author: JAN P. PATTERSON, Justice.

text:
    Nicholas James MARINOS, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00622-CR.
    Court of Appeals of Texas, Austin.
    Jan. 13, 2006.
    Rehearing Overruled Feb. 16, 2006.

      Christopher P. Morgan, Rip Collins, Minton, Burton, Foster & Collins, P.C., Austin, for appellant.
    Nicholas James Marinos, Driftwood, pro se.
    Lisa Stewart, Asst. District Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

JAN P. PATTERSON, Justice.

A jury found appellant Nicholas James Marinos guilty of aggravated assault with a deadly weapon, for which the court assessed a five-year prison term. See Tex. Pen.Code Ann. § 22.02 (West Supp.2005). Appellant contends that the evidence is factually insufficient to sustain the guilty verdict. He also asserts that the trial court failed to require a unanimous jury verdict, complains of the denial of a continuance, and urges that he should have been granted a new trial based on newly discovered evidence and ineffectiveness of trial counsel. Because we find no reversible error, we affirm the judgment of conviction.

Background

Appellant and the complainant were divorced in September 1999. Three months later, on December 15, appellant unexpectedly appeared at the complainant’s residence at 8:00 a.m. with Christmas gifts for their two daughters. After the complainant invited him in, appellant told her that he wanted to discuss changing their child custody arrangement. When she told him that she was not interested in reopening that subject, appellant became angry. The complainant asked appellant to leave and stood to open the door. Appellant seized the complainant and began to shock her on the abdomen with a stun gun, a device designed to inflict a strong electric shock.

The complainant testified that the stun gun caused “a horrible pain,” and she fell to the floor. She tried to crawl away as appellant continued to shock her on her arms, legs, and torso. The shocks left the complainant dizzy, breathless, and unable to control her movements. The evidence reflects that appellant shocked the complainant over twenty times until the stun gun malfunctioned or lost its charge.

Appellant then took a plastic' grocery bag from the complainant’s laundry room, placed it over her head, and pressed it against her nose and mouth. The complainant was unable to draw a breath. She clawed at the plastic bag and finally succeeded in tearing it off her head. Appellant took a piece of the torn bag and continued to suffocate the complainant. Appellant held the plastic over the complainant’s mouth and pinched her nose with his fingers. The complainant testified that she drifted in and out of consciousness, became exhausted, and thought she was going to die.

Appellant talked to the complainant throughout the assault. He said “he wanted to hurt me as bad as I hurt him. And that he hated me. And that he wanted to kill me. And he said that he was going to go to Huntsville anyway so he might as well finish what he started.”

The complainant managed to rise to a seated position, place her feet against her refrigerator, and press back against appellant. Appellant released her and suddenly became calm. He told the complainant that he had not intended to kill her, but only to choke her until she passed out. The complainant again asked appellant to leave, and he did so without further incident. The complainant then called the police.

A deputy medical examiner testified that a person deprived of oxygen will experience “brown outs,” lose consciousness within forty-five seconds, and suffer permanent brain damage within four minutes. The witness testified that an obstruction of a person’s airway constitutes an impairment of the person’s physical condition. The witness also testified that a plastic bag, a piece of a plastic bag, and a hand, when used in the manner described in the complainant’s testimony, are capable of causing death or serious bodily injury.

Appellant testified and admitted taking the stun gun to the complainant’s residence. He said that he and the complainant argued about the custody of their children, and that the argument degenerated into a “shouting match.” When she threatened to call the police, they struggled over possession of the telephone and she bit him on the hand. Appellant said he “lost it” and began to shock the complainant with the stun gun. He admitted shocking her repeatedly until she promised to stop screaming. Appellant denied making any threats to kill the complainant. He also denied suffocating her in any manner.

The indictment contained two counts with multiple paragraphs. Count one alleged bodily injury assault aggravated by the use of a deadly weapon:

• Paragraph one alleged that appellant caused bodily injury “by placing a bag on or about the [complainant’s] face” and that the bag was a deadly weapon.
• Paragraph two alleged that appellant caused bodily injury “by placing a piece of a bag on or about the [complainant’s] face” and that the piece of bag was a deadly weapon.
• Paragraph three alleged that appellant caused bodily injury “by placing his hand over the [complainant’s] mouth and nose” and that the hand was a deadly weapon.

See id. §§ 22.01(a)(1), 22.02(a)(2). Count two alleged assault by threat aggravated by the use of a deadly weapon:

• Paragraph one alleged that appellant threatened the complainant with imminent bodily injury while using a bag as a deadly weapon.
• Paragraph two alleged that appellant threatened the complainant with imminent bodily injury while using his hand as a deadly weapon.

See id. §§ 22.01(a)(2), 22.02(a)(2). In a single application paragraph, the court authorized appellant’s conviction on any or all of the five paragraphs contained in the two counts, and the jury returned a general verdict convicting appellant of aggravated assault.

Sufficiency of Evidence

Appellant contends the evidence is factually insufficient to sustain the guilty verdict. The question presented is whether the jury was rationally justified in finding guilt beyond a reasonable doubt when all the evidence is viewed in a neutral light. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). Evidence may be factually insufficient because: (1) the evidence of guilt, considered alone, is too weak to support a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong as to preclude a finding of guilt beyond a reasonable doubt. Id. at 484-85. Evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the offense beyond a reasonable doubt. Id. at 485.

Appellant challenges the credibility of the complainant’s testimony by pointing out that no plastic bag or any piece of a plastic bag was found by the police at the scene of the attack. He also notes the absence of any evidence that the complainant had marks or discoloration on her face consistent with her account of being smothered. Finally, he urges that the complainant’s description of appellant restraining her while placing a bag over her head was impossible and would have required him to have “three hands.”

In a factual sufficiency review, due deference must be accorded the fact finder’s determinations, particularly those concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000). We may disagree with the result only to prevent a manifest injustice. Id. We believe that the jury could reasonably discount any inconsistencies or improbabilities in the complainant’s testimony in light of the circumstances. She was hardly in a position to coolly note and remember the precise details of the attack. While the absence of physical evidence may lend some credence to appellant’s testimony denying that he smothered the complainant with a bag or his hand, the jury’s decision to believe the complainant rather than appellant was not manifestly unjust.

Appellant also urges that the evidence is inadequate to support a finding that he used or intended to use a bag, a piece of a bag, or his hand in a manner capable of causing death or serious bodily injury. See Tex. Pen.Code Ann. § 1.07(a)(17)(B) (West Supp.2005) (defining “deadly weapon”). He argues that there is no evidence that the complainant experienced a serious risk of death or a protracted loss or impairment of bodily function. See id. § 1.07(a)(46) (defining “serious bodily injury”). For a weapon to be deadly, however, requires only that it be used in a manner capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000). The testimony of the complainant and the medical examiner is sufficient to support a finding that appellant used and intended to use a bag, a piece of a bag, and his hand in a manner capable of causing death or serious bodily injury.

The evidence is factually sufficient to support a finding beyond a reasonable doubt that appellant threatened and caused bodily injury to the complainant while and by using and exhibiting a deadly weapon. Point of error one is overruled.

Jury Unanimity

As previously mentioned, the trial court’s jury charge contained a single application paragraph that combined the two counts of the indictment. The charge authorized appellant’s conviction of aggravated assault if the jury found that he:

• caused bodily injury to the complainant by placing a bag on her face and that the bag was a deadly weapon, “and/or”
• caused bodily injury to the complainant by placing a piece of a bag on her face and that the piece of a bag was a deadly weapon, “and/or”
• caused bodily injury to the complainant by placing his hand over her mouth and nose and that his hand was a deadly weapon, “and/or”
• threatened the complainant with imminent bodily injury while using or exhibiting a bag as a deadly weapon, “and/or”
• threatened the complainant with imminent bodily injury while using or exhibiting his hand as a deadly weapon.

The jury returned a general verdict of guilty “as alleged in the indictment.” The jury also answered affirmatively a special issue asking whether appellant used or exhibited a deadly weapon in the commission of the offense. In eight points of error grouped into a single argument, appellant contends that the jury charge and verdict form denied him his right to a unanimous jury verdict. See U.S. Const, amend. VI, XIV; Tex. Const, art. V, § 13; Tex.Code Crim. Proc. Ann. art. 36.29(a) (West Supp.2005).

We agree with appellant that the court erred by failing to require a unanimous verdict finding him guilty of either aggravated bodily injury assault or aggravated assault by threat. We reach this conclusion on the authority of Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App., 2005). In Ngo, the defendant was accused of committing credit card abuse by stealing the complainant’s credit card, by receiving the complainant’s credit card knowing it had been stolen, and by presenting the complainant’s credit card with the intent to obtain a fraudulent benefit. Id. at 741, 744; see Tex. Pen.Code Ann. § 32.31(b)(1)(A), (4) (West Supp.2005). The trial court’s charge authorized a conviction for credit card abuse if each juror believed that the defendant was guilty under one of the three theories, but without requiring jury unanimity as to any one theory. Id. at 741, 742 n. 5. This was error, said the court, because stealing a credit card, receiving a stolen credit card, and fraudulently presenting a credit card are three different criminal acts or offenses, and not merely different manners of committing a single credit card abuse offense. Id. at 749. The court held, ‘When the State accuses a defendant of different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.” Id. at 744 (citing Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000)).

