text:
    SOUTHERN DISPOSAL, INC., Appellant, v. CITY OF BLOSSOM, Appellee.
    No. 06-04-00123-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 23, 2005.
    Decided June 9, 2005.

      David C. Turner Jr., Jana Turner, Turner & Turner, LLP, Bonham, for appellant.
    James C. Tidwell, Wolfe, Clark, et al, Sherman, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

City of Blossom Administrator, Tony Chance, thought the deadline to give notice of nonrenewal of the City’s contract with Southern Disposal, Inc. (SDI) for solid waste disposal was January 18, 2001. If Chance was wrong, and the notice mailed to SDI that day was late, the City risked being subject to an unwanted contract for an additional five-year period. This case arose from that decision, and largely turns on it.

The City sought summary judgment asserting that governmental immunity barred an SDI recovery, that for a number of reasons it was not bound to a contract, and that the Chance notice of nonrenewal was timely. SDI filed its own partial motion for summary judgment, claiming the converse. From the trial court’s general summary judgment for the City, SDI appeals. We affirm that judgment because — although (1) governmental immunity does not bar this suit, and (2) there is at least a fact issue about whether a contract bound the City — (3) the Chance notice of nonrenewal was timely.

1. Governmental Immunity Does Not Bar this Suit

It is well established in Texas that sovereign or governmental immunity protects the State, its agencies, and its officials from lawsuits for damages, absent the Legislature’s consent through statute or legislative resolution. Tex. Natural Res. Conservation Comm’n v. It-Davy, 74 S.W.3d 849, 853-54 (Tex.2002); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997); City of Texarkana v. Cities of New Boston, et al., 141 S.W.3d 778, 781 (Tex.App.-Texarkana 2004, no pet.). The City is a governmental unit and thus is protected from suit by governmental immunity, unless waived. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(A)(B) (Vernon 2005). Governmental immunity encompasses both immunity from liability and immunity from suit. It-Davy, 74 S.W.3d at 853.

Immunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit. Fed. Sign, 951 S.W.2d at 405. But when the State contracts, the State waives immunity from liability. Id. Here, there is at least a fact issue that the City entered into a contract with SDI for solid waste disposal. Hence, there is also at least a fact question on whether the City waived its immunity from liability.

Immunity from suit bars a suit against the State unless the State expressly consents to the suit. City of Texar-kana, 141 S.W.3d at 785. SDI argues, in two ways, that the City has waived its immunity.

First, SDI contends the City waived its immunity from suit by accepting benefits under the contract. In Federal Sign, the Texas Supreme Court held that, by entering into a contract, the State does not waive its immunity from suit. See Fed. Sign, 951 S.W.2d at 408. In a footnote, however, the court stated there may be circumstances “where the State may waive its immunity by conduct other than simply executing a contract....” See id. at n. 1. Afterward, several courts of appeals concluded that, by conduct including accepting benefits under a contract for goods or services, the State waives its immunity from a breach of contract suit. But the Texas Supreme Court, in It-Davy, declined to fashion a waiver-by-conduct exception to sovereign immunity and reaffirmed that it is the Legislature’s sole province to waive or abrogate sovereign immunity. See It-Davy, 74 S.W.3d at 857. We are constrained by the Texas Supreme Court’s ruling in It-Davy; thus, we reject SDI’s argument that we should fashion such a waiver-by-conduct exception in a breach of contract suit against the City.

Second, SDI contends the City has waived its governmental immunity from suit by express consent. At all salient times, the City was either a Type A or a Type B municipality. Both Type A and Type B municipalities are empowered to “sue and be sued” and “plead and be impleaded.” Tex. Loc. Gov’t Code Ann. §§ 51.013, 51.033 (Vernon 1999). Hence, consistent with City of Texarkana, we hold that the Texas Local Government Code effectively waives the City’s immunity from suit, requiring it to defend the contract causes of action asserted by SDI. See City of Texarkana, 141 S.W.3d at 786-89.

Hence, the City is not entitled to summary judgment based on governmental immunity.

2. There Is at Least a Fact Issue About Whether a Contract Bound the City

The City contends the 1996 contract does not bind the City, for a number of reasons. It asserts (A) the council did not enter into competitive bidding; (B) the minutes of the city council meeting do not show the contract was ever considered or authorized by the council; (C) the contract, by its terms, is between SDI and a nonexistent “Blossom Public Works Authority,” not the City; (D) the contract improperly creates a public debt without contemporaneously providing for its payment; and (E) the contract improperly provides public funds for private benefit. We address those claims in turn.

(A) Lack of Competitive Bidding Was Not Conclusively Established

The City claims the competitive bidding required to support a valid contract was not established by SDI in the summary judgment proof. The record reveals at least some efforts to satisfy the competitive bidding requirements. Before the March 19, 1996, decision to select SDI’s proposal, the city council at its regular meeting of January 2, 1996, tabled its decision on trash pickup until “all written contracts are in hand.” That suggests the City was considering competing bids or proposals, a suggestion which is strengthened by the fact that, at the special meeting of March 19, at least three hopeful waste disposal companies had representatives present. There is at least some evidence suggesting competitive bidding was pursued. The lack thereof was not conclusively established by the City.

(B) Fact Question Exists Concerning City Council’s Approval of Contract

The City also argues the invalidity of the contract on the basis that the city council minutes do not show council consideration or approval of the SDI contract. We believe there was at least some evidence the contract was approved.

True, a city or county may contract only on express authorization by vote of the governing body reflected in the minutes. City of Bonham v. Southwest Sanitation, Inc, 871 S.W.2d 765, 767 (Tex.App.-Texarkana 1994, writ denied). The proof of the governing body’s acts may be supplied only by the authenticated minutes of the meeting at which the action occurred, unless the minutes have been lost or destroyed. Id. A plaintiff suing to establish a contract with a city has the burden to both plead and prove that the minutes show the council’s act in authorizing or ratifying the contract. Id. Persons or entities are charged by law with notice of the limits of governmental officers’ authority and are bound at their peril to ascertain if the contemplated contract is properly authorized. Id.

Minutes of council meetings are in evidence. A regular council meeting held January 2, 1996, reflects the city council tabled its decision on trash pickup until “all written contracts are in hand.” A special council meeting was called for Tuesday, March 19, 1996, to decide on the City’s solid waste disposal provider. The minutes of that meeting are cryptic:

Mr. Bangs made motion to go with Southern Disposal, Inc.’s proposal on trash pick-up with the curbside in bags at $7.25 per resident with the $0.25 going to City for billing. Second by Mr. Westbrook. Passed 3 yea, 1 nay.

While the minutes for the March 19 meeting have no details on the terms of the written contract with SDI, the January 2 minutes suggest the proposed contract document may have been obtained by the City. In fact, a document appearing to be SDI’s proposal, which includes a form of contract and which contract form also includes the automatic renewal and notice of nonrenewal provisions, appears in the summary judgment evidence of both parties. And that form contract, as proposed by SDI, seems to have been executed. The purported contract, therefore, may have been part of SDI’s “proposal” approved by the city council as reflected in the minutes. At least, there is a fact question about whether the city council approved the contract.

(C)Intent to Contract With Nonexistent Entity Was Not Conclusively Proven

The City also argues the contract’s invalidity based on the fact that the contract, by its terms, is between SDI and a nonexistent “Blossom Public Works Authority,” not the City. While no party suggests such an entity exists, it appears from the record that the intent of the parties was to have the City involved. ‘Written contracts will be construed according to the intention of the parties, notwithstanding errors and omissions, by perusing the entire document and to this end, words, names, and phrases obviously intended may be supplied.” Ussery Inv. v. Canon & Carpenter, Inc., 663 S.W.2d 591, 593 (Tex.App.-Houston [1st Dist.] 1983, pet. dism’d). The minutes reflect that the City sought to award a contract for solid waste disposal, and the only indication that a nonexistent entity was to be involved is the contract itself. We conclude the City was not entitled to summary judgment on this basis.

(D) Invalid Public Debt Without Payment Provision Was Not Conclusively Proven

The City also argues the contract improperly created a public debt without contemporaneously providing the means to pay it, within the Texas Constitution. See Tex. Const, art. XI, § 7. In part, the City’s argument is based on SDI’s effort to obtain payment, assuming the contract renewed after March 19, 2001, without services rendered for such payment. True, the City cannot validly incur “a debt for any purpose without at the same time making the required provision for funds to pay the same.” See City of Bonham, 871 S.W.2d at 768. But the City has not demonstrated to us from the summary judgment proof, and we do not find conclusively proven, that this contract violated that prohibition. The City was not entitled to summary judgment on this basis.

