source: Caselaw Access Project

author: DAVIE L. WILSON, Justice.

license: Public Domain

text:
    Ex parte Dwain PADRON.
    No. 01-99-00263-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 2000.
    Rehearing Overruled May 2, 2000.

      Adam L. Moskowitz, Houston, for appellant.
    Calvin Hartmann, John B. Holmes, Houston, for State.
    Panel consists of Justices MIRABAL, WILSON, and NUCHIA.
   OPINION

DAVIE L. WILSON, Justice.

Appellant Dwain Padrón filed a pretrial application for a writ of habeas corpus based on a claim of double jeopardy. The trial court denied the requested relief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 28, 1996, James Berner and his wife, Susie Berner, were closing their fireworks stand when appellant approached them and held a gun to Mrs. Berner’s head. Appellant forced Mr. Ber-ner to tape Mrs. Berner’s hands behind her back. Appellant then struck Mr. Ber-ner in his knee with a hammer. Appellant demanded money and took the money from the money box. At this time, appellant began to hit Mrs. Berner with the hammer. Mr. Berner moved toward appellant, and appellant hit him again with the hammer and poked him in the eye with the barrel of the pistol. Mr. Berner and Mrs. Berner suffered severe injuries from the attack. Mr. and Mrs. Berner positively identified appellant as the attacker in. a photograph line-up and at trial. In addition to the money, appellant took some fireworks and Mrs. Berner’s purse, which contained her checkbook, driver’s license, social security card, a few personal belongings, a little money, and a watch.

The State prosecuted appellant for the aggravated robbery of Mr. Berner. As read to the jury, the indictment alleged:

[I]n Harris County Texas, Dwain Pa-drón, hereafter styled the defendant, on or about December, 1996, did ... unlawfully while in the course of committing theft of property owned by James Ber-ner, hereafter styled the complainant, with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the complainant in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to-wit, a firearm.
... [I]n Harris County, Texas, Dwain Padrón, hereafter styled the defendant, heretofore on or about December 28, 1996, did then and there unlawfuly [sic], while in the course of committing theft of property owned by James Berner, hereafter styled the complainant, with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to James Berner by striking James Berner with a deadly weapon, namely, a hammer.

Following a four-day trial in September, 1997, a jury found appellant guilty. The jury assessed punishment at 25 years imprisonment. Padron v. State, 988 S.W.2d 344, 344 (Tex.App. — Houston [1st Dist.] 1999, no pet.). We affirmed. Id..

A subsequent indictment charged appellant with the aggravated robbery of Mrs. Susie Berner, based on the same incident. The indictment states in relevant part:

[T]hat in Harris County, Texas, DWAIN PADRON, ..., on or about DECEMBER 28, 1996, [did] ... while in the course of committing theft of property owned by Susie Berner, ... intentionally and knowingly threaten and place the complainant in fear of imminent bodily injury and death, and the Defendant did then and “there use and exhibit a deadly weapon, to-wit: a firearm.
... DWAIN PADRON, ... on or about DECEMBER 28, 1996, [did] ... while in the course of committing theft of property owned by Susie Berner, ... intentionally and knowingly cause bodily injury to Susie Berner, by striking Susie Berner with a deadly weapon, namely, a hammer.

Appellant filed an application for writ of habeas corpus on the ground that the second prosecution violated his right against double jeopardy- The court denied habeas corpus relief, and appellant now appeals to this Court.

DISCUSSION

Appellant raises two points of error. In point of error one, he contends the double jeopardy clauses of the federal and state constitutions bar the State from successively prosecuting him for aggravated robberies of both Mr. Berner and Mrs. Berner because his actions constituted a single offense. In point of error two4, he contends the double jeopardy clauses bar the State from seeking multiple punishments.

The Fifth Amendment of the United States Constitution provides that a person shall not be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Texas Constitution provides: “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Tex. Const, art. I, § 14. Conceptually, the state and federal constitutional provisions are identical. Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex. Crim. App.1990).

The two provisions protect against: (1) a successive prosecution for the same offense after acquittal; (2) a successive prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Iglehart v. State, 837 S.W.2d 122, 127 (Tex.Crim.App.1992); see Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App.1992); Coleman v. State, 918 S.W.2d 39, 43 (Tex.App. — Houston [1st Dist.]), aff'd sub nom. Ex parte Coleman, 940 S.W.2d 96 (Tex.Crim.App.1996). This case implicates the latter two protections. See Iglehart, 837 S.W.2d at 127 (successive prosecutions for theft from homeowner and theft from homeowner’s daughter based on single incident as implicating second two protections).

In both prosecutions, the State alleged violation of the same statutory provision, Penal Code section 29.03, proscribing aggravated robbery. A person commits aggravated robbery if he (a) commits robbery as defined in Penal Code section 29.02, and (b) he also (1) causes serious bodily injury to another person, (2) uses or exhibits a deadly weapon, or (3) causes bodily injury to another person 65 years or older or a disabled person or threatens or places such a person in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.03(a) (Vernon 1994). The robbery statute, in turn, requires theft ( or attempted theft) and assaultive acts, each of which is accompanied by intent to obtain or maintain control of property. See Tex. Penal Code Ann. § 29.02(a) (Vernon 1994); Blount v. State, 851 S.W.2d 359, 364 n. 6 (Tex.App. — Houston [1st Dist.] 1993, no pet.).

Until recently the Texas Court of Criminal Appeals had consistently held that, when there was a single theft of property, there could be only one aggravated robbery, despite the number of assault victims. In other words under prior case law, theft, not assaultive conduct, defined the number of permissible prosecutions and convictions. See Blakely v. State, 843 S.W.2d 33 (Tex. Crim App.1992) (prohibiting successive prosecutions in case involving assault on store employee and her child, but theft only of mother’s purse and cash from locked drawer); Cook v. State, 840 S.W.2d 384 (Tex.Crim.App.1992) (prohibiting two convictions in single trial in case involving assaults on two officers, but theft only of hub cap); Simmons v. State, 745 S.W.2d 348 (Tex.Crim.App.1987) (prohibiting successive prosecutions in case involving assaults on two persons, but theft of cash only from one); Ex parte Crosby, 703 S.W.2d 683 (Tex.Crim.App.1986) (successive prosecutions — pleas—prohibited in case involving assaults on both husband and wife, but theft of property only from husband); see also Oggletree v. State, 851 S.W.2d 367 (Tex.App. — Houston [1st Dist.] 1993, pet. refd) (two convictions in same trial prohibited in case involving assaults against two store employees, but theft only of meat belonging to store).

In Ex parte Hawkins, however, the court specifically overruled Cook, Simmons, and Crosby. 6 S.W.3d 554, 560-61 (Tex.Crim.App.1999). The court observed, “The Double Jeopardy Clause is offended if a defendant is successively prosecuted for the same offense. The legislature defines whether offenses are the same. It does so by prescribing the ‘allowable unit of prosecution,’ which is ‘a distinguishable discrete act that is a separate violation of the statute.’ ” Id. at 556.

The court then turned to case law construing the robbery provisions in the Penal Code. Hawkins, at 559-60 (citing Crank v. State, 761 S.W.2d 328, 350 (Tex.Crim.App. 1988); Hightower v. State, 629 S.W.2d 920, 922 (Tex.Crim.App.1981); Linville v. State, 620 S.W.2d 130, 131 (Tex.Crim.App. 1981); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.Crim.App.1981); Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex.Crim.App. 1978)). Those cases indicate that the gravamen of robbery was the assaultive conduct, not the theft. See Hawkins, at 559-60. The court concluded, “Since robbery is a form of assault, the allowable unit of prosecution for robbery should be the same as that for an assault. And in Texas the allowable unit of prosecution for an assaultive offense is each victim.” Id. at 560 (citing Phillips, 787 S.W.2d at 894-95; Ex parte Rathmell, 717 S.W.2d 88, 36 (Tex.Crim.App.1986)).

Appellant does not dispute that he assaulted both Mr. Berner and Mrs. Berner. Under Hawkins, we hold that prosecution of appellant for the aggravated robbery of Mrs. Berner based on the theft of her purse does not violate appellant’s protection against double jeopardy, notwithstanding appellant’s conviction for the aggravated robbery of Mr. Berner based on the theft of the money and the fireworks.

We overrule appellant’s points of error one and two.

We affirm the order denying habeas corpus relief.

      . The facts are taken from the transcript of the prior trial. See also Padron v. State, 988 S.W.2d 344, 344-45 (Tex.App. — Houston [1st Dist.] 1999, no pet.).

      . Appellant represents that he was convicted of "both counts” in the indictment. The record reflects only that the jury found appellant "guilty of aggravated robbery as charged in the indictment.” The indictment simply charged alternate ways of committing aggravated robbery, i.e., by placing the same victim in fear of imminent bodily injury and death while using and exhibiting a deadly weapon (firearm) and by intentionally and knowingly causing bodily injury with a deadly weapon (hammer). See Tex Penal Code Ann. §§ 29.02(a), .03(a) (Vernon 1994). There were not two counts; there were two paragraphs alleging one count.

      . When indictments charge two violations of the same statutory provision, a court does not apply the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Ex parte Crosby, 703 S.W.2d 683, 685 (Tex.Crim.App.1986), overruled on other grounds by Ex parte Hawkins, 6 S.W.3d 554, 560-61 (Tex.Crim.App. 1999).