Similarly, causing bodily injury to another and threatening another with imminent bodily injury are separately defined statutory criminal acts. Tex. Pen. Code Ann. § 22.01(a)(1), (2). Bodily injury assault is a “result of conduct” offense that can be committed intentionally, knowingly, or recklessly. Fuller v. State, 819 S.W.2d 254, 255-56 (Tex.App.-Austin 1991, pet. ref'd). Assault by threat is a “nature of conduct” offense that can only be committed intentionally or knowingly. Guzman v. State, 988 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1999, no pet.). See Tex. Pen.Code Ann. § 6.03 (West 2005) (defining culpable mental states). Applying the analysis used in Ngo, we conclude that bodily injury assault and assault by threat are different criminal acts for which a defendant may be convicted only by a unanimous finding of guilt. Therefore, even though the State sought only a single aggravated assault conviction, it was error for the trial court to authorize that conviction without requiring the jury to unanimously agree that appellant committed aggravated bodily injury assault or aggravated assault by threat.

We do not agree with appellant’s contention that jury unanimity was required with respect to any specific paragraph within count one or count two, that is, with respect to the specific manner or means by which the aggravated bodily injury assault or aggravated assault by threat was committed. There is a “crucial distinction” between a fact that is a specific actus reus element of the crime and one that is but the means to the commission of a specific actus reus element. Ngo, at 745. An indictment may allege different manners or means of committing a single offense, and the jurors are not required to agree upon a single manner or means. Id. at 745-746; Francis, 36 S.W.3d at 124. When alternate manners and means of committing an offense are submitted to the jury, it is appropriate for the jury to return a general verdict for that offense if the evidence supports a conviction under any one of them. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991).

In short, aggravated bodily injury assault and aggravated assault by threat are different statutory offenses, not just two methods of committing the single offense of aggravated assault. The trial court erred by allowing the jury to return a general guilty verdict without unanimously agreeing that appellant committed either aggravated bodily injury assault or aggravated assault by threat. It was not necessary, however, for the court to require the jurors to agree that appellant used a bag, or a piece of a bag, or his hand to inflict the bodily injury, or that it was the bag or his hand that appellant used or exhibited while making the threat.

Because appellant did not object to the charge, reversible error is presented only if it appears from the record that the error was so egregious and created such harm that he did not receive a fair and impartial trial. Jimenez v. State, 32 S.W.3d 233, 237-38 (Tex.Crim.App.2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). We base our harm determination on a review of the record as a whole, including the entire jury charge, the contested issues and weight of the probative evidence, and the arguments of counsel. Almanza, 686 S.W.2d at 171. The harm to appellant must be actual and not just theoretical. Id. at 174.

The only mention of unanimity in the jury charge was in the instruction to select a foreperson to preside over deliberations and certify the verdict “when you have unanimously agreed upon a verdict.” This instruction did not serve to cure the error in the application paragraph. Ngo, at 745.

During her opening statement to the jury after the indictment was read, one of the prosecutors said:

The multiple paragraphs that [co-counsel] read to you are the different ways that the State thinks the evidence will show that he committed this one offense.
And you’re going to be asked at the end to determine whether he committed the offense of aggravated assault with a deadly weapon. And some of you may — you don’t all have to agree on how he did it but you have to each individually think that he did it by one of the ways that we plead. Some of you may think the whole bag is a deadly weapon and that’s enough for you. Some of you may think “I think the piece of bag is a deadly weapon” and that’s enough. But you’re all asked to find at the end — the State will ask you after considering the evidence, and we believe the evidence will show, by the time you see it you will come to the conclusion that the defendant really committed multiple, many aggravated assaults ... but you’re just asked to return a general verdict; did he do it or not by any one of these manner and means.

The other prosecutor addressed the unanimity issue in her argument to the jury after evidence was closed and the charge was read:

What is in the charge are the elements of the offenses for aggravated assault. And as you just heard the judge read to you and as you heard when I read to you the indictment on Monday afternoon there are many ways to arrive at one verdict, for one offense. You do not have to agree. The unanimous verdict is about whether or not Mr. Marinos committed the offense of aggravated assault with a deadly weapon.
It is not necessary for all 12 of you to agree on which way he did that. There are many options. I think five options. You could have two people for each option and an extra two. It does not matter. It doesn’t matter what the distribution is. What matters is that you, each of you is persuaded beyond a reasonable doubt that he committed the offense of aggravated assault with a deadly weapon.

Thus, the trial began and ended with the prosecutors explicitly telling the jurors that they did not have to agree as to whether appellant was guilty of aggravated bodily injury assault or aggravated assault by threat. These erroneous statements accentuated the charge error. See id. at 755-756.

Nevertheless, a review of the contested issues and evidence persuades us that the charge error did not deny appellant a fair and impartial trial. The jury had to find that appellant used a deadly weapon in order to convict him of aggravated assault under any of the five “options” contained in the charge. See p. 6, supra. This meant that each juror had to find that appellant smothered the complainant with a bag, a piece of a bag, or his hand because there is no other evidence to support a finding that appellant used or intended to use these items in a manner capable of causing death or serious bodily injury. Because suffocation is an impairment of physical condition, it follows that each juror found that appellant caused bodily injury to the complainant. See Tex. Pen. Code Ann. § 1.07(a)(8) (defining “bodily injury”). And appellant’s suffocation of the complainant also constituted a threat of imminent bodily injury. See Preston v. State, 675 S.W.2d 598, 601 (Tex.App.-Dallas 1984, pet. ref'd) (threat can be communicated by acts alone). In other words, given the evidence in this cause, to find appellant guilty of aggravated assault under either theory of the offense a juror had to find him guilty under both theories. Thus, we are satisfied that the jury unanimously found appellant guilty of both aggravated bodily injury assault and aggravated assault by threat.

It is the interrelated nature of the issues and evidence in this cause that distinguishes it from Ngo, in which the court of criminal appeals found the charge error egregiously harmful. In Ngo, two of the credit card abuse offenses submitted to the jury were mutually exclusive: the defendant could not have committed both the original theft of the card and received the card from someone else who had committed the theft. Ngo, at 751. Because the two offenses were mutually exclusive in the context of that case, the verdict could not have been unanimous if even a single juror believed that the defendant was not the original thief, and the appellate court could not determine that the jury had, in fact, unanimously found the defendant guilty of one specific credit card offense. Id.

In the cause before us, we can determine that the jurors unanimously found appellant guilty of both the aggravated bodily injury assault offense and the aggravated assault by threat offense, notwithstanding the charge’s failure to require such unanimity. We conclude, therefore, that the charge error did not deny appellant a fair and impartial trial. Points of error six through ten are overruled.

Appellant also contends that the special issue inquiring whether he used a deadly weapon in the commission of the offense was defective because it did not require the jury to unanimously determine the precise object used. We find no error for two reasons. First, the special issue was unnecessary for an affirmative finding because the indictment alleged the use of a deadly weapon, the charge required a finding that appellant used a deadly weapon in order to conviet, and the jury found appellant guilty “as alleged in the indictment.” See Davis v. State, 897 S.W.2d 791, 794 (Tex.Crim.App.1995); Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985); see also Tex.Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp.2005). Second, jury unanimity is not required with respect to the manner and means of committing an offense, as previously discussed. Both by convicting appellant of aggravated assault and by answering the special issue, the jury unanimously found that he used a deadly weapon. It was not necessary for the jurors to agree whether the weapon was a bag, a piece of bag, or appellant’s hand. Points of error eleven, twelve, and thirteen are overruled.

Continuance

Appellant elected to have the court assess punishment. After the guilty verdict was returned, the court dismissed the jury, reset the case, and ordered a presentence report. On December 16, 2002, when the case was called for sentencing, appellant failed to appear. The next day, after determining that appellant had voluntarily absented himself, the court proceeded with sentencing in his absence. See Tex.Code Crim. Proc. Ann. art. 33.03 (West 1989).

Appellant reappeared ten months later and the cause was reset for reimposition of sentence in appellant’s presence. On October 10, 2003, when the case was called for resentencing, appellant’s counsel objected to proceeding “without further evaluation of my client.” Counsel told the court that it was his belief that appellant’s original failure to appear was due to mental incompetence. When the court inquired if counsel believed that appellant was not presently competent, counsel replied that he needed “another opportunity to talk to him” before answering that question. The court ordered a brief recess, after which counsel stated that there was no “legal reason” not to proceed with sentencing.

Appellant contends the trial court erred by denying the continuance requested on October 10. No error is presented because appellant’s motion for continuance, if that is what it was, was not in writing as required by statute. Id. art. 29.03. An oral motion for continuance presents nothing for review. O’Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App.1981). Moreover, after the recess, appellant’s counsel informed the court that there was no legal reason not to proceed with sentencing at that time. Finally, the only facts cited by appellant to show an abuse of discretion were adduced at a later hearing on his motion for new trial. There is no indication that the court was aware of these facts when the continuance was requested. Point of error five is overruled.

Newly Discovered Evidence

In three points of error, appellant contends the trial court erred by overruling his motion for new trial based on newly discovered evidence. See Tex.Code Crim. Proc. Ann. art. 40.001 (West Supp. 2005). To be entitled to a new trial on this ground, appellant was required to show that: (1) the alleged newly discovered evidence was unknown and unavailable to him at the time of trial; (2) his failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App.2002). We review the trial court’s ruling for an abuse of discretion. Id. at 37. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004).

