author: Justice GARZA.

text:
    John Perry DORNBUSCH, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-700-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Jan. 27, 2005.
    Rehearing Overruled March 24, 2005.

      William J. McCarthy, Eaton & McCarthy, Me Allen, for appellant.
    Amy Howell Alaniz, Asst. Dist. Atty., Theodore C. Hake, Asst. Criminal Dist. Atty., Edinburg, for appellee.

      Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
   OPINION

Opinion by

Justice GARZA.

Appellant, John Perry Dornbusch, appeals his conviction for one count of inducing sexual conduct by a child. See Tex. Pen.Code Ann. § 43.25(b) (Vernon Supp. 2004-05). Because we conclude that section 43.25(b) of the Texas Penal Code is not unconstitutionally vague and the evidence is legally and factually sufficient to support the conviction, we affirm. See id.

I. Facts

The offense in question allegedly occurred on December 8, 2000. At the time, Dornbusch was a band director at Hidalgo High School in Hidalgo, Texas. He was charged by indictment with three counts of inducing sexual conduct by a child and pled not guilty to all three counts.

At trial, Dornbusch and the State presented very different accounts of what happened on December 8, 2000. According to the State, Dornbusch persuaded two female students, V.V. and J.R., to run errands with him during school hours. The two girls, both seventeen-year-old seniors, had skipped their after lunch classes and were hanging out in the band hall. V.V. and J.R. both testified that Dornbusch, who was working in his office located in the band hall, invited them to accompany him in his new pick-up truck to collect some band instruments. They agreed and joined him, first driving to a middle school in McAllen, Texas and then to a music store. Next, Dornbusch went to a convenience store and purchased sodas and alcoholic beverages for them. He then drove to a motel in Pharr, Texas. Both girls claimed that Dornbusch was the one who suggested getting a motel room, telling the girls, “We only live once.” V.V. testified that she and J.R. just looked at each other without responding: “We didn’t say yes or no.”

The two girls described the motel room, which was equipped with a hot tub. J.R. testified that the two of them undressed in the bathroom and got into the hot tub wearing towels from the motel, while Dornbusch got into the tub completely naked. Dornbusch teased the girls for wearing towels, which they then removed. According to both girls, Dornbusch then began touching their genitalia. He took J.R. to the bed and attempted to perform oral sex on her. When she closed her legs to prevent him from doing so, Dornbusch allowed J.R. to return to the hot tub and guided V.V. to the bed, where he performed oral sex on her. Afterward, the three of them left the motel. Dornbusch dropped J.R. off at her home around 4 p.m. and then returned to the high school with V.V.

Several witnesses verified various parts of the girls’ testimony. The clerk at the motel, Beth Hamill, identified Dornbusch in court as the man to whom she had rented the hot tub room at 2:11 p.m. According to Hamill, the man had identified himself as “James Ferris” and paid for the room in cash without showing identification.

Marshall Doherty, the owner of the motel, testified that a registration card was filled out by a man matching Dornbusch’s description on December 8, 2000. He also testified to having picked Dornbusch’s picture out of the faculty photographs from a Hidalgo High School yearbook when asked by a school investigator to identify the man who rented the room.

Kenneth Crawford, a handwriting expert, identified at least thirteen similarities between the handwriting on the registration card and Dornbusch’s handwriting, but he could not conclude with scientific certainty that Dornbusch had filled out the card.

Irma Molina, the principal of Hidalgo High School, testified that she took statements from both V.V. and J.R. regarding the events in question. She also had both girls separately draw diagrams of the motel and the motel room. She testified that the diagrams drawn by the girls corresponded to the layout of the actual motel and the hot tub room rented by “James Ferris.”

Domenica Salinas, who lived with J.R. at the time, saw Dornbusch drive to J.R.’s house around 4 p.m. in a blue pick-up truck and watched J.R. enter the house.

Dr. Daniel King, the school superintendent, directed much of the school’s investigation into the allegations against Dorn-busch. He testified to having received a copy of the registration card from the motel and discovering that the first six digits of the driver’s license number on the card were identical to the first six digits of Dornbusch’s license (only the last two numbers were different). He also noted that the post office box number on the registration card was the same as Dorn-busch’s mail box number, though the cities were different. Dr. King also obtained videotapes from school security cameras for the day in question. They showed Dornbusch’s truck entering the school parking lot at 4:11 p.m. and Dornbusch entering the band hall shortly thereafter accompanied by an unidentified female. The tapes were admitted as evidence.

Dornbusch testified to a very different version of events. He denied being with the girls on December 8 and denied having any sexual contact with either of them. Dornbusch testified that he left school after 1 p.m. and met his mother at home.

They went to lunch together from approximately 2:30 to 3:30 p.m. He then ran errands until around 4 p.m., when he returned to campus. One of the errands was to check on instruments being repaired at a music store. Dornbusch’s mother, Frances Ann Dornbusch, provided corroborative testimony. In addition, Dornbusch’s wife testified that he was at home at 2:30 p.m. because he called her from their home phone at that time. As evidence of these events, Dornbusch produced copies of a check made out to the restaurant where he and his mother ate lunch, cell phone records for the day in question, and invoices from an instrument repair shop he allegedly visited that afternoon. Upon deliberation, the jury found Dornbusch guilty of one count for inducing V.V. to engage in oral sex on December 8, 2000. Dornbusch was sentenced to two years’ imprisonment, suspended for a term of two years’ community supervision.

Dornbusch now raises ten issues on appeal; however, as several of the issues are either repetitive or interrelated, we restate them as follows: (1) section 43.25(b) of the Texas Penal Code, under which Dorn-busch was convicted, is void because it is unconstitutionally vague; (2) there was legally and factually insufficient evidence to support the jury’s finding of “inducement” or “knowing the character and content thereof’; (3) Dornbusch’s conviction violates the legislature’s intent that section 43.25(b) apply only in the context of commercial, pornographic sexual performances; (4) there was factually insufficient evidence to support the motel clerk’s in-court identification of Dornbusch; and (5) the trial court erred by denying Dorn-busch’s motion for a directed verdict because there was legally and factually insufficient evidence to support the conviction.

II. Constitutionality of Penal Code Section 43.25

Dornbusch contends that section 43.25(b) is unconstitutionally vague and therefore void. See id. He argues that his conviction under section 43.25(b) violates his rights to due process and due course of law under the constitutions of the United States and Texas. See id.

The language of section 43.25(b) is as follows: “A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” Id. Dornbusch argues that the terms “induce” and “knowing the character and content thereof’ are unconstitutionally vague because they fail to provide fair notice of the proscribed conduct and create the potential for arbitrary and selective law enforcement. See id. We will review the constitutionality of the statute to address these due process and due course of law concerns, and to avoid repetition, we will also decide Dornbusch’s challenges to the legal and factual sufficiency of the evidence on the elements of “inducement” and “knowing the content and character thereof.” See id.

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); see also Tex. Gov’t Code Ann. § 311.021 (Vernon 1998). The burden is on appellant to prove the statute is unconstitutional. See Rodriguez, 93 S.W.3d at 69. The statute must be upheld if it can be reasonably construed as constitutional. Brenneman v. State, 45 S.W.3d 729, 732 (Tex.App.-Corpus Christi 2001, no pet.).

Dornbusch contends that section 43.25(b) is vague on its face within the meaning of the due process clause. See § 43.25(b). To prevail, Dornbusch must first show that the statute is unconstitutional as applied to him. See Brenneman, 45 S.W.3d at 732.

A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden or if it encourages arbitrary and erratic arrests and convictions. Id. A statute is not vague or indefinite merely because some of its words or phrases are not specifically defined. Id. A statute provides fair notice to citizens and adequate guidelines for law enforcement if it “communicates its reach in words of common understanding.” State v. Markovich, 77 S.W.3d 274, 280 (Tex.Crim.App.2002) (citing Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)).

A. Inducement

1. Unconstitutional Vagueness

We begin with the word “induce.” See § 43.25(b). “Induce” is not defined by the penal code. See id. We adopt the word’s meaning in common usage, see Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998), which is “to move by persuasion or influence” or “to bring about by influence.” Webster’s Collegiate Dictionary, 10th ed.1996.

To decide Dornbusch’s constitutional challenge, we must determine whether, in common understanding, Dorn-busch’s alleged conduct brought about V.V.’s sexual conduct through persuasion or influence. See Markovich, 77 S.W.3d at 280; Brenneman, 45 S.W.3d at 732. It is uncontested that Dornbusch was substantially older than V.V. Also, as an educator at her high school, Dornbusch was in a position of authority over V.V. According to the State’s evidence, appellant requested that V.V. and J.R. accompany him on errands away from campus; provided the girls with alcohol, even though they were both minors; drove them to an out-of-town motel on his own initiative; urged them to undress and enter the hot tub with him; and made unsolicited sexual advances in the hot tub and on the motel room bed. In sum, Dornbusch constructed a situation in which V.V. was unlikely to have the ability to refuse his advances: she was miles away from school (where she was supposed to be) and her only alternative to acquiescing to Dornbusch’s advances was to call someone to pick her up from an out-of-town motel, after she had consumed alcohol in the middle of a school day. We conclude that a scenario such as this, where a person of authority creates a situation in which a teenager would find it almost impossible to deny a sexual advance, can be fairly considered to constitute inducement in the common understanding of the term. See Markovich, 77 S.W.3d at 280.