      . Even under the prior case law requiring a separate theft for each robbery, we would conclude there had been no violation of the appellant’s right against double jeopardy. Our analysis of the record indicates that the State will be proving a different theft (Mrs. Berner’s purse) from the theft (money and fireworks) on which it relied to support the aggravated robbery conviction in the first prosecution. The fact that the victims were husband and wife does not alter our analysis. See Blount v. State 851 S.W.2d 359, 361, 363-64 (Tex.App. — Houston [1st Dist.] 1993, no pet.) (treating attempt to take property from wife as separate from completed taking of properly from husband).


author: PHIL JOHNSON, Justice.

text:
    Gary LAWRENCE, et ux, Martee Lawrence, Appellants, v. CDB SERVICES, INC., Appellee.
    No. 07-98-0356-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 20, 2000.

      Templeton, Smithee, Hayes, Fields Young & Heinrich, Brian Heinrich, Robert L. Templeton, Amarillo, for appellants.
    Gibson, Ochsner & Adkins, L.L.P., S. Tom Morris, Amarillo, for appellee.
    Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
   ON MOTION FOR REHEARING

PHIL JOHNSON, Justice.

We withdraw our original opinion of October 11, 1999, and issue the following opinion in lieu thereof.

Gary Lawrence (Lawrence) and wife, Martee Lawrence, sued CDB Services, Inc. (CDB) for damages, alleging that Lawrence was injured due to the negligence of CDB. Lawrence was in the course of his employment for CDB at the time of his injury. CDB moved for summary judgment on the basis that prior to his injury Lawrence elected to participate in CDB’s Employee Benefit Plan; the written election waived and released Lawrence’s rights to recover from CDB; and that Lawrence was estopped from recovering by his acceptance of benefits. The trial court granted summary judgment to CDB. Lawrence did not urge in the trial court and does not assert on appeal that his election, if valid, did not release and waive his right to sue CDB for negligence. Rather, by four issues, Lawrence contends the trial court erred in granting the summary judgment because: (1) his election relinquishing his common law right to sue CDB was executed prior to his injury and therefore violates Texas public policy and is void; (2) his pre-injury election relinquishing his common law right to sue CDB does not meet express negligence and conspicuousness tests; (3) CDB’s Employee Benefit Plan does not provide benefits equivalent to the benefits provided under the Texas Workers’ Compensation Act, and therefore the election (and the release and waiver contained in it) are in violation of Texas public policy and void; and (4) CDB’s estoppel defense is precluded by Texas public policy because it is based on his pre-injury election which is void because it violates public policy. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lawrence began working for CDB on November 9, 1994. At that time and at all times relevant to Lawrence’s claim, CDB did not carry workers’ compensation insurance and was thus a “non-subscriber” to the Texas Workers’ Compensation Act (the “Act”). CDB, however, provided a benefit plan (the “Plan”) that provided medical, disability, dismemberment, and death benefits for employees who chose to participate in it. On November 9, 1994, Lawrence executed a document entitled “Election to Participate in CDB Services, Inc.’s Employee Benefit Plan and Trust” (the “election”). The election provides in part as follows:

By executing this document, I voluntarily elect to participate in the CDB SERVICES, INC.’S EMPLOYEE BENEFIT PLAN AND TRUST (the “Plan”). According to the Plan, I agree that by accepting benefits under the Plan or executing this election form indicating an election to participate in the Plan:
⅞ I agree to the Plan’s terms.
⅜ I waive any right I may have to recover from CDB Services, Inc. (the “Employer”), or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents for injuries I sustain or for my death if they arise out of and within the course and scope of my employment with Employer or any Affiliated Employers.
* I acknowledge that, if I am injured or killed in the course and scope of my employment, my only relief against Employer or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents will be to receive the benefits provided by the Plan.
I understand that by electing to participate in the Plan, I will lose any right that I may have had to sue Employer or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents because of any injuries, illness, or death I sustain in my employment with Employer or any of its Affiliated Employers resulting from their negligence or any other conduct actionable under the common law of the State of Texas, the statutes of the State of Texas, or under any otherwise available equitable relief. My only remedy will be to pursue benefits under the Plan. Executing this election involves the waiver and release of valuable legal rights.

The election further sets out that (1) Lawrence did not sign the election under duress; (2) he received a summary plan description; (3) no person made any representation to him on behalf of CDB or its affiliated employers that influenced him to sign the election; (4) Lawrence signed the election of his own free will; (5) he had the option of seeking professional advice before executing the election and had consulted an attorney to the extent he deemed necessary; and (6) he understood the language in the election.

CDB posted notice in a conspicuous place that it did not have workers’ compensation insurance covering its employees in the event of work-related illness or injury. See Labor Code § 406.005(c). The notice stated that the employees “... may have rights under the common law of Texas.” When Lawrence was employed, he signed a separate written “Notice to New Employees” which set out that CDB did hot have workers’ compensation insurance coverage.

On December 5, 1994, Lawrence was injured on the job when a bulldozer he was operating overturned. In June, 1995, the Lawrences filed suit against CDB. The Lawrences assert that Lawrence was injured due to the negligence of CDB. Following his injury, Lawrence accepted payment under the Plan for medical services, disability benefits, and dismemberment benefits. The benefits paid during the three and one-half years following his injury exceeded two hundred thousand dollars. Lawrence is eligible to continue receiving benefits until age 65.

In its motion for summary judgment, CDB contended that (1) Lawrence voluntarily released and waived his common law negligence claim by his execution of the election to participate in CDB’s Employee Benefit Plan; (2) Lawrence ratified his pre-injury release and waiver of his common law rights when he applied for and accepted benefits from the Plan following his injury; and (3) the doctrine of estoppel by acceptance of benefits bars Lawrence’s claim for negligence. The trial court granted summary judgment to CDB without stating the grounds for its ruling.

STANDARD OF REVIEW

The movant for summary judgment has the burden of proving that no genuine issue exists for any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). In determining whether a genuine issue of material fact exists, all evidence favorable to the non-movant will be assumed as true and every reasonable inference must be indulged in favor of the non-movant with any doubts resolved in his favor. Id. at 548-49. If the basis for the motion is an affirmative defense, the movant must establish all essential elements of the defense as a matter of, law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

PRE-INJURY WAIVER OF NEGLIGENCE

CAUSE OF ACTION

By his first issue, Lawrence asserts that the election relinquishing his right to sue CDB was executed before his injury and therefore is void because it violates Texas public policy. Lawrence primarily relies on Barnhart v. Kansas City, M. & O. Ry. Co. of Texas, 107 Tex. 638, 184 S.W. 176 (1916) and Texas Health Enterprises, Inc. v. Kirkgard, 882 S.W.2d. 630 (Tex. App. — Beaumont 1994, writ denied). He also cites language from Crowell v. Housing Authority of the City of Dallas, 495 S.W.2d 887 (Tex.1973) to support his position. In supplementation of his brief, Lawrence urges that Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex. App. — San Antonio 1999, pet. denied) supports his position.

In Kirkgard, an employee sued her non-subscriber employer for wrongful termination of employment after she was fired for refusing to sign a waiver of all workers’ compensation rights and common law rights to sue the employer for work injuries. Lawrence claims support in a broad statement by the court that “[a]n employment agreement limiting a non-subscribing employer’s liability for job-related injuries is void as against public policy.” Kirk-gard, 882 S.W.2d at 684. Lawrence’s confidence in Kirkgard, however, is misplaced. First, the Kirkgard case involved actions of an employer attempting to coerce employees to execute an agreement waiving rights. Lawrence does not claim that he was coerced into signing his election. Second, the Kirkgard court articulated the issue before it as being whether the employee was wrongfully terminated for refusing to sign the waiver. Lawrence is not claiming that he was wrongfully terminated. Third, Kirkgard did not involve an employment agreement which limited the non-subscribing employer’s liability for job-related injuries; therefore, the quoted statement relied on by Lawrence is dictum.

Kirkgard relies, in part, on Barnhart v. Kansas City, M. & O. Ry. Co. of Texas, 184 S.W. at 176, which is also cited to us by Lawrence. In Barnhart, the employee signed an employment application that acknowledged the employee’s having been informed that the job for which he was applying “... will expose me to great danger, the risk of which I assume for myself. ...” The application provided that Barnhart agreed “... in consideration of my employment ...” to use due and constant care for his own safety while working for the railway company. Id. at 179. Barnhart was injured on the job and sued his employer. On appeal the Supreme Court of Texas affirmed a judgment for the employee. Without citation, the Texas Supreme Court stated that such a contract was void as against public policy because it transferred the burden of defendant’s negligence to the employee. Id. See also, Pullman Co. v. Ransaw, 203 S.W. 122, 123 (Tex.Civ.App. — El Paso 1918), aff'd, 254 S.W. 763 (Tex. Comm’n App.1923, judgm’t adopted).

Like Kirkgard, the factual basis and legal considerations of Barnhart differ from the situation presented by the ease before us. In Barnhart, the employee was required to assume the risk of injury for no consideration other than employment. Barnhart was provided with no benefits in exchange for the assumption of the risk which he was required to undertake by his employment application. Lawrence, on the other hand, made his election voluntarily. Lawrence chose and received independent consideration when he elected to participate in the Employee Benefit Plan. We do not deem Barnhart controlling of our decision.

Lawrence also claims support for his position by language of the court in Cro-well v. Housing Authority of the City of Dallas, 495 S.W.2d at 887. Crowell, however, like Barnhart and Kirkgard, does not address a pre-injury waiver and release for which independent consideration is established. Crowell concerned an exculpatory provision inserted into leases by a low-income housing authority. In reaching its decision that the exculpatory provision was against public policy, the Crowell court noted that tenants of the housing authority could only be persons who lacked sufficient income to enable them, without financial assistance, to live in decent, safe and sanitary dwellings without overcrowding. Id. at 889. The court cited the facts as demonstrating a classic example of unequal bargaining power. Prospective tenants had no choice but to accept the terms dictated by the housing authority if they were to enjoy decent housing not otherwise available to them. Id. The court set out some general examples of when unequal bargaining power of parties to an agreement might result in the agreement being void. One of the statements made by the court was “It is generally held, for example, that a contract exempting an employer from all liability for negligent injury of his employees in the course of their employment is void as against public policy.” Id. The court’s statement, however, was general and was not directed to a specific set of facts concerning such a contract between an employer and an employee. The factors discussed by the Crowell court are not presented in Lawrence’s case.

