source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice. SHERRY RADACK, Chief Justice,

license: Public Domain

text:
    SMI REALTY MANAGEMENT CORPORATION, Appellant, v. UNDERWRITERS AT LLOYD’S, LONDON, Appellee.
    No. 01-03-01340-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2005.
    Rehearing Overruled Nov. 29, 2005.

      David George, Edwards, Burns & Bra-ziel, LLP, Houston, for appellant.
    Vance Christopher, Christopher A. Prine, Crain, Catón & James, P.C., Houston, for appellee.
    Panel consists of Chief Justice RADACK and Justices HANKS and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

In this insurance-coverage dispute, SMI Realty Management Corporation (“SMI”) appeals the trial court’s summary judgment in favor of Underwriters at Lloyd’s, London (“Underwriters”). We determine whether the term “Leakage,” found in an exclusionary provision of an “all-risks” policy, is ambiguous or whether, as a matter of law, it serves- to deny SMI coverage in this case.

We reverse and remand.

Factual and Procedural Background

SMI contracted with Underwriters for first-party property insurance, covering the period of January 9,1999 to January 9, 2000. The “all-risks” policy provided coverage for the Rutledge Apartments, an apartment complex managed by SMI. In September 1999, SMI discovered foundation damage at the complex. SMI filed a property loss notice with Underwriters’s agent, attributing the foundation damage to “a plumbing leak underground.”

Underwriters ultimately refused to pay the claim under the policy. SMI filed suit on December 9, 2002, alleging that “the foundation damage to the apartments was caused by a sewer pipe leak, which is covered under the [policy].” SMI based its claims against Underwriters on violations of Texas Insurance Code articles 21.21 and 21.55, breach of Underwriters’s duty of good faith and fair dealing, and breach of contract.

During the discovery process, SMI produced a copy of a report to Underwriters, prepared by David Grissom, a licensed professional engineer. The March 6, 2001 report stated that Grissom had inspected and surveyed the subject apartment building that was experiencing foundation damage. In his report, Grissom noted that the building was built in 1963 and has a “cast iron sewage system.” He explained that “[t]he corrosive nature of the clay soil in the area has been known the [sic] deteriorate cast iron pipe to the point of leaking in less than 20 years.” With regard to the subject building, he advised as follows:

The whole system appears to be leaking due to age and deterioration and very likely needs to be completely replaced. You would be ill advised to just replace the sewer system on the areas of the known leaks. All the case iron sewer should be replaced. The foundation motion now evident is what one would expect if the sewer has been discharging water under the slab for almost 20 years.

Grissom concluded, “It is my opinion that sewer leaks are responsible for the repairs now needed on this foundation.” In a supplemental report dated May 31, 2002, Grissom reiterated that, in his professional opinion, the sewer lines at the apartment complex were leaking due to deterioration and age. He opined that “[i]t is clear that leaks in the badly corroded sewer system have caused the foundation motion” and “[i]t seems clear that sewer leaks are responsible for the repairs now needed on this foundation.”

Underwriters filed a motion for summary judgment, contending that SMI’s claim was not covered because the policy expressly excludes loss or damage caused, directly or indirectly, by deterioration, corrosion, or leakage. In addition to the policy and SMI’s notice of property loss, Underwriters offered Grissom’s report and supplemental report as summary judgment evidence. Referring to Grissom as “plaintiffs expert,” Underwriters pointed out that Grissom’s reports, taken as true, showed that the claimed loss was caused by deterioration, corrosion, and leakage; thus, the claim was properly excluded and Underwriters was entitled to judgment as a matter of law.

In its response, SMI contended that the exclusion relied on by Underwriters, and in particular the term “Leakage,” found in the exclusion, is ambiguous. SMI asserted that the exclusion could be reasonably read to exclude only losses that occur gradually, over time. SMI reasoned, “Thus, it is reasonable to assume that Lloyds did not intend to exclude damages that occurred in a relatively short period of time, but rather only damages that occurred gradually.”

SMI contended that Grissom’s reports were not competent summary judgment evidence because Grissom was not SMI’s “designated” expert. SMI offered the report of Ralph Adams, a professional engineer, who SMI had expressly designated as its expert. In his report, Adams disagreed with Grissom’s opinion regarding the cause of the sewer line leaks. Although he stated that the cause of the sewer pipe leaks was not known, Adams doubted that the leakage was caused by corrosion, as concluded by Grissom. Adams opined that the damage to the foundation occurred as a result of a broken sewer line “in a relatively short period of time.” Based on Adams’s opinion and its reading of the exclusion, SMI asserted that a genuine issue of material fact existed as to whether SMI’s loss fell within the exclusion cited by Underwriters.

Underwriters filed a reply in which it contended, inter alia, that the term “Leakage” found in the applicable exclusion was not ambiguous. Following a hearing, the trial court signed an order granting Underwriters’s motion for summary judgment and ordered that SMI take nothing by its claims against Underwriters.

Standard of Review

The well-settled principles governing the review of summary judgments apply in insurance coverage cases. Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). That is, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). When an order granting summary judgment does not specify the grounds on which it was granted, as here, we will affirm the judgment if any of the movant’s theories are supported by the evidence. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

The Policy Provisions and Contentions of the Parties

In this “all-risks” policy, the relevant provisions are as follows:

5. PERILS INSURED AGAINST
This Certificate insures against All Risks of Direct Physical Loss or Damage to covered property occurring during the period of this Certificate.
6. PERILS EXCLUDED
This Certificate does not insure against loss or damage caused directly or indirectly by any of the following, whether the loss or damage was caused in whole or in part by the excluded peril and whether any other peril contributed to such loss or damage.
1. Wear, tear or gradual deterioration; Wet rot, dry rot or mould; Spoilage, decay or decomposition; Normal settling, shrinking or expansion in buildings; [sic] structures or foundations; Corrosion or rust; Erosion; Leakage; any other gradually occurring loss; or any loss which commenced prior to the inception of this Certificate.

(Emphasis added.)

Underwriters contends that SMI’s claimed loss is not covered under the policy based on the above exclusion, under either Grissom’s or Adams’s report. Both experts opined that the foundation damage was caused by a sewer leak. The experts’ opinions can be characterized as differing in that Grissom believed that the damage was caused by sewer leaks that were gradual, occurring over a long period of time, while Adams believed that the sewer leaks were caused by broken pipes, occurring over a short period of time.

“Leakage” is not defined in the policy and each party offers its own definition. Underwriters reads the exclusionary term to mean any type of leakage, regardless of whether it occurred rapidly or gradually. SMI counters that the term can be reasonably read to exclude only gradually occurring leaks.

SMI relies on the doctrine of contra proferentem, or construing a contract term against the insurer in favor of coverage. This doctrine, however, is employed only when construing an ambiguous policy provision. Evergreen Nat’l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 676-77 (Tex.App.-Austin 2003, no pet.); see also State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995) (explaining that only if insurance policy remains ambiguous after courts apply canons of interpretation should policy’s language be construed against insurer in manner that favors coverage). Thus, if the policy is subject to more than one reasonable interpretation, we must adopt the construction most favorable to the insured when we resolve the uncertainty. State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex.1998). An ambiguity does not arise with respect to a policy merely because the parties advance conflicting interpretations. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). Whether a policy provision is ambiguous is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998).

In making this determination, we interpret insurance policies according to the rules of contract construction. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). Our primary goal, therefore, is to give effect to the written expression of the parties’ intent. Beaston, 907 S.W.2d at 433. To this end, we construe the terms of the contract as a whole and consider all of its terms, not in isolation, but within the context of the contract. Id.; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994); Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 274 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

If a contract can be given only one reasonable meaning, it is not ambiguous and will be enforced as written. See Kelley-Coppedge, 980 S.W.2d at 464. On the other hand, if a contract is susceptible to two or more reasonable interpretations, it is ambiguous. Id. When an alleged contract ambiguity involves an exclusionary provision of an insurance policy, then we “ ‘must adopt the construction ... urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.’ ” Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.1998) (quoting Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991)). The insurer has the burden of proving that a policy limitation or exclusion constitutes an avoidance or an affirmative defense. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 204 (Tex.2004). With these principles in mind, we turn to the crucial question in this case: Is SMI’s interpretation of the term “Leakage” in the exclusion reasonable?

