author: McCALL, Justice.

text:
    Randall PERRY d/b/a Car Town, Appellant, v. Darrell BRELAND d/b/a Darrell Breland Motors, State Farm Mutual Automobile Insurance Company, and Gary Sporn, Appellees.
    No. 11-99-00197-CV.
    Court of Appeals of Texas, Eastland.
    April 13, 2000.
    Rehearing Overruled May 18, 2000.

      Robert E. Reich, Brownwood, for appellant.
    Frank R. Stamey, McMahon, Surovik, Suttle, Buhrmann, Hicks & Gill, Matthew E. Ritchie, Asbury & Asbury, Abilene, for appellee.
    Panel consists of: WRIGHT, J., and McCALL, J., and DICKENSON, S.J.

       Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

   OPINION

McCALL, Justice.

In his suit for breach of warranty and fraud, Randall Perry d/b/a Car Town claimed that he was the purchaser of a Suburban from Darrell Breland Motors. Because Breland had transferred the title at Perry’s request to Car Town, a car dealership owned by Barry Daniell, the trial court held that Perry lacked standing to sue Breland and dismissed his case. Perry also sued the original owner of the Suburban, Gary Sporn, and Sporn’s insurer, State Farm Mutual Automobile Insurance Company (State Farm), for conversion, breach of warranty, and negligence. The trial court granted summary judgment in favor of Sporn and State Farm. One of the grounds urged by Sporn and State Farm was collateral estoppel based upon a justice of the peace court’s finding that State Farm was entitled to ownership of the stolen Suburban. We reverse and remand.

Background Facts

Sporn, an individual in Austin, advertised for sale his 1989 Suburban that had been driven more than 165,000 miles. Sporn sold his Suburban for $5,500 to Wayne Worley d/b/a T & W Auto Sales in Bronte. Sporn transferred the certificate of title and possession of the Suburban to T & W Auto Sales. Although he swore to the accuracy of the odometer reading, Sporn left the mileage amount blank when transferring the title. Worley said that he would fill in the information and gave Sporn a $5,500 check from T & W Auto Sales. The next day, T & W Auto Sales sold the Suburban to Darrell Breland d/b/a Darrell Breland Motors in Abilene; the title assignment showed an erroneous odometer reading of 67,248 miles. Subsequently, T & W Auto Sales’ check to Sporn was returned marked “insufficient funds.”

Perry purchased the Suburban from Breland. Perry paid $6,400 for the Suburban with a draft on his business account with Mills County State Bank; the draft was signed by Perry, and he wrote “Car Town” beneath his signature. Vehicle purchases by licensed car dealers are exempt from retail sales tax. Perry did not have a dealer number, but he had been authorized to buy and sell vehicles in the name of Car Town, a licensed dealer. Therefore, Perry had Breland transfer the Suburban’s title to Car Town. Perry then sold the Suburban to Bennie Allcorn for $7,500, and Car Town assigned the title to Allcorn. The Texas Department of Transportation issued a title to the Suburban to Allcorn.

Shortly thereafter, the Texas Department of Public Safety took possession of the Suburban from Allcorn as a stolen vehicle. Worley was convicted of the theft of the Suburban in a Travis County district court. After Worley’s conviction, the Brown County Justice of the Peace Court held a property disposition hearing. State Farm had previously paid Sporn $5,400 under his policy of insurance for the loss resulting from the theft of the Suburban. Allcorn testified at the hearing. The justice of the peace court awarded possession of the vehicle to State Farm based upon a finding that State Farm was the owner of the vehicle. Allcorn informed Perry of the results of the justice of the peace court hearing. Perry reimbursed Allcorn the $7,500 purchase price, and Allcorn endorsed his certificate of title to the Suburban to Perry. Because of the justice of the peace court order, Perry was unable to have title issued to him.

Perry sued Breland, alleging contract, fraud, and deceptive trade practices claims. He joined State Farm and Sporn as defendants, asserting breach of contract, conversion, and negligence claims. The trial court dismissed Perry’s suit against Breland for lack of standing and granted summary judgment in favor of Sporn and State Farm.

Perry’s Standing

Standing is a component of subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 445-46 (Tex.1993). Therefore, the standard of review for an order of dismissal for lack of standing is the same as that for an order of dismissal for lack of subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, supra at 446. Thus, we “construe the pleadings in favor of the plaintiff and look to the pleader’s intent.” Texas Association of Business v. Texas Air Control Board, supra at 446, quoting Huston v. Federal Deposit Insurance Corporation, 663 S.W.2d 126, 129 (Tex.App.— Eastland 1983, writ refd, n.r.e.). When considering a plea to the jurisdiction, the trial court should look solely at the pleadings and must take all allegations in the pleadings as true. Washington v. Fort Bend Independent School District, 892 S.W.2d 156, 159 (Tex.App . — Houston [14th Dist.] 1994, writ den’d); Huston v. Federal Deposit Insurance Corporation, supra.

In support of the trial court’s order, Breland argues that Perry lacked standing because Daniell owned Car Town and its dealer general distinguishing number (dealer number). Breland acknowledges that Perry was authorized by Daniell to buy vehicles under the Car Town dealer number but contends that Car Town was the only proper plaintiff for two reasons. First, Perry did not have his own dealer number but acted as a dealer in his purchase from Breland; if the sale was to Perry as an individual, it violated TEX. TRANSP. CODE ANN. § 503.021 (Vernon 1999) and was void. Secondly, if he was an agent of Car Town, Perry could not maintain a suit in his own name based upon his principal’s contract. We disagree with both propositions.

Section 503.021 prohibits any person from engaging in business as a car dealer without a dealer number. When he purchases a vehicle for resale, a licensed dealer does not have to pay retail sales tax. TEX. TAX CODE ANN. § 151.302 (Vernon 1992). By having Breland transfer title to Car Town, Perry avoided paying the retail sales tax on his purchase. The fact that the name of Car Town was on the certificate of title is not conclusive of ownership. Evidence of the name in which an automobile is registered raises only “an administrative presumption” of ownership, and this presumption “vanishes when positive evidence to the contrary is introduced.” Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202, 204 (1944); Minter v. Joplin, 535 S.W.2d 737 (Tex.Civ.App. — Amarillo 1976, no writ). Perry’s pleadings alleged that he was the true purchaser of the Suburban, and he introduced evidence at the hearing on standing that he personally furnished the money. Unless Perry as an individual was precluded from having an interest in the Suburban under Section 503.021 because he did not have his own dealer number, Perry has standing to sue Breland.

We will assume that Perry was acting as a “dealer” in buying and selling the Suburban. There is no provision in TEX. TRANSP. CODE ANN. ch. 503 (Vernon 1999 & Supp.2000) which states that a transfer to a person acting as a dealer without a dealer number is void, and no Texas case has so held. However, the Certificate of Title Act, TEX. TRANSP. CODE ANN. ch. 501 (Vernon 1999 & Supp.2000), does provide in Section 501.073:

A sale made in violation of this chapter [501] is void and title may not pass until the requirements of this chapter are satisfied.

Despite Section 501.073, the courts have held that, even when the sale of a vehicle does not comply with the Certificate of Title Act, the sale may be considered a valid transaction as between the original parties. Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 24 (Tex.App. — Houston [1st Dist.] 1996, writ den’d); Pfluger v. Colquitt, 620 S.W.2d 739, 742 (Tex.Civ. App. — Dallas 1981, writ ref d n.r.e.). The same rule should apply to a violation of the provisions of Chapter 503. Thus, even if Perry had violated Section 503.021 by taking title in his own name, the transaction between Breland and Perry as an individual would not have been void. For purposes of standing, we assume as true Perry’s allegation that he was the true owner of the Suburban, not Car Town.

Breland’s argument that, if Perry was acting as an agent for Car Town, only Car Town as principal can sue, also fails to support a conclusion that Perry lacks standing. There are four exceptions to the rule that an agent may not maintain a suit in his own name based upon his principal’s contract: where the agent contracts in his own name; where the principal is undisclosed; where the agent is authorized to act as owner of the property; and where the agent has an interest in the subject matter of the contract. Wilson County Peanut Company v. Hahn, 364 S.W.2d 468, 470 (Tex.Civ.App. — San Antonio 1963, no writ). Perry accepted the contract with Breland by giving his own draft drawn on his own bank account; thus, the first exception applied. The second exception also applied. Breland did not discover the owner of Car Town until after this litigation was filed; thus, a fact finder may find that, at the time of the contract, if Perry was acting as an agent, it was for an undisclosed principal. Disclosure of a trade name does not amount to disclosure of a principal. Posey v. Broughton Farm Company, 997 S.W.2d 829, 832 (Tex.App. — Eastland 1999, pet’n den’d); Wynne v. Adcock Pipe and Supply, 761 S.W.2d 67, 69 (Tex.App. — San Antonio 1988, writ den’d); A to Z Rental Center v. Burris, 714 S.W.2d 433 (Tex. App. — Austin 1986, writ ref d n.r.e.). Disclosure of a principal must be at the time of the contract. Boyles v. McClure, 243 S.W. 1080 (Tex. Comm’n App.1922, judgm’t adopted); Posey v. Broughton Farm Company, supra at 832. An agent contracting for an undisclosed principal has the right to sue if it is apparent that the contract would be enforceable against him if the opposite party sued. See Moerbe v. Meece, 630 S.W.2d 278 (Tex. App. — Austin 1981), aff'd, Meece v. Moerbe, 631 S.W.2d 729 (Tex.1982); Eppenauer v. Davis, 272 S.W.2d 934 (Tex.Civ. App. — El Paso 1954, writ ref d n.r.e.).

Perry’s pleadings allege that he furnished the money for the purchase of the Suburban even though the title was conveyed by Breland to Car Town. Breland recognizes that an agent of a disclosed principal may sue in his own name where the agent has an interest in the subject matter of the contract. See Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946 (1894); Wilson County Peanut Company v. Hahn, supra at 470. However, Breland contends that Perry could not have an interest in the subject matter of this contract because Perry was not a licensed dealer as required under Section 503.021. Even assuming that a sale to Perry individually would have been void under Section 503.021, a proposition we have rejected, Perry’s furnishing of the money to pay Breland gave Perry an interest in the subject matter of the contract.