We hold that the statute was not imper-missibly vague as applied to Dornbusch’s conduct. The statute forbids inducement of sexual conduct by a child under eighteen years of age, and according to the State’s evidence, Dornbusch did exactly that: he induced (he used persuasion and influence to bring about) V.V.’s sexual conduct. See § 43.25(b).

Dornbusch maintains that no inducement occurred because he did not have sexual contact with V.V. and, in the alternative, if he did, he did not offer V.V. anything in exchange for the sexual contact; however, the statute does not require that any benefit be provided, nor is such a requirement inherent in the common understanding of the word “induce.” See id. Dornbusch also argues that no inducement occurred because he did not explicitly discuss having sex with V.V. Again, nowhere in the statute, nor in the common understanding of the word, is there any requirement that inducement be verbal and explicit. See id. We conclude that Dornbusch’s alleged actions constituted inducement in the commonly understood meaning of the word and the statute was not unconstitutionally vague with regard to his alleged conduct. See Brenneman, 45 S.W.3d at 732. We therefore overrule Dornbusch’s constitutional challenge to the word “induce.”

2. Legal and Factual Sufficiency of the Evidence to Prove Inducement

We now turn to the legal and factual sufficiency of the evidence to prove inducement. When reviewing the legal sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The fact finder is the exclusive judge of the credibility of witnesses and the weight of their testimony, and the reviewing court must therefore resolve any evidentiary conflicts in favor of its verdict. See id.; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).

The factual sufficiency of the evidence is reviewed under a different standard. In a factual sufficiency analysis, all of the evidence (both for and against the verdict) is considered in a neutral light. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). The reviewing court must determine whether the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust such that fairness demands that the verdict be overturned. Rojas v. State, 986 S.W.2d 241, 247 (Tex.Crim.App.1998); Clewis, 922 S.W.2d at 129. In conducting a factual sufficiency review, the court must be deferential to the existing verdict in order to avoid substituting its judgment for that of the fact finder, which maintains its role as the evaluator of the weight and credibility of testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

We begin with legal sufficiency. Applying the commonly understood meaning of the word induce and reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence was legally sufficient to support a finding of inducement. We base this conclusion on the same considerations that led us to conclude that section 43.25(b) was not im-permissibly vague as applied to Dorn-busch. See § 43.25(b). When viewed in the light most favorable to the verdict, the evidence previously discussed shows that Dornbusch used persuasion and influence to bring about V.V.’s sexual conduct. The evidence was therefore legally sufficient to prove inducement.

Turning to factual sufficiency, we note that Dornbusch both denies engaging in any sexual activity with V.V. and argues that V.V.’s story would not amount to inducement even if it were true. Specifically, Dornbusch argues that V.V.’s testimony proves there was no inducement because she stated that she was not offered money, grades, or favors in exchange for consenting to oral sex; she was not threatened; she knew what she was doing and gave her consent; she did not put up a fight or object to Dornbusch’s advances; and she was not intoxicated when she engaged in the sexual conduct.

We disagree. The proof of guilt is not outweighed by the exonerative evidence cited by Dornbusch. Regardless of whether V.V. consented to the sexual conduct or if Dornbusch never promised her anything in return for sex, the evidence still shows that Dornbusch induced V.V.’s sexual conduct by using his position of authority to create a situation in which V.V. was afraid or unable to refuse his sexual advances. Dornbusch seems to read the word “induce” as meaning “force,” but we do not equate the terms.

In addition, the evidence produced by Dornbusch to disprove the occurrence of the motel encounter does not outweigh the evidence favoring the verdict. Although Dornbusch provided an alibi that was corroborated by his mother’s testimony and other evidence, there is overwhelming evidence in the record to support the State’s version of events, including testimony from the motel’s employees, the two students involved in the encounter, and various administrative personnel from the school. Accordingly, we conclude that the evidence was both legally and factually sufficient to support the verdict. Dornbusch’s sufficiency challenges to the word “induce” are overruled.

B. Knowing the Character and Content Thereof

1. Unconstitutional Vagueness

Dornbusch also argues that section 43.25(b) is void because of the vagueness of the clause “knowing the content and character thereof.” See id. Dornbusch argues that under the code construction act, the entire statute is presumed to be effective. See Tex. Gov’t Code Ann. § 311.021(b). All words must be given effect and none can be treated as mere surplusage. See Williams v. State, 940 S.W.2d 802, 806 n. 4 (Tex.App.-Fort Worth 1997, pet. ref d). According to Dornbusch, there is a problem with the phrase “knowing the character and content thereof’ in section 43.25(b) because it is meaningless in non-pornographic or non-commercial settings such as his case. See § 43.25(b). As he puts it: “There is simply no situation in which a person who ... induces a person younger than eighteen to engage in sexual conduct would not know the character and content thereof. Thus, this phrase is surplusage or meaningless.”

We disagree. The phrase “knowing the character and content thereof’ establishes the necessary mens rea of the offense and distinguishes section 43.25(b) from purely statutory offenses. See id.; see also Tex. Pen.Code Ann. § 6.02(a) (Vernon 2003) (stating that a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in the proscribed conduct). The phrase precludes criminal culpability from arising unless the actor knows that the conduct induced is sexual in nature. Dornbusch has not demonstrated that this portion of the statute is unconstitutionally vague as applied to his actions. See Brenneman, 45 S.W.3d at 732. His issue is overruled.

2. Legal and Factual Sufficiency of the Evidence to Prove the Element of Knowing the Character and Content Thereof

The standards of review for legal and factual sufficiency challenges are stated above, and we proceed without reiterating them. Dornbusch argues that no one can induce sexual conduct without knowing the character and content of the conduct induced. We understand this to mean that evidence sufficient to prove inducement will also prove the element of knowing the character and content thereof. We have already concluded that the evidence was both legally and factually sufficient to prove Dornbusch induced V.V.’s sexual conduct. According to Dornbusch’s statement of the law, this evidence also proves that he knew the character and content of V.V.’s conduct.

There is no evidence that Dornbusch was incompetent or otherwise unable to understand the nature of the conduct he induced. Instead, the State’s evidence tends to establish the opposite: Dornbusch was well aware that the conduct induced was sexual in nature. He purchased alcoholic beverages for the girls; rented a motel room with a hot tub; removed his clothes and entered the tub; had the girls do the same; and then led each naked girl to the bed, where he attempted to perform oral sex on both girls. We conclude that these actions establish the knowledge required by section 43.25(b). See § 43.25(b). Accordingly, the issue is overruled.

III. Section 45.23(b) in a Non-Pornographic, Non-Commercial Context

Dornbusch argues that section 45.23(b) was intended to apply only to sexual performances and conduct by minors occurring in pornographic, commercial settings. See id. He maintains that by applying the statute to non-pornographic, non-commercial activity, the State and the trial court have violated the legislative intent of the statute.

The starting point in analyzing the meaning of a statute is the language of the statute itself. Ex Parte Evans, 964 S.W.2d 643, 646 (Tex.Crim.App.1998). When a statute is clear and unambiguous, this Court must apply the plain meaning of its words. Id.; see also Hines v. State, 75 S.W.3d 444, 447 (Tex.Crim.App.2002). When the words in a statute are ambiguous, or the application of the plain meaning of the words would lead to an absurd result which the legislature could not have intended, the court may look to extra-textual factors to ascertain the statute’s meaning. Evans, 964 S.W.2d at 646. These factors include, among other matters, the object sought to be attained, circumstances under which the statute was enacted, legislative history, common law or law on similar subjects, consequences of a particular construction, and the title or caption of the statute. See Tex. Gov’t Code Ann. § 311.023 (Vernon 1998).

Dornbusch was convicted under section 43.25(b) of the penal code for the inducement of sexual conduct by a child in a noncommercial setting. See § 43.25(b). He now claims this was an invalid application of the statute, which leads to an absurd result the legislature could not have intended. We disagree.

Section 43.25 was originally enacted in 1977 to address the absence of state law criminalizing the commercial sale, distribution, exhibition, or possession of pornography involving persons younger than seventeen years of age. See Acts 1977, 65th Leg., ch. 381, p. 1035, effective June 10, 1977. From 1977 to 1985, the statute simply stated that an offense occurred if a child was authorized, employed, or induced “to engage in a sexual performance.” In 1985, the legislature amended the statute to read “to engage in sexual conduct or a sexual performance.” See Acts 1985, 69th Leg., ch. 538, pp. 2133-34, effective Sept. 1, 1985 (emphasis added). Sexual conduct was defined in section 43.25(a) of the statute as a list of proscribed sexual activity. See § 43.25(a). The legislature again amended the statute in 1993 to change the definition of a child to persons younger than eighteen, rather than seventeen. See Acts 1993, 73rd Leg., ch. 900, pp. 3683-84, effective Sept. 1, 1994.

