author: W. KENNETH LAW, Chief Justice. DAVID PURYEAR, Justice,

text:
    EMC MORTGAGE CORPORATION, Appellant, v. Fred E. DAVIS and Sherry A. Davis, Appellees.
    No. 03-04-00260-CV.
    Court of Appeals of Texas, Austin.
    May 12, 2005.
    Rehearing Overruled June 27, 2005.

      Marcy Hogan Greer, Stacy L. Keaton, Fulbright & Jaworski L.L.P., Austin, TX, Michael A. Swartzendruber, Fulbright & Jaworski L.L.P., Dallas, TX, Kelly Harvey, Kelly Harvey, P.C., Houston, TX, for appellant.
    Jon Michael Smith, Kincaid, Horton & Smith, Joe K. Longley, Longley & Maxwell, L.L.P., Austin, TX, for appellees.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

EMC Mortgage Corporation appeals from the district court’s judgment after a jury trial awarding Fred E. Davis and Sherry A. Davis damages and attorney’s fees based on EMC’s anticipatory repudiation of a loan agreement between the Davises and a previous owner of a promissory note. The Davises entered into an agreement to purchase a home. The promissory note specified that the agreement was subject to a balloon payment but did not specify the amount or- due date of the balloon payment. However, the balloon-payment obligation was specified in various disclosure notices signed at the same time as the note. When the Davises sought to refinance their debt and pay off the loan, EMC took the position that the Davises were not entitled to pay off the loan for the amount listed as a balloon payment because the note did not specify the terms of a balloon-payment obligation and because the balloon payment-obligation described in the various disclosure agreements would have resulted in a windfall for the Davises.

Subsequently, the Davises refinanced their home, paid off their loan with EMC for the amount requested by EMC, and sued EMC for anticipatory repudiation of the loan. The district court denied cross motions for summary judgment. In a letter to counsel explaining the ruling, the judge concluded that the agreement between the parties was ambiguous and the note was internally inconsistent. The jury found that the agreement was subject to a balloon-payment obligation as set forth on the face of the note and described in the disclosure agreements and that EMC repudiated the loan agreement and awarded the Davises $182,954.74 in damages and $91,400 in attorney’s fees. We will affirm the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, the Davises bought a foreclosed home in Austin, Texas, from ICA Mortgage Corporation for $435,000 of which $390,500 was financed. The Davises applied for and obtained a loan from Imperial Savings for $390,500. The loan was transferred from Imperial Savings to several subsequent holders, and eventually the loan was transferred to EMC on October 1, 2001.

Under the terms of the note, the Davises agreed to pay $390,500 at an interest rate of 10% per year and agreed to make monthly payments of $3,426.92 starting on July 1,1989. Also, under the terms of the note, the Davises could pay the loan back early without any penalty. The note further states that if the Davises still owed money on June 1, 2019, referred to as the “maturity date,” then they would have to pay any outstanding amount owed on that date.

At the top of the note, in capital letters centered in the document, is the following language: “THE TERMS OF THIS NOTE CONTAIN PROVISIONS FOR A BALLOON PAYMENT AT MATURITY.” The note does not specify the amount or the due date of the balloon payment.

ICA Mortgage Corporation’s counter-proposal to the original earnest money contract, which was incorporated and made part of the original earnest money contract, states that the finance payments were based on a thirty-year amortization period with all principal and accrued interest due on or before fifteen years after the note was executed. In addition, the residential loan application filled out by the Davises also describes a thirty-year amortization period and a fifteen-year term. Further, Imperial Savings’s instructions that were given to the closing agent specified that a balloon-payment disclosure was required for the closing of the loan.

In addition to the note, the Davises signed the following items at the same time the note was executed: (1) a deed of trust; (2) a balloon-payment disclosure, stating that the Davises had received notice of the balloon-payment obligation; and (3) a regulation-Z disclosure, a federally required truth-in-lending disclosure.

Both the balloon-payment disclosure and the regulation-Z disclosure state that the loan requires 179 payments of $3,426.92 and a final payment of $140,296.42, which would be due in June 2004. In addition, the regulation-Z disclosure states that the total amount that will have been paid after all payments were made would be $753,715.10. When the sum of 179 payments of $3426.92 is added to the final payment of $140,296.42, the total is $753,715.10.

During the years of the agreement, the Davises had received mortgage statements indicating that they owed a principal amount on the loan that was well over $300,000. Over the years, the note was transferred several times to different lenders. However, prior to EMC acquiring the note, none of the lenders sought to alter the terms of the agreement as understood by the Davises or took the position that the agreement was not subject to a balloon payment of $140,296.42 due in June 2004. Wanting confirmation of the interest rate and the balloon-payment provision of the agreement, the Davises wrote to EMC’s predecessor, Bank of America Mortgage. In response to the Davises’ request, Bank of America Mortgage sent a letter to the Davises confirming that the interest rate for the loan was 10% and that there was a balloon-payment obligation of $140,296.42 that would be due on June 1, 2004. When EMC became the holder of the note, EMC refused to allow the Davises to pay off the note by making monthly payments until June 2004 and then paying $140,296.42 as a balloon payment. Rather, EMC took the position that in June 2004 the Davises would still owe $318,899.09.

In July 2002, Mr. Davis contacted EMC asking for a final, early payoff amount because the Davises wanted to refinance their home with another lender. EMC informed Mr. Davis that the final payoff amount would be $337,828.85. The Davises paid the balance due based upon the amount specified by EMC and refinanced their loan.

The Davises then sued EMC claiming that EMC had breached the contract, that EMC’s conduct constituted statutory fraud, and that refusing to release the lien for the amount listed in the disclosure was an anticipatory repudiation of the loan by EMC. Further, the Davises sought a declaratory judgment stating that the contract required a balloon payment of $140,296.42 that was due in June 2004.

Both parties moved for summary judgment; the Davises claimed that the note was ambiguous, but EMC argued that the note was not ambiguous. The district court denied EMC’s motion for summary judgment and granted the Davises’ motion in part, finding that the contract was ambiguous. The case proceeded to trial on the Davises’ allegation that EMC had repudiated the loan agreement.

At trial, an accountant, Tom Glass, testified that, as a result of paying the amount specified by EMC, the Davises had suffered financial damages in the amount of $182,954.74. In making this calculation, Glass testified that he considered all the monthly payments the Davises had paid over the years, the balloon payment, and how much EMC benefitted in unearned interest by the Davises paying the loan off early. First, Glass claimed that multiplying the monthly payment listed in the note and the disclosures, $3,426.92, by the 179 payments listed in the disclosures and adding the balloon payment listed in both disclosures, $140,296.42, produces a total of $753,715.10, which is the amount listed in the regulation-Z disclosure as the total of all payments. Next, Glass testified that because the Davises paid 159 monthly payments of $3,426.92 and a pay-off amount of $337,371.70 after refinancing (a total of $882,251.48), they overpaid EMC by $128,536.88. Finally, Glass testified that, because the Davises paid off their loan approximately two years early, EMC was overcompensated in the payoff by $54,417.86 in unearned interest. The unearned interest and the overpayment together provide the $182,954.74 damage figure.

On cross-examination, Glass testified that if the $390,500 principal is amortized over thirty years, then the Davises would still owe $333,666.04 as principal even after making 159 payments. Glass also testified that, at the time the note was fully paid off, the Davises had only reduced their principal obligation by about $60,000. In addition, Glass testified that if the total listed in the regulation-Z disclosure, $753,715.10, represented the total amount paid, then that figure would consist of approximately $540,000 in interest to be paid over the fifteen-year period and approximately $200,000 in principal debt reduction — substantially less than the $390,500 principal amount listed in the note.

EMC also elicited testimony from expert witness Charles Granger, a public accountant, who testified that a $390,500 loan that has been amortized over a thirty-year period at a 10% interest rate with monthly payments of $3,426.92 would have a balloon payment of $322,325.79 if paid after fifteen years. Granger explained that the balloon, payment would be so large because the monthly payments paid up until the fifteen-year point would consist of mostly payments on the interest that would accumulate over a thirty-year term and because most of the principal reduction in a loan occurs in the last half or the last third of a loan. Finally, Mr. Granger testified that, under the terms of the agreement, if the Davises paid off the loan after 159 payments, the Davises would have an outstanding principal balance of $333,665.82.

Regarding attorney’s fees, counsel for the Davises testified that the Davises had agreed to a one-third contingency fee. Further, counsel for the Davises testified that the Davises were also suing EMC for attorney’s fees and testified about how each of the eight factors listed by the supreme court for determining reasonable attorney’s fees applied in this case. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).

The jury found in favor of the Davises on their claim of anticipatory repudiation by EMC. The jury found that the loan provided for 179 monthly payments and a balloon payment of $140,296.42 due in June 2004. Based on amounts found by the jury, the district court awarded the Davises $182,954 in damages and $91,400 in attorney’s fees.

DISCUSSION

EMC contends that the district court erred by finding the promissory note was ambiguous, that the D’Oench, Duhme doctrine prevents the Davises from asserting language in the disclosures that is contrary to the language in the note as a defense to their obligation under the note, and that the amount of attorney’s fees awarded is excessive. We will consider each of these assertions in the order raised.

