author: TIM TAFT, Justice.

text:
    Doug GREATHOUSE, Appellant, v. ALVIN INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 01-99-00746-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.
    Rehearing Overruled June 2, 2000.

      Mark W. Stevens, Galveston, for appellant.
    Jeffery L. Rogers, Houston, for appel-lee.
    Panel consists of Justices MIRABAL, TAFT, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

TIM TAFT, Justice.

Appellant, Doug Greathouse, challenges a no-evidence summary judgment rendered in favor of appellee, Alvin Independent School District (Alvin ISD), against his claim of wrongful discharge based on racial discrimination. We address whether Greathouse established a prima facie case of racial discrimination, whether Alvin ISD proved a legitimate, non-discriminatory reason for the alleged discriminatory treatment,' and whether Greathouse brought forward some evidence showing that Alvin ISD’s reasons were a pretext for a discriminatory motive. We reverse.

Facts

When reviewing a summary judgment, we look at the facts in the light most favorable to Greathouse, the nonmovant. Greathouse is a Caucasian male, who worked as a police officer within the DARE program for Alvin ISD and was fired for violating a facial hair policy. Greathouse claims he did not violate the policy, and was fired as a result of racial discrimination directed against him.

Greathouse’s supervisor was Officer Hubbard, an African-American male. Greathouse claims Hubbard discriminated against him based on his race. Great-house maintains he was the victim of frequent false reports by Hubbard, who accused Greathouse of stealing a radio battery, an accusation Greathouse claims was a setup on Hubbard’s part. Great-house also claims Hubbard told him to wear a duty belt at all times, but that this was not proper under the DARE America agreement because wearing a duty belt would give children access to his radio and firearm. According to Greathouse, a co-worker, Sergeant Bobby Foerster, told Greathouse that Hubbard said anyone who wore a cowboy hat was a racist. Greathouse wore a cowboy hat. Greathouse, claims Hubbard frequently humiliated him in public, by commanding him to stand at attention before Hubbard, and imposed impossible work demands that were not enforced on anyone else. In addition, Hubbard wears a tattoo on his hand that signifies African-American intolerance for Caucasians, according to Greathouse. Another coworker, Guy Nichols, told Greathouse that Hubbard told him he hated Great-house, that Greathouse was a “KKK kind of guy,” and that Hubbard would do whatever it took to get rid of Great-house. Chief Wayne Duncan, a Caucasian, was aware of conflict existing between Greathouse and Hubbard when he placed Greathouse under Hubbard’s supervision.

Chief Duncan wrote a memo to Great-house telling him to trim his moustache because it was too long. Greathouse claims that he did not violate this restriction, but complied. Chief Duncan then called Greathouse into his office and asked him why he had not shaved his moustache. Chief Duncan told Greathouse he was officially suspended, and recommended he be terminated. Superintendent Tiemann terminated Greathouse soon thereafter.

Procedural History

Greathouse sued Alvin ISD, alleging racial discrimination in violation of the Texas Commission on Human Rights Act (TCHRA). Alvin ISD moved for summary judgment under rule 166a(i) of the Texas Rules of Civil Procedure. Alvin ISD argued it was entitled to summary judgment because Greathouse could not establish a prima facie case of discrimination and because Alvin ISD had legitimate, non-dis-eriminatory reasons for firing Greathouse. The trial court granted Alvin ISD’s motion for no-evidence summary judgment on Greathouse’s claim of racial discrimination. Greathouse brings a single ground on appeal, complaining that the trial court erred in granting summary judgment for Alvin ISD. Greathouse argues: (1) he established a prima facie case of racial discrimination; (2) Alvin ISD did not establish a legitimate, non-diseriminatory reason for its actions; and (3) Alvin ISD’s reasons for terminating Greathouse were a mere pretext for discrimination.

Standard of Review

In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence. Tex.R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence that raises a fact issue on the challenged elements. Id. When reviewing the grant of a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant, and disregard all contrary evidence and inferences. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App. — Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. See Tex.R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Conversely, more than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

TCHRA

Greathouse brought his claim of discrimination under the TCHRA. Tex. Lab.Code Ann. § 21.001— § 21.306 (Vernon 1996 & Supp.2000). The TCHRA ensures the execution of the policies embodied in Title VII of the United States Code by implementing the “correlation of state law with federal law in the area of discrimination in employment.” Tex. Lab.Code Ann. § 21.001(3) (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). Because the TCHRA seeks to promote federal civil rights policy and because little case law interprets the TCHRA, we look to analogous federal precedent. Schroeder, 813 S.W.2d at 485; Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App. — Houston [1st Dist.] 1993, writ denied).

Prima Facie Case

Greathouse’s first challenge concerns whether he established a prima facie case. To establish a prima facie case of employment discrimination, a plaintiff must show: (1) he was a member of a protected class, (2) he suffered an adverse employment action, and (3) non-protected class employees were not treated similarly. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Farrington, 865 S.W.2d at 251. Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate legitimate, non-diseriminatory reasons for any allegedly unequal treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Farrington, 865 S.W.2d at 251. After the employer articulates legitimate, non-discriminatory reasons, the burden shifts back to the plaintiff to prove that the employer’s articulated reasons are a mere pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Farrington, 865 S.W.2d at 251. Although the burden of production shifts, the burden of persuasion remains continuously with the plaintiff. McDon nell Douglas, 411 U.S. at 803, 93 S.Ct. at 1825; Farrington, 865 S.W.2d at 251.

Disparate Treatment

In moving for summary judgment, Alvin ISD argued that Greathouse did not produce any evidence showing that he was treated dissimilarly from other employees. This is the only element of the prima facie case that Alvin attacked in its motion for summary judgment.

Greathouse’s response included excerpts of deposition testimony in which he stated that other officers were treated differently, specifically, that Hubbard was allowed to wear a moustache in violation of the facial hair policy. Greathouse also provided evidence that, while other officers were paid to attend a training school, Greathouse was not reimbursed for this expense. Greathouse was given what he described as impossible job duties that were not given to anyone else, and was disciplined and written up by Hubbard for omissions and minor violations for which other non-Caucasians were not written up or disciplined in any manner. Greathouse also claimed Alvin ISD did not perform a proper background check on his replacement, an African-American male. This evidence constitutes some evidence that Greathouse was treated differently than other employees.

Non-Discriminatory Reason

Because Greathouse produced some evidence to establish a prima facie case of race discrimination, the burden shifted to Alvin ISD to prove a legitimate, non-discriminatory reason for the allegedly discriminatory treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Farrington, 865 S.W.2d at 251. In moving for summary judgment, Alvin ISD argued that Greathouse was terminated for the following non-discriminatory reasons:

(1)Ignoring his superior officer’s direct order to wear his hand-held radio;
(2) Misrepresenting to Hubbard that he could not carry his hand-held radio
■ because another officer had taken' the battery;
(3) Failing to carry his hand-held radio after Hubbard again ordered him to do so;
(4) Violating AISD’s policy on facial hair;
(5) Failing to abide by AISD policy regarding facial hair despite a direct order from Chief Duncan on July 17, 1996 and bragging to another officer that he was testing Chief Duncan’s determination;
(6) Failing to comply with Hubbard’s instructions to wait to receive a memorandum and then refusing to return to headquarters to retrieve the memorandum; and
(7) Refusing to comply with instructions from his superior officer in response to an alarm at a high school and then walking away while being questioned.