We sustain Perry’s first two points of error. We need not address his third point of error. Perry has standing to sue Breland.

The Summary Judgment Granted to Sporn and State Farm

A trial court should grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). A trial court properly grants summary judgment in favor of a defendant if the defendant either establishes all elements of an affirmative defense or disproves at least one element of the plaintiffs case. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant and indulges every reasonable inference and resolves any doubts in favor of the nonmovant. American Tobacco Company, Inc. v. Grinnell, supra at 425; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

Once the movant establishes a right to summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). The question is not whether the summary judgment proof raises fact issues with reference to elements of a claim or defense but whether the summary judgment proof establishes or disproves the elements of a claim or defense as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). When an appellant challenges the propriety of a summary judgment on specific grounds, the appellate court may only consider those grounds. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

Perry’s lawsuit against Sporn and State Farm consists of three causes of action: conversion; breach of contract; and negligence. A cause of action for conversion requires that a plaintiff prove that he or she is the owner of the property converted. See Artripe v. Hughes, 857 S.W.2d 82, 86 (Tex.App. — Corpus Christi 1993, writ den’d). In their motion for summary judgment on Perry’s conversion action, Sporn and State Farm set forth two grounds. First, Perry is collaterally es-topped from relitigating the issue of ownership of the Suburban because the Brown County Justice of the Peace Court decided that issue. Secondly, State Farm is the owner of the Suburban as a matter of law even if collateral estoppel does not apply. Sporn and State Farm moved for summary judgment on the breach of contract action claim, claiming that they had no contractual relationship with Perry, and on the negligence action, claiming that as a matter of law Sporn owed no duty to Perry.

A Sporn and State Farm Cannot Rely on Collateral Estoppel

In his fourth and fifth points of error, Perry argues that, before the Brown County Justice of the Peace Court’s order can constitute collateral estoppel on the issue of the Suburban’s ownership, Sporn and State Farm must establish that the justice court had jurisdiction to determine that question.

It is undisputed that the Suburban had a value in excess of $5,000. The Justice of the Peace Court is a court of limited jurisdiction, and its jurisdiction in civil matters is limited to those controversies involving not more than $5,000, exclusive of interest. TEX. GOV’T CODE ANN. § 27.031 (Vernon Supp.2000). Section 27.031, however, does provide that the jurisdictional limits set forth in the section are “[i]n addition to the jurisdiction and powers provided by.. .other law.”

Sporn and State Farm argue that another law, TEX. CODE CRIM. PRO. ANN. art. 47.01a(a) (Vernon Pamph. Supp. 2000), gave the Brown County Justice of the Peace Court jurisdiction over the stolen Suburban. Article 47.01a(a) provides:

If a criminal action relating to allegedly stolen property is not pending, a district judge, county court judge, statutory county court judge, or justice of the peace having jurisdiction as a magistrate in the county in which the property is held.. .may hold a hearing to determine the right to possession of the property. (Emphasis added)

Article 47.01a(a) gives the justice court a limited jurisdiction to determine the right to possession of the property only. Sporn and State Farm argue, however, that the justice court based its decision on possession upon its finding of ownership. They have cited no case where a justice court has circumvented its limited jurisdiction in this manner, and we decline to so hold. The justice court had no jurisdiction to determine ownership of the Suburban; therefore, the justice court’s order cannot be the basis for collateral estoppel.

There is an additional reason why Article 47.01a(a) did not provide a jurisdictional basis for the justice court’s finding. The parties all agree that the proceedings in the justice court occurred after Worley pleaded guilty to theft by check. Article 47.01a(a) speaks of “allegedly” stolen property. Property is only “allegedly” stolen when there has been no conviction for theft. Article 47.01a(a) also speaks of a criminal action “not pending.” A criminal action begins with an indictment or information. See TEX. CODE CRIM. PRO. ANN. ch. 21 (Vernon 1989 & Supp. 2000); see also Beaupre v. State, 526 S.W.2d 811, 814 (Tex.Cr.App.1975). A criminal action ends with an acquittal or the issuance of a mandate. If an acquittal occurs, the property is not stolen; if mandate issues, the property is not “allegedly” stolen. Therefore, Article 47.01a(a), by its plain language, applies only to a proceeding occurring before the presentment of an indictment or information. Once a criminal action is pending, jurisdiction to dispose of the property lies in the trial court conducting the criminal proceedings. TEX. CODE CRIM. PRO. ANN. art. 47.02 (Vernon Pamph. Supp.2000). The justice court had no jurisdiction under Article 47.01a(a) to determine ownership of the Suburban.

TEX. CIV. PRAC. & REM. CODE ANN. § 31.004 (Vernon 1997) specifically precludes Sporn and State Farm from being able to rely on the justice court for collateral estoppel:

(a) A judgment or a determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court, except that a judgment rendered in a lower trial court is binding on the parties thereto as to recovery or denial of recovery.
(c) For the purposes of this section, a “lower trial court” is a small claims court, a justice of the peace court, a county court, or a statutory county court. (Emphasis added)

Perry was not a party to the proceedings in the justice of the peace court. Even assuming there was jurisdiction to determine possession, the order of the justice court was binding only upon State Farm and Allcorn as to possession of the Suburban at that time. See Wren v. Gusnowski, 919 S.W.2d 847 (Tex.App. — Austin 1996, no writ).

We sustain Perry’s fourth and fifth points of error. It is unnecessary to address his sixth point of error because of our conclusion that the justice court lacked jurisdiction to determine ownership of the Suburban.

B. Spom and State Farm Have Not Established Ownership

In their motion for summary judgment, Sporn and State Farm sought to conclusively negate Perry’s claim of ownership of the vehicle. They contend that Worley as a thief could not transfer title to anyone. Chapman Motors, Inc. v. J.C. Taylor, 506 S.W.2d 724, 726 (Tex.Civ.App. — Waco 1974, writ refd n.r.e.). They also argued that the sale from Worley to Breland was void under the Texas Certificate of Title Act because the information set forth in the odometer disclosure statement was false and because Worley misrepresented his ownership of the Suburban.

Sporn and State Farm’s reliance on Chapman Motors is misplaced. The theft in that case involved a physical taking of the car from the car lot and the title from a desk inside the office of Chapman Motors. Theft by check differs in its effect on commercial transactions. Worley gave Sporn a check which was subsequently dishonored. Sporn transferred good title to Worley which was voidable once Worley’s check was dishonored. Leif Johnson Ford, Inc. v. Chase National Bank, 578 S.W.2d 792 (Tex.Civ.App.— Beaumont 1978, no writ). Sporn and State Farm argue that Leif Johnson Ford is distinguishable because there was no violation of the Texas Certificate of Title Act in that" case whereas, in the present case, Worley violated the Act by filling in an erroneous odometer reading. The delivery of an incorrect odometer disclosure statement does not in itself void an otherwise enforceable transaction. Jarrin v. Sam White Oldsmobile Co., supra. When he conveyed the Suburban to Breland, Worley held a voidable title; thus, there was no violation of the Texas Certificate of Title Act by Worley representing himself as the owner at that time.

Sporn and State Farm contend that Jar-rin simply follows the line of cases holding that two parties may transfer title to a motor vehicle even though the requirements of the Texas Certificate of Title Act are not met. They further contend that Phil Phillips Ford, Inc. v. St. Paul Fire and Marine Insurance Company, 465 S.W.2d 933 (Tex.1971), requires that any violation of the Act renders the transfer void as to third parties. Under this reasoning, the incorrect odometer disclosure statement would void the conveyance between Spom and Worley when considering Perry’s rights. We believe that Sporn and State Farm read Phil Phillips Ford too broadly.

The precedential value of Phil Phillips Ford is unclear because the Supreme Court affirmed the summary judgment on a ground not mentioned in the motion for summary judgment. Furthermore, the violation of the Texas Certificate of Title Act was that:

It is apparent from the record that Dignan failed to comply with the statute. He did not sign his Texas certificate of title at the time it was issued, and he did not sign the reverse side of the certificate at the time of his sale to Ford. His signature on the reverse side would have required his affidavit that there were no hens on the vehicle other than those indicated. At the time the vehicle was repossessed, Dignan had not executed either the front or back side of his certificate of title. Dignan gave Phillips his power of attorney and certainly Phillips had the right to take all necessary steps to comply with the statute and transfer the title certificate from Dignan to Ford or another. See, Freeberg v. Securities Investment Co., 331 S.W.2d 825 (Tex. Civ.App.1960, writ ref.).

The Supreme Court implied that the opposite result would have been reached if Dignan had signed and properly transferred the certificate of title to Ford or if Phillips had exercised his authority to execute the transfer. The violation of the Texas Certificate of Title Act was clear to anyone investigating Ford’s chain of title. In our case, the only violation of the Texas Certificate of Title Act was that Worley filled in an erroneous odometer reading. To agree with Sporn and State Farm would mean that any misstatement of an odometer reading would void a transfer of a vehicle despite the error not being obvious to a subsequent purchaser.

We decline to hold that such a violation of the Texas Certificate of Title Act voids a transfer as to third parties later in the chain of title. It would be too onerous a burden on commerce if every purchaser of an automobile has to verify the odometer reading of every transfer in his chain of title or risk there being a void transaction. See Jarrin v. Sam White Oldsmobile Co., supra at 24. Sporn and State Farm did not establish their ownership of the Suburban as a matter of law.

We sustain Perry’s seventh, eighth, and tenth points of error.

C. Perry’s Breach of Contract Claim Against Sporn and State Farm

Sporn and State Farm moved for summary judgment on Perry’s breach of contract claim on the ground that they had no contractual relationship with Perry. A claim for breach of warranty against a remote vendor of personal property may be sustained without contractual privity between the plaintiff and the remote vendor. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977); Mitchell v. Webb, 591 S.W.2d 547, 551 (Tex.Civ. App.—Fort Worth 1979, no writ).