The claimed newly discovered evidence was the testimony of two witnesses, the first of whom was Leticia Marinos, appellant’s sister-in-law. She testified at the new trial hearing that she had known the complainant since 1988, when appellant and the complainant were married, and had even lived with them for a time. She said that she and the complainant had been close friends, and they had continued to visit and speak to one another even after the divorce.

Leticia testified that she spoke to the complainant on the telephone on the night of December 16, 1999, one day after the assault. The complainant was still upset and shaken by the attack. According to Leticia, the complainant described the assault to her in much the same way as appellant described it at trial. The complainant told Leticia that when she and appellant argued over child custody, appellant began to repeatedly shock her with a stun gun. Leticia testified that the complainant did not tell her that appellant had smothered her with a plastic bag or a piece of such a bag. It was Leticia’s impression that the complainant had told her the whole story.

Leticia also spoke to appellant later that night or the next day, and told him what the complainant had said. Appellant’s description of the incident in this conversation, as related by Leticia at the hearing, corresponded to his trial testimony. Leticia also testified that in her opinion, the complainant was not a truthful person.

Appellant’s trial counsel testified at the hearing that he knew that Leticia had spoken to the complainant after the assault, and that he interviewed Leticia before trial. In this interview, Leticia did not tell counsel that she had discussed the details of the assault with the complainant, a fact Leticia confirmed in her own testimony. According to counsel, Leticia told him that she did not want to be involved in the trial. Based on this conversation, counsel decided not to call her as a witness.

It was within the trial court’s discretion to find that Leticia’s testimony was not newly discovered evidence entitling appellant to a new trial. Leticia told appellant the day after the assault that she had spoken to the complainant and had at that time recounted to appellant the complainant’s description of his actions. Thus, appellant knew what the complainant had allegedly told Leticia, and he certainly knew what he had told Leticia. The trial court could reasonably conclude that Leticia’s testimony was available before trial and could have been discovered by the exercise of due diligence. It was also within the trial court’s discretion to conclude that Leticia’s testimony, if admissible, merely corroborated appellant’s trial testimony and impeached the complainant’s trial testimony. Leticia’s opinion of the complainant’s truthfulness was also mere impeachment.

The other alleged newly discovered evidence was the testimony of Dr. Grace Homles, a family practice physician. Homles testified at the new trial hearing that she “observe[d] [appellant] for clinical purposes” from August 2002 until December 2002. Appellant’s trial took place during this period, on November 18-20. Homles testified that in the days following his conviction and prior to the original sentencing date, appellant exhibited signs “that were consistent with major depression.” She also said that she had been concerned “that he was a bit at risk for suicide.” Asked by appellant’s counsel if appellant’s failure to appear for sentencing was voluntary “at least as we would understand that in psychological terms,” she replied, “[N]o, it was not voluntary.”

During cross-examination by the State, Homles testified that she spoke to appellant on November 20, the day he was convicted, and that he was not suicidal at that time. She also acknowledged that her notes from conversations with appellant on December 1 and December 14, the latter date only two days before sentencing, stated that appellant was anxious and afraid of going to prison but did not appear to be suicidal. Homles’s notes, which were admitted in evidence, also contain an entry dated December 16, 2002, the day appellant failed to appear for sentencing, stating that she knew of appellant’s disappearance and had discussed the matter with appellant’s counsel.

The evidence that Homles spoke to appellant’s trial counsel on December 16, the day before the trial court ruled that appellant’s absence was voluntary, reasonably supports the conclusion that Homles’s opinion was available to counsel at the time of sentencing. Moreover, it was within the trial court’s discretion to conclude that the doctor’s opinion that appellant’s absence was “psychologically” involuntary was immaterial. There was no evidence that appellant was physically unable or prevented from appearing for sentence. Appellant’s failure to appear was not involuntary merely because it was motivated by fear of or anxiety regarding the prospect of a prison term. See Bottom v. State, 860 S.W.2d 266, 267 (Tex.App.-Fort Worth 1993, no pet.) (defendant’s absence due to suicide attempt was voluntary).

The trial court did not err by overruling the motion for new trial on the ground of newly discovered evidence. Points of error two, three, and four are overruled.

Effectiveness of Counsel

In his remaining points of error, appellant urges that his trial counsel rendered ineffective assistance and that the trial court erred by overruling his motion for new trial on this ground. To prevail on this claim, appellant must show that trial counsel made such serious errors that he was not functioning effectively as counsel, and that these errors prejudiced appellant’s defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App.1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). To overcome this presumption, any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001).

Complainant’s Medical Condition

Appellant complains that his attorney did not adequately investigate the complainant’s medical conditions and medications prior to trial. He also urges that counsel should have presented expert testimony or other evidence regarding the effect of the complainant’s medical condition on her credibility as a witness.

The complainant testified at trial that she was diagnosed with systemic lupus, fibromyalgia, and rheumatoid arthritis in 1985 and that she was taking several medications for these conditions. The complainant, who is a pharmacist, testified that all of her medications were prescribed by doctors and that the prescribed dosages did not effect her ability to perceive and remember events. Appellant, however, points to Dr. Homles’s testimony at the new trial hearing that lupus, and the medications the complainant was taking for lupus, could cause the sufferer to misper-ceive reality or even hallucinate. He also points to trial counsel’s admission at the new trial hearing that he did not attempt to obtain the complainant’s mental health records, although he knew that she had been treated by mental health professionals, and to counsel’s failure to offer expert opinion such as Homles’s to challenge the credibility of the complainant’s testimony.

Appellant’s counsel questioned the medical examiner at trial about the medications the complainant was taking and adduced evidence that some of them were powerful antidepressants that could adversely effect the ability to concentrate. In his own testimony at the new trial hearing, counsel explained his decision not to more vigorously challenge the complainant’s mental health by saying, “I was not interested in making this individual more of a sympathetic person than what I perceived that she probably was going to be” in light of her medical conditions. He added that he did not want to “spend any more time making this lady look like a pathetic individual than what we were already concerned with.” Counsel said that he had seen a video deposition of the complainant taken during a civil child custody proceeding “and I was trying to stay away from all of that.”

Counsel’s testimony demonstrates that his challenged decisions were strategically calculated and not merely the product of indifference or incompetence. It was well within the scope of reasonable professional assistance for counsel to decide, based on his thirty-five years as a trial attorney and with the benefit of having seen the complainant’s deposition, not to pursue what he believed would be a counter-productive strategy.

Complainant’s Truthfulness

Appellant complains that trial counsel ineffectively failed to interview and call appellant’s father and brother as character witnesses. Counsel testified that he knew before trial that these persons would testify that, in their opinion, the complainant was not a truthful person. He said that he did not offer this testimony because “I just didn’t feel like it was of any value [to] ... put the defendant’s family member on to say that she was not a truthful person.” Counsel was of the opinion that “there could be a jury backlash from having family members kind of pound on her.” This opinion was within the range of reasonable professional judgment.

Jury Charge

Appellant urges that his trial counsel should have objected to the application paragraph of the jury charge on the grounds raised in his points of error six through twelve. As we have explained, the charge should have required the jury to unanimously decide whether appellant was guilty of aggravated bodily injury assault or aggravated assault by threat. As we have also explained, the record reflects that the jury in fact did unanimously decide that appellant was guilty of both offenses. Thus, counsel’s failure to make the objection did not prejudice appellant’s defense to the extent that he was deprived of a fair trial. The other objections appel-

lant contends should have been made to the application paragraph are without merit, for the reasons explained in our discussion of the charge.

Appellant also urges that counsel should have objected to the trial court’s failure to define the word “imminent” in the charge. As a general rule, words not defined in the penal code are given their common meaning and no specific jury instruction is required. Garcia v. State, 887 S.W.2d 846, 859 (Tex.Crim.App.1994). “Imminent” is not defined in the penal code and the court of criminal appeals has employed the common meaning of the term. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981).

Finally, appellant argues that counsel should have objected to the charge’s definitions of “intentional” and “knowing.” The court gave only the “result of conduct” definitions. Because assault by threat is a “nature of conduct” offense, appellant contends that counsel should have requested that the definitions be amended accordingly. See Tex. Pen. Code Ann. § 6.08(a), (b). Although' we agree that the definitions were erroneously limited, given the nature of the evidence and the contested issues, we conclude that the definitional error was harmless and that counsel’s failure to object did not deprive appellant of a fair trial.

Presentence Report

Appellant urges that trial counsel was ineffective at sentencing because he failed to object to fifteen errors in the presentence report. We have examined the list of alleged errors filed by appellant at the new trial hearing, and we find that they were unlikely to have had a significant impact on the punishment decision. Moreover, there is no indication in the sentencing record that the court considered the report in assessing punishment. The five-year punishment is at the low end of the range prescribed for second-degree felonies, and was closer to that urged by appellant’s counsel (two years) than to that advocated by the prosecutor (ten years). A persuasive argument can be made that the court tended toward leniency given the violence of appellant’s conduct, his previous felony conviction, and his failure to appear for sentencing.