(E) Improper Provision of Public Funds for Private Benefit Was Not Conclusively Proven

Finally, the City argues the contract’s invalidity because it, in effect, gives public funds to private interests. Its argument is that the twenty-five-cent allowance for each billing, set up in 1996, is woefully inadequate now, given current postage rates, even without considering the other costs involved in billing and collecting accounts for waste disposal services. The city council was authorized to conclude in 1996 that handling waste disposal in the manner set out in the contract was in the public interest. So long as its decision on that matter of legitimate public interest is not fraudulent, arbitrary, or capricious, the contract is not invalid on this basis. See Barrington v. Cokinos, 161 Tex. 136, 146, 338 S.W.2d 133, 143 (1960); State v. City of Austin, 160 Tex. 348, 356, 331 S.W.2d 737, 743 (1960). Because the contract’s invalidity on that basis has not been conclusively proven here, the City was not entitled to its summary judgment on that basis.

3. The Chance Notice of Nonrenewal Was Timely

The parties agree that the contract requires a party which seeks to stop the contract’s automatic renewal must give notice of nonrenewal not less than sixty days before the expiration of the initial five-year term. They simply disagree on how to determine that deadline. According to SDI’s logic, the initial five-year term of the contract began March 19, 1996, and would end March 18, 2001; thus, the contract would require notice of nonrenewal by January 17, 2001. The City reasons that the five-year term was to end March 19, 2001, and that sixty days before that expiration was January 18, 2001, the day its notice of nonrenewal was sent. Thus, asserts the City, the contractual requirements are met and the contract did not automatically renew. We agree with the City’s analysis.

The relevant portion of the contract states:

The contract shall be for a five (5) year period beginning upon the execution of the contract and ending five (5) years thereafter. The initial five (5) year term of this contract shall automatically be extended for successive additional five (5) year terms, unless either party notifies the other party in writing, not less than sixty (60) days and not more than ninety (90) days prior to the expiration of the initial five (5) year term or of any successive five (5) year term of its intentions to terminate this contract. Any such written notice shall be serviced [sic] by certified or registered mail, return receipt requested. In the event such written notice is given, this Agreement expires on said anniversary date, provided the Agreement has been in effect for the minimum five year period.

(Emphasis added.) The contract was signed and would have become effective sometime shortly after 7:10 p.m. on March 19, 1996. According to the terms of the contract, its initial five-year term ends five years after the contract’s execution. Thus, the initial term ended sometime after 7:10 p.m., March 19, 2001. The sixtieth day before March 19, 2001, is January 18, which would therefore be the last day to give an effective notice of nonrenewal.

The agreement prescribes only two relevant requirements to avoid automatic renewal of the contract: (1) one party must “notify” the other in writing not less than sixty (60) days before the expiration of the initial five-year tem of the contract, and (2) any such written notice shall be “serviced [sic] by certified or registered mail, return receipt requested.” The City mailed a notice of nonrenewal January 18, 2001, by certified mail, return receipt requested. The City met the two requirements set by the contract terms.

While the contract fails to state clearly when notice will be considered to have been given, it certainly makes neither a requirement that the notice be received by SDI, nor any mention of receipt at all, just that the City “notify” SDI by the deadline. In fact, the contract language suggests an intent that the notice be effective when properly mailed. The critical question is when the City “notified” SDI of its intent not to renew, and the contract’s answer is found in its language that the “notice shall be serviced [sic] by ... mail” and that if “such written notice is given,” the contract will not renew. Without contrary contract definition or language, this formulation suggests notice is given when properly mailed.

Confirming our contract language analysis, it is generally held that, when a contract requires only that one party “notify” the other, and the matter is not defined in the contract, notice occurs at the time a notice is mailed. See Brown v. Swift-Eckrich, Inc., 787 S.W.2d 599, 600-01 (Tex.App.-El Paso 1990, writ denied); Home Benefit Ass’n v. Jordan, 191 S.W. 725, 728 (Tex.Civ.App.-Beaumont 1916, writ dism’d w.o.j.); Charles B. Smith & Co. v. Duncan, 167 S.W. 233, 235 (Tex.Civ.App.-Austin 1914), aff'd on other grounds, 209 S.W. 140 (Tex.1919).

The dispute in this case could occur because of the way SDI chose to draft the contract. Where an ambiguity exists in a contract, the contract language will be construed strictly against the party who drafted it since the drafter is responsible for the language used. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex.1990); Republic Nat’l Bank v. Northwest Nat’l Bank, 578 S.W.2d 109 (Tex.1978). If SDI had intended to require receipt of the notice of nonrenewal by a particular deadline, it could have drafted the contract to read that way. By choosing to use only “notify” in the contract, SDI specified a notice be sent, not received, by the deadline. SDI failed to produce any evidence of probative force to raise a fact issue on this point. Therefore, as a matter of law, the City timely notified SDI of nonrenewal of the contract and the contract did not renew. The City’s summary judgment is valid on this basis.

Conclusion

The City waived its immunity from liability when it contracted with SDI. The Legislature through Sections 51.033 and 51.013 of the Texas Local Government Code effectively waived the City’s immunity from suit, requiring it to defend the contract causes of action asserted by SDI. There is at least a fact issue about whether the contract bound the City. The Chance notice of nonrenewal sent via certified mail, return receipt requested, on January 18, 2001, was timely; thus, the contract ended without automatically renewing. Summary judgment for the City was proper.

We affirm the trial court’s judgment.

      . On appeal of a trial court’s disposition of competing summary judgment motions, the proper disposition is for the appellate court to render judgment for the party whose motion should have been granted. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984); McLemore v. Pac. Southwest Bank, FSB, 872 S.W.2d 286, 289 (Tex.App.-Texarkana 1994, writ dism'd by agr.). Each party must clearly prove its right to judgment as a matter of law, and neither party may prevail simply because the other party failed to make such proof. Bd. of Adjustment of City of Dallas v. Patel, 887 S.W.2d 90 (Tex.App.-Texarkana 1994, writ denied); James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701 (Tex.App.-Houston [1st Dist.] 1987, writ denied). The proper disposition on appeal is for the appellate court to render judgment for the party whose motion should have been granted. McLemore, 872 S.W.2d at 289.
      To prevail on a 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. TexR. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff’s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Womick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). Conversely, a plaintiff can bar a defendant's entitlement to summary judgment by responding with evidence that creates a fact question on at least one element of each affirmative defense advanced by the defendant. Poncar v. City of Mission, 797 S.W.2d 236, 239 (Tex.App.-Corpus Christi 1990, no writ).
      Thus, once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In reviewing a summary judgment, we accept all the nonmovant's proof as true and indulge every reasonable inference in the nonmov-ant’s favor. Sci. Spectrum, Inc., 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriffs Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).
      A no-evidence summary judgment is essentially a pretrial directed verdict. We therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id.; Woodruff v. Wright, 51 S.W.3d 727 (Tex.App.-Texarkana 2001, pet. denied). We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App. — Austin 1998). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

        .See DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 654, 657 (Tex.App.-Austin 1999), rev’d, 39 S.W.3d 591 (Tex.2001); Aer-Aerotron, Inc. v. Tex. Dep’t of Tramp., 997 S.W.2d 687, 692 (Tex.App.-Austin 1999), rev’d, 39 S.W.3d 220 (Tex.2001); Little-Tex Imulation Co. v. Gen. Servs. Comm’n, 997 S.W.2d 358, 364-65 (Tex.App.-Austin 1999), rev’d, 39 S.W.3d 591 (Tex.2001); Tex. S. Univ. v. Ara-serve Campus Dining Servs. of Tex., Inc., 981 S.W.2d 929, 935 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 750 (Tex. App.-San Antonio 1998, pet. denied).

      . The court reasoned that creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity's protections, thus defeating many of the doctrine's underlying policies.

      . The phrase "sue and be sued ... is quite plain and gives general consent” to be sued in Texas courts. Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). The words "sue and be sued” provide a general waiver of governmental immunity from suit. See United Water Servs., Inc. v. City of Houston, 137 S.W.3d 747, 751-55 (Tex.App.-Houston [1st Dist.] 2004, pet. filed). The phrase "sue and be sued” met the legislative permission requirement. Fed. Sign, 951 S.W.2d at 408.