Sporn and State Farm argue that, in any case, Sporn has no obligation to honor any warranty of good title because he was not compensated for it by Worley. In the limited record before us, it would appear that Sporn did not breach his warranty of title because he did transfer voidable title to Worley. In the interest of justice, however, this issue should be included in our remand. TEX.R .APP.P. 43.3.

We sustain Perry’s ninth point of error.

D. Perry’s Negligence Action

Section 501.072(a) of the Texas Certificate of Title Act provides that Sporn had a duty to provide his buyer with an accurate odometer reading:

Except as provided by Subsection (c), the seller of a motor vehicle sold in this state shall provide to the buyer, on a form prescribed by the department, a written disclosure of the vehicle’s odometer reading at the time of the sale.

Sporn admitted that he authorized Worley to fill in the odometer reading. Perry contends that, if he had known the Suburban had been driven 165,000 miles and not 65,000 miles, he would not have paid Bre-land the amount that he did pay. Section 501.072(a) imposed a duty on Sporn to fill in an accurate odometer reading. We are not prepared at this time to say that this duty does not extend to remote buyers of the vehicle. Sporn did not conclusively establish that he was not negligent.

We sustain Perry’s eleventh point of error.

This Court’s Ruling

We reverse the judgment of the trial court and remand this cause for further proceedings.

      . TEX. TRANSP. CODE ANN. § 503.001 (Vernon 1999) defines a dealer as "a person who regularly and actively buys, sells, or exchanges vehicles at an established and permanent location.”

        . Even if he had simply loaned the money to Car Town, Perry would be a purchaser within TEX. BUS. & COM. CODE ANN. § 1.201 (Vernon 1994 & Supp.2000). See Leif Johnson Ford, Inc. v. Chase National Bank, 578 S.W.2d 792, 794 (Tex.Civ.App. — Beaumont 1978, no writ).

      . Since Worley d/b/a T & W Auto Sales appears to have been a dealer, it is not clear that his transfer to Breland, another dealer, had to comply with the Texas Certificate of Title Act. Motor Inv. Co. v. Knox City, 141 Tex. 530, 174 S.W.2d 482 (1943); Najarian v. David Taylor Cadillac, 705 S.W.2d 809, 811 (Tex.App.— Houston [1st Dist.] 1986, no writ); National Auto. & Cas. Ins. Co. v. Alford, 265 S.W.2d 862, 865 (Tex.Civ.App. — Eastland 1954, writ ref’d n.r.e.). Section 501.002(16) of the Act defines an "[ojwner” as “a person, other than a. ..dealer,” and Section 501.071 provides that “[a] motor vehicle may not be the subject of a subsequent sale unless the owner designated in the certificate of title transfers the certificate of title at the time of the sale.” But see Gallas v. Car Biz, Inc., 914 S.W.2d 592 (Tex.App. — Dallas 1995, writ den’d). (Emphasis added)


source: Caselaw Access Project

author: EARL B. STOVER, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. David Ray ATWOOD, Appellee.
    No. 09-99-186 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 18, 1999.
    Decided April 19, 2000.

      Michael R. Little, Dist. Atty., Michael A. Mark, Asst. Dist. Atty., Liberty, for State.
    Ragis Fontenot, Jr., Liberty, for appel-lee.
    Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

EARL B. STOVER, Justice.

A jury convicted appellee David Ray Atwood of the offense of felony evading arrest. Based on prior offenses charged in the indictment and found by the jury, the trial court sentenced him to twenty years’ confinement in the Texas Department of Criminal Justice — Institutional Division and assessed a $1,000 fine. After Atwood appealed his conviction and sentence, the case transferred from the Ninth District Court of Appeals in Beaumont to the Sixth District Court of Appeals in Tex-arkana. The Texarkana court affirmed his conviction for the Class A misdemeanor offense of evading arrest, but reversed and remanded the cause to the trial court for a new trial on punishment. See Atwood v. State, 972 S.W.2d 880, 882 (Tex.App-Tex-arkana 1998, petref d). Following the appellate court’s reversal on punishment, the state then filed a petition for discretionary review, which was subsequently refused by the Texas Court of Criminal Appeals. Upon retrial of the punishment phase, the trial court sentenced Atwood as a misdemeanor to a term of one year in the Liberty County jail.

On appeal, the State contends the trial court’s punishment is an illegal sentence. See Tex.Code CRiM. PROC. Ann. art. 44.01(b) (Vernon Supp.2000). (An illegal sentence may be appealed by the State.). Specifically, the State claims the trial court erred on remand by assessing a one year sentence for an offense “which [in reality] is a state jail felony enhanced up to a second degree felony....” Under the State’s theory, rather than a one year sentence, the trial court on remand should have sentenced Atwood to a second degree felony of not less than two and not more than twenty years.

In support of its theory, the State relies upon the language of the evading arrest statute which provides that a person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him. See Tex. Pen.Code Ann. § 38.04(a) (Vernon Supp.2000). The statute further provides that an offense under this section is a Class B misdemeanor, except that the offense is a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has previously been convicted under this section. Id. § 38.04(b)(2). It is the State’s position that the misdemeanor evading arrest is enhanced to a state jail felony upon proof of a prior conviction for evading arrest. Thus, in the State’s view, section 38.04(b)(2) does not contain language denoting an element of the offense, but instead contains language pertaining merely to punishment enhancement.

In contrast, Atwood argues that the trial court on remand was correct in sentencing him as a misdemeanant rather than a felon. From his perspective, a “prior evading arrest conviction that elevates a misdemeanor to a felony is a jurisdictional element of the charged felony offense,” which must be proved at the guilt/innocence phase of the trial. Acknowledging it failed to prove the prior evading arrest offense during guilt/innocence, the State instead contends such proof is actually part of the punishment phase of the trial. Only after the case was appealed by Atwood and remanded by the Texarkana court for a new punishment hearing, did the State put on its proof concerning the prior evading arrest conviction.

The State directs us to Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), where the United States Supreme Court held that the Double Jeopardy Clause does not preclude a retrial on a prior conviction allegation in a non-capital sentencing context. Id. at 734, 118 S.Ct. at 2253, 141 L.Ed.2d at 628. Any support from the Monge opinion, however, depends upon the punishment issue’s being a legitimate enhancement issue rather than an actual element of the offense.

On appeal, Atwood argues his sentence cannot be enhanced by the prior evading arrest conviction, because the prior conviction, rather than a punishment factor, is actually an element of the offense. According to Atwood, the State has the burden of proving the prior evading arrest conviction during the guilt/innocence phase of the trial. To allow proof to be made at the retrial on punishment would constitute, in Atwood’s view, a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

In support of his position, Atwood contends that the felony evading arrest offense is similar to the offense of felony DWI. In Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000), the Court of Criminal Appeals addressed the issue of whether the State is required to actually prove two previous DWI convictions in order to prosecute a defendant for felony DWI or whether a defendant’s stipulation admitting those two previous convictions is sufficient. The Court held:

Regarding the former issue, this Court held that when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction. See Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App.1980); Gant v. State, 606 S.W.2d 867, 871 (Tex. CrimApp. [Panel Op.] 1980). Nevertheless, it is not the reading of the indictment that vests the trial court with jurisdiction. Rather jurisdiction vests when the pleadings are submitted to the trial court and contain the requisite number of previous convictions. Therefore, this rule guides us as to what the State should present to the trial court, not necessarily what the State should tell and prove to the jury.

Id. at 201. The Court went on to hold that the State is not required to read an indictment containing the jurisdictional prior convictions to the jury; the pleading of two prior DWI convictions in the indictment is sufficient to confer jurisdiction. The holding, however, prohibits the reading of prior convictions that are for enhancement purposes only when the defendant stipulates to two prior DWI convictions.

In Tamez, the Court of Criminal Appeals continued to treat two prior DWI convictions as essential elements of felony DWI. See also Renshaw v. State, 981 S.W.2d 464, 466 (Tex.App. — Texarkana 1998, pet. ref d) (Prior DWI’s are elements of the offense and part of the proof at the guilt/innocence stage for a felony DWI prosecution.). The Court also referenced two prior cases that had earlier applied the same principle to theft convictions. Just as two prior DWI’s are essential elements of the offense of the felony DWI, prior theft offenses are also jurisdictional elements when they are used to elevate what would be a misdemeanor theft offense to a felony theft. See Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App.1980); Gant v. State, 606 S.W.2d 867, 871 (Tex. Crim.App.1980).

In Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350, 357 (1998), the United States Supreme Court considered the question of whether a provision in a particular statute defined a separate crime or simply authorized an enhanced penalty. That, in effect, is the preliminary question before us as well. Is section 38.04(b)(2) a penalty provision or is it a separate crime, the elements of which must be proved at the guilt/innocence phase of trial? As noted by the United States Supreme Court in Jones v. United States, 526 U.S. 227, 232, 119 S.Ct. 1215, 1219, 143 L.Ed.2d 311, 319 (1999), “much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” In making the determination of whether the portion of the statute in question is an element of the offense or a sentencing factor, we look, as did the United States Supreme Court in Almenda-rez-Torres, to the statute’s language, structure, subject matter, context, and history. Almendarez-Torres at 228-29, 118 S.Ct. at 1223, 140 L.Ed.2d at 358. We note first that the title of section 38.04 does not mention the word “penalty,” as did the pertinent statute in Almendarez-Torres. Nor is the subject matter of section 38.04 recidivism, as was the case with the statute in Almendarez-Torres. Instead, the subject matter of section 38.04 is the actual offense of evading arrest and its aggravating elements. See generally Jones, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (Court interpreted 18 U.S.C. 2119 as setting out separate and aggravated offenses rather than a single offense with various sentencing factors.). As in Jones, the structural pattern of the statute, both now and prior to its amendment in 1993, supports the conclusion that the subsections of section 38.04 are elements of the offense.

