author: Justice BRISTER Justice JOHNSON, Justice WAINWRIGHT,

text:
    In re The Honorable Karen ANGELINI.
    No. 06-0088.
    Supreme Court of Texas.
    Feb. 24, 2006.

      John E. Clark, Rand J. Riklin, Goode Casseb Jones Riklin Choate & Watson, P.C., San Antonio, for Relator.
    Chad Wilson Dunn, Riddle & Brazil, LLP, Houston, for Respondent.
    Lauro A. Bustamante Jr., San Antonio, for Real Party.
   Justice BRISTER

delivered the opinion of the Court,

in which Chief Justice JEFFERSON, Justice HECHT, Justice MEDINA and Justice GREEN joined.

In this original proceeding, the Honorable Karen Angelini, currently Justice of the Fourth Court of Appeals, Place Five, seeks mandamus relief against Charles E. Soeehting, State Chair of the Texas Democratic Party. The latter initially listed Lauro A. Bustamante as a candidate for Place Seven on the Fourth Court of Appeals, then at the filing deadline as a candidate for Place Five, then after the deadline as disqualified, and finally as a candidate for Place Five again after this Court issued three opinions on January 27, 2006. Because we find fact issues that must be determined after a hearing on the merits, we deny the petition for writ of mandamus.

Angelini alleges “multiple defects” in Bustamante’s filings that could not be cured by the filing deadline. The facsimile date and time stamps on the filings indicate that they were transmitted to the Party between 6:04 and 6:40 p.m. on January 2, 2006 — after the 6:00 p.m. filing deadline. Angelini reports that a Democratic Party representative told her Busta-mante’s papers were actually received before the deadline, but that the Party’s facsimile clock had not been reset from Daylight Savings Time. In any case, An-gelini argues that our decision in Francis did not authorize relief for a late-filer like Bustamante, citing the following:

[W]e emphasize several limitations on today’s holding. First, it concerns only facial defects that are apparent from the four corners of a candidate’s filings; it does not reach forgery, fraud, or other non-accidental defects discoverable only by independent investigation. Second, it concerns only early filings that allow time for corrections after the state chair’s review: no additional time will be available for candidates who file at the last minute so that review cannot be completed before the filing deadline. Third, it does not allow political parties or candidates to ignore statutory deadlines; it allows candidates only the time that the Election Code was designed to give them. Fourth, it concerns only defective filings that have erroneously been approved; it does not change what the Election Code says party chairs should and must reject.

As Bustamante did not file until at or after the deadline, she argues that the State Chair did not review it until after the deadline, did not erroneously approve it, and did not deny Bustamante the opportunity to cure that the Election Code provides to early filers.

In response, Bustamante has filed an affidavit in which he states that the Democratic Party reviewed his filings as each page arrived and approved them. Further, he challenges the authenticity and veracity of all Angelini’s evidence about his filings. Finally, he avers that he had time to correct any mistakes before the filing deadline because he had staff, computers, facsimile machines, and a notary available.

“It is well established Texas law that an appellate court may not deal with disputed areas of fact in an original mandamus proceeding.” There are several such factual disputes here, including (1) whether Bustamante filed his documents before the deadline, (2) whether he complied with all statutory requirements except for facial defects that are apparent within their four corners, (3) whether the Party had sufficient time to complete its statutory review of his filings before the deadline, (4) whether after that review but before the deadline the Party erroneously notified Bustamante that his filings complied with statutory requirements, and (5) whether Bustamante could have cured any facial errors before the deadline had the State Chair properly notified him of those defects. If the trial court answers any of these questions “No,” then we agree An-gelini would be entitled to mandamus relief. The parties may of course raise legal and factual issues other than these.

We decline the dissent’s invitation to disqualify Bustamante without giving him a hearing. First, he does not admit that his filings were defective; that is instead our colleague’s conclusion. While he avers that he had “time for corrections,” he never concedes that his filings needed any. More important, he challenges the authenticity and veracity of the copies of his filings submitted by Angelini, the only basis upon which we could make any decision.

Second, in concluding that Bustamante filed only 20 signatures that complied with the Election Code, the dissent decides several factual and legal issues without a hearing and barely any mention. Busta-mante’s petition contains almost 400 signatures, but the dissent disqualifies all but 20 because only two petition pages were signed by a circulator. Voters’ signatures are valid under the Election Code if they appear in the same “part” of the petition as the circulator’s affidavit, and the same “page” of the petition as other items like the place number discussed in Francis. We need not decide today whether “part” and “page” are the same because, depending on what facts the trial court finds, it may be irrelevant in this case.

The dissent’s approach to defects in a candidate’s filings has not been the law for several years. A majority (not a plurality) of this Court held in Gamble that defective filings could be remedied after the filing deadline to correct a party official’s violation of a statutory duty. Gamble concerned an application for office rather than a petition, but the Election Code treats the two as one document, so we cannot treat them differently.

Any “mystery” about the duty of state party chairs can be cleared up by reading the statute, which does not require them to do the work for any candidate, but does require them to review filings “as soon as practicable” after receipt and “immediately deliver” written notice of defects. If the Legislature intended for less-than-perfect candidates to get what the dissent thinks they deserve, there would be no reason for state chairs to review anything before the deadline, and certainly no reason to move quickly.

As both Angelini and Bustamante are unopposed in their respective primaries, there should be ample time before the general election in November for a trial court to make its findings, and for any appellate review to be conducted first in the court of appeals rather than this Court. Generally, such proceedings “must be presented first to the court of appeals unless there is a compelling reason not to do so.”

For the foregoing reasons, we deny the petition for writ of mandamus.

Justice JOHNSON filed a concurring opinion, in which Justice O’NEILL joined.

Justice WAINWRIGHT filed a dissenting opinion.

Justice WILLETT did not participate in the decision.

Justice JOHNSON,

joined by Justice O’NEILL, concurring.

I agree that mandamus relief should be denied because factual disputes exist. Once that conclusion has been reached and expressed, however, no further controversy is before us as this matter is postured. I would not opine as to what relief is appropriate in the event of future hearings and if particular factual determinations result from those hearings.

Further, although I joined with Justice Wainwright in dissenting from the Court’s decisions in Francis and Holcomb and still believe that those cases were wrongly decided, the cases are now precedent of this Court. Thus, I cannot join his dissent. I concur in the Court’s decision to deny relief.

Justice WAINWRIGHT,

dissenting.

The Court acknowledges that the Respondent’s petition did not comply at the filing deadline with the requirements of the Texas Election Code, yet it refuses to grant the mandamus and hold that respondent did not qualify as a candidate for Justice of the Fourth Court of Appeals, Place 5. I therefore respectfully dissent.

I.

On the filing deadline, Lauro Busta-mante’s petition to be certified as a primary candidate for the Court of Appeals for the Fourth District, Place 5, contained less than half of the required 250 signatures. TEX. ELEC. CODE § 172.021(e). This assumes, notwithstanding all the reasons not to, that the circulator’s signature on two petition pages validated the petition signatures on other parts of his petition. See section II, infra. Rather than simply affirm the invalidity of the petition and enforce the Election Code’s stricture that only candidates who comply with its requisites by the deadline may be certified for the ballot, the Court extends the legislative deadline so Bustamante can attempt to cure the defects in his petition. See TEX. ELEC. CODE §§ 141.065, 172.021. The Legislature’s considered judgment notwithstanding, the Court in this case grants a four-week extension of the deadline.

All parties before the Court — Real Party Bustamante; Respondent Charles Soechting, chairman of the Texas Democratic Executive Committee; and Relator, the Honorable Karen Angelini, Justice of the Court of Appeals for the Fourth District, Place 5 — acknowledge that Busta-mante’s petition for Place 5 on file with the party chair by the 6:00 p.m. deadline on January 2, 2006 (or even forty minutes later), was not compliant. Id. § 172.023(a). His filing was not even close to meeting the Election Code requirements. Bustamante did not file a petition that he claims was valid until January 30, when he filed a revised petition arguably in an attempt to validate many additional signatures on his petition. The fact that the petition was defective as of the deadline should resolve the case, irrespective of the fact issues the Court identifies. See In re Francis, 186 S.W.3d 534, 543 (Tex.2006) (Wainwright, J., dissenting). The Court should enforce de-certification of candidates under the Election Code if their failure to include information in their applications “would contravene express requirements and impair the purpose of the Election Code.” Id. Resolution of the fact issues the Court identifies is unnecessary to resolve this case.

The Court denies the mandamus because of five factual disputes: (1) whether Bustamante filed his application and petition before the deadline, (2) whether he complied with all statutory requirements except for facial defects that are apparent within the four corners of his filings, (3) whether the Party had sufficient time to complete its statutory review of his filings before the deadline, (4) whether the Party notified Bustamante before the deadline that his filings complied with statutory requirements, and (5) whether Bustamante could have cured any facial errors before the deadline had the State Chair notified him of the defects rather than approving them. 186 S.W.3d 538, 560.