Mitigating Evidence

Appellant argues that his father should have been called as a character witness at the original sentencing hearing. It was stipulated that appellant’s father was prepared to testify to appellant’s good character generally, that appellant was an attentive and loving father, and that the divorce had caused appellant financial hardship. Appellant further asserts that Dr. Hom-les’s testimony at the new trial hearing “is some evidence appellant had mental health problems which could have been presented” at the original sentencing hearing or at the later resentencing.

This issue was not raised with trial counsel at the new trial hearing. We must presume that counsel’s failure to offer the suggested mitigating evidence was an exercise of reasonable professional judgment.

Voluntariness

We quote verbatim appellant’s argument under the heading “Voluntariness — if counsel failed to preserve this”: “Should this Court find he did not counsel did not preserve these, appellant asserts these are also instances of deficient performance. Obviously, counsel did not consciously fail to raise them because of ‘strategy.’ ” This argument presents nothing to review.

Appellant did not meet his burden of affirmatively demonstrating ineffective assistance of counsel, and the trial court did not err by overruling the motion for new trial on this ground. Points of error fourteen, fifteen, and sixteen are overruled.

The judgment of conviction is affirmed.

      . The court's charge also authorized appellant's conviction for the lesser included offense of bodily injury assault had the jury found that he was not guilty of aggravated assault.

      . Although this opinion has yet to appear in the South Western Reporter, it is final. The court's mandate issued on April 11, 2005.

      . The drafter of the indictment appears to have understood this distinction. The aggravated bodily injury assault and the aggravated assault by threat offenses were properly alleged in separate counts, while separate paragraphs within each count were used to allege the alternate methods of committing each offense. See Tex.Code Crim. Proc. Ann. art. 21.24(a), (b) (West 1989) (two or more offenses may be joined in single indictment, with each offense stated in separate count; count may contain as many separate paragraphs charging same offense as necessary).

      . Neither the indictment nor the charge required a finding that appellant verbally threatened the complainant, although there is ample evidence that he did so.

      . To avoid confusion, we will refer to the witness as Leticia.


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice.

license: Public Domain

text:
    Allison SCOTT-RICHTER, Individually, a/k/a Allison Scott, Allison L. Scott, as Trustee of the Thomas Eugene Scott, Jr. Living Trust, and Allison L. Scott, as Trustee of the Allison L. Scott Trust, Appellants, v. Diana TAFFARELLO and Robert L. Soltis, Jr., Appellees.
    No. 2-05-122-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 2, 2006.

      Law Office of James P. Moon, PLLC, James P. Moon, Desoto, for appellants.
    Law Office of Bruce K. Thomas, Bruce K. Thomas, David Spoede, Dallas, for ap-pellees.
    PANEL A: CAYCE, C.J.; HOLMAN and McCOY, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

I. Introduction

Appellants Allison Scott-Richter, Individually, a/k/a Allison Scott, Allison L. Scott, as Trustee of the Thomas Eugene Scott, Jr. Living Trust, and Allison L. Scott, as Trustee of the Allison L. Scott Trust (“Appellants,” if jointly) appeal from an order granting an amended motion to enforce a settlement agreement between Appellants and Appellees Diana Taffarello and Robert L. Soltis (“Appellees,” if jointly). In five issues, Appellants complain that the trial court erred as a matter of law by granting the amended motion to enforce the settlement agreement, that the trial court abused its discretion by denying them request for a jury trial and by awarding attorneys’ fees to Appellees, and that the filing of a notice of settlement constitutes an unlawful taking of property in violation of the United States and Texas Constitutions. We affirm.

II. Factual and ProceduRal Background

Taffarello filed her original plaintiffs petition on January 29, 2004. Taffarello alleged that she had entered into a real property lease with Appellants and that Appellants later agreed to sell her the leased property. According to the petition, however, Appellants subsequently advised Taffarello that they would not sell the property to her. In addition to seeking a declaratory judgment regarding her right to continued possession of the property, Taffarello asserted claims for breach of the real estate contract, fraud, and breach of a lease agreement. Appellants answered Taffarello’s petition and asserted a third-party claim against Soltis.

The parties went to mediation on July 14, 2004 and agreed to a number of terms as evidenced in a written Memorandum of Settlement (“Memorandum”). The Memorandum, among other things, indicates that Taffarello’s lawsuit is to be dismissed, describes how the net proceeds of the sale are to be divided after the property is sold, provides for the drafting of a “compromise settlement agreement” and “trust agreement,” and designates a settlement closing date of August 13, 2004, which the parties later agreed to extend by two weeks. In mid-August, counsel for Appellants allegedly advised Taffarello that they would no longer negotiate regarding the settlement documents. Appellants’ counsel also filed a motion to withdraw and a motion to abate the case.

Appellees responded with a letter dated August 24, 2004, which demanded that Appellants engage in good faith negotiations in regard to the remaining settlement documents and that the parties return to mediation. Appellees received no response to the letter, and consequently, the parties were unable to reach an agreement regarding the preparation of the additional documents contemplated by the Memorandum. As such, the parties did not close on the designated date, and Appellees filed a motion to enforce the settlement agreement on September 17, 2004; they amended the motion on October 7.

Appellees’ amended motion to enforce the settlement agreement requested that the trial court declare, among other things, that the Memorandum is a binding Rule 11 settlement agreement, that the “Compromise and Settlement Agreement” attached to the motion is the compromise settlement agreement specified in the Memorandum, that the “Cole Richter Irrevocable Trust Agreement” also attached to the motion is the trust instrument specified in the Memorandum, and that the “Notice of Settlement” attached to the motion is “proper and appropriate.”

On October 13, 2004, the trial court heard arguments on the pending motions, which included a motion filed by Appellants to continue the hearing on the motion to enforce because of their attorney’s pending motion to withdraw. The trial court ultimately granted Appellants’ counsel’s motion to withdraw, recessed the hearing on the amended motion to enforce the settlement agreement until a later date, ordered the parties to return to mediation, and awarded Appellees $5,000 in attorneys’ fees.

The parties returned to mediation but were unable to reach a compromise regarding the terms of the Memorandum calling for further agreement. On November 15, 2004, Appellees filed their first amended petition and third-party defendant counterclaims, which, in addition to re-asserting claims for breach of the real estate contract and lease agreement, asserted a claim for breach of the Memorandum. On November 19, 2004, the parties entered into a second Rule 11 agreement, which partially provided:

We have agreed that your clients, Allison Scott, a/k/a Allison Scott-Riehter, individually, and as Trustee of the Thomas Eugene Scott, Jr., Living Trust, and as Trustee of the Allison L. Scott Trust (collectively, “Scott”), will not challenge the validity or enforceability of the Memorandum of Settlement dated July 14, 2004 (the “Memorandum”) by and between Scott and Diana Taffarello (“Taffarello”) and Robert Soltis, Jr. (“Soltis”). In particular, but without limiting the generality of the foregoing, Scott agrees not to raise lack of competency, duress, lack of essential term(s), tax effect or consequences, violation of any other trust, or any other matter as a bar or defense to the Memorandum. Scott further agrees that she will not challenge or contest the Amended Motion to Enforce Settlement Agreement filed by Taffarello and Soltis. [Emphasis added.]

Notwithstanding this language, Appellants filed a request for a jury trial on December 14, 2004. The trial court heard the amended motion to enforce the settlement agreement three days later on December 17, and despite Appellants’ arguments that they were entitled to a jury trial on Taffarello’s breach of contract Claim, the trial court granted the motion to enforce.

Appellants filed a motion for new trial on January 18, 2005, which the trial court subsequently denied. This appeal followed.

III. JURISDICTION

We begin our analysis by determining whether we have jurisdiction to consider this matter. Appellees assert that this appeal should be dismissed for lack of jurisdiction because Appellants’ notice of appeal was not timely filed. . We disagree.

The trial court signed its final judgment on December 17, 2004. Appellants timely filed a motion for new trial; therefore, Appellants’ notice of appeal was due on or before March 17, 2005. See Tex. R.App. P. 26.1(a)(1). On March 30, 2005, Appellants filed their notice of appeal with the District Clerk of Denton County, Texas. On April 6, 2005, we notified Appellants of our concern that the notice of appeal was not timely filed. We informed Appellants that if we did not receive a response from them within twelve days showing a reasonable explanation for the late filing of the notice of appeal, the appeal could be dismissed for want of jurisdiction. See Tex.R.App. P. 10.5(b), 26.3(b), 42.3(a); Jones v. City of Houston, 976 S.W.2d -676, 677 (Tex.1998); Verburgt v. Domer, 959 S.W.2d 615, 617 (Tex.1997).

Appellants responded by filing a motion for extension of time to file their notice of appeal. Because Appellants’ motion was not filed within fifteen days of the date the notice of appeal was due, we were not authorized to grant the motion, and we took no action on the motion. See Tex. R.App. P. 26.3. However, inasmuch as Appellants filed their notice of appeal with the proper trial court clerk within fifteen days of the due date, a motion for extension of time was necessarily implied. See Verburgt, 959 S.W.2d at 617 (holding a motion for extension of time is necessarily implied when an appellant acting in good faith files a document attempting to perfect the appeal beyond the time allowed by the appellate rules, but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline).

