author: EVA M. GUZMAN, Justice.

text:
    Carold J. WORTHAM, Individually and as Independent Administratix of the Estate of Hugh Wortham, Deceased, Robin Johnson, and Lance Wortham, Appellants, v. DOW CHEMICAL COMPANY, Appellee.
    No. 14-03-00984-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 27, 2005.

      Richard DeWayne Collins, Richard J. Clarkson, Beaumont, for appellants.
    Patricia Chamblin, Beaumont, Peter John Strelitz, Austin, for appellee.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

In this asbestos-related personal injury case, appellants, Carold J. Wortham, individually and as Administratix of the Estate of Hugh Wortham, and her two children, Robin Johnson and Lance Wortham, challenge the trial court’s orders granting summary judgment in favor of appellee, Dow Chemical Company (“Dow”). In summary, appellants argue the trial court erred in granting summary judgment for the following reasons: (1) the trial court granted a no-evidence summary judgment based on Dow’s affirmative defenses, which are not a proper basis for summary judgment; (2) there is an alleged defect in Dow’s notice of hearing as to its second motion for summary judgment; (3) the trial court improperly granted summary judgment based on grounds not raised by Dow; and (4) Dow’s no-evidence motion for summary judgment does not satisfy the requirements of Rule lfiGa®. Finding no merit in the alleged errors asserted by appellants, we affirm the trial court’s judgment.

I. Factual Background

Hugh Wortham worked as an employee of the Dow Badische Company from approximately 1962 through 1996. Following his death from lung cancer, appellants filed this personal injury and wrongful death and survival action against thirty-one defendants, claiming Wortham’s death was due to asbestos exposure. Appellants filed suit against Dow as the successor-in-interest to Dow Badische. They also alleged Dow was liable under a theory of joint venture, and asserted negligence and gross negligence claims against Dow.

In the trial court Dow filed two summary judgment motions. The first motion requested summary judgment on (1) appellants’ successor-in-interest claims, (2) “potential” claims appellants had regarding Dow’s engineering or construction services provided to Dow Badische based on a statute of repose defense, and (3) negligence claims on no-evidence grounds. Dow’s second motion for summary judgment addressed appellants’ claim that Dow was liable as a joint venturer. The trial court granted both motions.

II. Discussion

Although appellants expressly list six issues for our review, they assert arguments under fourteen separate headings that sometimes overlap on the issues expressly stated and raise issues not expressly stated. Central to all the issues raised, however, is the procedural history of the case and thus, we begin by setting out that history in detail.

A. Procedural History

In their second amended petition, the operative pleading when Dow filed its first summary judgment motion, appellants sued Dow as a successor-in-interest to Dow Badische, asserting various causes of action and pleading general allegations against all thirty-one defendants. Appellants claimed they were suing for the personal injury and death of Wortham “inflicted by negligent, gross negligent, fraud, deceit, misrepresentations and defective products of the defendants.” They also alleged the defendants had (1) negligently and intentionally caused Wortham to be fatally exposed to asbestos; (2) made, sold, specified, or used asbestos-containing products that were defective and unreasonably dangerous; (3) conspired to suppress information regarding asbestos; and (4) intentionally failed to “protect, warn, instruct or otherwise prevent” exposure which was grossly negligent and constituted battery. There were no specific — nor general — allegations directly against Dow in appellants’ second amended petition; all references to Dow were only as successor-in-interest to Dow Badische.

In response to these allegations, Dow moved for summary judgment claiming it was not the legal corporate successor to Dow Badische and could not be held liable for the actions of Dow Badische. Dow averred that it sold its stock in Dow Bad-ische in 1978 and divested itself of any interest in the company. Dow also asserted that Dow Badische was a separate corporation, operated at arm’s length from any Dow facilities, and that BASF was in fact the successor-in-interest to Dow Bad-ische. Dow also argued that any “potential” claims concerning engineering and construction services were barred by limitations and moved for a no-evidence summary judgment on appellants’ negligence claims, arguing there was no evidence of a duty owed or breached.

Appellants requested leave to timely file a third amended petition, stating in part, “[t]he Third Amended Petition amends Plaintiffs’ claims to assert a direct cause of action against Dow for its negligence in failing to warn or protect [Wortham] from asbestos exposure, and in negligently providing health and safety services.” In their third amended petition, appellants again named Dow as the successor-in-interest to Dow Badische and reasserted many of the same general allegations as contained in their second amended petition. The new pleading, however, contained the following allegations not contained in the second amended petition:

For a significant period of time that [Wortham] was employed for Dow Bad-ische, Dow Badische was a joint venture between Dow Chemical Company and BASF. The Dow Chemical Company maintained control over the premises at Dow Badische where [Wortham] worked by specifying that asbestos insulation products be used on the premises and by controlling safety on the premises. Further, the Dow Chemical Company provided services to Dow Badische in the nature of safety and health during the relevant time periods. The Dow Chemical Company was negligent and grossly negligent in failing to detect and prevent asbestos exposures to [Wort-ham], to warn [Wortham] of the dangers of exposures to asbestos and asbestos-containing products, or to recommend personal protective equipment to aid in the protection of [Wortham] from exposure to asbestos.

In essentially all other respects, appellants’ third amended petition contained the exact same allegations as in the previous pleading.

After a hearing on appellants’ motion for leave to file the third amended petition, the trial court issued a letter stating, in part, the following:

Since the new petition pleads a single new cause of action — i.e. joint venture between Dow and Badische — plus the same causes of action as pled in the Second Amended Petition, my rulings on Dow’s motion ... do not include a ruling on joint venture. Dow can file a subsequent motion ... as to that cause of action.
* * * *
Finally, let me address the newly pled joint venture issue so there will be no misunderstanding at the next summary judgment hearing. The Third Amended Petition pleads that a joint venture existed because (1) Dow maintained control over Badische’s premises by specifying that insulation products be used on the premises, and (2) Dow controlled safety on the Badische premises.

In its subsequent order, the trial court granted summary judgment in favor of Dow on all appellants’ claims against Dow as a successor-in-interest and on the claims regarding Dow’s specification .of insulation products. The order also reiterated that the only “new cause of action” asserted against Dow in the third amended petition was the joint venture claim, this issue was not considered in the order, and Dow was free to file a motion for summary judgment on that claim. Dow then filed its second summary judgment motion, addressing the joint venture issue on both traditional and no-evidence summary judgment grounds. Following a hearing, the trial court issued an amended order granting both Dow’s first and second summary judgment motions as to all causes of action alleged by appellants against Dow.

We begin our discussion of the case by first examining the procedural issues raised by appellants.

B. Procedural Issues

2. Did the trial court improperly grant a no-evidence summary judgment on affirmative defenses?

Appellants argue on appeal that the trial court erred because it granted Dow a no-evidence summary judgment on its affirmative defenses, that is, successor-in-interest liability and the statute of repose defense. Correctly, appellants assert that a no-evidence summary judgment cannot be granted on an affirmative defense. See Nowak v. DAS Inv. Corp., 110 S.W.Bd 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (stating a party may not properly move for a no-evidence summary judgment on a claim or defense on which it has the burden of proof). But,. though appellants correctly state the law regarding this issue, it ⅛ inapplicable in this case.

In its first summary judgment motion, Dow argued that appellants had no evidence to support their negligence claims. But, as to the successor-in-interest allegations, Dow moved for a traditional summary judgment and attached supporting evidence. Likewise, Dow’s statute of repose argument was also contained in the traditional summary judgment portion of its motion and Dow furnished evidence relating to that argument. Thus, the record does not support appellants’ contention, that the trial court erred by granting Dow a no-evidence summary judgment on these affirmative defenses.

As to this issue, appellants also argue that Dow could not successfully move for a no-evidence summary judgment on the joint venture claim, because it too is an affirmative defense. It is well settled, however, that a party seeking to establish the existence of a joint venture — here, appellants — have the burden to prove the matter. See Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 120 (Tex.App.Tyler 1993, writ denied); Gutierrez v. Yancey, 650 S.W.2d 169, 171 (Tex.App.San Antonio 1983, no writ). Because appellants had the burden to prove the existence of the joint venture, Dow could properly move for a no-evidence summary judgment on that issue. Moreover, Dow’s motion addressing the joint venture allegation was both a traditional and no-evidence motion.

a. Single business enterprise

Appellants also refer to a “single business enterprise” theory in their claim that .the trial court erred in granting summary judgment on Dow’s affirmative defenses; however, as Dow points out, it did not move for, and the trial court did not grant, a no-evidence summary judgment on that issue.

