author: BOB McCOY, Justice. ANNE GARDNER, Justice,

text:
    DELTA AIR LINES, INC., Appellant, v. ARC SECURITY, INC., Appellee.
    No. 2-03-371-CV.
    Court of Appeals of Texas, Fort Worth.
    April 28, 2005.

      Maloney, Bean, Horn & Hull, P.C., and Dan K. Horn, Irving, TX, for Appellant.
    Rose Walker, L.L.P., Leane Capps Med-ford, Michael D. Richardson, and Steven D. Sanfelippo, Dallas, TX, for Appellee.
    PANEL B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

This is a suit involving the interpretation of an indemnity agreement. In four issues, Delta Airlines, Inc. (“Delta”) complains that the trial court erred in granting summary judgment for ARC Security, Inc. (“ARC”), and against Delta on its contractual indemnity claims. We affirm.

II. Factual and Procedural Background

On July 15, 1995, Randy Dalton (“Dalton”), a paraplegic, arrived at the Dallas Fort Worth International Airport on Delta flight 1935. A male and a female attendant, alleged to possibly be ARC employees, moved him from his airplane seat onto an aisle chair, a type of wheelchair specifically designed to roll down the narrow aisle of an aircraft. Once they were on the jetway adjacent to the airplane, a second male attendant also arrived, purportedly a Delta gate agent, and while Dalton was being transferred from his aisle chair into his wheelchair, he was allegedly dropped on the wheel of the wheelchair and injured.

Delta and ARC were contractually bound by an Agreement for Skycap Services (the “Agreement”), whereby ARC would provide certain defined services for Delta at the airport, including wheelchair assistance to Delta passengers. ARC’s wheelchair assignment sheet indicated that “John F.” and possibly “Aftab” were assigned to assist someone that day on flight 1935; however, the assignment sheet did not identify the particular individual to be assisted. On occasion, Delta also used its own employees to perform these services.

As a result of the alleged incident, Dalton sued Delta, ARC, and two of ARC’s employees, John Frimpong and Aftab Mu-nir, as well as John Doe 1, John Doe 2, and Jane Doe. In his Third Amended Petition, Dalton asserted that “[o]ne of the two attendants who boarded the aircraft [and dropped Dalton during the wheelchair transfer on the jetway] is believed to be either [defendant AFTAB MUNIR or [defendant JOHN FRIMPONG.... In the event neither FRIMPONG nor AF-TAB is the male attendant in question, then JOHN DOE 1 and JANE DOE were the attendants in question.” As to Delta and ARC, Dalton alleged (1) negligence related to the wheelchair transfer, (2) breach of an implied warranty to Dalton that he would be transported in a reasonably safe manner, (3) responsibility for the negligent acts of their respective agents and employees, and (4) gross negligence. In its First Amended Answer and Cross-Claim for Contractual Indemnity, Delta pled a general denial and other defenses, and sought indemnity from ARC under the Agreement for any costs or expenses that Delta might be required to pay as a result of the suit.

Before trial, Dalton nonsuited his claims against ARC after evidence revealed that the appearance of ARC’s employees differed from Dalton’s description of the persons involved in the incident. Delta’s indemnity claim against ARC was also severed from Dalton’s claims against Delta. Following a jury trial, the trial court rendered a take-nothing judgment in favor of Delta and against Dalton. Thereafter in the indemnity suit, Delta pursued its expenses connected with defending itself against Dalton’s claims. ARC filed both a traditional motion and a no-evidence motion for summary judgment asserting the following grounds:

1.Delta is only entitled to contractual indemnity in the event an “act” or “omission” by ARC contributed to the alleged injuries Mr. Dalton claims he sustained during a wheelchair transfer incident. Delta has judicially admitted the incident never occurred, and no evidence exists to suggest ARC was in any way involved. Delta is therefore es-topped from seeking indemnity from ARC as a matter of law.
2. The express negligence doctrine adopted by Texas and Georgia requires parties seeking indemnity for their own negligence to clearly and conspicuously state that intention. The indemnity provision Delta now relies on requires the occurrence of an “act” or “omission” by ARC and does not specifically state ARC will indemnify Delta for Delta’s sole negligence. In the absence of a clear intent to indemnify Delta for Delta’s own negligence, the provision is unenforceable as a matter of law.
3. Delta has provided no evidence that ARC committed an “act” or “omission” sufficient to warrant application of the indemnity agreement between the parties. ARC is therefore entitled to a “no-evidence” summary judgment.

Likewise, Delta filed a cross-motion for summary judgment and articulated as grounds therefor that “the summary judgment evidence conclusively establishes ARC’s liability under the terms of the written agreement.” Thereafter, the trial court denied Delta’s motion for summary judgment and granted ARC’s motion for summary judgment that Delta take nothing on its indemnity claim. The trial court did not specify the reasons for its rulings. This appeal by Delta followed.

In what it denominates as four issues, Delta argues that (1) the trial court erred in granting summary judgment to ARC, (2) because Delta raised a fact issue as to whether the claim against Delta arose from an act or omission of ARC, (3) because the Agreement’s indemnity provision met the express negligence test so that ARC should indemnify Delta for Delta’s sole acts or omissions, and (4) because Delta was not barred by judicial admission or judicial estoppel from asserting that the underlying claim arose from an act or omission of ARC under the Agreement.

III. The Allegations and the Indemnity Agreement

A.Plaintiffs Pleadings

In its second issue, Delta posits its issue as “Did Delta present some evidence to establish that the claim against Delta arose in any way from any act or omission by ARC under the contract?” An examination of Plaintiffs Third Amended Petition reveals that Dalton was unsure whose employees allegedly dropped him during the wheelchair transfer. As a result, he sued Delta in the event the individuals were Delta’s employees and ARC in the event the individuals were ARC’S employees; that is, Delta was sued solely for its alleged acts and omissions, and ARC was sued only for its alleged acts and omissions.

We first examine the Agreement to determine whether ARC agreed to indemnify Delta for ARC’s acts or omissions for which Delta was sued. Paragraph eight of the Agreement, titled “Indemnification,” states in pertinent part as follows:

Contractor [ARC] shall indemnify, defend and hold harmless Delta ... from and against any and all claims ... of any kind or nature whatsoever, including, but not limited to, interest, court costs and attorneys fees, which in any way arise out of or result from any act(s) or omission(s) by Contractor ... in the performance or non performance of services under this Agreement-This section shall apply regardless of whether or not the damage, loss or injury complained of arises out of or relates to the negligence ... of, or was caused in part by, a party indemnified hereunder. However, nothing contained in this section shall be construed as an indemnity by Contractor against any loss, liability or claim arising solely from the gross negligence or willful misconduct of Delta.

In short form, the first sentence of the indemnification paragraph says that ARC will indemnify Delta against all claims against Delta that arise out of acts or omissions of ARC under the Agreement. However, Delta was not alleged to be responsible for the acts or omissions of ARC but rather for its own acts or omissions. Even so, if Delta could prove that, regardless of the pleadings, the act or omission that Dalton alleged was caused by Delta employees was actually caused by ARC employees, then Delta would be entitled to indemnification under the Agreement.

B. Choice of Law

Delta points out that paragraph 13 of the Agreement indicates that the provisions of the contract are to be construed under Georgia law. ARC asserts that Texas courts will apply Texas law in the interpretation of contractual language unless Delta establishes that there is a conflict between Texas and Georgia law on the disputed issue. See Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 377 (Tex.App.-Fort Worth 2003, pet. denied). After analyzing a Georgia case that it asserts is “on point” to our discussion of the indemnity language in the Agreement, Delta takes the position that “even if Texas law should be applied, the result would be the same.” Therefore, we will analyze the Agreement under Texas law.

C. Standards of Review for Traditional and No-Evidence Motions for Summary Judgment

When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties’ summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). The reviewing court should render the judgment that the trial court should have rendered. Id.

Texas Rule of Civil Procedure 166a does not prohibit a party from combining in a single motion a request for a traditional summary judgment with a request for a no-evidence summary judgment ■ that asserts that there is “no evidence of one or more essential elements of a claim or defense.” Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.2004).

A defendant is entitled to a “traditional” summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiffs claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). 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. Id.

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, also move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The “no-evidence” motion for summary judgment must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, — U.S. --, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004); Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Merrell Dow Pharm., 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). A genuine issue of material fact is raised by presenting evidence on which a reasonable jury could return a verdict in the nonmovant’s favor. Moore, 981 S.W.2d at 266; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986) (interpreting Fed.R.Civ.P. 56).