      . The City argues that the fundamental reason immunity exists is to shield "governmental entities from being bound by the policy decisions of their predecessors.” See It-Davy, 74 S.W.3d at 854. The It-Davy court further states, however — and the City overlooks this— that "legislative control over waiving immunity from suit does not mean that the State can freely breach contracts with private parties, or that the State can use sovereign immunity as a shield to avoid paying for benefits the State accepts under a contract.” Id. Therefore, an aggrieved party may seek redress by asking the Legislature to waive immunity from suit or take advantage of the immunity waived by the Legislature. Id.

      . See Tex. Loc. Gov’t Code Ann. § 252.021 (Vernon Supp.2004 — 2005).

      . The contract bears the date of March 19, 1996. The special meeting of the city council at which the decision was made to “go with’’ SDI began at 7:00 p.m. and was adjourned at 7:10 p.m. Therefore, it would appear likely the contract was signed shortly thereafter.

      . It is worth, noting that the notice was mailed at 3:29 p.m., January 18, 2001, according to the United States Postal Service receipt attached to the City's file copy of the letter.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    In the ESTATE OF Raymond Harold HEAD, Deceased.
    No. 06-04-00051-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted April 27, 2005.
    Decided June 10, 2005.

      Lisa B. Shoalmire, Norton & Wood, LLP, Texarkana, for appellant.
    John R. Mercy, Mercy, Carter, Tidwell, LLP, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

This appeal concerns whether the trial court erred by granting (1) the request of a will opponent for deemed admissions and (2) summary judgment in the opponent’s favor based on those deemed admissions. For the reasons set forth below, we conclude this Court lacks jurisdiction and, therefore, dismiss the appeal.

I. Factual and Procedural Background

During his life, Raymond Harold Head was married first to Joy Works from 1964 until her death in 1979. Raymond had two daughters from that marriage: Marla (now Hohner) and Lori Anne (now Tally). On November 2, 1996, Raymond married Delores Alford. Raymond and Delores were married for more than six years when he died February 13, 2003, from an acute myocardial infarction; he was seventy-two. The record before us does not indicate that Raymond and Delores had any children together.

Eight days after Raymond’s death, Dale Works filed an application to probate a copy of a will Raymond purportedly executed January 31, 1996. This 1996 testament appointed Dale as independent executor and gave half of Raymond’s estate to Marla, one fourth to Lori, and one fourth to Clayton Tally (Raymond’s grandson by way of Lori). The 1996 will left nothing to Delores.

Delores subsequently protested admission of the 1996 will to probate, and on August 6, 2003, she served Dale with requests for admissions. In relevant part, the requests asked Dale to admit or deny the following:

1. Dale Works does not have custody of any original Will of Raymond Head, deceased.
2. Dale Works does not have custody of any original Prenuptial Agreement signed by Delores Head.
3. Dale Works does not know the present location of the original Will of Raymond Head.
6. Marla Hohner does not have custody of any original Will of Raymond Head, deceased.
7. Marla Hohner does not have custody of any original Prenuptial Agreement signed by Delores Head.
11. Lori Anne Talley [sic] does not have custody of any original Will of Raymond Head, deceased.
12. Lori Anne Talley [sic] does not have custody of any original Prenuptial Agreement signed by Delores Head.
22. Raymond Head removed his will from his safety deposit box prior to his death.
23. Raymond Head revoked his will prior to his death.
24. Raymond Head died intestate.

When Dale did not answer the requests by September 4 (thirty days from the date of service), see Tex.R. Civ. P. 198.2(a), Delores filed a motion for summary judgment September 11, 2003, claiming (1) that she was entitled to have the requests for admissions be deemed admitted and (2) that, based on those deemed admissions, she was entitled to a summary judgment stating Raymond died intestate. See Tex.R. Civ. P. 198.2(c) (effect of failure to respond timely to requests for admissions); Tex.R. Civ. P. 198.3 (matter admitted under rule for deemed admissions conclusively established as to party making admission unless court permits party to withdraw or amend admission).

Dale filed a response to the motion for summary judgment October 10, 2003. Dale’s response included an attachment with his answers to the earlier requests for admissions. These responses were signed and dated October 10, 2003. In the responses relevant to the above-specified requests, Dale admitted numbers 1, 2, 6, 7, 11, and 12 were true; he denied 3, 23, and 24 were true; and he wrote he was “unable to admit or deny” whether number 22 was true.

The trial court held a hearing on Delores’ motion for summary judgment October 20, 2003. At that hearing, the court granted Delores’ request that the admissions served on Works be deemed admitted; the court then granted Delores’ motion for summary judgment. The written judgment, dated October 24, 2003, declares that Raymond died intestate. On November 24, 2003, Works filed a “Motion To Reconsider” in which he asked the trial court to withdraw its grant of summary judgment in favor of Delores. That motion did not specifically ask the trial court to allow Dale to withdraw the deemed admissions.

On January 5, 2004, Marla filed a motion for substitution of counsel. That same day, Works filed an amended motion for new trial, which asked in an alternative pleading that Dale be allowed to withdraw his deemed admissions. Both Marla’s motion and Works’ motion were filed by the same attorney. The amended motion for new trial appears to have been overruled by operation of law. See Tex.R. Civ. P. 329b(c) (motion for new trial not ruled on within seventy-five days of judgment considered overruled; seventy-fifth day was Wednesday, January 7, 2004). Marla, Lori, and Clayton (collectively “the beneficiaries”), as the beneficiaries under the will, filed this restricted appeal March 19, 2004. See Tex.R.App. P. 30. Delores contends we are without jurisdiction to consider their appeal because the beneficiaries filed post-trial motions, participated in the proceedings, and were parties under the doctrine of virtual representation.

II. Does This Court Have Jurisdiction To Consider the Beneficiaries’ Restricted Appeal?

“A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment.” TAC Americas, Inc. v. Boothe, 94 5.W.3d 315, 318 (Tex.App.-Austin 2002, no pet.) (citing In re E.K.N., 24 S.W.3d 586, 590 (Tex.App.-Fort Worth 2000, no pet.)).

For a restricted appeal to be successful: (1) a notice of restricted appeal must be filed within six months after judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of; (4) who did not file a timely post-judgment motion or request for findings of fact and conclusions of law; and (5) error must be apparent on the face of the record.

Id. (citing Tex.R.App. P. 30; Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985)); see also Tex.R.App. P. 26.1(c) (time to file restricted appeal is within six months after appealable judgment or order is signed). Delores contends the beneficiaries cannot satisfy the Rule 30 requirements to bring this restricted appeal.

A. Was the Notice of Restricted Appeal Filed Within Six Months?

The first requirement to bring a restricted appeal is that the notice of restricted appeal be filed within six months of the date of the trial court’s judgment. Tex.R.App. P. 26.1(c), 30. In this case, the trial court signed the summary judgment October 24, 2003. The notice of restricted appeal was filed March 19, 2004. The notice was, therefore, filed within the applicable time period. The beneficiaries meet the first Rule 30 requirement.

B. Were the Beneficiaries Parties to the Will Contest?

The second requirement to bring a restricted appeal is that the aggrieved party be a party to the underlying suit. Tex.R.App. P. 30. A major beneficiary under a will is considered a party to a will contest, even though not personally named as a party. Specia v. Specia, 292 S.W.2d 818, 819 (Tex.Civ.App.-San Antonio 1956, writ ref'd n.r.e.) (citing Waurika Oil Ass’n v. Ellis, 254 S.W. 1032 (Tex.Civ.App.-Amarillo 1923, no writ)). Marla, Lori, and Clayton are named beneficiaries under the will, each receiving a sizeable portion of Raymond’s estate. The beneficiaries, therefore, satisfy Rule 30’s second requirement.

C. Did The Beneficiaries Participate in the Proceedings Below?

The third requirement to bring a restricted appeal is that the appealing party did not participate — “either in person or through counsel” — in the proceedings below. Tex.R.App. P. 30. The heart of the parties’ disagreement on appeal is whether the beneficiaries participated in the proceedings below. If the beneficiaries did participate, then that participation precludes their ability to bring this restricted appeal. See id. Delores contends all the beneficiaries should be considered to have participated in the proceedings below under the doctrine of “virtual representation.” We agree.

