author: ANN CRAWFORD McCLURE, Justice.

text:
    William MORRIS, Light Speed Transportation Services, Inc., and Industrial Cutting & Trailer Inc., d/b/a Light Speed Transportation Services, Appellants, v. Ricardo ZESATI, d/b/a Transportation Equipment Sales, Appellee.
    No. 08-04-00144-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2005.

      William Morris, Rincon, GA, pro se.
    Mark N. Osborn Kemp, Smith, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a default judgment arising from a suit for breach of contract. Because the trial court had in personam jurisdiction and the parties were duly served but failed to answer, we affirm.

FACTUAL SUMMARY

Ricardo Zesati, d/b/a Transportation Equipment Sales (Zesati) sued William Morris (Morris), Light Speed Transportation Services, Inc. (Light Speed), and Industrial Cutting & Trailer, Inc. d/b/a Light Speed Transportation Services (Industrial), collectively Appellants, for breach of contract. Zesati is in the business of buying and selling trucks and trailers. He alleged that both Industrial and Light Speed were Georgia corporations doing business in Texas and that Morris was a resident of Georgia doing business in Texas. The petition claimed that Appellants were nonresidents subject to the Texas long arm statute since they entered into a contract with a Texas resident which was to be partially performed in Texas. Zesati sought service through the Secretary of the State of Texas. None of the defendants answered. On May 27, 2004, the trial court entered a default judgment awarding Zesati $144,750 in damages. This appeal follows.

In Point of Error One, Appellants contend that the trial court lacked personal jurisdiction since the contract was written, accepted, and signed in Georgia. In Point of Error Two, they claim that the default judgment was improper since answers had been filed.

JURISDICTION OYER NONRESIDENTS

A nonresident does business in this state if it contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in Texas. Tex.Civ.Prac. & Rem.Code Ann. § 17.042(l)(Vernon 1997). Process may be served on the person in charge of any business in which the nonresident is engaged if the nonresident is not required by statute to designate or maintain a resident agent for service of process. Tex.Civ. Prac. & Rem.Code Ann. § 17.043. For purposes of our analysis, the Secretary of State is an agent for service of process on a nonresident who engages in business in Texas but does not maintain a regular place of business here. Tex.Civ.Prac. & Rem.Code Ann. § 17.044(b). If served with duplicate copies of process for a nonresident, the Secretary of State shall immediately mail a copy of the process to the nonresident at the address provided by registered mail or by certified mail, return receipt requested. Tex.Civ.Prac. & Rem. Code Ann. § 17.045(a), (d)(Vernon Supp. 2004^05).

In an attack upon a default judgment, no presumption of due service of citation arises from recitals in the judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). Jurisdiction must affirmatively appear on the face of the record. Id. at 930. The burden is upon the plaintiff to demonstrate strict compliance with the requirements of the long arm statute. Cars and Concepts, Inc. v. Funston, 601 S.W.2d 801, 802 (Tex.Civ.App.-Fort Worth 1980, writ ref'd n.r.e.). The plaintiff must also (1) plead facts which, if true, would require the defendant to answer; and (2) prove that the defendant was served in the required manner. Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95-96 (Tex.1973). Rule 107 prohibits a default judgment until citation and proof of service have been on file for ten days. Tex.R.Civ.P. 107.

Appellants claim that the trial court lacked jurisdiction since (1) Zesati flew to Georgia to execute the contract, (2) the contract was signed in Georgia, (3) Zesati wrote Appellants a check in Georgia, and (4) the contract stated “State of Georgia, Effingham County” at the top. The record establishes otherwise. Appellants were doing business in Texas; they entered into a contract with a Texas resident which was to be partly performed in Texas. See Tex.Civ.Prac. & Rem.Code Ann. § 17.042(1). Zesati sufficiently pled facts requiring Appellants to answer the suit. Whitney, 500 S.W.2d at 95.

Zestati also established that the defendants were properly served. A constable of Travis County served the Secretary of State with the petition for Moms on March 16, 2004. The Secretary of State sent the petition to Moms on March 19, and the return receipt was signed by the addressee’s agent on March 23. The constable served the Secretary of State with the petition for both Light Speed and Industrial on April 15, 2004. The Secretary of State in turn sent the petition to Light Speed and Industrial on April 19, and the return receipt was signed by the addressees’ agent on April 22. The citation and proof of service for Morris had been on file since March 31. The documentation for Light Speed and Industrial had been on file since April 29. The default judgment was signed on May 27. Citation and proof of service for each defendant had been on file for at least ten days at the time the default judgment was taken. Because the defendants were properly served, the trial court had personal jurisdiction pursuant to the Texas Long Arm Statute. Point of Error One is overruled.

FAILURE TO FILE ANSWER

In Point of Error Two, Appellants argue that the default judgment was improper since they answered the suit on three different occasions. They also complain that they were never notified of a hearing on the default judgment despite the fact that Zesati’s attorney was in direct contact with them.

A defendant’s answer must be filed by 10 a.m. on the Monday next following the expiration of twenty days after the date of service. Tex.R.Civ.P. 99(b). Answer day for Morris was April 19. See Tex.R.Civ.P. 4, 99(b). Answers on behalf of Light Speed and Industrial were due to have been filed no later than May 17. See Tex.R.Civ.P. 4. There is nothing in the record to indicate that any of the defendants ever answered the suit.

At any time after a defendant is required to answer, the plaintiff may take a default judgment if no answer is filed, provided that the citation with the officer’s return thereon shall have been on file with the clerk for ten days, exclusive of the day of filing and the day of judgment.. Tex. R.Civ.P. 107, 239. No advance notice of a hearing is required for a no-answer default judgment. Clements v. Barnes, 822 S.W.2d 658, 660 (Tex.App.-Corpus Christi 1991), rev’d on other grounds, 834 S.W.2d 45 (Tex.1992). We overrule Point of Error Two and affirm the judgment of the trial court.

LARSEN, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    In re the STATE of Texas, Relator.
    No. 08-04-00323-CR.
    Court of Appeals of Texas, El Paso.
    March 17, 2005.

      Jaime E. Esparza, Dist. Atty., El Paso, for relator.
    Michael R. ‘Mickey Milligan’, El Paso, for respondent.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an original proceeding in mandamus. The State of Texas, Relator, seeks a writ of mandamus requiring the 346th District Court of El Paso County (Respondent) to vacate two orders requiring the State to produce the District Attorney’s Office screening sheets, El Paso Police Department supplement reports, and El Paso Detention Facility Arrest Supplements for every criminal case pending in the 346th District Court. For the reasons stated below, we conditionally grant mandamus relief.

UNDERLYING FACTS

On October 7, 2004, Respondent, sua sponte, entered an order applicable to every criminal case then pending in the 346th District Court. The order required the District Attorney’s Office to produce by October 14, 2004, a “copy of proof of all magistrate warnings signed by the defendant in the possession of the District Attorney’s Office ... for each and every pending criminal matters (sic) set for prosecution by the State of Texas before this honorable court.” There were 652 criminal cases pending in the 346th District Court at the time the judge entered the order. The District Attorney’s Office provided Respondent with copies of the magistrates’ certificates in more than 100 cases. Additionally, on the date of deadline, the District Attorney’s Office filed a written response objecting to the order and raising the following issues:

• the District Attorney’s Office had not been given adequate time to respond to the order since it did not receive the order until October 11;
• the District Attorney’s Office did not have magistrate warnings signed by the defendant in its possession because those documents stay in the possession of the magistrates and are not filed with the District Clerk; and
• the absence of magistrate warnings does not vitiate the indictment, and therefore, Respondent was not authorized to dismiss the cases if the warnings were not produced.

