author: Justice LANG.

text:
    Terrence S. WELCH, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., and Van James, Appellants v. Robert MILTON, Appellee.
    No. 05-05-00716-CV.
    Court of Appeals of Texas, Dallas.
    March 9, 2006.

      Gregory R. Ave, Walter, Balido & Crain, LLP, Dallas, Carvan E. Adkins and Cara Leahy White, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, Barton Lance Ridley, Dallas, TX, for Appellant.
    Joseph Russell, Kaufman, David J. Moraine, Crosbie, Moraine, L.L.P., Denton, TX, for Appellee.
    Before Justices O’NEILL, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice LANG.

In two issues, appellants Welch, James, and Bickerstaff assert error in the trial court’s denial of their motions for summary judgment. In their motions for summary judgment, appellants sought judgment on the defense that appellee’s claims are barred by governmental employee sovereign immunity under section 101.106 of the Texas Civil Practice and Remedies Code and common-law official immunity. We have jurisdiction over this interlocutory appeal from the denial of appellants’ motions for summary judgment pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. Tex. Crv. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon 2004).

The suit below was brought by appellee, Robert Milton, following the termination of his employment as the Director of Public Works for the Town of Flower Mound, Texas. The termination occurred after an internal investigation of activities by employees of the Public Works Department, including Milton. Milton claims Welch, the Town Attorney, gave him personal legal advice at the same time he represented the Town in the investigation. Milton sued appellants Terrence Welch, the Town Attorney, Van James, the Town Manager, and the law firm of Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Welch’s law firm. The claims brought against appellants were malpractice, gross negligence, breach of fiduciary duty, constructive fraud, breach of the duty to warn, negligent misrepresentation, violations of the Texas Deceptive Trade Practices Act (DTPA), fraud, conspiracy, and malice.

Because fact issues exist regarding both asserted grounds of immunity, we conclude the trial court did not err in denying appellants’ motions for summary judgment. Therefore, we decide appellants’ issues against them and affirm.

I. FACTUAL BACKGROUND

In 1995, the Town of Flower Mound hired appellee Robert Milton as the Assistant Director of Public Works. He was later promoted to Director of Public Works. In April 2000, the Town conducted an investigation into allegations of improprieties against employees of its Public Works Department. During the investigation, the specific events giving rise to this lawsuit occurred.

The relevant factual context began with a meeting which was arranged between the Town Manager, Van James, the Town Attorney, Terrence Welch, who is also a partner with the law firm Bickerstaff, Heath, Smiley, Pollan, Kever, & McDaniel, L.L.P. (“Bickerstaff’), and Milton. At the meeting, James presented Milton with a list of questions Milton was to answer under oath. Milton alleges that, at that time, he asked James if he needed to hire an attorney and James told him that he need not hire a personal attorney because Welch, the Town Attorney, would advise him regarding the investigation. According to Milton, he answered the questions under oath after Welch “legally advised” him to do so. Soon thereafter, he was contacted by an employee in the Town’s Human Relations Department and told to submit to a polygraph examination. He claims that Welch told him to answer the questions and submit to the polygraph to protect himself and because refusal to submit to the polygraph could subject him to discipline or termination.

On May 25, 2000, the Town terminated Milton’s employment. The Town issued a press release announcing Milton’s termination and the grounds for his termination, which included, among other points, sexual impropriety and theft. Milton alleges that Welch and James met together to author, review, and approve the press release. Milton immediately appealed his termination to the Flower Mound Appeal Review Board, seeking reinstatement. As Town Attorney, Welch provided advice to the review board regarding the legality and potential impact of their decisions during the appeal process. Milton alleges that while his appeal was pending, Welch wrote a letter to the members of the review board threatening them with personal liability if they reinstated Milton.

II. PROCEDURAL BACKGROUND

A lengthy history has developed in this litigation where Milton has added and dismissed defendants, he has modified his legal claims, and this Court has ruled on an interlocutory appeal. In order for the basis of our conclusions to be understood, we revisit this history.

In his original petition, filed in May 2001, Milton brought claims against the Town; Van James, personally and as Town Manager; Terrence Welch, personally, as Town Attorney, and as an agent for Biek-erstaff; and Bickerstaff, Welch’s law firm. Milton alleged the suit arose from the willful slander and “life-altering” defamation by the Town, its employees, agents, and counsel. Soon after filing his original petition, Milton filed his first and second amended petitions. In his second amended petition, he modified his claims and added as defendants Parker-Jones, Inc., the company that administered the polygraph, and its employee, Bill Parker, individually.

In November 2001, defendants Welch, James, and the Town filed pleas to the jurisdiction. They asserted that Milton’s claims against the Town were barred by sovereign immunity and did not fall within the limited waiver of immunity provided by the Texas Tort Claims Act, the claims against Welch and James in their official capacities were also barred by sovereign immunity, and the claims against Welch and James in their individual capacities were barred by qualified immunity. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (Vernon 2004) (waiver of sovereign immunity); Tex. Civ. PRAC. & Rem.Code Ann. § 101.106 (Vernon 1997) (repealed by Act of June 2, 2003, 78th Leg., RS., ch. 204, § 11.02, 2008 Tex. Gen. Laws) (immunity for governmental employees).

Milton responded to the pleas to the jurisdiction by asserting that his claims of negligent supervision and negligence against the Town were not barred by sovereign immunity because the tortious conduct did not arise in the performance of a public function of the municipality. He further alleged that his claims were not precluded because the Town misused tangible property when it telecopied and otherwise delivered the press releases to area newspapers and negligently supervised the employees who delivered the press releases. See Tex. Civ. PRac. & Rem. Code Ann. § 101.021(2).

The litigation continued and Milton filed another amended petition, adding Does 1 and 2 as defendants. At this stage in the litigation, Milton asserted claims of malpractice, gross negligence, breach of fiduciary duty, constructive fraud, breach of the duty to warn, negligent misrepresentation, DTPA violations, and fraud against Welch and Bickerstaff; defamation per se, statutory libel, and intentional infliction of emotional distress against Welch, Bicker-staff, James, and the Town; negligent supervision of employees and/or agents and negligence against the Town; invasion of privacy against Welch, Bickerstaff, and James; false imprisonment and negligent hiring or supervision against Parker-Jones and Bill Parker; and conspiracy and malice against all defendants.

In January 2002, the trial court heard the pleas to the jurisdiction and granted Welch’s and James’s pleas in their official capacities, but denied the Town’s plea. The Town perfected an interlocutory appeal contending the doctrine of sovereign immunity precluded Milton’s claims against it and that the trial court erred by concluding otherwise. This Court issued an opinion on March 6, 2003 on the Town’s interlocutory appeal, reversing the trial court’s denial of the Town’s plea and rendering judgment dismissing Milton’s claims against the Town. We concluded that the gravamen of Milton’s complaints was the Town’s misuse of information, not tangible property i.e., the telecopy machine. Accordingly, the facts did not support a finding of a waiver of sovereign immunity under the Texas Tort Claims Act. See Town of Flower Mound v. Milton, 2003 WL 751896 (Tex.App.-Dallas 2003); see also Tex. Civ. PRac. & Rem.Code Ann. §§ 101.021(2), 101.025(a).

Milton again amended his petition in July 2003, and named only Welch, Bicker-staff, and James as defendants. He subsequently filed his eighth and ninth amended petitions, again modifying the claims. Milton’s ninth amended petition was the live pleading at the time of the summary judgment hearing.

In his ninth amended petition, Milton alleged that the suit arose from “the conduct of attorney Welch, who with the assistance of James, misappropriated Milton’s confidential information for the use and benefit of his more lucrative client, the Town, at Milton’s expense.” Milton based his allegations on conversations between Milton, Welch, and James and purported statements by James that Welch would act as Milton’s lawyer. These statements are alleged to be fraudulent and designed to induce Milton to believe Welch was his attorney when, in fact, Welch represented the Town. According to Milton, Welch understood Milton looked to him for personal legal advice.

Additionally, Milton claimed that while Welch represented him, he also advised the Appeal Review Board and reviewed the press releases issued by the Town following Milton’s termination. It is Milton’s legal position that the formation of an attorney-client relationship between Welch and himself removed Welch from the protection of governmental employee immunity in section 101.106 of the Texas Civil Practice and Remedies Code and common-law official immunity. With regard to James, Milton claimed that, at all times, James was not acting in good faith and was not acting as a reasonably prudent Town Manager or public official. James was also sued as an aider and abettor in Welch’s breach of fiduciary duty and as a co-conspirator.

In February 2004, Welch, James, and Bickerstaff filed motions for summary judgment asserting governmental employee immunity under section 101.106 of the Texas Civil Practice and Remedies Code and common-law official immunity. The trial court denied these motions in an August 2004 order. This appeal followed.

III. STANDARD OF REVIEW

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We apply the same standard for reviewing the denial of summary judgment where there is an assertion of immunity as we do for the granting of summary judgment. Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229, 233 (Tex.App.-Dallas 1995, no writ); see Tex. Civ. Prac. & Rem.Code - Ann. § 51.014(a)(5); Ervin v. James, 874 S.W.2d 713, 715 (Tex.App.-Houston [14th Dist.] 1994, writ denied). The standard for reviewing a summary judgment is well established:

To obtain summary judgment, a movant must either negate at least one element of the plaintiffs theory of recovery, ‘Moore’ Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972), or plead and conclusively establish each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Once the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence sufficient to raise a fact issue. ‘Moore’ Burger, 492 S.W.2d at 936-37.