“Under Texas jurisprudence, an appeal can generally only be brought by a named party to the suit.” City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754 (Tex.2003). “[T]he doctrine of virtual representation is an exception to the general rule.” Id. at 754-55. “An appellant is a deemed party under virtual representation when: (1) it is bound by the judgment; (2) its privity of estate, title, or interest appears from the record; and (3) there is an identity of interest between the appellant and a party to the judgment.” Id. at 755. The most important consideration is whether the appellant will be bound by the judgment. Id. (referencing Devlin v. Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002)); see also Mason v. Mason, 366 S.W.2d 552, 554 (Tex.1963) (applying doctrine of virtual representation to case involving challenge to trust created by will).

In Mason, 366 S.W.2d at 552-53, the question arose “whether certain named beneficiaries were necessary and indispensable parties defendant to this action brought to contest the validity of a will after it had been admitted to probate.” The Texas Supreme Court answered that question negatively. Id. at 553. The Mason court first set forth the general rule regarding the doctrine of virtual representation as it applies in probate matters: “Where a suit is brought to cancel a trust instrument the beneficiaries are considered to be adequately represented by the trustee if their interest be not in conflict.” Id. at 554. The Mason court then noted that the evidence in Mason suggests not even “the slightest hint of any collusion or fraud. To the contrary the interests of the trustee and these beneficiaries were identical.” Id. The Mason court further acknowledged that the trustee (which in Mason was the wife and executor) had “full power to manage, control, mortgage or sell any and all of the estate with the right to enjoy and receive all of the net income therefrom during her lifetime [and] was empowered to defend this trust and to represent all interested parties.” Id.

In the instant ease, there is no evidence the interests of the beneficiaries are adverse to the interests of Dale, the person named as executor in the will. Further, as the named executor, Dale had statutory and fiduciary duties to protect the interests of the devisees. See, e.g., Tex. PROB. Code Ann. § 230 (Vernon 2003) (statutory duty to protect estate property); Punts v. Wilson, 137 S.W.3d 889, 891 (Tex.App.-Texarkana 2004, no pet.) (relationship between executor and beneficiaries gives rise to fiduciary duty) (citing Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex.1996)); Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex.App.-Dallas 1994, writ dism’d by agr.). The very purpose of Dale’s involvement in the trial court proceedings was to protect the beneficiaries’ general legacy. And we cannot discern any disharmony between the purpose of Dale’s involvement and the beneficiaries’ interests in having the 1996 testament admitted to probate. We conclude that, under the doctrine of virtual representation, all the beneficiaries are deemed to have participated in the proceedings below. They, therefore, cannot meet Rule 30’s third requirement to bring a restricted appeal.

D. Did the Beneficiaries File Timely Post-Judgment Motions That Bar Their Appeal?

The fourth requirement to bring a restricted appeal is that the aggrieved party could not have timely filed a post-judgment motion, a post-judgment request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1 of the Rules of Appellate Procedure. Tex.R.App. P. 30. Delores contends the beneficiaries timely filed post-judgment motions, precluding their restricted appeal, and cites Rios v. Willingham, No. 05-01-01284-CV, 2003 WL 253577, at *1, 1-2, 2003 Tex.App. LEXIS 1276, at *3, 5-6 (Tex.App.-Dallas Feb. 6, 2003, no pet.) (not designated for publication).

In Rios, the party attempting to bring a restricted appeal filed a motion for new trial within thirty days of the date of the trial court’s judgment. Id., 2003 WL 253577, at *2, 2003 Tex.App. LEXIS 1276, at *6. The court of appeals concluded that, because Rios had “timely filed a motion for new trial, he may not pursue a restricted appeal under Tex.R.App. P. 30.” Id. The court of appeals then dismissed the appeal for want of jurisdiction.

In this case, the trial court signed its summary judgment October 24, 2003. Our Rules of Civil Procedure require a motion for new trial to be filed within thirty days after the judgment. Tex.R. Civ. P. 329b. Dale filed a “Motion To Reconsider” on Monday, November 24, 2003. The motion asks the trial court to reconsider its award of summary judgment and gave reasons that might justify a decision by the trial court to set aside its earlier judgment. As we are to construe a party’s pleadings liberally rather than limit the function of those pleadihgs according to the mere titles they are given, we believe Dale’s “Motion To Reconsider” served the same function as a motion for new trial, despite not being titled as such. Accord Robe v. Guar. Nat’l Ins. Co., 787 S.W.2d 575, 579 n. 1 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (motion to rehear summary judgment is equivalent of motion for new trial). Dale’s motion to reconsider was also filed within thirty days of the trial court’s judgment because the thirtieth day following October 24 was Sunday, November 23, 2003, and Dale’s “Motion To Reconsider” was filed the following Monday. See Tex.R. Civ. P. 4. The record, and specifically the trial court’s docket sheet, does not show the trial court ever specifically ruled on , Dale’s motion to reconsider, which leads us to conclude it was overruled by operation of law January 7, 2004, the seventy-fifth day after the trial court signed its judgment. See Tex.R. Civ. P. 329b(c). The motion to reconsider was a timely filed post-judgment motion.

On January 5, 2004, Dale filed a “First Amended Motion for New Trial.” That filing occurred more than thirty days after the trial court rendered its written judgment. “One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed.” Tex.R. Civ. P. 329b(b). The Texas Supreme Court has interpreted Rule 329b(b) to mean that, for a party to properly amend a motion for new trial, the amended motion for new trial must also be filed within thirty days of the date of the trial court’s judgment; the filing of a prior motion for new trial does not thereafter enable a movant to amend that motion outside the initial thirty-day time period. Moritz v. Preiss, 121 S.W.3d 715, 719-20 (Tex.2003). Accordingly, the “First Amended Motion for New Trial” was untimely under both our Rules of Civil Procedure and the easelaw interpreting those rules. Dale’s first amended motion, therefore, does not, by itself, disqualify the beneficiaries from bringing this restricted appeal under Rule 30’s fourth requirement.

Nevertheless, because we have determined the parties were represented at the proceedings below under the doctrine of virtual representation, Dale’s timely filing of a “Motion To Reconsider” may similarly be imputed to all the beneficiaries as post-judgment conduct that acts to preclude this restricted appeal under Rule 30’s fourth requirement.

Moreover, the beneficiaries filed a motion January 5, 2004, to substitute counsel; that motion named a different attorney, who is the same attorney who filed Dale’s first amended motion for new trial, as the new attorney of record in the case. While a motion to substitute counsel is more aptly characterized as a procedural motion rather than a substantive motion (such as a motion for new trial), the motion to substitute counsel was nevertheless a motion (a) filed by the beneficiaries, (b) following the trial court’s judgment, and (c) within the seventy-five-day period during which the trial court still had plenary authority to act in the case. See Tex.R. Civ. P. 329b(c). Thus, the beneficiaries’ motion to substitute counsel could arguably defeat their ability to bring a restricted appeal under Rule 30’s fourth requirement.

E. Is There Error on the Face of the Record?

Rule 30’s fifth prerequisite for bringing a restricted appeal is that error must appear on the face of the appellate record. TAC Americas, Inc., 94 S.W.3d at 318 (citing Stubbs, 685 S.W.2d at 644). The beneficiaries contend the deemed admissions are insufficient to support a summary judgment finding that Raymond died intestate. However, because we have determined that the beneficiaries cannot satisfy Rule 30’s third and fourth requirements to bring this restricted appeal, we need not determine whether error is on the face of the record now before us.

III. Conclusion

The record before us does not support the beneficiaries’ position that their interests were not represented in the proceedings before the trial court. As such, the beneficiaries are deemed to have participated in the proceedings below under the doctrine of virtual representation. Additionally, timely filed post-judgment motions preclude the beneficiaries from bringing this restricted appeal. The beneficiaries, therefore, cannot satisfy Rule 30’s requirements to bring this restricted appeal.

We dismiss the appeal for want of jurisdiction.

      . Because many of the parties share the same surnames, we refer to each by his or her first name to avoid confusion.

      . The parties to this case previously appeared before this Court pursuant to a petition for writ of mandamus. See In re Works, 118 S.W.3d 906 (Tex.App.-Texarkana 2003, orig. proceeding). Because the record from that case is relevant to the issues now on appeal, we take judicial notice of that record. See TexR. Evid. 201 (judicial notice may be taken at any stage of proceeding where fact or facts to be noticed is capable of accurate determination by resort to sources whose accuracy cannot be questioned); see also Raines v. Gomez, 143 S.W.3d 867, 868 n. 1 (Tex.App.-Texarkana 2004, no pet.).