The factual situation presented in Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex.App. — San Antonio 1999, pet. denied), is very similar to the matter now before us. In Reyes, the employee executed a document (the “waiver”) before his injury. By his execution of the waiver, Reyes chose to participate in an employee benefit plan (the “S & P Plan”) provided by his employer, Storage & Processors, Inc. (S & P). S & P did not carry workers’ compensation insurance, and thus, like CDB, was a non-subscriber. The waiver executed by Reyes recited that he understood his participation in the S & P Plan was not compulsory, and that by choosing to participate in the S & P Plan, he agreed to accept the plan benefits as the only benefits he could receive in the event of a work-related injury. The waiver specifically referenced possible rights that Reyes might have under the common law of Texas, and affirmed that Reyes’s employment was not contingent on his choosing to participate in the S & P Plan. Reyes, 995 S.W.2d at 724. After Reyes was injured on the job, the S & P Plan began paying benefits to him. Reyes accepted benefits from the S & P Plan and also filed a damage suit against S & P claiming that his injury was caused by the negligence of S & P. The trial court granted summary judgment to S & P. The court of appeals determined that the benefits provided to Reyes by the S & P Plan were not as great as the benefits provided for by the Workers’ Compensation Act and held Reyes’s waiver to be void because it violated the public policy expressed by the Texas Legislature in the Act. Id. at 729. We do not find Reyes controlling of our decision. We do not reach the issue of whether the benefits provided by the CDB Plan are as great as those provided by a workers’ compensation policy of insurance. However, to the extent our conclusion as expressed hereafter conflicts with Reyes, we are in disagreement with it.

In 1987 the Texas Supreme Court adopted the express negligence doctrine. Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex.1987). Prior to the Ethyl decision, Texas courts had considered numerous clauses which were used by contracting parties to attempt to shift responsibility for future acts of negligence of one party or the other. Such clauses met with varying degrees of success when presented to the judiciary for interpretation or enforcement. See id. In adopting the express negligence rule, the Ethyl court did not indicate that such contractual provisions were invalid; it held only that in order for one party to shift the risk of its future negligent conduct to another, the agreement must expressly so state. Id.

In Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex.1993), the court addressed the issue of whether fair notice requirements applicable to indemnity agreements apply to releases that operate to reheve a party of responsibility for its own negligence in advance of the damage-causing event. In holding that fair notice requirements were applicable to such releases, the court quoted with approval the court of appeals language describing the kinds of agreements at issue:

[TJhese agreements, whether labeled as indemnity agreements, releases, exculpatory agreements, or waivers, all operate to transfer risk ... these particular agreements are used to exculpate a party from the consequences of its own negligence. Id. at 508 (emphasis added).

The Dresser court did not hold or suggest that agreements to relieve a party of liability for its future negligence were invalid.

In 1997 the Texas Supreme Court revisited the subject matter of risk-shifting clauses in agreements. Green Intern., Inc. v. Solis, 951 S.W.2d 384 (Tex.1997). In Green, the court considered whether the rules set forth in Dresser would apply to provisions in construction contracts known as “no-damages-for-delay” clauses:

[The no-damage-for-delay] clause does not constitute the type of extraordinary risk-shifting found in Dresser. It is not an indemnity agreement because it does not shift Green’s liability for third party claims to Solis. Dresser, 853 S.W.2d at 508. Also, this clause is not a release as defined in Dresser because it neither “extinguish[es] the claim or cause of action” nor establishes “an absolute bar to any right of action on the released matter.” Id.
The distinction between Dresser and this case lies in the fact that Dresser concerned the shifting of tort and negligence damages, whereas the no-damages-for-delay clause shifts economic damages resulting from a breach of contract. Green, 951 S.W.2d at 387.

The court again made no suggestion that risk-shifting clauses executed in advance of the injurious event were invalid. Thus, we determine that agreements by which one party releases another party from responsibility for future acts of negligence have long been part of otherwise valid contracts in Texas. Agreements such as Lawrence’s election are not in and of themselves in violation of public policy. Finding no violation of public policy by such an election otherwise valid, we examine the Texas Workers’ Compensation Act to determine if the Texas Legislature has expressed its intent that we void such agreements between an employer and an employee.

The Workers’ Compensation Act provides the framework for a tripartite contractual relationship in which the employer, the employee, and the workers’ compensation insurance carrier are parties. Aranda v. Ins. Co. of North America, 748 S.W.2d 210, 212 (Tex.1988); Huffman v. Southern Underwriters, 133 Tex. 354, 359, 128 S.W.2d 4, 6 (1939). An employer has the option of providing workers’ compensation insurance for employees and thereby becoming a subscriber under the Act, or not providing workers’ compensation insurance and thereby remaining a non-subscriber. Employees of a subscribing employer have the option of (1) entering into the tripartite contract, thereby accepting the preferred benefits of coverage by a workers’ compensation insurance policy and waiving specified common law rights against the employer in the event of an on-the-job injury; or (2) electing to retain their common law rights against the employer in the event of an injury on the job, and foregoing coverage by their subscribing employer’s workers’ compensation insurance policy. E.g., Paradissis v. Royal Indem. Co., 507 S.W.2d 526, 529 (Tex.1974); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 558-59 (1916). Thus, since 1917, participation in the workers’ compensation system has been voluntary and elective as to both employer and employee. E.g., Paradissis, 507 S.W.2d at 529; Anderson-Berney Realty Co. v. Soria, 123 Tex. 100, 67 S.W.2d 222, 222-28 (1933).

For varying reasons, the Texas workers’ compensation system has been the source of some dissatisfaction through the years. See, e.g., Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 512-13 (Tex.1995) and authorities cited therein. Partly in response to dissatisfaction with the system, the Legislature periodically amended the Act. By the early 1980’s, confidence in the system had fallen to extraordinary lows. A perceived crisis in workers’ compensation insurance resulted in an intensive study of the system. Following receipt of a report from the legislative Joint Select Committee on Workers’ Compensation Insurance in 1988, the Legislature restructured the system. See id. The new Act was termed by some as a radical change in the system and several of its provisions were challenged as being in violation of Texas Constitutional guarantees. Id. at 510, 534.

Despite the changes periodically made to the Act by the Legislature in such areas as the amount of benefits payable to an injured worker, the manner in which benefits could be paid, the method of calculation of benefits, and the method of dispute resolution, the Legislature has not altered the principle that an employee waives certain common law rights against a subscribing employer when the employee elects to accept workers’ compensation insurance coverage provided by the employer. The 1913 version of the Act stated in plain language what can only be described as the Legislature’s policy decision that in Texas an employee can waive specified common law rights in exchange for some level of fixed benefits to be provided without'regard to fault in the event of an injury on the job. That policy has remained continuously manifested in the express language of the Act, although the amount, manner of calculation, timing, and delivery procedures of the compensation received by the employee has changed periodically. The Legislature specifically addressed the subjects of non-subscribing employers and waivers of rights by employees in the Act. For example, section 406.033 provides for restrictions on defenses available to a non-subscriber in a suit by its employee to recover damages for personal injury or death sustained in the course and scope of employment. The addition of subsection 406.033(b) in the new Act evidences the Legislature’s revisiting of the issue of the common law rights of employees and employers when workers’ compensation insurance is not provided by the employer. Section 406.035 provides that except as provided by the Act, an agreement by an employee to waive the employee’s right to compensation is void. Further, the Act provided for a Legislative Oversight Committee to monitor the workers’ compensation system and to periodically report to the governor, the lieutenant governor, and the speaker of the house of representatives on certain matters, including problems in the system and recommendations for legislative action. Labor Code §§ 405.001-405.006 (repealed by Acts 1995, 74 th Leg., ch. 907, § 2). The Legislature provided for a Research and Oversight Council on Workers’ Compensation to conduct studies and research on certain specified aspects of the workers’ compensation system, as well as “other matters relevant to the cost, quality, and operational effectiveness” of the system. See generally, Labor Code ch. 404. The Council Board of Directors includes members of the Legislature. The Council is to hold regular public hearings and receive testimony and reports from entities involved in the workers’ compensation system. The Council monitors operation of the system and periodically reports to the governor, the lieutenant governor, and the speaker of the house. Its reports are to include identification of problems in the system and recommendations for legislative and regulatory action. See id.