In a related argument, appellants assert that Dow failed to establish Dow Badische was not its “single business enterprise” as a matter of law. Dow argues that it was appellants’ burden to plead and prove the theory, which they failed to do. We agree.

Assuming Texas law recognizes the single business enterprise theory as a basis for disregarding the corporate fiction, it was appellants’ burden to plead and prove the theory. See Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 695 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Appellants did not plead the “single business enterprise” theory or otherwise raise the issue in the trial court. Further, they make no other argument on appeal regarding the doctrine. Thus, because the single business enterprise theory was not raised in the trial court, we do not consider it as a ground for reversal on appeal. See Tex.R. Civ. P. 166a(c); McConnell v. Southside Indp. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

Appellants do argue, however, that their general prayer for relief sufficed to plead the single business theory. They contend that, because the doctrine is an equitable one and they requested any equitable relief to which they were entitled in their prayer, they pleaded the theory. We reject this contention.

The purpose of pleadings is to give the parties fair notice of claims, defenses, and relief sought. See Tex.R. Civ. P. 47; Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex.1991). Construing a general prayer for relief as subsuming any equitable or legal doctrine simply by including those terms in the prayer, would not serve the purpose of our pleading rules. See Tex. Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (rejecting argument that general prayer for “such other relief ... to which plaintiff may be entitled” adequately apprised party of damages that would be sought in light of particular damages requested in pleadings); Cearley v. Cearley, 331 S.W.2d 510, 512 (Tex.Civ.App.-Dallas 1960, no writ).

2. Defective notice of the summary judgment hearing

Appellants also argue that Dow’s notice of hearing on the second summary judgment motion was defective because the notice referred only to the second motion, although issues raised in the first summary judgment motion were addressed in the hearing. Dow responds that appellants were in fact aware that the issues resolved by the first summary judgment order would be addressed in the hearing on the second motion because appellants re-urged some of those issues in their response; therefore, appellants cannot show any harm. Dow also contends that appellants sent the notice for the hearing on the second motion and moreover, because appellants failed to raise this issue in the trial court, any complaints regarding the notice have been waived.

We agree with Dow that this issue has not been preserved for our review. Generally, a complaint concerning notice is required to be in writing and before the court at the summary judgment hearing. Hall v. Lone Star Gas Co., 954 S.W.2d 174, 177 (Tex.App.-Austin 1997, pet. denied); see also Tex.R. Civ. P. 166a(c) (stating that issues not expressly presented to the trial court cannot be considered on appeal as grounds for reversal). Although in certain cases, the complainant may not have an opportunity to present objections until after the entry of summary judgment, the complainant is still required to set forth any objections in a post-judgment motion. See id. Here, there is no post-judgment motion in which appellants complained of improper notice and therefore, the issue has not been preserved for review.

In addition, the primary purpose of the notice requirement under Rule 166a(c) is to allow the non-movant to calculate the date on which his response or opposing affidavits are due. Goode v. Avis Rent-A-Car, Inc., 832 S.W.2d 202, 204 (Tex.App.-Houston [1st Dist.] 1992, writ denied); see Tafollo v. Southwestern Bell Tel. Co., 738 S.W.2d 306, 307 (Tex.App.Houston [14th Dist.] 1987, no writ). Here, appellants had already filed their response and had, in fact, sent notice of the hearing themselves.

In sum, we overrule appellants’ issues asserting the trial court erred in granting a no-evidence summary judgment in favor of Dow based on affirmative defenses, including their argument regarding the single business enterprise theory. Further, because appellants have waived their complaint regarding alleged improper notice of the second summary judgment hearing, we overrule that issue as well. We now address the propriety of the trial court’s summary judgment in favor of Dow.

B. Summary Judgment in Favor of Dow

1. Appellants’“Malooly” Issue

In their first issue on appeal, appellants state “[t]he trial court erred in granting the motion for summary judgment.” The extent of appellants’ supporting argument regarding this issue is as follows: “Issue one in this brief is recommended in all Summary Judgment appeals by the Supreme Court.” Appellants then cite to Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

In Malooly, the Texas Supreme Court noted that a general statement, such as the one presented by appellants, is sufficient “to allow argument as to all the possible grounds upon which summary judgment should have been denied.” Id. There appears to be some disagreement between the intermediate appellate courts as to whether a general “Malooly” issue statement suffices to challenge every ground asserted in the summary judgment motion, even if the appellant fails to present an argument on every ground. See Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 669-70 (Tex.App.-Texarkana 1996, writ denied) (noting disagreement among the courts). Some courts, including this one, have determined that a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument. See, e.g., Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.Houston [14th Dist.] 2004, pet. denied); Pena v. State Farm Lloyds, 980 S.W.2d 949, 958-59 (Tex.App.-Corpus Christi 1998, no pet.) (concluding that Malooly allowed the non-movant to argue broadly on appeal under a general point of error, but it did not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal). Consequently, this first issue presents nothing for our review. To the extent appellants argue that summary judgment on particular grounds is error, we address those arguments as raised.

2. Were Appellants’ Intentional Tort Claims Addressed in the Trial Court?

Appellants present two issues in which they expressly state that not all of their causes of action were addressed in Dow’s motions. In one of those issues, they argue the motions did not address their allegations that Dow’s conduct was grossly negligent and constituted battery, and their conspiracy claim. They contend that because Dow’s first summary judgment motion challenged only their negligence claims, the trial court erred in granting summary judgment on their intentional tort claims. We now address the first of these two issues.

Appellants construe their pleadings to assert general allegations against all the “defendants” named. However, appellants named Dow only as a successor-in-interest to Dow Badische. We do not construe appellant’s pleadings to have asserted all general allegations against Dow.

Texas follows a “fair notice” standard for pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.2000); see also Tex.R. Crv. P. 45. Generally, a pleading provides fair notice of a claim when an opposing attorney of reasonable competence can examine the pleadings and ascertain the nature and basic issues of the controversy and the relevant testimony. Auld, 34 S.W.3d at 896; State Fid. Mortgage Co. v. Varner, 740 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1987, writ denied). In determining whether a cause of action has been pleaded, the court must be able, “from an examination of the plaintiffs pleadings alone, to ascertain with reasonable certainty the elements of a cause of action and the relief sought with sufficient particularity upon which a judgment may be based.” Coffey v. Johnson, 142 S.W.Sd 414, 417 (Tex.App.-Eastland 2004, pet. denied) (citing Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979)). The court looks to the pleader’s intent and will uphold the pleading as to a cause of action even if some element of that cause of action has not been specifically alleged. See Auld, 34 S.W.3d at 897. Petitions are construed liberally in favor of the pleader. See id. (noting that if no special exceptions are filed, courts should construe pleadings liberally in favor of the pleader). But, “liberally” does not require a court to read into -a petition what is plainly not there. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex.App.-Dallas 2003, no pet.).

Here, in their second amended petition, appellants named Dow as a defendant in its capacity as the successor-in-interest to Dow Badische. There were no direct allegations against Dow contained in that pleading. In their third amended petition, appellants carried these allegations forward, again naming Dow as defendant in a successor-in-interest capacity and asserting the same general allegations against the “defendants” collectively. Apart from these general allegations, appellants included one paragraph containing specific allegations of Dow’s liability as a joint venturer and asserting the claims of negligence and gross negligence against Dow, suggesting that appellants’ intent in amending the pleading was only to include those specific allegations contained in that one paragraph. Further, as reflected in their motion for leave to file the third amended petition, appellants themselves construed their pleadings in this manner, stating in the motion: “The Third Amended Petition amends Plaintiffs’ claims to assert a direct cause of action against Dow for its negligence in failing to warn or protect [Wortham] from asbestos exposure, and in negligently providing health and safety services.” (Emphasis added). The trial court also construed appellants’ third amended pleading similarly, stating in its letter to the parties that the third amended petition alleged “the same causes of action as pled in the Second Amended Petition,” with the exception of the joint venture allegation. It is also apparent from Dow’s first summary judgment motion that its counsel construed appellants’ pleadings to allege only claims against Dow in its capacity as the successor-in-interest to Dow Badische, noting in the motion that “[w]hile the only allegations in the petition ... concerning Dow and the allegations that Dow is the corporate successor to Dow Badische.”

