text:
    Mary IACONO, Appellant, v. Carolyn LYONS, Appellee.
    No. 01-99-00726-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 16, 2000.
    Rehearing Overruled April 24, 2000.

      Alden D. Holford, Houston, for Appellant.
    Barry G. Flynn, Paul A. Hoefker, Houston, Michael Leonard Ray Burnett, Austin, for Appellee.
    Panel consists of Justices O’CONNOR, WILSON, and ANDELL.
   OPINION

MICHOL O’CONNOR, Justice.

Mary Iacono, the plaintiff below and appellant here, appeals from a take-nothing summary judgment rendered in favor of Carolyn Lyons, the defendant below and appellee here. We reverse and remand.

Background

The plaintiff and defendant had been Mends for almost 35 years. In late 1996, the defendant invited the plaintiff to join her on a trip to Las Vegas, Nevada. There is no dispute that the defendant paid all the expenses for the trip, including providing money for gambling.

The plaintiff contended she was invited to Las Vegas by the defendant because the defendant thought the plaintiff was lucky. Sometime before the trip, the plaintiff had a dream about winning on a Las Vegas slot machine. The plaintiffs dream convinced her to go to Las Vegas, and she accepted the defendant’s offer to split “50-50” any gambling winnings.

In February 1997, the plaintiff and defendant went to Las Vegas. They started playing the slot machines at Caesar’s Palace. The plaintiff contends that, after losing $47, the defendant wanted to leave to see a show. The plaintiff begged the defendant to stay, and the defendant agreed on the condition that she (the defendant) put the coins into the machines because doing so took the plaintiff too long. The plaintiff agreed, and took the defendant to a dollar slot machine that looked like the machine in her dream. The machine did not pay on the first try. The plaintiff then said, “Just one more time,” and the defendant looked at the plaintiff and said, “This one’s for you, Puddin.”

The slot machine paid $1,908,064. The defendant refused to share the winnings with the plaintiff, and denied they had an agreement to split any winnings. The defendant told Caesar’s Palace she was the sole winner and to pay her all the winnings.

The plaintiff sued the defendant for breach of contract. The defendant moved for summary judgment on the grounds that any oral agreement was unenforceable under the statute of frauds or was voidable for lack of consideration. The trial court rendered summary judgment in favor of the defendant. The trial court did not hold there was no agreement between the parties. Instead, the trial court held that “Plaintiffs cause of action on breach of contract is unenforceable as a matter of law as it violates Texas Business & Commerce Code Art. 26.01(a), (b)(6) and/or is lacking in consideration.”

In one point of error, the plaintiff asserts the trial court erred in granting the defendant’s motion for summary judgment.

Summary Judgment Standard of Review

A defendant is entitled to summary judgment if it pleads and conclusively establishes each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Casey v. Methodist Hosp., 907 S.W.2d 898, 900 (Tex.App. — Houston [1st Dist.] 1995, no writ). Once the defendant produces evidence that entitles it to summary judgment, the plaintiff must present evidence that raises a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). In reviewing the defendant’s summary judgment proof, every reasonable inference must be indulged in favor of the plaintiff, and any doubts resolved in her favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Consideration

The defendant asserted the agreement, if any, was voidable because there was no consideration. The defendant contended the plaintiffs only contribution was the plaintiffs dream of success in Las Vegas and her “luck.” The plaintiff asserted the defendant bargained with her to go to Las Vegas in return for intangibles that the defendant thought the plaintiff offered (good luck and the realization of the dream). The plaintiff said she gave up her right to remain in Houston in return for the agreement to split any winnings. The plaintiff also asserted the agreement was an exchange of promises.

A contract must be based upon a valid consideration, in other words, mutuality of obligation. See Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). Consideration is a bargained-for exchange of promises. See Roark v. Stall-loorth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). Consideration consists of benefits and detriments to the contracting parties. Id. The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Id.

The plaintiff alleged she promised to share one-half of her winnings with the defendant in exchange for the defendant’s promise to share one-half of her winnings with the plaintiff. These promises, if made, represent the respective benefits and detriments, or the bargained for exchange, necessary to satisfy the consideration requirement. See Roark, 813 S.W.2d at 496; Texas Gas Utilities, 460 S.W.2d at 412 (when no other consideration is shown, mutual obligations by the parties to the agreement will furnish sufficient consideration to constitute a binding contract).

Therefore, the plaintiff raised a genuine issue of material fact sufficient to defeat the defendant’s entitlement to summary judgment based on the affirmative defense of lack of consideration.

Statute of Frauds

The defendant asserted the agreement, if any, was unenforceable under the statute of frauds because it could not be performed within one year. There is no dispute that the winnings were to be paid over a period of 20 years.

The statute of frauds is set forth in Section 26.01 of the Texas Business and Commerce Code and provides, in pertinent part:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to:
(6)an agreement which is not to be performed within one year from the date of making the agreement;....