Ambiguity

Courts employ the same rules for interpreting a note that they use to interpret a contract. See Affiliated Capital Corp. v. Commercial Fed. Bank, 834 S.W.2d 521, 526 (Tex.App.-Austin 1992, no pet.) (court applied rules of contract construction when interpreting note). When construing a written contract, the court’s first priority is to determine the intent of the parties as expressed in the instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 228, 229 (Tex.2003); National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). When determining the parties’ intent in a contractual dispute, courts should consider the entire writing in order to give effect to all provisions of the contract and to prevent any provision from being rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Affiliated Capital Corp. 834 S.W.2d at 526. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. Coker, 650 S.W.2d at 393. If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Id.; Affiliated Capital Corp. 834 S.W.2d at 526. A contract, however, is ambiguous when its meaning is uncertain and doubtful or when it is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393. Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Id. at 394. Wdien a court determines that a contract is ambiguous, a court may admit extraneous evidence to determine the true meaning of the instrument and may consider the parties’ interpretations of the contract. National Union, 907 S.W.2d at 520. However, a court may not admit parol evidence for the purpose of creating an ambiguity. Id.

EMC asserts that, because the note can be given a definite legal meaning and is not reasonably susceptible to more than one meaning, the note is unambiguous as a matter of law. See Lopez v. Munoz, Hockema & Reed L.L.P., 22 S.W.3d 857, 861 (Tex.2000). Further, EMC contends that the material terms that generally appear in a loan contract— the amount to be loaned, the maturity date of the loan, the interest rate of the loan, and the repayment terms of the loan, see T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992)—are all present within the four corners of the note, and, therefore, the payment obligation is clear. EMC argues there is no ambiguity in the agreement between the parties because the note does not omit terms, see, e.g., Hoss v. Fabacher, 578 S.W.2d 454, 455-56 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ) (instrument unenforceable because it did not contain promise to pay amount); does not contain conflicting terms, see National Union, 907 S.W.2d at 520 (patent ambiguity is one that is evident on face of contract); and does not contain any confusing terms, see Netherland v. Wittner, 662 S.W.2d 786, 788 (Tex.App-Houston [14th Dist.] 1983, writ ref'd n.r.e.) (note ambiguous because not clear if interest had been figured into principal amount due).

EMC’s contention that the contract is unambiguous would require us to conclude that there is only one reasonable interpretation of the agreement between EMC and the Davises — EMC’s interpretation. However, the note itself is open to more than one reasonable interpretation. See Coker, 650 S.W.2d at 393 (contract ambiguous if susceptible to more than one reasonable interpretation). The note specifies that the maturity date for the loan was thirty years from the time the loan was issued. Further, the note specifies that the Davises agreed to make monthly payments of $3,426.92 every month until the loan is paid off. However, in capital letters at the top of the note, the note also states that the terms of the agreement include provisions for a balloon payment. An agreement that has a balloon-payment requirement generally calls for regular, equal payments consisting of minor amounts of principal and interest and a large final payment at the end of the loan that fully satisfies the monetary obligations under the loan. See, e.g., Parker v. Dodge, 98 S.W.3d 297, 299 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (agreement called for monthly payments of $1,000 with balloon payment of $120,000 after ten years of monthly payments); Katy Pers. Storage v. First State Bank, 968 S.W.2d 579, 580 (Tex.App.-Houston [14th Dist.] 1998, pet. withdrawn) (agreement called for balloon payment in which all remaining principal and interest remaining after previous payments would be paid).

¡Because the note states that there is a balloon-payment obligation but does not specify the terms and the payment terms in the note do not include a balloon payment, the note is ambiguous about whether a balloon payment is required. An agreement cannot both require a balloon-payment requirement and require equal monthly payments of principal and interest. See National Union, 907 S.W.2d at 520 (patent ambiguity is one present on face of contract).

Because the note is ambiguous, extrinsic evidence may be considered to determine the intention of the parties. Id. Both the original counterproposal to the earnest money contract and the residential loan applications filled out by the Davises describe the loan as containing a thirty-year amortization period and a fifteen-year term. The counterproposal further specifies that all principal and accrued interest are due at the end of the fifteen year term. Further, the instructions used by the closing agent state that a balloon-payment disclosure must be given to the Davises in order for the loan to be closed. Both the balloon-payment disclosure and the federally required regulation-Z disclosure specify that monthly payments of $3,426.92 were to be paid by the Davises for fifteen years and a final or balloon payment of $140,296.92 must be paid by the Davises in June 2004. These documents both support the Davises’ interpretation of the loan agreement that a balloon payment was required and specify precisely what the Davises’ repayment obligations were. Further, the Davises’ interpretation of the repayment terms was confirmed by EMC’s predecessor in interest. EMC also contends that allowing the Davises to pay the balloon payment as satisfaction of the loan reduces the amount of principal the Davises were required to pay. This can only be true under EMC’s interpretation of the contract under which the parties did not agree to a balloon payment due fifteen years after execution of the note to satisfy the terms of the note. However, the original parties to the loan agreed that the balloon payment in question would satisfy the requirements of the loan, as the signed note requiring a balloon payment and the signed documents defining the balloon payment-obligation show.

Because the note states that there is a balloon-payment obligation but does not specify the terms and because the payment terms present on the note do not include a balloon payment, the note is ambiguous, and the district court correctly considered extrinsic evidence, including the disclosures, in order to ascertain the agreement between the two parties. We therefore overrule EMC’s first issue on appeal.

D’Oench, Duhme Doctrine

In its second issue on appeal, EMC argues that, to the extent the disclosure notices might be interpreted as separate agreements, the D’Oench, Duhme doctrine prevents the Davises from asserting language in a disclosure notice that is contrary to the language in a note as a defense to paying under the terms of the note. The D’Oench, Duhme doctrine is a rule of estoppel that precludes a borrower from asserting defenses against the Federal Deposit Insurance Corporation and its assignees that are based on either secret or unrecorded agreements that alter the terms of an obligation. Bell & Murphy & Assocs. v. Interfirst Bank Gateway, 894 F.2d 750, 753-54 (5th Cir.1990); see also D’Oench, Duhme & Co., Inc. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). The purpose behind the D’Oench, Duhme doctrine and its statutory counterpart is to allow federal and state bank examiners to rely on a failed bank’s records in evaluating the bank’s assets and to prevent fraudulent insertion of new terms into agreements. Federal Deposit Ins. Corp. v. McFarland, 33 F.3d 532, 536 (5th Cir.1994); see 12 U.S.C.A. § 1823(e)(1) (West 2001). EMC contends that, as a successor assignee to the agreement in question, it is protected by the D’Oench, Duhme doctrine from the Davises’ personal defenses to obligations from the note and from claims and defenses based upon collateral agreements that were not firmly established in the official records. See Resolution Trust Corp. v. Oaks Apartments Joint Venture, 966 F.2d 995, 999-1000 (5th Cir.1992) (case remanded to determine whether requirements of 15 ^’Oench, Duhme met and whether guaranty was secret side agreement).

The D’Oench, Duhme doctrine has been partially codified; to enforce an agreement against the interests of a corporation, the agreement must satisfy the following requirements:

(1) In general
No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section or section 1821, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement-
(A) is in writing,
(B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
(C) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
(D) has been, continuously, from the time of its execution, an official record of the depository institution.

12 U.S.C.A. § 1823(e) (West 2001).

EMC asserts that the disclosure notices do not satisfy the statutory requirements of section 1823(e)(1). Specifically, EMC urges that the requirements of section 1823(e)(1) are not satisfied because there is no contention or evidence that the disclosure notices were approved by the Imperial Savings board and because there is no evidence that the disclosure notices were an official record of the “depository institution” continuously from the time of them execution.

Neither the D’Oench, Duhme doctrine nor section 1828(e)(1) applies in this case. In this case, the disclosure agreements, along with other documents, were used to determine the intention of the parties because the note was ambiguous. The language in the disclosure agreements was not used as a defense to paying under the terms of the note; on the contrary, the disclosure agreements were used to clarify an ambiguity rather than contradict the note. The Davises’ interpretation of the agreement is not based on an unrecorded or a secret agreement. Rather their interpretation is based on written documents that were executed at the same time as the ambiguous promissory note and that explain the balloon-payment provision referenced in the note.

More importantly, the D’Oench, Duhme doctrine only bars claims or defenses that would not have put an individual on notice when reviewing the records on file with a bank. Federal Deposit Ins. Corp. v. Waggoner, 999 F.2d 826, 828 (5th Cir.1998) (citing Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1898, 1404 (5th Cir.1993)) (defense in previous notes not barred by D’Oench, Duhme because previous notes were in bank’s possession and previous notes were referenced in current note); see Federal Deposit Ins. Corp. v. Laguarta, 939 F.2d 1231, 1238-39 (5th Cir.1991) (presence of defense in loan agreement and other loan documents not subject to protection of D’Oench, Duhme doctrine). The two disclosures were in EMC’s files and were in existence prior to EMC purchasing the note from the previous holder. Unlike in Oaks Apartments, in this case, both the parties agree that the disclosure agreements were in EMC’s possession. See 966 F.2d at 999-1000 (case remanded to determine whether D’Oench, Duhme applied and outcome would be partially dependent upon whether guaranty, executed at same time as note, was in same loan file as note, which would put savings and loan on notice). Therefore, EMC had knowledge of the balloon-payment requirement from the face of the note and all the documents accompanying the loan.

