source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    LAREDO MEDICAL GROUP CORPORATION and Mercy Health System of Texas, Inc., Appellants, v. Josefina B. MIRELES, Appellee.
    No. 04-03-00729-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 20, 2004.
    Rehearing Overruled Nov. 30, 2004.

      Lynne Liberato, Felicity A. Fowler, Kent Rutter, Haynes and Boone, L.L.P., Houston, Donato D. Ramos, Law Office of Donato D. Ramos, Laredo, for appellants.
    David H. Jones, Andres H. Gonzalez, Jr., Raymond L. Thomas, Kittleman, Thomas, Ramirez & Gonzales, P.L.L.C., McAllen, Vincent L. Marable, III., Paul Webb, P.C., Wharton, for appellee.
    Sitting: PAUL W. GREEN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Pursuant to Sabine Pilot Service, Inc. v. Hauch, 687 S.W.2d 733 (Tex.1985), Josefina Míreles sued Laredo Medical Group Corporation and Mercy Health System of Texas, Inc. for allegedly firing her because she refused to perform an illegal act. The jury agreed, awarding Mireles more than $1.5 million. Appellants Laredo Medical Group and Mercy Health System bring nine issues on appeal. We reverse and remand pursuant to Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000).

Background

In 1995, a group of doctors practicing at Mercy Hospital in Laredo, Texas, discussed forming a single medical group which would attract new doctors to Laredo. Instead of starting a practice in Laredo, a new doctor could join this existing medical group and receive a guaranteed salary for three years. After three years, the physician would rely on his own collections for income, minus a percentage to be retained by the medical group to cover overhead expenses. The doctors presented their idea to Mercy Hospital, a tax-exempt, not-for-profit hospital that is part of the Sisters of Mercy Health System, a national Catholic healthcare system. Agreeing that the idea was a good one, in October 1995, the Sisters of Mercy Health System formed Mercy Health System of Texas, Inc. (“Mercy”) to serve as the parent holding company of Mercy Hospital and Laredo Medical Group Corporation (“LMG”), a newly formed not-for-profit health corporation. Mercy was the sole corporate member of LMG, and its Chief Executive Officer served on LMG’s board of directors as a nonvoting “corporate member.” All of the voting members were doctors.

In November 1995, the LMG board voted to hire Josefina B. Mireles, a certified public accountant, as the Director of Finance for their medical group. Billings and collections were the responsibility of Mireles and her staff. In its first year, LMG’s billings and collections were below national benchmarks. The board concluded that Mireles and her staff could not keep up with LMG’s growth. The board decided to hire an outside firm, one with experience in establishing centralized billing infrastructures for medical groups, to help resolve the problem. In January 1997, Professional Healthcare Consultants (“PHC”) and its president, Gina Volmert, began working with LMG on a consulting basis. PHC and Volmert helped LMG establish a central billing office and develop procedures for improving collections. As a result, LMG’s collections improved.

Pleased with the results, LMG’s board asked Volmert to assume the role of LMG’s acting Chief Operating Officer (“COO”). LMG and PHC formalized their relationship with a five-year contract, which was approved by the board. Vol-mert remained president of PHC but also continued in her role as LMG’s acting COO. Mireles was instructed that she would report to Volmert and that Volmert was her superior. Mireles remained responsible for LMG’s payroll and accounts payable, but all responsibility for billings and collections was transferred to Volmert and PHC.

Mireles became concerned about Vol-mert’s billing department’s practices and reported these concerns to various superiors at LMG. In response, Mireles was told that these practices were not her concern; rather, they were the billing department’s area. In December 1999, Mireles was fired. LMG and Mercy claim that Mireles was fired because of cost-cutting and downsizing concerns. Mireles believes that she was fired because she refused to perform an illegal act.

Sabine Pilot Claim

In Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985), the supreme court held that public policy requires a very narrow exception to the employment-at-will doctrine. “That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act.” Id. The court further held that “in the trial of such a case it is the plaintiffs burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act.” Id.

According to LMG and Mercy, Mireles failed to prove a Sabine Pilot claim. Instead, LMG and Mercy argue that her allegations, if taken as true, only state a whistleblower claim. And, there is no whistleblower cause of action against a private employer. See City of Midland v. O’Bryant, 18 S.W.3d 209, 215-16 (Tex.2000) (“We declined to recognize a common-law whistleblower cause of action in Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724-25 (Tex.1990), and reaffirmed our decision not to do so in Austin v. HealthTrust, Inc., 967 S.W.2d 400 (Tex.1998).”).

A. Various Accounting and Billing Allegations

For there to be legally sufficient evidence of Mireles’s Sabine Pilot claim, there must be evidence that (1) Míreles was ordered to perform an illegal act and (2) that she refused to do so. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001) (in conducting legal sufficiency review, we consider only that evidence favorable to jury’s decision and disregard all evidence and inferences to contrary). Mí-reles alleges in her brief various illegal acts by LMG and Mercy: violation of federal anti-kickback laws, violation of excess compensation laws, violation of laws prohibiting health care fraud, and unapplied credits which in turn, violate federal laws prohibiting excess compensation to physicians. The question, however, is not whether LMG and Mercy were performing illegal acts; the question instead is whether LMG and Mercy ordered Míreles to perform an illegal act and whether she refused to do so. With respect to the above allegations, we cannot find any evidence that Míreles was ordered to perform an illegal act or that she refused to do so.

Míreles argues that as a CPA and Director of Finance, she had an undisputed duty to prepare accurate reports and to not conceal illegal activity. According to Míreles, she “was told to prepare financial reports which were based on information which was not truthful.” Míreles was concerned about various billing practices; these billing practices, however, were being conducted by LMG’s billing department, headed by Volmert. Mireles’s department, the accounting department, was not in charge of the billing. Míreles only used information supplied by Volmert’s billing department to determine whether a particular doctor owed money to LMG (i.e. the doctor had drawn more money than billed and taken in) or whether the doctor was to receive money (i.e. the doctor had billed and taken in more money than he drew). When Míreles questioned certain billing practices, Jerald Sparenberg, her supervisor, told her that billing was not her job; it was Volmert’s billing department’s concern. Míreles was only to use the information given by the billing department.

When asked if anyone ordered her to commit illegal acts on behalf of her employer, Míreles testified to the following:

A: No, not in those words.
Q: Okay. Then — by the way, what sort of fraudulent and untruthful reports were you asked to prepare?
A: The reports that we produced at the accounting department were based on the information provided by the billing department. And some of that information was not truthful, and some of that information, in my opinion, was fraudulent.
Q: What is a physician productivity report?
A: A physician productivity report was a statement that we produced every month for all the practices in LMG, that included all their cash collections and their expenses.
Q: And are those physician productivity reports something — who is responsible for preparing the pro-duetivity — physician productivity reports?
A: The accounting department.
Q: That was your department.
A: It was my department.
Q: And using those physician productivity reports, what is the purpose of those?
A: Was to inform the physicians how the practice — their practices were doing, to inform management at LMG, the Board of Directors and Mercy how the practices were doing.
Q: And what are physician true-up reports?
A: Physician true-up reports were the calculations we would do every six months and twelve months to calculate whether there were any moneys or cash due to the physicians in excess of what they had drawn, or whether we had overpaid them and the physicians owed money back.
Q: The physician productivity reports that your department prepared and the physician true-up reports that your department prepared, where did the information you — the figures that you use, the information you use, where did it come from?
A: The collections came from the billing department.
Q: From over here, Ms. Gina Volmert’s [department]?
A: Yes, sir.
Q: All right. And so what was your concern, then, when you were preparing these physician productivity reports and physician true-up reports? What was your concern?
A: Several areas in the billing department. The unapplied credits that we talked about, the Stark law that was mentioned before, the double billings that were happening. All those excess collections were getting credited to the physicians in the productivity report and their true-up calculations. So once those moneys came in, the physicians were getting paid for them.
Q: Let me see if I can understand that. The double billing didn’t come out of your accounting department, right?
A: No, sir.
Q: That was the responsibility of who[m]?
A: The billing department.
Q: The accumulation of unapplied credits, was that something that your department handled?
A: We handled the accounting side of it in the sense that we kept track of the amount of unapplieds. But the process in which those moneys were collected and refunded was the responsibility of the billing department.

