text:
    In re ATTORNEY GENERAL OF TEXAS.
    No. 09-05-351-CV.
    Court of Appeals of Texas, Beaumont.
    Feb. 9, 2006.

      Gregg Abbott, Atty. Gen., Barry R. McBee, First Asst. Atty. Gen., Casey R. Hoffman, Deputy Atty. Gen., Alicia Key, Director, Child Support Division, Rhonda Amkraut Pressley, Asst. Atty. Gen., for relator.
    Corey Reed, Jasper, pro se.
    Felicia Smith, Call, pro se.
    Before KREGER, GAULTNEY, and HORTON, JJ.
   OPINION

PER CURIAM.

This is an application for writ of mandamus. The Attorney General seeks to vacate a trial court order requiring the parties to submit to paternity testing. The Attorney General contends the trial court erred in granting Corey Reed, Sr.’s request for paternity testing because Reed faded to establish a prima facie case for a bill of review. We hold the trial court abused its discretion in ordering the paternity test because Reed’s petition failed to meet the initial pleading requirement for bringing a bill of review proceeding. We conditionally grant the writ.

On February 6, 2001, the trial court entered an order establishing the parent-child relationship, adjudicating Reed as the biological father of minor child D.R., and ordering Reed to pay child support. While Reed appeared in such proceeding, he did not sign or otherwise expressly agree to the order. On March 9, 2004, the trial court held a hearing, apparently pursuant to a motion filed by the Attorney General’s office and, by agreed order of the parties, ordered Reed to pay child support arrearages.

On March 2, 2005, Reed filed a verified original petition for bill of review, contesting his paternity of D.R. and requesting that the trial court order a paternity test to determine the child’s parentage. Reed alleged that: (1) the child’s mother fraudulently failed to provide Reed with pertinent information concerning the child’s paternity; (2) after the court adjudicated Reed as the child’s father, he learned that he may not be the child’s biological father; (3) his failure to assert the claim was not a result of negligence or fraud on his part; (4) he has no adequate legal remedy; (5) he did not discover the fraud until more than thirty days after the judgment; and (6) the judgment’s invalidity does not appear on the face of the record. On June 1, 2005, Reed filed an unsworn second amended petition that alleged: (1) he was in prison during the pregnancy; (2) after the child’s birth, the child’s mother, the mother’s parents, and Reed’s parents informed him that he was the child’s father; (3) Reed did not request a paternity test prior to the hearing establishing the parent-child relationship because he trusted the information he was given; (4) as the child grew, Reed could see no similarities between himself and the child and he began to question the child’s paternity; and (5) Reed has since learned through DNA testing that he is not the child’s biological father. Reed attached a genetic test report conducted by Orchid Genescreen, and claimed that the report excluded him as the child's father. The Attorney General contested the admissibility and accuracy of this test.

On July 12, 2005, the trial court, without conducting a hearing on Reed’s bill of review, ordered that the parents and child submit to paternity testing. The Attorney General seeks to vacate this order.

A court of appeals will issue a writ of mandamus if the trial court abuses its discretion and the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839, 840 (Tex.1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. at 839.

“A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment no longer appealable or subject to a motion for new trial.” Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). A petition for a bill of review must allege specific facts and demonstrate the earlier judgment was rendered as the result of fraud, accident, or wrongful act of the opposite party or official mistake, unmixed with the complainant’s own negligence. Id. at 408. The petitioner must further allege, with particularity, sworn facts sufficient to constitute a meritorious defense, and as a pretrial matter, present prima facie proof to support the contention. Id. “This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious ‘full-blown’ examination of the merits.” Id.

A petition for bill of review must allege extrinsic fraud. See Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989). “[Ffeilure to plea extrinsic fraud will result in denial of the right to a trial by bill of review.” Ince v. Ince, 58 S.W.3d 187, 190 (Tex.App.-Waco 2001, no pet.)(citing Tice, 767 S.W.2d at 700). Extrinsic fraud is fraud which denies a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Tice, 767 S.W.2d at 702. It is “wrongful conduct practiced outside of the adversary trial — such as keeping a party away from court, making false promises of compromise, denying a party knowledge of the suit — that affects the manner in which the judgment is procured.” Ince, 58 S.W.3d at 190 (citing Alexander v. Hagedom, 148 Tex. 565, 226 S.W.2d 996, 1002 (1950)). “Extrinsic fraud is ‘collateral’ fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial.” Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984)(citing Crouch v. McGaw, 134 Tex. 633, 639, 138 S.W.2d 94, 97 (1940)).

Intrinsic fraud, on the other hand, “relates to the merits of the issues which were presented and presumably were or should have been settled in the former action.” Tice, 767 S.W.2d at 702. Intrinsic fraud “is inherent in the matter considered and determined in the trial ‘where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been litigated therein.’ ” Montgomery, 669 S.W.2d at 313 (quoting Mills v. Baird, 147 S.W.2d 312, 316 (Tex.Civ.App.-Austin 1941, writ ref'd)).

Reed’s petition fails to allege extrinsic fraud. Reed’s petition alleges that the child’s mother fraudulently failed to provide him with pertinent information concerning the child’s paternity and that after the court adjudicated Reed as the child’s father, he learned through DNA testing that he is not the child’s biological father. The issue of paternity was resolved by the trial court in the original action. The mother’s alleged fraud relates directly to paternity and Reed had the opportunity to contest paternity at trial. Thus, Reed’s petition only alleges, at most, intrinsic fraud. As only extrinsic fraud can be the basis of a bill of review, Reed’s petition is insufficient. Tice, 767 S.W.2d at 702. Further, Reed’s second amended petition, the live pleading at the time of the trial court’s order for discovery, is un-sworn.

Reed did not meet the initial requirement for bringing a bill of review proceeding; he did not adequately allege in his petition that the prior judgment was rendered as the result of fraud, accident, or wrongful act of the opposite party or official mistake. Reed further failed to allege, with- particularity, sworn facts to constitute a meritorious defense. In order to invoke the equitable powers of the court by a bill of review, the complainant must file a petition that meets those initial requirements set forth by the Baker court. “This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious ‘full-blown’ examination of the merits.” Baker, 582 S.W.2d at 408. We read this to include the discovery process. See Amanda v. Montgomery, 877 S.W.2d 482, 485-87 (Tex.App.-Houston [1st Dist.] 1994, no writ) (where petition for bill of review was fatally defective, discovery order is not allowed). We hold the trial court abused its discretion in ordering the parties to submit to paternity testing when Reed’s petition fails to meet the initial requirements for a bill of review proceeding. Where the bill of review complainant’s allegations are legally insufficient to warrant a bill of review, extraordinary relief is appropriate. See Tice, 767 S.W.2d at 702. We order the trial court to vacate its order of July 12, 2005. We are confident the trial court will comply with this opinion. The writ will issue only if the court does not.

WRIT CONDITIONALLY GRANTED.


source: Caselaw Access Project

author: BILL VANCE, Justice. TOM GRAY, Chief Justice

license: Public Domain

text:
    Gary Shane KINKAID, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00368-CR.
    Court of Appeals of Texas, Waco.
    Feb. 15, 2006.

      Mark D. Griffith, Griffith & Associates, Waxahachie, TX, for Appellant/Relator.
    Joe F. Grubbs, Ellis County Dist. Atty., Waxahachie, David W. Vernon, Special Prosecutor Johnson Asst. Dist. Atty., Cle-burne, TX, for Appellee/Respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION ON PETITION FOR DISCRETIONARY REVIEW

BILL VANCE, Justice.

As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this modified opinion within 30 days after the State filed a Petition for Discretionary Review. Tex.R.App. P. 50.

INTRODUCTION

Gary Shane Kinkaid pled guilty to the felony offense of aggravated assault with a deadly weapon. Adjudication was deferred and he was placed on community supervision for a period of five years. In the order placing Kinkaid on deferred adjudication, the trial court did not enter a deadly weapon finding. The trial court ultimately revoked Kinkaid’s community supervision, adjudicated his guilt, made a deadly weapon finding, and sentenced him to twenty years in prison. Kinkaid appeals his revocation. In his sole issue, Kinkaid contends that the trial court erred by entering an affirmative deadly weapon finding in the order revoking his community supervision.

LAW AND ANALYSIS

As the Sampson court explained, the purpose of making an affirmative deadly weapon finding is to assist in calculating a prisoner’s parole eligibility date. Sampson v. State, 983 S.W.2d 842 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd). Parole eligibility applies only to incarcerated individuals. It is not applicable when the adjudication of guilt of a defendant has been deferred and he is placed on community supervision. Id. Therefore, a deadly weapon finding is not appropriate in an order of deferred adjudication. Id.

If a trial court determines a defendant has violated the terms of his deferred adjudication and assesses imprisonment as punishment, it is then appropriate to make an affirmative deadly weapon finding in the order adjudicating guilt. Tex.Code CRim. PROC. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.2005). In this case, the trial court correctly entered the affirmative deadly weapon finding in the order adjudicating guilt.

We overrule Kinkaid’s sole issue.

CONCLUSION

The trial court’s judgment is affirmed. Our opinions and judgment dated December 14, 2005, are withdrawn, and this opinion is substituted as the opinion of the court. Tex.R.App. P. 50. The State’s Petition for Discretionary Review is dismissed by operation of law. Id.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice

concurring on petition for discretionary review.

I withdraw my dissenting opinion dated December 14, 2005 and substitute this concurring opinion. What follows is my original dissenting opinion with the modifications necessary to reflect that the majority now overrules Kinkaid’s sole issue regarding the trial court’s deadly weapon finding.