In addition to the fact that section 38.04 sets out the actual offense, subsection (b)(2) sets out two requirements for making the offense a state jail felony: the actor must have used a vehicle while in flight and must have been previously convicted of an offense under section 38.04. One of those requirements — the use of a vehicle while in flight — has nothing to do with recidivism, and it is joined with the requirement of a prior conviction of evading arrest. With the joinder of the two requirements in subsection (b)(2), one of which clearly has nothing to do with recidivism, we conclude they both are elements of the felony offense of evading arrest.

It is also instructive to note that the remaining subsections in section 38.04 follow the same pattern. The evading arrest offense is a Class A misdemeanor if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section; the offense is a third degree felony if another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; the offense is a second degree felony if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight. See § 38.04(b)(l)-(4). The structure is consistent with other statutes in the Texas Penal Code which treat such matters as aggravating elements of the offense. See Tex. Pen.Code Ann. §§ 22.01, (assault), 22.041 (abandoning or endangering a child), 31.03 (theft), 49.09(DWI) (Vernon Supp.2000).

In the instant case, the State attempted to elevate a misdemeanor evading arrest offense to a state jail felony based, in part, on a prior conviction for evading arrest. We conclude, that, as is the case with prior offenses in DWI and theft cases, a prior offense of evading arrest is an element of the offense of felony evading arrest and must not only be included in the indictment, but must also be proved at trial. The State has acknowledged it did not prove the prior conviction at trial. Having failed to prove an element of the offense during the guilt/innocence phase of the trial, the State cannot, in effect, retry Atwood for the same crime and thereby violate the Double Jeopardy Clause of the United States Constitution.

“The Double Jeopardy Clause ... embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App.1994). In Atwood’s original appeal, the Texarkana court found the evidence was insufficient to prove the prior evading arrest offense; thus, he was, in effect, acquitted of the felony offense of evading arrest and convicted only of a Class A misdemeanor evading arrest. See Monroe v. State, 871 S.W.2d 801, 803 (Tex. App. — Houston [14th Dist.] 1994, no pet.) (A defendant convicted of a lesser included offense is impliedly acquitted of the greater offense.). To give the State a “second bite at the apple” in attempting to prove up the prior evading arrest would be to subject Atwood to double jeopardy.

Citing Tex. Const, art. V, § 12(b), the State urges that proof of the prior evading arrest offense is not necessary to confer jurisdiction on the trial court. According to the State, the filing of the indictment confers jurisdiction on the district court. Here, the indictment alleged felony evading arrest, an offense over which the district court had jurisdiction. We agree with the State that the indictment alleged a felony, and the district court had jurisdiction to hear the case. What the State faded to do, however, was prove all of the elements of the offense at the guilt/innocence phase of the trial. As the Texarkana court held, all the State proved at trial was a Class A misdemeanor punishable by a maximum fine of $4,000 and a confinement in jail of one year or less. Tex. Pen.Code Ann. § 12.21 (Vernon 1994). On remand for punishment, the trial court meted out punishment within the appropriate statutory range. We hold the trial court was correct in sentencing Atwood as a misdemeanant, rather than a felon, and the sentence is not illegal. The State’s issue is overruled.

The judgment is affirmed.

      .The evading arrest statute is quoted below:
      § 38.04. Evading Arrest or Detention
      (a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.
      (b) An offense under this section is a Class B misdemeanor, except that the offense is:
      (1) a Class A misdemeanor if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
      (2) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section;
      (3) a felony of the third degree if another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
      (4) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.
      (c) In this section, "vehicle” has the meaning assigned by Section 541.201, Transportation Code.
      (d)A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.
      Tex. Pen.Code Ann. § 38.04 (Vernon Supp. 2000).

      . The sentence was to run concurrently with Atwood’s twenty year sentence for theft of property.

      . The Texarkana court's reversal on punishment was based, in pertinent part, on Atwood’s claim of insufficient evidence to prove the prior conviction pleaded by the State in the indictment. Atwood, 972 S.W.2d at 881. There being no evidence of the prior conviction, the Sixth Court of Appeals affirmed the conviction of the Class A misdemeanor offense of evading arrest, rather than felony evading arrest. Id. at 882. The issue before us is distinct from that before the Texarkana court of appeals. Their issue was insufficiency of the evidence to support the prior conviction; our issue is the question of the legality of the one year sentence handed down by the trial court after remand.

      . In Almendarez-Torres, the United States Supreme Court concluded the federal statute in question had to do with recidivism and was not a separate offense. Almendarez-Torres at 247, 118 S.Ct. at 1233, 140 L.Ed.2d at 371. In Jones, the court considered another federal statute and found the subsections in question each constituted a separate offense and were not sentencing factors. See Jones, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311.


author: MICHOL O’CONNOR, Justice.

text:
    Shawn Gregory LLANO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00852-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 20, 2000.
    Rebecca Stewart Coulson, Houston, for appellant.
    Calvin Hartmann, John B. Holmes, Houston, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MICHOL O’CONNOR, Justice.

Shawn Gregory Llano, the appellant, pled guilty, with an agreed recommendation on punishment, to possession of less than one gram of cocaine. The appellant was sentenced to eight months confinement. In a single point of error, the appellant asserts the trial court erred by not holding a hearing on various pro se pleadings that he contends were motions for new trial. We affirm.

Background

On June 9, 1999, the trial court signed the judgment on the appellant’s guilty plea. On July 7,1999, the appellant filed a hand-printed pro se “Notice of Appeal,” in which he claimed his conviction was unjust and prayed for “his conviction to be appealed so that justice be served.”

On the same day, he filed a typed pro se “Amended Motion to Appeal,” in which he claimed he would show that he was unaware of the consequences of his plea, he was mislead or harmed by the trial court’s admonishments, his attorney “did not put him in as favorable light as possible,” and he feared a backlash if he did not plead guilty. He ended by stating, “Plaintiff denies this conviction and appeals his sentence. Plaintiff prays for a hearing on this Appeal to be set without prejudice.” Attached to the motion was a list of witnesses, the purpose of which is unclear.

On July 20, 1999, the appellant filed a pro se “Second Amended Motion to Appeal,” in which he expanded on his motion of July 7. He again prayed for a “hearing on his Appeal to be set without prejudice and that Justice be served.”

No hearing was held to consider the pleadings, and the trial court did not rule on the pleadings.

Discussion

The State contends the appellant’s pleadings were notices of appeal and not motions for new trial. We note that the appellant included in the pleadings a request for a hearing on his assertions that his plea was not voluntary. Therefore, although titled as notices of appeal, it is reasonable to construe the substance of the pleadings as a request for a new trial. Accordingly, we consider whether the trial court erred by not holding a hearing on the appellant’s pro se motion for new trial.

The appellant was represented by retained trial counsel when he filed the July 7 pleadings. The appellant was represented by appointed appellate counsel when he filed the July 20 pleading. Because the appellant was represented by counsel, the trial court was not required to consider the pro se pleadings. See Busselman v. State, 713 S.W.2d 711, 714 (Tex. App.- — Houston [1st Dist.] 1986, no pet.) (once defendant retained an attorney, the trial court was entitled to look solely to the attorney); see also Hall v. State, 685 S.W.2d 435, 437 (Tex.App. — Houston [1st Dist.] 1985, pet. refd) (after trial court appointed appellate counsel, the defendant, without notice to his counsel, executed a pro se motion in arrest of judgment; the motion was not acted upon and overruled by operation of law; holding that the pro se motion was not duly and properly presented for trial court’s consideration because it was filed by the defendant while he was represented by appointed counsel). Therefore, we hold that the trial court did not err in not considering the appellant’s pro se motion for new trial.

We affirm the trial court’s judgment.

      . The appellant’s pro se notices of appeal actually served two purposes. They gave notice of appeal and they included grounds for a new trial. Because the pro se notices of appeal did not comply with Texas Rule of Appellate Procedure 25.2(b)(3), on August 26, 1999, this Court ordered the appellant to file an amended notice of appeal. An amended notice of appeal was filed by appellate counsel, which complied with Rule 25.2(b)(3), and stated that the appellant intended "to appeal ... as set out in his pro se notice of appeal and amended pro se notice of appeal, attached hereto for the Court's consideration.” Thus, the errors in the pro se notices of appeal were corrected.


author: MURRY B. COHEN, Justice.

text:
    Kevin FISHER, Appellant, v. LEE AND CHANG PARTNERSHIP, Realand USA, Inc. and Allen M. Wu, Appellees.
    No. 01-99-00929-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 20, 2000.

      James R. Jones, Houston, for appellant.
    Jeffery A. Addicks, Nicholas E. Zito, Houston, for appellees.
    Panel consists of Justices COHEN, HEDGES, and ANDELL.
   OPINION

MURRY B. COHEN, Justice.

This is an appeal from a take-nothing summary judgment granted in a premises liability case, pursuant to sec. 95.003 of the Texas Civil Practices and Remedies Code. We affirm.

Facts

On December 4,1996, appellant fell from a ladder while working on a Videoland store, located on land owned by Lee & Chang Partnership (“Lee”). Appellant was employed by Nicole Electric, a contractor hired by Videoland to work on roof-mounted air conditioning units. Appellant sued Lee, the property owner, and Realand USA, Inc. (“Realand”) and Allen Wu, the property managers.

Lee won a traditional summary judgment, pursuant to sec. 95.003. See Tex.R. Civ. P. 166a(c). Realand and Wu then moved for summary judgment under both traditional and no-evidence standards, which was granted. See Tex.R. Crv. P. 166a(c), (i).

Appellees assert that under sec. 95.003, a property owner is not liable for injury unless it exercised or retained control over the contractor’s work and knew of the danger, and they did not do so. Appellant contends that sec. 95.003 does not apply to these facts, and further, a fact issue exists about whether appellees had control and failed to warn of the defect.

Analysis

In the first through third points of error, appellant contends the trial court erred in granting Lee’s summary judgment.

A. The Scope of Sections 95.002-.003

Appellees contend that sec. 95.003 shields them from liability for appellant’s injuries. Appellant contends that sec. 95.003 does not apply to these facts. Section 95.003 provides:

A property owner is not liable for personal injury, death or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. civ. PRAC. & Rem. code Ann. § 95.003 (1999).