From time to time the Legislature has imposed restrictions on the rights of parties to make contracts, including some contracts involving employers and employees. For example, chapter 171 of the Civil Practice and Remedies Code provides that written arbitration agreements are valid and enforceable as to controversies that exist at the time of the agreement or arise after the date of the agreement, except for certain specified categories of agreements. Tex. Civ. PRAC. & Rem.Code Ann. §§ 171.001, 171.002 (Vernon Supp.2000). Agreements between employers and labor unions and claims for workers’ compensation benefits are not subject to Chapter 171. Section 171.002(a)(1),(4). Nor are agreements to arbitrate claims for personal injuries subject to Chapter 171 unless each party to the claim agrees in writing, upon the advice of counsel, to arbitrate, and signs the agreement along with his or her attorney. Section 171.002(a)(3),(c). And through the Business and Commerce Code the Legislature has (1) limited the manner in which agreements containing covenants not to compete may restrain activities of a promisor, and (2) made the statutory provisions preemptive of other criteria for enforceability of such agreements. Tex. Bus. & Com.Code Ann. §§ 15.50, 15.51, 15.52 (Vernon Supp.2000). The Legislature has expressly declared its sense that certain agreements providing for indemnity to negligent indemnitees create inequities and are against the public policy of this state. Tex. Crv. PRAC. & Rem.Code Ann. § 127.002(a),(b) (Vernon 1997). The Legislature has also expressly declared certain indemnity provisions in agreements pertaining to wells for oil, gas, or water, or to a mine for a mineral to be void. Section 127.003. Thus, we see that when it deemed appropriate, in the Workers’ Compensation Act as well as in other statutes, the Legislature has expressly voided or prohibited certain types of contractual provisions. It has likewise statutorily declared that certain contractual provisions are in violation of public policy of this state.

Considering appellant’s issue in context of the foregoing, we find no part of the Workers’ Compensation Act by which the Legislature has expressly nullified, or even limited the scope of, an agreement such as the one before us merely because it was executed prior to the employee’s injury. Further, despite the long period of time since workers’ compensation statutes were originally enacted, despite the Legislature’s extensive study of the workers’ compensation system before the 1989 legislative session by a legislative select committee, its consultants and assistants, extensive legislative consideration through one regular and two special sessions of the Legislature, and continued scrutiny and monitoring of the system through the Legislative Oversight Committee and the Research and Oversight Council on Workers’ Compensation, we find no express or implied declaration in the Act of legislative intent to establish public policy voiding an agreement such as the election by Lawrence because it was executed before his injury.

We thus conclude that in the Workers’ Compensation Act the Texas Legislature has neither expressly nor impliedly established a public policy with which Lawrence’s pre-injury execution of his election conflicts. Having determined that public policy is not violated by Lawrence’s execution of his election before the injury-causing event, we overrule his first issue.

EXPRESS NEGLIGENCE AND CONSPICUOUSNESS

By his second issue, Lawrence asserts that (1) his election does not meet the requirements of the express negligence doctrine adopted in Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707-08 (Tex. 1987) because the election does not expressly waive claims for negligence arising out of the negligent activity of others, including CDB’s employees; and (2) the waiver of his negligence cause of action is not conspicuous.

The express negligence doctrine requires that in order for a party such as CDB to contractually shift risk from itself for the consequences of its own future negligence, the party must specifically express that intent within the four corners of an agreement. Ethyl, 725 S.W.2d at 707-708; See also, Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). A clause shifting the risk for a party’s own future negligence is also required to be conspicuously written, so that a reasonable person against whom it is to operate should notice it. Dresser, 853 S.W.2d at 511. A clause is conspicuous if it has language in capital headings, or has language in contrasting type or color. Id. (citing Tex. Bus. & Com.Code Ann. § 1.201(10)).

We find that CDB’s election meets both the express negligence and conspicuousness requirements. In contrasting boldface type on the front page of the election it reads in part, “[I] will lose any right that I may have had to sue Employer or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents ... because of any injuries, illness, or death I sustain in my employment with Employer ... resulting from their negligence.... ” (emphasis added). The election specifically expresses the intent that Lawrence is waiving his right to sue CDB because of the negligence of CDB or its employees. Further, an ordinary person should have noticed the specific expression that Lawrence was foregoing his right to sue CDB for injuries resulting from the negligence of CDB and the referenced persons. The paragraph containing the phrase is eight lines long, and the subject matter of the entire paragraph is that Lawrence is waiving and releasing valuable rights against the parties named in the paragraph. The entire election document is a relatively short two pages. Lawrence’s second issue is overruled.

By his third issue, Lawrence contends that his election is in violation of public policy and void because CDB’s Plan benefits are not equivalent to the benefits provided under the Texas Workers’ Compensation Act. By his fourth issue, he asserts that CDB’s estoppel defense is precluded by Texas public policy. The basis for Lawrence’s fourth issue is his claim that acceptance of benefits cannot validate the pre-injury election which he claims is void because it is in violation of public policy. In his response to CDB’s motion for summary judgment in the trial court, however, Lawrence did not present these issues. As the non-movant, Lawrence was required to expressly present these issues to the trial court in order to rely on them to negate CDB’s entitlement to summary judgment. Tex.R. Civ. P. 166a(e); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Bell v. Showa Denko KK, 899 S.W.2d 749, 756 (Tex.App. — Amarillo 1995, writ denied). The trial court did not have opportunity to consider these issues and Lawrence may not raise them for the first time on appeal. Tex.R. Civ. P. 166a.(c); Tex.R.App. P. 33.1(a). We overrule Lawrence’s third and fourth issues.

Because Lawrence’s election is not void as he urges on appeal, the trial court correctly granted summary judgment to CDB on the grounds that Lawrence released and waived his common-law negligence claims against CDB. We need not and do not consider whether summary judgment would have been proper on either the basis that Lawrence ratified his release and waiver or on the basis that he was es-topped from asserting his release and waiver was void.

The judgment of the trial court is affirmed.

      . Martee Lawrence sued CDB for alleged loss • of consortium. Her claim is derivative to the claim of Gary Lawrence. Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 376 (Tex. App. — Austin 1984, writ ref’d n.r.e.). She asserts no basis for reversing the summary judgment against her different from the bases presented by Gary Lawrence.

      . Tex. Lab.Code Ann. § 401.001, et seq. (Vernon 1996). Subsequent references to various sections of the workers’ compensation statutes will be referred to as "Labor Code §

      . Lawrence did not assert contractual defenses to the election. See, e.g., Brito v. Intex Aviation Services, Inc., 879 F.Supp. 650, 654 (N.D.Tex.1995).

      . In their First Amended Original Petition, which was the live pleading at the time the trial court granted summary judgment, the Lawrences did not allege that the injury to Gary Lawrence was the result of gross negligence or intentional injury on the part of CDB.

      . At oral submission, the attorneys for the parties represented that Lawrence continues to receive benefits under the Plan.

      . Lawrence further seeks support in Memorial Med. Ctr. of East Texas v. Keszler, 943 S.W.2d 433, 435 (Tex. 1997) where the court held that a post-injury settlement and release for a claim of gross negligence is valid. Lawrence asserts that Keszler distinguished pre-injury and post-injury releases, and that an implication can be drawn that a pre-injury release should be invalid. Keszler addressed a post-injury release of a claim for gross negligence. As we have noted above, the only claims Lawrence asserted against CDB were for negligence. We do not have before us the issue of whether Lawrence’s election waived and released claims for gross negligence. Keszler does not support Lawrence’s position.

      . While Lawrence did not assert a wrongful discharge claim, we note that Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 57 (Tex. 1998) disapproved of Kirkgard to the extent that it held an employee could assert a wrongful discharge claim under the Texas Workers’ Compensation Act against a non-subscribing employer.

      . If the statement were to be taken literally, it seemingly would be in conflict with cases holding that the relationship between a subscribing employer', its employee, and the workers’ compensation insurer is a tripartite contractual arrangement by which the employee waives certain common law claims against the employer. See, e.g., Aranda v. Ins. Co. of North America, 748 S.W.2d 210 (Tex. 1988); Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4 (1939); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916).

      . Reyes asserted on appeal that the document did not meet the "express negligence” test. The San Antonio court did hot reach the issue, however, as Reyes had not raised the issue in his response to S & P’s motion for summary judgment. Reyes, 995 S.W.2d at 726.

      . See Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex.1990).

      . Some employers have on occasion been excluded from provisions of the Act. Providing workers’ compensation insurance is mandatory for certain classes of employers. See generally, Labor Code §§ 406.091-406.165. No allegation is made that CDB is a member of either an excluded group or a group whose members are required to carry workers’ compensation insurance.

      . Not all common law rights are waived by the employee and his beneficiaries. See La-bbr Code §§ 406.034(b)(d), 408.001(b).

      . See Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 511 n. 2 (Tex. 1995).

      . The original enactment did not give employees the right to elect out of the workers' compensation system and continue working for a subscribing employer. Rather, if an employer was or became a subscriber, then actual notice to employees of subscriber status was required, and the employees who worked for the subscriber waived their common law rights by continuing in the employment for the subscriber. In upholding the constitutionality of the original Act, the Texas Supreme Court deemed the employee's choice to work for a subscribing employer as an election to waive the employee’s common law rights against the employer, to the extent provided in the Act. Middleton, 185 S.W. at 559. The Act was amended in 1917 to allow employees the option of electing out of the system, and yet remaining employed by a subscriber. See Acts 1917, 35 th Leg., ch. 103, § 3a.

      .The Act specifically addresses the following subjects in separate sections: (1) the employer’s election to become a subscriber, Labor Code § 406.002; (2) the employee’s election to retain common law rights, Labor Code § 406.034; (3) the effects of an employer remaining a non-subscriber, Labor Code § 406.033; and (4) prohibition of the employee's waiver of the right to compensation, Labor Code § 406.035. The Act makes many, but not all, non-subscribing employers subject to provisions concerning worker health and safety, such as reporting injuries and diseases resulting in lost time by employees, extra-hazardous employer programs, and prohibitions against retaliation against employees for reporting safety violations. See generally, Labor Code ch. 411.

      . See 1 John T. Montford, Et Al., A Guide To Texas Workers' Comp Reform, pp. 1-8, 4-14 through 4-33 (1991).

      . Compare Labor Code § 408.006(a) where the Legislature expressly stated its intent as to a part of the statute.


author: JIM R. WRIGHT, Justice.

text:
    In re M.L.P.J. a/k/a J.S.B., a child.
    No. 11-98-00121-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 27, 2000.

