author: ADELE HEDGES, Chief Justice.

text:
    John WORLDPEACE, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 14-03-01339-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 3, 2005.
    Rehearing Overruled Jan. 12, 2006.

      John WorldPeace, Houston, pro se.

      Jerald Grimes Molleston, Jr., Houston, Linda Acevedo, Austin, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

ADELE HEDGES, Chief Justice.

John WorldPeace appeals from the trial court’s judgment disbarring him. The Commission for Lawyer Discipline filed a petition alleging professional misconduct against WorldPeace in relation to his representation of five clients: Johnell Collins, Helene Fraser-Nash, Darlene A. Williams, John Lynch, and John A. Lang. The allegations included that he neglected legal matters, failed to keep clients informed, failed to keep funds segregated, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, failed to timely respond to complaints filed with the district grievance committee, and failed to furnish information sought by the committee. A jury found WorldPeace guilty of professional misconduct in relation to each client except Lynch. The trial judge then entered a judgment disbarring WorldP-eace and enjoining him from the practice of law.

WorldPeace also filed a number of counterclaims and third-party claims. As will be discussed in detail below, the trial court considered the counterclaims separately and granted summary judgment on them favoring the Commission; the court also severed the third-party claims into an independent action with a new docket number.

On appeal, WorldPeace raises twenty-five issues, and although we will address each issue, for organizational purposes, we group our analysis into the following six general categories: (1) addition of complaints by different complainants to the disciplinary petition after it was filed with the Texas Supreme Court Clerk, (2) inclusion of injunctive language in the judgment, (3) imposition of restitution as a sanction, (4) finality of the judgment, (5) claims relating to the court’s orders, and (6) alleged constitutional violations by this court. We modify the judgment of disbarment and, as modified, affirm.

I. Adding Complaints by Different Complainants

In his first four issues, WorldPeace contends that the trial court erred in permitting the Commission to add the complaints of additional complainants to the disciplinary petition instead of requiring it to file new petitions with the supreme court clerk. WorldPeace further maintains that this procedural error prevented the trial court, and thus this court, from obtaining jurisdiction over the additional complaints.

Procedurally, once the Commission has recommended disbarment after hearings, a respondent attorney may elect a trial de novo (as WorldPeace did here) under Rule 2.14 of the Texas Rules of Disciplinary Procedure. Tex.R. Disciplinary P. 2.14, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A-1 (Vernon 1998). Under Rule 3.01, the Commission must then file a disciplinary petition with the supreme court clerk. Id. 3.01. The petition must include a description of the conduct giving rise to the allegations. Id. 3.01D. Upon receipt of the petition, the clerk brings it to the attention of the supreme court, which must then appoint a district judge to preside over the proceedings. Id. 3.02.

Here, the original disciplinary petition filed by the Commission with the supreme court clerk included only the complaints raised by complainant Collins. After the case was assigned to a court and a district judge, the Commission filed an amended petition adding the Fraser-Nash, Williams, Lynch, and Lang complaints. WorldPeace contends that complaints by different complainants cannot be added to a petition that has already been filed and assigned; instead, he argues, such complaints must be raised in wholly new petitions filed with the clerk. We disagree.

As stated, Rule 3.01 requires that a petition be filed with the clerk when a respondent attorney elects for trial de novo. Id. 3.01. It also provides certain requirements for disciplinary petitions. Id. 3.01D. However, it does not expressly refer to subsequent amendment of the petition or the addition of complaints by different complainants. Nor would a requirement that additional complaints be filed in new petitions serve any discernable purpose. WorldPeace does not offer any authority or cognizable policy rationale for requiring new petitions to be filed with the clerk, and we discern no such rationale. To the contrary, concerns of judicial economy clearly suggest that new petitions should not be required. Accordingly, we believe that the addition of complaints by different complainants after a petition has been assigned does not violate the letter or the spirit of the Rules.

Furthermore, Rule 3.08B of the Rules of Disciplinary Procedure states that the Rules of Civil Procedure apply in disciplinary proceedings except as varied by the Rules of Disciplinary Procedure. Id. 3.08. Rule 51(a) of the Rules of Civil Procedure permits a party to join as many claims as it may have against the opposing party. Tex.R. Civ. P. 51(a); see also Allison v. Ark. La. Gas Co., 624 S.W.2d 566, 568 (Tex.1981) (holding that matters of joinder are within the trial court’s discre tion, and its decision will not be reversed absent an abuse of that discretion); Varme v. Gordon, 881 S.W.2d 877, 882 (Tex.App.Houston [14th Dist.] 1994, writ denied) (stating that trial courts have “a great deal of discretion in matters of joinder” under Rule 51(a)). Because the Rules of Disciplinary Procedure do not clearly vary the practice of permissive joinder of claims under Rule 51(a), that rule governs the joinder of claims in disciplinary actions. Cf. Diaz v. Comm’n for Lawyer Discipline, 953 S.W.2d 435, 437 (Tex.App.-Austin 1997, no pet.) (citing Rule 51(a) and rejecting the argument that the Commission could not assert additional violations not raised in original complaint). WorldPeace does not dispute that joinder was proper under Rule 51(a). Accordingly, we hold that the trial court did not abuse its discretion in permitting the additional complaints to be added to the existing petition. We overrule WorldPeace’s first four issues.

II. Injunctive Language

In his fifth and sixth issues, WorldPeace contends that the judgment does not conform to the pleadings because it grants injunctive relief to the Commission when the Commission did not plead for such relief. In his seventh issue, WorldPeace contends that the judgment is void because it does not include specific language regarding injunctive relief from Rule 3.11. Tex.R. DISCIPLINARY P. 3.11. We will address the fifth and sixth issues first.

Generally, a trial court’s judgment must conform to the pleadings filed in the case. Tex.R. Civ. P. 301. Specifically, a trial court cannot grant relief that is not supported by the pleadings. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). The ultimate purpose of pleadings is to give the adversary parties notice of each others’ claims and defenses and the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex.1991). Pleadings should generally be construed as favorably as possible to the pleader. Gulf, C. & S.F. Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963).

WorldPeace is correct that the Commission did not expressly use the terms “injunction” or “injunctive relief’ in its petition. It is clear, however, and WorldPeace acknowledges, that the Commission did plead for his disbarment. Under Rule 3.11 of the disciplinary rules, a sanction of disbarment requires the trial court to enjoin the responding attorney from practicing law or holding himself out as an attorney eligible to practice law. Tex.R. DISCIPLINARY P. 3.11. Thus, to plead for disbarment is necessarily to plead for injunctive relief because the very essence of a disbarment is that the person is barred (i.e., enjoined) from practicing law. See id. Consequently, the Commission’s pleadings gave adequate notice that it was seeking injunctive relief, and the injunctive language in the judgment could not have taken WorldP-eace by surprise. See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424-25 (Tex.App.-Dallas 2004, no pet.) (holding that pleading supported judgment and gave fair notice of claim against party even though it did not include specific prayer for the relief granted); cf. Perez, 809 S.W.2d at 218. Because the judgment conforms to the pleadings, WorldPeace’s arguments to the contrary are without merit. We overrule WorldPeace’s fifth and sixth issues.

In his seventh issue, WorldPeace contends that the judgment is void because it does not include verbatim the language from Rule 3.11. The judgment states that WorldPeace is “permanently enjoined from practicing law in Texas [and] from holding himself out as an attorney.” WorldPeace complains that the judgment does not quote Rule 3.11 exactly in that (1) it adds the word “permanently” at the beginning of the quoted phrase, and (2) it omits the clause “eligible to practice law during the period of disbarment” from the end of the phrase. WorldPeace postulates that by this addition and this omission, the trial court’s judgment prevents him from ever seeking reinstatement. See generally Tex.R. DisciplinaRy P. 11.01-11.08 (governing reinstatement after disbarment or resignation). While we do not necessarily agree that the trial court erred in its choice of language in the judgment, in the interest of clarity, we sustain issue seven in part and modify the judgment. The judgment is modified by deleting the word “permanently” from the passage excerpted above and inserting the phrase “eligible to practice law during the period of disbarment” at the end of the passage.

III. Restitution

In his eighth through eleventh issues and fifteenth through eighteenth issues, WorldPeace attacks the trial court’s grant of restitution to four of the complainants. His issues pertain to (1) the doctrine of res judicata as a bar to restitution, (2) the lack of a jury question relating to three complainants, (3) the effect of the severance of his alleged counterclaims for fees, and (4) the prerequisite of disbarment to restitution.

