text:
    Carl WALL and Thomas E. Swaney, Individually and on Behalf of all Other Similarly Situated Consumers, Appellants, v. PARKWAY CHEVROLET, INC. and Mac Haik, G.P., LLC, d/b/a Mac Haik Ford, Appellees.
    No. 01-03-00005-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.

      Curt M. Langley, H. Victor Thomas, Richard E. Griffin, Fred A. Simpson, Jackson Walker L.L.P., Houston, for Appellant.
    Henry L. Robertson, Law Office of Henry L. Robertson, Philip S. Gordon, Heidi Ferenz, Gordon Law Firm, Robert L. Robertson, Houston, for Appellee.

      Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION

EVELYN V. KEYES, Justice.

This is an interlocutory appeal of the trial court’s order denying certification of a class action pursuant to Rule 42 of the Texas Rules of Civil Procedure. In their sole issue, appellants Carl Wall and Thomas E. Swaney, individually and on behalf of all other similarly situated consumers (collectively, the buyers), contend that the trial court misapplied the law and abused its discretion by refusing to certify a class of persons who purchased vehicles from Parkway Chevrolet, Inc. and Mac Haik, G.P., LLC, d/b/a Mac Haik Ford (Mac Haik Ford) (collectively, the dealers) and were charged for service-and-benefits coupon books. We affirm.

Background

In the spring of 2001, Houston television reporter Marvin Zindler presented a story about car buyers being charged for coupon books. Wall sued Parkway Chevrolet in the summer of 2001, seeking actual and punitive damages for himself and similarly situated consumers. The petition alleged that Parkway deceptively included a “fee for ‘consumer services’” on the purchase invoice with no explanation other than that it was part of the price of the vehicle. Wall alleged that the “fee” was for a book of “coupons that are worthless and that cannot be used by Wall or the Class members,” that Parkway knew the coupons were worthless, and that, if Parkway had informed him and other class members that the book was worthless, they would not have purchased it. Instead, Wall alleged, he and the other class members relied on Parkway’s misrepresentations to their detriment. Wall alleged that this practice constituted both laundry-list violations under section 17.46(b)(12) of the Deceptive Trade Practices Act Consumer Protection Act (DTPA) and unconscionable conduct under section 17.45(5) of the DTPA. In his original petition, Wall defined the class of plaintiffs as “all customers who have purchased a vehicle from Parkway Chevrolet, Inc. (‘Parkway’) and who were charged a fee for a discount coupon book, disguising the charge as ‘Consumer Services,’ ‘Intelesys,’ ‘NACC,’ or other such non-descriptive or misleading terms (hereinafter collectively referred to as ‘Consumer Services’).” He sought actual and exemplary damages for himself and the class.

In a third amended petition, appellants Wall and Swaney, who had joined the class action as a named plaintiff and joined dealer Mac Haik Ford as a defendant, alleged that both dealers were “engaged in a deceptive act and practice involving the charging of a fee in connection with the sale of automobiles which is deceptively included without explanation on the purchase invoice.” They alleged that, “in exchange for the fee of several hundred dollars, the consumer receives a ‘coupon book’ which purports to offer ‘free’ services at the dealer,” but it is not disclosed that the customers has paid hundreds of dollars for these purportedly free services. They alleged that, despite numerous complaints and investigations by television reporter Marvin Zindler and the Texas Attorney General’s office, the dealers continued to engage in this “misleading, deceptive, fraudulent, and apparently highly lucrative scheme to defraud the trusting consumers.” Wall and Swaney alleged that this practice constituted a number of “laundry list” violations of sections 17.50(a)(1) and 17.46(b) of the DTPA, as well as unconscionable conduct under sections 17.50(a)(3) and 17.45(5) of the DTPA.

Wall and Swaney defined the plaintiff class as consisting of two subclasses. They defined subclass A(l) as “all Texas consumers who have purchased a vehicle from Parkway Chevrolet, Inc. (‘Parkway’), on or after July 23, 1999 and were charged a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations in connection with the purchase of the vehicle.” They defined subclass A(2) as “all Texas consumers' who have purchased a vehicle from Mac Haik Ford on or after March 8, 2001 and were charged a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations in connection with the purchase of the vehicle.” Excluded from both subclasses were those persons who had already received a full refund of the fee charged. The only differences between the subclasses were that one subclass included customers of Parkway Chevrolet and the other, customers of Mac Haik Ford, and that the alleged wrongdoing ran from different dates at the two dealerships.

Motion for Class Certifícation

Wall and Swaney moved for class certification under Texas Rule of Civil Procedure 42. Under rule 42(a), every class action must satisfy four threshold requirements: “(1) numerosity (‘the class is so numerous that joinder of all members is impracticable’); (2) commonality (‘there are questions of law or fact common to the class’); (3) typicality (‘the claims or defenses of the representative parties are typical of the claims or defenses of the class’); and (4) adequacy of representation (‘the representative parties will fairly and adequately protect the interests of the class’).” Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 433 (Tex.2000) (quoting Tex.R. Civ. P. 42(a)).

In addition to satisfying all the requirements of rule 42(a), the class must also satisfy at least one of the subparts of rule 42(b). See Tex.R. Civ. P. 42(b). In their motion for class certification, appellants alleged that their class action was maintainable pursuant to former rule 42(b)(4), which permits class actions when common questions of law or fact predominate and a class action is superior to other forms of adjudication.

Wall and Parkway Chevrolet

At the class certification hearing, evidence was presented that in 1999, Wall purchased a vehicle and a benefits package from Parkway Chevrolet and signed a purchase order that contained three preprint-ed charges — a documentary fee, a title and inspection fee, and a $199 “NACC” charge. The Purchase Order indicated that the buyer understood and agreed to the terms of the order. Wall also signed an “Intele-sys Information Form,” which stated, “This $199.00 charge has been explained to me and I understand that the special benefits are in addition to the goods and services ordinarily provided in connection with the purchase of the vehicle described above.” After he purchased his car, Wall received a coupon booklet in the mail, together with a document entitled “Parkway Chevrolet,” which stated,

Consumer laws covering the sale of motor vehicles require the full disclosure of all charges associated with the purchase. All vehicles retailed by our dealership have a charge which is printed on the retail buyer’s order.
This charge is to compensate for various additional consumer services and un-reimbursed dealership costs....
To add more value, and to assure your continued satisfaction with our services and products, you will receive a special customer relations program, the “NACC Consumer Services Program.” When fully utilized, the benefits provided should result in substantial savings while providing you, our valued customer with:
• $1,726.00 Preferred Customer Checks
• Critical Problem Response Program

This announcement was followed by a “Benefits Package Tabulation” listing total potential savings of $1,726 and approximately 50 coupons in various amounts paid to the order of Parkway Chevrolet. Wall put his benefits package in his glove compartment and never used it.

In 2001, Wall purchased another car from Parkway Chevrolet. This time, he declined to pay for the NACC package (then being sold for $229); and the 2001 invoice reflects a line drawn through and striking the NACC charge. Evidence was presented that Parkway’s salesmen were required to explain the coupon books to customers and to make sure that the customers understood the numbers behind their orders, and that buyers were given the opportunity to decline the coupon books and some did, but that many customers liked and used the coupons. Around the beginning of October 2001, Parkway switched from the coupon books to a customer “loyalty card” that was given for free to all customers, but which could be upgraded to obtain discounts from the dealer.