D. Application to the Evidence

If the trial court granted ARC’S summary judgment because it concluded that Delta had presented insufficient evidence that it was sued due to the acts or omissions of ARC, Delta asserts that summary judgment was improper because it presented more than a scintilla of evidence that it had been sued because of ARC’S actions through the evidence contained in the “Wheelchair Assignment Sheet,” wherein Delta asserts that ARC assigned “John F” and “Aftab” to “assist Mr. Dalton on the date in question.” This, however, is not what the Wheelchair Assignment Sheet states. It is evidence that John F., and possibly Aftab, were assigned to meet flight 1935. There is no evidence that they were assigned to meet Mr. Dalton. The second piece of evidence urged by Delta is deposition testimony that it was the normal procedure for ARC to assign its employees to assist wheelchair passengers. This is, of course, just recounting ARC’S responsibilities under the Agreement wherein they agreed to provide “electric cart and wheelchair assistance to Delta’s customers.... ”

Regardless of whether this evidence, standing alone, is more than a scintilla of evidence that ARC employees were involved in the particular wheelchair incident with Dalton, understanding that Delta employees also provided this service, ARC conclusively established through its own evidence and the testimony of Dalton that its employees were not involved. In Dalton’s disposition, he testified that the non-Delta individuals involved in transferring him from the aisle chair to the wheelchair were a male and female who were wearing “dark, kind of a navy blue overall-looking outfits ... like what ... a mechanic or something would wear ... thicker, blue-dark blue coveralls.” ARC’S employees were dressed in dress shirts, ties, and slacks. Neither John Frimbrough nor Af-tab Munir testified that they had any recollection of ever having assisted Dalton, and Dalton did not identify either of them photographs as being the male who assisted him into the aisle chair. Dalton further testified that the male that assisted him was Caucasian, but neither John Frimb-rough nor Aftab Munir are Caucasian. Therefore, we conclude that ARC conclusively established that the individuals who allegedly dropped Dalton during the wheelchair transfer were not employees of ARC, and therefore, Delta could not have been sued for the actions of ARC. We overrule Delta’s issue number two.

E. The Express Negligence Test

In its third issue, Delta contends that it raised a material fact issue on its indemnity claim because the indemnity provision in the Agreement satisfied the express negligence test, i.e., ARC agreed to indemnify Delta for Delta’s own negligence. The genesis of the express negligence doctrine is Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705, 708 (Tex.1987), wherein the court stated that

[t]he express negligence doctrine provides that parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms. Under the doctrine of express negligence, the intent of the parties must be specifically stated within the four corners of the contract.

In Adams Resources Exploration Corp. v. Resource Drilling, Inc., 761 S.W.2d 63, 65 (Tex.App.-Houston [14th Dist] 1988, no writ), the court noted that in the express negligence context, an enforceable indemnity clause must contain three elements: “(1) [t]he intent of the parties must be clear; (2) it must be set forth within the four corners of the agreement; and (3) the specific intent of the parties must be expressed.” Id.

In its reply brief, Delta cites cases for the proposition that the indemnification language in the Agreement meets the requirements of express negligence. In Maxus Exploration Co. v. Moran Brothers, Inc., 817 S.W.2d 50, 58 (Tex.1991), Diamond Shamrock agreed to indemnify Moran against claims by Diamond Shamrock’s employees “without limit or without regard to the cause or causes thereof or the negligence of any party or parties.” Id. (emphasis supplied). There was a corresponding reciprocal agreement by Moran. The court went on to hold that “the agreement unmistakably obligated Diamond Shamrock and Moran to indemnify one another for the other’s own negligence.” Id. As to Diamond Shamrock, this is clear from a reading of the previously quoted section of the agreement, i.e., Diamond Shamrock agreed to indemnify Moran regardless of the cause of the negligence of any of the parties; that cause obviously could include Moran itself.

In Adams, the court held that the following language satisfies the express negligence test: “Contractor agrees to protect, defend, and indemnify, and save operator ... from and against all claims, demands, and causes of action ... without regard to the cause or causes thereof or the negligence of any party or parties. ...” Adams Resources Exploration Corp., 761 S.W.2d at 64 (emphasis supplied). Again, intent to indemnify the operator from its own negligence is obvious because the language “without regard to the cause or causes thereof or the negligence of any party or parties” could include the negligence of the operator.

Not discussed by the parties, but pertinent to this issue, is B-F-W Construction Co. v. Garza, 748 S.W.2d 611, 613 (Tex. App.-Fort Worth 1988, no writ), in which this court held that the following language also meets the test: “Subcontractor shall fully protect, indemnify, and defend contractor ... against any ... causes of action ... regardless of cause or of any fault or negligence of contractor.” Id. at 613 (emphasis supplied). We stated that this language meets “the express negligence test because it expressly states the intent of the parties that the subcontractor would indemnify the contractor for the contractor’s own negligence.” Id.

F. Application of the Express Negligence Test

Delta asserts that the language in the second sentence of the indemnification paragraph that states, “This section shall apply regardless of whether or not the damage, loss, or injury ... arises out of ... the negligence ... of, or was caused in part by, a party indemnified hereunder,” meets the express negligence doctrine requirements. However, that language is limited by the contractual language of the first sentence of paragraph eight. The first sentence defines the indemnity obligation, and the second sentence defines its parameters. In short form, the first sentence of the indemnification paragraph says that ARC will indemnify Delta against all claims against Delta that arise out of acts or omissions of ARC under the Agreement.

The second sentence says that this indemnification by ARC will be applicable notwithstanding the negligence of a party indemnified under it, which is Delta. In other words, ARC’S obligation to indemnify Delta if Delta is sued for ARC’S acts or omissions exists even if Delta is also negligent, or the loss was “caused in part by” Delta. However, nowhere is there language that directly or indirectly says that ARC will indemnify Delta if Delta is solely at fault, because if Delta is solely at fault, then ARC cannot be at fault and Delta could not be sued for ARC’S acts or omissions as required for indemnification in the first sentence. In other words, ARC will indemnify Delta if Delta is sued for ARC’s acts or omissions (the obligation found in the first sentence) even if Delta is also partially at fault (the parameter of the obligation found in the second sentence). If Delta is wholly at fault, however, ARC’s acts and omissions do not give rise to a claim against Delta, and no indemnification is required.

As applied to paragraph eight of the Agreement and Plaintiffs Third Amended Petition, ARC was not required to indemnify Delta for Delta’s own acts or omissions because this obligation arose only if Delta had been sued for ARC’s acts or omissions, which it was not. Accordingly, Delta’s third issue is overruled.

IV. Plaintiffs Claims

In its first issue, Delta asserts error by the trial court in “granting summary judgment in favor of ARC.” Having overruled Delta’s issues two and three that are dis-positive of issue one, we overrule that issue also.

V. Conclusion

Having overruled Delta’s first, second, and third issues, it is unnecessary to address issue four, and we affirm the trial court’s judgment.

GARDNER, J. filed a concurring opinion.

ANNE GARDNER, Justice,

concurring.

I agree with the majority’s result. But I respectfully disagree with its interpretation of the indemnity agreement. The majority adds terms that do not exist on the face of the agreement, that are unnecessary to resolve this appeal, and that could result in unintended consequences beyond the facts of this case.

To resolve this appeal, we must answer three questions: First, does the indemnity agreement pass the “express negligence” test; that is, is ARC ever obligated to indemnify Delta for Delta’s own negligence? Second, to what extent is ARC obligated to indemnify Delta for Delta’s own negligence? And third, do the facts presented trigger ARC’s contractual obligation to indemnify Delta? To answer these questions, I first look to the plain language of the indemnity agreement. The indemnity agreement consists of two sentences:

[ARC] shall indemnify ... Delta ... from ... all claims ... which in any way arise out of or result from any act(s) or omission(s) by [ARC] ... in the performance or nonperformance of services under this Agreement....
This section shall apply regardless of whether or not the damage, loss or injury complained of arises out of or relates to the negligence (whether active, passive or otherwise) of, or was caused in part by, [Delta].

1. The express negligence test.

The majority acknowledges that indemnity agreements similar to this one have been held to satisfy the express negligence test of Ethyl so as to require indemnification for the indemnitee’s own negligence. But the majority nevertheless states that “nowhere is there language that directly or indirectly says that ARC will indemnify Delta if Delta is solely at fault.” To the contrary, I believe the second sentence says exactly that: ARC will indemnify Delta regardless of whether the injury or damage “... arises out of ... the negligence ... of ... [Delta].”

In many cases, including those cited by the majority, provisions very similar to the indemnity agreement here have been held to meet the express negligence test so as to require indemnity for the indemnitee’s sole negligence. The second sentence of the indemnity agreement here is comparable to the language in those cases. I would hold that it meets the express negligence test so as to obligate ARC to indemnify Delta for claims resulting solely from Delta’s own negligence.