Tex. Bus. & Com.Code § 26.01.

Whether a contract falls within the statute of frauds is a question of law. Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (1961); Barbouti v. Mun-den, 866 S.W.2d 288, 294 (Tex.App.— Houston [14th Dist.] 1993, writ denied).

Section 26.01(b)(6) does not apply if the contract, from its terms, could possibly be performed within a year — however improbable performance within one year may be. Miller v. Riata Cadillac Co., 617 S.W.2d 778, 775 (Tex.1974); Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 15 (1957); Gerstacker v. Blum Consulting Engineers, Inc., 884 S.W.2d 845, 849 (Tex.App. — Dallas 1994, writ denied). Section 26.01(b)(6) bars only oral contracts that cannot be completed within one year. Niday v. Niday, 648 S.W.2d 919, 920 (Tex.1982) (if the agreement, either by its terms or by the nature of the required acts, cannot be performed within one year, it falls within the statute of frauds and must be in writing).

To determine the applicability of the statute of frauds with indefinite contracts, this Court may use any reasonably clear method of ascertaining the intended length of performance. Hall, 308 S.W.2d at 16-17; Gerstacker, 884 S.W.2d at 850. The method is used to determine the parties’ intentions at the time of contracting. Gerstacker, 884 S.W.2d at 850. The fact that the entire performance within one year is not required, or expected, will not bring an agreement within the statute. See Keystone Int’l, Inc. v. Ingham, 593 S.W.2d 354, 357 (Tex.Civ.App. — Texarkana, 1979, no writ); Eisenbeck v. Buttgen, 450 S.W.2d 696, 700 (Tex.Civ.App. — Dallas 1970, no writ)

Assuming without deciding that the parties agreed to share their gambling winnings, such an agreement possibly could have been performed within one year. For example, if the plaintiff and defendant had won $200, they probably would have received all the money in one pay-out and could have split the winnings immediately. Therefore, the defendant was not entitled to summary judgment based on her affirmative defense of the statute of frauds.

We sustain the plaintiffs sole point of error.

We reverse the trial court’s judgment and remand for further proceedings.

      . The plaintiff, who suffers from advanced rheumatoid arthritis, was in a wheelchair.


source: Caselaw Access Project

author: SAM NUCHIA, Justice.

license: Public Domain

text:
    Joseph Lee BOLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00409-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 23, 2000.

      Thomas “Jay” Wooten, Friendswood, Appellant.
    Michael J. Guarino, Richard H. Branson, Galveston, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

SAM NUCHIA, Justice.

Appellant was charged with forgery and possession of less than a gram of cocaine. The State dismissed the forgery charge. The court denied appellant’s motion to suppress the cocaine, and appellant pled guilty. The judge sentenced appellant to eighteen months confinement. We reverse.

BACKGROUND

The evidence introduced at the suppression hearing shows appellant cashed a ten dollar check belonging to Mary Battistoni at Spillway Fishing Pier. Appellant told the clerk that Battistoni was his mother. The clerk accepted the check, but she thought it was suspicious so she wrote his driver’s license number on the check.

Deputy Brad Golden investigated a report that someone was trying to pass a forged check. Golden ran the driver’s license number on the back of the check that was cashed at Spillway Fishing Pier, and he found that it was appellant’s driver’s license. Golden took a complaint stating the following to the magistrate:

... on or about the 6TH day of January, A.D., 1999, and before the making and filing of this complaint, in the County of Galveston and State of Texas, JOSEPH LEE BOLEY did then and there unlawfully INTENTIONALLY AND KNOWING ALTER, MAKE, COMPLETE, EXECUTE, OR AUTHENTICATE ANY WRITING SO THAT IT PURPORTS: TO BE THE ACT OF ANOTHER WHO DID NOT AUTHORIZE THAT ACT; TO WIT: SIGNS AND PASSES A CHECK NOT BEING AUTHORIZE BY CHECK OWNER COMPANY; TO WIT: SUBJECT IDENTIFIED BY A DRIVERS LICENSE AND A WITNESS. I CONTACTED D.A. HOLMES WHO RECOMMENDED CHARGES OF FORGERY WITH AT 10,000 BOND.

Also on the complaint was the notation “see attached” in the space provided for witness names. At the suppression hearing, Officer Golden testified that when he presented the complaint to the Justice of the Peace, the affidavit of forgery, a copy of the Spillway clerk’s statement, his offense report, and copies of the checks were attached. The judge issued a warrant for appellant’s arrest.

Golden received a report that appellant was at Spillway Fishing Pier trying to pass another check. Golden arrested appellant and found him in possession of a crack cocaine pipe and less than a gram of crack cocaine.