The parties have not directed us to any cases interpreting this precise exclusionary provision and our own research has found none. SMI asserts that the last phrase of the exclusion, “any other gradually occurring loss,” indicates that only gradually occurring leaks are excluded from coverage. According to SMI, the use of the word “other” signals that the contracting parties (SMI and Underwriters) viewed the perils listed before that phrase, including “Leakage,” to also be gradually occurring losses. SMI contends that, at a minimum, the phrase refers to the immediately preceding term listed in the exclusion: “Leakage.”

In essence, SMI is offering the reverse of the interpretive canon of ejusdem gener-is. The rule of ejusdem generis provides that, when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation. Hilco Elec. Coop., Inc. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex.2003). The “reverse ejusdem geneñs” principle has been applied by courts to allow a broader category to define the scope of a more specific example. See Dong v. Smithsonian Inst., 125 F.3d 877, 879-80 (D.C.Cir.1997) (applying reverse ejusdem generis to conclude that, when federal statute, 42 U.S.C. section 552(f), defines agency as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch,” first four, specific classes are limited to “establishments in the executive branch”); Bristol-Myers Squibb Co. v. United States, 48 Fed.Cl. 350, 358 (2000) (applying reverse ejusdem generis to construe contractual provision). The courts have reasoned that “ ‘the phrase ‘A, B, or any other C’ indicates that A is a subset of C.’ ” Dong, 125 F.3d at 880 (quoting United States v. Williams-Davis, 90 F.3d 490, 508-09 (D.C.Cir.1996)); see also Cochran, Fox & Co., Inc. v. Public Serv. Comm’n, No. 98-1765, 1999 WL 624395, at *3 (Wis.Ct.App. Aug. 18, 1999) (concluding that, when statute defines “transmission equipment and property” as “any conduit, subway, pole, tower, transmission wire or other equipment on, over or under any street or highway,” the phrase “on, over or under any street or highway” further restricts meaning of specific terms to types of structural transmission equipment along or under public rights of way); United States v. Delgado, 4 F.3d 780, 786 (9th Cir.1993) (providing example that “a statute regulating fishing may state that licensed individuals may catch ... ‘bass, trout, or any other fresh water fish.’ The limits would apply to fresh water bass, such as black bass, but not to sea bass, because the clause ‘or any other fresh water fish’ limits ‘bass’ and ‘trout’ to those in fresh water.”). Similarly, SMI contends that the policy excludes only gradually occurring leakage, but not sudden leakage, because the phrase “any other gradually occurring loss” limits the scope of “Leakage” to that which is gradually occurring. That is, “Leakage” is modified by, and a subset of, “any other gradually occurring loss.” We conclude that such a reading of the term “Leakage” is reasonable.

Not surprisingly, Underwriters disagrees that the phrase “any other gradually occurring loss” serves to limit the meaning of “Leakage.” It contends that all leakage, and not only gradually occurring leakage, is excluded from coverage because the term “Leakage” and the phrase “any other gradually occurring loss” are separated by a semicolon. In its brief, Underwriters avers, “[T]he semi-colon establishes that the two phrases have independent significance, and denotes that they do not depend on each other for meaning but instead should be read independently.” Underwriters asserts that “Leakage” is “an independent phrase not modified by those that precede or follow it.” Underwriters further contends that “[t]he fact that ‘Leakage’ is capitalized only adds to this conclusion.” As highlighted by the dissenting opinion, Underwriters’s reading of the exclusion is one reasonable interpretation. However, it is not the only reasonable interpretation and does not serve to make SMI’s reading of the disputed language unreasonable. See Balandran, 972 S.W.2d at 741.

To support its position that its reading of the exclusion is definitive, Underwriters cites Criswell v. European Crossroads Shopping Center, Ltd., 792 S.W.2d 945 (Tex.1990). In that case, the Texas Supreme Court noted that, although words contained in an instrument should be used as controlling guides, punctuation marks can aid in the construction of a document. Id. at 948. In interpreting a contractual provision, the court determined the effect of a semicolon that separated two phrases in the contract. Id. Based on the specific facts of that case, the Criswell court concluded that the use of semicolons by the drafter “indicated that each phrase set off by a semicolon was to be read as having independent significance.” Id.

Here, each peril listed in the exclusion also has “independent significance”; that is, a loss caused by any one of the enumerated perils is excluded. As in Criswell, the semicolons in the exclusion appear to denote the word “or.” Id. However, unlike those in Criswell, the phrases at issue here are not completely self-referential. Rather, the final phrase of the exclusion — “any other gradually occurring loss” — can be reasonably construed to both lend meaning to, and derive meaning from, the terms that precede it. Moreover, SMI is not seeking to rely on one clause to effectively nullify another; instead, SMI promotes a reading that harmonizes the terms of the exclusion.

Underwriters also contends that to accept SMI’s interpretation of “Leakage” would be to read the term out of the contract and render it superfluous. Underwriters asserts, “To accept SMI’s argument and construe the exclusion for ‘Leakage’ to mean only damage caused by leakage ‘occurring gradually’ would be superfluous, because the loss would be excluded simply by the phrase ‘any other gradually occurring loss.’ ” We disagree with Underwriters’s reasoning.

The relevant phrases of the policy exclusion can be read to avoid superfluities. The exclusion lists numerous, specific perils that are excluded, including “Leakage.” The exclusion also contains the catch-all phrase “any other gradually occurring loss,” which strives to exclude from coverage any gradually occurring losses not previously encompassed within the exclusion. In other words, the “any other gradually occurring loss” phrase can be reasonably read to indicate that the terms preceding it in the paragraph are not exhaustive. Construed in this manner, neither “Leakage” nor “any other gradually occurring loss” is rendered superfluous. That the latter catch-all phrase can also be read to limit the scope of “Leakage” does not render “Leakage” useless as an exclusionary term.

Underwriters also contends that the “specific ‘Leakage’ provision” governs over the “more general ‘any other gradually occurring loss’ provision.” In this regard, Underwriters relies on the well-established maxim that when there is a conflict between two contract provisions, the specific provision controls over the general provision. See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 782 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Ostrowski v. Ivanhoe Prop. Owners Improvement Ass’n, Inc., 38 S.W.3d 248, 254 (Tex.App.-Texarkana 2001, pet. denied). However, no “conflict” exists between the term “Leakage” and the phrase “any other gradually occurring loss.” Rather, the provisions are harmonized under SMI’s reading of the provision. “Any other gradually occurring loss” serves to further define “Leakage” and also operates as a catch-all phrase to exclude additional, gradually occurring losses not specifically contemplated in the exclusion.

Moreover, this is not a matter of whether a general term controls over a specific one; rather, it is a matter of whether, when read contextually, one phrase can reasonably be read as qualifying or limiting another. It is also noteworthy that Underwriters’s reading arguably renders “Leakage” the more general term. Underwriters interprets “Leakage” to denote all types of leaks, while SMI views “any other gradually occurring loss” as limiting the types of perils excluded to those that are gradually occurring. In any event, we conclude that the phraseology at issue does not fit the “specific controls the general” rubric of contract interpretation.

Underwriters further points out that the first portion of the exclusion provides that damage caused by “Wear, tear or gradual deterioration” are not covered. (Emphasis added.) Underwriters contends that, because it chose to modify the term “deterioration” with the word “gradual,” the lack of such modification before the term “Leakage” shows a clear intent not to limit leakage to leaks that are gradually occurring. It is noteworthy that “gradual deterioration” is among the first perils listed in the exclusion, while “Leakage” is the last, juxtaposed directly next to the phrase “any other gradually occurring loss.” Underwriters’s contention would find more support if “gradual deterioration” had been placed toward the end of the exclusion, near the phrase “any other gradually occurring loss.”