The scope of Chapter 95 is governed by sec. 95.002:

This chapter applies only to a claim:
(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

Tex. Crv. Prac. & Rem.Code Ann. § 95.002 (1999). Appellant contends that under sec. 95.002(2), Chapter 95 would apply only if he had been injured by the very improvement he had worked on, i.e., the air conditioner.

We will read secs. 95.002 and 95.003 together to effectuate their purposes and examine them as a whole, rather than by isolated portions taken out of context. See Hammond v. City of Dallas, 712 S.W.2d 496, 498 (Tex.1986). We will seek to ascertain and follow the legislature’s intent. See Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982). If the statute is susceptible to two constructions, one of which will effectuate and the other defeat legislative intent, we will settle upon the former construction. Bernard Hanyard Enter. v. McBeath, 663 S.W.2d 639, 643 (Tex.App.— Austin 1983, writ ref d n.r.e.). The legislature’s intent is determined from the plain and common meaning of its words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). Because no cases have construed Chapter 95, we will examine both its language and its legislative history.

B. The Statute’s Language

Sec. 95.002 clarifies the scope of sec. 95.003. It provides that the statute pertains to personal injuries “that arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement.”

Sec. 95.003 provides that a property owner is not hable for “... injury ... arising from the failure to provide a safe workplace.... ” The ladder was an unsafe part of appellant’s workplace, and his injury arose from the failure to provide a safe workplace. The statute does not require that the defective condition be the object of the contractor’s work. Therefore, by affording the statute its common meaning, secs. 95.002 and 95.003 are consistent and may both be read to provide protection from liability if the injury arose from the contractor’s work on an improvement to real property. Here, it did. Appellant used the ladder to reach the roof to perform his job, the repair of air conditioning units.

C. The Statute’s History

Chapter 95 was passed by the 74th Legislature as part of Senate Bill 28 in order to change tort law regarding joint and several liability. Rep. Combs, a bill sponsor, stated its purpose:

[I]t recognizes the fact that there are a number of property owners who do not exercise control over construction projects beyond simply hiring someone to do it, and you do not have any knowledge of any defect on the property. In that case, there is no -liability to the property owner for personal injury, death, or property damage to a contractor, subcontractor, or an employee of those who are working on that piece of property who constructs, repairs, etc. an improvement on there.

Debate on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. 11-152 (May 3,1995) (statement of Rep. Combs) (attached as an appendix to Realand and Wu’s brief). Contrary to appellant’s contention, nothing in the legislative history indicates the statute applies only if the contractor was injured by the very object he was repairing.

Reps. Combs and Turner discussed a hypothetical contractor injured when scaffolding at Phillips Petroleum Company collapsed as he used it to reach his work site. Rep. Combs explained that if Phillips Petroleum exercised control over the contractor’s work and knew the scaffolding was bad, then it would be liable. In this example, the contractor was not working on the defective scaffolding itself, yet, according to Rep. Combs, the statute was intended to apply. Debate on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. 11 — 153 (May 3, 1995) (statement of Rep. Combs).

Statements by the bill’s co-sponsor, Rep. Junell, give further support:

If there is an incident that is not related to the work being done by the contractor and subcontractor, then this chapter does not apply to that. So if you have an explosion that’s not related to anything that the contractor and subcontractor are doing for their purpose of being there, then this chapter would not apply.

Debate on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. 11-157-58 (May 3, 1995) (statement of Rep. Junell). Rep. Junell stated that the injury-producing defect must relate to the contractor’s work for Chapter 95’s protections to apply. He did not suggest, as does appellant, that the injury-producing defect must be the object of the contractor’s work.

Rep. Eiland later asked about contractors injured by a chemical release at Phillips Petroleum Company. Rep. Junell responded that Chapter 95 did not apply to an incident that was “not related to the work being done by the contractor ...”. Debate on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. 11-157-58 (May 3, 1995) (statements of Reps. Eiland and Junell). By implication, the statute would apply to injuries related to the contractor’s work.

D. Conclusion

The legislative history supports the conclusion that section 95.003 protects appel-lees. The scaffolding example, used by the legislators in discussing the applicability of the statute, described a tool used for construction, not an improvement that was being repaired or modified itself. The ladder here is like the scaffold in the legislative history. It provided appellant a means to reach his work site. It was not the object of his work. Nevertheless, appellant’s injuries arose from “the failure to provide a safe workplace.” See Tex. Crv. PRAC. & Rem.Code Ann. § 95.003.

We conclude that both the plain language and the legislative history of Chapter 95 are contrary to appellant’s contention that the premises defect must exist within the specific object the contractor is repairing.

Uncontroverted evidence showed that Lee did not know of the defect. Nicole Electric employees, including appellant, knew of the danger and used the ladder anyway. Pursuant to Chapter 95, Lee owed a duty to warn only of known dangers. Therefore, Lee did not violate any duty to warn appellant. See Tex. Civ. Prac. & Rem.Code Ann. § 95.003(2).

We overrule the first, second, and third points of error.

In the fourth through seventh points of error, appellant contends that Realand and Wu were not entitled to summary judgment based on sec. 95.003 because sec. 95.003 protects only property owners and no evidence showed Realand or Wu owned this property.

Connie Lee, agent of Lee & Chang Partnership, testified the partnership owned the property, and that Wu, who was Rea-land’s agent, looked after the property for her, although they had no formal agreement. Appellant contends that Realand and Wu, Realand’s agent, cannot claim the protection of sec. 95.003 because they were not “property owners,” which is the class protected by the statute. We disagree.

Appellant alleged in his pleadings that Wu and Realand were agents, representatives, or employees of Lee, the owner. As such, they would also be protected by sec. 95.003. We hold that sec. 95.003 applies to property owners and also to their agents who oversee their properties. See Berry Prop. Management, Inc. v. Bliskey, 850 S.W.2d 644, 658 (Tex.App.— Corpus Christi 1993, writ granted, order withdrawn, dismissed by agreement) (construing the tern “landlord” in the Texas Property Code also to encompass a property manager).

Under sec. 95.003, recovery is not permitted unless the owner exercised or retained control over the work and knew of the dangerous condition. In his brief, appellant states that he does not contend that Realand or Wu retained or exercised control. Appellant presented no evidence that Realand or Wu knew the ladder was dangerous.

Under the no-evidence summary judgment standard, “the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding.” Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 799 (Tex.App.— Houston [1st Dist.] 1998, petdenied). Appellant failed to carry his burden to produce evidence of either control or knowledge.

We overrule the fourth through seventh points of error.

We affirm the judgment.

      . Appellant relies on Coastal Marine Service of Texas, Inc. v. Lawrence, 988 S.W.2d 223 (Tex. 1999), but the accident there occurred before the effective date of Chapter 95. This accident occurred after September 1, 1996, the effective date of Chapter 95. Therefore, Coastal Marine Service does not control.

      . “Property owner” is “a person or entity that owns real property primarily used for commercial or business purposes.” Tex. Civ. Prac. & Rem.Code Ann. § 95.001(3).


author: ROSENBERG, Justice (Assigned).

text:
    Erma RAYFORD, Individually, and Baby Images, Inc., Appellants, v. The STATE of Texas, Appellee.
    No. 05-97-00926-CV.
    Court of Appeals of Texas, Dallas.
    April 27, 2000.

      Phyllis B. Schunck, Clark, Thomas & Winters, P.C., Austin, Joanne Marie Sum-merhays, Clark, Thomas & Winters, Austin, for Appellants.
    Joyce Wein Iliya, Assistant Attorney General, Dallas, for Appellee.
    Before Justices OVARD, ROACH, and ROSENBERG.

      . The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texás at Dallas, sitting by assignment.

   OPINION ON MOTION FOR REHEARING

ROSENBERG, Justice (Assigned).

We grant the State’s motion for rehearing, overrule Rayford’s motion for rehearing, and vacate our opinion and judgment of January 31, 2000. The following is now the opinion of the Court.

Erma Rayford, individually, and Baby Images, Inc. (collectively, Rayford) appeal an injunction granted to the State of Texas (the State) under the Texas Food, Drug and Cosmetic Act (FDCA) and the Texas Deceptive Trade Practices Act (DTPA) preventing her from possessing and using a medical device, a fetal ultrasound scanner, for nondiagnostic use. In two issues, Rayford challenges the injunction and award, arguing the FDCA and the DTPA do not apply to or prohibit her nondiagnostic use or the advertising of her use. In a third issue, Rayford contends this suit was groundless and brought in bad faith. Under the facts of this case, we hold the State proved a misbranding violation of the FDCA for Rayford’s nondiagnostic use of the ultrasound scanner as a matter of law. We affirm in part and reverse and render in part.

BACKGROUND

In 1989, Rayford, a qualified ultrasound sonographer, purchased an RT-50 fetal ultrasound scanner (RT-50) from General Electric (GE) and went into business as Baby Images, Inc. She provided ultrasound scanning of unborn babies and videotapes of the scan and advertised the videos as keepsakes through brochures she mailed and distributed by hand. She performed ultrasound scanning for nondiag-nostic purposes and did not require that consumers have a prescription from a licensed physician.

The Texas Department of Health inspected Rayford’s facilities several times between 1994 and 1997. On each occasion, the inspector issued a Notice of Detention. The inspector found that Rayford’s possession and use of the RT-50 adulterated and misbranded it.

In 1996, the State brought an action seeking an injunction and penalties under the FDCA and DTPA. Both Rayford and the State presented motions for partial summary judgment. The trial court granted the State’s motion for partial summary judgment on the issues of adulteration and misbranding a medical device in commerce under the FDCA. After a hearing on the merits, the trial court found Rayford falsely advertised the device and violated the DTPA. The trial court entered a permanent injunction and awarded civil penalties and attorney’s fees to the State. Rayford appeals.