      Craig S. Michalk, Law Office of Craig S. Michalk, Hurst, for appellant.
    Don R. Stewart, Arlington, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   OPINION

JIM R. WRIGHT, Justice.

This is an appeal from the trial court’s ruling that appellant pay child support and provide health insurance for M.L.P.J. a/k/a J.S.B. (the child) based on the finding that appellant had equitably adopted the child. We modify and affirm.

The child was born on June 14, 1987. When she was approximately three months old, the child’s natural mother asked ap-pellee to adopt the child. The child moved into the home of appellee and appellee’s boyfriend, appellant, in September 1987 and lived there until appellant’s home was repossessed in September 1988. Appellee and the child did not live with appellant from September 1988 to May 1990, at which time they began living together again. Appellant and appellee did not formally adopt the child because appellant was on a ten-year criminal probation for selling drugs and because they were afraid that she would be taken from them. Appellant treated the child as his daughter from the time she was placed with him in 1987 until after appellant and appellee divorced in 1997. About seven months after the divorce was filed, appellant stopped having visitation with the child. The trial court found that appellant had equitably adopted the child and ordered that he pay child support and provide health insurance for her.

Appellant presents four issues on appeal. In his first issue, appellant maintains that the trial court erred in applying the doctrine of equitable adoption to a case which is governed by the Texas Family Code. We agree.

The doctrine of equitable adoption has long been recognized by courts within the probate area. While the Probate Code defines “child” as including an “adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel,” the Family Code does not contain a similar provision. (Emphasis added) TEX. PROB. CODE ANN. § 3(b) (Vernon Supp.2000). The Texas Family Code provides a means of formal adoption; and TEX. HEALTH & SAFETY CODE ANN. § 192.007 (Vernon 1992) provides for the limited exception that, should an attempted formal adoption fail because the child dies before the adoption is finalized, the State registrar may file supplementary birth and death certificates for the child.

In Helen v. Crabtree, 369 S.W.2d 28, 30 (Tex.1963), the issue was whether the legal status of parent and child is created when parties assume and live in a relationship of parent and child pursuant to an unperformed agreement to adopt the child. The court held that a legal status of parent and child is not created in such a circumstance. Therefore, the adoptive parents were not allowed to inherit from their equitably-adopted child. Because the adopted child made no promises upon which to assert estoppel, equitable adoption applies only in favor of the child. Helen v. Crabtree, supra at 30-31.

In Flynn v. State, 667 S.W.2d 235 (Tex. App. — El Paso 1984), aff'd on other grounds, 707 S.W.2d 87 (Tex.Cr.App.1986), the court of appeals extended the application of equitable adoption to a case outside the Probate Code. In that case, the defendant had been certified as an adult and convicted of murder. The State served the defendant’s aunt with notice of the certification hearing and alleged that she was the defendant’s mother. The defendant had lived with his aunt from his third day of life until he was 15. The defendant was treated like her son by the entire family even though she had never formally adopted him. After waiver of juvenile court jurisdiction and indictment but prior to the trial in district court, the defendant moved to quash the indictment contending that the State had notified his aunt, not his natural mother. The defendant argued that the trial court should have granted his motion to quash the indictment because the juvenile court failed to appoint a guardian ad litem in the absence of the defendant’s parent or legal guardian. TEX. FAM. CODE ANN. § 51.11 (Vernon 1996). The court of appeals stated that the evidence was sufficient to establish a parental relationship under the doctrine of adoption by estoppel despite the acknowledged lack of formal adoption proceedings. Therefore, Section 51.11 was satisfied without the appointment of a guardian ad litem.

On appeal to the Court of Criminal Appeals, the court held that it was error to apply the doctrine of equitable adoption. Flynn v. State, 707 S.W.2d at 87. The court noted that “ ‘Parent’ is defined in the Family Code § 51.02(2), [former] as: ‘the mother, the father whether or not the child is legitimate, or an adoptive parent.’ ” Since the aunt had never adopted the defendant, the court acknowledged that:

[I]n the strict terms of § 51.11, appellant was not accompanied by a parent or guardian when he appeared before the juvenile court, and a guardian ad litem should have been appointed for him.

Flynn v. State, 707 S.W.2d at 88. The court went on to state that the Texas Supreme Court in Helen held firmly that this equitable doctrine is to be applied in only a narrowly circumscribed set of facts:

The descriptive phrases, “equitable adoption,” “adoption by estoppel,” and “adoptive status,” are used in decided cases strictly as a shorthand method of saying that because of the promises, acts and conduct of the intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child. Analysis of the cited cases makes clear that we did not intend to hold, and did not hold, that “equitable adoption” or “adoption by es-toppel” is the same as legal adoption or that it has all of the legal consequences of a statutory adoption. (Citation omitted)

Helen v. Crabtree, supra at 30.

In T.W.E. v. K.M.E., 828 S.W.2d 806 (Tex.App. — San Antonio 1992, no writ), T.W.E. attempted to obtain custody of a child which was born to K.M.E. during their marriage. Blood tests and other evidence proved that T.W.E. was not the actual father of the child. T.W.E. sought to obtain appointment as managing conservator by virtue of the doctrine of estoppel. While it declined to apply the doctrine to a custody situation, the San Antonio Court of Appeals discussed the possible inequity which could result from non-application of the doctrine. We agree with the concerns set forth by the San Antonio Court and also agree with its decision that “equitable adoption in Texas does not create the legal status of parent and child in these circumstances.” T.W.E. v. K.M.E., supra. at 809.

From its beginnings, the doctrine of adoption by estoppel has been used only “to preclude adoptive parents and their privies” from asserting that the child seeking to inherit was not the adopted child of the deceased. Flynn v. State, 707 S.W.2d at 88; see also Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940); Pope v. First National Bank in Dallas, 658 S.W.2d 764, 765 (Tex.App. — Dallas 1983, no writ). Although it found the error to be harmless, the Court of Criminal Appeals held that it was error to apply the doctrine.

Similarly, in the case before us, we are asked to extend the doctrine of equitable adoption into an area governed by the Family Code. TEX. FAM. CODE ANN. § 154.001(a) (Vernon Supp.2000) authorizes a court to order “either or both parents” to support a child in the manner specified in the order. Section 101.024 defines a “Parent” as:

[T]he mother, a man presumed to be the biological father, a man legally determined to be the biological father, a man who has been adjudicated to be the biological father by a court of competent jurisdiction, or an adoptive mother or father.

We hold that the doctrine of equitable adoption is inapplicable to this case. Therefore, as inFlynn v. State, 707 S.W.2d at 87, appellant does not fit the strict definition of “Parent” within the Family Code because he did not formally adopt the child. The trial court erred in ordering appellant to pay child support and to provide health insurance for the child. Appellant’s first issue is sustained.

In light of our ruling in connection with appellant’s first issue on appeal, we need not consider his other issues.

The judgment of the trial court is modified to delete all findings and orders predicated upon the determination that M.L.P.J. a/k/a J.S.B. was equitably adopted by appellant, including, but not limited to, the provisions that appellant pay child support and provide health insurance. As modified, the judgment of the trial court is affirmed.

      . Although she had been living with appellant, appellee was still married to Russell Blandin. Appellant and appellee were formally married in August 1990.

      . See now TEX. FAM. CODE ANN. § 101.024 (Vernon Supp.2000).

      . We express no opinion as to whether these facts would support a finding of equitable adoption outside of the context of the Texas Family Code.


author: FRANK C. PRICE, Justice

text:
    Jose Luis HERNANDEZ and Carmen Hernandez, Appellants, v. KOCH MACHINERY COMPANY, Appellee.
    No. 01-98-00768-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 24, 2000.
    Rehearing Overruled April 27, 2000.

      Michael Kerensky, Houston, for appel-lee.
    Evelyn Ailts Derrington, Michael Phillips, Houston, for appellants.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

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

   OPINION

FRANK C. PRICE, Justice

(Assigned).

Appellants, Jose Luis Hernandez and his wife, Carmen Hernandez (collectively Hernandez), appeal the granting of the motion for summary judgment by appellee, Koch Machinery Company (Koch), that was based on the statute of repose and “no evidence” that the machine was unreasonably dangerous. In the event there is an adverse ruling on the statute of repose, Koch appeals the trial court’s decision to grant Hernandez’s bill of review. We reverse the granting of Koch’s motion for summary judgment, reverse the granting of Hernandez’s motion for partial summary judgment, and hold Hernandez was not entitled to bill of review relief.

FACTUAL SUMMARY

In 1983, Hernandez’s arm was severed while he was working on a steel slitter. This machine cut raw rolled sheet metal into specified widths and lengths and then rolled the freshly cut metal. Hernandez alleged there was a design defect in the re-rolling process that caused his injury. His petition was filed against the Cincinnati-Forte Company and Koch, based on theories of recovery for products liability, negligence, and breach of warranty.

In 1969, the Cincinnati-Forte Company, a subsidiary corporation of Cincinnati Incorporated, sold a slitting line machine to Steiner Realty Company. The machine was constructed and installed by Cincinnati-Forte at the Schill Steel plant in Houston. This slitting line was an improvement installed at the plant to process and cut sheet metal. Koch is a Texas corporation that acted as Cincinnati-Forte’s agent and marketer of the slitting line in Texas. Koch, representing Cincinnati-Forte, would actively pursue potential buyers and then put the customers in contact with Cincinnati-Forte. Koch received a finders’ fee for each sale resulting from a contact it established. Koch did not participate in the negotiations between Cincinnati-Forte and Steiner Realty Company for the sale of the slitting line.