Swaney and Mac Haik Ford

Evidence was also presented that appellant Swaney purchased a car from Mac Haik Ford in 2001. On the “Vehicle Purchase Order and Invoice” that Swaney signed were several fees: a state tax, a vehicle inventory tax, a license and title tax, a deputy fee, and a documentary fee, which was crossed out. The Vehicle Purchase Order and Invoice also contained a $249 “Consumer Benefits & Services (ECBP)” charge. Evidence was presented that every Mac Haik customer who purchased a vehicle was charged for the benefits package and received the package; that Mac Haik trained its salespersons to explain to each customer that the Consumer Benefits and Services package entitled the customer to a coupon book containing coupons for reduced prices on various services and products from Mac Haik; and that, in the fall of 2001, Mac Haik began sending out written explanations of the benefits along with the coupons themselves. There was also evidence that 80-90% of Mac Haik customers who had their vehicles serviced by Mac Haik used the coupons; that some customers came in and asked for the book; and that the customers liked the books.

After the class certification hearing, the trial court denied Wall’s and Swaney’s request for class certification, and this interlocutory appeal ensued.

Standard of Review

Our review of an interlocutory appeal from a denial of a motion for class certification is limited to determining whether the trial court’s denial of the motion constituted an abuse of discretion. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690-91 (Tex.2002); Bernal, 22 S.W.3d at 439. A trial court abuses its discretion only if the record (1) clearly shows that the trial court misapplied the law to the established facts, (2) does not reasonably support the ruling, or (3) shows that the trial court acted arbitrarily or unreasonably. Sun Coast Res. v. Cooper, 967 S.W.2d 525, 529 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d w.o.j.). We must review the evidence in the light most favorable to the trial court’s ruling and indulge every presumption favorable to that ruling. Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 29 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.). We must not substitute our judgment for that of the trial court. Tana Oil & Gas Corp. v. Bates, 978 S.W.2d 735, 740 (Tex.App.-Austin 1998, no pet.).

No findings of fact or conclusions of law were made in the trial court’s order denying class certification. Therefore, all questions of fact are presumed found in support of the judgment, and we will uphold the judgment of the trial court on any legal theory supported by the pleadings and the evidence. See Grant v. Austin Bridge Const. Co., 725 S.W.2d 366, 369 (Tex.App.-Houston 1987, no pet.). In determining whether there is evidence to support the judgment and implied findings of fact, we must consider only the evidence favorable to the implied findings and disregard any contrary evidence. Id.

Class Certification

In their sole issue, the buyers contend the trial court abused its discretion when it refused to certify the class.

Prerequisites to Class Certification

When, as here, a predominance-of-common-questions class action is asserted, the commonality determination is subsumed under the predominance determination. Bernal, 22 S.W.3d at 435. Common questions are those “questions of law or fact common to the class.” Id. at 433. A common question exists when the answer as to one class member is the same as to all. Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 810 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Common questions that do not produce common answers do not satisfy rule 42. Wente v. Georgia-Pacific Corp., 712 S.W.2d 253, 257 (Tex.App.-Austin 1986, no writ). A three-step inquiry is required to determine whether common issues predominate: the trial court must (1) identify the substantive issues that will control the outcome of the case, a requirement which implies that the court must correctly identify the elements of each of the plaintiffs’ causes of action; (2) assess which issues will predominate in the trial of the merits of the case; and (3) determine whether the predominating issues are, in fact, common to the class. Bernal, 22 S.W.3d at 434. Common questions of fact or law predominate over individual issues if common issues of law or fact will be the object of most of the efforts of the litigants and the courts. Schein, 102 S.W.3d at 689. Ideally, a judgment in favor of the named plaintiffs should decisively settle the entire controversy, and all that should remain is for the individual members of the class to file proof of their claim. Bernal, 22 S.W.3d at 435; Graebel/Houston Movers, 26 S.W.3d at 33.

Commonality and Predominance

In their motion for class certification, Wall and Swaney alleged that “the following common issues predominate: (1) whether the plaintiff class were consumers; (2) whether the charging of a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations is an unconscionable, false, misleading or deceptive act or practice as defined in the DTPA; (3) whether such acts were a producing cause of damages; and (4) the amount of the damages.”

To prevail under the DTPA, a plaintiff must show that (1) the plaintiff was a consumer; (2) the defendant committed, among other things, a “laundry-list” violation under DTPA section 17.46(b) on which the plaintiff detrimentally relied or any unconscionable action or course of action; and (3) the wrongful act was a producing cause of the plaintiffs economic or mental-anguish damages. See Tex. Bus. & Com.Code Ann. § § 17.46(b), 17.50(a) (Vernon 2002); see also id. § 17.50(a)(1)(A)-(B) (Vernon 2002) (expressly requiring detrimental reliance for these violations); Schein, 102 S.W.3d at 686. To prove unconscionability under the DTPA, a plaintiff must prove “(1) an act or practice that, (2) to a person’s detriment, (3) takes advantage of his lack of knowledge, ability, experience, or capacity, (4) to a grossly unfair degree.” Peltier Enterprises, Inc. v. Hilton, 51 S.W.3d 616, 623 (Tex.App.-Tyler 2001, pet. denied). The plaintiffs must show what the consumer could or would have done if he had been informed. See id.

The parties concede that all buyers are consumers as defined in the DTPA. However, the dealers dispute Wall’s and Swa-ney’s contention that any other questions can be answered on a class-wide basis. Specifically, they argue that an individualized inquiry into each buyer’s circumstances is required to answer the question “whether the charging of a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations is an unconscionable, false, misleading or deceptive act or practice as defined in the DTPA.” Likewise, the dealers argue that individualized inquiries are required to answer questions of causation of damages and of the amount of damages, if any, suffered by each buyer. We agree with the dealers.

Subclasses A(l) and A(2)

Neither the pleadings nor the evidence identifies any specific misrepresentation, set of misrepresentations, or course of conduct common to the practices of both dealers. Rather, the record reflects that the two dealers used different terms to describe their benefit packages, made different oral and written and disclosures, charged different amounts for their coupon books, and offered different coupons to their customers, running from different dates, by methods that varied over time. Thus, the trial court did not abuse its discretion in concluding that there is no commonality of issues between the two subclasses such that the claims against these dealers could be tried together.

Similarly individualized inquiries characterize each subclass.

Parkway Chevrolet

Parkway Chevrolet produced evidence that its salesmen were trained to explain the numbers behind each customer’s purchase order; it also produced disclosure forms signed by Wall acknowledging his understanding and acceptance of the charge for the coupon books; and it demonstrated that Wall could and did decline to purchase a benefits package when he purchased a second car. This evidence undermines Wall’s contentions that Parkway charged a “fee” to each customer for the benefits package, that Parkway violated the DTPA by making an identifiable false or deceptive representation on which each buyer relied, and that Parkway took advantage of each customer’s “lack of knowledge, ability, experiences, or capacity ... to a grossly unfair degree,” giving rise to a common cause of action for a deceptive trade practice; rather, the evidence demonstrates the necessity of an individualized inquiry with respect to each customer to resolve these issues.

Parkway also produced evidence that the benefit packages of the type Wall purchased for $199 provided a variety of services with a total value of $1,726. Because that amount is much greater than the cost of the package, this evidence undermines Wall’s contentions that the receipt of the package was a producing cause of damages to each buyer in Subclass A and that the calculation of damages would be a mere mechanical matter. There is evidence that at least some buyers wanted the coupon books. Thus, the trial court could have reasonably concluded that an indeterminate number of buyers realized greater value from the use of the coupons than they paid for the book and that they knowingly and voluntarily purchased the coupon book. The trial court could have further concluded that, for those buyers found to have been deceived, the determination as to which buyers purchased which coupons, what values the coupons had, whether any were redeemed, which ones were redeemed, and what economic loss was suffered by the buyer, if any, would all have to be made on a case-by-case-basis.