Alvin ISD’s motion established the following facts. After Chief Duncan ordered him to carry a hand-held radio, Greathouse told Chief Duncan that he did not think he should have to comply with orders like carrying a hand-held radio. Master Sargent Dominguez, who prepared a report for Chief Duncan, stated in an affidavit that Greathouse said he would not obey any orders from Hubbard and would not communicate with Hubbard. In light of this display of insubordination, Dominguez recommended that Greathouse be suspended or placed on probation. Although Chief Duncan decided to give Greathouse another chance to correct his behavior, Greathouse again told Chief Duncan that he should not have to carry a hand-held radio. Chief Duncan then notified Greathouse, by written memorandum, that he was in violation of the Alvin ISD facial hair policy. An attachment to Duncan’s memorandum spelled out that policy. Greathouse acknowledged receipt of this memorandum. Officer Mezzino, a coworker, stated that Greathouse told her he intentionally did not trim his mustache to see if Chief Duncan would fire him.

Alvin ISD’s evidence corroborates its claim that Greathouse was fired because he refused to follow orders from superiors, refused to carry a hand-held radio, and refused to comply with Alvin ISD’s facial hair policy. Furthermore, Officer Hubbard testified in his.affidavit that he was not involved in the decision to terminate Greathouse; this decision was made by Chief Duncan. Chief Duncan also stated, in his affidavit, that the decision to terminate Greathouse was not based on any racial motivation. This evidence established non-discriminatory explanations for terminating Greathouse. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 64 (Tex.App. — Houston [14th Dist.] 1998, no pet.); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 818 (Tex.App. — Corpus Christi 1996, writ denied) (holding that insubordination was a non-discriminatory reason for termination).

Pretext

Because Alvin ISD’s summary judgment demonstrated non-discriminatory reasons for terminating Greathouse, the burden shifted back to him to bring forward some evidence that Alvin ISD’s reasons were a pretext for an underlying, racially motivated reason. McDonnell-Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Farrington, 865 S.W.2d at 251.

Greathouse’s response to Alvin ISD’s motion for summary judgment includes his affidavit testimony that Hubbard, his supervisor, discriminated against him because of his race through false reports. Hubbard accused Greathouse of stealing a radio battery, which Greathouse claimed was a setup on Hubbard’s part. Greathouse claimed Hubbard’s instruction to wear a duty belt at all times was not proper under the DARE America agreement because wearing a duty belt would give children access to his radio and firearm. Sergeant Foerster told Greathouse, who wore a cowboy hat, that Hubbard said that anyone who wore a cowboy hat was a racist. Hubbard would frequently humiliate Greathouse publicly by requiring him to stand at attention. Hubbard gave Greathouse impossible work demands that were not enforced on anyone else, and Hubbard wears a tattoo that Greathouse contends shows African-American intolerance for Caucasians. Another co-worker told Greathouse that Hubbard said he hated Greathouse, that Greathouse was a “KKK kind of guy,” and that Hubbard would do whatever it took to get rid of Greathouse. Chief Duncan often reprimanded Greathouse based on information, provided by Hubbard, that Greathouse was insubordinate. Moreover, Greathouse claimed he did not violate the facial hair policy for which Alvin ISD claims he was terminated. These allegations raise a genuine issue of material fact regarding whether Alvin ISD’s reasons for terminating Greathouse were pretextual.

Alvin ISD argued in its motion for summary judgment, and now contends on appeal, that Greathouse’s discrimination claim is based on conclusory allegations and speculative beliefs, which are insufficient to maintain a cause of action under the TCHRA. See Patton v. United Parcel Serv. Inc., 910 F.Supp. 1250, 1265, 1267-68 (S.D.Tex.1995); Farrington, 865 S.W.2d at 251. Summary judgment for the defendant is proper when a plaintiff claiming race discrimination presents only conclusory allegations, improbable inferences, unsupportable speculation, or subjective beliefs and feelings. See Farrington, 865 S.W.2d at 251; Gold v. Exxon Corp., 960 S.W.2d 378, 384-85 (Tex.App. — Houston [14th Dist.] 1998 no pet.); see also Rios, 930 S.W.2d at 818 (plaintiff “sensed” that he was discriminated against because he was Hispanic; such does not demonstrate pretext); Azubuike, 970 S.W.2d at 64-65 (single, remote comment by employer to “socialize less with your Nigerian friends” is no evidence of pretext); Scales v. Slater, 181 F.3d 703, 712 (5th Cir.1999) (stray remark by employer that plaintiff find a “black mentor” does not create a fact issue regarding discriminatory intent).

The comments Greathouse attributes to Hubbard far exceed mere stray remarks or improbable inferences. Greathouse claims that Hubbard not only wears a tattoo signifying African-American supremacy, but also stated that Greathouse was a “KKK kind of guy” and a racist, and that Hubbard would do whatever it took to get rid of Greathouse. Greathouse’s evidence raises a genuine-issue of material fact concerning whether Alvin ISD’s stated, nondiscriminatory reasons for terminating Greathouse were merely a pretext to cover up underlying racial motivation. See Northwestern Resources Co. v. Banks, 4 S.W.3d 92, 97-98 (Tex.App. — Waco 1999, pet. filed) (Disparate treatment at work where plaintiff was subjected to conduct that Caucasian employees were not subjected to was some evidence of pretext.); Primeaux v. Conoco, Inc., 961 S.W.2d 401, 407-408 (Tex.App. — Houston [1st Dist.] 1997, no writ) (Employer’s claim that employee not rehired because of assumption that employee had not been released by doctor to return to work raised genuine issue of material fact regarding whether employer’s reason for not rehiring disabled employee was pretextual.); Willrich v. M.D. Anderson Hosp. & Tumor Institute, 1 S.W.3d 831, 836 (Tex.App. — Corpus Christi 1999, writ filed) (Numerous racial statements made at work raised a genuine issue of material fact regarding pretext.).

On appeal, Alvin ISD contends Greathouse has not established the required causal connection between the discriminatory conduct by Hubbard and the adverse employment action taken by Chief Duncan and superintendent Tiemann. Alvin ISD did not, however, raise this argument in moving for summary judgment. Because a summary judgment cannot be affirmed on a ground not presented to the trial court, we may not consider this issue now. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993);

Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex.App. — Houston [1st Dist.] 1993, no writ); See Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.”).

Because Greathouse has raised a genuine issue of material fact concerning whether he was treated dissimilarly from non-Caucasian employees and whether Alvin ISD’s stated, non-diseriminatory reasons for terminating Greathouse were a pretext for racially motivated reasons, the trial court erred in granting summary judgment in favor of Alvin ISD on Great-house’s wrongful termination cause of action.

We sustain Greathouse’s point of error.

Conclusion

We reverse the judgment and remand the case to the trial court.

      . We do not address whether Greathouse is a member of a protected class under the TCHRA because Alvin ISD has not raised this issue on appeal. The United States Supreme Court has held that Title VII of the Civil Rights Act prohibits discrimination against any racial group, including Caucasians. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976).

      . Chief Duncan was later terminated for tampering with a governmental record. After pleading nolo contendere to charges of tampering with a governmental record, Chief Duncan was required, as a term of his felony deferred adjudication supervision, to cooperate on all EEOC litigation with Alvin ISD regarding past employees.


source: Caselaw Access Project

author: DAVIE L. WILSON, Justice.

license: Public Domain

text:
    EUROCAPITAL GROUP LTD. and Neftetech International, Appellants, v. GOLDMAN SACHS & COMPANY, William Miller, Michael Dawson, James Milligan, and Jerome Wattenberg, Appellees.
    No. 01-99-00555-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.