Accordingly, we construed Appellants’ motion as a response to our April 6, 2005 letter questioning our jurisdiction. Consequently, the question before us was whether Appellants provided a reasonable explanation for the late filing of their notice of appeal within the fifteen-day period of Rule 26.3. See Tex.R.App. P. 26.3; Hone v. Hanafin, 104 S.W.3d 884, 886-87 (Tex.2003); Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617. Appellants explained that their failure to timely file their notice of appeal was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance in the calculation of the deadline and the mis-docketing of such date on the calendar of Appellants’ counsel. On April 18, 2005, we issued an order finding that Appellants had provided a reasonable explanation for the late filing of their notice of appeal.

Appellees filed a motion asking us to reconsider our order. Appellees asserted that the notice of appeal was not timely filed, and they further contended that this appeal must be dismissed because the body of Appellants’ notice of appeal recites, “This appeal is taken to the Fifth Court of Appeals of the State of Texas in Dallas, Texas.”

On May 9, 2005, we denied Appellees’ motion for reconsideration and permitted Appellants ten days to file an amended notice of appeal reciting that they were appealing to the Court of Appeals for the Second District of Texas. See Tex.R.App. P. 25.1(d)(4), (f) (providing that an “amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court”), Tex.R.App. P. 44.3 (“A court of appeals must not ... dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.”); Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex.1994) (holding that if an appellant makes a bona fide attempt to invoke the jurisdiction of the appellate court, the appellant must be permitted to file an amended notice of appeal); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-22 (Tex.1991) (“[T]he decisions of the courts of appeals [should] turn on substance rather than procedural technicality.”). Appellants timely filed an amended notice of appeal that complied with the requisites of Rule 25.1(d). See Tex.R.App. P. 25.1(d).

Accordingly, we hold that Appellants offered a reasonable explanation for the late filing of their notice of appeal, which they timely amended, and we have jurisdiction over this appeal.

IV. Request FOR Jury Trial

In their first issue, Appellants argue that the trial court abused its discretion by denying their request for a jury trial. They contend that their demand for a jury trial was timely and that their federal constitutional rights under the Seventh Amendment to the United States Constitution, their state constitutional rights under Article 5, Section 10 of the Texas Constitution, and them statutory rights under Texas Rule of Civil Procedure 216 were violated. Appellees respond that Appellants’ request for a jury trial pertains only to Appellees’ breach of contract claim, which was abandoned by Appellees and dismissed by the order granting the amended motion to enforce the settlement agreement and final judgment. We agree.

Appellants argued repeatedly during the hearing on the amended motion to enforce the settlement agreement that they were entitled to a jury trial on Appellees’ breach of contract (Memorandum) claim. Counsel for Appellants argued,

In that First Amended Petition ... Mr. Spoede asserted a claim for breach of contract of the Settlement Agreement and a claim for declaratory judgment. Both of those claims are claims that under Article 5, Section 10 of the Texas Constitution, these defendants are entitled to a trial by jury on those claims.

Counsel continued,

[I]f the Court construes, and we believe the Court cannot reach any other conclusion but that there are still two breaches of Settlement Agreement — two causes of action still outstanding, then this matter needs to go ahead and proceed to trial in February as the Court currently has it set.
[I]f they are asserting a claim for breach of contract, they’re required to prove the breach of contract.... My clients have the right, based on the current state of the pleadings, to do discovery on this claim of breach of contract and declaratory judgment, to call witnesses, to have documents produced, to take depositions, and most important, to try to have a jury trial in connection with this.

Finally, counsel argued,

We believe that the Court ought to.set this matter for trial, that Ms. Scott and the remaining defendants ought to be allowed the opportunity as they are given the right under the Texas Constitution to defend against the claims of breach of contract and the declaratory judgment claims....

Counsel for Appellees, however, responded that they were withdrawing the breach of contract claim. He said,

Once he [opposing counsel] signed the Rule 11 Agreement saying that he wouldn’t oppose our Amended Motion to Enforce, it made everything moot. Everything settled except for the issue of attorney’s fees. So to the extent we do have other — the same claims couched as other causes of action, we withdraw those causes of action because [the trial court’s] order gives us all the relief we were seeking in the first place. [Emphasis added.]

At the conclusion of the hearing, the trial court, in response to a question by Appellants regarding the effect of the order as it relates to the breach of contract claim, stated it understood that Appellees were “abandoning or waiving many of those claims.” Counsel for Appellees responded that the order “speaks for itself.” Indeed, the order signed by the trial court provides that “[a]ny claims in this lawsuit that are not specifically addressed in this Order and Judgment, including all claims, counter-claims, cross-claims, and third-party claims, are dismissed with prejudice to the refiling of same.”

Our review of the order indicates that it does not address Appellees’ breach of contract claim, specifically or as part of its declarations. Thus, because Appellees withdrew their breach of contract claim diming the hearing and because the order granting the amended motion to enforce the settlement agreement expressly dismisses the breach of contract claim, Appellants’ argument that they are entitled to a jury trial on Appellees’ breach of contract claim is moot. See Tex.R.App. P. 47.1; Williams v. Lara, 52 S.W.3d 171,184 (Tex.2000) (reasoning that case is moot if live controversy ceases to exist); In re Guardianship of Keller, 171 S.W.3d 498, 500 (Tex.App.-Waco 2005, pet. filed) (reasoning that appellate courts lack jurisdiction to consider issues that have been rendered moot). Moreover, to the extent Appellants’ argument can be interpreted as challenging the denial of a jury trial on the declaratory judgment claims as violative of Article 5, Section 10 of the Texas Constitution and the Seventh Amendment to the United States Constitution, the record reflects that Appellants agreed by the November 19, 2004 Rule 11 agreement not to challenge or contest the amended motion to enforce the settlement agreement, which the order tracks substantially verbatim. Accordingly, the trial court did not abuse its discretion by denying Appellants’ request for a jury trial. We overrule Appellants’ first issue.

V. Amended Motion to EnfoRCE Settlement Agreement and Constitutional Challenges

In their second issue, Appellants argue that the trial court erred as a matter of law by granting the amended motion to enforce the settlement agreement because it had the effect of imposing additional material terms to the agreement that the parties had yet to negotiate and agree upon. Appellants contend that there is no evidence or insufficient evidence that they agreed to be bound by the compromise settlement agreement, trust agreement, and notice of settlement and that the issue of whether they agreed to be bound by the terms of these agreements should have been set for a jury trial. In their third issue, Appellants argue — without citing any authority — that the denial of their right to a jury trial on these issues denied them due process under the Texas and federal constitutions and constituted an unlawful taking of property under the Fifth Amendment to the United States Constitution. In their fourth issue, Appellants argue — without citing any authority-that the filing of the “Notice of Settlement” in Denton County results in an unconstitutional taking of property. Appel-lees respond that the November 19, 2004 Rule 11 agreement resolved any dispute as to the enforceability of the settlement agreement and the documents drafted to effectuate it. We agree.

Pursuant to Rule 11, no agreement between the parties or their attorneys shall be enforceable unless the agreement is either (1) in writing, signed by the parties, and filed with the papers as part of the record or (2) made orally in open court and entered as part of the record. Tex.R. Civ. P. 11. Rule 11 aims to eradicate the misunderstandings and controversies commonly associated with verbal agreements among parties and counsel. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995). Agreements in writing and filed with the court allow the writings to “speak for themselves” so that “the court can judge of their import, and proceed to act upon them with safety.” Id. A trial court has a ministerial duty to enforce a valid Rule 11 agreement. ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex.App.-Houston [1st Dist.] 2005, pet. filed).

Here, the clerk’s record contains a “Notice of Filing of Rule 11 Agreement.” The document states that it “is an enforceable agreement under Rule 11 of the Texas Rules of Civil Procedure,” contains the signatures of both Appellants’ and Appel-lees’ attorneys, and was filed with the trial court as part of the record on December 8, 2004. Dated November 19, 2004, the agreement states that Scott “agrees that she will not challenge or contest the Amended Motion to Enforce Settlement Agreement filed by Taffarello and Soltis.” [Emphasis added.] We hold that the attorneys, on behalf of their clients, entered into a valid Rule 11 Agreement that the trial court had a ministerial duty to enforce. See Tex.R. Civ. P. 11; ExxonMobil Corp., 174 S.W.3d at 309.

The amended motion to enforce the settlement agreement that Appellants agreed not to contest sought a declaration by the trial court that the Memorandum entered into by the parties on July 14, 2004 is a binding and enforceable Rule 11 settlement agreement; that the “Compromise and Settlement Agreement” attached to the amended motion as exhibit “B” constitutes the compromise settlement agreement specified' in paragraph 4 of the Memorandum; that.the “Cole Richter Irrevocable Trust Agreement” attached to the amended motion as exhibit “C” is the trust instrument or agreement specified in paragraphs 4 and 5 of the Memorandum; and that the “Notice of Settlement” attached to the amended motion as exhibit “D” is “proper and appropriate” and maybe filed in the real property records of Denton County, Texas. Despite the valid Rule 11 agreement entered into by the parties, Appellants now attempt to challenge the “Compromise and Settlement Agreement,” the “Cole Richter Irrevocable Trust Agreement,” and the “Notice of Settlement” by arguing that they never agreed to the terms contained therein and by arguing that their rights under the United States and Texas Constitutions have been denied. This they cannot do. Appellants expressly agreed not to challenge the amended motion to enforce the settlement agreement. By so agreeing, they foreclosed their ability to complain on appeal regarding the terms of the motion and subsequent order granting the same. As Appellees state in their brief,

By executing the Nov. 19 Rule 11 Agreement, counsel resolved the very issues he now attempts to challenge in this appeal: the enforceability of the mediated settlement agreement and the documents drafted to effectuate it.... Moreover, the amended motion to enforce incorporates each of the documents Scott now claims go beyond the settlement agreement. Appellants agreed to each one by agreeing not to contest the amended motion to enforce.

