adequate indemnification against any unpaid or unsatisfied obligation, whether fixed or contingent, of the Trust Estate.

Bylaws

The preamble to the Bylaws adopted April 1,1981, reads as follows:

Reference is made to the Articles of Agreement and Declaration of Trust of W.T. Waggoner Estate, as amended effective April 1, 1981. In particular, reference is made to the provisions of Section 5 of Article IV of said Articles as amended, which states that the Articles of Agreement and Declaration of Trust, together with the bylaws of the Estate, shall constitute the instruments governing the relationships between the trustee, the board of directors, and the shareholders.

These Bylaws are adopted for the purposes of supplementing the provisions of the Articles and the providing means for the coordination of the activities of the trustee, the directors, and the shareholders. As among such parties, the provisions of these bylaws shall control over any inconsistent provisions in the Articles.

Relevant provisions of the Bylaws include those contained in Section 1 (entitled “Early Termination of the Estate; Control of Termination Procedures”) of Article IV (entitled “Miscellaneous”), paragraphs 1(d) and 1(e) of which read as follows:

(d) If a notice of intention to terminate is executed and delivered by either group of shareholders, then all shareholders, the directors, and the trustee shall endeavor to resolve the problems giving rise to such notice. If the parties are unable to effect a resolution, the parties shall explore the available alternatives to a liquidation and distribution of the Estate assets, including such of the alternatives listed in paragraph (d) of Section 1 of Article II hereof as may be appropriate. In the absence of a revocation of any such notice of intention to terminate, and in the absence of any agreement of the shareholders on an alternative to liquidation and distribution, the shareholder group giving such notice shall be entitled, after the date specified for termination, to a liquidation and distribution of the assets of the Estate. The processes of liquidation and distribution may be commenced pri- or to such date by consent of the shareholders.
(e) Upon termination or dissolution of the Estate, whether as a result of early termination under this Section 1 or at the expiration of the term stated in Section 1 of Article IV of the Articles, the trustee shall be subject to the control and direction of the board of directors in carrying out the processes of winding-up the affairs of the Estate, liquidating or dividing its assets, discharging its obligations, and distributing the remaining assets to the shareholders. Except to the extent that the holders of a majority of the Wharton stock and the holders of a majority of the Biggs stock agree to a partition or division in kind of particular assets, all of the assets of the Estate shall be sold and- the proceeds (after satisfaction of the liabilities and obligations of the Estate) distributed to the shareholders.

Paragraph (d) of Section 1 (entitled “Appointment and Tenure”) of Article II (entitled “The Trustee”) of the Bylaws reads in part as follows:

(d) If the office of trustee becomes vacant for any reason and the directors are unable to agree on the election of a successor trustee ... then the directors and the shareholders shall attempt to resolve the deadlock by consideration of all of the alternatives which may be available, including submission to arbitration, sale of stock among the shareholders, sale of stock to a third party, merger, sale of the assets of the Estate, division in kind or other form of reorganization, appointment of a trustee or agent for the limited purpose of liquidating the assets of the Estate, and such other alternatives as may be proposed by any party. If, within a period of three months from the date the vacancy occurs, the vacancy in the office of trustee has not been filled and no alternative solution has been agreed upon by the shareholders, then the holders of a majority of the Biggs stock or the holders of a majority of the Wharton stock shall have the right to a liquidation of the Estate by a receiver appointed by a court of competent jurisdiction.

Section 3 (entitled “Priority of Bylaws”) of Article IV of the Bylaws reads:

Notwithstanding any provision of the Articles of Agreement and Declaration of Trust, these bylaws are and shall be the controlling document with respect, to the rights and powers of the shareholders, the directors, and the trustee and with respect to the relationships among them. To the extent that the provisions of these bylaws are in conflict with, or are inconsistent with, the provisions of the Articles, the provisions of these bylaws shall control.

Construction of Documents

The logic behind Wharton’s contention he is entitled to a distribution of assets in kind begins with the idea that the language of the Bylaws alone controls the distribution to which the shareholders are entitled on termination. Wharton’s analysis gives little attention to the Articles. Athough the 1981 documents clearly state the parties’ intention that the Bylaws control in the evént of conflict with the Articles, the documents do not indicate an intention of the parties that the two documents conflict. The language of the documents, and common sense, suggest instead that their provisions were intended to be consistent. The Bylaws provide it is the “controlling” document, but provide also that both Articles and Bylaws are governing instruments, and state the purposes of the Bylaws are to supplement and provide means for coordination, not to amend or override the Aticles. Accordingly, unless required by the language of the Bylaws to find a conflict with applicable language of the Articles, we will not do so but will construe them to be in harmony. See Southland Royalty, 378 S.W.2d at 53.

A Wharton reads the Bylaws, paragraphs 1(d) and 1(e) of Section 1 of Article IV provide for different procedures for disposition of Estate assets following termination. By his reading, under paragraph 1(d), the shareholder group giving notice of early termination is entitled to a “distribution of the assets of the Estate,” in kind, following liquidation. Paragraph 1(e), by contrast, requires the sale of assets and distribution of proceeds, after satisfaction of any liabilities of the Estate. Wharton points to Article II, Section 1(d) of the Bylaws, which contains both the phrases “sale of the assets of the Estate” and “liquidating the assets of the Estate,” as evidence the parties intended them to carry different meanings. Citing dictionary definitions of the term “liquidate” and its usage in other contexts, Wharton concludes that in the Estate documents the term means “to ascertain the debts of the Estate and to pay them.” He contends the process of liquidation, then, under the Bylaws involves only the sale of such assets as necessary to pay debts of the Estate. Since paragraph 1(e) provides for sale of all assets and distribution of proceeds, he contends the two paragraphs simply are irreconcilable. Because it is undisputed he gave notice for early termination effective March 31, 1991, Wharton asserts paragraph 1(d) is the controlling provision and governs his entitlement. Paragraph 1(e), Wharton argues, can have no application to the present proceeding because it speaks only of actions by a trustee and the office of trustee is vacant.

We cannot agree with Wharton’s construction of the Bylaw provisions. His reading of these provisions does not harmonize them but unnecessarily brings them into conflict. In particular, we disagree with Wharton’s contention the documents reflect an intention that the shareholders are entitled to one form of distribution if the Estate terminates on expiration of its term in 2003 and another if it terminates earlier. Article IV, Section 1 of the Articles provides that on expiration of the Estate’s term on March 31, 2003, or on earlier termination, the trustee “shall proceed to wind up the affairs of the Trust and to liquidate its assets and distribute the proceeds of same among the then existing Shareholders.” The Section goes on to provide that the trustee may on termination distribute in kind, “rather than to liquidate,” all or any part of the assets, but subject to shareholder approval. Whether termination occurs because of expiration of the 2003 term or because of earlier termination, the procedure used and the shareholders’ entitlement to distribution is the same.

Wharton’s reading of paragraph 1(d) to require the sale only of assets necessary to pay debts, followed by distribution of assets in kind, thus construes it to conflict directly with the Articles’ requirement that Estate assets be liquidated and proceeds be distributed to shareholders. We see nothing in the language of paragraph 1(d) to make such conflict necessary. The phrase “liquidation and distribution of the assets of the Estate” can easily be read simply as the expression in fewer words of the same procedure described in Article IV, Section 1 of the Articles. The procedure described in paragraph 1(d) by which the shareholders, directors and trustee were to endeavor to resolve the problems that gave rise to the notice of early termination and, if that effort failed, explore alternatives to liquidation and distribution of assets might postpone the liquidation caJled for by the language of Article IV, Section 1 of the Articles, but nothing in the language of paragraph 1(d) requires the conclusion that the liquidation and distribution that would follow the failure of those efforts is different from the liquidation and distribution described in the Articles.