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

We follow these rules when reviewing a summary judgment: (1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in favor of the non-movant. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985)). A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991); Tex. Dep’t of Pub. Safety v. Perez, 905 S.W.2d 695, 698 (Tex.App.-Houston [14th Dist.] 1995, writ denied).

In this case, appellants moved for summary judgment based on the affirmative defenses of governmental employee sovereign immunity set forth in section 101.106 of the Toi’t Claims Act and common-law official immunity. See Tex. Civ. PRac. & Rem.Code Ann. § 101.106 (Vernon 1997) (repealed by Act of June 2, 2003, 78th Leg, RS., ch. 204, § 11.02, 2003 Tex. Gen. Laws). To be entitled to summary judgment on the affirmative defenses of governmental employee sovereign immunity and common-law official immunity, the movant has the burden to conclusively establish all the elements of those defenses as a matter of law. See Perez, 905 S.W.2d at 698; see also KPMG, 988 S.W.2d at 748; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). “No disputed question of material fact can remain on the affirmative defense.” Colbert v. Hollis, 102 S.W.3d 445, 448 (Tex.App.-Dallas 2003, no pet.); see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990).

On appeal, the burden is on appellants to direct the appellate court to evidence in the record supporting their contentions. Hope’s Fin. Mgmt. v. Chase Manhattan Mortgage Corp., 172 S.W.3d 105, 108 (Tex.App.-Dallas 2005, pet. denied); see Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). This Court is not required to search the record for evidence supporting a litigant’s position under particular points of error. Jackson, 732 S.W.2d at 412; see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex.1994) (stating “it has never been a part of an appellate court’s duties to search the record for evidence itself.”). Pleadings do not constitute summary judgment proof. Clear Creek, 589 S.W.2d at 678; Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540 (Tex.1971). Additionally, conclusory statements are not proper summary judgment proof. Yancy v. United Surgical Partners Intern., Inc., 170 S.W.3d 185, 192 (Tex.App.-Dallas 2005, pet. filed); Hodgkins v. Bryan, 99 S.W.3d 669, 674 (Tex.App.Houston [14th Dist.] 2003, no pet.).

IV. APPLICABLE LAW

A. Section 101.106

1. Defense of James and Welch

James and Welch claim they are entitled to summary judgment as a matter of law because Milton’s claims against them are barred by section 101.106 of the Texas Civil Practice and Remedies Code. Tex. Civ. Pra.c. & Rem.Code Ann. § 101.106 (Vernon 1997) (repealed by Act of June 2, 2003, 78th Leg., RS., ch. 204, § 11.02, 2003 Tex. Gen. Laws). At the time suit was filed in 2001, section 101.106 provided that, “A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Id.

2. The Elements of a Defense under Section 101.106

The elements of proof of the defense of governmental employee sovereign immunity under section 101.106 are: (1) there is a judgment or settlement; (2) of a claim under the Act; (3) involving the same subject matter; (4) brought by the same claimant; (5) asserted against the employee of a governmental entity; (6) whose act or omission gave rise to the claim which resulted in the judgment or settlement. McGowen v. Huang, 120 S.W.3d 452, 457 (Tex.App.-Texarkana 2003, pet. denied); Smith v. Altman, 26 S.W.3d 705, 708 (Tex.App.-Waco 2000, pet. dism’d w.o.j.).

a. Judgment or Settlement

Section 101.106 forecloses any claim against an employee subsequent to, or concurrent with, the rendition of a judgment as to claims against the governmental entity. Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex.1995). “The immunity conveyed to a governmental unit’s employees by section 101.106 is triggered by any judgment in an action against a governmental unit, including a judgment in favor of the governmental unit.” Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex.1998) (emphasis original); see Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997). A dismissal on a plea to the jurisdiction is a judgment for purposes of section 101.106. Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex.2004) (discussing Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex.App.-San Antonio 2002, pet. denied); Dalehite v. Nauta, 79 S.W.3d 243, 244 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Doyal v. Johnson County, 79 S.W.3d 139, 140 (Tex.App.-Waco 2002, no pet.); and Lowry v. Pearce, 72 S.W.3d 752, 755 (Tex.App.-Waco 2002, pet. denied)).

b. Same Subject Matter

The purpose of section 101.106 is to protect government employees from individual liability for acts or omissions where a claim based on the same facts is made against their employers under the Texas Tort Claims Act. Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex.App.-El Paso 1997, no writ). The express language of section 101.106 bars a judgment against a government employee where there is a Tort Claims Act judgment or settlement concerning the same subject matter. Oldham, 895 S.W.2d at 355; Gonzalez, 940 S.W.2d at 795; Owens v. Medrano, 915 S.W.2d 214, 215 (Tex.App.-Corpus Christi 1996, writ denied).

In 1993, this Court defined “involving the same subject matter” in the context of section 101.106. See White v. Annis, 864 S.W.2d 127, 131 (Tex.App.-Dallas 1993, writ denied). In White, we applied the meaning used by the Federal courts and defined “same subject matter” to mean “arising out of the same actions, transactions, or occurrences.” White, 864 S.W.2d at 131 (quoting Serra v. Pichardo, 786 F.2d 237, 239 (6th Cir.), cert. denied, 479 U.S. 826, 107 S.Ct.103, 93 L.Ed.2d53 (1986) (defining the similar phrase “by reason of the same subject matter” in the Federal Tort Claims Act)). Applying this definition to the facts of the case in White, this Court concluded “that the same occurrence, the breaking of Jason’s Annis’s leg by the exploding truck tire owned by the City, gave rise to both the statutory action against the City and the common-law negligence action against White.” Id. at 131. In Dallas Co. Mental Health & Mental Retardation v. Bossley, the Texas Supreme Court also defined “involving the same subject matter” as “arising out of the same actions, transactions, or occurrences.” Bossley, 968 S.W.2d at 344 (agreeing with White, 864 S.W.2d at 131 and Bell v. Love, 923 S.W.2d 229, 233 (Tex.App.-Houston [14th Dist.] 1996, no writ)).

Subsequent to White and Bossley, the Waco Court of Appeals decided Lowry v. Pearce. That Court applied the meaning established by this Court and the Texas Supreme Court for the phrase “involving the same subject matter.” In Lowry, Pearce brought a wrongful death action after the death of her son, Robert, a longtime resident of the Mexia State School. She sued the school; the superintendent, Lowry; an employee, Thomas; a former employee, Harris; and the Texas Department of Mental Health and Mental Retardation (“MHMR”), which operated the school. Lowry, 72 S.W.3d at 753. Asserting immunity under section 101.106, Lowry and Thomas filed a motion for summary judgment with evidence attached. Id. at 754. The trial court granted summary judgment on some of Pearce’s claims. Id. The Waco Court of Appeals reversed the trial court’s decision, in part, concluding that Lowry and Thomas had established their entitlement to section 101.106 immunity for all of Pearce’s claims against them and calling attention to the specific items of summary judgment evidence establishing each requirement of section 101.106 immunity. Id. at 755. Specifically, the Court noted that the “same subject matter” requirement had been met because Lowry and Thomas offered summary judgment evidence that the claims against Lowry, Thomas, the school, and MHMR, arose out of “Robert’s death and the surrounding events.” Id.

c. Status as Government Employee

In addition to analyzing the “same subject matter” issue, we must consider that section 101.106 requires the action to be against an employee of the governmental unit. Under the Tort Claims Act, “a person, including an officer or agent, who is in the paid service of a governmental unit” is included in the definition of an employee, but “any person who performs tasks the details of which the governmental unit does not have the legal right to control” is expressly excluded. Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(2); see, e.g., Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278-79 (Tex.1990); Xeller v. Locke, 37 S.W.3d 95, 98 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). However, the exercise of independent, professional judgment does not necessarily exclude someone from the definition of an employee. In Murk v. Scheele, 120 S.W.3d 865 (Tex.2003), the Texas Supreme Court held:

[t]he Act’s definition of ‘employee’ does not require that a governmental unit control every detail of a person’s work. The operator of a motor vehicle, for example, must exercise independent judgment, but this does not mean that he or she cannot be considered an employee under the Act. If it did, a governmental unit could never ‘be liable for ... injury ... proximately caused by ... the negligence of an employee ... arisfing] from the operation or use of a motor-driven vehicle’ even though section 101.021(1) of the Act provides for such liability.’

Id. at 867 (emphasis original) (holding a physician who exercised independent, professional judgment while serving as a paid physician for the University of Texas Health Center was an employee of UT for purposes of section 101.106).

d. Scope of Bar under Section 101.106

“Section 101.106 clearly states that a judgment in an action involving a governmental unit bars any action against the employee.” Owens, 915 S.W.2d at 216 (emphasis original) (quoting Oldham, 895 S.W.2d at 355). There is no requirement that the suit against the employee be brought under the Tort Claims Act for the action against the employee to be barred. Instead, the statute requires that the employee’s act gave rise to the claim against the governmental unit under the Act. Annis, 864 S.W.2d at 130; see Schauer, v. Morgan, 175 S.W.3d 397, 401 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 710 (Tex.App.-San Antonio 2002, pet. denied). Additionally, unlike other provisions of the Tort Claims Act, section 101.106 does not say that the provision applies only when the employee acts within the scope of his employment or in good faith. Owens, 915 S.W.2d at 216. Courts have even extended section 101.106 to intentional torts. See Hallmark, 94 S.W.3d at 710; Liu, 88 S.W.3d at 744; Brand v. Savage, 920 S.W.2d 672, 674-75 (Tex.App.Houston [1st Dist.] 1995, no writ). Furthermore, section 101.106 applies to claims brought against defendants in their individual capacity as well as their official capacity. See Bossley, 968 S.W.2d at 344; Schauer, 175 S.W.3d at 401-02; Hallmark, 94 S.W.3d at 709.