Mac Haik Ford

Mac Haik Ford produced evidence that the EBCP charge was identified on the invoice as a consumer benefits charge; that its sales representatives were trained to explain the charge; that its practice changed over time; that buyers during part or all of the class period had been required to sign disclosure forms as to the benefits packages; that many of its buyers were satisfied with the packages, and even sought them out; and that its buyers redeemed a number of coupons each month for valuable savings in services. Thus, as it did with Parkway Chevrolet, the trial court could have reasonably concluded that a fact-finder would first have to determine with respect to each buyer whether any misrepresentation or deceptive omission as to the cost or value of the coupons was made; what the misrepresentation or omission was; who made it; and whether the buyer relied on it and was harmed, or whether he signed a disclosure form indicating that he understood and accepted the charge. The trial court could also have reasonably concluded that, for each person found to have relied on an alleged misrepresentation or deceptive charge, the fact-finder would have to analyze whether and to what extent the deceptive representation or practice was a producing cause of that person’s damages, a determination that would differ based on the coupons the buyer received, the amount he paid for the coupons, the value of the coupons, and whether he redeemed the coupons.

The situation here is not analogous to that in Alford Chevrolet-Geo v. Jones, 91 S.W.3d 396 (Tex.App.-Texarkana 2002, pet. denied, pet. for rehearing filed), as appellants contend. In Alford, a class action was brought against more than 600 new car dealerships that allegedly conspired to use a designation such as “vehicle inventory tax” on sales documents to pass on a dealer’s tax to the customer. Id. at 399. The court held that, although the specific terms used varied from dealer to dealer, all of the dealers conspired together to ensure that they charged the tax in the same manner in order to add $30 to $50 to the sale of each vehicle. Id. at 402; see also Graebel/Houston Movers, Inc., 26 S.W.3d at 33 (holding that predominant issue was whether defendant uniformly billed customers for storage insurance and failed to procure insurance, not whether he made misrepresentations to each individual class member).

Unlike this case, in which rebanee on an indeterminate course of conduct is alleged, proof of the class’s conspiracy claims in Alford turned on proof that the dealers knew the object of the conspiracy, took action in unison to further it, and enjoyed the fruits of the transactions. Id. at 403. Moreover, as the Alford court pointed out, there was “no indication from the discovery that there were any material valuations in the written representations made.” Id. at 405. Rather, the documents and depositions obtained in discovery clearly showed that the dealers’ trade organizations designed the mode in which the tax would be presented to customers and established the purpose of the conspiracy, to add $30 to $50 to the bottom line. Id. at 402.

This case is much more like Peltier, 51 S.W.3d 616, a class action suit brought against a named car dealership, Peltier, other unnamed dealerships, and several banks that was grounded in the dealer’s practice of selhng a car, providing dealer financing, and shopping the commercial paper to financial institutions for purchase at a discount. The plaintiffs alleged that the defendants’ failure to disclose to buyers that the rate of interest they were charged was higher than that charged by the financial institution to whom their financing was sold and that the differential was paid to the dealer gave rise to claims of fraudulent concealment, failure to disclose, unconseionabihty in violation of the DTPA, and tortious interference with potential contracts.

The Peltier court held, with respect to the buyers’ fraud claim, that both the materiality of the misrepresentation or concealment and a putative class member’s reliance on the information to his detriment required individuahzed proof. 51 S.W.3d at 623. Likewise, the unconscionability claims required individualized proof as to what the buyer would have done had he had the information. Id. at 624. The court pointed out that not ab situations involving fraud and misrepresentation claims are appropriate for class action treatment because of differences in the materiality of the representations to the plaintiff and the kinds or degrees of reb-anee. Id. Such is the case here.

We hold that the trial court did not abuse its discretion in concluding that questions of fact requiring individualized inquiry predominated over any issues common to the class as a whole or to either subclass.

Conclusion

The trial court could have reasonably concluded that the necessity of individualized determinations regarding alleged misrepresentations and failure to disclose, the application of the law to those facts, and questions related to damages reasonably foreclosed certification of the class. According, we hold that the trial court did not abuse its discretion in refusing to certify the class. We overrule appellants’ sole issue. Because our holding is dispositive of the case, we need not address the other factors which must be demonstrated before class certification is justified.

We affirm the trial court’s ruling.

      . See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(3) (Vernon Supp.2004-2005) (permitting interlocutory appeal of trial court’s determination of whether to certify a class).

      . See Tex.R. Civ. P. 42(a),(b) (governing certification of class actions).

      . Tex. Bus. & Com.Code §§ 17.46(b)(12), 17.45(5) (Vernon 2002); see also Tex Bus. & Com.Code §§ 17.50(a)(1) and (a)(3) (Vernon 2002) (permitting a consumer to maintain an action when “the use or employment by any person of a deceptive act or practice” enumerated in section 17.46(b) is a producing cause of economic or mental anguish damages and is relied on by the consumer to the consumer’s detriment, or where "any unconscionable action or course of action by any person” is a producing cause of such damages).

      . Tex. Bus. & Com.Code Ann. § 17.46(b)(1) (Vernon 2002) ("passing off goods or services as those of another”); id. § 17.46(b)(2) ("causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods and services”); id. § 17.46(b)(3) ("causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another”); id. § 17.46(b)(5) (“representing that goods or services have sponsorship, approval, characteristics, ... uses, benefits, or quantities which they do not have ...”); id. § 17.46(b)(7) ("representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another”); id. § 17.46(b)(9) ("advertising goods or services with intent not to sell them as advertised”); id. § 17.46(b)(12) ("representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law”); id. § 17.46(b)(24) ("the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction which the consumer would not have entered had the information been disclosed”).

      . See Tex.R. Civ. P. 42, 553-554 S.W.2d (Tex. Cases) XXXV-XXXVIII (1977, amended 2003) [hereinafter "former rule 42”]. We refer to "former rule 42(b)(4)” throughout this opinion because of the renumbering of the former rule’s subsection (b)(4) in 2003 as subsection (b)(3). See current text of Tex.R. Civ. P. 42. The provisions of former rule 42 pertinent to this appeal were not substantively changed when the rule was amended. See Order of the Supreme Court of Texas, Amendments to the Texas Rules of Civil Procedure, Misc. Docket No. 03-9160 (Oct. 9, 2003, effective Jan. 1, 2004).


source: Caselaw Access Project

author: TIM TAFT, Justice.

license: Public Domain

text:
    Captain Sheriff SAUDI, Appellant, v. Captain Ivo BRIEVEN, Appellee.
    No. 01-03-00865-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.

      Afton J. Izen, Joe A. Izen, Jr., Bellaire, for Appellant.
    Kyle Douglas Giacco, Coastal Banc Plaza, Willie Ben Daw, III, Daw & Ray, A Professional Corp., Houston, for Appellee.
    Panel Consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

This is the second appeal in this lawsuit. Appellant, Captain Sheriff Saudi, sued ap-pellee, Captain Ivo Brieven, for defamation (libel and slander), intentional interference with employment relations (“intentional-interference claim”), and intentional infliction of emotional distress (“IIED”). The trial court granted Brieven’s motion for summary judgment and rendered a take-nothing judgment against Saudi. The Fourteenth Court of Appeals reversed the judgment and remanded the cause because fact issues existed on Saudi’s defamation claims. See Saudi v. Brieven, 14-01-00785-CV, 2003 WL 1989112 (Tex.App.-Houston [14th Dist.] May 1, 2003, no pet.) (memo.op.). On remand, Brieven reasserted his summary judgment motion, and the trial court granted it, again rendering a take-nothing judgment against Saudi. In this second appeal, we determine whether (1) the trial court’s summary judgment was void and (2) Brieven proved his affirmative defense of qualified privilege to Saudi’s defamation claims as a matter of law. We affirm.

Background

This dispute arose from a relationship among I.B. Marine Services (“IBMS”), American Eagle Tankers (“American”), and Industrial Material Corporation (“Industrial”). Brieven either owned, or operated and was an officer of, IBMS. American employed Saudi as a mooring master.