ANALYSIS

Appellant argues the magistrate was limited only to the facts contained within the complaint to determine probable cause, and the single factual statement, “subject identified by a drivers license and a witness,” is insufficient to establish probable cause. The State argues the complaint, together with the other attachments, was sufficient information upon which the magistrate could have relied to form the basis of probable cause.

An affidavit in support of an arrest warrant must provide the magistrate with sufficient information to support an independent judgment that probable cause exists for the issuance of the warrant. Castillo v. State, 739 S.W.2d 280, 290 (Tex. Crim.App.1987). The sufficiency of the affidavit is examined under the “totality of the circumstances” analysis of Illinois v. Gates. 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Hennessy v. State, 660 S.W.2d 87, 90 (Tex.Crim.App.1983). Warrant affidavits should be interpreted in a common sense and realistic manner, and the reviewing magistrate is permitted to draw reasonable inferences from the facts supporting the averments. Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App. 1987); Jones, 568 S.W.2d at 855.

We must determine whether the magistrate had a “substantial basis” for concluding that probable cause existed for the issuance of a warrant, which is valid on its face. State v. Escobar, 764 S.W.2d 570, 572 (Tex.App. — Houston [1st Dist.] 1989, pet. ref d). We must conduct a “de novo” review of probable cause, and deference is to be given to the issuing magistrate’s original decision that probable cause existed. United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982); Escobar, 764 S.W.2d at 572. We agree with appellant that the statement on the face of the complaint is insufficient to establish probable cause.

The State cites Kotlar v. State apparently for the proposition that if unsworn documents are included with a sworn complaint, and if sufficient probable cause is contained in the combined complaint and documents, the complaint and documents may form the basis for a magistrate’s finding of probable cause. See Kotlar v. State, 706 S.W.2d 697, 701 (Tex.App. — Corpus Christi 1986, pet. refd). We do not believe Kotlar stands for that proposition.

Normally, in order for attachments to an affidavit to be considered as part of the affidavit, they must be incorporated by reference. However, it does not invariably follow that without such an incorporation, the affidavit must fail. Barnes v. State, 876 S.W.2d 316, 327 (Tex.Crim.App.1994) (citing U.S. v. Beaumont, 972 F.2d 553, 561 (5th Cir.1992) (holding a warrant does not necessarily fail without incorporation by reference of the affidavit)).

In Barnes, the Court of Criminal Appeals decided that when documents submitted with an affidavit are not incorporated by reference, they may be implicitly incorporated if it is established that: (1) the issuing magistrate essentially considered the attached documents as “part and parcel” of the warrant affidavit; (2) the documents were physically attached; and (3) the matters contained in the documents were an obvious continuation of the affidavit. Barnes, 876 S.W.2d at 327.

In Kotlar, an officer’s affidavit stated, “based upon an attached offense report, he either had personal knowledge or reason to believe that appellant was guilty of destroying or damaging the horse.” 706 S.W.2d at 700-01. The court found that, although not within the “four corners” of the affidavit, the attached offense report was properly part of the information the magistrate had before him when deciding whether to authorize a warrant.

This case is distinguishable from Kotlar where the affidavit referenced the attached offense report that was before the judge when he made his determination of probable cause. Here, the only reference to any attachment was in the witness name slot on the complaint form. From the record, it is unclear what was attached. Officer Golden testified that the affidavit of forgery, the offense report, a copy of the Spillway clerk’s statement, and a copy of the checks were attached to the complaint when he submitted it to the Justice of the Peace. However, we note that apparently both the offense report and the witness statement were written after Officer Golden submitted the affidavit to the Justice of the Peace. Consequently, it is unclear what documents were physically attached or what documents the magistrate considered, and there is no indication in the documents indicating that they were an obvious continuation of the affidavit. We find the affidavit was insufficient to support the arrest warrant.

We sustain appellant’s point of error.

We reverse and remand.

      . In the offense report, Officer Golden wrote that he obtained a warrant from Judge Foster and then got a written statement from the Spillway clerk.


author: MICHOL O’CONNOR, Justice.

text:
    ABLE CABLING SERVICES, INC., Appellant, v. AARON-CARTER ELECTRIC, INC. and Carter R. McAlexander, Individually, and Goldie L. McAlexander, Individually, Appellees.
    No. 01-99-00897-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 23, 2000.
    Rehearing Overruled May 5, 2000.

      John F. DeMille, Houston, for Appellant.
    John Anthony Saur, Houston, for Appel-lees.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MICHOL O’CONNOR, Justice.

Able Cabling Services, Inc., the appellant (plaintiff), sued Aaron-Carter Electric, Inc., Carter R. McAlexander, and Goldie L. McAlexander, the appellees (defendants), for damages arising from the split of shareholders that formed the plaintiff. The plaintiff appeals the rendering of a judgment as to which it had withdrawn its consent.