THE MOTION FOR PARTIAL SUMMARY JUDGMENT

Rayford challenges the entry of partial summary judgment for the violation of section 431.021(b) of the FDCA, which prohibits the adulteration or misbranding of any medical device in commerce. Rayford asserts her use of the RT-50 ultrasound device for a nonmedical purpose does not make the device adulterated or misbrand-ed in commerce. The State responds that the federal and state legislative schemes apply to the ultimate user of a device, not just the manufacturer, distributor, or seller of the device. The State argues Ray-ford’s use of the ultrasound scanner for fetal imaging without a diagnostic purpose was a “new intended use,” which gives the device a status as a class III device under the Federal Food Drug and Cosmetic Act (FFDCA), thereby making its use adulteration under the Texas act. See 21 U.S.C.A. § 360e(a)(l) (West 1999); TEX. HEALTH & SAFETY CODE ANN. § 481.111(f)(1) (Vernon Supp.2000). The State further argues the RT-50 was not properly labeled and Rayford’s use without a prescription was misbranding in commerce.

Standard of Review

The standards for reviewing this partial summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Where both parties file motions for summary judgment and one is granted and one is denied, we may consider all questions presented and render the decision the trial court should have rendered. See Jones v. Strauss, 745 5.W.2d 898, 900 (Tex.1988) (orig.proceeding) (per curiam). If a movant does not show its entitlement to summary judgment as a matter of law, we must remand the case to the trial court. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex.1970).

The controversy here is whether, based on undisputed facts, Rayford adulterated or misbranded the RT-50. The undisputed facts controlling this case are:

• The RT-50 is a medical device.
• GE filed a premarket notification (510(k)) with the Food and Drug Administration (FDA) representing that the RT-50’s intended diagnostic use was for fetal imaging and other a bdo-minal/gynecological uses.
• Rayford used the RT-50 ultrasound device for fetal videography, without diagnostic purpose.
• The FDA had not approved the RT-50 for a nondiagnostic use.
• Rayford’s RT-50 did not display adequate directions for use by a layperson.
• Erma Rayford is not a practitioner licensed to practice medicine in Texas.
• Rayford possessed the RT-50 without an order from a licensed practitioner in Texas.
• Rayford’s use of the RT-50 was not supervised by a practitioner licensed in Texas.

With the summary judgment standards in mind, we now examine whether these facts support or defeat the violations of law asserted in the motions for partial summary judgment.

Adulteration

Applicable Law

A drug or device is deemed adulterated under Texas law if it is a class III device under the federal regulations with no pre-market approval or pending application for approval for sale. See TEX. HEALTH & SAFETY CODE ANN. § 431.111(f)(1). The Medical Device Amendments of 1976, Pub.L. No. 94-295, 90 Stat. 539 (1976) (codified at 15 U.S.C.A § 55 and in various sections of 21 U.S.C.A.) (MDA), amending the FFDCA, require the FDA to classify medical devices intended for human use into one of three classes: I, II, or III. See 21 U.S.C.A. § S60c(b)(l) (West 1999). A class III medical device is subjected to an extensive and rigorous pre-market approval process. See id. § 360e (West 1999). The MDA requires premark-et approval for class III medical devices because such devices present “a potential unreasonable risk of illness or injury.” Id. § 360c(a)(l)(C)(ii)(II). Once the FDA gives premarket approval, federal regulations prohibit the device from being “manufactured, packaged, stored, labeled, distributed, or advertised in a manner that is inconsistent with any conditions to approval specified in the [premarket] approval order for the device.” 21 C.F.R. § 814.80 (1999). All devices are class III after the effective date of the MDA unless the manufacturer obtains an FDA determination that the device is substantially equivalent to a predicate device that either did not require premarket approval or was classified in class I or II:

A device classified in class III under this paragraph shall be classified in that class until the effective date of an order of the Secretary under paragraph (2) ... classifying the device in class I or II.

21 U.S.C.A. § 360e(f)(l). Ultrasound devices are classified as class II devices “to provide a visual representation ... of a fetus, for diagnostic purposes.” 21 C.F.R. § 884.2225(a), (b) (1999).

Federal regulations provide explicit instructions for reclassification of this device. See id. § 884.3(b) (1999). First, “[a]ny new, not substantially equivalent, device” introduced into commerce after May 28, 1976, including “a device formerly marketed that has been substantially altered,” is automatically classified by statute as class III. Id. (emphasis added); see also 21 U.S.C.A § 360c(f). Second, the regulation, like the statute, discusses a “new intended use” of an existing obstetric device: “If [the] FDA knows that a device being commercially distributed may be a ‘new’ device ... because of any new intended use ..., [the] FDA may codify the statutory classification of the [obstetric] device into class III for such new use.” 21 C.F.R. § 884.3(b) (1999) (emphasis added).

Substantially equivalent, with respect to a device being compared to a predicate device, means the device has “the same intended use” as the predicate device and the device has the same or substantially equivalent technology. 21 U.S.C.A. § 360c(i)(l)(A). A change is a modification that could significantly affect the safety or effectiveness of the device. See 21 C.F.R. § 807.81(a)(3) (1999). Examples of this kind of change are changes in design, material, chemical composition, energy source, or manufacturing process. See id. § 807.81(a)(3)(I) (1999). A change that affects substantial equivalence is also a major change or modification in the intended use of the device. See id. § 807 .81(a)(3)(ii) (1999); CENTER FOR DEVICES AND RADIOLOGICAL HEALTH, U.S. DEP’T OF HEALTH & HUMAN SERVS., DECIDING WHEN TO SUBMIT A 510(E) FOR A CHANGE TO AN EXISTING DEVICE 4 (510(k) (Memorandum # K-97-1, January 10, 1997)). The statutory scheme provides that the intended use is to be determined by the persons legally responsible for the labeling of the device. See 21 C.F.R. § 801.4 (1999). “The intent is determined by such persons’ expressions or may be shown by the circumstances surrounding the distribution of the article.” Id.

Discussion

Because ultrasound devices are class II devices, for Rayford’s RT-50 to be a class III device, it must not be substantially equivalent to the ultrasound devices already approved. First, GE submitted a premarket notification for the RT-50 as a device substantially equivalent to one previously marketed, as required for a class II device. The notification described the technical aspects of the device as well as its intended use, stating, “The RT-50 is intended to be used for abdominal, obstetric and gynecological ultrasound examinations in hospitals and clinics where ultrasound exams are routinely performed.” The notification also indicated the RT-50’s intended diagnostic use was fetal imaging. The FDA found the RT-50 to be substantially equivalent to other approved ultrasound devices. In the hands of GE, the RT-50 remained class II.

Next, because Rayford used the RT-50 for nondiagnostic uses, we examine whether Rayford’s use destroyed the RT-50’s substantial equivalence to the ultrasound devices by changing the intended use. Rayford used the RT-50 for fetal imaging, but not for approved medical or diagnostic purpose. Rayford’s unapproved nondiag-nostie use is not the intended use of the RT-50 as established by GE. This non-diagnostic use is a new use. Whether this nondiagnostic use is a new intended use is determined by the person responsible for labeling the RT-50. See 21 U.S.C.A. § 360c(i)(l)(E)(i)(I); 21 C.F.R. § 801.4 (1999). The person who is responsible for labeling is the person who engages in the manufacture, preparation, propagation, or processing of the device, including actions in furtherance of the distribution of the device from the original manufacturer to the person who makes final delivery or sale to the ultimate user. See 21 U.S.C.A. §§ 360(a), (c), (k), 360d, 360e (West 1999). Rayford bought the RT-50. She is a user and possessor, not a manufacturer or distributor, of the RT-50. Further, she did not sell the RT-50, that is, she did not sell or distribute the RT-50 to the ultimate user. See BLACK’S LAW DICTIONARY 1365 (7th ed.1999) (defining seller as “the transferor of property in a contract of sale”). While Rayford was selling a service in using the machine, the federal statutory scheme does not include a seller of a device’s service as a person responsible for labeling. Therefore, Rayford does not have labeling responsibility, and Rayford’s nondiagnostic use of the RT-50 did not “substantially alter” it and is not a “new intended use.” Accordingly, Rayford’s RT-50 continued its class II designation.

Finally, the summary judgment affidavits of Byron Tart, Director of Promotion and Advertising Policy and Staff for the Compliance Office of the FDA, show the FDA was aware of nonmedical use of the ultrasound device. Nevertheless, the FDA did not codify the nonmedical use to class III as is provided for in the regulations.

Because Rayford is not the person with labeling responsibility and the FDA did not classify the known use as class III, the RT-50 remains class II. Because we have concluded the device is not a class III device, the State did not prove Rayford had an adulterated device in commerce under the FDCA. The trial court erred in granting the State’s partial summary judgment on this issue and erred in denying Rayford’s partial motion for summary judgment on the claim of adulteration. We resolve Rayford’s first issue regarding adulteration in her favor.

Misbranding

A device may be misbranded by improper labeling or unapproved use. See TEX. HEALTH & SAFETY CODE ANN. § 431.112(f)(1), (r) (Vernon Supp.2000). Under section 431.112(f)(1) and (2) of the FDCA, a device is misbranded unless it has adequate directions for use and has been exempted from requirements for adequate warnings against specified improper use by appropriate regulations. See id. § 431.112(f)(1), (2). As discussed above, the federal regulatory scheme does not contemplate a user or possessor having labeling responsibilities:

The intended uses of an article may change after it has been introduced into interstate commerce by its manufacturer. If, for example, a packer, distributor, or seller intends an article for different uses than those intended by the person from whom he received the devices, such packer, distributor, or seller is required to supply adequate labeling in accordance with the new intended uses.

21 C.F.R. § 801.4 (1999). If a manufacturer knows a device is to be “used for conditions, purposes, or uses other than the ones for which he offers it,” the manufacturer must provide adequate labeling. Id. An owner or operator of a device is only required to maintain labeling and advertising for a device for three years. See id. § 807.31(c) (1999).