The post-amendment language of section 43.25(b) criminalizes the inducement of a child’s sexual conduct regardless of whether it amounts to a sexual performance. See § 43.25(b). When the legislature added “sexual conduct” as an offense under the statute and defined sexual conduct so that it included sex acts without regard for their setting or context, it no longer limited the offense to the pornographic, commercial context. See Summers v. State, 845 S.W.2d 440, 442 (Tex.App.-Eastland 1992, no pet.). Various other courts have reached this conclusion, applying section 43.25(b) to conduct that was both private and non-commercial in nature. See Chen v. State, 42 S.W.3d 926, 931 (Tex.Crim.App.2001) (upholding conviction of defendant who attempted to induce child to engage in non-commercial sexual intercourse); Ex Parte Anderson, 902 S.W.2d 695, 697-98 (Tex.App.-Austin 1995, pet. ref'd) (allowing trial to proceed against defendant charged with inducing child to engage in masturbation and sado-maso-chistic abuse not described as pornographic or commercial); Summers, 845 S.W.2d at 441-12 (upholding conviction of defendant who attempted to induce child to engage in oral sex even though conduct was not a commercial “sexual performance”).

We disagree with Dornbusch that the legislature intended for “sexual conduct” to mean only “child pornography exhibiting sexual conduct.” See § 43.25(a). We find Dornbusch’s interpretation of section 43.25(b) to be contrary to the plain language of the statute, its legislative history, and its interpretation by the courts of this state. See § 43.25(b).

Dornbusch argues that his conviction will lead to absurd results, namely, inconsistency with section 21.11 of the Texas Penal Code, which defines indecency with a child as sexual contact with a child younger than seventeen years of age. See Tex. Pen.Code Ann. § 21.11 (Vernon 2003). We disagree. Whether or not consensual sex with a seventeen-year-old is a crime under section 21.11 does not control the interpretation of an entirely different offense in a different section of the penal code. See id. Sections 21.11 and 43.25(b) are not in direct conflict and do not have to be considered together: section 21.11 does not legalize consensual sex with a seventeen-year-old; it merely does not allow such an act to be prosecuted as indecency with a child. See id.; § 43.25(b).

Furthermore, section 21.11 is in the part of the penal code that criminalizes offenses against persons, whereas section 43.25 is in the part of the code that criminalizes offenses against the public decency and order. See §§ 21.11, 43.25(b). A helpful analogy can be drawn between inducement of sexual conduct by a child and prostitution. Both are offenses against the public decency and order. Prostitution is not a crime against the prostitute; it is an offense against the “public decency and order” because it violates the moral values of society. See Tex. Pen.Code Ann. § 43.02 (Vernon 2003). Consequently, a prostitute’s consent to sex in exchange for money does not make the conduct legal. It still amounts to prostitution. Similarly, although an adult’s consensual sexual contact with a seventeen-year-old cannot be prosecuted as indecency with a child, the teenager’s consent to sex does not de-criminalize the adult’s conduct under section 43.25(b) because the adult’s conduct is a crime against the public, not against the teenager. See §§ 21.11, 43.25(b).

Dornbusch argues that when considered together, sections 21.11 and 43.25(b) would allow an adult to have legal sex with a seventeen-year-old if the minor initiates the sexual conduct, while an adult who asks a seventeen-year-old for sex could be prosecuted for inducement. See §§ 21.11, 43.25(b). Dornbusch asserts that it is absurd for him to be convicted based on which party initially requested the sexual contact as long as both parties consented.

As a preliminary matter, the evidence does not indicate that Dornbusch was propositioned for sex. To the contrary, the evidence strongly indicates that Dorn-busch initiated and induced the sexual conduct. Thus, the instant case does not require this Court to determine whether a criminal offense occurs if a minor initiates sexual contact with an adult. See Tex. RApp. P. 47.1. Any such statement in this opinion would be dictum.

It appears that Dornbusch has misread section 43.25(b), which criminalizes employing, inducing, or authorizing sexual conduct by a minor. See § 43.25(b). Whether an offense has occurred under section 43.25(b) does not turn on who initially requests sex; it depends on whether an adult knowingly employed, induced, or authorized sexual conduct by a minor. See id.

Dornbusch further argues that a new law enacted after his conviction prohibiting educators from engaging in sexual activity with students serves as evidence that, at the time of his arrest, no existing law prohibited an adult educator from engaging in consensual sex with a seventeen-year-old student. See Tex. Pen.Code Ann. § 21.12 (Vernon Supp.2004-05). On close inspection, the new statute actually undermines Dornbusch’s argument because it explicitly states that if “conduct constituting an offense under this section also constitutes an offense under another section of this code, an actor may be prosecuted under either or both sections.” Id. The new statute thus allows for the possibility that other statutes may also create criminal liability for sexual activity between educators and consenting students, and it specifically authorizes simultaneous prosecution of offenses under the different statutes. See id. Even if this were not so, the enactment of subsequent statutes and the analysis of subsequent legislative histories regarding the subsequent statutes are not considered to be particularly relevant factors in a court’s interpretation of an older statute. See Tex. Gov’t Code Ann. § 311.023.

For the foregoing reasons, we conclude that section 43.25(b) applies to non-pornographic, non-commercial sexual conduct by children. See § 43.25(b). Dornbusch’s issue is overruled.

IV. Factual Sufficiency of In-Court Identification

Dornbusch claims that his in-court identification by a motel employee was based on factually insufficient evidence to support the verdict. We have already stated the standard of review for factual sufficiency challenges. A proper factual sufficiency review should include a discussion of the most important and relevant evidence that supports an appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App.2003).

Dornbusch complains about the testimony of the motel desk clerk, who testified at trial that she was “100 percent sure” that Dornbusch was the man who rented the motel room on December 8. Dornbusch complains that the clerk had previously testified at an earlier proceeding that she was only “pretty sure” and “80 percent sure” that Dornbusch was the man who rented the room. Although there is some inconsistency between the clerk’s in-court testimony and her prior testimony, the inconsistency does not render the evidence factually insufficient. The jury is the ultimate arbiter of the weight and credibility of the evidence, and it has the right to resolve conflicts in the testimony as it sees fit. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Clewis, 922 S.W.2d at 133. The jury was entitled to believe the clerk’s in-court testimony instead of her prior testimony. Given the absence of any evidence seriously undermining the clerk’s in-court identification of Dornbusch, we have no basis to disturb the jury’s finding. The issue is overruled.

V. Legal and Factual Sufficiency of the Evidence

In his final issue before the Court, Dornbusch argues that the trial court erred by denying his motion for a directed verdict because the evidence was legally and factually insufficient to support a conviction. Other than the elements of the offense separately briefed and previously discussed (i.e., inducement and knowing the character and content thereof), Dornbusch has failed to include any discussion, argument, or citations to authority regarding the legal and factual sufficiency of the evidence as to the other elements of the offense. Therefore, we need not address the legal and factual sufficiency of the evidence in any greater detail. See Tex. R.App. P. 47.1. The issue is overruled.

VI. Conclusion

The judgment of the trial court is affirmed.

      . See Tex.R.App. P. 47.1.

      . "Sexual conduct" is separately defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, anus, or any portion of the female breast below the top of the areola." See Tex. Pen. Code Ann. § 43.25(a)(2) (Vernon Supp.2004-05).

      . Dornbusch also argues that section 43.25(b) is unconstitutionally vague because it encourages arbitrary and erratic arrests and convictions; however, his argument is made without any citations to legal authority or to the record. See Tex.R.App. P. 38.1(h). It therefore presents nothing for this Court to review.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    CHI ENERGY, INC. and Chi Operating, Inc., Appellants, v. Gabriela Reyes URIAS, Individually and as Next Friend of Natalie Ann Urias, a Minor, Gilbert U. Urias, Sr., Maria Urias, Lucy Pallanes, and Isabel Pallanes, Jesusita Martinez Pallanes, Individually and as a Representative of the Estate of Norman Pallanes, Deceased, also as Next Friend of Zacariah Adam Pallanes, Jeremiah Matthew Pallanes, Jonathan Elijah Pallanes, John Michael Pallanes, Hanna Angelita Pallanes, Minor Children of Decedent, Appellees.
    No. 08-02-00475-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 27, 2005.
    Rehearing Overruled March 9, 2005.

      Gary M. Bellair, Craig, Terrill & Hale, L.L.P., Lubbock, Scott M. Tidwell, Tidwell & Tidwell LLP, Odessa, for Appellants.
    Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Ap-pellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in a premises liability case that resulted in the deaths of Norman Pallanes and Gilbert Urias during the construction of improvements to an oil well site. Appellant Chi Energy, Inc. was the owner of the leasehold interest in the oil well involved in this incident. Chi Energy, Inc, operating through its subsidiary, Chi Operating, Inc., undertook the drilling of an oil well that became known as the UL 18-19 No. 1. Chi Operating, Inc. served as the operating company responsible for the handling of the day-to-day operations at this and other well sites. Other defendants that were included in the original lawsuit either settled or were nonsuited prior to trial. The case went before a jury against Appellants and one other defendant, Garland Pumping & Roustabout Services, Inc., who ultimately settled after trial. The jury awarded $7,880,272.97, in actual damages against all the defendants. The judge entered a judgment in that amount, apportioning the claim in conformance with the jury’s findings of proportionate recovery on the part of each plaintiff with the addition of pre- and post-judgment interest.