In sum, though Underwriters interpretation of the term “Leakage” is reasonable, it does not render SMI’s reading unreasonable. To the contrary, we conclude that SMI’s reading that “Leakage” is limited to gradually occurring leakage is not an unreasonable interpretation in light of the word choice and syntax utilized by Underwriters in drafting the exclusionary provision. Thus, the exclusionary provision in the policy, in particular the term “Leakage,” is ambiguous. See Balandran, 972 S.W.2d at 741. Because SMI is the insured, we must adopt their interpretation as the proper construction of the policy. See id. at 742. By offering the expert opinion of Adams that the damage to the foundation had occurred as a result of a broken sewer line “in a relatively short period of time,” SMI created a genuine issue of material fact regarding coverage. We hold that the trial court did not properly grant summary judgment in this case.

We sustain SMI’s sole issue.

Conclusion

We reverse the judgment of the trial court and remand the cause for further proceedings.

Chief Justice RADACK dissenting.

SHERRY RADACK, Chief Justice,

dissenting.

Because I believe that the policy unambiguously excludes coverage for all “leakage,” both sudden and gradually occurring, I respectfully dissent. In Criswell v. European Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948 (Tex.1990), the supreme court stated that use of semicolons in drafting an agreement indicates that each phrase set off by a semicolon is to be read as having independent significance. In this case, the items in the list of excluded perils are set apart by semi-colons. Therefore, I believe that each has independent significance, and one item cannot be used to modify another. As such, the policy provides that it excludes “leakage” and “any other gradually occurring loss.” I cannot read the policy to exclude only “gradually occurring leakage,” as the term “leakage” is not so modified in the policy. See County of Maverick v. Tex. Ass’n of Counties Workers’ Comp. Self-Ins. Fund, 852 S.W.2d 700, 705 (Tex.App.-San Antonio 1993, no writ) (“[If] one party’s interpretation would require the insertion of a qualifying phrase, that interpretation must be rejected as violating the rule of giving language its ordinary meaning.”). Accordingly, I dissent. I would affirm the summary judgment granted in favor of Underwriters.

      . The trial court overruled SMI’s objection to the Grissom reports, and SMI does not challenge that ruling on appeal.

      . To ascertain the meaning and scope of "Leakage,” the parties implicitly argue the related maxim of noscitur a sociis — that a word is known by the company it keeps. Noscitur a sociis is a rule often applied so that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Farmers’ & Mechanics’ Nat’l Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1124 (1911); see County of Harris v. Eaton, 573 S.W.2d 177, 181 (Tex.1978) (Steakley, J., dissenting) (discussing noscitur a sociis in context of statutory construction: "the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute, and that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other”). In this regard, we look to the other terms listed in the exclusionary clause to determine whether those conditions are generally considered to be gradually occurring or rapidly occurring. We note that courts have held that other perils listed in the exclusion at issue here are not subject to any type of temporal limitation. For example, at least one court has held that two other perils listed in the exclusion, “corrosion and rust,” are not limited to gradually occurring corrosion or rust; rather, all corrosion and rust are excluded from coverage regardless of whether it is fast or gradual-forming in nature. Gilhane Bldg. Co. v. The Altman Co., No. 04AP-664, 2005 WL 534906, at *5 (Ohio Ct.App. 10th Dist. Mar. 8, 2005); see Arkwright-Boston Mfrs. v. Wausau Paper Mills Co., 818 F.2d 591, 595 (7th Cir.1987) (concluding that rate at which corrosion occurred "not relevant to whether it falls under the corrosion exclusion”). Similarly, another court has held that the rate of "contamination” — another peril listed in the exclusion — was not determinative of whether the exclusion applied; rather, the exclusion applied to both fast and slow contamination. Richland Valley Prods., Inc. v. St. Paul Fire & Cos. Co., 201 Wis.2d 161, 548 N.W.2d 127, 132 (Ct.App.1996). But see Largent v. State Farm Fire & Cas. Co., 116 Or. App. 595, 842 P.2d 445, 446 (1992) (holding that "contamination exclusion” applied only when contamination happens over time). However, these cases are distinguishable from the instant one because they do not involve exclusions that include the modifying phrase "any other gradually occurring loses.” Thus, the rule of noscitur a sociis is not determinative of the meaning of "Leakage” in this case.

      . SMI’s reading appears even more reasonable when it is remembered that this is an all-risks policy. Cf. Balandran, 972 S.W.2d at 741 (explaining that insured’s reading of policy exclusion became "even more reasonable” when considering circumstances surrounding promulgation of policy form by committee appointed by former state Board of Insurance). As a general rule, an all-risks policy creates a special type of coverage in which the insurer undertakes the risk for all losses of a fortuitous nature that, in the absence of the insured’s fraud or other intentional misconduct, is not expressly excluded in the agreement. Miles v. Royal Indem. Co., 589 S.W.2d 725, 729 (Tex.Civ.App.-Corpus Christi 1979, writ ref’d n.r.e.); Muniz v. State Farm Lloyds, 974 S.W.2d 229, 234 (Tex.App.-San Antonio 1998, no writ); see also Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 148:50 (3d ed. 1998). In discussing the historical genesis of the “fortuity doctrine,” one oft-cited journal article explains, "If risk is central to insurance, then certainty is antithetical to it. The requirement that any loss be accidental in some sense in order to be compensable is implicit in flie very nature of insurance.” Stephen A. Cozen & Richard C. Bennett, Fortuity: The Unnamed Exclusion, 20 Forum 222, 222 (1985). Arguably, SMI’s reading of the exclusionary language to limit "Leakage” to gradually occurring leaks is consistent with the overall purpose of all-risk policies to limit coverage to fortuitous events. That is, it seems intuitive that gradual leaks are more likely to involve non-fortuitous events, while sudden, rapidly occurring leaks are more likely to involve fortuitous ones. However, as the Fifth Circuit remarked in Aetna Cas. & Sur. Co. v. Yates, "[t]he description of the policy as 'All Risks' is rather a misnomer since it contains fourteen lettered exclusions....” 344 F.2d 939, 940 (5th Cir.1965). Thus, it may be helpful to consider how courts have interpreted equivalent exclusionary provisions. In this regard, the Second Circuit, reading a similarly worded provision, concluded that, as a whole, the purpose of the exclusion was to remove from all-risk coverage those losses that are intrinsically caused, as opposed to those that are caused by external forces. City of Burlington v. Indem. Ins. Co. of N. Am., 346 F.3d 70, 75 (2d Cir.2003); see Cozen & Bennett, supra, at 224 ("[A]n insurance policy is not a warranty of soundness, and the carrier's obligations do not extend to damage that is not occasioned by external or extraneous forces”). SMI's proffered definition of "Leakage” can be read to be consistent with such a reading of the exclusion.

      . Underwriters contends that SMI cannot create a fact issue by producing conflicting expert reports. Underwriters admits that it has found no authority to support this contention and we know of none. In any event, the record is not clear regarding the exact relationship of SMI and Grissom. Some indication exists in the record that SMI produced Grissom's reports to Underwriters during discovery, but we do not know the wording of the discovery request under which the reports were produced. It appears undisputed that SMI has designated Adams, not Grissom’, as its expert for purposes of this litigation. Thus, assuming Grissom's opinion is admitted at trial, it will be for the fact-finder to determine which expert it chooses to believe.


author: DAVID GAULTNEY, Justice.

text:
    Millet HARRISON, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 09-05-025 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 12, 2005.
    Nov. 30, 2005.

      Todd LeBlanc, Beaumont, for appellant.
    Tom Maness, Crim. Dist. Atty., Wayln G. Thompson, Asst. Crim. Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., GAULTNEY, and HORTON JJ.
   OPINION

DAVID GAULTNEY, Justice.

This is an appeal of a court order compelling continued inpatient mental health treatment under article 46.03 of the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 46.03. In Millet Harrison’s last appeal, this Court held the record of the last hearing did not support the trial court’s finding of the inappropriateness of outpatient treatment. See Harrison v. State, 148 S.W.3d 678, 689 (Tex. App.-Beaumont 2004, no pet.). On remand, the trial court held a new hearing and admitted testimony from a court-appointed expert, who concluded continued inpatient mental health treatment was required. In this appeal, Harrison argues the trial court could not consider this evidence, and if the evidence is ignored the record contains insufficient evidence to support the trial court’s order. We conclude the trial court did not err in considering the evidence. We therefore affirm the trial court’s order.