There is no evidence of any defect or problem with the slitting line at the time of the sale in 1969, or for the next 13 years. James Philip Davis, the chairman of the board of Schill Steel Company and President of Steiner, testified that in 1978 or 1979, the slitting fine was purchased by a machinery equipment dealer from Detroit who contracted with someone else to disassemble and reconstruct the slitter. The slitter was moved to another warehouse at Schill Steel, which ultimately was the site of the injury in question.

PROCEDURAL HISTORY

Judge William Powell rendered summary judgment in favor of Cincinnati Incorporated based on the statute of repose. Hernandez appealed the judgment, and in an unpublished opinion, the Fourteenth Court of Appeals dismissed the appeal, holding that the judgment was not final because it did not dispose of all the parties. Hernandez v. Cincinnati, Inc., No. [ AXX-XX-XXXXX ]-CV (Tex.App. — Houston [14th Dist.] Dec.15, 1988, writ granted) (not designated for publication), 1988 WL 133265. The Texas Supreme Court, in another unpublished opinion, agreed the judgment was not final, but remanded the case back to the trial court, holding that the court of appeals improperly dismissed the appeal. Cincinnati, Inc. v. Hernandez, 32 Tex. Sup.Ct. J. 463 (June 14, 1989) (not designated for publication.) On remand, Judge Powell severed the cause of action against Cincinnati Incorporated, and the summary judgment became final on April 6, 1990.

On November 6, 1990, the trial court sent notice of its intent to dismiss the remaining litigation for want of prosecution. Thirty days later, the case was dismissed.

On March 26, 1991, Hernandez filed a motion to reinstate, which the trial court granted on April 5, 1991. Koch opposed the motion and order, contending the trial court no longer had jurisdiction over the matter.

In October, 1991, Koch filed its motion for summary judgment based on the statute of repose. In addition, Koch argued it could not be liable under strict products liability, because it never placed the improvement into the stream of commerce. Koch further asserted it did not design, assemble, or manufacture the steel slitter; therefore, no duty could be imposed. With respect to the warranty cause of action, Koch stated it made no actionable misrepresentations. The trial court never expressly ruled on this motion.

The trial court dismissed the Hernandez’s personal injury lawsuit on December 15, 1993, because it found, in light of Levit v. Adams, 850 S.W.2d 469, 470 (Tex.1993), it never had jurisdiction to reinstate the case. On March 9, 1994, Hernandez filed a bill of review. In the bill of review, Hernandez said he did not receive notice that his personal injury lawsuit was going to be dismissed and that his case had been dismissed. He further asserted the dismissal was not due to any intentional misconduct or conscious indifference on his part, but was actually an official mistake or accident. Finally, he said the reinstatement of the case, more than 10 years after the original injury, would not result in any delay or injury to Koch. The same three theories of recovery for strict products liability, negligence, and breach of warranty were alleged on the merits.

After the bill of review was filed, Koch moved for summary judgment on three additional grounds: (1) the statute of repose barred Hernandez’s claims in their entirety; (2) because Hernandez’s own negligence contributed to the earlier dismissal of his lawsuit, he was barred from seeking bill of review relief; and (3) there was no evidence Koch’s negligence proximately caused Hernandez’s injuries.

Hernandez filed his own motion for summary judgment contending, as a matter of law, he established his right to seek bill of review relief. In a second motion, he added that his lawsuit was not barred by the statute of repose. Upon Hernandez’s motion, the court entered an order that it would consider all the “contents of the court’s files for the purpose of determining the summary judgment motions that are pending before the court.”

The trial court granted Hernandez’s motion for partial summary judgment, holding he was entitled to pursue bill of review relief. In addition, the trial court granted Koch’s motion for summary judgment, holding the statute of repose barred Hernandez’s claims in their entirety. Hernandez appeals this adverse ruling, and if we reverse on that issue, Koch, conditionally, appeals the ruling on the bill of review.

SUMMARY JUDGMENT STANDARD OF REVIEW

A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and the mov-ant is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 646, 548 (Tex.1985). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Id. 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

When a defendant moves for summary judgment, it must either: (1) disprove at least one element of the plaintiffs cause of action; or (2) plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiffs cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

STATUTE OF REPOSE

In point of error one, Hernandez argues it was error for the trial court to render summary judgment based on the statute of repose.

The statute of repose requires a party to sue:

... a person who constructs or repairs an improvement to real property not later than ten years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.

See Tex. Civ. PRAC. & Rem.Code Ann. § 16.009(a) (Vernon 1986).

The purpose of the statute of repose is to protect individuals and corporations who have no 'control over the real estate improvement and have no authority to go onto the premises to inspect the improvement for unsafe conditions, to ensure that it is being used for the purpose for which it was designed, or to check for any defective alterations. Dubin v. Carrier Corp., 731 S.W.2d 651, 654 (Tex.App.— Houston [1st Dist.] 1987, no writ). Unlike traditional limitations provisions, which begin running upon accrual of a cause of action, a statute of repose runs from a specified date without regard to accrual of any cause of action. Trinity River Authority v. URS Consultants, Inc.-Texas, 889 S.W.2d 259, 261 (Tex.1994).

Statutes of repose differ from traditional limitations in that they potentially cut off a right of action before it accrues. Id. at 263. As to real estate improvements, however, where a claim may arise many years after the designer’s involvement with the project has ceased, the statute must operate in this manner if it is to serve its purpose. Id. The public purpose of limitations — protecting defendants from having to defend stale claims — should be served even though some meritorious claims might be barred. Id. at 264.

All parties agree the slitting line was an improvement to the realty. As a result, the only real question before this Court on this issue is whether Koch is entitled to protection under this statute.

Hernandez relies almost exclusively on the Texas Supreme Court’s decision in Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475 (Tex.1995). In Sonnier, Chi-solm-Ryder manufactured a tomato chopper for use in a commercial cannery at the Sugar Land Central Unit of the Texas Department of Corrections (now, Texas Department of Criminal Justice). Id. at 477. Twenty years later, the Sugar Land Central Unit stopped its tomato processing operations, and the Texas Department of Corrections moved the machine to the Ramsey Unit where it was installed in the same manner as part of a different production line. Id. Five years after the move, Sonnier had a portion of his arm severed while inspecting the machine. Id. A diversity action in federal court was defeated when a jury found the tomato chopper was an “improvement,” and the trial court entered a take nothing judgment. Id. The United States Court of Appeals for the Fifth Circuit certified the following question for the Texas Supreme Court:

Whether a person or entity that manufactures a tomato chopping machine “constructs ... an improvement to real property” for the purpose of qualifying for the protection of the Statute of Repose ... when that machine is originally installed by another party on real estate, then removed and reinstalled by such other party on real estate at a different location.

Id. The Court explained the statute of repose was not intended to grant repose to manufacturers in product liability suits, but only to preclude suits against those in the construction industry that annex personalty to realty. Id. at 479. There can be no improvement without annexation to realty, and until personalty is annexed to realty, it, by definition, cannot be an improvement. Id. The act was intended to protect those who actually alter the realty by constructing additions or annexing personalty to it, not to protect those who do no more than manufacture personalty that is later transformed by third parties into an improvement. Id. at 482. The court clarified that

The statute of repose governing the annexation at Sugar Land is not revivified by any activity occurring at another construction site. The subsequent annexation at Ramsey created a new 10-year repose period protecting those who annexed the personalty to the realty there, assuming the facts support a finding that the chopper was an improvement at Ramsey.

Id. at 483.

Hernandez argues it is undisputed that Koch did not participate in the construction of the steel slitter, and Jack E. Koch, the owner of Koch, even testified he “never saw the machine until it was in the process of being installed and erected at the job site.” Therefore, Koch is not a member of the class of businesses that can rely upon the statute of repose as a defense. Hernandez maintains the steel slitter was moved and re-installed in the location where Hernandez was hurt less than 10 years before he lost his arm. Hernandez contends that because Koch admits it had no involvement in the reinstallation of the steel slitter in the location where Hernandez was hurt, the statute of repose is not a defense for Koch. We agree.

Koch directs this Court to three cases which support its position. The first case, Jackson v. Coldspring Terrace Property Owners Ass’n, 939 S.W.2d 762, 763 (Tex. App. — Houston [14th Dist.] 1997, writ denied), involves allegations that the pool at Coldspring Terrace was negligently designed and did not have sufficient depth markings. The suit was brought by Robert Jackson after he was rendered a quadriplegic from diving in the pool. Id. The pool was constructed by Sam Gardner and his construction company in 1969. Id. Gardner was a licensee/franchisee of Blue Haven Pools (“BH”) and was given the right to sell BH pools and equipment. Id. BH did not participate in the actual construction of the pools. Id. Jackson sued numerous defendants alleging causes of action based on the strict liability theories of negligent design, manufacture and marketing, and breach of implied warranties. Id. at 764. One such defendant, KDI, was said to be a successor-in-interest to BH. Id. Jackson tried to obtain a finding that KDI was hable for BH and Gardner’s alleged negligence. Id. KDI asserted that it had nothing to do with the design and construction of the Coldspring pool and that Jackson’s claims were barred by the statute of repose. Id.

Fifteen years had elapsed between the construction of the Coldspring pool and Jackson’s injuries. Id. at 768. Seventeen years had elapsed between the construction of the Coldspring pool and Jackson bringing the action. Id. If the statute of repose had been applicable, it would have barred Jackson’s cause of action. Id.