      George D. Gordon, Conroe, Kurt Ar-buckle, Houston, for appellant.
    Ronald D. Secrest, Houston, for appel-lee.
    Panel consists of Chief Justice SCHNEIDER and Justices WILSON and SMITH.

       The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

DAVIE L. WILSON, Justice.

Appellants, Eurocapital Group Ltd. and Neftetech International, petitioned the district court for vacation of an arbitration award in favor of appellees, Goldman Sachs & Company, William Miller, Michael Dawson, James Milligan, and Jerome Wat-tenberg. Appellees answered and filed a motion for summary judgment. The district court granted the motion, dismissing all claims against appellees. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants are businesses engaged in investing foreign funds in the United States. Eurocapital is incorporated in the United Kingdom; Neftetech, in Ireland and Hong Kong. In 1992, Eurocapital opened an account with Goldman & Sachs with an initial investment of $12,000,000. In 1993, Neftetech opened an account with $1,035,000. Miller, Dawson, Milligan, and Wattenberg were the registered independent representatives with whom Eur'oc'api-tal and Neftetech did business. The arbitration provision in the Eurocapital cash account agreement provided:

(a) Arbitration is final and binding on the parties.
(b) The parties are waiving their right to seek remedies in court, including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different from court proceedings.
(d) The arbitrators’ award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.

Any controversy between you or any of your affiliates or any of your or their partners, officers, directors or employees on the one hand, and the Customer on the other hand, arising out of or relating to this Agreement or the accounts established hereunder, shall be settled by arbitration, in accordance with the rules then obtaining of any one of the American Arbitration Association or The New York Stock Exchange, Inc., or any other exchange of which you are a member, or the National Association of Securities Dealers, Inc. or The Municipal Securities Rulemaking Board Customer may elect. If Customer does not make such election by registered mail addressed to you at your main office •within ten (10) days after receipt of notification from you requesting such election, then Customer authorizes you to make such election on behalf of Customer. Any arbitration" hereunder shall be before at least three arbitrators and the award of the arbitrators, or of a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.

After the initial investments, appellants invested additional amounts, but incurred substantial losses. Appellants filed a claim in arbitration with the National Association of Securities Dealer, Inc. (“NASD”), and requested a hearing in Houston, Texas. Appellants alleged misrepresentation, breach of fiduciary duty, unsuitability, failure to supervise, excessive trading, negligence and gross negligence, common-law fraud, and violation of the Texas Deceptive Trade Practices and Consumer Protection Act. Three NASD arbitrators heard the case in 23 sessions between August 18 and December 15, 1997. On February 27, 1998, they served the award on the parties, dismissing appellants’ claim in its entirety, with prejudice.

On December 29, 1998, appellants filed their original petition in district court asking the court “for an Order Vacating an Arbitration Award under the Federal Arbitration Act.” Appellants alleged the award “was the product of such gross mistake as to imply bad faith or a failure to exercise an honest judgment in that there was a manifest disregard of the law by the arbitrators.” Appellants stated that they “were seeking redress based on violations of state and federal law with respect to the purchase of interest sensitive preferred stocks and interest-sensitive [sic] proprietary derivative [sic],” and directed the district court’s attention to the following statement in the award: “Although Claimants originally brought this claim for trading in common stocks generally, the claim was reduced to losses relating to two specific common stocks at the hearing.” Appellants claimed this statement showed “such a manifest disregard for the facts of the case and the applicable law that the Award must be vacated.” In their first amended original petition, appellants added the allegation that the arbitrators’ conduct and the resulting award were against public policy and were arbitrary and capricious.

Appellees answered, alleging that (1) the petition to vacate the award was not justi-ciable because it was filed after the statutory limitation period applicable to motions to vacate under the Federal Arbitration Act (“FAA”) and (2) the petition failed to state a claim that, if true, would support vacation of the award. Appellees also filed a motion for summary judgment under Texas Rule of Civil Procedure 166a(b). Appellees reasserted the limitations claim and alleged that, as a matter of law, appellants had misread the award, ignoring language that demonstrated appellants’ claims were baseless. The district court granted the motion ordering that all claims against appellees be dismissed with prejudice.

DISCUSSION

In two related points of error, appellants challenge the district court’s grant of summary judgment. In point of error one, appellants contend the district court erred if it granted summary judgment on the ground of limitations. In point of error two, appellants contend the district court erred if it granted summary judgment either on a no-evidence basis or on the basis that no genuine issue of material fact existed.

The party that seeks to vacate an arbitrator’s award has the burden in the trial court of bringing forth a complete record and establishing any basis that would warrant vacating the award. Kline v. O’Quinn, 874 S.W.2d 776, 790 (Tex.App. — Houston [14th Dist.] 1994, writ denied). Because arbitration is favored as a means of dispute resolution, courts indulge every reasonable presumption in favor of upholding the award. Wetzel v. Sullivan, King & Sabom, P.C., 745 S.W.2d 78, 81 (Tex.App. — Houston [1st Dist.] 1988, no writ). In the present case, the appeal is from a summary judgment, and we apply the summary judgment standard. See Teleometrics Int’l, Inc. v. Hall, 922 S.W.2d 189, 193 (Tex.App. — Houston [1st Dist.] 1995, writ denied) (distinguishing standard of review in cases when appeal is from grant of summary judgment from standard when appeal is from judgment confirming award).

Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49. We must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Id. at 549. Summary judgment is proper when a plaintiffs allegations cannot constitute a cause of action as a matter of law. Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92; 98 (Tex.App. — Houston [1st Dist.] 1994, writ denied). When the order granting summary judgment does not specify the ground on which the trial court is relying, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Limitations. It is undisputed that appellants filed their petition to vacate the award 10 months after the award was served on the parties. Appellants argue that the ground they asserted for vacating the award was a common-law ground; that, therefore, common-law, not statutory limitations govern; and that the state statutory residual four-year limitations period should apply. Tex. Crv. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997). Appellees argue that the limitation provision of the FAA applies. Under the FAA, notice of a motion to vacate an award must be served on the-adverse party within- three months after the award is filed or delivered. 9 U.S.C.A. § 12 (West 1999). We hold that the three-month limitation of the FAA applies under the facts of this case.

The contract containing the arbitration provision in this case is an account agreement dealing with the sale of securities. As such, the agreement involves interstate commerce, and the FAA applies to the present dispute. Thomas James Assocs., Inc., v. Owens, 1 S.W.3d 315, 319 (Tex.App. — Dallas 1999, no pet.); see also Williams v. Cigna Fin. Advisors, 56 F.3d 656, 659 (5th Cir.1995) (reasoning that, because U-4 Registration was contract involving sale.of securities, it thus involved commerce). We also note that appellants stated in their pleadings that they were seeking relief under the Federal Arbitration Act.

Section 2 of the FAA is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24,103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The effect of section 2 is “to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.” Cone, 460 U.S. at 24, 103 S.Ct. at 941.

The same statute that, in section 10, set forth the grounds for vacating an arbitration award also set forth, in section 12, the period for bringing such challenges in the federal district court. Act of July 80,1947, ch. 392, Pub.L. No. 282, §§ 10,12, 61 Stat. 669, 672-73 (codified at 9 U.S.C. §§ 10, 12). FAA section 12 provides, “Notice of a motion to vacate ... an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 U.S.C.A. § 12 (West 1999).