The summary judgment evidence on remand showed two incidents from which Saudi’s defamation claims could have arisen. First, at a meeting held on June 18, 1998 between IBMS and American employees, Brieven told these third parties that Saudi engaged in waking the boat crew at inappropriate times and for inappropriate purposes and called one survey- or a “stupid American.”

Second, in September 1998, Brieven’s port engineer informed Brieven that he had learned that someone matching Saudi’s description had purchased hooks from Industrial and had charged the purchase to IBMS’s account without authorization. The purchaser also appeared to have stolen some items. Brieven then contacted Captain Violetta, Saudi’s supervisor at American; related the accusations to him; specifically accused Saudi of the purchase; and asked if a procedure could be instituted in the future that would let Brieven know when mooring masters charged items to IBMS’s account. When Violetta later called Brieven to confirm the allegation because Saudi continuously had denied it, Brieven told Violetta, ‘Tes, I am sure. [Saudi] is a liar. He is lying through his teeth.” In fact, American never had authorized its mooring masters to purchase items on IBMS’s account, and Brieven’s accusations against Saudi concerning the purchase eventually were determined to be false.

Saudi sued Brieven, asserting defamation, intentional-interference, and IIED claims arising from the September 1998 phone call to Violetta and from unspecified incidents in which Brieven allegedly “made false accusations against [Saudi] to third parties in an effort to create hate and resentment between the ‘boat crew and [Saudi].... ” Brieven moved for summary judgment against all claims, specifically asserting the affirmative defense of qualified privilege to the defamation claims. The trial court originally rendered judgment against each of Saudi’s three claims. In the first appeal, the Fourteenth Court of Appeals (1) held that the trial court had erred in rendering summary judgment on Saudi’s defamation claims; (2) held that the trial court had properly rendered summary judgment on Saudi’s intentional-interference claim; and (3) did not address the summary judgment rendered on Saudi’s IIED claim. Id. at *3-6. The appellate court reversed the entire judgment and remanded the cause without limitation.

On remand, Brieven reasserted his entire summary judgment motion, which addressed all three claims, and requested a written ruling on his objections to Saudi’s summary judgment evidence. In response, Saudi reurged his original summary judgment response and tendered two more affidavits in support, to which Brieven also objected. The trial court sustained Brieven’s objections to Saudi’s evidence, in effect striking most of Saudi’s four affidavits’ testimony; granted Brieven’s summary judgment motion; and rendered a take-nothing judgment against Saudi.

Jurisdiction

In part of his sole issue, Saudi argues that the trial court’s summary judgment is void for having been rendered after the appellate court had issued its judgment, but before it had issued its mandate. Brieven responds that the trial court had jurisdiction to render judgment and, alternatively, that Saudi either waived his challenge or is estopped from asserting it.

The Fourteenth Court of Appeals’s opinion and judgment issued on May 1, 2003. The trial comí; rendered summary judgment on July 21, 2003, without objection by Saudi. The appellate court’s mandate issued August 7, 2003.

“Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding.” Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943)). Lack of subject-matter jurisdiction is fundamental error that may be recognized by the appellate court, sua sponte, or raised by a party, by appellate challenge, for the first time on appeal. See id.; Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 n. 6 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (“In an appeal properly before it, an appellate court may always address fundamental error, even without an appellate challenge.”). “A judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.’ Errors other than lack of jurisdiction render the judgment merely voidable.... ” Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987) (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)). Accordingly, the trial court’s summary judgment is void, and Saudi may assert his challenge for the first time on appeal, only if the court lacked subject-matter jurisdiction at the time of the judgment’s rendition.

The Rules of Appellate Procedure and Texas Supreme Court jurisprudence support Brieven’s position, not Saudi’s.

A. The Rules

As of September 1, 1997, the Rules of Appellate Procedure provide that an appellate court’s plenary power over its judgment expires “(a) 60 days after judgment if no timely filed motion to extend time or motion for rehearing is then pending; or (b) 30 days after the court overrules all timely filed motions for rehearing and motions to extend time to file a motion for rehearing....” Tex.R.App. P. 19.1. No one in this cause moved for rehearing in the court of appeals. Accordingly, the Fourteenth Court of Appeals’s plenary power expired on July 1, 2003, 60 days after its judgment issued. See id.

Under separate rules, the appellate court must issue its mandate in a civil case when, for example (and absent the parties’ agreement otherwise), 10 days have passed (1) since the deadline expired for filing a motion to extend time to file a petition for review in the Supreme Court (a) if no timely petition for review has been filed and (b) if no timely motion for extension of time to file a petition for review is pending or (2) since the deadline expired for filing a motion to extend time to file a motion for rehearing of a denial, refusal, or dismissal of a petition for review, if no timely filed motion for rehearing or extension is pending. Tex.R.App. P. 18.1(a)(l)-(3). Here, no one filed a petition for review or a motion for extension of time to file one.

Generally speaking, and with certain exceptions inapplicable here, once an appeal has been perfected and the trial court’s plenary power to perform certain acts after appeal has expired, the appellate court acquires exclusive plenary jurisdiction over the cause. See Robertson v. Ranger Ins. Co., 689 S.W.2d 209, 210 (Tex.1985); see also Tex.R. Civ. P. 329b(d), (e) (granting trial court plenary power to perform certain acts despite appeal’s perfection); Tex.R.App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from.”). The court of appeals’s plenary jurisdiction ends, however, as provided in Rule of Appellate Procedure 19. In contrast, rule 18 concerns the issuance and return of mandate, but does not govern the appellate court’s plenary power. A comparison of rules 18 and 19 thus demonstrates that rule 18 is procedural, rather than jurisdictional, in nature. Furthermore, the appellate rules provide that “[a]fter its plenary power expires, the [appellate] court cannot vacate or modify its judgment. But the court may: ... (b) issue and recall its mandate as these rules provide.” Tex.R.App. P. 19.3(b). Since rule 19’s adoption, the fact that the rules allow the appellate court to issue and to recall its mandate after the appellate court’s plenary power expires indicates that it is not the mandate’s issuance that generally reinvests the trial court with jurisdiction, but, instead, the termination of plenary power in the appellate court under rule 19.1.

In support of his position, Saudi relies on Rule of Appellate Procedure 18.7, which provides:

If an appellate court vacates or modifies its judgment or order after issuing its mandate, the appellate clerk must promptly notify the clerk of the court to which the mandate was directed and all parties. The mandate will have no effect and a new mandate may be issued.

Tex.R.App. P. 18.7.. Contrary to Saudi’s contention, rule 18.7 says nothing about reinvesting a trial court with jurisdiction, and it does not support him.

B. The Case Law

Case law supports our reading of the rules. In 1963, the Texas Supreme Court held that the statutes and rules concerning the mandate’s return are “primarily procedural in nature ...,” rather than jurisdictional. Continental Cas. Co. v. Street, 364 S.W.2d 184, 187 (Tex.1963). In Street, the court of civil appeals held that the trial court’s judgment was void because the trial upon which judgment was rendered had been held before the appellate court’s mandate had been returned. Id. at 186. The Texas Supreme Court reversed the court of civil appeals:

The rules relating to the return of the mandate from the appellate to the trial court are taken from predecessor statutes .... These statutes were construed as being primarily procedural in nature. They provide for an orderly dispatch of judicial business by adopting procedures under which both the appellate and trial courts may have knowledge of the status of pending litigation and thus prevent the issuance of conflicting orders by the courts of the trial and appellate levels. In the absence of an actual interference with the appellate court’s authority over a case, the provisions relating to the return of the mandate do not appear to have been regarded as jurisdictional in the sense that any action taken by a trial court before the return of the mandate must be considered a nullity.
It is recognized that prior to the issuance of a mandate the appellate court retains a species of jurisdiction of a case although it has rendered its judgment and overruled a motion for rehearing and that a writ of prohibition may issue to the trial court forbidding it to proceed to trial before the appellate court has issued its mandate.... In order to properly preserve the complaint of procedural irregularity in proceeding to trial before the return of the mandate, it is necessary that proper objection be made in the trial court, or that application for prohibition be made to the Court of Civil Appeals. It is only when there is an actual interference with the appellate court’s active power and authority over the case by a trial court order that the same can be considered void so as to constitute a fundamental error.

