text:
    TEXAS STATE TECHNICAL COLLEGE, Martha Ellis, Charles Reed, Donny Harland, and Richard Morris, Appellants, v. Ralph CRESSMAN, Paula Schnizer, Joe Magourik, Greg Mosby, and Jimmy Daws, Appellees.
    No. 10-04-00325-CV.
    Court of Appeals of Texas, Waco.
    Aug. 3, 2005.

      William T. Deane, Asst. Atty. General, Austin, for Appellants.
    Jon R. Ker, Hewitt, for Appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Texas State Technical College (“TSTC”) and several of its administrators and employees bring this interlocutory appeal from the trial court’s denial of a summary judgment motion premised on statutory interpretation and official immunity. They contend in two issues that the court erroneously denied the summary judgment motion because: (1) the conduct at issue did not violate Chapter 123 of the Civil Practices and Remedies Code; and (2) they are entitled to judgment on the basis of official immunity.

The underlying litigation involves three lawsuits which were consolidated by agreement into cause no. 2000-1243-4. Two of these lawsuits were filed against TSTC by Appellees and one other person who is not a party to this appeal and allege claims for age, race, and gender discrimination and for retaliation. The third lawsuit was filed by Appellees against Appellants Martha Ellis, Charles Reed, Donny Harland, Richard Morris, and three others who are not parties to this appeal and alleges claims for: (1) illegal eavesdropping in violation of Chapter 123 of the Civil Practice and Remedies Code; (2) violation of right to privacy under color of state law in violation of 42 U.S.C. § 1983; (3) invasion of privacy; (4) conspiracy to violate civil rights in violation of 42 U.S.C. § 1985(3); and (5) intentional infliction of emotional distress.

Scope of Appeal

Section 51.014(a)(5) of the Civil Practice and Remedies Code permits an interlocutory appeal from an order which “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” Such an appeal may be brought by the officer/employee and/or by the governmental unit by which he/she is employed. See City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995) (per curiam); City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 891 (Tex.App.Fort Worth 2001, pet. denied).

In response to an inquiry from the Clerk of this Court, TSTC avers that it is not a party to this appeal because “only the individual Defendants can assert official immunity.” In addition to being incorrect as a legal proposition, this response does not explain why TSTC is listed as an appellant in the notice of appeal. At a more fundamental level however, TSTC was not a party to the motion for summary judgment which is the subject of this appeal. Thus, we conclude that the portion of this appeal purportedly brought by TSTC presents nothing for review. Cf. Powell v. Foxall, 65 S.W.3d 756, 758 n. 1 (Tex.App.-Beaumont 2001, no pet.) (appellate decision would have no effect on defendant who was not party to summary judgment motion nor included in notice of appeal).

Appellants challenge the court’s ruling on their claim of official immunity and on their contention that Appellees’ allegations do not state a violation of Chapter 123 as a matter of law. However, the scope of this interlocutory appeal is limited by section 51.014(a)(5) to the immunity question. See City of Alamo v. Holton, 934 S.W.2d 883, 836 (Tex.App.Corpus Christi 1996, no writ); Richardson v. Parker, 903 S.W.2d 801, 803 (Tex.App.-Dallas 1995, no writ); Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.-Houston [1st Dist.] 1993, no writ); cf. Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720-21 (Tex.App.-Austin 2001, pet. denied) (under section 51.014(a)(6), appellate court may consider any issue raised in summary judgment motion premised at least in part on First Amendment claim or defense); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 429 (Tex.App.-Waco 1997, writ denied) (same). Therefore, we will not address Appellants’ first issue. We will address Chapter 123 only to the extent that it may be relevant to the issue of official immunity. See Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 696-97 (Tex.App.-San Antonio 1997, no writ) (“where the legality of a defendant’s actions depends on the defendant’s motive or intent, the qualified immunity analysis necessarily encompasses a consideration of the defendant’s intent”).

Appellants contend in their second issue that they conclusively established their entitlement to judgment on the issue of official immunity. Appellees respond that Appellants’ official immunity claim is barred by res judicata and a genuine issue of material fact remains on the question of whether Appellants acted within the scope of their authority because their conduct violated Chapter 123 of the Civil Practice and Remedies Code, section 16.02 of the Penal Code, and article 18.20 of the Code of Criminal Procedure.

Res Judicata

When Appellees filed their first amended petition stating federal claims, Appellants removed the suit to federal court. The federal district judge granted Appellants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified immunity. The Fifth Circuit vacated this dismissal order holding that “[i]f a reasonable government agent would know that the audio and video recordings were clearly illegal, there could be no qualified immunity.” Cressman v. Ellis, 77 Fed.Appx. 744, 746 (5th Cir.2003) (per curiam) (not designated for publication). Appellees contend that this decision bars Appellants from further pursuing official immunity under the doctrine of res judicata.

The issue of whether a federal judgment precludes a party from litigating claims in state court is governed by federal law. John G. & Marie Stella Kenedy Meml. Found, v. Dewhurst, 90 S.W.3d 268, 287 (Tex.2002). Under federal law, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Rivet v. Regions Bank of La., 522 U.S. 470, 476, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1998) (quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981)); accord Kenedy Meml. Found., 90 S.W.3d at 287-88.

Here, there has been no final judgment on the merits. Accordingly, res judicata does not apply.

Scope of Authority

Official immunity shields a government employee from liability if the actions which form the basis for the plaintiffs suit arise from the performance of (1) discretionary duties, (2) in good faith, and (3) within the scope of the government employee’s authority. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex.2004) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)). Appellees contend that Appellants’ conduct cannot have been within the scope of their authority because it is illegal under the statutes cited. However, we agree with Appellants that the legality of their conduct, standing alone, is irrelevant to the issue of whether they were acting within the scope of their authority.

Appellees rely on a line of cases which began in 1987 with Bagg v. University of Texas Medical Branch at Galveston. 726 S.W.2d 582 (Tex.App.-Houston [14th Dist.] 1987, writ ref d n.r.e.). In Bagg, one issue was whether the State’s immunity from suit was waived by the “[u]nlawful or unauthorized actions” of two State employees. See id. at 585. Quoting Cobb v. Harrington, the Fourteenth Court observed:

The acts of officials which are not lawfully authorized are not acts of the State, and an action against the officials by one whose rights have been invaded or violated by such acts, for the determination and protection of his rights, is not a suit against the State within the rule of immunity of the State from suit.

Id. (quoting Cobb, 144 Tex. 360, 190 S.W.2d 709, 712 (1945)).

After concluding that the State’s immunity from suit cannot be waived when a State employee commits an “unlawful or unauthorized” action, the Fourteenth Court next determined that State employees “can ... be sued in their individual capacities for wrongful unofficial acts.” Id. at 586.

Since Bagg, several courts have repeated the language that a government employee is not protected by official immunity if he engages in “unlawful or unauthorized actions.” See e.g. Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex.App.-Fort Worth 1998, pet. denied); Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859, 869 (Tex.App.-Texarkana 1994, no writ); Lowrey v. Univ. of Tex. Med. Branch at Galveston, 837 S.W.2d 171, 176 (TexApp.-El Paso 1992, writ denied); see also Camacho v. Samaniego, 954 S.W.2d 811, 822 (Tex.App.-El Paso 1997, pet. denied) (government official not protected by official immunity when he acts on behalf of State but engages in conduct unauthorized by statute).

In our view however, the Fourteenth Court (and those which followed it) improperly severed the term “not lawfully authorized” into two separate components: unlawful or unauthorized. This severance is improper because an unlawful act is not necessarily unauthorized and an unauthorized act is not necessarily unlawful.

For purposes of official immunity, the central issue is not the legality of the government employee’s conduct. Rather, the issue is whether the government employee is acting “within the scope of [his] authority.” Ballantyne, 144 S.W.3d at 422; City of Lancaster, 883 S.W.2d at 653. As the Texarkana Court recently observed, “If a government employee acts within the scope of his employment in the performance of a discretionary duty and acts in good faith, he is entitled to official immunity even though his acts are negligent, or even illegal.” Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex.App.-Texarkana 2004, pet. denied) (emphasis added); accord City of Lancaster, 883 S.W.2d at 658 n. 9 (“the [U.S. Supreme] Court rejected this very argument when it rejected the notion that an officer necessarily operates outside of the scope of the officer’s authority when acting unlawfully”) (citing Anderson v. Creighton, 483 U.S. 635, 644-45, 107 S.Ct. 3034, 3041-42, 97 L.Ed.2d 523 (1987)).