In three points of error, the plaintiff claims: (1) the trial court abused its discretion in entering a judgment when consent was withdrawn based on discovery of new evidence; (2) the trial court erred in denying the plaintiffs motion for new trial because new evidence was discovered and consent withdrawn; (3) the trial court erred in applying Rule 11 to this case by entering a judgment when consent of a party was wanting because of discovery of material evidence that breached the settlement agreement. We reverse and remand.

Facts

At the temporary injunction hearing, the first hearing in these proceedings, the plaintiff announced to the trial court that, in discussing the case, the parties had “settled the entire matter.” The plaintiffs counsel then dictated the terms of the agreement into the record. The defendants’ counsel clarified a couple of dates and then the following occurred:

Plaintiffs counsel: That’s correct, Your Honor. That’s our agreement.
The Court: That’s your agreement?
Defendants’ counsel: Yes, sir.
The Court: The judgment will be rendered in accordance with the terms dictated into the record. Ya’ll need to bring me whatever final judgment you want.

In the following months, the defendants returned computers and books to the plaintiff. In reviewing these items, the plaintiff found that the defendants had collected on additional plaintiff accounts and had also transferred ownership of a truck from the plaintiff to the defendant corporation. Upon discovering this new evidence, the plaintiff filed a motion to set aside settlement.

At the hearing on the plaintiffs motion and the defendants’ motion to enter judgment, the trial court denied the plaintiffs motion and signed the judgment on the settlement. The plaintiff then filed a motion for new trial. After a hearing, the motion was denied.

First Issue

In its first point of error, the plaintiff claims the trial court abused its discretion by entering a judgment when consent was withdrawn due to discovery of new evidence. The plaintiff argues the judgment was no longer valid and should not have been entered.

The defendants contend the trial court rendered judgment at the first hearing. As a result, the defendants claim the plaintiff cannot argue lack of consent.

A court cannot render a valid consent judgment unless, at the time of rendition, all parties consent to the agreement underlying the judgment. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951); Cary v. Cary, 894 S.W.2d 111, 112 (Tex.App. — Houston [1st Dist.] 1995, no writ). Therefore, a party has the right to revoke his consent at any time before the rendition of judgment. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); Cary, 894 S.W.2d at 112.

Judgment is rendered whenever the court officially announces its decision in open court, or files a memorandum with the clerk. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970). Entry of judgment is a ministerial act which memorializes the judicial act of rendition. Flores v. Onion, 693 S.W.2d 756, 758 (Tex. App. — San Antonio 1985, no writ).

Here, the trial court’s statement that “the judgment will be rendered in accordance with the terms dictated into the record” implies rendition will occur at signing, when the trial court gets the finalized settlement from the parties. This interpretation is supported by the court’s next statement: “Ya’ll need to bring me whatever final judgment ya’ll want.”

Although it is undisputed that the trial court approved the settlement, approval of a settlement does not necessarily constitute rendition of judgment. See, e.g., S & A Restaurant Corp. v. Leal, 892 S.W.2d at 857 (Tex.1995). In Leal, the Supreme Court said the words used by the trial court must indicate a present intention to render judgment. 892 S.W.2d at 858 (emphasis added). The rendition of judgment is a present act which decides the issues upon which the ruling is made. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976) (emphasis added).

The judge’s intention to render judgment in the future cannot be a present rendition of judgment. Leal, 892 S.W.2d at 858; Reese, 534 S.W.2d at 330. Further, the words used by the trial court must clearly indicate the intent to render judgment at the time the words are expressed. Leal, 892 S.W.2d at 858.

The trial court did not render judgment at the settlement hearing. Because a trial court cannot render a valid consent judgment unless, at the time, all parties agree, we sustain point of error one and remand the cause to the trial court for further proceeding.

      . During the split of the plaintiff, the individual defendants took bookkeeping materials to help start the defendant corporation. Thus, part of the settlement stated these items be returned.

      . The defendants argue that the docket sheet memo, dated that same day, expressly states judgment was rendered in the case. The defendants argument, however, is incorrect because the docket sheet was not filed with the clerk until after judgment was signed. The law specifically states that judgment is rendered when the memo is filed with the clerk. See, e.g., Comet Aluminum, 450 S.W.2d at 59.

      . The defendants argue that, regardless of whether the trial court rendered judgment or not, the parties had a valid Rule 11 agreement. The law of contracts applies to Rule 11 agreements. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Ronin v. Lerner, 7 S.W.3d 883, 886 (Tex.App. — Houston [1st Dist.] 1999, no pet.).

      . Because we sustain the plaintiff's first point of error, we need not address the remaining points.


author: DAVIE L. WILSON, Justice.

text:
    CITY OF WACO, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
    No. 01-98-00099-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 23, 2000.
    Rehearing Overruled May 2, 2000.