The majority originally failed to distinguish deferred-adjudication community supervision from regular community supervision or imprisonment. See Saffell v. State, Nos. 05-03-01549-CR & 05-03-01550-CR, 2005 WL 289349, at *3 (Tex.App.-Dallas Feb.8, 2005, no pet.) (not designated for publication) (mem.op.) (distinguishing imprisonment from deferred-adjudication community supervision); cf. Rivers v. State, 99 S.W.3d 659 (Tex.App.-Waco 2003, no pet.) (regular community supervision). “The purpose of a trial court’s making an affirmative finding of a deadly weapon is to aid in calculating a prisoner’s parole-eligibility date.” Johnson v. State, No. 05-00-00464-CR, 2002 WL 1788002, at *3 (Tex.App.-Dallas Aug.5, 2002, no pet.) (not designated for publication); accord Sampson v. State, 983 S.W.2d 842, 843 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). “An affirmative finding of a deadly weapon is not applicable to an order of deferred adjudication because parole eligibility applies to persons who are imprisoned.” Sampson at 843 (citing Tex. Gov’t Code Ann. § 508.145(d) (Vernon [2004])); Johnson at *3. “If a trial court determines that a defendant has violated the terms of his deferred adjudication and assesses imprisonment as a punishment, the trial court is required to enter any affirmative finding of a deadly weapon in its order adjudicating guilt.” Sampson at 843-44 (citing Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. [2005])); accord Johnson at *3. “The finding would have had no legal consequence at the earlier stage in the proceedings, so it was not required to be entered at that time.” 43 George E. Dex & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 38.110, at 738 (2d ed.2001).

Conclusion

Because the majority now affirms the trial court’s judgment, including the deadly weapon finding, I concur in the judgment.

      . The State’s PDR is an excellent discussion of the issue and the ramifications of our original opinion.


author: SARAH B. DUNCAN, Justice.

text:
    Yvonne Maria ESPINOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00345-CR.
    Court of Appeals of Texas, San Antonio.
    Oct. 5, 2005.

      Julie B. Pollock, Hitchings & Pollock, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Crim. Dist. Atty.,San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Yvonne Maria Espinoza was convicted of two counts of serious bodily injury to her son, Jarred, and sentenced to sixty years on each count. Because we overrule the five points of error Espinoza raises on appeal, we affirm the trial court’s judgment.

Background

Espinoza waited approximately eight days to bring Jarred to Santa Rosa Children’s Hospital to seek treatment for the burns she claimed he suffered accidentally. When examining Jarred, medical personnel also discovered a cut near his rectum. Suspicious, they called the San Antonio Police Department. After finishing paperwork at the hospital, Espinoza accompanied Detective Rene C. Gallegos to the station to provide a statement. In a subsequent interview with Detective Michael Ross that same day, Espinoza admitted she intentionally burned and cut Jarred. After Gallegos reduced Espinoza’s confession to writing, Ross and Gallegos drove Espinoza to the hospital as she had requested. Maintaining surveillance while awaiting a warrant, Ross and Gallegos arrested Espinoza when she left the hospital.

Custodial Interrogation

Espinoza first argues the trial court erred in denying her motion to suppress her oral and written statements because police officers failed to give her Miranda warnings and failed to comply with article 38.22 of the Texas Code of Criminal Procedure. Because we conclude Espinoza was not in custody when she made her statements, we disagree.

Standard of Review and Applicable Law

The trial court’s ruling on a motion to suppress is subject to review for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). Therefore, we view the evidence in the light most favorable to the trial court’s ruling, affording almost total deference to the trial court’s determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses’ credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). We review de novo the court’s application of the law to the facts. Id. at 89.

Article 38.22 and Miranda apply only to statements made as the result of custodial interrogation. See TexCode Crim. PROC. Ann. art. 38.22, § 5 (Vernon 2003) (nothing in article precludes admission of statement made by accused if statement does not stem from custodial interrogation); Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A person is “in custody” only if a reasonable person would believe that he was deprived of his freedom to a degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996) (citing Stansbury v. California, 511 U.S. 318, 321, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In Dowthitt, the Texas Court of Criminal Appeals outlined four general situations that might constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255. We are concerned with situations (1), (3), and (4). In interpreting the fourth situation, we consider the following factors: (1) whether the suspect arrived at the place of interrogation voluntarily, (2) the length of the interrogation, (3) whether the suspect’s requests to see relatives and friends are refused, (4) the degree of control exercised over the suspect, and (5) whether a “pivotal admission established custody.” Xu v. State, 100 S.W.3d 408, 413 (Tex.App.-San Antonio 2002, pet. ref'd). Because these factors are also determinative of whether custody attaches in the first and third situations, we focus our discussion on these factors.

Discussion

As she herself admitted, Espinoza came to the station voluntarily, arriving at approximately 4:00 p.m. and waiting until Gallegos began questioning her at approximately 6:30 p.m. After obtaining Espinoza’s statement, Gallegos concluded the interview at approximately 8:15 p.m. The evidence does not reveal that Espinoza made a specific request to see friends or relatives. Espinoza testified she asked Gallegos several times whether she would be able to go back to the hospital and see Jarred and he responded that she would. She also testified that, in response to what she perceived as Ross’s bullying tactics, she informed the detectives several times that she just wanted to go back and be with Jarred. However, it is unclear whether these pleas were truly requests to see Jarred or non-responsive answers to Ross’s questions. Thus, the trial court could have chosen to believe Espinoza’s pleas were in fact non-responsive answers.

The degree of control exercised over Espinoza did not rise to a level that deprived her of her freedom of action in any significant way or that would lead a reasonable person to believe that her freedom of movement had been significantly restricted. As Espinoza herself admitted, she was never placed under arrest or in handcuffs, was alone for approximately two hours while waiting for Gallegos, was permitted to use the restroom whenever she wanted, was never told she could not leave while waiting or during the interview, was told during the interview several times that she was there voluntarily and could leave at any time, and was permitted to leave at the end of the interview. Espinoza did testify that the door to the office in which she waited for Gallegos was closed, but not locked, she asked to use the telephone but was told she could not, she was never told that she could leave while she waited for Gallegos and, in fact, when she asked if she could leave, the police officers around would tell her to ask Gallegos, and that each time she went to use the restroom while waiting for Gallegos she was asked what she was doing and escorted to and from the restroom. However, the court could have chosen to disregard some aspects of Espinoza’s testimony and chosen to believe Gallegos’s, who testified that Espinoza “walk[ed] freely in the hallways.”

And, given the existence of other circumstances, Espinoza’s pivotal admission did not establish custody. It is true that when Gallegos began interviewing Espinoza he knew she had told the responding officer that she had left Jarred in the bathtub with hot water running and that the cut was due to a razor. And when Espinoza, having already been interviewed by Ross and now dictating her incriminating statement to Gallegos, admitted she purposefully made the water hotter because of her anger and held Jarred under the scalding water, Gallegos admitted he might have had probable cause to arrest Espinoza. By this time, Gallegos and Ross had ruled out Espinoza’s boyfriend as a suspect and thus the focus was entirely on Espinoza. While it is debatable whether Ross’s bullying tactics could be considered a manifestation of his and Gallegos’s belief that Espinoza was the prime suspect, the fact remains that, unlike the suspect in Xu, who was informed at the beginning of his first interview at the station that he was free to leave but not again in his second interview five hours later when he made his pivotal admission, Espinoza was repeatedly told she could leave. And, unlike the suspect in Xu, Espinoza was interviewed once for four hours, not four separate times during a fifteen-hour span. Moreover, Espinoza’s interview occurred eight days after the event, not immediately thereafter; there is no evidence of any language barriers; Espinoza was unemotional; and Espinoza was not denied any opportunity to speak to a friend or relative. See Xu, 100 S.W.3d at 410-12, 414-15.

The trial court’s findings that Espinoza freely went to the station, was never restrained in her movements, and was free to leave at all times as communicated to her are supported by the record. Based on these findings, the court correctly concluded that Espinoza was not in custody. Because Espinoza was not in custody while being questioned, the failure to advise her of her rights did not render the statements inadmissible under either Miranda or article 38.22. We therefore conclude that the trial court did not abuse its discretion in denying Espinoza’s motion to suppress.

Lessee-included Offense

Espinoza next argues the trial court erred in denying her motion to instruct the jury on the lesser included count of bodily injury. We disagree.

To determine whether a charge on a lesser included offense should have been given, we apply a two-pronged test. See Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). Second, the record must contain some evidence that would permit a rational jury to acquit the defendant of the greater offense while convicting him or her only of the lesser included offense. Id. We are concerned with the second-prong.

“Serious bodily injury” means bodily injury “that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen.Code Ann. § 1.07(46) (Vernon Supp.2004). In contrast, “bodily injury” is “physical pain, illness, or any impairment of physical condition.” Id., § 1.07(8). Espinoza contends a rational jury should have found her guilty only of bodily injury because her brother testified that Jarred was released from the hospital the next day, did not need skin grafts, and had burns that healed well and left only a small faded scar. However, “[t]he relevant issue [is] the disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment.” Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim.App. [Panel op.] 1980), overruled on other grounds, Hedicke v. State, 779 S.W.2d 837 (Tex.Crim.App.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990). Here, Espinoza admitted she intentionally made the water hotter to the point that it “was scorching,” held Jarred under the water for ten to fifteen minutes because of her anger, and listened to Jarred cry and scream. And Jarred’s treating physician testified that, upon Jarred’s admission to Santa Rosa eight days later, Jarred had second and third degree burns over fifteen percent of his body and the extent of the injury posed a high risk of death from potential bacterial infection if left untreated. She also testified the third-degree burns on Jarred’s toes fused them together, permanently disfiguring them. This evidence establishes the disfiguring and impairing quality of Jarred’s bodily injury at the time Espinoza burned him. Because there is no evidence that Jarred’s injury was not “serious” within the meaning of the Penal Code, Espinoza has failed to satisfy Rousseau’s second-prong. Accordingly, we hold the trial court did not err in refusing Espinoza’s request for a charge on the lesser-included offense of bodily injury.