The lawfulness of a government employee’s conduct may have a bearing on whether the government employee acted in good faith. See City of Lancaster, 883 S.W.2d at 656 n. 5 (the statute governing the duty emergency vehicle operators owe to others “may be read to inferentially rebut the defense of official immunity for operators of emergency vehicles in some instances by collapsing the duty and good faith inquiries”). Nevertheless, a statutory violation “does not preclude application of the official immunity doctrine.” Id.

Here, Appellees do not contend that Appellants were not acting in good faith. The Supreme Court has rejected Appel-lees’ contention that Appellants were acting outside the scope of their authority because they were acting unlawfully. See id. at 658 & n. 9; accord Johnson, 142 S.W.3d at 594. Thus, Appellants conclusively established their entitlement to judgment on the issue of official immunity. Accordingly, we sustain Appellants’ second issue.

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

      . Before consolidation, these two suits were styled: (1) Ralph Cressman, Otis Smith, Joe Magourik, Greg Mosby, and James Daws v. TSTC (cause no. 2000-1243-4); and (2) Paula Schnizer v. TSTC (cause no. 2001-1634-4). Otis Smith is not a party to this appeal because he was not a party to cause no. 2000-1243-4 when Appellants filed their summary judgment motion. Cf. Powell v. Foxall, 65 S.W.3d 756, 758 n. 1 (Tex.App.-Beaumont 2001, no pet.) (appellate decision would have no effect on defendant who was not party to summary judgment motion nor included in notice of appeal).

      .The third lawsuit (cause no. 2001-3082-4) was styled Ralph Cressman, Paula Schnizer, Joe Magourik, Greg Mosby, and James Daws v. Martha Ellis, Charles Reed, Donny Har-land, Richard Morris, Abdon Rodriguez, Ray Rushing, and Murray Watson, Jr. and Associates. The plaintiffs voluntarily dismissed their claims against Abdon Rodriguez when they omitted him from their first amended petition. See Woodruff v. Wright, 51 S.W.3d 727, 731 (Tex.App.-Texarkana 2001, pet. denied). The law firm of Murray Watson, Jr. and Associates is not a party to this appeal because the plaintiffs formally dismissed their claims against the firm. Ray Rushing is not a party to this appeal because he was not a party to cause no. 2000-1243-4 when Appellants filed their summary judgment motion and because his name is not included in the notice of appeal. See Tex.R.App. P. 25.1(c) (any party "who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal”); cf. Powell, 65 S.W.3d at 758 n. 1.

      . These are the allegations of the Plaintiffs' First Amended Original Petition. Appellees have included in the appendix to their brief a Plaintiffs’ Seconded Amended Original Petition which does include the federal claims alleged in the first amended petition. However, this second amended petition does not appear in the clerk’s record, and according to the district clerk, it was never presented for filing.

      . See e.g. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995).

      . Any reference hereinafter to "Appellants” is to the individual appellants Martha Ellis, Charles Reed, Donny Harland, and Richard Morris.

      . Section 51.014(a)(6) permits an interlocutory appeal from an order which:
      denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73.
      Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6) (Vernon Supp.2004-2005).

      . Appellants pray that we reverse and render judgment in their favor. We decline to do so however because of the numerous claims which apparently remain pending in the trial court because of the agreed consolidation orders.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    Deanna DOMINEY, Individually and as Administrator of the Estate of Donald J. Dominey, Appellant, v. THE UNKNOWN HEIRS AND LEGAL REPRESENTATIVES OF Linda LOKOMSKI and Kenneth Lokomski, Deceased and Rick Runge, Appellees.
    No. 2-04-058-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 4, 2005.

      Bill E. Burdock, Saginaw, for Appellant.
    E. Glenn Gidel, Port Worth, for Appel-lees.
    Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This case involves the attempted foreclosure of a vendor’s hen on real property. After a bench trial, the trial court awarded title of the property to appellees, the unknown heirs and legal representatives of Linda and Kenneth Lokomski, deceased, and Rick Runge; found that the holder of the vendor’s hen — Deanna Dominey, individually and as administrator of the estate of Donald J. Dominey — wrongfully possessed the property; and awarded appel-lees $30,500 plus court costs. In three issues, appellant contends that the trial court committed reversible error in awarding possession of the property to the ap-pellees free and clear of any hens even though appellant was a mortgagee in possession, in finding that the suit was barred by the four-year statute of limitations, and in finding that appellant and her deceased husband, Donald J. Dominey, wrongfully deprived appellees of the property. We affirm.

Factual Background

In 1987, Stelleta Weir sold a home to Linda and Kenneth LokomsM for cash and a $23,000 promissory note. The note was secured by a deed of trust and express vendor’s lien retained in the deed. Linda moved to a nursing home in 1993, and Kenneth died in November 1996. In November 1996, the City of Lake Worth scheduled the home for demolition due to its poor condition. The Domineys heard about the scheduled demolition at a city council meeting, drove by the house, and estimated how much it would cost to make the necessary repairs. They then obtained a document entitled Transfer of Lien from Weir, which purported to transfer Weir’s vendor’s and deed of trust liens on the property to them.

The Domineys took possession of the property to make the repairs. On December 16, 1996, they filed a warranty deed in the Tarrant County property records purporting to rescind the contract between themselves as holders of the vendor’s lien and the Lokomskis as the vendees. The Domineys spent $12,000 repairing the home. They then entered into an executo-ry contract with Daniel Wilson for the sale of the home. In anticipation of transferring title to Wilson, appellant received the results of a title search, which showed that title was still vested in the Lokomskis or their heirs.

Appellant then filed this action to foreclose on the liens. After a bench trial, the trial court found, among other things, that title to the property was vested in appel-lees free and clear of any liens, that the deed of trust and vendor’s liens were barred by limitations, and that the Domi-neys had wrongfully taken possession of the property in 1996, entitling appellees to damages for the wrongful possession.

Analysis

Because the resolution of this case turns upon whether the Domineys lawfully took possession of the property in December 1996, we will address those issues first. In her third issue, appellant contends that the evidence does not support the trial court’s finding that the Domineys took possession of the property without the consent of Linda or Kenneth’s heirs because appellant’s evidence shows that their consent was not necessary. She also challenges the trial court’s conclusion that the Domineys committed a trespass to, and interfered with the owners’ right to possession of, the property when they took possession of it.

Standard of Review

Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

Appellant’s issue complains generally that the evidence does not support the trial court’s findings. Thus, construing her brief liberally, as we must, we will review the trial court’s findings for both legal and factual sufficiency. See Tex.R.App. P. 38.9; Interstate Apartment Enters., L.C. v. Wichita Appraisal Dist., 164 S.W.3d 448, 453 n. 3 (Tex.App.-Fort Worth 2005, no pet.).

A “no evidence” issue may be sustained only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

Appellant argues in her third point that she was entitled to take possession of the property under the deed of trust lien, the vendor’s hen, or both. Thus, she appears to be arguing that the evidence at trial conclusively establishes the opposite of a vital fact.

In determining appellant’s “no evidence” issue, we are to consider the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 819, 48 Tex. Sup.Ct. J. 848, 863, 2005 WL 1366509, at *14 (Tex. June 10, 2005). The ultimate question we must answer is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id.

An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert, denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. Rogers v. City of Fort Worth, 89 S.W.3d 265, 277 (Tex.App.Fort Worth 2002, no pet.).

Discussion

The evidence at trial was as follows. Rick Runge, Linda’s son, testified that Linda moved to a nursing home permanently in fall 1993. He thought Donald paid the taxes on the house after the Do-mineys took possession of it. When asked why Linda didn’t pay the taxes if she owned the property, Runge answered that once she received the letter from the Do-mineys stating that the vendor’s lien had been rescinded, she thought she didn’t own the property anymore. Linda did not make any payments on the house after December 1996, but Runge understood from Linda that the note had been “paid” when Weir transferred it to the Domineys.