Too, Wharton’s reading would render meaningless the language, contained in Article IV, Section 1 of the Articles as well as in paragraph 1(e), requiring shareholder approval of distributions in kind. The right he asserts to receive at least a portion of his share of assets in kind inevitably conflicts with the right of other shareholders to receive the benefit of then-shares of cash proceeds of all assets, and the Articles and Bylaws both express the parties’ intention that neither shareholder group will be deprived of that benefit without its approval.

We find Wharton’s construction of paragraph 1(d) implausible for another reason. Wharton acknowledges that paragraph addresses only the events that are to follow the delivery of notice of early termination. Noting the evidence is undisputed he gave notice of early termination, he argues that paragraph provides him, following liquidation, a contractual entitlement to a “distribution of the assets of the Estate.” If, as Wharton argues, the “distribution of the assets of the Estate” is a distribution in kind, we must then conclude the parties intended a shareholder group giving notice of early termination would thereby become entitled to a greater right, that of distribution in kind, than that to which paragraph 1(e) would have entitled them in the absence of early termination. Construing the documents in a way to provide such an inducement to early termination is contrary to the intention expressed in Article TV, Section 1(a) of the Bylaws, in which the Wharton and Biggs shareholder groups each were provided the early termination option, “Notwithstanding the intention and desire of the shareholders that the Estate continue in existence for the full term [through March 31, 2003].”

To the degree paragraph 1(e) addresses the shareholders’ entitlement to distribution following liquidation, we do not agree it is irreconcilable with paragraph 1(d). The references to liquidation and distribution in paragraph 1(e) describe, in more detail, the same procedure, resulting in the same shareholder entitlement, as that described in Article VI, Section 1 of the Articles: liquidation of Estate assets and distribution of proceeds to the shareholders, subject to the possibility of distribution in kind with shareholder approval. We find no support in these documents for a contention that the shareholders’ entitlements on distribution of assets following termination are affected by the presence or absence of a trustee.

Article II, Section 1(d) of the Bylaws, which addresses procedures to be followed when the trustee’s position is vacant and no agreement can be reached on the appointment of a successor, and to which paragraph 1(d) of Article IV of the Bylaws makes reference, does, as Wharton notes, contain language referring both to sale of assets of the Estate and liquidation of the assets. In the context of that Section, we agree with appellees that the reference to sale of assets reasonably can be read to refer to sale of some but less than all of the assets of the Estate. In any event, we do not find the language employed in that Section to persuasively support Wharton’s construction of the provisions directly addressing distribution of assets on termination.

Application of Texas Revised Partnership Act

The trial court’s order appointing the receiver states that the appointment is made in accordance with the provisions of Article 6132b-8.03 of the Texas Revised Partnership Act (“TRPA”), which authorizes the appointment of a person to carry out the winding up of a partnership. Tex. Rev.Civ. Stat. Ann. art. 6132b-8.03 (Vernon Supp.2004). The parties make reference to the TRPA on appeal but Wharton does not contend the court’s order contravenes its provisions. Appellees cite TRPA Article 6132b-4.02, which states: “A partner does not have a right to receive, and may not be required to accept, a distribution in kind.” Tex.Rev.Giv. Stat. Ann. art. 6132b-4.02 (Vernon Supp.2004). Because we do not construe the Articles and Bylaws to give Wharton the right to receive a distribution in kind, we need not further consider the application of that provision. See Tex.Rev.Civ. Stat. Ann. art. 6132b-1.03 (Vernon Supp.2004) (TRPA governs to extent partnership agreement does not otherwise provide).

Equity in Appointment of Receiver

Wharton also presents argument based on the precept that rules of equity govern the appointment, powers and duties of a receiver. See Huston v. F.D.I.C., 800 S.W.2d 845, 849 (Tex.1990). He asserts a court of equity has inherent authority to vary from the terms of agreements, citing this court’s opinion in Carroll, 464 S.W.2d 440, and argues the trial court abused its discretion by ordering all assets of the Estate sold without hearing evidence that their sale is the “proper and just remedy” to maximize the value of the Estate for its shareholders.

In Carroll, this court considered a trial court order approving a receiver’s sale of farm land that constituted substantially all the corpus of a trust estate created by a joint will that expressly prohibited any sale of the trust property without consent of the trustee and various specified beneficiaries. 464 S.W.2d at 442. Some of the beneficiaries opposed the sale. This court affirmed the trial court’s order, citing evidence that the land was subject to an imminent foreclosure sale and that family dissension precluded any likelihood of agreement among the beneficiaries, and finding that “the conditions disclosed by the evidence” justified the trial court’s exercise of its inherent equitable powers. Id. at 446.

Wharton also cites Kennedy v. Pearson, 109 S.W. 280 (Tex.Civ.App.1908, writ ref d), on which Carroll relied. In Kennedy, the court found the facts alleged were not sufficient to justify the trial court’s exercise of equitable powers to approve a proposed sale of land. The court in Kennedy stated, though, that a court of equity might order the sale if a showing was made that the property was wasting and its sale was necessary to preserve its value. 109 S.W. at 284, quoted in Carroll, 464 S.W.2d at 445. Wharton argues the Carroll and Kennedy cases demonstrate a trial court is not free to exercise its powers in equity without factual findings supported by evidence. We cannot agree that Carroll or Kennedy suggest the trial court acted without supporting evidence. The important distinction between those cases and this involving the Waggoner Estate can be found in the terms of the governing instruments. As noted, in Carroll, the joint will prohibited sale of the farm land without beneficiary approval, which was not obtained. 464 S.W.2d at 443. Similarly, in Kennedy, the will under which the trustees held the land was construed not to authorize the trustees to sell it. 109 S.W. at 283. In those cases, the courts were asked to approve, under their powers in equity, sales of land either not authorized or expressly prohibited by the governing instruments. Here, the Waggoner Estate has terminated and its governing documents require the liquidation described in Article IV, Section 1 of its Articles and its Bylaws. A trial court abuses its discretion when it rules without supporting evidence. Bocquet, 972 S.W.2d at 21. The trial court here had before it the Estate’s governing documents, and it did not abuse its discretion by directing the receiver to take, under court supervision, the action expressly called for by the unambiguous terms of those documents.

Nor did the court rule without supporting evidence concerning the conditions facing the Estate. At the March 2004 hearing, the court also heard Wharton’s testimony, which included his descriptions of such topics as a proposal he made in March 2003 to the Biggs shareholders to extend the term of the Estate; his unsuccessful efforts, following the entry of the court’s May 2003 order, to arrange for sale of all or part of the Estate’s ranch property; efforts made by the shareholders to divide the ranch and other assets; the working relationship between its directors; his belief it would be possible to distribute the Estate assets fairly and in kind without their sale; and his preference for such a division of the assets. No one questions the trial court’s finding that no agreement then existed between Wharton and the Biggs shareholders to a partition or division in kind of any particular asset of the Estate.

Moreover, the court’s action has neither precluded agreement between the shareholder groups for partition or division in kind of Estate assets nor deprived Wharton of the opportunity to challenge the terms of any sale of Estate assets proposed by the receiver. As noted, the order forbids consummation of the sale of any real or personal property of the Estate without court approval after notice and hearing, and provides the receiver is to sell all assets except to the extent the shareholders agree to partition or division in kind of particular assets.