When the very statute that creates a right of action incorporates an express limitation on the time within which the suit can be brought, the statute of limitation is considered substantive. Hill v. Perel, 923 S.W.2d 636, 639 (Tex.App.— Houston [1st Dist.] 1995, no writ). Furthermore, we view FAA sections 10 and 12 together as part of an enforcement scheme intended to promote the federal policy favoring arbitration when the underlying contract concerns interstate commerce.

See Zhaodong Jiang, Federal Arbitration Law and State Court Proceedings, 23 Loy. L.A. L. Rev. 473, 526 (1990); see also Tampa Motel Management Co. v. Stratton of Florida, Inc., 186 Ga.App. 135, 366 S.E.2d 804, 808 (1988) (applying federal limitations period). But see Atlantic Painting & Contracting, Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky.1984) (concluding limitations provision was procedural and not applicable in state proceedings). We hold that the three-month limitation period of FAA section 12 applies to the present case.

Accordingly, we reject appellants’ contention that, because they asserted a common-law ground for vacating the award, the state statutory residual four-year limitation period should apply. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.051 (Vernon 1997). The longer period is not consistent with even the common-law rule that favors arbitration and indulges every reasonable presumption in favor of upholding an award. See House Grain Co. v. Obst, 659 S.W.2d 903, 905 (Tex.App. — Corpus Christi 1983, writ ref d n.r.e.).

Appellants have cited no case that supports their position. At oral argument, appellants argued that the case most closely approximating theirs is Mian v. Donaldson, Lufkin, & Jenrette Securities Corp., 7 F.3d 1085 (2nd Cir.1993). Mian sued in district court alleging that the defendants had discriminated against him because of his race during arbitration proceedings. His suit, therefore, was a civil rights action under 42 United States Code sections 1981,1985(3), and 1986, not a suit challenging the arbitration award. The second circuit held that the limitations periods applicable to sections 1981, 1985, and 1986 applied in the case before it, even though a major component of Mian’s damages would consist of the amount of the arbitration award. Id. at 1087. In contrast to Mian, appellants’ suit in this case was, by appellants’ own representation, a suit under the Federal Arbitration Act.

We hold that appellants’ petition to vacate the award was not timely, and they have forfeited their right- to judicial review of the award. Piccolo v. Dain, Kalman & Quail, Inc., 641 F.2d 598, 600 (8th Cir.1981); cf. Teleometrics Int’l., 922 S.W.2d at 192 (90-day period under state arbitration act is limitations period after which party has no right to petition court to vacate arbitration award).

We overrule appellants’ point of error one. Because the limitations theory advanced in the motion for summary judgment is meritorious, we need not address appellants’ point of error two. State Farm Fire & Cas. Co., 858 S.W.2d at 380.

We affirm the judgment.

      . The statement of claim for arbitration, the pleadings, and the judgment in the district court refer to "Neftetech” and "Goldman Sachs & Company,” rather than "Neftech” and "Goldman Sachs & Company, Inc.,” as used in the notice of appeal and in this Court. Consistent with the judgment, we refer to the parties as "Neftetech” and "Goldman Sachs & Company,” and assume they are the parties to the present appeal.

      . The cash account agreement also provided, "This agreement and its enforcement shall be governed by the laws of the State of New York and its provisions shall cover individually and collectively all accounts which Customer may maintain with you.” Neither party argues that this general choice of law provision required that New York arbitration law govern the arbitration or subsequent proceedings. Cf. Texas Commerce Bank v. Universal Tech. Inst, of Texas, Inc., 985 S.W.2d 678, 679 (Tex.App. — Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (arbitration clause required arbitrators to apply Texas law).

      . See Tex. Bus. & Com.Code Ann. § 17.41 — .63 (Vernon 1987 & Supp.2000). In addition to alleging common-law violations and violations under the Business and Commerce Code, appellants alleged violations of federal and state securities laws, too numerous to list.

      . Under the Texas General Arbitration Act ("TGAA”), a party must make application to vacate an award not later than the 90th day after the date a copy of the award is delivered to the applicant. Tex. Civ. Prac. & Rem.Code Ann. § 171.088(b) (Vernon Supp.2000). If the party is claiming “the award was obtained by corruption, fraud, or other undue means,” the party has until the 90th day after the date the grounds in the application were known or should have been known. Tex. Civ. Prac. & Rem.Code Ann. § 171.088(a)(1), (b) (Vernon Supp.2000).

      . Section 2 of the FAA provides: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2 (West 1999).

      . Section 10 provides that an award may be vacated on the following grounds:
      (1) Where the award was procured by corruption, fraud, or undue means.
      (2) Where there was evident partiality or corruption in the arbitrators, or either of them.
      (3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
      (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      (5) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.
      9 U.S.C.A. § 10(a) (West 1999). In addition, some federal courts have adopted the federal common-law doctrine of manifest disregard in conjunction with the FAA. See International Bank of Commerce-Brownsville v. International Energy Dev. Corp., 981 S.W.2d 38, 48 (Tex. App. — Corpus Christi 1998, pet. denied) (citing cases), cert, denied, — U.S. -, 120 S.Ct. 982, 145 L.Ed.2d 932 (2000).

      . The court of appeals for the fourteenth district appears to have concluded the federal limitation period would apply to actions brought in state court. Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 236 (Tex.App. — Houston [14th Dist.] 1993, writ denied). The court held that Babcock’s failure to pay an award within 30 days after it was rendered, as required by the award, did not constitute a breach because Babcock moved to vacate and/or modify the award three days after it was rendered. In this context, the court observed that, under 9 U.S.C. section 12, Babcock had three months to bring a motion to vacate. Id.


author: ERIC ANDELL, Justice.

text:
    MELLON SERVICE COMPANY, Appellant, v. TOUCHE ROSS & COMPANY, Appellee.
    No. 01-99-00003-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.

      Diane M. Guariglia, Larry Thompson, Houston, for Appellant.
    Steve Andrews, Robert M. Corn, Houston, M. Byron Wilder, Oscar Rey Rodriguez, Dallas, for Appellee.
    Panel consists of Justices COHEN, HEDGES and ANDELL.
   OPINION

ERIC ANDELL, Justice.

Mellon Service Company, appellant, brought a derivative cause of action as a minority shareholder of BioSpectrum, Inc., fik/a Immuno Modulators Laboratories, Inc. (IML), against Touche Ross & Co., appellee, Granada Corporation, and- Granada Genetics, Inc. (collectively, Granada) for negligence, gross negligence, constructive fraud, tortious interference, conspiracy, breach of a confidential relationship, and violations of the Texas Deceptive Trade Practices Act (DTPA).

We are asked to decide if the trial court erred in granting Touche’s motions for summary judgment On the issues of: (1) limitations; (2) breach of a fiduciary duty; and (3) res judicata and collateral estoppel. We affirm.

Facts

In 1985, IML entered into a stock exchange agreement with Granada. By December, 1986, Granada had exercised its option and obtained 86.31% of IML’s outstanding shares of common stock, making itself the majority shareholder of IML. Granada proceeded to place four of its officers on IML’s board of directors.