This testimony is no evidence that Mí-reles was ordered to perform an illegal act. Looking at her testimony in the most favorable light, the alleged unlawful acts were happening in the billing department. All Míreles did was take the billing department’s information and summarize them in reports that were used internally. There is simply no evidence that summarizing information for use in internal reports is illegal.

Second, even if there were evidence that Míreles was ordered to perform an illegal act, there is no evidence that she refused to do so. There is no evidence in the record that Míreles refused to prepare the internal accounting reports that contained the alleged fraudulent and untruthful information. Instead, the evidence shows that Míreles did, in fact, prepare these reports. Instead of refusing to prepare the reports, Míreles complained to her supervisors and others that she believed that there were problems in the billing department. In other words, Míreles did not refuse to do an illegal act; she only complained about alleged illegal acts committed in the billing department. This evidence is not sufficient to support a Sabine Pilot cause of action.

In her brief, Míreles claims that the evidence shows that she refused to commit an illegal act. For support, Míreles argues that she testified that she would not violate Medicare-Medicaid laws:

Q: And you don’t — or you didn’t personally, yourself, do anything that violated Medicare or Medicaid, did you?
A: In the context of me doing the double billing or the medical billing, no, I did not personally do any of these things.

Instead of showing that Míreles refused to perform an illegal act, all this testimony shows is that she did not, herself, commit an illegal act. Mireles’s testimony is consistent with our analysis that even if the billing department’s practices were illegal, Míreles was not asked to nor did she do anything illegal.

Also according to Míreles, she testified that she refused to “engage in IRS prohibited transactions even though Sparenberg directed her to process payments that would be a violation” or “violate the Stark law.”

Q: Now, you, yourself, never violated the Stark law; isn’t that right?
A: That’s correct.
Q: Now, I think it’s your testimony that you were told not to interfere in activities that were going on in other areas at LMG; is that correct?
A: That’s correct.
Q: And, again, no one told you that you must do these things that violated the Stark law, but instead they told you just to ignore what’s happening; isn’t that correct?
A: Can you rephrase that question?
Q: Sure. No one told you that you must do certain things that violated the Stark law, but instead they just told you to ignore what’s happening?
A: They told me to ignore what was happening, and they told me that I needed to follow what they were doing and use the information that they provided.
Q: But, again, no one told you that you must do those things that violated the Stark law; isn’t that correct?
A: Nobody told me to do billing — no, nobody told me to do billing that violated the Stark law; that’s correct.
Q: And no one ever told you that if you didn’t engage in activities that violated the Stark law, you would be fired, did they?
A: Oh, yes, they did.
Q: They did?
A: Not in those words, but they did.
Q: Do you recall your deposition testimony, Ms. Míreles? Why don’t we take a look and see what you said at your deposition.
(Portion of video played of Ms. Mireles’s deposition)
I’m just trying to make sure I’m clear on this, but you’ve noticed — you’re alleging there were Stark law violations. I just want to be sure that no one came to you and said, Ms. Míreles, if you don’t violate these — if you don’t do these practices, that you now allege violate the Stark law, if you don’t do these things, you’re fired. Did anybody tell you that?
If I don’t—
’ Do these things that you said were illegal that you would be fired?
No, sir.
(video stopped)
Q: Now, no one ordered or required you to engage in IRS to engage in IRS-prohibited transactions, did they?
A: Mr. Sparenberg directed me to process the payments that he wanted, but he did not specifically say, I want you to violate the IRS-prohibited transactions, no. He did not use that language.
Q: Do you remember the question being asked at your deposition as to whether or not you were ordered or required to engage in IRS-prohibited transactions?
A: I remember the question, yes.
Q: And do you recall what your answer was?
A: I’m sure I said nobody did.
Q: And you, yourself, never engaged in IRS-prohibited transactions; isn’t that correct?
A: That’s correct.
Q: And you never did anything in your position as director of finance for LMG that facilitated or assisted anybody in committing IRS-prohibited transactions; isn’t that right?
A: No, that’s not right.
Q: Do you recall that question being asked to you during your deposition?
A: Yes, ma’am, and I took a different interpretation of it when I was at the deposition than I do now.
Q: Okay. Why don’t we go ahead and look and see what you said under oath at your deposition.
(Portion of video played of Ms. Mireles’s deposition)
I understand what you said as far as IRS-prohibited transactions, that you, personally, were not receiving excessive compensation for revenues gained. I understand that. But did you do accounting or bookkeeping or anything in your position as director of finance for LMG that facilitated or helped those others violate the IRS-prohibited transactions?
No, I don’t know. No, I don’t think so.
No, you don’t think so.
No.
(video stopped)
Q: Do you recall that testimony?
A: Yes, ma’am.
Q: And that was under oath, correct?
A: Yes, ma’am.

Míreles does not state that she was ordered to perform an illegal act and she refused. Instead, the evidence only shows that she, personally, did not perform an illegal act.

Míreles also claims that she had a duty to report the information. Míreles fails to cite any support for the proposition that any failure to report the information would result in criminal penalties. See Tex.R.App. P. 38.1(h). And, we find no evidence in the record to support such a proposition. Thus, with respect to her various allegations of wrongdoing in the billing department, we hold that there is legally insufficient evidence to support Mireles’s Sabine Pilot claim.

B. Perjury

Mireles also claims that Volmert asked her to perjure herself in connection with a lawsuit brought by a former employee against two doctors and that she refused. There is legally sufficient evidence of this allegation. Mireles testified that an office manager had “raised some concerns about one of the doctors in the practice to the administration at LMG.” According to Mireles, after the office manager raised the concerns, one of the doctors wanted to fire the office manager. Volmert asked Mireles to investigate the accounting practices followed by the office manager at the doctors’ office. After Mi-reles finished her investigation, Volmert asked her whether there were any grounds on which to fire the office manager. Mi-reles told Volmert that there was nothing wrong with the accounting practices followed by the manager, so Mireles could not recommend that the office manáger be terminated. Volmert then told Mireles to say “whenever asked by counsel, that [Mi-reles] had found some inappropriate accounting practices by the office manager.” Volmert asked Mireles to “concoct this story in the lawsuit.” Mireles testified that she told Volmert she would not do so.

LMG and Mercy argue that Volmert’s alleged request of Mireles to perjure herself and Mireles’s refusal do not fit within Sabine Pilot because “[i]t is undisputed that Mireles was never called on to testify in the lawsuit brought before the office manager.” Sabine Pilot, however, only requires a party to refuse to perform an illegal act. Whether one is called to testify is immaterial. Mireles meets Sabine Pilot’s requirements by refusing to commit perjury when asked by Volmert.

C. Casteel

In Question No. 1, the jury was asked the following question:

Did any of the following Defendants discharge Josefina Mireles for the sole reason that she refused to perform an illegal act?
As used in this question, an “illegal act” means any one or more of the following:
a. Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to defraud any health care benefit program;
b. Whoever, in any matter involving a health care benefit program, knowingly and willfully—
1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or
2. makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, in connection with the delivery of or payment for health care benefits, items or services shall be fined under this title or imprisoned not more than 5 years, or both;
The term “Federal health care program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.
c. Entering into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim; or
d. Whoever, with intent to deceive and with knowledge of the statement’s meaning makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath.
A person acts intentionally, or with intent with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The jury answered “yes” to LMG and “yes” to Mercy. LMG and Mercy argue that because there is legally insufficient evidence of subparts (a)-(d), pursuant to Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000), we must reverse and remand the case. We have found that there is legally insufficient evidence of subparts (a)-(c), but that there is legally sufficient evidence of subpart (d). Thus, the question is whether Casteel requires us to reverse and remand this case when only one subpart is supported by legally sufficient evidence. We believe so.

In Casteel, the supreme court held that when “a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding.” Id. at 389. Although Texas Rule of Civil Procedure 277 states that broad form is clearly the preferred method of submission, “when the trial court is unsure whether it should submit a particular theory of liability, separating liability theories best serves the policy of judicial economy underlying rule 277 by avoiding the need for a new trial when the basis for liability cannot be determined.” Id. at 390.