Id. at 187-88 (footnotes omitted; citations omitted; emphasis added); accord Universe Life Ins. Co. v. Giles, 982 S.W.2d 488, 491 (Tex.App.-Texarkana 1998, pet. denied) (following Street). As with the language of current rule 18, the language of rule 18’s predecessors that were considered by the Street court was also procedural. See Street, 364 S.W.2d at 187-88 & 187 n. 2. The Texas Supreme Court affirmed the continued validity of Street in Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex.1972), in which the court stated, “The Texas Rules of Civil Procedure dealing with the issuance and return of the mandate subsequent to judgment of remand in the Court of Civil Appeals are procedural in nature and not necessary to the jurisdiction of the trial court.”

Some commentators have suggested that two subsequent Texas Supreme Court opinions implicitly overrule Street and Brazzel. See Stacy Obenhaus, It Ain’t Over ‘Til It’s Over: The Appellate Mandate in Texas Courts, The Appellate Advocate, Vol. XV, No. 4, at 7 & 7 n. 31 (Winter 2003) (stating same expressly); see also 6 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 46:5 (2nd Ed.1998) (citing to two opinions issued after Street and Brazzel to support statement that “[ojnce an opinion is issued, jurisdiction over the subject matter involved in the appeal remains in the appellate court until the mandate has issued by that court.”). We disagree.

The first opinion cited as having implicitly overruled Street and Brazzel is Robertson v. Ranger Insurance Co., 689 S.W.2d 209 (Tex.1985). In Robertson—which mentioned neither Street nor Brazzel—the court held void a post-settlement consent judgment that the trial court rendered while a rehearing motion in the same cause was still pending before the Texas Supreme Court. Id. at 210. The Robertson court held that “[t]he trial court had no power to change or [to] modify its judgment once an appeal had been taken ...” and that the consent judgment was void for its having been rendered while the Texas Supreme Court still “had exclusive plenary jurisdiction over the case” by virtue of the rehearing motion’s pendency. Id. Robertson, however, did not involve the issue of whether a trial court had jurisdiction to render a judgment after the appellate court had issued its judgment and the appellate court’s plenary power had expired.

We likewise distinguish the second opinion sometimes cited as having implicitly overruled Street and Brazzel: In re Long, 984 S.W.2d 623 (Tex.1999) (orig.proceeding). Like Robertson, In re Long does not mention Street or Brazzel. In Long, the district clerk sought mandamus relief from a judgment of contempt for his having collected fees in contravention of a trial-court injunction. Id. at 624. The trial-court had rendered judgment enjoining the clerk from collecting certain fees, and both parties had appealed. Id. The appellate court modified the judgment, affirmed the judgment as modified, and overruled the parties’ rehearing motions on July 11, 1994. Id. The clerk did not seek Texas Supreme Court review, but the other party did. Id. After the Texas Supreme Court had denied petition for review and rehearing on the petition, the court of appeals’s mandate issued on February 13, 1995. Id. The trial court then held the clerk in contempt for having collected the disputed fees from the date that the court of appeals had overruled the parties’ rehearing motions (July 11, 1994) through the date that the clerk had actually stopped collecting the fees (April 1, 1995). Id. The Texas Supreme Court granted mandamus relief for the contempt penalties assessed from the period of July 11, 1994 through the date that mandate had issued in the court of appeals (February 13, 1995). Id. at 624-25. The court held:

Absent an order to the contrary by the trial court or an appellate court, the Clerk could not be held in contempt for violating the injunction until all appeals relating to the judgment were exhausted and a mandate enforcing the judgment was issued.... [T]he clerk was not obligated to comply with the injunction until the appeals were final and mandate issued on February 13,1995.

Id. at 626.

The Long opinion stands for the proposition that a court official may not be required, through mandamus or otherwise, to enforce an appellate court judgment until the mandate has issued. That holding comports with the function of a mandate. “A mandate is the official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing it to have its judgment duly recognized, obeyed, and executed.” Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex.App.-Dallas 1992, orig. proceeding); accord In re Marriage of Grossnickle, 115 S.W.3d 238, 243 (Tex.App.-Texarkana 2003, no writ) (quoting Lewelling). The mandate has also been described as “a command of the court, which the' court is authorized to give and which must be obeyed.” Williams v. State, 899 S.W.2d 13, 15 (Tex.App.-San Antonio 1995, no writ); see Black’s Law DictionaRY at 980 (8th ed.2004) (defining “mandate” as “an order from an appellate court directing a lower court to take a specified action.”). The mandate is thus the means of enforcing the appellate court’s judgment. Accordingly, “[t]he writ of mandamus will issue to compel compliance with the mandate of the Court of Appeals.” Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex.App.-San Antonio 1984, no writ). Long is consistent with this line of authority because the court held that a court official could not be compelled by the extraordinary writ of mandamus to comply with an appellate decision for which mandate had not yet issued. However, Long does not concern whether a trial court has subject-matter jurisdiction voluntarily to comply with an appellate court’s judgment after the appellate court’s plenary power expires and all appeals have been exhausted, but before mandate issues. Accordingly, Long does not overrule Street or Brazzel.

Because no motions for rehearing or motions for extension of time to file rehearing were filed in the court of appeals, and because no petition for review was filed with the Texas Supreme Court, the appellate court lost jurisdiction, and the trial court generally regained its jurisdiction, no later than July 1, 2003, 60 days after the appellate court’s judgment issued. See Tex.R.App. P. 19.1(a). The trial court’s judgment upon remand issued after those dates, and that judgment did not actually interfere with the appellate court’s active power and authority over the cause. Accordingly, the trial court had subject-matter jurisdiction to render the judgment from which appeal is taken. See Street, 364 S.W.2d at 187-88; see also Brazzel, 481 S.W.2d at 803. Because the trial court had subject-matter jurisdiction to render its judgment, that judgment was not void. See id.

We overrule this challenge under Saudi’s issue.

Defamation

In the remainder of his issue, Saudi argues that the trial court erred in granting Brieven’s motion for summary judgment because Brieven did not carry his summary judgment burden of proving his qualified privilege.

A. Standard of Review and Burden of Proof

Brieven moved for traditional summary judgment. See Tex.R. Civ. P. 166a(e). Summary judgment under rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative defense. Id.

In our review, we indulge every reasonable inference in favor of the nonmovant, resolve any doubts in its favor, and take as true all evidence favorable to it. Id. When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

B. Qualified Privilege

To maintain a defamation cause of action, the plaintiff must prove that (1) the defendant published a false statement about the plaintiff; (2) the statement was defamatory concerning the plaintiff; and (3) the defendant acted with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). However, a qualified privilege to make a statement exists when “the person making the statement ... make[s] it in good faith on a subject matter in which the speaker has a common interest with the other person, or with reference to which the speaker has a duty to communicate to the other.” Grant v. Stop-N-Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874 (Tex.App.-Houston [1st Dist.] 1999, no pet.); accord E. Tex. Med. Ctr. Cancer Inst. v. Anderson, 991 S.W.2d 55, 60 (Tex.App.-Tyler 1998, pet. denied). The privilege does not apply if the information is furnished to others not sharing the common interest. See Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 898-99 (Tex.1970); Grant, 994 S.W.2d at 874.