2. To What Extent Must ARC Indemnify Delta for Delta’s Own Negligence?

The majority writes that ARC is never obligated to indemnify Delta for claims that arise solely from Delta’s own negligence. The majority derives this conclusion from its observation that if Delta is solely at fault, then ARC cannot be at fault. This is true (though irrelevant to the indemnity question). The majority then reasons that if Delta is solely at fault for a claim, then the claim could not arise from any act or omission of ARC. I respectfully disagree. The majority adds two words to the indemnity agreement: “solely” and “fault.” Nothing in .the agreement says ARC must be at fault — solely or partially — before its indemnity obligation applies. So long as the claim arises from ARC’s act or omission — negligent or otherwise — ARC must indemnify Delta, even if Delta is wholly or partially at fault.

3. Under What Circumstances Must ARC Indemnify Delta for Delta’s Own Negligence?

The first sentence of the indemnity agreement states that ARC will indemnify Delta for claims that “in any way arise out of or result from the act(s) or omissions(s) by [ARC] ... in the performance or nonperformance of services under this Agreement.” The majority assumes that this language limits ARC’s indemnity obligation only to claims arising out of ARC’s negligent acts or omissions, but no such limitation is expressed in the agreement. The words “acts or omissions” do not necessarily connote negligence and have not been interpreted in the manner suggested by the majority. Similar language exists in most indemnity agreements, as discussed in the cases cited by the majority. In other words, a claim could arise out of ARC’s non-negligent act or omission.

Likewise, “arising out of’ is not synonymous with “caused by.” “ ‘Arising out of are words of much broader significance than ‘caused by.’ ” Utica Natl Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004) (citing Red Ball Motor Freight, Inc. v. Employers Mut. Liab. Ins. Co., 189 F.2d 374, 378 (5th Cir.1951)). “Arising out of’ means there is simply a causal connection or relationship and implies “but for” causation, but not necessarily direct or proximate causation. Id.

I can easily imagine a claim arising out of ARC’s non-negligent performance of contract services but solely caused by Delta’s negligence. Under the majority’s interpretation of the agreement, such a claim does not trigger ARC’s indemnity obligation. But the plain language of the indemnity provision compels the opposite conclusion: ARC must indemnify Delta for all claims arising from ARC’s acts under the contract, even if Delta’s negligence caused the injury.

The first sentence simply imposes a basic requirement of a nexus between the injuries or damage and the contract; that is, ARC’s contractual indemnity obligation is only triggered as to claims arising out of acts or omissions by ARC in the performance or nonperformance of services under its contract with Delta. See Coastal Mart, Inc. v. S.W. Bell Tel. Co., 154 S.W.3d 839, 845-46 (Tex.App.-Corpus Christi 2005, no pet. h.) (holding plain meaning of “arising from or connected with” is to require in-demnitee to establish “some nexus between [indemnitor’s] obligations under the contract and the detriment for which indemnity is sought”).

The majority nonetheless reaches the right result. While I would hold that the agreement, itself, passes the express negligence test, ARC’s indemnity obligation would still only be triggered by allegations in the underlying suit that the claimed injuries arose out of performance or nonperformance of ARC’s services under the contract. Because those pleadings were only in the alternative as to whether ARC’s or Delta’s employees were involved and any claim that ARC’s employees were performing services under the contract was abandoned, ARC’s indemnity obligation was not triggered as a matter of law. Therefore, I join the majority in affirming the summary judgment.

      . In addition, Delta originally argued that the trial court erred in failing to grant its motion for summary judgment, but this issue has been withdrawn.

      . In light of our holding with regard to these issues, we need not address Delta’s remaining arguments. See Tex.R.App. P. 47.1.

      . The majority also assumes that ARC's indemnity obligation only exists where Delta is sued for ARC's negligent acts or omissions. Neither the language of the agreement nor the case law supports such a limitation of ARC's indemnity obligation to Delta's vicarious liability.

      . In Jobs Bldg. Servs., Inc. v. Rom, Inc., an indemnity agreement was held not sufficiently specific to require indemnity for the contractor's own negligence that provided for indemnification of the contractor for "damage ... caused by ... the negligent act or omission of anyone ... for whose acts \or omissions] the contractor ... may be liable." 846 S.W.2d 867, 870 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (emphasis added). If the indemnity agreement here had contained similar language, then I would agree with the majority's interpretation.

      . If the indemnity agreement were enforceable as to the claim pleaded against Delta for its own negligence, it would likewise be enforceable as to defense costs and expenses incurred in defending against the pleaded claim, even though Delta was found not negligent. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 815 (Tex.1994).

      . See Banner Sign & Barricade, Inc. v. Price Constr., Inc., 94 S.W.3d 692, 697 (Tex.App.San Antonio 2002, pet. denied) (holding issue was one of law determined solely by allegations in underlying suit that injuries arose out of subcontractor's work).


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    CTTI PRIESMEYER, INC. formerly known as Central Texas Tiltwall, Inc., Appellant, v. K & O LIMITED PARTNERSHIP, a Texas Limited Partnership, Appellee.
    No. 03-04-00051-CV.
    Court of Appeals of Texas, Austin.
    May 5, 2005.

      John C. Howell, Allen, Stein & Durbin, P.C., Nissa M. Sanders, Crofts & Calla-way, P.C., San Antonio, for Appellant.
    D. Douglas Brothers, John W. Thomas, Nanneska N. Hazel, George & Brothers, L.L.P., Austin, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

The owner of an office and warehouse, K & 0 Limited Partnership, sued the general contractor, CTTI Priesmeyer, Inc., and others for cracks that developed in the concrete slab foundation of its building. Prior to trial, K & 0 settled with all defendants except CTTI and Duke Garwood Architects, Inc. The jury found CTTI liable for breach of contract, and Garwood hable for its negligence. During trial, K & 0 entered into a high-low settlement agreement with Garwood. The trial court entered judgment on the verdict against CTTI and denied any settlement credits.

CTTI raises five issues urging that, as a matter of law, the parties’ subsequent contract regarding repair of the cracks in the slab was a novation of the original contract warranting the building, or in the alternative, that the jury’s failure to find novation was against the great weight and preponderance of the evidence. CTTI also relied on the “one satisfaction rule” to claim that it was entitled to settlement credits. We hold that the novation issue was properly submitted to the jury and that the great weight of the evidence does not preponderate against the jury’s verdict. Furthermore, we rely on the supreme court’s ruling in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000), to hold that the trial court properly denied the settlement credits because tortfeasors cannot be jointly and severally liable for contract damages, and that other contract defendants are only jointly and severally liable for breaches of contracts to which they are a party or that promise the same performance. We affirm the judgment of the district court.

BACKGROUND

In 1997, K & 0 entered into a contract with CTTI for the construction of an office and warehouse building. K & 0 also entered into a contract with Duke Garwood Architects, Inc. to serve as the architect on the project. As such, Garwood’s plans and specifications were incorporated as part of the overall contract documents. The source of the controversy in this case is the building’s slab foundation that CTTI poured in the summer of 1997. Construction was substantially completed in October 1997, and K & 0 moved into the facility at the end of that month.

Cracks in the slab appeared as early as late August 1997, and continued to increase in both size and number as the building was occupied and used. K & 0 consulted with CTTI, Duke Garwood, and John Buford, the project’s engineer, regarding the cracks; they were told that the cracks were typical for a slab of that size. Buford recommended that K & 0 contact a concrete repair expert. The repair expert confirmed that the cracks were the typical result of concrete shrinkage and recommended that K & 0 wait about four to five months for the slab to cure completely. The expert recommended that after the slab had cured, epoxy be applied to repair the cracks. K & 0 obtained an estimate of $182,000 as the cost to complete such repairs.

Pursuant to the expert’s report and recommendations, K & O and CTTI entered into a new agreement in April 1998, in which CTTI agreed to make the recommended epoxy repairs in return for K & O’s final completion payment. Whether this new repair agreement was a novation of the original agreement is at issue on appeal. The agreement detailed the necessary repairs to the slab floor, and provided, in pertinent part:

“The work of this Agreement is subject to all terms of the General Conditions of the Contract for Construction (a part of the Construction Contract between the parties) (the “General Conditions”) with the exception of the payments provision of such General Conditions.” and
“Notwithstanding the terms of the parties’ Construction Contract dealing with resolution of disputes, it is the parties’ agreement that this Agreement shall govern the resolution of their dispute
regarding correction of cement floor slab problems in lieu of arbitration. All other terms of such Construction Contract shall apply to the extent practical.”