The Chi defendants appealed in separate briefs raising different points of error. Chi Operating asserted five points of error and Chi Energy asserted seven points of error. Chi Energy’s Issue Nos. One through Four challenge the legal and factual sufficiency of the evidence of the jury’s findings that Chi Operating and Pe-troplex, retained or exercised some control over the manner of the performance of the work at the site to result in liability of Chi Energy for the incident in question. We read these issues together as a challenge to the legal and factual sufficiency of the evidence to support the jury’s findings that Chi Energy is liable for the acts of the independent contractors West Texas Roustabout (WTR) or West Texas Tank (WTT) under Chapter 95 of the Texas Civil Practice and Remedies Code.

Similarly, Chi Operating has appealed asserting five issues. We read Chi Operating’s Issue Nos. One through Three as a challenge to the legal and factual sufficiency of the evidence to support the jury’s findings of liability of Chi Operating for the actions of the independent contractors, West Texas Roustabout or West Texas Tank under Chapter 95 of the Texas Civil Practice and Remedies Code. Because these issues are dispositive of this appeal, we do not reach the Appellants’ remaining issues and, for the reasons stated herein, we reverse the judgment of the trial court and render judgment in favor of Appellants.

I. ISSUES SUBMITTED ON APPEAL

Appellants collectively have submitted twelve issues on appeal. A review of the briefs establishes that the substantive complaint on appeal is that the trial court erred in rendering judgment against Appellants based upon the lack of legally and factually sufficient evidence to support a finding of liability under Chapter 95 of the Texas Civil Practice and Remedies Code. Because the statement of an issue or point will be treated as covering every subsidiary question that is fairly included, we consider the dispositive issues together. Tex.R.Apf. P. 38.1(e).

II. SUMMARY OF THE EVIDENCE

On April 6, 2001, an explosion occurred at an oil well site located in Ward County, Texas just northwest of Pyote, Texas resulting in the deaths of Norman Pallanes and Gilbert Urias. Appellant Chi Energy, Inc. is a company in the business of speculation and development of oil and gas properties throughout Texas and New Mexico. Appellant Chi Operating, Inc. is a corporation in the business of operation and production of oil wells. Chi Operating was responsible for the day-to-day operations which included beginning production on a well, maintaining production, and oversight of the daily management functions to keep a well operating. Chi Operating also was responsible for retaining various independent contractors to perform the necessary tasks related to the routine operation of an oil well. The well where the accident occurred was a new well in the process of being put into production. The explosion that resulted in the deaths of the decedents occurred during the construction of the infrastructure and improvements to the well site that was necessary for the production of petroleum products from this well.

Chi Operating contracted with several entities to bring the well to operation, including Petroplex Equipment, Inc., a closely held corporation owned by Oren Albright. Petroplex was retained by Chi Operating to function as the well site consultant responsible for completing and putting the UL 18-19 No. 1 well into production. Chi Operating also entered into an oral agreement with WTT or WTR for the purchase of used equipment. The agreement contemplated a “turnkey” purchase which required WTT to deliver and install reconditioned tank-battery vessels to the well site.

Norman Pallanes was the owner of West Texas Roustabout and Gilbert Urias was an employee of WTR. WTR was a roustabout company that provided roustabout services for oilfield clients. WTR had agreed to provide refurbished tank-battery vessels in ready condition to the site of the oil well involved in the incident in question.

The record contains a detailed account of the activities related to the work performed by various independent contractors on the job during the course of several days in early April of 2001. Once the well was completed, several other improvements had to be constructed or installed to allow the well to produce. Critical to the production oil from this well was the installation of the tank system purchased from WTR. WTR delivered the used tanks to the site before removing all the extraneous fittings that remained from a previous installation; the tanks were not ready for use in production. The deliveries took place ov%r a three-day period. WTR finally completed delivery of the partially reconditioned tanks on Wednesday April 4, 2001. Employees of WTR began working on the completion of the installation of the tanks on Thursday and Friday, April 5, and 6, 2001. WTR employees installed stairs and catwalks on the tanks. The other independent contractors continued to complete their tasks which ultimately required the necessity of connecting to the WTR tanks. Garland Pumping and Roustabout Services, Inc. continued to plumb various items of equipment on the location. At one point, an employee of Garland, Randy Hernandez arid Albright discussed that the tanks were not ready to be connected to the other equipment already in place and needed additional work. Specifically several extraneous fittings needed to be removed from the tanks. Norman Pallanes was informed of the problems with the tanks and was aware that the fittings needed to be removed.

The record is replete with details about the steps followed by Albright and other contractors during the construction and testing activities that took place over the time period of April 5-6, 2001. The weather conditions on April 6 were particularly bad and ultimately resulted in Albright’s closing of the site. Albright informed Pal-lanes that he was shutting down the site. Nevertheless, Pallanes contacted his brother, Roman Pallanes, and requested that a welder be sent to the site. Roman Pallanes dispatched a welder, employed by the companies to work on the fittings.

When the welder arrived at the site, he found only Garland’s crew still working. After talking with Randy Hernandez, he telephoned Norman Pallanes for assistance because the job was bigger than he could handle by himself. Pallanes and Urias were working at a different well site but came over to the UL 18-19 No. 1 within a short period of time. Hernandez told Pal-lanes that Albright had shut down the site due to the inclement weather but Pallanes was determined to work on removing the extraneous fittings.

Employees of Garland were the last employees at the site on Friday afternoon April 6, 2001. Oren Albright had left earlier to return to his Midland office. Al-bright testified that at the time he left, there was no equipment at the site capable of placing heat on the tank that eventually exploded.

Pallanes and his crew remained at the site alone and began work on removal of the extraneous fittings from the tanks. Initially, Pallanes, Gilbert Urias, and his welder used wrenches and cheaters in their attempts to remove the fittings. When that was unsuccessful, he instructed his welder to begin placing heat on the fitting by using a cutting torch owned by West Texas Roustabout. The welder applied heat for approximately 8 to 10 minutes but when the operation was not successful, Norman Pallanes sent the welder back to the truck to retrieve some additional tools. While the welder was at the truck, the water tank exploded killing Norman Pallanes and Gilbert Urias.

One group of survivors sued for damages on April 18, 2001 and the remaining survivors filed a Plea in Intervention joining the suit on May 29, 2001. After a trial to a jury, the trial court entered judgment on the findings in the amount of $7,880,272.97 plus pre- and post-judgment interest. Chi Energy, Chi Operating, and Garland Pumping appealed. After Garland reached a settlement with the plaintiffs below, Chi Energy and Chi Operating remain as the only appellants and they appeal from the trial court’s judgment below.

III. DISCUSSION

As stated previously, while reviewing Appellants’ issues, we read Chi Energy’s Issue Nos. One through Four and Chi Operating’s Issue Nos. One through Three, as an attack on the legal and factual sufficiency of the evidence supporting the jury’s finding of liability under Chapter 95 of the Texas Civil Practice and Remedies Code.

A. Legal and Factual Sufficiency Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established “as a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ refd n.r.e.). The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof, in a light most favorable to such findings, and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); see Terminix Intern., Inc. v. Lucci, 670 S.W.2d 657, 662 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.); see also Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 672 (Tex.App.-Houston [1st Dist.] 1986, writ refd n.r.e.). If more than a scintilla of evidence supports the finding, the “no evidence” point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

“Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings “are against the great weight and preponderance of the evidence.” The “insufficient evidence” point of error is appropriate only when the party without the burden of proof on an issue complains of the court’s findings. See Neily v. Arron, 724 S.W.2d 908, 912 (Tex.App.-Fort Worth 1987, no writ).

The test for factual insufficiency points is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). The jury’s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. The parlance used by the courts of appeals is that such a finding “shocks the conscience” or that it is “manifestly unjust,” limited by such phrases as “the jury’s determination is usually regarded as conclusive when the evidence is conflicting,” “we cannot substitute our conclusions for those of the jury,” and “it is the province of the jury to pass on the weight or credibility of a witness’s testimony.” Kimsey v. Kimsey, 965 S.W.2d 690, 700 (Tex.App.-El Paso 1998, pet. denied); Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied). Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury, provided the jury finding is supported by probative evidence and is not against the great weight and preponderance of the evidence. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained.

B. Civil Practice and Remedies Code Chapter 95

Chapter 95 of the Civil Practices and Remedies Code was enacted in 1996 as part of a sweeping tort-reform package. Tex. Civ. Prac. & Rem.Code Ann. §§ 95.001-.004 (Vernon 1997); see Fisher v. Lee & Chang P’ship, 16 S.W.3d 198, 201 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). Chapter 95 governs “Property Owner’s Liability for Acts of Independent Contractors and Amount of Recovery” and pertains to claims “for damages caused by negligence” against a “property owner.” Tex. Civ. Prac. & Rem.Code Ann. § 95.001(1)-(3) (Vernon 1997). Section 95.001(3) defines “property owner” as “a person or entity that owns real property primarily used for commercial or business purposes.” Tex. Civ. Prac. & Rem.Code Ann. § 95.001(3). Chapter 95 specifies that it “applies only to a claim” described as follows: (1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and (2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement. Tex. Civ. Prac. & Rem.Code Ann. § 95.002(1)-(2) (Vernon 1997).

