text:
    In re ESTATE OF Marvin NASH.
    No. 09-04-508 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 14, 2005.
    Decided May 26, 2005.

      Thomas W. Deaton, Lufkin, for appellants.
    John W. Tunnell, Lufkin, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

The will at issue in this appeal bequeathed the testator’s estate to his wife, if she survived him by thirty (30) days, and named his wife’s daughter, Shelley Tedder, as the alternate beneficiary “in the event that my wife and I die at the same time or in the event that she does not survive me by thirty (30) days or in the event that my wife should predecease me.... ” After executing the will, the testator divorced the wife, who outlived him. The trial court declared that the testator’s former wife could not take under the will, and that the stepdaughter took under the will as the alternate beneficiary. The issue on appeal is whether the trial court correctly construed the will, or whether the trial court should have declared that the estate passed to the decedent’s mother and brother under the laws of descent and distribution. We hold that the will must be enforced as written; that the specific condition precedent required for Tedder to inherit the estate did not occur; and that, because decedent’s will did not contain an operative residuary clause, the estate must pass according to the law of descent and distribution.

Marvin Nash executed his will in 1994. He was divorced in 2002, two years before his death. Shortly after the trial court granted Russell Nash’s application for an independent administration of the Estate of Marvin Nash, Shelley Tedder produced Marvin Nash’s will, filed an application for probate, and opposed Russell Nash’s application for letters of administration. Russell Nash, together with putative heirs Pat Nash and Leroy Nash, opposed the probate of the will and petitioned for a declaratory judgment on the rights, status, and legal relation of the parties. See Tex. Civ. PuaC. & Rem.Code Ann. § 37.003 (Vernon 1997). The trial court admitted the will to probate and issued letters testamentary to Shelley Tedder. The trial court then issued a declaratory judgment that Shelley Tedder is the beneficiary under the will because the former wife is treated as if she predeceased Marvin Nash. Leroy Nash and Pat Nash appeal the declaratory judgment.

The Probate Code addresses the effect of divorce on a will, as follows:

§ 69. Voidness Arising From Divorce
(a) If, after making a will, the testator is divorced or the testator’s marriage is annulled, all provisions in the will in favor of the testator’s former spouse, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, must be read as if the former spouse failed to survive the testator, and shall be null and void and of no effect unless the will expressly provides otherwise.

(b) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death.

Tex. PROb.Code Ann. § 69 (Vernon 2003).

The Legislature has amended § 69 over the years, and several courts have applied the evolving versions of this statute in construing wills. In Volkmer v. Chase, 354 S.W.2d 611 (Tex.Civ.App.-Houston 1962, writ ref'd n.r.e.), the testator executed a will in April 1959, divorced later that year, and died in 1960. At that time, Section 69 read as follows:

If the testator is divorced after making a will, all provisions in the will in favor of the testator’s spouse so divorced, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, shall be null and void and of no effect.

Act of March 17, 1955, 54th Leg., R.S., ch. 55, § 69, 1955 Tex. Gen. Laws 88, 110.

In Volkmer, the will designated the former wife as the sole beneficiary, with an alternate disposition to a trustee for the benefit of his children “Should my wife ... precede me in death, or should we lose our lives simultaneously as in a common disaster or within such proximity as not to have ample time to make a new Will, or should I fail to make a new Will....” Volkmer, 354 S.W.2d at 613. In holding that the estate descended to the heirs at law, the appellate court agreed with the trial court’s ruling that the paragraph was a contingent bequest, the contingency had not occurred, and no property rights vested by reason of the bequest. Id. at 615.

In McFarlen v. McFarlen, 536 S.W.2d 590, 591 (Tex.Civ.App.-Eastland 1976, no writ), the court applied the same version of Probate Code § 69 as that considered in Volkmer. The testator divorced in 1968, executed a will in 1972, remarried the same woman later that year, divorced again in 1974, and died a few months later. Id. at 591. The will bequeathed the testator’s estate to the woman who had been and would be his wife, and provided for an alternate disposition if the primary beneficiary were to predecease the testator, “then, in that event and in that event only....” Id. The court held Section 69 prohibited the former spouse from taking under the will, and that the estate passed to the heirs at law because the contingency for the alternate disposition did not occur. Id. at 591-92.

