author: ANN CRAWFORD McCLURE, Justice.

text:
    In re KYOCERA WIRELESS CORPORATION, Relator.
    No. 08-04-00348-CV.
    Court of Appeals of Texas, El Paso.
    April 12, 2005.

      Ken Slavin, Kemp Smith, P.C., El Paso, for Relator.
    John R. Jones, Delgado Acosta Braden Jones PC, Houston, interested party for Hecmma, Inc.
    William B. Hardie, Jr., El Paso, for Plaintiff.
    Before BARAJAS, C.J., McCLURE, and LARSEN, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

At issue in this mandamus proceeding is the enforceability of a forum-selection clause in a contract between a Texas defendant/third party plaintiff and a California third party defendant. Because we conclude the clause is enforceable, we conditionally grant relief.

FACTUAL SUMMARY

In 2003, Kyocera Wireless Corporation entered into a business relationship with Hecmma, Inc. to assemble battery packs for Kyocera cellular telephones. Hecmma is an electronics manufacturing services company which performs different types of assembly processes. It assembles component parts obtained from twenty vendors into several different models of batteries used in Kyocera phones. As part of its normal product development process, Kyocera’s engineering department evaluated various suppliers of battery pack components, including battery cells, and it included Coslight USA, Inc. on the list of approved suppliers of battery cells. Between April 2003 and May 2004, Kyocera issued fifty-nine purchase orders to Hecm-ma for battery packs used in Kyocera phones. Because of Hecmma’s tight financial condition, Kyocera agreed to pay the purchase orders “net 10” rather than the customary “net 30” or “net 60,” meaning that Kyocera paid Hecmma a mere ten days after receiving a shipment. Although Kyocera paid approximately forty of the fifty-nine purchase orders, it refused to pay the rest. Hecmma contends Kyocera refused to pay the outstanding invoices due to battery pack failures. These defective battery packs were shipped back to Hecmma.

Each purchase order issued by Kyocera contained a forum-selection clause providing that all disputes arising in connection with the agreement would be governed by California law and heard only by a court of competent jurisdiction in San Diego County, California. Kyocera has a manufacturing plant in San Diego and its principal place of business is in San Diego. Hecm-ma is a Texas Corporation with its principal place of business in El Paso. Through a subcontractor, the company has access to manufacturing facilities in Cuidad Juarez, Mexico.

In July 2003, Hecmma began production of the Model 7135 cellular phone battery packs for Kyocera. According to Hecmma’s executive vice-president, Manuel Rivera, Kyocera specified Coslight as the supplier of the cell. In October 2003, Kyocera notified the United States Consumer Product Safety Commission of a safety issue with the Model 7135 battery packs. In January 2004, Kyocera initiated a voluntary recall of 140,000 defective battery packs. Following an internal investigation and independent testing performed by Motorola Product Test Services, Kyocera concluded that the battery pack failures resulted from defective battery cells provided by Coslight. Coslight refused to accept responsibility and insisted that the batteries failed due to a defect in the design of Kyocera’s phones. Kyoc-era then asked Hecmma to assist with the recall. Hecmma agreed to allow Kyocera to offset its payments to Hecmma by $25,000 per week to cover the costs of the recall. In March 2004, Kyocera returned about 37,000 of the Model 7135 battery packs to Hecmma. Hecmma claims that Kyocera instructed it to stop using Cos-light battery cells and to refuse payment on the outstanding amounts Hecmma owed to Coslight.

On April 13, 2004, Coslight filed suit against Hecmma in El Paso County for breach of contract, alleging that Hecmma failed to pay invoices associated with a number of purchase orders issued in 2003. In May, Kyocera returned an additional 18,000 Model 7135 battery packs to Hecm-ma and ended its business relationship with the company. On May 28, Hecmma answered Coslight’s suit and filed a third party petition against Kyocera alleging breach of contract. Hecmma later amended its pleadings against Kyocera to add causes of action based on misappropriation of trade secrets/unfair competition, fraud/misrepresentation, and indemnity/contribution. On June 17, 2004, Kyoc-era filed a motion to dismiss Hecmma’s suit based on the forum-selection clause contained in the purchase orders. It also contended that it had been improperly joined in the action. In July 2004, Kyoc-era filed suit against Hecmma in United States District Court in San Diego but the parties agreed to stay that litigation until November 30, 2004 in order to give the Texas court an opportunity to rule on Kyocera’s motion to dismiss. Following a hearing, the trial court denied Kyocera’s motion to dismiss without specifying the basis for its ruling. Kyocera filed a petition seeking a writ of mandamus requiring the trial judge to dismiss Hecmma’s suit against it.

FORUM-SELECTION CLAUSE

Kyocera contends it is entitled to mandamus relief because: (1) Hecmma did not carry its burden of showing that the forum-selection clause is unenforceable and (2) Kyocera does not have an adequate remedy by appeal.

Standard of Review

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id. An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proceeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for .that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986)(orig.pro-ceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989), quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, § 1.4(l)(b) at 47 (2d Ed.1979).

Enforceability of Forum-Selection Clauses

Forum-selection clauses have been historically disfavored. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). Courts generally declined to enforce these clauses on the ground they were “contrary to public policy” or because they had the effect of “oust[ing] the jurisdiction” of the court. See id. In Zapata, however, the Supreme Court found these concerns to be unjustified and enforced a forum-selection clause. Zapata, a Houston-based American corporation, had contracted with Un-terweser, a German corporation, to tow Zapata’s ocean-going drilling rig from Louisiana to a point off Ravenna, Italy, where Zapata agreed to drill certain wells. Id., 407 U.S. at 2, 92 S.Ct. at 1909. The towage contract negotiated by the parties contained a forum-selection clause which provided that any dispute would be heard by the London Court of Justice. Id. Un-terweser’s deep sea tug departed from Louisiana with the rig but it was damaged in a severe storm in the Gulf of Mexico. Id., 407 U.S. at 3, 92 S.Ct. at 1910. Zapata instructed the tug to tow the damaged rig to Tampa, Florida, the nearest port. Id. Rather than filing suit in the London Court of Justice, Zapata filed suit in admiralty in the United States District Court at Tampa. Id., 407 U.S. at 3-4, 92 S.Ct. at 1910. Unterweser moved to dismiss based on the forum-selection clause. Id., 407 U.S. at 4, 92 S.Ct. at 1910. At the same time, Unterweser commenced an action in the High Court of Justice in London as provided by the contract. Id. The trial court denied Unterweser’s motion to dismiss and the court of appeals affirmed. Id. 407 U.S. at 6, 92 S.Ct. at 1911.