Evidentiary Hearing

Finally, Espinoza argues the trial court erred in denying her an evidentiary hearing on her motion for new trial grounded upon newly-discovered evidence. We again disagree.

A defendant is not entitled to a hearing on a motion for new trial unless the motion and supporting affidavits reflect that reasonable grounds exist for granting a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003). Reasonable grounds do not exist-for granting a motion for new trial grounded upon newly-discovered evidence unless the motion meets the requirements of article 40.001 of the Texas Code of Criminal Procedure, which provides that “[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex.Code CRiM. PROC. Ann. art. 40.001 (Vernon 2003). Interpreting this statute, the Texas Court of Criminal Appeals has held that “a defendant is entitled to have his motion for new trial granted if’:

(1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to. discover the new evidence -was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true aiid will probably bring about a different result in a new trial.

Wallace, 106 S.W.3d at 108; see also Keeper v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App.2002). A matter is collateral if it seeks only to test a witness’s general credibility. Keller v. State, 662 S.W.2d 362, 365 (Tex.Crim.App.1984).

In her motion for new trial, Espinoza alleges she is entitled to a new trial because of “newly-discovered evidence” consisting of a newspaper article reporting a witness’s belief that his statement was coerced by Ross, the record of a hearing concerning this witness’s testimony, and an attorney’s affidavit expressing his belief that his client’s confession was coerced by Ross. However, these accounts seek only to test Ross’s general credibility and are therefore merely collateral. Accordingly, Espinoza’s motion for new trial grounded upon this allegedly newly-discovered evidence fails to reflect a reasonable ground for granting a new trial.

Espinoza also argues the trial court erred in denying her an evidentiary hearing on her motion for new trial because she was guaranteed such a hearing by section 6 of article 38.22 of the Texas Code of Criminal Procedure, which provides that “the state or the defendant shall be entitled to present any new evidence on the issue of the voluntariness of the statement prior to the court’s final ruling and order stating its findings.” TexCode Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2003). However, Espinoza’s argument relies solely upon the statutory language; she cites no authority supporting her interpretation of the statute. Nor have we found any such authority. We must therefore be guided by the usual rules of statutory construction.

“In interpreting a statute, we adhere to our cardinal rule of statutory construction: We interpret a statute in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended.” Griffith v. State, 166 S.W.3d 261, 262 (Tex.Crim.App.2005). Here, Espinoza’s construction of section 6 would lead to an absurd result that the legislature could not possibly have intended: requiring a trial court to hold an evi-dentiary hearing every time a defendant moves for a new- trial on the grounds of newly-discovered evidence relating to the voluntariness of a statement without regard to whether the allegedly newly-discovered evidence is merely collateral to, or cumulative of, other evidence presented at trial or whether it would probably bring about a different result. For this reason, we hold section 6 implicitly requires a movant to meet at least the first, third, and fourth requirements most recently set forth in Keeter: (1) the evidence is “new”; (2)the “new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (3) the new evidence is probably true and will probably bring about a different result in another trial.” Keeter, 74 S.W.3d at 36-37. As we stated above, Espinoza’s allegedly newly-discovered evidence is merely collateral.

Whether viewed under article 40.001 or article 38.22 of the Texas Code of Criminal Procedure, Espinoza’s motion for new trial fails to reflect a reasonable ground for granting a new trial. We therefore hold the trial court did not err in denying her an evidentiary hearing on the motion and affirm the trial court’s judgment.

      . Ross testified he called Espinoza a liar, "hollered” at her, and "got in her face.”

      . Because we are able to resolve this issue on this basis, we do not decide the meaning of "the court's final ruling and order stating its findings” as used in section 6.


author: W. KENNETH LAW, Chief Justice.

text:
    Cherrie CUNNINGHAM, Individually and as Next Friend of Troy Conaster, Appellant, v. COLUMBIA/ST. DAVID’S HEALTHCARE SYSTEM, L.P. d/b/a South Austin Hospital, Appellee.
    No. 03-04-00711-CV.
    Court of Appeals of Texas, Austin.
    Oct. 13, 2005.
    Rehearing Overruled Feb. 6, 2006.

      James M. Terry, Jr., George J. Mallios, Lexington, TX, for Appellant.
    J. Stephen Dillawn, Erin K. Dickinson, Germer Gertz Beaman & Brown, L.L.P., Austin, TX, for Appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

Cherrie Cunningham, individually and as the next friend of her late father, Troy Conaster, filed suit against appellant Columbia/St. David’s Healthcare System, L.P., (“Columbia”) on May 29, 2003, alleging that the hospital’s medical negligence caused her father’s death. The trial court granted a no-evidence summary judgment in favor of Columbia, dismissing each of Cunningham’s medical malpractice claims. She now appeals, urging that (1) although her expert was not timely designated, the trial court should have considered the expert’s affidavit as summary judgment evidence and (2) alternatively, the trial court should have granted her motion for continuance. We will affirm.

DISCUSSION

A defendant moving for summary judgment under Rule 166a(i) must establish that “after adequate time for discovery ... there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex.R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 98 (Tex.2004). The plaintiff then carries the burden to put forth enough probative evidence to raise a genuine issue of material fact on each of the challenged elements. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002).

To preclude summary judgment in a medical malpractice case, the plaintiff must offer expert testimony on the essential elements of its claim, including the standard of care, breach, and causation. American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex.2001); Shelton v. Sargent, 144 S.W.3d 113, 124 (Tex.App.-Fort Worth 2004, pet. denied); see also Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (generally discussing plaintiffs burden in no-evidence summary judgment); Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied) (discussing elements of medical malpractice claim).

In order for a trial court to consider the plaintiffs expert’s testimony as summary judgment evidence, the plaintiff must have timely designated that expert as a testifying witness. See Tex.R. Civ. P. 198.6. According to Texas Rule of Civil Procedure 195.2, a plaintiff may satisfy this designation requirement by furnishing the information listed in Rule 194.2(f) in response to a request for disclosure. Id. 194.2(f); 195.2. Although a plaintiff may have supplied some information about its expert by filing an expert report, as is statutorily required in medical malpractice cases, the filing of such a report does not satisfy the procedural requirement of “designating” an expert. Coleman v. Woolf, 129 S.W.3d 744, 748 (Tex.App.-Fort Worth 2004, no pet.); Patriacca v. Frost, 98 S.W.3d 803, 304 (Tex.App.-Houston [1st Dist.], no pet.).

A plaintiffs expert will be considered designated “timely” if the requested information is provided either 90 days before the end of the discovery period or as otherwise ordered by the court, such as in a Level III scheduling order. See Tex.R. Civ. P. 190.4; 195.2. If a party fails to timely designate an expert witness — ie., fails to timely provide an adequate response to the Rule 194.2(f) request — then testimony from that expert will be excluded unless the trial court determines that the party seeking to introduce the evidence established either (1) the existence of good cause for its failure or (2) that it would not unfairly surprise or prejudice the other parties to admit the evidence despite the inadequate discovery response. Id. 193.6(a), (b). Even if the party seeking to admit the evidence is unable to establish either good cause or a lack of unfair surprise or prejudice, the trial court has discretion to grant a continuance to allow the party to make, amend, or supplement its discovery response and to allow the other parties to conduct additional discovery based on any new information presented by that response. Id. 193.6(c).

In the instant case, according to a Level III scheduling order, Cunningham was required to designate all experts by June 29, 2004. Cunningham filed an initial expert report by Dr. Charles Marable, in compliance with article 4590i, in August 2003. As of December 2003, Columbia had served a request for disclosure on Cunningham seeking all information listed in Rule 194.2(f), and she had responded only that “Plaintiffs have not yet determined testifying expert witnesses. Plaintiffs will supplement pursuant to the court’s Scheduling Order for a Level III case.” When the June deadline passed without Cunningham supplementing her response to Columbia’s request for disclosure, Columbia moved for a no-evidence summary judgment. On August 2, 2004, Columbia urged that it was entitled to judgment as a matter of law because, given Cunningham’s failure to timely designate an expert witness in this medical malpractice case, she had no probative evidence on the essential elements of her claims. See id. 166a(i); Palacios, 46 S.W.3d at 876, 879.

Cunningham responded to Columbia’s summary judgment motion on September 7, 2004, attaching Marable’s affidavit for the first time. Cunningham relied on this affidavit as proof that she had produced more than a scintilla of evidence to raise genuine issues of material fact on each of her essential elements. Although she acknowledged that Marable had not been timely designated as an expert witness, she urged the trial court to consider his testimony as summary judgment evidence because she had good cause for the untimely designation and because it would not unduly prejudice Columbia. See Tex.R. Civ. P. 193.6(a), (b). The court granted Columbia’s motion to strike Mara-ble’s affidavit, granted Columbia’s no-evidence summary judgment motion, and denied Cunningham’s motion for continuance. Cunningham now challenges the trial court’s actions.