CTTI repaired a test area in December 1998, but never repaired the entire slab. As the slab continued to deteriorate, K & O became convinced that the recommended repairs would not stop the deterioration. K & O again consulted a concrete repair expert regarding the condition of the slab. This time the engineers and experts agreed that the slab had been improperly designed and constructed. The testimony at trial indicated that multiple factors contributed to the problems with the slab. Some of the problems were design related, such as the improper spacing of control joints and insufficient designated concrete strength. Other factors were related to the construction of the slab, such as misplacement of rebar and the use of materials other than those designated in the plans and specifications.

K & O filed suit in October 1999 against CTTI, Garwood, Commercial Indemnity Insurance Company (the surety on the repair contract), and MLA Labs, Inc. (the geotechnical firm that had performed testing on the site). K & O later joined Bums Construction, Inc., the subcontractor who provided the fill material for the slab base. CTTI joined John Buford, the project engineer, as a third-party defendant. Prior to trial, K & O settled with the surety, the geotechnical firm, and the fill subcontractor, and such settlements were read into the record at trial. Trial proceeded against CTTI, Garwood and Buford in April 2008. K & O alleged that CTTI breached both the original construction contract and the subsequent repair contract. K & O reached a high-low settlement agreement with Garwood before the case was submitted to the jury.

Nine questions were submitted to the jury, of which four are the subject of this appeal: Question 1 — Did CTTI fail to comply with the construction contract; Question 2 — Was CTTI’s failure to comply excused by a new agreement; Question 3— What damages flow from a positive answer to question 1 and a negative answer to question 2; and Question 6 — What reasonable attorneys’ fees arise from a finding of breach of contract. Although K & 0 alleged in its pleadings that CTTI had breached the repair agreement, a question as to that breach was not submitted to the jury, and K & 0 did not object to such omission.

The jury found that CTTI had breached the construction contract, that CTTI’s breach was not excused by the repair agreement, and that Buford and Garwood were negligent. On the basis of its findings the jury awarded K & 0 $561,750 for CTTI’s breach of contract and $400,000 for attorneys’ fees. The jury also awarded K & O $187,250 for Garwood and Buford’s negligence, and further determined that 70% of the negligence that caused the damages was attributable to Garwood and 30% attributable to Buford. However, under the high-low agreement, K & O settled with Garwood for $190,000 for negligence damages. The trial court entered judgment on the verdict awarding K & O a total of $1,071,714.48 from CTTI.- This amount included prejudgment and post-judgment interest, as well as attorneys’ fees and court costs; the trial court refused to grant CTTI any settlement credits. This appeal followed.

DISCUSSION

Standard of Review

CTTI raises five issues on appeal. Four of CTTI’s issues are raised as matters of law. CTTI’s second issue is a factual sufficiency point.

When reviewing a party’s assertion that its claim or defense was established as a matter of law, and where a jury has made an adverse finding of fact on that issue, we apply a special analysis. See Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). We must first examine the record for evidence that supports the court’s findings, while ignoring all evidence to the contrary. Id. If there is no evidence to support the fact-finder’s conclusion, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.

When reviewing a factual sufficiency challenge, we must assess all of the evidence and may not substitute our judgment for that of the trier of fact. When the challenge is to a finding on which the prevailing party had the burden of proof, we may reverse the judgment only if the challenged finding shocks the conscience or clearly shows bias, or if the favorable evidence is so weak as to make the judgment clearly wrong and manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). If the challenge is to an adverse finding, or failure to find, on which the appellant had the burden of proof, we may reverse only if the failure to find is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Novation

In its first two issues, CTTI contends that the repair agreement was a novation of the original contract as a matter of law, and in the alternative, that the jury’s failure to find a novation was against the great weight and preponderance of the evidence. The party urging novation as a defense bears the burden of proof. Honeycutt v. Billingsley, 992 S.W.2d 570, 576 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Thus, CTTI had the burden to prove (1) the validity of the previous obligation; (2) an agreement among all parties to accept a new contract; (3) the extin-guishment of the previous obligation; and (4) the validity of the new agreement. Vickery v. Vickery, 999 S.W.2d 342, 356 (Tex.1999); Fulcrum Central v. AutoTester, Inc., 102 S.W.3d 274, 277 (Tex.App.Dallas 2003, no pet.). A court may infer that a new agreement is a novation of an earlier agreement when the new agreement is so inconsistent with the earlier agreement that the two agreements cannot subsist together. Fulcrum Central, 102 S.W.3d at 277; Scalise v. McCallum, 700 S.W.2d 682, 684 (Tex.App.-Dallas 1985, writ ref'd n.r.e).

Where there are no inconsistent provisions, “a second contract will operate as a novation of a first contract only when the parties to both contracts intend and agree that the obligations of the second shall be substituted for, and operate as a discharge of, the obligations of the first.” Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 424 (1953). A new agreement can establish novation as a matter of law when the state of the evidence is such that reasonable minds cannot differ as to its effect. Id. Whether a later agreement works a novation of an earlier one is a question of intent. Allstate Ins. Co. v. Clarke, 471 S.W.2d 901, 907 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref d n.r.e.). The intent must be clear; novation is never presumed. Id.

CTTI contends that the language of the repair contract is unambiguous and conclusively establishes that CTTI and K & O intended the repair contract to replace the construction contract with respect to the defective slab. While we agree that the repair contract is unambiguous, we find that the repair contract and the original contract do not have inconsistent provisions. Rather, the provisions regarding the specific steps to be taken to complete the repairs supplement the terms of the original construction contract. Other provisions expressly incorporate the terms of the original contract. The only significant modification to the original contract was the provision stating that any disputes over the repair of the slab would not be subject to the binding arbitration provision of the original contract.

A novation occurs if a contract evidences an intention to relinquish and extinguish pre-existing claims and rights of action. Here, the repair contract does not extinguish all claims of the previous contract, as CTTI argues, but instead incorporates and reaffirms the rights under that contract to the extent feasible. An agreement to make final payment upon completion of the repairs and not to require arbitration for any dispute over that repair is not inconsistent with the general terms of the original contract. The most important of these terms, that CTTI warrants delivery of a defect-free budding, is in fact referenced at least twice in the repair agreement, with the clear intention of maintaining its applicability to the extent possible. Paragraph 3(b) of the repair contract states, “It is the understanding of the parties that such work should approximate (as close as possible) the standard originally intended by contract.” Paragraph 5 states that “[a]ll other terms of such Construction Contract shall apply to the extent practical.” These statements address the possibility that even after the repair work, the building might not meet the defect-free standard warranted in the original contract. The statements serve to allow variation from the warranty to the extent necessary but no further. They clearly evidence the intention that the original contract remain in force to the extent possible.

We agree with K & 0 that the two contracts on the whole addressed different issues: the original contract covered the entire construction process and warranted the final product, while the repair contract covered only the repair of cracks in the slab foundation. The new contract merely represented the parties’ agreement as to how to resolve the dispute over repair of the cracked slab in lieu of arbitration. Because there is no express language of no-vation and no inconsistent provision in the repair agreement, we find that CTTI can not surmount the first hurdle, that there is no evidence to support the jury’s conclusion that the repair contract was not a novation of the original contract. See Holley, 629 S.W.2d at 696. That being the case, we need not examine the record to determine if CTTI’s proposition is established as a matter of law; the issue was properly submitted to the jury.

In the alternative, CTTI argues that the jury’s failure to find novation is against the great weight and preponderance of the evidence. This is a challenge to the factual sufficiency of the evidence. In the absence of inconsistent provisions, we look to the intent of the parties to determine novation. Allstate Ins. Co., 471 S.W.2d at 907; see also Realise, 700 S.W.2d at 684 (stating that only where terms are inconsistent may novation be inferred). The intent of the parties is always a question of fact. See Chastain, 257 S.W.2d at 424 (in the absence of an express agreement as to the intent of the parties, intent is a question of fact unless the state of the evidence is such that reasonable minds could not differ).