Appellant testified that in December 1996, the house was vacant and looked like vagrants had been in it. The Domineys thought it had been abandoned because there was no “gas, electric, or water to the house; and the windows were broken and there were no doors.” She said that Donald went to visit Linda in the nursing home to tell her he had purchased the vendor’s hen on the property and ask her if she was going to “return to the house to make payments on it.” She did not say what Linda’s answer was, but she did testify that Linda did not make any payments after that. According to appellant, the Lokomskis had defaulted on the note before the Domineys purchased the lien. Appellant stated that they gained the right to take possession of the home by virtue of the vendor’s lien. When asked whether the Lokomskis ever gave them permission to rent the house, appellant answered, “Mr. Lokomski was deceased and Mrs. Lokomski was in a nursing home.”

Although appellant testified that the Lokomskis were behind on the note payments when Weir transferred the note and lien to the Domineys and when the Domi-neys took possession of the house, she did not testify as to how much Linda owed them, either at that time or at the time of trial. Appellant did introduce into evidence an amortization schedule for a payment identical to the note at the identical percentage rate and the identical principal amount shown on the note and a standard amortization chart for the same amount. This evidence shows that payments would have been due between December 1996 and June 1997 if the Lokomskis had made payments on the note solely in accordance with the regular monthly payments described in the note, but there is no evidence that they actually paid according to that schedule.

Because there is no evidence in the record that Linda expressly consented to the Domineys’ possession of the property, appellant contends that as the then holders of the superior title, she and her husband were entitled to rescind the contract and take possession of the property as a result of Linda’s default. She also claims that the evidence shows she and her husband were entitled to take possession under either the deed of trust or the vendor’s lien. She contends that the following defaults entitled them to do so: the Lokomskis’ failure to make payments on the note; failure to pay taxes; failure to keep the property in good repair; and failure to keep the property insured.

The deed of trust provides that the failure to perform the obligations listed above entitles the beneficiary under the deed of trust to perform the obligations and recover any amount paid as additional principal under the note. But the deed of trust does not give the mortgagee the right to possession under those circumstances without first initiating foreclosure proceedings in accordance with the deed of trust. See State v. First Interstate Bank of Tex., N.A., 880 S.W.2d 427, 429 (Tex. App.-Austin 1994, writ denied). Appellant claims that under these circumstances she has an implied right of possession under the deed of trust, but she cites no authority supporting this proposition. See Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex.App.-Fort Worth 2004, pet. denied) (waiving point on appeal for failure to cite authority).

Appellant further claims that she and her husband were entitled to take possession under the vendor’s lien because (1) Linda had abandoned the property and (2) the Domineys validly rescinded the contract and took possession of the property in satisfaction of the vendor’s lien. Appellant did not challenge the trial court’s finding that Linda did not abandon the property. Unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex.App.-Fort Worth 1999, no pet.).

“Abandonment is the relinquishment of a right by the owner with the intention to forsake and desert it.” Tex. Water Rights Comrn’n v. Wright, 464 S.W.2d 642, 646 (Tex.1971). Whether abandonment exists is a question of fact. City of Anson v. Arnett, 250 S.W.2d 450, 454 (Tex.Civ.App.-Eastland 1952, writ ref'd n.r.e.). Intent to abandon must be shown by clear and satisfactory evidence. Id. Nonuse of a right is not sufficient to show abandonment unless the failure to use is long-continued and unexplained. Id.

Runge testified that in October 1996 he cleaned up the property at Linda’s request because she had received notice that the City of Lake Worth had set a hearing regarding code violations on the property. At that time, the property was liveable and had a door, windows, a roof, and working plumbing and electricity. In November 1996, the City scheduled the home for demolition due to its poor condition. There is no evidence that Linda had any notice or knowledge of the City’s action; the notice was addressed to Kenneth and Linda Lokomski at the property address, and the envelope it was sent in was marked “RETURN TO SENDER[.] LOKOMSKI MOVED[.] LEFT NO ADDRESS[.] UNABLE TO FORWARD.” Dominey testified that when she and her husband took possession of the property it was vacant, appeared to have been inhabited by vagrants, and had no working utilities. Runge testified that his mother did not make tax payments on the property after December 1996 because when she received the notice of rescission from the Domineys, she thought she no longer owned the property.

We hold that the trial court’s finding that Linda did not abandon the property is supported by evidence and that appellant did not establish as a matter of law that Linda abandoned the property. Thus, the Domineys were not entitled to rescind on that basis.

We next consider appellant’s contention that she and her husband were entitled to possession of the property by virtue of the vendor’s lien. When an express vendor’s lien is retained to secure unpaid purchase money, the vendor holds superior title, and the vendee has a mere equitable right to acquire title by carrying out the agreement. State v. Forest Lawn Lot Owners Ass’n, 152 Tex. 41, 254 S.W.2d 87, 91 (1953); Lusk v. Mintz, 625 S.W.2d 774, 776 (Tex.App.-Houston [14th Dist.] 1981, no writ). The vendor has a choice of remedies on the vendee’s default in the payment of the purchase pnce: the vendor may sue for his money, rescind the contract and take possession, or sue to recover title and possession. Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568, 570 (1961); Lusk, 625 S.W.2d at 775-76. The remedy of rescission is separate and distinct from and wholly independent of the remedies to enforce payment. Lusk, 625 S.W.2d at 776; Bunn v. City of Laredo, 245 S.W. 426, 429 (Tex. Comm’n App.1922, judgm’t adopted).

Thus, to be entitled to the remedy of rescission pursuant to a vendor’s lien, the vendor must show that the vendee has not repaid the purchase price in accordance with the note. To prove default under a promissory note, a plaintiff must establish that a certain balance is due and owing on the note. See Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex.App.-Austin 2000, pet. denied) (op. on reh’g). Appellant did not show that a certain balance was due and owing on the note when she and her husband took possession of the property. Thus, she did not show that she was entitled to rescission and to take possession of the property under the vendor’s lien. We hold that, based on the facts, the trial court correctly concluded that the Domineys wrongfully possessed the property. Accordingly, we overrule appellant’s third issue. See Robinson v. Smith, 133 Tex. 378, 128 S.W.2d 27, 33 (1939) (“In this state the mortgagee is not the owner of the land and, in the absence of an agreement that he shall have possession, is not entitled to possession.”).

In her first issue, appellant contends that her suit on the vendor’s lien is not barred by limitations because she is a mortgagee in possession. See, e.g., Myricks v. Heilbron, 170 S.W.2d 827, 829 (Tex.Civ.App.-Texarkana 1943, no writ) (holding that vendor in possession of property could assert title to property against vendee even though vendor’s lien was barred by limitations when suit filed); see also Murphy v. Sills, 268 S.W.2d 296, 311 (Tex.Civ.App.-Beaumont 1953, writ dism’d) (holding that mortgagee in possession has right to possession until paid). But in order to defeat the affirmative defense of limitations, the mortgagee must be lawfully in possession of the property; for a mortgagee’s possession to be lawful, it must be “peaceably and legally acquired[,] ... taken in good faith, free from deceit, fraud, or wrong, and without violation of any contract relation with the mortgagor.” See Wilhite v. Yount-Lee Oil Co., 140 S.W.2d 293, 296 (Tex.Civ.App.-Texarkana 1940, writ ref'd); see also Robinson, 128 S.W.2d at 30 (holding that mortgagee who obtains possession with express or implied consent of mortgagor or who has purchased property at void or irregular foreclosure sale is mortgagee lawfully in possession). We have already determined that the record supports the trial court’s finding that the Domineys wrongfully possessed the property; thus, appellant is not a mortgagee lawfully in possession of the property, and the trial court properly concluded that she cannot defeat limitations on that basis. We overrule appellant’s first issue.

In her second issue, appellant claims that the deed of trust is not barred by limitations. Section 16.035(a) of the civil practice and remedies code provides that a suit to recover real property under a real property lien or to foreclose on a real property lien must be commenced no later than four years after the cause of action accrues. Tex. Civ. PRAC. & Rem.Code Ann. § 16.035(a) (Vernon 2002). “If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.” Id. § 16.035(e). The statute includes vendor’s liens and deed of trust liens in the definition of “real property lien.” Id. § 16.035(g)(2).