On June 29 and 30,1987, IML’s board of directors met to consider an asset purchase offer from Granada Genetics, Inc., a wholly owned subsidiary of Granada. Under the asset purchase agreement, IML would agree to sell substantially all of its assets, including two of IML’s most important products, Agriferon and Equiferon, in exchange for the cancellation of a $2.3 million debt owed to Granada. On June 30, 1987, the board of directors of IML recommended approval and acceptance of the asset purchase offer made by Granada Genetics, Inc.

On July 14, 1987, a special meeting of the shareholders of IML was held to consider whether the asset purchase agreement should be ratified. The six members of the board of directors were present as well as two representatives of Touche. The asset exchange was approved, with Granada voting its 86% in favor and the minority shareholders voting their 14% against.

Standard of Review

Summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). When a trial court’s order rendering summary judgment does not specify what grounds it relied upon for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

STATUTE OF LIMITATIONS

In point of error two, Mellon asserts that the trial court erred in rendering summary judgment in favor of Touche on the basis that Mellon’s claims for negligence and gross negligence, civil conspiracy, tortious interference and DTPA violations were barred by a two-year statute of limitations. Mellon filed suit against Touche on July 26, 1989, therefore, the accrual date for each cause of action could be no earlier than July 26, 1987, or the claims would be barred. Touche argues that the event allegedly giving rise to Mellon’s claimed injury was the sale of substantially all of IML’s assets to Granada. It is undisputed that this sale was approved by IML’s shareholders on July 14, 1987.

1.Standard of Review

A defendant seeking summary judgment on the ground of statute of limitations must: (1) prove, when the cause of action accrued; and (2) negate the discovery rule by proving as a matter of law there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). If the movant, Touche, establishes that the statute of limitations bars the action as a matter of law, the non-movant, Mellon, must then adduce summary judgment proof which raises a fact issue to avoid the statute of limitations. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

2. Accrual of the Cause of Action

The general rule is that a cause of action accrues when a wrongful act causes some legal injury, even when the fact of injury is not discovered until later, and even if all of the resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). The record reflects that Mellon has consistently claimed that the event giving rise to its alleged injury is the sale of substantially all of IML’s assets to Granada. The asset purchase agreement was given final approval by IML’s shareholders at a meeting on July 14, 1987. Mellon was represented by its president and chairman, Hugh Oneal Myers, and by counsel at this meeting, and was aware of the sale. As a matter of law, Mellon’s cause of action accrued when the shareholders voted and approved the asset purchase agreement.

3. The Discovery Rule

The above stated general rule is applied with the exception of the discovery rule. Id. The discovery rule is 'generally applied in two types of cases: fraud or fraudulent concealment, and where the nature of the injury incurred is inherently undiscoverable, but may be objectively verified. Id. at 6. When a cause of action is deferred by the discovery rule, the cause of action does not accrue until the plaintiff knew or should have known of the wrongful act and resulting injury. Id. Even when the discovery rule is applied, the cause of action accrues’when the fact of injury is known, not when the responsible parties are known. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex.1990).

Counsel for Mellon sent correspondence to the boards of directors at IML and Granada on July 14, 1987, formally objecting to the asset purchase agreement and requesting that Granada not be allowed to vote due to conflict of interest concerns. This letter, plus the minutes of the shareholder meeting to vote on the asset purchase agreement demonstrate that Mellon had knowledge of the sale of substantially all of IML’s assets to Granada no later than the date of the approval by IML shareholders on July 14,- 1987. The minutes of the July 14, 1987 meeting show that Mellon was present, represented by its president and an attorney, and objected to Granada’s vote on the asset purchase agreement.

Further, Mellon has brought suit on behalf of the corporation IML. IML was aware of the asset purchase agreement even before the shareholders were notified of the offer from Granada. Therefore, Touche has negated the discovéry rule by proving as a matter of.law there is no genuine issue of fact about when Mellon discovered or should have discovered the nature of the injury. Touche has conclusively established each element of its affirmative defense of limitations. Mellon has provided no summary judgment proof which raises a fact issue to avoid the statute of limitations.

4. Fraudulent Concealment

As an independent ground to defeat summary judgment, Mellon asserts that Touche fraudulently concealed a cause of action from the minority shareholders, and limitations did not begin to run until Mellon knew of its injury, or should have known by the exercise of reasonable diligence. A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion, and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994). A mere pleading does not satisfy either burden. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Thus the party must produce evidence establishing the defendant had: (1) actual knowledge of the wrong; (2) a duty to disclose the wrong; and (3) á fixed purpose to conceal the wrong. Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex.App. — Houston [1st Dist.] 1995, no writ).

While Mellon has raised fraudulent concealment in its response to the summary judgment motion, it has not come forward with any summary judgment evidence raising a fact issue on the elements of this defense. Mellon simply points to a conclusory statement in the affidavit of its president, Hugh Oneal Myers, that he did not know the action taken at the July 14, 1987 meeting caused harm to IML until 1988. Mellon provides no evidence supporting this contention.

Accordingly, we overrule point of error two and affirm the trial court’s rendition of summary judgment on Touche’s affirmative defense of limitations.

BREACH OF FIDUCIARY DUTY

In point of error three, Mellon argues the trial court erred in rendering summary judgment on its claim that Granada breached its fiduciary duty to IML. Mel-Ion’s claim for breach of a fiduciary duty by Touche has a four-year statute of limitations which does not bar this cause of action by Mellon.' Therefore, we will address the trial court’s grant of Touche’s motion for summary judgment on these grounds separately.

In December 1986, Granada hired Touche, an accounting, tax planning and business consulting firm. Touche submitted a proposal to Granada offering comprehensive auditing, tax planning and compliance, and management consulting services related to the preparation of a registration statement. Touche included a brief description of the qualifications and background of each individual it proposed to work on the Granada account, and the services Touche would provide. Two of those individuals, Ben Anderson and Steve Lee, were attorneys as well as certified public accountants. Both were recommended for the “tax team” that Touche proposed for Granada.

Mellon argues that Touche is liable for a breach of fiduciary duty based upon its attorney-client relationship with IML, and that the trial court erred in granting Touche’s motion for summary judgment on this claim. Touche asserts that as an accounting firm, it had no attorney-client relationship with Granada or IML and therefore, did not breach any fiduciary duty owed to IML on that basis.

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client. Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex.App.— Houston [1st Dist.] 1999,, pet. denied). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Id.

Touche offered, and was hired by Granada, to perform accounting, auditing and management consulting services, not legal services. Touche’s accounting services to Granada included an audit of IML’s financial statements. Mellon’s argument that an attorney-client relationship existed between IML and Touche seems to be based solely on the fact that two of the members of Touche’s tax team organized for the Granada account were also lawyers. Both men stated in their affidavits that they were not acting as attorneys at any time during their employment at Touche. Tom Easley, Granada’s vice president and chief financial officer, testified that he retained Touche at the direction of Granada’s president and that he defined the scope of their engagement with Granada. In his affidavit, Easley states that he knew at the time Touche did not provide legal services, and Touche was not expected to do so. He continues that neither Granada nor IML entered into an attorney-client relationship with Touche at any time.

Mellon has offered no evidence to support its contention that an attorney-client relationship existed, other than the fact that two Touche employees happened to be attorneys as well as certified public accountants. We conclude as a matter of law that no attorney-client relationship existed between Touche and IML or Granada. Accordingly, the rendition of summary judgment on this ground was proper.

Based on our disposition of these two points of error, we need not address the remaining point of error.

We affirm.