WorldPeace first argues that the doctrine of res judicata bars the award of restitution to Collins. Prior to institution of the current disciplinary proceedings by the Commission, WorldPeace had filed suit against Collins for payment of fees for his representation of Collins. WorldPeace now argues that any claim by Collins (or by the Commission on Collins’s behalf) is barred by res judicata because it would have constituted a compulsory counterclaim in the prior suit, which Collins did not raise. See generally Tex.R. Civ. P. 97(a) (governing compulsory counterclaims).

Res judicata is an affirmative defense, which the proponent has the burden to plead and prove. Welch v. Hrabar, 110 S.W.3d 601, 606 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). Although WorldPeace pleaded res judicata regarding the Collins complaint, the issue was not submitted to the jury, and the trial court did not make a finding on the issue. Consequently, WorldPeace’s argument can only be that he proved res judicata as a matter of law. See Tex.R. Civ. P. 279 (providing that all claims and defenses not submitted to the jury and not conclusively proven are waived); see also City of Keller v. Wilson, 168 S.W.3d 802, 48 Tex. Sup.Ct. J. 848, 850-64, 2005 WL 1366509, at *2-14 (June 10, 2005) (providing standards of review in legal sufficiency challenges). Because no reporter’s record has been filed in this appeal, we cannot tell what proof, if any, WorldPeace offered during trial to establish res judicata. See Faubion v. Comm’n for Lawyer Discipline, 79 S.W.3d 264, 265 (Tex.App.-Houston (14th Dist.] 2002, no pet.). Furthermore, WorldPeace does not cite to any proof in the clerk’s record which would establish res judicata, and our review of the clerk’s record has revealed none.

On appeal, WorldPeace requests that we judicially notice the prior lawsuit involving Collins. Even if we were to do so, our notice could not satisfy WorldPeace’s burden of proof in the trial court. See Lexington Ins. Co. v. Gray, 775 S.W.2d 679, 688-89 (Tex.App.-Austin 1989, writ denied) (holding that res judicata defense, based on theory that cause of action was a compulsory counterclaim in prior lawsuit, could not be raised for first time on appeal); Berry v. Berry, 780 S.W.2d 846, 849 n. 3 (Tex.App.-Dallas 1989) (holding that res judicata cannot be raised for first time on appeal), rev’d, on other grounds, 786 S.W.2d 672 (Tex.1990). In various motions to vacate, modify, and clarify judgment, filed below, WorldPeace had also requested that the trial court judicially notice the file in the prior lawsuit. However, WorldPeace does not claim on appeal that the trial court erred in refusing to judicially notice the file. A court cannot take judicial notice of the records of another court in another case unless a party provides proof of those records. Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 251 (Tex.App.Houston [14th Dist.] 2000, no pet.); see also Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 94-95 (Tex.App.-Houston [1st Dist.] 1991, no writ) (holding that there was no evidence of collateral estop-pel because party failed to provide trial court with certified copy of petition from prior lawsuit). WorldPeace does not cite to any proof that he provided the trial court regarding the prior lawsuit, and we have discovered none in the record. WorldPeace has failed to show that he conclusively proved his res judicata affirmative defense. Accordingly, we overrule issue eight and issues fifteen through eighteen.

WorldPeace next argues that the awards of restitution for Fraser-Nash, Williams, and Lang were improper because no issue was submitted to the jury regarding funds of those complainants. He asserts that because restitution can be awarded under Rule 3.12 only for misapplication of funds, the trial court was required to submit such an issue to the jury prior to awarding restitution. Tex.R. DISCIPLINARY P. 3.12. This argument is incorrect for two reasons. First, the court would not have to submit a jury issue on misapplication of funds if the evidence conclusively demonstrated a misapplication of funds in regard to these complainants. See Tex.R. Civ. P. 279. WorldPeace does not address this possibility. Second, the Rules of Disciplinary Procedure do not limit restitution awards to situations involving the misapplication of funds. Rule 3.12, cited by WorldPeace, requires restitution in cases involving the misapplication of funds, but it does not prohibit that remedy in other situations. Instead, restitution appears to be a generally available sanction. Rule 1.06 defines “sanction” under the rules so as to include restitution as an “ancillary requirement.” Id. 1.06T(a). Rule 3.09 states that when the respondent’s conduct is found to constitute “Professional Misconduct, the court shall determine the appropriate Sanction or Sanctions to be imposed.” Id. 3.09. “Professional Misconduct” is not limited to conduct involving the misapplication of funds. See id. 1.06Q (defining “Professional Misconduct”). Thus, the trial court had discretion to award restitution notwithstanding the lack of a finding on misapplication of funds. WorldPeace’s ninth issue is overruled.

Next, WorldPeace contends that Lang should not have been awarded restitution after WorldPeace’s counterclaim against him for fees was severed. Beyond stating this contention as an issue, WorldPeace offers no argument or citations to the record or to authority. He has therefore waived this contention. See Tex. R.App. P. 38.1(h). Accordingly, we overrule issue ten.

Lastly, WorldPeace contends that the trial court could not have properly awarded restitution in the absence of disbarment. Again, except for stating this contention in a point of error, WorldPeace offers no argument or citations to the record or to authority. He has therefore waived this contention. See id. Moreover, because we affirm the trial court’s disbarment of WorldPeace, this contention appears moot. Accordingly, we overrule issue eleven.

IV. Finality

In issues twelve, thirteen, and fourteen, WorldPeace contends that the trial court has not issued a final, appeal-able order because it has not disposed of all causes of action and parties in the lawsuit. In issue twelve, WorldPeace specifically contends that the judgment of disbarment did not constitute a final, appeal-able order. The judgment incorporates by reference an order severing certain third-party claims by WorldPeace against Lang and Apodaca and an order granting the Commission’s motion for summary judgment in regard to counterclaims raised by WorldPeace. WorldPeace argues that these three orders—the order of severance, the summary judgment order, and the judgment of disbarment—do not make sense when read together and do not account for all causes and parties, especially certain third-parties, third-party claims, and counterclaims. We disagree. The judgment of disbarment clearly explains that prior to trial, the court severed WorldPeace’s third party claims against Lang and Apodaca. The severance order itself states that these claims were made the subject of an independent action with a new docket number. The judgment of disbarment further states that the court considered WorldPeace’s counterclaims separately from the Commission’s allegations of misconduct and granted summary judgment against those counterclaims. The summary judgment order confirms this disposition. The remainder of the judgment concerns the findings of the jury and the holdings of the trial court in relation to the Commission’s misconduct allegations and the remedies therefor.

The court’s orders and judgment are clear — the claims that were severed into a new action were the third-party claims against Lang and Apodaca, and the claims considered in a separate trial (and on which summary judgment was granted) were WorldPeace’s counterclaims. Although WorldPeace suggests that the trial court’s orders do not correspond with what the court represented it was going to do prior to trial, because no reporter’s record was supplied in this case, we cannot determine what representations the court may have made. See Faubion, 79 S.W.3d at 265. The disposition of all claims and parties is clear from the record we have before us.

Under issue twelve, WorldP-eace specifically argues that the following matters were not disposed of in the dispos-itive documents: (1) his third party claim against Collins and (2) his addition of the Texas Attorney General as a party. To the contrary, the dispositive documents clearly disposed of all causes of action and parties properly before the court at the time the documents were signed on August 27, 2003. The judgment incorporates the summary judgment order, which states that the court had not granted leave to file any pleadings other than those named in the order and, specifically, had not granted leave to file pleadings after the date of submission, July 28, 2003. WorldPeace filed supplemental pleadings on August 5 and August 13, adding, respectively, the Collins claim and the attorney general claims. WorldPeace argues that because he filed these documents prior to the signing of the dispositive documents, the court was required to either permit the additional claims in the main lawsuit or add them to the claims that were being severed. However, he offers no argument or authority as to why this argument should prevail. See generally Tex.R.App. P. 38.1(h) (requiring that appellant provide “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). Trial courts have considerable discretion in managing their dockets, including setting reasonable time limitations for filing and amending pleadings. See Cont’l Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 790-91 (Tex.App.Houston [14th Dist.] 2001, no pet.); Cruz v. Morris, 877 S.W.2d 45, 47 (Tex.App.-Houston [14th Dist.] 1994, no pet.). Because WorldPeace offers no explanation or authority as to how the trial court allegedly abused its discretion regarding the Collins and attorney general claims, we find his conclusory argument without merit. Issue twelve is overruled.