      . Dale is the brother of Raymond’s first wife, Joy.

      . The record shows that, on October 10, 2003, neither Works nor his attorney appeared in court when the trial court held a hearing on Delores’ motion for summary judgment. Works' attorney subsequently appeared before the trial court and was allowed to make a record explaining her nonappearance, but a transcript of that hearing is not a part of the record before this Court. Neither does that record reflect whether Works asked to withdraw the deemed admissions at that appearance.

      . The amended motion for new trial is signed by the same attorney who filed Marla’s motion to substitute counsel and is the attorney who represents all the appellants on appeal. The record before the Court does not contain an ''original” motion for new trial.

      . To have filed a regular appeal, the beneficiaries were required to file their notice of appeal within ninety days of the date of the trial court's judgment. See Tex.R.App. P. 26.1(a)(1). The filing deadline for a regular appeal (given the facts of this case) would have been Thursday, January 22, 2004. The beneficiaries’ March 19 notice of appeal was therefore untimely to invoke this Court's jurisdiction for a traditional appeal.


author: Chief Justice MORRISS.

text:
    Dr. Danford BOOKOUT, Phyllis Bookout, and Bookout Chiropractic Center, Inc., Appellants, v. Dr. Cris BOOKOUT and Teresa Bookout, Appellees.
    No. 06-04-00049-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted April 27, 2005.
    Decided June 10, 2005.
    Rehearing Overruled July 6, 2005.

      John R. Mercy, Mercy, Carter, Tidwell, LLP, Texarkana, for appellants.
    Don Cooksey, Kaylin D. Kluge, Law Office of Don Cooksey, Texarkana, for appel-lees.
    Before MORRISS, C.J., ROSS and CORNELIUS, JJ.

       William J. Cornelius, Retired, Chief Justice, Sitting by Assignment.

   OPINION

Opinion by

Chief Justice MORRISS.

For seven years, Cris Bookout thought he had a deal to purchase the Bookout Chiropractic Center (Clinic) for which Cris was the sole practicing chiropractor. In 1994, a document styled “Contract for Deed” had been created — -but never signed — detailing terms of what might become Cris’ purchase from his brother, Danford Bookout (Dan), and Dan’s wife, Phyllis, of real and personal property constituting the Clinic. Between July 1994 and August 2001, Cris had arranged for payments totaling $3,000.00 per month— the amount specified in the unsigned “Contract” — to Dan and Phyllis. Those payments had been made from Bookout Chiropractic Center, Inc. (Corporation), the entity through which Cris ran the Clinic during those years, but an entity owned by Dan and Phyllis. In August 2001, Cris and Dan had a disagreement; Cris was fired as an employee of the Corporation; and Cris sued Dan, Phyllis, and the Corporation for breach of the Contract. A jury found that Cris had a contract with Dan, Phyllis, and the Corporation; that the contract had not been honored by Dan, Phyllis, and the Corporation; and that Cris should recover damages and attorneys fees against all three. On appeal, the three defendants assert that the statute of frauds bars recovery and that no, or insufficient, evidence exists of any involvement in the Contract by Phyllis or the Corporation.

We affirm in part and reverse and render in part. We do that because we hold (1) Cris’ partial performance removes the contract from the statute of frauds, (2) sufficient evidence supports Phyllis’ liability, and (3) no evidence supports the Corporation’s liability.

1. Cris’ Partial Performance Removes the Contract from the Statute of Frauds

Whether a contract falls within the statute of frauds is a question of law. Bratcher v. Dozier, 162 Tex. 319, 321, 346 S.W.2d 795 (1961). A contract which is for the sale of real estate or which is not to be performed within one year after the agreement’s formation is not enforceable unless it is (1) in writing and (2) signed by the person to be charged with the promise. Tex. Bus. & Com.Code Ann. § 26.01 (Vernon 2002). It is uncontroverted that, though the Contract was partly for the sale of real property and was not to be performed within a year, it was not signed. Thus, the Contract is unenforceable unless an exception to the statute of frauds applies.

Partial performance is an exception to the statute of frauds. Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439 (Tex.App.-Dallas 2002, pet. denied). The partial performance must be “unequivocally referable to the agreement and corroborative of the fact that a contract actually was made.” Id. Actions relied on to establish the partial performance exception to the statute of frauds must be such as could have been done with no other design than to fulfill the particular agreement sought to be enforced; otherwise, they do not tend to prove the existence of the parol agreement relied on by the plaintiff. Id.

Generally, the party claiming an exception to the statute of frauds must secure a finding to that effect. Barbouti v. Munden, 866 S.W.2d 288, 295 (Tex.App.Houston [14th Dist.] 1993, writ denied). Here, partial performance was not submitted to the jury, and there was no request that the trial court make a finding on partial performance. Those failures would be fatal to Cris’ case unless a finding on partial performance is otherwise implied by law. We hold such a finding is implied because (A) partial performance is necessarily referable to the Contract, and (B) there is sufficient evidence of partial performance.

(A) Partial Performance Is Necessarily Referable to the Contract

Applicable to this issue is Rule 279 of the Texas Rules of Civil Procedure.

When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.

Tex.R. Crv. P. 279. Under Rule 279, the authority for an implied finding on any unsubmitted issue belonging to a given ground of recovery or defense depends on there having been a submission of some other issue “necessarily referable” to that same ground of recovery or defense. Tex. Employers’ Ins. Ass’n v. Hilderbrandt, 62 S.W.2d 209 (Tex.Civ.App.-Beaumont 1933, no writ).

We therefore must decide whether, within the meaning of Rule 279, proof of partial performance, as an exception to the statute of frauds, is an “element” of Cris’ contract “ground of recovery” or is, instead, exterior to that ground of recovery. While we find no controlling precedent on the question, some guidance can be obtained from analogous caselaw.

A farmer sued a neighboring railroad company for flooding, and thus damaging, his crop. The jury found how many bales of cotton the farmer would have grown but for the flood damage. The trial court failed, and there was no objection directed at the failure, to ask the jury how many bales of cotton the plaintiff actually raised on the land. The Texas Supreme Court determined the two issues were complementary and therefore implied a finding on the unsubmitted issue, since there was sufficient evidence on the issue consistent with the judgment. See Wichita Falls & Okla. Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 84 (1940).

In a dispute between a building contractor and its rental equipment supplier, the jury found that the original contract between the two existed and also determined a value of the contractor’s “cover” incurred in lieu of the equipment which was to have been—but was not—supplied under the terms of the original contract. The jury was not asked whether the original contract was breached by the equipment supplier or whether the supplier agreed to allow the contractor to obtain “cover” for the equipment the supplier did not provide. The appellate court implied those two findings under this rule. See Presslor v. Kandy, Inc., 611 S.W.2d 953, 956 (Tex.App.-Waco 1981, writ ref'd n.r.e.).

A take-nothing judgment, based on limitations, was rendered after a jury found a plaintiff failed to use diligence in serving process on the defendant. The jury charge omitted any question about when the cause of action accrued, but this Court affirmed the judgment, implying the needed finding under this rule. See Hoffman v. Wall, 602 S.W.2d 324, 326 (TexApp.-Texarkana 1980, writ ref'd n.r.e.).

In a dispute between a landowner and a concrete contractor, the jury found both that the contractor had not substantially performed the agreed task of laying a foundation on the landowner’s property and that $300.00 was the cost of removing from the property the foundation work which was done by the contractor. On appeal from a judgment in favor of the landowner, the appellate court rejected the contractor’s argument that there was no jury finding on the need to remove the foundation, because it was properly implied from the issues decided by the jury. See Volkman v. Eakman, 496 S.W.2d 752, 757 (Tex.App.-Fort Worth 1973, writ ref d n.r.e.).

An individual sued, and recovered a judgment against, his former employer for wages under an oral contract. The jury found the parties had contracted for the employment but made no finding that the employee performed under the contract, because the latter issue had been improperly conditioned on a negative answer to the former. The appellate court implied a finding on that issue under Rule 279. See AAA Air Conditioning & Mfg. Corp. of Tex. v. Barr, 186 S.W.2d 825, 826-27 (Tex.Civ.App.-Dallas 1944, writ ref'd).