We construe the allegations of appellants’ petitions as did the trial court and the parties. See Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858, 872 n. 14 (Tex.App.-San Antonio 1997, no writ) (noting that pleadings should be construed as the parties construed them, stating “if a plaintiff insists that a contract action is a tort action, his pleadings will be given the construction that he has given them and acted upon.”).- Appellants’ general allegations were against Dow as the successor-in-interest to Dow Badische and the direct claims against Dow were those alleged in the additional paragraph contained in the third amended petition, that is, joint venture, negligence and gross negligence.

a. Successor-in-interest claims

Dow moved for a traditional summary judgment on appellants’ successor-in-interest claims, arguing that it was not the legal corporate successor to Dow Bad-ische and could not be held liable for the actions of Dow Badische. Dow stated it sold its stock in Dow Badische in 1978 and divested itself of any interest in that company. Dow also asserted that Dow Bad-ische was a separate corporation, operated at arm’s length from any Dow facilities and further, that BASF was the successor-in-interest to Dow Badische. Dow attached summary judgment evidence in support of its assertions. Appellants did not challenge the sufficiency of Dow’s evidence on this issue in the trial court, or suggest a fact issue existed on that claim. They do not challenge Dow’s evidence on appeal. Accordingly, we overrule appellants’ arguments and issues in which they contend that Dow’s motions failed to address their claims of intentional tort, including battery, deceit, equity, fraud, and misrepresentations because these claims were alleged against Dow as the successor-in-interest to Dow Badische and were addressed in Dow’s first summary judgment motion.

2. Appellants’ Joint Venture Claims

Appellants argue on appeal that Dow failed to establish as a matter of law that Dow Badische was not its “joint venture,” however, appellants have waived this issue for our review.

In their response to Dow’s second summary judgment motion, challenging the joint venture theory of liability on both traditional and no-evidence grounds, appellants argued only that (1) their previous pleadings alleged Dow was liable under the theories of negligence, gross negligence and strict products liability; (2) the court’s previous order did not grant summary judgment on these claims; and (3) therefore, these issues remained in the lawsuit. This was appellants’ complete argument in response to Dow’s summary judgment motion on the joint venture ground. They did not assert that a fact issue existed on joint venture or otherwise argue that summary judgment on the matter was precluded. In fact, in their response, appellants incorporated their previous response to Dow’s first motion only for the express purpose of “substantiating] their allegations as to why [appellants’] causes of action sounding in negligence, gross negligence, and strict products liability remain at issue in this case.” In addition, in the conclusion to their response, appellants stated that the court “should grant Dow’s motion for Summary Judgment only as to the allegation that Dow is liable under the theory of joint venture and Order that [appellants’] negligence, gross negligence and strict products liability causes of action are still at issue in this case.” And, in their prayer, the relief requested by appellants was, in part, as follows: “[Appellants] pray that the court grant [Dow’s] Motion for Summary Judgment only as to the allegations that Dow is liable under the theory of joint venture.” Consequently, having requested the court grant summary judgment on the joint venture issue, appellants cannot now assert on appeal that the relief requested was error. See Nesmith v. Berger, 64 S.W.3d 110, 119 (Tex.App.-Austin 2001, pet. denied) (“A party that asks for a certain type of relief cannot complain on appeal if that relief is granted.”). We overrule appellants’ issue on this matter.

3. Were Appellants’ Negligence and Gross Negligence Claims Against Dow Addressed in the Trial Court?

In their second issue, expressly stating that Dow failed to address all of their causes of action, appellants contend there were “new causes of action” alleged against Dow in their third amended petition, specifically listing these claims as follows: (1) Dow is liable because it maintained control over the premises at Dow Badische by specifying asbestos insulation products be used on the premises and by controlling safety on the premises; and (2) Dow is hable for providing health and safety services to Dow Badische during the relevant time periods. According to appellants, Dow’s motions did not address their new negligence and gross negligence claims.

The three essential elements of any negligence cause of action are (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). In its first motion, Dow expressly moved for a no-evidence summary judgment on appellants’ negligence claims. Specifically, Dow argued that appellants had no evidence it owed any duty to Wort-ham, nor that it breached any duty, stating in part, “[t]here is no evidence that [Dow] did anything or failed to do anything that contributed to the alleged injury... .Thus, there is no evidence that [Dow] was negligent, and ... is not Hable under the theory of negligence.” Plainly then, Dow moved for summary judgment on appellants’ negligence claims. To the extent appellants’ argue that- Dow’s first summary judgment motion could not encompass their later pleaded negligence claims, we disagree.

If a summary judgment motion is sufficiently broad, it can be deemed to cover additional causes of action later pleaded. See Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 435-37 (Tex.App.-Houston [14th Dist.] 1999, no pet.). And, in any negligence claim, a plaintiff must prove the existence and breach of a legal duty owed to him by the defendant. See Kukis v. Newman, 123 S.W.3d 636, 639 (TexApp.-Houston [14th Dist.] 2003, no pet.). Here, Dow’s first motion was very broad, challenging appellants’ ability to bring forth any evidence of a duty owed or breached. Because those elements are necessary to establishing appellants’ later-filed negligence claims, Dow’s first motion covered those claims.

The record indicates the parties and the trial court also construed Dow’s first motion broadly to encompass appellants’ negligence claims. For example, in responding to the motion, appellants argued that Dow owed a duty to Wortham because, among other things, Dow “undertook to render services to Dow Badische which Dow recognized as necessary for the protection of third persons.” This language mirrors some of the “new” allegations contained in appellants’ third amended petition. Further, the trial court issued another letter following Dow’s second summary judgment motion which stated, in part, that it had ruled on the negligence causes of action when ruling on Dow’s first summary judgment motion; and, as we noted previously, appellants’ third amended petition was the operative pleading when the trial court ruled on the first motion.

In sum, Dow’s no-evidence summary judgment motion was sufficiently broad enough to encompass appellants’ later pleaded negligence causes of action. Accordingly, we overrule appellant’s issues and arguments contending their negligence and gross negligence causes of action were not addressed by Dow’s motions.

We must affirm a summary judgment if any of the theories presented to the court and preserved for appellate review are meritorious. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). Other than the issue as stated above, appellants do not argue that the trial court erred in granting summary judgment based on Dow’s no-evidence motion. The court’s amended order granted both of Dow’s motions on all causes of action alleged by appellants without specifying any grounds. Thus, because summary judgment may have been granted on this unchallenged ground, we affirm the trial court’s grant of summary judgment in Dow’s favor.

Moreover, even were we to construe appellants’ brief as challenging the no-evidence ground, we have found no record evidence raising a fact issue on appellants’ negligence claims. There is no evidence in the record that Dow owned the Dow Badische premises at the time of Wortham’s exposure, nor that Dow ever operated the Dow Badische facility. The evidence reflects that Dow and Dow Bad-ische were separate corporations and were operated separately. After 1961, the employees “loaned” to Dow Badische by Dow became Dow Badische employees, and they no longer received their pay from Dow. Likewise, after that date, the safety forms used by Dow Badische employees were Dow Badische forms. Wort-ham, who was never a Dow employee, started working for Dow Badische in 1962. Also, although there is a contract in the record in which Dow agrees to provide fuel to Dow Badische and other tangential services, this is not a basis for establishing liability against Dow for Wortham’s injuries. There is no evidence that Wortham ever worked with or around any asbestos containing product supplied or manufactured by Dow, and no evidence that Dow ever owned, operated, or controlled the Dow Badische facility. Further, although appellants alleged that Dow was liable because it provided health and safety services to Dow Badische, there is no evidence in the record that Wortham’s injuries were caused by Dow’s negligence in providing these services.

III. Conclusion

In conclusion, we reject appellants’ contentions (1) that the trial court rendered a no-evidence summary judgment based on Dow’s affirmative defenses, and (2) that it was Dow’s burden to prove Dow Badische was not its single business enterprise. We also conclude appellants waived their complaint alleging that Dow provided them with a defective notice of the summary judgment hearing. Further, Dow’s summary judgment motions addressed all of appellants’ causes of action asserted against it. Because appellants’ failed to challenge the trial court’s grant of summary judgment on Dow’s no-evidence grounds, we do not address the statute of repose issues raised by appellants’ in this appeal.

Accordingly, we affirm the trial court’s judgment.

      .Appellants also argue in their brief that Bow did not file sworn denials as to appellants' claims against it in its alleged capacities as successor-in-interest, joint venturer, and single business enterprise. However, at oral argument, appellants stated they were abandoning this issue. Therefore, we do not address it.

      . In 1958, Dow and BASF Overzee, N.V., entered into an agreement, forming the Dow Badische Company. In 1978, Dow sold its stock in Dow Badische to the Luchem Corporation.

      . The other defendants are not parties to this appeal.