The note here is payable in installments. If the Lokomskis had made regular payments as set forth in the note, and made no prepayments or additional payments, the last payment would have been due on June 30, 1997. Thus, appellant’s suit was already barred by limitations when she filed it on January 8, 2003. See id. § 16.035(a), (e). We overrule appellant’s second issue.

Having overruled appellant’s three issues, we affirm the trial court’s judgment.

      . Donald died before this suit was filed.

      . Linda died March 1, 2001.

      ."Trespass to real property occurs when a person enters another's land without consent.” Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.).

      . See Mozoch v. Sugg, 254 S.W. 770, 772-74 (Tex. Comm'n App.1923, holding approved) (holding that party claiming title to property through vendee who had abandoned property could not recover property from party in possession who claimed title under vendor even though suit on debt was barred by limitations).

      . Appellant challenged only the trial court’s finding of wrongful possession; she did not challenge its finding on damages.


author: DIXON W. HOLMAN, Justice.

text:
    Robert Darryl BURRIS, Appellant, v. The STATE of Texas, State.
    No. 2-04-417-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 4, 2005.

      Richard Gladden, Denton, TX, for Appellant.
    Bruce Isaacks, Criminal District Atty., Charles E. Orbison, Amanda Parker, Beth Hayes, Asst. District Atty., Denton, TX., for The State.
    Panel B: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

An information charged Appellant with the Class A misdemeanor offense of assault with bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2004-05). The jury found him guilty of assaulting the complainant, Steven Miller, and assessed a $500 fine and confinement of 180 days, with a recommendation that Appellant’s confinement be suspended and he be placed on community supervision. The trial court’s judgment sentences Appellant to 180 days’ confinement, probated for 24 months; as a term and condition of the community supervision, Appellant was ordered to serve 20 days in the county jail. The judgment also assesses a $500 fine, and orders Appellant to pay restitution in the amount of $2,011.52 for the complainant’s medical expenses. After careful review of each of Appellant’s issues, we will affirm.

Appellant contends the trial court’s judgment was in violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution. See U.S. Const, amend. V. Appellant first asks whether the trial court may override the jury’s verdict to suspend Appellant’s 180-day sentence and replace it with a judgment that instead orders Appellant to serve an additional sentence of 20 days’ confinement as a condition of granting him community supervision. We conclude that the trial court did not err. By entering judgment, the trial court acted in accordance with the Texas Code of Criminal Procedure. See Tex.Code Crim. PROC. Ann. arts. 42.12, § 12, 42.037 (Vernon Supp. 2004r-05).

The matter of punishment was tried to a jury that assessed punishment at a $500 fíne plus confinement in jail for 180 days, with a recommendation that the trial court probate the jail time and place Appellant on community supervision. The same day, the court ordered Appellant to begin community supervision upon the condition that he pay restitution of the complainant’s medical bills and serve a total of 20 days’ confinement on Saturdays and Sundays.

Appellant argues that the trial court violated his constitutional protection against being assessed multiple punishments for the same offense, citing U.S. Const. amend. V, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), and Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872, 1873 WL 15958 (1873). Appellant points out that the Fifth Amendment that protects against double jeopardy grants a defendant “entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.” Lange, 85 U.S. at 168, 85 U.S. 163. However, Lange was a case in which a trial court erroneously imposed both imprisonment and a fine, despite being authorized by a statute to impose only one or the other. Id. at 174, 85 U.S. 163. Double jeopardy is not present in the instant case because the code of criminal procedure authorizes the trial court to sentence Appellant as it did. See TexCode CRIM. Peoc. Ann. arts. 42.12, § 12, 42.037. See also United States v. DiFrancesco, 449 U.S. 117, 138-39, 101 S.Ct. 426, 438-39, 66 L.Ed.2d 328 (1980) (holding double jeopardy clause of U.S. Constitution is not violated by a federal criminal statute that is clear and specific and authorizes punishment by both fine and imprisonment).

Additionally, Appellant admits that he did not raise any objection at trial on the issue of double jeopardy. Appellant was obligated to raise that objection in order to preserve the issue for our consideration. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App.2000). Because an award of community supervision is a contractual privilege, not a right, conditions imposed by the trial court and not objected to are forfeited on appeal. Speth v. State, 6 S.W.3d 530, 534-35 (Tex.Crim.App.1999). Appellant did not object to the trial court’s order of jail confinement as a condition of his community supervision. We overrule Appellant’s first issue.

Appellant’s second issue asks us to determine whether the trial court’s judgment ordering Appellant to pay the complainant’s alleged medical expenses with no factual or evidentiary basis in the record violated Appellant’s federal constitutional right to due process.

During trial, the State called the complainant, Steven Miller, who testified that he had received a bill from Denton Regional Hospital that “exactly is $2,011.52.” On cross-examination, Miller testified that because he was not a physician, he could not say the procedures or services he received were both reasonable and necessary. We review restitution orders under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. [Panel Op.] 1980). Abuse that violates a defendant’s right to due process occurs when it fails to conform to three limitations on restitution that the court of criminal appeals recognizes. Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.Crim.App.1999). First, the amount of restitution must be just and be supported factually. Id. at 696. Second, the restitution must be for the offense for which the defendant is criminally liable. Id. at 697. Third, the restitution must be proper only for the victim of the offense. Id.

In this case, testimony from a witness like Miller, a victim of the crime with personal knowledge of the amount of medical expenses incurred, is adequate to support a restitution order. See Maloy v. State, 990 S.W.2d 442, 444-45 (Tex.App.Waco 1999, no pet.); Urias v. State, 987 S.W.2d 613, 614-15 (Tex.App.-Austin 1999, no pet.). Because of Miller’s testimony, the trial court did not abuse its discretion nor deny Appellant due process. We overrule Appellant’s second issue.

The third issue Appellant asserts is that the restitution order of the trial court violated Appellant’s right to due course of law under the state constitution. See Tex. Const, art. I, § 19. The court of criminal appeals has held that due process is satisfied when a restitution order is just and supported factually, as it is in this case. See Campbell, 5 S.W.3d at 696-97. We overrule Appellant’s third issue.

Appellant’s fourth issue is that the trial court’s restitution order is a violation of article 42.037 of the code of criminal procedure. However, Appellant acknowledges that his objection in the trial court “was not specifically based on the Trial Court’s non-compliance with statutory law.” His closest objection told the trial court only that he objected to any amount of restitution based on due process concerns. Appellant has waived his fourth issue. See Tex.R.App. P. 33.1(a)(1)(A); Maloy, 990 S.W.2d at 446. We overrule Appellant’s fourth issue.

Having carefully considered each of Appellant’s issues and having overruled them all, we affirm the trial court’s judgment.


author: RICHARD BARAJAS, Chief Justice.

text:
    Lizeth HERNANDEZ (f/k/a Lizeth Caro), Appellant, v. Arturo N. DE LA ROSA, Appellee.
    No. 08-04-00022-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2005.
    Rehearing Overruled Aug. 31, 2005.
    Justo Fernandez-Gonzalez, El Paso, for Appellant.

      Antonio Martínez, Jr., Firth, Johnston & Martinez, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a summary judgment granted in favor of Appellee in a lawsuit filed by Appellant related to injuries that she incurred in a traffic accident. The trial court originally granted summary judgment in favor of Appellee without specifying the grounds. Appellant appeals in two issues challenging the court’s granting of the summary judgment. For the reasons stated, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 23, 2002, Appellant filed a lawsuit against Appellee for personal injuries arising out of an automobile collision that occurred on March 19, 2001. Appellant was involved in a collision with an automobile driven by Appellee’s son, David De La Rosa. Appellee, Arturo N. De La Rosa, is divorced from David’s mother, Rosa Elena De La Rosa. Appellant did not sue David De La Rosa individually, nor did she sue Rosa Elena De La Rosa. David resides with his mother.

Appellant filed her original petition, suing Arturo, and attempting to impute the negligence of David to his father under the theory that Arturo was the owner and insured driver listed on the vehicle which David De La Rosa was driving at the time of the collision. Appellee filed two motions for summary judgment on traditional grounds and as a “no-evidence” motion. Arturo De La Rosa contended that Appellant had sued him as the owner of the vehicle involved in the collision and while alleging negligent acts and omissions of David De La Rosa, had not sued him as a party. Arturo De La Rosa contends that he is not the owner of the vehicle involved in the collision and that the statute of limitations has run, preventing the filing of any lawsuit against David De La Rosa.