Casteel held that such error is reversible. In Casteel, the charge included a single question with a single answer that could have been based on any one of thirteen independent grounds. Of the five DTPA laundry list grounds included, the plaintiff did not satisfy the required consumer status on four of those grounds. Because the jury was not asked separately about each of the plaintiffs thirteen theories of liability, the supreme court concluded that the jury could have based its answer solely on one or more of the erroneously submitted theories. Id. at 387-88. “To hold this error harmless would allow a defendant to be held liable without a judicial determination that a factfinder actually found that the defendant should be held liable on proper, legal grounds.” Id. at 388 (emphasis in original).

Since Casteel, the supreme court has also concluded that broad-form submission is not feasible for lump-sum damages when any element of the damages has no evidentiary support. In Harris County v. Smith, 96 S.W.3d 230 (Tex.2002), the trial court submitted two broad form damages questions, each of which instructed the jury to consider several elements and award a single lump-sum amount. Hams County objected to the questions and asked the trial court to submit each element separately. Id. at 231. After the trial court denied the request for separate submissions, Harris County objected on the ground that one listed element in each question was supported by no evidence. Id. at 231-32. The trial court overruled the objections. Id. On appeal, the court of appeals concluded there was no evidence of the challenged elements, but held the submission error was harmless “because there was ample evidence on properly submitted elements of damage to support the jury’s awards to both plaintiffs.” Id. at 232. The supreme court reversed, relying on Casteel and holding that

the trial court erred in overruling [the defendant’s] timely and specific objection to the charge, which mixed valid and invalid elements of damages in a single broad-form submission, and that such error was harmful because it prevented the appellate court from determining “whether the jury based its verdict on an improperly submitted invalid” element of damage.

Id. at 234 (quoting Casteel, 22 S.W.3d at 388).

Casteel dealt with valid and invalid theories of liability submitted in a broad-form question. Harris dealt with the submission of an element of damage that was not supported by legally sufficient evidence. Here, we have multiple liability theories, several of which are not supported by legally sufficient evidence. Although the supreme court has not yet decided whether Casteel should apply in this scenario, we believe that the same policy concerns underlying Casteel and Hams apply here. Three of the four liability theories submitted to the jury were not supported by legally sufficient evidence. And, these three liability theories in question were heavily emphasized and relied on by Mireles. Indeed, reviewing the record, most of the trial concerned subparts (a)-(c) of Question 1; the perjury allegation (sub-part (d)) was not nearly as developed or emphasized by Míreles. It is, therefore, “impossible for us to conclude that the jury’s answer was not based on one of the improperly submitted theories.” Casteel, 22 S.W.3d at 389. The jury almost certainly relied on one of more of subparts (a)-(c) in finding LMG and Mercy liable under Sabine Pilot. Thus, as in Casteel, “[t]o hold this error harmless would allow a defendant to be held liable without a judicial determination that a factfinder actually found that the defendant should be held liable on proper, legal grounds.” Casteel, 22 S.W.3d at 388 (emphasis in original).

We recognize that the Fort Worth Court of Appeals in Columbia Medical Center v. Bush, 122 S.W.3d 835, 858 (Tex.App.-Fort Worth 2003, pet. denied), has reached the opposite result. In Bush, the court of appeals held that Casteel did not apply because the plaintiff submitted only one theory of liability, negligence. Id. Bush, however, is not binding precedent, and we are not required to follow it. Here, Mireles alleged one cause of action, a Sabine Pilot claim. However, three of her theories of liability were based on LMG’s accounting practices. One was based on perjury. These allegations were completely distinct and based on completely different evidence. We, therefore, cannot hold that the submission of Question 1 was harmless.

D. Waiver

In response to LMG and Mercy’s Casteel argument, Míreles argues that they waived Casteel by failing to object to the use of the disjunctive “or” in the liability question. LMG and Mercy counter that because Sabine Pilot refers to “an illegal act,” they do not contend that Míreles was required to obtain a finding that her termination resulted from a refusal to violate all four statutes. Thus, according to LMG and Mercy, “[a]n affirmative finding specific to any one of the four statutes would suffice, assuming there was sufficient evidence pertaining to that statute. The flaw in the liability question is not that it required an affirmative finding for only one statute, but that it leaves this Court unable to discern which statute or statutes formed the basis for the jury’s answer.” We agree. An objection to the “disjunctive” was not required to preserve error under Casteel.

Under Casteel and its progeny, to preserve charge error on broad-form submission, a party must make “[a] timely objection, plainly informing the court that a specific element ... should not be included in a broad-form question because there is no evidence to support its submission.” In re A.V., 113 S.W.3d 355, 362-63 (Tex.2003) (alteration in original) (quoting Harris County, 96 S.W.3d at 231). LMG and Mercy met this standard. They objected during the charge conference to the submission of a single broad-form liability question. The trial court was fully aware of the problems with submitting a broad-form liability question. See Tex.R.App. P. 33.1 (to preserve error for appeal, a party must make the “trial court aware of the complaint, unless the specific grounds were apparent from the context ”). Here, LMG and Mercy first noted that because there are two defendants in the case, they “wanted to make clear that if there was a finding that there was a termination for refusing to perform illegal acts that it was the same defendant that had instructed [Míreles] to perform those illegal acts.” According to LMG and Mercy, “that’s why, in our proposed jury charge, we had separated those into two questions.” The judge denied the request, stating that based on what he had read in the Pattern Jury Charges, he did not believe “there was a reason to split them up.” LMG and Mercy’s counsel then argued that there was no evidence under any of the subparts to Question 1:

Question Number 1, we believe there’s no evidence of any requests of — to actually perform an illegal act of any of these things that are listed here. So we disagree with the predicate, Your Hon- or, that there was been a request to perform an illegal act by any of the Defendants for these things. There may be bystander liability. I believe Ms. Míreles is saying that she may have observed some — some fraud or observed some — some things, but, again, there has to be a request to perform an illegal act. So we disagree with the submission of any of these illegal acts as stated in Question Number 1.

We hold that LMG and Mercy sufficiently preserved error for appeal. The trial court was aware that LMG and Mercy believed submitting a broad-form question was error, and the trial court was aware that LMG and Mercy believed subparts (a)-(d) should not be submitted because there was no evidence to support them.

We, therefore, sustain LMG and Mercy’s issue, reverse the trial court’s judgment, and remand the cause to the trial court for further proceedings consistent with this opinion.

Judicial Admission

A. Míreles Testimony

Under Sabine Pilot, the plaintiff must show that she was fired for no other reason than she refused to commit an illegal act. LMG and Mercy argue that Mi-reles judicially admitted that she was fired for other reasons than her refusal to commit an illegal act. They point to Mireles’s trial testimony in which she testified that LMG and Mercy fired her for complaining about LMG’s billing practices. According to LMG and Mercy, Mireles’s testimony is a judicial admission, and, as such, her Sabine Pilot claim fails as a matter of law.

Mireles’s testimony, however, is not a judicial admission; it is a quasi-judicial admission. The supreme court has explained the difference between a quasi-admission and a judicial admission:

A party’s testimonial declarations which are contrary to his position are quasi-admissions. They are merely some evidence, and they are not conclusive upon the admitter. The weight to be given such admissions is decided by the trier of fact. These are to be distinguished from the true judicial admission which is a formal waiver of proof usually found in pleadings or the stipulations of the parties. A judicial admission is conclusive upon the party making it, and it relieves the opposing party’s burden of proving the admitted fact, and bars the admitting party from disputing it.

Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980) (emphasis added) (citations omitted); see also TX Far West, Ltd. v. Tex. Invs. Mgmt., Inc., 127 S.W.3d 295, 308 (Tex.App.-Austin 2004, no pet.); Gonzales v. Castill, No. 04-99-00063-CV, 2000 WL 84537, at *3 (Tex.App.-San Antonio 2000, no pet.).