Jackson maintained the statute did not apply to KDI, because it did not actually construct the pool. Id. In Sonnier, the supreme court held that the statute of repose does not “protect those who do no more than manufacture personalty that is later transformed by third parties into an improvement.” Sonnier, 909 S.W.2d at 478. In Jackson, there is no question Gardner was a manufacturer that constructed an improvement to real property, so Gardner would clearly fall within the statute’s protection. Jackson, 939 S.W.2d at 768. What about KDI? KDI presented summary judgment evidence that BH did not participate in the design or construction of the pools. Id. Because Gardner was wholly responsible for any defects in design and construction of the pools, KDI and BH’s liability, if any, would arise from the franchiser holding itself out as the manufacturer of the pool. Id. Gardner was the actual manufacturer of the pool; therefore, any defenses available to him are available to KDI and BH. Id.

Koch argues it is in the same position as BH. It marketed Cincinnati-Forte’s product, but was not involved in the design or construction. Any defenses available to Cincinnati-Forte as the actual manufacturer of the slitting line, are also available to Koch. We disagree with Koch’s argument and the holding in Jackson. BH did not participate in the actual annexation of the pool and therefore, should not have been afforded statute of repose protection. See Sonnier, 909 S.W.2d at 482.

Koch also relies on two appellate opinions from the same case. The Dubins’ daughter died of carbon monoxide gas emitted from a wall heater. Dubin, 731 S.W.2d at 652. (“Dubin I ”). They sued the company which designed and manufactured the heater (Williams Furnace), the corporation which marketed and distributed the heater (Carrier Corp.), the apartment owners, and the retail seller of the smoke alarm (Sears). Id. (“Dubin I”). Williams Furnace and Carrier Corp. filed motions for summary judgment asserting the statute of repose barred the actions against them. Id. at 653. The court concluded Williams Furnace and Carrier Corp. must conclusively establish the heater that they had designed and manufactured was installed in the decedent’s apartment more than 10 years prior to the commencement of the action and that the heater constituted an “improvement” to real property. Id. The court had insufficient evidence before it to determine when the heater was installed, and it remanded the case for resolution of that issue. Id. at 654. It did, however, address whether Williams Furnace and Carrier Corp. were within the class afforded protection by the statute of repose.

Whether Carrier Corp. was a supplier, or was a “person performing or furnishing construction or repair” to the apartments, turned on how Carrier Corp. functioned in that particular instance. Id. Although Carrier Corp. did not design, inspect, or install the improvement, the court concluded Carrier Corp. functioned as a manufacturer of an improvement to real property and was protected by the statute of repose. Id. at 655.

Carrier Corp.’s motion for summary judgment was granted on remand. The appeal of that summary judgment can be found in “Dubin II.” Dubin v. Carrier Corp., 798 S.W.2d 1 (Tex.App. — Houston [14th Dist.] 1989, writ dism’d by agr.). The Fourteenth Court of Appeals revisited the question whether the statute of repose applied to Williams Furnace. Id. at 2. It determined Williams Furnace was more than a mere materialman, because it did more than simply supply parts. Id. The court also addressed the alleged fact issue over the expiration of the requisite 10 years. Id. at 3. Williams Furnace and Carrier Corp. adduced evidence they had nothing to do with the heater during the more than 10 years following its installation. Id. That a third party might have altered the heat exchanger would in no way recommence the running of the statute against Williams Furnace and Carrier Corp. Id.

We decline to follow either Dubin opinion, because each was issued before Sonnier, and they relied on Ellerbe v. Otis Ele vator Co., 618 S.W.2d 870 (Tex.Civ.App.— Houston [1st Dist.] 1981, writ ref d n.r.e), a case which was specifically disapproved in Sonnier. See Sonnier, 909 S.W.2d at 479. In addition, neither Carrier Corp. nor Williams Furnace participated in the actual installation of the heater/improvement; therefore, they should not be afforded statute of repose protection.

We hold Koch was not entitled to statute of repose protection, because it was not sufficiently related to the actual attachment of the slitting line to the property. The attachment to the realty is what actually makes the slitting line an “improvement,” and in Sonnier, the supreme court held that the statute of repose does not “protect those who do no more than manufacture personalty that is later transformed by third parties into an improvement.” Sonnier, 909 S.W.2d at 482. It stands to reason that the statute of repose does not extend to protect those who market or broker the deal that is later transformed by third parties into an improvement. See id.

We hold the statute of repose does not protect Koch.

We sustain point of error one.

SUMMARY JUDGMENT ORDER

In Hernandez’s second point of error, Koch argues, in the event we hold that the statute of repose does not protect Koch, as we have, then we should turn to the merits of the ease.

On April 28, 1998, the trial court signed an order on the motions for summary judgment stating:

... it is further
ORDERED, ADJUDGED, and DECREED that [Hernandez’s] Motion for Partial Summary Judgment is in all things GRANTED; it is further
ORDERED, ADJUDGED, and DECREED that [Koch’s] Motion for Summary Judgment in connection with the Statute of Repose is hereby GRANTED; it is further
ORDERED, ADJUDGED AND DECREED that [Koch’s] motion for summary judgment in connection with the issues involving the Bill of Review is hereby DENIED.

Both parties superficially briefed the merits of Hernandez’s case, but it is the position of this Court that the merits were not ruled on. There is no Mother Hubbard clause in the order. Hernandez and Koch thoroughly briefed the statute of repose, but provided limited briefing on the merits of the case.

The Texas Supreme Court has held:

courts of appeals should consider all summary judgment grounds the trial court rules on and the movant preserves for appellate review that are necessary for final disposition of the appeal when reviewing a summary judgment. We further conclude that the appellate court may consider other grounds that the movant preserved for review and trial court did not rule on in the interest of judicial economy.

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996), (emphasis added). In Cincinnati Life, the Texas Supreme Court remanded the case to the court of appeals because the parties did not provide full briefing. Id. We refuse to rule on Hernandez’s point of error two pertaining to the merits of this case, because the parties have not fully briefed the merits.

BILL OF REVIEW

Koch filed an appeal in the event we sustained Hernandez’s point of error on the statute of repose. We have done so; therefore, we shall now consider Koch’s appeal.

Jurisdiction

Relying on Philbrook v. Berry, 683 S.W.2d 378 (Tex.1985), Koch contends this Court lacks jurisdiction over this appeal, because Hernandez filed his motion for new trial using the wrong case number.

Philbrook has been distinguished, explained, and questioned on several occasions. In Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex.1994), the Texas Supreme Court held the decisions of the courts of appeals should turn on substance rather than procedural technicality. Cronen v. County Storage Lot, 831 S.W.2d 895, 896 n. 3 (Tex.App. — Houston [1st Dist.] 1992, no writ). Furthermore, Hernandez’s actions constituted a bona fide attempt to invoke the appellate court jurisdiction. See Blankenship, 878 S.W.2d at 139.

We hold we have jurisdiction over this matter.

Bill of Review — Procedural Background

On March 9, 1994, Hernandez brought this bill of review in an effort to set aside the dismissal of his lawsuit. The basis of the bill was that Hernandez’s attorney was not notified of the dismissal. Koch answered the bill of review by denying Hernandez’s negligence and products liability claims, and Koch additionally raised the defense of statute of repose.

On December 29, 1997, Koch filed a motion for summary judgment asserting: (1) Hernandez could not prevail on his bill of review, because his own negligence contributed to the dismissal; (2) on the merits, Koch raised the statute of repose defense; and (3) also on the merits, Koch made a Rule 166(a)(1) argument that it was not negligent and its negligence did not proximately cause Hernandez’s injuries.

Hernandez filed a cross-motion for partial summary judgment on the statute of repose and a supplemental motion for partial summary judgment on the bill of review.

The trial court granted Koch’s motion for summary judgment on the statute of repose, but denied it with respect to the bill of review. The trial court granted Hernandez’s motion for partial summary judgment on the bill of review.

Factual Background on Bill of Review

The record shows on July 17, 1984, Michael Kerensky filed the original petition, but John Leach was designated the attorney of record for Hernandez from 1988 until April 1991. Leach was an associate with the law firm of the Law Offices of John M. O’Quinn & Associates. Between 1988 and 1990, Leach left the law firm and worked as a salaried employee for another firm, but Kerensky kept Hernandez’s case. In January of 1990, Leach left that firm and formed a partnership with another attorney. They later moved their offices to One West Loop South, Suite 100, Houston, Texas 77027. He occupied that address from January 1, 1990 until May 1, 1991.

Leach did not arrange to have a substitution of counsel or a designation of attorney of record filed when he left the Law Offices of John M. O’Quinn & Associates, and that firm did not notify the district clerk’s office that another attorney was now acting as attorney of record. As a result, from April 25, 1988 until April 9, 1991, Leach was shown as Hernandez’s attorney of record. In the intervening years, Leach notified the district clerk of his various address changes, and as of February 13, 1990, his mail for all cases in which he was listed as attorney of record was sent to the West Loop South address. Because the Law Offices of John M. O’Quinn & Associates did not notify the district clerk of the new attorney change, the clerk continued to treat Leach as the attorney of record.

In April of 1990, Leach received a postcard from the trial court indicating the Hernandez case was dismissed for want of prosecution. Leach notified Kerensky’s office regarding the notice of dismissal. On April 2, 1990, Kerensky filed a motion to retain the case, but did not notify the clerk that the postcard was sent to the wrong address or that he was actually the attorney in charge.

On November 6, 1990, the 80th District Court sent notification to all attorneys of record that the case would be dismissed for want of prosecution within 30 days. The dismissal notification was sent to Leach’s West Loop South office. Thirty days later, the court dismissed the cause for want of prosecution.

On March 26, 1991, Hernandez filed a motion to reinstate the dismissal of December 7, 1990. Despite Koch’s objection, the trial court reinstated the cause on April 5, 1991. Following the Texas Supreme Court’s decision in Levit v. Adams, 850 S.W.2d 469 (Tex.1993), the trial court dismissed the case for want of jurisdiction on December 15, 1993. In response, Hernandez filed this bill of review.