Like the D’Oench, Duhme doctrine, section 1823 is not implicated because there is no question of collusion, fraud, or bad faith, and there are no undisclosed or secret agreements. McFarland, 33 F.3d at 536. The disclosure notices were not kept secret or undisclosed. Also, the disclosure notices did not tend “to diminish or defeat the interest ... in any asset acquired” by a corporation because the disclosure notices provide meaning to the ambiguous asset acquired by EMC. See 12 U.S.C.A. § 1823(e)(1).

Because the D’Oench, Duhme doctrine and section 1823(e) do not apply in this case and do not prevent the Court from considering the documents executed at the same time as the note, we overrule EMC’s second issue on appeal.

Attorney’s fees

In EMC’s final point of error, EMC contends that there is insufficient evidence to support the award of attorney’s fees in this case. Generally, the reasonableness of an attorney’s fees award is a question of fact for the trier of fact. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). We review the decision by a district court to either grant or deny attorney’s fees under an abuse of discretion standard, and we review the amount awarded as attorney’s fees under a legal sufficiency standard. Allison v. Fire Ins. Exch., 98 S.W.3d 227, 262 (Tex.App.-Austin 2002, pet. granted, judgm’t vacated w.r.m. by agr.). A district court abuses its discretion if it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In determining whether a district court abused its discretion, we must determine whether the district court’s action was arbitrary or unreasonable. Id. at 242. Because we review the amount of attorney’s fees awarded under a legal sufficiency review, we must view the evidence in a light that tends to support the disputed finding and disregard evidence and inferences to the contrary. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). If more than a scintilla of evidence supports the challenged finding, the legal sufficiency challenge must fail. Id.

The supreme court has listed various factors that a fact finder should consider when determining what a reasonable award of attorney’s fees should be. Arthur Andersen, 945 S.W.2d at 818. Counsel for the Davises testified about how each factor applied in this case. First, counsel testified that they had spent a little over 127 hours on the case in question and would generally charge $200 per hour in a similar non-contingent case, which counsel testified was a reasonable attorney’s fee. Multiplying these figures together totals approximately $25,000. Second, counsel testified that he had tried very hard to resolve this case quickly and that a one-third contingency fee based on the limited one-time relationship counsel has with the Davises was reasonable. Third, counsel testified that he has a good reputation in the community as a lawyer and has over a decade of legal experience. Fourth, counsel testified that because there is a contingency fee agreement and because the client will be required to pay the attorneys whatever amount is not awarded as attorney’s fees, then the jury could appropriately use a multiplier to increase the amount of money above what the total amount for attorney’s fees would have been had counsel charged an hourly rate. Further, counsel requested that the jury use a multiplier that was somewhere between two and four if they decided to award attorney’s fees. Counsel testified that, based on the amount in controversy and based on the eight factors under Arthur Andersen, reasonable attorney’s fees for this case would be between $25,399.99 and $90,000.00.

EMC urges that, because the theory of recovery and the evidence were limited to loan documents, the parties engaged in only one pre-trial hearing, and the trial lasted only three days, the workload in this case was not especially complex and did not warrant such a large award of attorney’s fees. Cf. Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 484 (Tex.App.-Austin 2000, pet. denied) (affirming $122,058.75 attorney’s fees award when total damages awarded was $232,330.18 in complex two week trial). Further, EMC argues that a contingency fee agreement alone cannot support an award of attorney’s fees. See Arthur Andersen, 945 S.W.2d at 818.

However, while there are cases suggesting that a contingency fee agreement alone cannot support an award of attorney’s fees, an award of attorney’s fees based on an attorney’s testimony regarding the eight factors listed in Arthur Andersen, including whether there is a contingency agreement, has been upheld. See VingCard AS. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 870 (Tex.App.Fort Worth 2001, pet. denied). In addition, proof of the difficulty of a particular case is not the only factor to consider when deciding whether attorney’s fees are reasonable. See Arthur Andersen, 945 S.W.2d at 818. In this case, counsel testified that a lawyer with his level of experience would have charged $25,000 in legal fees if paid by the hour and testified that, because there was a contingency fee agreement, a multiplier of between two and four would be appropriate to apply in this case. The award of $91,400 was within the range of possible awards if a multiplier was used to calculate attorney’s fees and was just over the $90,000 figure counsel for the Davises testified was reasonable in this case. The evidence and record met the requirements of Arthur Andersen and provided the jury with sufficient evidence to make a determination of reasonable attorney’s fees. VingCard, 59 S.W.3d at 870.

Because there is evidence of some of the eight Arthur Andersen factors supporting the reasonableness of the award of attorney’s fees, we find that the district court did not abuse its discretion when awarding the Davises $91,400 in attorney’s fees. We, therefore, overrule EMC’s third issue on appeal.

CONCLUSION

We hold that the district court did not err by finding the promissory note ambiguous; that the D’Oench, Duhme doctrine does not bar consideration of the loan documents executed at the same time as the note to supply meaning to an ambiguous note; and that the award of attorneys fees was not excessive. Therefore, we affirm the judgment of the district court.

Dissenting Opinion by Justice PURYEAR.

DAVID PURYEAR, Justice,

dissenting.

The majority turns to disclosure notices to alter the terms of a promissory note, finding that ambiguity in the note allows disclosure notices to be considered. According to general principles of contract construction and interpretation, however, our analysis should be limited to the promissory note, the four corners of which contain all of the material terms for the home loan. Because these material terms allow for a definite and certain legal meaning, there is no ambiguity, and this Court should enforce the contract as written as a matter of law. Accordingly, the trial court erred in admitting the disclosure notices, so this Court should reverse and render a take-nothing verdict against the appellees. I therefore respectfully dissent.

Proper Interpretation of the Promissory Note

In its attempt to counter every argument in the appellant’s brief, the majority opinion suggests that this is a difficult case. To the contrary, applying general principles of contract construction leads to a straightforward interpretation. I agree with the majority that we must first and foremost ascertain the true intent of the parties as expressed in the written instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). All provisions of the contract must be considered together so that none are rendered meaningless. Id. In a contract to loan money, the material terms are the amount to be loaned, the interest rate, the maturity date of the loan, and the repayment terms. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). The promissory note in the instant case contains all four material terms: Paragraph 1 lists the amount to be loaned as $390,500.00; paragraph 2 establishes an annual interest rate of 10.00 percent; paragraph 3 sets the maturity date at June 1, 2019; and paragraphs 3 and 4 provide for repayment on the first of every month to the note holder’s California address in the amount of $3,426.92, with an allowance for prepayment of part or all of the principal at any time.

The note is therefore “legally binding” because it is “sufficiently definite” for a court to “understand what the promisor undertook”: a thirty-year home loan. Stanley Boot, 847 S.W.2d at 221. Since the contract can be given a definite legal meaning, it is not ambiguous, and the court must construe the contract as a matter of law. Coker, 650 S.W.2d at 393; Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 517, 243 S.W.2d 154 (1951).

When the material terms that are actually agreed upon are set forth in unambiguous language in one document, the court should give no weight to a purported description of those terms in another document, especially when the purported description conflicts with the clear and consistent terms of a note, an instrument that is designed to stand on its own. See Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 330-31 (Tex.1984). In such a situation, the material terms should be interpreted without reference to the other document. Id. at 330. Here, the disclosure notices are merely supplemental documents that serve an informational purpose and create no obligations or rights. The use of disclosure notices alters two material terms of the note, the maturity date and the prepayment clause. Because the four corners of the note contain the clear terms of the loan, the majority should have interpreted the note without reference to the disclosure notices.

Paragraph 4 of the note contains clear terms for prepayment: the appellee had the right to pay off the remaining principal before it was due. The principal was due on June 1, 2019, the maturity date as established in Paragraph 3, which was thirty years after the first monthly payment. Because payments on this loan were credited toward interest before principal, the balance remaining in July 2002, only thirteen years into the note, was still quite large. When appellees paid $337,828.85 in 2002, therefore, they did nothing more than pay off the balance of the $390,500 principal. Accordingly, I would hold that appellants and appellees have met their contractual obligations, and that appellees are not entitled to the difference between the amount they paid and that listed in the disclosure notices.

No Ambiguity as a Matter of Law

The majority finds that an ambiguity arises as a result of this lone statement: “THE TERMS OF THIS NOTE CONTAIN PROVISIONS POR A BALLOON PAYMENT AT MATURITY,” which is type-written at the top of the page before any of the material terms are listed. Because the majority believes that this statement opens the contract to more than one reasonable interpretation — what it calls the presence or absence of a balloon payment obligation — it erroneously permits reference to the disclosure notices as extrinsic evidence to interpret the agreement.

Because the disclosure notices do not form part of the contract, they are extrinsic evidence to which recourse is only appropriate if the contract is ambiguous. National Union Fire Ins. v. CBI Indus., 907 S.W.2d 517, 520 (Tex.1995). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Coker, 650 S.W.2d at 394. A contract is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Id. at 393. Only when an ambiguity exists may the court then consider extrinsic evidence in an attempt to clarify the parties’ intentions. National Union, 907 S.W.2d at 520. In the present case, the disclosure notices are not themselves part of the agreement and may be considered if, and only if, the note is first found ambiguous. The majority holds that, because the balloon payment statement gives rise to an ambiguity, consideration of the disclosure notices is proper. By the general principles of contract construction as elucidated by the Texas Supreme Court, however, this contract is not ambiguous as a matter of law. Accordingly, I would hold that the disclosure notices were improperly considered.