He also alleged that there was no evidence that David De La Rosa was an unlicensed, incompetent, or reckless driver on March 19, 2001, negating one of the elements of liability under a theory of negligent entrustment.

In support of his motion, Arturo De La Rosa, filed three affidavits which established that the automobile involved in the collision with Appellant was a 1993 Ford Mustang that was owned by Rosa Elena De La Rosa, was awarded to Rosa Elena De La Rosa as her separate property during the divorce of the De La Rosas, and was under the custody and control of Rosa Elena De La Rosa. Appellant filed no objections to the summary judgment evidence.

Appellant filed a first amended petition on September 26, 2003 which, in addition to the previous allegations of imputed negligence, alleged negligent entrustment of the vehicle in question by Arturo De La Rosa. Also on September 26, 2003, Appellant filed her response to the motion for summary judgment. Included as an exhibit to the response is a copy of the final decree of divorce between Arturo and Rosa De La Rosa.

The trial court granted Appellee’s motion for summary judgment on November 3, 2003 without specifying the grounds. This appeal follows.

II. DISCUSSION

In Issue No. One, Appellant argues that the trial court erred in granting the summary judgment “where Appellant showed by more than a scintilla of evidence that the insured was the owner of the vehicle in question.” We read this as a legal and factual sufficiency of the evidence challenge. Issue No. Two attacks the trial court’s granting of the summary judgment because “Appellee filed no summary judgment evidence showing that David De La Rosa, was not [sic] unlicensed, incompetent or reckless driver.”

A. Summary Judgment Standard of Review

Both issues complain that the court erred in granting Appellee’s motion for summary judgment. The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.-El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. See Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex. 1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).

Under the “no-evidence summary judgment” rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. The reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n. 3 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant”).

The San Antonio Court of Appeals states the applicable standard of review for no-evidence summary judgments as follows: “ ‘A no-evidence summary judgment is essentially a pretrial directed verdict,’ and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the non-movant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

B. Issues on Review

In Issue No. One, Appellant argues that the trial court erred in granting summary judgment for the reason that the evidence presented was more than a scintilla of evidence to support Appellant’s theory that Arturo De La Rosa was the owner of the vehicle involved in the collision. In her response to the motion for summary judgment, Appellant attached a copy of an insurance policy maintained by Arturo De La Rosa which listed the 1993 Mustang vehicle as an insured vehicle under a policy issued to Arturo De La Rosa. Appellant contends that this is sufficient to establish ownership of the vehicle in question. She also attached a copy of the divorce decree between the De La Rosas arguing that the divorce decree did not dispose of the vehicle and, therefore, is the property of both ex-spouses, creating an issue regarding ownership. We disagree.

The record reflects that the copy of the insurance policy attached does include a reference to the 1993 Mustang. A review of the divorce decree, however, provides for a different interpretation than that propounded by Appellant. At page 26 of the decree, while describing the division of the marital estate and awarding property to the wife, paragraph W-7 clearly awards a motor vehicle to Rosa De La Rosa. Though the language of the decree describes the motor vehicle in general terms, the undisputed affidavits filed in Appellee’s motion for summary judgment support the implied finding of the trial court that the 1993 Mustang was awarded to Rosa De La Rosa as her property and therefore, that Arturo De La Rosa did not own the car at the time of the accident. Appellant filed no objections to the affidavits attached as summary judgment evidence and provided nothing in rebuttal. As stated previously, she argues in her brief that the automobile was not addressed by the decree when clearly it was. Her only evidence in support of ownership is the insurance policy listing the vehicle in question. We do not consider the listing alone to create more than a scintilla of evidence sufficient to create a fact question regarding ownership.

In sum, Appellant’s response is essentially a pronouncement that the insurance listing alone establishes that there are genuine issues of material fact and, therefore, Appellee’s motion for summary judgment should be denied. In fact, a review of the summary judgment evidence establishes that the evidence provided is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. See Kindred, 650 S.W.2d at 63. For the reasons stated, we overrule Appellant’s Issue No. One.

Having overruled Issue No. One, we find that we need not address Appellant’s remaining issue on review. We affirm the judgment of the trial court.


text:
    Earl BAKER and Sylvia Baker, Appellants, v. James A. PEACE, Personally and in his Capacity as Hudspeth County Judge; Pilar Ortega, Personally and in her Capacity as County Commissioner; Curtis Carr, Personally and in his Capacity as County Commissioner; Jim Ed Miller, Personally and in his Capacity as County Commissioner; and Larry Brewton, Personally and in his Capacity as County Commissioner, Appellees.
    No. 08-04-00070-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2005.

      R. Dwayne Danner, Irving, for Appellants.
    Mitchell L. Weidenbach, San Antonio, John P. Mobbs, El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the decision of the trial court entering a final judgment finding that Appellees are entitled to judgment and declaring a certain road in Hud-speth County to be a public road. For the reasons stated, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This dispute involves a determination of whether a road, marked as # 1008 on the General Highway Map, and which traverses the ranch owned by Appellants, has become a public county road as a result of implied dedication or by prescription.

The facts relevant to this dispute are clearly established by the appellate record. Earl and Sylvia Baker purchased certain property in Hudspeth County in 1999 for the purpose of ranching. Included within the boundary of the ranch is the road which has become the focus of this dispute and which is referred to as the Hot Wells/ Green River Road and which is delineated on a map, included as an exhibit, as # 1008 of the General Highway Map of the State of Texas. Shortly after taking possession of the ranch, the Bakers installed a lock on a gate which prevented access by the public.

In February of 2001, the Bakers filed suit against the Hudspeth County Judge and the County Commissioners, individually and as County Commissioners. The case proceeded to trial on the Bakers’ Fourth Amended Original Petition for Declaratory Judgment where they sued the County Judge, County Commissioners, and the Federal Aviation Administration seeking a declaration that the road in question be declared to be their private property. The case was ultimately tried before the court and the trial court entered a judgment in favor of Appellees, Hudspeth County and its County Judge and Commissioners, declaring the road in question is a public road and that the public and the County have the right to maintain and use the road without obstruction. Appellants filed a notice of appeal and request for findings of fact and conclusions of law. The trial court filed its findings of fact and conclusions of law on May 17, 2004. The Bakers appeal raising four issues.

II. ISSUES ON APPEAL

In four issues, Appellants complain of the findings of facts and conclusions of law found and filed by the trial court below. Issue Nos. One and Two complain that the trial court erred in finding that there was no evidence or insufficient evidence to support the court’s finding of implied dedication. Issue Nos. Three and Four question whether there is legally sufficient or factually sufficient evidence to support the trial court’s finding of a prescriptive easement as applied to the road in question.

III. STANDARD OF REVIEW

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding is factually insufficient or so against the great weight and preponderance as to be manifestly unjust. Id.

An “insufficiency” point invokes a broader standard, requiring this Court to consider all of the evidence and ascertain whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

IV. DISCUSSION OF EVIDENCE

After a trial to the court, the court entered findings of fact and conclusions of law. The Appellants have filed only general issues that complain only of the findings related to the implied dedication of the road in question and whether the doctrine of prescriptive easement applied. We read Issue Nos. One and Two together. Because they are dispositive of this appeal, we do not reach Issue Nos. Three and Four.

The evidence at trial was essentially undisputed. Both sides agreed that the roadway in question was an unimproved dirt road as stipulated by the parties and described on various maps, as # 1008, located in Hudspeth County and generally running parallel to certain railroad tracks. The FAA is a party to this action because the FAA entered into a lease with the previous owners of part of the Baker ranch for a road easement that allowed for construction of a road through the Baker property to provide access to the top of Eagle Peak. The disputed road includes approximately 800 or 900 feet of road that has been paved by the federal government and continues to provide access to Eagle Peak. The beginning portion of the improved road connects to the county dirt road which turns off toward the southwest and continues across the Baker property as road # 1008. Appellants and the FAA contend that the road is a private road that has been used by the public with the permission of the previous owners. Once the Bakers took possession of the ranch, they installed a lock on the gate which resulted in the dispute presently before us.