In October 1994 a jury found Millet Harrison not guilty by reason of insanity for the murder of his mother. Harrison, 148 S.W.3d at 679, 685. He was ordered transferred to a state hospital for inpatient treatment. Id. at 679. In the ensuing years, the trial court granted the State’s applications for renewal of extended court-ordered inpatient mental health services. See Harrison v. State, No. 09-98-134 CR, 1999 WL 160825, at *1 (Tex. App.-Beaumont Mar.24, 1999, no pet.) (not designated for publication). Harrison has previously appealed from the trial court’s inpatient commitment orders of February 1998, May 1999, and December 2003. Id; see also Harrison, 148 S.W.3d at 679; Harrison v. State, No. 07-99-0259-CR, 1999 WL 994378, at *1 (Tex.App.-Amarillo Nov.2, 1999, no pet.) (not designated for publication).

In the 2003 commitment hearing, two expert witnesses testified that outpatient, rather than inpatient, treatment was appropriate for Harrison. See Harrison, 148 S.W.3d at 688. However, the trial court found the .proposed outpatient services were not appropriate and ordered extended inpatient mental health services. Harrison, 148 S.W.3d at 679, 689. Harrison appealed the December 2003 order and this Court reversed and remanded the case to the trial court. Id. at 689. In the 2004 opinion, this Court concluded on that record as follows:

[T]he trial court’s [December 2003] finding that out-patient supervision is not appropriate is not supported by the record. Therefore, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Id. at 689 (footnote omitted).

On remand, in an effort to follow this Court’s opinion, the trial judge appointed Dr. Dan Roberts, a psychologist, to assist him in formulating an appropriate regimen of treatment. The trial court’s order stated in part as follows:

In an Opinion delivered on October 27, 2004, the Ninth District Court of Appeals concluded that the trial court’s finding that out-patient supervision was not appropriate [was] not supported by the record, and thus reversed this court’s judgment and remanded for further proceedings consistent with their Opinion. Pursuant to Article 46.03, section 4(d)(4) [as referenced by the appellate court in [its opinion]], it is within the trial court’s discretion to determine the appropriate regimen of medical, psychiatric, or psychological care or treatment, which could include psychoactive medications. This court has appointed Dan Roberts, Ph.D ... to conduct an evaluation of Millet Harrison for this purpose.

Based on his interview with Harrison and a review of Harrison’s medical and trial records, however, Dr. Roberts reported, and then testified in the 2005 hearing, that he cannot recommend an appropriate outpatient treatment plan, and that continued inpatient treatment is required. In contrast, Dr. Self and Dr. Gripon, experts called by Harrison, again recommended outpatient treatment with the use of inject-able antipsychotic medication. Based on Dr. Roberts’ report and his testimony at the hearing, the trial court ordered Harrison to remain an inpatient at Rusk State Hospital.

Harrison raises four issues on appeal. In issues one and two, he argues Dr. Roberts’ report and testimony were not admissible and trial counsel was ineffective in failing to object to their admission. We look to Strickland v. Washington for the “ineffective assistance of counsel” standard. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance, appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005)(citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). Appellate review of counsel’s representation is highly deferential, and a reviewing court indulges a strong presumption that counsel’s conduct fell within reasonable representation. Salinas, 163 S.W.3d at 740 (citing Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001)).

Prior to Dr. Roberts’ testimony, Harrison’s trial counsel objected that, in view of this Court’s prior opinion, the trial court should not consider evidence concerning inpatient treatment, and that the evidence at the hearing should “only deal with outpatient treatment.” The trial judge overruled Harrison’s objection. When Dr. Roberts testified he did not believe outpatient treatment was appropriate, trial counsel did not reassert the objection. We do not believe on this record that further objection was necessary to inform the trial court of Harrison’s position, nor do we see the failure to repeat the objection under the circumstances as inadequate assistance of counsel.

Harrison contends the purpose of the 2005 hearing was to determine a proper regimen for outpatient services. He asserts the trial court, in accepting Dr. Roberts’ report and conclusions, exceeded the proper scope of the hearing. Harrison further argues Dr. Roberts’ report and testimony represented a new opinion (but not new evidence) that the trial court used as a basis for making what Harrison characterizes as “the very same ruling that was reversed by this Appellate Court.” In brief, he maintains Dr. Roberts’ opinion was irrelevant and in conflict with this Court’s 2004 holding.

However, this Court did not order Harrison’s release from the trial court’s supervision, nor did this Court say the trial court could not consider additional evidence in the future while Harrison remained under court-ordered treatment and supervision. See Harrison, 148 S.W.3d at 689. To the contrary, as the trial court correctly noted, this Court stated, “[I]t is within the trial court’s discretion to determine the appropriate regimen of medical, psychiatric, or psychological care or treatment, which could include psychoactive medications.” Harrison, 148 S.W.3d at 689 n. 7. If the record at the hearing had remained the same — that is, if no additional evidence that inpatient treatment was required had been presented to the trial court — an outpatient treatment regimen would have been appropriate, given this Court’s prior decision; but that is not what occurred at the 2005 hearing in this case. The trial court below was presented with additional evidence from a court-appointed expert who testified inpatient treatment was required. His report and testimony included information not presented to the trial court at the 2003 hearing. The trial court found his testimony credible. The weight to be given the evidence is within the factfinder’s discretion. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005) (Factfinder is sole judge of the credibility of the witnesses and weight to be given their testimony.). As the court of continuing jurisdiction, the trial court could consider Dr. Roberts’ report and testimony, including the evidence not previously presented in prior expert testimony. See Tex.Code Crim. Proc. Ann. art. 46.03, § 4(d)(1),(4),(5). We hold the trial judge acted within his discretion in admitting and considering the court-appointed expert’s report and testimony.

Harrison also asserts his trial counsel was ineffective in failing to object when Dr. Roberts testified Harrison had previously been an outpatient before killing his mother, and had often refused his medication. Harrison says there is no evidence to support this statement. The record indicates Harrison had been under psychiatric care outside the hospital setting, and there is evidence he had, on occasion, refused his medication. Whether those refusals can be characterized as “often” goes to the weight of the evidence, not its admissibility. See Hess v. McLean Feedyard, Inc., 59 S.W.3d 679, 686 (Tex.App.-Amarillo 2000, pet. denied).

Harrison maintains his counsel was ineffective because he did not object to the order of presentation of witnesses at the hearing, and he argues the order of proceedings shifted the burden of proof at trial. We set out the exchange between the Court and State as follows:

[State:] So, my understanding is [the Court] want[s][t]he State to go ahead and go first, which is fine. What we’d like to do is we would like to ask the Court, first of all, just for purposes of the record, to take judicial notice of the report that was provided by Dr. Dan Roberts to the Court.
[The Court:] I’ll do that, and I’m going to mark that as Court’s Exhibit No. 1. [State:] And what [t]he State would like to do at this point in time is we have no further matters to bring before the Court at this point; but we do reserve the right to call Dr. Roberts in rebuttal to what [defense counsel] may present, if that’s okay with the Court.

The party with the burden of proof normally opens and closes the presentation of evidence. Nobles v. Employees Ret. Sys. of Texas, 53 S.W.3d 483, 490 (TexApp.-Austin 2001, no. pet.). The State presented its case first by submitting Dr. Roberts’ extensive report to the trial court. Harrison then presented his case with expert witnesses and one family witness. The State followed with the rebuttal testimony of Dr. Roberts, and Harrison then recalled his two experts to respond to Dr. Roberts’ testimony.' The order of the proceedings did not place the burden of proof on Harrison. We overrule issues one and two.