A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue and bars the admitting party from disputing it. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.); Dowelanco v. Benitez, 4 S.W.3d 866, 871 (Tex.App.-Corpus Christi 1999, no pet.). As long as the statement stands unretracted, it must be taken as true by the court and jury. Lee, 43 S.W.3d at 641. It is also binding on the declarant; the declarant cannot introduce evidence to contradict it. Id. This rule is based on the public policy that it would be unjust to permit a party to recover after he has sworn himself out of court by a clear, unequivocal statement. Id.; Dowelanco, 4 S.W.3d at 871. The elements required for a judicial admission are: (1) a statement made during the course of a judicial proceeding; (2) that is contrary to an essential fact or defense asserted by the person making the admission; (3) that is deliberate, clear, and unequivocal; (4) that, if given conclusive effect, would be consistent with public policy; and (5) that is not destructive of the opposing party’s theory of recovery. Lee, 43 S.W.3d at 641-42; Dowelanco, 4 S.W.3d at 871.

Here, Míreles testified that she believed that she was terminated because (1) she refused to violate federal laws about billing, etc. and (2) she refused to commit perjury. As a quasi-judicial admission, under Mendoza, the jury was free to determine the weight to be given the admission. Moreover, Míreles testified about her subjective belief, not facts.

LMG and Mercy rely on Robinson v. The Devereux Foundation, No. 14-01-00081-CV, 2002 WL 1315631 (Tex.App.Houston [14th Dist.] 2002, pet. denied), for the proposition that Mireles’s testimony constitutes a judicial admission. Robinson, however, does not discuss judicial admissions; it determined that the trial court properly granted summary judgment on the plaintiffs Sabine Pilot claim. LMG and Mercy point to the court of appeals’s dicta in which the court of appeals notes that in the plaintiffs answers to interrogatories and in her deposition, the plaintiff “herself identified several other reasons for her termination.” Id. at *2. The court of appeals, however, did not rely on this fact in affirming the trial court’s judgment. Instead, the court of appeals held that the trial court had properly granted summary judgment because the evidence “conclusively negate[d] the essential element of [the plaintiffj’s wrongful termination claim that the sole reason for termination was a failure to commit an illegal act.” Id. at *3 (emphasis added).

[The plaintiff] asserts that [the defendant] has done no more than raise a fact issue between conflicting claims concerning why [the plaintiff] was terminated, citing Higginbotham v. Allwaste, Inc., 889 S.W.2d 411, 416 (Tex.App.Houston [14th Dist.] 1994, writ denied) and Allen v. Powell, 989 S.W.2d 776, 779 (Tex.App.-Amarillo), aff'd in part and rev’d in part by Powell Ind., Inc. v. Allen, 985 S.W.2d 455 (Tex.1998). These eases are distinguishable because here, [the defendant] has conclusively established at least one legitimate reason for terminating [the plaintiff]. Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to produce controverting evidence raising a fact issue. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). [The plaintiff] relies on her affidavit in which she states her belief that she was terminated for refusing to commit an illegal act. However, we cannot say that [the plaintijfj’s subjective belief regarding the “true” reason for her termination, without more, is sufficient to raise a fact issue. To hold otherwise would permit every wrongful-termination plaintiff to avoid summary judgment regardless of the evidence simply by asserting a belief that he or she was actually terminated for refusing to commit an illegal act.

Id. (emphasis added). Thus, not only does Robinson not support LMG and Mercy’s position that Mireles made a judicial admission, it actually supports the opposite. Robinson holds that a plaintiffs mere subjective belief is not sufficient evidence to raise a fact issue. Here, Mireles only testified about her subjective belief. We, therefore, hold that Mireles did not make a judicial admission.

B. Filing Claim with EEOC

Shortly after Mireles was fired, she filed a complaint with the EEOC, stating in an affidavit that she believed that she was fired because of her race. LMG and Mercy argue that her filing the complaint with the EEOC is a judicial admission because “an employee who alleges •wrongful discharge for refusing to perform a criminal act cannot advance additional claims.” Pease v. Pakhoed Corp., 980 F.2d 995, 997 n. 1 (5th Cir.1993). However, Míreles did not advance additional claims. She may have filed a complaint with the EEOC, but when she filed her lawsuit, she only brought a Sabine Pilot claim. She did not allege a whistleblower claim or a race discrimination claim. Thus, Mireles’s simple filing of an EEOC complaint, without more, is not a judicial admission.

JURY CHARGE FINDING

LMG and Mercy also argue that Míreles failed to request or obtain a finding from the jury that she was ordered to commit a crime. A plaintiff must request and obtain a finding on every element of her claim. See Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745, 747 (Tex.App.-San Antonio 1998, no pet.). According to LMG and Mercy, because Míreles elected not to request a finding on an essential element of her claim, we must render judgment for LMG and Mercy. Id. We disagree.

Question 1 asked: Did any of the following Defendants discharge Josefina Míreles for the sole reason that she refused to perform an illegal act? The jury then answered “yes” with respect to both LMG and Mercy. Implicit in the question is the defendants ordering Míreles to perform an illegal act. Otherwise, at whom is she directing her refusal to perform the illegal act? We overrule this issue.

CROSS-ISSUE

Because we are sustaining LMG and Mercy’s Casteel issue, we must reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion. Thus, we need not reach the other issues brought by LMG and Mercy. Míreles, however, has brought a cross-point that she only wants considered if we reverse and remand. Mireles argues in this cross-point, that the “trial court erred in refusing to allow Mí-reles to submit to the jury questions concerning LMG and Mercy’s liability for punitive damages and the appropriate amount of punitive damages to award.” We, however, cannot reach this issue as to do so would be an advisory opinion. See Tex.R.App. P. 47.1; Valley Baptist Med. Ctr. v. Gonzales, 33 S.W.3d 821, 822 (Tex.2000); In re D.D.J., 136 S.W.3d 305, 315 (Tex.App.-Fort Worth 2004, no pet. h).

Conclusion

We reverse the judgment of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.

      . Outside the presence of the jury, the lawyers revealed that the office manager had accused one of the doctors of sexually harassing her.

      . LMG and Mercy also cite Robertson v. Bell Helicopter Textron, Inc., 863 F.Supp. 346, 354 (N.D.Tex.1993), aff'd, 32 F.3d 948 (5th Cir.1994), for the proposition that Mireles made a judicial admission. Robertson, however, is also distinguishable. The plaintiff in that case brought both a qui tam action and a Sabine Pilot claim against his employer. The jury found the defendant liable under the qui tam claim, but it never addressed the Sabine Pilot claim because under the trial court’s instructions, if the jury awarded the plaintiff recovery on his qui tam claim, it was precluded from reaching the Sabine Pilot claim. Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 952 (5th Cir.1994). The trial court refused to enter judgment in favor of the plaintiff, and instead, granted judgment in favor of the defendant as a matter of law. According to the trial court, the plaintiff was not entitled to a jury determination on his Sabine Pilot claim because his qui tam claim was inconsistent with his Sabine Pilot claim. Id. As a result, the trial court dismissed the wrongful discharge claim. The Fifth Circuit affirmed, noting that "to warrant recovery under this narrow common law cause of action, the refusal to perform an illegal act must be the sole reason advanced for the plaintiff’s discharge.” Id. at 953. Here, however, Mireles did not bring inconsistent claims. She only brought a Sabine Pilot cause of action, and that was the only cause of action determined by the jury.


author: DAVID WELLINGTON CHEW, Justice.

text:
    AMERICAN GARMENT PROPERTIES, INC., Appellant, v. CB RICHARD ELLIS-EL PASO, L.L.C., Appellee.
    No. 08-03-00098-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 28, 2004.

      Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellant.

      Joseph L. Hood, Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for Appellee.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

This appeal arises from a suit to recover a real estate brokerage commission. Ap-pellee C.B. Richard Ellis-El Paso, L.L.C. (“CBRE-E1 Paso”) sued Appellant American Garment Properties, Inc. (“AGP”), claiming that AGP had failed to pay the full amount of its real estate commission pursuant to their Agency Agreement and the Purchase Agreement. AGP asserted that the parties had orally modified their agreement to reduce the commission. CBRE-E1 Paso moved for summary judgment as a matter of law and the trial court granted the motion. In its sole issue, AGP contends the trial court erred in granting summary judgment because its summary judgment evidence raised a fact issue that CBRE-E1 Paso orally agreed to reduce its commission. We affirm.