The evidence and testimony presented at trial provided ample support for the jury’s decision that the repair contract was not a novation and did not excuse CTTI’s performance under the original contract. Mr. O’Hearn, a 50% owner of K & O, testified that K & O intended the repair contract to allow the parties to resolve the existing dispute over the slab without having to arbitrate, and that there was no intention to relieve CTTI of the warranty provided in the original contract. Specifically, he stated that in light of the fact that the slab, at the time of the repair agreement, was less than one year old; K & O was not in a position to release CTTI from any warranty work. This testimony, combined with the terms of both contracts, cannot be held to be so weak as to preclude an adverse finding on the issue of novation. There was contrary testimony presented by both parties that the agreement was intended to govern the entire dispute over the repair of the slab. However, there was also disagreement as to what was covered by the “dispute regarding correction of the cement floor slab problems.” There was some question as to whether it covered all potential disputes over the slab or just the dispute in existence at the time of the agreement. Where there are inconsistencies in the testimony presented at trial, it is the jury as fact-finder that is the sole judge of the credibility of witnesses and the weight to be afforded the testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jurors may resolve for themselves any inconsistencies by choosing to believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). This Court may not second guess or substitute our judgment for that of the trier of fact. Pool, 715 S.W.2d at 634.

CTTI also argues that the basic tenets of contract interpretation must be applied in this case. Particularly, CTTI argues that because the repair contract is not ambiguous, parole evidence regarding the parties’ intent should be inadmissible, and that if there is any ambiguity, it should be resolved against K & 0 as the drafter of the agreement. See AT & T Corp. v. Rylander, 2 S.W.3d 546, 559 (TexApp.-Austin 1999, pet. denied) (stating general rule that document is construed strictly against author). While these principles of contract interpretation are accurately stated, they do not serve to relieve a party asserting novation of the burden of proving an essential element of that defense. CTTI still must prove the existence of a mutual agreement to form a new contract that extinguishes the old contract. In this case, if we were to find ambiguity and resolve it against K <& O, CTTI has still faded to establish the intent element of its defense. See Computed Imaging Serv., Inc. v. Fayette Mem’l Hosp., 2001 WL 23188, at *3, 2001 TexApp. LEXIS 183, at *9 (TexApp.-Austin, Jan. 11, 2001, no pet.) (not designated for publication) (after resolving any ambiguities in contract against drafter, if existence of mutual agreement to form new contract is not proven, defense of novation has faded).

By virtue of the nature of the agreement’s language, the actions of the parties, and the testimony at trial, reasonable minds could differ over whether the requisite intent was shown. Ames, 776 S.W.2d at 158; Cropper, 754 S.W.2d at 651. Because we find that CTTI could not establish novation as a matter of law and that there was ample evidence to support the jury’s failure to find a novation, we overrule CTTI’s first and second issues. Settlement Credits

In its third and fifth issues, CTTI contends that it is entitled to settlement credits under the “one satisfaction rule.” It argues that because the conduct of both CTTI and the settling defendants combined to cause a single, indivisible injury of a defective slab, it is entitled to credits against its judgment for all undisputed settlements. K & O counters that under the holding in Hunt v. Ellisor & Tanner, CTTI is not entitled to settlement credits. See 739 S.W.2d 933, 938 (Tex.App.-Dallas 1987, writ denied). The court in Hunt held that a claim for breach of contract does not give rise to comparative causation. Id. Based on the supreme court’s more recent discussion of the one satisfaction rule, we reach a similar conclusion.

The one satisfaction rule is the longstanding proposition that a plaintiff should not be compensated twice for the same injury. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991); Bradshaw v. Baylor Univ., 126 Tex. 99, 84 S.W.2d 703, 705 (Tex.1935). The supreme court has addressed the issue of settlement credits in relation to the one satisfaction rule on several occasions since the Hunt opinion. In Stewart Title, the court noted that where all tortfeasors caused a single, indivisible injury to the plaintiff, even though their acts were technically different, the non-settling defendant would be entitled to a settlement credit so as to prevent the plaintiff from obtaining more than one recovery for the same injury. Id. It is important to note that all defendants in Stewart Title, including the settling parties, were tortfeasors. See also First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 79 (Tex.1993) (holding that if multiple tortfea-sors have contributed to whole of indivisible injury, non-settling party is entitled to settlement credits).

More recently, the supreme court discussed settlement credits in Crown Life Ins. Co. v. Casteel, 22 S.W.3d at 391-92:

Under the one satisfaction rule, the non-settling defendant may only claim a credit based on the damages for which all tortfeasors are jointly liable. ... the nonsettling defendant is entitled to offset any liability for joint and several damages by the amount of common damages paid by the settling defendant, but not for any amount of separate or punitive damages paid by the settling defendant.

Id. The court’s use of the words “tortfea-sor” and “liability” leads us to conclude that the one satisfaction rule applies only to tort claims, not to breach of contract claims. The supreme court’s further insistence that a nonsettling defendant receive settlement credits only for settlements based on damages for which there is joint and several liability confirms this understanding. It is also telling that while Texas has four different contribution schemes, each is only applicable to particular types of tort claims and not to contract claims. See First Title Co. of Waco, 860 S.W.2d at 78.

Joint and several liability arises in tort claims based on the conduct of the tortfeasors and the nature of the injury. “If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally hable for the recoverable damages caused by the tortious conduct.” RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § A18 (2000) (emphasis added); see also RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 10, cmt. b (2000) (explaining that joint torts are defined as those committed by multiple defendants acting in concert to cause indivisible injury). Texas has adopted a threshold version of this general rule in its proportionate responsibility statute, whereby in order to recover at all, a plaintiff must not be more than 50% responsible for the injury suffered. See Tex. Civ. Prac. & Rem.Code Ann. § 33.001 (West 1997). Additionally, the statute requires that the trier of fact determine the percentage of responsibility of each claimant, defendant, settling person, and responsible third party. See id. § 33.003 (West Supp.2004-05). The same chapter addresses rights to contribution for the various parties, including rights to offsets to reflect settlements with other parties. See id. § 33.012 (West Supp. 2004-05). These statutes apply when the cause of action is based in tort. See id. § 33.002(a) (West Supp.2004-05).

By contrast, joint and several liability arises in contract based upon the relationship between the parties and the existence of what amounts to joint promises. See RESTATEMENT (SECOND) OF CONTRACTS § 13 IN NT (1981) (more common usage of joint and several liability refers to rights and duties created by promises of same performance). In the case where multiple factors combined to produce the plaintiffs injury, there are different approaches in the tort and contract fields. In tort, when the torts of others were contributing factors, they may be held to be “joint tortfeasors,” each liable for the whole loss or harm. 11-55 CORBIN ON CONTRACTS § 999 (2004). “In the contract field, however, if the acts of others (whether wrongful or not) are contributing factors, those others are not thereby joined with the defendant as having committed the breach of contract.” Id.

We acknowledge that there are cases in which the courts have applied the one satisfaction rule and granted settlement credits or required an election of remedies where there are co-existing tort and contract claims. See Burke v. Union Pac. Res. Co., 138 S.W.3d 46 (Tex.App.-Texarkana 2004, pet. filed); Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., No. 01-02-00788, 2004 WL 1794706, 2004 Tex.App. LEXIS 7269 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, pet. denied); Goose Creek Consol. Indep. School Dist. v. Jarrar’s Plumbing, Inc., 74 S.W.3d 486 (Tex.App.-Texarkana 2002, pet. denied). In those cases, the courts have focused on the indivisible nature of the injury to the plaintiffs, and have not discussed the requirement of joint liability. We find that focus to be misplaced and decline to follow those decisions. See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 26, cmt. g (2000) (indivisible nature of the injury is only the proper inquiry where the contributing factors are all actions of the plaintiff and toHfeasors). If we were to hold that, due to the indivisible nature of the resulting injury, breach of contract defendants and tort defendants are jointly and severally liable for all damages, we would be forced to hold a person not a party to a contract liable for the breach of that contract.

CTTI contracted with K & O directly. That contract specifically included a promise to deliver a defect-free budding. While other defendants also had contracts with K & O, none of those contracts made the promise which is the subject of this cause of action — that K & O receive a defect-free building. Therefore, even if the pre-trial settlements with other parties were to settle separate contract claims, those contracts did not promise the same performance as CTTI. Thus, there can be no joint and several liability between the various contracting parties. See RESTATEMENT (SECOND) OF CONTRACTS § 13 IN NT (1981). Garwood may have made a promise to provide architectural and supervisory services, but it did not make a promise to deliver a defect-free building. It therefore did not promise the same performance to K & O as CTTI, precluding joint and several liability. Moreover, the jury found Garwood did not breach its contract but was liable only for its own negligence. The settlement therefore covered damages caused by Garwood’s negligence, which by definition involves no promise whatsoever.

The supreme court’s decision in Croton Life is controlling in this case and requires that settlement credits be applied only if the parties were jointly and severally liable for the damages. See Crown Life Ins. Co., 22 S.W.3d at 391-92. Because tortfeasors cannot be jointly and severally liable for contract damages, and other contract defendants are only jointly and severally liable for breaches of contracts to which they are a party or that promise the same performance, we overrule CTTI’s third and fifth issues and affirm the trial court’s decision to deny any settlement credits.