The first factual dispute is immaterial under the Election Code as it is undisputed that the petition Bustamante filed failed to comply with the Code’s requirements on the filing deadline, and for four weeks thereafter. Only because the Court created a cure period on January 27, 2006 in Francis does it matter whether Busta-mante’s defective petition was filed at 5:04 p.m. rather than 6:04 p.m. Francis, 186 S.W.3d at 543. Assuming his petition was filed at 5:04 p.m., it was statutorily defective for failing to include, as of 6:00 p.m. on January 2, 2006, information that is important to the purpose of the statute. That should end the dispute. The other fact issues come into play only because the Court decided in Francis that if a party chair does not catch facial “technical” or “minor” defects before the deadline, the candidate is entitled to an opportunity to cure a defective petition after the filing deadline. See id. It is a mystery why the state party chairs have to do the work for the candidates, but that is the law now. These factual questions would not be important to the Court today if it had not previously extended the filing deadline. Predictably, this case is the result of Francis and Holcomb.

The Court’s opinions in Francis, Holcomb, and this case raise a number of concerns. Even if one accepts that it was proper for the Court to create a cure period beyond the statutory deadline, we had previously established a high hurdle for extending the deadline. “[I]t is an extraordinary departure from the careful planning of the legislature, and not to be invoked lightly.” In re Gamble, 71 S.W.3d 313, 318 (Tex.2002). The holdings in Francis, Holcomb, and this case indicate, instead, that extending the filing deadline is no longer extraordinary. The new cure period apparently applies to any disqualifying mistakes on a judicial petition, without regard to whether they are minor or major, technical or substantive. In Francis, the Court recognized that the Code’s requirement that the petition identify the office for which a candidate is running is important to prevent fraud or voter confusion. 186 S.W.3d at 551. Nevertheless, the Court characterized the omissions as “technical” or “minor” defects and allowed a post-deadline cure. Id. In Holcomb, the Court recognized that a petition with duplicate signatures was invalid and yet allowed a candidate to obtain replacement signatures after the deadline. See Holcomb, 186 S.W.3d at 555. In this case, Bustamante was short at least half the 250 signatures required by statute, yet the Court allows him an opportunity to show he could cure disqualifying defects.

Francis, Holcomb, and this case raise other problems. Our legal system is now faced with election challenges from persons whose filings were demonstrably and admittedly inadequate as of the filing deadline, which likely would not have been countenanced before Francis and Holcomb. And the Court must now define new standards to implement the holdings of these cases: How long is a “cure period”? If filing a petition more than 50% short of the required quantity of signatures is a technical mistake entitling the filer to cure, which defects, if any, cannot be cured after the filing deadline? The Court says only facial “technical” or “minor” defects can be cured post-deadline, as was the case in Gamble, but, as shown, the purview of those terms must be significantly widened for that to be so after Francis and Holcomb. How long before the filing deadline must an application or petition be filed to have been filed “early” enough to entitle the applicant to fix a defective petition? See Gamble, 71 S.W.3d at 318 (Section 141.032 “serves as a safety net for candidates who file their applications early in the filing period .... ”). In In re Sharp, 186 S.W.3d 556, 557, 2006 WL 197604 (Tex.2006), the Court granted the candidate the opportunity to cure a presumed defective petition filed the day of the deadline, notwithstanding Gamble’s holding that such equitable relief may be considered only for parties who file their applications “early in the filing period.” Gamble, 71 S.W.3d at 318. In Francis, the Court cited the same early filing requirement, 186 S.W.3d at 540-41, but for no apparent purpose, as the Court ignored the requirement that very day when it issued Sharp. Under the facts of this case, the Court concludes that filing less than an horn* before the deadline is early enough to entitle the applicant to an opportunity to effect post-deadline compliance. None of these problems exist in the language of the Election Code; the Court created them.

The Court attempts to bring this case under the umbrella of Gamble. Gamble involved what was truly a clerical error— all petition pages correctly indicated the 270th District Court, but the cover application indicated the 190th District Court. 71 S.W.3d at 315. Judge Gamble filed an application and petition with all the necessary information, including all required signatures. Id. Judge Gamble also filed his application two weeks before the deadline, not an hour or a few days before the deadline. Id. These facts distinguish Gamble from Francis, Holcomb, and this case.

Legally, Gamble was also a different animal. In Gamble the Court warned against extending the filing deadline and did not lightly discard it. Id. at 318. The Gamble Court did not allow a candidate to file, for the first time, a petition that included information necessary to avoid impairing the purpose of the statute four weeks after the Legislature’s deadline. Moreover, the Court contradicts Gamble in holding that Francis only applies to “defective filings that have been erroneously approved.” Francis, 186 S.W.3d at 543. The party official in Gamble did not approve but rejected the application. 71 S.W.3d at 315. The reasoning in Gamble was ostensibly followed in Francis, but Gamble was limited to candidates who file their applications early in the filing period. Id. at 318. It would ridicule logic to attempt to argue that Bustamante filed early. The Court, therefore, has issued two contradictory standards on this point. I do not hazard a guess as to which is controlling. This case is not Gamble, and neither are Francis and Holcomb. Sharp is procedurally distinguishable from all three of these cases.

II.

I will respond to the Court’s critiques.

The Court says that Bustamante did not admit that his petition was not compliant on the January 2 filing deadline. The record speaks for itself. First, Busta-mante states that he will prove that he filed early enough “to allow for corrections” in his petition, and he never argues that his January 2 petition was valid. Second, Respondent Soechting, the Democratic party chair, told Bustamante by letter dated January 9 that his application filed on January 2 was rejected. It was defective for failure to “correctly and completely acknowledge” the signatures on the petition. Nothing in the record shows that Bustamante challenged the party chair’s conclusion that his January 2 filing lacked proper acknowledgments on the petition. Bustamante took no action to gain a place on the ballot until after the Court issued Francis and Holcomb, at which time he sought an opportunity to resurrect a non-compliant filing. Finally, the Court acknowledges, as it must, that Bustamante’s petition on file as of the deadline was defective. See 186 S.W.3d at 560 (One factual dispute is “whether Bustamante could have cured any facial errors before the deadline had the State Chair properly notified him of those defects.”). Otherwise, the opportunity to cure would not be needed and the evidentiary hearing ordered by the Court would be a waste of time.

The Court suggests that Bustamante’s January 2 petition included enough signatures to satisfy the Election Code. One requirement for a signature on a petition to be valid under section 141.063(3) of the Election Code is that each “part of the petition” in which the voter’s signature appears includes a circulator’s affidavit. The circulator’s affidavit states the circulator read certain information to the signer, witnessed each signature, verified each signer’s registration status, and believes each signature to be genuine. TEX. ELEC. CODE § 141.065. To be certified as a candidate for a place on a court of appeals, a candidate must obtain 250 valid signatures. Id. § 172.021(e). On the filing deadline, Bustamante filed a petition to be certified as a candidate for the Court of Appeals for the Fourth District, Place 5, in which only two of the 42 petition pages have a signed circulator’s affidavit. Whether the reference to “part” in section 141.063(3) requires each page or each section of a petition to have a signed circulator’s affidavit, Bustamante did not supply 250 valid signatures by the statutory deadline.

The Court suggests that Bustamante’s petition contains over 400 valid signatures. The face of Bustamante’s filing shows that, as of the deadline on January 2, he had no more than 20 signatures on petition pages with signed circulator affidavits. Neither Bustamante nor the Democratic party chair argue that the two circulator affidavits signed by Bustamante validate larger “parts” of his petition. However, even if the statute’s reference to “parts” refers to groups of petition pages, Bustamante still lacks the required 250 signatures for several reasons. First, the petition is not divided into discernable sections; there are not multiple, defined “parts.” At best, a circulator’s affidavit might apply not only to the page containing it but also to subsequent consecutive pages circulated by the same person. Here, the first petition page includes a circulator affidavit signed by Bustamante designated as “Page 1 of 28,” followed by a single unsigned petition page. Mary Cortez is identified as the circulator of the next two pages, although both pages lack a signed circulator affidavit. The next 29 pages do not identify a circulator or include a signed circulator affidavit. The final grouping of nine pages begins with a page identifying Bustamante as circulator, includes a signed affidavit, and is designated “Page 1 of 15” even though there are only 8 pages that follow it. Bustamante does not attempt to reconcile this contradictory information in his filing or define the “parts” of his petition. Even giving Bustamante the benefit of the doubt and creating “parts” from the face of his petition, he falls almost 150 signatures short of the required 250. Notably, the Court does not assert that the 400 signatures were valid or even that more than 20 are valid.

The Court should clearly state the rule of law established by its recent holdings. Texas has to live with the opinions in Francis, Holcomb, and this case. They affect every Texan when used to determine which candidates may be certified for elective office. The Court should at least be clear so that this new law can be consistently applied by judges and understood by the public and the bar. The new regime established in Francis, Holcomb, and this case can be simply stated: The Court extends the filing deadlines for virtually any defects in a candidate’s petition, irrespective of whether the defects are technical or substantive and whether the filing was at the last minute or early in the filing period.

III.

The Francis and Holcomb opinions changed the legal landscape for applicants seeking certification to become candidates for judicial office. In this case, the Court wrestles with the problems these opinions created. Fortunately, the February 21 deadline to contest candidate applications has passed; otherwise, there would be more disruption caused to the election process, and I suspect we would see more of these cases. See TEX. ELEC. CODE § 141.034(a).

      .See In re Francis, 186 S.W.3d 534, 2006 WL 197976 (Tex.2006); In re Holcomb, 186 S.W.3d 553, 2006 WL 197599 (Tex.2006); In re Sharp, 186 S.W.3d 556, 2006 WL 197604 (Tex.2006).

      . See TEX. ELEC. CODE § 172.023(a).

      . Francis, 186 S.W.3d at 543.

      . Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990).

      . See TEX. ELEC. CODE § 141.032(c).

      . See id. % 141.032(a).

      . See Francis, 186 S.W.3d at 545.

      . See TEX. ELEC. CODE § 141.063(a)(3)-(4).

      . In re Gamble, 71 S.W.3d 313, 318 (Tex.2002).

      . TEX. ELEC. CODE § 141.032(c) ("If an application is accompanied by a petition, the petition is considered part of the application”).

      . Id. § 141.032(c), (e).

      . See TEX. R. APP. P. 52.3(e); The Republican Party of Texas v. Dietz, 940 S.W.2d 86, 93-94 (Tex.1997).

      . There are a number of other irregularities in Bustamante's petition that are unnecessary to discuss at this time.

      . The Texas Democratic Party sent Busta-mante a letter, dated January 9, 2006, stating that his filing for the Fourth Court of Appeals, Place 5, "was rejected because a determination could not be made that your petitions were correctly and completely acknowledged and therefore fulfilled the requirements of form, content and procedure.”

      . According to the Court, the purpose of having a party chair review a candidate's filings as soon as practicable must be to allow the candidate to cure defects after the filing deadline that were not caught by the chair. See Francis, 186 S.W.3d at 539; see also In re Holcomb, 186 S.W.3d 553, 554 (Tex.2006). In addition to the other problems discussed, the Court’s conclusion elevates the party chair’s role in the election process. The more likely purpose of the required review by the party chair is to identify the pool of applicants who satisfy statutory requirements to be certified as candidates as of the filing deadline. This allows the pool of candidates and the election machinery to proceed in an orderly process through the campaign to the election. Some person or entity must perform the function of certifying candidates. In some states, the secretary of state or other government official accepts candidate applications and certifies candidates. See, e.g., CAL. ELEC. CODE § 8100 (requiring primary election nomination documents to be filed either with the Secretary of State or the county election official, depending on the office); FLA. STAT. ch. 99.061 (2005) (specifying that each person seeking to qualify for nomination or election must file qualification papers with the Department of State or the local election supervisor, depending on the office). For statewide elections in Texas, the party chair performs this function. See TEX. ELEC. CODE § 141.032.

      . Sharp offered this Court no explanation why he could not seek relief from the trial court or court of appeals, as required by our rules of appellate procedure unless there is a compelling reason not to do so. TEX. R. APP. P. 52.3(e); Sharp, 186 S.W.3d at 557 (Johnson, J., dissenting).

      . The pages apparently circulated by Cortez are numbered “1 of 3” and "2 of 3,” but the page designated "3 of 3” appears later in the pages of the petition. Because her pages were numbered, these pages are at least arguably a separate "part” of the petition, even though they are not consecutive in his filing.

      . The Court states that Bustamante challenges the authenticity and veracity of the petition pages in the mandamus record. I presume this is a reference to the following unintelligible statements contained in his “Repsonse [sic] to Statement of Facts”:
      The relator’s facts are objected to as, [sic] unauthenticated, hearsay, and a misstatement of the facts. Specifically unauthenticated Texas Democratic Party official [sic]. Hearsay statements by Jim Boynton, a Texas Democratic Party official [sic], I would all [sic] object to all faxes as hearsay and unverified or certified and true and correct records. I would object to any copies of applications and the accompanying 43 [though the record contains only 42] pages of petitions.
      I assume the Court is able to decipher a valid objection from these hieroglyphics.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WAL-MART STORES, INC., Petitioner, v. Kathy SPATES, Respondent.
    No. 04-1046.
    Supreme Court of Texas.
    Feb. 24, 2006.

      John Andrew Ramirez, Connie Hawkins, Bush & Ramirez, P.C., Houston, for Petitioner.
    Marion D. Allen, Robert T. Rice & Associates, Angleton, for Respondent.
   PER CURIAM.

In Wal-Mart Stores, Inc. v. Reece, this Court unanimously held that the mere proximity of an employee to a spill, without evidence of when or how it came to be on the floor, was legally insufficient to charge a premises owner with constructive notice of the hazard. 81 S.W.3d 812, 816-17 (Tex.2002). Five months later, the 149th District Court of Brazoria County granted summary judgment in a similar case involving the same retailer, in which the only evidence of constructive notice was the proximity of an employee to a hazard, again with no evidence of when or how it came to be on the floor.

The appeal was transferred to the Thirteenth Court of Appeals, which reversed. 144 S.W.3d 657 (Tex.App.-Corpus Christi 2004). Although citing our opinion in Reece, the court chose to rely instead on one of the cases we specifically disapproved in that opinion. Id. at 660 (citing Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19 (Tex.App.-San Antonio 2000, no pet.), disapproved, Reece, 81 S.W.3d at 816 n. 1). Accordingly, we reverse.

In her summary judgment affidavit, Kathy Spates avers that while shopping in the soft-drink aisle at a Wal-Mart in Lake Jackson, “her toe and sandal became entangled in an empty plastic six-pack ring,” causing her to go down on one knee and extend her shoulder upward, injuring the latter. The ring “was directly behind” a Wal-Mart employee, “within 3-5 feet of her.” “At no time was there any other person on the aisle [other than the employee] for at least 30-45 seconds.”

Spates concedes there is no evidence that Wal-Mart created or knew of the hazard. Instead, she relies on constructive notice, which requires proof that an owner had a reasonable opportunity to discover the defect. Reece, 81 S.W.3d at 813. As we explained in Reece, that question requires analyzing the combination of proximity, conspicuity, and longevity:

[I]f the dangerous condition is conspicuous as, for example, a large puddle of dark liquid on a light floor would likely be, then an employee’s proximity to the condition might shorten the time in which a jury could find that the premises owner should reasonably have discovered it. Similarly, if an employee was in close proximity to a less conspicuous hazard for a continuous and significant period of time, that too could affect the jury’s consideration of whether the premises owner should have become aware of the dangerous condition.

Id. at 816.

While a Wal-Mart employee was near this clear plastic ring, the only evidence is that it was behind her as she worked on the shelves. Thus, the sole question is whether Spates’s testimony that the plastic ring “had to have been on the floor” for 30 to 45 seconds establishes the employee’s proximity for “a continuous and significant period of time.” We hold it does not.

We review a summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 822 & 823 (Tex.2005). The only evidence here is that the alleged hazard was behind an employee’s back for 30 to 45 seconds. To find constructive knowledge, jurors would have to find the employee should have noticed the plastic ring behind her. Had there been evidence it had been on the floor for an extended period of time, reasonable jurors might assume that the employee should have seen it unless she sidled into the aisle or never took her eyes off the shelves. But on this record, that would be pure speculation.

Accordingly, we hold the summary judgment record contained no evidence that Wal-Mart should have discovered the six-pack ring Spates alleges was hazardous. Consistent with Reece, the Thirteenth Court of Appeals should have affirmed. As it did not, we reverse the latter’s judgment and reinstate the trial court’s summary judgment.


text:
    THE RAY MALOOLY TRUST, Petitioner, v. Chris JUHL and Maria Juhl, Respondent.
    No. 04-0685.
    Supreme Court of Texas.
    Feb. 24, 2006.

      Paul Frederick Grajeda, Joe Rosales, El Paso, for Petitioner.
    John P. Mobbs, El Paso, for Respondent.
   PER CURIAM.

The trial court entered and the court of appeals affirmed a judgment for $351,352 against “The Ray Malooly Trust.” The latter appeals, pointing out that a trust is not a legal entity. While the point is well-taken, we deny the petition for review as it was waived.

The Juhls sued the Trust in May 1999, alleging a breach of lease. More than three years later, on the day trial began, the Trust filed a verified answer stating for the first time that “Defendant, The Ray Malooly Trust does not have capacity to be sued.” The trial court denied leave to file the amended pleading on grounds of surprise. See TEX. R. CIV. P. 63.

The court of appeals stated that “a number of Texas cases indicate a trust may be named as a party -without inclusion of a trustee.” But a number of cases from this Court indicate the opposite. As we said in Huie v. DeShazo, “[t]he term ‘trust’ refers not to a separate legal entity but rather to the fiduciary relationship governing the trustee with respect to the trust property.” 922 S.W.2d 920, 926 (Tex.1996) (holding that treating trust rather than trustee as attorney’s client “is inconsistent with the law of trusts”). The general rule in Texas (and elsewhere) has long been that suits against a trust must be brought against its legal representative, the trustee. See Werner v. Colwell, 909 S.W.2d 866, 870 (Tex.1995); Smith v. Wayman, 148 Tex. 318, 224 S.W.2d 211, 218 (1949); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 382 (1945).

The court of appeals noted that the Code Construction Act specifies that “person” includes a “... business trust, estate, trust, partnership, association, and any other legal entity.” TEX. GOV’T CODE § 311.005(2). But the Code Construction Act addresses the construction of state codes, not the capacity to sue or be sued. Id. at § 311.002. For example, the Act includes estates as statutory “persons,” but an estate is nonetheless “not a legal entity and may not properly sue or be sued as such.” Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005).

Moreover, the definitions in the Code Construction Act apply unless other statutes or contexts require a different definition. TEX. GOV’T CODE § 311.005(2). The most relevant code — the Texas Trust Code — explicitly defines a trust as a relationship rather than a legal entity. See TEX. PROP. CODE § 111.004(4). It states that trustees “may compromise, contest, arbitrate, or settle claims” against a trust. Id. § 113.019. It validates payments to and conveyances from a trustee, even if the trustee absconds with the proceeds. Id. §§ 114.081, 114.082. And since the trustee is “the person holding the property in trust,” id. § 111.004(18), a judgment against that property must be brought against the person who holds it.