As a preliminary matter, Cunningham urges that the rules of civil procedure governing discovery practices do not apply in summary judgment proceedings because such proceedings are wholly governed by Rule 166a. See id. 190-215; 166a. Accordingly, Cunningham argues that evidence offered for summary judgment purposes need not satisfy the standards of admissibility required for trial evidence. Hence, she contends that Rule 193.6 — dictating that expert testimony is inadmissible unless the expert has been properly designated — does not prohibit a non-designated expert’s testimony'from being considered as summary judgment evidence. See id. 193.6. Cunningham bases her argument on Johnson v. Fuselier, 83 S.W.3d 892, 897 (Tex.App.-Texarkana 2002, no pet.), and Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex.App.-Corpus Christi 2003, no pet.), both of which hold that, because Rule 166a provides a “comprehensive framework” for summary judgment procedure, the discovery rules are inapplicable to the admission of evidence at that stage.

Cunningham acknowledges, however, that in a case with facts nearly identical to the instant ones, this Court has taken the contrary position. In Ersek v. Davis & Davis, P.C., we held that, following the 1999 revisions to the rules of civil procedure, the discovery rules apply in summary judgment proceedings and, as such, the plaintiff’s expert’s affidavit could not be considered as evidence for summary judgment purposes where the plaintiff failed to timely designate the expert and was unable to establish either good cause for a late designation or a lack of unfair surprise or prejudice. 69 S.W.3d 268, 273 (Tex.App.-Austin 2002, pet. denied) (citing Tex.R. Civ. P. 193.6). We decline to depart from our reasoning in Ersek and, therefore, hold that the rules requiring an expert to be designated before any testimony from that expert can be admitted apply in summary judgment proceedings, such that a non-designated expert’s affidavit cannot be considered as summary judgment evidence absent a showing of good cause or a lack of unfair surprise or prejudice. See Tex.R. Civ. P. 193.6.

The question then becomes whether Cunningham satisfied her burden to show either good cause for her untimely designation or a lack of unfair surprise or prejudice to Columbia. If Cunningham failed to meet this burden, then under Rule 193.6, the court’s decision to strike Marable’s affidavit should be affirmed. Id.; Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992). We review this decision under an abuse of discretion standard. Ersek, 69 S.W.3d at 271. This Court may not substitute its judgment for that of the trial court absent a clear abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 983 S.W.2d 1, 5, 13 (Tex.App.-Fort Worth 1996). Under this test, the trial court’s decision will be upheld unless the record demonstrates that the court acted without reference to any guiding principles of law. Id.

Cunningham contends that she established good cause with evidence that the failure to timely designate Marable was an inadvertent mistake based on a miscom-munication between her attorney and his legal assistant. Cunningham attached the legal assistant’s affidavit to her summary judgment response, averring that

[the assistant] checked to see whether the designation had been filed ..., saw two [4590i report] documents in the file ..., [and] believed that these documents were the designations required to be filed by June 29, 2004. When [Cunningham’s attorney] asked if the designation had been filed with the court, [the assistant] told him that they already had been filed.

The Texas Supreme Court has held that “[c]ounsel should not be excused from the requirements of the rule without a strict showing of good cause.” Alvarado, 830 S.W.2d at 915 (discussing Rule 215, predecessor to Rule 193.6 before 1999 amendments). Because lawyers are responsible for the actions of the legal assistants that they supervise, the procedural mistakes made by a legal assistant are imputed to the supervising attorney. See Tex. Disciplinary R. Profl Conduct 5.03 (reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A, art. 10, § 9 (West 2005)); see also Weaver v. E-Z Mart Stores, 942 S.W.2d 167, 170 (Tex.App.-Texarkana 1997, no writ). “[I]nadvertence of counsel, by itself, [is] not good cause” because, if it were, “the exception would swallow up the rule, for there would be very few cases in which counsel would admit to making a deliberate decision not to comply with the discovery rules.” Alvarado, 830 S.W.2d at 915; see also Agristor Credit Corp. v. Donahoe, 568 S.W.2d 422, 426 (Tex.Civ.App.-Waco 1978, writ ref'd n.r.e.) (because secretarial mistakes are imputed to attorney and inadvertence of counsel is insufficient, counsel’s excuse that secretary failed to inform him about discovery deadlines was not good cause). Thus, the trial court’s determination that Cunningham’s excuse did not constitute good cause was not an abuse of discretion because it was in accordance with the law.

Cunningham also urged that, despite her failure to designate Marable as a testifying expert witness, Columbia would not be unfairly surprised or prejudiced by the trial court’s consideration of Marable’s affidavit as summary judgment evidence because Marable’s 4590i report had been on file since August 2003, a year before Columbia filed its summary judgment motion.

A primary purpose of the discovery rules is to prevent trial by ambush. Alvarado, 830 S.W.2d at 914. In preparing for trial, a party ought to be “assured that a witness will not be called because opposing counsel has not identified the witness in response to a proper [discovery request].” Id. at 915. Thus, even if the party knows the substance of the witness’s opinions, the non-designated witness should not be permitted to testify because the party is not on notice that the witness will be called and, thus, cannot adequately prepare. See id.; Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671 (Tex.1990); State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 627-28 (Tex.App.-El Paso 2005, pet. filed). Further, “[a] party should not have to anticipate the disclosure of a material witness merely because his or her testimony would be vital to the case. The discovery rules were revised to make that sort of anticipation unnecessary.” Matagorda County Hosp. Dist. v. Burwell, 94 S.W.3d 75, 83 (Tex.App.-Corpus Christi 2002, no pet.).

Merely filing a medical malpractice expert’s 4590i report does not “designate” that expert as a testifying witness so as to put the opposing party on notice to prepare a rebuttal. See Coleman, 129 S.W.3d at 748; Patriacca, 98 S.W.3d at 304. Consequently, the fact that a non-designated expert’s initial report has been filed does not prevent the opposing party from suffering unfair surprise or prejudice if that expert’s testimony is then considered as evidence for summary judgment purposes. Therefore, Cunningham’s claim that Columbia would not be unfairly surprised or prejudiced by the admission of Marable’s affidavit is unpersuasive, and the trial court did not abuse its discretion in determining that Cunningham failed to carry her burden under Rule 193.6. See Ersek, 69 S.W.3d at 271.

Because Cunningham concedes that she failed to designate Marable as an expert witness and because both her arguments on the existence of good cause and the lack of unfair surprise or prejudice are without merit, we conclude that the trial court did not abuse its discretion in refusing to consider Marable’s affidavit as summary judgment evidence. See Tex.R. Civ. P. 193.6; Gammill, 983 S.W.2d at 13. Because Mar-able’s properly-excluded affidavit was the only probative evidence relied on by Cunningham to support her assertion that she raised a genuine issue of material fact on each of her essential elements, the trial court did not err in granting Columbia’s no-evidence summary judgment, which dismissed each of Cunningham’s medical malpractice claims. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (no-evidenee summary judgment should be affirmed when there is a “complete absence of evidence on a vital fact” or when “the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact.”).

In the alternative, Cunningham argues that even if she failed to carry her burden of establishing either good cause or a lack of unfair surprise or prejudice, the trial court erred by not granting her motion for continuance. Rule 193.6(c) provides the trial court with complete discretion over whether to grant a continuance in these circumstances. See Tex.R. Civ. P. 193.6(c) (“if the party seeking to introduce the evidence ... fails to carry the burden ... the court may grant a continuance” (emphasis added)). Accordingly, we review this decision for an abuse of discretion. Barr v. AAA Tex., LLC, 167 S.W.3d 32, 37 (Tex.App.-Waco 2005, no pet.). In determining whether the court abused its discretion in denying the continuance, we consider “the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.” Id. (quoting Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004)).

By the time Columbia sought summary judgment, this case had been on file for over a year. Cunningham filed Marable’s 4590i report in August 2003 and agreed in January 2004 that she would designate all testifying experts by June 2004. Thus, Cunningham had almost a year to consider whether she would call Marable as a testifying expert, and she was on notice for five months of the deadline by which she had to make this decision and properly designate him. Also, as is evidenced by Cunningham’s initial response to Columbia’s requests for disclosure, she was aware in December 2003 (eight months before Columbia sought summary judgment) that she needed to supplement her response to designate an expert. Nonetheless, Cunningham failed to follow through with the designation. Although Cunningham attempts to blame this failure on the mistake of a legal assistant, it is established that an attorney’s misplaced reliance on an assistant does not constitute due diligence. See Agristor Credit Corp., 568 S.W.2d at 426; Williams v. Basham, No. 05-93-00471-CV, 1995 WL 234520, at *3 (Tex.App.-Dallas, April 19, 1995, no writ) (not designated for publication).

Moreover, the trial court had discretion to deny Cunningham a continuance based on procedural deficiencies in her motion. Rule 251 requires that a motion for continuance state a sufficient cause that is supported by an affidavit. Tex.R. Civ. P. 251. When a movant fails to comply with the requirement that a supporting affidavit be attached, we generally presume that the trial court acted within its discretion to deny the continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Cunningham requested a continuance as an alternative argument in her response to Columbia’s summary judgment motion. Cunningham attached only the affidavits of the legal assistant and Marable, both of which related to her claim that the expert’s affidavit should be considered as evidence to preclude summary judgment. Cunningham did not attach an affidavit supporting her motion for continuance. Further, Cunningham did not offer any sufficient cause for the continuance; her motion merely recited the language of Rule 193.6(c) and “respectfully requested” that the court grant a continuance in the event that it determined Cunningham failed to show good cause or a lack of prejudice or surprise.