The privilege is also defeated if the defendant makes the statement with actual malice. Grant, 994 S.W.2d at 874. “The privilege is abused if the statement is made with actual malice — that is, it is made with knowledge of its falsity or with reckless disregard as to its truth.” Grant, 994 S.W.2d at 874. “Malice ... cannot be inferred from falsity of the statement alone.” Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 200 (Tex.App.-Texarkana 1993, writ denied). “An uncon-troverted affidavit by the person publishing the statement that indicates the statement was not made with actual malice is sufficient to meet the burden to negate actual malice as a matter of law.” Assoc. Press v. Cook, 17 S.W.3d 447, 458 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Brieven had the burden to prove conclusively his affirmative defense of qualified privilege, including proving the lack of malice. See Cook, 17 S.W.3d at 458; Grant, 994 S.W.2d at 874; Martin, 860 S.W.2d at 199.

Brieven produced his affidavit, which is quoted in the opinion of the Fourteenth Court of Appeals, in support of his defense. See Saudi, 2003 WL 1989112, at *3. Saudi does not complain on appeal that Brieven’s affidavit testimony was concluso-ry, that it was incontrovertible, that it lacked foundation, or that it came from an interested witness, and he did not object to the testimony otherwise below or on appeal.

1. Common Interest

We agree with the Fourteenth Court of Appeals that Brieven’s affidavit carried his burden to show an “interlocking business relationship” among IBMS, American, and Industrial, so that Brieven’s statements both at the June 18,1998 meeting and in the September 1998 phone call were made only to those with a common business interest. See id. Additionally, Saudi’s affidavit evidence that was not struck supported Brieven’s testimony or at least did not raise a fact issue on common interest.

Saudi nonetheless responds that the trial court erred in rendering summary judgment because, in doing so, the court violated the law-of-the-case doctrine. “The ‘law of the case’ doctrine is that principle under which questions of law decided on appeal to a court of last resort will govern the ease throughout its subsequent stages.” Lee v. Lee, 44 S.W.3d 151, 153 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (quoting Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986)). A decision rendered in a prior appellate opinion in the same case does not absolutely bar reconsideration of the same issue on a second appeal if the issues and facts are not substantially the same in the subsequent proceeding. Hudson, 711 S.W.2d at 630. Similarly, if the appellate court’s prior decision is clearly erroneous, the subsequent court is not required to adhere to the ruling. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003). The doctrine’s application lies within the discretion of the trial court, depending on the particular circumstances of the case. Id.

Here, no one raised law of the case as a summary judgment ground or argument upon remand. Assuming without deciding that we can consider this argument despite its not having been raised below, we hold that the doctrine did not preclude the trial court from rendering judgment for Brieven. The doctrine does not apply if the pertinent facts are not substantially the same in the two proceedings. Hudson, 711 S.W.2d at 630. The pertinent facts are not substantially the same because, on remand, the trial court struck the sole evidence on which the Fourteenth Court of Appeals had held that a fact issue existed—a single statement in Saudi’s affidavit. See Saudi, 2003 WL 1989112, at *4-5. Without any controverting evidence upon remand, Brieven’s affidavit carried his burden. The law-of-the-case doctrine thus did not apply.

Accordingly, we reject Saudi’s argument that the trial court erred in rendering summary judgment because of the law-of-the-case doctrine.

2. Actual Malice

Saudi alternatively argues that Brieven’s qualified-privilege defense fails because Brieven’s defamatory statements were made with actual malice. Specifically, Saudi argues that “malice can be inferred where, as here, the false allegations are recklessly based wholly on an unverified anonymous informant.”

Brieven’s affidavit stated that he based his accusations concerning the unauthorized purchases on information from his own port engineer, Gilbert; that none of his statements was made with malice or ill will; that he raised his concerns “in good faith, based on [his] reasonable belief of the truthfulness of the information”; that he did not know any of the statements to have been false; and that he did not make any statements “with reckless disregard as to whether they were false.” Given that Saudi does not complain on appeal, and did not complain below, that Brieven’s affidavit was conclusory, came from an interested witness, lacked foundation, was incontrovertible, or was objectionable for any other reason on the issue of malice, this testimony sufficed to carry Brieven’s burden to disprove actual malice. See Cook, 17 S.W.3d at 458 (“An uncontroverted affidavit by the person publishing the statement that indicates the statement was not made with actual malice is sufficient to meet the burden to negate actual malice as a matter of law.”).

Additionally, Brieven did not rely “wholly on an unverified anonymous informant”; rather, the summary judgment evidence shows that he relied on information received by Gilbert, his own employee, and Brieven’s affidavit does not state that Gilbert’s information came from an “unverified anonymous informant.”

Accordingly, we hold that Brieven conclusively proved the lack of actual malice with respect to his qualified-privilege defense.

3. Evidentiary Rulings

We also hold that Saudi has not properly raised challenges to the trial court’s evidentiary rulings on- remand. Only the following statements from Saudi’s opening brief are pertinent to the trial court’s evidentiary, rulings: (1) “The trial court ... held that the affidavits of Saudi, Captain Violetta, and Emlyn Jones, were inadmissible hearsay. The Trial Court’s reasoning is flawed.”; (2) “Brieven’s defamatory statements which he made on June 18, 1998 ... are admissions - and (3) “All of Brieven’s defamatory statements qualify as admissions and were not hearsay.” His opening brief contains no authority or discussion whatsoever on the propriety of the evidentiary rulings, other than those few statements quoted. It is not until his reply brief that Saudi cites to any authority, and then he cites only to one rule: “In order to prevail on this appeal, Brieven must obtain a holding that admissions of a party opponent are hearsay. Brieven’s statements to either Saudi or other ... witnesses are not hearsay. ... See Tex.R. Evid. 801(e)(2).”

This is the entirety of Saudi’s analysis of the matter, and it does not suffice to raise a proper challenge. In the trial court, Brieven objected to two paragraphs in one of Saudi’s affidavits, to 11 paragraphs in two others, and to eight paragraphs in the fourth affidavit. Brieven objected on various grounds — hearsay, irrelevancy, lack of foundation or factual basis, mere opinion, speculation, conclusoriness, lack of personal knowledge, and the contradictory nature of certain allegations — to various portions of all four affidavits. The trial court sustained all of Brieven’s objections. Saudi offers no analysis of which specific rulings he challenges, does not explain to which portions of which affidavits his challenges relate, and offers no authority or even discussion of any basis for Brieven’s objections except for his one hearsay assertion. Given the paucity of Saudi’s briefing, the fact that he cited no authority until his reply brief, and the fact that he provides virtually no analysis on the portions of the struck affidavits that he challenges, we hold that he has waived any challenges to the trial court’s evidentiary rulings for lack of adequate briefing. See Tex.R.App. P. 38.1(h); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Moreover, with respect to Saudi’s party-opponent hearsay argument, we would overrule that challenge in any event: the few affidavit paragraphs to which that rule might be relevant were not excluded on the basis of hearsay.

We overrule the remainder of Saudi’s issue.

Conclusion

We affirm the judgment of the trial court.

      . Even if the law-of-the-case doctrine did not preclude adjudication of Saudi’s intentional-interference claim on remand, Saudi does not assert an appellate challenge pertinent to that portion of the judgment, and we thus affirm the judgment rendered on that claim without regard to the merits. See Garcia v. Nat’l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)); see also Hudson v. Wakefield, 711 S.W.2d 628 630 (Tex.1986).
      Because the Fourteenth Court of Appeals made no holding concerning Saudi’s IIED claim, reversed the entire summary judgment, and remanded the cause without limitation, that claim was before the trial court upon remand. See Hudson, 711 S.W.2d at 630-31. The trial court necessarily rendered summary judgment on that claim by granting Brieven’s motion. However, Saudi does not challenge on appeal the summary judgment rendered on his IIED claim. Accordingly, we affirm the trial court’s judgment to the extent that it disposed of Saudi’s IIED claim. See Garcia, 4 S.W.3d at 889.

        . See, e.g., Tex.R.App. P. 24.3 (concerning trial court's jurisdiction to perform certain acts relating to post-judgment security after trial court’s plenary power has expired).