B. Common-Law Official Immunity

1. Distinguished from Sovereign Immunity

Welch and James argue, in the alternative, that the trial court’s denial of summary judgment was erroneous because they established that they were entitled to common-law official immunity. Texas courts have long recognized common-law official immunity for a variety of public officials. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 423 (Tex.2004). Common-law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation. Id. at 424; see Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994); Baker v. Story, 621 S.W.2d 639, 643-44 (Tex.Civ.App.-San Antonio 1981, writ ref'd n.r.e.). The concept of common-law official immunity is separate and distinct from sovereign immunity. Common-law official immunity protects individual officials from liability while sovereign immunity protects governmental entities from liability. See Kassen, 887 S.W.2d at 8; Baker, 621 S.W.2d at 643. The purpose of common-law official immunity is to protect public officials from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light. Telthorster v. Tennell, 92 S.W.3d 457, 463 (Tex.2002).

2. Elements of Defense and Burden

Common-law official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Perry v. Texas A & I Univ., 737 S.W.2d 106, 110 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.). This defense protects government employees from suit arising from performance of their (1) discretionary duties (2) performed in good faith and (3) within the scope of their authority. Ballantyne, 144 S.W.3d at 422; Chambers, 883 S.W.2d at 653; Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 729 (Tex.App.-Dallas 2005, no pet.). The burden is on the defendant to establish all elements of the defense. Chambers, 883 S.W.2d at 653; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

a. Discretionary Duties

An action is considered discretionary if it involves personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654; Ramos v. Tex. Dep’t of Pub. Safety, 35 S.W.3d 723, 727 (Tex.App.Houston [1st Dist.] 2000, pet. denied). In determining if an act is discretionary, the issue is whether an employee was performing a discretionary function, not whether he had the discretion to do an allegedly wrongful act while discharging that function or whether the employee’s job description included discretionary duties. Chambers, 883 S.W.2d at 653; Ramos, 35 S.W.3d at 727. “Discretionary acts are those related to determining what the policy of the governmental unit will be, but do not extend to the carrying out of the specifics of particular policies or exercise of ‘professional’ or ‘occupational’ discretion.” Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex.App.-San Antonio 1992, writ dism’d w.o.j.) (quoting Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex.App.-Austin 1982, writ ref' d n.r.e.).

b. Good Faith

To determine whether a public official acted in good faith, this Court applies an objective standard and must determine whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. Chambers, 883 S.W.2d at 656; see also Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex.2004); Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465; Freeman, 159 S.W.3d at 729. The standard of good faith as an element of common-law official immunity is not a test of carelessness or negligence, or a measure of an official’s motivation. Joe, 145 S.W.3d at 164; Ballantyne, 144 S.W.3d at 426. Additionally, “[t]his test of good faith does not inquire into ‘what a reasonable person would have done,’ but into Vhat a reasonable [person] could have believed.’” Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465 (emphasis original). It does not require the official to show that all reasonably prudent officials would have made the same decision. Rather, the official must only show that a reasonable officer, possessing the same information he had at the time, could have believed his conduct was lawful. Chambers, 883 S.W.2d at 656; Bowles v. Yeganeh, 84 S.W.3d 252, 254 (Tex.App.Dallas 2002, no pet.); Smith v. Davis, 999 S.W.2d 409, 415 (Tex.App.-Dallas 1999, no pet.).

“Once the defendant presents proof that a reasonable officer in the same or similar circumstances would have taken the same action, the burden shifts to the plaintiff to show that no reasonable officer in the defendant’s position could have thought the facts were such they justified the defendant’s act.” Smith, 999 S.W.2d at 415 (quoting Chambers, 883 S.W.2d at 657). “[P]robative evidence on the issue of good faith is limited to objective evidence.” Ballantyne, 144 S.W.3d at 428; see Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997); Freeman, 159 S.W.3d at 730. In Wadewitz, the Texas Supreme Court concluded that “a court must measure good faith in official immunity cases against a standard of objective legal reasonableness, without regard to the officer's subjective state of mind.” Ballantyne, 144 S.W.3d at 428 (quoting Wadewitz, 951 S.W.2d at 466); accord Chambers, 883 S.W.2d at 656.

c. Scope of Authority

Finally, in addition to the foregoing, a government official must demonstrate that he was acting within the scope of his authority to be entitled to common-law official immunity. Public officials act within the scope of their authority if they are discharging the duties generally assigned to them. Ballantyne, 144 S.W.3d at 424; Chambers, 883 S.W.2d at 658. “The fact that a specific act that forms the basis of the suit may have been wrongly or negligently performed does not take it outside of the scope of authority.” Wethington v. Mann, 172 S.W.3d 146, 152 (Tex.App.-Beaumont 2005, no pet.) (quoting Koerselman v. Rhynard, 875 S.W.2d 347, 350 (Tex.App.-Corpus Christi 1994, no writ)).

The “scope of authority” requirement was recently addressed by the Texas Supreme Court in Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex.2004). In order to evaluate the case before us, we carefully set out the steps taken by the Supreme Court in its analysis of this issue.

Joe was a shareholder in a law firm. Also, he served as a member of the Irving City Council. At a city council meeting, Joe voted in favor of an ordinance that adversely affected a client of his law firm. When the client, Two Thirty Nine Joint Venture, sued Joe and his law firm, Joe moved for summary judgment based on common-law official immunity. The client then requested a continuance to conduct discovery, which the trial court denied, and Joe’s motion for summary judgment was granted. Later in the litigation, his law firm’s motion for summary judgment was also granted. This Court reversed the trial court’s judgment in favor of Joe because we concluded that the trial court abused its discretion in denying the client’s motion for a continuance to obtain discovery before the summary judgment hearing. Id. at 159. The judgment in favor of Joe’s law firm was reversed since we concluded that fact issues existed. Id. Thereafter, Joe and his law firm petitioned the Texas Supreme Court for review.

The Supreme Court disagreed with this Court, reversed, and rendered judgment that the client take nothing. In doing so, the Supreme Court addressed the merits of Joe’s claim of official immunity and examined the summary judgment evidence offered by the parties. Id. at 162.

The opinion reflects that Joe offered his affidavit in support of his motion for summary judgment. In his affidavit, Joe explained that voting on ordinances was within the scope of his authority as a member of the city council and that, prior to voting on the ordinance at issue, he conducted legal research with the assistance of his firm’s librarian to study the legality of the ordinance. Id. at 163. In response, the client argued that Joe’s legal research was inappropriate because his actions went beyond the scope of his authority as a member of the city council. In support of its position, the client offered the affidavit of one of the principals of the client. In his affidavit, the principal stated his belief that “Joe requested that legal research be performed at [his law firm] for the purpose of advising the Irving City Council of the power of the City Council to impose the moratorium and supporting the citizens group favoring the moratorium.” Id. at 164. The client argued that Joe’s actions created attorney-client relationships between Joe and the City of Irving and between Joe and the citizens group, which were in conflict with his obligations to his own firm’s client. Id.

Based on their review of the summary judgment evidence offered by the parties, the Supreme Court concluded that the client’s evidence did not create a fact issue as to whether Joe was acting beyond the scope of his authority as a member of the city council. Joe, 145 S.W.3d at 163-64. Specifically, the Court determined that the client merely speculated about the existence of an attorney-client relationship between Joe and the citizen’s group. Id. at 164. That speculation was not evidence. Id. Furthermore, the Court concluded that conducting legal research in preparation for a city council vote does not create an attorney-client relationship and sharing the information with fellow council members does not change that conclusion. Id. at 164.

Y. APPLICATION TO FACTS

A. Section 101.106

To meet their motion for summary judgment burdens, Welch and James must establish immunity under section 101.106 immunity as a matter of law by presenting uncontroverted summary judgment evidence on each element of the defense. See Roark, 813 S.W.2d at 494. Accordingly, we review the motions for summary judgment and the responses filed with the trial court.

The record reflects that James offered summary judgment evidence, which included: the affidavit of his expert, Charles M. Groomer, Article IV of the Town of Flower Mound Town Charter, and section 2-231 of the Town of Flower Mound Code of Ordinances. Summary judgment evidence offered by Welch included the affidavit of his expert, Dorothy Palumbo, and section 4.05 of the Flower Mound Town Charter. Welch and James argued that section 4.05 of the Flower Mound Town Charter establishes Welch’s status as an employee of the Town to which immunity applies. Also, Welch and James directed the trial court to this Court’s memorandum opinion regarding the Town’s plea to the jurisdiction. They asserted that because we sustained the Town’s plea, there has been a judgment in the action against the Town and that Milton’s claims against them are barred by section 101.106. Further, they asserted generally in their motions for summary judgment that Milton’s own pleadings reflect his claims against them involve the same subject matter as his claims against the Town.

In response, Milton offered to the trial court this Court’s memorandum opinion rendering final judgment in favor of the Town and the deposition testimony of Dorothy Palumbo, Welch’s expert, to support his position that this case does not involve the same subject matter as the suit against the Town. He contends that in the suit against the Town, he alleged the negligent use of a facsimile transmission machine and negligent supervision of Town’s employees, while the claims in this case all arose out of the alleged formation of an attorney-client relationship between Welch and Milton. According to Milton, all the claims in this case arose from facts that are separate and distinct from the claims against the Town.