In Calloway v. Estate of Gasser, 558 S.W.2d 571, 573 (Tex.Civ.App.-Tyler 1977, writ refd n.r.e.), the will named the testatrix’s then-husband in the residuary clause, then provided alternate bequests “If my said husband does not survive me.... ” The parties divorced before the testatrix’s death. Id. at 572-78. Section 69 prohibited the former husband from taking under the will, but the court construed the will as though the divorced husband had predeceased the testatrix, satisfying the condition precedent and passing the estate to the contingent beneficiaries. Id. at 576. The court distinguished McFarlen as having an emphatic condition precedent and Volkmer as having an ambiguous provision. Id. at 576. The will in Calloway, the court reasoned, appropriately expressed the testatrix’s intent that the alternate beneficiaries take under the will if her husband could not take for any reason. Id. at 576.

After Volkmer, McFarlen and Calloway were decided, a 1979 amendment to Probate Code § 69 added subsection (b), which read as follows:

(b) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death.

Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 12, 1979 Tex. Gen. Laws 1740, 1746.

The Tyler Court of Appeals revisited the issue in Formby v. Bradley, 695 S.W.2d 782 (Tex.App.-Tyler 1985, writ ref d n.r.e.), a case in which the testator executed a joint will in 1957, divorced in 1977, and married another woman before his death in 1982. Id. at 783. The will named the former wife as independent executrix of the estate, and made no provision for an alternate executor should the surviving spouse be unable or unwilling to serve, but did name an alternate executrix in the event of simultaneous death. Id. at 783. The former wife and joint maker survived the decedent, and Section 69 nullified the provisions appointing her executrix. Id. Reasoning that a presumption cannot supplant unambiguous language, the court held the alternate appointment was clearly conditioned on a simultaneous death that did not occur, and ruled that the trial court erred in failing to appoint the second wife as administratrix rather than the alternate executrix named in the will. Id. at 784.

In 1995, the Legislature altered subsection (a) of Probate Code § 69, as follows:

If, after making a will, the testator is divorced or the testator’s marriage is annulled [aft&r-making-ar^wffl], all provisions in the will in favor of the testator’s former spouse [so divorced], or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, shall be null and void and of no effect unless the will expressly provides otherwise.

Act of May 24, 1995, 74th Leg., R.S., ch. 642, § 2,1995 Tex. Gen. Laws 3516.

In 1997, the Legislature added that all provisions in the will in favor of the testator’s spouse “must be read as if the former spouse faded to survive the testator, and” shall be null and void. Act of May 20, 1997, 75th Leg., R.S., ch. 1302, § 5, 1997 Tex. Gen. Laws 4954, 4955-56.

The Eastland Court of Appeals revisited the issue with In re Estate of Wilson, 7 S.W.3d 169 (Tex.App.-Eastland 1999, writ denied), where a joint will executed in 1981 provided that all property “owned by the one of us dying last” would pass to the children of their respective former marriages. Id. at 171. The will was never revoked but in 1993, the parties signed an agreement incident to divorce in which they waived the right to inherit from each other. Id. at 170. The appellate court held that Probate Code § 69 barred the former spouse from serving as executrix, agreed with the trial court that the testator’s intent could not be determined from the face of the will, held the will was valid but the contingent bequest to the children failed, and that the decedent’s estate descended to his child as his heir at law. Id. at 171-72.

The appellants argue Nash’s will unambiguously provided for an alternate disposition only in the event his wife failed to survive him by thirty days, so the condition precedent never occurred and the alternate disposition fails as it did in Volk-mer and McFarlen. They note that Probate Code § 69(a) voids only “provisions in the will in favor of the testator’s former spouse” and assert the condition precedent for the alternative disposition was never triggered. Tex. Pkob.Code Ann. § 69 (Vernon 2003).

The appellee, on the other hand, argues Calloway controls the result in this case because the language in the will is neither limiting nor ambiguous. She argues the former wife cannot be a surviving spouse under Probate Code § 69(b), so the entire will must be read as though the former spouse predeceased the testator. The ap-pellee also contends the 1997 amendment to Probate Code § 69 was enacted to implement the policy expressed in the Uniform Probate Code and codify the conclusion reached in Calloway. The Uniform Probate Code provision to which she refers was substantially amended in 1990, several terms before the statutory amendment at issue here, to delete the language cited in Calloway and upon which the appellee relies. See Unif. Phobate Code § 2-508 (“Except as provided in Sections 2-803 and 2-804, a change of circumstances does not revoke a will or any part of it.”).