Given Cunningham’s lack of diligence in designating an expert and her failure to provide an affidavit in support of her motion, we cannot say that the trial court abused its discretion by denying Cunningham a continuance.

CONCLUSION

The trial court committed no error in refusing to consider the affidavit of Cunningham’s non-designated expert, in granting Columbia’s no-evidence summary judgment motion, and in denying Cunningham’s motion for continuance. We overrule each of Cunningham’s issues and affirm the judgment of the trial court.

      . Cunningham also sued Dr. Rehana Ahmed for medical malpractice related to her father’s death, but Ahmed was subsequently nonsuited and is not a party to this appeal.

      . Because the outcome of this appeal turns solely on the procedural history, it is not necessary to discuss the substantive facts underlying Cunningham’s medical malpractice claims.

      . For a retained, testifying expert, Rule 194.2(f) permits discovery of the expert’s biographical information; the subject matter of the expert’s testimony; a brief summary of the expert’s opinions and the basis for them; all documents and items prepared by, reviewed by, or provided to the expert in anticipation of testimony; and the expert's current resume and bibliography. Tex.R. Civ. P. 194.2(f).

      . Medical malpractice cases that were filed prior to September 1, 2003, as was the instant case, are governed by article 4590L See Act of August 29, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, (formerly codified at Tex.Rev.Civ. Stat. Ann. art. 4590i, §§ 1.01— 16.02 (the “Medical Liability and Improvement Act”)), repealed by Act of September 1, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884. Article 4590i, section 13.01(a)(3), mandated that claimants in health care liability claims file an expert report within 90 days of filing the claim; section 13.01(k) expressly prohibited the use of that report as evidence for any purpose. See id. Upon the repeal of article 4590i, the relevant sections governing expert reports were recodified, with some amendments, in chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2005).

      . Cunningham’s obligation to designate Mara-ble as an expert witness was not satisfied merely by having his 4590i report on file. Patriacca v. Frost, 98 S.W.3d 303, 304 (Tex.App.-Houston [1st Dist.], no pet.). Further, although Cunningham did file a supplemental response to Columbia’s request for disclosure on August 31, 2004 — naming Marable as a testifying expert and attaching his curriculum vitae as well as his previously prepared 4590i report — this also did not satisfy her designation requirement because it was untimely. The Level III scheduling order required Cunningham's experts to be designated by June 29, 2004, two months before her supplemental response. And, although the parties had entered a Rule 11 agreement extending other discovery deadlines for Cunningham, the agreement expressly stated that it did not extend Cunningham's deadline to designate experts. See Tex.R. Civ. P. 11.

      . Other courts have reached this same conclusion. See Coleman v. Woolf, 129 S.W.3d 744, 747 (Tex.App.-Fort Worth 2004, no pet.); Villegas v. Texas Dep’t of Transp., 120 S.W.3d 26 (Tex.App.-San Antonio 2003, pet. denied); Patriacca, 98 S.W.3d at 306; see also Soto v. Drefke, No. 13-03-301-CV, 2005 WL 549506, at *2 n. 9 (Tex.App.-Corpus Christi, March 10, 2005, no pet.) (mem.op.) (reconsidering issue after Alaniz: "we do not wholly disagree with the application of rule 193.6 in a summary judgment context under the revised rules").

      . Columbia also sought a summary judgment on the grounds that the expert’s affidavit was conclusory, that Cunningham presented no evidence that Conaster had better than a 50% chance of surviving, and that Cunningham failed to respond to the summary judgment more than seven days before the hearing. Because we hold that Cunningham’s failure to present expert testimony on her essential elements was a sufficient basis on which to grant Columbia’s no-evidence motion, we do not address these other grounds.

      . Her response stated: "Plaintiffs have not yet determined testifying expert witnesses. Plaintiffs will supplement pursuant to the court’s Scheduling Order for a Level III case.”


author: PHYLIS J. SPEEDLIN, Justice.

text:
    In the ESTATE OF Alton H. FRIESENHAHN, Deceased.
    No. 04-05-00036-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 2, 2005.
    Rehearing Overruled Dec. 12, 2005.

      Elizabeth Conry Davidson, Henry Ridgeway, Law Office of Henry Ridgeway, San Antonio, for appellant.
    Keith P. Miller, Miller & Astoria, L.L.P., Gilbert Vara, Jr., The Law Office of Gilbert Vara, Jr., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION ON APPELLEES’ MOTION FOR REHEARING.

Opinion by

PHYLIS J. SPEEDLIN, Justice.

The motion for rehearing and motion for rehearing en banc filed by appellees, Daniel Friesenhahn, Dale Friesenhahn and Diane Anglin, are denied. This court’s opinion and judgment dated July 27, 2005, are withdrawn, and this opinion and judgment are substituted. We substitute this opinion to delete a misstatement concerning the record.

Elaine Friesenhahn appeals from an adverse summary judgment in her declaratory judgment action. Because we conclude the summary judgment evidence establishes that Alton Friesenhahn’s will devised certain real property to Elaine in fee simple, we reverse the trial court’s judgment and render judgment that Elaine is the owner in fee simple of the Stuart Road property; we reverse and remand the issue of attorney’s fees. The trial court’s judgment is affirmed in all other respects.

Background

Alton and Elaine Friesenhahn were husband and wife. In 1996, while married, they each executed wills on the same day. Alton died approximately four years later, and his will was admitted to probate. Elaine filed an application to set apart exempt property and for a family allowance, and an original petition for declaratory judgment naming Alton’s adult children from a prior marriage as respondents (“the Friesenhahn children”). In her declaratory judgment action, Elaine sought to have the court construe Alton’s will. Specifically, she asked the court to make a determination that the will devised certain real property to Elaine in fee simple, and to declare that the real property referred to in the will as the “home at 4597 Stuart Road” included approximately nineteen acres of land, as it had been previously described in the final divorce decree dissolving the marriage between Alton and his first wife. The Friesenhahn children filed a general denial in response to the declaratory judgment action.

Elaine subsequently filed a motion for summary judgment in her declaratory judgment action, asserting both traditional and no evidence grounds. In her motion, Elaine alleged that “there is no genuine issue of material fact as to whether Alton’s will devised the Stuart Road property to [Elaine] in fee simple, thereby negating the possibility that the wills are contractual” and “there is no genuine issue of material fact that the wills in question cannot meet the statutory test for contractual wills.” As summary judgment evidence, Elaine submitted a copy of the divorce decree and an affidavit from her attorney on the issue of reasonable and necessary attorney’s fees. Alton’s will was on file in the probate matter and was also, therefore, before the trial court. See Tex.R. Civ. P. 166a(c) (judgment shall be rendered if the summary judgment proof, “on file at the time of the hearing, or filed thereafter with permission of the court, shows that, ... there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”) The Fries-enhahn children filed a response to Elaine’s motion, but did not submit any summary judgment evidence or file their own summary judgment motion.

After conducting a hearing and reviewing the motion and summary judgment evidence, the trial court denied Elaine’s motion for summary judgment to the extent that it sought a declaration that the will devised the Stuart Road property to Elaine in fee simple. Rather than merely denying Elaine’s request to have the will declared non-contractual as a matter of law, the trial court went further and declared that the wills of Alton and Elaine did form a contract. Specifically, the final summary judgment order included a finding by the court that, “the will of Alton H. Friesenhahn, and the will of Elaine Fries-enhahn, Movant, form a contract.” The trial court further denied Elaine’s request for attorney’s fees, and severed the declaratory judgment action from the underlying probate matter, rendering the summary judgment final for purposes of appeal. This appe'al followed.

Analysis

Summary Judgment

This court reviews a trial court’s summary judgment ruling under a de novo standard of review. Estate of Arlitt v. Paterson, 995 S.W.2d 713, 717 (Tex.App.San Antonio 1999, pet. denied). We will uphold a traditional summary judgment only if the movant has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex.R. Civ. P. 166a (c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548-49.

Elaine contends that the trial court erred in denying her summary judgment request that Alton’s will be construed as conveying the Stuart Road property to her in fee simple because the summary judgment evidence demonstrated that there were no disputed issues of fact and she was therefore entitled to summary judgment as a matter of law. See Tex.R. Civ. P. 166a (c). In most cases, an order denying a motion for summary judgment is not a final judgment and, therefore, is not appealable. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966). Here, however, the trial court ruled on all of the issues in the declaratory judgment action and severed that action from the underlying probate matter, making the summary judgment final for purposes of appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001).

Elaine contends that Alton’s will devises the Stuart Road property to her in fee simple and that therefore, Alton’s will can not be considered contractual. A mutual or contractual will is one executed pursuant to an agreement between the testators to dispose of all their property in a particular manner, each in consideration of the other. In the Estate of McFatter, 94 S.W.3d 729, 732-33 (Tex.App.-San Antonio 2002, no pet.). Texas courts view claims of contractual wills cautiously. Magids v. Am. Title Ins. Co., 473 S.W.2d 460, 464 (Tex.1971). To establish that a will is contractual, a two-prong test must be met. In the Estate of McFatter, 94 S.W.3d at 733. First, the property at issue must not be conveyed to the survivor as an absolute and unconditional gift. Id. Second, the remainder of the estate of the first to die and the estate of the last to die are treated as a single estate following the death of the survivor, which is jointly disposed of by both testators in the secondary disposi-tive provisions of the will. Id. A contractual will can be established only by the provisions of the will itself, or the provisions of a binding and enforceable written agreement. See Tex. PROB.Code Ann. § 59A (Vernon Supp.2004-05); Estate of Hearn v. Hearn, 101 S.W.3d 657, 660 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); but see Lorenz v. Janssen, 116 S.W.3d 421, 425 (Tex.App.-Corpus Christi 2003, no pet.) (considering extrinsic evidence as one method of proving a contractual will); Magids, 473 S.W.2d at 465 (court should look to will itself and extrinsic evidence).