Additionally, to support his assertion that Welch is not an employee to which section 101.106 immunity applies, Milton offered the affidavit of his expert, Emeritus Professor of Law Walter W. Steele, Jr., and the deposition testimony of Welch’s expert, Dorothy Palumbo. Professor Steele testified that Welch formed a personal attorney-client relationship with Milton, and was acting as Milton’s personal attorney. Milton characterizes Palumbo’s testimony as stating that if Welch had entered into a personal attorney-client relationship with Milton, he could not have been acting as an employee of the Town. Milton contends, under those circumstances, Welch could not be the Town’s employee because the Town would not have the right to control the details of his professional discretion as an attorney while he was advising Milton. Specifically, Milton offered this excerpt from Palumbo’s deposition:

Q: Okay, would you agree with me that if Terry Welch undertook to represent someone else in their personal capacities that he would not be acting as town attorney in that instance?
A: Hypothetically, if he undertook to represent someone — and I assume you’re saying an employee of the Town — on a personal legal matter, he would not be acting on the Town’s behalf.

We conclude, on this record, Welch and James have not offered evidence establishing the elements of section 101.106 immunity. Welch and James only offered evidence of their duties in their respective positions with the Town. Also, they addressed Milton’s allegation that Welch is not an employee to which section 101.106 immunity applies by merely offering the section of the Town Charter describing the town attorney’s job responsibilities and then making conclusory statements that Welch is a Town employee because, under the Town Charter, he is under the control of the Town. Critical here is the failure of Welch and James to address, with facts, Milton’s allegation that a personal attorney-client relationship was formed between Welch and Milton and that such a relationship would remove Welch from the definition of an employee under section 101.106. Welch and James made only general arguments contending that neither Welch’s personal discretion as an attorney, nor the alleged formation of an attorney-client relationship between Welch and Milton would remove him from the definition of an employee.

While application of section 101.106 is not limited to situations where the employee acts within the scope of his employment or in good faith, it does require that the actor is an employee of the governmental unit and that the governmental unit has the right to control the details of the tasks performed by the employee. Owens, 915 S.W.2d at 216; see Tex. Civ. PRAC. & Rem. Code Ann. § 101.106. The evidence offered by Milton where he states Welch acted as his attorney, demonstrates the existence of a fact issue on the question of whether Welch was acting as a Town employee at that time.

Furthermore, we conclude Welch and James have not offered evidence demonstrating that this lawsuit involves the same subject matter as the suit against the Town. In support of their contention that the suits involve the same subject matter, Welch and James offered nothing more than a summary of the cases interpreting the “same subject matter” requirement and the conelusory statement that “the allegations against James, Welch, and the Town all arise out of the investigation and ultimate termination of Milton.” Welch and James have not directed this Court to evidence in the record supporting their contention. See Hope’s Fin. Mgmt., 172 S.W.3d at 108; Jackson, 732 S.W.2d at 412.

On this point, it is our task to determine whether there exists uncontroverted summary judgment evidence establishing the elements of section 101.106 immunity. See Roark, 813 S.W.2d at 494; Lowry, 72 S.W.3d at 755. Where, as here, the conclusion offered by the summary judgment movant is refuted by evidence offered by the respondent thereby demonstrating the existence of a fact issue, the movant on a traditional motion for summary judgment has not met its burden. See Centeq Realty, Inc., 899 S.W.2d at 197; ‘Moore’ Burger, 492 S.W.2d at 936-37. Therefore, we conclude Welch and James have not met their burden of establishing each element of section 101.106 immunity as a matter of law. The trial court did not err in denying their motion for summary judgment on this ground.

B. Common-Law Official Immunity

Alternatively, Welch and James argue that they are entitled to summary judgment on their claim of common-law official immunity. In support of their position that they are entitled to common-law official immunity, Welch and James ask us to focus on the good faith element of this three-part test. However, we need not address good faith because Milton has raised an issue of material fact at least, as to the element of “scope of authority.”

Milton offered his affidavit in which he stated that in a meeting between Milton, James, and Welch, James told him that Welch would advise him regarding the investigation, which indicated to him that James had appointed Welch to serve as his personal attorney in the investigation and that Welch consented to the representation. In this affidavit, Milton said that, based on James’s statement that Welch would advise him, he sought personal legal advice from Welch regarding appropriate conduct in the investigation. No objection was made to this affidavit, nor was there any contrary evidence offered by appellants. Further, as observed above, Emeritus Professor of Law Walter Steele testified in his affidavit to his opinion that, based on his experience, Milton’s affidavit, and Milton’s petition, Welch personally represented Milton. Dorothy Palumbo, Welch’s expert, also testified in her deposition that Welch would not be acting within the scope of his authority as Town Attorney if he undertook a personal representation of Milton.

The foregoing reflects a genuine issue of material fact respecting the “scope” element of common-law official immunity as to Welch. Additionally, because Milton alleged James aided and abetted in the breach of Welch’s fiduciary duties, the same issue of material fact on the “scope” element exists as to James. Since Welch and James failed to establish all three elements of common-law official immunity as a matter of law, the trial court did not err in denying their motions for summary judgment.

C. BickerstafTs Motion for Summary Judgment

Bickerstaff argues that the trial court erred in denying its motion for summary judgment based on Welch’s immunity under section 101.106 of the Texas Tort Claims Act, or alternatively because Welch is entitled to common-law official immunity. All of Milton’s claims against the Biek-erstaff law firm are derivative of Milton’s claims against Welch. Because we have concluded that the trial court did not err in denying Welch’s motion for summary judgment as to either ground of immunity, Bickerstaff is not entitled to summary judgment.

VI. CONCLUSION

Welch, James, and Bickerstaff failed to show that they are entitled to summary judgment based upon immunity afforded by section 101.106 of the Texas Tort Claims Act or pursuant to common-law official immunity. Accordingly, we affirm the trial court’s denial of appellants’ motions for summary judgment.

      . Because the Texas Supreme Court did not further define an "occurrence” in Bossley, other Texas courts have applied the res judi-cata factors to determine whether two causes of action involve the "same subject matter." See McGowen, 120 S.W.3d at 459; see also Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781 (Tex.App.-Waco 2005, pet. filed). We decline to utilize this analysis and, instead, apply this Court’s conclusions in White v. Annis. See White, 864 S.W.2d at 131.


source: Caselaw Access Project

author: Justice WHITTINGTON.

license: Public Domain

text:
    Jane MANGRUM, As Independent Executrix of the Estate of G. David Conrad, Deceased, Appellant v. Janet CONRAD, Appellee.
    No. 05-05-00330-CV.
    Court of Appeals of Texas, Dallas.
    March 9, 2006.

      David M. Stagner, Stagner & Corley, Sherman,TX, for Appellant.
    Peter K. Munson, Munson Munson Pierce & Cardwell, P.C., Sherman, TX, for Appellee.
    Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
   OPINION

Opinion by

Justice WHITTINGTON.

Jane Mangrum as Independent Executrix of the Estate of G. David Conrad, Deceased, appeals the trial court’s summary judgment in favor of Janet Conrad. In three issues, Mangrum alleges the trial court erred because there were no pleadings filed by Conrad for affirmative relief; Conrad is estopped from claiming under the will after she accepted benefits reserved for a surviving spouse; and there were genuine issues of material fact precluding summary judgment. We affirm the judgment of the trial court.

STANDARD OF REVIEW

The parties filed cross-motions for summary judgment. When both parties move for summary judgment, each party bears the burden of establishing that she is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When the trial court grants one party’s motion for summary judgment and denies the other party’s motion, we review both sides’ summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

BACKGROUND

Dr. G. David Conrad died on April 6, 2001. He was survived by his second wife of approximately fifteen years, appellee Janet Conrad (referred to in this opinion as “Conrad”), and two adult children from a prior marriage, appellant Jane Mangrum and John J. Conrad. Dr. Conrad left a will dated April 23, 1998, appointing his daughter as his independent executrix and making the following provision for his wife Janet:

The provision in this paragraph giving my wife, should she survive me, one-half ( ½) of the net proceeds of the liquidation of my assets covered by this paragraph are expressly conditioned upon and subject to my aforesaid wife expressly waiving any rights as a surviving spouse to occupy the home in which we are residing following my death and expressly waiving any other allowances to her as may be provided by law as a surviving spouse. Should my wife, refuse to waive rights of homestead and/or any other statutory allowances or provisions afforded her as a surviving spouse, then all provisions of this Will in favor of my surviving spouse become null and void and all of my property of every kind and nature shall vest entirely in my son and daughter....

The parties do not dispute the will required Conrad to choose between her rights as surviving spouse and the one-half interest conferred by the will. The parties also agree that for more than two years after Dr. Conrad’s death, Conrad continued to live in the home she shared with Dr. Conrad during their marriage. The parties disagree whether Conrad made a timely election to take under the will. Both parties presented summary judgment evidence on the issue. Because Conrad established her right to judgment as a matter of law, we affirm the trial court’s judgment.

Discussion

In her first issue, Mangrum contends there are no pleadings to support the judgment in Conrad’s favor. She argues Conrad did not file any pleadings requesting affirmative relief prior to the summary judgment hearing. All pleadings have been filed under the cause number of G. David Conrad’s estate. At the time Conrad filed her summary judgment motion, numerous pleadings had already been filed. Mangrum initiated the case on April 18, 2001, by filing an application to admit G. David Conrad’s will to probate. On December 28, 2001, Conrad filed an application to have Mangrum removed as independent executrix. On July 9, 2003, Mangrum filed her Original Petition for Declaratory Judgment. On July 28, 2003, Conrad filed a verified “Election Under the Last Will and Testament of David G. Conrad.”