      . The trial court subsequently issued a final judgment regarding the other defendants, rendering the interlocutory summary judgment orders final. This appeal then ensued.

      . For example, one issue stated by appellants is: "Dow fatally failed to follow the requirements for the filing of a[] No-Evidence Motion for Summary Judgment.” But, other than arguing that Dow moved for a no-evidence summary judgment on affirmative defenses, appellants do not otherwise argue the alleged defective nature of the motion. The other issues expressly presented for our review are listed by appellants as follows: (1) The trial court erred in granting the motion for summary judgment; (2) The trial court erred in granting a no-evidence summary judgment "pursuant to Texas Rule of Civil Procedure 166a(i) on affirmative defenses: statute of repose, successor-in-interest[,] joint venture and single business enterprise”; (3) The trial court erred in granting a summary judgment on "Wortham’s claims that Dow was a co-conspirator to commit various intentional torts. This was not an issue raised in Dow’s motions for summaiy judgment;” (4) The trial court erred in granting both motions for summary judgment "because the suit brought against Dow in its capacities as successor-in-interest joint adventurer and single business enterprise were never denied by affidavit as required by Texas Rule of Civil Procedure 93”; (5) The trial court erred in its "order of April 28, 2003, granting the two Motions for Summary Judgment ‘as to all causes of action’ [alleged]. Not all of Wort-ham’s causes of action were addressed in either the first or [s]econd [m]otions.”

      . Appellants also amended the paragraph containing their general allegation number 2 listed previously, to include allegations that the "defendants ... provided, supplied or installed asbestos-containing products which were defective and unreasonably dangerous as designed, manufactured and marketed.”

      . The trial court's order also granted summary judgment to Dow on appellants' conspiracy claim.

      . In this issue, appellants do not argue that Dow’s evidence in support of either motion was insufficient nor that their responsive evidence raised a fact issue on these claims. Appellants only argue that the trial court erred in granting a no-evidence summary judgment on affirmative defenses.

      . Under the "single business enterprise” theory, when two or more corporations are operated as integrated entities, using resources to achieve a common business purpose, each constituent corporation may be held liable for debts incurred "in pursuit of that business purpose.” Old Republic Ins. Co. v. Ex-Im Servs. Corp., 920 S.W.2d 393, 395-96 (Tex.App.-Houston [1st Dist.] 1996, no writ). A number of this state’s appellate courts have recognized the theory as a means of disregarding corporate forms, including this court. See, e.g., N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 120-21 (Tex.App.-Beaumont 2001, pet. denied); Paramount Petroleum Corp. v. Taylor Rental Ctr., 712 S.W.2d 534, 536 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) (citing Allright Tex., Inc. v. Simons, 501 S.W.2d 145, 150 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.), and Murphy Bros. Chevrolet v. E. Oakland Auto Auction, 437 S.W.2d 272, 275-76 (Tex.Civ.App.-El Paso 1969, writ ref'd n.r.e.)). But, in Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 86-87 (Tex.2003), the supreme court noted that it has never considered the "single business enterprise” theory in any detail and declined to decide whether it was a necessary addition to Texas law.

      . Following the trial court’s order on the first summary judgment, Dow filed its second motion addressing appellants’ joint venture claim. Attached to Dow’s second motion was a notice of oral hearing, setting a hearing on the motion for April 29, 2003. On April 7, appellants filed their response to the second motion. Two days later, on April 9, appellants’ counsel filed a notice of hearing on the second motion, cancelling the April 29 hearing and resetting it for April 11.

      . See also Judson 88 Partners v. Plunkett & Gibson, Inc., No. 14-99-00287-CV, 2000 WL 977402, *2 n. 2 (Tex.App.-Houston [14th Dist.] May 18, 2000, no pet.) (not designated for publication) (noting that Malooly holds that “even a broad point of error must still be supported by argument challenging each independent summary judgment ground.... Otherwise, the assertion of a broad point of error would shift the burden to the appellate court to search the record for grounds on which to reverse the summary judgment.”)

      . After stating this, Dow continued, "there is also testimony in the case” regarding engineering and construction services provided by Dow and moved for summary judgment on appellants' "potential” claims for providing these services, and in the no-evidence portion of its motion, Dow asserted appellants could not recover on any other claim or right against it. Thus, although Dow moved for summary judgment on issues other than the successor-in-interest claims, it did so based on the evidence in the case and not on appellants’ pleadings.

      . In addition, the general allegations against Dow in its capacity as the successor-in-interest to Dow Badische did not serve to notify Dow that appellants sought recovery on those causes of action against Dow directly. See Monsanto Co. v. Milam, 480 S.W.2d 259, 263 (Tex.App.-Houston [14th Dist.] 1972) (relying on cases that concluded plaintiff’s pleadings gave no indication to defendants of an intent to hold them liable for acts done by another, because the plaintiff’s petition “informed defendants that plaintiff based his action on their personal acts”), aff'd, 494 S.W.2d 534 (Tex.1973). In Monsanto, the court quoted a case in which it was acknowledged that Texas’s pleading rules had been simplified and liberalized, but that it remained if a pleading alleged an act was committed by a party, it could not support evidence that the act was done by another for whom the defendant was responsible. See id.

      . The elements of a joint venture are (1) mutual right of control, (2) community of interest, (3) the sharing of profits as principals, and (4) the sharing of losses, costs, or expenses. Castle Tex. Prod. Ltd. P’ship v. Long Trusts, 134 S.W.3d 267, 278 (Tex.App.-Tyler 2003, pet. denied). Appellants' allegations that Dow "maintained control” can be read as merely elaborating on the joint venture claim by including a specific allegation as to an element of that claim. The trial court apparently read the pleading in that manner. But, because appellants asserted in the trial court that this statement was an allegation of negligence and, on appeal, both parties discuss it as a negligence claim, we address it in that manner.

      . Appellants state as an issue that Dow's no-evidence summary judgment motion was defective, listing several alleged violations of Rule 166a(i). Other than stating the issue, however, appellants fail to provide any argument or authority in support of their statement. See TexR.App. P. 38.1. Nevertheless, we find their stated issue to be without merit because (1) Dow stated it was moving for a no-evidence summary judgment on appellants’ negligence claims, (2) listed the elements necessary to establish those claims, and (3) then set out the elements it was asserting appellants had no evidence of.

      . A plaintiff who cannot support a cause of action for negligence cannot succeed on gross negligence because a finding of ordinary negligence is a prerequisite to a finding of gross negligence. Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex.App.-Fort Worth 1996, writ denied) (citing Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex.App.-Houston [14th Dist.] 1994, writ denied)). Thus, we do not discuss appellants’ arguments regarding their gross negligence claims separately from their negligence arguments.

      . In Lampasas, this court examined whether a no-evidence summary judgment motion included causes of action later pled. Id. at 435. The motion at issue in that case asserted there was no evidence of duty, breach, or causation. See id. at 437. Because these elements were common to the negligence claims pleaded, and the non-movant failed to produce evidence of these elements, summary judgment was proper on all claims. Id. at 437; see also ludwin Properties, Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502-03 (Tex.App.-Houston [1st Dist.] 1995, no writ) (concluding summary judgment motion contemplated the claims that were "eventually specified” in non-movant's amended counterclaim).

      . See Kolfeldt v. Thoma, 822 S.W.2d 366, 368 (Tex.App.-Houston [14th Dist.] 1992, orig. proceeding) (concluding that an amended order superseded previous order); see also B. & M. Mach. Co. v. Avionic Enter., Inc., 566 S.W.2d 901, 902 (Tex.1978) (stating second judgment was reformed and, in effect, vacated the first judgment).

      . Appellants also present a number of arguments as to why the trial court erred in granting summary judgment to Dow based on its statute of repose defense. Several of these arguments have already been addressed in our discussion. But, because we affirm the trial court’s judgment based on the no-evidence ground, we do not further address the statute of repose arguments.


source: Caselaw Access Project

license: Public Domain

text:
    Lewis Kendrick FORD, Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-04-00273-CR, 14-04-00274-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 27, 2005.

      Shawna L. Reagin, Houston, for appellant.
    Donald W. Rogers, Houston, for appel-lee.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

Appellant pleaded not guilty to the offenses of possession of a controlled substance with intent to deliver and possession of a firearm by a felon. He was convicted and the jury assessed punishment, in each case, at seventy-five years’ confinement in the Texas Department of Criminal Justice Institutional Division. In eight issues, appellant contends the trial court erred in (1) admitting the search warrant into evidence; (2) admitting jail disciplinary reports into evidence at the punishment phase; (3) denying appellant’s motion to compel disclosure of the confidential informant’s identity; and (4) denying appellant’s motion to suppress evidence. We affirm.