It is undisputed that the FDA exempts all currently marketed obstetric ultrasound devices from labeling requirements for adequate directions for use. See id. § 801.109 (1999). There was no evidence GE knew of a new use requiring additional labeling. Nor was there evidence Rayford was required to keep any labeling more than three years after her purchase. Nevertheless, the State would require a user to label and provide directions. Requiring Rayford to label the RT-50 is in direct conflict with federal regulations that exempt the device from labeling. See id. § 808.1(d)(6)(ii) (1999) (providing state requirements prohibiting manufacture of misbranded devices are preempted to the extent they establish substantive requirements “different from, or in addition to, a [federal requirement established under the [FFDCA] ”). Additionally, Rayford’s use of the machine is not the sale or resale of a device that makes her responsible for a label. Therefore, we conclude section 431.112(f)(1) does not support summary judgment on misbranding.

Next, a device is misbranded if it is a restricted device that is used in violation of section 360j(e) of the FFDCA. See TEX. HEALTH & SAFETY CODE ANN. § 431.112(r). The FFDCA provides that a restricted device is only to be used on written or oral authorization of a physician. See 21 U.S.C.A. § 360j(e) (West 1999). A restricted or prescription device is a device that cannot have adequate directions for lay use. See 21 C.F.R. § 801.109 (1999). These devices are exempt from the requirement of directions because they are required to be in the possession of physicians or used only on order of physicians. See id. § 801.110 (1999).

The summary judgment evidence demonstrates the RT-50 is exempt from labeling for adequate directions for lay use. That exemption makes the RT-50 a prescription device. It is undisputed that Rayford used the device without the supervision or order of a licensed practitioner. Therefore, Rayford’s use was a violation of section 431.112(r), making the RT-50 mis-branded in commerce as a matter of law, and the trial court was correct in granting the summary judgment on this misbrand-ing ground. We resolve Rayford’s first issue regarding misbranding in commerce against her.

THE TRIAL

Rayford complains the trial court erroneously entered the injunction, civil penalties, and attorney’s fees because she did not violate the adulteration, misbranding, and false advertising provisions of the FDCA or section 17.46 of the DTPA. The injunction prohibits the use and advertising of the RT-50 for any nondiagnostic purpose. It also prohibits the use of the scanner without written order of a physician. Rayford argues she did not violate any statute by her use of the RT-50. Our conclusion that Rayford misbranded the RT-50 in commerce is sufficient to warrant an injunction. Nevertheless, we will examine the trial record to see if the State proved the remaining allegations supporting all terms of the injunction and the penalties.

Standard of Review

When reviewing the trial court’s findings of fact and conclusions of law, the fact findings have the same force and dignity as a jury’s verdict on jury questions. See TEX. R. CIV. P.296; FDIC v. F & A Equip. Leasing, 854 S.W.2d 681, 684 (Tex. App. — Dallas 1993, no writ); MJR Corp. v. B & B Vending Co., 760 S.W.2d 4, 10 (Tex.App. — Dallas 1988, writ denied). We apply the same standards in reviewing the legal or factual sufficiency of the evidence supporting the trial court’s fact findings as we apply to reviewing the legal and factual sufficiency of the evidence supporting a jury’s answer to a jury question. See Baker v. Baker, 719 S.W.2d 672, 674-75 (Tex. App. — -Fort Worth 1986, no writ); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (describing standard for factual sufficiency review); F & A Equip. Leasing, 854 S.W.2d at 685 (describing standard for legal sufficiency review). When reviewing the trial court’s legal conclusions, we evaluate them independently to determine their correctness. See Dallas Morning News v. Board of Trustees, 861 S.W.2d 532, 536 (Tex.App. — Dallas 1993, writ denied).

The findings of fact concerning the false advertisement allegations and DTPA violations are uncontroverted. The trial court found Rayford advertised her ultrasound device for nonmedical purposes without clinical benefit. Rayford did not disclose a prescription was necessary for a fetal scan, and there was no medical supervision of her business. Therefore, keeping the standards in mind, we now examine the validity of the trial court’s legal conclusions finding false advertisement in violation of the FDCA and DTPA based on these facts.

False Advertisement under The FDCA

The FDCA defines advertising as “all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of ... devices .... ” TEX. HEALTH & SAFETY CODE ANN. § 431.002(1) (Vernon Supp.2000) (emphasis added). All the evidence demonstrates the advertising was not for the sale of a device but of a scanning service. These facts as a matter of law do not show a violation of the FDCA or support the injunction. Therefore, the trial court erred when it found Rayford violated the false advertising provisions of the FDCA, and we resolve Rayford’s second issue in her favor to this extent.

False Advertising under the DTPA

The State brought its deceptive trade practices allegation under section 17.46(b)(23) of the business and commerce code, which provides that a prohibited act is:

the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.

TEX. BUS. & COM. CODE ANN. § 17.46(b)(23) (Vernon Supp.2000). The State argues Rayford did not disclose to the consumer that the use was not approved or a prescription was required to obtain a sonogram. Even if these would be proper disclosures, the State presented no evidence that the failure to -disclose this information induced a consumer into a transaction she would not have entered had she known this information. The State did not meet its burden as a matter of law. Therefore, we conclude the trial court erred when it found Rayford violated the false advertising provisions of the DTPA, and we resolve Rayford’s second issue in her favor to this extent.

FRIVOLOUS ACTION

In her third issue, Rayford contends she is entitled to recover attorney’s fees, expenses, and costs because this action is frivolous, unreasonable, or without foundation. See TEX. CIV. PRAC. & REM. CODE ANN. § 105.002 (Vernon 1997). The record does not show Rayford obtained a ruling on her motion for frivolous claim. Therefore, Rayford failed to preserve error. See TEX. R. APP. P. 33.1. Further, judgment was not awarded on favor of Rayford, as required for recovery by section 105.002(2). See TEX. CIV. PRAC. & REM. CODE ANN. § 105.002(2). We resolve Rayford’s third issue against her.

CONCLUSION

Because of our resolution of Rayford’s first issue, we reverse and render the trial court’s January 17, 1997 order granting plaintiffs motion for partial summary judgment on the issue of adulteration in commerce, and we affirm on the issue of misbranding in commerce. Because of our resolution of Rayford’s second issue, we reverse and render the trial court’s May 5, 1997 final judgment and permanent injunction on the false advertising counts under the FDCA and the DTPA. The misbrand-ing violation of the FDCA supports a permanent injunction against Rayford, civil penalties, and reasonable attorney’s fees and costs. The misbranding violation, however, does not support paragraph (5) of the trial court’s final judgment and permanent injunction, which requires Rayford to label the RT-50, because it is in conflict with federal regulations. Consequently, we modify the final judgment and permanent injunction by deleting paragraph (5). We affirm the final judgment and permanent injunction in all other respects. We affirm the final judgment and permanent injunction as modified.

      . See generally TEX. HEALTH & SAFETY CODE ANN. §§ 431.001-.278 (Vernon 1992 & Supp.2000).

      . See generally TEX. BUS. & COM. CODE ANN. §§ 17.41-.854 (Vernon 1987 & Supp. 2000) (known as the Deceptive Trade Practices-Consumer Protection Act).

      . Although the action under the FDCA was also brought under section 431.021(a), which prohibits the introduction of an adulterated or misbranded device into commerce, the State stipulated at oral argument that the trial court did not make its findings based on that provision.

      . Both the State and Rayford stipulated the device was not used for a medical purpose.

      . See generally 21 U.S.C.A. §§ 360-397 (West 1999).

      . Section 431.111(f)(1) provides that "[a] drug or device shall be deemed to be adulterated ... il it is a class III device:
      (A)(i) that is required by a regulation adopted under Section 515(b) of the federal Act to have an approval under that section of an application for premarket approval and that is not exempt from Section 515 as provided by Section 520(g) of the federal Act [21 U.S .C.A. § 360j(g) (West 1999)]; and
      (ií) (I) for which an application for pre-market approval or a notice of completion of a product development protocol was not filed with the United States Food and Drug Administration by the 90th day after the date of adoption of the regulation; or
      (II) for which that application was filed and approval was denied or withdrawn, for which that notice was filed and was declared incomplete, or for which approval of the device under the protocol was withdrawn;
      (B) that was classified under Section 513(f) of the federal Act [21 U.S.C.A. § 360c(Í)] into class III, which under Section 515(a) of the federal Act [21 U.S.C.A. § 360e] is required to have in effect an approved application for premarket approval, that is not exempt from Section 515 as provided by Section 520(g) of the federal Act and that does not have the application in effect; or
      (C) that was classified under Section 520(l) of the federal Act into class III, which under that section is required to have in effect an approved application under Section 515 of the federal Act, and that does not have the application in effect ....
      TEX. HEALTH & SAFETY CODE ANN. § 431.111(f)(1).

      . There was no change in the technology of Rayford's RT-50 from the predicate device. The device physically maintained its substantial equivalence in Rayford's possession.

      . The record only reflects the FDA has not found substantial equivalence for nonmedical fetal video scanning, without clinical benefit, for any GE ultrasound device. This fact does not establish as a matter of law the necessity of seeking a premarket approval for RT-50 for a substantial alteration.

      . The remedy for a violation of the FDCA is an injunction. See TEX. HEALTH & SAFETY CODE ANN. § 431.047 (Vernon 1996).

      . The State stipulated at oral argument that the misleading statements were Rayford’s nondisclosures prohibited under section 17 .46(b)(23) of the business and commerce code. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(23).


author: COMBS, Judge: BUCKINGHAM, Judge,

text:
    COMMONWEALTH of Kentucky, ex rel. A.B. CHANDLER III, Attorney General, Appellant, v. KENTUCKY TITLE LOAN, INC. d/b/a Cash Loans of Louisville d/b/a Cash Loans of Bowling Green, Appellee.
    No. 1998-CA-000326-MR.
    Court of Appeals of Kentucky.
    June 11, 1999.
    Rehearing Denied Sept. 10, 1999.
    Discretionary Review Denied by Supreme Court May 10, 2000.
    A.B. Chandler III, Attorney General, James C. Shackelford, Assistant Attorney General, Frankfort, KY, for Appellant.
    Paul E. Sullivan, Keith Moorman, Brent L. Caldwell, Stephen G. Amato, Lexington, KY, for Appellee.
    Before: BUCKINGHAM, COMBS, McANULTY, Judges.
   OPINION

COMBS, Judge:

The Commonwealth of Kentucky ex rel. A.B. Chandler III, Attorney General (the Attorney General), appeals from the judgment of the Fayette Circuit Court which held that Kentucky Title Loan, Inc. (KTL) fell within the scope of the definition of “pawnbroker” as set forth in KRS 226.010. Accordingly, the court dismissed the action brought by the Attorney General against KTL.