In issue three, Harrison contends his trial counsel was ineffective because he did not object to the failure to follow the procedure of Tex. Health & Safety Code Ann. § 574.009 (Vernon 2003) regarding certificates of medical examination. The trial court’s hearing was governed by article 46.03. See Tex.Code Crim. Proc. Ann. art. 46.03, § 4(d),(5). In Campbell v. State, the Texas Supreme Court held that a trial court may conduct a hearing under-article 46.03, section 4(d)(5), without the medical certificates required by the Mental Health Code. See Campbell v. State, 85 S.W.3d 176, 183 (Tex.2002); see Tex. Health & Safety Code Ann. § 574.001 (Vernon Supp.2005); Tex. Health & Safety Code Ann. §§ 574.009, 574.011 (Vernon 2003). The medical certificate requirements of sections 574.009 and 574.011 apply to proceedings for court-ordered mental health services initiated under section 574.001 of the Mental Health Code. Campbell, 85 S.W.3d at 183. The Supreme Court explained section 574.001 proceedings involve different concerns and “apply to a different class of individuals than do article 46.03 section 4(d)(5) proceedings^]” which apply “only to those persons acquitted of a violent crime by reason of insanity who have been previously committed to a state mental hospital or other appropriate facility.” Campbell, 85 S.W.3d at 183. The article 46.03, section 4(d)(5) proceedings aré .brought to determine whether insanity acquittees should be released from commitment. Campbell, 85 S.W.3d at 183. In contrast, section 574.001 of the Mental Health Code applies to persons who have not had the added protections that accompany a proceeding which results in an acquittal because of insanity. Campbell, 85 S.W.3d at 183. Because the section 574.009 medical certificates were not a prerequisite for the hearing, trial counsel was not ineffective in failing to object. Issue three is overruled.

In issue four, Harrison challenges the legal and factual sufficiency of the evidence to support the‘trial court’s implicit finding of the inappropriateness of outpatient treatment. Again, he argues Dr. Roberts’ testimony should be disregarded. Because Dr. Roberts’ expert opinions and reportéd facts were admissible, however, we consider them in the sufficiency review.

In a legal sufficiency review where the burden of proof is clear and convincing evidence, the reviewing court must consider all the evidence in the light most favorable. to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). The reviewing court assumes the factfinder resolved disputed facts in favor of its finding if a reasonable factfin-der could do so. Id. at 266.

In a factual sufficiency review, the reviewing court considers all the evidence, both in support of and contrary to the trial court’s findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex.2002). The court gives due consideration to evidence that the factfin-der could reasonably have found to be clear and convincing. Id. at 25. The appellate court must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations. Id. We consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The appellate court retains deference for the role of the factfinder. In re C.H., 89 S.W.3d at 26.

The testimony presented by the witnesses at the 2005 hearing was in conflict, and the trial judge as factfinder was required to determine which testimony to accept as credible. See City of Keller, 168 S.W.3d at 819. Dr. Self, Harrison’s psychiatrist for the past two and one-half years, testified Harrison is in complete remission; he says there have been no problems of noncompliance or behavior indicating a relapse or return of Harrison’s paranoid schizophrenic condition. Dr. Self testified: “[W]hen [Harrison is] in the mental state he’s been in for the last two and a half years, I have no doubt about his insight into the presence of mental illness and the need for medication.” Dr. Self indicated Harrison has refused to take his “essential” medication, the psychotropic medicine, on only one occasion in the last two and one-half years. During the medication change in early 2004, he declined to take one pill of Risperdal because of pronounced side-effects. Dr. Self testified he addressed the issue and removed the oral Risperdal from Harrison’s medications; Harrison was already receiving the injecta-ble psychotropic drug. Based on his experience with Harrison, Dr. Self concluded Harrison does not have a pattern or history of refusing the psychotropic medication. Dr. Self explained, “[T]he only thing that elevates [Harrison’s] risk of future dangerousness is his mental illness, and his mental illness is controllable with medication. ... [T]he relapse with this kind of illness doesn’t happen in minutes or hours.... [I]f he’s still on his medication and he elopes, it’s very unlikely that he’s symptomatic[.]” However, Dr. Self also stated, “If he has relapsed his illness, he is at high risk of aggressionf.]”

Dr. Self recommended the following outpatient treatment plan: use of injectable, long-acting, psychotropic medications; psychiatric care; regular contract with MHMR personnel; residing with family; and the resumption of Harrison’s career. Returning Harrison to inpatient treatment, Dr. Self indicated, would amount to “warehousing.”

Dr. Gripon has evaluated Harrison periodically over the last ten or eleven years. Until the late 1990s, Gripon recommended continued inpatient treatment; now he recommends outpatient treatment. Like Dr. Self, Dr. Gripon testified that Harrison, while on medication, shows no current symptoms associated with schizophrenia. Dr. Gripon testified as follows:

I found a man who, although a paranoid schizophrenic by history, his condition is adequately treated. He is stable, and he continues to remain stable. He appeared much as he had the last couple of years in which I’ve evaluated him.
Actually if you evaluate Millet Harrison from a psychiatric standpoint, you can make a diagnosis of schizophrenia in him only by history. He shows no current symptoms associated with schizophrenia .... So, his condition is in remission. There’s no evidence of it now.

Dr. Gripon concludes Harrison’s condition is a “lifelong malady. It’s treatable. It’s not curable. It’s never going away completely.” Like Dr. Self, Dr. Gripon characterizes inpatient treatment at this stage as “warehousing” and does not “think the hospital has anything to offer [Harrison] any longer.” Gripon indicated his willingness to be part of an outpatient plan and to administer Harrison’s medication on a regular basis. He • agreed the outpatient treatment plan should include court-ordered injectable psychoactive medications and emphasized the importance of family involvement. Dr. Gripon explained that outpatient treatment must be under court-ordered supervision because he says “there are no guarantees.” He testified, “There [are] certain probabilities, though. What you need is a plan that has the potential for being effective, and then you have to have some consequence or some kind of alerting of individuals if that were not the case.” Dr. Gripon indicated that any relapse and resumption of Harrison’s illness would be gradual, and he believes “our system could find [Harrison] in that period of time.” However, Dr. Gripon agreed the only guarantee is “a forced environment.”

Diane Randle, Harrison’s niece, testified Harrison would reside with her. She indicated she would report to the authorities if Harrison “is an hour gone missing,” but she also acknowledged there would be periods during the day she would not be around to supervise him. She said other family members could be available to stay with Harrison during those hours.

Dr. Roberts, a clinical psychologist, does not agree with the assessments of Dr. Gripon and Dr. Self. Dr. Roberts’ report and testimony evidence a continuing pattern of Harrison’s behavior that confirms the likelihood Harrison will cause serious harm to others. Dr. Roberts testified Harrison has distorted his record to appear less dangerous in hopes of effecting an eventual release from inpatient treatment at the state hospital. The behavior, as described by Dr. Roberts, involves Harrison’s consistent misrepresentation of his medical history to others, his history of failure to take- medication when being treated outside a hospital setting, and his manipulation of mental health staff.

Dr. Roberts described the notes of a Vernon State Hospital psychologist who indicated Harrison was “dissembling” and not providing accurate information about his own history. Roberts explained that Harrison represented to mental health staff members, as well as to. the court in earlier testimony, that he had gone nineteen years without any problems after the 1975 mental illness diagnosis, and that it was only after a doctor took him off medication that he suffered a relapse and killed his mother. Dr. Roberts testified Harrison’s representations are not true. Rather than a nineteen year period without mental illness, Dr. Roberts’ review of the records revealed Harrison was in a mental hospital five times after his first hospitalization with the paranoid schizophrenic illness in 1975. One hospitalization was precipitated by Harrison’s choking his mother as she lay in her bed. Another relative in the house pulled Harrison off his mother, called the police, and took him to the hospital. Another time Harrison argued with his sister and choked her. Police took him to the hospital. Dr. Roberts reported that after Harrison killed his mother and, while he was a patient at Vernon State Hospital, Harrison threatened to cut off a staff member’s head, physically attacked a staff member, and threatened to kill other staff members. Dr. Roberts also noted the records indicate Harrison has been upset on “several occasions” — yelling and cursing at employees and on one occasion banging on the door; yet Harrison has consistently represented himself as being compliant without problems.