I. Factual BackgROund

Steven Fisher, a Houston Police Department undercover narcotics officer, arranged a controlled buy of narcotics by a confidential informant. Fisher and the informant went to an apartment complex at 12345 Bob White, in Houston, where the informant purchased a cigarette dipped in phencyclidine (PCP) at apartment number 714. While the informant was in the apartment, Officer Fisher watched from the parking lot. Based on the controlled buy, Fisher later obtained a search warrant for apartment 714.

Fisher and another officer executed the search warrant. They first knocked on the door of the apartment and announced they were the police. When they received no response, the officers used a battering ram to gain entry. Once inside, the officers found appellant and another individual lying on a mattress. After securing the occupants, the officers searched the apartment and found a bottle of PCP and a handgun. Appellant was arrested and subsequently convicted of possession of a controlled substance and felon in possession of a firearm.

II. Right of ConfRontation

A. Admission of Search Warrant

In his first two issues, appellant contends he was denied the right to confront and cross-examine the confidential informant in violation of article 1, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution. At trial, the search warrant, but not the supporting affidavit, was admitted into evidence, and appellant objected on the grounds the warrant was irrelevant, hearsay, and its admission denied him his right to confrontation. On appeal, appellant contends his confrontation rights were violated because the search warrant was introduced to prove appellant’s control of the premises.

1.Standard of Review

In reviewing the admission of evidence, this court follows an abuse of discretion standard of review. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).

2. Hearsay

Appellant cites several cases where courts have found the admission of a search warrant is inadmissible over a hearsay objection. See, e.g., Foster v. State, 779 S.W.2d 845, 857-58 (Tex.Crim.App.1989) (en banc); Torres v. State, 552 S.W.2d 821, 824 (Tex.Crim.App.1977); Doggett v. State, 530 S.W.2d 552, 556-57 (Tex.Crim.App.1976); Christenson v. State, 138 Tex.Crim. 501, 137 S.W.2d 32 (1940); Hamilton v. State, 120 Tex.Crim. 154, 156, 48 S.W.2d 1005, 1005-06 (Tex.Crim.App.1932); Ortiz v. State, 999 S.W.2d 600, 607 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Pratt v. State, 748 S.W.2d 483, 484-85 (Tex.App.-Houston [1st Dist.] 1988, pet. refd). Although in each of these cases, the court found a search warrant to be inadmissible over a hearsay objection, none addressed the confrontation clause. Confrontation and hearsay are distinct objections; confrontation raises constitutional issues, while hearsay invokes an evidentiary rule. See Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App.2004). Because appellant has not complained on appeal of the trial court’s ruling on his hearsay objection, those cases are not instructive as to whether appellant’s right to confrontation was violated.

3. Confrontation Clause

A “testimonial” out-of-court statement that is introduced into evidence is barred by the Confrontation Clause unless the declarant is unavailable and has been subject to cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The threshold issue under Crawford is whether the statement to be admitted is testimonial. See Ruth v. State, 167 S.W.3d 560, 568 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The Supreme Court in Crawford did not define testimonial, but noted three formulations of “core” testimonial evidence: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declar-ants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials”; and (3) “statements that were ma'de undér circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354.

Here, while it is true appellant was denied the opportunity to. cross-examine the confidential informant, no testimonial statements provided by the confidential informant were ever introduced into evidence. Appellant argues the search warrant contains a description of him and .that description linked him to the premises. But, contrary to that assertion, the search warrant was not used to link appellant to the premises because appellant was found lying on a mattress in the apartment. Appellant’s clothing was found in the apartment and his girlfriend testified that he lived there with her and helped pay rent. Further, appellant has not challenged the sufficiency of the evidence linking him to the drugs or the premises. No testimonial statements of the informant were introduced through the' search warrant; therefore, appellant was not denied his right of confrontation. See Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App.2004) (en banc) (threshold question is whether statement was testimonial). Appellant’s first and second issues are overruled.

B. Admission of Jail Disciplinary Reports

In his third and fourth issues, appellant contends he was denied the right to confront and cross-examine his fellow inmates in violation, of article 1, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution. At the punishment phase of trial, the State introduced inmate disciplinary grievance records from the Harris County Jail. The prosecutor read the discipline records into the record as follows:

February 5th, 2004, the defendant was charged fighting. Seven- days loss of privileges, found guilty, October 15, 2003, extortion. June the 11th, 2003, extortion, ten days loss of privileges. April the 21st, 2003, assault on an inmate. April 21st, 2003, horseplaying, altercation, five days’ loss of privileges. February the 24th, 1998, 25 days loss of privileges for fighting. February the 18th, 1998, fighting. February the 18th, 1998, fighting. And again February the 18th, 1998, fighting.

Appellant objected to admission of the disciplinary records because they were based on hearsay of other inmates’ reports, and he was denied thé right to confront and cross-examine those inmates.

Evidence as to any matter may be offered during the punishment phase if the court deems it relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and any other evidence of extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Tex.Code CRiM. PROC. Ann. art. 37.07 § 3(a) (Vernon 2005).

In Crawford, the Supreme Court concluded the Sixth Amendment bars out-of-court statements by witnesses that are testimonial in nature, but Crawford did not extend these protections to non-testimonial hearsay. 541 U.S. at 68, 124 S.Ct. 1354. “Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. Because non-testimonial hearsay is at issue here, the reliability test of Roberts applies. Id.; Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Admission of evidence that falls within a firmly rooted exception to the hearsay rule does not violate the Confrontation Clause. See Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App.1999). The public records exception to the hearsay rule applies to “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency[.]” Tex.R. Evid. 803(8)(A). This is a firmly rooted exception. See Cathy CochRan, Texas Rules of Evidence Handbook 844-45 & n. 471 (5th ed.2003) (stating the exception existed at common law and tracing predecessors to rule 803(8) back to 1871). The Court of Criminal Appeals has held that a defendant’s jail records, introduced at the punishment phase of trial, chronicling the defendant’s violation of jail rules, cell transfers, and fighting, is not inadmissible hearsay; rather, the jail records qualify as records made in the regular course of business. Jackson v. State, 822 S.W.2d 18, 30-31 (Tex.Crim.App.1990) (en banc). Because the disciplinary records in this case contained no testimonial evidence, they clearly fall within a firmly rooted hearsay exception; and thus, no constitutional violation occurred.

Recently, in Russeau v. State, the Court of Criminal Appeals held the introduction of “incident reports” and prison “disciplinary reports” violated the Sixth Amendment right to confront witnesses. 171 S.W.3d 871 (Tex.Crim.App., 2005). In that case, the court reviewed disciplinary reports that contained detailed statements written by corrections officers where the officers relied on their own observations or observations of others. Id. at 880. None of the individuals who observed Russeau’s disciplinary offenses testified at his trial. Id. Therefore, the court found the admission of the reports violated his right to confront those witnesses. Russeau, however, is distinguishable from the instant case in that the disciplinary records admitted at the punishment phase of appellant’s trial are sterile recitations of appellant’s offenses and the punishments he received for those offenses. The records do not contain statements that could be considered testimonial in nature as did the reports in Russeau. Because the disciplinary records in this case are not testimonial and fall within a recognized exception to the hearsay rule, we conclude the trial court did not abuse its discretion in admitting the evidence. Appellant’s third and fourth issues are overruled.

III. Disclosure of Confidential Informant’s Identity

In issues five and six, appellant contends the trial court erred in denying his motion to disclose the identity of the confidential informant. Prior to trial, appellant filed a motion for disclosure of the informant’s identity pursuant to Texas Rule of Evidence 508(c), claiming the search warrant affidavit relied heavily on the informant, and, without disclosure, appellant could not challenge the informant’s credibility. After an in camera hearing, the trial court denied appellant’s motion. At trial, appellant again sought disclosure of the informant’s identity after the search warrant was admitted into evidence.

We review a trial court’s denial of a motion to disclose a confidential informant under an abuse of discretion standard. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980). Under that standard, a trial court’s decision is disturbed on appeal only when it falls outside the zone of reasonable disagreement. Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App.1996).