In issue thirteen, WorldPeace complains that (1) certain causes of action and defenses raised in his pleadings were not addressed in the summary judgment order, tried to the jury, or severed; and (2) the trial court abused its discretion in granting a no-evidence summary judgment against certain of his claims because the motion did not list the elements for each cause of action on which the Commission alleged there was no evidence. Based on these two allegations, WorldPeace contends that the resulting judgment of disbarment was interlocutory and therefore was not ripe for appeal, citing Rule 301 of the Rules of Civil Procedure. TexR. Civ. P. 301.

Regarding the first complaint, WorldPeace contends that certain causes of action and defenses were not expressly disposed of by the severance, the trial, or the summary judgment. WorldPeace lists among these causes and defenses his (1) “suit within a suit” defense, (2) counterclaim for violation of his right against self-incrimination, (3) res judicata affirmative defense, and (4) defense and counterclaim regarding multiple complainants in one proceeding. The trial court considered only WorldPeace’s counterclaims separately, not his defenses. Therefore, his defenses would have had to have been considered, if at all, during the jury trial. Under Rule 279 of the Rules of Civil Procedure, any defenses existing at the time of trial (ie., that have not been otherwise disposed of, separated, or severed) are waived unless conclusively proven or at least one element of which is submitted in the jury charge. Id. 279. WorldPeace makes no argument that any of these defenses were either conclusively proven or submitted to the jury in any form. Thus, these defenses were waived.

Regarding his alleged counterclaim for violation of his right against self-incrimination, WorldPeace cites a portion of his pleadings that appears to be a defensive argument concerning allegations under Rule 804 of the Texas Disciplinary Rules of Professional Conduct. Tex. DisciplinaRY R. PROf’l Conduct 804, reprinted in Tex. Gov’t Code Ann., T. 2, subt. G App. A, Art 10, § 9 (Vernon 2005). Unlike the constitutional claims discussed below, the heading of this section does not identify it as a counterclaim but merely says “Regarding Rule 801 and 804 TDRPC.” Further, the arguments are clearly made as explanations for WorldPeace’s conduct, not as affirmative counterclaims. Accordingly, we find that WorldPeace did not plead a cause of action based on any alleged violation of his right against self-incrimination.

In regards to his alleged counterclaim for “multiple complainants in one disciplinary proceeding,” WorldPeace provides no citation at all. Nowhere in his 62-page petition does WorldPeace raise what he denotes on appeal as a counterclaim regarding this issue. Because (1) the defenses WorldPeace identifies were waived at trial, and (2) he did not plead the counterclaims he identifies, WorldPeace’s argument that the judgment of disbarment was not final because the motion for summary-judgment failed to address certain defenses and counterclaims is without merit.

WorldPeace’s second argument under issue thirteen is that the Commission did not list in its motion the elements for each cause of action on which it alleged there was no evidence. Because of this omission, he contends, the summary judgment order could not dispose of those claims, and therefore, the judgment of disbarment was interlocutory. However, the Texas Supreme Court has made it clear that finality is assessed based on whether the order or judgment disposes of the entire case and not on whether there was an adequate motion or other legal basis for the disposition. See Ritzell v. Espeche, 87 S.W.3d 536, 537-38 (Tex.2002); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex.2001). Thus, in considering finality, we do not look to the analytical sufficiency of the motion for summary judgment to determine whether the summary judgment order disposed of WorldP-eace’s claims; rather, we look to the summary judgment order itself. In this case, the summary judgment order granted the motion for summary judgment on all causes of action identified therein. Accordingly, WorldPeace’s arguments that the judgment of disbarment was interlocutory because the trial court improperly granted the motion for summary judgment is without merit. We overrule issue thirteen.

In issue fourteen, WorldPeace contends that because the Commission’s motion constituted general demurrer, the summary judgment order could not have properly disposed of all claims attacked in the motion; therefore, he argues, the judgment of disbarment was interlocutory. See Tex.R. Civ. P. 90 (prohibiting use of general demurrers). He maintains that the Commission wrongly stated in its motion that the only causes of action he could raise for constitutional violations would fall under Section 1983. 42 U.S.C.A. § 1983 (West 2003). He asserts that his claims were actually state law claims seeking only injunctive relief, citing City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex.1995), et al. Although it is unclear exactly what WorldPeace is attempting to argue, he appears to suggest that because the Commission asserted in its motion that the only constitutional claims he could bring would be under Section 1983, this statement was tantamount to saying that he had not stated any other type of claim, thus transforming the motion into a general demurrer. We do not read the motion in such a strict light. In context, the statement appears to be less an attack on any state law cause of action and more an attempt to identify the basis for WorldPeace’s causes of action. Clearly, at no point in the motion does the Commission suggest that any of WorldPeace’s causes of action should be dismissed because of a failure to state a cause of action. Further, since the motion identifies each of' WorldPeace’s causes of action verbatim from the language he used, it .is clear that the motion attacked each of these causes of action, and thus, the summary judgment order disposed of each of the causes of action. Accordingly, the judgment of disbarment was not interlocutory. We overrule issue fourteen.

V. Claims Regarding the Trial Court’s Orders

In issues nineteen through twenty-four, WorldPeace presents a hodge-podge of arguments relating to the dispository documents: the order of severance, the summary judgment order, and the judgment of disbarment. As indicated below, we have already addressed the merits of many of these issues in our discussion of issue twelve above.

In issue nineteen, WorldPeace contends that the trial court abused its discretion in refusing to clarify its order of severance because it conflicts with the summary judgment order and judgment of disbarment. However, as discussed above, the order of severance is clear in regard to which causes it severed, and it comports with the summary judgment order and the judgment of disbarment. We overrule issue nineteen. In issue twenty-four, WorldPeace contends that the judgment of disbarment does not make sense. As also discussed above, the judgment does make sense, and, by incorporation of the severance order and summary judgment order, it disposes of all causes of action and parties in the lawsuit. Accordingly, issue twenty-four is overruled.

In issue twenty, WorldPeace contends that the trial court abused its discretion in carelessly using the legal terms “sever” and “separate” in an oral pre-trial ruling. WorldPeace asserts that the trial court misused or confused these terms when it discussed (1) severing his claims against Lang and Apodaca and (2) considering his counterclaims separately from the rule violations. WorldPeace acknowledges, however, that there is no re-porter’s record before this court referencing the alleged misuse of these terms; thus, we cannot address the merits of WorldPeace’s arguments. See Faubion, 79 S.W.3d at 265. Further, WorldPeace intimates that the Commission’s motion for severance was confusing. As discussed above, we find that the trial court’s order of severance and judgment of disbarment incorporating the severance are clear. Accordingly, issue twenty is overruled.

In issue twenty-one, WorldPeace contends that the trial court erred in considering the Commission’s motion for summary judgment because it was filed with an incorrect cause number. However, WorldPeace offers no argument or citations to the record or to authority in support of this contention. Accordingly, it is waived. See Tex.R.App. P. 38.1(h). Issue twenty-one is overruled.

In issues twenty-two and twenty-three, WorldPeace argues that the trial court erred in severing his allegedly compulsory counterclaims against Lang and Apodaca. The Rules of Civil Procedure define “compulsory counterclaim” as

any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. ...

Tex.R. Crv. P. 97(a). Lang and Apodaca were not parties to the suit until WorldP-eace filed his alleged counterclaims against them for quantum meruit (payment of fees). To get around this fact, WorldP-eace asserts that in prosecuting the rules violations based on Lang’s and Apodaca’s complaints, the Commission “stepped into the shoes” of Lang and Apodaca for all purposes connected to the underlying facts. Thus, WorldPeace concludes, his claims against Lang and Apodaca were actually compulsory counterclaims. He cites Rule 4.06(a) of the Rules of Disciplinary Procedure in support of his argument that the Commission takes the place of the complainants in the suit. Tex.R. DISCIPLINARY P. 4.06(a). Although the Rule does require the Commission to exercise “all rights characteristically reposed in a client,” it clearly limits the context to “lawyer disciplinary and disability proceedings only.” Id. Thus, the Commission is not empowered to, and does not, “step into the shoes” of the complaining witness for all purposes pertaining to the responding attorney’s representation of the complaining witness.