The court of appeals pointed to a Trust Code provision stating that in contract cases, “the plaintiff may sue the trustee in his representative capacity, and a judgment rendered in favor of the plaintiff is collectible by execution against the trust property.” Id. § 114.084(a). From the use of “may,” the court implied that plaintiffs could sue trusts in other ways too. But the word “may” (unless context or other statutes indicate otherwise) “creates discretionary authority or grants permission or a power." TEX. GOV’T CODE § 311.016(1) (emphasis added). In the context of the Trust Code as a whole, this provision grants contract claimants permission or power to sue the trustee, not to sue someone else.

This is not to say that the Legislature could not allow suit by or against a trust in its own name. See, e.g., TEX. REV. CIV. STAT. art 6138A, § 6.10(A)(2) (authorizing real estate investment trusts to “sue and be sued, complain and defend, in its trust name”). But there is no pleading, evidence, or argument that the Legislature has done so by specific provisions here.

Nevertheless, while the court of appeals incorrectly reasoned that a trust can sue or be sued directly, it reached the right result here because the Trust waived any objection to capacity by filing its verified pleading too late. See TEX. R. CIV. P. 98(1). “[Pjarties who do not follow rule 93’s mandate waive any right to complain about the matter on appeal.” Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996).

“Civil suits may be maintained only by or against parties having an actual or legal existence.” Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex.1995). If a legal representative makes a general appearance in that capacity, the judgment is treated as if it were against the legal entity, even if the latter is never named. See Werner, 909 S.W.2d at 870; Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.1987).

Here, the Trust answered discovery “by and through its trustee, Raymond Malooly.” Malooly was deposed, and he testified at trial. By failing to raise a timely objection to capacity, he waived any objection that judgment had to be rendered against the Trust, rather than himself as trustee.

The remaining points in the Trust’s petition do not demonstrate that the court of appeals committed any other error of law. TEX. GOV’T CODE § 22.001. Accordingly, the petition for review is denied.

      . At the end of the trial, the trial court orally granted leave to file a trial amendment conforming the defendant’s pleadings to evidence that the Trust was dissolved several years before trial, an issue the Trust does not pursue here. This trial amendment did not include whether the Trust was a legal entity, as defense counsel admitted this was something "that didn’t come up in our examination of the witnesses.”

        .Accord, Bonner v. Henderson, 147 F.3d 457, 459 (5th Cir.1998); Firestone v. Galbreath, 976 F.2d 279, 284 (6th Cir.1992); Coverdell v. Mid-South Farm Equip. Assoc., 335 F.2d 9, 13-14 (6th Cir.1964); Moeller v. Superior Court, 16 Cal.4th 1124, 69 Cal.Rptr.2d 317, 947 P.2d 279, 283 n. 3 (1997); Western Life Trust v. State, 536 N.W.2d 709, 712 (N.D.1995); Courtemanche v. Bibbo, 2004 WL 2820943 at *4 (R.I.2004); Morrison v. Lennett, 415 Mass. 857, 616 N.E.2d 92, 94 (1993).

      . See also BLACK'S LAW DICTIONARY 1000 (8th ed. 2004) ("In dozens of cases, courts have held may’ to be synonymous with ’shall’ or ‘must.’ ”).

      . See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003)(holding legislative intent is determined by reading statute as a whole and interpreting it to give effect to all and not just isolated portions).


text:
    FIDELITY AND GUARANTY INSURANCE COMPANY, Petitioner, v. DREWERY CONSTRUCTION COMPANY, INC., Respondent.
    No. 05-0295.
    Supreme Court of Texas.
    Feb. 24, 2006.

      Douglas J. MeCarver, Nacogdoches, for Respondent.
    Gregory M. Weinstein, Shawn Malcolm McCaskill, Dennis M. Weinstein, Godwin Gruber, LLP, Julia F. Pendery, Daon M. Ward, Godwin Pappas Langley Ronquillo, LLP, Dallas, for Petitioner.
   PER CURIAM.

In this suit on a surety bond, Drewery Construction Company, Inc., a subcontractor, obtained a default judgment for $158,181.05 plus interest and attorney’s fees against Fidelity and Guaranty Insurance Company, surety for the general contractor, JenCra, Inc. Fidelity filed a motion for new trial explaining that the service papers had been lost. The trial court denied the motion, and the court of appeals affirmed. 188 S.W.3d 672, 2005 WL 468323. Fidelity asserts three grounds for reversal, the last of which is well-taken. Accordingly, we reverse.

First, Fidelity complains of a minor omission in the citation. Rule 99 requires (among other things) that citation be directed to the defendant and show the names of parties. TEX. R. CIV. P. 99(b)(7)-(8). Citation here was correctly addressed to “Fidelity and Guaranty Ins. Co.” but the style of the case listed only “JenCra, Inc. & Fidelity and” due to space constraints, omitting the remainder of Fidelity’s title.

The parties cite and rely on cases concerning restricted appeals (or before 1997, writs of error). But this appeal is from a motion for new trial. A brief review of the differences in these procedures shows why cases concerning one do not necessarily apply to the other.

A restricted appeal is filed directly in an appellate court. See TEX. R. APP. P. 30. As in any other appeal, the appellate court does not take testimony or receive evidence. Instead, the review is limited to errors apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004). In such appeals, “[tjhere are no presumptions in favor of valid issuance, service, and return of citation.” Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (citations omitted). Circumstances require this last rule, because presumptions can neither be confirmed nor rebutted by evidence in an appellate court. Thus, for example, if the citation says an amended petition was attached (which named the defaulted party) and the return says the original petition was served (which did not), an appellate court cannot tell from the record which is true. Id. Similarly, if the petition says the registered agent for service is “Henry Bunting, Jr.” but the citation and return reflect service on “Henry Bunting,” an appellate court cannot tell whether those persons are different or the same. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex.1985).

By contrast, when a default judgment is attacked by motion for new trial or bill of review in the trial court, the record is not so limited. In those proceedings, the parties may introduce affidavits, depositions, testimony, and exhibits to explain what happened. See Gold v. Gold, 145 S.W.3d 212, 214 (Tex.2004) (per curiam). That being the case, these procedures focus on what has always been and always should be the critical question in any default judgment: “Why did the defendant not appear?”

If the answer to this critical question is “Because I didn’t get the suit papers,” the default generally must be set aside. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (“Failure to give notice violates the most rudimentary demands of due process of law.”); Caldwell v. Barnes, 154 S.W.3d 93, 96-97 (Tex.2004). Exceptions to this rule exist when nonreceipt is uncorroborated, see Primate Constr., 884 S.W.2d at 152, or was a bill-of-review claimant’s own fault, see Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex.2004).

But if the answer to the critical question is “I got the suit papers but then ...,” the default judgment should be set aside only if the defendant proves the three familiar Craddock elements. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939) (requiring new trial if defendant shows (1) default was neither intentional nor conscious indifference, (2) meritorious defense, and (3) new trial would cause neither delay nor undue prejudice).

In this case, undisputed evidence presented on the motion for new trial showed that Fidelity’s registered agent received the suit papers. Thus, the only relevance of the partial omission of Fidelity’s name is its possible role in the Crad-dock analysis. While errors in suit papers might mislead a defendant into failing to answer, Fidelity makes no such assertion here. Because Fidelity’s failure to answer had nothing to do with this omission, it provides no ground for setting aside the default judgment by motion for new trial.

Second, Fidelity argues that the default should be set aside because it was served with Drewery’s original petition, which was later amended before the default judgment. But the only difference in the two petitions was an amendment to allow long-arm service on JenCra by serving the Secretary of State. See generally TEX. CIV. PRAC. & REM. CODE, Chapter 17. Service of an amended petition on a party that has not appeared is necessary only when a plaintiff “seeks a more onerous judgment than prayed for in the original pleading.” Weaver v. Hartford Accident & Indem. Co., 570 S.W.2d 367, 370 (Tex.1978). That was not the case here.

Fidelity’s last argument finds better traction. Of the three Craddock elements needed to set aside a default, Drew-ery argues, and the court of appeals held, that Fidelity failed to establish only the first — whether the default was the result of accident or mistake.

Fidelity attached four affidavits to its motion for new trial that establish the following facts. Fidelity’s registered agent for service, Corporation Service Company (CSC), received Drewery’s petition and citation. Though in the ordinary course of business CSC would forward an electronic scan of the documents to a Fidelity affiliate, computer records show this never occurred. As a backup, in the ordinary course of business CSC would forward the service documents themselves to the same affiliate, where they were compared with the electronic copy and then discarded after 90 days. As 90 days had passed before Fidelity learned of the default, all the records received during that time had been discarded. Thus, neither CSC nor Fidelity could verify whether Drewery’s suit papers were actually forwarded by CSC to Fidelity. CSC averred that an employee of Fidelity’s affiliate “acknowledged receipt of the Petition,” but the Fidelity agent who should have received them averred that she never did.