A buyer of a tire sealing product sued the product’s manufacturer for breach of express and implied warranties, among other complaints, but the jury was not asked whether the buyer gave the manufacturer the required advance notice of breach of express warranty. From a trial court judgment for the buyer, the appeal, in part, dealt with the question of whether notice of breach of express warranty could be implied from express jury findings that an express warranty was breached. The appellate court characterized notice as a condition precedent for the buyer’s cause of action for breach of express warranty, rather than lack of notice being an affirmative defense to that cause of action. The court’s analysis thus suggested that the buyer’s notice of breach of express warranty would have been the subject of an implied finding, but for the jury’s express finding that the buyer failed to give notice of breach of an implied warranty. See U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 198-200 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). To similar effect is Tex. Tech Univ. Health Sci. Ctr. v. Apodaca, 876 S.W.2d 402, 411 (Tex.App.-El Paso 1994, pet. denied) (implied omitted finding of notice as one element of negligence action under Texas Tort Claims Act claim).

In the present case, the trial court submitted the questions, serially, whether Dan, Phyllis, and the Corporation intended to bind themselves to an agreement; whether Dan, Phyllis, and the Corporation breached that agreement; and what amount of damages would compensate Cris for his resulting damages. The jury was not asked to address partial performance, and that was omitted without a request or an objection. Post verdict, the trial court was not asked to, and did not, make an express finding on such issue.

Because it is uncontroverted that the statute of frauds had been triggered and would bar Cris’ recovery unless he established partial performance of the Contract, partial performance was a condition precedent to, and therefore was functionally an element of, Cris’ breach of contract ground of recovery. Under this record, the issue of whether there was a contract and the issue of whether Cris partially performed it are strongly linked, in that most of the evidence that the Contract existed is the evidence of Cris’ partial performance of its terms.

The purpose of the rule implying omitted findings is to require defects in a jury charge to be brought to the trial court’s attention, so the defects can be corrected before submission to the jury. Neuman v. Tex. Employers’ Ins. Ass’n, 377 S.W.2d 108 (Tex.Civ.App.El Paso), rev’d, on other grounds, 379 S.W.2d 295 (Tex.1964). Limiting the application of the rule to issues “necessarily referable” to a particular ground of recovery or defense is for the purpose of giving fair notice of incomplete submission to the parties. Superior Trucks, Inc. v. Allen, 664 S.W.2d 136 (Tex.App.-Houston [1st Dist.] 1983, writ ref d n.r.e.).

In light of the rule’s purpose, the analogous caselaw, and this record, we conclude the element of partial performance was, within the meaning of Rule 279, an omitted element of Cris’ ground for recovery. We therefore hold that the trial court impliedly found, in support of the judgment, that Cris partially performed the Contract, if such a finding is supported in the evidence. See Tex.R. Civ. P. 279.

(B) There Is Sufficient Evidence of Partial Performance

Whether sufficient partial performance has occurred is a question of fact. Fluellen v. Young, 664 S.W.2d 776, 781 (Tex.App.-Dallas 1983, no writ). We hold partial performance is supported by sufficient evidence.

In support of his assertion of partial performance, Cris points to the payment of $3,000.00 per month to Dan and Phyllis, beginning in July 1994 and continuing until August 2001. Dan, Phyllis, and the Corporation point to the fact that the payments came from the funds of the Corporation, a Corporation owned by Dan and Phyllis. They also point out that the payments were designated as rent or salary. Therefore, they argue, Cris did not partially perform the agreement; hence, the statute of frauds prevents the enforcement of the unsigned contract.

True, the $1,000.00 checks to Phyllis were marked as payroll items. The $2,000.00 checks to Dan initially were designated “Clinic Payment,” but in May 1995 began to be designated “rent.” Cris testified these payments were indeed for the purchase of the Clinic, but that Dan and Phyllis directed the designations for tax benefits. Over time, the payments changed from once a month to bi-weekly, and then back again. Cris’ testimony explained that, again, these were the directives of Dan and Phyllis.

Moreover, according to Cris, Phyllis worked approximately five hours a week at the Clinic for the first two to three years, starting in July 1994. Ordinarily, for the hours Phyllis worked, she received compensation besides the monthly $1,000.00 “payroll” payments. The record shows Phyllis received her usual $1,000.00 March 1, 1995, but then also was paid $50.00 March 3, 1995, the additional check designated as “Office Help.” Thereafter, Phyllis’ pattern was to work approximately five hours a month. Phyllis, herself, testified that she would work at the Clinic when an employee was absent, but did not always receive extra compensation for the work. Cris testified that Phyllis was paid separately, when compensated, for her help at the Clinic, in addition to the $1,000.00 payments. From this evidence, the jury could have concluded the $1,000.00 payments were for something other than for services rendered, notwithstanding the way in which they were marked.

Dan and Phyllis testified they received rent and salary from the Clinic before 2001, in monthly amounts totaling from $1,000.00 to $1,800.00 — a fluctuation which depended on the income of the Clinic. The record reflects that, before July 1994, Dan and Phyllis did not receive $8,000.00 payments. They did thereafter. It is also worth noting that, even when the Clinic experienced a $23,000.00 loss in 1997, Dan and Phyllis continued to receive monthly $2,000.00 and $1,000.00, respectively.

That the payments came from the Corporation’s funds is not dispositive, because the evidence is also clear that, during this time, the only practicing chiropractor generating income for the Corporation was Cris, and the parties treated the 1994 Contract as effectively putting the Corporation in Cris’ hands for all purposes.

Cris exercised possession and control of the Corporation by operating the Clinic on a day-to-day basis after the Contract. From 1980 to July 1994, Cris had no managerial duty and was inactive in the Clime’s daily operation. From July 1, 1994, through August 1, 2001, Cris paid, from the Corporation’s account, all the bills, salaries, and taxes. For those seven years, Cris kept track of all the income and the expenses of the Clinic.

After July 1994, Cris computerized the Clinic. The Clinic computer system was upgraded in 1997 and 2000. Cris personally borrowed against his savings account to pay for these improvements. Cris also replaced the x-ray processor. Again, Cris personally borrowed against his savings account to pay for the processor. In total, Cris incurred personal debt of $7,500.00 to pay for the computer upgrades and the x-ray processor.

There were additional changes in the operation of the Clinic after July 1994. Before July 1994, Dan owned an aii’plane, for which the Corporation paid the expenses. Once Cris raised the issue after July 1994, Dan started making personal payments for the maintenance and storage of, and insurance on, the airplane. Also, Dan and Phyllis started reimbursing the Corporation for any personal long distance telephone calls made on the Clinic’s equipment.

The implied finding of partial performance is supported by the evidence, so the contract is enforceable.

2. Sufficient Evidence Supports Phyllis’ Liability

Appellants argue that no evidence shows Phyllis intended to be a party to the agreement. Cris himself testified that only he and Dan met to discuss the June 1994 agreement.

The 1994 draft contract specifically names Phyllis. Also, Cris argues that Phyllis acknowledged the sales agreement on several different occasions. Cris testified that, five years later, Phyllis commented that the Clinic was now half Cris’. Further, when Cris consulted Phyllis about getting another table or something for the Clinic, she responded, “Do what you want, it’s your place. You don’t have to tell us.”

Further, Phyllis received the monthly $1,000.00 payments. Phyllis, between the years of 1994 and 2001, actively changed the designation and the method of the payments. Phyllis knowingly accepted the monthly payments and enjoyed the benefits. Hence, the contract is enforceable against Phyllis.

3. No Evidence Supports the Corporation’s Liability

Dan, Phyllis, and the Corporation argue that there is no evidence in the record that the Corporation acted through any of its agents to enter into any purported agreement with Cris. Cris argues that Dan and Phyllis were the only shareholders and owners of the Corporation and that the Corporation was set up by Dan. Cris in essence asserts that Dan and Phyllis effectively own the assets of the Corporation. He concludes, therefore, that Dan and Phyllis bound the Corporation to the contract.

We find no evidence that the Corporation was a party to the Contract. Had Dan or Phyllis exhibited the intent and authority to act for the Corporation in selling corporate assets, they might have bound the Corporation. But we find no evidence of authority or intent for either of them to act as an agent to bind the Corporation. The Corporation is not named in the Contract. Dan and Phyllis are named in the Contract solely in their individual capacities and with no hint of any agency status. Instead, the Corporation was uniformly ignored. No evidence supports liability by the Corporation.

We affirm Cris’ judgment against Dan and Phyllis but reverse and render a judgment that Cris take nothing against the Corporation.