As a general rule, when a defendant files a motion to disclose an informant’s identity, the State has a privilege to withhold the identity of any person who provided information relating' to, or assisting in, an investigation of a possible crime. Tex.R. Evid. 508(a). A court, however, should order the State to disclose the identity if the informer “may reasonably be able to provide testimony necessary to a fair determination of the issues of guilt and innocence.” Tex.R. Evid. 508(c)(2). A defendant who makes a request under Rule 508 has the threshold burden of demonstrating that the informant’s identity must bé disclosed. Bodin v. State, 807 S.W.2d 318, 318 (Tex.Crim.App.1991) (en banc). Before revealing the informant’s identity, the informant’s potential testimony must be shown to significantly aid appellant; mere conjecture or supposition about possible relevance is insufficient. Bodin, 807 S.W.2d at 318.

Whenever it is shown that an informant was an eyewitness to an alleged offense then that informant can give testimony necessary to a fair determination of the issues of guilt or innocence. Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App.1991) (en banc). However, when the informant’s information is used only to establish probable cause for a search warrant and the informant was neither a participant in the offense for which the defendant is charged, nor present when the search warrant was executed, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt. See Washington v. State, 902 S.W.2d 649, 656-57 (Tex.App.Houston [14th Dist.] 1995, pet. ref'd).

Prior to trial, appellant sought disclosure of the informant’s identity by arguing he “was the only person who allegedly saw a black male in control of the clear liquid he claims was PCP.” At trial, after the search warrant was admitted into evidence, appellant requested disclosure arguing that the confidential informant provided testimony against appellant through the warrant. The in camera hearing was not recorded. Nevertheless, the record reflects the informant’s information was used to obtain probable cause for a search warrant, not to establish appellant’s identity or his connection to the premises as appellant contends. There was no evidence that the confidential informant participated in the offense for which appellant was . charged, nor is-there evidence the informant participated, in the execution of the search warrant. Under these circumstances, appellant has not demonstrated that the informant’s testimony was so necessary to a fair determination of guilt or innocence that the trial court’s denial of his motion to disclose the informant’s identity was outside the zone of reasonable disagreement. Appellant’s fifth and sixth issues are overruled.

IV. Suppression of Evidence

In issue seven, appellant contends the trial court erred in admitting the firearm into evidence because it was seized without a warrant. In issue eight, he argues the trial court erred by admitting the narcotics into evidence because the affidavit filed in support of the search warrant was conclu-sory and insufficient to support a valid warrant. Appellant’s pretrial motion to suppress argued the affidavit supporting the search warrant was insufficient to establish probable cause and the firearm was seized without a warrant.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress under an abuse of discretion, standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). We give great deference to a trial court’s determination of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (en banc). When, as here, the trial court does not file findings of fact, we assume the court made implicit findings that support its ruling, so long as those implied findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000) (en banc). We conduct a de novo review of mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Guzman, 955 S.W.2d at 89.

B. Seizure of the Firearm

Regarding appellant’s argument that the firearm was inadmissible because it was seized without a warrant, the record reveals a patrol officer checked for outstanding warrants before the officers left the apartment, and he determined appellant had a criminal history that included a felony conviction and an outstanding robbery warrant. Therefore, the officers knew appellant had a felony record when the firearm was seized. Further, the firearm was found in the kitchen cabinet next to a bottle of PCP and was therefore discovered by the officers in plain view during the lawful search of the apartment.

If an article is found in plain view, neither its observation, nor its seizure involves an invasion of privacy. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The plain view doctrine requires that (1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity. Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). Here, the officers were lawfully in the apartment to execute the search warrant. Because they knew appellant was a felon, it was immediately apparent the gun was contraband. Although the gun was seized outside the scope of the warrant, it was legally seized under the plain view doctrine. See id. Appellant’s seventh issue is overruled.

C.Sufficiency of the Affidavit

In his motion to suppress, appellant alleged the affidavit was insufficient to support probable cause. The pertinent portions of Fisher’s affidavit provided:

Your affiant has probable cause for said belief by reason of the following facts: The affiant, S.E. Fisher, is a peace officer in and for the state of Texas, reputably employed with the Houston Police Department. The affiant has been in the field of law enforcement for at least (7) seven years, with time having been spent focusing/working on narcotics investigations and working in an undercover capacity. The affiant is currently assigned to the Special Investigations Command, Narcotics Division, is an experienced/veteran narcotics investigator, who has no criminal record, is credible and reliable and is worthy of belief. The affiant has reasons to believe and does in fact believe that the above listed described person, hereafter styled the defendant, is currently is [sic] possession of a controlled substance, namely PCP and intend .[sic] to distribute/deliver the substance to others.
Within the past 48 hours, your affiant met with a confidential informant (Cl) who was checked and found not to be in possession of any type of a controlled substance. The confidential informant was then given money with which to make a purchase of PCP. The informant met with a black male only know as “LU” who took the informant inside his residence at 12345 Bob White # 714. The informant asked to get two half dipped .(cigarettes dipped in PCP) “LU” dipped two More brand cigarettes and handed them to the Cl. The Cl handed “LU” the twenty dollars. “LU” gave the Cl his phone number and told them to cal [sic] anytime more was needed. The informant then left the location.
The confidential informant also advised your Affiant that the informant has seen PCP on a number of occasions and is aware of the physical properties and smell of PCP. The informant is confident that the clear liquid they saw the cigarettes dipped into was in fact PCP. The informant has been to the residence within the past 48 hours. The informant will remain anonymous for safety and security .reasons. The informant has given information in the past, which has always proven to be true and correct.

Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The allegations in a probable cause affidavit are sufficient if they would justify a conclusion that the object of the search is probably on the premises. Ramos v. State, 934 S.W.2d 358, 363 (Tex.Crim.App.1996). Only the facts found within the four corners of the affidavit may be considered. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004). The magistrate is not required to find proof beyond a reasonable doubt or by a preponderance of the evidence, but only a probability that contraband or evidence of the prime will be found in a particular place. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; State v. Anderson, 917 S.W.2d 92, 95 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).

Here, the affidavit supporting the search warrant detailed a controlled buy of cigarettes dipped in PCP from the place to be searched, 12345 Bob White, apartment 714. The affiant was an officer with the Houston Police Department in the narcotics task' force. The affidavit stated that the informant was' searched by the affiant for contraband and then given money to purchase drugs from a suspect inside the apartment. The affiant swore that the informant was known by him to be a credible and reliable person and that the informant handed the suspect twenty dollars and received two cigarettes dipped in PCP. These facts supported the inference that .PCP was available for sale within the place named in the warrant. Thus, there were facts within the four corners of the affidavit from which sc reasonable person could infer that the informant had purchased PCP inside the place, named in the search warrant. See Sadler v. State, 905 S.W.2d 21, 22 (Tex.App.-Houston [1st Dist.] 1995, no pet.) (circumstances of a controlled buy, standing alone, may corroborate an informant’s tip and provide probable cause to issue a warrant). We conclude the affidavit supports a finding of probable cause to search the apartment. Appellant’s eighth issue is overruled.

The judgment of the trial court is affirmed.


author: JIM R. WRIGHT, Chief Justice.

text:
    Steven PIAZZA, Appellant, v. CINEMARK, USA, INC., Appellee.
    No. 11-03-00345-CV.
    Court of Appeals of Texas, Eastland.
    Oct. 27, 2005.

      Joe Alfred Izen, Jr., Izen & Assoc., Bel-laire, for appellant.
    Karen D. Smith, Rachael M. Rolon, Drucker, Rutledge, Ward & Smith, The Woodlands, for appellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

This is an appeal from a take-nothing summary judgment in an employment discrimination case filed pursuant to TEX. LAB. CODE ANN. ch. 21 (Vernon 1996 & Supp.2004-2005). Steven Piazza sued his former employer, Cinemark, USA, Inc., after he was terminated. In his petition, Piazza, a Caucasian male, alleged that he was denied a promotion and was terminated because of his race. Cinemark filed a motion for summary judgment, which the trial court granted. Piazza presents two points of error on appeal, complaining of the summary judgment and the denial of a motion to compel discovery. We affirm.

In the first point of error, Piazza contends that the trial court erred in granting Cinemark’s motion for summary judgment and in denying his cross-motion for partial summary judgment. Cinemark moved for summary judgment on the following grounds: Piazza could not show a prima facie case of discrimination, Cinemark established legitimate nondiscriminatory reasons for its actions, and Piazza failed to demonstrate that Cinemark’s reasons were untrue or pretextual.