      . See American Centennial Ins. Co. v. Canal Ins. Co., 810 S.W.2d 246, 255 (Tex.App.— Houston [1st Dist.] 1991), aff d in part, rev’d in pari on other grounds, 843 S.W.2d 480 (Tex.1992) (statute of limitations for negligence and gross negligence is two years); Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex.App. — Houston [1st Dist.] 1990, writ denied) (statute of limitations for civil conspiracy is two years); First Nat’l Bank of Eagle Pass v. Levine, 111 S.W.2d 287, 289 (Tex.1986) (statute of limitations for tortious interference with a contract is two years); Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 1987) (statute of limitations for DTPA cause of action is two years).


author: MICHOL O’CONNOR, Justice.

text:
    OLYMPIA MARBLE & GRANITE, Appellant, v. Christopher MAYES and Cynthia Mayes, Appellees.
    No. 01-98-00845-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 4, 2000.
    Rehearing Overruled May 25, 2000.

      W. Joel Bryant, Houston, for Appellant.
    Keith M. Fletcher, Houston, John C. Grazier, Seabrook, for Appellees.
    Panel consists of Justices O’CONNOR, WILSON, and ANDELL.
   OPINION ON REHEARING

MICHOL O’CONNOR, Justice.

This is a limited appeal from a default judgment against Olympia Marble & Granite (Olympia), the defendant below and appellant here, in favor of Christopher Mayes and Cynthia Mayes (the Mayes), the plaintiffs below and appellees here. In an opinion dated January 18, 2000, we dismissed the appeal for want of jurisdiction. Olympia filed a motion for rehearing. We grant the motion, withdraw our opinion of January 18, 2000, and issue this opinion in its place.

Background

In June 1994, the Mayes sued Olympia for personal injuries Christopher suffered in 1992 while lifting marble tables. When service on Olympia was unsuccessful, the Mayes filed a motion for substituted service supported by an affidavit stating:

On July, 1994,1 spoke with Mr. Raffi B. Yegyayan, owner of Olympus Marble and Granite, and he advised that he had purchased the business telephone number of Olympia Marble and Granite from Mr. Dimitrios Bissias, and that Mr. Bis-sias had returned to Greece to live.
On August 15, 1994, I spoke with Mr. Angelo Dimitrios Bissias, who resides at 427 Bayou Cove, Houston, Texas, in an attempt to determine if his father, Mr. Dimitrios George Bissias had in fact returned to Greece to live. Mr. Angelo Bissias advised that his father, Dimitrios George Bissias was presently living in Athens, Greece, and had been living there for approximately one (1) year. Mr. Angelo Bissias indicated that Dim-itrios Bissias would be returning to the United States over the Christmas holidays to visit, and he would be in contact with him during that period of time.

The trial court ordered substituted service on Olympia by serving its owner Dim-itrios Bissias, by serving anyone over 16 years of age residing at 427 Bayou Cove. The constable filed his return, stating service was executed on February 3, 1995 at 427 Bayou Cove on “Dimitrios Bissias per Rule 106 by delivering to w/m over 16 years of age at address.”

Olympia did not answer or otherwise appear. Default judgment against Olympia was granted and the judge signed a judgment on November 7, 1997 (the November Judgment). The November Judgment awarded compensatory damages and prejudgment interest, but did not include an amount for prejudgment interest. Instead, the trial court drew a line through the space in which a prejudgment interest amount would have been inserted, leaving the words awarding prejudgment interest in the judgment. The judge added his initials after the line drawn through the blank. On January 29, 1998, the trial court signed what purported to be an amended final judgment (the January Judgment), which was identical to the November Judgment 'except that it included an amount for prejudgment interest.

On July 29, 1998, Olympia filed a restricted appeal under Texas Rule of Appellate Procedure 25.1(d)(7). On appeal, Olympia challenges the default judgment on the grounds that service was invalid because (a) the affidavit supporting the motion for substituted service was deficient, (b) proof of service did not comply with the trial court’s order, and (c) service of process was not reasonably effective to give Olympia notice of the suit.

Timeliness of Olympia’s Appeal

In a single cross-point, the Mayes assert this Court does not have jurisdiction because Olympia’s restricted appeal was filed more than six months after the signing of the November Judgment. See Tex.R.App. P. 26.1(c) (requiring restricted appeals to be filed within six months after signing of judgment). Because the Mayes’s cross-point affects this Court’s jurisdiction, we address it first.

A final judgment is one that disposes of all parties and issues in the case. Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex.1982). A judgment must be sufficiently definite and certain to define and protect the parties’ rights, or it should provide a definite means of ascertaining such rights so that ministerial officers can carry the judgment into execution without ascertaining facts not stated in the judgment. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994). If the amount awarded by the judgment cannot be determined, the judgment is interlocutory. H.E. Butt Grocery Co. v. Bay, 808 S.W.2d 678, 680 (Tex.App. — Corpus Christi 1991, writ denied).

Statutorily • authorized interest may be predicated on a prayer for general relief. Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex.1987). Therefore, even if a personal injury plaintiff does not specifically plead prejudgment interest, if the plaintiffs claim falls within the scope of a statute authorizing prejudgment interest, then the plaintiff is entitled to prejudgment interest based on a claim for general relief alone. Id. Here, the Mayes specifically pled for prejudgment interest, which is authorized by statute. See Tex.Rev.Civ. Stat. article 5069-1.05 § 6(a) (“Judgments in wrongful death, personal injury and property damage cases must include prejudgment interest (emphasis added)). Accordingly, the Mayes were entitled to prejudgment interest as a matter of law.

November Judgment

Olympia contends the November Judgment was interlocutory because it did not state a specific amount for prejudgment interest; therefore, a ministerial officer could not determine the amount of prejudgment interest to issue a writ of execution.

When the rate and means of calculating interest is a matter of law, it need not be stated in the judgment. Ortiz v. Avante Villa, 926 S.W.2d 608, 611 (Tex.App. — Corpus Christi 1996, writ denied) (default judgment in wrongful death case, which did not specify how prejudgment interest was to be calculated, was a final judgment); see also H.E. Butt Grocery, 808 S.W.2d at 680. The prejudgment interest rate is set as a matter of law. See Tex.Rev.Civ. Stat. art. 5069-1.05 § 6(g) (prejudgment interest rate equal to post-judgment interest rate at time of judgment); Tex.Rev.Civ. Stat. art. 5069-1.05 § 2 (providing method by which interest rate is determined). Olympia argues that Article 5069-1.05, Section 6(a) provides for alternate dates on which prejudgment interest is to begin accruing;' therefore, the means of calculating the amount of prejudgment interest is a mere ministerial act. Section 6(a) provides as follows:

Judgments in wrongful death, personal injury, and property damage cases must include prejudgment interest. Except as provided by Subsections (b), (c), and (d) of this section, prejudgment interest accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered.

Although the parties do not refer us to any cases addressing this narrow issue, we find guidance in other cases that have addressed when missing facts render a judgment interlocutory.