Having oveiTuled CTTI’s claim for settlement credits, we need not address the complaint raised in its fourth issue regarding attorneys’ fees.

CONCLUSION

Having found that the question of novation was properly submitted to the jury, that the jury’s verdict was not against the great weight and preponderance of the evidence, and that CTTI was not entitled to any settlement credits, we affirm the judgment of the district court.

      . CTTI Priesmeyer, Inc. was known as Central Texas Tiltwall, Inc. at the time of the contract.

      . In its fifth issue, CTTI contends in the alternative that it is entitled to a credit for only those settlements made pretrial.

      . CTTI argues that once it put the settlements into the record, it satisfied its burden to prove its right to a settlement credit. See First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78-79 (Tex.1993). The burden then shifts, it argues, to K & O to allocate the settlement between those damages for which CTTI was jointly liable and those for which the settling party was separately liable. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927-28 (Tex.1998) (holding that after defendant put settlements into record, plaintiff then had burden of allo-eating settlements between damages for which nonsettling defendant was jointly liable and punitive damages, for which there is not joint liability; if plaintiff fails to allocate, defendant receives credit for full amount of settlement). This burden shifting applies only where there are at least some damages for which there could be joint and several liability. Because we find that there can be no damages for which CTTI is jointly liable with other settling patties, K & O had no burden to allocate the settlements.


author: BOB PEMBERTON, Justice.

text:
    Robert G. MORRIS, D.V.M. and Joyce M. Morris, Appellants, v. Kallie Jo KOHLS-YORK, Individually and d/b/a Kallie-Harie Reds and Brenda Behring, Individually and d/b/a South Central Texas Boer Goats, Appellees.
    No. 03-04-00371-CV.
    Court of Appeals of Texas, Austin.
    May 5, 2005.

      R. Mark Oliver, Donald A. Ferrill, Brown Pruitt Peterson & Wambsganss, P.C., Fort Worth, for appellants.
    Michael B. McKinney, Stubbeman McRae Sealy Laughlin & Browder, Inc., Midland, for appellees.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

This is an appeal from a denial of the special appearances of appellants, Robert and Joyce Morris, contesting personal jurisdiction in Schleicher County. The principal issue on which jurisdiction depends is whether legally and factually sufficient evidence supports the district court’s fact-findings and legal conclusions that the Morrises committed acts in their individual capacities giving rise to jurisdiction, as opposed to their capacities as employees of their limited liability corporation. We also consider the applicability of the “fiduciary shield” doctrine and its implications. We affirm the district court’s order denying the Morrises’ special appearances.

BACKGROUND

Robert Morris, a veterinarian, and Joyce Morris, an embryologist, are residents of Missouri. Together, they perform embryonic collection and transfer veterinary services for individuals and agribusinesses who raise goats and other small grazing animals. The Morrises’ services entail removing embryos (fertilized eggs) from female animals and re-implanting them in other female animals. These services aid breeders in encouraging favorable genetic characteristics among them herds — embryos from female animals with favorable genetic characteristics can be transferred to other female animals with less favorable characteristics for gestation, thus freeing the genetically superior females for more breeding. Assuming the transplanted embryos successfully come to term and survive into adulthood, the genetically favorable traits will grow more prevalent in the herd over time.

In 1998, the Morrises provided their services, in their individual capacities, for twenty different individuals or entities while physically present at eleven Texas locations. On January 22, 1999, the Mor-rises established Morris Genetics, L.L.C., a Missouri limited liability corporation with its principal office in Missouri. Morris Genetics exists for the purpose of providing embryonic collection and transfer services and has only two employees— Robert and Joyce Morris. Robert Morns is licensed to practice veterinary medicine in Texas, but Morris Genetics is not licensed nor could it be because corporations may not practice veterinary medicine. See Tex. Occ.Code Ann. § 801.506 (West 2004).

Since establishing Morris Genetics, the Morrises have continued performing their embryonic transfer and implantation services while each is physically present at Texas locations. In 1999, they performed such services for thirty-two days, at nine locations, for seventeen customers; in 2000, twenty-three days, at ten locations, for sixteen customers; in 2001, thirty-five days, at nine locations, for fifteen customers; and, in 2002, twelve days, at five locations, for seven customers. Neither the Morrises nor Morris Genetics have ever owned any property in Texas, nor have they maintained a bank account or employed Texas residents in any capacity. Neither Morris Genetics nor the Morrises solicit business in Texas, but they do send notices and medical supplies to their customers and accept payment via mail. Individual clients in Texas contact Morris Genetics to perform transfers.

Among the clients of the Morrises or Morris Genetics are appellees Brenda Behring and Kallie Jo Kohls-York. In 1998, Behring requested the Morrises’ services for her business, South Central Texas Boer Goats. The Morrises visited Behring’s farm in Gonzales County and initiated a transplant program with her goats that extended through 2001. Kohls-York hired the Morrises or Morris Genetics in 2001 to perform services at her Schleicher County goat ranch. The litigation in this case arose from visits by the Morrises to perform services at each of Behring and Kohls-York’s ranches in April 2001, and again in late September and October of the same year. The success rate for these implantations fell far below the 70% the Morrises had estimated. The April implantations achieved only a 13% success rate for Behring and 39% for Kohls-York; in September, the results were 33% and 5%, respectively. The Mor-rises have admitted that a possible reason for the low success rate was bacterial contamination of the microscope they used when performing their services. Such contamination may have caused an inflammatory reaction in the goats in which the embryos were implanted, resulting in spontaneous abortions.

Kohls-York and Behring sued the Mor-rises individually and Morris Genetics for damages from negligence, breach of implied warranty, and DTPA violations. See Tex. Bus. & Com.Code Ann. § 17.46 (West 2004). The Morrises disputed that the district court could assert personal jurisdiction over them in their individual capacities. However, they did not dispute that jurisdiction was proper against Morris Genetics, their employer, based on their acts in Texas as employees. The Morrises filed special appearances, which the district court denied. The district court filed findings of fact and conclusions of law. This appeal followed.

DISCUSSION

The Morrises present five issues on appeal. Their central contention is that, although they were physically present in Texas and committed various acts out of which tort claims arose, they cannot properly be haled into a Texas court in their individual capacities because they committed any such acts solely in their representative capacities as Morris Genetics employees. In light of this contention, the Morrises challenge, in their first issue, the legal and factual sufficiency of the district court’s fact findings and its legal conclusions regarding jurisdiction. The Mor-rises next assert three issues concerning the fiduciary shield doctrine, contending that this doctrine bars the assertion of personal jurisdiction against them individually and that the evidence is legally and factually insufficient to establish the alter-ego exception to the doctrine. Finally, in their fifth issue, the Morrises argue that the exercise of personal jurisdiction is not consistent with traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Personal jurisdiction

In their first issue, the Morrises argue that the evidence is legally and factually insufficient to support the district court’s fact findings and that the district court erred in its legal conclusions regarding jurisdiction.

Applicable law

The Texas long-arm statute authorizes Texas courts to exercise personal jurisdiction over a nonresident defendant that “does business” in Texas. See Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-.045 (West 1997 & Supp.2004-05). Committing a tort in Texas constitutes “doing business.” See id. § 17.042(2) (West 1997). The broad language of the “doing business” requirement in section 17.042 permits the statute to reach as far as the federal constitutional requirements of due process will allow. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Thus, we rely on precedent from the United States Supreme Court and other federal courts, as well as Texas decisions, to determine whether an assertion of personal jurisdiction is consistent with the requirements of due process. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).

Personal jurisdiction over a nonresident defendant satisfies due process when two conditions are met: (1) the defendant has established “minimum contacts” with the forum state, and (2) the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” Id. at 793 (citing International Shoe, 326 U.S. at 316, 66 S.Ct. 154). A nonresident defendant that has “purposefully availed” itself of the privileges and benefits of conducting business in the forum state has sufficient contacts to confer personal jurisdiction. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). A defendant should not be subject to jurisdiction based on random, fortuitous, or attenuated contacts. Id. (citing Burger King, 471 U.S. at 475, 105 S.Ct. 2174).

The minimum-contacts analysis has been refined to distinguish two types of jurisdiction — specific and general jurisdiction. Specific jurisdiction exists when the nonresident defendant’s activities have been “purposefully directed” to the forum and the litigation results from injuries arising out of or relating to those activities. Guardian Royal, 815 S.W.2d at 228. The minimum-contacts analysis for specific jurisdiction is somewhat narrow, focusing on the relationship among the defendant, the forum, and the litigation. Id.; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). “It is the quality and nature of the defendant’s contacts, rather than their number, that is important to the minimum-contacts analysis.” American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002) (citing Guardian Royal, 815 S.W.2d at 230 n. 11).