      Terri Barziza Mosser, J. Anthony Alvarez, Houston, for Appellant.
    Patricia Mcgarvey Rosendahl, Houston, for Appellee.
    Panel consists of Justices MIRABAL, WILSON, and ANDELL.
   OPINION

DAVIE L. WILSON, Justice.

In this case of first impression in Texas, we are asked to decide whether an insurer’s exclusion for law enforcement activities applies to the operation of a jail. The trial court granted the insurance company’s motion for summary judgment, which was, in part, based on the law-enforcement exclusion. We hold the exclusion applies to jail operations and affirm.

Facts

This is a subrogation suit between two insurance companies. Appellant, the City of Waco, purchased a comprehensive general liability insurance policy from appel-lee, St. Paul Fire and Marine Insurance Company. The policy contained the following endorsement:

LAW ENFORCEMENT EXCLUSION
In consideration of the premium charged, it is hereby understood and agreed that this policy does not cover any loss for which the insured under this policy, (as defined by endorsement 1) becomes legally obligated to pay as damages arising from any act, or failure to act, of any of your law enforcement agencies, agents, employees or volunteers.

Waco also purchased a comprehensive law enforcement liability insurance policy from the real party in interest, National Casualty Company a/k/a Scottsdale Insurance Company. National Casualty’s law enforcement liability policy based its premium calculation in part on the number of “Class B Employees” employed by Waco, which included jailers and matrons.

In the underlying lawsuit, J.H. was sexually assaulted while he was detained in Waco’s jail. In September 1986, J.H. notified the City of his claim. The City then notified St. Paul and its local agent, Berk-man & Woods. St. Paul orally notified Waco that St. Paul’s general liability insurance policy did not apply due to the law-enforcement exclusion. Waco eventually notified National Casualty of J.H.’s claim.

In September 1987, J.H. sued Waco for negligence and a section 1983 violation. 42 U.S.C. § 1983 (1994); Hester v. City of Waco, No. 87-3406-3 (74th Dist. Ct., McLennan County, Tex.). Waco notified National Casualty of the suit, but not St. Paul. J.H. prevailed in the trial court, and the Waco Court of Appeals reformed the judgment, and, as reformed, affirmed. City of Waco v. Hester, 805 S.W.2d 807 (Tex.App. — Waco 1990, writ denied). J.H. received a recovery in excess of $350,000, which Waco and National Casualty paid in August 1992.

In January 1994, National Casualty, as subrogee of Waco, sued St. Paul for breach of contract for failing to defend and indemnify Waco based on St. Paul’s general liability insurance policy. St. Paul moved for summary judgment based on (1) Waco’s alleged failure to give notice of J.H.’s lawsuit and (2) limitations. National Casualty filed its own motion for partial summary judgment, and St. Paul filed a second motion for summary judgment based on the law-enforcement exclusion. The trial court rendered a final take-nothing summary judgment in favor of St. Paul, without specifying the grounds. National Casualty brings 38 points of error.

Discussion

A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we accept the evidence that favors the nonmovant as true and indulge all reasonable inferences and resolve all doubts in favor of the nonmov-ant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When the defendant produces competent evidence to negate a necessary element of the plaintiffs cause of action, to preclude summary judgment, the plaintiff must introduce evidence sufficient to raise a fact issue with respect to the element the defendant seeks to negate. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). We must affirm the judgment if any theory advanced by a defendant in its motion is meritorious. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

St. Paul contended in its second motion for summary judgment that the law-enforcement exclusion applied to the operation of the Waco jail and, thus, St. Paul owed no duty to Waco under the general liability insurance policy. National Casualty challenges that ground for summary judgment in its points of error one and four through 10.

Insurance policies are subject to the same rules of construction as other contracts. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997). The policy must be considered as a whole and effect given to each part if reasonably possible. National Sec. Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 944 (1953). The plain, ordinary, and generally accepted meaning of words is preferred unless the policy itself shows that the terms have been used in a technical or different sense. Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 346 (Tex.1976). If an insurance contract can be given more than one meaning, it is ambiguous, and the interpretation that most favors coverage will be adopted. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). An intent to exclude coverage must be expressed in clear and unambiguous language. See State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (Tex.1993).

In Texas, it is clear that operation of a jail is historically a law enforcement function. County jails are operated by the sheriff, who is unquestionably a law enforcement official. See Tex. Loc. Gov’t Code Ann. § 351.041 (Vernon 1999) (“sheriff of each county is the keeper of the county jail”). The Texas Commission on Law Enforcement Standards and Education is responsible for training county jailers and guards. Tex. Occ.Code Ann. §§ 1701.001(2), .251(a) (Vernon 2000).

Although we realize that jails operated by home-rule municipalities like the City of Waco do not fall under the statutes cited above, the plain, ordinary, and generally accepted meaning of city jail is that it is a law-enforcement agency within the meaning of St. Paul’s exclusion. City jails are operated by police departments, which are unquestionably law-enforcement agencies. According, we hold that St. Paul owed a duty under its comprehensive general liability insurance policy neither to the City of Waco nor to Waco’s subrogee, National Casualty.