The court of appeals refused relief on the ground that Fidelity’s affidavits did not explain what happened to the service documents:

[T]here is no affidavit from a person who actually handled the citation explaining how the citation was lost or where in the chain of communication a breakdown occurred that led to Fidelity’s failure to answer the citation. In this case, none of the affidavits Fidelity submitted explain what happened to the citation. Each affidavit stated that Fidelity’s failure to answer was not intentional. However, a trial court cannot vacate a default judgment based only upon general allegations or conclusions.

188 S.W.3d at 679, 2005 WL 468323, at *5-6 (citations omitted).

We disagree that Fidelity’s four affidavits were general or conclusory. To the contrary, they detail the procedures for handling service papers in general and what is known about Drewery’s papers in particular. In the case of the electronic records, they explain precisely where the breakdown occurred — at data entry by CSC.

We also disagree that to establish that papers were lost there must be an affidavit from the person who lost them describing how it occurred. People often do not know where or how they lost something — that is precisely why it remains “lost.” This Court has often set aside default judgments when papers were misplaced, though no one knew precisely how. See Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex.1994) (reversing default when investigator averred that she believed suit papers were inadvertently included among files transferred to another adjustment company); Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex.1993) (reversing default when unidentified person signed for papers and never delivered them to executrix); Hanks v. Rosser, 378 S.W.2d 31, 32, 36 (Tex.1964) (reversing default when druggist testified he placed suit papers “on his prescription counter,” that he “just lost them” and “never did find them”).

We agree that a conclusory statement that documents were “lost” must generally be supported by some explanation from the person most likely to have seen them, or of the efforts made to find them. But the Craddock standard is one of intentional or conscious indifference — that the defendant knew it was sued but did not care. An excuse need not be a good one to suffice. See Craddock, 138 S.W.2d at 125.

The affidavits here show neither intent nor indifference. Instead, they detail Fidelity’s efforts to establish a system that would avoid precisely what happened. As Drewery did not controvert this proof, the trial court was not at liberty to disregard it. See Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex.1994).

Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 59.1.

      . Receiving suit papers or actual notice through a procedure not authorized for service is treated the same as never receiving them. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990).

      . Fidelity asserted as a meritorious defense that Dreweiy did not file a timely claim on the surety bond and could not produce written change orders. Fidelity asserted and Drewery did not deny that a new trial would not cause delay or undue prejudice. See Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex.2005) (per curiam).

      . Compare Freeman v. Pevehouse, 79 S.W.3d 637, 645 (Tex.App.-Waco 2002, no pet.) (affirming default in absence of affidavit from any employee at insurer's address to which citation was faxed); BancTEXAS McKinney, N.A. v. Desalination Sys., Inc., 847 S.W.2d 301, 302-03 (Tex.App.-Dallas 1992, no writ) (affirming default in absence of affidavit from bank president upon whom citation was served); Motiograph, Inc. v. Matthews, 555 S.W.2d 196, 197 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.) (affirming default as affidavit stated only that citation was "inadvertently misplaced” by unnamed employee); with Gen. Life and Accident Ins. Co. v. Higginbotham, 817 S.W.2d 830, 832 (Tex.App.-Fort Worth 1991, writ denied) (reversing default as proof showed citation was mistakenly filed rather than forwarded to proper officials for answer, even though there was no explanation as to when or how misfiling occurred).


author: LESLIE BROCK YATES, Justice.

text:
    AUTONATION, INC. and Auto M. Imports North Ltd. d/b/A Mercedes-Benz of Houston-North, Appellants, v. Garrick HATFIELD and A-Rod OC, L.P., Appellees.
    No. 14-05-00350-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 10, 2005.
    Rehearing Overruled Feb. 2, 2006.

      Ruth Ann Norton Daniels, Amanda M. Inabnett, for appellants.
    Andrew S. Golub, J. W. Beverly, Houston, for appellees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

LESLIE BROCK YATES, Justice.

This is an accelerated appeal from a temporary injunction. Trial court proceedings have been stayed until disposition of the appeal. Appellants challenge the trial court’s order granting a temporary injunction. We affirm.

Appellee Garrick Hatfield was formerly employed in Texas by appellant Auto M. Imports, which is owned by appellant Au-tonation. When hired by Autonation, Hatfield signed an employment contract and a second contract that included a non-compete agreement. The non-compete agreement contained a forum selection provision requiring lawsuits to be filed in Broward County, Florida. In January 2005, Hatfield resigned from his position at Autonation and told management he was accepting a position with appellee A-Rod OC, Ltd., which is another auto dealership. After Hatfield began employment with A-Rod, Autonation filed suit against Hatfield in Florida, alleging breach of the non-compete agreement.

Approximately one month later, Hatfield filed suit against Autonation in Texas, seeking a declaratory judgment that the non-compete agreement was unenforceable. Hatfield also filed an application for a temporary injunction to prevent Autonation from enforcing the non-compete agreement in the Florida court. Autonation filed a response, requesting dismissal or a stay of the suit pending disposition of the Florida action. The trial court denied all requests but indicated that the case would be set for a quick trial. In a telephone hearing the next day, Hatfield claimed Autonation had filed a pleading in the Florida action that interfered with Texas’s jurisdiction. The trial court signed an order granting the temporary injunction, which restrained Autonation from taking any further action in the Florida lawsuit. Autonation was also restricted from re-filing its non-compete suit in any court outside of Texas.

Autonation claims the trial court abused its discretion in granting the anti-suit injunction. Specifically, Autonation claims the trial court’s ruling furthered improper invocation of the Texas Declaratory Judgment Act, ignored principles of comity, interfered with the Florida court’s dominant jurisdiction, and failed to enforce the parties’ selected forum. During oral argument, Autonation raised the additional argument that the trial court’s order is void because it does not meet the requirements of Texas Rule of Civil Procedure 683.

The- principle of comity requires courts to enjoin foreign suits “sparingly, and only in very special circumstances.” Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex.1986). An anti-suit injunction is proper in four instances: “1) to address a threat to the court’s jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation.” Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996). The party seeking the injunction must show that clear equity entitles him to the injunction. Id. A single parallel proceeding in a foreign forum does not constitute a multiplicity of suits, nor does it constitute clear equity. Id.

The Texas Supreme Court has said that a mirror image proceeding does not constitute a special circumstance requiring an anti-suit injunction. Id. A parallel suit must be allowed to proceed “absent some other circumstances which render an injunction necessary ‘to prevent an irreparable miscarriage of justice.’ ” Id. at 652 (quoting Gannon v. Payne, 706 S.W.2d 304, 307 (Tex.1986)). Appellees contend the anti-suit injunction was necessary to prevent evasion of fundamental Texas public policy regarding enforcement of non-competition agreements under DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex.1990). Appellees argue that the Florida court will apply Florida law, which is sufficient to show that an irreparable miscarriage of justice would occur without an injunction.

In DeSantis, the supreme court held that the issue of whether non-compete agreements are reasonable restraints upon employees in this state is a matter of Texas public policy and that this policy is fundamental because it ensures a uniform rule for enforcement of such agreements in this state. Id. at 680-81. Because the enforcement of non-compete agreements involves a fundamental Texas policy and because applying another state’s law would be contrary to that policy under the circumstances of the case, the DeSantis court held that Texas law must apply. Id. at 681.

Appellees presented the trial court with a Florida case that involved a non-competition agreement between Autonation and a Texas defendant. See AutoNation, Inc. v. Hankins, No. 03-14544 CACE (05), 2003 WL. 22852206 (Fla.Cir.Ct.2003). In Hankins, the Florida court addressed the Texas defendant’s claim that Texas law should apply. Id. at *7. Hankins argued that the parties’ contractual choice of law should not be honored because, based on DeSan-tis, Texas has a materially greater interest in deciding whether the agreement should be enforced. Id. The Florida court noted that in Florida, a choice of law provision is presumptively valid unless the law of the chosen forum contravenes the strong public policy of the forum state. Id. The court, finding that Hankins had not proven that “applying Florida law to this dispute contravenes strong Florida public policy,” held that the parties’ choice of Florida law would control. Id. Applying Florida law, the court found that Autonation had met its prima facie burden of showing that the non-compete agreement was enforceable. Id. at *9-12.

Based on Hankins, appellees claim they have established that a Florida court will apply Florida rather than Texas law and that the Florida court will uphold the non-compete covenant. We agree with appel-lees that Hankins demonstrates the Florida court would apply Florida law to the suit concerning enforcement of the non-competition agreement. Furthermore, because the law of Florida rather than Texas would be applied in the Florida lawsuit concerning enforcement of the non-compete agreement, a fundamental Texas pub-lie policy, as enunciated in DeSantis, would be subverted. Thus, Autonation has not established that the trial court abused its discretion in enjoining the proceeding in Florida.

Autonation also asserts that the trial court abused its discretion in issuing the injunction because the injunction allowed improper invocation of the Texas Declaratory Judgment Act and ignored principles of comity. These arguments were raised in Space Master International, Inc. v. Porta-Kamp Manufacturing Co., 794 S.W.2d 944 (Tex.App.-Houston [1st Dist.] 1990, no writ), a case involving three suits pending in Texas, New Jersey, and Massachusetts. The Texas suit was a declaratory judgment action asserting that the contracts were usurious. Id. at 945. In that case, on appeal from the trial court’s grant of appellee’s motion to dismiss, the appellate court affirmed and noted that in addition to comity, an action for declaratory judgment “ ‘will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action.’ ” Id. at 946-47 (quoting Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970)). The court further noted that Space Master should not be allowed to use declaratory relief as a means of forum-shopping. Id. at 948.