On October 19, 2004, Respondent extended the deadline for producing the magistrate’s warnings until October 26, 2004. The State later provided additional magistrate’s certificates to Respondent.

On October 25, 2004, Respondent entered another sua sponte order. Noting that the District Attorney’s Office had not produced the magistrate warnings, Respondent required the District Attorney’s Office to produce “copies of all District Attorney’s Office Screening Sheets, El Paso Police Department Supplement Reports, and El Paso Detention Facility Arrest Supplements, for each criminal matter pending in the 346th District Court no later than the close of business on November 1, 2004. The screening sheets referenced in the order are part of the District Attorney’s case screening system known as “District Attorney’s Information Management System” or DIMS. Respondent entered an amended version of the order on October 27, 2004 which is identical except that Respondent attached a sample of what he sought from the District Attorney’s Office.

On November 1, 2004, the State filed its petition for writ of mandamus and motion for emergency relief. We granted the motion for emergency relief and requested a response from Respondent.

SUA SPONTE DISCOVERY ORDERS

Characterizing the October 25 and October 27 orders as discovery orders, the State asserts that Respondent exceeded his authority under Article 39.14 of the Texas Code of Criminal Procedure to order production of these documents, and therefore, the State has a clear right to the relief sought. Additionally, the State argues that it has no ability to challenge the trial court’s order by appeal.

Standard of Review

To establish an entitlement to mandamus relief, a relator must satisfy two requirements: (1) there must be no adequate remedy at law to redress his alleged harm; and (2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 948 and n. 2 (Tex.Crim.App.1992); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App.1992). The second element has historically been stated in terms of requiring that the judicial conduct from which relief is sought be “ministerial” in nature. Buntion, 827 S.W.2d at 948 n. 2. An act is ministerial when “the law clearly spells out the duty to be performed ... with such certainty that nothing is left to the exercise of discretion or judgment.” Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981). A ministerial act is not implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Hill v. Court of Appeals for Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App.2001). However, a so-called “discretionary” act may become “ministerial” when the facts and circumstances dictate but one rational decision. Buntion, 827 S.W.2d at 948 n. 2.

No Adequate Remedy at Law

Respondent does not dispute that the State lacks an adequate remedy by appeal. Article 44.01 of the Texas Code of Criminal Procedure does not authorize an appeal by the State of the orders. See Tex.Code Crim.Proc.Ann. art. 44.01 (Vernon Pamph. 2004-05). Accordingly, mandamus will lie if the State establishes that it has a clear right to the relief sought. See State ex rel. Simmons v. Moore, 774 S.W.2d 711, 714 (Tex.App.-El Paso1989, orig. proceeding).

Orders Exceed Respondent’s Authority Under Article 89.1k

Respondent disagrees with the State’s characterization of the orders as discovery orders, asserting that the orders are not calculated to lead to the discovery of relevant evidence which is admissible at trial. According to Respondent, several defendants have filed motions for bond reduction as the result of a backlog of criminal cases in his court. As a result, review of the initial bond settings has become necessary.

On their face, the orders require the State to produce documents relevant to the setting of the initial bond in each of the 652 criminal cases pending in the 346th District Court. Respondent asserts that he entered the orders for the purpose of reviewing motions for bond reduction filed by certain defendants. While Respondent argues that his orders are not discovery orders because they are not calculated to lead to the discovery of relevant evidence which is admissible at trial, that is not the test under Article 39.14. Rather, Article 39.14 grants the trial court limited authority to order production of any designated documents “which constitute or contain evidence material to any matter involved in the action.” [Emphasis added.] See Tex. Code Crim.Proc.Ann. art. 39.14 (Vernon Pamph.2004-05). As aptly noted by the State in its reply, a motion for a bond reduction is a “matter involved in the action” and Respondent, by his own admission, ordered the documents produced as evidence material to the motions for bond reduction. We must conclude that the October 25 and October 27 orders are discovery orders.

A criminal defendant’s right to discovery under the United States Constitution is limited to exculpatory or mitigating evidence in the State’s possession, custody, or control. See Dickens v. Court of Appeals for the Second Supreme Judicial District, 727 S.W.2d 542, 551 (Tex.Crim.App.1987); King v. State, 746 S.W.2d 515, 517 (Tex.App.-Dallas 1988, pet. ref'd). Beyond this, a criminal defendant has no general right of discovery. Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993); Perkins v. State, 902 S.W.2d 88, 101 (Tex.App.-El Paso 1995, pet. ref'd). Article 39.14 of the Texas Code of Criminal Procedure provides the defendant with a limited right of discovery prior to and during trial. Tex.Code Crim.Proc.Ann. art. 39.14; see Martin v. Darnell, 960 S.W.2d 838, 841-42 (Tex.App.-Amarillo 1997, orig. proceeding); State ex rel. Wade v. Stephens, 724 S.W.2d 141, 143-44 (Tex.App.Dallas 1987, orig. proceeding). It provides that upon motion by the defendant showing good cause and upon notice to the other parties, the trial court may order the State to produce certain evidence material to any matter involved in the action which is within the State’s possession, custody or control. Tex.Code Crim.Proc.Ann. art. 39.14.

Respondent entered the challenged orders without any motion by any of the 652 defendants and without affording the State an opportunity to be heard. Thus, the State was never allowed to present to the trial court its argument that the documents are work product, and therefore, exempt from discovery. See Tex.Code Crim.Proc.Ann. art. 39.14(a)(exempting work product of counsel and investigators from discovery); Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.1980)(work-product privilege extends to documents which themselves do not contain admissible evidence of the offense but instead are summaries of the evidence or discussions about the offense that have been prepared for the internal use of law enforcement officers). Having failed to comply with the requirements of Article 39.14, Respondent exceeded the scope of his authority. Given that the State has established Respondent’s non-compliance with Article 39.14, we need not address the merits of the State’s additional argument that the materials sought are exempt from discovery.

District Court’s Inherent and Implied Authority

Although we have found that Respondent’s orders were made in violation of Article 39.14, it is necessary to address Respondent’s argument that his orders are based on his overriding duty to ensure that a defendant’s right to a bond is scrupulously honored. Taking issue with the DIMS process whereby assistant district attorneys “set” the bond pursuant to a schedule established by the El Paso Council of Judges, Respondent maintains that the bond should be set by a magistrate, not by an assistant district attorney, as required by state law and the United States Constitution. He essentially argues that the district court has authority to order the State to produce these documents in order to enforce the defendant’s right to a bond. Although Respondent does not state his argument in these terms, the court’s authority to enter these orders outside of Article 39.14, if it exists, must be either an inherent or implied power.

The jurisdiction of a particular court is that portion of the judicial power which it has been expressly authorized to exercise by the constitution or statutes. Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979). In addition to the express grants of judicial power to each court, there are other powers which courts may exercise though not expressly authorized or described by constitution or statute. Id.; see State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991)(citing Ei-chelberger with approval). These powers are generally categorized as “implied” and “inherent.” Eichelberger, 582 S.W.2d at 398. There is an important distinction between implied and inherent powers. See id.

The inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities. Id. The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. Eichelberger, 582 S.W.2d at 398; see Johnson, 821 S.W.2d at 612. Texas courts have recognized inherent powers in the following instances: to change, set aside or otherwise control their judgments; to summon and compel the attendance of witnesses; to regulate the admission and practice of law; and to provide personnel to aid the court in the exercise of its judicial function. Eichelberger, 582 S.W.2d at 399 n. 1 (and cases cited therein). The implied powers of a court do not stand on an independent basis as do inherent powers. Id. at 399. Though not directly or expressly granted by constitutional or legislative enactment, implied powers are those which can and ought to be implied from the express grant of power. Id.

The discovery orders entered by Respondent are not premised upon the exercise of one of the generally-recognized inherent powers discussed in Eichelberger and the cases cited in that opinion. See Eichelberger, 582 S.W.2d at 399 n. 1. Respondent cites no authority showing that a district court has inherent power to enter this type of order absent compliance with Article 39.14. In the absence of any supporting authority, we conclude that Respondent’s order is not based on an inherent power. Likewise, Respondent’s orders are not based on an implied power. We understand Respondent to argue that authority to enter these discovery orders is implied in his duty to ensure that the defendants’ right to a bond is observed. A similar argument was rejected in State ex rel. Simmons v. Peca, 799 S.W.2d 426 (Tex.App.-El Paso 1990, orig. proceeding). There, attorneys for a capital murder defendant filed a motion requesting that the District Attorney’s Office provide them with a copy of the entire case file even though the DA’s office had an open file policy and the attorneys had been given access to the file. Id. at 428. The attorneys, who had engaged in only a cursory examination of the file, argued that the case file was too voluminous for hand-copying of the documents. Id. at 428. The DA’s office had a policy which permitted individual document copies on specific request, but the defense did not take advantage of this policy. Id. at 429. After multiple hearings on the issue, the DA’s office retracted its open file policy, stating that discovery would be conducted pursuant to Article 39.14. Id. at 428-29. Citing its inherent power to control its docket and the court’s obligation to satisfy a defendant’s constitutional rights to a speedy trial and the effective assistance of counsel, the trial court then ordered the State to prepare and deliver a copy of the entire file to defense counsel so that the trial setting could be maintained. Id. at 429. The State sought mandamus relief. In finding the discovery order void, this Court made the following observations:

[O]ne can hardly fault a member of the judiciary for being concerned about due process, equal protection, the right to counsel and speedy trial. This record does reflect that, despite good intentions, those exercising judicial power may err on the side of an overly-aggressive individual pursuit of those principles. The satisfaction of these principles, in large measure, flows from the participants’ adherence to the criminal justice framework provided by state and federal constitution and statute. Within that framework, the judge functions primarily as a passive, neutral referee, not as an advocate-at-large. A judge who, on his own initiation, is overly aggressive in dictating the course of the post-indictment proceedings runs the risk of preempting the function of counsel for both sides and transgressing the separation of powers between the three branches of government.

Id. at 430.

These concerns are particularly apposite in the instant case given that Respondent entered the discovery orders in the absence of a motion for discovery by any defendant. We conclude that Respondent’s power to enter discovery orders in criminal cases is limited to the authority granted by Article 39.14. Because the discovery orders were not made in compliance with Article 39.14, and are not based on an express, inherent, or implied grant of power, we conclude that the orders are void, and the State has established its entitlement to mandamus relief. See In re State of Texas ex rel. Robinson, 116 S.W.3d 115, 119 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding)(a trial court’s order that is beyond the scope of the trial court’s authority is void and subject to mandamus correction). Accordingly, we sustain the State’s sole issue and conditionally grant the relief sought. Our prior order granting emergency relief and staying the proceedings in the 346th District Court is vacated. The writ of mandamus will issue only if the 346th District Court fails to vacate its October 25 and October 27 orders.


author: CHARLES W. SEYMORE, Justice. WANDA MCKEE FOWLER, Justice

text:
    Spiro NIKOLOUZOS by his wife, Jannette Nikolouzos, Appellant, v. ST. LUKE’S EPISCOPAL HOSPITAL, Appellee.
    No. 14-05-00267-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 17, 2005.

      Mario Caballero, Houston, for appellants.
    Earnest W. Wotring, Houston, for ap-pellee.
   MAJORITY OPINION

CHARLES W. SEYMORE, Justice.

This is an attempted interlocutory appeal from the oral denial of appellant’s first and second applications for temporary restraining orders. We dismiss the appeal for want of jurisdiction.

The underlying action is brought under the Advance Directives Act, specifically Texas Health and Safety Code section 166.046(g), which provides a mechanism to seek a judicial extension of the time period in which to find alternative treatment for a patient when the hospital has determined that life-sustaining treatment is inappropriate. The statute provides:

At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) [10 days after the written decision by the hospital’s ethics committee is provided to the patient or responsible person] only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive [regarding life-sustaining treatment] will be found if the time extension is granted.

Tex. Health & Safety Code Ann. § 166.046(g) (Vernon Supp.2004-05).

Appellant filed an original petition seeking an extension of time for continued life support, injunctive relief, and monetary damages. At the same time, appellant filed an application for a temporary restraining order and temporary injunction. The trial court conducted a hearing on appellant’s first application for temporary restraining order on March 9, 2005. At the conclusion of the hearing, the court orally denied the application. The court permitted appellant to file a second application for a temporary restraining order, and the court conducted a hearing on March 11, 2005. The court again orally denied the application. Appellant then filed a notice of appeal from the denial of both TRO applications.

On March 15, 2005, appellee filed a motion to dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a). Appellee argues that this court lacks jurisdiction over appellant’s attempted appeal from the denial of temporary restraining orders in the absence of express statutory authority.

Because appellant sought other relief that remains pending in the trial court, the rulings appellant seeks to appeal are interlocutory. See North East I.S.D. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966) (noting “to be final a judgment must dispose of all issues and parties in a case”). It is well settled that appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute specifically provides for appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). Section 166.046 does not expressly provide a right to appeal the trial court’s ruling on a request for extension of time for life sustaining treatment, thus indicating the legislature did not intend to permit such an appeal. See, e.g., Ex parte Burr, 139 S.W.3d 446, 448 (Tex.App.-Dallas 2004, pet. stricken) (holding that failure to include right to appeal in statute indicated legislature did not intend to permit appeal from denial of temporary restraining order).

While an interlocutory appeal from the grant or denial of a temporary injunction is allowed, no statutory provision permits an appeal from a temporary restraining order. See Lesikar v. Rappe- port, 899 S.W.2d 654, 655 (Tex.1995); Cross Media Network, Inc. v. Sandefer, 2000 WL 1260251, *1 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (not designated for publication); see also Tex. Civ. Prac. & Rem.Code Aun. § 51.014 (Vernon Supp. 2004-05) (specifically permitting appeal of interlocutory orders in ten instances, but not including the grant or denial of a temporary restraining order). Thus, the grant or denial of a temporary restraining order is generally not appealable. In re Tex. Nat. Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex.2002).

However, the fact that the order is denominated a temporary restraining order is not determinative of whether the order is appealable. Whether an order is a nonappealable temporary restraining order or an appealable temporary injunction depends on the order’s characteristics and function, not its title. Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex.2000). If the force and effect of the order is indistinguishable from that of a temporary injunction, then the order is appealable. Plant Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54 (Tex.App.Houston [14th Dist.] 1979, no writ). The record in this case demonstrates that the initial relief requested was a temporary restraining order pending a subsequent hearing on a temporary injunction, and the parties at the hearings treated them as hearings on applications for temporary restraining orders. No testimony was taken at the hearings. At the conclusion of each hearing, the trial court denied appellants’ applications for temporary restraining orders. Under these facts, the rulings at issue are denials of temporary restraining orders, not denials of injunctions.