We overrule points of error one and four through 10 regarding the law-enforcement exclusion. Because the trial court’s rendition of summary judgment was proper based on the law-enforcement exclusion, points of error two, three, and 11 through 38 are moot, and we do not reach their merits.

Conclusion

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Edith Carol PEAVY and O.L. Peavy, Individually and as Personal Representative of The Estate of Elizabeth Ann Peavy, Deceased, Appellant, v. TEXAS HOME MANAGEMENT, INC., Appellee.
    No. 01-97-01125-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 30, 2000.
    W. Burl Brock, San Antonio, for Appellant.
    Jay D. Hirsch, Fred L. Shuchart, Houston, for Appellee.

      Panel consists of Justices WILSON, TAFT, and NUCHIA.
   ORDER

PER CURIAM.

On February 25, 2000, appellee filed a motion for additional time to file a motion for rehearing, alleging that it received no notice of this Court’s November 30, 1999 judgment until February 19, 2000. See TexR.App. P. 4.5(b). The motion was signed by Jay D. Hirseh and verified by Thomas W. Long. Appellee does not explain who Long is or the basis of his knowledge.

Appellee’s counsel from judgment day in this Court to the present are Fred L. Shuchart and Hirseh. On November 22, 1999, Hirseh filed a motion to designate himself as lead counsel, and we granted his motion on December 2, 2000. The Clerk’s records reflect that notices in the appeal were and are sent to both Shuchart and Hirseh.

The relevant portion of the motion states:

Appellee would show that the earliest date when its attorney received or acquired actual notice that the judgment of the Appellate Court in this matter had been rendered was February 19, 2000.... Appellee seeks additional time to File a Motion for Rehearing in this Honorable Court because it did not receive notice of this Honorable Court’s decision until February 19, 2000.

The motion does not state that appellee and its counsel, Shuchart and Hirseh, did not — until after the time expired for filing the motion for rehearing, i. e., December 16, 1999 — (1) receive notice of the judgment from the Clerk of this Court and (2) acquire actual knowledge of the rendition of the judgment. See TexR.App. P. 4.5(a), 49.1. In short, the motion does not provide a factual basis on which we can grant the requested relief.

Appellants challenge appellee’s motion and request that we deny relief. Based on the conclusory allegations in the motion, we could find that appellee has not demonstrated it is entitled to relief. In the spirit of fairness and equity, however, we will abate the appeal and remand the case to the trial court so it may hold an evidentia-ry hearing and make proposed findings of fact on when appellee and its counsel first (1) received notice of the November 30, 1999 appellate judgment from the Clerk of this Court or (2) acquired actual knowledge of the rendition of the appellate judgment. The trial court shall have a court reporter record the hearing. Appellee shall pay both the clerk and the court reporter for preparing the record of the hearing. A supplemental clerk’s record containing the trial court’s written proposed findings of fact and the reporter’s record of the hearing shall be filed with the Clerk of this Court no later than 60 days from the date of this order.

The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket (1) when the supplemental clerk’s record and the supplemental reporter’s record are filed in this Court or (2) 61 days from the date of this order, whichever occurs first. If the appellee does not request a hearing in the trial court and work with the clerk and court reporter to ensure that the record is timely filed, we will deny appellee’s motion for additional time. We will also consider an appropriate motion to reinstate the appeal filed by either party. If the supplemental clerk’s record and the supplemental reporter’s record are timely filed, we will review the record of the hearing and the trial court’s proposed findings of fact and make a final determination on appel-lee’s motion.

It is so ordered.

      . Under Rule 4.5, a party and its counsel must demonstrate that they did not receive notice of the appellate judgment until after the deadline for filing the document. It is insufficient for a party and its counsel to state that they were merely unaware of the notice's contents.

      . Although the courts of appeals normally cannot find facts, we are authorized to determine matters of fact that are necessary to the proper exercise of our jurisdiction. Tex. Gov’t Code Ann. § 22.220(c) (Vernon 1988).


text:
    Ki Yendra Arayan VILLERY, Appellant, v. Shrunda Love SOLOMON, Appellee.
    No. 01-99-00932-CV.
    Court of Appeals of Texas, Houston (1st Disk).
    March 30, 2000.
    Robert Bailey, Houston, for appellant.
    Russell G. Burwell, Texas City, for ap-pellee.
    Panel consists of Justices MIRABAL, WILSON, and NUCHIA.
   OPINION

SAM NUCHIA, Justice.

Appellant, Ki Yendra Arayan Villery, appeals the final judgment of the trial court determining the heirs of her father, the decedent, C.K. Villery (Villery), to in-elude appellee, Shrunda Love Solomon, as the daughter of the decedent. We affirm.