The relevant provisions in Alton’s will state:

It is my will and desire that my home at 4597 Stuart Road, Adkins, Bexar County, Texas 78101, shall pass to and vest in my wife, ELAINE LOUISE FRIES-ENHAHN, and I do hereby devise said real property to her.
It is my will and desire that in the event my said wife, Elaine Louise Friesen-hahn, shall predecease me, then and in that event the said property at 4597 Stuart Road, Adkins, Bexar County, Texas, shall then pass to and vest in said children, Danny Friesenhahn, Dale Friesenhahn, and Diane Anglin, and I do hereby devise and bequeath said property and estate unto them, share and share alike.
I have executed this Last Will and Testament concurrently with my said wife, Elaine Louise Friesenhahn, having executed her Last Will and Testament, a copy of which is attached hereto and made a part hereof, both of said Last Wills and Testaments having been executed in accordance with a contract between us, and this is to acknowledge that both said wills are contractual and can not be revoked without the written consent of both myself and my wife.

Regarding the first prong of the test for a contractual will, courts have generally found contractual wills where the gift to the surviving spouse is limited to a life estate. In the Estate of McFatter, 94 S.W.3d at 733; see e.g., Lorenz, 116 S.W.3d at 425. Here, Alton’s will uses the words, “shall pass to and vest in my wife” and, “hereby devise said real property to her” without any restrictions. The language of Alton’s will does not limit the conveyance of the property to Elaine, and the Friesen-hahn children do not direct us to any language in Alton’s will which creates even an implied limitation. Based on the express language of the will, and the law’s presumption that an estate in fee simple is devised unless expressly limited, we hold that Alton’s will conveys the Stuart Road property to Elaine as an absolute and unconditional gift in fee simple. See Tex. PROp.Code Ann. § 5.001(a) (Vernon 2004); Russell v. City of Bryan, 919 S.W.2d 698, 705 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Accordingly, the first prong of the test to establish a will as contractual can not be met as a matter of law.

Regarding the second prong, courts generally require that there be some secondary dispositive provisions in the will which direct the distribution of the remaining estates after the death of both the first and last to die. In the Estate of McFatter, 94 S.W.3d at 733; see also Novak v. Stevens, 596 S.W.2d 848, 851-52 (Tex.1980). Here, Alton’s will contains no such provisions. The will does contain a provision for the real property to go to Alton’s children in the event that Elaine predeceased him. This provision simply creates alternate beneficiaries; it does not provide for the disposition of the Stuart Road property after the death of Elaine if Alton was the first to die. Moreover, Alton’s will neither refers to any of Elaine’s property nor makes any provision for the disposition of their property after Elaine’s death in the event that she is the last to die. In the absence of any secondary dispositive provisions, the will can not meet the second prong of the test for a contractual will as a matter of law. In the Estate of McFatter, 94 S.W.3d at 733. Because Alton’s will fails to meet either prong of the test to establish a contractual will, Elaine was entitled to summary judgment declaring that Alton’s will is not a contractual will and conveyed the property to her outright.

Attorney’s Fees

The trial court has discretion to award costs and attorney’s fees as part of a declaratory judgment action. Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). Elaine included a request for recovery of attorney’s fees in her declaratory judgment action and in her motion for summary judgment. She submitted the affidavit of her attorney as summary judgment evidence stating that a fee of $7,886.25 is reasonable for the amount of work he performed on the case. The affidavit states that all work performed was necessary and that the reasonableness of the fee was determined in consideration of the factors outlined by the Texas Supreme Court. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997). The Friesenhahn children did not challenge the evidence of attorney’s fees, the amount requested, or the reasonableness and necessity of the fees in their response to Elaine’s motion for summary judgment. Because the attorney’s fees were unchallenged, the affidavit of the lawyer as an expert on his fees is sufficient summary judgment proof of the reasonableness of the fees requested. Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex.App.-San Antonio 1988, no writ). Because the trial court denied Elaine’s motion for summary judgment, it did not reach the issue of whether or not to award attorney’s fees. See Bocquet, 972 S.W.2d at 21 (declaratory judgment act imposes four limitations on the trial court’s discretion in awarding attorney’s fees-they must be reasonable, necessary, equitable, and just); Templeton v. Dreiss, 961 S.W.2d 645, 671 (Tex.App.-San Antonio 1998, pet. denied) (in declaratory judgment action, trial court can award attorney’s fees to the winner, the loser, or to neither). Given our conclusion that Elaine’s motion for summary judgment on the construction of Alton’s will should have been granted by the trial court, we remand the issue of attorney’s fees to the trial court for further consideration.

Conclusion

Based on the foregoing analysis, we reverse the trial court’s judgment finding that Alton Friesenhahn’s will is a contractual will, and render judgment that Alton’s will conveyed the Stuart Road property to Elaine in fee simple. We reverse the trial court’s denial of attorney’s fees and remand the issue of attorney’s fees for further proceedings consistent with this opinion. The trial court’s judgment is affirmed in all other respects.

      . The trial court granted Elaine’s motion for summary judgment to the extent that it asked for a clarification of the legal description of the real property devised in the will. Because there is no issue raised on appeal regarding the judgment's legal definition of the real property involved, we do not disturb that portion of the trial court’s judgment.

      . Current section 59A of the Texas Probate Code, effective September 1, 2003, provides:
      (a) A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or after September 1, 1979, can be established only by:
      (1) provisions of a. written agreement that is binding and enforceable; or
      (2) provisions of a will stating that a contract does exist and stating the material provisions of the contract.
      (b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a contract.
      Tex. Prob.Code Ann. § 59A. Here, the only summary judgment evidence on the matter of contractual wills was Alton’s will. There was no evidence regarding Elaine’s will or a separate written agreement, nor was there any extrinsic evidence offered or considered.

      . The inclusion of language stating that Alton's and Elaine's wills were executed concurrently and in accordance with a contract does not in itself make the wills contractual. See Magids, 473 S.W.2d at 465-66.


author: CATHERINE STONE, Justice.

text:
    Franklin MARKER, III, Appellant, v. Adolfo GARCIA and Lidia Garcia, Appellees.
    No. 04-04-00708-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 2, 2005.

      Martin W. Seidler, Law Office of Martin W. Seidler, San Antonio, for appellant.
    John C. Chunn, John C. Chunn, P.C., New Braunfels, Melodee L. Gruber, Melo-dee L. Gruber, P.C., Hondo, for appellees.
    Sitting: CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Adolfo Garcia and Lidia Garcia sued Franklin Marker, III, for various claims arising out of a transaction involving a contract for deed. The trial court granted summary judgment in favor of Marker with regard to the merits of the Garcias’ claims and then entered a final summary judgment after awarding Marker attorneys’ fees. The Garcias challenge the summary judgment on appeal asserting: (1) summary judgment was improperly granted in favor of Marker as to the Garci-as’ claims alleging a violation of section 5.077 of the Texas Property Code and a breach of warranty; and (2) no statutory basis supported the attorneys’ fees awarded or, in the alternative, Marker failed to segregate the recoverable fees. We affirm the portion of the trial court’s judgment dismissing the Garcias’ breach of warranty claim, reverse the portions of the trial court’s judgment dismissing the Garcias’ claim alleging a violation of section 5.077 of the Code and awarding attorneys’ fees, and remand the cause for farther proceedings consistent with this opinion.

BACKGROUND

On October 18, 1999, the Garcias entered into an Unimproved Property Contract to purchase a 2.84 acre tract of land located in the City of Hondo, Medina County, Texas (the “Property”) from Richard and Suzanna Muennink for $16,000.00. The Garcias were required to secure third party financing in the amount of $12,600.00 under the terms of the contract. When the Garcias were unable to secure financing, an agent with the listing real estate broker told the Garcias he would seek to arrange financing. Marker, who had occasionally financed transactions in the past to assist others, subsequently agreed to provide the financing.

On January 14, 2000, Marker acquired the Property from the Muenninks by General Warranty Deed. The deed contained the following clause:

Exceptions to Conveyance and Warranty: Those matters shown on Exhibit “B” attached hereto and incorporated herein, to the extent, if any; that they are valid and subsisting against the Property or any part thereof.

Exhibit “B” included the following: “10' of a 40' road easement along the North property line as recorded in Volume 207, Page 355, Deed Records of Medina County, Texas.”

On January 17, 2000, Marker and the Garcias entered into a Contract for Deed. The Contract for Deed listed the sales price as $16,000, with a $4,500 down payment. The Contract for Deed contained the following clause:

Reservations from and Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded instruments, other than liens and conveyances, that affect the property.