Finding the trial court did not abuse its discretion in the entry of its order appointing a receiver, we overrule Wharton’s sole issue and affirm the trial court’s order.

      . This court referred to the Estate in a 1969 opinion as a "common law trust.” Van

        Hoose v. Moore, 441 S.W.2d 597, 600 (Tex.Civ.App.-Amarillo 1969, writ ref'd n.r.e.). See Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554 (1925); Loomis Land & Cattle Co. v. Diversified Mortgage Investors, 533 S.W.2d 420, 426 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.) (Massachusetts trust treated under Texas law as partnership or joint stock company).

      . See Tex. Prop.Code Ann. § 111.003 (Vernon 1995) (excluding business trusts from operation of Texas Trust Code).

      . See Tex.Rev.Civ. Stat. Ann. art. 6132b-1.01, et seq. (Vernon Supp.2004). Those conclusions of the parties are not at issue here, and we accept them without examination.

      . According to Wharton's brief, &e Estate’s assets include, among other assets, some 520,000 contiguous acres primarily in Wilbar-ger County used for ranching and mineral exploration and production, an office building, apartments, aircraft and facilities, pipelines, feedlots and livestock.

      . The Bylaws provide for equal representation of the Wharton shares and the Biggs shares on the board of directors. Since 1981, the board has consisted of two directors, Wharton and a director representing the Biggs shares. Electra Waggoner Biggs served in that capacity until April 1989, when she was succeeded as a director by Gene Willingham, who has served since.

      . After the death of Electra Waggoner Biggs, the Biggs shareholders consist of her daughters Helen Biggs Willingham and Electra Biggs Moulder and the trustees of the trusts created by her parents.

      . The May 14 order also reiterates the three holdings of the partial summary judgment order and denies Wharton’s motion to correct that order.

      . Wharton’s expressed primary interest lies in retaining a share of the Estate’s ranch property-

      . Unless otherwise indicated, further references to "paragraph 1(d)” or "paragraph 1(e)” are to those paragraphs, as quoted above, of Section 1 of Article IV of the Estate’s Bylaws.

      . Indeed, Article IV, Section 1 of the Articles contains, in its next-to-last sentence, practically the same phrase.

      . Because we construe paragraphs 1(d) and 1(e) to provide the same entitlement to distribution on termination of the Estate, we need not address Wharton's contention that paragraph 1(d) governs the distribution now required. We note, though, that, even if we agreed with Wharton’s contention the shareholders are entitled to one form of distribution under paragraph 1(e) if the Estate terminated on expiration of its term in 2003, and another under paragraph 1(d) if it terminated earlier, it does not follow that paragraph 1(d) necessarily governs. By the time of the trial court’s May 2004 order, the Estate had terminated by the expiration of its term on March 31, 2003, not simply because of Wharton's 1989 notice of early termination.

      . Wharton refers also to a provision of the Articles authorizing the board of directors to conduct the business of the Estate while the trustee is temporarily disabled and during a vacancy in the office of trustee, but denying the directors during such a temporary disability or vacancy the power to sell real estate except in the ordinary course of business. He argues this provision demonstrates that only a trustee is authorized to sell all the assets of , the Estate. We cannot agree this provision sets any limit on the actions expressly required by the Articles on termination of the Estate.


source: Caselaw Access Project

author: PHYLIS J. SPEEDLIN, Justice.

license: Public Domain

text:
    TEXAS POLITICAL SUBDIVISIONS PROPERTY/CASUALTY JOINT SELF-INSURANCE FUND, Appellant, v. BEN BOLT-PALITO BLANCO CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 04-04-00658-CV.
    Court of Appeals of Texas, San Antonio.
    March 16, 2005.
    Rehearing Overruled April 7, 2005.

      Judith R. Blakeway, Merritt M. Clements, Stephen T. Dennis, Strasburger & Price, L.L.P., San Antonio, for appellant.
    Mark C. Brodeur, Brodeur & Evans, P.L.L.C., Dallas, Roland L. Leon, Atlee M. Parr, Barker, Leon, Fancher & Matthys, L.L.P., Corpus Christi, Nora Barrera Ry-croft, Law Office of Nora Barrera Rycroft, Alice, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

PHYLIS J. SPEEDLIN, Justice.

The Texas Political Subdivisions Property/Casualty Joint Self-Insurance Fund (“TPS”) appeals from the trial court’s order denying their plea to the jurisdiction. We reverse the trial court’s order and dismiss Ben Bolt-Palito Blanco Consolidated Independent School District’s (“Ben Bolt’s”) claims against TPS for want of jurisdiction.

BACKGROUND

TPS is a local government entity comprised of various counties, municipalities, special districts, and other political subdivisions which performs certain governmental functions and services, one of which is the creation of a self-insurance pool. See Tex. Gov’t Code Ann. § 791.008(3), (4)(D) (Vernon 2004). Ben Bolt, a small school district in Jim Wells County, is a member of TPS’s self-insurance pool. TPS provides property/easualty insurance to participants through an Interlocal Participation Agreement.

In December 2002, Ben Bolt sustained a loss at one of its school facilities giving rise to a claim for mold and water damage. TPS denied Ben Bolt’s claim on the basis that the alleged loss was not covered under the parties’ insurance contract. Ben Bolt then filed a declaratory judgment action seeking a determination that the loss was covered by the agreement. TPS filed a plea to the jurisdiction and motion to dismiss claiming immunity from suit. The trial court denied TPS’s plea to the jurisdiction and TPS filed this interlocutory appeal.

Analysis

TPS claims on appeal that the trial court erred in denying its plea to the jurisdiction because Ben Bolt’s suit is barred by sovereign immunity and should therefore be dismissed. Ben Bolt responds that the discretionary provision of insurance benefits by contract is a proprietary function and that sovereign immunity is therefore inapplicable. In addition, Ben Bolt contends that if sovereign immunity is held to apply, TPS’s. immunity from suit has been waived by language in the Interlocal Cooperation Act. We agree with TPS that the present action is barred by sovereign immunity and conclude that the trial court therefore lacked jurisdiction to hear the case.

Standard of Review

To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the claim. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); County of Bexar v. Steward, 139 S.W,.3d 354, 357 (Tex.App.-San Antonio 2004, no pet.). A party may contest a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction. Travis County v. Pelzel & Assoc., Inc., 77 S.W.3d 246, 248 (Tex.2002). We review a trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Steward, 139 S.W.3d at 357.

Sovereign Immunity

As a governmental entity, TPS is entitled to sovereign immunity, which protects the State and its political subdivisions from lawsuits for money damages. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). Sovereign immunity encompasses two principles: immunity from liability and immunity from suit. Gen. Sen). Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001); Norrell v. Gardendale Volunteer Fire Dep’t, 115 S.W.3d 114, 116 (Tex.App.-San Antonio 2003, no pet.). Immunity from liability protects the State and its subdivisions from judgment, even when the legislature has expressly consented to suit. Little-Tex Insulation Co., 39 S.W.3d at 594. Immunity from suit on the other hand, bars a suit against the State absent express consent. Id. The legislature can provide consent to sue the State through clear and unambiguous statutory language or a resolution granting express permission for a particular entity to pursue a specific claim. IT-Davy, 74 S.W.3d at 854; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Salas v. Wilson Mem’l Hosp. Dist., 139 S.W.3d 398, 402-03 (Tex.App.-San Antonio 2004, no pet.). Immunity from suit deprives a trial court of subject matter jurisdiction over a governmental unit, even where liability is undisputed. Pelzel, 77 S.W.3d at 248; Norrell, 115 S.W.3d at 116.