Many witnesses were called regarding the history and use of the road in question. The Bakers presented evidence regarding the reasons they desired to close the road. After a two-day trial, the trial court entered a judgment in favor of the County and found that the road was a public road that had been used by the general public on a consistent and regular basis since 1928 and met the criteria for a finding of implied dedication to the public of the right-of-way. The trial court also found that the common law easement to the public was established long before September 1, 1981, and that the public has obtained a prescriptive easement in roads # 1007 and # 1008.

When both legal and factual sufficiency issues are raised, we are required to rule on the legal insufficiency issue first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). If we find some evidence to support the verdict, we will then review the claim of factually insufficient evidence. Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1996, writ denied). A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner, 958 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). We consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If there is any evidence of probative force to support the challenged findings, the legal sufficiency challenge fails. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

When presented with a factual insufficiency issue, we must review the entire record, and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact finder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Accordingly, we may not pass upon the witnesses’ credibility or substitute our judgment for that of the fact finder, even if the evidence would clearly support a different result. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986).

In 1981, the Legislature abolished the common law doctrine of implied dedication as a means of establishing that a particular road running through private property was a public road. See Act of May 31, 1981, 67th Leg., R.S., ch. 613, §§ 1, 2 & 4, 1981 Tex. Gen. Laws 2412 (current version at Tex. Transp. Code Ann. §§ 281.002, 281.003 (Vernon 1999)). As there is no provision in the statute for retroactive application, it can only be applied prospectively. See Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984). If an implied dedication occurred prior to that date by a previous owner, a subsequent purchase of the property does not affect the dedication. See O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 881-82 (1960); County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex.App.-San Antonio 1999, pet. denied).

Implied Dedication

“Dedication” is the act of appropriating private land to the public for any general or public use. Scott v. Cannon, 959 S.W.2d 712, 718 (Tex.App.-Austin 1998, pet. denied). Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public. Id. There are four essential elements of implied dedication: (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas Pecan & Cattle Company, Inc., 682 S.W.2d at 256. Whether a public right-of-way has been acquired by dedication is a question of fact. Lindner v. Hill, 691 S.W.2d 590, 591-92 (Tex.1985); Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978).

As a general rule, the intention to dedicate must be shown by something more than an omission or failure to act or acquiesce on the part of the owner. Greenway Parks Home Owners Ass’n v. City of Dallas, 159 Tex. 46, 55, 312 S.W.2d 235, 241 (1958). There must be evidence of some additional factor that implies a donative intention when considered in light of the owner’s acquiescence in the public’s use of the roadway. Long Island Owner’s Ass’n v. Davidson, 965 S.W.2d 674, 681 (Tex.App.-Corpus Christi 1998, pet. denied). The additional factor may include (1) permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of facilities for general public use; (4) an express representation by the owner of a road to a land purchaser that the way is reserved for public use; (5) fencing off the roadway from the remainder of the land; or (6) obtaining a reduction in the purchase price commensurate with the area of the roadway. Id.

Direct evidence of an overt act or a specific declaration on the part of the landowner indicating an intention to dedicate land to public use as a roadway is not required. Gutierrez v. County of Zapata, 951 S.W.2d 831, 838 (Tex.App.-San Antonio 1997, no writ). It is sufficient if the intent is properly inferable from the circumstances in evidence. Id.; Owens v. Hockett, 151 Tex. 503, 505, 251 S.W.2d 957, 958 (1952). As the Supreme Court of Texas explained in Owens v. Hockett: The theory of implied dedication carries with it the idea that the owner consented to the use of his land as a highway to the extent that the court will hold that he dedicated it to public use, whether by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use. Id. at 507, 251 S.W.2d at 959. There the court sustained a jury finding of implied dedication for public use, based upon evidence that (1) the road in question had been used by the public for many years prior to the time the landowner erected a fence across it, (2) the landowner knew the road was being used by the plaintiffs and the general public, (3) the landowner and others knew that the County had repaired and graded the road on many occasions, and (4) the property along the roadway was fenced. Id. at 506, 251 S.W.2d at 958-59.

Thus, there must be something more than an omission or failure to act or acquiescence on the part of the landowner. Gutierrez, 951 S.W.2d at 838-39. However, the “something more” need not rise to the level of an overt act or an explicit declaration demonstrating a donative intention. Id. at 839. It is enough that a donative intention be inferred from evidence showing other factors that suggest such an intention under all of the circumstances surrounding the landowner’s acquiescence in the public’s use of the roadway. Id.; Owens, 151 Tex. at 507, 251 S.W.2d at 959.

In addition, evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time. Graff v. Whittle, 947 S.W.2d 629, 637 (Tex.App.-Texarkana 1997, writ denied); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1992, writ denied). For this rule to apply, the origin of the public use and the ownership at that time must be “ ‘shrouded in obscurity, and no proof can be adduced showing the intention of the owner in allowing the use.’ ” Fazzino, 886 S.W.2d at 274 (citing Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex.Civ.App.-Fort Worth 1954, writ refd n.r.e.)). Thus, in Fazzino, the court upheld the jury’s finding of an implied dedication based on (1) the testimony of the landowners in the area that “the road was used by the public as far back as they could remember,” (2) the fact that none of them could testify to the intentions of the owner when such use began, and (3) the evidence indicating that the road at issue may have been used by the public as early as 1828. Id.

The case before us contains the testimony of several witnesses who were familiar with the road and who conclusively established that the road has continually been used by the public. Several of the witnesses were elderly and confirmed that they had traveled the roadway since at least the 1920’s and regularly since that time. Several of the witnesses describe regular county maintenance performed on the road during the long history of its use. Significantly, no witnesses testified that the road had been kept as a private road or that members of the public had ever been excluded from use of the road. We also note that no witnesses testified about the origination of the road.

A previous owner of the property in question, Calvin Ray Guest, testified that he had no knowledge that anyone had tried to limit access to the road and he was aware that the general public traveled the roadway. Mr. Guest provides some testimony about discussions that the County allegedly had with his ranch manager over an easement but he was not directly involved with the discussions. Further, there is no evidence in the record about whether the discussions resulted in any sort of determination about the nature of the road. He also testified that he had no knowledge of whether use of a road by the public over a long period of time made the road a public road in general. His testimony consists of, at best, evidence that the nature of the road in question was never in dispute or resolved by him during his ownership.

The Bakers called two witnesses, Jim Kiehne and Becky Walker, who testified about the condition of the road, and rendered personal opinions that the road in question is a private ranch road. They also called Glen Batts, who is a real estate contracting officer for the federal government, and who provided testimony about a lease entered into by the federal government with the previous owners of the Bakers’ ranch for access through the property to the government’s surveillance facility located on the top of Eagle Peak. Mr. Batts’ testimony establishes that the road in question was included in an appraisal that was prepared for the federal government and that nothing in the appraisal characterized the road as a public, county road. He also testified that to his knowledge, no one from the County contacted the FAA to inform the FAA that it was improving a county road. He contends that the first time that the FAA was informed that the road was a county road was in 2001 when his predecessor received an order from the Hudspeth County Commissioners’ Court indicating that the road in question is a public road and a letter from the County Attorney, informing the FAA of the same thing.

Each of the Bakers also testified about how they believed, at the time of the purchase of the ranch, that the road was not public.

This evidence does not provide any rebuttal to the County’s evidence that establishes the presumption that the road in question was impliedly dedicated to the public. As we have stated, evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown due to the lapse of time. See County of Real, 6 S.W.3d at 14.

The trial court was entitled to weigh the credibility of the witnesses and we will not substitute our judgment for that of the fact finder. After reviewing the testimony of the witnesses, we cannot say that the trial court’s judgment is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Where there is no direct evidence of an ancient owners’ “overt act or specific declaration” indicating an intent to dedicate the property to public use, the dedication issue may still be resolved by the fact finder, as long as the intent properly can be inferred from the circumstances shown by the evidence. See Graff, 947 S.W.2d at 637; Harger v. Cason, 223 S.W.2d 244, 246 (Tex.Civ.App.-Waco 1949, no writ). Long-continued public use is one such circumstance inferring the required intent. See Conway v. Irick, 436 S.W.2d 219, 223 (Tex. Civ.App.-Fort Worth 1968, writ ref'd n.r.e.).