The trial court’s order granting Appel-lees’ motion to enforce the settlement agreement and final judgment tracks the language- in- the motion closely and states,

1. The Memorandum of Settlement entered into by the parties and dated July 14, 2004, is declared to be a binding and effective settlement agreement that is enforceable under contract law and under Rule llof the Texas Rules of Civil Procedure....
2.... The Compromise and Settlement Agreement is hereby declared to constitute the compromise settlement agreement specified in paragraph 4 of the Memorandum of Settlement, and to be a final and binding agreement of all of the parties as if each party hereto had properly signed and executed it....
3.... The Cole Richter Irrevocable Trust Agreement is hereby -declared to be that trust instrument or agreement specified or referenced in paragraphs 4 and 5 of the Memorandum of Settlement, and in paragraphs 2 and 3 of the Compromise and Settlement Agreement, and shall be fully enforceable and effective as if properly signed and executed by each of the parties....
4. The document attached as Exhibit “B” to the Compromise and Settlement Agreement [entitled Notice of Settlement and Net Sales Proceeds Interest] is hereby declared to be proper and appropriate. Taffarello may sign and file the Memorandum in the real property records of Denton County, Texas.

Appellants never 'challenged the validity and enforceability of the November 19, 2004 Rule 11 agreement (e.g., by attacking it on the grounds of fraud or mistake or by arguing that an exception applies), and they do not raise such a challenge on appeal. And the Rule 11 agreement is clear and .unambiguous. Accordingly, because Appellants agreed not to challenge or contest the amended motion to enforce the settlement agreement pursuant to a valid Rule 11 agreement, the trial court did not err by performing its ministerial duty and granting Appellees’ amended motion to enforce the settlement agreement. See Tex.R. Civ. P. 11; ExxonMobil Corp., 174 S.W.3d at 309; see also Childers v. King Ranch, Inc., No. 13-03-006-CV, 2005 WL 774512, at *5 (Tex.App.-Corpus Christi April 7, 2005, no pet.) (mem.op.) (holding trial court did not abuse its discretion by granting relief in strict accordance with parties’ rule 11 agreements). We overrule Appellants’ second, third, and fourth issues.

YI. Attorneys’ Fees

In their fifth issue, Appellants argue that the trial court abused its discretion by awarding Appellees attorneys’ fees. Appellants contend that the trial court should not have considered Appellees’ request for attorneys’ fees because Appellants were without legal representation at the time of the award, the award was premature, and Appellants were entitled to a jury trial on the issue of attorneys’ fees.

We initially note that Appellants failed to present any of these arguments during the October 13, 2004 hearing at which the trial court awarded Appellees attorneys’ fees; thus, they failed to put the trial court on notice of their objections to the award. See Tex.R.App. P. 33.1(a)(1)(A). After counsel for Appellees requested $5,000 in attorneys’ fees, the trial court asked for a response from Appellants’ counsel, who stated, “Well, obviously, we oppose that.” The trial court indicated thereafter that it was awarding Appellees the attorneys’ fees. Appellants also fail to cite one single authority for each of the three arguments raised in their brief. See Tex.R.App. P. 38.1(h). Accordingly, Appellants failed to preserve these arguments for appellate review.

Nonetheless, Appellants’ arguments are unpersuasive. Appellants were not without counsel at the time the trial court awarded Appellees attorneys’ fees. The record clearly indicates that the trial court awarded Appellees attorneys’ fees before granting Appellants’ counsel’s motion to withdraw. Moreover, as demonstrated above, the trial court afforded Appellants an opportunity to argue against the request for attorneys’ fees. Regarding Appellants’ prematurity argument, the trial court had two subsequent opportunities to consider the award; Appellants filed their “Motion for Reconsideration or to Set Aside Order Granting Attorney’s Fees” on December 16, 2004 and motion for new trial on January 18, 2005. The trial court ultimately upheld the award of attorneys’ fees. Appellants lastly argue that they are entitled to a jury trial on the issue of attorneys’ fees because “the right to such recovery was necessarily predicated upon Appellees’ successful prosecution of their claims that the Memorandum was an enforceable agreement and that the Appellants had breached it.” However, as we discussed in Section IV above, Appellees waived their breach of contract claim in open court, and the order granting their amended motion to enforce the settlement agreement expressly dismisses all claims not addressed in the order, which includes Appellees’ breach of contract claim. We hold that the trial court did not abuse its discretion by awarding Appellees v attorneys’ fees. Accordingly, we overrule Appellants’ fifth issue.

VII. Conclusion

Having overruled all of Appellants’ issues, we affirm the trial court’s judgment.

      . Tex.R. Civ. P. 11.

      . On appeal, Appellees do not challenge the reasonableness of Appellants’ explanation for the late filing of their notice of appeal. See Hone, 104 S.W.3d at 886-87 (discussing what constitutes a reasonable explanation for late filing of a notice of appeal).

      . Appellees’ brief states that Appellants filed a motion for extension of time to file their notice of appeal in the Court of Appeals for the Fifth District of Texas, which refused to act. Our record does not contain any such motion, but even if it did, the motion would not have any significance in our decision that Appellants offered a reasonable explanation for the filing of their notice of appeal with the proper trial court clerk within fifteen days of the due date.

      . In the agreement, Scott refers to Appellants, i.e., Scott in all of her capacities.


text:
    RESIDENTIAL DYNAMICS, LLC, Appellant, v. Gerald LOVELESS and Appellees Lynn Loveless, Appellees.
    No. 2-05-306-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 2, 2006.

      McWilliams & Thompson, Grady R. Thompson, McKinney, for appellant.
    Hayes, Berry, White & McMurray, LLP, Richard D. Hayes and Christian Dennie, Denton, for appellee.
    Panel F: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Residential Dynamics, LLC appeals the trial court’s granting of a no evidence summary judgment in favor of Appellees Gerald Loveless and Lynn Loveless. In two points, Appellant contends that the trial court erred by granting summary judgment because there was evidence supporting Appellant’s claims for breach of contract and quantum meruit relief. We reverse and remand.

FACTUAL BACKGROUND

Appellees own a parcel of real property located in Denton County, Texas. Appel-lees subdivided the property into separate lots and named the area Lake Country Estates. Appellant alleged that Appellees entered into an agreement with Appellant, which was never reduced to writing, for construction on one of the lots. Appellant placed a mobile home on one of Appellees’ lots and placed various improvements on the property. Appellant alleged that the agreement provided that after the improvements were made to the property, the lot would be sold and Appellees would receive $35,000 from the sale and Appellant would receive the remainder from the sale.

Appellant sued Appellees for breach of contract, or alternatively, quantum meruit, common law fraud, and fraud in a real estate transaction. Appellant alleged that it had fully performed all of its obligations under the agreement and incurred costs for the issuance of various necessary permits for the construction of the improvements and that Appellees had accepted the benefit of the contract and then refused to complete it. Appellees filed a no evidence motion for summary judgment on all of Appellant’s claims, which the trial court granted, entering a take nothing judgment in favor of Appellees. This appeal followed.

SUMMARY JUDGMENT EVIDENCE

Appellant contends that more than a scintilla of evidence exists regarding its breach of contract and quantum meruit claims. The trial court found that the alleged oral contract was not definite, certain, and clear as to its essential terms, and was thus unenforceable. The court also found that Appellant produced no evidence of, among other things, any materials or services rendered by Appellant to Appellees. Therefore, the trial court dismissed Appellant’s claims.

1. Standard of Review

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

We review the evidence in the light most favorable to the party against whom the no evidence summary judgment was rendered. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert, denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004); Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

2. Preservation of Error

In response to Appellees’ no evidence motion for summary judgment, Appellant attached the affidavit of Darrell McCauley, the manager of Residential Dynamics, LLC, setting forth the elements of its causes of action against Appellee. As discussed below, Appellees made several objections to the affidavit. Appellant contends that Appellees did not receive a written ruling on the alleged errors in the affidavit, and therefore, waived any complaint about the affidavit. Furthermore, Appellant argues that the fact that the court granted the no evidence summary judgment does not show that there was an implicit ruling sustaining Appellees’ objections.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a); see also Tex.R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g). The objecting party must get a ruling from the trial court. This ruling can be either express or implied. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied).