On March 16, 2005, appellant filed a response to appellee’s motion to dismiss. In support of the court’s exercise of jurisdiction over the appeal from the denial of temporary restraining orders, appellant cites Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718 (1961). In Lord, however, the relators sought a writ of mandamus to resolve a jurisdictional dispute between two criminal courts, in which one court had issued an order restraining a habeas corpus proceeding in the other court. Id. at 719 (emphasis added). The Texas Supreme Court recognized that normally mandamus would not issue to interfere with a trial court’s injunctive orders because, even though a restraining order is not appealable, any injunction would have been appealable and the parties would have been required to appeal rather than seek mandamus relief. Id. The court found that the jurisdictional conflict between the two courts had reached a point where the public interest and orderly administration of justice would suffer irreparably unless it resolved the conflict. Id. Although there is no question that appellant has the most compelling personal interest at stake, this court lacks the power to exercise jurisdiction where none is provided by law.

After having considered the motion and response, we hold that we lack jurisdiction over this attempted appeal from the denial of temporary restraining orders. When a party attempts to appeal a nonap-pealable interlocutory order, an appellate court has no jurisdiction except to dismiss the appeal. Lipshy Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 70 (Tex.App.-Dallas 1997, no writ); Harper v. Welchem, Inc., 799 S.W.2d 492, 496 (Tex.App.-Houston [14th Dist.] 1990, no writ).

Accordingly, we grant appellee’s motion, and the appeal is ordered dismissed. This court’s writ of injunction issued March 15, 2005, under our cause number 14-05-00273-CV is dissolved by its own terms.

FOWLER, J., concurring.

WANDA MCKEE FOWLER, Justice

concurring.

I write separately for two reasons. First, in the very short time we have had to research the issues in this case, I believe the decision is correct; however, if it is not, I want to allay any thoughts by the Nikolouzoses that they might have been able to prevail on the merits if we had jurisdiction. Next, I want to address procedural problems inherent in the statute, making it an ineffectual tool for both families of patients and health care providers.

I turn first to the proof presented below. I acknowledge that our normal procedure when we have no jurisdiction is to dismiss the case without addressing its merits. This is an exceptional case, however, and the family might appreciate knowing that, in my view, the outcome would not have changed even if we had jurisdiction.

As noted in the majority opinion, the statute at issue requires proof, “by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.” Tex. Health & Safety Code Ann. § 166.046(g) (Vernon Supp.2004-05). A review of the sworn applications presented at the two hearings reveals that this level of proof was not met.

Mrs. Nikolouzos attached to her first application for TRO her own affidavit attesting to the accuracy of the facts contained in the application. According to those facts, “Plaintiff feels that there are doctors and hospitals who will be willing to continue treatment for Spiro if sufficient time is given to adequately contact all relevant parties.” The trial judge told the parties this affidavit did not reflect a reasonable expectation that a doctor or another health care facility would honor Mr. or Mrs. Nikolouzos’s directive. The trial judge also observed that no other affidavit, or any other evidence, was offered. As a result, the trial judge denied the TRO while expressing her compassion for the family’s plight and her sincere regret.

Two days later, Mrs. Nikolouzos filed a second application for TRO, which the trial judge agreed to hear, though noting that a rehearing was an exceptional procedure for an exceptional case. At this second hearing, Mrs. Nikolouzos attached a more detailed affidavit in which she averred the following:

• that she had contacted Avalon Place, a skilled nursing home facility in San Antonio; and
• that a social worker there told her “it looked likely that Spiro would get accepted at Avalon Place and that they had a room for him.”

She also attached a letter from Dr. John Sterling Meyer stating that Spiro Nikolou-zos did not meet the criteria for “brain death” because cerebral blood flow was present.

When some question arose as to the accuracy of the doctor’s affidavit and the sufficiency and admissibility of this evidence, the trial judge agreed twice to recess for several hours to enable Mrs. Ni-kolouzos to obtain additional evidence. However, even with these two recesses, Mrs. Nikolouzos was unable to obtain the necessary proof that a doctor or another health care facility was willing to take Mr. Nikolouzos.

By the conclusion of the additional hearings, counsel for Mrs. Nikolouzos was forced to admit that, in spite of their efforts, their most promising alternative health care facility, Avalon Place, had declined to accept Mr. Nikolouzos because his Medicare eligibility would be reduced to 80% coverage within two days. Mrs. Nikolouzos would need to obtain Medicaid benefits to cover the additional 20% of the cost of his care, and no application for Medicaid had been made. In addition, Mrs. Nikolouzos’s attempt to obtain authorization from Dr. Bryan Walker to have Mr. Nikolouzos released to home care with a home-based ventilator failed; Dr. Walker told them this was impossible.

As for the proof already before the court from Dr. John Meyer that Mr. Nikolouzos was not brain dead, St. Luke’s has pointed out, and the trial judge found, this evidence, if admissible, was irrelevant to the issue before the court. Section 166.046 permits the withdrawal of life-sustaining care for patients who are not brain dead if the hospital’s ethics committee has determined the care is inappropriate.

So, this was the state of the record before the trial judge when she denied the request for temporary restraining order. She was correct to tell Mrs. Nikolouzos and other family members, “I’m sorry ... I believe that the [Nikolouzoses] have worked very hard and the family is very grieved, as any family would be, but I’m sorry that the TRO is still denied.... ”

Thus, although the family expended great effort to meet its burden, and although there were some glimmers of hope for it, ultimately the family was unable to give the court assurance of any sort that Mr. Nikolouzos could be moved elsewhere. Based upon this record, I would not have found that the trial judge abused her discretion in denying Mrs. Nikolouzos’s applications for temporary restraining orders.

This leads me to my second point. This statute is replete with procedural problems that threaten to sabotage a family’s attempt to obtain additional time under section 166.046(g) to locate alternate care for its loved one. The problems all stem from lack of specificity in the statute and could be rectified if the legislature chose to be as specific in this statute as it has been, for example, with the procedures a minor must follow to obtain an abortion without notification to one of her parents. Tex. Fam.Code §§ 88.001 et seq. This subject deserves no less specificity because this statute affects no less than the life and death of men, women, and children. Counsel’s attempts to comply with the statute and its short deadlines underscore the problems the statute creates. I summarize them below.

To obtain an immediate hearing within the ten-day period provided by the statute, Mrs. Nikolouzos filed an application for a TRO because the statute offered no alternatives. But as we have already held, this procedural avenue is inadequate, most obviously because it leaves a party without a right to appeal. Counsel confronted other problems also. The statute requires proof by a preponderance of the evidence that “there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.” Tex. Health & Safety Code Ann. § 166.046(g) (Vernon Supp.2004-05). Hearings on applications for TROs, however, are not evi-dentiary hearings. The purpose of a TRO is to preserve the status quo of the subject matter of the litigation until a preliminary hearing can be held on an application for a temporary injunction. Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753, 755 (Tex.1988) (per curiam). The status quo is the last, actual, peaceable, noncontested status that preceded the controversy. Big Three Indus., Inc. v. R.R. Comm’n, 618 S.W.2d 548, 548 (Tex.1981); State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975). The last noncontested status in this case occurred before St. Luke’s determined that continued life-sustaining care was inappropriate. Thus, Mrs. Nikolouzos sought a TRO to maintain that status quo pending a hearing on a temporary injunction, at which time evidence would be produced that another health care facility would accept Mr. Nikolouzos. Under this unique statutory scheme, the time to produce his evidence was at the TRO hearing, not the temporary injunction hearing. In short, the lack of a specific procedure leaves already bereaved families with no clear procedure to secure alternate care for their loved one.