When Chapter 95 applies, a property owner will not be hable for negligence claims arising from the failure to provide a safe workplace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress and receive reports; and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death or property damage and failed to adequately warn. Tex Civ. Prac. & Rem.Code Ann. § 95.003(1)-(2) (Vernon 1997). Both conditions of section 95.003 must be met before liability will be imposed upon the property owner. Id.; see Kelly v. LIN Television, 27 S.W.3d 564, 567 (Tex.App.-Eastland 2000, pet. denied). The “failure to provide a safe workplace” means that the injuries must relate to work being done by the injured party, but the injury-producing defect need not be the object of the injured party’s work. See Fisher, 16 S.W.3d at 202 (construing legislative history and holding that injury resulting from defective ladder contractor used to access air-conditioning unit contractor was hired to repair was injury within scope of section 95.002(2)).

C. Applicability of Chapter 95

We conclude that Chapter 95 governs all of Appellees’ negligence claims against Appellants. It is clear that the legislature, following years of Texas jurisprudence, intended to limit the liability of an owner and operator for injuries arising out of an independent contractor’s actions through the enactment of Chapter 95 of the Texas Civil Practice and Remedies Code. Ashabranner v. Hydrochem Industrial Services, Inc., No. 14-03-00762-CV, 2004 WL 613026, at *2 (Tex.App.-Houston [14th Dist.] March 30, 2004, no pet.); see also Redinger v. Living, 689 S.W.2d 415, 418 (Tex.1985). Both requirements under section 95.003 of the Civil Practice and Remedies Code must be met before a landowner can be held liable for injuries sustained by an independent contractor’s employee. First, the landowner must have more than a general right to order workers to stop or start, a right to inspect, or right to receive reports. Tex. Civ. Prac. & Rem.Code Ann. § 95.003(1) (Vernon 1997); Ashabranner, 2004 WL 613026, at *2; see also Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999) (per curiam) (citing Restatement (Second) of Torts § 414 (1965)). Second, the land owner must have “ ‘actual knowledge of the danger or condition resulting in the personal injury ... and failed to adequately warn.’ ” Tex. Civ. Prac. & Rem.Code Ann. § 95.003 (Vernon 1997); Ashabranner, 2004 WL 613026, at *2; see also Fisher, 16 S.W.3d at 202. After reviewing the entire appellant record, we agree there is no evidence to show control or actual knowledge as required by section 95.003.

We address the issue of control first. Control may be proven in two ways: (1) a contractual right of control or (2) an exercise of actual control. Ashabranner, 2004 WL 613026, at *2; Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002). A right of control is contingent upon the ability to control the means, methods, or details of WTT’s and WTR’s work. Ashabranner, 2004 WL 613026, at *2. The question as to whether or not there is a contractual right of control is generally a question of law for the court. Id.

We agree with Appellants that the question of the right to control the work of WTR and WTT is dispositive of the case before us. To impose liability on the Chi defendants, Appellees must prove that the degree of control must be more than “the right to order the work to start or stop or to inspect progress or receive reports.... ” Tex. Civ. Prac. & Rem.Code Ann. § 95.003(1). The record is completely devoid of any evidence to suggest that either of the Appellants imposed any right to control the work at the site in question and certainly none over the specifics of the work performed by the employees of WTR or WTT. The detailed testimony of the various subcontractors that performed a variety of tasks at the scene support the Appellants’ position that they had no right to control the daily tasks of any of the independent contractors and particularly the work of WTT or WTR.

The undisputed evidence establishes the contrary fact as a matter of law. Norman Pallanes directed that his employee Gilbert Urias and his welder return to the site after everyone else had left and perform specific tasks solely under his direction and control, using his equipment to perform tasks that he was obligated to perform under his agreement as an independent contractor responsible for providing turnkey ready tanks. No one, not even Petroplex’s Oren Albright, retained any control over Norman Pallanes’s decision to apply heat to the tank that eventually exploded. We recognize that the tank itself was not an inherently dangerous item. See, e.g., Delgado v. Houghston, No. 08-99-00044-CV, 2000 WL 678774, at *4 (Tex.App.-El Paso May 25, 2000, no pet.) (not designated for publication). The circumstances that resulted in the explosion was the application of heat to the tank by Norman Pallanes. Though tragic, the decision regarding how to handle the extraneous fitting problem was solely the decision of Norman Pallanes.

We agree with Appellants that the right to control the work must extend to the “operative detail” of the contractor’s work. The right to control may be proved “ ‘by evidence that the premises owner actually exercised control over the manner in which the independent contractor’s work was performed.’” Conoco, Inc. v. Brown, No. 04-02-00336-CV, 2003 WL 22295302, at *1 (Tex.App.-San Antonio October 8, 2003, pet. denied); Dow Chem. Co., 89 S.W.3d at 606. The degree of control retained must be more than a mere “ ‘general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.’ ” Conoco, Inc., 2003 WL 22295302, at *1; Koch Ref. Co., 11 S.W.3d at 155 (quoting Restatement (Second) of Torts § 414 cmt. c (1965)). In other words, the right to control must extend to the “operative detail” of the contractor’s work. Conoco, Inc., 2003 WL 22295302, at *1; Koch Ref. Co., 11 S.W.3d at 155-56; Victoria Elec. Co-op., Inc. v. Williams, 100 S.W.3d 323, 326 (Tex.App.-San Antonio 2002, pet. denied). Moreover, there must be a nexus between the control actually exercised and the resulting injury. Conoco, Inc., 2003 WL 22295302, at *1; Dow Chem., 89 S.W.3d at 606.

Here, we see no evidence to support a finding that the Appellants retained any control over the “operative details” of the work. Similarly, we find no evidence to support the finding that Appellants had actual knowledge of a danger or condition such that they incurred a duty to warn Pallanes of the existence of a hazard at the site. Recognizing that they had no control over the site and virtually no contact with the independent contractors directly, we hold Appellants had no actual knowledge of any allegedly dangerous condition at that site. Chapter 95 of the Texas Civil Practice and Remedies Code only imposes a duty to warn of a known danger or condition. Tex. Civ. Prac. & Rem.Code Ann. § 95.003(2); see also Ashabranner, 2004 WL 613026, at *2. The record does not contain even a scintilla of evidence to support such a finding.

Because there is no evidence that Appellants exercised any control over WTR or WTT employees or that Appellants had actual knowledge of any dangerous condition at the site, we sustain, Appellants’ Issue Nos. One through Three and Issue Nos. One through Four, as described above, and reverse the judgment of the trial court. Because these issues are dis-positive of this appeal, we need not reach the remaining issues.

We, therefore, having sustained Appellants’ Issue Nos. One through Three and Issue Nos. One through Four on the basis of legal insufficiency of the evidence, we reverse the judgment of the trial court and render judgment in favor of Appellants.

LARSEN, J., not participating.

      . Petroplex was a settling defendant who was retained as an independent consultant to coordinate and monitor the work of various independent contractors retained to facilitate the completion of the well.

      . Tank-battery vessels, include a separator, a heater/treater, a water tank and two stock tanks, all for use in producing oil, gas and water from an oil well. WIT was in the business of procuring used tanks and equipment for the purpose of resale to subsequent users. In this case, they had agreed to provide the tanks for the oil well owned and operated by the Chi defendants.

      . Roman Pallanes is an owner of West Texas Tank and the brother of the' decedent Norman Pallanes.


text:
    Jose Raul SOTO, Appellant, v. THE CATHOLIC DIOCESE OF EL PASO and Bishop Armando Ochoa, Appellees.
    No. 08-03-00041-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 27, 2005.

      Jose Raul Soto, El Paso, pro se.
    David M. Driscoll, Ainsa Partners L.L.P., El Paso, for Appellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a no-evidence motion for summary judgment against Appellant. For the reasons stated herein, we affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

The substantive facts in this case are not disputed. The Appellant, Jose Raul Soto, pro se, filed a lawsuit against the Catholic Diocese of El Paso and Bishop Armando Ochoa complaining that Appellant was the victim of sexual abuse perpetrated by a catholic priest, Irving Klister, now deceased. Irving Klister was a parish priest assigned to Saint Pius X Catholic Church in El Paso, Texas. Appellant contends that the abuse occurred in 1958 when Appellant was thirteen years of age and enrolled as a student at Saint Pius X Catholic Parochial School.