I depart from the majority approach in two respects. First, the majority improperly considers the parties’ conflicting interpretations of the balloon payment statement as creating an ambiguity. This is not allowed under Texas law: “Only where a contract is first determined to be ambiguous may the courts consider the parties’ interpretation ... and admit extraneous evidence to determine the true meaning of the instrument.” National Union, 907 S.W.2d at 520. In construing a contract, therefore, the court must not confuse the issue by considering the parties’ interpretations.

Second, the majority finds ambiguity because of uncertainty over whether the balloon-payment statement creates an obligation. It has long been the law in Texas that not all language of doubtful meamng in a contract rises to the level of ambiguity. Daniel, 150 Tex. at 517, 243 S.W.2d 154. In a more recent opinion, the supreme court held that general statements “cannot be stretched to impose any obligations not already found elsewhere in the contract.” Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 747 (Tex.2003). When construing a contract, no single provision taken alone has controlling effect. J.M. Davidson Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). By focusing on whether the balloon-payment statement creates an obligation, the majority negates two other terms in the contract, the prepayment clause and the thirty-year maturity date. By these terms, the appellees could have paid off the principal at any time between year one and year thirty. The majority, however, stretches the allegedly ambiguous statement to create a balloon payment obligation due at year fifteen, wiping out the remaining fifteen years and, necessarily, the interest generated over that time. The statement at issue is nothing more than a curious pronouncement that does not alter the material terms of the promissory note and therefore does not create a legal ambiguity.

If a written instrument is so worded that it can be given a definite legal interpretation, then it is not ambiguous, and the court as a matter of law should construe it as written. Coker, 650 S.W.2d at 393. As discussed above, applying the Stanley Boot factors to the contract at issue reveals that all material terms for this thirty year home note are present; therefore, the note has a definite legal meaning and should be enforced according to its terms. 847 S.W.2d at 221. Because the promissory note at issue can be given a certain and definite legal interpretation, it should be enforced as written. The note contains no ambiguity as a matter of law; therefore, I would hold that the trial court erred in finding ambiguity and in considering the disclosure notices, and I would reverse and render judgment that appellees take nothing.

      . In the charge to the jury, the jury was asked whether the Davises and Imperial Savings Association, the original holder of the note, entered into an agreement that required a final balloon payment of $140,296.42 due in June 2004, and the jury responded in the affirmative.

      . Contrary to EMC’s suggestion, a balloon payment is not the final monthly payment of a loan that had equal monthly payments. See Hughs v. Lee, No. 05-95-01745-CV, 1997 WL 605080, at * 1, no. 1, 1997 Tex.App. Lexis 5169, at * 1, n. 1 (Dallas October 1, 1997) (not designated for publication), dism’d by 2001 WL 619619, 2001 Tex.App. Lexis 3804 (dismissal based on agreement of parties) (balloon payment is final payment of principal under promissory note that commonly calls for regular, minimum payments of principal and requires substantial payment of principal at end of term; final payment is often essentially all principal due under agreement).

      . Contrary to EMC’s assertions, the parties’ interpretations of the loan agreement were not used to create an ambiguity. Rather, the note, on its face, was ambiguous about whether a balloon payment was required. The parties' interpretations were considered in resolving the ambiguity.

      . Determining whether a balloon payment is required does not, as the dissent suggests, give less weight to other terms in the agreement. Rather, determining whether a balloon payment is required is an attempt to determine the intentions of the parties regarding one of the material terms of the loan agreement: the repayment terms.

      . EMC also asserts that the language at the top of the note specifying a balloon payment is a mere recital. We disagree. The language at the top of the note is not a recital. A recital is a formal statement in any deed or writing that is used to explain the reasons upon which the transaction is based. McMahan v. Greenwood, 108 S.W.3d 467, 484 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). The balloon-payment provision at the top of the note does not specify or explain the reasons for this transaction. Instead, the balloon-payment provision notifies the parties that the transaction between them is subject to a balloon-payment obligation, which directly affects a material term of the loan agreement: the repayment term.
      Similarly, EMC also asserts that, as a holder in due course, courts may not look to documents other than the note — a negotiable instrument — to determine the terms of the agreement because the rule that instruments executed with a negotiable instrument by the original parties are to be treated as one does not apply to a holder in due course. Further, EMC contends that the disclosure agreements do not qualify as part of the negotiable instrument because they do not contain an unconditional promise to pay and should not be construed as part of the loan agreement. However, we need not address these arguments because we are not construing all of the documents executed with the note as one agreement. Rather, we are relying on extrinsic evidence to determine the intention of the parties, which was ambiguously described in the note. Further, a holder-in-due-course status only protects the holder against claims that are not apparent from the face of the instrument or claims of which the holder does not have notice. Tex. Bus. & Com.Code Ann. § 3.302 (West 2002); see generally Texas State Bank of Austin v. Sharp, 506 S.W.2d 761, 763-64 (Tex.Civ.App.-Austin 1974, writ ref'd n.r.e.) (written agreement and note executed as part of same transaction and subsequent takers not innocent purchasers without notice). EMC was aware of the balloon-payment obligation at the top of the note in capital letters, had possession of the disclosure notices, and, therefore, had notice of the balloon-payment provision. Additionally, truth-in-lending disclosures have been considered part of a loan agreement. See Briercroft Serv. Corp. v. De Los Santos, 776 S.W.2d 198, 204 (Tex.App.-San Antonio 1989, writ denied).

      . Because we conclude that the note was ambiguous and that the court properly looked to extrinsic evidence to ascertain the intention of the parties, we need not address EMC's assertion that truth-in-lending disclosures serve only an educational function and do not become part of the loan agreement. Even if we were to adopt EMC’s assertion, the disclosures, counterproposal, residential loan application, and closing agent’s instructions could be used as extrinsic evidence to supply meaning to an ambiguous loan agreement. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995).

      . Because we have held that the disclosure agreements were used to clarify the intention of the parties under the ambiguous note, we need not address EMC's assertion that D’Oench, Duhme doctrine would prohibit use of the disclosure agreements as separate agreements contradicting the terms of the note. However, even considering EMC’s assertions, the D'Oench, Duhme doctrine would not prohibit the consideration of the disclosure agreements. The D’Oench, Duhme doctrine requires full disclosure between lenders and borrowers, but it does not require the agreement be confined to the face of any one lending document, such as a note. Resolution Trust Corp. v. Oaks Apartments Joint Venture, 966 F.2d 995, 999 (5th Cir.1992). The fact that an agreement between a lender and a borrower is manifested in more than one document does not automatically imply a deceptive secret agreement. Id. The D’Oench, Duhme doctrine does not prohibit one from raising a claim or defense based on a written agreement that is integral to the loan transaction. Id.

      . The factors listed in Arthur Andersen include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
      (2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered

        Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).

      . EMC also cites to federal cases as support for its assertion that the attorney's fees awarded in this case were excessive, but these cases provide no support for the proposition that a jury is prohibited from increasing the amount of attorney’s fees based on factors prescribed by the Texas Supreme Court, including the presence of a contingency fee agreement. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 730, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Supreme Court reversed increasing attorney’s fees beyond lodestar figure because enhancing beyond one third of reasonable lodestar fee generally not permissible under fee-shifting statutes); City cf Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (increasing attorney’s fees award beyond lodestar amount based on contingency fee agreement not permitted under fee-shifting portions of Solid Waste Disposal Act and Clean Water Act).


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice. WANDA McKEE FOWLER, Justice,

license: Public Domain

text:
    SUPPORTKIDS, INC., Formerly Child Support Enforcement, Inc., Appellant, v. Cynthia MORRIS, Appellee.
    No. 14-04-00390-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 17, 2005.
    Rehearing Overruled July 14, 2005.

      Gregory S. Coleman, Christian Jared Ward, Austin, for appellant.
    Christopher Michael Portner, Beaumont, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   MAJORITY OPINION

CHARLES W. SEYMORE, Justice.

In this interlocutory appeal, Support-kids, Inc., formerly Child Support Enforcement, Inc., appeals a judgment in favor of Cynthia Morris on the ground that the trial court abused its discretion in granting class certification. We reverse and remand for proceedings consistent with this opinion.

BACKGROUND

Appellant, Supportkids, is a company whose principal business is the collection of past due child support for custodial parents. Supportkids offers different service packages depending on the amount of child support to be collected and whether there is an arrearage. For its services, Supportkids collects a percentage of the total child support recovered. The percentage differs from contract to contract. In 1999, appellee, Morris, hired Support-kids to enforce and collect past due child support arrearages. Morris signed a contract in which she agreed she would retain sixty-seven percent of any child support collected and Supportkids would retain thirty-three percent as its fee. Support-kids was successful and obtained a withholding order on the non-custodial parent’s wages so the arrearage could be paid.

Approximately six months after Sup-portkids secured the withholding order, Morris demanded that Supportkids cancel her contract so she could collect one hundred percent of the child support without paying a fee to Supportkids. When Sup-portkids declined to cancel the contract, Morris sued Supportkids on the ground that it engaged in the unauthorized practice of law. Morris later sought to certify a class including other individuals who had contracted with Supportkids to collect past due child support. She alleged the class would include all customers of Supportkids for whom Supportkids had hired an attorney to perform legal services.

The trial court granted Morris’s motion for class certification and defined the class as follows:

Those persons (i) who entered into any of the form contracts attached hereto as Exhibit “A” or “Bl” — “B28” with the Defendants [sic] in Texas on or after May 7, 1998, (ii) on whose behalf the Defendants retained an attorney to perform legal services to collect past due child support owed to that person.