Admittedly, the legislature has many important issues to address in an undeniably short time. But this is an important issue that has a solution. If the legislature addresses the problems listed below, all of which either arose in this case, or could have arisen, it can at the very least lessen the load for both families and health care facilities.

First, the statute should state specifically in which court a family or trustee must file the action. Currently, the statute provides only that the action should be filed in “the appropriate district or county court.” Tex. Health & Safety Code Ann. § 166.046(g) (Vernon Supp.2004-05). When the Nikolouzoses filed in the district court, St. Luke’s moved for a dismissal claiming that the probate court in Harris County had exclusive jurisdiction. See Tex. Gov’t Code § 25.0021(b). In contrast, the parental notification bill leaves no room for guess work by declaring that a bypass request may be “filed in any county court at law, court having probate jurisdiction, or district court, including a family district court, in this state.” Tex. Fam. Code. § 33.003(b).

Next, the statute should direct a family what to call their action, specify the steps a family must take to have its complaint heard, and include timetables within which the parties and the court must act. Currently, the statute gives no direction on these issues. See Tex. Health & Safety Code Ann. § 166.046 (Vernon Supp.2004-05). No doubt perplexed as to the proper procedure to follow, counsel for Mrs. Niko-louzos filed an original and amended petition in which he asked for a TRO and injunctive relief; probably he did this because procedures are already established in Harris County for a judge to provide a quick hearing when a party requests a TRO. In contrast, the parental notification bill tells a requesting party and the courts and their clerks exactly what an action should be called, informing all of these persons that a minor should file an “application.” Tex. Fam.Code § 33.03(a). Styling the action as an “application” and referring to the parental notification statute enables a court and its personnel to know immediately that they are dealing with a very specific type of case with its own unique accelerated procedures.

Finally, the statute should state if the family or hospital has the right of appeal from a ruling on. a request for an extension of time under section 166.046(g). Currently, the statute says nothing about an appeal. See Tex. Health & Safety Code Ann. § 166.046 (Vernon Supp.2004-05). In the parental notification bill, the legislature explicitly addressed the right to appeal. Tex. Fam.Code § 33.004.

In short, in its current form, the statute creates confusion where there should be clarity. This confusion not only is a disservice to both families and health care providers, but also ironically increases litigation when it should lessen it. I respectfully urge the legislature to revisit section 166.046 and to clarify the procedures a family must follow to secure alternate care for their loved one. The legislature has already seen the importance of clarity at the inception of life; clarity is no less important at the end of life.

With these comments, I concur in the court’s opinion and judgment.

      . Tex Health & Safety Code Ann. §§ 166.001-166.166 (Vernon Supp.2004-05).

        . "A temporary restraining order is one entered as part of a motion for a temporary injunction, by which a party is restrained pending the hearing of the motion. A temporary injunction is one which operates until dissolved by an interlocutory order or until the final hearing.” Del Valle I.S.D. v. Lopez, 845 S.W.2d 808, 809 (Tex.1992).


author: RICHARD H. EDELMAN, Justice.

text:
    Barbara Jackson HUDSON, Appellant, v. Jayla COOPER, Appellee.
    No. 14-03-00790-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 22, 2005.

      Joseph R. Willie, II, Houston, for appellant.
    Wendle Van Smith, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices EDELMAN and SEYMORE.
   OPINION

RICHARD H. EDELMAN, Justice.

In this suit for attorney compensation, Barbara Jackson Hudson appeals a take-nothing judgment in favor of Jayla Cooper on the grounds that: (1) the trial court erred in granting a directed verdict against Hudson’s quantum meruit claim; and (2) the jury finding against Hudson’s breach of contract claim was against the great weight and preponderance of the evidence. We affirm in part and reverse and remand in part.

Background

Cooper entered into a written contingency fee agreement (the “agreement”) for Hudson to represent her in asserting a personal injury claim. Before the case was concluded, Cooper discharged Hudson and hired other counsel. Hudson filed a plea in intervention in the personal injury case, seeking compensation for the legal services she had provided, and Cooper entered into a settlement of her personal injury claims. At the trial on Hudson’s claims, the trial court granted a directed verdict against the quantum meruit claim, and the jury found against Hudson on the breach of contract claim.

Contract Claim

The first question in the jury charge (the “charge”) asked whether a contract existed between Cooper and Hudson, and the jury answered affirmatively. The second question (and accompanying instruction) then asked:

Did [Cooper] fail to comply with the agreement?
Failure to comply by [Cooper] is excused by [Hudson’s] prior repudiation, if any, of the same agreement.
A party repudiates an agreement when she indicates by her words or actions that she is not going to perform her obligations under the agreement in the future, showing a fixed intention to abandon, renounce and refuse to perform the terms of the contract.

The jury answered “no” to this question, and Hudson’s second issue contends that this finding was against the great weight and preponderance of the evidence.

We review such a factual sufficiency challenge by weighing and considering all the evidence in the case. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). However, we may not pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Id. Instead, the judgment will be set aside only if the evidence is so factually weak, or the verdict so contrary to the overwhelming weight of the evidence, as to make the judgment clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

In this case, Cooper testified that, two weeks before trial was scheduled on her personal injury claims, Hudson told her that: (1) she (Hudson) was ill; (2) she would be unable to go to trial; (3) she was not prepared to go to trial; and (4) Cooper would have to find another attorney. This evidence was legally sufficient to support a finding that Hudson repudiated her agreement to represent Cooper in the lawsuit and, thus, a negative answer to question 2 of the charge. Although Hudson presented conflicting testimony of the circumstances leading to her discharge by Cooper, it does not render the evidence supporting the verdict so factually weak, or the verdict so contrary to the overwhelming weight of the evidence, as to make the judgment clearly wrong and unjust. Therefore, Hudson’s second issue is overruled.

Quantum Meruit Claim

Cooper’s motion for directed verdict asserted that there “has been no testimony as it relates to any kind of quantum meruit finding ... ”, and the trial court’s judgment states that this motion was granted because Hudson “failed to introduce any probative evidence of [her] quantum meruit claim.... ” Hudson’s first issue challenges the directed verdict on the ground that the evidence at trial was sufficient to raise fact issues on her quantum meruit claim.

As applicable to this case, a directed verdict may be granted if a plaintiff fails to present evidence raising a fact issue on one or more elements that are essential to the plaintiffs right of recovery. See Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). Therefore, in reviewing the directed verdict, we determine whether there was more than a scintilla of evidence to raise a fact question on the elements of the quantum meruit claim. See Coastal Transp. Co., v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). In conducting this review, we consider all of the evidence in the light most favorable to Hudson, disregard all contrary evidence and inferences, and give Hudson the benefit of all reasonable inferences that may be drawn from the evidence. See id. at 234.

To recover under a quantum me-ruit theory, Hudson must have proved that: she rendered valuable services for Cooper’s benefit; Cooper accepted those services; and under such circumstances as reasonably notified Cooper that Hudson expected to be paid for the services. See Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). Despite the existence of an express contract that covers the subject matter of the claim, recovery in quantum meruit is permitted where, as here, the contract is unilateral in nature, and the plaintiff partially performs it. Truly v. Austin, 744 S.W.2d 934, 937 (Tex.1988). The measure of recovery for quantum meruit is the reasonable value of the services. See Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771, 773 (1941).