Appellant pleads that Father Klister called him into the sacristy of the church sometime during 1958 where he sexually assaulted the Appellant. The incident was repeated approximately one week after the initial event. The Appellant contends that after the second contact with Father Klis-ter, he reported the incident to his mother who did not believe him, nor did she take any action in response. Appellant contends that Father Klister attempted to initiate a third incident of sexual abuse but that Appellant confronted Father Klister and threatened to report the conduct. Apparently no further abuse of Appellant occurred nor was any action taken in response to these incidents. Appellant admits that at the time of the alleged abuse, he was aware that such conduct was wrong and, he, in fact, was able to stop the abuse by confronting Father Klister. He also admits that he told his mother about the alleged abuse though she took no action. He also states that he intended to inform his uncle if the abuse continued. There are no allegations that the abuse continued or that he informed any other adult.

Appellant’s Original Petition contains no allegations or complaints about any conduct of the Diocese of El Paso or Bishop Ochoa. Appellant does not contend that he notified anyone at the Diocese nor that he had any contact with Bishop Ochoa.

Appellees filed a no-evidence summary judgment alleging that Bishop Ochoa was appointed as the Bishop of the Diocese of El Paso on April 1, 1996 and installed as Bishop in June of 1996. Bishop Ochoa did not know Father Klister nor did he have any knowledge of any alleged actions taken by Father Klister.

Appellees also contend that the Diocese has no record of any allegations of abuse to Mr. Soto nor any claim about the incident until Mr. Soto’s first notice to the Diocese on July 2, 2002. The Diocese also contends that all the individuals who were in positions of authority over Father Klis-ter are now deceased.

Appellees attached an affidavit from Bishop Armando Ochoa confirming that Bishop Ochoa had no personal knowledge about the incidents of alleged abuse and that the Diocese had no records of a complaint from the time period in question.

The record does not contain a copy of Appellant’s response to the motion for summary judgment, if any was filed. The trial court entered an Order granting Ap-pellees’ motion for summary judgment noting that Appellant did not file any controverting affidavits or summary judgment evidence.

Appellant appeals asserting three issues on review.

II. DISCUSSION

A. Standard of Review

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

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3-4 (Tex.App.-El Paso 1999, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998). A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmov-ant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Harner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than' create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

B. Issues on Review

In three issues on review, Appellant challenges the court’s granting of the Appellees’ motion for summary judgment. In a compound argument, Issue No. One attempts to complain of the granting of summary judgment based upon the pleadings filed by Appellant and asks this Court to find that Appellant is not barred from pursuing a claim under the doctrine of respondeat superior. The issue does not articulate a complaint about the trial court’s ruling other than asking the question of whether Appellant’s claim is barred despite the doctrine of respondeat superi- or. Issue No. Two contends that the statute of limitations should not bar Appellant’s claims under the discovery doctrine or the doctrine of equitable estoppel. Issue No. Three suggests that the issues raised in Issue Nos. One and Two create a question of a material fact which should be decided by a jury.

In sum, the three issues appear to complain of the trial court’s granting of Appel-lees’ summary judgment for the reason that Appellant believes that he should be able to pursue a claim against the Appel-lees under the doctrine of respondeat superior, that the statute of limitation should not act as a bar, and that a fact issue exists as to the substance of his cause of action. Appellant does not address the procedural hurdles created by his minimal pleadings and non-response to the motion for summary judgment. In the interest of attempting to address Appellant’s challenge on' appeal, we read his issues as a complaint that there is more than a scintilla of evidence to support a cause of action against the Appellees for the alleged injuries suffered by Appellant and caused by Father Klister and that the trial court erred in granting the Appellees’ no-evidence motion for summary judgment as a matter of law.

In the case before us, Appellant filed a petition complaining of the conduct of Father Irving Klister only. There is no pleading to support any cause of action against either Appellee nor was there any summary judgment evidence filed to controvert the “no-evidence” motion for summary judgment filed by Appellees. In light of the pleadings on file and the record before us, we do not reach the question of whether the doctrine of respondeat superior is applicable in this case nor do we reach the issue of whether the statute of limitations is a bar to Appellant’s claim. Under Texas Rule of Civil Procedure 166a(i), Appellant has failed to meet his burden to defeat Appellees’ “no-evidence” motion for summary judgment. In this case, Appellant, the non-movant below, did not plead a cause of action against either Appellee, stated no facts to support a claim against either Appellee, and presented no evidence of the liability of either Appellee in response to the motion filed. For the reasons stated, we affirm the judgment of the trial court and overrule all Appellant’s issues.

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

LARSEN, J., not participating.


author: DIXON W. HOLMAN, Justice.

text:
    TARRANT COUNTY HOSPITAL DISTRICT d/b/a John Peter Smith Hospital, Appellant, v. GE AUTOMATION SERVICES, INC., f/k/a GE Industrial Systems Solutions, Inc., Supply Operations, Inc., f/k/a GE Supply Operations, Inc., and General Electric Company, Appellees.
    No. 2-04-065-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 27, 2005.

      Butrus Khoshbin Wilson Vogt, LLP, John J. Butrus Jr., and Jennifer D. Jasper, Dallas, for Appellant.
    Cotten Schmidt, L.L.P., Larry E. Cot-ten, Paul E. Hanson and Steven K Hayes, Fort Worth, for Appellee.
    Panel B: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Tarrant County Hospital District d/b/a John Peter Smith Hospital appeals from a summary judgment granted to Appellees in a suit brought by Appellant against Appellees alleging various causes of action arising out of a transaction between the parties in 1996. We affirm.

BACKGROUND

Appellant is a unit of local government that provides health care services to individuals and families in Fort Worth, Tar-rant County, Texas. See Tex. Health & Safety Code Ann. §§ 281.001-.002 (Vernon 2001 & Supp.2004-05). In 1995-96, Appellant contracted with Appellees to design, supply, and install a power supply system for John Peter Smith Hospital (“the Hospital”). This work was completed by December 31,1996.

On April 1, 2002, Appellant filed the underlying lawsuit against Appellees, alleging various causes of action as a result of the alleged failure of Appellees’ materials, which were used to construct in the Hospital an electrical system called a bus duct system. Appellant contended that Appellees designed defective joint covers for the bus duct system; bus duct joints connect bus duct segments, and the joint covers protect the bus duct joints from the elements, including moisture infiltration. Appellant alleged that the defective joint covers were not weatherproof and allowed water to infiltrate the bus duct system, causing electrical shorts and damage to the bus duct system. Appellant sought damages for breach of contract, breach of express and implied warranties, products liability, negligence, and gross negligence.

Appellees answered asserting, among other things, that Appellant’s contract and warranty causes of action are barred by the affirmative defense of limitations (without citing a specific limitations provision) and that Appellant’s tort causes of action are barred under the “economic loss rule” because Appellant is seeking to recover losses resulting from an alleged breach of the parties’ contract.

Appellant filed a motion for partial summary judgment claiming Appellees’ statute of limitations affirmative defense is not applicable to Appellant, a governmental entity. Appellant’s motion specifically discussed the limitations provision of section 16.061 of the Texas Civil Practice and Remedies Code.

Appellees then filed a traditional motion for summary judgment claiming Appellant’s non-tort claims are barred by the four-year limitations provision of section 2.725 of the Texas Business and Commerce Code. See Tex. Bus. & Com.Code Ann. § 2.725 (Vernon 1994). Appellees’ motion also contended that Appellant’s tort causes of action are barred by the economic loss rule. Appellees’ motion further alleged as a ground for summary judgment that even if some sort of immunity from limitations applied to Appellant, Zurich is not immune to the statute of limitations. Appellees Automation and Supply additionally filed a no-evidence motion for summary judgment asserting that Appellant had no evidence to support any element of any of its causes of action.

Appellant responded to Appellees’ traditional motion for summary judgment by stating that the governing statute of limitations is section 16.061 of the Texas Civil Practice and Remedies Code, rather than section 2.725 of the Texas Business and Commerce Code; therefore, Appellant contended that it, and Zurich, were immune from any statute of limitations defense. Appellant further claimed that Ap-pellees had failed to meet their burden of proof regarding the economic loss rule, which Appellant labeled an affirmative defense. Lastly, Appellant filed objections to the no-evidence motion for summary judgment filed by Appellees Automation and Supply, contending the use of such a motion to challenge each element of each cause of action asserted by Appellant was prohibited and the no-evidence motion was untimely.

On February 6, 2004, the trial court signed a judgment granting Appellees’ motion for summary judgment, ordering that Appellant take nothing by its action against Appellees, and denying Appellant’s motion for partial summary judgment and Appellant’s objections.

APPELLANT’S ISSUES ON APPEAL

Appellant brings four issues on appeal. In its first issue, Appellant contends the trial court erred in ruling that Appellant, a Texas governmental entity, is not immune from the applicable contract and warranty statutes of limitations. Appellant’s second issue asserts the trial court erred in holding that Zurich does not have the same rights as the Tarrant County Hospital District with respect to governmental immunity from the statute of limitations. Appellant’s third issue alleges the trial court erred in ruling that the economic loss rule bars Appellant’s tort claims. In its fourth issue, Appellant claims the trial court erred in ruling there is not more than a scintilla of evidence to support each element of Appellant’s causes of action against Automation and Supply and by ruling that their no-evidence motion did not violate the procedure set forth in civil procedure rule 166a(i).