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793. A defendant challenging the court’s assertion of personal jurisdiction must negate all jurisdictional bases alleged by the plaintiff. American Type, 83 S.W.3d at 807. Whether a court has personal jurisdiction over a defendant is a question of law, which we review de novo. BMC Software, 83 S.W.3d at 794. However, the trial court frequently must resolve questions of fact before deciding the question of jurisdiction. Id. When the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. Id.; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Under our legal sufficiency standard of review, we ascertain whether there is more than a scintilla of evidence to support the finding; if so, the challenge fails. BMC Software, 83 S.W.3d at 795; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). “More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions.” Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 548 (Tex.App.-Houston [14th Dist.] 2003, ho pet.). A factual sufficiency challenge requires proof that a finding was “so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.” Goodenbour v. Goodenbour, 64 S.W.3d 69, 75 (Tex.App.-Austin 2001, pet. denied). In conducting this review, we consider the entire record, not just the evidence in support of the challenged fact. Walker Ins. Servs., 108 S.W.3d at 548. We will affirm if we can uphold the trial court’s order on any legal theory finding support in the evidence. SITQ E.U., Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 645 (Tex.App.-Fort Worth 2003, pet. denied).

Specific jurisdiction

The Morrises assert that the following six findings of fact are not supported by legally and factually sufficient evidence:

5. [Dr. Morris] has been licensed to practice veterinarian [sic] medicine in the State of Texas since August 10, 2000;
7. In 2001, Robert G. Morris and Joyce M. Morris performed embryo transplant programs in the State of Texas for Kallie Jo Kohls-York, individually and dba Kallie-Harie Reds on April 24 and 25 and September 23 and 24, 2001, in Schleicher County, Texas;
8. In 2001, [the Morrises] performed embryo transplant programs in the State of Texas for Brenda Behring, individually and dba South Central Texas Boer Goats on April 21 and October 9 and 10, 2001, in Gonzales Country, Texas;
13. Plaintiffs’ claims against all defendants arise from or are directly related to actions by the defendants that were performed within the State of Texas by defendants.

The Morrisses also challenge four of the district court’s five conclusions of law:

2. The nonresident defendants have purposefully performed acts and consummated transaction in the State of Texas;
3. Plaintiffs’ causes of action are the direct result of the purposefully performed acts by the defendants that in whole or substantial part occurred within the State of Texas;
4. The assumption of jurisdiction by this state does not offend traditional notions of fair play and substantial justice; and
5. Plaintiffs have met their burden of proof and established all necessary elements for the court ... to exercise jurisdiction over all defendants as to the causes of action arising out of defendants’ acts.

Additionally, two of the district court’s fact findings are, in substance, conclusions of law, and we will treat them as such.

9. Robert G. Moms and Joyce M. Morris have had continuous and systematic contacts with the State of Texas since 1995;
10. Moms Genetics, L.L.C., Robert G. Moms, and Joyce M. Morris have purposefully availed themselves of the privilege of conducting activities within the State of Texas.

Behring and Kohls-York alleged the following facts in support of the trial court’s assertion of personal jurisdiction over the Morrises: (1) the Morrises performed embryo work and transplant programs on Behring’s ranch in 1998-2001 and on Kohls-York’s goat farm in 2001; (2) while performing these services, both Robert and Joyce Morris were personally present in Texas and did not have anyone else assisting them; (3) the Morrises had represented they had the necessary skills, licenses, and experience to achieve a successful embryo transplant program; (4) the Morrises’ daily summary sheets for 2001 estimated to both Behring and Kohls-York a success rate of 70%; (5) the Morrises represented that Dr. Morris was a skilled and licensed veterinarian and that Joyce Morris was a skilled and licensed embryologist; and (6) despite the represented success rates, Behring alleges a success rate of 13% in the spring and 33% in the fall of 2001, and Kohls-York alleges a success rate of 39% in the spring and 5% in the fall of 2001.

The Morrises assert that these allegations and evidence fail to differentiate between the performance of their corporate duties for Morris Genetics, L.L.C., and their actions in them individual capacities. When, as here, there are multiple defendants, we must test each defendant’s actions and contacts with the forum separately. Shapolsky v. Brewton, 56 S.W.3d 120, 132 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). At this stage of the proceeding, we are not charged with determining the merit of plaintiffs’ allegations against the Morrises. See Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 489 (Tex.App.-San Antonio 2003, no pet.). Instead, we examine plaintiffs’ allegations and then determine separately whether the evidence establishes a substantial connection between each of the Morrises and Texas. Id.

While purporting to challenge several of the district court’s fact findings, the Mor-rises actually do not dispute that, in some capacity, they committed the conduct the trial court found. Finding of fact 5 states that Robert Morris has been licensed to practice veterinary medicine in Texas since August 2000. Dr. Morris concedes as much in his brief on appeal. Findings of fact 7 and 8 refer to services both Robert and Joyce Morris indisputably provided for Behring and Kohls-York in 2000 and 2001 while physically present at their respective Texas properties. According to Joyce Morris’s testimony, she assisted her husband as an embryologist in the transplant surgeries at issue while physically present in Texas; she “collected the embryos, evaluated them, handled them, and replaced them back in.” Finally, finding of fact 13 states that the plaintiffs’ causes of action arise or are directly related to actions performed by the Morrises while in Texas. The Morrises do not dispute that their performance of embryo transfer services for Behring and Kohls-York while physically present in Texas gave rise to Behring and Kohls-York’s claims against them. Rather, the Morrises assert that each of these findings can properly relate solely to their acts in the capacity of Morris Genetics employees, not as individuals.

Assuming without deciding that the Morrises were acting solely in their capacities as Morris Genetics employees, the findings and evidence supports the assertion of specific personal jurisdiction over both Robert and Joyce Morris individually. Texas employs a three-part test to determine whether there is specific jurisdiction: (1) the nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. Schlobohm, 784 S.W.2d at 358 (citing O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966)). These requirements ensure that a nonresident will be “haled” into court only as a result of intentional activities, so that it is reasonable for the nonresident defendant to anticipate being called into a Texas court. See Guardian Royal, 815 S.W.2d at 226; Schlobohm, 784 S.W.2d at 357-58.

Applying this three-part test, we find that the district court properly exercised specific jurisdiction over the Morrises. In relation to the first prong, both Robert and Joyce Morris performed the embryonic transfers while physically present in Texas since 1997, and they continued to be present in Texas to perform them after the formation of Morris Genetics. The embryo transfer and implantation services entailed surgical procedures that Robert Morris, as a licensed veterinarian, was solely qualified to provide. Joyce Morris, as an embryologist, assisted in those procedures. They purposefully conducted those acts in Texas. In relation to the second prong, the tortious acts by both the Morrises arose out of those acts or transactions. Kohls-York and Behring alleged that the Morrises each committed tortious acts when conducting the embryonic transfers and implantations on the goat herds.

Concerning the third prong, both the Morrises were conducting a substantial amount of business in Texas, Robert Morris himself was licensed to practice veterinary medicine in the State of Texas, and it does not appear unfair to assert jurisdiction over the Morrises. The allegation that the Morrises each committed torts while in Texas leads us to conclude that the exercise of specific jurisdiction over the Morrises does not offend “traditional notions of fair play and substantial justice.” See BMC Software, 83 S.W.3d at 796-97 (tort alleged to have occurred in Texas; however, evidence showed tort occurred outside of Texas and, thus, court erred in asserting specific jurisdiction); Guardian Royal, 815 S.W.2d at 231 (“Only-in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.”); Hoik v. USA Managed Care Org., Inc., 149 S.W.3d 769, 774 (Tex.App.-Austin 2004, no pet.). Corporate agents are individually liable for fraudulent or tortious acts committed while in the service of their corporation. Shapolsky, 56 S.W.3d at 133. Due-process considerations are satisfied if defendants direct tortious conduct toward the forum state with the foreseeable knowledge that the actions will cause harm to a resident of the forum and the defendants purposefully avail themselves of the privilege of conducting activities within the forum state. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 249 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); see also Burger King, 471 U.S. at 474-76,105 S.Ct. 2174; Colder, v. Jones, 465 U.S. 783, 798-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). It is foreseeable that the use of a contaminated microscope to perform embryo transfers on goats in Texas will cause harm to the Texas residents who own the goats. In addition, by coming to Texas to perform the embryo transfers the Mor-rises purposefully availed themselves of the privilege of conducting activities within Texas. Finally, Morris Genetics has not challenged the district court’s exercise of personal jurisdiction, and the Morrises, as the only employees and officers of Morris Genetics, must be in Texas as a part of the litigation against Morris Genetics. Thus, we find that the assertion of jurisdiction will not offend traditional notions of fair play and substantial justice.