BACKGROUND

On August 1, 2000, CBRE-EL Paso, a licensed real estate brokerage firm, and AGP entered into an Agency Agreement, which gave CBRE-E1 Paso an exclusive right to sell AGP’s property at 10707 Gateway West for twelve months. Under the Agency Agreement, AGP would pay CBRE-E1 Paso a 6 percent commission on the purchase price if a procuring agent represented the purchaser. The Agency Agreement contained a merger clause, which provided that their agreement could only be modified by a “writing signed by the parties.”

On May 30, 2001, AGP and The Tom Hudson Co., a commercial real estate firm, entered into a Purchase Agreement to purchase a 26.05-acre property, described as 10707 and 17027 Gateway West, El Paso, Texas. The purchase price was 4.9 million dollars. The Purchase Agreement provided for payment of a commission to CBRE-E1 Paso and The Tom Hudson Co., in an amount equal to 6 percent of the purchase price, to be divided equally between the brokers. The Purchase Agreement contained a merger clause and a clause prohibiting oral modification of the agreement. The Tom Hudson Co. received a real estate commission in the amount of $147,000, representing one-half of the total brokerage fee due under the Purchase Agreement. AGP refused to pay CBRE-E1 Paso the same, alleging that the parties had orally agreed to reduce CBRE-E1 Paso’s commission.

In response to CBRE-E1 Paso’s summary judgment motion, AGP relied on three affidavits from: (1) Moshe Azoulay, President of AGP; (2) C. Thomas Hudson, President of The Tom Hudson Co.; and (3) Sylvia Borunda Firth, General Counsel for AGP. From this summary judgment evidence, AGP established that in late September or early October 2001, the buyer, Wal-Mart, requested that AGP grant up to an additional three months’ time to extend the closing date. Mr. Azoulay and Michael White, CBRE-E1 Paso’s principal, met on October 11, 2001 to discuss this request. Mr. Azoulay was concerned because any extension would involve incurring over $38,000 per month in fixed carrying costs, including debt service, taxes, and insurance. Mr. Azoulay initially requested that Wal-Mart pay a non-refundable and non-applicable extension deposit of $35,000. Wal-Mart ultimately agreed to pay $25,000 for each month of the closing date extension. According to Mr. Azoulay, Mr. White on behalf of CBRE-E1 Paso agreed that any commission to be paid would be reduced by $13,500 per month for each month of the extension. Mr. Azoulay attested that he could have terminated the Purchase Agreement at tliat time, but because of the agreement made with the buyer and CBRE-E1 Paso, the Purchase Agreement was amended on October 12, 2001.

Mr. Hudson was not involved in the discussions concerning reduction of the commission, but both Mr. White and Mr. Azoulay called him concerning the matter. He later received a copy of a memorandum from Leighton Crutcher of AGP, dated October 25, 2001, and addressed to Mr. White. Mr. Azoulay attested that he had directed a member of his staff to send a letter to Mr. White to .confirm their agreement regarding the reduction in commissions in exchange for extending the Purchase Agreement. The memorandum states in pertinent part:

Per agreement of October 11, 2001, the following items have been agreed to between Mr. Azoulay and Mr. White, regarding real estate in the El Paso area:
As additional .consideration for Mr. Azoulay’s agreement to extend the contract, dated June 12, 2001, by and between American Garment Properties, Inc. and The Tom Hudson Co., Mr. White has agreed that the commission payable to Mike White/CB Richard Ellis will be reduced by $13,500.00 for each month beyond this date that the sales contract for the Gateway property has not closed.
Mr. Azoulay will ‘keep the door open’ to Mr. White, without commitment to buy or sell to [sic] real estate proposals which Mr. White may have.
Mr. Azoulay has requested that I make note of the aforementioned items and place in Mr. White’s file for future reference.

According to Mr. Azoulay, in late 2001 or early 2002, as the sale was being finalized for closing, Mr. White requested that AGP change the monthly commission reduction from $13,500 to $9,000. However, there was no agreement reached to lower the $13,500 figure. At the closing, CBRE-E1 Paso demanded the full broker fee without any reduction. Mr. Hudson attested that prior to closing on January 8, 2002, Mr. White called him and told him that he had met with Mr. Azoulay to discuss further this transaction and the commission reduction requested by Mr. Azoulay and outlined in Mr. Crutcher’s memorandum. Mr. White told him that he proposed a $7,000 to $7,900 reduction for each month of the extension, not the $13,500 figure described in the memorandum. Mr. Azoulay also called Mr. Hudson and advised him of Mr. White’s request to discuss a different sum than the $13,500 figure stated in the memorandum.

On March 14, 2002, Ms. Sylvia Borunda Firth wrote to the Texas Real Estate Commission to request a legal opinion concerning a broker’s failure to abide by an oral agreement with his client to contribute part of the brokers’ commission to the client. In its response, the Commission stated that “[t]he broker’s actions could be construed as violating Section 15(a)(6)(V) of the Real Estate License Act (“the Act”), which authorizes disciplinary action against a licensee for dishonesty, bad faith, or untrustworthiness. The Commission would ordinarily expect a licensee to abide by an agreement with a client to reduce the amount of a commission, even if the agreement is not in writing.” The Commission concluded that it would need to investigate the matter before concluding that the broker violated the Act and informed Ms. Firth how she or her client could file a complaint.

SUMMARY JUDGMENT

Standard of Review

In a traditional motion for summary judgment, the movant has the burden of showing, with competent proof, that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 646, 548-49 (Tex.1985); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex.App.-El Paso 1997, pet. denied), citing, Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). In determining whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49.

Statute of Frauds

AGP asserts that it raised a fact issue that CBRE-E1 Paso orally agreed to reduce its commission by $13,500 for each month the closing was delayed. AGP argues that CBRE-E1 Paso’s oral agreement to reduce its commission was effective and therefore, the trial court erred in granting summary judgment. Specifically, AGP contends that the statute of frauds formerly contained in Section 20(b) of the Texas Real Estate License Act (“RELA”), does not prevent subsequent oral modification of the parties’ agreement because the RELA only imposes the requirement that the agreement be in writing upon the broker, but no such requirement on the public. We disagree.

Here, the Purchase Agreement between The Tom Hudson Co. and AGP provided that CBRE-E1 Paso would receive a commission equal to 6 percent of the purchase, to be divided equally between the brokers. AGP concedes that CBRE-E1 Paso was a third-party beneficiary of the Purchase Agreement. See Callaway v. Overholt, 796 S.W.2d 828, 831-32 (Tex.App.-Austin 1990, petdenied). The Purchase Agreement states that “[t]his Agreement may only be amended or terminated by an instrument in writing signed by both Seller and Buyer.” A written contract not required by law to be in writing may be modified by a subsequent oral agreement even though it provides that it can be modified only by a written agreement. Mar-Lan Industries, Inc. v. Nelson, 635 S.W.2d 853, 855 (Tex.App.-El Paso 1982, no writ). Courts have allowed oral modification in spite of the parties’ no oral modification clause, reasoning that the written agreement is of no higher legal degree than an oral one, and either may vary or discharge the other. Id.; see also Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 153 (Tex.App.-Texarkana 1988, writ denied); Group Hosp. Servcs., Inc. v. One and Two Brookriver Center, 704 S.W.2d 886, 890 (Tex.App.-Dallas 1986, no writ); Hyatt Cheek Builders-Engineers v. Board of Regents of the Univ. of Texas System, 607 S.W.2d 258, 265 (Tex.Civ.App.-Texarkana 1980, writ dism’d).

AGP agrees that the general rule in Texas is that an agreement that contains a no-oral-modification clause can be orally modified if it is not subject to a statute of frauds. The controlling issue in this case then is whether the statute of frauds provision in the RELA, requiring real estate commission agreements be in writing, bars AGP’s oral modification defense. The RELA formerly provided:

An action may not be brought in a court in this state for recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by the party to sign it.

The Texas Supreme Court has interpreted this statutory provision as coming within the Statute of Frauds. Givens v. Dougherty, 671 S.W.2d 877, 878 (Tex.1984). In Denman v. Hall, the Court noted that:

The effect of this statute is to require that contracts by which an agent is employed to buy or sell real estate must be in writing; otherwise they are not enforceable. Its purpose, like that of other sections of the Statute of Frauds, is to prevent fraud arising from parol testimony as to the terms and conditions of such contracts.