The parties’ affidavits are conflicting with regard to whether the Garcias received an amortization schedule detailing the payout information for the $11,500 balance at the time the Contract for Deed was closed. The Garcias deny receiving the schedule; however, Marker and Thomas J. Rothe, the attorney who prepared the documents for closing, stated that such a schedule was provided to the Garcias. Marker’s copy of the amortization schedule that he used to track the Garcias’ payments through February 13, 2002 was introduced into evidence. The first payment was timely paid for February of 2000. The payments for December of 2000 through August of 2001 were noted as being late. On February 13, 2002, Marker sent the Garcias a notice to cure default, stating no payment had been made since September of 2001. Marker stated that a few days after the notice was sent, Mr. Garcia met with him in person to discuss the matter. Marker stated that he provided Mr. Garcia with a copy of the amortization schedule containing Marker’s payment entries. Marker allowed the Garcias to cure the default and complete the payments.

On January 7, 2004, Marker executed a General Warranty Deed in favor of the Garcias and issued a refund check to them for a slight overpayment. The General Warranty Deed contained the following clause:

Reservations from and Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded instruments, other than liens and conveyances, that affect the property; taxes for the current year, the payment of which Grantee assumes.

On November 13, 2003, prior to Marker’s execution of the deed, the Garcias filed the underlying lawsuit against Marker asserting various claims. Both sides moved for summary judgment with regard to the merits of the claims, and the trial court granted summary judgment in favor of Marker. Marker later moved for summary judgment on his claim for attorneys’ fees, and the trial court entered a final summary judgment in favor of Marker, awarding him attorneys’ fees.

The Garcias timely filed their notice of appeal. The Garcias challenge the summary judgment on appeal only with regard to their claims for violation of section 5.077 of the Texas Property Code, breach of warranty with regard to access, and attorneys’ fees.

Section 5.077

Section 5.077 of the Texas Property Code requires the seller under a contract for deed to provide the purchaser with an annual accounting statement containing: (1) the amount paid; (2) the amount owed; (3) the number of payments remaining; (4) the amount paid to taxing authorities on the purchaser’s behalf if collected by the seller; (5) the amounts paid to insure the property on the purchaser’s behalf if collected by the seller; (6) if the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property; and (7) if the seller has changed insurance coverage, a legible copy of the current policy or binder. Tex. PROp.Code Ann. § 5.077(a) (Vernon 2004). Under the terms of the Contract for Deed, the Garcias were responsible for taxes and insurance, so the only information Marker would have been required to provide was the amount paid, amount owed, and number of payments remaining. A seller who fails to provide the annual statement is liable to the purchaser for “liquidated damages in the amount of $250 a day for each day after January 81 that the seller fads to provide the purchaser with the statement” and “reasonable attorneys’ fees.” Tex. Peop. Code Ann. § 5.077(c) (Vernon 2004). In their motion for summary judgment, the Garcias calculated the amount of the liquidated damages to the date of their motion as totaling $584,000.00.

A. Used or to Be Used as Residence

Section 5.077 applies to a transaction involving an executory contract for conveyance of real property only if the property is “used or to be used” as the purchaser’s residence or as the residence of a person related to the purchaser within the second degree of consanguinity or affinity. Tex. Peop.Code Ann. § 5.062(a) (Vernon 2004). Marker asserts that the Garcias were not entitled to recover the liquidated damages because the Property was not used or to be used as the Garcias’ residence.

Although this court addressed the nature of the evidence necessary to show that property is used or to be used as a residence in Dickey v. McComb Development Co., 115 S.W.3d 42 (Tex.App.-San Antonio 2003, no pet.), the issue in that case arose in the context of the sufficiency of the evidence to support a finding after a bench trial. In Dickey, this court noted that the testimony showed that the Dickeys made improvements to and lived on the land in their mobile home from 1992 to approximately 1998. 115 S.W.3d at 45. In 1998, the Dickeys moved off the land because deed restrictions prevented their daughter’s continued participation in raising and showing animals. After the Dickeys’ attempt to sell the land failed, they leased the land. Id. Other testimony established that the Dickeys had a residence elsewhere. Id. Rose Ann Dickey testified that they intended to move back onto the property within five years when their daughter graduated from high school; however, she was unable to commit to that date because she could not predict the future. Id. The Dickeys did not produce any evidence of definite plans or preparations to return to the property in question. Id. This court held, “Viewed in the fight most favorable to McComb, a trier of fact could reasonably infer from the record that the property was not going to be used as a residence by the Dickeys.” Id.

In this case, the Garcias’ affidavits state their intent to use the property as their residence within three years. Although no evidence was presented of any actions taken to further this intent other than the construction of a fence, the Garcias had finished paying for the land only four months before the hearing on the motions for summary judgment.

The statutory phrase “used or to be used” is broad language. Sanchez v. Brandt, 567 S.W.2d 254, 258 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.). “By its express terms, the [language] encompasses real property which is presently being used as the purchaser’s residence as well as real property which will be so used in the future.” Id. Thus, the language “clearly encompasses executory contracts [for the] sale of real property which the purchaser may use as a residence in the future.” Id. In Sanchez, the court explained the reason the Legislature may have chosen such broad language:

It is a matter of common knowledge, of which we can take judicial notice, that many poor people are unable to obtain conventional financing when they wish to purchase residential property. Frequently it is necessary for them to pay out the entire purchase price of the land prior to procuring title and prior to securing a mortgage on the property with a lending agency in order to finance any improvements.

Id. at 259. Although the court in Sanchez addressed a different statutory provision, the court’s analysis of the reason the Legislature likely chose the broad phrase “use or to be used” also is applicable in the context of section 5.077.

In considering the reason the Legislature may have chosen to broadly apply the statutory provisions relating to contracts for deed to property “used or to be used” as the purchaser’s residence, we also must consider the intended purpose for the legislation. In adopting the legislation, the Legislature found the following:

(1) the proliferation of colonias and substandard housing developments that lack adequate infrastructure creates serious and unacceptable health risks for the residents in these areas;
(2) many residents building homes in these areas do not have access to traditional financing and the assistance of a professional builder, which promotes expansion of substandard housing;
(3) the contract-for-deed arrangement allows low-income persons to purchase property and build homes on the property;
(4) statutory law in this state does not ensure [an adequate flow of information and protection for the purchaser]; and
(5)a purchaser under a contract-for-deed arrangement is faced with significant problems requiring statutory protection because of:
(A) the inadequacy of infrastructure in the areas where this arrangement is commonly used; and
(B) the unregulated status of the contract-for-deed arrangement.

Act of May 27, 1995, 74th Leg., R.S., ch. 994, § 1, 1995 Tex. Gen. Laws 4982. One commentator described the problem leading to the enactment of the legislation as follows:

Las Lomas is one of more than 1,000 colonias located along the Texas-Mexico border. Many of these communities were established decades ago by developers who bought undesirable land, divided it into subdivisions and sold the lots to low-income families. Over the years, developers invested little or no money in infrastructure such as sewage, water, and roads, leaving thousands of families living without such basic necessities as running water or paved roads.
Rather than selling the lots through banks or other traditional financial institutions, the developers issued contracts for deed, high interest notes that are often virtually impossible to pay off. Families would pay for years only to find that they had been paying only interest and had made no headway on the principal of the loan. Because contracts for deed are set up as a kind of rent-to-own arrangement, a family that missed one payment could lose the property, including any improvements that had been made.

Pamela Brown, Lawyers Team Up to Help in Colonia, 63 Tex. B.J. 462, 462 (2000); see also Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 434-35, No. 04-1002, 2005 WL 2397521, at * 6-7 (Tex. Sept. 30, 2005) (Wainwright, J., concurring) (describing problem leading to legislation).

Taking the intended purpose for the legislation into consideration, the Legislature initially limited the applicability of the statute to counties determined to be within 200 miles of an international border and to have a per capita income that averaged 25 percent below the state average. Act of May 27,1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4983-84; Flores, at 429, 2005 WL 2397521, at * 2 n. 1. The provision limiting the statute’s applicability to specific counties was removed in 2001 when the Legislature adopted several amendments to the statutory provisions relating to executory contracts for deed. See Act of May 18, 2001, 77th Leg., R.S., ch. 693, § 1, 2001 Tex. Gen. Laws 1319. The 2001 amendments also eliminated a provision that formerly required the purchaser to notify the seller of its failure to provide the annual statement required under section 5.077, replacing it with the current strict liquidated damages provision for failure to provide the statement. Compare Act of May 27, 1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4987 with Act of May 18, 2001, 77th Leg., R.S., ch. 693, § 1, 2001 Tex. Gen. Laws 1326. Although the removal of this notice provision might be beneficial in addressing the problem that gave rise to the legislation since the purchasers in those situations would be unaware of the need to provide notice to the seller, the removal of the required notice works a disservice under the facts and circumstances presented in this case. For this reason, section 5.077 must either be written or interpreted to ensure that “the punishment [fits] the crime.” Flores, at 435-36, 2005 WL 2397521, at * 7 (Wainwright, J., concurring) (noting constitutional limits applicable to punitive damages including civil penalties); see also Flores, at 438-39, 2005 WL 2397521, at * 9-11 (Brister, J, dissenting) (asserting that Chapter 41 of the Texas Civil Practice and Remedies Code applies to recovery of liquidated damages under section 5.077 requiring either proof of more than nominal actual damages or, for causes of action accruing prior to September 1, 2003, proof of clear-and-convincing evidence of malice).