It is undisputed in this case that TPS has waived its immunity from liability for breach of contract by entering into a contract with Ben Bolt to provide insurance services. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003); IT-Davy, 74 S.W.3d at 855; Little-Tex Insulation Co., 39 S.W.3d at 594. The act of entering into a contract with a private party waives a governmental unit’s immunity from liability, but not its immunity from suit. Catalina Dev., Inc., 121 S.W.3d at 705; IT-Davy, 74 S.W.3d at 854. Immunity from suit can only be waived by express consent from the legislature. IT-Davy, 74 S.W.3d at 857 (“We again reaffirm that it is the Legislature’s sole province to waive or abrogate sovereign immunity.”); Alamo Cmty. Coll. Dist. v. Browning Constr. Co., 131 S.W.3d 146, 153 (Tex.App.-San Antonio 2004, pet. filed).

The party bringing suit against a governmental entity has the burden of affirmatively showing that the trial court has jurisdiction to hear the case, which means that they must establish a clear and unambiguous waiver of immunity from suit by the legislature. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Salas, 139 S.W.3d at 402. Ben Bolt contends that language in the Interlocal Cooperation Act “envisions suits” and, therefore, constitutes a clear and unambiguous waiver of immunity from suit. We disagree.

Specifically, Ben Bolt contends that Texas Government Code section 791.012 is indicative of the- legislature’s intent to allow suits against governmental units. The section provides: “Local governments that are parties to an interlocal contract for the performance of a service may, in performing the service, apply the law applicable to a party as agreed by the parties.” Tex. Gov’t Code Ann. § 791.012 (Vernon 2004). This provision does not contain any language similar to what has been previously held to constitute a clear and effective waiver by the legislature. See Alamo Cmty. Coll. Dist., 131 S.W.3d at 152 (discussing cases where “sue and be sued” language has been held to constitute waiver of sovereign immunity). Some statutory language is conclusive and leaves no doubt as to the legislature’s intent. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-97 nn. 5, 6 (Tex.2003) (listing examples of statutory language that clearly waives immunity); see also Tex. Gov’t Code Ann. § 311.034 (Vernon 2005) (providing, “a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language”). However, the Supreme Court has identified factors to assist in determining when a statute that is less explicit still indicates the legislature’s intent to waive the State’s immunity from suit. Wichita Falls State Hosp., 106 S.W.3d at 697 (noting that finding waiver absent clear and explicit language is rare). In construing a statute to discern a waiver of immunity, the Court has employed the following guidelines: (1) the statute must waive immunity beyond doubt; (2) ambiguities are resolved in favor of immunity; (3). a requirement that the State be joined in a lawsuit for which immunity would otherwise attach indicates an intentional waiver of immunity; and (4) a provision that sets an objective limitation or cap on the State’s potential liability also indicates an intent to waive immunity from suit. Id at 697-98.

In reviewing the entirety of the Interlocal Cooperation Act, we find no clear indication of the legislature’s intent to permit suit against the State. See Tex. Gov’t Code Ann. §§ 791.001-791.032 (Vernon 2004). Not only does the Act contain no clear “sue and be sued” language, there is also no provision requiring that the State be joined in a lawsuit for which immunity would otherwise attach, nor is there any provision establishing a cap on the State’s liability under a contract. See id. Because we find no language within the statute that waives immunity beyond a doubt, we conclude that any ambiguity must be resolved in favor of TPS’s retention of immunity from suit. See Wichita Falls State Hosp., 106 S.W.3d at 698-702.

Conclusion

Because Ben Bolt has failed to affirmatively show a clear and unambiguous waiver of the State’s immunity from suit, they have also failed to establish the trial court’s subject matter jurisdiction to hear the case. Accordingly, we conclude that the trial court erred in denying TPS’s plea to the jurisdiction, and we therefore reverse the trial court’s order and render judgment dismissing Ben Bolt’s claims against TPS.

      . Ben Bolt contends that sovereign immunity is inapplicable in this case because TPS was engaged in a proprietary function by providing insurance benefits on a contractual basis. However, the proprietary/ governmental function distinction only applies to municipal corporations. See Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex.1986) ("Proprietary functions are those functions performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality.”) (emphasis added); Hencerling v. Texas A & M Univ., 986 S.W.2d 373, 374-75 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (the State can only act in its governmental capacity and the proprietary/ governmental distinction applies only to suits against municipalities); George C. Kraehe, “There’s Something About Cities”: Understanding Proprietary Functions of Texas Municipalities and Governmental Immunity, 32 Tex. Tech L.Rev. 1, 2 (2000) ("Municipalities are different from all other governmental units in Texas because they are the only governmental units recognized to perform private, as opposed to governmental, functions.”).

      . While the Supreme Court indicated in the case of Federal Sign v. Texas Southern University that there might be circumstances by which the State could waive its immunity from suit by conduct beyond the simple execution of a contract, the Court has yet to identify such circumstances. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 n. 1 (Tex. 1997); see also Catalina Dev. Inc., 121 S.W.3d at 705 (listing cases in which the Court has considered circumstances urged to constitute waiver by conduct). Further, the Court has rejected the contention that accepting the benefits of a contract is sufficient to effect waiver of immunity from suit. IT-Davy,, 74 S.W.3d at 856-57; Little-Tex Insulation Co., 39 S.W.3d at 598.


text:
    DELL, INC., formerly known as Dell Computer Corporation, Appellant, v. Olga MUNIZ, et al., Appellees. In re Dell, Inc., formerly known as Dell Computer Corporation.
    Nos. 04-04-00722-CV, 04-04-00752-CV.
    Court of Appeals of Texas, San Antonio.
    March 23, 2005.

      Beverly G. Reeves, Kim E. Brightwell, Paul Schlaud, Reeves & Brightwell LLP, Austin, Rene P. Montalvo, Law Office of Rene P. Montalvo, P.C., Rio Grande City, David Casso, Flores, Casso & Pettitt, L.L.P., McAllen, for appellant.
    Austin Tighe, Vic Feazell, Feazell & Tighe, L.L.P., Austin, Bryan K. Harris, Juan Enrique Mejia, Daniel G. Covich, Harris Mejia, L.L.P., Corpus Christi, Lionel Z. Glancy, Avi Wagner, Robert J. Perkins, Glancy .& Binkow, L.L.P., Peter Sullivan, Samuel G. Liversidge, Gibson, Dunn & Crutcher, L.L.P., Los Angeles, CA, Mitchell C. Chaney, Rodriguez, Col-vin, Chaney & Saenz, L.L.P., Brownsville, Michael J. Holston, Drinker Biddle, Philadelphia, PA, for appellees.

      Sitting: SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

In these consolidated proceedings, Dell, Inc., formerly known as Dell Computer Corporation (“Dell”), complains of the trial court’s order denying its motion to compel arbitration. The parties concede that the arbitration agreement at issue is governed by the Federal Arbitration Act and we concur. Accordingly, we dismiss Dell’s interlocutory appeal for lack of jurisdiction. See Tex.R.App. P. 42.3(a). Because we hold the trial court abused its discretion in denying Dell’s motion to compel arbitration, we conditionally grant the writ of mandamus, and we order the trial court to withdraw its order denying arbitration and enter an order compelling arbitration under the Federal Arbitration Act.