Supportkids contends the trial court abused its discretion because the court did not properly apply Rule 42 of the Texas Rules of Civil Procedure to the undisputed facts.

STANDARD OP REVIEW

We review a trial court’s ruling on class certification for abuse of discretion. Southwestern Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 439 (Tex.2000). A clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1995). Although we review the trial court’s order for abuse of discretion, we do not indulge every presumption in its favor, as compliance with class action requirements must be demonstrated rather than presumed. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691-92 (Tex.2002). We also must evaluate “the claims, defenses, relevant facts, and applicable substantive law.” Id.

All class actions must satisfy four threshold requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Tex.R. Civ. P. 42(a). Class representatives must also meet at least one of the subdivisions of Rule 42(b). A judgment in favor of class members should decisively settle the entire controversy, and all that should remain is for other members of the class to file proof of their claim. Bernal, 22 S.W.3d at 434. Here, the trial court found the requirements of Rule 42(a) were met and certified the class under all the subdivisions of Rule 42(b).

Typicality and Adequacy of Representation

Supportkids contends the trial court abused its discretion in certifying the class because Morris did not present facts showing she met the prerequisites of typicality and fair and adequate protection of the class. See Tex.R. Civ. P. 42(a). Typicality and adequacy of representation are closely related, for demanding typicality on the part of the representative helps insure her adequacy of representation. See Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 486 n. 27. (5th Cir.1982). Ordinarily, the presence of even an arguable defense peculiar to the named plaintiff destroys the typicality of the class. Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 812 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

The named representative in a class action must fairly and adequately protect the interest of the class members. Tex.R. Civ. P. 42(a)(4). This requirement has two components: (1) an absence of antagonism between the class representatives and the class members, and (2) an assurance the representative parties will vigorously prosecute the class claims and defenses. Slack v. Shell Oil Co., 969 S.W.2d 565, 568 (Tex.App.-Austin 1998, no pet.). Adequacy of representation is a question of fact based on the individual circumstances of the case. Forsyth v. Lake LBJ Inv. Corp., 903 S.W.2d 146, 150 (Tex.App.-Austin 1995, writ dism’d w.o.j.). Factors affecting this determination include: (1) adequacy of counsel; (2) potential conflicts of interest between the class members; (3) personal integrity of the plaintiffs; (4) the representative’s familiarity with the litigation, and her belief in the legitimacy of the grievance; (5) whether the class is unmanageable because of geographical limitations; and (6) whether the plaintiffs can afford to finance the class action.

In this case, some aspects of the adequacy requirement are satisfied. The zeal and competence of the named plaintiffs counsel is not challenged, nor is there reason to doubt the willingness and ability of the plaintiff to participate in and control the litigation. But, the possibility of antagonism within the class remains. Morris seeks to have the contracts declared void because Supportkids allegedly engaged in the unauthorized practice of law. The chance remains, however, that customers of Supportkids do not want their contracts to be declared void. Although Morris is now receiving child support pursuant to wage withholding, other persons who signed contracts with Supportkids may continue to need the services of Support-kids to recover child support. Although Supportkids presented no evidence of real disagreement, the burden of proof on certification issues is on the plaintiff. Schein, 102 S.W.3d at 691-92. It is therefore improper to demand evidence from the defendant that a significant number of class members oppose the plaintiff when it is obvious that a real possibility of antagonism exists. Horton, 690 F.2d at 486. Reviewing the appropriate factors, we find the trial court abused its discretion in finding the named representative able to fairly and adequately protect the interests of the class under Rule 42(a)(4).

Commonality and PRedominance of Common Issues

Rule 42(a) requires there exist questions of law or fact common to the class. Questions are common to the class if an answer as to one class member is an answer as to all class members. Sun Coast Resources, Inc. v. Cooper, 967 S.W.2d 525, 532 (Tex.App.-Houston [1st Dist.] 1998, writ dism’d w.o.j.). The rule does not require that all or even a substantial portion of the legal and factual questions be common to the class. Slack, 969 S.W.2d at 569. The commonality requirement is subsumed under the more stringent Rule 42(b)(3) requirement that common questions of law or fact predominate over questions involving individual members. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 607, 117 S.Ct. 2231, 2242-44, 138 L.Ed.2d 689, 704 (1997). The test is not whether the common issues outnumber the individual issues, but whether common issues will be the focus of most of the efforts of the litigants and the court. Spera, 4 S.W.3d at 811.

Moms asserts the factual and legal bases of her claim are common to all class members. Morris contends all persons who entered into any of the form contracts listed as Exhibits A and Exhibits B1 through B28 and on whose behalf Support-kids hired attorneys are a part of the class. First, we note that the contracts attached to Morris’s petition do not all contain clauses permitting Supportkids to retain an attorney to collect child support. Further, there was testimony at the hearing on class certification that even after an attorney is retained, legal services are not always performed. For example, frequently Supportkids retains an attorney and the non-custodial parent agrees to pay child support before legal action can be taken. Therefore, even if Morris were able to prove that Supportkids’ retention of an attorney constitutes the unauthorized practice of law, some members of the class would not obtain relief. Morris, therefore, failed the commonality requirement of Rule 42(a).

Conclusion

Moms failed to meet the threshold requirements of typicality and commonality under Rule 42(a) of the Texas Rules of Civil Procedure. Therefore, the trial court abused its discretion in certifying the class. The order of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

FOWLER, J., concurring.

WANDA McKEE FOWLER, Justice,

concurring.

I agree with the result reached by the majority, but I write separately because I believe a more obvious, fundamental reason exists for reversing the order. Bereft of details — the glue that allows this type of order to withstand the inevitable challenges — the order lacks what it needs most to survive judicial scrutiny.

For example, regarding numerosity, the order states, “The Court finds that the members of the class are so numerous that joinder of all members is impracticable; thus, the numerosity requirement of TRCP 42(a)(1) is met.” No details or further information is given on this point. To prove that it performed a rigorous analysis of the case before certifying the class, the court stated, “This Court performed a rigorous analysis before ruling on class certification to determine whether all prerequisites to certification have been met.” Again, no details or further information is given.

Both of these statements are conclusions without any supporting data, as are the other statements in the order. The order claims to contain details, but in fact, it does not.

For this reason, under Texas Rule of Civil Procedure 42(c), under Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000), and under Schein v. Stromboe, 102 S.W.3d 675, 689 (Tex.2002), this order must be reversed and the case remanded to the trial court.

      . We require a detailed analysis of the case because the appellate court must review the underpinnings for the trial court’s rulings. The details are necessary to (1) provide the reasons underlying the court’s decision and (2) to enable the appellate courts to rigorously review the trial court’s decision. One cannot rigorously review a conclusion without the details that led to the conclusion.


author: Opinion by CATHERINE STONE, Justice.

text:
    The STATE of Texas, Appellant, v. Christopher CULLEN, Appellee.
    No. 04-04-00583-CR.
    Court of Appeals of Texas, San Antonio.
    May 18, 2005.
    Discretionary Review Granted Sept. 28, 2005.

      Kevin P. Yeary, Asst. Criminal Dist. Atty., San Antonio, for appellant.
    Mark Stevens, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by CATHERINE STONE, Justice.

In this interlocutory appeal brought by the State, we are asked to hold that the State is effectively denied its right to appeal a pre-trial order granting a defendant’s motion to suppress if the trial court refuses the State’s request for findings of fact and conclusions of law following its ruling. The State contends that in the absence of findings and conclusions, the trial court’s ruling is insulated from meaningful review, thereby undermining the legislative grant of the State’s right to appeal an adverse ruling on a suppression motion. Because there is no statute, rule, or compelling case law that requires a trial court to file findings and conclusions when it enters a suppression order, we decline the State’s request that we impose such a requirement. Finding no abuse of discretion by the trial court, we affirm the court’s order granting the defendant’s motions to suppress.

BACKGROUND

Christopher Cullen was charged by information with the offense of driving while intoxicated. Before trial commenced, Cullen filed several motions to suppress evidence. At the hearing on Cullen’s motions, the State called San Antonio Police Detective Paul Biasiolli and San Antonio Police Officer Charles Marcus as witnesses.

Detective Biasiolli testified that in the early morning hours of October 29, 2003, he heard a report over his police radio that a blue Volkswagen with a ski rack was traveling erratically and at a high rate of speed. According to the report, the vehicle was heading in his direction. Approximately one minute later, Biasiolli heard a vehicle approaching his location at a high rate of speed. Biasiolli then saw a blue Volkswagen with a ski rack traveling northbound at 60 miles per hour. The vehicle maintained its speed as it passed him and continued through an intersection controlled by flashing yellow lights without slowing down. Biasiolli testified that when the vehicle attempted to make a left hand turn after the intersection, it crashed into a telephone pole.

Biasiolli and his partner immediately went to the accident scene. Upon arriving at the scene, Biasiolli observed Cullen exit the driver’s side of the vehicle and a female individual exit the passenger’s compartment. Biasiolli stated that there was no time for the passenger and driver to have switched positions. Biasiolli also observed that the vehicle’s air bags had deployed during the accident. He did not see any containers of alcohol in the vehicle.