Denman v. Hall, 144 Tex. 633, 636, 193 S.W.2d 515, 516 (1946).

Under the Statute of Frauds, a promise or agreement in a contract for the sale of real estate is not enforceable unless the promise or agreement, or a memorandum of it, is in writing and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. See Tex.Bus. & ComCode Ann. § 26.01(a),(b)(4)(Vernon 2002).

On appeal, AGP contends that the plain language of statute of frauds provision in the RELA demonstrates its limited application to only the broker. AGP argues that the only prohibition is that “an action may not be brought” in a court of this state “for the recovery of a commission” for the sale or purchase of real estate unless the promise or agreement is in writing and signed by the party to be charged. Therefore, the statute imposes a requirement upon the broker to have a written agreement in order to recover a commission, but imposes no such requirement upon the public from whom the broker is attempting to recover.

We disagree with AGP’s narrow reading of the statutory provision for several reasons. First, the plain language does not expressly state that the written agreement requirement to the parties’ transaction applies only to the broker. Rather, the RELA statutory provision, like other sections of the Statute of Frauds, is primarily focused on the specific requirements of the parties’ promise or agreement in the context of real estate commissions. Second, as a general principle of contract law, “[w]here a contract within the Statute of Frauds is not enforceable against the party to be charged by an action against him, it is not enforceable by a set-off or counterclaim in an action brought by him, or as a defense to a claim by him.” Restatement (Second) of ContRacts, § 138 (1981). Under AGP’s interpretation of the statute, the parties could mutually agree to orally modify their commission agreement, but CBRE-E1 Paso would nevertheless be barred from bringing any action to recover under that modified agreement because it would be an unenforceable agreement pursuant to the statute of frauds provision. To hold that the commission agreement would be unenforceable against one of the parties, but not the other, is at the very least untenable and would clearly be contrary to the purpose of the RELA’s statute of frauds provision, that is, to prevent fraud by imposing a requirement that such agreements be in writing. See Denman, 144 Tex. at 636, 193 S.W.2d at 516.

Finally, the Texas Supreme Court has not treated oral agreements to modify a real estate commission agreement raised defensively by owners any differently from oral agreements asserted by brokers seeking to recover them commissions. See Givens, 671 S.W.2d at 878 (owner claimed listing agreement had been mutually orally rescinded, but Texas law does not allow mutual oral rescissions of contracts required to be in writing); Denman, 144 Tex. at 638, 193 S.W.2d at 517 (owner claimed that agreement was subject to an oral condition, but the alleged oral agreement was inconsistent with and would nullify the express terms of the written contract). We conclude that the RELA statute of frauds provision in effect at the time applies in this case and AGP’s summary judgment evidence concerning oral modification of the Purchase Agreement did not preclude summary judgment.

AGP also contends that there are additional reasons why the trial court erred in granting summary judgment. Specifically, AGP asserts that it raised a fact issue on ratification because of Mr. White’s attempts to negotiate a lower reduction amount and it raised a fact issue on AGP’s reliance on CBRE-E1 Paso’s agreement to reduce its commission when it agreed to a three-month extension of the closing date.

AGP’s contentions, however, do not raise genuine issues of material fact in this case. As discussed above, the parties’ Purchase Agreement falls within the RELA’s statute of frauds provision. Not every oral modification to a contract within the Statute of Frauds is barred. Group Hosp. Servcs, Inc., 704 S.W.2d at 890. The critical determination is whether the modification materially effects the obligations of the underlying agreement. Id,.; see also Dracopoulas v. Rachal, 411 S.W.2d 719, 721 (Tex.1967)(exception to the general rule against oral modifications of contracts permits the parties to agree orally to extend the time of performance of a contract required to be in writing, so long as the .oral agreement is made before the expiration of the written contract). Where the character or value of the underlying agreement is unaltered, oral modifications are enforceable. Group Hosp. Servcs, Inc., 704 S.W.2d at 890. The oral modification asserted in this case would materially alter the parties’ written agreement, therefore AGP’s summary judgment evidence related to that oral agreement did not raise genuine issues of material fact that precluded summary judgment in CBRE-E1 Paso’s favor.

Moreover, we find that the record does not support any estoppel claim. Estoppel does not arise unless the acts, words, or conduct relied on to establish estoppel have mislead the other party to his detriment, or have caused him to waive a right he had. Reeves v. Hall, 437 S.W.2d 424, 428 (Tex.Civ.App.-Austin 1969, no writ). The conduct or words must have caused the other party to have acted in a way different from the way he would have acted otherwise and to his prejudice. Id. Accepting AGP’s summary judgment evidence as true, we observe that Mr. Azoulay attested to the following:

The Buyer [Wal-Mart] agreed to pay $25,000.00 for each month of the extension, and Plaintiff [CBRE-E1 Paso] agreed that any commission to be paid to it would be reduced $13,500.00 per month for each month of the extension. This' arrangement provided Owner [AGP] with coverage for its continuing carrying costs. I could have terminated the Purchase Contract at ■ that time, which would have meant that Plaintiff would hot have received any commission. Instead, because of the agreement made with the Buyer and Plaintiff to cover Owner’s carrying costs, the Purchase Contract was amended on October 12 to reflect the extension for a maximum period of three months.

In his affidavit, Mr. Azoulay simply states that he could have terminated the Purchase Agreement, but instead, that agreement was amended to reflect the extension of the closing date because of the agreement with Wal-Mart and CBRE-E1 Paso concerning the carrying costs. The summary judgment evidence does not show that Mr. Azoulay was mislead to his detriment by CBRE-E1 Paso nor does it show that he would have acted otherwise.

As there are no genuine issues of material fact and CBRE-E1 Paso is entitled to summary judgment as a matter of law, we conclude the trial court did not err in granting summary judgment in favor of CBRE-E1 Paso. AGP’s sole issue for review is overruled.

We affirm the trial court’s judgment.

      . Acts of 1975, 64th Leg., R.S., ch. 216, § 20(b), 1975 Tex.Gen.Laws 533, 549, amended by Acts of 1997, 75th Leg., R.S., ch. 839, § 27, 1997 Tex.Gen.Laws 2695, 2709. Repealed by Acts of 2001, 77th Leg., R.S., ch. 1421, § 13, 2001 Tex.Gen.Laws 4570, 5020.

      . In addition, AGP argues that there was fact issues that would prevent recovery under the original Agency Agreement. However, we do not reach this contention because we conclude that CBRE-E1 Paso established its right to recover under the Purchase Agreement.


author: RICHARD BARAJAS, Chief Justice.

text:
    Carlton PROCTOR, Brandye Proctor Norman, Eva Smith, Barbara Lynn, Trina Bridgeman Santiago, Treva Bridgeman Walker, Virginia Mae White, and Juanita Ruth Proctor, Appellants, v. Glenda WHITE, individually and as Independent Executrix of the Estate of Clyde C. White, and C. Carlton White, Inc., Appellees.
    No. 08-02-00543-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 28, 2004.
    Rehearing Overruled Jan. 12, 2005.

      David Greenhaw, Randal Patterson, Hollmann, Lyon, Patterson, Odessa, for Appellants.
    David W. Lindemood, Brockett & Linde-mood, Midland, for Appellee.
    Joe White, Odessa, Sonia White, Austin, Inge Kitchens, Lubbock, pro se.