      . See Tex.R. Civ. P. 442, 3 Tex. B.J. 595 (1940, amended 1943, 1977, & 1983, repealed 1986); Tex.R. Civ. P. 443, 3 Tex. B.J. 595 (1940, amended 1941, 1972, 1977, & 1980, repealed 1984); Tex.R. Civ. P. 444, 3 Tex. B.J. 595 (1940, repealed 1984); Tex.R. Civ. P. 445, 3 Tex. B.J. 595 (1940, amended 1977, repealed 1986).

      . See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341, 343 (Tex.1993) (limiting non-movant who did not raise grounds in summary judgment response to arguing on appeal that movant did not carry summary judgment burden).

      . We distinguish the authority that Saudi cites for the reasons indicated in the parenthetical to each case. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989) (noting that "reckless disregard for the truth” requires more than mere failure to investigate before publishing; holding that evidence supported finding of actual malice because of “purposeful avoidance of truth”); Amant v. Thompson, 390 U.S. 727, 732-33, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968) (finding no actual malice; noting, among other things, that failure to investigate does not by itself establish bad faith).

      . We need not reach Saudi’s appellate challenge concerning whether he suffered damages from Brieven’s alleged defamatory statements because Brieven did not move for summary judgment against Saudi’s defamation claims on this ground. We cannot affirm a summary judgment on a ground that the movant did not urge. See McConnell, 858 S.W.2d at 341, 343. Accordingly, any challenges concerning damages are irrelevant to our disposition.


author: EVELYN V. KEYES, Justice.

text:
    Obie Allen THOMPSON, Appellant, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-04-00082-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.
    Rehearing Overruled March 9, 2005.

      William B. Connolly, William B. Connolly & Associates, Houston, for Appellant.

      Francisca Aguirre-Saldana, Asst. County Atty., Houston, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES, Justice.

The father, Obie Allen Thompson, appeals the termination of his parental rights to his child, M.W.D. In three issues, the father challenges the legal and factual sufficiency of the evidence to sustain termination of his parental rights under sections 161.001 and 161.004 of the Family Code. We affirm.

Facts

M.W.D. was born in August 1995. In December 2002, the trial court entered a decree in the Texas Department of Protective and Regulatory Services’s (TDPRS’s) suit to terminate the parental rights of the biological mother and fathers in regard to M.W.D., D.L.M., and J.M.H. The trial court awarded managing conservatorship to TDPRS and possessory conservatorship of M.W.D. to the parents, but did not terminate the parents’ rights as to him. Instead, it ordered both the mother and the father to comply with a family service plan. Appellant, the father, was in prison at the time, having been sentenced in March 1998 to serve a 10-year sentence after violating the conditions of his community supervision for aggravated sexual assault by committing a robbery and failing to report to his probation officer. Before the father was incarcerated, at least one referral had been made to TDPRS alleging physical abuse of M.W.D.

The father’s plan required him to (1) participate in and complete parenting classes; (2) participate in and complete a substance abuse assessment and follow recommendations; (3) participate in random urinalysis if paroled out of prison; (4) participate in and complete anger management classes; (5) participate in sexual abuse counseling; (6) participate in sexual abuse perpetrators’ classes and/or sexual perpetrators’ group therapy; and (7) participate in and complete domestic violence perpetrators’ classes and/or domestic violence perpetrators’ group therapy. The decree specified that if these services were not available to the father in prison, or if the father was released from prison, TDPRS would provide those services that were “still required” to achieve the goal of family reunification. Regardless, the father was ordered to obtain these services.

The caseworker testified that she sent the father the family service plan, with a letter explaining it, and provided contact information. After the father signed and returned the plan, the caseworker sent him another letter advising him to mail information to her regarding his attempts to comply with the court’s order and service plan. The father sent one letter to the TDPRS caseworker in which he stated his intention to attend the appropriate classes, but he never contacted her again. Neither the caseworker nor the child advocate investigated whether the prison provided any of the classes the father was ordered to complete or whether he completed any of them.

In the year following the court’s decree, neither the mother nor the father complied with the family service plan, the father’s request for parole was denied, and the child showed improvement in his behavior while in therapeutic foster care. When TDPRS petitioned a second time to terminate parental rights in December 2003, the trial court terminated both parents’ rights and this appeal ensued. The mother has since abandoned the appeal; thus, we consider the termination only in regard to M.W.D., the father’s biological child.

Termination of Parental Rights

After an earlier petition to terminate parental rights has been denied, the trial court may terminate parental rights under section 161.004 of the Family Code, which provides:

(a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the date the order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.

Tex. Fam.Code Ann. § 161.004(a),(b) (Vernon 2002).

Subsection 161.004(a)(3) is satisfied by a finding by the court under section 161.001 of the Family Code, based on clear and convincing evidence, that, prior to an order denying termination,

(1) the parent has:
(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
(viii) Section 22.021 (aggravated sexual assault);
... .[or]
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservator-ship of the [TDPRS] for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child; [or]
(Q) knowingly engaged in criminal conduct that has resulted in the parent’s:
(I) conviction of an offense; and
(ii) confinement or imprisonment and liability to care for the child for not less than two years from the date of filing the petition;
... and
(2) that termination is in the best interest of the child.

Tex. Family Code Ann. § 161.001 (Vernon 2002).

In three issues on appeal, the father contends the evidence was legally and factually insufficient to show (1) that there was a previous ground for termination, (2) that there was a material and substantial change of circumstance, and (3) that he did not comply with the court’s order establishing the actions necessary for him to obtain the return of M.W.D.

Standard of Review

In all proceedings to terminate the parent-child relationship, the State bears the burden to prove its case by clear and convincing evidence. See In re G.M., 596 S.W.2d 846, 847 (Tex.1980). On appeal, we must determine whether the evidence was such that a fact-finder could reasonably have formed a firm belief or conviction about the truth of the State’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.2002).

We review the evidence in the light most favorable to the trial court’s ruling to determine whether it is legally sufficient. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). To determine whether the evidence is factually sufficient, we consider whether, in light of the entire record, the disputed evidence is so significant that the fact-finder could not reasonably have formed a firm belief or conviction about the truth of the allegations. Id. at 266-67.

Grounds for Appeal

As a threshold matter, we reject the father’s argument that the trial court’s only basis for termination was under Family Code section 161.001(1)(O) because this was the only ground for termination recited in the judgment. See Tex. Family Code § 161.001(1)(O)(parent failed to comply with provision of court order establishing actions necessary to parent to obtain return of child).

Findings of fact and conclusions of law shall not be recited in a judgment and, if they are, they cannot form the basis of a claim on appeal. See Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d). Thus, the recitation in the judgment that the father failed to comply with the family service plan cannot be the basis of the father’s appeal; rather, the basis of the appeal is the insufficiency of the evidence to support the trial court’s judgment. When, as here, the trial court makes no findings of fact, we presume the trial court made all the findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). If any legal theory is supported by the judgment, we must affirm. Id.; Frommer, 981 S.W.2d at 814. Therefore, we must determine whether the evidence was legally and factually sufficient to support the judgment terminating the father’s parental rights.

Sufficiency of the Evidence

The second petition was filed a year after the order denying termination was rendered, thus the first statutory element for termination under section 161.004 of the Family Code is satisfied. See Tex. Fam.Code Ann. § 161.004(a)(1) (petition must be filed after rendition of order denying termination). The father was convicted of aggravated sexual assault under section 22.021 of the Penal Code; thus the third statutory element is satisfied. See Tex. Fam.Code Ann. § 161.001(L)(viii) (enumerating acts committed by a parent that would allow involuntary termination of parental rights, including conviction for aggravated sexual assault); see also § 161.004(a)(3) (requiring proof that parent committed act enumerated under section 161.001 before order denying termination was rendered). We thus examine the evidence of the remaining elements identified in section 161.004 — whether there has been a material and substantial change in circumstance and whether termination is in the child’s best interest — to determine whether the evidence was legally and factually sufficient to terminate the father’s parental rights.