Furthermore, Rule 15.05 provides that a judgment from a disciplinary proceeding is to have no res judicata effect against later claims raised by either the complaining witness or the responding attorney. Id. 15.05. The doctrine of res judicata bars a party who fails to assert a compulsory counterclaim in one action from asserting that claim in a later action. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206-07 (Tex.1999). Since, under Rule 15.05, WorldPeace would not be barred by res judicata from filing his claims against Lang and Apodaca in a separate action, these claims should not be considered compulsory counterclaims. WorldPeace’s argument that the trial court erred in severing his claims against Lang and Apodaca is based on an incorrect premise. Accordingly, we overrule issues twenty-two and twenty-three.

VI. Constitutional Violations

In issue twenty-five, WorldPeace contends that this court violated his constitutional rights to due process and equal protection by denying his request to obtain a reporter’s record free of charge based on alleged pauper status and by denying his request to exceed the fifty-page limitation on appellate briefs. See generally Tex. R.App. P. 20.1 (governing claims of indigence on appeal); 38.4 (governing length of appellate briefs and providing that appellate court “may” permit a longer brief); Great Am. Mortage Corp. v. Plows, 783 S.W.2d 3, 4-5 (Tex.App.-Fort Worth 1989, order) (discussing reasons for denying request for page extension). Appellant offers no substantive argument, only cursory statements; he also fails to provide citations to the record or to relevant authority for either of his allegations. Consequently, these arguments are not properly briefed. See Tex.R.App. P. 38.1(h). We overrule issue twenty-five.

VII. Conclusion

We modify the trial court’s judgment of disbarment by deleting the word “permanently” from the passage discussed above that enjoins WorldPeace from practicing law in Texas and by inserting the phrase “eligible to practice law during the period of disbarment” at the end of that passage. We affirm the judgment as modified.

      . The Rules of Disciplinary Procedure have been amended effective January 1, 2004. See Tex.R. Disciplinary P., reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A-l (Vernon 2005). However, the present action is governed by the former rules because it was commenced prior to the effective date of the amended rules. See id. 1.04. Accordingly, except for the citations in this footnote and footnote 28 infra, all citations to the rules in this opinion are to the rules in effect at the time this action was commenced.

      . It is important to note that the adding of complaints by additional complainants was in reality the addition of new grounds by the Commission and did not add parties to the lawsuit. See Tex.R. Disciplinary P. 3.01 (providing that petition is filed in the name of the Commission). When the Commission added the additional complaints, the only parties remained the Commission and WorldPeace. It was only later that WorldPeace added certain of the complainants as third party defendants, and these claims were severed by the trial court.

      . In disciplinary proceedings, it is neither unusual for complaints by multiple complainants to be brought in a single action nor rare or inappropriate for disciplinary petitions to be amended after they are assigned to a judge. See, e.g., Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380 (Tex.App.-Dallas 2003, pet. denied) (involving multiple complainants); Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 265 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (permitting trial amendment of petition); Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366 (Tex.App.-Houston [1st Dist.] 1997, no writ) (involving multiple complainants).

      . WorldPeace relies heavily on Weiss v. Commission for Lawyer Discipline, 981 S.W.2d 8 (Tex.App.-San Antonio 1998, pet. denied). In Weiss, the court expressly disagreed with the Diaz court and held that in a trial de novo, the Commission could assert only allegations that were contained in the original complaint and allegations that appeared during the preliminary investigation of the original complaint. Weiss, 981 S.W.2d at 14. In Diaz, the court cited Rule 51(a) and stated that the Commission could join as many claims as it may have. 953 S.W.2d at 437; see also Sandoval v. Comm’n for Lawyer Discipline, 25 S.W.3d 720, 721 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (citing Diaz with approval); Hawkins v. Comm’n for Lawyer Discipline, 988 S.W.2d 927, 939 (Tex.App.-El Paso 1999, pet. denied) (same). These cases, however, dealt with different subject matter than the case before us. Diaz and Weiss dealt with whether the Commission could add allegations that were not among the original complaints filed with the Commission. The issue here is whether the Commission can add complaints from additional complainants to the petition after it has been assigned to a judge. WorldPeace does not contend that the complaints of the additional complainants were not originally filed with the Commission. Thus, neither Diaz nor Weiss is directly applicable.

      . WorldPeace does not assert that he filed special exceptions, and we have not located any in the record.

      . The Perez court stated:
      Ultimately, the purpose of pleadings is to give the adversary parties notice of each parties' claims and defenses, as well as notice of the relief sought. This purpose is served, however, when the defendant pleads a defense or limitation of liability which contemplates a particular remedy; then, the plaintiff is entitled to that relief despite a failure to plead specifically for such relief.
      809 S.W.2d at 218.

      . Collins was ultimately successful in defending against WorldPeace’s claims.

      . In its judgment, the trial court specifically cited Rule 1.06T, and not Rule 3.12, as the basis for the restitution awards.

      . We previously considered and denied WorldPeace’s Motion to Dismiss Appeal for Lack of Jurisdiction, which included many of the same arguments raised in issues twelve through fourteen. WorldPeace's supplemental motions are hereby denied.

      . WorldPeace’s specific arguments regarding finality in relation to the summary judgment order are discussed below under issues thirteen and fourteen.

      . We further note that trial courts have considerable discretion to sever claims, and no motion to sever is necessary for it to do so. Tex.R. Civ. P. 41; Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181, 187 & n. 5 (Tex.App.-Fort Worth 2004, no pet.).

      . Additionally, see the discussion of issue twenty below.

      . For purposes of this discussion, we refer to the order of severance, the summary judgment order, and the judgment of disbarment as "the dispositive documents.”

      .WorldPeace additionally contends under issue twelve that his request for injunctive relief relating to his allegations of constitutional violations was not disposed of by the trial court. However, he also makes this argument under issue thirteen. Because the issue appears more logically addressed under issue thirteen, we will address it in that context and not specifically under issue twelve. See fn.20 infra.

      . WorldPeace also lists an allegedly separate cause of action seeking injunctive relief among those not addressed by the summary judgment. This cause is discussed below as it is more relevant to the second argument under issue thirteen. See fn.20 infra.

      . Specifically, WorldPeace addresses the Commission's allegations under Rule 8.04(a)(8), which states:
      A lawyer shall not ... fail to timely furnish to the Chief Disciplinary Counsel's office or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so.
      WorldPeace asserted in his pleading that he had a constitutional right to remain silent and thus did not violate Rule 8.04(a)(8) by failing to timely furnish information.

      . For example, that section of the pleading concludes: "WorldPeace had a right to remain silent and that is exactly what he did at the grievance portion of the disciplinary process.”

      . The motion makes numerous assertions about issues on which the Commission alleged that WorldPeace could provide no evidence. However, WorldPeace offers no specific analysis of how these assertions were deficient or could not be a basis for granting summary judgment. WorldPeace lists the following causes in regard to this argument: (1) violation of his constitutional right to equal protection, (2) violation of his due process rights, (3) right to an award of attorney's fees, (4) unconstitutional range of punishment, (5) the unconstitutionally oppressive, arbitrary, and capricious Rules of Disciplinary Procedure, and (6) sanctions under Rule 13 and the Civil Practice and Remedies Code.

      . In Lehmann, the supreme court defined the concept of "final but erroneous” to classify summary judgment orders that are facially final but grant more relief than was requested in the motion for summary judgment. 39 S.W.3d at 200.

      . WorldPeace contends that because he had pleaded a cause of action for injunctive relief that was not mentioned in the Commission’s motion, the motion and the order did not reach that cause of action; therefore, he argues, the judgment was interlocutory. However, in his pleading, WorldPeace explicitly tied the request for injunctive relief to his constitutional claims; indeed, he states in his brief that his constitutional claims were always solely injunctive in nature. These are the very claims the Commission addressed in its motion and that, consequently, the trial court disposed of when it signed the summary judgment order. In other words, in disposing of the constitutional claims, the trial court necessarily also disposed of the request for injunctive relief expressly tied to success on those claims.

      .A "general demurrer" is an allegation by a defendant that a plaintiff has failed to state a cause of action in his or her petition. Black’s Law Dictionary 432-33 (6th ed.1990).