Although Piazza alleged a cause of action under Texas law, we will look to federal precedent for guidance because the relevant parts of our state law “are patterned after Title VII of the federal Civil Rights Act.” Quantum Chemical Corporation v. Toennies, 47 S.W.3d 473, 474 (Tex.2001). In order to review a summary judgment in an employment discrimination case, we must apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003)(citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under such analysis, a plaintiff must first establish a prima facie case of discrimination. Raytheon Company v. Hernandez, 540 U.S. 44, 49-50 n. 3, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). After a prima facie case is established, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. Raytheon Company v. Hernandez, supra. If the employer meets this burden, the presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer’s explanation is pretextual. Raytheon Company v. Hernandez, supra.

Section 21.051 of the Texas Labor Code provides:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Section 21.125 clarifies Section 21.051 by providing that a plaintiff need only demonstrate that race, color, sex, national origin, religion, age, or disability was “a motivating factor” for the employment practice. In order to establish a prima facie case of discrimination under these provisions, a plaintiff must produce evidence showing (1) that he is a member of a protected class, (2) that he suffered an adverse employment action, (3) that he was qualified for the job, and (4) that he was replaced by someone not in his protected class. Bowen v. El Paso Electric Company, 49 S.W.3d 902, 908 (Tex.App.-El Paso 2001, pet’n den’d).

The record in this case shows that, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Piazza filed suit alleging that Cine-mark favored Hispanics and that it discriminated against him when it failed to promote him to the position of general manager on April 10, 2001, and when it fired him on July 21, 2001. However, the general manager position about which Piazza complains was given to a Caucasian male. Also, according to Piazza’s deposition, the person who was hired to replace Piazza after he was fired was “a white individual.” Although Piazza’s summary judgment evidence indicated that one of his superiors, Patti Castillo, generally preselected Hispanics or spouses of Hispanics for general manager positions in her area, Piazza failed to produce any summary judgment evidence indicating that race was a motivating factor in the.April 2001 promotion or in his July 2001 discharge— the only two incidents of discrimination that were alleged in Piazza’s petition. The summary judgment evidence shows that both of 'these positions were actually filled by members of the protected class. Thus, Piazza failed to meet his minimal-burden of showing a prima facie case of discrimination, and the trial court did not err in granting Cinemark’s motion for summary judgment.

Piazza also contends in his first point of error that he was entitled to partial summary judgment based upon the ruling of the Texas Workforce Commission (TWC) granting unemployment benefits to Piazza based upon its finding that Piazza was not discharged for work-connected “misconduct” as that term is used by the TWC. The issue decided by the TWC did not, however, in any way address discrimination. Therefore, Piazza’s argument concerning “doctrine preclusion” is without merit. Piazza’s first point of error is overruled.

In his second point of error, Piazza contends that the trial court abused its discretion in denying his motion to compel discovery. The record reflects that, prior to the hearing on the summary judgment, Piazza filed a motion to compel discovery and a second motion for continuance. In his brief, Piazza specifically complains of the trial court’s refusal to compel discovery with respect to Piazza’s demand that Cinemark:

Produce all employment records of all-employees which include' or reference Cinemark’s evaluations, promotions, hir-ings, disciplinary actions and terminations from the date Plaintiff was hired until the date Plaintiff was terminated and provide the name, current address and current telephone number of each such employee, along with such employee’s racial classification or designation.

Cinemark objected that this request was, among other things, overly broad and unduly burdensome. '

We hold that the trial court did not abuse its discretion in denying Piazza’s motion to compel. There is no record regarding a hearing on the motion to compel, but the record shows that the motion was filed two days prior to the rescheduled summary judgment hearing. The trial court had previously granted Piazza’s first motion for continuance of the summary judgment hearing and allowed Piazza extra time to obtain the discovery that had already been initiated. Piazza had more than ample time to conduct discovery. See Klein & Associates Political Relations v. Port Arthur Independent School District, 92 S.W.3d 889, 892-94 (Tex.App.-Beaumont 2002, pet’n den’d). Piazza filed his petition on March 13, 2002. Cinemark filed its motion for summary judgment on June 6, 2003. The trial court held the summary judgment hearing on August 15, 2003. Moreover, the trial court reasonably could have concluded that the request as worded was overly broad in scope or unduly burdensome. See In re Greyhound Lines, Inc., 138 S.W.3d 19 (Tex.App.-San Antonio 2004, orig. proceeding). We hold that the trial court did not abuse its discretion in denying Piazza’s motion to compel. The second point of error is overruled.

The judgment of the trial court is affirmed.

STRANGE, J., not participating.


author: BOB McCOY, Justice.

text:
    John Joseph JORDAN d/b/a Appellant Premier Construction Services, Appellant, v. Burl and Brenda HAGLER, Appellees.
    No. 2-04-367-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 27, 2005.

      Crampton & .Crampton, Holly Cramp-ton, Wichita Falls, for Appellant.
    Gibson,. Hotchkiss, Roach & Davenport and Matthew D. Anderson, Wichita Falls, for Appellee.
    Panel A: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In six issues, John Joseph Jordan d/b/a Premier Construction Services (“Jordan”) appeals from the trial court’s partial summary judgment and order of severance in favor of Burl and Brenda Hagler (“the Haglers”). We affirm in part and reverse and render in part.

II. Factual and Procedural Background

This case involves a disgruntled contractor and his dealings with the homeowners who contracted for his services. Jordan is a general contractor who furnished materials and performed services for the Ha-glers’ at . their homestead property in Lakeside City, Texas, including mold remediation and reconstruction work. Following a payment dispute, Jordan filed two “Claims of Lien” (mechanic’s liens) on the property. When Jordan refused to remove the liens, the Haglers’ responded by filing suit against Jordan alleging shoddy work and seeking a declaratory judgment and removal of the liens. Due to defects in the perfection of the liens, the trial court entered an agreed order on the Haglers’ motion for summary removal of the invalid liens, thereby removing, the liens and prohibiting Jordan from filing further liens or affidavits claiming hens, but allowing Jordan to stay the removal of the liens by posting a $10,000 bond pursuant to section 53.161 of the Texas Property Code. Tex. PROp.Code Ann. § 53.161 (Vernon Supp.2004-05). No bond was posted and Jordan thereafter filed a lis pendens regarding the property. He also counterclaimed for damages asserting various theories of recovery, including a request that a constructive trust be imposed on the property. The Haglers’ moved to cancel the lis pendens pursuant to section 12.008 of the Texas Property Code or under the common law and asked the trial court to sanction Jordan. Tex. PROp.Code Ann. § 12.008 (Vernon 2004). The Haglers’ also filed a motion for partial summary judgment and conditional motion for severance on Jordan’s counterclaim. Another lis pendens was filed by Jordan shortly thereafter.

Following a hearing, the trial court issued its “Partial Summary Judgment & Order on Severance” and its “Amended Order on Motion to Cancel Lis Pendens & for Sanctions.” The result of the partial summary judgment order was that: (1) Jordan took nothing under his request for a constructive trust, (2)' the lis pendens was declared invalid and void and was ordered removed and cancelled, and (3) the Haglers’ were awarded attorney’s fees under the Uniform Declaratory Judgments Act. The result of the order on the motion requesting .cancellation of the lis pendens and for sanctions was that: (1) the lis pendens was removed and declared void and (2) the request for sanctions was held in abeyance. The issues related to the removal of the hens, the lis pendens, the constructive trust, and the award of attorney’s fees were severed. This appeal from those issues resulted, but Jordan asserts the appeal only relates to the partial summary judgment and not to the order on the motion to cancel the lis pendens and for sanctions.

III. STANDARD OF REVIEW

We review the trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Under Texas Rule of Civil Procedure 166a(c), the party moving for summary judgment bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Knott, 128 S.W.3d at 216; Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.2001).

IV. Constructive Trusts and Homesteads

Jordan argues in his first two issues that a special exception, not a motion for summary judgment, was the correct procedural means to attack his assertion of a constructive trust, which he alleges is available to attach to homestead property under these facts.

A. Special Exception

Normally, a special exception is the proper procedural vehicle to attack a pleading defect. KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898 (Tex.App.-Dallas 2003, no pet.). One difference between a special exception and a summary judgment motion is that if a special exception is sustained, the party with the pleading defect has the opportunity to cure the defect. See id. Of course, if the defect cannot be cured, such as when a party asserts a nonexistent cause of action (e.g., negligent infliction of emotional distress), this distinction between the special exception and the summary judgment motion becomes irrelevant. Therefore, here, if a constructive trust is not available to Jordan as a matter of law, any error in the method of attacking the alleged pleading defect is harmless, because that pleading defect cannot be cured.