Biasiolli testified that neither Cullen nor his companion appeared to be injured. There were no signs of blood or bruises on either Cullen or his companion. After checking on the condition of Cullen’s passenger, Biasiolli turned his attention to Cullen. According to Biasiolli, Cullen was unsteady on his feet, had slurred speech, and had bloodshot, glossy eyes. Biasiolli, however, did not administer any field sobriety tests to Cullen. Biasiolli detained Cullen and his passenger until San Antonio Police Officer Charles Marcus arrived at the accident scene because he and his partner did not handle accidents.

Officer Marcus testified that he arrived at the accident scene approximately 35 seconds after the accident occurred. When Marcus arrived, he observed that Cullen had a slight sway and did not have his balance. Marcus allegedly had to hold out his hand to help Cullen maintain his balance. According to Marcus, Cullen had glassy, bloodshot eyes. Marcus also smelled a strong odor of alcohol on Cullen’s breath.

Cullen informed Marcus that he was the driver of the vehicle and told Marcus that, “I’m not drunk. Well, okay. Just some. And, oh, I am so fucked. I’m in trouble.” Although Marcus did not observe any bumps, bruises, burns, or blood on Cullen, Marcus asked Cullen whether he needed any medical attention. Cullen told Marcus that he was not injured.

Cullen administered several field sobriety tests to Cullen, including the horizontal gaze nystagmus test, walk and turn test, and one-leg stand test. Cullen showed all six signs of intoxication on the HGN test and showed four of the eight signs of intoxication on the walk and turn test. "When Cullen was instructed to perform the one-leg stand test, Cullen was unable to complete the test. Upon concluding the test, Cullen allegedly turned around and put his hands behind his back without any prompting from Marcus. Marcus proceeded to place Cullen under arrest for driving while intoxicated.

Cullen was transported to the San Antonio Polite Department following his arrest. While in route to the San Antonio Police Department, Cullen told Marcus that he had drank too much that night and was “so fucked.” Cullen also told Marcus that this was a “life changing” experience for him.

Once they arrived at the SAPD, Marcus began videotaping Cullen. Although only 20 minutes had elapsed since the arrest, Cullen did not appear as intoxicated as he did at the accident scene when he arrived at the SAPD. Marcus explained that “it seemed like [Cullen] ... had a lot of adrenaline in his system when he went into the video room so he had a sobering like effect from that.”

After Marcus began to record Cullen, Cullen began to complain that he had a head injury. He also invoked his right to remain silent. As a result, Marcus stopped, recording Cullen. After Marcus stopped; videotaping Cullen, Marcus asked Cullen “if he was still injured.” Cullen allegedly responded, “I am fucking fine.”

Marcus testified that it was his opinion that Cullen had lost the normal use of his mental and physical faculties due to the introduction of alcohol into his system. Marcus further stated that, in his opinion, Cullen was “so intoxicated he wouldn’t have known if he was [injured] or not.” Following Marcus’s testimony, the trial court granted Cullen’s motions to suppress. The State requested findings of fact and conclusions of law following the trial court’s ruling, but the court declined to make such findings. This appeal followed.

Discussion

In its first issue, the State claims a trial court’s failure to file findings of fact and conclusions of law when they are requested by the State is an independent ground for reversal of the trial court’s suppression ruling. Trial courts, however, are not required to file findings of fact and conclusions of law when suppressing evidence. State v. Guo, 64 S.W.3d 662, 668 (Tex.App.-Houston [1st Dist.] 2001, no pet.); see also State v. Rivenburgh, 933 S.W.2d 698, 702 n. 1 (Tex.App.-San Antonio 1996, no pet.). There is simply no statutory requirement or other legal precedent requiring a trial court to make findings of fact and conclusions of law when suppressing evidence. Guo, 64 S.W.3d at 668.

The State essentially urges this court to adopt a rule requiring trial courts to enter findings of fact and conclusions of law when timely requested because such a rule would ensure that the State is afforded the right of review “lawfully granted to it by article 44.01 of the Texas Code of Criminal Procedure.” See Tex.Code CRim. PROC Ann. art. 44.01 (Vernon Supp.2004-2005). The State claims it is denied its right to review under article 44.01 when the trial court refuses to enter findings of fact and conclusions of law because, as a general rule, appellate courts are unable to hold the trial court abused its discretion in granting a defendant’s motion to suppress without such findings. See State v. Cardenas, 36 S.W.3d 243, 245 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). The State asserts that without findings of fact and conclusions of law, “an appeal by the State is a complete waste of time, and the State obtains no real review of the correctness of the trial court’s ruling.”

Although we recognize the practical limitations on the effectiveness of appellate review when there are no findings or conclusions, we decline the State’s invitation to impose a requirement on trial courts to file findings of fact and conclusions of law when suppressing evidence. We do not believe it is for this court to promulgate such a rule. See State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim.App.1996) (“It is the duty of the Legislature to make laws, and it is the function of the Judiciary to interpret those laws.”). If the State believes that justice demands a rule requiring trial courts to make findings of fact and conclusions of law when suppressing evidence, it should take its argument to the Legislature, the Court of Criminal Appeals, or the Texas Supreme Court Rules Advisory Committee. The State’s first issue is therefore overruled.

In its second issue, the State contends the trial court erred by granting Cullen’s motions to suppress because it believes sufficient probable cause existed to arrest Cullen for driving while intoxicated. In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Accordingly, the trial court may believe or disbelieve all or any part of a witness’s testimony, even if the testimony is not controverted. Id, When, as here, the trial court does not make findings of fact, we view the evidence in the light most favorable to the court’s ruling and assume that the court made implicit findings that support its ruling, provided those implied findings are supported by the record. Id. We will sustain the trial court’s ruling if the ruling is correct on any theory of law applicable to the case. Id. at 855-56.

When reviewing a trial court’s ruling on a motion to suppress, we afford almost total deference to a trial court’s determination of the facts, especially when the court’s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same amount of deference to mixed questions of law and fact if the resolution of those ultimate questions turn on an examination of credibility and demeanor. Id. If mixed questions of law and fact do not relate to credibility and demeanor, then we review such determinations de novo. Id.

Here, the only evidence presented at the suppression hearing was the testimony of Officers Biasiolli and Marcus. “Assuming that the State’s legal arguments are sound, the only valid reason for the trial court to have granted the motion[s] to suppress is that it didn’t believe the State’s version of the evidence.” Guo, 64 S.W.3d at 666-67. The trial court was free to disbelieve all or any part of Biasiol-li’s or Marcus’s testimony during the suppression hearing. Faced with a cold appellate record, we must defer to the trial court’s assessment of the officers’ credibility. Because the trial court was not compelled to believe the officers’ testimony, we hold that the trial court was within its discretion in granting Cullen’s motions to suppress. Accordingly, the State’s second issue is overruled.

Conclusion

Based on the foregoing, we affirm the trial court’s order granting Cullen’s motions to suppress.

      . According to Marcus, he asked Cullen whether he was injured "probably at least ten times" after the accident to ensure Cullen's safety.

      . Cullen’s passenger also informed Marcus that shfe and Cullen had been at a wine tasting that night and had consumed quite a lot of alcohol.

      . The State argues that we should review the trial court’s suppression ruling de novo. However, "[w]ithout findings of fact, there is simply no set of ‘concrete’ facts upon which to conduct a de novo review.” Guo, 64 S.W.3d at 667.


author: CATHERINE STONE, Justice.

text:
    ORYX CAPITAL INTERNATIONAL, INC., Appellant, v. SAGE APARTMENTS, L.L.C, Appellee.
    No. 04-04-00879-CV.
    Court of Appeals of Texas, San Antonio.
    May 18, 2005.

      Jon G. Shepherd, Gibson, Dunn & Crutcher L.L.P., Dallas, for appellant.
    David L. Treat, John Welsh, Lindow & Treat, L.L.P., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

This is an interlocutory appeal from an order denying a special appearance of an out-of-state defendant. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-2005). We deny Sage Apartments, L.L.C.’s motion to lift the stay of proceedings and its motions to dismiss. We also deny Oryx Capital International, Inc.’s motion for sanctions. We further reverse the trial court’s, special appearance order and render judgment dismissing the claims of Sage Apartments, L.L.C. against Oryx Capital International, Inc.

BACKGROUND

The underlying lawsuit arises out of the sale of an apartment complex known as Sage Crossing Apartments, which is located in San Antonio, Texas. Syndicate Exchange Corporation, purchased the apartment complex from TVO Har-pers Crossing, L.P. in May of 2003. Following the closing of the sale, SEC discovered numerous defects at the apartment complex that were not disclosed during the parties’ negotiations. Sage Apartments, L.L.C., SEC’s successor in interest, filed suit against several different entities, including Oryx Capital International, Inc., for common law fraud, statutory fraud, and negligent misrepresentation based on the entities’ misrepresentations/omissions concerning the condition of the Sage Crossing Apartments. According to Sage, Oryx was one of the key negotiators with SEC concerning the apartment complex and, as a result, SEC relied heavily on the information furnished by Oryx.

Oryx filed a special appearance, asserting that it is a Delaware corporation that does business exclusively in Illinois. Oryx alleged that general jurisdiction does not exist over the corporation because Oryx has not had continuous or systemic contacts with Texas. According to Oryx, its only role in the transaction between TVO and SEC was to locate investors to purchase shares in a limited partner of TVO, Harper’s Crossing Investments, Inc., which it performed outside of Texas. Oryx further alleged that specific jurisdiction dops not exist over the corporation because' Sage’s causes of action do not arise from or relate to any of its contacts with Texas.