The trial judge then entered a scheduling order on September 3, 2004. Under the order, dispositive motions were to be filed by October 1, 2004; responses were to be filed by October 15, 2004; and a hearing on all dispositive motions was set for October 22, 2004. Both parties filed motions for summary judgment and responses pursuant to the order, and appeared through their counsel at the scheduled hearing.

On the day of the hearing, both parties filed additional documents. Conrad filed an amended application to remove the independent executrix. Mangrum filed a motion for judgment nihil dicit and a motion to strike Conrad’s motion for summary judgment. At the hearing, the trial judge took these motions under advisement, and Conrad’s attorney requested leave to file an answer and to respond in writing to Mangrum’s motions. The trial judge gave each party permission to file “anything else in addition that you want to provide” by October 29, 2004. By the October 29 deadline, Conrad filed a response to Mangrum’s two motions and an original answer to Mangrum’s original petition for declaratory judgment. In the January 28, 2005 judgment, the trial judge denied Mangrum’s motion to strike, motion for judgment nihil dicit, and motion for summary judgment, and granted Conrad’s motion for summary judgment.

We hold Conrad’s pleadings were sufficient to support her motion for summary judgment, for several reasons. First, Mangrum’s objections to Conrad’s pleadings were not raised until the hearing. The trial judge gave Conrad permission to make additional filings, which was within his discretion to do. See Tex.R. Crv. P. 66 (“if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits”); Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex.1998) (summary judgment proceeding is a trial within meaning of rules of civil procedure governing amendment of pleadings). Conrad filed an answer as well as responses to Mangrum’s motions, thus curing any alleged defect in her pleadings. See also Tex.R. Civ. P. 166a(c) (summary judgment shall be rendered if pleadings on file at time of hearing “or filed thereafter and before judgment with permission of the court” show no genuine issue of material fact).

Second, by filing her election in response to Mangrum’s petition for declaratory judgment, and by filing her motion for summary judgment alleging she had elected to take under the will, Conrad had already placed the merits of the case at issue. See Frymire Eng’g Co. v. Grantham, 524 S.W.2d 680, 681 (Tex.1975) (true nihil dicit judgment is limited to situations where defendant has entered a plea but has not placed merits of plaintiffs case in issue, or answer has been withdrawn). Mangrum’s petition for declaratory judgment requested a declaration that the will required an election and Conrad’s refusal to waive her statutory rights for the use of the family homestead constituted an election not to take under the will. Conrad’s election explicitly waived her rights as a surviving spouse and stated she elected “to take one-half (⅜) of the residue of the Estate in accordance with the terms of the Will.” Conrad’s filing directly addressed the issue raised in Mangrum’s petition for declaratory judgment. See Terehkov v. Cruz, 648 S.W.2d 441, 442-43 (Tex.App.-San Antonio 1983, no writ) (pleading sufficient if gives fair and adequate notice to pleader’s adversary; letter from defendant sufficient to place in issue merits of plaintiffs cause of action so as to prevent entry of default judgment); Hughes v. Habitat Apartments, 860 S.W.2d 872, 872-73 (Tex.1993) (pauper’s affidavit sufficed as pro se answer entitling defendant to notice of hearing on motion for default judgment).

Third, Mangrum’s petition, filed after Conrad’s motion to remove Mangrum as independent executrix, was in the nature of a counterclaim, for which a general denial is deemed to have been pleaded by a party who has made an appearance in the action. See Tex.R. Civ. P. 92 (“when a counterclaim or cross-claim is served upon a party who has made an appearance in the action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim”).

Finally, we reject Mangrum’s argument that some additional plea for affirmative relief was required to support Conrad’s motion for summary judgment. Rule 166a(b) of the Texas Rules of Civil Procedure provides “a party against whom ... a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Tex.R. Civ. P. 166a(b). Conrad sought summary judgment that she “has expressly and impliedly exercised her election to take under the Will,” the same issue raised in Mangrum’s petition for declaratory judgment. We overrule Mangrum’s first issue.

In her second and third issues, Mangrum alleges the trial judge erred in denying her motion for summary judgment and granting Conrad’s. In both issues she contends Conrad’s actions in accepting benefits reserved for surviving spouses precluded Conrad from making an election to take under the will, either by estoppel or by creating a fact issue regarding election. We consider these issues together. Ordinarily the question whether an election has been made is one of fact for the jury, but may be resolved as a matter of law where reasonable minds could not differ. See White v. Hebberd, 89 S.W.2d 482, 486 (Tex.Civ.App.-El Paso 1936, no writ). The party asserting estoppel has the burden of proving the essential elements of estoppel, and the failure to prove any element is fatal. Adams v. First Nat. Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex.App.-Dallas 2005, no pet.).

Mangrum contends Conrad stayed on the property for over two years, changed the utilities into her own name, planted flowers, threatened an injunction regarding sale of the horses, and refused to sign a written election form when Mangrum’s attorney requested she do so. Mangrum concludes Conrad’s conduct es-tops her from making an election under the will, or creates a fact issue regarding whether Conrad made an election to take under the will. In essence, Mangrum claims it can be implied from Conrad’s conduct that Conrad refused to waive her rights as surviving spouse.

We reject Mangrum’s arguments because they are inconsistent with the unambiguous requirements of Dr. Conrad’s will. The gift to Conrad was conditioned on Conrad “expressly waiving any rights of a surviving spouse to occupy the home in which we are residing following my death and expressly waiving any allowances to her as may be provided by law as a surviving spouse.” (Emphasis added.) Only if Conrad refused to waive these rights would the gift to her under the will become null and void. Mangrum’s motion, premised on what might be implied from Conrad’s actions, was properly denied where the will required an express waiver.

Conrad offered evidence of her own express conduct. She testified she told Bob Minshew, Mangrum’s attorney, that she was electing to take under the will:

Q: [D]o you know if you told Mr. Min-shew you were taking under the will?
A: Yes, that’s what I’m testifying to is that I told him.

Subsequently attorney Susan G. Sprouse represented Mangrum and wrote a letter to Conrad’s attorney stating, “We understand that your client, Janet Conrad, has decided to take under Mr. Conrad’s will, rather than exercise her homestead rights. We propose that, once the inventory has been filed, we all meet to discuss the payment of certain bills and the disposition of certain estate assets.” The summary judgment evidence offered by Conrad shows she made an express election to take under the will, communicated the election to Mangrum’s attorneys, and the attorneys understood it as such, even before she made a formal written election and filed it with the court in July, 2003. Mangrum does not offer evidence to controvert these facts.

Mangrum did offer evidence regarding a settlement conference she and Conrad attended in 2002. She alleges her attorneys gave Conrad a form to sign at the conference to make the election to take under the will, and Conrad refused to sign it. The evidence showed Mangrum’s attorneys actually presented Conrad with two forms, one to make an election to take under the will, and the other to waive all rights under the will. Conrad signed neither. In fact, none of the settlement documents were signed because no settlement was reached. Mangrum argues we can imply a refusal to waive her rights as a surviving spouse from Conrad’s refusal to sign the election. An equally reasonable implication would be that Conrad refused to waive her rights under the will. In any event, neither implication can be the basis for summary judgment where the will unambiguously requires an express waiver.

Neither the will nor any statute required the election to be made at any particular time or by any particular method, although a court may conclude sufficient time has elapsed for making an election. See Harkey v. Lackey, 259 S.W.2d 641, 643 (Tex.Civ.App.-Austin 1953, writ ref'd n.r.e.) (while there is no statutory requirement as to time in which election must be made, under circumstances time for making election had elapsed as estate was ready for closing). Conrad made one election shortly after her husband’s death, and another in writing in response to Mangrum’s request for declaratory judgment. Reviewing the circumstances surrounding the timing, Conrad offered evidence that although she made and conveyed her decision to take under the will shortly after her husband died, she remained on the property to care for the livestock until they were sold, because the estate did not make provision for their care after Dr. Conrad died. She took daily care of the horses until the estate sold them in May or June of 2003, and moved out of state a month later. In this same time period Mangrum filed her request for declaratory judgment and Conrad responded to it with her written election. We conclude Conrad established as a matter of law she timely elected to take under the will. We overrule Mangrum’s second and third issues.

We affirm the trial court’s judgment.


author: Justice MOSELEY.

text:
    Don BLANTON, Appellant and Cross-Appellee v. VESTA LLOYDS INSURANCE COMPANY, Appellee and Cross-Appellant.
    No. 05-04-00156-CV.
    Court of Appeals of Texas, Dallas.
    March 9, 2006.

      Randall Yazbeck, Dallas, for appellant.
    E. Thomas Bishop, Alexander N. Beard, Bishop & Hummert, P.C., Dallas, for ap-pellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MOSELEY.

This is a suit for declaratory judgment concerning insurance coverage. Don Blan-ton appeals the granting of Vesta Lloyds Insurance Company’s second motion for summary judgment, and Vesta appeals the denial of its initial motion for summary judgment. Because Vesta conclusively established that Blanton breached the “timely notice of occurrence” provision of the policy and that Vesta was prejudiced as a result, we resolve Blanton’s four issues against him and affirm the trial court’s final order.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 1997, Blanton leased certain property to Justin Burgess to operate a retail store of “one-of-a-kind restored art-deco furniture and related items.” On August 27, 1998, Vesta wrote a commercial general liability coverage policy for the property; the policy ran for a term of one year.