Noting the expansion of overseas commercial activities by United States companies and eschewing the parochial concept that all disputes must be decided under our laws and by our courts, the Supreme Court held that forum-selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances. Id., 407 U.S. at 10, 92 S.Ct. at 1913. Enforcement is unreasonable where there is evidence of fraud, undue influence, or “overweening bargaining power.” Id., 407 U.S. at 12, 92 S.Ct. at 1914. A clause might also be invalid if its enforcement would contravene a strong public policy of the forum in which suit was brought, or when the contractually selected forum would be seriously inconvenient for trial. Id., 407 U.S. at 15, 92 S.Ct. at 1916. It is incumbent on the party seeking to avoid the forum-selection clause to demonstrate that trial in the contractual forum would be so gravely difficult and inconvenient that it would for all practical purposes be deprived of its day in court. Id., 407 U.S. at 18, 92 S.Ct. at 1917. The party seeking to avoid the forum-selection clause bears a heavy burden of proof. Id., 407 U.S. at 17, 92 S.Ct. at 1917. But the court added that a claim of inconvenience will not render a forum clause unenforceable where the clause is found in a freely-negotiated private international commercial contract. Id., 407 U.S. at 16, 92 S.Ct. at 1916-17. A claim of serious inconvenience of the contractual forum might carry greater weight when dealing with a contract between two Americans to resolve their essentially local disputes in a remote alien forum. Id., 407 U.S. at 17, 92 S.Ct. at 1917. In such a case, the remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement; yet even there the party claiming inconvenience bears a heavy burden of proof. Id. In upholding this particular forum-selection clause, the court observed that the choice of forum was made in an arm’s length negotiation by experienced and sophisticated businessmen. Id., 407 U.S. at 12, 92 S.Ct. at 1914. Such a clause eliminates uncertainties and provides a neutral forum for the resolution of disputes. Id., 407 U.S. at 13, 92 S.Ct. at 1914-15.

In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the Supreme Court considered the validity of a forum-selection clause found in a form contract. The Shutes, residents of Washington, purchased tickets through a Washington travel agent for a cruise from Los Angeles to Mexico. Id., 499 U.S. at 587, 111 S.Ct. at 1524. The travel agent forwarded payment to Carnival at its Florida headquarters and Carnival mailed the tickets to the Shutes. Id. The tickets contained a forum-selection clause designating Florida as the forum for resolution of any disputes. Id. Mrs. Shute was injured during the cruise while the ship was in international waters and the Shutes brought a negligence suit against Carnival in Washington. Id., 499 U.S. at 588, 111 S.Ct. at 1524. Carnival moved for summary judgment, contending that the forum-selection clause required the Shutes to bring suit in Florida, and alternatively, that the district court lacked personal jurisdiction because Carnival had insufficient contacts with Washington. Id. The district court granted summary judgment on the jurisdictional argument. The court of appeals reversed, holding that the forum-selection clause should not be enforced because the Shutes were not business savvy people and the clause was not freely negotiated. Id. 499 U.S. at 588-89, 111 S.Ct. at 1525. The court concluded that the Shutes were physically and financially incapable of pursuing litigation in Florida. Id., 499 U.S. at 589, 111 S.Ct. at 1525.

The Supreme Court rejected the notion that a non-negotiated clause in a form contract is never enforceable simply because it is not the subject of bargaining. Id., 499 U.S. at 593, 111 S.Ct. at 1527. A forum-selection clause is not per se invalid simply because it is found in a form contract. See id. The issue is whether the clause is reasonable. See id. The Supreme Court did not accept the court of appeals’ conclusory reference to the inconvenience and financial problems created by litigating the action in Florida and held that the Shutes had failed to carry the heavy burden of proof required to set aside the clause on grounds of inconvenience. Id., 499 U.S. at 594-95, 111 S.Ct. at 1528. A forum-selection clause found in a form contract is subject to judicial scrutiny for fundamental fairness, but there was no evidence that Florida was chosen to discourage pursuit of legitimate claims and any suggestion of bad faith was allayed by the fact that Florida is Carnival’s principal place of business. Id., 499 U.S. at 595, 111 S.Ct. at 1528. The court also concluded that there was no evidence the clause was obtained by fraud or overreaching. Id. Noting that Florida was not a “remote alien forum” and the dispute was not an “essentially local one,” the court enforced the forum-selection clause because the Shutes did not satisfy the heavy burden of proof required to set aside the clause on grounds of inconvenience. Id., 499 U.S. at 594-95, 111 S.Ct. at 1528.

In 2004, the Texas Supreme Court adopted the Zapata-Camival test in the context of a mandamus proceeding. See In re AIU Insurance Company, 148 S.W.3d 109, 111 (Tex.2004). There, the Louis Dreyfus Corporation, which had its offices in New York, obtained pollution insurance from AIU Insurance for itself and its subsidiaries, including Dreyfus Natural Gas. AIU, 148 S.W.3d at 111. AIU is a New York Corporation with its principal place of business in New York. Id. The insurance policy contained a forum-selection clause by which the parties agreed that all disputes would be resolved in the State of New York. Id. Dreyfus Natural Gas is a Delaware corporation with its principal place of business in Texas. Id. Dreyfus merged with a company which had a contamination suit pending in Hidalgo County Texas prior to issuance of the policy, and Dreyfus was added as a defendant. Id. AIU provided a defense under a reservation of rights and disputed coverage. Id. Dreyfus sued AIU in Hidal-go County for a declaratory judgment that the environmental contamination claims against it were covered. Id. AIU sued for declaratory judgment in New York and moved to dismiss the Texas suit based on the insurance policy’s forum-selection clause. Id. Dreyfus opposed the motion to dismiss because most of the witnesses lived in Texas, the action involved the application of Texas insurance law, and Texas had a strong public interest in having the insurance coverage rates litigated in Texas and the proceeds distributed in Texas. Id. The Hidalgo County trial court denied the motion to dismiss and the court of appeals denied mandamus relief. Id. Applying the Zapata-Camival test, the Supreme Court held that Dreyfus failed to meet its heavy burden of proof to “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Id. at 112-13, quoting Zapata, 407 U.S. at 15, 92 S.Ct. 1907. New York is not a “remote alien forum”; it was foreseeable to Dreyfus that a subsidiary would be required to litigate in New York; and litigation in New York did not deny Dreyfus its day in court. Id. at 113-14. Additionally, the Texas Insurance Code does not require that actions be litigated only in Texas. Id. at 114. In the absence of evidence of fraud or overreaching, or that AIU or Dreyfus chose New York as a means of discouraging claims, the court concluded that the trial court abused its discretion in not enforcing the forum-selection clause. Id. at 114-15. The Supreme Court also determined that AIU did not have an adequate remedy by appeal, and therefore, mandamus relief was available. Id. at 115.