In Zamarripa v. Sifuentes, 929 S.W.2d 655, 657 (Tex.App.—San Antonio 1996, no writ), a default judgment was silent on the issue of prejudgment interest and the plaintiffs (appellees) argued the omission did not render the judgment interlocutory because prejudgment interest was mandatory in personal injury cases. The plaintiffs contended prejudgment interest was recoverable, even if not specifically awarded in the judgment, because the calculation of prejudgment interest was purely a ministerial function. Although the court of appeals agreed with this argument as a general concept, it noted that Article 5069-1.05 provided for a tolling period when a settlement offer was pending. 929 S.W.2d at 657. The tolling provisions of.section 6(b) and (c) require the court to compare the amount of the settlement offer to the amount of the judgment. The provisions also require exact information on the period of time the settlement offer was pending. The record in Zamarripa indicated that written settlement offers were exchanged by the parties on more than one occasion before entry of the default judgment. Because the pending dates and amounts of such offers were not clear as part of the record, it was no mere ministerial act to calculate prejudgment interest. Id. Taking these provisions into consideration, the court of appeals was unable to ascertain from the judgment when prejudgment interest would begin to accrue. Because the calculation of prejudgment interest involved fact issues that remained unresolved by the default judgment, the judgment was not final. Id. at 657-58.

In H.E. Butt Grocery, 808 S.W.2d at 680, the default judgment awarded prejudgment interest, but did not specify the rate or date of accrual. The defendant (appellant) asserted the judgment was not final. The court of appeals noted there were three possible authorities under which prejudgment interest could be ordered by the trial court — two statutory and one at common law. Id. (citing to Article 5069-1.03 & 5069-1.05 and Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985), respectively). Because the suit was not one for personal injury, wrongful death, or property damage, Article 5069-1.05 did not apply. Therefore, the question was which of the two remaining authorities (Article 5069— 1.03 or Cavnar) would apply. Id. Because the appellate court could not determine from the record which of the two authorities the trial court applied, the amount of prejudgment interest was not capable of definite ascertainment from its own terms. Id. at 681. Therefore, the default judgment was not final. Id.

In Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914, 923 (Tex.App.—Beaumont 1998, pet. dism’d), the issue on appeal was not the finality of the judgment, but whether the trial court erred by not applying a settlement credit before calculating prejudgment interest on the jury’s verdict, and by calculating prejudgment interest from the date the lawsuit was filed. The court of appeals noted that in personal injury and wrongful death cases involving an asbestos-related injury or disease or other latent injury or disease, prejudgment interest accrues from a date six months after the date the defendant received notice of the claim or the lawsuit was filed, whichever occurred first. Because the record did not indicate the plaintiffs sent defendant a notice of claim before filing suit, the appellate court concluded prejudgment interest should have been calculated starting from the date six months after suit was filed. Id.

We construe Zamarripa, H.E. Butt Grocery, and Fuller-Austin as standing for the proposition that if the record reveals facts that call into question the date on which prejudgment interest should accrue, then the calculation of prejudgment interest is not a simple ministerial act. We construe Zamarripa and H.E. Butt as standing for the proposition that, in such a case, the judgment is not final. On the other hand, if there are no facts in the record to call into question the date on which prejudgment interest should accrue, then the calculation of prejudgment interest is a mere ministerial act.

Here, the record indicates there are other facts necessary to the calculation of prejudgment interest. The record does not indicate the Mayes sent Olympia written notice of their claims. The date of the Mayes’ petitions are in the record. Therefore, prejudgment interest should be calculated from the date the Mayes filed their petitions against Olympia. However, the record indicates there are periods in which entry of the judgment was delayed.

On June 8, 1994, Christopher filed suit against Olympia in a third amended petition. On July 12, 1994, Cynthia filed suit against Olympia in a fourth amended petition. In July 1994, the Mayes learned that Bissias had returned to Greece. On December 5, 1994, the Mayes filed a motion for substituted service. On February 9, 1995, the return of citation was filed with the clerk. Assuming service was valid, the Mayes could have moved for default judgment as early as February 24, 1995. See Tex.R. Civ. P. 107. Yet, Christopher waited until August 7, 1995 to file a motion for interlocutory default judgment, and Cynthia waited until October 26, 1995. The court rendered interlocutory default judgment for Christopher on August 31, 1995 and for Cynthia on November 8, 1995. Neither plaintiff took any action in the lawsuit for two years until after it was dismissed for want of prosecution on October 29, 1997. On November 7, 1997, the lawsuit was reinstated, and the trial court signed the November Judgment.

Article 5069-1.05, section 6(d) provides that “the court in its discretion may order that prejudgment interest does or does not accrue during periods of delay in the trial.... ” Tex.Rev.Civ. Stat. article 5069-1.05 § 6(d). This language allows for-two alternatives: the court may order that prejudgment interest does accrue during periods of delay, or the court may order that prejudgment interest does not accrue during periods of delay.

The trial court has the discretion to toll the accrual period. Tex.Rev.Civ. Stat. article 5069-1.05 § 6(d) (“the court in its discretion may order ... ”); see C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 326 (Tex.1994) (trial courts have discretion to toll the accrual of prejudgment interest in response to a plaintiffs delay); see also City of Alamo v. Casas, 960 S.W.2d 240, 260 (Tex.App.—Corpus Christi 1997, writ denied). In Casas, the case had been twice dismissed for want of prosecution as a result of the plaintiffs inaction. The City argued that the trial court abused its discretion by refusing to factor into its calculation of prejudgment interest those periods of delay caused by the plaintiffs. The appellate court disagreed, noting that the “statute does not mandate such offsetting, which is entirely within the discretion of the trial court.” Id. at 260. The appellate court refused to substitute its opinion for that of the trial court. Id.

Here, the November Judgment does not indicate whether the trial court determined there was delay, and if there was delay, whether interest should accrue during the period(s) of delay. Because there are facts in the record that call into question the date on which prejudgment interest should accrue and whether any period of delay tolled the accrual of prejudgment interest, it would not be a mere ministerial act to calculate prejudgment interest. Therefore, the November Judgment did not dispose of all issues; it left open the amount of prejudgment interest to be awarded. Accordingly, the November Judgment was interlocutory. When the trial court calculated the prejudgment interest in the January Judgment, it disposed of all issues. Thus, the January Judgment was the final judgment and Olympia’s appeal is timely.

We overrule the Mayes’ cross-issue.

Affidavit Deficiencies

In issue one, Olympia argues that service was invalid because the affidavit supporting the Mayes’s motion for substituted service did not meet the requirements of Texas Rule of Civil Procedure 106(b). Rule 106(b) requires an affidavit in support of a motion for substituted service to state the following: (1) the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and (2) the facts showing that service has been attempted under either subsections (a)(1) or (a)(2) of Rule 106 at the location named in the affidavit, but service has not been successful.

Olympia is correct; the Mayes’s affidavit did not meet either requirement. The affi-ant states the following: (1) on June 20, 1994, she was “given the assignment to locate” Dimitrios Bissias; (2) on July 7, 1994, the owner of Olympia told her he purchased Olympia’s telephone number from Bissias and Bissias had returned to Greece to live; and (3) on August 15, 1994, Bissias’s son told her Bissias had been living in Greece for approximately one year, but he would return to the United States for a visit during the Christmas holidays and he would be in contact with Bissias at that time.

When a default judgment is attacked directly, substituted service is not authorized under Rule 106(b) without an affidavit that meets the requirements of the rule demonstrating the necessity for other than personal service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); see also Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.—Houston [1st Dist.] 1999, pet. denied). There is no presumption in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Wilson, 800 S.W.2d at 836. Strict compliance with the Rules of Civil Procedure relating to the issuance, service, and return of citation must be shown or the attempted service of process will be rendered invalid and of no effect. Id; see also Medford v. Salter, 747 S.W.2d 519, 520 (Tex.App.—Corpus Christi 1988, no writ) (affidavit in support of motion for substituted service of citation did not show specific facts that service had been attempted and was deficient).