On August 17, 2000, Burgess sued Blan-ton, alleging that the roof and structure of the property were defective when he leased the property, and Blanton covered up the defects. Burgess alleged that, pri- or to entering into the lease, Blanton represented to him that the roof was in good condition and did not leak and promised to repair any leaks within forty-eight hours. Burgess alleged that, from the beginning of the lease through the filing of the petition, the roof and structure leaked “whenever it rains, snows, or sleets.” Burgess alleged he notified Blanton of the leaks on more that eighty occasions and that Blan-ton attempted to repair the leaks, but the leaks persisted. Burgess alleged the leaks caused significant water damage to his inventory. He also alleged that he moved onto the property, and, as a result of the leaks, mold was growing, aggravating health problems.

Blanton was served with Burgess’s original petition on October 24, 2000. He forwarded the original petition to Vesta on or about December 6, 2000. Vesta’s receipt of the petition was its first notice of Burgess’s complaints or of the lawsuit.

Vesta filed this lawsuit seeking a declaration that it had no obligation to defend or indemnify Blanton in connection with Burgess’s suit, as well as attorney’s fees. Vesta moved for summary judgment on the ground that the fortuity doctrine precluded any insurance coverage. Blanton responded to the motion. The trial court denied this motion for summary judgment.

Vesta then filed a second motion for summary judgment, also supported by evidence. Vesta’s second motion asserted: (1) Blanton breached the timely notice provisions of the policy, specifically, notice as soon as practicable of “an ‘occurrence’ or an offense which may result in a claim” and notice of the claim or suit, which are conditions precedent to coverage; and (2) Vesta was prejudiced by the failure to give timely notice. Vesta also sought summary judgment on its request for attorney’s fees. Blanton responded to the motion, supported by his affidavit. The trial court granted this motion. However, the trial court subsequently granted Blanton’s motion to reconsider the granting of the second motion for summary judgment. After the case was transferred, the trial court reconsidered its order setting aside the summary judgment in Vesta’s favor, granted summary judgment in favor of Vesta, and denied all requests for attorney’s fees. Both parties timely appealed from this final order.

II. TIMELY NOTICE OF OCCURRENCE AND PREJUDICE

In his first and second issues, Blanton contends the trial court erred in granting Vesta’s second motion for summary judgment because Vesta failed to establish as a matter of law that Blanton breached the “timely notice” provisions of the policy, including the “notice of occurrence” and “notice of claim or suit” provisions, and material fact issues remain on the issue of breach. In his third and fourth issues, Blanton contends the trial court erred in granting Vesta’s second motion for summary judgment because Vesta failed to establish prejudice by untimely notice as a matter of law, and he presented evidence raising a fact issue as to prejudice. First, we consider Blanton’s arguments regarding breach of the policy provision requiring notice as soon as practicable of “an ‘occurrence’ or an offense which may result in a claim,” and Vesta’s prejudice from any untimely “notice of occurrence.”

A. Standard of Review

To succeed in a motion for summary judgment under rule of civil procedure 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). Once the movant establishes its right to summary judgment, the burden shifts to the nonmovant to present the trial court with evidence of any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. Urena, 162 S.W.3d at 550; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Because the trial court’s order granting summary judgment does not specify the basis for the ruling, we affirm the trial court’s judgment if any of the theories advanced are meritorious. Urena, 162 S.W.3d at 550.

B. Relevant Provisions of the Insurance Policy

The policy covered bodily injury and property damage only if the bodily injury or property damage was caused by an occurrence that took place in the coverage territory (including the premises leased to Burgess) during the policy period. The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Section IV of the policy addressed CGL conditions; paragraph 2 dealt with the insured’s duty of notice:

2. Duties in The Event Of Occurrence, Claim Or Suit.
a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the “occurrence” took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the occurrence” or offense.

The “Texas Changes—Conditions Requiring Notice” endorsement modified the insurance provided under the commercial general liability coverage part and provided:

With regard to Bodily Injury and Property Damage Liability, unless we are prejudiced by the Insured’s or your failure to comply with the requirement, any provision of this Coverage Part requiring you or any insured to give notice of occurrence, claim, or suit, ... will not bar liability under this Coverage Part.

C. Applicable Law

Compliance with the provision that notice of an occurrence or accident be given “as soon as practicable” is a condition precedent, the breach of which voids policy coverage. Broussard v. Lumbermens Mut. Cas. Co., 582 S.W.2d 261, 262 (Tex.Civ.App.1979, no writ); see Milton v. Preferred Risk Ins. Co., 511 S.W.2d 83, 85 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref'd n.r.e.) (“All of the conditions precedent of an insurance policy must be strictly complied with before the insurer will be hable.”). “As soon as practicable” means as soon as notice would have been given by an ordinary prudent person in the exercise of ordinary care in the same or similar circumstances. Atteberry v. Allstate Ins. Co., 461 S.W.2d 219, 221 (Tex.Civ.App.-El Paso 1970, writ ref'd n.r.e.) (citing Allstate Ins. Co. v. Darter, 361 S.W.2d 254, 255 (Tex.Civ.App.-Fort Worth 1962, no writ)). What constitutes a reasonable time within which notice must be given depends on the individual facts and circumstances of each particular case, including but not limited to age, experience, and capacity for understanding and knowledge that coverage exists in one’s favor. Cent. Sur. & Ins. Corp. v. Anderson, 446 S.W.2d 897, 901 (Tex.Civ.App.-Fort Worth 1969, no writ); Nat’l Sur. Corp. v. Diggs, 272 S.W.2d 604, 607 (Tex.Civ.App.-Fort Worth 1954, writ ref'd n.r.e.).

The insured’s failure to notify the insurer does not absolve the insurer from the underlying judgment unless the lack of notice prejudices the insurer. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 174 (Tex.1995); Liberty Mut. Ins. Co. v. Cruz, 883 S.W.2d 164, 165 & n. 3 (Tex.1993). The purpose of the timely notice requirement is to enable an insurer to investigate the circumstances of an accident while the matter is fresh in the minds of the witness so that it may adequately prepare to adjust or defend any claims that may be asserted against persons covered by its policy. Employers Cas. Co. v. Glens Falls Ins. Co., 484 S.W.2d 570, 575 (Tex.1972). When an insurer must prove it was prejudiced by the insured’s failure to comply with the notice provisions, “the recognized purposes of the notice requirements form the boundaries of the insurer’s argument that it was prejudiced; a showing of prejudice generally requires a showing that one of the recognized purposes has been impaired.” 13 Couch on Insurance § 186:14 (3d ed. 2005).

However, an insured’s failure to give notice of an accident or occurrence is excused, that is, there is no duty to report it, when the insured has complied with his full duty to acquaint himself with all the facts surrounding an accident, and it appears from such investigation that the occurrence was of such a nature that it could not reasonably be expected to result in any claim or liability. Tex. Glass & Paint Co. v. Fid. & Deposit Co., 244 S.W. 113, 115 (Tex. Comm’n App.1922, judgm’t adopted); Edwards v. Ranger Ins. Co., 456 S.W.2d 419, 421 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.); Norman v. St. Paul Fire & Marine Ins. Co., 431 S.W.2d 391, 396 (Tex.Civ.App.-Beaumont 1968, writ dism’d); Diggs, 272 S.W.2d at 609; see Darter, 361 S.W.2d at 255 (failure to give notice within reasonable time, without excuse, is complete defense).

D. Discussion

In support of its second motion for summary judgment, Vesta presented Blan-ton’s deposition, in which he testified that Burgess first complained about the roof around the first part of 1998, six or eight months after he moved in, and complained “pretty consistently during the entire course of his tenancy about roof leaks”; and Blanton received about thirty complaints about roof leaks on the covered premises from Burgess, which was “way in excess of anything [he] receive[d] with regard to any of [his] other properties.” Blanton also testified Burgess complained about “multiple leaks,” not one leak, and that Blanton was unable to repair a leak in the skylight caused by hail.

Vesta also presented the affidavit of George E. Cash, its litigation specialist, who stated that Vesta was not notified of any of Burgess’s complaints until December 6, 2000, when Blanton forwarded Burgess’s original petition to his insurance agent. Cash also stated that Vesta was prejudiced by Blanton’s failure to give timely notice of Burgess’s complaints and the occurrences giving rise to Burgess’s claims because its standard procedure was to record and promptly investigate complaints and occurrences potentially giving rise to claims, and if Blanton had promptly notified it of Burgess’s complaints when they were initially made, “[Vesta] would have followed this procedure and investigated the matter.” Specifically, Cash stated:

[Vesta] would have examined the items for which damages was claimed, examined the cause of any allege damaged, including an examination of the premises during the time of the alleged leaks, determined the exact date of any damage so as to confirm that same happened during the [Vesta] policy, attempted to adjust the claim with Burgess, and protected any subrogation rights to any property of Burgess for which it was determined a covered loss payment should be made. Blanton’s delay of over 2½ years in notifying [Vesta] of Bur-gesses] complaints prevented [Vesta] from protecting itself from potential further loss or claims against its coverage, including urging the insured to correct premises defects that increased the risk of losses or claims. The delay of Blan-ton in reporting these claims has hindered, and in fact in part made impossible, adequate investigation of the claims made by Burgess. Burgess has testified that certain damaged items were disposed of at a loss.... Further claims concerning Burgess[’s] health have been made that could have been addressed before resulting in litigation.In addition, [Vesta] has been required to spend thousands of dollars defending litigation which could have been prevented with timely notice. [Vesta] has been prejudiced by all of the above.