Three months later, the Texas Supreme Court enforced another forum-selection clause, holding that enforcement is mandatory unless the opposing party clearly demonstrates that enforcement would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching. In re Automated Collection Technologies, 156 S.W.3d 557 (Tex. 2004). Professional Systems Corporation (PSC), a Pennsylvania corporation, filed suit in Texas against Automated Collection Technologies, Inc., a Texas corporation, for failure to pay for services rendered pursuant to a written contract. Id. 156 S.W.3d at 558-59. The contract designated Pennsylvania as the forum for resolutions of disputes arising out of or related to the contract. Id. Automated answered and filed counterclaims for declaratory judgment, fraudulent inducement, breach of contract, negligence, and attorney’s fees. Id. Automated also sought discovery from PSC. Id. Although it had been sued in its home state, Automated sought dismissal of the suit pursuant to the forum-selection clause. Id. PSC opposed enforcement of the forum-selection clause and argued that Automated had waived enforcement by seeking affirmative relief and by participating in the Texas litigation. Id. Neither party introduced evidence at the dismissal hearing and the trial court denied relief. Id. The Supreme Court held that Automated did not waive enforcement of the forum-selection clause by seeking affirmative relief or by participating in the litigation. Id. 156 S.W.3d at 559-60. Because PSC did not offer any evidence showing that enforcement of the forum-selection clause would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching, enforcement was mandatory. Id. 156 S.W.3d at 559-60.

Hecmma’s Arguments

Hecmma offers four reasons why the forum-selection clause should not be enforced: (1) it is unenforceable because Hecmma received the written purchase orders after it had already begun work on a particular order it had received electronically; (2) it is unenforceable due to inconvenience; (3) enforcement is contrary to public policy; and (4) the clause is inapplicable because Kyocera was joined as a third-party defendant and venue is determined exclusively by the Texas venue statute.

Was the Forum-Selection Clause Conspicuous?

Hecmma first argues that Kyocera placed orders for the battery packs by telephone or electronically. Hecmma would then begin performing the work before it actually received the written purchase order. We understand Hecmma to argue that it did not accept the terms and conditions stated on the written purchase order and the forum-selection clause was not conspicuous.

Loren Lee Lasche, Kyocera’s Director of Procurement, testified that placing an order with Hecmma electronically or by telephone is the first step in the purchase order release process. At the same time an electronic order is created, the system instantaneously prints a hard copy which is immediately mailed to Hecmma. The hard copy of the purchase order contains the terms and conditions of the transaction. These terms and conditions are standard and remained the same throughout Kyocera’s dealings with Hecmma. The front of each purchase order sent to Hecmma states in bold capital letters:

ALT. DELIVERIES AND PERFORMANCE UNDER THIS PURCHASE ORDER SHALL BE GOVERNED BY KWC STANDARD PURCHASE ORDER TERMS AND CONDITIONS PRINTED ON REVERSE.

Paragraph 1 of the purchase order expressly states that the terms and conditions apply to any Kyocera purchase order issued to Hecmma. The forum-selection clause is found in Paragraph 15, the heading of which states “Applicable Law.” Kyocera sent Hecmma fifty-nine purchase orders, each containing the identical terms and conditions, including the forum-selection clause. According to Lasche, Hecm-ma did not protest the terms and conditions or notify Kyocera that it did not wish to be bound by them.

A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognize the existence of such a contract. Tex.Bus. ⅛ Comm.Code Ann. § 2.204(a)(Vernon 1994); Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 771 (Tex.App.-Corpus Christi 2001, no pet.). Where a sale of goods is between merchants, a written confirmation sent by a party within a reasonable time after an order is placed satisfies the statute of frauds. Tex.Bus. & Comm.Code Ann. § 2.201(b)(Vernon 1994). If the receiving party has reason to know the contents of the written confirmation and does not object to the contents within ten days after it is received, the contract terms set forth in the written confirmation are enforceable. TexJBus. & Comm.Code Ann. § 2.201(b). Because Hecmma admittedly received the purchase orders but never objected to the terms and conditions, Hecmma accepted the forum-selection clause.

Hecmma has not cited any authority for its argument that the forum-selection clause must be conspicuous. Section 35.53 of the Texas Business and Commerce Code requires forum-selection clauses to be conspicuous, but only where the contract is for the sale, lease, exchange, or other disposition for value of goods for the price, rental, or other consideration of $50,000 or less. Tex.Bus. & Com. Code Ann. § 35.53(a)(Vernon 2002). The mandamus record contains only one purchase order and it is in the amount of $250,680.98.

Inconvenience of the Forum

Alleging that the witnesses, facilities, and the inventory are located in El Paso and Cuidad Juarez, Hecmma next argues that the clause should not be enforced due to inconvenience. Hecmma attached the affidavit of Manuel Rivera, its executive vice-president, to its response to the motion to dismiss. Rivera testified that all Hecmma employees, persons with knowledge of relevant facts, and its potential witnesses reside and work in either El Paso or Cuidad Juarez. But California is not a “remote alien forum” and the dispute is not essentially a local one given that Hecmma purchased the battery cells from Coslight, a California corporation, assembled the battery packs in Cuidad Juarez, and shipped them to Kyocera in California. Under these circumstances, Hecmma bears a heavy burden to prove that the forum-selection clause should not be enforced on grounds of serious inconvenience. While Hecmma established that its employees and potential witnesses reside in the El Paso area, it did not prove that it would be seriously inconvenient to pursue litigation in San Diego County. Essentially bare allegations of inconvenience are insufficient to satisfy its burden. See Carnival, 499 U.S. at 594, 111 S.Ct. at 1527-28; Automated, 156 S.W.3d 557, 2004 WL 2754650 at *2.

Public Policy

Hecmma also contends that enforcement of the forum-selection clause is contrary to public policy because Texas has an interest in ensuring that defective batteries do not reach Texas consumers. Rivera’s affidavit states that in July 2004, representatives from Hecmma met with investigators from the United States Consumer Product Safety Commission and the Product Safety Division of the Texas Department of Health regarding the initial recall of the defective battery packs. Hecmma is cooperating with the investigation and has allowed the CPSC to tom.' its production facility and take sample batteries from storage in Cuidad Juarez. Hecm-ma has agreed in writing not to sell, distribute, or destroy any of the batteries sampled by the CPSC until the investigation is complete. There is no evidence that Texas consumers are more affected by the safety issue than other consumers, and Hecmma does not explain how litigating its claims against Kyocera in Texas will provide more protection to Texas consumers than if the matter is litigated in California.

The Texas Venue Statute

Finally, Hecmma contends that the forum-selection clause is inapplicable because Kyocera is a third-party defendant and Section 15.062 of the Texas Civil Practice and Remedies Code determines venue. Hecmma argues that Kyocera was properly joined and its claim against Kyoc-era arises out of the subject matter of Coslight’s claim against Hecmma. Hecm-ma maintains that Kyocera is a necessary and indispensable party whose absence will subject Hecmma to inconsistent obligations. To the extent Hecmma argues that a venue statute will always trump a forum-selection clause, we disagree. If that were true, forum-selection clauses would seldom be enforceable.

Section 15.062 provides:

(a) Venue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute.
(b) If an original defendant properly joins a third-party defendant, venue shall be proper for a claim arising out of the same transaction, occurrence, or series of transactions or occurrences by the plaintiff against the third-party defendant if the claim arises out of the subject matter of the plaintiffs claim against the original defendant.