Here, the affidavit does not indicate Olympia’s usual place of business or Bissias’s usual place of abode. The affidavit does not specifically state whether or how the Mayes attempted service under Rule 106(a), but that they were unsuccessful. Because the affidavit did not comply with the requirements of Rule 106(b), the Mayes’s attempted service of process was invalid.

We sustain issue one.

Service of Process

In issue three, Olympia argues service was invalid because it did not satisfy the requirements of Rule 106(b), in that service was not made (1) at Bissias’s place of abode, place of business, or other place where he could probably be found, or (2) in any other manner reasonably effective to give him notice of the suit. The trial court ordered service on Olympia’s owner, Bissi-as, “by serving anyone over the age of sixteen residing at 427 Bayou Cove, Houston.”

The Mayes rely on three cases to support their contention that service on Bissi-as’s son at 427 Bayou Cove was sufficient to give Bissias notice of the suit. See Walker v. Brodhead, 828 S.W.2d 278, 281 (Tex.App.—Austin 1992, writ denied) (upheld substituted service when citation was left with someone over 16 years of age at a ranch defendant had designated as his homestead); Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex.App.—San Antonio 1987, no writ) (upheld substituted service at an address where defendant’s children lived and it was shown that other communications reached him by delivery at the same place); Alvarez v. Alvarez, 476 S.W.2d 353, 359 (Tex.Civ.App.—Corpus Christi 1972, no writ) (record showed it was impractical to secure personal service on husband after he moved to Mexico City; trial court upheld substituted service by leaving petition at his place of business because this was reasonably effective to give him notice of divorce action). Although we do not disagree with the holdings in Walker, Magan, and Alvarez, the facts here are distinguishable from the facts in those cases.

Here, it is clear from the affidavit that 427 ■ Bayou Cove was not Bissias’s usual place of business or abode. Therefore, for service at 427 Bayou Cove to be valid, this address had to be another place where he could be found or service at that address had to be reasonably calculated to give him notice of the suit. The affidavit does not indicate Bissias would return to 427 Bayou Cove over the Christmas holidays; it merely states he would return “to the United States.” Even if Bissias had returned to 427 Bayou Cove over the Christmas holidays, the order for substituted service was signed on January 3, 1995, after the holidays had passed. There is nothing in the affidavit to indicate whether Bissias would be at 427 Bayou Cove after the holidays. Therefore, service at 427 Bayou Cove was not reasonably calculated to give Bissias notice of the suit.

We sustain issue three. Because we sustain issues one and three, we do not address issue two.

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

      . Effective September 1, 1997, article 5069-1.05 was codified in Chapter 304 of the Texas Finance Code. See Act of May 24,1997, 75th Leg., R.S., ch. 1008, § 1, 1997 Tex. Sess. Law Serv. 3435. No substantive change in law was intended by the codification. Tex. Fin. Code § 1.001(a); Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 7 & preamble, 1997 Tex. Sess. Law Serv. 3091, 3603. The prejudgment language in the Texas Finance Code was then superseded by the later enactment of similar prejudgment interest language in the Texas Credit Title, Act of June 2, 1997, 75th Leg., R.S., ch. 1396, § 1, 1997 Tex. Sess. Law Serv. 5212-13. In any event, the 1997 codification applies to suits filed after the effective date of the codification, September 1, 1997. .
      Because the underlying lawsuit was filed in 1994, pre-codification Article 5069-1.05, sections 1 through 6, apply to the November Judgment. As a result, this opinion will refer to these sections rather than to the Texas Finance Code or the Texas Credit Title.

      . For example, as in Zamarripa, the record revealed the parties engaged in settlement negotiations, thus potentially triggering the tolling provisions of Article 5069-1.05 § 6(b)-(f), but the pending dates and amounts of the offers were not clear as part of the record.

      . When the Mayes originally filed suit, they sued several defendants, other than Olympia. The Mayes later nonsuited thesé other defendants.


author: MURRY B. COHEN, Justice.

text:
    Daniel Eugene KLINE, Appellant, v. Julia Ann KLINE, Appellee.
    No. 01-98-01015-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 11, 2000.
    Martin D. Carden, Catherine Lisa Fisher, Richmond, for Appellant.
    Ronald R. Pope, Richmond, for Appel-lee.
    Panel consists of Justices COHEN, WILSON, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MURRY B. COHEN, Justice.

The parties married in 1979, and appellant worked for Marine Drilling (“Marine”) throughout the marriage, during which he was awarded stock options. Paul Lyle, Marine’s payroll manager, testified the options were granted to induce appellant to continue employment with Marine Drilling. The stock agreements, however, stated that the consideration was for “past services” of the employee.

After a non-jury trial, the judge divided these options equally between appellant and appellee. Some of the options that were earned during the marriage were not vested at the time of the divorce. No findings of fact and conclusions of law were requested or filed. We affirm.

Analysis

In two points of error, appellant contends the trial court erred in dividing the unvested options because they were based upon a condition precedent of continued service after the date of the divorce. Thus, according to appellant, the trial court’s division divested him of his separate property rights. Appellant does not dispute the trial court’s award of the vested options.

This case resembles Bodin v. Bodin, 955 S.W.2d 380 (Tex.App.-San Antonio 1997, no writ), in which the trial court awarded the wife some unvested options that were contingent on the husband’s continued employment. The Bodin court stated:

We affirm because the unvested stock options constitute a contingent interest in property and are a community asset subject to consideration along with other property in the disposition of the parties’ estate....

Id. at 381. The Bodin court cited cases from numerous jurisdictions, then observed, “To this-Court’s knowledge, every community property state that has considered this issue has agreed with the conclusion that we have reached in this opinion.” Id.

The Bodin court relied on Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). Cear-ley involved an unvested military pension earned during the marriage. The Cearley court stated:

We hold that such rights, prior to accrual and maturity, constitute a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties....

Id. at 666.

Appellant contends that whether unvest-ed options are community property depends on why the awards were made. If these options were for past services, appellant concedes they would be community property. If they were awarded to induce future employment after the divorce, they should be separate property. He cites several cases from other states. Appellant cites no Texas case law, and both Bodin and Cearley directly contradict this theory.

Appellant contends Bodin is distinguishable because, here, an expert gave uncon-troverted testimony that the options were not for past service and, thus, were not compensation as defined by the IRS. Rather, they were given as an incentive for appellant to continue his employment with Marine Drilling, post-divorce. The expert, Paul Lyle, could not explain why the stock agreements themselves stated the opposite of what he testified to, i.e., the options were for past services.

When, as here, the trial court makes no fact findings or conclusions of law, we will affirm the judgment if any evidence supports it. The recitals in the stock agreements themselves, that options were given for past service, support the judgment. Thus, the trial court did not err in awarding appellee an interest in the options.

We overrule the two points of error.

We affirm the judgment.

      . These are In re Marriage of Hug, 154 Cal.App.3d 780, 201 Cal.Rptr. 676 (1984); Goodwyne v. Goodwyne, 639 So.2d 1210 (La.App.1994); In re Marriage of Short, 125 Wash.2d 865, 890 P.2d 12 (1995); and Garcia v. Mayer, 122 N.M. 57, 920 P.2d 522 (App.1996).