We conclude Yesta presented evidence that Blanton failed, without excuse, to notify Vesta of Burgess’s complaints about roof leaks until over two and one-half years after he first made them and that Vesta was prejudiced by this untimely notice, thus establishing as a matter of law that Blanton failed to timely notify it of “an ‘occurrence’ or an offense which may result in a claim” and prejudice. See Employers Cas. Co., 484 S.W.2d at 575 (noting prejudice from inability to investigate claims); Diggs, 272 S.W.2d at 607 (holding 104 days between accident and notice not reasonable). Thus, the burden shifted to Blanton to present evidence raising a fact issue on timely notice and lack of prejudice, thus avoiding summary judgment.

In doing so, we reject Blanton’s argument that whether Burgess’s complaints about roof leaks constituted “an ‘occurrence’ ... which may result in a claim” is determined from his subjective perspective as the insured, pursuant to King v. Dallas Fire Insurance Co., 85 S.W.3d 185 (Tex.2002). In King, the insured was sued for negligent hiring, training, and supervision, and the court considered whether the insured’s negligent hiring, training, and supervision constituted an occurrence under the terms of the policy, although the injury was directly caused by the employee’s intentional conduct. Id. at 187. Blanton relies on the following statement by the court:

The policy’s express language, our case law, and the history behind the Commercial General Liability Policy all support the conclusion that the insured’s standpoint controls in determining whether there has been an “occurrence” that triggers the duty to defend.

Id. at 188.

Relying on his affidavit supporting his response to Vesta’s second motion for summary judgment, Blanton argues in the trial court and on appeal that this evidence showed that Burgess’s complaints about roof leaks were not “an ‘occurrence’ ... which may result in a claim” triggering a duty to notify Vesta because Blanton did not view Burgess’s complaints as an “occurrence.” In his affidavit, Blanton stated:

I have owned and leased to others real property in ... Dallas for more than 20 years. During that period of time, it has not been unusual, and, it is in fact common, for the buildings I own and lease, which are typically older buildings, to experience roof leaks, and for me to receive notices and complaints from my tenants about roof leaks.
For me to report every notice or a roof leak I receive to my insurance company would be unreasonable and unnecessary. The fact that a tenant complains of a roof leak is not such a complaint that I or any reasonable person would anticipate would result in a lawsuit for damages, particularly personal injury damages. In fact of the hundreds of times I have received word that there is a leak in one of my roofs, only Justin Burgess has filed a lawsuit for damages against me — and that was done after he stopped paying rent and I filed suit to evict him from the building.

Here, the duty at issue is not the insurer’s duty to defend, as it was in King, but the insured’s duty to notify, a condition precedent to coverage under the policy. See Broussard, 582 S.W.2d at 262; Milton, 511 S.W.2d at 85. Rather than a subjective perspective, the duty to notify is determined by objective standards:

[W]hen the insured has complied with its full duty to acquaint itself with all the facts surrounding an accident, and it appears from such investigation that the occurrence was of such a nature as that it could not reasonably be expected to result in any claim of liability, there is no duty to report it.
On the other hand, it is equally clear that determination of the question whether an occurrence comes within the terms of the policy as being an accident required to be reported should not be left solely to the judgment or discretion of the assured. Consequently ... the insured is not relieved from its duty to report [an] accident merely because its attorney made a full investigation and reached the conclusion that it was too trivial to report. In such case the assured acts at its peril.

Houck v. State Farm Mut. Auto. Ins. Co., 394 S.W.2d 222, 226 (Tex.Civ.App.-Beaumont 1965, writ ref'd n.r.e.) (citations omitted); see 13 Couch on InsuRance § 191:9 (3d ed. 2005) (“[A]ll the relevant facts known to the insured on the date in question must be evaluated under a standard of objective reasonableness that asks when circumstances known to the insured would have suggested to reasonable person the possibility of claim.”) (citations omitted).

Even construing the language whether notice was given “as soon as practicable” in favor of the insured, this language is “equivalent to ‘within a reasonable time’ ” and “invoke[s] the standard of reasonable prudence.” State Farm County Mut. Ins. Co. of Tex. v. Plunk, 491 S.W.2d 728, 731 (Tex.Civ.App.-Dallas 1973, no writ). In Carroll v. Employers Casualty Co., 475 S.W.2d 390, 393 (Tex.Civ.App.-Beaumont 1971, writ ref'd n.r.e.), the Beaumont court of appeals rejected the insured’s excuse that “in good faith he determined, [i]n his own mind, from what he term[ed] was an adequate investigation, that there was no likelihood of a claim being made against him because of [the complainant’s] injuries.” Accordingly, Blanton’s reliance on King to argue that his duty to notify of “an ‘occurrence’ ... which may result in a claim” is determined from his subjective perspective is misplaced.

Moreover, lack of knowledge that a claim could be made is, as a matter of law, not an excuse for failing to comply with the notice provisions of an insurance policy. See Norman, 431 S.W.2d at 396; Standard Accident Ins. Co. v. Employers Cas. Co., 419 S.W.2d 429, 432 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.); Kellum v. Pac. Nat’l Fire Ins. Co., 360 S.W.2d 538, 542 (Tex.Civ.App.-Dallas 1962, writ ref'd n.r.e.). Blanton’s evidence does not establish excuse, that is, it does not show that he made a full, complete, and fair investigation of all the facts and surrounding circumstances of Burgess’s “excessive” complaints and then, on the basis of that investigation, reasonably concluded that the occurrence was of such a nature as that it could not reasonably be expected to result in any claim or liability. See Tex. Glass & Paint Co., 244 S.W. at 115; Edwards, 456 S.W.2d at 421; Norman, 431 S.W.2d at 396; Diggs, 272 S.W.2d at 609. Because Blanton failed to present evidence raising a fact issue as to his breach of the “timely notice of an occurrence” provision, we resolve his first and second issues against him as to this provision.

As to prejudice, Blanton argues Vesta was not prejudiced because, according to Blanton’s affidavit, Vesta was not prevented from conducting discovery in defending Blanton in Burgess’s suit, and no judgment was taken before Vesta assumed defense of Blanton. However, prejudice from failure to notify timely arises from inability to investigate the circumstances of an occurrence to prepare adequately to adjust or defend any claims, not merely to prepare for trial. See Employers Cas. Co., 484 S.W.2d at 575.

Blanton also argues that Cash’s affidavit concerning prejudice resulting from lack of notice is self-serving, conclusory, and speculative. We reject this argument because Cash stated underlying facts supporting his conclusion as to prejudice. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) (holding affidavits stating legal conclusions, not facts, incompetent summary judgment proof).

Because Blanton’s evidence fails to address the inability to conduct a timely investigation, we conclude he has failed to raise a fact issue as to prejudice from untimely “notice of occurrence.” We resolve his third and fourth issues against him to this extent.

III. CONCLUSION

Having resolved Blanton’s four issues against him on the issues of breach of the “notice of occurrence” provision and prejudice from the untimely “notice of occurrence,” we conclude the trial court properly granted Vesta’s second motion for summary judgment in its favor on this ground. Accordingly, we need not consider Blanton’s arguments as to breach of the “notice of claim or suit” provision and prejudice from untimely “notice of claim or suit.” See Urena, 162 S.W.3d at 550. In addition, we need not address Vesta’s cross-appeal. See Tex.R.App. P. 47.1. Accordingly, we affirm the trial court’s final order.

      . Vesta also sued and obtained summary judgment against TXON, Inc., which does not appeal.

      . This order is not in the record on appeal.

      . Blanton made this argument in his motion to reconsider the trial court’s initial granting of Vesta’s second motion for summary judgment. Blanton argued that the supreme court’s opinion in King, which was decided after the court rendered summary judgment in Vesta’s favor, "dictatefdj a different result” on the notice of occurrence issue.


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    In re Diana Faye LEWIS, Individually and as Independent Executrix of the Estate of Doris A. Lewis, Deceased, and as Trustee of the Doris A. Lewis Living Trust.
    No. 10-05-00402-CV.
    Court of Appeals of Texas, Waco.
    March 15, 2006.

      Tammy C. Manning, Galligan & Manning, Houston, for Appellant/Relator.
    Kenneth C. Kaye, Attorney At Law,League City, Charles J. Sebesta, Attorney At Law, Caldwell, Walter Joames Kronzer III, Attorney At Law, Houston, for Appellee/Respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

This original proceeding arises from a probate proceeding in Burleson County, a county with no statutory probate court or county court at law. Jeffrey Lewis (Jeffrey), the real-party-in-interest and plaintiff below, filed suit in the constitutional county court, sitting in probate, against Relator Diana Faye Lewis (Diana), individually and as executrix of the estate of Doris A. Lewis, deceased. The probate court transferred the lawsuit to district court in Burleson County. Diana seeks a writ of mandamus directing Respondent, the Honorable Mike Sutherland, presiding judge of the constitutional county court of Burleson County, to vacate or rescind his order transferring the lawsuit to district court and to request an assignment of a statutory probate court judge to hear the lawsuit.

We will grant mandamus relief if there has been a clear abuse of discretion and the relator has no adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). A trial court abuses its discretion if “ ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law' ” or if it clearly fails to correctly analyze or apply the law. Id. at 839, 840 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)).

The chronology of relevant events is as follows:

• October 24, 2005: Jeffrey’s original petition is filed in the probate court.
• November 2, 2005: The county clerk receives, but does not “file,” Diana’s “Motion for Appointment of Statutory Probate Court Judge Pursuant to Section 5(b) of the Texas Probate Code.” The clerk did not file Diana’s motion because it was not accompanied by an alleged $40.00 filing fee.
• November 3, 2005: The county clerk receives and files Jeffrey’s “Motion to Transfer Case to District Court.” The probate court signs an order granting Jeffrey’s “Motion to Transfer Case to District Court.”
• November 4, 2005: The county clerk receives the $40.00 filing fee from Diana.