      Leslie G. McLaughlin, Midland, for interested party.
    Before Panel No. 2 BARAJAS, C.J., McCLURE and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a summary judgment granted in favor of Appellees in a lawsuit filed by numerous family members contesting the validity of a will filed in the Estate of Clyde C. White and also asserting various claims against the estate based upon the actions of Mr. White before his death, claiming fraud and various other torts. The trial court originally granted a partial summary judgment in favor of Ap-pellees on the issue of the competency of Clyde C. “White and the question of undue influence, allowing for the admission to probate of the Last Will and Testament of Clyde C. White. Subsequently, the Court severed several causes of action asserted by the Appellants under the Texas Trust Act and transferred those claims to District Court. Finally, the trial court considered the Appellees’ Motion for Summary Judgment filed on the remaining issues and granted the motion entering a final summary judgment in favor of Appellees. Appellants appeal in two issues challenging the court’s granting of the summary judgments. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Clyde C. “White died on March 28, 2001, in Midland County, Texas. On April 10, 2001, an application for probate of his will was filed. On May 16, 2001, Appellants Virginia Mae White and Juanita Ruth Proctor, daughters of Clyde C. White, filed their opposition to probate of the will claiming that their father lacked testamentary capacity to make a valid will and that Appellee Glenda White, their stepmother, exerted undue influence over Clyde C. White at the time of the execution of the will in question. Appellants, Carlton Procter, Brandye Proctor Norman, Eva Smith, Barbara Lynn, Trina Bridgeman Santiago and Treva Bridgeman Walker, joined in the filing by including an Original Petition asserting various causes of action for fraud, breach of fiduciary duty, civil conspiracy, violations of the Texas Trust Act, conversion of property and theft. On December 5, 2001, Glenda White filed a motion for partial summary judgment addressing the claims of testamentary capacity and undue influence. On January 24, 2002, Virginia “White and Juanita Proctor filed their response to the motion, arguing that issues of material fact existed. On May 7, 2002, the trial court granted Glenda “White’s motion for partial summary judgment, finding that the last will and testament of Clyde C. White was a valid will and that it should be admitted to probate. Thereafter, the court set the matter for trial, severing the claims related to the causes of action based on a constructive trust and violations of the Texas Trust Act, transferring them to the district court.

The remaining Appellants’ causes of action relating to allegations of fraud and breach of fiduciary duty were challenged by Appellees’ Motion for Summary Judgment filed October 22, 2002. Appellants Carlton Proctor, Brandye Proctor Norman, Eva Smith, Barbara Lynn, Trina Bridgeman Santiago and Treva Bridgeman Walker, filed their response on November 6, 2002. A supplement to the response was filed on November 8, 2002. Glenda White filed a reply on November 12, 2002. The trial court granted final summary judgment on November 21, 2002. This appeal follows.

II. DISCUSSION

A. Issue Number One

In Issue No. One, Appellants argue that the trial court erred in granting the May 7, 2002 partial summary judgment concerning the claims of lack of testamentary capacity and undue influence. We read this as a legal and factual sufficiency of the evidence challenge, though Appellants’ issue on appeal only contains general language and does not complain of the specific error to be addressed on appeal. Before we reach the merits of their challenge, however, we note that Appellants have failed to cite any case law in support of their position. Their argument on appeal consists of several pages of references to depositions and documents filed in the clerk’s record in support of a series of factual allegations but not a single reference to a relevant case or legal principle. Because the issue is not adequately briefed, it is waived. Tex.R.App. P. 38.1(h).

B. Summary Judgment Standard of Review

Issue No. Two complains that the court erred in granting Appellees’ Motion for Summary Judgment. The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.-El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. See Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).

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

The San Antonio Court of Appeals states the applicable standard of review for no-evidence summary judgments as follows: “ ‘A no-evidence summary judgment is essentially a pretrial directed verdict,’ and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio1998, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998) (no evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See Tex.R.Civ.P. 166a(I); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

C. Issue Number Two

In Issue No. Two, Appellants argue that the trial court erred in granting summary judgment relating to the claims of breach of fiduciary duty, common law fraud, conversion, theft and civil conspiracy. Appellants filed several pleadings asserting various causes of action on the part of some or all the Appellees. The asserted causes of action include the following:

1) that Appellant “Carlton Proctor has never received any of the funds under” the Ingeborg White Testamentary Trust;
2) that Appellant “Brandye Proctor Norman has received some funds under this Trust, but upon further information and belief, has not received all of the funds to which she is entitled”;
3) that Clyde White failed to provide an accounting;
4) that Clyde White concealed an alleged fraud by having his divorce decree with Ingeborg White entered without showing an alleged $500,000.00 debt to Ingeborg White;
5) that Clyde White concealed an alleged fraud by filing an Inventory, Ap-praisement and List of Claims for the Ingeborg White Estate by failing to disclose the alleged $500,000.00 debt;
6) that Clyde White concealed an alleged fraud by using assets and multiple corporations to allegedly hide, transfer and conceal assets;
7) that Clyde White concealed a fraud by allegedly transferring assets amongst trusts and multiple corporations;
8) that Clyde White commingled funds of the Ingeborg White Testamentary Trust with his own property;
9) with regard to Appellants Eva Smith, Barbara Lynn, Trina Bridgeman Santiago, Treva Bridgeman Walker, that “Clyde White confiscated and took all the assets of the estate of Emma Lou White and used those assets for his own benefit and the benefit of his wife Glenda Sue White.”;
10) that Clyde White did not distribute assets from the estate of Emma Lou White pursuant to the laws of descent and distribution;
11) that Clyde White concealed his fraud and breach of fiduciary duty by failing and refusing to provide records or an accounting;
12) that Clyde White further concealed his fraud and breach of fiduciary duty by failing to apply for an administration of the Emma Lou White estate;
13) with regard to Appellants Trina Bridgeman Santiago and Treva Bridge-man Walker, that Clyde White confiscated the assets of their mother’s estate (Pat Bridgeman, Clyde White’s sister), and never filed an inventory, appraisement, and list of claims;
14) that Clyde White and Glenda White used the estate for their own purposes and uses and did not provide any of the estate to Appellants;
15) that Clyde White concealed his fraud and breach of fiduciary duty by fading and refusing to provide ■ records, by failing to perform his duties as independent executor of the Pat Bridgeman Estate, and by failing to file an inventory, appraisement, and list of claims; and
16) that Clyde White commingled funds of the Pat Bridgeman Estate with his own separate and community property;

Appellants sought damages, exemplary damages, an accounting, an appointment of an auditor, prejudgment interest and attorney’s fees. Appellants also sought a declaratory judgment that Clyde White did not own C. Carlton White, Inc., and that all assets of C. Carlton White, Inc. be excluded from the estate of Clyde White.

Appellees filed a motion for summary judgment against all the causes of action asserted by the plaintiffs alleging traditional grounds based on the affirmative defense of statute of limitations to most of the claims and as a “no evidence” motion for summary judgment under Texas Rules of Civil Procedure Rule 166(a)(1). The trial court granted the motion without specifying the grounds. We note for the record, that Appellants’ response though lengthy, is repleat with broad references to factual allegations which Appellants’ indicate that they will prove at a future time. Appellant uses the terms, “the jury will have sufficient evidence,” “a similar affidavit [to one which is attached to this response] is being submitted ... and request for late filing of same is hereby made.” Appellants “will present testimony,” Appellants “will show” all reflecting an intention for Appellants to present evidence in some future proceeding. The evidence which Appellants contend exists to prove these complaints is not included in the record. Further, a review of Appellants’ response to the motion for summary judgment consistently references the depositions and exhibits attached to Appellee’s motion for summary judgment in broad, general, terms as proof that “there are genuine issues of material fact” without further explanation or argument. Appellant’s response is difficult to understand and their summary judgment proof consists of references to the depositions attached to Appellee’s motion, a few documents which illustrate various transactions that occurred among the parties, and three affidavits. The affidavits consist of two documents prepared by Virginia White, attached as exhibits “A” and “F”to the response and one by D.L. Caldwell attached as exhibit “D.” None of the documents attached provide any evidence supportivé of the cause of actions asserted by the Appellants. Whether the documents could become relevant or supportive cannot be determined because of the manner in which the response was drafted. Appellants do not present any argument which explains how any of the documents are proof in support of the allegations and the affidavits on their face prove nothing. Broad conclusory statements are not valid summary judgment evidence. See Heiser v. Eckerd Corp. 983 S.W.2d 313, 316 (Tex.App.-Fort Worth1998, no pet.). Turning to the affidavits, we note that the affidavits provide no evidence of wrong doing on the part of Clyde White and amount to no more than the speculative musings of two members of this family in conflict. Virginia White’s affidavit attached as Exhibit “A” to Appellants’ response is merely a record of her observation of the removal of a metal box from the home of Ingeborg White upon the death of Ingeborg White, December 3, 1984, by Clyde C. White. Virginia White states that the box was one in which Ingeborg White’s important papers were kept. She has not seen the box since that time. Significantly, she makes no mention of what important documents were contained in the box nor does she testify that she ever had any personal knowledge about the contents stored therein. Appellants tender this affidavit as proof of the existence of a note reflecting a debt of $500,000 allegedly owed by Clyde White to the Estate of Ingeborg White. The affidavit as submitted is no evidence of the existence of a note nor is it any evidence of the existence of the $500,000 debt. Virginia White provides a second affidavit describing her involvement with the documentation and clarification of a series of financial transactions that occurred between Emma White (Clyde White’s mother), and Clyde White during some type of IRS investigation of Clyde White in 1989. The affidavit explains that Virginia White prepared some written reports tracking transactions based upon the information provided to her by Clyde White. She stated that “[i]t was a very limited parameter I had access to” confirming that her own knowledge about the transactions at issue is incomplete. The affidavit itself is, in essence, a list of several transactions about which Virginia White has some knowledge. The affidavit fails to make any affirmative representations of wrong doing about which Virginia White has knowledge. Again, it is nothing more that mere speculation and does not rise to the level of more than a scintilla of evidence.