Tex.Civ.PRAc. & Rem.Code Ann. § 15.062 (Vernon 2002). Application of the statute is dependent upon whether the third-party claim against Kyocera was properly joined. If not, Hecmma’s argument fails and the forum-selection clause must be enforced. Rule 38 of the Texas Civil Procedure provides, in relevant part, that:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiffs claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. •... Any party may move to strike the third-party claim, or for its severance or separate trial.

Tex.R.Civ.P. 38.

Coslight’s pleadings allege that Hecmma failed to pay invoices for battery cells shipped between May 2003 and December 2003. It also seeks damages for cancellation of a purchase order in December 2003. Hecmma alleges in its third-party action that Kyocera terminated their business relationship in May 2004 and refused to accept shipment of battery packs subject to pending purchase orders. The petition also alleges that Kyocera refused to pay invoices in excess of $1 million. The evidence shows that Kyocera paid approximately forty of the fifty-nine purchase orders issued to Hecmma, but had refused to pay the remainder.

There is no evidence that Kyocera is liable for all or even part of Coslight’s claim against Hecmma for the unpaid purchase orders in 2003. Hecmma has not shown that Coslight’s claim is related to Hecmma’s claims against Kyocera. Hecm-ma offered no evidence that Kyocera’s unpaid purchase orders were for battery packs containing Coslight cells. Rivera’s affidavit stated that Hecmma produced a number of different battery packs for Kyocera using components obtained from a number of suppliers, including Coslight. Kyocera paid Hecmma for the majority of the fifty-nine purchase orders issued between April 2003 and May 2004, and allegedly owes $1 million on the .remaining nineteen. Coslight is suing Hecmma for $2,369,262.50 in outstanding invoices related to purchase orders issued in 2003. There is no evidence that Kyocera failed to pay any purchase orders issued in 2003.

Hecmma’s claim that Kyocera instructed it not to pay Coslight does not render Kyocera liable for Hecmma’s failure to pay its 2003 purchase orders under the indemnity/contribution theories relied on by Hecmma in its petition. Hecmma relies on Sections 33.013 and 82.002(a) of the Texas Civil Practice and Remedies Code as a basis for its contribution claim. But because Coslight asserts only a contract claim against Hecmma, the proportionate responsibility scheme found in Section 33.013 is inapplicable. See Tex.Civ.Prac. & Rem.Code Ann. § 33.013(a)(Vernon Supp. 2004-05) (chapter 33 applies to tort actions). Section 82.002(a) requires a manufacturer to indemnify a seller against loss in a products liability action. See Tex.Civ. PRAC. & Rem.Code Ann. § 82.002(a) (Vernon 1997). Coslight has not brought a products liability action against Hecmma. Hecmma also alleges a common law indemnity claim against Kyocera, but its contractual relationship with Kyocera does not support a claim for common law indemnity. See Astra Oil Co. v. Diamond Shamrock Refining, 89 S.W.3d 702, 706 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Inasmuch as Hecmma failed to show that Kyocera is liable for any of Coslight’s claims against Hecmma, the third-party action against Kyocera was improperly joined and Section 15.062 is inapplicable.

Because Hecmma failed to prove that the forum-selection clause is invalid and unenforceable, the trial court clearly abused its discretion by failing to dismiss Hecmma’s suit against Kyocera. We conditionally grant the writ of mandamus. The writ will not issue unless the trial court fails to withdraw its prior order and dismiss the third party suit against Kyoc-era.

LARSEN, J., sitting by assignment.

      . Coslight is a California corporation with its principal place of business in Alhambra, California. Its parent company is Coslight International Group of Hong Kong.

      . The battery packs malfunctioned and some exploded, harming consumers.

      .Kyocera subsequently issued another voluntary recall due to the discovery of counterfeit batteries. Kyocera learned that Hecmma had produced and released to a distributor approximately 1,000,000 batteries containing unauthorized components.

      . The mandamus record does not contain a copy of Kyocera's pleadings but it appears that Kyocera is seeking injunctive relief based on the forum-selection clause.

      . The record before us does not reflect the status of that suit.

      . Kyocera Wireless Corporation.


source: Caselaw Access Project

license: Public Domain

text:
    In re CELADON TRUCKING SERVICES, INC., Jesus Mesta, and Dolores Rosales, Relators.
    No. 08-05-00099-CV.
    Court of Appeals of Texas, El Paso.
    April 12, 2005.
    Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Relator.
    John P. Mobbs, El Paso, for Interested Party.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relators, Celadon Trucking Services, Inc., Jesus Mesta, and Dolores Rosales, ask this Court to issue a writ of mandamus against the Honorable Luis Aguilar, Judge of the 120th District Court of El Paso County. Mandamus will he only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id. Based on the record before us, we are unable to conclude that Relators do not have an adequate remedy by appeal. Accordingly, we deny mandamus relief. See Tex.R.App.P. 52.8(a). Our opinion should not be construed as a ruling on the merits of the choice of law issue presented in this mandamus proceeding.


text:
    Paul LUCY, Appellant, v. Joan Waugh LUCY, Appellee.
    No. 08-02-00523-CV.
    Court of Appeals of Texas, El Paso.
    April 12, 2005.

      John P. Mobbs, El Paso, for Appellant.
    Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for Appellee.

      Before Panel BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a division of property incident to divorce. At issue is an amorphous award of “reimbursement” in favor of Joan Lucy which is also characterized in the final decree as a judgment to equalize division. On appeal, Paul Lucy complains that the evidence is legally or factually insufficient to support the reimbursement award. For the reasons that follow, we affirm.

FACTUAL SUMMARY

The parties were married in 1991 and separated in 1996. Each had children from a prior marriage and considerable separate property. A decree of divorce was entered in December 1996. When disputes arose concerning the division of property, Paul filed a petition for bill of review and Joan sought post-judgment partition of previously undivided assets. The trial court set aside the decree and following a bench trial, rendered judgment confirming the parties’ separate property and dividing the community estate.

As Paul frames the issues, this appeal concerns Joan’s recovery upon two reimbursement .claims. The first relates to rental income. At the time of the marriage, Paul owned a home located at 10632 Quezada Street. During the marriage, the parties resided in Joan’s house located at 10900 Dave Marr. Characterization of these houses is not in issue. When the parties separated, Paul told Joan that he could not move back in to the Quezada property because it had been rented. Joan claimed that she did not know the property had been rented, nor had she seen any of the rental income. She sought to recover $43,200, representing the rental income from the property during marriage. The second issue relates to the depletion of a bank account. Prior to marriage, Joan’s checking account contained $53,947.84. She added Paul’s name to the account and gave him free access to write checks as he saw fit. Joan listed the account as community property on her inventory, and the parties ultimately stipulated to characterization at trial. At that time, the account balance was $10,244.72. In her testimony, Joan highlighted unusual withdrawals Paul had made. For example, she testified that one month he had withdrawn $13,000 but she never found out why. She claimed that Paul wrote checks totaling $170,348. She requested reimbursement for $43,703.12, representing the difference in the beginning and ending balance of the account.