The majority of the substance of Appel-lees’ reply to Appellant’s response to the no evidence motion for summary judgment consisted of Appellees’ objections to the form and substance of the McCauley affidavit. The trial court’s judgment states that “the court considered the pleadings, motion, response, reply, and evidence” presented in granting the no evidence motion for summary judgment. Here, the only evidence presented in response to the no evidence motion for summary judgment was the McCauley affidavit. Therefore, we determine that the trial court implicitly overruled Appellees’ objections to the affidavit when it granted Appellees’ no evidence summary judgment motion. See Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 497-98 (Tex.App.-Fort Worth 2002, no pet.) (distinguishing Frazier on the basis that the record was completely silent as to any disposition of the objections or as to whether the trial court considered the deposition testimony); Frazier, 987 S.W.2d at 610 (holding that the trial court implicitly sustained the defendant’s objections when it granted his motion for summary judgment, noting that the trial court stated that it had considered all “competent” summary judgment evidence); Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.-Fort Worth 1998, no pet.) (holding the trial court implicitly overruled the plaintiffs objections to the defendant’s summary judgment proof when it granted the defendant’s motion for summary judgment). Therefore, we turn to the merits of Appellees’ objections to the McCauley affidavit.

3. Jurat

Appellees first complain that the affidavit was not competent summary judgment evidence because, although it contained an acknowledgment, it did not contain a ju-rat.

To constitute competent summary judgment proof, an affidavit must be made on personal knowledge, set forth the facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the stated matters. Tex.R. Civ. P. 166a(f). An affidavit is a “statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1) (Vernon 2005). The jurat of an affidavit is a “certificate by a competent officer that the writing was sworn to by the person who signed it.” Huckin v. Connor, 928 S.W.2d 180, 183 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (quoting Acme Brick v. Temple Assocs., Inc., 816 S.W.2d 440, 441 (Tex.App.-Waco 1991, writ denied)).

Appellees contend that without a jurat, McCauley’s affidavit is not actually an affidavit; thus, it does not constitute proper summary judgment evidence. They direct our attention to several cases, which we find to be distinguishable from the present case. In two of the cases, the purported affidavits were not signed by a notary. See Medford v. Medford, 68 S.W.3d 242, 247 (Tex.App.-Fort Worth 2002, no pet.) (stating that the purported affidavit clearly did not constitute an affidavit because it did not contain a notarization); Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex.App.-Texarkana 1995, no writ) (determining that the statement did not constitute an affidavit because the notary’s certificate was left blank, it was not signed by a notary, and it bore no seal). In two other cases, the summary judgment “proof’ was insufficient because it was not supported by an affidavit. See Moron v. Heredia, 133 S.W.3d 668, 671 (Tex.App.-Corpus Christi 2003, no pet.) (concluding that a report did not constitute proper summary judgment proof because it was neither verified nor accompanied by an affidavit); Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex.App.-Houston [14th Dist.] 1997, writ denied) (explaining that without a notarization or jurat, an unsworn statement is not an affidavit and is not proper summary judgment evidence).

The two final cases cited by Appellees do not appear to be current Texas law based on the facts before us. See Perkins v. Crittenden, 462 S.W.2d 565, 567-68 (Tex.1970) (holding that because the purported affidavit contained only an acknowledgment, it was not an affidavit at all); Totman v. Control Data Corp., 707 S.W.2d 739, 741 (Tex.App.-Fort Worth 1986, no writ) (op. on reh’g) (concluding that because the purported affidavit contained no jurat, it was not proper summary judgment evidence). These cases were decided prior to the most recent Texas Supreme Court case that is directly on point with the present case. See Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex.1995) (org.proceeding).

In Ford Motor Co., the supreme court rejected the argument that an affidavit was invalid due to a defective jurat, because the affidavit met the Texas statutory requirements for affidavits. Id. at 645. The supreme court noted that the affidavit was proper, even without the jurat, because it contained an acknowledgment and recited that the affiant “was ‘first duly sworn,’ and ‘on his oath’ stated what followed.” Id.

In the present case, the affidavit contained an acknowledgment and it further stated that McCauley personally appeared before the notary, “duly swore upon his oath, deposed and stated” the information that followed. Then, in the affidavit, McCauley stated that he was authorized to make the affidavit and that he had personal knowledge of the facts stated therein. We conclude, therefore, that even without a jurat, the affidavit constitutes proper summary judgment proof because it meets Texas’ statutory requirements for affidavits. See id.

CONCLUSORY STATEMENTS IN THE AFFIDAVIT

Additionally, Appellees object to McCau-ley’s affidavit on the grounds that the statements contained therein were made by a self-interested witness and the statements were legal and factual conclusions. The affidavit stated the following contentions:

1. In July, 2003, Residential Dynamics, LLC and Defendants discussed marketing various lots located in a larger tract of property owned by Defendants.
2. Residential Dynamics, LLC and Defendants reached an agreement concerning adding improvements to Lot 27, Lake Country Estates, a/k/a/ 152 Price Circle, Hackberry, Texas 75034.
3. The agreement provided that Residential Dynamics, LLC would put a manufactured home on the property and would also perform various improvements to the property, including adding a septic system, driveway and other concrete work, and other improvements.
4. Upon completion of the improvements, the property was to be sold, and Defendants were to receive the first $35,000 from such sale, said amount to pay Defendants for the cost of the lot.
5. Upon the sale, any proceeds in excess of $35,000, were to be retained by Residential Dynamics, LLC.
6. Although the agreement was never reduced to writing, Residential Dynamics, LLC performed its obligations under the agreement.
7. Residential Dynamics, LLC incurred expenses in performing under the terms of the agreement. Specifically, Residential Dynamics, LLC has incurred damages in the amount of $75,532.53. This includes the cost for the manufactured home as well as the cost for the other materials and labor in developing the lot.
8. All such improvements are still on Lot 27.
9. Residential Dynamics, LLC has not yet received any compensation for any of the improvements constructed or placed on Lot 27.

To prove facts through an interested witness, the testimony must be uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being readily controverted. Tex.R. Civ. P. 166a(c). Testimonial statements by an interested witness that meet these requirements may be the basis for a summary judgment. Id.; Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Affidavits consisting only of conclusions are, however, insufficient to raise an issue of fact in response to a motion for summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) (holding that a statement in an affidavit that “his contractual obligation had been modified” was nothing more than a legal conclusion and the affidavit should have gone further to specify factual matters such as the “time, place, and exact nature of the alleged modification”). Con-clusory statements are not credible or susceptible to being readily controverted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). A conclusory statement is one that does not provide the underlying facts to support the conclusion. Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.).

1. Breach of Contract Claim

In order to prove a breach of contract, a plaintiff must demonstrate: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

The statements in the affidavit are not entirely conclusory. For example, the affidavit lists the basic terms of the agreement, states that Appellant performed its obligations, and states the amount of expenses that Appellant incurred in performing, specifying what some of the expenses were. The statements provide the basic underlying facts to support the conclusion that an agreement was made, Appellant tendered performance and Appellees did not, and Appellant suffered damages as a result of Appellees’ failure to perform. See De La Morena v. Ingeniería E Maquinaria De Guadalupe, S.A., 56 S.W.3d 652, 658 (Tex.App.-Waco 2001, no pet.) (holding that certain statements in the affidavit were not conclusory). Thus, the statements in the affidavit are sufficient to raise a fact issue as to whether the parties formed an agreement, whether the agreement was breached, and whether Appellant sustained damages as a result. See Brownlee, 665 S.W.2d at 112 (holding that affidavits that merely state a legal conclusion are insufficient to raise a fact issue). Therefore, we sustain Appellant’s first point.

2. Quantum Meruit Claim

Quantum meruit is an equitable remedy which does not arise out of a contract but is independent of it. Vortt Exploration Co. v. Chevron USA, Inc., 787 S.W.2d 942, 944 (Tex.1990). Generally, a party may recover under quantum meruit only when no express contract covering the services or materials furnished exists. Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988). This remedy “is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.” Campbell v. Nw. Nat’l Life Ins. Co., 573 S.W.2d 496, 498 (Tex.1978). Recovery in quantum meruit is available when nonpayment for the services rendered would “result in an unjust enrichment to the party benefitted by the work.” City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.-Corpus Christi 1977, writ refd n.r.e.). To recover under quantum meruit a claimant must prove that: (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Vortt Exploration Co., 787 S.W.2d at 944.

Appellees contend that McCau-ley’s affidavit is not competent summary judgment evidence supporting the elements of Appellant’s claim for quantum merit because the statements contained therein are conclusory. Considering the affidavit in conjunction with the elements required for a claim for quantum meruit, we conclude that Appellant brought forward more than a scintilla of probative evidence that raises a genuine issue of material fact on each element of this cause of action.

As to the first, second, and third elements, the affidavit clearly raises a fact issue as to whether valuable services were rendered and materials were furnished for the benefit of the people to be charged, Appellees. See id. The affidavit states that Appellant performed the obligations under the agreement, which included putting a manufactured home on the property and adding a septic system, driveway, and other concrete work, among other improvements. With regard to the third element, the affidavit states that the improvements are still on Appellees’ property; therefore, a fact issue is raised as to whether the services and materials have been accepted by Appellees, and whether Appellees are enjoying the benefit of an improved lot. See id.

The final element of quantum meruit requires that the services or property be rendered under such circumstances as to have reasonably notified the Appellees that Appellant, in performing such services, was expecting to be paid by Appellees. See id. Here, the affidavit states that Appellees and Appellants discussed marketing various lots located on a larger tract of property owned by Appellees. The affidavit further states that the parties agreed that the first improved lot would be sold and that Appellant would retain any sale proceeds above $35,000. This evidence clearly raises a fact issue about whether Appellees should have been reasonably notified that Appellant expected to be paid by Appellees following the completion of the improvements to the land.