On December 29, 1997, Koch filed its second amended motion for summary judgment. Koch argued in its motion: (1) Hernandez could not assert and there was no evidence he was prevented from making his claims in the underlying lawsuit by any fraud, accident or mistake of Koch or based on mistake or error of the court personnel in the execution of official duties; (2) the dismissal of the underlying suit was the result of Hernandez’s failure to prosecute; and (3) Hernandez did not act diligently, and there is no evidence he acted diligently to preserve his rights, and the dismissal was mixed with his own negligence. Alternatively, Koch argued the statute of repose time-barred all Hernandez’s claims and there was no evidence Koch’s negligence, if any, proximately caused Hernandez’s injuries.

As previously stated, the trial court granted Hernandez’s motion for partial summary judgment allowing him to reinstate his case and proceed with a trial on the merits, and it granted Koch’s motion for summary judgment on the statute of repose which disposed of all claims before the court. We have already reversed the trial court’s decision on the statute of repose, so we shall now consider the propriety of the granting of Hernandez’s motion for partial summary judgment relating to the bill of review.

Bill of Review

A bill of review is an independent, equitable action brought by a party to a former action seeking to set aside a judgment no longer appealable or subject to motion for new trial. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998); Min v. Avila, 991 S.W.2d 495, 499 (Tex. App. — Houston [1st Dist.] 1999, n.p.h.). Because it is an equitable remedy, the bill is available only when a party has demonstrated due diligence and shown, through no fault of its own, that no other legal remedy was available. Caldwell, 975 S.W.2d at 537-38.

To succeed by bill of review, the petitioner must ordinarily allege and prove three elements: (1) a meritorious claim or defense; (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or a court official in the exercise of official duties; (3) unmixed with any fault or negligence of his own. Caldwell, 975 S.W.2d at 537; Nichols v. Jack Eckerd Corp., 908 S.W.2d 5, 8 (Tex.App. — Houston [1st Dist.] 1995, no writ).

Official Mistake/Misinformation

Before a lawsuit may be dismissed for want of prosecution, the trial court must mail notice of its intention to dismiss and the date and place of the dismissal hearing to each attorney of record to the address shown on the docket or in the papers on file. Tex.R.Civ.P. 165a(l); Osterloh v. Ohio Decorative Products, Inc., 881 S.W.2d 580, 582 (Tex.App.— Houston [1st Dist.] 1994, no writ). As a result, there are actually two notices sent — one to notify the parties of the intent to dismiss and one to notify the parties the case was dismissed. Hernandez asserts that he did not receive either.

Under the second element of the bill of review, Hernandez contends that the court personnel provided him with misinformation by not sending the notices to the address shown in the papers on file with the trial court. He argues that because Kerensky’s address was indicated on the transmittal letters and other documents in the court’s file, the officers of the court did not comply with Tex.Civ.P. 165a by mailing the notices to Leach, his previous attorney, despite the fact Leach was listed as the attorney of record. See Osterloh, 881 5.W.2d at 582.

In Osterloh, we held the clerk erred in mailing the notice of intent to dismiss to the attorney’s previous address, thus satisfying the second element of the test for a bill of review. Id. The clerk’s action was, however, a mistake, not misinformation.

Hernandez maintains he is relieved from proving the traditional requirements for a bill of review because a bill of review petitioner, who is prevented from filing a motion to reinstate due to the failure of the court clerk to properly notify the party that a dismissal was obtained, is subject to a “less onerous burden.” We disagree.

In Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974), the Texas Supreme Court held that, in a bill of review, the clerk’s failure to send a notice is treated the same as if the clerk provided misinformation. Earlier supreme court cases made a distinction between the two and held that if the clerk provided misinformation, the movant was held to a less onerous burden. Hanks v. Rosser, 378 S.W.2d 31, 35 (Tex.1964). Thus, under Petro, Hernandez was required to show the need for the bill of review was through no negligence of his own. Petro-Chemical Transport, Inc., 514 S.W.2d at 244. The “less onerous burden” only relates to the second element of the bill of review requirements. See Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.1979). In Petro, the Texas Supreme Court clearly mandated:

No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking relief or his counsel.

Petro-Chemical Transport, Inc., 514 S.W.2d at 246. This is still the law today.

Hernandez’s Lack of Negligence

In point one, Koch argues the trial court erred in denying Koch’s motion for summary judgment and granting Hernandez’s motion for partial summary judgment granting his bill of review, because Hernandez did not prove the third prong, that being that his own negligence did not contribute to the earlier dismissal.

It is generally held that a party to a lawsuit is charged with notice that the suit may be dismissed for want of prosecution when there is inaction for a long period of time. Lowe v. U.S. Shoe Corp., 849 S.W.2d 888, 891 (Tex.App. — Houston [14th Dist.] 1993, writ denied). Set forth below is a timetable of events:

7/17/84 Kerensky filed plaintiffs’ original petition
3/23/88 Leach designated as attorney in charge for Hernandez
3/25/88 Again, Leach designated as attorney in charge for Hernandez
12/88 Leach left law firm; did not take mained as attorney in charge in Hernandez case with him, but re- the clerk’s record
2/13/90 Leach notified clerk of change-of-address
4/90 Leach received postcard from dismissed for want of prosecution court indicating Hernandez was and told Kerensky’s office
4/2/90 Kerensky filed motion to retain, but did not notify clerk of designation of lead counsel
11/6/90 Trial court sent notice that case sent to Leach at address given to would be submitted to trial court clerk on 2/13/90 for dismissal on 12/7/90; notice
12/7/90 Trial court dismissed case; notice sent to all attorneys of record
3/26/91 Kerensky filed motion to reinstate
4/5/91 Trial court granted motion to reinstate
4/8/91 Kerensky filed designation of attorney of record — 2½ years after Leach left his firm
12/16/93 Trial court dismissed the ease based on Levit v. Adams 3/9/94 Hernandez filed his bill of review
4/7/95 Hernandez’s Answers to Koch’s Kerensky as working together at Interrogatories list Leach and same address
4/29/98 Trial court granted Hernandez’s motion for partial summary judgment

Hernandez had the burden of setting forth factually and 'with particularity that his or his counsel’s negligence did not cause the delay. See Cannon v. ICO Tubular Services, Inc., 905 S.W.2d 380, 384 (Tex.App. — Houston [1st Dist.] 1995, no writ).

His motion for partial summary judgment applied the wrong standard. It argued he simply needed to prove the dismissal was not intentional or the result of conscious indifference. In fact, Hernandez stated in his own motion, “Even when viewed in a light most favorable to [Koch], all the criticisms of Plaintiffs’ counsel amount to no more than a mistake or simple negligence.” This admission was verified by Kerensky who stated in his affidavit he had “read the foregoing Motion for Partial Summary Judgment and that the information contained therein is within [my] personal knowledge and is true and correct.” This admission alone defeats his summary judgment.

We sustain Koch’s point one and reverse the trial court’s decision granting Hernandez’s motion for partial summary judgment.

Having found Koch established, as a matter of law, Hernandez did not comply with the standard that is applicable in this case, it is not necessary for us to address Koch’s additional points of error pertaining to (1) an alternative finding that there is a fact question as to whether there was official mistake, thus precluding the trial court’s rendition of partial summary judgment; or (2) there was no evidence that Koch’s negligence, if any, proximately caused the injuries in question. We, therefore, do not rule on Koch’s points two and three.

CONCLUSION

We reverse the trial court and hold Koch was not entitled to statute of repose protection, because it was not involved in the actual attachment of the improvement to realty. In addition, we reverse the trial court and hold Hernandez was not entitled to partial summary judgment, because he did not prove the proper bill of review elements. There was no proof his own negligence did not cause the dismissal of his case, and in fact, he admitted the dismissal was the result of mistake or simple negligence. Hernandez’s case was improperly reinstated.

A majority of the justices of the Court voted to consider the case en banc, and a majority of the justices voted to distinguish Rund v. Trans. East, Inc., 824 S.W.2d 713 (Tex.App. — Houston [1st Dist.] 1992, writ denied) and Buckler v. Tate, 572 S.W.2d 562 (Tex.Civ.App. — Houston [1st Dist.] 1978, no writ), as set forth in the opinion above.

      . The Dubin II court regarded Dubin I’s classification of Carrier as the law of the case.

      . The actual order says “DENIED”, but it was marked through, and the trial court handwrote "GRANTED” and initialed the change.

      . On April 9, 1991, Kerensky filed a designation of attorney of record, naming himself as the attorney of record for Hernandez, in lieu of Leach.

      . The formal title of the law firm was Law Offices of John M. O’Quiim & Associates when Leach left. The name was later changed to O’Quinn, Kerensky & McAninch.

      . Hernandez does not allege Koch or its attorneys engaged in conduct which would be characterized as fraud, accident, or wrongful act.

      . Notice acquired by an attorney after the termination of the attorney-client relationship will not be imputed to the former client. Cannon v. ICO Tubular Services, Inc., 905 S.W.2d 380, 387 (Tex.App. — Houston [1st Dist.] 1995, no writ).

      . To the extent this Court has previously implied the third bill of review element need not be reached when there is misinformation as opposed to mistake, we hold Petro renders the difference immaterial. The movant still must prove his negligence did not cause the delay. We distinguish this case from Rund v. Trans East, Inc., 824 S.W.2d 713, 717 (Tex.App.— Houston [1st Dist.] 1992, writ denied) and Buckler v. Tate, 572 S.W.2d 562 (Tex.Civ. App. — Houston [1st Dist.] 1978, no writ).