According to Dr. Roberts, Harrison has over the years given misleading responses. One example cited by Dr. Roberts is Harrison’s comment in the mid-1990’s to a hospital staff member that although he would have to admit he had the condition of schizophrenia, he needed to stop talking as if he had an active case; he said he would do whatever it took to get out of the hospital. Roberts says a year or so after that medical record notation, the records reflect the psychologist felt Harrison was providing false information about his background and was attempting to pass the dangerousness review with the hospital.

Citing another example of Harrison’s history of misleading responses, Roberts indicated Harrison has testified he had “maintained very well” on his medicine before the killing. However, as Roberts explained, “[0]n several occasions at least, the records indicate from the Beaumont Neurological Hospital that his family members have been encouraging him to take his medicine and were upset that he was not taking his medicine and they couldn’t make him.” Roberts explained that as long as Harrison remains an inpatient, as he has since the killing, compliance is not an issue, because he is monitored and required to take his medicine. However, Roberts pointed out that Harrison’s history indicates that when he is not in a facility, he does not always comply with medication requirements. Dr. Roberts explained, “[I]t’s very common for people "with paranoid schizophrenia to stop taking their medicine.” Dr. Roberts also stated, “The last time he was an outpatient Mr. Harrison demonstrated a pattern of not always taking his medicine as prescribed. He has avoided it, refused it, or forgotten to take his medicine as prescribed on a number of occasions when he has been treated as an outpatient.” Based on the records, Roberts concluded the complianee-with-medication claim is misleading and distorted. He testified Harrison is “going to be dangerous to people who are close to him.”

Dr. Roberts noted certain recent paranoid tendencies that he believes show Harrison is not in remission. In his report, Roberts commented as follows on his review of early 2004 medical records:

On January 29, 2004 Dr. Self again noted that he believed that the patient could be counted on to come forward with the emergence of any new symptoms. A multi-disciplinary case conference note on February 20, 2004 indicated that his [Harrison’s] continued residence at state hospital had been causing depression. Soon after that other records reflect that he began to exhibit some paranoia. There are no indications in the notes that he came to his physician or any other staff member to report these symptoms or to discuss their implications, (emphasis in Dr. Roberts’ report).

Roberts again noted paranoid tendencies when he interviewed Harrison in December 2004, prior to the January 2005 hearing. Harrison described how certain events in his life “pointed to a conspiracy, that the government had it in for him and people like him and his family.” When Roberts asked Harrison about hospital staff comments in 2001 that described paranoid comments, Harrison acknowledged he had made the comments, but he minimized their significance. In early 2004 Harrison’s medication was changed from Prolixin Decanoate to Risperdal Consta, a second generation antipsychotic. During that time, Dr. Self “observed him to be unusually kind of talkative, rambling, what I characterized as paranoid, but by that, I did not imply delusional but just suspicious statements one time that I saw him, on the 8th of March.” Although Dr. Self acknowledged Harrison’s conduct could suggest Harrison was still suffering from paranoid schizophrenia symptoms, Dr. Self ultimately attributed the “change in [Harrison’s] mental state” to the change in medication. Dr. Self has concluded Harrison is in “full remission.” However, Dr. Roberts believes Harrison is not in remission. In addition to his concerns about Harrison’s continued paranoid tendencies and history of noncompliance-with-medication in outpatient treatment, Dr. Roberts also expressed concern about Harrison’s dangerousness: “[H]is aggressive behavior over the years, the fact that his aggression is largely dependent on his delusional beliefs, the fact that he still seems to be delusional, the fact that evidence has indicated in the past he becomes delusional fairly quickly when he gets off his medicine” and “the fact that he remains paranoid schizophrenic[.]”

Dr. Roberts testified that if Harrison is not continued in inpatient treatment, he will in all likelihood experience a deterioration, and that will result in a serious or considerable risk to members of the public. Dr. Roberts testified Harrison would likely become dangerous outside the hospital setting and is likely to cause serious harm to others. As the factfinder in this case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. The trial court found Harrison is mentally ill and as a result of his mental illness is likely to cause serious harm to others. No one disputes that Harrison suffers from “chronic paranoid schizophrenia,” and he killed and mutilated his mother under the influence of that mental illness. The record reflects there is currently no cure for his illness, and without antipsychotic medication he is likely to cause serious harm to others. We conclude there is clear and convincing evidence in the record of the 2005 hearing from which the trial court reasonably could have formed a firm conviction that Harrison continues to meet the inpatient criteria for involuntary commitment. Considering the clear and convincing evidence presented on rehearing, the trial court did not err in ordering continued inpatient treatment. See Tex.Code Crim. Proc. Ann. art. 46.03, § 4(d); see also Tex. Health & Safety Code Ann. § 574.035(e)(1) (Vernon Supp. 2005); see In re J.F.C., -96 S.W.3d at 266.

We overrule issue four. The trial court’s judgment is affirmed.

AFFIRMED.

      . See Act of May 18, 1977, 65th Leg., R.S., ch. 596, § 2, 1977 Tex. Gen. Laws 1458, 1467-69 (amended 1983, 1989, 2001, 2003). The Texas Legislature repealed article 46.03 in 2005 and amended the Code of Criminal Procedure to add "Chapter 46C. Insanity Defense.” The 2005 amendment says that it applies "only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.” Act of May 27, 2005, 79th Leg., R.S., ch. 831, §§ 1, 2,5, 2005 Tex. Gen. Laws 281, 2853-54.

      . We review the trial court's findings under legal and factual sufficiency standards. See Campbell v. State, 125 S.W.3d 1, 4-5 (Tex. App.-Houston [14th Dist.] 2002, no pet.)(clear and convincing evidence); Tex. Health & Safety Code Ann. § 574.035(a) (Vernori 2003)("clear and convincing evidence”). The parties have not briefed any other standard of review. Other than as we have done in issues one and two, we do not consider it necessary in this case to address whether a different standard of review may apply to discretionary decisions by the committing court. See Tex. Code Crim. Proc. Ann. art. 46.03 § 4(d)(4),(5).

      . Although involuntary commitment is a civil rather than a criminal matter, the criminal standard for ineffective assistance of counsel applies. See In re Protection of H.W., 85 S.W.3d 348, 355-56 (Tex.App.-Tyler 2002, no pet.).

      . Based on his review of the records, Roberts described the weeks leading up to the killing of Harrison’s mother as follows:
      He stopped taking his medicine, he’s forgotten to take it and he's refused to take it on a number of occasions. When he was hospitalized in 1993, December, a month before his mother was killed, he had seen Dr. Hunsucker in Houston who had agreed, not recommended but had agreed for a trial of no medicine. So, he stopped taking it. He was placed in the hospital. He agreed in his hearing at the hospital to follow whatever treatment recommendations Dr. Bailey made for him. Dr. P.W. Bailey was his attending physician there. He agreed to take his medicine. They sent him home. He didn’t take his medicine. He did go back to Houston to see Dr. Hunsucker again on January 6, 1994. Dr. Hunsucker asked him to take his Loxitane and to come in in a week or so for another meeting and to bring his family. He did return about two weeks later for another meeting-well, he declined to take the Loxi-tane. He didn’t want to take it then; so, he didn’t.
      He came back in two weeks on the 19th, I believe, without the family members. He told the doctor that they had settled everything and that everything was cool with the family. Dr. Hunsucker again mentioned the Loxitane; and he said, no, he didn’t want to take it, that he was doing fíne without it. I think he did agree to take some Cogentin for a little while, but that’s not an antipsychotic medicine. Less than two weeks after that, the murder occurred.


author: RICHARD BARAJAS, Chief Justice.

text:
    YOROSHII INVESTMENTS (MAURITIUS) PTE. LTD., Welgas Holdings Ltd., and Energy Infrastructure Group Ltd., Appellants, v. BP INTERNATIONAL LTD. and BP Oil International Ltd., Appellees.
    No. 08-04-00163-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 15, 2005.
    Rehearing Overruled Jan. 11, 2006.