Having considered each of the three Schlobohm prongs, we determine that it is proper for the district court to assert jurisdiction over both of the Morrises in this case.

We note that our sister court in San Antonio has recently considered similar issues in a similar case involving the Mor-rises. See Morris v. Powell, 150 S.W.3d 212 (Tex.App.-San Antonio 2004, no pet.). In that case, the court found that the district court had specific jurisdiction over Robert Morris but not over Joyce Morris. See id. at 222-23. In doing so, the court stated that the fact that Joyce Morris, “a Morris Genetics, L.L.C. corporate officer, is alleged to have committed a tort in Texas is not dispositive because that, alone, does not give Texas courts jurisdiction over her as a nonresident.” Id. at 223 (citing Shapolsky, 56 S.W.3d at 133, and Stern, 123 S.W.3d at 489). For that proposition, both Shapolsky and Stem, in turn, relied on a case from this court, Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.-Austin 1973, writ ref'd n.r.e.).

Our Hoppenfeld holding does not change our analysis in this case. Hoppenfeld concerned a fraudulent misrepresentation made in the course of negotiating a franchise agreement. Id. at 54, 57. The plaintiff entered an agreement to become the franchise director in Travis and Bexar Counties for a national corporation that provided computerized legal research for attorneys. Id. at 54. The plaintiff filed suit against an executive from New York in his individual capacity based solely on statements made at a seminar in New York and on a letter sent by that executive to the plaintiff in response to the plaintiffs complaints concerning service quality. Id. at 58. These statements concerned research techniques employed by the corporation. Id. No tort was alleged to have resulted from the actual services of the corporation, only from statements about its methods of research. Id. at 54.

The executive was never physically in Texas, and none of the acts or transactions that formed the basis of the suit in arose in Texas. Id. at 57-58. Nothing in the record supported the proposition that the executive invoked the protections and benefits of Texas laws. Id. at 58. Thus, Hop-penfeld stands for the proposition only that the fact that a tort is alleged to have been committed by a person out-of-state and that the tort may have had an effect in Texas is not sufficient for a court to exercise personal jurisdiction. In this case, as we have discussed above, both Morrises were physically present in Texas, performed the embryo transplants in Texas, and allegedly committed the torts while physically in Texas. Adhering to the well-established methods for analyzing a court’s exercise of specific jurisdiction, we find that the trial court properly exercised specific jurisdiction over the Morrises in their individual capacities.

Because we have found the evidence legally and factually sufficient to support the trial court’s findings of fact and because we have found that the trial court appropriately exercised specific jurisdiction, we have no need to decide if the district court could exercise general jurisdiction in this case. See BMC Software, 83 S.W.3d at 793 (defendant challenging court’s assertion of personal jurisdiction must negate all jurisdictional bases). We overrule the Morrises’ first issue.

Fiduciary shield doctrine

In their second and third issues, the Morrises assert the fiduciary shield doctrine should have been applied to bar the trial court’s exercise of personal jurisdiction. Although the Texas Supreme Court has not explicitly adopted the fiduciary shield doctrine, many of our sister courts have recognized it. The fiduciary shield doctrine protects a corporate officer or employee from the trial court’s exercise of general jurisdiction when all of the individual’s contacts with Texas were on behalf of the employer. Morris, 150 S.W.3d at 221; Wright, 137 S.W.3d at 250 n. 8; see also Siskind v. Villa Found, for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982) (“Absent some allegation of a specific act in Texas, or one with reasonably foreseeable consequences within this state’s borders, a nonresident employee of a foreign corporation cannot be sued in Texas simply because his or her employer solicits business here.”); Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 738 (Tex.App.-Fort Worth 2001, no pet.) (noting general rule that court may not assert personal jurisdiction over individual based on individual’s relation to corporation unless corporation is individual’s alter ego). Texas courts that have applied the fiduciary shield doctrine, however, have explicitly limited its application to the exercise of general jurisdiction over a nonresident defendant. See Wright, 137 S.W.3d at 250; Jackson v. Kincaid, 122 S.W.3d 440, 448 (Tex.App.-Corpus Christi 2003, pet. granted); ’ SITQ, 111 S.W.3d at 651; Brown v. Gen. Brick Sales Co., 39 S.W.3d 291, 300 (Tex.App.-Fort Worth 2001, no pet.); Garner v. Furmanite Australia Pty., Ltd., 966 S.W.2d 798, 803 (TexApp.-Houston [1st Dist.] 1998, pet. denied) (fiduciary shield doctrine protected Australian resident from trial court’s exercise of general jurisdiction when only contacts with Texas were on employer’s business); but see D.H. Blair Inv. Banking Corp. v. Rear-don, 97 S.W.3d 269, 277 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.). The fiduciary shield doctrine does not protect a corporate employee from the exercise of specific jurisdiction as to fraudulent activities or torts for which the employee may be held individually liable. Stem, 123 S.W.3d at 488. Although an individual’s contacts with a forum should not be analyzed based on his or her employer’s activities in that forum, one’s status as an employee does not insulate the employee from the trial court’s jurisdiction. Calder, 465 U.S. at 790, 104 S.Ct. 1482. “There is no blanket protection from jurisdiction simply because a defendant’s alleged acts were done in a corporate capacity.” SITQ, 111 S.W.3d at 651. Instead, each defendant’s contacts with the forum state must be assessed on an individual basis. Calder, 465 U.S. at 790,104 S.Ct. 1482.

Because we have found that the trial court properly exercised specific jurisdiction over both Robert Moras and Joyce Moms, the fiduciary shield doctrine, if recognized by this Court, would not protect them in this case. This doctrine protects employees and officers from liability for tortious acts committed by others who work for the corporation. It does not, however, protect employees from liability for their own tortious conduct committed while acting as an employee. The Mor-rises, as the only employees of Morris Genetics, performed those services in Texas. We overrule the Morrises’ second and third issues.

Personal jurisdiction generally

In them fifth issue, the Mortises claim that there is no legal theory on which the trial court could assert personal jurisdiction. However, we have found that the evidence was legally and factually sufficient to support the trial court’s findings of fact to assert jurisdiction and find the trial court’s conclusions of law correct insofar as they confer specific jurisdiction over the Morrises. We overrule the Morases’ fifth issue.

CONCLUSION

We have found that the trial court correctly exercised specific jurisdiction over the Morrises and that the fiduciary-shield doctrine does not shield them from liability for their own tortious conduct. We affirm the district court’s denial of both of the Morrises’ special appearances.

      . Apparently the Morrises experienced similar problems — and similar litigation — with other Texas customers outside the region served by this Court. See Morris v. Powell, 150 S.W.3d 212 (Tex.App.-San Antonio 2004, no pet.).

      . See Ray v. Farmers’ State Bank, 576 S.W.2d 607, 608 n. 1 (Tex.1979); Des Champ v. Featherston, 886 S.W.2d 536, 541 n. 4 (Tex. App.-Austin 1994, no writ). We may not analyze conclusions of law through factual sufficiency analysis. Circle C Child Dev. Ctr., Inc. v. Travis Cent. Appraisal Dist., 981 S.W.2d 483, 485 (Tex.App.-Austin, 1998, no pet.). Thus, we will review these conclusions of the district court de novo.

      . In Tuscano v. Osterherg, the El Paso court analyzed the fiduciary shield doctrine only with respect to general jurisdiction. 82 S.W.3d 457, 467 (Tex.App.-El Paso 2002, no pet.). Because the trial court found that it lacked specific jurisdiction in the case, the court of appeals did not discuss specific jurisdiction on appeal. Id. at 462.

      .The Reardon court analyzed the fiduciary shield doctrine in the context of specific jurisdiction. See D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 277 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.). However, it ultimately did not find that the fiduciary shield doctrine applied under the facts of that case. Id. at 278. Other than this one case, the courts of appeals are consistent in their holdings that the fiduciary shield doctrine applies only with regard to general jurisdiction.

      . Today, in Ennis v. Loiseau, 164 S.W.3d 698 (Tex.App.-Austin 2005, no pet. h.), this Court reaches the same conclusion — that the fiduciary shield doctrine, if recognized, applies only to the exercise of general jurisdiction, not specific jurisdiction.

      . As a result, we have no need to consider the Morrises' fourth issue — whether the evidence is legally or factually sufficient to establish the alter-ego exception to the fiduciary shield doctrine.