The 1997 amendment to the Probate Code was enacted after Volkmer, McFar-len and Calloway were decided. The Legislature chose to clarify that the provisions of the will in favor of the former spouse must be read as though the former spouse had predeceased the testator. The Legislature could have revised the Probate Code to require that the entire will be read as though the former spouse had predeceased the testator, but it did not do so. Thus, the cases which literally apply the conditions precedent for the alternate bequests were not implicitly abrogated by the 1997 amendment to Section 69. Although this Court has not directly addressed the application of Section 69, in Smith v. Williams, 449 S.W.2d 359, 360 (Tex.Civ.App.-Beaumont 1969, writ refd n.r.e.), we construed a joint will that provided for an alternative disposition “[i]n the event of the death of both of us, at the same time by accident, catastrophe, or otherwise .... ” We affirmed the trial court’s ruling that the testamentary provision never became operative because the spouses died five years apart; although it resulted in the partial intestacy of the second spouse, the unambiguous provisions of the will could not be altered. Id. at 361.

In this case, the Nashes divorced after the will was executed and did not remarry. Therefore, the provisions in the will “in favor of the testator’s former spouse ... must be read as if the former spouse failed to survive the testator” and the primary disposition to the former spouse is void. Tex. PROB.Code Ann. § 69 (Vernon 2003). However, the provision for a spouse, void because of a subsequent divorce, does not affect the other provisions in the will. Because the alternate disposition to Tedder in the event the testator’s wife predeceased him or failed to survive him by thirty days is not a “provision in favor of the former spouse,” that portion of the will cannot be read as if the testator’s former spouse had failed to survive him. Nash’s will unambiguously directed the disposition of his estate in the event his wife predeceased him, but it did not direct the disposition of his estate in the event his wife was unable to take for any other reason. Here, the reason the former wife cannot take under this will is because she was divorced from Nash at the time of his death. The proposed alternate beneficiary here is a relative of the ex-wife. As we stated in Smith, “the meaning of the parties must be determined from the words selected for use in the will....” Smith, 449 S.W.2d at 361. The will does not direct the disposition of Nash’s estate in any event other than the death of the primary beneficiary. Courts cannot re-write a will to achieve the disposition we imagine the maker would have accomplished had he contemplated unforeseen circumstances. The absence of an operative residual clause requires us to treat the testator as though he died intestate.

The trial court’s declaratory judgment is reversed to the extent it declares that “Shelley Tedder, the step-daughter of Marvin Nash, should take under the Will of Marvin Nash and further should receive all of the Estate of Marvin Nash” and that “Shelley Tedder takes under the Will because [the former wife] is treated as if she predeceased Marvin Nash by virtue of their divorce.” We render judgment that the Estate of Marvin Nash descends to his heirs at law. The remainder of the declaratory judgment is affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . A new will was drafted in 2003, but it was never executed.

        . Section 2-804(b) of the Uniform Code provides: "Except as provided by the express terms of a governing instrument, ... the divorce or annulment of a marriage: (1) revokes any revocable (i) disposition or appointment of property made by a divorced individual to his [or her] former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse-” Unif. Probate Code § 2-804(b).


source: Caselaw Access Project

author: Justice RODRIGUEZ.

license: Public Domain

text:
    CITY OF ALTON, Appellant, v. CITY OF MISSION, Appellee.
    No. 13-03-324-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 26, 2005.

      Robinson C. Ramsey, Langley & Ba-nack, San Antonio, for appellant.
    Robert L. Galligan, Jones, Galligan, Key & Lozano, Rudy Salmas Jr., Weslaco, for appellee.
    Before Justices YANEZ, RODRIGUEZ, and GARZA.
   OPINION

Opinion by

Justice RODRIGUEZ.

This action for declaratory judgment involves a dispute between two cities regarding the extent of each city’s extraterritorial jurisdiction (ETJ). Appellee, the City of Mission (Mission), filed a traditional motion for summary judgment arguing that (1) the ETJ agreement between Mission and appellant, the City of Alton (Alton), was valid and binding and (2) Alton breached that agreement by repealing its ordinance that set out the alleged agreement and by annexing property north of Mile 6 North Road. Alton also filed a traditional summary judgment motion challenging the validity of the respective ordinances and, if valid, the extent and effect of the ordinances that memorialized the agreement.