A public road does not depend upon its length or upon the places to which it leads, nor upon the number of persons who actually travel upon it. Gutierrez, 951 S.W.2d at 841. In fact, proof that a road is only slightly traveled by the public is not proof that a road is not a public road. Id. If it is free and open to all who have occasion to use it, it is a public road. Id. Further, evidence of long, continued, unquestioned use of a road supports a finding that the public relied on an implied dedication of that road. Supak v. Zboril, 56 S.W.3d 785, 791 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Graff, 947 S.W.2d at 638.

The Bakers contend that the use of the road by members of the public is not sufficient to show that there was an offer and acceptance of a dedication by the public and that there is no formal documentary evidence reflecting formal dedication to and acceptance by the County. We recognize, however, that the courts of this state do not require that the acceptance by the public be express. Viscardi, 576 S.W.2d at 19. An implied acceptance by the public is sufficient. Id. If an intention to dedicate is otherwise shown, the public use of the land is sufficient to constitute a completed dedication. Id. We have detailed above the evidence supporting the implied dedication to the public and the use of the road, without objection, for more than seventy years. We find that the evidence is legally and factually sufficient to support the trial court’s finding of an implied dedication to the public. Accordingly, we uphold the trial court’s judgment that the road in question is a public road and overrule Issue Nos. One and Two in their entirety. Insofar as we have found the evidence sufficient to uphold the trial court’s finding that the road was public, we need not address Issue Nos. Three and Four.

We affirm the judgment of the trial court.

      . This is sometimes referred to as a "failure to find” or a "non-finding.”

      . The FAA constructed an air route surveillance radar facility on the top of Eagle Peak. A portion of the road is included in the dispute before us. The remainder of the road provides access to the facility and is not at issue.


text:
    SOUTHWESTERN SECURITY SERVICES, INC., Appellant, v. Eva Y. GAMBOA, Appellee.
    No. 08-04-00234-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2005.

      Stephen T. Leas, Law Offices of Stephen T. Leas, PLLC, McAllen, for Appellant.
    John P. Mobbs, El Paso for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is a restricted appeal from the trial court’s entry of a default judgment against Appellant. For the reasons stated herein, we reverse the trial court’s finding and remand this case to the trial court for further proceedings below.

I. FACTUAL AND PROCEDURAL HISTORY

On February 20, 2003, Appellee filed an original petition alleging employment discrimination against Appellant, Southwestern Security Services, Inc. On February 24, 2003, the trial court signed an order authorizing service authorizing a private process serving firm to serve Appellant in this cause by serving Appellant’s registered agent Jesus Morales. On February 27, 2003, the citation was issued, providing for service by certified mail. The document reflects that the documents were mailed on February 28, 2003 to Southwest Security Serv. Inc., Jesus Morales, agent, with a return of service on March 17, 2003. The “green card” reflecting the receipt for delivery of the citation and petition, addressed to Southwestern Security Services, Inc., Jesus Morales, 505 East Washington St., Brownsville, TX 78521, but signed by a Guillermo Montes, is attached to the return.

Appellant did not appear or file an answer. On January 22, 2004, the trial court entered a default judgment against Appellant. On July 22, 2004, Appellant filed its notice of restricted appeal.

II. ISSUE ON APPEAL

In a sole issue, Appellant challenges the court’s entry of a default judgment against it on the grounds that the trial court lacked jurisdiction over Appellant because the service of process was defective. Appellant contends that the delivery by certified mail of the citation and original petition was not sufficient to confer jurisdiction on the trial court because the return receipt was signed by someone other than the registered agent for the corporation. For the reasons stated below, we agree.

III. DISCUSSION

The rule has been firmly established in this state that a default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985) (per curiam); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 726 (Tex.App.-Fort Worth 2003, no pet.). Likewise, there are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Uvalde Country Club, 690 S.W.2d at 885; All Commercial Floors, Inc., 97 S.W.3d at 726; Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 858 (Tex.App.-San Antonio 2002, pet. denied). Lack of compliance with the Texas Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836-37; All Commercial Floors, Inc., 97 S.W.3d at 726; Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 74 (Tex.App.-Waco 1997, writ denied).

A return of a citation served by registered or certified mail must contain the return receipt with the addressee’s signature. See Tex.R. Civ. P. 107; Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex.App.San Antonio 2001, pet. denied). If the return receipt is not signed by the addressee, the service of process is defective. Keeton, 53 S.W.3d at 19; see Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex.App.-Amarillo 1992, no writ) (return receipt not signed by addressee); Pharmakinetics Laboratories, Inc. v. Katz, 717 S.W.2d 704, 706 (Tex.App.-San Antonio 1986, no writ) (return receipt signed by Charlotte Young but addressee was Pharmakinetics Laboratories, Inc. c/o Steve Woodman). In this case, the return receipt was signed by Guillermo Montes. Guillermo Montes was not the addressee, therefore, the service of process was defective.

Under Rule 107, when a citation is served by registered or certified mail as authorized under Rule 106, the return by the officer or authorized person must contain the return receipt with the addressee’s signature. Tex.R. Civ. P. 107. In Pharmakinetics Laboratories, Inc. v. Katz, the court held that a domestic return receipt signed by Charlotte Young, while the name of the appointee designated to receive service for defendant was listed as Steve Woodman, was invalid. Pharmaki-netics Laboratories, Inc., 717 S.W.2d at 706. The discrepancy rendered service of process invalid since the record on its face showed that the return was not signed by the person appointed. Id.; see also Keeton, 53 S.W.3d at 19 (holding service of process defective when the return receipt is not signed by the addressee); Bronze & Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29 (Tex.App.-Texarkana 1988, no writ) (holding service of process defective when the receipt card was signed by someone who was not the registered agent).

Here, the domestic return receipt appears to be signed by “Guillermo,” with an apparent last name of Montes. Jesus Morales is the individual designated to receive service for Southwestern Security Services, Inc. Just as in Pharmakinetics Laboratories, Inc., the record on its face shows that the return was not signed by the addressee or registered agent. All Commercial Floors, Inc., 97 S.W.3d at 726-27. We recognize that a corporation is not a person capable of accepting process, and it must be served through its agents. Id. at 727; see Wohler v. La Buena Vida in Western Hills, Inc., 855 S.W.2d 891, 892 (Tex.App.-Fort Worth 1993, no writ) (holding that delivery of citation is proper when delivered to a party capable of receiving it); Curry Motor Freight, Inc. v. Ralston Purina Co., 565 S.W.2d 105, 106 (Tex.Civ.App.-Amarillo 1978, no writ). The trial court issued an order authorizing service on the corporation by “serving its registered agent, Jesus Morales.” Because the record shows on its face that the return was not signed by the addressee or registered agent and Southwestern Security Services Inc. is not capable of receiving service, Appellee has failed to strictly comply with Rule 107. We sustain Appellant’s only issue.

Having sustained Appellant’s sole issue on review, we reverse the judgment of the trial court and remand this case for further proceedings in conformance with our decision.


text:
    Dolores G. BACA, Appellant, v. Gilbert SANCHEZ and Edie Rubalcaba, Appellees.
    No. 08-04-00226-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2005.

      Fernando Chacon, El Paso, for Appellant.
    Patrick Bramblett, Bramblett & Associates, Luther Jones, and Stuart R. Schwartz, El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s decision dismissing this lawsuit for failure to state a cause of action upon which relief may be granted. For the reasons stated herein, we affirm the trial court’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Baca was a candidate seeking election to the office of District Clerk of El Paso during an election held in 2002. Ap-pellee Edie Rubalcaba was the incumbent District Clerk who did not seek re-election. Appellee Gilbert Sanchez was the successful candidate for the position and currently is serving as the El Paso District Clerk. On August 1, 2002, Appellant Baca, after being defeated in the election, filed suit against Edie Rubalcaba and Gilbert Sanchez, alleging various violations of the Election Code and conspiracy to violate the Election Code, resulting in damages to include actual, exemplary, and nominal damages. Sanchez filed special exceptions to the petition which outlined various defects to the petition, including that the original petition had referenced various sections of the Election Code which did not exist and that several of the sections cited were not relevant to the complaints propounded by Baca. On January 8, 2003, the trial court entered an order granting Sanchez’s special exceptions and ordering Baca to replead within thirty days. Baca filed both an Amended Original Petition and a Corrected First Amended Original Petition. Sanchez and Rubalcaba filed responsive pleadings that included special exceptions and motions to dismiss. The record does not reflect whether a final hearing was held on the motions to dismiss or special exceptions but an order was entered on the 27th of September ordering the Plaintiff to replead her cause of action by the 17th day of October, 2003. Baca filed her Third Amended Original Petition on October 21, 2003. Baca’s Third Amended Original Petition alleged violations of penal provisions of the Election Code, violation of the RICO Statute, various acts of fraud, conspiracy, and torts. The parties filed a series of pleadings and memoranda of law which culminated in the trial court’s entry of an order on April 13, 2004 dismissing the case for failure to state a cause of action upon which relief can be granted.