In sum, Appellant’s response is essentially a pronouncement that the accumulated documents establish that “there are genuine issues of material fact” and, therefore, Appellee’s motion for summary judgment should be denied. In fact, a review of the summary judgment evidence establishes that the evidence provided “is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact, and the legal effect is that there is no evidence.” See, Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). For the reasons stated, we affirm the trial court’s ruling and overrule Appellants’ Issue No. Two.

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

      . Appellants also filed a supplemental response to the motion but the supplemental response only consists of certified copies of three documents which had been attached as exhibits to the Appellants' original response.


author: Justice MORRIS.

text:
    Sherrie LOWE, Appellant, v. TOWNVIEW WATERSONG, L.L.C., Watersong Apartments, L.P., and QS Watersong, L.L.C., Appellees.
    No. 05-04-00099-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 29, 2004.
    Sherrie R. Lowe, Dallas, pro se.
    Robert D. Ramage, Dallas, for Appellee.
    Before MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MORRIS.

In this lawsuit involving an apartment rental security deposit, Sherrie Lowe challenges the trial court’s take-nothing summary judgment in her lawsuit against Townview Watersong, L.L.C., Watersong Apartments, L.P., and QS Watersong, L.L.C. Lowe sued appellees alleging they failed to return her security deposit after the apartment she desired to lease was not available on the date promised. In two issues, Lowe asserts the trial court erred in granting summary judgment because her claims against appellees were not barred by limitations and appellees presented insufficient evidence to support summary judgment. In a third issue, Lowe challenges the denial of her motion for new trial. We conclude Lowe has failed to establish any reversible error. We therefore affirm the trial court’s judgment.

According to the summary judgment evidence, Lowe visited an apartment complex intending to rent an apartment. During the visit, she tendered money orders for the application fee and security deposit. Three days later, ownership of the apartment complex was transferred to‘appel-lees. When Lowe returned the following week to move in, she was informed the apartment was not ready. According to Lowe, she requested the return of her security deposit, but the manager wanted to show her other available properties. Lowe claims the manager stated that if she did not like the other properties, her security deposit would be returned. Lowe alleges that, although she rejected the other properties, her security deposit was never returned. She thereafter filed a lawsuit against several entities that are not parties to this appeal. On May 21, 2003, she amended her lawsuit to add appellees as defendants asserting - causes of action against them for fraud, “bad faith,” misrepresentation, and breach of contract. The trial court granted summary judgment in favor of appellees. Lowe timely filed this appeal.

Before we address the merits of Lowe’s issues, we first note some procedural facts that are relevant to our analysis and disposition- of this case. Appellees’ motion for summary judgment rested on both traditional and no-evidence grounds. The traditional motion for summary judgment asserted the affirmative defense of limitations with respect to Lowe’s claims for “bad faith” and misrepresentation. The no-evidence portion of appellees’ summary judgment motion challenged each element of Lowe’s four causes of action, including the “bad faith” and misrepresentation claims.

With respect to their traditional motion for summary judgment, appellees had the burden to demonstrate no genuine issues of material fact existed and that they were entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt., Co., 690 S.W.2d 546, 548-49 (Tex.1985). The no-evidence summary judgment, however, required Lowe to present sufficient evidence to raise a genuine issue of fact on each challenged element of her four claims. See Gen. Mills Rest. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Because the trial court granted appellees’ summary judgment without specifying the grounds on which it was based, Lowe must establish that each summary judgment ground alleged by ap-pellees was insufficient to support the trial court’s judgment. See Star-Telegram, Inc., v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Notwithstanding the above requirements, Lowe’s appellate brief does not appear to address the no-evidence portion of appellees’ summary judgment motion. Her first issue is limited to challenging the limitation's defense as a bar to her misrepresentation and- “bad faith” claims. Likewise, Lowe’s second issue focuses on whether appellees presented sufficient evidence to support their summary judgment motion. Specifically, Lowe contends ap-pellees failed to present evidence disproving the security deposit was transferred to them, the money order she tendered “created a contract between the two parties,” and that “a transaction” occurred between Lowe and appellees. As noted above, however, it was Lowe and not appellees who had the burden to present evidence with respect to the no-evidence summary judgment motion. See Gen. Mills Rest., 12 S.W.3d at 832. Because Lowe has set forth no issue, discussion, or argument challenging the no-evidence grounds for summary judgment, she has not met her appellate burden to establish the trial court’s judgment was erroneous. Because summary judgment may have been granted on the unchallenged no-evidence grounds, we must affirm the trial court’s summary judgment. See Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied).

Nevertheless, to the extent that Lowe’s argument under her second point of error may be construed as attacking the no-evidence summary judgment grounds, we have reviewed the summary judgment evidence Lowe presented in response to appellees’ motion. Lowe’s evidence consisted of copies of the money orders she tendered, the deed transferring ownership of the apartment complex to appellees, an assignment and assumption of leases, an assignment and assumption of contracts, interrogatory responses from another party, and her affidavit. This evidence is insufficient to raise a genuine issue of material fact with respect to appellees’ liability under the causes of action pleaded. There is nothing suggesting that Lowe had any contact with appellees or that her security deposit was in their possession. Importantly, there is no indication that the manager with whom she spoke was employed by appellees or that his or her actions were attributable to appellees. Accordingly, even if we assume Lowe properly challenged the no-evidence grounds, we would still conclude the summary judgment was correctly rendered. We resolve Lowe’s second issue against her. Having concluded the summary judgment is sustainable on appellees’ no-evidence grounds, we need not consider Lowe’s first issue challenging the summary judgment based on limitations. See Tex.R.App. P. 47.1.

Lastly, in her third issue, Lowe complains about the trial court’s denial of her motion for new trial. We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. See Henry v. Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex.App.-Dallas 2003, pet. denied.). Under this standard, we may not overrule the trial comet’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Lowe argues the trial court erred in denying her motion for new trial because the denial contradicts a previous order signed on July 7, 2003 in which the trial court granted a continuance until November 10, 2003. We perceive no conflict between the two orders and conclude Lowe has failed to demonstrate the trial court abused its discretion in denying her motion for new trial. We resolve Lowe’s third issue against her. We affirm the trial court’s judgment.

      . We affirmed the trial court's summary judgment with respect to two of these parties in Sherrie Lowe v. Watersong Villas Apartments and BNC Real Estate, No.05-03-00858-CV, 2004 WL 737757 (Tex.App.-Dallas April 7, 2004, no pet.). The trial court granted summary judgment to the remaining party, FSF Las Cortes Associates L.P., on August 15, 2003. Lowe has not challenged this ruling.

      . Liberally construing Lowe’s brief, we conclude that Lowe may have intended her second issue to challenge the no-evidence portion of appellees' summary judgment motion but misunderstood and misstated the burden of proof applicable to this portion of appel-lees’ summary judgment motion.

      . Lowe mistakenly construes this order as granting a motion for new trial. Although there is a clerical error in the order stating the court "hereby grants Defendants’ Motion for New Trial,” the balance of the order makes clear that it granted a continuance in response to Defendants’ Motion for Continu-anee and reset the case for November 10, 2003.