THE NATURE OF THE PLEADINGS

In her pleadings, Joan alleged that Paul had committed economic torts against the community estate as well as spousal torts against her personally as a result of the transmission of a sexually transmissible disease, assault, and intentional infliction of emotional distress. Applicable to our analysis, Joan sought a disproportionate division based upon fault in the breakup of the marriage, the wasting of .community assets, the size and nature of the parties’ separate estates, common law reimbursement, statutory reimbursement (economic contribution), Jensen reimbursement, breach of fiduciary duty, mismanagement of the marital estate, and fraud. She also sought “a judgment against [Paul] for the losses to the community estate and [Joan], occasioned by the improper conduct of [Paul].”

TERMS OF THE DECREE

The final decree contains the following paragraph:

Judgment and Lien to Equalize Division
The Court finds that each party has claims for reimbursement and the court having considered the evidence and the merits of such claim and, having offset said claims, further finds that [Joan] is entitled to a judgment against [Paul] in the amount of $28,000.00.

All other claims for reimbursement were denied. The decree also specifies that Joan was granted a divorce on the ground of cruelty.

FINDINGS OF FACT

Paul requested that the trial court prepare both traditional and statutory findings of fact and conclusions of law. See Tex.Fam.Code Ann. 6.711; Tex.R.Civ.P. 296. The statute limits the required findings to (1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented; and (2) the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented. It does not restrict the court’s ability to make additional findings pursuant to Rule 296. In this instance, however, the trial court entered only the statutory findings and the record does not reveal that additional findings were requested. Pertinent to our analysis, the court found:

VALUE OF CLAIMS AND OFFSETS

Reimbursement Claims of [Paul]
1) For community time, toll, [sic] efforts and funds used to improve wife’s separate home (residence of parties) @ 1900 Dave Marr, El Paso, Texas.
Amount Claimed: $78,000
Amount Found by Court: $28,500
Reimbursement Claims of [Joan]
1) For reimbursement on rental income received by Husband from rental of his separate property house at 10632 Queza-da St., El Paso, Texas. Mrs. Lucy claimed she had no knowledge he was renting his house and receiving income. Rented for 36 months.
Amount Claimed: (36 mos x $1,200 mo.) = $43,200
Disposition: Claim allowed
6) Reimbursement for Mrs. Lucy’s separate property funds used by Mr. Lucy for various purposes (some known, some unknown to her, as itemized by amounts in account exhibits). Funds from wife’s s/p account at GECU # 8050037
Amount Claimed: $43,703
Amount found by Court from evidence: $9,148.80
Offsets as determined by Court
The husband’s allowed claim for $23,500 for improvements done to wife’s s/p home (the residence of the parties), was offset against the wife’s allowed claim of $43,200 for the husband’s rental income.
The resulting balance of $19,700 was added to the other claim allowed to the wife for $9,148 on her claim for separate property funds used by Mr. Lucy.
Net Balance on Reimbursement Claims: A $28,848 reimbursement owed by Mr. Lucy to Mrs. Lucy.

The court further entered a finding of fault against Paul “for considerable emotional and physical abuse.”

SUFFICIENCY OF THE EVIDENCE

In his first issue for review, Paul challenges the sufficiency of the evidence to support reimbursement for rental income. His second issue complains that the evidence is insufficient to support reimbursement of money Paul withdrew from Joan’s bank account. Our analysis must of necessity employ overlapping appellate standards of review. We first address the distinctions between them and how they overlap in the family law arena.

Standards of Review

Traditional Sufficiency Review

In considering a legal sufficiency or “no evidence” point, an appellate court considers only the evidence which tends to support the jury’s findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.-El Paso 1992, no writ). If any probative evidence supports the jury’s determination, it must be upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.-Fort Worth 1987, no writ).

A factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 244 S.W.2d at 660; Worsham Steel Co., 831 S.W.2d at 81. The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.-El Paso 1981, no writ). It is not within the province of this court to interfere with the jury’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.-El Paso 1984, no writ). Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.-El Paso 1992, writ denied). In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Associated Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., Inc., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ); Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.-Dallas 1992), rev’d on other grounds sub nom.; Exxon Corp. v. Tidwell, 816 S.W.2d 455, 459 (Tex.App.-Dallas 1991), rev’d on other grounds, 867 S.W.2d 19 (Tex.1993); A-ABC Appliance of Texas, Inc. v. Southwestern Bell Tel. Co., 670 S.W.2d 733, 736 (Tex.App.-Austin 1984, writ ref'd n.r.e.).

Abuse of Discretion Standard

Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. While the appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. If, for example, an appellant is challenging the sufficiency of the evidence to support the court’s valuation of a particular asset, he must also contend that the erroneous valuation caused the court to abuse its discretion in the overall division of the community estate.

The term “abuse of discretion” is not susceptible to rigid definition. London v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.-Austin 1987, no writ). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Comm.App.-1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhom, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Which Standard Do We Apply?

The Family Code requires that the trial court divide the estate of the parties in a manner that is just and right having due regard for the rights of each party. Tex.Fam.Code Ann. § 7.001 (Vernon 1998). There is no requirement that the court effectuate an equal division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The courts have determined a number of factors which may justify a disproportionate division. Id. at 698-99.

Joan specifically pled that the equities justified a disproportionate division as well as an equalizing judgment, if necessary. In reviewing the equitable remedy fashioned by the trial court in achieving a just and right division, we must determine not only whether the trial court’s findings are supported by the evidence, we must also determine whether error, if established, caused the trial court to abuse its discretion. We have repeatedly held that once it has been determined that the abuse of discretion standard applies, an appellate court should engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its application of discretion? Knight v. Knight, 131 S.W.3d 535, 539 (Tex.App.-El Paso 2004, no pet.); Sandone v. Miller-Sandone, 116 S.W.3d 204, 206 (Tex.App.-El Paso 2003, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; however, our inquiry cannot stop there. We must proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Stated inversely, we must conclude that the trial court’s decision was neither arbitrary nor unreasonable.

A Creature Called Reimbursement

Family law practitioners have dealt with reimbursement for decades, although the magic word did not appear in the Texas Family Code until the Legislature created a statutory right of economic contribution in 2001. Tex.Fam.Code Ann. Title 1, Chapter 3, Subchapter E, § 3.401 et seq., added by Acts 2001, 77th Leg., R.S. ch. 838, § 5, eff. Sept. 1, 2001. Let us emphasize that although Joan pled for economic contribution, the claims at issue here do not arise from the statute. Consequently, we are dealing with common law theories of economic recovery. Indeed, although case law is replete with references to a “right” of reimbursement, the rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex.1982), citing Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943). It is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce, or annulment. Id., citing Burton v. Bell, 380 S.W.2d 561 (Tex.1964); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935). An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Id.