In its summary judgment, the trial court granted Mission’s motion in its entirety declaring: (1) Alton’s ordinance 91-05 and Mission’s ordinance 1614 constituted a valid and fully enforceable contract between the cities; and (2) Alton’s action repealing ordinance 91-05 constituted a breach of contract and was, therefore, void ab initio. The trial court also denied Alton’s motion for summary judgment in its entirety and declared that all claims asserted by Alton were denied. The trial court also awarded Mission attorney’s fees. All other relief not expressly granted was denied.

By two issues, Alton contends the trial court erred in granting Mission’s motion and denying Alton’s motion. We affirm.

I. Background

In 1991, Mission and Alton signed ordinances addressing their respective ETJs. Mission signed ordinance 1614 on April 22, 1991. Alton adopted ordinance 91-05 on August 20,1991. The ordinances mirrored each other. Each provided, in relevant part:

1. The City of Alton’s extraterritorial jurisdiction shall not extend south across, nor the City, of Mission’s extraterritorial jurisdiction north of[,] 4 Mile Line Road, and Alton[’s] extraterritorial jurisdiction shall not extend west[,] nor Mission’s extraterritorial jurisdiction extend east, of Moorefield Road, and Alton’s extraterritorial jurisdiction shall not extend north, nor Mission’s extraterritorial jurisdiction extend south, of 6 Mile Line Road....
2. This agreement [hereinafter referred to as the 1991 agreement] shall become effective immediately upon passage of an ordinance entering into said contract passed by both Cities.

In 2001, Alton passed ordinance 2001-11 repealing ordinance 91-05. It also annexed outside the ETJ described in the 1991 ordinances. Subsequently, Mission intervened in an existing lawsuit involving the City of McAllen and Alton. Through its intervention, Mission sought a declaratory judgment that Alton unilaterally breached the 1991 agreement when it repealed ordinance 91-05 and annexed outside its ETJ. Alton filed a first amended answer and original counterclaim denying Mission’s claims and asserting ordinance 91-05 could not and did not abdicate Alton’s power to annex property within its ETJ and that, at most, the ordinance governed only subdivision regulations, not annexation; thus, the 1991 agreement, if any, should be declared invalid. Both cities filed motions for summary judgment. Finding that the ordinances constituted a valid and fully enforceable contract between Alton and Mission and that Alton’s action of repealing its ordinance constituted a breach of contract and, thus, was void ab initio, the trial court granted Mission’s motion and denied Alton’s motion. The claims filed by the City of McAllen against Alton were severed from the suit. It is from the summary judgment granted in Mission’s favor that Alton now appeals.

II. Standard of Review

Appellate courts review de novo the granting of a traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c). Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.-Corpus Christi 2003, no pet.); see Tex.R. Civ. P. 166a(e). To prevail on summary judgment, a party must conclusively prove all elements of its cause of action or defense as a matter of law. Tex.R. Civ. P. 166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). When both sides move for summary judgment and the trial court grants one motion but denies the other, the appellate court should review the summary-judgment evidence that both sides submitted, determine all questions presented, and render the judgment that the trial court should have rendered. Holy Cross Church of God in Christ, 44 S.W.3d at 566.

III. Analysis

A. Statutory ETJ

1. Defining ETJ

For the purpose of promoting and protecting the general health, safety, and welfare of persons residing in and adjacent to the municipalities, the legislature has designated certain areas as the ETJ of municipalities. See Tex. Loc. Gov’t Code Ann. § 42.001 (Vernon 1999). Chapter 42 of the local government code establishes the geographical limits of a city’s ETJ. See id. § 42.021. The geographical limits vary according to the city’s population. See id. For example, the ETJ of a city with fewer than 5,000 inhabitants, such as Alton in 1991, extends one-half mile from its incorporated area; a city with 25,000 to 49,999 inhabitants, such as Mission in 1991, has a two-mile ETJ; and the ETJ of a city with 100,000 or more inhabitants extends five miles from its corporate boundaries. See id. § 42.021(1), (3), (5). A municipality may extend its ETJ beyond those limits to contiguous areas where the owners have requested to be included in the municipality’s ETJ. Id. § 42.022(b) (describing voluntary ETJ). Moreover, the ETJ of a municipality may be reduced if the governing body of the municipality gives its written consent by ordinance or resolution. See id. § 42.023. Section 42.023, however, authorizes only the “release” of ETJ; it does not authorize another municipality to automatically “receive” the released area, thereby increasing its ETJ beyond the boundaries specified in section 42.021. City of Austin v. City of Cedar Park, 953 S.W.2d 424, 430 (Tex.App.-Austin 1997, no -writ).