Autonation argues that Space Master applies to this case and that we should find the injunction issued by the trial court improper because it violates the principles of comity and allows appellees to use declaratory relief as a means of forum shopping. Space Master, however, did not involve a matter of fundamental public policy, and we find this to be a crucial distinction. Because the Texas Supreme Court has held that fundamental Texas public policy requires application of Texas law to the question of enforceability of a non-compete agreement, we are unable to hold that the trial court abused its discretion in issuing an injunction to halt the Florida proceeding and allow the Texas case to proceed to trial.

Finally, we turn to AutoNation’s argument that the trial court’s order does not meet the requirements of Texas Rule of Civil Procedure 68B, which governs temporary injunction orders. Appellees have filed a post-submission brief challenging this argument, claiming Autonation waived it by failing to preserve error in the trial court or raise this argument in its brief. Autonation responds that the failure to comply with the requirements of Rule 683 renders the trial court’s order void and that defects that render an injunction order void cannot be waived.

This court has held that the failure of a temporary injunction order to meet the requirements of Rule 683 renders it void and requires reversal even if this issue is not'timely raised. See, e.g., Arrechea v. Plantowsky, 705 S.W.2d 186, 189 (Tex.App.-Houston [14th Dist.] 1985, no writ). Thus, we agree with Autonation that we must address this issue.

To obtain a temporary injunction, a party must usually plead and prove the following elements: (1) a cause of action against the defendant, (2) a probable right to relief, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). However, the order need only state why injury will occur if a temporary injunction is not granted. State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971).

Rule 683 requires an order granting an injunction to (1) state the reasons for its issuance, (2) be specific in its terms, (3) describe in reasonable detail the act or acts sought to be restrained, and (4) bind only the parties to the action, their officers, agents, employees and attorneys, and those persons in active concert with them who receive actual notice of the order. Tex.R. Civ. P. 683. Merely stating that a party “will suffer irreparable harm” or “has no adequate remedy at law” does not meet the Rule 683 requirement for specificity. Byrd Ranch, Inc. v. Interwest Sav. Ass’n, 111 S.W.2d 452, 454 (Tex.App.-Fort Worth 1986, no writ).

The order in this case provides a lengthy discussion as to why appellees will be injured if the injunction does not issue:

Specifically, the Court finds that Plaintiffs will be injured by the prosecution of litigation in Florida. Such litigation could be carried through to conclusion, judgment entered and Texas forced to respect such judgment pursuant to the Full Faith and Credit Clause of the United States Constitution. Such damage would be irreparable because litigation in Florida will likely apply a legal standard contrary to the public policy of this state as set out more specifically in DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 681 (Tex.1990); Tex. Bus. & Comm.Code § 15.50. Notably, Plaintiffs have cited this Court to a case involving AutoNation and a Texas resident where precisely that result occurred. AutoNation, Inc. v. Hankins, 2003 WL 22852206 (Fl.Cir.Ct., Nov. 24, 2003).
According to caselaw, Florida appears interested only in whether the parties’ choice of law offends Florida’s public policy, not that of any other state. Thus, by litigating in Florida under Florida law, Texas public policy may be thwarted by obtaining enforcement in Florida of restrictive covenants involving Texas citizens [and] Texas places of business that would not be enforceable in Texas.
Prosecution of AutoNation’s Florida litigation threatens to deprive Plaintiffs of rights to have the covenant not to compete tested under Texas law. Were this Court to permit Defendants to litigate in Florida, Plaintiffs would be left with no adequate remedy at law. In-junctive relief is therefore the only remaining appropriate remedy.
On April 6, the day after a lengthy hearing in this Court[,] Defendants evidently sought emergency relief in Florida to enforce the covenant not to compete under Florida law. Texas public policy will likely be thwarted if AutoNation is permitted to litigate enforceability of the restrictive covenants solely in Florida and solely under Florida law. These are Texas public policy questions for resolution by a Texas court applying Texas law. If AutoNation is permitted to proceed in Florida and the court there enters any form of injunction against Hatfield based upon Florida law, both Plaintiffs will suffer irreparable injury. An injunction issued in Florida would restrain Hatfield from working in Texas for whomever he chooses even though it is probable the covenant not to compete is unenforceable in Texas.

Autonation complains that the order is speculative because it notes that appellees “evidently sought emergency relief in Florida.” Autonation further asserts that the trial court abused its discretion by basing the order on arguments raised in a non-evidentiary telephonic hearing, resulting in an order that is necessarily eonclu-sory.

In determining whether an order is sufficiently specific about the probable injury to be suffered, we look only to the order itself. The issues of whether the trial court failed to hold a second eviden-tiary hearing or whether there was sufficient evidence to support the order do not concern the specific injury requirement of Rule 683. Autonation did not raise these additional issues in its brief, and we conclude that they are waived.

We find the order in this case meets the Rule’s requirement of specificity. The order identifies the probable injury that will be suffered by appellees, why the injury is irreparable, and why appellees will have no adequate legal remedy if the injunction does not issue. The order describes the Texas public policy, explains why Florida would not apply Texas law, and states that the injury to appellees would be appellees’ inability to litigate the issue of enforceability of the non-compete clause under Texas law. This order is sufficiently specific to meet the requirements of Rule 688.

Because appellants have not established the trial court abused it discretion, we affirm the trial court’s order granting a temporary injunction.

      . Appellants will be collectively referred to as “Autonation.”

      . In Alpine Gulf, Inc. v. Valentino, 563 S.W.2d 358, 359-60 (Tex.App.-Houston [14th Dist.] 1978, writ ref’d n.r.e.), this court held that it was an abuse of discretion to refuse to stay a suit filed in Texas because the first-filed suit between the same parties and for the same ultimate relief was pending in New York. Alpine Gulf did not involve an anti-suit injunction, and the same party had filed both lawsuits. See id. at 359-60 (citing to two family law cases, Evans v. Evans, 186 S.W.2d 277 (Tex.Civ.App.-San Antonio 1945, no writ) and Mills v. Howard, 228 S.W.2d 906 (Tex.Civ.App.-Amarillo 1950, no writ)).

      . Because the United States Supreme Court has held that contravention of a strong public policy is an exception to enforcement of a forum selection clause, M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), appellees’ showing that Florida would apply Florida rather than Texas law to the non-compete agreement also supports the enjoining of the proceeding in the parties’ contractually selected forum of Florida. See also Holeman v. Nat’l Business Inst., Inc., 94 S.W.3d 91, 99 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (holding that appellant failed to establish abuse of discretion in dismissal of Texas suit in which appellant failed to show Georgia would refuse to apply Texas law).

      . Regarding Autonation’s claim that the trial court violated principles of comity, appellees assert that Texas need not extend comity to a sister state where the foreign sovereign would impose a result that violates Texas's own public policy. In K.D.F. v. Rex, 878 S.W.2d 589 (Tex. 1994), the court addressed the issue of whether the Kansas had extended comity and recognized the sovereignty of Texas or other states under similar circumstances. Id. at 594. Because the real party in interest was unable to show that Kansas would not extend comity, the court treated Kansas as a cooperative jurisdiction and determined that Texas should extend comity to Kansas provided Kansas law does not violate Texas public policy. Id. at 595.
      Appellees assert that Florida will not extend comity to Texas under similar circumstances. However, as with the real party in K.D.F., appellees present no cases supporting that argument. Appellees again cite to the Han-kins case, but Hankins did not concern the principles of comity; it concerned other issues, such as choice of law. See Hankins, 2003 WL 22852206, at *1. Nonetheless, the trial court could have determined from Han-kins that Florida will apply Florida and not Texas law. The trial court further could have found that application of Florida law to this case would violate Texas fundamental public policy under DeSantis.


author: Justice O’NEILL.

text:
    Sandra Lee SELIGMAN-HARGIS, Appellant, v. Larry HARGIS, Appellee.
    No. 05-03-01818-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2006.
    Rehearing Overruled March 23, 2006.

      See also 2003 WL 1753764.

      J. Darlene Ewing, Law Offices of J. Darlene Ewing, Dallas, for appellant.
    Chris Lake, Georganna L. Simpson, Law Office of Georganna L. Simpson, Dallas, for appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice O’NEILL.

Appellant Sandra Lee Seligman-Hargis (Mother) appeals an agreed final decree of divorce. In two issues, Mother generally asserts the trial court did not have jurisdiction to include in its final decree orders regarding child custody. For the following reasons, we reverse in part and dismiss for want of jurisdiction in part.

In February 2002, Mother filed for divorce in Texas. At that time, Mother, Father and their two children were all living in Germany because Father, an employee of the Department of Defense, was stationed there. Mother filed suit in Texas, however, because Father was legally “domiciled” in Texas for the six months preceding suit and was a “resident” of Dallas County. In her petition, Mother did not request the trial court to enter orders regarding custody or support of their children. Instead, she alleged the children were under the jurisdiction of a German court. Father answered and filed a counterpetition. His petition included a suit affecting parent child relationship (SAPCR) requesting the Texas court to make orders for the conservatorship and support of the children. He alleged the children were not under the continuing jurisdiction of any court.

Mother filed a motion to dismiss the SAPCR asserting the Texas court did not have jurisdiction over custody issues under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) because Texas was not the “home state” of the children and because there was a “pending custody matter” before a German court. The trial court conducted a hearing on the motion to dismiss. At the hearing, Mother established a German court had entered orders regarding the children, but only with respect to Mother’s right to establish the children’s residence. After the hearing, the trial court denied the motion.