THE PARTIES’ STIPULATIONS

Appellant filed the current suit on April 1, 2002. The parties subsequently agreed upon four written stipulations of fact:

1. All products or goods complained of by Plaintiff in the above-styled lawsuit were sold to the Hospital no later than December 31,1996.
2. Tender of delivery to the Hospital of the products or goods complained of by Plaintiff in the above-styled lawsuit occurred no later than December 31, 1996.
3. Installation of the “products, which comprise the Spectra Series TM Busway (‘Busway System’)” complained of by Plaintiff in the above-styled lawsuit was completed by December 31, 1996.
4.All breaches of contract alleged by Plaintiff in the above-styled lawsuit occurred no later than December 31, 1996.

STANDARD OF REVIEW

A. Traditional Motion

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

In reviewing a traditional summary judgment, we determine whether the mov-ant 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); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Southwestern Elec. Power Co., 73 S.W.3d at 215; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

A defendant is entitled to 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.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d at 678.

B. No-Evidence Motion

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

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).

TRADITIONAL MOTION FOR SUMMARY JUDGMENT

Immunity From Statute of Limitations

Appellant argued in its motion for partial summary judgment and in its opening brief on appeal that it is immune from a statute of limitations defense under Texas common law and section 16.061 of the Texas Civil Practice and Remedies Code. Appellees, on the other hand, asserted in their motion for summary judgment and in their brief on appeal that section 16.061 is not applicable and that limitations is a viable defense pursuant to section 2.725 of the Texas Business and Commerce Code (Texas’s version of the Uniform Commercial Code).

In its first issue on appeal, Appellant contends the trial court erred in holding that Appellant “is not immune from the applicable contract and warranty statutes of limitations.” Inexplicably, Appellant’s brief does not mention or challenge the granting of summary judgment on the basis of section 2.725. When the trial court’s judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made. Davis v. Conveyor-Matic, Inc., 139 S.W.3d 423, 428 (Tex.App.-Fort Worth 2004, no pet.). Because the phrasing of Appellant’s first issue is broad enough to encompass a challenge to the application of section 2.725 to the facts of the case, and because Appellant’s reply brief does specifically address this issue, we conclude Appellant has properly challenged this ground upon which the trial court could have granted summary judgment.

Section 16.061 of the Texas Civil Practice and Remedies Code

Appellant relies upon the current version of article 16.061. See Tex. Civ. Prac. & Rem.Code Ann. § 16.061 (Vernon Supp. 2004-05). However, because the parties stipulated that any breach occurred by December 31,1996, the version of the statute that applies to the instant case is the version in effect at that time, which provided as follows:

§ 16.061. Rights Not Barred
(a) A right of action of this state, a county, an incorporated city or town, a navigation district, a port authority, an entity acting under Chapter 341, Acts of the 57th Legislature, Regular Session, 1961 (Article 1187f, Vernon’s Texas Civil Statutes), or a school district is not barred by any of the following sections: 16.001-16.004, 16.006, 16.007, 16.021-.028, 16.0300-.032, 16.035-16.037, 16.051, 16.062, 16.063, 16.065-16.067, 16.070, 16.071, 31.006, or 71.021.[]

The Tarrant County Hospital District was created under the authority of the Texas Constitution and chapter 281 of the Texas Health and Safety Code. See Tex. Const, art. IX, § 4; Tex. Health & Safety Code Ann. ch. 281 (Vernon 2001 & Supp. 2004-05). As such, it is a branch of the State. See Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 445-46 (Tex.App.Fort Worth 2001, no pet.) (op. on reh’g) (holding Tarrant County Hospital District is a branch of the State, having been created by authority of the Texas Legislature and the Texas Constitution); Armendarez v. Tarrant County Hosp. Dist., 781 S.W.2d 301, 307 (Tex.App.-Fort Worth 1989, writ denied) (holding Tarrant County Hospital District is a political subdivision of the State of Texas).

Therefore, if section 16.061 applies to Appellant’s causes of action for breach of contract and warranty, then these causes of action are not barred by limitations.

Section 2.725 of the Uniform Commercial Code

Appellees contend that the contract between the parties involves a transaction in goods, and as such section 2.725 governs Appellant’s causes of action for breach of contract and warranty. This section of the U.C.C. provides as follows:

§ 2.725. Statute of Limitation in Contracts for Sale
(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

Tex. Bus. & Com.Code Ann. § 2.725 (emphasis added).

Appellees claim this statute applies to Appellant because an “aggrieved party” means “a party entitled to pursue a remedy,” a “party” means “a person that has engaged in -a transaction or made an agreement subject to this title,” and a “person” includes “government, governmental subdivision, agency or instrumentality.” Id. § 1.201(b)(2), (26), (27) (Vernon Supp.2004-05).

It is undisputed that Appellant filed this lawsuit more than five years after Appel-lees’ alleged breach of contract and warranty. If section 2.725, rather than section 16.061, applies to the transaction between the parties, Appellant’s contract and warranty claims are barred by limitations.

Rules of Statutory Construction

In our construction of the interaction of these two code sections, we are “not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature’s intent.” McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.2003); see Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). In determining the Legislature’s intent, we first look to the statutes’ plain and common meanings. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”). We presume the Legislature intended the entire statute to be effective, and every word in a statute is presumed to have been used for a purpose; a cardinal rule of statutory construction is that each sentence, clause, and word is to be given effect if reasonable and possible. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000). Where language in a statute is unambiguous, we must seek the intent of the Legislature as found in the plain and common meaning of the words and terms used. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993). Words in statutes have their ordinary meanings unless the statute defines them or they are connected with and used with reference to a particular trade or subject matter or are a term of art. Tex. Gov’t Code Ann. § 312.002 (Vernon 1998); Dallas Morning News Co. v. Bd. of Trustees, 861 S.W.2d 532, 535-36 (Tex.App.-Dallas 1993, writ denied).

Discussion

The code sections referenced in section 16.061 deal with statutes of limitations for at least twenty-eight separate and distinct causes of action, none of which is applicable to any of the causes of action alleged in Appellant’s suit against Appellees. Additionally, section 16.061 recites that the State is not barred by section 16.051, which is entitled “Residual Limitation Period” and states, “Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997). Appellees assert that the residual limitation period of section 16.051 is not applicable because section 2.725 contains an express limitations period that bars Appellant from pursuing its contract and warranty causes of action.

Section 2.102 of the Uniform Commercial Code recites that chapter 2 applies to transactions in goods. Tex. Bus. & Com.Code Ann. § 2.102 (Vernon 1994). “Goods” means “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale.” Id. § 2.105(a). When a contract contains a mix of sales and services, the U.C.C. applies if the sale of goods is the “dominant factor” or “essence” of the transaction. Cont’l Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 787 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 197 (Tex.App.-Austin 1992, no writ). The contract documents between the parties state that the bid package is a “product purchase” for electrical distribution. Accordingly, the U.C.C. applies because the sale of goods was the dominant factor or essence of the transaction between the parties.

The four-year limitations period of section 2.725 applies to an action for the breach of contract for the sale of goods. Big D Serv. Co. v. Climatrol Indus., Inc., 523 S.W.2d 236, 236 (Tex.1975). Additionally, section 2.725 applies to an action for breach of warranty for the sale of goods. Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 545-46 (Tex.1986). Therefore, unless Appellant enjoys immunity from the limitations provision of section 2.725, its contract and warranty causes of action are barred.

In support of its contention that it is not subject to the limitations provision of section 2.725, Appellant relies upon the immunity provision of section 16.061. Appellees assert that the immunity from limitations provided by section 16.061 is applicable only to actions specifically referenced within the statute itself. Appellees conclude that because section 2.725 is not mentioned or referenced in any way in section 16.061, the limitations provision of section 2.725 is applicable to Appellant’s contract and warranty causes of action.

Appellant acknowledges that section 16.061 does not specifically list section 2.725 as a limitations statute from which governmental entities are immune. However, Appellant argues there is no indication in any statute or case law that the Legislature ever intended to abrogate the rule of governmental immunity with respect to transactions involving the sale of goods. Appellant contends that it is indisputable that suits on other contract actions are subject to governmental immunity from limitations, citing section 16.004, which is specifically included in section 16.061. None of the provisions of section 16.004 are applicable to the sale of goods alleged in the instant case.

As further supporting authority, Appellant relies upon a case that holds that the predecessor to section 16.061, former article 5517, included immunity from the limitations provisions regarding personal actions and actions to recover land. See El Paso v. Del Norte Golf & Country Club, Inc., 614 S.W.2d 168, 169-70 (Tex.Civ.App.-El Paso 1980, writ refd n.r.e.). Del Norte was decided under former article 5517, which provided that “[t]he right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title.” Del Norte concluded that the cause of action pled, rent allegedly owed the governmental entity under a lease, was a cause of action under “this Title,” which included the various statutes of limitations of personal actions and limitations of actions to recover land. Id. Accordingly, the governmental entity was immune from limitations by virtue of article 5517. Id. Because the particular cause of action in Del Norte was specifically covered by the statute granting governmental immunity from limitations, we do not find it supportive of Appellant’s argument in the instant case that a non-covered cause of action should be included under section 16.061.