      . Indeed, since the trial had already taken place by the time the motion for summary judgment was submitted and the Commission had, in effect, completed the actions that WorldPeace contended violated his constitutional rights, it would have been logical for the Commission’s attorneys to conclude that WorldPeace’s constitutional claims were for damages under Section 1983 instead of for injunctive relief. WorldPeace also raised each of these claims as defenses available at trial. Thus, it is unclear why he would raise the claims as separate causes of action seeking an injunction instead of as Section 1983 claims for damages.

      . WorldPeace did attach to his brief what purports to be an excerpt from a reporter’s record in the case below. However, we cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed. Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 342 n. 2 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

      . See fn.ll supra.

      . A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990); Aviation Composite Technologies, 131 S.W.3d at 188.

      . It should be noted that WorldPeace actually styled the claims against Lang and Apodaca as third-party claims and not counterclaims.

      . It should also be noted that Rule 4.06(a) does not impose the duties and obligations of a client on the Commission; for example, the rule presumably would not support holding the Commission liable for unpaid fees.

      . In the current version of the Rules of Disciplinary Procedure, this provision is now contained in Rule 15.03. TexR. Disciplinary P. 15.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A-l (Vernon 2005).

      . Stated another way, the fact that Rule 15.05 specifically provides that disciplinary proceedings do not prevent the lawyer and his client from subsequently suing each other based on the same facts underlying the disciplinary proceeding strongly supports the conclusion that Rule 4.06(a) does not mean that the Commission steps into the shoes of the complaining witness for purposes of compulsory counterclaims.


source: Caselaw Access Project

author: RICHARD H. EDELMAN, Justice.

license: Public Domain

text:
    Cheol Mo JEA, Appellant, v. Sam J. CHO and Mi Rea Cho d/b/a Sams Food Store, Appellees.
    No. 14-04-00015-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 2005.
    Rehearing Overruled Jan. 26, 2006.

      Ashish Mahendru, Houston, for appellant.
    H. Dwayne Newton, Anthony Edward Spaeth, Houston, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

In this personal injury case, Cheol Mo Jea appeals from a judgment notwithstanding the verdict (“JNOV”) on the grounds that: (1) appellees had a duty to provide a safe work place as a matter of law; (2) there was more than a scintilla of evidence showing appellees’ negligent acts were a cause in fact of Jea’s injuries; and (3) there was more than a scintilla of evidence supporting the requisite conduct of a convenience store owner of ordinary prudence in the same or similar circumstances. We affirm.

After being shot during a robbery while working at Sam’s Food Store, Jea filed suit against its owners, Sam J. Cho and Mi Rea Cho d/b/a Sam’s Food Store (collectively, the “store”), asserting a negligence claim. The jury returned a verdict favorable to Jea, but the trial court granted the store’s motion for JNOV based, in part, on the ground that there was no evidence of proximate cause, and entered a take-nothing judgment.

As relevant to this appeal, a JNOV should be entered when the evidence offered to prove a vital fact is no more than a scintilla. City of Keller v. Wilson, 168 S.W.3d 802, 810, 823 (Tex.2005). We thus review a JNOV under a legal sufficiency standard, viewing the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 807.

Jea’s second, third, and fourth issues contend that he presented more than a scintilla of evidence to show that the following negligent acts by the store, in failing to provide a safe workplace, were the cause in fact of his injuries: (1) failing to provide Jea a key to lock the front door from inside the store; (2) failing to provide adequate exterior lighting; and (3) failing to provide a second employee to assist during closing. Because the issue of causation is dispositive of the appeal, we address it first.

A negligence cause of action requires proof of proximate cause, one element of which is cause in fact. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550-51 (Tex.2005). An act or omission is a cause in fact of an injury, if without it, the harm would not have occurred. Id. at 551. Conversely, an act of negligence is not a cause in fact if it does no more than furnish a condition that makes the injury possible. Id. Cause in fact cannot be established by conjecture, guess, or speculation. Id.

Here, Jea testified that, at or immediately before closing time on the night of the robbery, a man and one or two others entered the store. Jea thought they were customers, but one of the men pulled a gun, and they robbed the store, and one of the men shot Jea in the arm.

Jea contends that if he had had a key to lock the door to the store from the inside, then he would have been able to lock the door, count the cash, and close the store without suffering the injury. He similarly argues that with proper exterior lighting, he would have “been more cognizant of the surroundings ... and would have gained vital seconds of notice if he discerned a person was bent on committing criminal activity within the store and potentially injuring [him].” Likewise, Jea asserts that the presence of a second employee would have provided both a deterrent to criminals and another set of watch-fid eyes to warn of potential danger. However, there is no evidence in our record that any of these measures, individually or in combination, would have prevented either the robbery or the shooting that caused Jea’s injury. Although common sense would suggest that employing these measures might have theoretically made the store somewhat more difficult to rob, and possibly even prevented the robbery from occurring in the manner that it did, there is no empirical data, expert opinion, or other evidence that such measures have actually had any effect on preventing or reducing such crimes where they have been implemented, let alone a reasonable probability that this particular robbery or shooting would have been deterred or thwarted by using them. Because Jea’s issues thus fail to demonstrate that his injury would not have occurred but for the alleged omissions by the store, they are overruled, and the judgment of the trial court is affirmed.

SEYMORE, J., concurs in result only.

      . Because the store was a non-subscriber to worker’s compensation insurance, Jea's recovery against it required a showing of negligence. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995).

      . A complaint that an owner failed to provide adequate security against criminal conduct is ordinarily a premises liability claim. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998). However, no error is assigned to the submission of this case on solely a negligent activity theory.

      . On direct examination, Jea testified that the men came into the store while he was in the process of closing the store. However, on cross-examination, Jea acknowledged that the men entered the store while the store was still open for business. Additionally, Jea testified that one of the men had been in the store about 15 minutes before the robbery to buy beer, but had to leave to get his identification. Therefore, when he returned, Jea assumed he was a customer.


author: TERRY McCALL, Justice.

text:
    Fernando MORALES, Appellant, v. MARTIN RESOURCES, INC., Martin Operating Partnership, L.P., and Select Professional Staffing, Appellee.
    No. 11-04-00191-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 1, 2005.

      Kevin B. Miller, Mark A. Cevallos, Law Offices of Miller & Bicklein, P.C., Lubbock, for appellant.
    H.C. Chang, Robert J. Killeen, Jr., Kil-leen & Associates, Houston, D. Bradley Dickinson, Dickinson & Associates, P.C., William E. Reid, Reid & Associates, Dallas, for appellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and McCLOUD, S.J

       Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

   OPINION

TERRY McCALL, Justice.

Fernando Morales was an employee of Select Professional Staffing. Select Professional Staffing placed Morales as a temporary employee with Martin Resources, Inc. Morales injured his left hand while working on a machine at Martin Resources, Inc.’s facility located in Odessa, Texas. Morales brought this action alleging negligence claims against Select Professional Staffing, Martin Resources, Inc., and Martin Operating Partnership, L.P. The Martin entities will be referred to collectively as Martin Resources, Inc. The trial court granted summary judgment to Select Professional Staffing and Martin Resources, Inc., finding that the exclusive remedy provision of the Texas Workers’ Compensation Act (TWCA) barred Morales’s common law claims against them. See TEX. LAB. CODE ANN. § 408.001(a) (Vernon Supp.2005). Because neither Select Professional Staffing nor Martin Resources, Inc. established that they were covered by workers’ compensation insurance, which is necessary to come within the exclusive remedy provision, we reverse the trial court’s judgment and remand the case to the trial court for further proceedings.

Issues Presented

In two points of error, Morales argues that the trial court erred in granting summary judgment to Select Professional Staffing and Martin Resources, Inc. The parties agree that Morales was employed by Select Professional Staffing and Martin Resources, Inc. at the time of the injury. The parties also agree that the Texas Staff Leasing Services Act, TEX. LAB. CODE ANN. § 91.001 et seq. (Vernon 1996 & Pamph. Supp.2005), does not apply in this case. The issue in this appeal is whether Select Professional Staffing and Martin Resources, Inc. established that they were covered by workers’ compensation insurance at the time of Morales’s injury.

The Motions for Summary Judgment

Select Professional Staffing and Martin Resources, Inc. both filed traditional motions for summary judgment asserting that the exclusive remedy provision of the TWCA barred Morales’s claims. Select Professional Staffing asserted that Morales had a third employer, AMS Staff Leasing N.A., Inc., at the time of the injury and that AMS Staff Leasing had workers’ compensation insurance covering all of the employees that it had leased to Select Professional Staffing, including Morales. Select Professional Staffing argued that it had workers’ compensation insurance because it was covered by AMS Staff Leasing’s policy. Martin Resources, Inc. argued that it had workers’ compensation insurance at the time of the injury.