A claim for reimbursement of funds expended by an estate for improvements to another estate is to be measured by the enhancement value to the benefit-ted estate. Kimsey v. Kimsey, 965 S.W.2d 690, 700 (Tex.App.-El Paso 1998, pet. denied), citing Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.1985). This measurement is applied whether the claim for reimbursement is based on funds expended for payment of a purchase money debt or for a capital improvement to another estate. Id., citing Penick v. Penick, 783 S.W.2d 194, 197 (Tex.1988). The party claiming the right of reimbursement has the burden of proof. Id., citing Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984); Vallone, 644 S.W.2d at 459.

Since common law reimbursement is an equitable claim, a court of equity is bound to look at all facts and circumstances to determine what is fair, just, and equitable. Id., citing Penick, 783 S.W.2d at 197-98; Magill v. Magill, 816 S.W.2d 530, 535 (Tex.App.-Houston [1st Dist.] 1991, writ denied). This allows for consideration of offsetting benefits. Kimsey, 965 S.W.2d at 700-01, citing Jensen, 665 S.W.2d at 109; Magill, 816 S.W.2d at 535. Great latitude must be accorded to the trial court in applying equitable principles to value such a claim, for it is not just a balancing of the ledgers between competing marital estates. Id. at 701, citing Penick, 783 S.W.2d at 198; Magill, 816 S.W.2d at 535. The discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the discretion exercised by a trial court in making a just and proper division of the community estate. Id., citing Penick, 783 S.W.2d at 198.

The crux of Joan’s complaint was that Paul took community income of which she was unaware and spent it without her knowledge. This was the cornerstone of her claim that Paul wasted community property, breached his fiduciary duty, and mismanaged the community estate. Because of his conduct, Joan sought a disproportionate division and, if necessary, an equalizing judgment.

There is no dispute that the rental income was community property. See Tex. Fam.Code Ann. § 3.002 (Vernon 1998); In re Marriage of Louis, 911 S.W.2d 495, 497 (Tex.App.-Texarkana 1995, no writ) (income from separate property is community property). Paul argues that there is no legal basis for allowing “reimbursement” based on receipt of community income by one spouse when the other spouse is unaware of the receipt. Paul also complains of the award of $9,148.80 for expenditures made from Joan’s bank account. He argues that the trial court failed to explain its calculation, merely stating that the reimbursement amount was found from evidence. He contends that since Joan admitted the account was community property, she was not entitled to reimbursement.

If It Walks Like a Duck ...

We come now to the central issue. Must we reverse because the trial court mislabeled the proper theory of recovery? Is it error to compensate the community estate for economic torts committed by a spouse simply because the court labeled the relief as “reimbursement?”

Texas recognizes the concept of fraud on the community which the trial court may consider in rendering a disproportionate division. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998), citing Belz v. Belz, 667 S.W.2d 240, 247 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). A claim of fraud on the community is a means either to recover specific property wrongfully conveyed or to obtain a greater share of the community estate upon divorce in order to compensate the wronged spouse for her lost interest in the community estate. Belz, 667 S.W.2d at 246-47. A trial court may also award a money judgment to one spouse against the other in order to achieve an equitable division of the community estate. Schlueter, 975 S.W.2d at 588, citing Murff, 615 S.W.2d at 699 (allowing money judgment against husband in division of community property where he had substantial sums in savings before separation that had disappeared by the time of trial). Because the amount of the judgment is directly referable to a specific value of lost community property, it will never exceed the total value of the community estate. Id. A wronged spouse should not suffer simply because the other spouse has depleted the community such that there is not enough left to effect a just and right division. Id. Joan asked the court for a disproportionate division, including a money judgment if necessary, to compensate the community estate for Paul’s fraudulent conduct. Schlueter also recognized that wasting community assets may give rise to a similar claim. Schlueter, 975 S.W.2d at 589. Mrs. Schlueter alleged that her husband had, without her knowledge or consent, wrongfully depleted the community assets. “Such behavior is properly considered when dividing a community estate.” Id.

Analysis

In this context, we review the evidence. Paul admitted receiving the rental payments and cashing the checks. He testified that he would use the funds to pay the mortgage and for incidental living expenses. While he claimed to have given Joan a portion of the money, Joan testified that he kept the cash and didn’t give her any. Paul acknowledged that the income was community property, but complained that if his expenditures did provide some basis for reimbursement, then the reimbursement should be limited to net income. Penick, 783 S.W.2d at 197.

With regard to the bank account, Paul complains that the trial court failed to explain its calculation, merely stating that the award was based on the evidence. He argues that Joan admitted the account was community property and that she was not entitled to reimbursement absent a tracing of her separate property funds in the account. He also claims that she did not show that Paul’s separate estate benefitted at the expense of her separate property or the community estate.

In each of these instances, Paul acknowledges the conflicting evidence. ■ Nevertheless, the trial court as the trier of fact was the sole judge of the credibility of the evidence, what weight was to be assigned to it, and how to resolve inconsistencies. Carrasco, 623 S.W.2d at 772. The court obviously disregarded Paul’s testimony and believed Joan’s. Paul’s underlying argument is that Joan was not entitled to “reimbursement” on that basis or that she failed to establish the amount of the offsetting benefit to the wronged estate. The findings are limited to characterization and value; they do not encompass the factors which the trial court may have considered in making a disproportionate division. We conclude that the evidence supports a disproportionate division and that Paul’s conduct was a factor which the trial court could rightly consider. Simple mathematical calculations derived from the findings of fact reveal that the trial court valued the community estate at $100,922. Without the equalizing judgment, the court effectuated roughly a 55%^45% division in favor of Paul. Imposition of the judgment results in a 73%-27% division in favor of Joan. We conclude that the constituent elements are properly aligned: the pleadings support the evidence, the evidence supports the findings of fact, and the findings support the judgment. We find no abuse of discretion in attaching a misnomer to the remedy employed. Finding no abuse of discretion, we overrule both issues for review and affirm the judgment of the trial court.

      . See Tex.Fam.Code Ann. § 3.401 et. seq. (Vernon Supp.2004 — 05).

      . See Jensen v. Jensen, 665 S.W.2d 107 (Tex.1984)(allowing reimbursement for community time, toil, talent, and labor contributed toward the enhancement of a separate estate).

      . "S/p” is frequently used as a shorthand reference for separate property.

      . He alleged that the income totaled $36,300 rather than $43,200 and that he was entitled to a deduction for maintenance expenses of at least $2,000 and mortgage payments of $17,400 ($580 x 30 mos.), which would equal reimbursement of $16,900.


author: Justice GARZA.

text:
    Luzelma CAMPOS, Betty Jo Gonzalez, and Misty Valero, Appellants, v. NUECES COUNTY, Appellee.
    No. 13-03-724-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    April 14, 2005.
    Rehearing Overruled May 26, 2005.