BACKGROUND

C.K. Villery and Ada (sometimes spelled Aida) Love had a son, Calvin, in November 1968. In August 1971, Ada Love had a daughter, Shrunda. Villery met Janis Williams sometime in 1971, and they were married in 1974. Their daughter, Ki Yen-dra Villery, was born in January 1975. C.K. Villery died intestate in 1991, and in 1995, Calvin Love and his sister, Shrunda Love Solomon, filed an application to determine heirship of the decedent.

Although Janis Villery and Ki Yendra Villery initially denied that both Calvin Love and Shrunda Solomon were the children of Villery, Ki Yendra Villery testified at trial that Calvin Love was her brother, and she does not contest the trial court’s finding that Calvin is the son and heir of Villery. However, she does challenge the trial court’s finding that Shrunda is the daughter and heir of Villery.

DISCUSSION

In her first point of error, appellant contends the trial court erred in declaring Shrunda Love Solomon to be the heir of the decedent, C.K. Villery, as the same was not proved by clear and convincing evidence. In her second point of error, appellant contends the trial court erred in refusing to make the presumptions needed in order to give effect to the DNA test report. We construe appellant’s complaint to be that the evidence was factually insufficient to support the trial court’s finding that Shrunda Love Solomon proved by clear and convincing evidence that she was the biological child of C.K. Villery.

The Probate Code provides that, for the purpose of paternal inheritance,

A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance ....

Tex. Probate Code Ann. § 42(b) (Vernon Supp.2000).

The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980); In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex.App. — Houston [1st Dist.] 1998, no pet.). On appeal, in evaluating the sufficiency of the evidence to support the judgment, the standard of review is not affected by the heightened burden of proof required in the trial court. J.N.R., 982 S.W.2d at 142. Therefore, to review the factual sufficiency of the evidence when the standard of proof is clear and convincing, we apply the usual factual sufficiency standard of review. See Meadows v. Green, 524 S.W.2d 509, 510 (Tex. 1975). We will set aside the judgment only if the evidence is so weak or the finding so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); J.N.R., 982 S.W.2d at 143.

Ada Love testified that she grew up next door to C.K. Villery and that she had two children by him: Calvin Love and Shrunda Love. She testified that Villery came to see her and the children and acknowledged Shrunda as his child; he sent her money as child support; he wanted to change their names to his; and she continued to talk to him weekly until his death. She testified that she had a third child by another man after her relationship with Villery ended and he married Janis Villery.

Calvin Love, born November 12, 1968, testified that he visited regularly with his father. He also testified Villery acknowledged that Shrunda was his daughter and was upset that he was not closer to her. Calvin identified Villery’s memorial service program, which listed appellant, Calvin Love, and Shrunda Love as Villery’s children. He also identified a photograph showing appellant, Calvin, and Shrunda among other family members at a funeral.

Shrunda Love Solomon testified that she had known that Villery was her father from the time she was born. She testified that she did not see her father as much as Calvin and only went to gatherings that required her attendance because she did not get along well with appellant and Janis Villery. She testified that she knew Vil-lery’s sisters as her aunts and was introduced as Villery’s daughter. She said Vil-lery sent her cards and money, and, later, helped pay her rent and sent her money to help with her baby, his grandson.

Verma Williams, Villery’s aunt, testified by deposition that Villery grew up in her household. She said that Villery told her that Calvin and Shrunda Love were his children. She testified that she knew the children’s mother, Ada Love. She said that Villery brought Calvin to visit more than Shrunda because Shrunda did not like Vil-lery’s wife, Janis, and was not treated well by her.

Helen Moses, Villery’s sister, testified by deposition that she knew Calvin Love and Shrunda Love and their mother, Ada. She testified that Villery told her that Shrunda was his daughter and that she never had any reason to believe that Shrunda was not his child.

Jennifer Dismuke, another of Villery’s sisters, testified by deposition that Villery told her Calvin Love was his son and Shrunda Love was his daughter. She said there was no doubt about this in her mind.

Appellant testified that Calvin Love is her brother. She said she knew Shrunda because she and her father would pick her up when they picked up Calvin. She testified that she did not exactly know, but she assumed that Shrunda was her sister, and her Aunt Jennifer said the family felt that Shrunda was Villery’s daughter. She testified that she and her mother would go clothes shopping with both Calvin and Shrunda. She knew that Villery gave Shrunda money. She testified that, on one occasion, Villery told her that Shrunda’s mother said Shrunda was his daughter and he took her at her word, but that he did not know. In her presence, he introduced Calvin and Shrunda to third parties as “my son, Calvin, and his sister, Shrunda.”