The supreme court has discussed the interplay between section 16.008, a statute of repose regarding claims against architects, engineers, interior designers, and landscape architects, and section 16.061. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 653-55 (Tex.1989). Like section 2.725, section 16.008 was not mentioned in section 16.061. The supreme court found nothing in the language or history of the enactment of section 16.008 to suggest that the predecessor to that section was to have been encompassed within the provisions of former article 5517, now section 16.061. Id. at 655. Accordingly, the court held that the governmental entity could not claim immunity under section 16.061 from the statute of repose listed in section 16.008. Id.

Likewise, we find nothing in the language or history or enactment of section 2.725 to indicate that the Legislature intended to include this section within the immunity section of section 16.061 or former article 5517. Looking at the plain meaning of section 16.061, we find its meaning is unambiguous. If the Legislature had intended to exempt a governmental entity from any and all statutes of limitations or repose, it could have done so. Instead, when the Legislature enacted section 16.061, it expressly provided that a governmental entity is not barred by any of the thirty separate statutes that are specifically enumerated in section 16.061; section 2.725 is not mentioned or referenced in section 16.061.

Indeed, section 2.725 is not alone in its omission from immunity under section 16.061. There exist numerous other statutes of limitations or repose for which the Legislature did not specifically provide governmental immunity under section 16.061. See, e.g., Tex. Civ. Prao. & Rem. Code Ann. §§ 16.009 (suit against persons furnishing construction or repair of improvements), 16.010 (misappropriation of trade secrets), 16.011 (surveyors), 16.029 (evidence of title to land by limitations) (Vernon 2002), 16.012 (products liability claims against a manufacturer or seller) (Vernon Supp.2004-05).

We hold the trial court did not err in granting summary judgment on the ground that Appellant is not immune from the limitations provision of section 2.725. Accordingly, we overrule Appellant’s first issue on appeal.

Does Zurich Have The Same Rights As The Hospital?

In Appellant’s second issue, it contends the trial court erred in granting summary judgment on the ground that Zurich does not have the same rights as the Hospital. This issue is premised upon our sustaining Appellant’s first issue, which we have overruled. Accordingly, we need not address Appellant’s second issue, which is overruled.

Economic Loss Rule

In their motion for summary judgment, Appellees contended that Appellant’s causes of action for products liability, negligence, and gross negligence are barred by the “economic loss rule.” The economic loss rule precludes recovery of economic losses in tort cases when the loss is the subject matter of a contract between the parties. See Southwestern Bell, 809 S.W.2d at 494; Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 617-18 (Tex.1986). When a plaintiff asserts a tort claim arising from a contract, we must look to the substance of the cause of action, not the manner in which it was plead, to determine the type of action that is brought. See Jim Walter Homes, 711 S.W.2d at 617-18. When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone. Southwestern Bell, 809 S.W.2d at 494.

Is the “Economic Loss Rule” an Affirmative Defense?

Appellant and Appellees disagree on whether the economic loss rule is an affirmative defense on which Appellees had the burden of proof, or whether it is merely a court-adopted rule that provides a bar to recovery in tort for certain types of damages claimed by a plaintiff. Neither party has cited us to any case dealing with this precise issue, and we have found none.

An affirmative defense establishes an independent reason why the plaintiff should not recover on its asserted cause of action. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996); Rodgers v. Comm’n For Lawyer Discipline, 151 S.W.3d 602, 616 (Tex.App.-Fort Worth, no pet. h.); see Tex.R. Civ. P. 94 (entitled “Affirmative Defenses” and providing that a party’s pleading “shall set forth affirmatively [specific enumerated defenses] and any other matter constituting an avoidance or affirmative defense”). But the economic loss rule is not an independent reason for denying recovery; instead, it applies to the contract that forms the basis of the existing dispute and precludes recovery when a plaintiffs injury is only the economic loss to the subject of a contract itself, as determined from reviewing the substance of plaintiffs cause of action. See Jim Walter Homes, 711 S.W.2d at 617-18.

We conclude that the economic loss rule is a not an affirmative defense within the meaning of rule 94 but is a court-adopted rule for interpreting whether a party is barred from seeking damages in an action alleging tort injuries resulting from a contract between the parties.

Discussion

Appellant’s final amended petition states that Appellant brings these claims against Appellees because they “failed to provide the Hospital with properly designed products to construct a safe and rehable power supply system.” Under the “Facts” section of the petition, Appellant recites that in 1995 it decided to upgrade its electrical system and entered into a contact with another vendor to construct a bus duct system. Appellant generated a bid package for materials and equipment that would be used to construct the bus duct system. Appellees submitted a bid to provide these products and to inspect the bus duct system upon its completion to make certain it was installed and operating in compliance with the manufacturer’s specifications. Appellees’ bid was accepted, and they provided the materials and constructed the bus duct system. However, Appellant alleged that the bus duct system failed to operate correctly because Appel-lees defectively designed the bus duct joint covers that they sold Appellant under the contract, and because Appellees failed to properly inspect the bus duct system.

Appellant claimed “significant damage to the other products which comprised the Busway System” and to “other products which were used to construct the Busway System.” By this pleading, Appellant alleged property damage to the electrical busway system, which is the very product purchased from Appellees that is the subject of Appellant’s contract and warranty claims. Appellant’s pleadings do not specify damage separate or independent of the busway, the product it contracted to purchase from Appellees.

We conclude that the injuries allegedly resulting from Appellant’s causes of action for products liability, negligence, and gross negligence are damages from the economic loss to the subject of the contract between the parties, and these actions sound in contract or breach of warranty, not in tort. See Southwestern Bell, 809 S.W.2d at 495 (holding economic loss resulting from alleged negligence in failing to comply with contract to publish advertisement sounds solely in contract and was barred by economic loss rule); Mid Continent Aircraft Corp. v. Curry County Spraying Serv., Inc., 572 S.W.2d 308, 311 (Tex.1978) (holding economic loss resulting from product with defective workmanship and materials is not recoverable in strict liability because loss is merely loss of value resulting from a failure of the product to perform according to contractual bargain). Accordingly, we hold the trial court did not err in granting summary judgment on this ground. We overrule Appellant’s third issue.

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

We have held that the trial court properly granted summary judgment to all Ap-pellees based upon grounds alleged in their traditional motion for summary judgment. Therefore, we need not address Appellant’s fourth issue on appeal, which challenges the no-evidence motion for summary judgment filed by Appellees Automation and Supply. Accordingly, we overrule Appellant’s fourth issue.

CONCLUSION

We conclude the trial court properly granted summary judgment in favor of Appellees, and we affirm the judgment of the trial court.

      . When appropriate, we will refer to Appel-lees collectively as "Appellees” or will use the names of the individual entities: GE Automation Services, Inc., f/k/a GE Industrial Systems Solutions, Inc. ("Automation”); Supply Operations, Inc., fyk/a GE Supply Operations, Inc. ("Supply”); and General Electric Company ("General Electric”).

      . The bus duct system consisted, in part, of various sizes of bus duct, which are conduits for electricity.

      . Although the suit was filed in Appellant’s name, the entity pursuing the suit as plaintiff is American Guarantee and Liability Company ("Zurich"), which insured Appellant and paid Appellant for the damages incurred as a result of the defective bus duct system. Accordingly, Zurich asserts it is subrogated to the rights of Appellant in this matter.

      . Appellant initially also alleged a violation of the Texas Deceptive Trade Practices Act; this cause of action was subsequently abandoned by Appellant.

      . The economic loss rule precludes recovery of economic losses in negligence cases when the loss is the subject matter of a contract between the parties. See Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex.1991).

      . See note 9, infra.

      . The trial court did not specify the grounds upon which the motion was granted and did not specify whether it was granting the traditional motion, the no-evidence motion, or both.

      . See Tex.R. Civ. P. 166a(i).

      . Act of May 29, 1993, 73d Leg., R.S., ch. 782, § 1, sec. 16.061, 1993 Tex. Gen. Laws 3059, 3059 (amended 1997 & 2001) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 16.061 (Vernon Supp.2004-05))(emphasis added). Even if the current version applied to the instant case, the changed language does not affect the issue before this court.

      . Section 16.004 provides that suit on the following actions must be brought not later than four years after the day the cause of action accrues: specific performance of a contract for the conveyance of real property; penalty or damages on the penal clause of a bond to convey real property; debt; fraud; breach of fiduciary duty; suit on the bond of an executor, administrator, or guardian; suit against a partner for settlement of partnership accounts; an action on an open or stated account; or an action on a mutual and current account concerning the trade of merchandise between merchants and their agents or factors. Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (Vernon 2002).

      . See Act of May 19, 1953, 53d Leg., R.S., ch. 348, § 1, 1953 Tex. Gen. Laws 857, 857,
        repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 16.061 (Vernon Supp.2004-05)).

      . "A statute of repose in a general sense is a legislative enactment which sets a period of time within which an action may be brought. A statute of limitation is a category of repose statute.” Id. at 654 n. 1.

      . The specific affirmative defenses listed in rule 94 are accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. TexR. Civ. P. 94.