Factual and Procedural Background

Olga Muniz placed a telephone order to purchase a Dell Dimension 2100 computer from Dell in September 2001. In response to the order, Dell sent Muniz a purchase invoice containing the written terms and conditions of the transaction, which included a binding arbitration provision. The computer was assembled in Nashville, Tennessee, and shipped to Muniz in Rio Grande City, Texas. When Dell delivered the computer to Muniz, it enclosed another copy of the same written terms and conditions of sale, including the same arbitration provision; the terms and conditions provided an option for Muniz to return the computer for a refund within thirty days. Muniz did not exercise the return option. In connection with the purchase of her computer, Dell also provided Muniz with a separate document containing a limited written warranty. Dell’s limited written warranty states that “the hardware products it manufactures will be free from defects in materials and workmanship,” and that it will repair or replace the defective product upon notice from the consumer. The arbitration provision in Dell’s written terms and conditions of sale expressly excludes “claims against Dell arising under the applicable written warranty” and provides that such claims may be pursued in court.

In January 2004, Muniz filed a proposed class action against Dell alleging that Dell misrepresented the memory capacity of her computer by approximately 7%. Specifically, Muniz asserted that Dell’s use of the terms “kilobyte,” “megabyte,” and “gigabyte” as decimal rather than binary measurements is incorrect and misleading. Muniz asserted causes of action for breach of contract, breach of implied warranty, and unjust enrichment. Dell filed a motion to compel arbitration. In response, Muniz filed an amended petition omitting her previous causes of action, and asserting a single cause of action against Dell for breach of its written warranty. Dell filed a supplemental motion to compel arbitration, which was heard and denied by the trial court in a general order. Dell filed this petition for writ of mandamus, as well as an interlocutory appeal.

Analysis

The parties concede, and we agree, that the dispute concerns a contract evidencing a transaction involving interstate commerce; therefore, the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), applies to the controversy. Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 277-81, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Under the FAA, the denial of a motion to compel arbitration is reviewable by mandamus because there is no adequate remedy by appeal. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271-72 (Tex.1992) (orig.proceeding); In re Medallion, Ltd., 70 S.W.3d 284, 287 (Tex.App.-San Antonio 2002, orig. proceeding). Because we hold the FAA applies, we dismiss Dell’s interlocutory appeal for lack of jurisdiction, and proceed to consider the merits of its petition for writ of mandamus.

We review orders compelling or denying arbitration under the FAA under an abuse of discretion standard. Jack B. Anglin Co., 842 S.W.2d at 271. Mandamus will issue only to “correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)); see also Associated Glass, Ltd. v. Eye Ten Oaks Investments, Ltd., 147 S.W.3d 507, 511-12 (Tex.App.-San Antonio 2004, orig. proceeding). In order to obtain mandamus relief, Dell must establish that the trial court could reasonably have reached only one decision concerning the resolution of factual issues or matters committed to its discretion, or failed to analyze or apply the law correctly. Walker, 827 S.W.2d at 840; Associated Glass, 147 S.W.3d at 512. A trial court has no discretion in determining what the law is or in applying the law to the facts. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

A party seeking to compel arbitration by mandamus must establish the existence of a valid arbitration agreement subject to the FAA, and that the claims asserted fall within the scope of the arbitration agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (orig.proceeding); In re Medallion, 70 S.W.3d at 287. Whether a claim falls within the scope of an arbitration agreement is a question of law that we review de novo. Henry v. Gonzalez, 18 S.W.3d 684, 691 (Tex.App.-San Antonio 2000, pet. dism’d by agr.). To determine whether a claim falls within the scope of an arbitration agreement, we examine the factual allegations of the complaint, rather than the legal causes of action asserted. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex.1995) (orig.proceeding); Henry, 18 S.W.3d at 689. A plaintiff may not avoid arbitration by merely re-casting the same factual allegations as a different legal cause of action. Associated Glass, 147 S.W.3d at 513.

Arbitration agreements are interpreted under traditional contract princi-pies. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Once the party seeking to compel arbitration establishes its right to arbitration, if the opposing party does not defeat that right, the trial court has no discretion and is obligated to compel arbitration. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996) (orig.proceeding); Henry, 18 S.W.3d at 688. Because a presumption exists in favor of arbitration, courts must resolve any doubt about an arbitration agreement’s existence or scope in favor of arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001) (orig.proceeding); Henry, 18 S.W.3d at 688-89.

Here, there is no dispute about the arbitration agreement’s existence. The parties agree that the agreement exists and is valid. The parties disagree only about whether the claim asserted by Mun-iz falls within the arbitration agreement’s express exception for claims under Dell’s limited written warranty. We must determine, therefore, whether the factual allegations asserted by Muniz in her second amended petition constitute a claim for breach of Dell’s limited written warranty, i.e., a claim based on a “defeet[s] in materials [or] workmanship” of her computer’s hardware.

In determining whether Muniz has pled a claim for breach of Dell’s limited written warranty, we look to the specific facts pled, not the label given to the legal cause of action. Marshall, 909 S.W.2d at 900; Henry, 18 S.W.3d at 689. In her second amended petition, Muniz alleges in substantial detail that Dell misrepresented the memory capacity of her computer due to its misleading usage of “kilobyte,” “gigabyte,” and “megabyte” in terms of decimals, and that she therefore received less memory than Dell represented and she paid for. She also asserts that: (1) Dell’s written warranty promised the computer would be “free from defects in materials and workmanship;” (2) “the breach was the result of a defective memory component;” and (3) “the breach occurred because the memory component in Ms. Muniz’s computer (the specific defective component being the computer’s hard drive) has less storage capacity/memory than she paid for, by roughly 7%.”

Muniz references a “defective memory component” and seems to imply the “defective memory component” is the computer’s hard drive, or is in the hard drive; however, she fails to point to a specific defect in the materials or workmanship of either. Although the term “defect” is not defined in Dell’s written warranty, when the language of a contract is not ambiguous, we must give the words used their plain and ordinary meaning. See United Servs. Auto. Ass’n v. Pennington, 810 S.W.2d 777, 779 (Tex.App.-San Antonio 1991, writ denied). The common meaning of the term “defect” is “a lack of something necessary for completeness, adequacy or perfection: deficiency.” Webster’s Ninth New Collegiate Dictionary 333 (9th ed.1990). Here, Muniz makes no attempt to specify a deficiency in the “memory component” or hard drive, nor does she allege a lack of something necessary for proper functioning or a malfunction that requires repair or replacement. Further, Muniz does not identify a particular material, part, or piece in the “memory component” or hard drive that is defective. Similarly, she does not allege that faulty workmanship caused the “memory component” or hard drive to be deficient. Muniz merely alleges that the “memory component” is defective solely because it has 7% less capacity “than she paid for.”

The gist of Muniz’s factual allegations against Dell are that Dell misrepresents the memory capacity of its computers in its marketing and sales materials to all consumers nationwide. We conclude that her factual allegations do not state a claim for breach of Dell’s limited written warranty. Therefore, Muniz’s claim does not fall within the arbitration agreement’s stated exception for claims arising under the written warranty. Because we conclude Muniz’s claim against Dell falls within the scope of the arbitration agreement, we hold the trial court abused its discretion in declining to compel arbitration. Accordingly, we conditionally grant the writ of mandamus, and we order the trial court to withdraw its order denying arbitration and enter an order compelling arbitration under the FAA. The writ will only issue if the trial court fails to withdraw its order denying arbitration, and enter an order compelling arbitration, within ten days-from the date of our opinion and order.