Appellant called several witnesses who had known Villery. Ken Poe, a business associate of Villery’s, testified that he had seen a picture of Calvin and was told by Villery that Calvin was his son, but Poe did not know Shrunda. Clementine Allen, who attended Lamar University with Vil-lery, knew of Calvin but did not know of Shrunda. She had been told by Verma Williams that Shrunda was Villery’s daughter. Lawon Boatner, a friend from Villery’s childhood, knew Calvin but did not know Calvin’s mother. Otis Fields, a friend and former neighbor of Villery’s, knew Calvin but was never told who Calvin’s mother was. He never had any discussions with Villery’s sisters or aunt about Villery’s children.

Franceda Williams, Janis Villery’s mother, testified that Janis and Villery met in 1971 and married in 1974. She said that during the time Villery was dating Janis, he would bring Calvin with him to her house. She did not know who Calvin’s mother was or where Calvin was living.

Grethan Barnes, Janis Villery’s sister, testified that Villery told them that Calvin was his son, but he never said he had other children. She testified that she saw Shrunda once at the Villery home and asked Villery about her. He replied, “That’s Calvin’s sister.... I just bring her with me when I pick Calvin up so she don’t feel left out.” She testified that she was surprised to learn recently that Calvin had another sister because she understood that Villery was bringing Shrunda over with Calvin so she wouldn’t feel left out. Barnes also testified that Janis mentioned buying school clothes for Calvin and Shrunda.

In her response to requests for admissions, Janis Villery admitted that Shrunda had spent the night at the Villery home while she was a minor.

The DNA Report

A report of DNA tests on Ada Love, Calvin Love, Shrunda Solomon and appellant was admitted into evidence over Solomon’s objection. The report states in its conclusion,

The alleged father, CORNELIUS VIL-LERY, cannot be the biological father of KI YENDRA VILLERY and also both CALVIN LOVE and SHRUNDA SOLOMON. Paternal genetic factors that would have to be passed on if he were the biological father of Calvin Love and Shrunda Solomon are not present in Ki Yendra Villery. Therefore, if the alleged father is the biological father of Ki Yendra Villery, he cannot also be the biological father of both Calvin Love and Shrunda Solomon. This conclusion assumes that Ada Love is the biological mother of Calvin Love and Shrunda Solomon.

In admitting the report, the court stated,

Gentlemen, I will accept this for what it is, a report from GeneScreen on the blood tests of Aida (sic) Love, Calvin Love, Shrunda Solomon and Ki Yendra Villery. Other than that, this Court’s not going to make any assumption, other than they’ve taken that. As far as any information that’s contained herein, I’m not going to take it as a fact, without a witness here to support it or without something more than that. I have a hard time buying a blood test where all the parties are not involved. In other words, you don’t have the father and the children and — _

Appellant interprets the conclusion of the report to mean that Villery may be the biological father of either Calvin Love or Shrunda Solomon, but he cannot be the biological father of both. That, however, is not what the report says. The conclusion of the report — that Villery cannot be the biological father of Ki Yendra Villery and also both Calvin Love and Shrunda Solomon — is, at best, ambiguous, particularly when the report also states, “Paternal genetic factors that would have to be passed on if he were the biological father of Calvin Love and Shrunda Solomon are not present in Ki Yendra Villery.” Appellant did not produce an expert witness to interpret the report or to explain its conclusion.

Appellant interprets the statement of the trial court — “I will accept this for what it is.... Other than that, this Court’s not going to make any assumption, other than they’ve taken that” — to mean that the trial court was not willing to assume that Villery was the biological father of appellant and that Ada Love was the biological mother of Calvin Love and Shrunda Solomon. We disagree with appellant’s interpretation. The Family Code contemplates that blood tests, for the purpose of establishing paternity, will be conducted on the mother, the alleged father, and the child. Tex. Fam.Code Ann. § 160.102 (Vernon 1996). The trial court was clearly saying that it would not make any assumptions based on the DNA report in light of the facts that no expert was presented to explain the report more fully and no DNA testing was done on the alleged father.

The trial court, as the trier of fact, was the sole judge of the credibility of the witnesses and the weight to be given to the testimony. Jerry v. Kentucky Cent. Ins. Co., 886 S.W.2d 812, 814 (Tex.App. — Houston [1st Dist.] 1992, writ denied). It is clear that the results of the DNA tests were not conclusive, and the trial court did not err in refusing to make any assumptions based on the DNA report.

After reviewing the entire record, we hold that the trial court’s finding that the clear and convincing evidence showed that Shrunda Love Solomon was the biological child of C.K. Villery is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

We overrule appellant’s first and second points of error.

We affirm the judgment.

      . C.K. Villery and Ada Love were never married. Ada testified that her relationship with Villery continued until he married Janis, and that during that time, she did not have a relationship with any other man. She also testified that she and Villery spoke on the telephone three to four times a week up until his death.

      . Janis Villery died in 1997 prior to trial.