      . Cris’ wife, Teresa, originally joined the suit with Cris. The "Contract” — and at trial the jury charge and findings — did not name Teresa. No evidence was adduced at trial showing her involvement in the Contract. The trial court initially erroneously included Teresa in the judgment but later amended the judgment to drop any mention of Teresa in the body of the judgment. The amended judgment, however, does not explicitly render a take-nothing judgment against her. Teresa does not play a role in this appeal, so she is omitted in this opinion. We presume that the trial court "intended to, and did, dispose of” Teresa and all issues involving her. See N.E. Ind. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966).

      . In determining a no-evidence issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450(Tex.l996). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450. When deciding a no-evidence point, in determining whether there is no evidence of probative force to support a jury’s finding, we must consider all the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In this review, we disregard all evidence and inferences to the contrary. Burroughs Well-come Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998).
      More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002). If we find some probative evidence, we will test the factual sufficiency of that evidence by examining the entire record to determine whether the finding is clearly wrong and unjust.
      When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that
      the verdict is clearly wrong and unjust. Id.; Cainv. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The court of appeals is not a fact-finder. Accordingly, the court of appeals may not pass on the witnesses’ credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Ellis, 971 S.W.2d at 407. If we find the evidence insufficient, we must clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance of the evidence as tosbe manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In so doing, we do not pass on the credibility of the witnesses, and we do not substitute our opinion for the trier of fact, even if there is conflicting evidence on which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

      . Dan, Phyllis, and the Corporation argue also that there was no evidence of any contract. We disagree. There is sufficient evidence of a contract in the record, some of which we review in our discussion of the evidence of partial performance. Additionally, a written, but unsigned, draft contract may be admitted as evidence of a parol agreement. See Ayers v. Herring, 32 S.W. 1060(Tex.Civ.App.l895, no writ).

      . Clearly, those submitted issues were necessarily referable to the sole ground of recovery, contract.


author: Justice MOSELEY.

text:
    Jose RAMIREZ and Antonia Ramirez, Individually and as Next Friends of Maria de los Angeles Ramirez, A Minor Child, and Claudia Ramirez, Appellants, v. Morad HARIRI and Nadereh Hariri, Appellees.
    No. 05-04-00407-CV.
    Court of Appeals of Texas, Dallas.
    June 27, 2005.

      J. Scott McLain, Edinburg, Victor Manuel Carrera, McAllen, for Appellant.
    Gregory R. Ave, Dawn Christine Woelfel Hansen, Touchstone, Bernays, Johnston, Beall & Smith, Dallas, for Appellee.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion By

Justice MOSELEY.

In this appeal of an order sustaining a special appearance, we address whether the alleged undercapitalization of a corporation, by itself, is a sufficient basis for piercing the corporate veil and attributing the corporation’s jurisdictional contacts to its shareholders, subjecting them to the jurisdiction of the Texas courts. We conclude it is not, and affirm the trial court’s order.

BACKGROUND

Claudia Ramirez and Maria de los Ange-les Ramirez, a minor child, were injured in a house fire allegedly caused by a defectively designed and/or manufactured portable radio, Cornet Model RC-1727. Cornet, a California corporation, manufactured the radio and placed it in the stream of commerce, where it was sold to the Ra-mirezes. Jose Ramirez and Antonia Ramirez, individually and as next friends of Maria, and Claudia sued Cornet in Texas. Cornet did not contest personal jurisdiction.

Subsequently the Ramirezes amended their petition to add as defendants Morad Hariri and Nadereh Hariri, who were Cornet’s sole shareholders. The Ramirezes’ amended petition asserts that Cornet was undercapitalized as the corporation is no longer in business and has no assets. The Hariris filed a special appearance to contest the assertion of personal jurisdiction. After a hearing, the trial court sustained the Hariris’ special appearance. The trial court found Cornet had assets greater than $250,000 at the time the Ramirezes bought the radio, Cornet maintained liability insurance, and Cornet had positive net equity at the time the company’s assets were sold.

The Ramirezes appeal, asserting four issues: (1) the evidence is legally and factually insufficient to support the trial court’s findings regarding Cornet’s assets, liability insurance, and net equity; (2) Cornet was undercapitalized as a matter of law; (3) the trial court findings are against the great weight and preponderance of the evidence; and (4) the trial court erred in granting the Hariris’ special appearance.

STANDARD OF REVIEW

A Texas court may exercise jurisdiction over a non-resident defendant if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with the due process clause of the United States Constitution. BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). The broad language of the long-arm statute permits a Texas court to exercise jurisdiction as far as the federal constitution will permit. Id. Consequently, in determining whether jurisdiction exists, we need only determine whether the exercise of jurisdiction comports with the due process clause of the United States Constitution. See City of Riverview, Mich. v. Am. Factors, Inc., 77 S.W.3d 855, 857 (Tex.App.-Dallas 2002, no pet.). The due process clause permits a court to exercise jurisdiction over a non-resident defendant if (1) the defendant has purposefully established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The defendant’s activities in the forum must justify a conclusion that the defendant could reasonably anticipate being haled into a Texas court. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert, denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003).

The plaintiff bears the initial burden of pleading facts sufficient to bring a non-resident defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793. A non-resident defendant challenging personal jurisdiction through a special appearance ordinarily carries the burden of negating all alleged bases of personal jurisdiction. Id. However, if the plaintiff seeks to assert jurisdiction over a non-resident defendant under a theory that the corporate fiction should be disregarded and the corporation’s jurisdictional contacts should be imputed to its non-resident shareholders, the plaintiff must prove that theory. See BMC Software, 83 S.W.3d at 798; Le Meridien Hotels & Resorts v. LaSalle Hotel Operating P’ship, I, L.P., 141 S.W.3d 870, 878 (Tex.App.-Dallas 2004, no pet.).

The exercise of personal jurisdiction over a non-resident is ultimately a question of law that often requires the resolution of factual issues as well. Kytel Int’l Group, Inc. v. Rent-A-Ctr., Inc., 132 S.W.3d 717, 719 (Tex.App.-Dallas 2004, no pet.) (citing BMC Software, 83 S.W.3d at 794). We review the trial court’s fact findings for legal and factual sufficiency, but conduct a de novo review of its legal conclusions. Id.

Discussion

The trial court found that the Ha-riris: (1) are not, and have never been, residents of Texas; (2) are not required to maintain and do not maintain registered agents for service in Texas; (3) do not engage, and have not engaged in business in Texas; (4) have not committed any tort in Texas. These findings of fact are not in dispute. Because there is not an individual basis for personal jurisdiction in Texas over the Hariris, the only means of asserting personal jurisdiction is the imputation of Cornet’s contacts onto these individual shareholders through the theory supporting the piercing of Cornet’s corporate veil.

The Ramirezes assert that because Cornet was undercapitalized, its shareholders should be subject to personal jurisdiction. They point to evidence that the business was liquidated and closed subsequent to the filing of the lawsuit. Because Cornet cannot pay a judgment, the Ramirezes contend Cornet is undercapitalized. However, there is also evidence in the record that prior to this lawsuit, Cornet had assets greater than $250,000, yearly sales grossing more than $1 million, and liability insurance.

The parties dispute when capitalization of the corporation is to be measured. The Ramirezes argue capitalization is measured at the time of the lawsuit, while the Hariris contend it is at the time the product was delivered. The determination of when to measure capitalization would be critical to the issue of whether there was sufficient evidence to support the finding that Cornet was inadequately capitalized. However, we do not reach this issue.

The Ramirezes assert that under-capitalization, by itself and without reference to any other factors, is sufficient to justify piercing the corporate veil and attributing Cornet’s jurisdictional contacts to the Hariris. We conclude that undercapi-talization alone, even if established, is not a sufficient basis to disregard the corporation and assert personal jurisdiction over the shareholders.

Generally, jurisdiction over an individual cannot be predicated on jurisdiction over a corporation. Clark v. Noyes, 871 S.W.2d 508, 518 (Tex.App.-Dallas 1994, no writ.); Leon Ltd. v. Albuquerque Commons, 862 S.W.2d 693, 708 (Tex.App.-El Paso 1993, no writ.). However, if a basis exists for disregarding the corporate fiction, personal jurisdiction over a non-resident party may be established by imputing the jurisdictional contacts of the corporate entity to its shareholders. See BMC Software, 83 S.W.3d at 798 (alter ego theory).