B. Constructive Trusts

What, then, is this fictional creature, the “constructive trust”? It is not a trust at all, but rather is an equitable remedy created by our legal system to prevent unjust enrichment, and its purpose is to right wrongs that cannot be addressed under other legal theories. Medford v. Medford, 68 S.W.3d 242, 248 (Tex.App.-Fort Worth 2002, no pet.); Ellisor v. Ellisor, 630 S.W.2d 746, 748 (Tex.App.Houston [1st Dist.] 1982, no writ).

C. Homesteads

A homestead is exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property. Tex. PROp.Code Ann. § 41.001(a),(b) (Vernon Supp.2004-05). An encumbrance may be properly fixed on homestead property for “work and material used in constructing improvements on the property if contracted for in writing as provided by Sections 53.254(a), (b), and (c).” Id. § 41.001(b)(3). Accordingly, “[t]o fix a lien on a homestead, the person who is to furnish material-or perform labor and the owner must execute a written contract setting forth the terms of the agreement.” Id. § 53.254(a) (emphasis added); Sections 53.254(b)-(d) include additional requirements regarding the nature of the contract. See id. § 53.254(b)-(d). Read together, these statutes provide that a lien, not a constructive trust, is the encumbrance that may be placed on a homestead for labor and materials used so long as the person furnishing the material or performing labor executes a written contract with the owner.

D.Application

It is undisputed that the property in question was a homestead. The gravamen of Jordan’s complaint is that he was not properly paid after having furnished labor and materials to perform the Ha-glers’ mold remediation and reconstruction job and that the materials used became permanently affixed to the Haglers’ property; hence, the filing of the mechanic’s hen that Jordan initially sought to impose on. the property. However, the parties agreed to an order removing the liens and prohibiting Jordan from filing further-liens or affidavits claiming liens. Alternatively, the order gave Jordan the option of staying removal of the liens by filing a $10,000 bond, which he did not do. As stated above, a constructive trust is an equitable remedy created to prevent unjust enrichment that cannot be remedied by other legal theories; it is not a lien. Jordan’s attempt to impose a constructive trust on materials affixed to the Haglers’ homestead property runs contrary to the plain language of section 53.254, which details the method by which an encumbrance, a lien, may be fixed on a homestead. The constructive trust is thus outside the parameters of section 41.001 and 53.254 of the property code. Jordan has not favored this court with any authority supporting the proposition that a constructive trust is available against a homestead under these circumstances, nor have we found any such authority. Moreover, these alleged “wrongs” against Jordan can be addressed, and were addressed, by Jordan through other legal theories. Accordingly, we hold that Jordan is not entitled to a constructive trust as a matter of law. The trial court did not err by granting the Haglers’ motion for partial summary judgment in this regard. We overrule Jordan’s first and second issues.

V. Lis Pendens

In Jordan’s third, fourth, and fifth issues, he argues that summary judgment was not the proper procedural device to attack the filing of his lis pendens , that the agreed order regarding filing of liens was not violated by the filing of the lis pendens, and that Jordan’s claims are appropriate for a lis pendens filing. We will address only the latter issue, since it is dispositive.

As a preliminary matter, we address the Haglers’ contention that because they also sought to remove the lis pendens by way of motion, which was granted, and which grant has not been appealed, Jordan’s issues regarding the removal of the lis pen-dens need not be considered. This assertion is incorrect. Jordan specifically states in his brief that “[t]his appeal is brought from the granting of these two sets of motions (Motion to Cancel Lis Pendens and Motion for SanctionsD ]....” Jordan’s notice of appeal contains similar language, and his fifth issue addresses the motion, at least in part. Therefore, we will address Jordan’s lis pendens argument.

The lis pendens statute gives litigants a method to constructively notify anyone taking an interest in real property that a claim is being litigated against the property. In re Collins, 172 S.W.Bd 287, 292 (Tex.App.-Fort Worth, 2005, orig. proceeding). A party may file a lis pendens during the pendency of an action involving (1) title to real property, (2) the establishment of an interest in real property, or (3) the enforcement of an encumbrance against real property. Tex. PROp.Code Ann. § 12.007(a). The suit on which the lis pendens is based must claim a direct interest in the real property, not a collateral one. See In re Fitzmaurice, 141 S.W.3d 802, 805 (Tex.App.-Beaumont 2004, orig. proceeding).

In the instant case, Jordan argues that he has given notice of an interest in the Haglers’ property pursuant to section 12.007 because the materials he purchased and used to perform the remediation and reconstruction work on their property are not removable (at least not without causing significant damage) and have become “one with the real property.” Jordan argues, “[a] review of Jordan’s pleadings shows that Jordan did not seek a lien to recover a judgment, but instead sought a constructive trust establishing his title in part to the real property which his property additions had improved.” Specifically, Jordan claims an ownership interest in the property “in a percentage bearing a direct relationship to the value that the materials he permanently affixed at the request of Counter-Defendants bears to the value of the premises as a whole.” Consequently, Jordan contends that the Haglers’ have been unjustly enriched by the addition of the materials to their property.

Under the particular facts of this case, however, we recognize that the only means by which Jordan could have asserted an interest in the property was by obtaining a mechanic’s lien. As mentioned above, the trial court entered an agreed order which removed all hens and prohibited Jordan from filing any further hens. Thus, Jordan could not assert an interest in the Haglers’ property by way of a hen, and we have held that a constructive trust was unavailable to Jordan as a matter of law. As such, under these circumstances, the lis pendens is merely an attempt to circumvent the trial court’s agreed order prohibiting Jordan from filing any further hens against the Haglers’ property. Accordingly, the lis pendens is voidable and capable of being cancelled by the trial court because it gives notice of claim that is unavailable to Jordan. Moreover, we disagree that Jordan’s suit claims a direct interest in the property. Jordan does not seek to recover title to the Ha-glers’ property; he appears to claim an ownership interest in the property only as security for the recovery of damages he may be awarded on his fraud, misrepresentation, and breach of contract claims. This “is no more than a collateral interest in the property,” and the lis pendens is therefore void. Flores v. Haberman, 915 S.W.2d 477, 478 (Tex.1995) (orig.proceeding); see also Moss v. Tennant, 722 S.W.2d 762, 763 (Tex.App.-Houston [14th Dist.] 1986, orig. proceeding) (holding that suit seeking lien as security to recover damages affected property collaterally, not directly); Blanton, 699 S.W.2d at 645 (same). We hold that the trial court did not err by declaring in its partial summary judgment and severance order that the lis pendens filed by Jordan was invalid and void. Accordingly, we overrule Jordan’s third, fourth, and fifth issues.

VI. Attorney’s Fees

In his sixth issue, Jordan argues that there is no legal basis to support the trial court’s award of attorney’s fees to the Haglers’ pursuant to sections 37.004 and 37.009 of the civil practice and remedies code, part of the Uniform Declaratory Judgments Act (“UDJA”). The Haglers’ contend that the trial court properly awarded the attorney’s fees because the hs pendens is a writing or instrument within the meaning of section 37.004.

Section 37.009 of the civil practice and remedies code provides, “In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997). Section 37.004, which describes a “proceeding under this chapter,” reads,

[a] person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or vahdity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Id. § 37.004(a).

The Haglers’ contend that they are entitled to attorney’s fees under the UDJA because the lis pendens “is a writing and instrument within the meaning of [section] 37.004.” We disagree. A hs pendens is not a “deed, will, written contract, or other writing constituting a contract.” Id. These are the only writings or instruments for which declaratory relief — and accompanying attorney’s fees — are available under section 87.004. Therefore, we hold that the trial court' erred by awarding the Ha-glers’ attorney’s fees pursuant to chapter 37 of the civil practice and remedies code. Accordingly, we sustain Jordan’s sixth issue.

VII. Conclusion

The judgment of the trial court is affirmed, except as to the award of attorney’s fees, which portion of the judgment is reversed and rendered that the Haglers’ take nothing by way of their claim for attorney’s fees under the UD JA.

      . If a lis pendens does not fall under the ambit of section 12.007 of the property code (which sets forth the requirements of a lis pendens), then the opposing party is not required to comply with section 12.008 (which provides the prescribed statutory methods for canceling a lis pendens) in order to "nullify, remove, or cancel the notice.” Helmsley-Spear of Tex., Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex.App.-Houston [14th Dist.] 1985), orig. proceeding); see also Hughes v. Houston Nw. Med. Ctr., 647 S.W.2d 5, 7 (Tex.App.Houston [1st Dist.] 1982, writ dism’("In an appropriate case a court may order the cancellation of a lis pendens notice where it is established that the party filing such notice has not complied with the provisions of [the statute].”). In such a case, the lis pendens may be attacked by other means, such as a motion to quash.