After a special appearance hearing, the trial court denied Oryx’s special appearance. The trial court did not file findings of fact or conclusions of law. Oryx subsequently brought this appeal. Shortly after Oryx filed its notice of appeal, Oryx requested that we stay all further proceedings in the underlying suit, including discovery, pending the resolution of the appeal. This court granted Oryx’s request and entered an order staying all further proceedings in the underlying suit. Our January 12, 2005 stay order provided:

[Oryx] has filed a motion to stay all further proceedings in the underlying suit, including discovery, pending the resolution of this interlocutory appeal. Although [Sage] opposes the request, we shall grant [Oryx’s] motion.
[Sage] filed suit against [Oryx] and multiple other entities for statutory fraud in a real estate transaction, common law fraud, and breach of contract. [Oryx] filed a special appearance, which the tidal court denied. It appeals that denial. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004r-2005). By statute, the trial of the underlying suit is stayed pending resolution of this appeal. Id § 51.014(b). [Oryx] requests that discovery be suspended as to all defendants listed in the original petition because “[i]f discovery is allowed to go forward against the other defendants, [Oryx] essentially would be forced to participate in discovery and risk wasting time, money, and judicial resources.” [Sage] responds that a stay is not warranted as to any of the defendants because it will further delay the resolution of the underlying lawsuit.
We believe [Oryx] should not be required to submit to the expense and inconvenience of discovery pending the resolution of this appeal. To ensure that [Oryx] does not incur the expense and inconvenience of discovery, we believe that all discovery at the trial court level should be stayed pending resolution of the appeal of the special appearance. Accordingly, all further proceedings at the trial court level are STAYED pending resolution of this appeal or further order of this court. See Lattin v. Barrett, 127 S.W.3d 276, 277 (Tex.App.-Waco 2003, order) (staying discovery at trial court level as to all defendants pending resolution of one defendant’s interlocutory appeal of special appearance ruling); see also Lacefield v. Elec. Fin. Group, Inc., 21 S.W.3d 799, 800 (Tex.App.-Waco 2000, order), (emphasis added).

Oryx filed its appellant’s brief with this court on January 26, 2005. On February 15, 2005, the date Sage’s appellee’s brief was due to be filed with this court, Sage filed a notice to non-suit Oryx in the trial court. The trial court non-suited Oryx later that same day. Approximately thirty minutes after the trial court entered its dismissal order, Sage filed a Third Amended Petition in the underlying suit. This petition once again named Oryx as a defendant and raised the same claims against Oryx. This petition, however, pleaded additional jurisdictional facts to demonstrate that Oryx falls within the provisions of the Texas long-arm statute.

Sage subsequently presented this court with a motion to dismiss Oryx’s appeal as moot based on the dismissal order entered by the trial court. Sage’s motion provides, “[a]s the claims against Oryx in the underlying suit have been dismissed, [Sage] respectfully requests the Court dismiss Oryx’s appeal as moot.” However, the motion did not reveal that Sage had already filed an amended petition in the trial court, which once again named Oryx as a defendant. Shortly thereafter, Sage filed a supplemental motion to dismiss reasserting that we dismiss Oryx’s appeal as moot. Sage also filed a motion requesting us to lift the stay of proceedings to allow Oryx to be non-suited from the case.

Oryx filed a response to Sage’s dismissal motion's, arguing we should deny the motions because the trial court’s non-suit order is void, as it was entered in violation of our January 12, 2005 stay order. Oryx also filed a “Motion to Review Further Orders and Motion for Sanctions,” asking us to sanction Sage for deliberately violating our stay order and for intentionally omitting critical facts from its filings in this court. Following Oryx’s sanction motion, Sage filed its appellee’s brief addressing the trial court’s special appearance ruling.

Sage’s Motions to Dismiss

As a preliminary matter, we must determine whether we should grant Sage’s motions to dismiss Oryx’s appeal. In its motions, Sage claims we should dismiss Oryx’s appeal because Sage’s non-suit rendered Oryx’s appeal moot. We disagree.

When this court stayed all proceedings in the trial court, the parties and the trial court were ordered to take no further action on the case until they received further orders from this court or we resolved the appeal. See Tex.R.App. P. 29.3 (‘When an appeal from an interlocutory order is perfected, the appellate court may make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal and may require appropriate security.”). By filing its notice of non-suit and asking the trial court to sign the order of dismissal, Sage violated our stay order. Moreover, Sage caused the trial court to violate our order as well.

We recognize that plaintiffs, like Sage, generally have “‘an absolute, unqualified right to take a non-suit upon timely motion as long as [the] defendant has not made a claim for affirmative relief.’” However, we also recognize that litigants must comply with the orders of this court. See In re Martinez, 77 S.W.3d 462, 464 (Tex.App.-Corpus Christi 2002, orig. proceeding) (acknowledging that both litigants and the lower court must respect appellate court’s stay order). If Sage desired to non-suit its claims against Oryx, Sage should have asked this court to lift our stay so that it could file its non-suit in the trial court. Instead, Sage chose to circumvent our authority. Because this court’s order prohibited the continuation of proceedings in the trial court until further notice from this court, the trial court had no authority to entertain Sage’s non-suit motion or enter the order of dismissal. See Tex.R.App. P. 29.5 (“While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders, including one dissolving the order appealed from ... But the: court must not make an order that ... is inconsistent with any appellate court temporary order.... ”). The trial court’s order dismissing Oryx from the case was entered in direct violation of our order and is therefore void. Consequently, Oryx’s appeal is not moot because Oryx remains a party to the underlying suit. Sage’s motions to dismiss are denied.

Sage cites Le v. Kilpatrick, 112 S.W.3d 631 (Tex.App.-Tyler 2008, no pet.), for the proposition that a litigant may take a non-suit even when an appellate court has entered an order staying all further proceedings in the trial court. In Le, the defendants filed an interlocutory appeal from the trial court’s denial of their special appearances. 112 S.W.3d at 633. Sometime after the defendants filed their notice of appeal, the Twelfth Court of Appeals stayed the trial court proceedings pending the resolution of defendants’ appeal. Id. at 635. Despite the stay, the plaintiffs in the underlying suit filed a notice of non-suit in the trial court. See id. at 633. When the trial court granted the non-suit, the plaintiffs filed a motion to dismiss the defendants’ appeal as moot. See id. The court of appeals subsequently vacated the order denying the defendants’ special appearances, lifted its stay of the trial court proceedings, and dismissed the appeal as moot. Id. at 635. Absent from the Twelfth Court’s decision, however, is any discussion concerning the plaintiffs’ disregard of the stay order. While our sister court may have tolerated the litigant’s disregard of its authority in Le, this court is simply unwilling to accept the type of behavior exhibited by Sage in the case at bar. Therefore, we decline to follow Le.

Oryx’s Motion for Sanctions

Although we strongly disapprove of the manner in which Sage disregarded this court’s stay order, we decline to impose sanctions on Sage. When Sage filed its notice of non-suit in violation of our stay of proceedings, it pursued a course of action implicitly approved of by the Twelfth Court of Appeals. See id. Because Sage pursued a course of action supported by case law from one of our sister courts, we will not sanction Sage for such conduct.

With respect to Sage intentionally omitting facts from its filings with this court, we will give Sage the benefit of the doubt and assume any omissions were inadvertent. Nevertheless, Sage’s omissions demonstrate a lack of attention to detail and a failure to appreciate the importance of being accurate and forthright when appearing before this court on appeal. See Texas Lawyer’s Creed-A Mandate for Professionalism, (adopted by the Supreme Court of Texas and the Court of Criminal Appeals, Nov. 7, 1989), reprinted in Texas Rules of Court 669, 671 (West 2005) (“I will not knowingly misrepresent, mischar-acterize, misquote or miscite facts or authorities to gain an advantage.”). Oryx’s motion for sanctions is denied.

Oryx’s Special Appearance

Having concluded that Oryx’s appeal is not moot, we must now consider whether the trial court erred in denying Oryx’s special appearance. Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002). Trial courts, however, frequently must resolve questions of fact in resolving this question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). When the trial court does not issue findings of fact and conclusions of law with its special appearance ruling, we presume that the trial court resolved all factual disputes in favor of its judgment. Id. at 795. If the record includes both the reporter’s and clerk’s records, as in this case, the trial court’s implied findings are not conclusive and may be challenged for legal and factual sufficiency. Id. In reviewing a legal sufficiency challenge, the no evidence challenge fails if there is more than a scintilla of evidence to support the finding. Id. When we review a factual sufficiency challenge, we set aside the trial court’s decision only if its ruling is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. French v. Glorioso, 94 S.W.3d 739, 744 (Tex.App.-San Antonio 2002, no pet.). The legal conclusions the trial court draws from its findings are reviewed de novo. BMC Software, 83 S.W.3d at 794. If a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id.

A Texas court may exercise jurisdiction over a nonresident defendant only if: (1) the Texas long-arm statute authorizes the exercise of jurisdiction; and (2) the exercise of jurisdiction comports with the state and federal constitutional guarantees of due process. Id. at 795. The Texas long-arm statute permits Texas courts to exercise jurisdiction over a nonresident that does business in Texas. Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997). The long-arm statute defines “doing business” as: (1) contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas; (2) commission of a tort in whole or in part in Texas; (3) recruitment of Texas residents, directly or through an intermediary located in Texas, for employment inside or outside Texas; or (4) performance of any other acts that may constitute doing business. Id. The Texas long-arm statute extends “as far as the federal constitutional requirements of due process will permit.” Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Thus, the requirements of the long-arm statute are considered satisfied if the exercise of personal jurisdiction comports with federal due process limitations. Id.