Standard of Review

We will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the non-movant, and determine whether the mov-ant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). A defendant is entitled to summary judgment if it either disproves an element of each of the plaintiffs causes of action or establishes an affirmative defense on each of the plaintiffs causes of action as a matter of law. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

The Exclusive Remedy Provision

The exclusive remedy provision is found in Section 408.001(a) of the TWCA. Section 408.001(a) provides as follows:

Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer ... for ... a work-related injury sustained by the employee.

An employee is covered by “workers’ compensation insurance coverage” if his employer possesses an approved insurance policy covering the payment of workers’ compensation benefits to its employees. TEX. LAB. CODE ANN. § 401.011(44)(A) (Vernon Pamph. Supp.2005); Western Steel Company, Inc. v. Altenburg, 169 S.W.3d 347, 349 (Tex.App.-Corpus Christi 2005, pet’n pending).

The exclusive remedy provision of the TWCA is an affirmative defense. Western Steel Company, Inc. v. Altenburg, supra at 349; Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex.App.-Texarkana 2005, no pet’n). Thus, in the summary judgment context, Select Professional Staffing and Martin Resources, Inc. had the summary judgment burden of proving their exclusive remedy affirmative defense as a matter of law. American Tobacco Company, Inc. v. Grinnell, supra at 425; Science Spectrum, Inc. v. Martinez, supra at 911.

The Texas Supreme Court has recognized that temporary employees, such as Morales, may have more than one employer for the purposes of the TWCA and its exclusive remedy provision. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex.2005); Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134, 144 (Tex.2003). In Garza, the Texas Supreme Court explained as follows:

In Wingfoot, we examined the Workers’ Compensation Act and held that an employee of a temporary employment agency who is “injured while working under the direct supervision of a client company is conducting the business of both the general employer [the temporary employment agency] and that employer’s client.” We further held, based on the provisions of the Act, that the injured “employee should be able to pursue workers’ compensation benefits from either,” and that “[i]f either has elected not to provide coverage, but still qualifies as an ‘employer’ under the Act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in [TEX. LAB.' CODE ANN. § 406.033 (Vernon Pamph. Supp.2005)].”

Garza v. Exel Logistics, Inc., supra at 475. In this case, the parties agree that Morales was an employee of Select Professional Staffing and Martin Resources, Inc. for the purposes of the TWCA.

The exclusive remedy provision applies to employers “covered by workers’ compensation insurance.” Garza v. Exel Logistics, Inc., supra at 474. In Garza, a temporary employment agency placed an employee with a client company. The Texas Supreme Court reversed a summary judgment in favor of thé client company because the company had failed to establish that it was covered by workers’ compensation insurance coverage. The court explained that a temporary employment agency cannot obtain workers’ compensation insurance for a client simply by obtaining coverage for itself. The court held that “two employers cannot agree that one workers’ compensation -policy will name only one employer but cover both.” Garza v. Exel Logistics, Inc., supra at 479. Rather, there must be explicit coverage for both employers. Garza v. Exel Logistics, Inc., supra at 478.

Select Professional Staffing presented an affidavit of Andrew Thomas Price, the risk manager for AMS Staff Leasing, in support of its motion for summary judgment. Price stated, among other things, (1) that Morales was employed by AMS Staff Leasing; (2) that AMS Staff Leasing had leased Morales to Select Professional Staffing; and (3) that, on the date of Morales’s injury, AMS Staff Leasing had workers’ compensation insurance coverage for all employees that it had leased to Select Professional Staffing. Select Professional Staffing also presented the information page for AMS Staff Leasing’s workers’ compensation policy. The page listed “AMS Construction Company, Inc. dba AMS Staff Leasing” as the named insured. There was no summary judgment evidence that Select Professional Staffing was named as an insured under AMS Staff Leasing’s workers’ compensation policy or under any other workers’ compensation insurance policy.

Select Professional Staffing relies on AMS Staff Leasing’s workers’ compensation insurance policy in support of its exclusive remedy provision argument. However, under Garza, Select Professional Staffing had the burden of showing “explicit coverage” for itself. Garza v. Exel Logistics, Inc., supra. Select Professional Staffing did not present any summary judgment evidence showing that it was named as an insured under any workers’ compensation insurance policy; therefore, Select Professional Staffing failed to meet its burden of showing “explicit coverage” for itself. The trial court erred in granting summary judgment to Select Professional Staffing.

Martin Resources, Inc. presented an affidavit of Steven G. Fenner, an underwriting specialist with American International Group (AIG), in support of its motion for summary judgment. Fenner stated that, “[djuring February 2001, Martin Resources, Inc. and its facility in Odessa, Texas, had workers compensation insurance with AIG.” Martin Resources, Inc. also presented an affidavit of Dale Lang-ston, a plant manager for Martin Resources, Inc. Langston stated that Martin Resources, Inc. carried workers’ compensation insurance at the time of Morales’s injury.

Martin Resources, Inc. also submitted a workers’ compensation insurance policy as summary judgment evidence. The policy named “Martin Resource Management Corporation” as the insured and had a policy period from November 30, 2000, to November 80, 2001. A “Martin Resources, Inc.,” located in Kilgore, Texas, was listed in an endorsement to the policy. A “Martin Resource Management Corporation,” located in Odessa, Texas, was also listed in an endorsement to the policy. However, a “Martin Resources, Inc.,” located in Odessa, Texas, was not listed as an insured in the policy or in any endorsement to the policy. Martin Resources, Inc. did not present any summary judgment evidence showing (1) the relationship, if any, between Martin Resources, Inc. in Kilgore and Martin Resources, Inc. in Odessa or (2) the relationship, if any, between Martin Resource Management Corporation and Martin Resources, Inc. in Odessa. In the absence of any evidence explaining the relationship, if any, among these entities, the insurance policy presented by Martin Resources, Inc. created a fact issue as to whether Martin Resources, Inc. had workers’ compensation insurance covering its Odessa facility. Therefore, Martin Resources, Inc. failed to meet its summary judgment burden of establishing that it was covered by workers’ compensation insurance coverage at the time of Morales’s injury. The trial court erred in granting summary judgment to Martin Resources, Inc.

Morales’s points of error are sustained.

This Court’s Ruling

We reverse the trial court’s judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Martin Resources, Inc. apparently merged into Martin Operating Partnership, L.P. after the date of Morales’s injury.

      . The Honorable Gary L. Watkins, Judge of the 244th District Court, granted Martin Resources, Inc.’s motion for summary judgment. Judge Watkins passed away. The Honorable Stacy Trotter succeeded Judge Watkins as the judge of the 244th District Court. Judge Trotter signed a judgment that disposed of the remaining issues and parties before the court giving this court jurisdiction to consider this appeal.


author: JOHN CAYCE, Chief Justice.

text:
    Rodney L. RICH, Appellant, v. The STATE of Texas, State.
    No. 2-01-102-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 1, 2005.

      Robert Ford, Whitney S. Wiedeman, Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallín, Asst. Criminal Dist. Atty. and Chief of the Appellate Section, Danielle A. Legault, Timothy Bednarz, Tiffany Hamilton, Asst. Criminal Dist. Attys., Fort Worth, for appellee.
    PANEL A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
   OPINION ON REMAND

JOHN CAYCE, Chief Justice.

I. Introduction

Rodney L. Rich appeals from his convictions for burglary of a habitation and aggravated assault with a deadly weapon. Appellant complains that the trial court erred by preventing him from asking veni-re members during voir dire about their views on what constitutes reasonable doubt. The State concedes that appellant was entitled to question prospective jurors about their concepts of reasonable doubt but asserts that the trial court’s error in limiting the voir dire was harmless. Because we. agree that the error was harmless, we affirm.

II. Procedural History

In our original opinion, we’ concluded that the error was harmless under appellate rule 44.2(b) after applying the test for individual voir dire examinations set out in Anson v. State. The court of criminal appeals granted appellant’s petition for discretionary review and held that the An-son test is inapplicable to cases in which voir dire is conducted in a group setting rather than individually. Instead, the court of criminal appeals held that we should have conducted our harm analysis in light of the factors applicable to cases involving the erroneous admission of evidence.