Where equitable relief, such as quantum meruit, is claimed, a trial court must first determine whether any contested fact issues exist that are not established as a matter of law and must therefore be decided by a jury (if requested), such as: (1) whether the plaintiff performed valuable work for the defendant, the defendant accepted it, and the defendant had reason to know the plaintiff expected to be paid for the work; and (2) the reasonable value of the attorney’s services. See Burrow v. Arce, 997 S.W.2d 229, 245-46 (Tex.1999); Comm, on PatteRN JURY Chaeges, State Bae of Tex., Texas PatteRN JURY Charges, Business, Consumer, Insurance, Employment PJC 101.42, 110.6 (2003). Once any such necessary factual disputes have been resolved, the weighing of all equitable considerations (such as whether the defendant has been unjustly enriched, the plaintiff would be unjustly penalized if the defendant retained the benefits of the partial performance without paying for them, and the plaintiff had “unclean hands”) and the ultimate decision of how much, if any, equitable relief should be awarded, must be determined by the trial court (rather than a jury). Burrow, 997 S.W.2d at 245-46; see Truly, 744 S.W.2d at 937. A decision by a trial court to grant or deny equitable relief is subject to the same review on appeal as any other legal issue. Burrow, 997 S.W.2d at 246.

In this case, because the trial court’s directed verdict purports to be only a decision that there was legally insufficient evidence to prove the quantum meruit fact issues, and not any further decision concerning equitable considerations, we will review it only to that extent. The evidence in this case includes: (1) the agreement, essentially providing that Hudson would be paid, as compensation for her services, forty percent of any recovery received by Cooper after suit was filed; (2) testimony describing the work Hudson performed and amounts she expended in representing Cooper in the case; (3) testimony that Cooper was offered $99,000 to settle the case before Hudson was discharged; and (4) testimony that Cooper ultimately accepted that amount plus $1000 in expenses to settle the case after hiring new counsel. Viewed in the light most favorable to Hudson, this evidence is sufficient to raise fact issues as to: (1) whether Hudson performed valuable work for Cooper, Cooper accepted the work, and Cooper had reason to know of Hudson’s expectation to be paid for the work; and (2)a reasonable value of the services Hudson provided. We therefore sustain Hudson’s first issue, challenging the directed verdict on the quantum meruit fact issues. Accordingly, we reverse the take-nothing judgment as to Hudson’s quantum meruit claim, remand that claim to the trial court, and affirm the remainder of the judgment.

      . We will address Hudson’s two issues in reverse order for ease of presentation.

      . We thus do not reach Cooper’s claim for fee forfeiture because we find no ruling by the trial court on that issue. See Burrow, 997 S.W.2d at 245-46.


author: Justice GARZA.

text:
    Sylvia Menchaca Balli AGUILLERA, Appellant, v. THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Appellee.
    No. 13-03-258-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 24, 2005.
    Rehearing Overruled May 26, 2005.

      Gary J. Holloway, Kilburn, Jones, Gill & Campbell, Michael Jones, Houston, for appellant.
    Jon D. Brooks, Brooks LLP, Russell H. McMains, Law Office of Russell H. McMains, Jorge C. Rangel, The Rangel Law Firm, Darrell L. Barger, Richard L. Leshin, Welder, Leshin & Mahaffey, Corpus Christi, for appellee.
    Before Justices YÁÑEZ, RODRIGUEZ and GARZA.
   OPINION

Opinion by

Justice GARZA.

The primary issue in dispute in the proceedings underlying this appeal is ownership of 83,936.40 acres of largely undeveloped, rural property located in Kenedy County, Texas, known as “La Barreta.” Appellants, Sylvia Menehaca Balli Aguil-era, et. al. (“the Ballis”), are various heirs of the brother of the original owner of La Barreta and assert a continuing ownership interest in La Barreta through a chain of title originating with a land grant by the King of Spain and including a document allegedly created in 1804 (“the 1804 Document”). On appeal, the Ballis argue, inter alia, that the trial court erroneously granted summary judgment in favor of appellee, the John G. and Marie Stella Kenedy Memorial Foundation (“the Foundation”).

The Ballis raise six issues on appeal: (1) the trial court erred in striking the expert testimony of Richard Santos concerning the 1804 Document; (2) the trial court erred in excluding the 1804 Document; (3) the trial court erred in granting the Foundation’s no-evidence motion for summary judgment; (4) the trial court erred in granting the Foundation’s traditional motion for summary judgment; (5) the trial court erred in granting the Foundation title to 83,936.40 acres out of the La Barre-ta Grant; and (6) the trial court erred in considering untimely evidence filed by the Foundation.

As cross-appellant, the Foundation argues that the trial court erred by ruling that it could not recover attorney’s fees under the declaratory judgment act.

For the reasons that follow, we affirm the trial court’s judgment.

Background

In the early 1800s, a landowner named Jose Francisco Balli donated a portion of his property to the village of Reynosa, which had to be relocated and rebuilt following a flood. To demonstrate his gratitude, the King of Spain granted La Barre-ta to Jose Francisco. The royal grant to Jose Francisco was made in 1804, but the official colonial survey of La Barreta was apparently not completed until 1809. Now, approximately two hundred years later, two separate groups, the Ballis and the Foundation, claim ownership of La Barreta through two separate lines of title.

The Ballis assert ownership of La Bar-reta as follows: in 1804, following the initial grant from the King of Spain, Jose Francisco conveyed La Barreta to his brother, Jose Manuel Balli. A document describing this sale, referred to throughout this litigation as the 1804 Document, was found by a Balli family member and is being relied upon as proof of this sale. In 1855, Linilo Ynojosa, Jose Manuel’s nephew who then owned the property, leased the land to Miflin Kenedy, who primarily used the land for cattle-ranching. In 1898, the Balli family again leased the property to the Kenedy family, entering into a fifty-year lease agreement, documentation of which was not offered to the trial court. At the expiration of this lease in 1949, Gustavo Munoz, the Balli heir to the property at the time, entered into a second fifty-year lease with Sarita Kenedy East, the heir of Miflin Kenedy. The Ballis allege that during the Kenedy leasehold, the Balli family continued to occasionally visit La Barreta on hunting and fishing trips. The Balli family also alleges that pursuant to their lease agreement, the Kenedy family was required to pay taxes on the land and allow the Ballis to select a few cattle out of the Kenedy herds each year as rent, though this latter provision may never have been enforced.

The Foundation disputes the Ballis’ chain of title and asserts its own version of La Barreta’s ownership history. According to the Foundation, Jose Francisco Balli never sold La Barreta to Jose Manuel Balli, and at Jose Francisco’s death, the property passed through intestacy to his son, Don Pedro Balli. Don Pedro then sold La Barreta to Juan Bautista Cantu on or around 1828. At Juan Bautista’s death, La Barreta was inherited by Ramon Cantu. In 1852, Ramon sold the property to James H. Durst. At some point following this sale, the land was partitioned by three men: John B. Armstrong, James Durst (the son of James H. Durst), and Miflin Kenedy. Durst’s portion was later sold to Kenedy, and most of the original La Bar-reta grant was eventually inherited by Sarita Kenedy East. Upon her death, title to La Barreta went to the Foundation. Much of this line of succession was discussed by the Texas Supreme Court in Mackay v. Armstrong, 84 Tex. 159, 19 S.W. 463, 464-66 (Tex.1892).