      Craig T. Enoch, Winstead Sechrest & Minick P.C., Austin, for Appellants.
    Edward J. Murphy, Beirne, Maynard & Parsons, LLP, Houston, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s dismissal of Appellants’ lawsuit on the grounds of forum non conveniens. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties to the underlying litigation are foreign corporations suing for allegations related to fraud and breach of fiduciary duty based upon allegedly improper conduct regarding a possible joint venture to build a liquid petroleum gas distribution system in India. The Appellants are three, foreign owned, Mauritius companies, who sued two of British Petroleum’s (“BP”) subsidiaries related to the project. The Mauritius companies filed suit in Dallas, Texas. The parties engaged in extensive discovery limited to issues regarding the special appearances filed by the defendants and the Motion to Dismiss for Forum Non Conveniens filed by the defendants. After a hearing on the Motion to Dismiss for Forum Non Conveniens, the trial court granted the motion and dismissed the case. The trial court entered findings of fact and conclusions of law. Appellants appeal raising seven issues. Issue No. One is a challenge to the trial court’s dismissal of the case as an abuse of discretion. Issue Nos. Two through Seven challenge the trial court’s specific findings of fact and conclusions of law on the grounds that the findings were either an abuse of discretion or not supported by legally or factually sufficient evidence.

II. SUMMARY OF RELEVANT FACTS

Appellants are Mauritius based corporations that have been engaged in an attempt to create an entity for the purpose of importing and marketing liquid petroleum gas products (“LPG project”) in India. Appellees are English corporations that were approached by Appellants for the purpose of forming a joint venture for the LPG project. Beginning in the early 1990’s and continuing over the course of several years, Appellants contacted various entities seeking to market the project and obtain investors, some of whom were Texas companies. Ultimately, four Texas companies expressed an interest in the project and the Appellants engaged in negotiations with the various companies. In 1997, Appellees began discussions with Wimco Petrogas Limited (“Wimco”) regarding the project and signed a Confidentiality Agreement. Early in 1998, the Appellants informed Appellees that other companies were seriously considering investing in the project.

The parties continued negotiations and the exchange of information which ultimately resulted in the parties signing of a Memorandum of Agreement (“MOA”) in July of 1998. The agreement provided for, among other things, that the parties would negotiate in good faith to obtain final shareholder approval for the project, and that the Appellees would not negotiate with any third party for a proposal similar to the LPG project in India.

Appellants contend that while they engaged in negotiations with Appellees, Ap-pellees merged with Amoco Oil Company, and as a result of the merger, acquired technology related to a synthetic product known as di-methyl ether (“DME”). DME is a form of synthetic LPG and a direct substitute for the products contemplated by the LPG project. Appellants contend that Appellees did not inform Appellants of this significant development and that they engaged in fraudulent conduct which was a breach of their fiduciary duty under the agreements related to the LPG project.

Appellees withdrew from participation in the LPG project as of December 1998. Appellants filed suit in Texas asserting a cause of action for fraud and breach of fiduciary duty related to the LPG project on the grounds that Appellees obtained and misused confidential proprietary information as a result of their business relationship with Appellants. Also, as a result of Appellees’ alleged misrepresentations, Appellants did not enter into agreements with other potential investors, several of which are located in Texas, and therefore, they suffered harm as a result.

Appellants contend that BP committed fraud based upon its representatives’ misrepresentations of BP’s business and financial commitment to them with regard to the LPG project. These alleged misrepresentations resulted in Appellants’ rejection of other alternative Texas partners. Appellants also contend that BP breached its fiduciary duty to Appellants through its development of a competing product. They also contend that BP engaged in the wrongful use of confidential, proprietary information.

Appellants filed suit in Dallas County, Texas against the BP defendants. After negotiations related to special appearance motions filed by the BP entities, the parties entered into a Rule 11 Agreement whereby certain BP defendants were dismissed and the remaining two withdrew their special appearance motions. The Rule 11 Agreement also contained several other clauses which Appellants contend support their position that suit should be brought and remain in Texas.

BP contends that the MOA and the Confidentiality Agreement signed by the parties provide that any dispute among the parties would be resolved in England under English law. After disputing the jurisdiction and venue in Texas, BP sued Appellants in the High Court of Justice in London seeking a declaratory judgment that the MOA had been properly terminated according to its terms. After a hearing before that court, Justice Morison of the High Court of Justice issued his findings and entered an order abating the English proceedings until such time as the Texas court ruled on the pending forum non conveniens motion.

On February 27, 2004, the Texas court held a hearing on BP’s motion to dismiss based on the doctrine of forum non conve-niens. At the hearing, the parties introduced several thousand pages of exhibits and two witnesses were called. On April 13, 2004, the trial court judge signed an order granting defendants’ Motion to Dismiss for Forum Non Conveniens. On June 2, 2004, the trial court judge signed findings of fact and conclusions of law which were filed on July 30, 2004. Appellants appeal raising seven issues.

III. STANDARD OF REVIEW

A. Forum Non Conveniens

A trial court’s denial of jurisdiction based on forum non conveniens is reviewed on the abuse of discretion standard. See Coots v. Leonard, 959 S.W.2d 299, 301 (Tex.App.-El Paso 1997, no writ) (citing Couch v. Chevron Int’l Oil Co., Inc., 672 S.W.2d 16 (Tex.App.-Houston [14th Dist.] 1984, writ ref d n.r.e.)). The test for abuse of discretion is whether the trial court acted arbitrarily and unreasonably, without reference to any guiding principles and rules. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.1939); Coots, 959 S.W.2d at 301. An abuse of discretion does not occur merely because the reviewing court would act differently than the trial court. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 288, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

The doctrine of forum non con-veniens allows the courts to exercise equitable power to prevent the imposition of an inconvenient jurisdiction on a litigant, upon a court’s determination that the interests of the litigants and witnesses warrant a different forum. See Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 505 (Tex.App.-El Paso 1994, no writ). A court must consider the private and public factors. See id. The private factors are:

(1) the relative ease of access to sources of proof;
(2) the availability of compulsory process for attendance of unwilling witnesses; and
(3) the enforceability of a judgment if one is obtained.

See id. (citing Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex.1962) (adopting the factors announced in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947))).

The public factors are:
(1) the burden imposed upon the citizens and courts of Texas in trying a case that has no relation to Texas;
(2) the general interest in having localized controversies decided locally; and
(3) the interest in having a diversity case tried in a forum that is familiar with the law that must govern the action.

See id. A plaintiffs choice of forum is not disturbed unless the balance of factors strongly favor the defendant. See id. (citing Keller Dev., Inc., 890 S.W.2d at 505-06; Gulf Oil Corp., 330 U.S. at 508, 67 S.Ct. at 843).

A defendant has the burden to invoke the doctrine of forum non conveniens and prove all elements. See Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex.App.Dallas 1991, writ denied). The doctrine presumes that at least two forums are available to a plaintiff, and once a defendant establishes the availability of another forum, the plaintiff has the burden to prove the second forum is inadequate. See id.

A foreign forum is available if it has jurisdiction over all parties and the entire case, or if any evidence exists that all defendants are amenable to process at that forum. See Sarieddine, 820 S.W.2d at 840-41. A defendant may also consent to jurisdiction and thus make a forum available. See id.

The parties have signed various agreements which provide that English law shall govern any disputes related thereto. Further, BP has filed suit in England. The English lawsuit has been abated, pending a determination of the forum non conveniens issues by the Texas courts. England is an available alternative forum.

The alternative forum must also be adequate. Appellants do not appear to argue that an English court would be inadequate. It is clear from the record that the English courts do in fact have jurisdiction over the parties and have exercised jurisdiction. The matter pending before the English courts has been abated but it is clear that it may be revived. We hold that Appellants have not established the forum’s inadequacy.

We finally reach the consideration of the Gulf Oil Corp. factors to determine whether the balance favors the defendants such that the plaintiffs’ choice of forum should be disturbed.