The court of criminal appeals then remanded the case to this court for a rule 44.2(b) harm analysis based on those factors, which include: (1) voir dire, (2) the jury instructions, (3) the character of the alleged error and how it might be considered in connection with other evidence in the case, (4) any testimony or physical evidence admitted for the jury’s consideration, (5) the nature of the evidence supporting the verdict, (6) the State’s theory and any defensive theories, (7) closing arguments, and (8) whether the State emphasized the error. After conducting this review, we again conclude that the trial court’s error in limiting appellant’s voir dire was harmless.

III. Analysis

Voir Dire. During voir dire, the trial court refused to allow defense counsel to ask the venire members, “What does ‘reasonable doubt’ mean to you?” Although this limitation on voir dire was improper, the State repeatedly emphasized to the venire members that the State had the burden of proving beyond a reasonable doubt that appellant had committed the charged offenses. The prosecutor explained:

The burden of proof as you probably heard, ... the burden of proof is beyond a reasonable doubt_ [A]s district attorneys [we] have to prove the charges to you beyond a reasonable doubt.
The burden of proof is always on us. It never shifts to the defense. They’re not required to bring forward any witnesses or evidence. They certainly can if they want to, but they’re not required to. So the burden of proof is always on us, and we have to prove the case beyond a reasonable doubt.

Likewise, defense counsel emphasized the State’s duty to prove its case beyond a reasonable doubt, the prosecutor’s duty “to do justice,” and defense counsel’s duty “to zealously represent my client.”

And the reason the law is set up that way, out of that conflict, out of the prosecutor attempting to do justice, bringing the evidence, trying to prove the case to you beyond a reasonable doubt, and myself zealously representing my client, putting the prosecution to the test, making them prove their case beyond a reasonable doubt, out of that conflict is supposed to come the truth.
That’s what we’re here for. We’re here today to find out or being to find out what the truth is in this particular case and what really happened on the day in question....

The trial court also orally instructed the venire members: “You will not be getting any instructions from me as far as specifically what reasonable doubt is. You will be given an instruction as to how you are to consider.”

Jury Instructions. Later, in the court’s charge, the trial court instructed the jury as follows: “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all reasonable doubt concerning the defendant’s guilt.” The court of criminal appeals has held that this instruction is proper.

Character of the Error and How it Might be Considered in Connection With the Evidence in the Case. A defendant is entitled to question venire members to determine how they would apply the State’s burden of proof because such examination seeks to discover a prospective juror’s views on an issue applicable to the ease. A trial court abuses its discretion when it denies defense counsel the right to ask prospective jurors a proper question because it prevents the defendant from intelligently exercising his peremptory strikes.

In this case, appellant was prevented from peremptorily striking venire members based on their individual views of what constitutes reasonable doubt. The venire members were, however, properly instructed several times that the State was required to prove appellant’s guilt beyond a reasonable doubt, and neither the Constitution nor any Texas statute requires that a particular form of words be used in advising the jury what reasonable doubt means — or that reasonable doubt be defined at all. There is no evidence that anyone who sat on the jury was unwilling or unable to follow the reasonable doubt instruction. Further, as we discuss below, the evidence of appellant’s guilt is overwhelming.

Nature of Evidence Supporting Verdict, Including Testimony and Physical Evidence. The events giving rise to the charged offenses occurred during the early morning hours of October 29, 2000. Appellant affirmatively states that he “does not challenge the sufficiency of the evidence” to support his convictions.

Regarding the aggravated assault charge, although appellant requested and received a jury instruction on self-defense, he testified on his own ' behalf at guilt-innocence and admitted that he had stabbed the victim, Shauna Bess. Appellant and Bess, the mother of appellant’s four children, gave conflicting testimony regarding who was the initial aggressor. Bess testified that appellant had attacked her with a kitchen knife; appellant testified that Bess had initially come after him with the knife and cut his hand, but he had wrestled it away from her.

Regardless of how the altercation began, however, appellant admitted that he had stabbed Bess five or six times after disarming her — out of anger, not in self-defense. Appellant testified that he was angry over “[everything she had done to me” — the couple’s stormy romantic relationship and Bess’s alleged cutting of his hand with the knife before he took it from her. Appellant further testified that, after stabbing Bess, he had gone outside and slashed her car tires because “I was mad.” In addition, he acknowledged that Bess had been terrified of him at the time.

With regard to the burglary charge, Bess testified that she and appellant were not living together at the time of the offense. Appellant did not have a key to her home, because she had made him return his keys when he moved out in September 2000 and then had the locks changed. In the early morning hours before the assault, appellant’s mother called and said that appellant was intoxicated and was probably on his way over to Bess’s home. When he arrived at Bess’s home, appellant ran into her car, which was parked in the driveway, and then walked to the front door. When Bess would not let him inside, appellant kicked open the door, splintering the jamb, and went inside. About an hour later, after Bess had attempted to calm appellant down by talking to him, the assault occurred.

Officer Richard Devoe testified that he had conducted a crime scene investigation at Bess’s residence immediately after the alleged offenses had occurred. Officer De-voe testified that he had “found some evidence ... from the front door where it had been broken.” This evidence consisted of what appeared to be a heel print on the door’s exterior near the door knob, a broken piece of the door jamb that had been partially torn loose but was still connected to the door frame, a broken piece of the door jamb that was lying on the porch just in front of the front door, and the striker plate for the door knob — with the screws still in it — that was lying on the driveway fourteen inches to two feet from the front door.

Officer Devoe testified that he photographed this damage, as well as the damage appellant caused by running into Bess’s car and slashing her tires. The photographs were admitted into evidence and published to the jury. Officer Devoe also picked up the broken piece of the door jamb and the striker plate and placed them into an evidence bag.

Appellant testified inconsistently about whether he had a key to Bess’s home at the time of the October 29 incidents, and there is evidence that Bess did not always keep her door locked. Initially, appellant testified that he had returned -his key to Bess when he moved out of Bess’s home in September 2000. Later, however, he testified that he had a key on October 29 because, after Bess had changed the locks in September, she had given him a key to the new lock. He further testified that,, although he was living with his mother at the time, he had spent the night at Bess’s home a week or two before October 29.

Appellant also testified inconsistently concerning whether he had kicked in Bess’s front door on October 29. Appellant admitted running into Bess’s car in her driveway before the assault and slashing her tires afterwards, but he initially denied kicking in the door. Instead, he testified that any damage to Bess’s door had occurred two months earlier, in August 2000, when he had kicked the door in because it was locked and Bess would not let him inside. According to appellant, on October 29 Bess had come out of the house while he was still in the driveway, asked why he had run into her car, and then allowed him to enter her home.

On cross-examination, however, appellant testified that he did not recall whether he had kicked in the door before the assault and that he did not recall making the heel print on the door. He also testified that there “[e]ould be a possibility” that he had kicked in the door when he entered Bess’s home the second time — post-assault after slashing her tires — to get his eldest son.

Closing Arguments. During closing arguments, the defense argued that the State had not proven the charged offenses beyond a reasonable doubt. In response, the State directed the jury’s attention to Bess’s testimony, appellant’s admission that he had stabbed Bess several times and had done it out of anger rather than fear, all the physical evidence that appellant had kicked Bess’s door in on October 29, and appellant’s equivocating testimony concerning whether, or when, he had done so.

IV. Conclusion

In summary, our review of the record shows that, although the trial court improperly limited appellant’s voir dire, the jury was instructed repeatedly that the State had to prove the charged offenses beyond a reasonable doubt. Although the trial court did not give the jury any instructions regarding the definition of reasonable doubt — except that it does not mean beyond all possible doubt — the court of criminal appeals has held that the better practice is not to define reasonable doubt for the jury. Further, there is no evidence that anyone who sat on the jury would have been unable or unwilling to follow the court’s reasonable doubt instruction. Finally, appellant has affirmatively stated on appeal that he does not challenge the sufficiency of the evidence to support his convictions, and there is overwhelming evidence that appellant did, indeed, commit those offenses.

For all of these reasons, we hold that the trial court’s improper limiting of appellant’s voir dire regarding the venire members’ concepts of reasonable doubt did not, under the circumstances of this case, affect appellant’s substantial rights. Accordingly, we disregard the error and overrule appellant’s issue.

Having overruled appellant’s issue, we affirm the trial court’s judgments.