Because of these inconsistent and irreconcilable claims of ownership, the Foundation initiated a declaratory judgment action seeking to remove any cloud on its title to La Barreta cast by the Ballis. The Foundation also sought recovery of its costs and reasonable attorney’s fees. The Ballis counterclaimed with a trespass-to-try-title action. The Foundation then filed traditional and no-evidence motions for summary judgment, a motion to strike the expert testimony of two Balli witnesses, and a motion to exclude several documents used by the Ballis to establish their ownership of La Barreta (i.e., the 1804 Document and the 1949 lease executed by Gustavo Munoz). The Ballis also filed a motion for summary judgment, which argued that as a matter of law, the Foundation could not recover attorney’s fees under the declaratory judgment act because the declaratory relief requested related to an ownership interest in land. The trial court granted all the motions for summary judgment filed by both parties, as well as the Foundation’s motions to strike the expert testimony and exclude the documents. Both parties subsequently appealed to this Court.

I. Exclusion of Evidence

A. Standard of Review

The Ballis’ first two issues challenge the trial court’s rulings striking the expert testimony by Richard Santos and excluding the 1804 Document, respectively. The trial court has broad discretion to determine the admissibility of evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 914 (Tex.App.-Corpus Christi 1999, pet. denied). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court’s ruling was in error and that the error probably caused the rendition of an improper judgment. Id. (citing Tex.R.App. P. 44.1(a); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992)). When the issue is exclusion of evidence, the reviewing court must review the entire record to determine if error occurred. Id.

B. Expert Testimony of Richard Santos

A witness’s expert testimony is admissible if the witness is qualified as an expert, the opinion is relevant to the issues in the case, and the opinion is based on a reliable foundation. See Tex.R. Evid. 702; Zwahr, 88 S.W.3d at 629. The Foundation’s motion to strike challenged Santos on each of these requirements, arguing that (1) Santos was not qualified as an expert in the area of expertise to which he sought to testify and (2) his opinion was unreliable and would not assist the jury in resolving any issues of fact. In particular, the Foundation complained that Santos had “no training, experience, education, or specialized knowledge in the area of Spanish colonial law.” In addition, according to the Foundation, Santos’s methodology and ultimate opinions as to the legal effect of the 1804 document were based upon unsupported assumptions as to Spanish law in the early nineteenth century. The trial court granted the Foundation’s motion to exclude, ruling that Santos was not qualified to offer opinions on any legal issues such as the validity or legal effect of the 1804 Document.

On appeal, the Ballis argue that the trial court abused its discretion because Santos’s testimony was not offered as an expert legal opinion but merely as testimony to assist the trier of fact in determining the factual authenticity of the 1804 Document. At most, the Ballis argue, Santos’s testimony contained elements of both law and fact related to the authenticity of the 1804 Document and should have been admitted under Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.1987) and Rio Grande Valley Gas Co. v. City of Edinburg, 59 S.W.3d 199, 211-12 (Tex.App.-Corpus Christi 2000), aff'd in part, rev’d in part, 129 S.W.3d 74 (Tex.2003).

We disagree that Santos offered only non-legal testimony. At the heating on the Foundation’s motion to exclude, Santos testified as follows:

Q. [By counsel for the Ballis] [W]ith regard to your expert qualifications, do you feel that you are qualified — do you - feel you have specialized knowledge that will assist the jury on the very matters in which you’re testifying as an expert witness in this case, namely the 1804 document?
A. Yes, sir.
Q. Okay. And does that — does your expertise with regard to the Spanish Colonial period include the laws, applicable laws to the land transfer in issue in this case?
A. Yes, sir.

Santos also offered the following testimony:

Q. [By counsel for the Ballis] [I]t has been suggested by the Foundation that because you’re not a lawyer, you have no specialized knowledge that could assist the jury [to] resolve some, issues, especially with regard to the 1804 document in this case. And I would like to hear yoür response to that, sir.
A. I’ve never presented myself or introduced myself or pretended to be a lawyer or an attorney. I was hired in this case, ... as an expert on the validity of the document and as a translator, not as an attorney or paralegal. So I was hired to authenticate the 1804 document, and that is what I have done.
Q. Okay. And what is your opinion with regard to the validity and authentication of the 1804 document?
A. It is my professional opinion that it is the government copy that should have been filed in the protocols of the archive of Reynosa. Somehow or another somebody took it out.

This testimony demonstrates that the Bal-lis offered Santos’s testimony not solely to establish the factual authenticity of the 1804 Document but also to prove its validity and legal effect. The Ballis complain that the trial court erred by excluding Santos’s testimony regarding the factual authenticity of the 1804 Document, but the trial court only excluded Santos’s testimony as to the validity and legal effect of the 1804 Document. The trial court’s order did not exclude Santos’s testimony or preclude consideration of it as to the factual authenticity of the document. We therefore overrule the Balhs’ first issue. In doing so, we note that the Ballis have not argued on appeal that Santos was qualified to give expert opinion testimony on the validity and legal effect of the 1804 Document. Accordingly, any error committed by the trial court in excluding Santos’s opinions as to the validity and legal effect of the 1804 Document has not been presented for appellate review. See Tex. R.App. P. 38.1(h).

C. 1804 Document

In their second issue, the Ballis complain that the trial court committed reversible error by granting the Foundation’s motion to exclude the 1804 Document from evidence. The parties agree that the 1804 Document is hearsay. See Tex.R. Evid. 801. Under a well-recognized exception to the hearsay rule, the recitals in an ancient document are admissible as evidence of the facts recited, provided that the instrument (1) is over twenty years old, (2) comes from proper custody, and (3) is not suspicious in appearance. See Tex.R. Evid. 803(16), 901(b)(8); Zobel v. Slim, 576 S.W.2d 362, 365 (Tex.1978); Guthrie v. Suiter, 934 S.W.2d 820, 825 (Tex.App.-Houston [1st Dist.] 1996, no writ). In addition, all hearsay exceptions require a showing of trustworthiness. Urquhart v. Antrum, 776 S.W.2d 595, 597 (Tex.App.-Houston [14th Dist.] 1988, no writ) (citing Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex.1986)). The proponent of hearsay has the burden of establishing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.2004) (citing Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 301 (Tex.1962)); see also Ortega v. State, 126 S.W.3d 618, 620 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).

At trial and on appeal, the Ballis argued that the 1804 Document qualified under the ancient document exception to the hearsay rule and should have been admitted into evidence. The trial court granted the Foundation’s motion to exclude the 1804 Document, ruling that it was (1) not produced in admissible form, (2) unreliable, (3) found and produced under suspicious circumstances, and (4) not found where it should have been found. The trial court also ruled that, “as a matter of law, the 1804 Document did not convey and was legally ineffective to convey, any title to Jose Manuel Balli Villareal under the applicable Spanish Colonial law and is therefore invalid, void and of no force and effect.” This last statement regarding the legal effect of the 1804 Document controls not only the Ballis’ second issue but their third, fourth, and fifth issues as well. It will therefore be the focus of this opinion.

A trial court’s ruling on the admissibility of evidence is not a basis for reversal unless the ruling probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a). Thus, even if the trial court erred by excluding the 1804 Document, the error may not be reversible error. See id.

As explained below, this Court has reviewed the Foundation’s traditional motion for summary judgment, the Ballis’ response, and the evidence before the trial court. We conclude that the Foundation established its entitlement to summary judgment regardless of the 1804 Document’s admissibility. Even if the trial court erred by excluding the 1804 Document, it did not commit reversible error because summary judgment in favor of the Foundation was proper even if the document had been used as summary judgment evidence. Thus, any error in the exclusion of the 1804 Document did not lead to the rendition of an improper judgment and is not reversible error. See id. The Ballis’ second issue is overruled.