On July 16, 1996, the Attorney General filed a complaint against KTL, alleging that it was operating its business in violation of KRS 288.420 and KRS 288.620. KRS 288.420 requires a person engaged in making loans for $15,000.00 or less to obtain a license from the commissioner of financial institutions. KRS 288.620 prohibits any person from receiving “any interest, discount or consideration greater than six percent(6%) per annum” on any loan of $15,000.00 or less.

The Attorney General also claimed that KTL “engaged in a pattern of practice” whereby it charged consumers interest rates that violated KRS 360.010, which set forth the legal rate of interest, and that this practice was unconscionable and unfair under KRS 367.170. In addition, the complaint asserted that the interest and fees charged by KTL did not bear any relationship to the actual costs of servicing the loan or storing property. The Attorney General sought to have the court declare void all the loans made by KTL; to order KTL to forfeit the principal, interest, and fees it had collected through these allegedly illegal transactions; and to impose civil penalties upon KTL.

In response to the Attorney General’s complaint, KTL maintained that it was a pawnbroker as defined by KRS 226.010 and that it was operating its business in accordance with the statutes governing pawnbrokers set out at KRS Chapter 226. KTL engaged in quasi-pawn transactions commonly referred to as “title pledges” by advancing money to customers on “deposit” of their motor vehicles. However, customers did not actually deposit their cars with KTL but were allowed to retain physical possession of their vehicles. In lieu of relinquishing actual possession of a car, a customer gave KTL: a set of keys to the vehicle; the original certificate of title to the vehicle; and an executed document for power of attorney, which would enable KTL to complete transfer of ownership of the vehicle to itself if the customer should breach the pawn agreement. KTL’s lien on the vehicle was then recorded with the county clerk, and the customer was issued a title evidencing the lien. Upon the customer’s fulfillment of the pawn agreement, KTL would release the lien on the vehicle and return the keys to the customer. KTL customarily charged its customers 2% interest per month and fees of 20% per month on the unpaid balance. KTL maintained that its interest rate and fees were in compliance with KRS 226.080, the statute governing the interest rate and fees of pawnbrokers.

The Attorney General argues that KTL was not a pawnbroker because it did not make loans “on deposit of personal property.” Essentially, the Attorney General contends that KTL has invoked the subterfuge of a “pawnbroker” while in reality it was engaging in the business of making loans of $15,000.00 or less without obtaining a license as required by KRS 288.420 as well as charging fees in excess of the rates set out in KRS 288.620 and KRS 360.010. Construing the 20% fees as interest, the Attorney General maintains that KTL was actually making consumer loans on which it was charging interest equivalent to an interest rate of 264% or more per annum when its combined fees or finance charges were analyzed pursuant to the Federal Truth in Lending Act.

The Attorney General moved for summary judgment or a temporary injunction against KTL. On January 8, 1998, the circuit court entered an order and opinion denying the Attorney General’s motion and finding that KTL was indeed a pawnbroker as defined by KRS 226.010. On the same date, the court entered an order dismissing the claim against KTL except for that portion relating to whether the actual fees charged by KTL were reasonable in relation to their costs. This appeal followed.

The issue on appeal is whether KTL is a pawnbroker. Resolution of this issue is determinative of whether KTL’s actions were illegal pursuant to KRS 288.420, KRS 288.620, and KRS 360.010. KRS 226.010 defines pawnbroker as:

Any person who loans money on deposit of personal property, or who deals in the purchase of personal property on condition of selling the property back again at a stipulated price, or who makes a public display at his place of business of the sign generally used by pawnbrokers to denote their business, or who publicly exhibits a sign advertising money to loan on personal property or deposit is a pawnbroker. (Emphasis added.)

KRS Chapter 226 does not provide a definition or an explanation of the phrase “on deposit of personal property” as used in this chapter. The distinction between a pawnbroker and someone engaged in the business of making small loans is explained in 53A Am.Jur.2d Moneylenders and Pawnbrokers § 3 (1996) at 723:

A pawnbroker is to be distinguished from one engaged in the business of making small loans upon security of chattel mortgages or wage assignments. Where, under the controlling statutory definition, a pawnbroker must be engaged in the business of receiving property in pledge or as security for money or other things advanced, one who lends money and .takes as security a mortgage on real or personal property, stocks, bonds, notes, and other like things is not a pawnbroker.

The maximum interest rate and service charge that a pawnbroker may charge is set forth in KRS 226.080:

Any pawnbroker, as defined in KRS 226.010, may, in loaning money on deposit of personal property, charge, contract for or receive interest at a rate not exceeding two percent (2%) per month on the unpaid principal balance of the loan, and may charge, contract for and receive a reasonable fee, not to exceed one-fifth (½) of the value of the loan per month, for investigating the title, storing and insuring the property, closing the loan, making daily reports to local law enforcement officers and for other expenses, losses and incidental costs associated with servicing such loans. It is further provided that such fee when made and collected shall not be deemed interest for any purpose of law. No pawnbroker shall directly or indirectly charge, receive or contract for any interest or consideration greater than that allowed by this section. (Emphasis added.)

KTL argues that it is a pawnbroker pursuant to KRS 226.010 because it advances money on the deposit of customers’ personal property (car titles) and it displays a sign advertising loans on deposit of personal property. However, the Attorney General counters that KTL does not meet the definition of pawnbroker as it does not advance money on actual deposit of personal property. In order to charge the interest rate and fees provided for in KRS 226.080, the Attorney General argues that the phrase “on deposit of personal property” requires the customer to place the item of personal property in the actual physical custody of the pawnbroker.

This is a case of first impression in Kentucky, and the trial court cited an analogous case from Alabama for guidance in reasoning its. way to a decision. In denying the Attorney General’s motion for summary judgment and dismissing the complaint, the court relied upon Floyd v. Title Exchange and Pawn of Anniston, Inc., 620 So.2d 576 (Ala.1993). In that case, the Supreme Court of Alabama held that car title pledges were pawn transactions, concluding that the statutory definition of a “pawn transaction” did not specifically exclude this type of transaction and that it was broad enough to encompass the practice of allowing customers to retain physical possession of pledged property. In pertinent part, a “pawn transaction” is defined by Alabama law as “[a]ny loan on the security of pledged goods.... ” Ala.Code § 5-19A-2(3) (1975). In the case before us, the circuit court was persuaded that the reasoning of Floyd was applicable to the Commonwealth’s statutes on pawnbrokers.

However, we find a significant difference between the Kentucky and Alabama statutes with respect to the breadth of the definition of a pawn transaction. KRS 226.010 and KRS 226. 080 use the prepositional phrase “[loan or loaning] money on deposit of personal property ” (emphasis added) whereas the Alabama legislature has adopted a less restrictive and less specific adjective, “loan on the security of pledged goods” — which clearly has the potential for encompassing a wide range of transactions. Thus, while the analogy is helpful, we do not find the reasoning in Floyd to be controlling as to our Kentucky statutes on point.

KRS 446.080(4) directs that “[all words and phrases shall be construed according to the common and approved usage of language....” Moreover, “[w]hen language is clear and unambiguous, it will be held to mean what it plainly expresses.” Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934). In KRS Chapter 226, the phrase “on deposit of personal property” is used repeatedly to define and to describe a pawn transaction. We must, therefore, construe this phrase according to the common, plain meaning of the word deposit.

Black’s Law Dictionary 526 (4th ed.1968) defines deposit in the following manner:

Deposit, v. To commit to custody, or to lay down; to place; to put; to let fall (as sediment);....
Deposit, n. A naked bailment of goods to be kept for the depositor without reward, and to be returned when he shall require it....

As used in Chapter KRS 226, deposit clearly requires that personal property be relinquished by its owner and committed to the physical custody of the pawnbroker. In its car title pledge transaction, KTL obtains only a lien on the customer’s car— not physical possession of the vehicle. This procedure amounts to a secured loan rather than a true pawn pursuant to KRS Chapter 226. Furthermore, among its reasons authorizing pawnbrokers to charge the high fees (20% of the unpaid principal balance), KRS 226.080 explicitly cites the purpose of “storing and insuring the property....” (Emphasis added). Thus, pursuant to the unambiguous statutory language, the pawnbroker must have actual physical custody of the personal property — not merely constructive possession — in order to charge the interest and fees set out in KRS 226.080.

In summary, we hold that KTL was not a pawnbroker as defined by KRS 226.010. Hence, it was not exempt from application of KRS Chapter 288 and it operated its business in violation of KRS 288.420, KRS 288.620, and KRS 360.010. As to the allegations that KTL’s business practices violated KRS 367.170 of the Consumer Protection Act, we refrain from addressing this issue as the circuit court did not. Upon remand, we direct the circuit court to address this issue.

For the foregoing reasons, we vacate and remand the order of the Fayette Circuit Court for entry of judgment consistent with this opinion.

McANULTY, Judge, concurs.

BUCKINGHAM, Judge, concurs by separate opinion.

BUCKINGHAM, Judge,

concurring:

I concur with the majority opinion but do so for a slightly different reason. The majority opinion states that the issue is whether KTL was a pawnbroker and resolves the issue by determining that it was not. However, the Attorney General conceded in his argument of this case that KTL met the definition of “pawnbroker” as that term is defined in KRS 226.010. It likewise appears to me that KTL met the “pawnbroker” definition. Nevertheless, I agree with the majority opinion that KTL could not charge interest pursuant to KRS 226.080, since that statute should be construed as requiring the actual deposit of automobiles and not merely the deposit of keys and titles.