      . The arbitration provision states, "any claim, dispute or controversy (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort, and equitable claims) against Dell ... arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement ..., Dell’s advertising, or any related purchase shall be resolved exclusively and finally by binding arbitration administered by the National Arbitration Forum

      . Muniz's co-plaintiff, Irma Gonzalez, alleged the same factual assertions and causes of action against Hewlett Packard Company and Compaq Computer Corporation based on her purchase of a Compaq computer. Muniz only asserted claims against Dell.

      . A trial court’s order denying arbitration under the Texas Arbitration Act is reviewable through an interlocutory appeal. Tex Civ. Prac. & Rem.Code Ann. § 171.098(a) (Vernon Supp.2004-05).

      . Muniz also claims that she called Dell and "complained about her problems with storing documents on her computer.” The record shows Muniz never requested that Dell repair or replace any hardware under the limited written warranty.

      . In the context of consumer products, a "defect” has been construed as "a condition of the goods that renders them unfit for the ordinary purpose for which they are used because of a lack of something necessaiy for adequacy.” Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 444 (Tex.1989) (interpreting the term “defect” within the context of an implied warranty of merchantability). In the context of an implied warranty of merchantability, a product defect may be established by circumstantial evidence that there was a proper use of the goods and a malfunction. Id.

      . Dell’s limited written warranty promises to repair or replace the defective part within a certain time frame. Muniz's second amended petition forecloses repair or replacement of her computer as an option because she claims all of Dell's computers contain less memory capacity them represented.

      . As noted, supra, the arbitration agreement broadly covers any claims or disputes arising from or relating to the "Agreement, its interpretation, or the breach, termination or validity thereof,” including "Dell’s advertising.”


author: SANDEE BRYAN MARION, Justice.

text:
    PANATROL CORPORATION, Appellant/Cross-Appellee, v. EMERSON ELECTRIC COMPANY, Appellee/Cross-Appellant.
    No. 04-03-00547-CV.
    Court of Appeals of Texas, San Antonio.
    March 23, 2005.

      David E. Chamberlain, Amy C. Horowitz, Glenn A. Brown, Timothy B. Poteet, Chamberlain McHaney, Austin, Sharon E. Callaway, Crofts & Callaway, P.C., San Antonio, for appellant.
    Daniel J. Gunter, James E. Breitenbueher, Patrick D. McVey, Riddell Williams, P.S., Seattle, WA, Kurt H. Kuhn, Brown McCarroll, L.L.P., Austin, Jerry D. Mason, Peter T. Martin, Tab H. Keener, Peter T. Martin & Associates, Dallas, Patrick M. Dooley, Dooley, Hoerster & Sione, L.L.P., Fredericksburg, for appellee.
    Peter T. Martin, Jerry D. Mason, Tab H. Keener, Patrick M. Dooley, for Willow-brook Foods, Inc., et al.
    Sitting: Alma L. López, Chief Justice, Sandee Bryan Marion, Justice, Phylis J. Speedlin, Justice, concurs in judgment only.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

In this appeal, we determine whether the trial court erred in rendering summary judgments on appellee’s claim for contribution and appellant’s claim for indemnity. We conclude the trial court erred; therefore, we reverse and remand.

BACKGROUND

This dispute arises from a larger suit filed by plaintiffs against several defendants, including Emerson Electric Company (“Emerson”). The plaintiffs operate a turkey processing plant in Fredericksburg, Texas, and they purchased a commercial turkey fryer from Peerless Metal Products Corporation (“Peerless”). The fryer included as a component a fire suppression system to smother oil fires that may occur in the unit. Peerless ordered two control panels from Panatrol Corporation, specifying that each panel include one “Chroma-lox Temperature Controller” and one “Chromalox High Temperature Limit Switch.” Panatrol ordered the temperature controllers from Emerson.

In 1999, a fire originated in the turkey fryer, destroying the building and its contents. In their lawsuit, plaintiffs alleged Emerson was liable for the malfunction of the temperature controllers. Plaintiffs did not sue Panatrol, but Emerson subsequently joined Panatrol as a third-party contribution defendant based on its alleged independent fault for plaintiffs’ damages. Emerson alleged Panatrol designed, manufactured, and/or installed the control panel in the' turkey fryer, which plaintiffs claimed was defective. Panatrol counterclaimed against Emerson for indemnification, asserting Emerson had a duty to indemnify it against any loss arising from the plaintiffs’ product liability claims.

Emerson moved for summary judgment on all of plaintiffs’ claims against it. Pana-trol and Emerson each filed cross-motions for summary judgment on the other’s claims. In successive orders, the trial court rendered summary judgment (1) in favor of Emerson on all of plaintiffs’ claims against Emerson; (2) in favor of Panatrol dismissing Emerson’s contribution claim against Panatrol, and (3) in favor of Emerson dismissing Panatrol’s indemnity claim against Emerson. The first summary judgment was the subject of an appeal to this court in Willowbrook Foods, Inc. v. Ghinnell Corp., 147 S.W.3d 492 (Tex.App.San Antonio 2004, pet. filed). In that appeal, a panel of this court concluded “that Emerson’s summary judgment evidence did not conclusively establish that it was entitled to summary judgment on plaintiffs’ strict liability claims or on the issue of causation, and plaintiffs’ summary judgment evidence raised a fact issue sufficient to defeat Emerson’s entitlement to a no-evidence summary judgment.” Id. at 506. The second and third summary judgments are the subject of this appeal.

PANATROL’S MOTION FOR SUMMARY JUDGMENT ON EMERSON’S CONTRIBUTION CLAIM

In Emerson’s suit against Panatrol, Emerson alleged Panatrol designed and manufactured the turkey fryer’s control panel. Therefore, Emerson contends it is entitled to contribution from Panatrol to the extent the plaintiffs attack the design or manufacture of the temperature controllers based on the design and manufacture of the fryer or its control panel.

In Panatrol’s motion for summary judgment, Panatrol asserted Emerson was not entitled to contribution because there was no evidence that the Panatrol control panel was defective or that any defect was the producing cause of plaintiffs’ damages. In response, Emerson argued that if the plaintiffs devised a liability theory against it, its experts “should be afforded an opportunity to present any evidence of a defect in the design and/or manufacture of the [Panatrol] control panel.” On appeal, Emerson theorizes that the trial court dismissed its contribution claim against Pana-trol because the court also dismissed plaintiffs’ claims against Emerson. On appeal, Panatrol ignores this court’s reversal of the summary judgment in favor of Emerson on the plaintiffs’ claims and merely asserts “that Emerson, having obtained summary judgment against Plaintiffs on their claims for affirmative relief from Emerson, has no right of contribution from Panatrol.”

In the underlying lawsuit, the plaintiffs alleged the turkey fryer and/or its component parts were defectively manufactured, marketed, sold, leased, installed, and serviced by one or more of the various defendants. In their response to Emerson’s motion for summary judgment, the plaintiffs did not dispute that the controllers were components of the turkey fryer; however, plaintiffs asserted various fact issues based on them experts’ affidavits. This court concluded Emerson was not entitled to summary judgment on plaintiffs’ strict liability claims and on the issue of causation. Willowbrook Foods, 147 S.W.3d at 504-06. Our conclusion in Willowbrook Foods left open the issues of whether there exists a defect in the final product (the turkey fryer) and whether the component parts (the temperature controllers) were themselves defective. For this reason, Panatrol is not entitled to a no-evidence summary judgment on the issues of whether its control panel was defective and whether any defect was the producing cause of plaintiffs’ damages. Because the issue of whether Panatrol may be found liable for a defectively designed or manufactured control panel remains to be tried, the trial court erred in rendering a take-nothing summary judgment against Emerson on its contribution claim against Pana-trol.