Having reviewed the legislative intent, we are convinced that this case does not present the type of situation that the Legislature intended to remedy in adopting the statutory provisions relating to executory contracts for deed, including the strict liquidated damages provision contained in section 5.077. Furthermore, given the circumstances presented, we acknowledge that the Garcias’ simple statements of intent may be too weak to convince a jury that they intended to use the property as a residence even under the forward-looking “to be used” standard adopted by the Legislature. In the summary judgment context, however, we are required to consider the evidence in the light most favorable to the non-movant, Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985), and we are required to consider the affidavits of interested witnesses as evidence. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Accordingly, constrained by the applicable standard of review, we must conclude that a genuine issue of material fact has been raised about whether the property was “to be used” as the Garcias’ residence. Cf. Malnar v. Mechell, 91 S.W.3d 924, 929 (Tex.App.-Amarillo 2002, no pet.) (relying on purchaser’s statement to sellers that she was going to move back in and actions in moving back in to find a material fact issue as to whether realty was used or to be used as a residence); Kirk v. Barnett, 566 S.W.2d 122, 123 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ) (relying on evidence that purchaser intended to return and use the property as her residence if the forfeiture were avoided as evidence that property was used or to be used as the purchaser’s residence).

B. Actual Harm/Substantial Compliance

Marker next asserts that the Garci-as are not entitled to recover the liquidated damages because they cannot show actual harm and because Marker substantially complied with section 5.077 by providing the Garcias with copies of the amortization schedules at closing and at the meeting after the Garcias received the notice of default. Marker relies on a federal district court decision in which the seller sent an annual account summary that included the amount of tax paid, the amount of interest paid to date, and the amount of principal and interest paid that year; however, the summary did not include the amount owed or paid to date. See Flores v. Millennium Interests, Ltd., 273 F.Supp.2d 899, 901 (S.D.Tex.2003). The court noted that the information that was not provided could have been calculated from the figures provided. Id. The district court held that a seller who sends no statement at all violates the statute and is liable; however, the court noted that the seller’s statements, while deficient, were not so deficient that they constituted no statements at all. Id. The court reasoned, “To claim damages for an incomplete statement, the purchaser must show an actual injury resulting from the omission.” Id.

The case was appealed to the Fifth Circuit, which certified the following questions to the Texas Supreme Court:

1. If a seller under a contract for deed sends a purchaser a statement under § 5.077(a) that omits any of the applicable information listed in § 5.077(b) of the Texas Property Code, specifically the information required by § 5.077(b)(1) or (3), or both, is the seller liable to the purchaser for $250 per day liquidated damages as set forth in § 5.077(c)?
2. If a seller under a contract for deed sends a purchaser a statement that omits certain information required by §§ 5.077(b)(1) and (3), must the purchaser prove actual harm or injury to recover liquidated damages under the statute?
3. In 2001, 2002, and 2003, did the statutorily defined “exemplary damages” in chapter 41 of the Texas Civil Practice and Remedies Code encompass the statutorily defined “liquidated damages” in § 5.077 of the Texas Property Code, so that to recover under § 5.077 of the Property Code, a purchaser would have to comply with § 41.003 of the Civil Practice and Remedies Code?

Flores v. Millennium Interests, Ltd., 390 F.3d 374, 376-77 (5th Cir.2004).

The Texas Supreme Court recently issued its opinion in response to the certified questions. Flores, 185 S.W.3d 427, 2005 WL 2397521. The court concluded that “an annual statement under Section 5.077 that omits some required information does not invoke the ‘liquidated damages’ provision unless the statements is so deficient as to be something other than a good faith attempt by the seller to inform the purchaser of the current status of their contractual relationship.” Flores, at 433, 2005 WL 2397521, at * 6. The court also held that a purchaser is not required to prove actual harm or injury to recover the liquidated damages. Id. Finally, the court declined to decide whether the liquidated damages constituted “exemplary damages” within the meaning of Chapter 41 of the Texas Civil Practice and Remedies Code. Id.

Since the Garcias are not required to show actual harm, the amortization schedules in question would provide Marker with a defense only if they were considered to be “annual statements” containing “a good faith attempt” by Marker to inform the Garcias of “the current status of their contractual relationship.” Id. In the context of this appeal, however, whether the amortization schedules meet that standard is not ripe for our consideration because the Garcias’ affidavits raise a question of fact as to whether they ever received the amortization schedules. Accordingly, we cannot affirm the summary judgment on this ground.

BREACH OF WARRANTY

The Garcias admitted in their depositions that they never met Marker until after they defaulted on their payments under the Contract for Deed. Accordingly, any warranty regarding access must arise from the terms of the Contract for Deed or General Warranty Deed.

When interpreting a deed, just as when interpreting a contract, the intent of the parties is to be determined from the express language found within the four corners of the document. Luckel v. White, 819 S.W.2d 459, 461-63 (Tex.1991); Walker v. Foss, 930 S.W.2d 701, 704 (Tex.App.San Antonio 1996, no writ). Construction of an unambiguous deed is a question of law to be resolved by the court. Luckel, 819 S.W.2d at 461; Walker, 930 S.W.2d at 704. All parts of the deed are to be harmonized, construing the instrument to give effect to all of its provisions. Luckel, 819 S.W.2d at 462; Walker, 930 S.W.2d at 704.

In this case, both the Contract for Deed and the General Warranty Deed except all easements, whether of record or not, from any warranty. Accordingly, the language unambiguously excludes any easements from Marker’s warranty regarding title. See, e.g., McDaniel v. Calvert, 875 S.W.2d 482, 484-85 (Tex.App.-Fort Worth 1994, no writ) (noting reference to easement explained or limited the warranty in the conveyance); Stewart Title Guar. Co. v. Cheatham, 764 S.W.2d 315, 319 (Tex.App.-Texarkana 1988, writ denied) (noting reference to easement in title policy excluded easements from warranty); Stroud v. Hunt Oil Co., 147 S.W.2d 564, 569 (Tex.Civ.App.-Eastland 1941, no writ) (exception of highway was intended to protect against warranty claim).

Accordingly, the Contract and the Deed contain an exception to the warranty with regard to easements, and the trial court properly granted summary judgment as to the Garcias’ breach of warranty claim.

ATTORNEYS’ FEES

In their final issue, the Garcias complain about the $22,445.00 in attorneys’ fees awarded in favor of Marker. A prevailing party cannot recover attorney’s fees from an opposing party unless permitted by statute or by contract between the parties. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.1999). Marker relies on section 5.077 of the Property Code, section 38.001 of the Texas Civil Practice and Remedies Code, and section 17.50(c) of the DTPA to support the attorneys’ fee award.

Section 5.077(c) of the Texas Property Code permits recovery of attorneys’ fees only by the purchaser from the seller. See Tex. Peop.Code Ann. § 5.077(c) (Vernon 2004). Since Marker was the seller under the contract for deed, section 5.077 does not permit the recovery of attorneys’ fees from the Garcias.

A defendant who only defends against a contract claim and presents no contract claim of his own is not entitled to recover attorneys’ fees under section 38.001 of the Texas Civil Practice and Remedies Code. See American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex.1986); Smith v. Texas Farmers Ins. Co., 82 S.W.3d 580, 588 (Tex.App.-San Antonio 2002, pet. denied). Since Marker did not assert a contract claim of his own, he is not entitled to attorneys’ fees under section 38.001.

Section 17.50(c) of the DTPA permits the recovery of attorneys’ fees “[o]n a finding by the court that an action under this section was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment.” Tex. Bus. & Com.Code Aun. § 17.50(c) (Vernon 2002). Generally, findings on disputed facts are inappropriate in a summary judgment context because there must be no genuine issue of material fact before a summary judgment is even proper. KT Bolt Mfg. Co. v. Texas Elec. Coop., Inc., 837 S.W.2d 273, 274 (Tex.App.-Beaumont 1992, writ denied). A trial court must, however, make the requisite finding under section 17.50(c) in order for a defendant to recover attorneys’ fees even in the summary judgment context. See Jones v. Smith, 649 S.W.2d 29, 29-30 (Tex.1983); Gonzalez v. Temple Inland Mortgage Corp., No. 04-03-00236-CV, 2004 WL 946550, at *4 (Tex.App.-San Antonio May 5, 2004, no pet.); Gonzales v. American Title Co. of Houston, 104 S.W.3d 588, 599 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In this case, the trial court did not make a finding that the action was groundless or brought in bad faith or for the purpose of harassment.

Because none of the statutory provisions relied upon by Marker supports the award of attorneys’ fees, the trial court erred in awarding attorneys’ fees in his favor.

Conclusion

Constrained by the applicable standard of review, we reverse the portions of the trial court’s judgment dismissing the Gar-cias’ claim alleging a violation of section 5.077 of the Texas Property Code and awarding attorneys’ fees. We affirm the portion of the trial court’s judgment dismissing the Garcias’ breach of warranty claim. The cause is remanded to the trial court for further proceedings consistent with this opinion.

      . The trial court severed Marker’s claim seeking a declaratory judgment regarding the constitutionality of section 5.077 of the Texas Property Code into a separate cause number because several other pending cases raised the same challenge.

      . The Garcias also had filed a breach of warranty claim relating to water availability in the underlying lawsuit. Although Marker's brief addresses this claim, the Garcias do not challenge the summary judgment as to this claim in their brief. Accordingly, we need not address the propriety of the summary judgment as to this claim on appeal.

      . We note that the credibility of the Garcias is likely to be a dispositive factor in the resolution of the case; therefore, the affidavits would not support a summary judgment in favor of the Garcias because the affidavits would not conclusively establish that the property was to be used as the Garcias’ residence. See Casso, 776 S.W.2d at 558. In any event, the Garcias do not complain on appeal that their motion for summary judgment should have been granted.

      . We express no opinion as to whether Marker could obtain a finding to support the recovery of attorneys’ fees under section 17.50(c) on the remand of this cause.