      David T. Bright, Harris & Watts, Mikal C. Watts, Watts & Heard, Corpus Christi, for appellants.
    Kurt Chadwell, Asst. County Atty., Laura Garza Jimenez, County Atty., Kent Brown, Nueces County Atty’s Office, Rene C. Flores, Nueces County Courthouse, Chief of Litigation, Corpus Christi, for ap-pellee.
    Before Justices RODRIGUEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice GARZA.

Luzelma Campos, Betty Jo Gonzalez, and Misty Valero challenge the grant of a plea to the jurisdiction filed by Nueces County. Because we conclude that governmental immunity does not bar suit under 42 U.S.C. § 1983 and that appellants have alleged a cause of action for premises defects under the Texas Tort Claims Act, we reverse the trial court’s order dismissing the case and remand for further proceedings consistent with this opinion.

Background

This suit involves allegations of repeated acts of sexual harassment and sexual assault occurring at the Nueces County Substance Abuse Treatment Facility (“SATF”). Appellants allege that while they were criminally incarcerated in the SATF, two guards, Sergeant Anthony Allen and Corporal Cordell Hayes, sexually harassed and assaulted them. Appellants sued for violations of their civil rights and also asserted claims under the tort claims act, naming seven defendants, including the two guards, individually and in their official capacities, and Nueces County. After granting a plea to the jurisdiction filed by Nueces County, the trial court severed the claims against the county from the rest of the case and dismissed them. Appellants now raise four issues on appeal.

I.

In their first issue, appellants contend that the trial court erroneously dismissed their case because a plea to the jurisdiction is an improper vehicle for challenging defects in a plaintiffs pleadings. Appellants argue that the defects raised by appellee’s plea to the jurisdiction amounted to no more than mere defects in pleadings and should have been challenged by special exceptions because they do not implicate the court’s subject matter jurisdiction.

Although we agree that defects in pleadings are properly challenged by special exceptions, see Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000), a plea to the jurisdiction remains a proper vehicle for challenging a court’s subject matter jurisdiction over a claim, see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Furthermore, the Texas Supreme Court has specifically held that governmental immunity can be raised by a plea to the jurisdiction because, if sustained, an assertion of immunity would defeat the court’s jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). But see id. at 642 (Brister, J., concurring) (“There would never have been as much confusion if sovereign immunity had to be raised by summary judgment or special exceptions.”). Appellee’s plea argued that there was no subject matter jurisdiction and that appel-lee was protected by governmental immunity. We conclude that these objections to suit were properly raised by appellee’s plea to the jurisdiction. Appellants’ first issue is overruled.

II.

In their second, third, and fourth issues, appellants argue that the trial court erred by granting appellee’s plea to the jurisdiction because their live petition alleges causes of action against appellee under 42 U.S.C. § 1983 and the tort claims act and because the evidence before the trial court supported the causes of action. In response, appellee contends that dismissal was proper because appellants’ live petition failed to state a cause of action.

Whether a court has subject matter jurisdiction is a legal question and is therefore subject to de novo review. See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We must determine whether appellants have alleged facts that affirmatively demonstrate the court’s jurisdiction to hear their case. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We construe the pleadings liberally in favor of jurisdiction, looking to the pleader’s intent. See Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland, 34 S.W.3d at 555. When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). In contrast, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.

Appellee’s plea to the jurisdiction challenged the court’s jurisdiction on two different grounds: (1) no subject matter jurisdiction and (2) no waiver of immunity. We discuss these grounds separately.

A. Subject Matter Jurisdiction

Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable. State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex.1994).

1.Standing

In general, a plaintiff has standing to sue if the plaintiff has suffered an injury that was caused by the defendant and is likely to be remedied by the relief requested. MET-Rx USA, Inc. v. Shipman, 62 S.W.3d 807, 810 (Tex.App.Waco 2001, pet. denied); see also Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001) (citing Tex. Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 516-17 (Tex.1995)). We conclude that appellants have standing because they have alleged injuries stemming from sexual harassment and assault that occurred as a result of the “atmosphere of lawlessness” created by appellee and the monetary relief requested by appellants is likely to remedy their injuries.

2.Live Controversy

The live-controversy requirement prohibits courts from addressing the merits of moot legal disputes, see FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994), the resolution of which would lead to constitutionally-prohibited judicial advisory opinions, see Speer v. Presbyterian Children’s Home, 847 S.W.2d 227, 229 (Tex.1993).

This case does not present mootness concerns because the controversy in this case is very much alive. Appellants have sued appellee on numerous causes of action involving repeated incidents of sexual harassment and assault, including rape. Appellee has maintained that it is not liable for the injuries stemming from these incidents. A judicial resolution of this dispute would not amount to an advisory opinion because it would bind the parties with a final answer to the question of liability. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993) (“The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties.”). We therefore conclude that the trial court’s order dismissing the claims against appellee cannot be sustained on the ground that no live controversy exists between the parties.

3.Justiciable Controversy

Appellee also contends that the court lacks subject matter jurisdiction because there is no justiciable controversy between the parties. Appellee contends that it does not employ the workers of the SATF and therefore cannot be sued under section 1983. For a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought. Gomez, 891 S.W.2d at 245. Although there is mixed evidence as to whether the people who work at the SATF are employees of the state or the county, the controversy between the parties is justiciable. Regardless of how the employment issue is ultimately decided, there is a real controversy that will be resolved by the judicial relief sought. See id.

B. Waiver of Immunity

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction unless the state expressly consents to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cit-' ies, and school districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003) (recognizing that sovereign immunity and governmental immunity are distinct concepts though courts often use the terms interchangeably). The tort claims act provides a limited waiver of immunity if certain conditions are met. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021,101.025 (Vernon 1997).

1. Section 1983 Claims

Although the protections of immunity are broad, they do not extend to liability under the civil rights act. See Thomas v. Allen, 887 S.W.2d 631, 632 (Tex.1992) (per curiam) (acknowledging that a state court cannot refuse to entertain a section 1983 claim on the ground that it was barred by the defense of immunity) (citing Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)). Consequently, the trial court could not have properly dismissed appellants’ section 1983 claims based on immunity. Accord Williams v. Huff, 52 S.W.3d 171, 194 (Tex.2001) (holding that county could be held liable under section 1983 for constitutional violations).

2. Tort Claims

We now turn to appellants’ causes of action under the tort claims act to determine whether appellants have affirmatively demonstrated the jurisdiction of the court. The tort claims act expressly waives governmental immunity in three general areas: (1) use of motor-driven equipment, (2) premises defects, and (3) injuries arising out of the use of personal property. Brown, 80 S.W.3d at 554. Under subsection (2) of section 101.021 of the civil practice and remedies code, the subsection relevant to this case, a governmental unit is liable for “personal injury or death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997). Liability under subsection (2) can arise under different theories: It encompasses governmental liability based on respondeat superior for misuse of tangible personal property other than motor-driven vehicles and equipment, as well as governmental liability for premises defects. Tex. DOT v. Able, 35 S.W.3d 608, 611 (Tex.2000).