EMERSON’S MOTION FOR SUMMARY JUDGMENT ON PANA-TROL’S INDEMNITY CLAIM

In Panatrol’s suit against Emerson, Pa-natrol asserted it is a “seller” and Emerson is a “manufacturer” as these terms are defined by the Texas Products Liability Act. Tex. Crv. PRac, & Rem.Code Ann. § 82.002(a) (Vernon 1997) (hereinafter, “the Products Liability Act” or “the Act”). Under the Act, a manufacturer must indemnify and hold harmless an innocent seller against loss arising out of a products liability action. Id. Therefore, according to Panatrol, it is entitled to indemnity for its legal fees from Emerson.

In Emerson’s motion for summary judgment, Emerson argued Panatrol is not entitled to indemnity for its legal fees on three alternative grounds: (1) Panatrol waived any right to seek indemnification under Texas law by contractually agreeing to Missouri law, which provides no right of indemnification in this case; (2) Panatrol’s indemnification claim is governed by Illinois law, which provides no right of indemnification in this case; or (3) if Texas law applies, Panatrol is not entitled to indemnification under the Act. When a movant asserts multiple grounds for summary judgment, and the order, as here, does not state the theory upon which the trial court based its decision, the non-movant on appeal must negate any grounds on which the trial court could have granted the order. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970); Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex.App.-San Antonio 2003, no pet.). Otherwise, we will affirm the summary judgment if any one of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Villanueva, 123 S.W.3d at 464.

Conflict of Laws

As an initial matter, we first determine which jurisdiction’s law applies. Emerson argues Panatrol may not rely on the Texas Products Liability Act because the parties agreed Missouri law applies. Alternatively, Emerson argues that Panatrol’s indemnity claim is governed by Illinois law because Illinois has the most significant relationship to the contract.

Emerson contends Missouri law applies based on the following language contained in the invoice sent by Emerson to Panatrol for Panatrol’s purchase of the temperature controllers:

The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the law of the state of Missouri. Buyer and Seller agree that the proper venue for allocations arising in connection herewith shall be only in Missouri and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued.

In determining the law applicable to indemnity clauses, Texas courts look to sections 187 and 188 of the Restatement (Second) of Conflict of Laws. See Maxus Exploration v. Moran Bros., 817 S.W.2d 50, 53 (Tex.1991). We apply the law of the jurisdiction chosen by the parties if the particular issue is one they could have resolved by an explicit provision in their agreement directed to that issue. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677-78 (Tex.1990); Restatement (Second) of Conflict of Laws § 187(1) (1971). Here, the parties chose the law of the state of Missouri to govern the “validity, performance, and all other matters relating to the interpretation and effect of’ the agreement under which Panatrol purchased the temperature controllers from Emerson. However, the invoice does not contain a provision regarding indemnification. Therefore, the parties could not have resolved the issue of whether Emerson must indemnify Panatrol by reference to the invoice.

We will nevertheless apply the law of the state of Missouri to the issue of Emerson’s obligation to indemnify Panatrol unless (1) there is a state with a more significant relationship to the transaction, and (2) applying the chosen law would contravene a fundamental policy of that state, and (3) that state has a materially greater interest in the determination of the particular issue. See DeSantis, 793 S.W.2d at 678; Restatement § 187(2)(b). We begin our analysis of the first and second exceptions with a consideration of the following contacts: (1) the place of contracting; (2) the place of negotiation; (3) the place of performance; (4) the location of the contract’s subject matter; and (5) the parties’ domicile, residence, nationality, place of incorporation, and place of business. 3M v. Nishika Ltd., 953 S.W.2d 733, 735-36 (Tex.1997); Restatement (Second) of Conflict of Laws § 188 (1971); see also Chesapeake Operating, Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 170 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (noting that Restatement section 187 incorporates Restatement section 188).

The only contact linking Missouri to this case is that Emerson is a Missouri corporation. However, Panatrol is an Illinois corporation, and Panatrol ordered the temperature controllers from an Emerson division located in Illinois. The controllers were shipped directly to Panatrol’s facility in Illinois. Therefore, the place of contracting; the place of negotiation; the location of the contract’s subject matter; and the parties’ domicile, residence, nationality, and place of incorporation weigh in favor of Illinois. However, there are two possible meanings to the phrase “the place of performance”: (1) where the sales transaction was performed, and (2) where the indemnity obligation would be performed. See Maxus, 817 S.W.2d at 54 (noting that, on occasion, “it is more appropriate to consider the disputed contractual issue separately from the contract as a whole.”). Here, the main performance contemplated by the invoice as a whole (the sale of the controllers) occurred in Illinois. But the plaintiffs’ lawsuit, as well as the claims between Emerson and Pana-trol, exist in Texas. Emerson chose to bring its contribution claim against Panatrol in Texas and any judgment will be entered in Texas. “Thus, we must decide whether the state with the most significant relationship should be determined by looking to the contract as a whole or the indemnity [issue] that [is] disputed.” Chesapeake, 94 S.W.3d at 171. We must “consider which state’s law has the most significant relationship to the particular substantive issue to be resolved.” Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.2000)(emphasis in original); see also Chesapeake, 94 S.W.3d at 173 (‘What is determinative is which state has the most significant relationship with respect to the indemnity iss%e.”)(emphasis in original).

The “particular substantive issue to be resolved” here is whether Emerson must indemnify Panatrol in the absence of any contractual obligation to do so. Chesapeake, 94 S.W.3d at 173 (“What is determinative is which state has the most significant relationship with respect to the indemnity issue.”). Panatrol’s claim against Emerson is for legal expenses Pa-natrol incurred in Texas, and not for any damages associated with the sale of the controllers by Emerson to Panatrol. We conclude, therefore, that the place of performance of Emerson’s indemnity obligation, if any, is in Texas. See id. at 171-72 (claim for legal services and liability incurred in Texas, and not for drilling services performed in Louisiana).

We next evaluate these contacts according to their relative importance to the particular issue before us. 3M v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996)(evaluate state contacts not by their number, but by their quality). For this reason, we turn next to the following policy factors:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of othér interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2) (1971).

It appears the only effective difference between the three jurisdictions is the absence of a statute in Illinois and Missouri governing the rights of a seller of a defective product to indemnity from the manufacturer of the product, and the existence of such a statute in Texas. However, both Illinois and Missouri allow for such indemnification under their common law. See Dixon v. Chicago & North Western Transp. Co., 151 Ill.2d 108, 176 Ill.Dec. 6, 601 N.E.2d 704, 709 (1992) (where party seeking indemnity was not at fault, it may shift its entire liability to the truly responsible party, unless party seeking indemnity is found to have been at fault in causing the injury); Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233, 242 (Mo.Ct.App.1987) (seller lower in the chain of distribution who sells a product without actual or constructive knowledge of a defect and who has no duty to inspect is entitled to indemnity against one higher in the chain, such as the manufacturer).