These statements relating to proof of the elements for quantum meruit are not conclusory because they provide the underlying facts to support the conclusion, and thus, they are susceptible to being readily controverted. See Haynes, 35 S.W.3d at 178. Therefore, we hold that the affidavit is sufficient to raise an issue of fact regarding Appellant’s claim for quantum meruit; therefore, the trial court improperly granted summary judgment on this claim. Accordingly, we sustain Appellant’s second point.

CONCLUSION

Having sustained each of Appellant’s two points, we reverse the portion of the trial court’s judgment relating to Appellant’s claims for breach of contract and quantum meruit and remand those causes of action to the trial court.

      . We note that our sister courts have also considered this issue. Compare Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 395-96 (Tex.App.-Corpus Christi 2000, no pet.) (holding that an implied ruling on the objections to summary judgment evidence was shown by the record, adopting reasoning of Frazier court), with Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753 (Tex.App.-Corpus Christi 2001, pet. denied) (noting that in order to have an implicit ruling something in the summary judgment or in the record must indicate that the trial court ruled on objections, other than the mere granting of the summary judgment); Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex.App.Houston [14th Dist.] 2001, no pet.) (concluding that the appellant waived his objections to the summary judgment evidence where there was no order in the record sustaining objections, and the order granting summary judgment did not reflect that the trial court considered objections); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.-San Antonio 2000, no pet.) (rejecting the reasoning in Blum and Frazier, concluding that a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment).

      . The acknowledgment, which was signed by a notary, stated as follows: “This instrument was acknowledged before me on this the 21st day of April, 2005 by Darrell McCauley, Manager of Residential Dynamics, LLC on behalf of said limited liability company.”

      . In their briefing to this court, the parties discuss Appellees’ affirmative defense of failure to comply with the statute of frauds. Because Appellees never moved for summary judgment based on this affirmative defense,' the issue is not properly before us. See Tex R.App. P. 33.1; Tex.R. Civ. P. 94; see also Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991) (holding that party must raise affirmative defenses in motion for summary judgment).


author: COMBS, Chief Judge.

text:
    CONAGRA POULTRY COMPANY, Appellant, v. GRISSOM TRANSPORTATION, INC., Appellee.
    No. 2004-CA-002609-MR.
    Court of Appeals of Kentucky.
    March 3, 2006.
    Kerry D. Smith, Paducah, KY, for appellant.
    David L. Kelly, Paducah, KY, for appel-lee.
    Before COMBS, Chief Judge; DYCHE and HENRY, Judges.
   OPINION

COMBS, Chief Judge.

ConAgra Poultry Company (ConAgra) appeals from an order of the McCracken Circuit Court that confirmed an arbitrator’s award of $101,605.41, in favor of the appellee, Grissom Transportation, Inc. (Grissom). ConAgra argues that the circuit court denied its rights of procedural due process by refusing to consider documentary evidence presented to the arbitrator. ConAgra also contends that the court erred in failing to vacate or modify the arbitrator’s award, which it alleged was the product and result of the arbitrator’s disregard of the law applicable to damages for breach of contract. Finding no error, we affirm.

In July 2000, ConAgra entered into an exclusive contract with Grissom for transportation services. In exchange for a monthly payment equal to its actual cost plus twenty-two percent, Grissom agreed to transport ConAgra’s employees to and from their work site. The agreement was not to expire until October 31, 2002; however, ConAgra terminated its relationship with Grissom at the end of May 2002.

The parties’ written agreement required that they arbitrate any disputes arising between them. Accordingly, Grissom initiated arbitration proceedings to recover approximately $126,000 in amounts owed under the contract. ConAgra filed a counterclaim, seeking $54,000 for alleged overcharges that it had paid to Grissom.

A hearing was conducted before an arbitrator in May 2004. The proceedings were not transcribed. Neither party requested that the arbitrator render a “reasoned opinion” pursuant to the rules governing the arbitration. On June 17, 2004, the arbitrator awarded Grissom the sum of $101,605.41 without stating his reasons and denied ConAgra’s counterclaim in its entirety.

On July 23, 2004, ConAgra filed a complaint in the circuit court seeking to modify or vacate the award. It alleged that the award was incorrect because: (1) damages are not legally allowable for the termination of a “cost-plus” contract; (2) Grissom’s initial breach (in overcharging ConAgra) excused ConAgra from further performance under the contract; (3) Gris-som was not entitled to “expectancy damages”; (4) the arbitrator erroneously applied the contract in determining damages; and (5) the arbitrator erred in failing to award ConAgra damages for Grissom’s overcharges. Grissom responded to the complaint and filed an application to confirm the arbitrator’s award.

ConAgra tendered a number of exhibits to the circuit court accompanied by an affidavit stating that the materials constituted true and correct copies of exhibits that had been submitted to the arbitrator. Grissom objected to the consideration of the documents by the court, and the circuit court entered an order striking them from the record. On November 24, 2004, the court entered a final order denying ConA-gra’s petition and granting Grissom’s application for confirmation of the arbitrator’s award. This appeal followed.

ConAgra acknowledges in its brief that judicial review of a decision rendered by an arbitrator must be highly deferential. See, 3D Enterprises Contracting Corporation v. Lexington-Fayette Urban County Government, 134 S.W.3d 558 (Ky. 2004). KRS 417.160, the relevant portion of the Kentucky Uniform Arbitration Act, limits the grounds for vacating an arbitration award to the following situations:

(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) The arbitrators exceeded their powers;
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of KRS 417.090, as to prejudice substantially the rights of a party; or
(e) There was no arbitration agreement and the issue was not adversely determined in proceedings under KRS 417.060 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court is not ground for vacating or refusing to confirm the award.

KRS 417.170 severely restricts a court’s ability to enter a judgment which deviates from the arbitrator’s award. This statute permits judicial modification of an award only in the following circumstances:

(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.

An examination of ConAgra’s complaint reveals that it did not allege the existence of any of the statutory grounds for vacating or modifying the arbitrator’s award. Instead, it sought to be relieved of the arbitrator’s award on the basis either that the arbitrator misapplied the law of damages relative to breach of contract or that he erred in failing to resolve the facts in its favor. However, an arbitrator’s resolution of factual disputes and his application of the law are not subject to review by the courts. 3D Enterprises, supra.

Even if we were not circumscribed by this highly limited standard of review, we would affirm the court’s judgment. Without a transcript of the arbitration proceedings, the court was required to assume that the evidence supported the arbitrator’s decision. See, Dillard v. Dillard, 859 S.W.2d 134, 137 (Ky.App.1993). Additionally, we are not persuaded that any error of law is reflected in the arbitrator’s award.

Although ConAgra has cited several cases from other jurisdictions concerning the proper measure of damages in the context of the breach of a cost-plus contract, it has not cited a case from this jurisdiction in support of its argument that the arbitrator’s award is out of line. Because ConAgra opted not to be provided with a reasoned decision authored by the arbitrator and because the arbitrator did not award Grissom all the damages that it requested, we are not able to determine exactly what elements of damage were awarded. Absent some foundation in the record as to the rationale for the award, we cannot assume or speculate that the award is inappropriate as a matter of law.

ConAgra relies on Carrs Fork Corp. v. Kodak Mining Company, 809 S.W.2d 699, 703 (Ky.1991) as authorizing the court to review the arbitrator’s award for mistakes of law. In that case, the Kentucky Supreme Court discussed a previous version of KRS 417.180 and observed that a court could vacate an arbitration award and correct legal errors pursuant to its equitable powers. On page 16 of its brief, ConAgra recites the following persuasive language from the concurring opinion in Carrs Fork to support its contention that an error of law justifies the reversal of an arbitrator’s award:

There is a need to expedite the termination of controversies. Arbitration may be one such vehicle. But under our constitution neither the parties nor the arbitrators can tie the hands of the court on questions of law.

Id. at 703.

However, in 3D Enterprises Contracting Corporation, supra, a much more recent case, our highest court stated emphatically that the equitable powers doctrine invoked in Carrs Fork has no application to contracts requiring arbitration that were “entered into after [July 13, 1984], the effective date of the [Kentucky Uniform Arbitration] Act.” Id., at 562-563. It also held:

“[A]ll arbitration awards arising from agreements entered into after the effective date of the Act may only be set aside by a court pursuant to those grounds listed in the Act.”

Id., (emphasis added). As there was no suggestion presented to the circuit court that the award was tainted as required by KRS 417.160 or miscalculated as contemplated by KRS 417.170, the court did not err in confirming the award.

Finally, ConAgra contends that for it to have had any meaningful chance of prevailing in the circuit court, a review of the exhibits that it tendered was required. Because ConAgra failed to assert any of the statutory grounds necessary for a substantive review of the award, we conclude that this issue is moot. In undertaking our own independent review of the documents, we discovered no evidence of fraud, misconduct, or bias on the part of the arbitrator. Thus, the exhibits were not relevant to the court’s inquiry, and the court did not abuse its discretion in striking the exhibits from the record. Additionally, without a transcript of the evidence to assist in putting the exhibits in a proper context, we cannot comprehend or appreciate their impact on the evidence examined by the arbitrator. Thus, we are constrained from speculation.

The judgment of the McCracken Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.