II. Summary Judgment

In their third and fourth issues, the Ballis argue that the trial court erred by granting the Foundation’s no-evidence and traditional motions for summary judgment, respectively. In their fifth issue, the Bal-lis complain that the trial court erred by granting the Foundation title to La Barre-ta. Because we conclude that the trial court’s traditional summary judgment in favor of the Foundation was proper, we do not reach the trial court’s no-evidence summary judgment. Accordingly, for the reasons that follow, we overrule the Ballis’ fourth and fifth issues but do not reach their third issue. See Tex.R.App. P. 47.1.

We review summary judgment de novo. Garrod Invs., Inc. v. Schlegel, 139 S.W.3d 759, 762 (Tex.App.-Corpus Christi 2004, no pet.). In reviewing a traditional summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiffs cause of action. Id. We take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant’s favor. Id.

The Foundation’s traditional motion for summary judgment asserted the following grounds for summary judgment: (1) the undisputed summary judgment evidence conclusively establishes the Foundation’s title to La Barreta is superior to that of the Ballis; (2) adverse possession, under the five, ten, and twenty-five year statutes, establishes the Foundation’s title as a matter of law; (3) regardless of the validity or authenticity of the Ballis’ title documents, the presumed grant doctrine mandates summary judgment in favor of the Foundation; (4) the documents which cloud the Foundation’s title to La Barreta do not create a genuine issue of material fact as to the Foundation’s superior title to La Barreta; and (5) given the foregoing, the Ballis’ counterclaim for trespass to try title fails as a matter of law.

The trial court awarded summary judgment to the Foundation on the alternative bases of (1) superior title, (2) adverse possession, and (3) presumed grant, in support of which the Foundation produced a substantial body of evidence. On appeal, the Ballis argue only that the trial court erred by granting the Foundation’s traditional motion for summary judgment because genuine issues of material fact exist as to the Foundation’s adverse possession of La Barreta. The Ballis have not addressed the Foundation’s claims of superi- or title to La Barreta and title by presumed grant, except indirectly by their second issue, in which they challenge the trial court’s exclusion of the 1804 Document. We find it particularly noteworthy that the Ballis have not challenged the Foundation’s summary judgment evidence on its theories of superior title and presumed grant. We have reviewed the evidence and find it sufficient to prove these theories.

Assuming, for the sake of argument, that the 1804 Document should have been admitted into evidence, the Ballis have not raised a fact issue precluding summary judgment in favor of the Foundation because there is no evidence in the record to controvert the Foundation’s expert testimony that the 1804 Document was invalid and had no legal effect under Spanish colonial law. Even if the 1804 Document is considered as summary judgment evidence, the Ballis have failed to show that the trial court’s traditional summary judgment was improper because they failed to produce any summary judgment evidence establishing the validity and legal effect of the 1804 Document. The expert reports produced by the Foundation were the only evidence before the trial court on this issue, and they state that the 1804 Document was invalid and had no legal effect. Consequently, the Ballis failed to raise a genuine issue of material fact on the Foundation’s claims of superior title and presumed grant. The Ballis’ fourth and fifth issues are overruled.

III. Late-Filed Evidence

In their sixth and final issue, to which the Foundation has failed to respond, the Ballis argue that the trial court committed reversible error by allowing the Foundation to file summary judgment evidence less than twenty-one days before the summary judgment hearing. The Ballis cite rule 166a(c), which states, “Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for the hearing.” Tex.R. Crv. P. 166a(c).

After reviewing the Ballis’ argument and the record, we conclude that the twenty-one day limit specified in rule 166a(e) is inapplicable to the instant issue. The “late-filed” evidence of which the Bal-lis complain was not attached to a motion for summary judgment, a response, or a reply; it was attached to a motion to exclude testimony offered by the Ballis. Accordingly, the “late-filed” evidence did not become part of the summary judgment record, as it was offered solely to challenge the admissibility of certain summary judgment evidence produced by the Ballis. There is no indication in the record that the trial court relied upon the “late filed” evidence in rendering a summary judgment for the Foundation. In fact, the record indicates that the trial court used the “late filed” evidence to determine the threshold question of whether the Ballis’ evidence was admissible. We find it noteworthy that counsel for the Ballis did not object to the timeliness of the motion to exclude to which the “late-filed” evidence was attached. We overrule the Ballis’ sixth issue. And in doing so, we note that even if the late-filed evidence had become part of the summary judgment record, we would conclude that it was merely cumulative of other evidence that was timely filed. Accordingly, any error in its admission would not be reversible error. See Tex.R.App. P. 44.1(a); Reina v. Gen. Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981) (stating there is no reversible error if admissibility ruling involves cumulative evidence).

IV. Attorney’s Fees

The Foundation has also appealed from the trial court’s decision, asserting that the trial court erred in (1) determining that attorney’s fees could not be recovered under the declaratory judgment act because the declaratory relief sought related to an ownership interest in land and (2) subsequently granting the Ballis’ motion for summary judgment as to the Foundation’s claim for attorney’s fees.

The Texas Declaratory Judgment Act provides that an interested party to a deed “may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status or other legal relations thereunder.” Tex Civ. PRAC. & Rem. Code Ann. § 87.004(a) (Vernon 1997). The Act also provides for the award of attorney’s fees and costs to the prevailing party. Id. § 37.009. Nevertheless, if the interested party’s suit is in reality one for recovery of land based on an equitable title, the action brought is considered a trespass-to-try-title suit and is not an action for declaratory judgment. See Tex. PROP.Code Ann. § 22.001(a) (Vernon 2000) (“A trespass to try title action is the method of determining title to ... real property.”) (emphasis added); Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (Tex.App.-Texarkana 1991, no writ) (“Any suit that involves a dispute over the title to land is, in effect, an action in trespass to try title.”).

As the Texas Supreme Court clarified in Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004), how a case is pled is irrelevant, for so long as the underlying-nature of the case involves determination of title, the case is governed by the trespass-to-try-title statute and attorney’s fees cannot be recovered. See also Dewhurst, 90 S.W.3d at 289 (“The dispute in the present case is over title ... and the Foundation’s claim for declaratory relief is merely incidental to the title issues. In such circumstances, the Act does not authorize an award of attorney fees.”).

In a letter to the parties explaining the basis for its decisions on the various motions before it, the trial court explained that although the Foundation argued that its suit is not a trespass-to-try-title suit:

[Its claim] is so intermingled with the issue of its own title, more than a small measure in defense against [the Ballis’] trespass-to-try-title [counterclaim] that its suit sounds in trespass-to-try-title and involves title issues so substantially that I cannot separate them. Therefore I will sustain [the Balks’] motion for summary judgment on this issue.

We agree with the trial court and conclude that the Ballis proved as a matter of law that the Foundation could not recover attorney’s fees because this suit is a title dispute between two parties with competing claims of conveyance and inheritance and, as such, is governed by the property code, not the declaratory judgment act. See Martin, 133 S.W.3d at 267 (concluding that the trespass-to-try-title statute governs the parties’ substantive claims in property dispute); McRae Exploration & Prod., Inc. v. Reserve Petroleum Co., 962 S.W.2d 676, 685 (Tex.App.-Waco 1998, writ denied). Accordingly, the Foundation’s issues on appeal are overruled.

V. Conclusion

The judgment of the trial court is affirmed.