Mother and Father subsequently entered into a settlement agreement regarding custody, visitation, child support, and division of property. The parties agreed they would cooperate to have the decree registered in Germany with the intent that it be enforced as permitted by law. Pursuant to the settlement, the trial court entered an agreed final decree.

In this appeal, Mother asserts that under the UCCJEA, the trial court did not have jurisdiction to include in its decree provisions regarding child custody because Texas is not the “home state” of the children. We will begin by noting that although Mother agreed to the trial court’s jurisdiction, it is well settled that subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000); Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 829 (Tex.App.-Dallas 2003, no pet.); In re Barnes, 127 S.W.3d 843, 848 (Tex.App.-San Antonio 2003, no pet.); see also Baw v.Baw, 949 S.W.2d 764, 766 (Tex.App.-Dallas 1997, no pet.) (agreed judgment waives all error except jurisdictional error). Thus, Mother can contest the trial court’s subject matter jurisdiction in this case.

Father nevertheless asserts Mother waived her complaint regarding the UCCJEA because it is not a subject matter jurisdiction statute, but rather a venue statute. Father acknowledges that the UCCJEA itself “references subject-matter jurisdiction.” Moreover, Texas courts have consistently and routinely treated the UCCJEA as a subject matter jurisdiction statute, not a venue statute. See, e.g., Powell v. Stover, 165 S.W.3d 322, 324 (Tex.2005); In re B.A.B., 124 S.W.3d 417, 419 (Tex.App.-Dallas 2004, no pet.). Until the Texas Supreme Court instructs us otherwise, we will continue to do so.

We now turn to whether the trial court had subject matter jurisdiction over the child custody determination. Whether a trial court has subject-matter jurisdiction is a question of law that this Court reviews de novo. B.A.B., 124 S.W.3d at 419. The party seeking to invoke the trial court’s jurisdiction has the burden to allege facts that affirmatively demonstrate a court’s authority to hear a case. Dillard Tex. Operating Ltd. P’ship v. City of Mesquite, 168 S.W.3d 211, 214 (Tex.App.-Dallas 2005, pet. filed). We construe the pleadings in favor of the party invoking jurisdiction. Id. We must also consider relevant evidence when necessary to resolve the jurisdictional issue. Id.

Section 152.201(a) of the UCCJEA is the exclusive jurisdictional basis for making a child custody determination by a court of this state. See Tex. Fam.Code AnN. § 152.201(b) (Vernon 2002). Under section 152.201(a), a Texas court has jurisdiction to make an initial custody determination only if (1) this is the home state of the child on the date of the commencement of the proceeding, (2) a court of another state does not have “home state” jurisdiction or the court having “home state” jurisdiction has declined to exercise jurisdiction on the ground that Texas is the more appropriate forum and the child or his parents have a significant connection with the state, or (3) all courts otherwise having jurisdiction have declined jurisdiction on the ground that Texas is the more appropriate forum. See Tex. Fam.Code Ann. § 152.201(a) (Vernon 2002). “Home state” means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months before commencement of a child custody proceeding. Tex. Fam. Code Ann. § 152.102(7) (Vernon 2002). In determining the child’s “home state,” we focus on the child’s “physical presence” in a state, not the legal residency of his parents. See generally Powell, 165 S.W.3d at 325-328. For purposes of the UCCJEA, a foreign country is to be treated as if it were a state of the United States. Tex. Fam.Code Ann. § 152.105 (Vernon 2002).

In this case, Father’s counterpetition for divorce is the petition that sought to bring the children within the trial court’s subject matter jurisdiction. The only facts pleaded in support of jurisdiction were that Father was a “domiciliary” of Texas and a “resident” of Dallas County. Thus, Father’s pleadings on their face would not establish jurisdiction under the UCCJEA. Moreover, Father did not comply with section 152.209 of the family code requiring him to file an affidavit in the trial court informing the trial court of the children’s address, where they lived for the five years preceding suit, and any court proceedings involving the children. See Tex. Fam.Code Ann. § 152.209 (Vernon 2002). Mother, however, did file an affidavit establishing the children have never lived in Texas and have been in Germany since 1997. Thus, the only evidence before the trial court establishes Germany, not Texas, was the “home state” of the children.

The only other basis from which the trial court could acquire jurisdiction is if the German court declined jurisdiction on the ground that Texas is a more appropriate forum. See Tex. Fam.Code Ann. § 152.201(a) (Vernon 2002). However, there are no pleadings or proof in this record to support such a conclusion. We therefore conclude that under the plain terms of the UCCJEA, the Texas court lacked subject matter jurisdiction over child custody issues.

In reaching this conclusion, we reject Father’s argument that section 6.406(b) of the family code conferred jurisdiction over the trial court. Section 6.406(b), requires a party to a divorce to include in its suit for divorce a suit affecting the parent child relationship unless the children of the marriage are under the continuing jurisdiction of another court. See Tex. Fam.Code Ann. § 6.406(b) (Vernon 1998). According to Father, this statute vested the trial court with subject matter jurisdiction irrespective of whether jurisdiction existed under the UCCJEA. However, the UCCJEA specifically provides that it is the “exclusive jurisdictional basis” for making a child custody determination. Tex. Fam.Code ■ Ann. § 152.201(b) (Vernon 2002). We cannot ignore this express statutory language. Moreover, the UCCJEA provides that if its provisions conflict with another statute of this State, the UCCJEA controls. Tex. Fam.Code Ann. § 152.002 (Vernon 2002).

Furthermore, section 6.308 establishes thát the legislature specifically contemplated that a court might have jurisdiction over a divorce, but not a child custody determination. Specifically, section 6.308 provides (1) that a court in a suit for dissolution of a marriage may exercise its jurisdiction over those portions of the suit for which it has authority and (2) the trial court’s authority to resolve the issues between the parties may be restricted because the trial court lacks jurisdiction under the UCCJEA. See Tex. Fam.Code Ann. § 6.308 (Vernon 1998); see also Boots v. Lopez, 6 S.W.3d 292, 294 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (noting trial court had jurisdiction over divorce, but not child custody). Thus, we cannot agree the divorce proceeding vested the trial court with jurisdiction when jurisdiction was otherwise lacking under the UCCJEA.

We now turn to the proper disposition of this case. The judgment in this case was rendered on a mediated settlement agreement entered into after. the trial court incorrectly concluded it had jurisdiction over the child custody determination. We have now held a portion of the agreed judgment is void because the trial court did not in fact have jurisdiction over child custody issues. According to Father, if this Court concludes the trial court lacked jurisdiction over the child custody determination and thus the provisions of the mediated settlement agreement pertaining to child custody are not enforceable, the provisions of the mediated settlement agreement pertaining to property division also should not be enforced.

Our disposition of this appeal renders this case similar to cases in which a portion of the consideration for an agreement is void for illegality. In such cases, the entire agreement is void if the contract is “entire and indivisible.” See In re Kasschau, 11 S.W.3d 305, 313 (Tex.App.-Houston [14th Dist.] 1999, no writ); Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex.App.-Amarillo 1996, writ denied). However, if the original consideration for the contract is legal, but incidental promises within the contract are found to be illegal, the court may sever the invalid provision and uphold the valid portion, provided the invalid provision does not constitute the main or essential purpose of the agreement. Rogers v. Wolfson, 763 S.W.2d 922, 925 (Tex.App.-Dallas 1989, writ denied).

In this case, the effect the trial court’s lack of jurisdiction over child custody has on the underlying settlement agreement is an issue that has not been presented to the trial court. We will not consider this issue for the first time on appeal. However, we recognize Father was not able to raise these issues in the trial court because of the trial court’s error in determining its own jurisdiction. Under the unique circumstances presented here, we reverse those provisions of the decree involving the division of property and child support and remand those issues to the trial court for further development in light of our disposition of the jurisdictional issue. See Tex. R.App. P. 43.3(b) (appellate court will render judgment the trial court should have rendered unless interest of justice require remand); City of Dayton v. Gates, 126 S.W.3d 288, 294 (Tex.App.-Beaumont 2004, no pet.) (remanding certain claims in interests of justice where trial court lacked jurisdiction over other claims). We dismiss Father’s claims as to child custody for want of jurisdiction.


author: RICHARD BARAJAS, Chief Justice.

text:
    Berry H. EDWARDS, Trustee and Dr. Truett L. Maddox, D.D.S., Appellants, v. MESA HILLS MALL COMPANY LIMITED PARTNERSHIP, a Texas Limited Partnership, Melvin Simon and Herbert Simon, General Partners, and Individually, and Simon Property Group (Texas), L.P., a Texas Limited Partnership, and Melvin Simon and Associates, Inc., an Indiana Corporation, Appellees.
    No. 08-04-00254-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 26, 2006.

      Berry H. Edwards, Anthony, TX, pro se.
    Francis Ainsa, El Paso, TX, for appellant.

      Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, TX, Roger Townsend, Jones & Townsend LLP, Houston, TX, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from an order granting summary judgment in favor of Appel-lees, Mesa Hills Mall Company Limited Partnership, a Texas limited partnership, Melvin Simon and Herbert Simon, general partners, and individually, and Simon Property Group (Texas), L.P., a Texas limited partnership, and Melvin Simon and Associates, Inc., an Indiana corporation. On appeal, Appellants raise three issues for review. In Issue One, Appellants challenge the granting of the motion for summary judgment on the constitutional takings causes of action. In Issue Two, Appellants challenge the granting of the motion on the basis of Appellees’ affirmative defense based on the statute of limitations. In Issue Three, Appellants challenge the granting of the summary judgment motion on grounds dealing with liability. We affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case has a long procedural and factual history stemming from actions dating back to 1972. For the purposes of this appeal, we provide only the necessary and relevant information to resolve the issues before the Court on this appeal. We begin with a brief summary of the facts leading up to this appeal.

In 1972, the City of El Paso (“El Paso”), (acting through its Public Service Board) sold the following tracts of land to Laurence M. Bower: a .257 acre portion of a lot labeled “Perez 157;” a 12.346 acre portion of “Chadwick 253;” and a 3.395 acre portion of ‘W.C. Morgan Survey No. 237.” Mr. Bower then deeded the property to Dr. Truett L. Maddox and Fertel. In 1979, Dr. Maddox also acquired a 2.147 acre parcel of land which is located north of the surplus property. The surplus property and the 2.147 acres acquired in 1979 were “landlocked,” (i.e. neither property had access to a public road). The property north of the 2.147 acres acquired by Dr. Maddox is called Park West Unit 3. That property was originally acquired by Mesa Hills Mall Company, Simon Property Group’s predecessor in title, in 1976.

In 1978, Appellees presented a proposed plat for the development of Park West Unit 3. The plat did not include public streets to Appellants’ property. In 1987, the plat filed by Appellees was recorded. In 1990, Dr. Maddox proposed a plat for the development of their landlocked acres, including a proposal to connect Mesa Hills Drive through a public street running through Park West Unit 3. In 1992, Appellants demanded Appellees grant them access to Mesa Hills Drive through Park West Unit 3. They requested for the City of El Paso to force Appellees to submit a new plat to conform with providing them access to their property. In 1992, Appellants filed their original petition alleging that the City of El Paso had taken their property without paying just compensation. In April of 1995, they added Mesa Hills Mall Co., limited partnership and Simon Property Group. In July of 1996, the City of El Paso and Mesa Hills filed motions for summary judgment. In September 1998, the trial court granted and this Court reversed that decision in June of 2000. In 1998, Melvin and Herbert Simon, as general partners of the two partnerships were added to the suit. In 2001, the Simons in their individual capacities were added, and finally in 2002, Melvin Simon and Associates, Inc. was added to the suit.

In a third motion for summary judgment filed on July 23, 2003, Appellees moved for summary judgment on several grounds, including: (1) Appellants’ failure to re-plead their causes of action as ordered by the trial court; (2) lack of evidence to support Appellants’ causes of action; and (3) on grounds that the summary judgment evidence negated Appellants’ causes of action as a matter of law. Under this third general reason, Appellees argue that the statute of limitations barred Appellants’ cause of action of fraud. Without specifying the grounds, the trial court granted Appellees’ motion for summary judgment and dismissed Appellants’ claims against Appellees. Thereafter, the trial court signed an order severing the Appellants’ claims against the City of El Paso. This appeal follows.

II. DISCUSSION

To prevail on a traditional motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam). We assume all the evidence favorable to the non-movant is true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in favor of the non-movant. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When the defendant is the movant and submits summary evidence disproving at least one essential element of each of the plaintiffs causes of action, then summary judgment should be granted. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Borrego v. City of El Paso, 964 S.W.2d 954, 956-58 (Tex.App.-El Paso 1998, pet. denied). As in this case, where the trial court’s order granting summary judgment does not specify the grounds relied for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam). A defendant is entitled to summary judgment on the affirmative defense of limitations if, by presenting summary judgment evidence, he conclusively proves all the elements of the affirmative defense as a matter of law. Pustejovsky v. Rapid-American, Corp., 35 S.W.3d 643, 646 (Tex.2000). This includes conclusively proving when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id. A cause of action generally accrues when an injury results from a wrongful act, regardless of when the plaintiff learns of his injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). When a plaintiff knew or should have known of an injury is generally a question of fact. Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156, 160 (Tex.App.-Houston [14th Dist.] 1998, no pet.). However, if reasonable minds could not differ about the conclusion to be drawn from the facts in the record, then the start of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44; see Wheeler v. Methodist Hosp., 95 S.W.3d 628, 639-40 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

In Issue One, Appellants contend that the trial court erred in granting summary judgment in favor of Appellees with regard to the constitutional takings causes of action.

Appellants did not plead that Appellees were a governmental unity. Furthermore, as was represented by Appellants’ attorney at oral argument, it is not contested that standing by themselves, the Appellees in this case are not a governmental entity. However, the Appellants argue that Appel-lees are jointly liable with the City for such taking. In their brief, Appellants argue the following:

There is no exemption from joint tort liability for third parties aiding and abetting, directing and/or participating in a taking. Plaintiffs’ allegations and evidence of fraud, fraudulent concealment, aiding and abetting, participating, and/or directing by Simons constitute the factual bases for the Simons’ wrongful taking of Plaintiffs’ right of access.

We begin with addressing the limitations argument with respect to the takings issues. The Appellants have alleged a claim for temporary and permanent intentional taking under Article I, sections 17 and 19 of the Texas Constitution and under the Fifth and Fourteenth Amendments to the U.S. Constitutions. The Fifth Amendment to the United States Constitution provides that private property shall not be taken for public use without just compensation. U.S. Const, amend V. The provision is applicable to the states under the due process clause of the Fourteenth Amendment. The Texas Constitution also contains a “takings clause,” which provides in part that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person....” Tex. Const, art. I, § 17.

To establish standing in order to sue under Article I, section 17 of the Texas Constitution, Appellant was required to show the State’s action resulted in a “taking” of vested property rights. City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 309 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). As is reflected in Appellees’ response, “Mesa Hills is not the government” and as such, without a showing of State action, the takings claims fail. Issue One is overruled.

In Issue Two, Appellants challenge the trial court’s order granting summary judgment in favor of Appellees on the affirmative defenses of limitations as raised in Appellees’ motion. Appellants challenge the limitations defense in three parts. First, Appellants contend that as asserted by Appellees in their motion, there is no applicable two-year statute of limitations for conspiracy because Appellants did not plead conspiracy. Further, Appellants contend that there is rio statute of limitations for aiding and abetting. Instead, Appellants assert aiding and abetting a taking of real property is governed by the underlying ten-year statute of limitations for taking. Second, Appellants assert that Appellees have failed to properly plead their statute of limitations defense in their answer and they have not conclusively proved each element of such defense in their summary judgment motion or argument. Finally, Appellants contend that their knowledge of the landlocked status of their property is irrelevant. Appellants contend that a regulatory takings cause of action is governed by a ten-year statute of limitations. Appellants argue that because there is no independent cause of action for aiding and abetting, the statute of limitations for the underlying tort, inverse condemnation, governs. Furthermore, Appellants contend that the statute of limitations for their takings cause of action began to run on August 2,1992, when the City of El Paso adopted the amendment to the Subdivision Ordinance and retroactively applied it to the plat of Park West Unit 3. Having found that there is no State action to uphold Appellants’ takings claims, we do not address the statute of limitations arguments with respect to the takings cause of action.

Appellants’ fraud cause of action is governed by section 16.004 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Peac. & Rem.Code Ann. § 16.004(a)(4) (Vernon 2002). Section 16.004(a)(4) provides that a suit for fraud must be brought within four years after the day the cause of action accrues. Id.; see Shannon v. Law-Yone, 950 S.W.2d 429, 433 (TexApp.-Fort Worth 1997, pet. denied).

Appellees contend that Appellants causes of action accrued, at the latest, in February 1987 when the Sunland Park Mall plat was finally accepting for filing. Included as summary judgment evidence is a deposition of Dr. Maddox in which he testified that in August of 1988, he knew the plat had been filed. Additionally, there was a memo from Mike Ridley to Frank Ainsa, Dr. Maddox’s attorney dated January 4, 1991, which states the following:

In latter part of 1986 I became aware that the Sunland Mall plat made no provision for access to the Maddox property and notified Dr. Maddox of this fact.

Mr. Edwards’ deposition also makes clear that as of August 1988, they were aware that they did not have access to their property and that such access had not been granted in the platting process by the City of El Paso.

With the evidence presented, we conclude that reasonable minds could not differ about the conclusion to be drawn from the facts in the record: Appellants knew about the lack of access to their property in August of 1988 and yet did not bring suit against Appellees until 1995 and added Melvin Simon and Herbert Simon as general partners and associates until 1998. Therefore, Appellants’ causes of action based on fraud are barred by the statute of limitations. Issue Two is therefore overruled.

Having overruled Appellants’ Issues One and Two, we find we need not address Appellants’ Issue Three.

We affirm the judgment of the trial court.

      . At some point, Fertel, who is not a party in this suit, deeded his interest in the property to Dr. Maddox. In 1979, shortly after Dr. Maddox acquired an additional 2.147 acres located just north of the initially acquired property, Dr. Maddox conveyed a 35 percent interest in the property to Plaintiff Salome, a trustee.

      . The opinion for that decision can be found at Maddox v. City of El Paso, No. 08-98-00409-CV, 2000 WL 799070 (Tex.App.-El Paso June 22, 2000, pet. denied).