Material & Substantial Change in Circumstances

Although the father contends there have been no material and substantial changes in circumstances since the original petition was denied, the record shows that there have been such changes to the circumstances of the father, the mother, and the child — all of which are relevant under the statute. See Tex. Fam. Code Ann. § 161.004(a) (specifying that circumstances may change as to child, parent, or “any other party” affected). The mother has been unable to follow the service plan, and her rights have been terminated. The change in the mother’s circumstances is relevant to the child’s circumstances because there is now no possibility of the child and both parents being reunited in a suitable home. It is also relevant because, as the father is in prison, he is in no position to care for the child without the mother, and he has provided no evidence that other family members can and will care for the child. Although incarceration alone will not support a termination of parental rights, the Family Code provides that termination may result if the court finds that a parent knowingly engaged in criminal conduct that resulted in conviction and confinement for more than two years and an inability to care for the child. See Tex. Fam.Code Ann. § 161.001(1)(Q); In re Caballero, 53 S.W.3d 391, 395 (Tex.App.-Amarillo 2001, pet. denied).

Here, the father violated the terms of his community supervision, resulting in his imprisonment for more than two years for his original offense, beginning in March 1998. In addition, the father’s application for parole has been rejected; thus, his imprisonment extended beyond two years for that offense. By looking at future imprisonment and inability to care for the child, Family Code subsection 161.001(1)(Q) protects children whose parents will be incarcerated for periods exceeding two years after termination proceedings begin; thus, we apply this statute prospectively. Tex. Fam.Code Ann. § 161.001(1)(Q); see also In re A.V., 113 S.W.3d 355, 361 (Tex.2003).

Although the father suggests in his reply brief that he was under no obligation to make arrangements for his child because the child is in TDPRS con-servatorship, nothing in the statute relieved him of his responsibility to make arrangements for his child merely because he was in prison and the child was in TDPRS conservatorship; nor does this fact alter the fact that family circumstances have changed, including termination of M.W.D.’s mother’s parental rights. M.W.D.’s progress in foster care is also a change in circumstance because it has readied him for a more permanent placement.

Finally, the record shows that the father has not complied with his service plan. The court’s order appointing him possessory conservator and establishing a family service plan for him plainly placed the burden on the father to participate in and complete parenting classes; participate in and complete a substance abuse assessment and follow recommendations; participate in random urinalysis if paroled out of prison; participate in and complete anger management classes; participate in sexual abuse counseling; participate in sexual abuse perpetrators’ classes and/or sexual perpetrators’ group therapy; and participate in and complete domestic violence perpetrators’ classes and/or domestic violence perpetrators’ group therapy. Although the father argues on appeal that the agency did not investigate whether the classes were available or otherwise determine whether he complied with his service plan, the trial court’s order plainly placed the burden on him to comply with the order, whether or not he was incarcerated; it did not place the burden on the TDPRS to ensure his compliance.

In a similar case, the Amarillo court refused to place the burden on TDPRS to disprove the existence of anyone with whom defendant’s child could be placed during his incarceration because adopting such a rule would place an unreasonable burden on the agency and judicial resources. See Caballero, 53 S.W.3d at 396 (“The better reasoned rule is that once the Department has established a parent’s knowing criminal conduct resulting in their incarceration for more than two years, the parent must produce some evidence as to how the parent would provide or arrange to provide care for the child during that period. When that burden of production is met, the Department would have the burden of persuasion that the arrangement would not satisfy the parent’s duty to the child.”).

We agree with the Amarillo court’s logic and consider it analogous here. See id. To require TDPRS to continually inquire as to a prisoner’s efforts and accomplishments in regard to a service plan is not reasonable. Once the caseworker and child advocate testified that the father had not contacted the agency or provided any evidence of his compliance with the service plan, it became his burden to rebut this evidence. As he did not, the evidence of his noncompliance was sufficient.

Because each of the conditions with which the father failed to comply was a condition precedent to maintaining posses-sory conservatorship imposed by the court’s December 2002 decree denying termination of parental rights at that time, the evidence that the father did not comply with the court-ordered plan is necessarily indicative of a change in circumstance between the time the prior order was entered and the time this suit was filed seeking termination of appellant’s parental rights after denial of the prior petition to terminate. See Tex. Family Code Ann. § 161.004(a)(2). Before the court imposed the service plan in its December 2002 decree, the father had no obligation to undertake these corrective steps. We hold that TDPRS met its burden to prove by clear and convincing evidence that circumstances had materially and substantially changed in regard to the entire family during the year following the original order denying termination and the second order terminating the father’s parental rights.

Best Interest of the Child

Without actually addressing any particulars regarding the child’s best interest, the father simply contends that no evidence was presented, other than some improvement in the child’s behavior, to show that termination was in the child’s best interest. We cannot agree.

In Holley v. Adams, the Texas Supreme Court identified several factors to be used to determine what is in a child’s best interest. 544 S.W.2d 367, 372 (Tex.1976). While these factors are neither exclusive nor exhaustive, they are certainly instructive, and include: the child’s desires; the child’s current and future emotional and physical needs; current and future physical and emotional danger to the child; the parental abilities of persons seeking custody; programs available to assist those persons seeking custody; plans for the child; the stability of the child’s placement; the parent’s acts or omissions indicating that the parent-child relationship is not a proper one; and any excuse for the parent’s acts or omissions. Id.

Here, the child has been in foster care since he was two years old, and is still at a young enough age where adoption is more feasible. The State urges this Court to conclude that termination was in the child’s best interest because it contends that (1) the father’s criminal acts jeopardized M.W.D.’s well being; (2) his failure to comply with the service plan shows the parent-child relationship is not proper; (3) there are no programs that can prevent the father from committing criminal acts in the future or force him to comply with the service plan; (4) there is no evidence that the father was involved in the child’s life before he went to prison or evidence that the child knows or asks about his father; (6) the child is happy and adjusting well in foster care; (7).because he has attention-deficit disorder, the child has special needs that the father cannot address; and (8) the father has done nothing while in prison to provide financial or emotional support to the child or to make arrangements for his continued care. We conclude, based on Holley, that, given the child’s current and future emotional and physical needs, the father’s incarceration, lack of parenting skills, and noncompliance with the service plan, the child’s special needs, and the stability of the child’s placement, TDPRS met its burden, and the trial court did not err in determining that termination was in the child’s best interest.

When we view all of the foregoing evidence in the light most favorable to the trial court’s ruling, we conclude that the evidence was such that a fact-finder could have reasonably formed a firm belief or conviction about the truth of the State’s allegations. Thus, the evidence was legally sufficient to sustain the termination.

When we view the record as a whole, as required in a factual-sufficiency review, we can only reach the same conclusion as to the factual sufficiency of the evidence, primarily because the father did not present any controverting evidence — he simply relied on his assertion that TDPRS had a duty to inquire as to whether he complied with the service plan, an assertion we have rejected. We therefore hold that the evidence was factually sufficient to sustain termination of the father’s parental rights.

Conclusion

We overrule all issues presented.

We affirm the trial court’s judgment.

      . "A reference in law to the Department of Protective and Regulatory Services means the Department of Family and Protective Services.” Act of June 1, 2003, 78th Leg., R.S., § 1.27, 2003 Tex. Gen. Laws 611, 641.

      . Appellant is not the biological father or either D.L.M. or J.M.H., and no appeal has been brought in regard to these children.

      . Contraiy to the father’s assertion, the fact that potential adoptive parents have not yet been identified is not a controlling factor. See Holley v. Adams, 544 S.W.2d 367, 371 (Tex.1976) (noting that lack of evidence about specific adoption plans not determinative of child’s best interest).