Baca’s complaints against Rubalcaba and Sanchez emanate from a letter mailed by Edie Rubalcaba reflecting her support of Sanchez’s candidacy which Baca contends violated various provisions of the Election Code, to her detriment. Baca’s complaints stem from the fact that Rubal-caba’s letters included the County Seal of the County of El Paso, and referenced Rubalcaba’s position as the then El Paso District Clerk.

Baca appeals asserting one issue. For the reasons stated below, we agree with the trial court’s determination and affirm the trial court’s dismissal of the case.

II. ISSUE ON APPEAL

Appellant presents one issue on appeal which challenges the trial court’s dismissal of her lawsuit for failure to state a cause of action. Appellant does not complain of specific findings of the trial court but rather presents a general complaint that merely asserts that she should be entitled to a trial by jury. We note that the trial court does not articulate the basis for dismissal of the case but merely states that the case is “dismissed for failure to state a cause of action upon which relief can be granted.” Appellant requested that findings of fact and conclusions of law be filed by the trial court and filed a notice of past due findings of fact and conclusions of law. Appellant did not file requested or proposed findings of fact. No findings of fact or conclusions of law were filed by the trial court.

III. DISCUSSION

We note that this case presents itself in the unusual procedural posture as a dismissal based solely on the pleadings as presented to the trial court. In order to determine whether the pleadings as filed failed to support a cause of action, we must address whether the procedural hurdles were overcome justifying dismissal. We have previously held that before a motion to dismiss for failure to state a cause of action can be granted, the movant must first file a special exception, giving the plaintiff the opportunity to cure any pleading defect. Hunter v. Johnson, 25 S.W.3d 247, 249 (Tex.App.-El Paso 2000, no pet.). The rule requiring a defendant to file a special exception before seeking dismissal for failure to state a cause of action also applies where, as in this case, a defendant seeks dismissal for failure to state a cause of action by filing a motion to dismiss. Id. at 249-50; see Centennial Insurance Co. v. Commercial Union Insurance Co., 803 S.W.2d 479, 483 (Tex.App.-Houston [14th Dist.] 1991, no writ) (stating: “Only after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action.... When there is no action by the trial court sustaining special exceptions, an order granting a dismissal for failure to state a cause of action must be reversed.”); Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex.App.-Corpus Christi 1990, no writ) (“A special exception [as opposed to a motion to dismiss] is the appropriate vehicle for urging that the plaintiff has failed to plead a cause of action (see Tex.R. Civ. P. 90, 91), and the pleader must be given, as a matter of right, an opportunity to amend the pleading.”). Here, Appellees filed special exceptions and a motion to dismiss for failure to state a cause of action, Appellant was provided an opportunity to amend her pleadings and filed amended pleadings at least twice before the trial court ruled on the motion to dismiss.

We also recognize, however, that special exceptions are not required when a party pleads himself or herself out of court. Hunter, 25 S.W.3d at 250. Baca’s complaints focus on a letter that was mailed by Rubalcaba and which endorsed Sanchez’s candidacy for El Paso District Clerk. She is complaining that the letter violates sections 255.001, 255.004, and 255.005 of the Texas Election Code and asserts that violation of those sections has created a cause of action for damages in her favor. We disagree. Without determining whether the action complained of violates the provisions of those sections, we note that each does not create a cause of action in favor of an individual for violation of the section. To the contrary, each indicates that a violation of the section is a Class A misdemeanor providing for criminal penalties under Texas state law.

In her Third Amended Original Petition, Appellant argues, without pleading any factual basis whatsoever, that the actions of Rubalcaba and Sanchez were a violation of the Federal Racketeer Influenced and Corrupt Organizations Act, the “RICO” statute. Her other complaints assert that the purported mailing constituted a violation of Texas Election Code provisions and constituted a tort creating civil damages for the violation of the penal provisions of the Election Code and that the defendants owed plaintiff a duty to comply with the Election Code, the failure to do so was a breach of that duty and the violation re-suited in damages. Most of her petition consists of complaints related to the assumptions which could be drawn from the contents of the mailing and the majority of her brief argues that this Court should recognize a civil cause of action of violation of the criminal penalty provisions of the Election Code. We have found no cases in support of her contention. We do not agree that violation of sections 255.004 and 255.005, if such violation occurred, creates a private cause of action in favor of Appellant.

Appellant’s petition contends that the Appellees owed a duty to Appellant to abide by the Election Code, that Appellees “breached their duty to plaintiff. The breach was the proximate cause of plaintiffs [sic] injuries and harm.” She also contends that the Appellees had a statutory duty which was violated and, therefore, created a basis for her negligence per se claim. The minimal pleadings filed do not support a cause of action for negligent violation of the Election Code. Not a single fact is pleaded in support of the broad conclusory statements. Further, Appellant minimally briefed this issue and cites to only a few cases which address civil liability of a defendant incidental to the specific criminal conduct of a third party. None of the cases cited deal with the type of actions discussed here. Rather, all address the traditional liability of a defendant created by the inaction or actions of the defendant which resulted in physical harm to the plaintiff. Even assuming that Appellant’s contention that Rublaca-ba’s letter did violate a duty to her, she did not plead a single fact that supports a finding of any damages. Her implied speculation, which we note was not even specifically pleaded, that the letter affected the outcome of the election, is not supported by any proof and cannot create a cause of action.

Although special exceptions are generally considered to be the means by which an adverse party may force clarification of vague pleadings, they may also be used to determine whether the plaintiff has pleaded a cause of action permitted by law. See Tex.R. Civ. P. 91; Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex.1998) (special exceptions used to determine no cause of action for spoliation of evidence); Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998); San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 317 (Tex.App.-Corpus Christi 2000, no pet.); Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 607 (Tex.App.-Corpus Christi 1997, writ denied). The court must allow an opportunity to amend; however, if a party refuses to amend, or the amended pleading fails to state a cause of action, the case may be dismissed. Friesenhahn, 960 S.W.2d at 658; San Benito Bank & Trust Co., 31 S.W.3d at 317. The appellate court reviews such a ruling de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader. Perry v. S.N., 973 S.W.2d 301, 303 (Tex.1998); San Benito Bank & Trust Co., 31 S.W.3d at 317; Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex.App.-Fort Worth 1996, writ denied); Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1994, writ withdrawn). The question becomes whether, even assuming plaintiff can prove all the allegations contained in her petition, a cause of action is recognized under Texas law. San Benito Bank & Trust Co., 31 S.W.3d at 317. We hold that she cannot and overrule her sole issue on review.

Having overruled Appellant’s sole issue on review, we affirm the judgment of the trial court.

      . 18 U.S.C. § 1961 (2000).

      . As Appellant argues in her brief, ''[a]t times the legislature will adopt private civil actions that are designed to deter violators and encourage enforcement by candidates and others directly participating in the process rather than placing the full burden of enforcement on the government.” The legislature has not done so here. See, e.g., Tex. Elec.Code Ann. § 253.131 (Vernon 2003); see also Osterberg v. Peca, 12 S.W.3d 31 (Tex.2000), cert.denied, 530 U.S. 1244, 120 S.Ct. 2690, 147 L.Ed.2d 962 (2000).

      . See Tex. Elec.Code Ann. §§ 255.001(c), 255.004(c), 255.005(b), but see § 253.131 (Vernon 2003).

      . 18 U.S.C. § 1961 (2000).

      . See, e.g., Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546 (Tex.1985).