      . See Rich v. State, 114 S.W.3d 54, 57 (Tex.App.-Fort Worth 2003) (citing Anson, 959 S.W.2d 203, 204 (Tex.Crim.App.1997), cert. dism’d, 525 U.S. 924, 119 S.Ct. 290, 142 L.Ed.2d 241 (1998)).

      . Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005).

      . Id. at 577-78.

      . Id.; see also Sanchez v. State, 165 S.W.3d 707, 713 n. 16 (Tex.Crim.App.2005) (citing its opinion in Rich and stating that rule 44.2(b) “is applicable when voir dire is conducted in a group setting and defendant is prohibited from asking a proper question of the panel”).

        . See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002); Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Crim.App.1992).

      . Woods v. State, 152 S.W.3d 105, 115 (Tex.Crim.App.2004), cert. denied, - U.S. -, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005).

      . Barajas, 93 S.W.3d at 38; Woolridge, 827 S.W.2d at 906.

      . Barajas, 93 S.W.3d at 38; Woolridge, 827 S.W.2d at 906-07; Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985).

      . See Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000); see also Hankins v. State, 132 S.W.3d 380, 384 (Tex.Crim.App.) (holding that, because Geesa instruction defining reasonable doubt is no longer required, trial court did not abuse its. discretion in refusing appellant’s request to ask venire members whether they could consider and follow it), cert. denied, 543 U.S. 944, 125 S.Ct. 358, 160 L.Ed.2d 256 (2004).

      .The burglary count of the indictment alleged that appellant
      did intentionally or knowingly, without the effective consent of Shauna Bess, the owner thereof, enter a habitation with intent to commit aggravated assault [and did attempt to commit or commit aggravated assault] and the defendant did use or exhibit a deadly weapon, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury.
      The aggravated assault count of the indictment alleged that appellant
      did intentionally or knowingly cause bodily injury to Shauna Bess by stabbing her with a knife and the defendant did use or exhibit a deadly weapon, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily inju-ry-

      . Appellant’s ten-year-old sister Candace, who often visited Bess, testified that appellant had taken her to Bess’s home on the afternoon before the assault occurred. Candace testified that Bess was not home when they arrived, but the door was unlocked, so Candace and appellant went inside. Bess confirmed that she had returned home to find Candace in her house and that Candace had said she got in because the door was open. Bess testified that she had thought the door was locked when she left but that her brother Randy, who was living with her, must have forgotten to lock it. Doris Rich, appellant’s mother, also testified that she and appellant had dropped Candace off at Bess’s house and that the door had been closed but unlocked.
      None of this evidence, however, is inconsistent with Bess’s testimony that she would not let appellant into her home just before the assault occurred. Moreover, Doris confirmed that she had called Bess in the wee hours of the morning on October 29 to say that appellant was drunk and probably on his way to Bess’s home. Doris testified that she assumed he was headed there because appellant and Doris sometimes spent the night at Bess’s house after they had been out late drinking.

      . Appellant and Bess were still living together at that time. Bess also testified that appellant had kicked in the door, causing damage to the trim, in August 2000. She further testified, however, that appellant had replaced the damaged trim and that, except for a crack in the wall, the damage depicted in Officer Devoe’s photographs was done on October 29.

      . See Paulson, 28 S.W.3d at 573.

      . See Tex.R.App. P. 44.2(b).

      . See id.


text:
    Daniel J. LANGSTON, Appellant, v. GMAC MORTGAGE CORPORATION, Appellee.
    No. 11-04-00277-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 15, 2005.

      Larry D. Robertson, Schulz & Robertson, Abilene, for appellant.
    Robert D. Miller, Big Spring, for other interested party.
    Drew Mouton, Mouton & Mouton, Big Springs, for appellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and, STRANGE, J.
   OPINION

TERRY McCALL, Justice.

This appeal involves the imposition of a real estate lien under the doctrine of equitable subrogation. It arises out of a divorce proceeding which we have previously considered. See Langston v. Langston, 82 S.W.3d 686 (Tex.App.-Eastland 2002, no pet.). In that appeal, we held that the trial court erred by divesting Daniel J. Langston of a tract of land which was his separate property. GMAC Mortgage Corporation (GMAC) intervened in the divorce action after we reversed and remanded the trial court’s division of property. Langston, 82 S.W.3d at 687. GMAC sought to impose a lien on a parcel of real property which was the subject of the previous appeal. The trial court granted GMAC’s motion for summary judgment by imposing a lien on Daniel’s separate real property. We affirm.

Background Facts

During the course of their marriage, Daniel and Wendy Langston entered into a home equity loan agreement with Citizens Federal Credit Union (Citizens) which created a home equity hen against Daniel’s separate real property. As noted in our previous opinion, the trial court divested Daniel of this property by awarding the tract to Wendy. Langston, 82 S.W.3d at 688. The trial court also ordered that Wendy would be responsible for the entire community property debt owed to Citizens.

The event leading to GMAC’s involvement occurred during the pendency of the previous appeal. Wendy refinanced the indebtedness owed to Citizens by obtaining a home equity loan from GMAC. Wendy used the proceeds of the GMAC loan to extinguish the debt owed to Citizens. She executed a written security instrument to establish a first hen on the property in favor of GMAC to secure the loan. GMAC filed its petition in intervention in the divorce action after we remanded the property division to the trial court. GMAC sought a declaration that its real estate hen is enforceable against the property under the doctrine of equitable subrogation even though Daniel did not execute a security instrument in favor of GMAC.

Standard of Review

This appeal involves the review of a traditional motion for summary judgment. We will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmov-ant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979).

Analysis

Under the doctrine of equitable subrogation, a third party who pays a debt at the request of the debtor may under certain circumstances be subrogated to the creditor’s security interest for the debt which has been discharged. First Nat’l Bank of Kerrville v. O’Dell, 856 S.W.2d 410, 415 (Tex.1993). The purpose of the doctrine is to prevent the unjust enrichment of the debtor who owed the debt that is paid. First Nat’l Bank of Kerrville, 856 S.W.2d at 415. The doctrine of equitable subrogation “is not applied for the mere stranger or volunteer who has paid the debt of another, without any assignment or agreement for subrogation, without being under any legal obligation to make payment, and without being compelled to do so for the preservation of any rights or property of his own.” First Nat’l Bank of Kerrville, 856 S.W.2d at 415.

Daniel’s sole appellate issue is directed toward the “volunteer” exception to the equitable subrogation doctrine. He argues that a fact issue exists with regard to whether GMAC voluntarily paid the debt owed to Citizens. Daniel contends that GMAC was not obligated to provide funds for extinguishing the debt owed to Citizens “as far as [he] is concerned.” We conclude that the undisputed facts conclusively establish the existence of GMAC’s lien under the doctrine of equitable subrogation.

The trial court’s previous judgment awarded the tract at issue to Wendy. Accordingly, she was entitled to exercise ownership rights with respect to the property during the pendency of the appeal. See Tex.R.App. P. 25.1(g). During this period, Wendy extinguished the debt she and Daniel owed to Citizens with the proceeds of the loan she obtained from GMAC. GMAC did not voluntarily pay the debt owed to Citizens; it did so at the request of one of Citizens’ debtors. See First Nat’l Bank of Kerrville, 856 S.W.2d at 415. Furthermore, GMAC made the advance with the express agreement that it would have a first lien on the property. As held in Kone v. Harper, 297 S.W. 294, 297 (Tex.Civ.App.-Waco 1927), aff'd sub nom. Ward-Harrison Co. v. Kone, 1 S.W.2d 857 (Tex. Comm’n App.1928, holding approved):

One who advances money to pay off an incumbrance on realty at the instance of either the owner of the property or the holder of the incumbrance, either on the express understanding or under circumstances from which an understanding will be implied, that the advance made is to be secured by a first lien on the land, is not a mere volunteer.

While Daniel did not participate in obtaining the loan from GMAC, he benefitted from the loan because it extinguished the prior lien on the property. Daniel’s sole appellate issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . The record does not indicate that Daniel superseded the previous judgment pursuant to Tex.R.App. P. 24.

      . Even though the tract of real property constituted Daniel’s separate property, both he and Wendy executed the written instrument which created Citizens’ security interest in the property. The instrument specified that Daniel and Wendy possessed the right to grant and convey the security interest created by the document. The instrument further provided that Daniel and Wendy were jointly and severally liable for complying with the document’s terms and that their successors and assigns were also bound.