Appellants’ live petition alleges liability under section 101.021(2) based on three different theories: (1) premises defects; (2) use of tangible personal property; and (3) negligent hiring, training, and supervision of employees. We discuss each of these theories separately.

i. Premises Defects

It is undisputed that appellee owns the physical facility used by the SATF and provides the SATF with equipment and utilities. Appellants allege that appellee is liable for premises defects because the facility used by the SATF contains security cameras that were either non-functioning or improperly placed, as well as various doors, rooms, and enclosures, which permitted guards to have unlimited, unmonitored access to inmates, provided the seclusion necessary for the sexual harassment and assaults to occur, and prevented any reasonable opportunity for appellants to escape. According to appellants, appellee allowed these premises defects to exist and failed to correct them or adopt policies to minimize the risk of harm they created.

Appellee maintains that it cannot be sued for premises defects under the tort claims act because the defects alleged by appellants were merely incidental to them injuries. Appellee contends that appellants’ claims arise out of the intentional torts of SATF employees and are therefore unauthorized by the tort claims act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.057(2) (Vernon 1997).

We disagree. Although a governmental unit is immune from claims arising out of intentional torts, see id., appellants’ premises defects claim arises out of appellee’s failure to provide a facility for the treatment of inmates that is safe and does not allow guards to have unfettered, unlimited, and unsupervised access to inmates. Although this case certainly involves allegations of intentional torts, the mere intermingling of intentional torts with the negligence of a governmental unit does not render the governmental unit immune. See Young v. Dimmitt, 787 S.W.2d 50, 51 (Tex.1990) (per curiam) (recognizing recovery available under tort claims act for negligent conduct even though accompanied by intentional tort); see also Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 684 (Tex.1992) (same). Rather, the supreme court has adopted an interpretation of section 101.057(2) that accommodates the following distinction stated in the Restatement (Second) of Torts § 448 (1965):

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

Delaney v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex.1992).

In this case, appellants allege that at the time appellee failed to correct the premises defects, it either knew or should have known that the defects would allow guards to commit sexual harassment and assault. Accordingly, in light of the supreme court’s holding in Delaney, we conclude that appellants’ premises defects claim does not arise out of the intentional torts involved in this case but out of the alleged negligence of appellee in failing to remedy defects in the facility used by the SATF when it either knew or should have known that the defects presented a risk of injury to inmates. Our holding on this issue should not be construed as anything more than a liberal construction of the pleadings for the limited purpose of determining whether appellants have established the trial court’s jurisdiction to hear their case.

Appellee further contends that it cannot be sued for premises defects because the alleged defects did not cause any injuries but merely furnished a condition making injuries possible. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex.2002) (“In a premises defect case, the dangerous condition must be a cause of the resulting injury.”). Section 101.021(2) requires that for immunity to be waived, personal injury or death must be proximately caused by the condition or use of tangible property. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 389, 343 (Tex.1998) (citing Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997)). Proximate cause consists of both cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Cause in fact means that the condition was a substantial factor in bringing about the injury which would not otherwise have occurred. See Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex.1995).

Having reviewed the pleadings liberally in favor of jurisdiction, we conclude that appellants intend to prove that the premises defects were a substantial factor in bringing about injuries that would not have otherwise occurred. See Peek, 779 S.W.2d at 804. Appellants have alleged that the defects permitted guards to have unlimited, unmonitored access to inmates, provided the seclusion necessary for the harassment and assaults to occur, and prevented any reasonable opportunity for appellants to escape. Appellants also claim that their injuries were foreseeable by ap-pellee. Based on these pleadings, we conclude that appellants have not simply alleged that the defects furnished a mere condition that made them injuries possible. See Bossley, 968 S.W.2d at 343. The nexus between the alleged premises defects and injuries in this case is not so highly attenuated that it defies the definition of proximate cause. Accordingly, we conclude that appellants’ petition affirmatively demonstrates the subject matter jurisdiction of the trial court by asserting a cause of action for premises defects against ap-pellee under the tort claims act.

In reaching this holding, we emphasize that the purpose of a “plea [to the jurisdiction] is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs’ claims should never be reached.” Bland, 34 S.W.3d at 554. Neither this Court nor the trial court is authorized to inquire so far into the substance of the claims presented that appellants would be required to put on their case simply to establish jurisdiction. See id. Nothing in this opinion should be construed as either favoring or disfavoring the theory advanced by appellants, except that their theory is sufficient to invoke the jurisdiction of the court regardless of whether it is ultimately successful.

ii. Use of Tangible Personal Property

Appellants also claim that their injuries were caused by the use of tangible personal property; however, this allegation remains largely undeveloped. The only personal property identified in appellants’ live petition are surveillance cameras, which the petition alleges were either non-functioning or misplaced. Such allegations scarcely amount to the “use” of personal property required by the tort claims act. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). According to the supreme court, “use” means “to put or bring into action or service; to employ for or apply to a given purpose.” LeLeaux v. Hamshire-Fannett Ind. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). Construing appellants’ petition liberally, it appears to allege that appellee employed security cameras at the facility used by the SATF for the purpose of monitoring inmates, as well as guards, and that appellee’s employment of cameras that were either non-functioning or misplaced for the purpose of surveillance proximately caused the injuries sustained by appellants. Although we cannot conclude that such allegations affirmatively negate the possibility of jurisdiction, they are insufficient to demonstrate jurisdiction. Accordingly, appellants must be afforded an opportunity to amend their pleadings. See Brown, 80 S.W.3d at 549. To demonstrate jurisdiction sufficiently, the allegations of appellants’ petition must detail how appellee used the cameras and how such use proximately caused personal injury to appellants.

iii. Negligent Hiring, Training, and Supervision

Appellants have also asserted claims against appellee for negligent hiring, training, and supervision of employees, as well as negligent implementation of county policies. These claims cannot be brought outside of the causes of action discussed above. The tort claims act does not waive immunity for negligence that does not involve conditions or use of tangible property. See State Dep’t of Pub. Safety v. Petto, 44 S.W.3d 575, 581 (Tex.2001). Because appellants have failed to allege facts that demonstrate how appel-lee’s negligent hiring, training, and supervision of employees or its negligent implementation of county policies caused them injury by a condition or use of tangible property, we cannot conclude that their petition affirmatively demonstrates the subject matter jurisdiction of the trial court. Nevertheless, the petition does not affirmatively negate the trial court’s jurisdiction. See Brown, 80 S.W.3d at 549. Accordingly, appellants must be afforded an additional opportunity to amend their petition. See id.

III.

In sum, we conclude that the trial court erred by dismissing appellants’ claims and therefore sustain in part appellants’ second, third, and fourth issues. The case is remanded for further proceedings consistent with this opinion.

      . Appellants' live petition also named as defendants Nueces County Substance Abuse Treatment Facility, Nueces County Community Supervision and Corrections, Nueces County Adult Probation Department, and the Texas Department of Criminal Justice Community Justice Assistance Division.