The due process clause of the federal constitution permits a court to exercise jurisdiction over a nonresident defendant if: (1) the defendant has established “minimum contacts” with the forum state; and (2) the exercise of jurisdiction comports with the traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The minimum-contacts analysis requires a defendant to “purposefully avail” itself of the privileges and benefits of conducting business-within the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). “The defendant’s activities, whether they are direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.” Coleman, 83 S.W.3d at 806. A defendant is not subject to the jurisdiction of this state if its Texas contacts are random, fortuitous, or attenuated. Id. “Nor can a defendant be haled into a Texas court for the unilateral acts of a third party.” Id. In conducting a minimum-contacts analysis, it is the quality and nature of the defendant’s contacts, rather than their number, that is important. Id.

A defendant’s contacts with a forum state may give rise to either general or specific jurisdiction. Id. Specific jurisdiction exists when: (1) the defendant’s contacts with the forum are purposeful; and (2) the cause of action arises from or relates to those contacts. Id. General jurisdiction exists when a defendant’s contacts in the forum are continuous and systematic. Id. at 807. General jurisdiction therefore allows the forum state to exercise jurisdiction over the defendant even if the cause of action did not arise from or relate to the defendant’s activities within the forum. Id. at 806-07.

“Once it has been determined that the nonresident defendant purposefully established minimum contacts with the forum state, the contacts are evaluated in light of other factors to determine whether the assertion of personal jurisdiction comports with fair play and substantial justice.” Guardian Royal, 815 S.W.2d at 228. These factors include: (1) the burden on the nonresident defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental, substantive social policies. Id. Because the minimum-contacts analysis encompasses so many considerations of fairness, it is unlikely that the exercise of jurisdiction will fail the fair-play analysis. Schlobohm v. Schapiro, 784 S.W.2d 855, 357-58 (Tex.1990).

The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793. Upon filing a special appearance, the nonresident defendant assumes the burden to negate all bases of personal jurisdiction alleged by the plaintiff. Id. Where the plaintiff does not plead jurisdictional allegations, i e., that the defendant has committed any act in Texas, the defendant can satisfy its burden of negating all bases of personal jurisdiction by presenting evidence that it is a nonresident. Perna v. Hogan, 162 S.W.3d 648, 652 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). If the defendant produces evidence negating jurisdiction, the burden returns to the plaintiff to show as a matter of law that the court has jurisdiction over the defendant. Gutierrez v. Cayman Islands Firm of Deloitte & Touche, 100 S.W.3d 261, 273 (Tex.App.-San Antonio 2002, pet. dism’d); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 (Tex.App.-Corpus Christi 1999, no pet.).

In this case, the parties limit their arguments to whether Oryx’s contacts with Texas give rise to specific jurisdiction. We therefore limit our review to whether specific jurisdiction exists over Oryx. After reviewing the record and the parties’ contentions, we are of the opinion that Texas does not have jurisdiction over Oryx.

In its original petition, Sage alleges that Oryx, along with several other co-defendants: (1) failed to disclose various code violations at the Sage Crossing Apartments; (2) misrepresented that certain roof repairs had been made on the apartment complex; (3) failed to disclose various plumbing defects at the apartment complex; (4) misrepresented that adequate drainage existed at the apartment complex; (5) misrepresented that only six of the apartment complex’s boilers were broken; (6) misrepresented that the apartment complex’s siding did not leak during rain storms; and (7) misrepresented that rent collections were approximately $260,000 per month. Sage’s petition, however, does not allege that any of the aforementioned misrepresentations/omissions occurred in Texas. Because Sage’s pleadings do not specifically allege any grounds for personal jurisdiction over Oryx, Oryx satisfied its burden to negate all bases of personal jurisdiction when it presented evidence demonstrating that it is a nonresident. The burden was thus on Sage to show as a matter of law that the court had jurisdiction over Oryx. See Castro, 8 S.W.3d at 408.

To demonstrate that Oryx is subject to the jurisdiction of a Texas court, Sage cites to its response to Oryx’s special appearance. Sage’s response identifies several contacts Oryx had with Texas as a result of its efforts to sell the Sage Crossing Apartments. These contacts include: (1) a November 5, 2001 letter Frank Marmo, an Oryx representative, sent to REOC Partners, Ltd., a Texas brokerage firm, concerning The National Farm Workers of California’s interest in the Sage Crossing Apartments; (2) a December 19, 2002 letter John Tung, the managing director of Oryx, sent to REOC concerning TVO’s desire to sell the Sage Crossing Apartments to SEC; (3) negotiations John Tung conducted with TVO and REOC in Texas before the sale of the apartments concerning the commission REOC would receive for brokering a deal between TVO and SEC; and (4) a January 13, 2003 meeting between Frank Marmo and two SEC representatives (Richard Segal and David Sil-berstein) at the Sage Crossing Apartments concerning SEC’s decision to purchase the apartment complex. Sage asserts that these contacts demonstrate Oryx falls within the ambit of the Texas long arm statute.

After considering Sage’s contentions, we must conclude that Oryx is not subject to the jurisdiction of a Texas court. None of Sage’s causes of action arise from or relate to any of the Texas contacts described in its special appearance response. See Guardian Royal, 815 S.W.2d at 227-28 (specific jurisdiction established if alleged liability arises out of or is related to activity conducted within forum). From Sage’s special appearance response it is evident that Sage’s causes of action concern various representations Oryx allegedly made to SEC about the physical condition of the Sage Crossing Apartments during the due diligence period of the sale. Sage’s response specifically provides:

This case arises out of the purchase and sale of an apartment complex known as Sage Crossing Apartments (“Sage Crossing”). In May 2003, TVO Harpers Crossing, L.P. (“TVO” or “Seller”) sold Sage : Crossing to Syndicate Exchange Corporation (“SEC” or “Buyer”). Oryx Capital International, Inc. and Oryx Capital Corporation (“Oryx”), through its representatives, were integral parties to thfe subject real estate transaction. One particular representative, John Tung, was a key negotiator, if not, the negotiator, that dealt with SEC and its representatives prior to the closing sale. SEC relied heavily on information provided by Oryx and/or John Tung during the due diligence period prior to the closing of the purchase of the sale of Sage Crossing.
Follmying the closing of the sale, SEC discovered numerous defects relating to the physical condition of Sage Crossing. Seller and its agents failed to make complete and truthful disclosures regarding the condition of the property, in spite of numerous inquiries by SEC. Sage Apartments, L.L.C. (“Plaintiff’) now brings this suit due to the numerous material misrepresentations made regarding the condition of the property during the due diligence period and the associated defects discovered by SEC after the closing of the sale. Because Plaintiffs claims relate to the tor-tious conduct of Seller and Seller’s agents, including Oryx, and because many of these misrepresentations resulted from Oryx’s direct contact with the Buyer, Oryx’s Special Appearance should be denied, (emphasis added).

According to the record, the due diligence period discussed above did not begin until January 21, 2003, the date SEC and TVO entered their “Agreement of Purchase and Sale.” All of the Texas contacts Sage focuses on in its special appearance response concern Oryx’s contacts with Texas before the due diligence period began. However, Sage did not sue for any misrepresentations/omission arising from Oryx’s pre-due diligence period contacts with Texas. Instead, Sage limited its suit to Oryx’s alleged misrepresentations during the due diligence period. Specific jurisdiction over Oryx cannot be maintained in Texas based on Oryx’s pre-due diligence period contacts with Texas because Sage’s causes of action do not relate to or arise from such contacts. Accordingly, we hold Sage failed to meet its burden of proving that the trial court had jurisdiction over Oryx. Oryx’s special appearance issue is sustained.

Conclusion

Based on the foregoing, we deny Sage’s motion to lift the stay of proceedings and motions to dismiss. We also deny Oryx’s motion for sanctions. We further reverse the trial court’s special appearance order and render judgment dismissing Sage’s claims against Oryx.

      . SEC is a Texas corporation with its principal place of business in Encino, California.

      . TVO is a Texas Limited Partnership with its principal place of business in San Antonio, Texas.

      . SEC organized Sage as a Texas limited liability company for purposes of owning and managing the Sage Crossing Apartments. Sage's principal place of business is in San Antonio, Texas.

      . The Honorable Karen Pozza of the 131st Judicial District Court of Bexar County, Texas signed the order denying Oryx's special appearance.

      . The Honorable Rebecca Simmons then-presiding judge of the 408th Judicial District Court of Bexar County, Texas signed the order dismissing Oryx from the case.

      . We recognize that Sage eventually filed, in this court, a motion to lift the stay of proceedings. This motion, however, was filed well after the trial court had already entered its dismissal order. We deem Sage's efforts to lift the stay too little, too late. Sage’s motion to lift the stay of proceedings is therefore denied.

      . See In re Martinez, 77 S.W.3d at 464 (holding non-suit order signed by trial court was void when it was entered in direct violation of court of appeals’s stay order). There is no indication in the record that Sage ever informed the trial court of our stay order.

      . See Perna, 162 S.W.3d at 652. Oryx presented affidavit evidence indicating that Oryx is a Delaware corporation, with its principal place of business in Illinois.