Nevertheless, we believe the policy considerations in section 6 of the Restatement favor Texas resolving the indemnity issue. The Texas Products Liability Act “is a part of a scheme to protect manufacturers as well as sellers of products.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999). The Act creates “a new, distinct statutory duty, because it ‘is in addition to any duty to indemnify established by law, contract, or otherwise.’ ” Id. (quoting Tex. Civ. Prac. & Rem.Code Ann. § 82.002(e)(2) (Vernon 1997)). “[I]t established uniform rules of liability so that manufacturers could make informed business decisions and plaintiffs could understand their rights.” Id. at 868-69. “The Legislature sought to protect both manufacturers and sellers, but gave preference to sellers.with no.independent liability.” Id. at 869.

Applying the law of the forum in which the underlying product liability and contribution disputes will be resolved protects the parties’ justified expectations; provides certainty, predictability and uniformity of result; and provides for ease in the determination and application of the law to be applied. Although the temperature controllers were purchased in Illinois, it is less desirable that Illinois law govern the indemnity claim and Texas law govern the product liability and contribution claims than it is that the same law govern all claims. See Maxus, 817 S.W.2d at 57. Because of Texas’s strong policy favoring protection of innocent sellers, we believe Texas has the most significant relationship to the transaction and the parties.

It also appears that Texas has a stronger interest than Illinois or Missouri in determining whether Panatrol is entitled to indemnification. Panatrol’s indemnity claim was triggered when Emerson filed its contribution claim against Panatrol. Emerson filed its claim against Panatrol in Texas, and not Illinois or Missouri. The controllers were components of a product sold in Texas and alleged to have caused serious damages in Texas. The underlying product liability lawsuit is on-going in a Texas court and the same Texas court will determine Emerson’s contribution claim against Panatrol. Thus, the circumstances of this case lead us to conclude that Texas has a materially greater interest than Illinois or Missouri in deciding whether Emerson must indemnify Pana-trol.

Finally, we determine whether application of Illinois or Missouri law would be contrary to fundamental policy of Texas. “[T]he focus is on whether the law in question is a part of state policy so fundamental that the courts of the state will refuse to enforce an agreement contrary to that law, despite the parties’ original intentions, and even though the agreement would be enforceable in another state connected with the transaction.” DeSantis, 793 S.W.2d at 680. Before the adoption of the Products Liability Act, Texas common law placed an onerous burden on sellers to prove a product defective before having a right of indemnity against manufacturers. Freightliner Corp. v. Ruan Leasing Co., 6 S.W.3d 726, 729 (Tex.App.-Austin 1999), aff'd sub nom., Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex.2001). Sellers were required to bring an entirely separate action against manufacturers to prove the product was defective. See Freightliner Corp., 6 S.W.3d at 729. The Act protects innocent sellers; and it places primary liability on manufacturers, who are usually in a better position to recognize and remedy defects. See id.; see also Fitzgerald, 996 S.W.2d at 868-69 (broadly interpreting manufacturer’s duty to indemnify sellers, even sellers not in chain of distribution). We conclude the law governing indemnification of innocent sellers is fundamental policy in Texas, and to apply the law of another state under the circumstances of this case would be contrary to that policy.

For these reasons, we conclude that Emerson’s obligation, if any, to indemnify Panatrol must be judged by Texas law.

Indemnifícation under the Products Liability Act

“A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently Hable.” Tex. Crv. PRAC. & Rem.Code Ann. § 82.002(a). Under section 82.002, a manufacturer is required “to indemnify an innocent seller for certain damages and litigation expenses arising out of a products liability action, but ... sellers [are required] to bear the damages and expenses for losses they cause.” Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 88 (Tex.2001). Emerson argues that the only claim asserted against Panatrol is that Pa-natrol is independently liable to plaintiffs based on its role as designer and manufacturer of the fryer’s control panel. Emerson insists it did not sue Panatrol for any defect in the Emerson temperature controller; and it did not contend Panatrol, as the designer and/or manufacturer of the fryer’s control panel, would be liable for any defect in the Emerson temperature controllers. Therefore, according to Emerson, because Panatrol faces no liability as a seller of Emerson’s temperature controllers, Panatrol is not entitled to indemnification under the Act.

The Meritor Court construed the language in section 82.002(a) as suggesting “that we are to include all direct allegations against the seller that relate to plaintiffs injury as part of the ‘products liability action’ and that we exclude only those losses ‘caused by’ the seller.” Id. at 90. The Court stated, “In using the phrase ‘caused by,’ rather than ‘allegedly caused by,’ the Legislature indicated that a mere allegation that the seller was negligent would not suffice to invoke the exception!, and] the manufacturer’s ‘duty to indemnify’ ... applies regardless of outcome.... ” Id. at 91. The Supreme Court concluded that the exception to a manufacturer’s duty to indemnify applies only upon a finding that the seller was independently liable. Id. The Court held that “while the manufacturer’s duty to indemnify the seller is invoked by the plaintiffs pleadings and joinder of the seller as defendant, the exception to that duty is established by a finding that the seller’s independent conduct was a cause of the plaintiffs injury.” Id.

Here, it is true the plaintiffs did not allege liability on Panatrol’s part. However, Emerson has done so. Emerson sued Panatrol for contribution to the extent the plaintiffs attack the design or manufacture of the temperature controllers based on the design and manufacturer of the fryer or its control panel. Under the Act, anyone who qualifies as a “seller” may seek indemnification, subject to certain limitations listed in section 82.002(a). Fitzgerald, 996 S.W.2d at 867. A seller is anyone who “is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.” Tex. Civ. PRAC. & Rem.Code Ann. § 82.001(3). The Fitzgerald Court held that the Act did “not explicitly require that the seller be proven to have been in the chain of distribution.” Fitzgerald, 996 S.W.2d at 867 (seller sold product but not the actual product used by plaintiff). Under this definition, Panatrol qualifies as a seller.

If the plaintiffs are successful in establishing that Emerson’s temperature controllers were defective and the defect was the proximate cause of plaintiffs’ damages, Panatrol will have expended costs in defending itself in a lawsuit filed against it by the manufacturer of the defective product. Panatrol’s court costs, other reasonable expenses, and reasonable attorney’s fees are losses included within the scope of section 82.002. See Tex. Civ. Prac. & Rem. Code Ann. § 82.002(b). On the other hand, as we have already noted, the issue of whether Panatrol may be found liable for a defectively designed or manufactured control panel remains to be tried. Therefore, if Emerson is successful in establishing that Panatrol’s control panel was defective and the defect was the proximate cause of plaintiffs’ damages, then Panatrol is not an “innocent seller” 'within the scope of section 82.002 and the exception to Emerson’s duty to indemnify applies. Because a fact issue remains on Emerson’s duty to indemnify, we conclude that Emerson did not establish its entitlement as a matter of law to summary judgment on Panatrol’s indemnity claim.

CONCLUSION

We reverse the trial court’s summary judgment in favor of Emerson and we reverse the trial court’s summary judgment in favor of Panatrol. We remand the cause to the trial court for further proceedings.

      . In its motion for summary judgment on plaintiffs’ claims, Emerson argued that as a producer of a component part, it cannot be held liable for the defective design, manufacture, or marketing of the turkey fryer as a whole. Emerson also asserted "the physical evidence conclusively establishes that [plaintiffs] cannot prove causation between the controllers and the fire.” Emerson’s argument was premised on its contention that plaintiffs' employees disconnected the temperature controllers; therefore, the controllers could not have caused the fire.

      . The needs of the interstate and international systems are not implicated in this case. The parties have not identified any such needs pertaining to the issue in this case, and we are not aware of any.