In Castleberry v. Branscum, 721 S.W.2d 270 (Tex.1986), the Texas Supreme Court recognized several situations in which Texas courts will disregard the corporate fiction:

(1) when the fiction is used as a means of perpetrating fraud;
(2) where a corporation is organized and operated as a mere tool or business conduit of another corporation;
(3) where the corporation fiction is resorted to as a means of evading an existing legal obligation;
(4) where the corporate fiction is employed to achieve or perpetuate monopoly;
(5) where the corporate fiction is used to circumvent a statute; and
(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.

Id. at 272. In a footnote, Castleberry goes on to state: “Inadequate capitalization is another basis for disregarding the corporate fiction.” Id. at n. 3. However, neither the two cases cited for that proposition nor, we believe, the text of the footnote, supports the conclusion that inadequate capitalization, standing alone, is a basis for disregarding the corporate form of doing business.

Castleberry’s footnote cites Torregrossa v. Szelc, 603 S.W.2d 803 (Tex.1980) and Tigrett v. Pointer, 580 S.W.2d 375, 381-82 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.). In Torregrossa, the supreme court held that the evidence did not support a finding of alter ego, such as to render a corporate vice-president personally liable for a judgment against the corporation. After concluding there was no evidence of a sham corporate structure, the court went on to discuss the court of appeal’s decision, which it characterized as reasoning “that the small capitalization of the corporation supported the jury finding that the corporation was the alter ego of Torregrossa so as to justify piercing the corporate veil.” Torregrossa, 603 S.W.2d at 804. The court noted that the corporation was formed with the minimum capital of $1,000, but noted “there is no showing that this was an unfair device designed to achieve an inequitable result.” Id. Indeed, citing a lack of evidence that there were unpaid creditors, what the assets were when the charter was forfeited, or what happened to those assets, the court concluded “there is no showing that this corporation was underca-pitalized.” Id.

Torregrossa went on to discuss Tigrett, which the court of civil appeals had cited “in support of its holding that insufficient capitalization is a sufficient ground to pierce the corporate veil.” Id. at 805. It concluded Tigrett “does not support such a holding in that it was there said that ‘[fin-adequate capitalization by itself may not be a sufficient ground to pierce the corporate veil.’ ” Id. Although Tigrett recognized inadequate capitalization as a factor in determining whether to render another hable for the corporation’s actions, the supreme court noted that in that case the inadequate capitalization was part of a fraudulent scheme. Id.

The Ramirezes cite no authority for the proposition that undercapitalization of a corporation is a sufficient basis, without other factors, to support an assertion of personal jurisdiction over the shareholders of a corporation. In a tort case, the financial strength or weakness of a corporation is an important factor in deciding whether to disregard the corporate fiction. Lucas v. Texas Industries, Inc. 696 S.W.2d 372, 375 (Tex.1984); see also Castleberry, 721 S.W.2d at 272. However, the mere existence of undercapitalization is not determinative. See Shaw v. Maddox Metal Works, Inc., 73 S.W.3d 472, 481 (Tex.App.-Dallas 2002, no pet.). Inadequate capitalization of a corporation is only one factor to be considered in piercing the corporate veil. See id.; Tigrett, 580 S.W.2d at 382.

The Ramirezes alleged only that Cornet was undercapitalized and presented evidence only on that issue. Because un-dercapitalization alone is not sufficient to disregard Cornet’s corporate status, its contacts may not be imputed to the Ha-riris as a basis for personal jurisdiction. The Hariris, as individuals, do not have sufficient contacts with the state of Texas to support personal jurisdiction. Therefore, we resolve the Ramirezes’ issues against them.

We affirm the trial court’s order.


author: Justice WRIGHT.

text:
    Julio Ramirez MESTAS, Appellant v. The STATE of Texas, Appellee.
    Nos. 05-04-01378-CR to 05-04-01380-CR.
    Court of Appeals of Texas, Dallas.
    June 28, 2005.

      Gary A. Udashen, Sorrels & Udashen, Larry Baraka, Dallas, for Appellant.
    Charles Patrick Reynolds, Johanna H. Kubalak, Assistant District Attorneys, Dallas, for the State.
    Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
   OPINION

Opinion by

Justice WRIGHT.

Julio Ramirez Mestas attempts to appeal his convictions for indecency with a child, evading arrest, and failure to stop and render aid. After the jury found him guilty of indecency with a child, appellant pleaded guilty to evading arrest and failure to stop and render aid. The trial court assessed punishment, enhanced by two pri- or felony convictions, at fifty-five years’ confinement and a $1000 fine in each case. The State, in a motion to dismiss, contends we lack jurisdiction over these appeals because appellant’s notices of appeal were untimely. Appellant responds that his motions for new trial acted to extend the time to file his notices of appeal, making them timely. For the following reasons, we conclude these appeals must be dismissed for lack of jurisdiction.

After appellant was sentenced in these cases, he filed a motion for new trial and a notice of appeal in each case. Appointed counsel filed briefs pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concluding the appeals were without merit and seeking to withdraw. The Eastland Court of Appeals agreed with counsel that the appeals were without merit, granted the motions to withdraw, and affirmed the trial court’s judgments. See Mestas v. State, Nos. 11-01-00234-CR, 11-01-00235-CR, 11-01-00236-CR, 2002 WL 32838727 (Tex.App.-Eastland 2002, no pet.) (not designated for publication). Subsequently, appellant filed an application for writ of habeas corpus in each case, complaining he had been denied access to the trial record and was not given the opportunity to file a pro se response to the Anders brief.

The court of criminal appeals agreed with appellant and granted him an “out-of-time” appeal in each case. See Ex parte Mestas, Nos. 74,858, 74,859, 74,-860, 2004 WL 281392 (Tex.Crim.App.Jan.14, 2004) (not designated for publication). The court of criminal appeals instructed appellant that, should he desire to prosecute an appeal, he must take affirmative steps to see that notices of appeal were given within thirty days after the mandates of the court of criminal appeals issued. Id. The mandates issued on February 18, 2004. Thus, appellant was required to give a notice of appeal in each case on or before March 19, 2004. Because appellant did not attempt to do so until April 1, 2004, we lack jurisdiction over these appeals.

In reaching this conclusion, we necessarily conclude that appellant’s February 16, 2004 motions for new trial did not extend the time for filing his notices of appeal. Although the court of criminal appeals opinion provides that “all time limits shall be calculated as if the conviction had been entered on the day that the mandate” issues, this reference to all time limits must be read in harmony with the balance of the opinion. The purpose of the court’s opinion was to allow appellant to pursue a remedy he was previously denied. Appellant was not denied the opportunity to assert a motion for new trial. He had, in fact, already filed motions for new trial in each case. Appellant’s complaint on application for habeas corpus was that he was denied the right to a meaningful appeal. The only relief the court of criminal appeals granted was an out-of-time appeal. Because a motion for new trial was not a remedy requested by appellant nor granted by the court of criminal appeals, we conclude the motions for new trial were ineffective to extend the time for filing the notices of appeal. Cf. Welsh v. State, 108 S.W.3d 921, 922-23 (Tex.App.-Dallas 2003, no pet.) (motion for new trial nullity in appeal from order disposing of a motion for DNA testing; therefore, not effective to extend time to file notice of appeal); Murray v. State, 89 S.W.3d 187, 188 (Tex.App.-Dallas 2002, pet. refd) (motion for new trial nullity in appeal from order deferring adjudication of guilt and was ineffective to extend time to file notice of appeal); McCoy v. State, 996 S.W.2d 896, 901 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (mandate granted additional time to file only notice of appeal; therefore, trial court did not have jurisdiction to consider motion for new trial). But see Malley v. State, 9 S.W.3d 925, 927 (Tex.App.-Beaumont 2000, pet. ref'd) (“all time limits” language broad enough to encompass filing of motion for new trial). Moreover, if the “all time limits” language in the court of criminal appeals opinion included a motion for new trial, the court of criminal appeals would not have expressly restricted the filing deadline for the “notice of appeal” to “within thirty days after the mandate ... has issued.”

Appellant was required to file a notice of appeal in each case on or before March 19, 2004. Because appellant did not attempt to file notices of appeal until April 1, 2004, his notices of appeal were not timely. When an appeal is not timely perfected, we do not obtain jurisdiction to address the merits of the appeal, and we can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.).

Accordingly, we dismiss these appeals for want of jurisdiction.

      . The State also raised this argument in its brief; however, the Court struck that brief as untimely and it is not before the Court.

      . The appeals were transferred to the East-land Court of Appeals pursuant to a transfer order from the Texas Supreme Court.

      . In 2004, February had 29 days.