B. Private Factors

The three private factors are: (1) relative ease of access to sources of proof; (2) availability of compulsory process; and (3) enforceability of a judgment obtained. See Keller Dev., Inc., 890 S.W.2d at 505.

This controversy involves a highly complex plan to implement an international project of mammoth scope creating a liquid propane gas distribution system for the nation of India. As we noted previously, the parties are all foreign corporations. The Appellants are three Mauritius companies who pursued negotiations with large, multinational corporations, BP International Ltd. and BP Oil International Ltd. and their related entities. The Appellants are complaining about the action of the BP defendants related to an international project that involved foreign corporations negotiating about a project that would not take place on American soil.

In November 1997, BP International Ltd. signed a Confidentiality Agreement with an entity apparently related to the Appellants, Wimco, which provided BP International Ltd. an opportunity to obtain more detailed information about and conduct a more thorough analysis of the project. The discussions and meetings related to this stage of the negotiations took place primarily in England. None of the discussions or meetings took place in Texas, or even the United States.

On April 27, the Executive Committee for BP International was scheduled to meet in London and discuss the project. Fred Jones, the primary representative for Appellants, was traveling to Tulsa, Oklahoma from London and stopped in Dallas during his journey. BP International’s representatives contacted Jones via telephone in Dallas to inform him about the decisions made by the Executive Committee with regard to the project. Jones contends that during that phone conversation of less than 15 minutes duration, BP International committed to the project. BP International contends, and the Appellants do not dispute, that of the thousands of contacts between the parties regarding this project, only the single phone call while Mr. Jones was on layover in Dallas involved Texas or even the United States in any way.

In July 1998, Appellants and BP International Ltd. entered into an MOA which described the rights and obligations of the parties related to the Indian LPG project. The agreement was negotiated and signed outside the United States. The agreement provided that the parties had the right and obligation to “co-operate, to facilitate a full due diligence investigation into all aspects of the Project....” Significantly, the MOA contains a requirement that any disputes related to the agreement be construed under English law, and to have those disputes determined by an English Court. The parties agreed that the existence of the choice of law and venue clauses in the agreement is a factor that may be considered by the court in evaluation of the forum non conveniens factors.

From July 1998 until December 1998, BP International conducted due diligence on the project and meetings and discussions took place among the parties. These activities took place primarily in London with some meetings occurring in India. None took place in Texas. In late December 1998, BP International decided to withdraw from participation in the project and informed Appellants’ representatives at a meeting in London.

In April of 2002, Appellants filed suit in Dallas, Texas alleging that BP had committed fraud based upon the phone call to Jones that occurred in Dallas on April 27, 1998. We agree with Appellees that the substance of this dispute involves a foreign commercial dispute between corporate plaintiffs from Mauritius and corporate defendants from the United Kingdom. Texas has little, if any, interest in or involvement in the underlying dispute.

It appeal's from the evidence presented that the primary witnesses to the dispute are not located in Texas, but rather in England. Included in the record is a list of proposed witnesses which contains over 300 names the majority of which reflect a contact address outside the United States. In this broad based, international dispute, it appears as if the long list of witnesses includes many individuals who may or may not be subject to compulsory process in either jurisdiction. It appears from the record that Texas has no greater power to compel the appearance of the international witnesses than does England. Further, it is clear from the record that the parties to this dispute are sophisticated world travelers, “international entrepreneurs” for whom global meetings and world travel are a regular occurrence.

We recognize that the production of documentary evidence in this global dispute may be complex. We also recognize the reality of the tremendous assistance that technology provides to document management and analysis. BP’s related documents are in England or India. We do not find Appellants’ argument that the difficulties associated with production of documents related to this litigation in England, because the documents were previously transported to Texas by the Appellants, is persuasive as evidence of a “private factor” reason to keep the litigation in Texas.

Finally, the enforceability of a judgment should Appellants prevail in a suit against the Appellees, is not an issue because the parties have submitted to the jurisdiction of the English courts.

C. Public Interest Factors

The public factors are: (1) burden imposed upon the citizens and courts of Texas in trying a case that has no relation to Texas; (2) general interest in having localized controversies decided locally; and (3) interest in having a diversity case tried in a forum that is familiar with the law that must govern the action. See Keller Dev., Inc., 890 S.W.2d at 505.

This suit does not involve a local dispute. The parties are all foreign corporations, though we recognize that the BP International defendants have contacts with Texas including employees and ongoing projects. The events and negotiations related to this suit, however, originated from events occurring outside of Texas. The events themselves were governed by laws completely unrelated to Texas. We find no justification for burdening Texas citizens and courts with litigation that has already produced thousands of pages of pretrial appellate record. We find no merit to Appellants’ argument that the suit should be kept in Texas merely because the Appellants’ representative was passing through Texas when he received a phone call discussing the project between the parties. Similarly, the fact that some of the other potential multinational corporate investors had ties to Texas is not evidence of a “public factor” justifying retention of this litigation in Texas.

We agree with Appellees that the argument propounded by Appellants that the harm suffered by the Appellants as a result of the call occurred in Texas because of damage to their ability to obtain other investors is specious. This project was a global, international proposal, involving global participants but dealing with an Indian project. If a tort occurred, it is inextricably intertwined with the fundamental basis for the relationship between the parties, the potential Indian project, the Confidentiality Agreement providing for resolution of any disputes in England under English law, and the MOA, also invoking the jurisdiction of English courts. Virtually all the discussions, negotiations, exchange of information and decisions related to the project took place outside Texas and the United States. The fortuitous contact consisting of a single phone call to Appellants’ representative as he passed through Texas weighs in favor of the trial court’s finding that the public factors weigh against Appellants’ choice of a Texas forum.

We agree that the fact that the parties are already subject to the jurisdiction of the English courts weighs strongly in favor of the trial court’s determination. Further, it appears that even if a tort claim in favor of the Appellants may be asserted, it is related to the contractual agreements between the parties. The contracts are clearly governed by English law. An action generally should be tried in a court familiar with the law governing the case. Gulf Oil Corp., 330 U.S. at 508-09, 67 S.Ct. at 843. We agree with Appellees that the potential choice of law controversy weighs heavily in support of the trial court’s decision to dismiss.

Appellants have characterized the trial court’s decision in this case as an abuse of discretion, primarily related to the court’s findings and conclusions for the reason that the findings and conclusions were not supported by legally or factually sufficient evidence. We note that the trial court conducted a hearing on the issue of forum non conveniens and was presented with testimony from two witnesses and several thousand pages of documents and deposition excerpts, resulting in eight volumes of the reporter’s record on appeal. The findings of fact and conclusions of law is a document consisting of twenty-four pages which includes a detailed description of the procedural background of the case, twenty-six findings of fact that track the Gulf Oil Corp. factors in detail, and thirty-five conclusions of law that support the trial court’s determination.

The evidence is overwhelmingly favorable to the trial court’s judgment. We overrule Appellants’ Issue No. One that the trial court abused its discretion in dismissing the suit under the forum non con-veniens doctrine. Because this issue is dispositive of this appeal, we do not reach Appellants’ remaining issues.

Having overruled Appellants’ Issue No. One on review, we affirm the judgment of the trial court.

      . Appellants originally sued five separate British Petroleum entities but after negotiations related to special appearance challenges raised by the defendants, the parties entered into a Rule 11 Agreement stipulating to the dismissal of three defendants and a waiver of the special appearance challenges of the remaining two entities.

      . The Confidentiality Agreement included in the record and apparently related to Appellants’ claims for damages appears to have been entered into between Wimco and BP International Ltd. The agreement contains an effective date of November 5, 1997 and was signed by R.P. Singh, director, on behalf of Wimco and S.K. Johnston, Associate President on behalf of BP International Ltd. Appellants have contended that Appellees breached this Confidentiality Agreement which resulted in damages to them but have not explained the relationship between Wimco and Appellants. We assume, without deciding, for purposes of our analysis, that the Confidentiality Agreement applies to the parties of this lawsuit and the Indian Project in question.

      . The Gulf Oil Corp. factors were partially superseded by statute and apply only when a different state or country is involved as the alternate forum. See Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir.1983).