Because of the clear language in section 5(b — 1) of the Probate Code, the issue before us is whether Diana’s motion was “filed” on November 2. Section 5(b-l) provides in part:

If the judge of the county court has not transferred a contested probate matter to the district court under this section by the time a party files a motion for assignment of a statutory probate court judge, the county judge shall grant the motion and may not transfer the matter to the district court unless the party withdraws the motion.

Tex. PROb.Code Ann. § 5(b — 1) (Vernon Supp.2005) (emphasis added). If Diana’s motion was filed on November 2, the probate court could only grant her motion; it could not transfer the lawsuit to district court.

Texas courts have repeatedly held that if a motion for new trial is tendered to the clerk without the filing fee, the motion is “conditionally filed,” and when the fifing fee is paid, the motion is deemed filed on the day that it was tendered to the clerk for appellate timetable purposes. Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83, 84 (Tex.1996); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993); Polley v. Odom, 937 S.W.2d 623, 624-26 (Tex.App.-Waco 1997, no writ); see also Garza v. Garcia, 137 S.W.3d 36, 37-39 (Tex.2004) (extending rule to cases where fifing fee is never paid). No reason exists why the “conditional fifing” rule should not apply to Diana’s motion. We hold that Diana’s motion was conditionally filed on November 2, and when the clerk received the fifing fee on November 4, Diana’s motion was deemed filed on November 2.

As Jeffrey notes, a court should not, absent emergency or other rare circumstances, consider a motion until its filing fee has been paid. See Garza, 137 S.W.3d at 38; Jamar, 868 S.W.2d at 319 n. 3. Thus, while the probate court should not have considered Diana’s motion until the filing fee was paid, that does not mean that it could ignore its conditional filing. The purpose of the conditional filing rule is to establish the date on which a document is filed in order to promote certainty for litigants. See Garza, 137 S.W.3d at 38. If a court could ignore the date on which a conditionally filed document is filed, the rule would be empty. In sum, while a court should not consider the substance of a conditionally filed motion until the filing fee is paid, it cannot ignore the date of its conditional filing.

In this case, Diana’s motion for assignment of a statutory probate court judge was conditionally filed on November 2, but the probate court could not have granted her motion until Diana paid the filing fee on November 4. Under the express language of section 5(b-l), the probate court could not have granted Jeffrey’s motion on November 3, to transfer the lawsuit to district court because Diana’s motion was already conditionally filed. See Tex. PROb.Code Ann. § 5(b-l). With respect to contested probate matters, section 5(b — 1) appears to contemplate a probate court facing competing motions to transfer to district court and for assignment of a statutory probate court judge. See id. (“the county judge ... shall grant the motion [for assignment of a statutory probate court judge] and may not transfer the matter to the district court unless the party withdraws the motion ”) (emphasis added). In such a situation, section 5(b — 1) mandates the result: the probate court shall grant the motion for assignment of a statutory probate court judge and may not transfer the contested matter to district court. See id. (emphasis added). Thus, in this case, the probate court abused its discretion by failing to correctly apply the law. See In re Vorwerk, 6 S.W.3d 781, 783-84 (Tex.App.Austin 1999, orig. proceeding) (granting mandamus relief for failure of county court to assign statutory probate court judge to hear contested probate matter).

Diana must also establish that she lacks an adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig.proceeding). With the principles set out in Prudential governing our jurisprudential considerations, we find that Diana lacks an adequate remedy by appeal of the trial court’s transfer of the lawsuit to district court. See id. at 135-39 (no adequate remedy by appeal where trial court refused to enforce contractual jury waiver); In re AIU Ins. Co., 148 S.W.3d 109, 115-20 (Tex.2004) (orig.proceeding) (no adequate remedy by appeal where trial court refused to enforce contractual forum selection clause); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992) (orig.proceeding) (no adequate remedy by appeal where trial court refused to enforce arbitration agreement to which Federal Arbitration Act applied); Vorwerk, 6 S.W.3d at 785 (no adequate remedy by appeal where probate court failed to grant motion for appointment of statutory probate court judge and instead transferred matter to district court). The probate court’s transfer of the lawsuit to district court deprived Diana of her statutory right to the assignment of a statutory probate court judge.

Because Respondent abused his discretion and Diana has no adequate remedy at law, we grant the petition for writ of mandamus and order Respondent to vacate his order transferring the lawsuit to district court and to request an assignment of a statutory probate court judge. We are confident that Respondent will comply with our ruling, so the writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the order transferring the lawsuit to district court and has requested an assignment of a statutory probate court judge.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

It has always been the accepted general rule that the trial court clerk does not proceed to file a pleading until the filing fee is paid. The Supreme Court did create an exception when the time of filing was critical to preserving a party’s ability to pursue an appeal. This line of eases is easily distinguished in that the exception created relates to the preservation of the right of appeal. The motion in our case does not impact the perfection of the right to an appeal for having the merits of the case reviewed, so the exception to the general rule created by the line of cases cited by the relator and the majority should not be applied to this case. As stated by the Texas Supreme Court in the last pronouncement of the policy for this line of cases, “We construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality.” Garza, 137 S.W.3d at 38. But the issue before us is entirely a rule of procedure, and the rules should be enforced — otherwise, chaos reigns.

There is one case in this line of cases with a secondary holding that is, however, applicable to our case. In Garza, the Texas Supreme Court notes that there are two effects of filing the motion. First, it sets the appellate time table. The holding on this issue is that the filing of the motion for new trial, even without the payment of the filing fee, extended the time within which a notice of appeal could be filed. The second holding was that the failure to timely pay the filing fee before the court lost its plenary power meant that the motion for new trial did not preserve the appellant’s factual insufficiency complaint for review, because that issue was never properly made to the trial court. Garza, 137 S.W.3d at 38.

In our case, the real-party-in-interest filed its motion to transfer the case to a district court prior to the time the fee was paid on the relator’s motion to transfer the case to a probate court. Thus, by the time the fee was paid for relator’s motion, the trial court had lost the authority to do anything other than to grant the real-party-in-interest’s motion. In effect, applying the second holding in Garza, the relator failed to preserve his right to have the case transferred to a probate court because, by the time the relator paid the filing fee, the real-party-in-interest had already filed a motion to transfer the case to a district court which the trial court had no option but to grant. Thus, by the time the relator paid the fee, the tidal court had no authority to transfer the case to a probate court.

Relator did not pay the filing fee when the motion to transfer was first presented for filing. The natural result of this failure under the general rule is that the clerk did not file the motion. Before relator paid the filing fee and tendered the motion to transfer the case to a probate judge, a motion to transfer the case to a district judge was filed. See Tex. Pkob.Code Ann. § 5(b)(1) & (2) (Vernon Supp.2005). The appropriate fee was paid when the motion to transfer the case to a district judge was tendered for filing. The county judge did what any reasonable, analytical, rules-oriented person would have done — he granted the first properly filed motion to transfer the case. Indeed, it could be viewed as what we are determining is whether the district clerk should be compelled to give relator’s motion a filing date prior to the date that it was actually filed.

At this Court, our clerk files everything tendered for filing and tries to collect the fees later if they are not paid at the time of filing. This is a matter of convenience because we do not have a way to keep track of pleadings that remain unfiled because the filing fee has not been paid. Our system has created its own set of problems. Just a few of those problems are (1) the clerk must act as a collection agent for our Court, (2) there is different treatment by justices if the fee remains unpaid, and (3) the need to write off uncollected filing fees.

I would not impose the system that we have chosen to use on all the trial court clerks. And I would not expand the exception to the rule which is applicable to documents which impact the timing of perfecting an appeal. By this holding, the exception, at least as to the date of filing, has now swallowed the rule.

Conclusion

I do not find that the trial court abused its discretion. I would deny the petition for writ of mandamus.

      . In Jamar, the supreme court stated that in "a long line of cases, this court has held that a document is ‘filed’ when it is tendered to the clerk, or otherwise put under the custody or control of the clerk.” Jamar, 868 S.W.2d at 319 (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex.1990); Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143 (Tex.1990); Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 681 (Tex.1979)).

      . Diana correctly asserts that the clerk’s filing fee schedule does not specifically provide for a filing fee for a motion such as Diana’s, but because of our holding, we need not further address that assertion.

      . Garza v. Garcia, 137 S.W.3d 36 (Tex.2004); Tate v. E.I. DuPont de Nemours & Co., Inc., 934 S.W.2d 83 (Tex.1996); Jamar v. Patterson, 868 S.W.2d 318 (Tex.1993); Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corporation, 787 S.W.2d 371 (Tex.1990); Standard Fire Insurance Co. v. LaCoke, 585 S.W.2d 678 (Tex.1979); Polley v. Odom, 937 S.W.2d 623 (Tex.App.-Waco 1997, no writ).

      . I address only the issue the parties have presented and not the propriety of transferring the entire case, the entire probate proceeding, to the probate judge, rather than the contested portion of the probate case. See Tex. Prob.Code Ann. § 5(b)(1) & (2) (Vernon Supp.2005).

      . The real-party-in-interest points out that because the fee had not been paid, the county judge could not have properly considered or granted relator’s motion to transfer at the time the motion to transfer filed by the real-party-in-interest was filed.