2. ETJ for Annexation Purposes

Chapter 43 outlines the procedure for annexation and disannexation by a municipality. See Tex. Loc. Gov’t Code Ann. §§ 43.001-42.904 (Vernon 1999 & Supp. 2004-2005). “A municipality may annex area only in its extraterritorial jurisdiction unless the municipality owns the area.” See id. § 43.051 (Vernon 1999); but see City of Murphy v. City of Parker, 932 S.W.2d 479, 480 (Tex.1996) (ruling section 43.901 bars a municipality’s challenge to another municipality’s annexation of its extraterritorial jurisdiction if not brought within two years). In chapter 43, “extraterritorial jurisdiction” means ETJ as determined under chapter 42. See Tex. Loc. Gov’t Code Ann. § 43.001 (Vernon 1999) (defining ETJ for annexation purposes).

3. ETJ for Subdivision Development

Chapter 212 of the local government code governs a city’s authority to regulate subdivisions within its ETJ. See id. § 212.002 (providing that governing body of municipality may adopt rules governing plats and subdivisions of land within municipality’s jurisdiction to promote health, safety, morals, or general welfare of municipality and safe, orderly, and healthful development of municipality). A municipality’s ETJ under chapter 212 is generally “a municipality’s extraterritorial jurisdiction as determined under Chapter 42” of the local government code. Id. § 212.001(1). Unlike chapter 43, however, there is an exception to the general rule; the ETJ of a city with a population of 5,000 or more located in a county that borders the Rio Grande is extended to five miles for the purpose of subdivision regulation. Id.

B. Limiting ETJ

1. Validity of Agreement Pursuant to Statute

By two issues, Alton challenges the validity of the ordinances to the extent they attempt to limit future ETJ. Alton argues that although it has statutory authority to relinquish existing ETJ, it has no authority to limit ETJ not yet acquired because such limitation would impact its ability to annex new territory. See id. § 43.051 (stating municipality may annex area only in its ETJ unless it owns area). However, the legislature allows for the release of existing ETJ, see § 42.023, which also limits annexation in certain areas. We are unpersuaded by Alton’s argument that limiting future ETJ constitutes an abdication of a municipality’s right to annex when limiting or releasing existing ETJ does not.

Alton also contends that restricting future ETJ would be void as against public policy because Alton has the duty to protect the public good of its citizens as well as those persons who reside within its ETJ. See id. § 42.001 (providing that legislature designated ETJ for purpose of promoting and protecting general health, safety, and welfare of persons residing adjacent to municipalities). Alton asserts that abandonment of statutorily created ETJ in 1991 created a “no man’s land” on its municipal boundaries outside of Mission’s statutory two-mile ETJ and not subject to Alton’s jurisdiction. However, this 1991 agreement is not an abandonment of ETJ, it is an agreement to limit the acquisition of ETJ in the future as areas are annexed. Moreover, Mission urges that determining potential future boundaries for Alton and Mission allows for cities to plan for growth and invest money into a more defined area. Mission asserts that preannexation agreements that limit the expansion of ETJ in the future “further important governmental purposes, such as the encouragement of expanding urban areas uniformly, economically, efficiently, and fairly, with optimum provisions made for the establishment of land use controls and necessary municipal improvements.” See City of Springfield v. Judith Jones Dietsch Trust, 321 Ill.App.3d 239, 254 Ill. Dec. 224, 746 N.E.2d 1272, 1276 ([4th Dist.] 2001) (discussing policy behind allowing preannexation agreements with regard to areas that may not be contiguous to municipality's existing ETJ). While we find no Texas case on point, the legislature has provided for the regulation of plats and subdivision development and, in the case of a city like Mission that has a population of 5,000 or more and is located in a county that borders the Rio Grande, has extended such city’s ETJ to five miles for the purpose of subdivision regulation. See Tex. Log. Gov’t Code Ann. §§ 212.001(1), 212.002 (Vernon 1999) (explaining that governing body of municipality may adopt rules governing plats and subdivisions of land within municipality’s jurisdiction to promote health, safety, morals, or general welfare of municipality and safe, orderly, and healthful development of municipality).

Chapter 42 of the Texas Local Government Code authorizes municipalities to enter binding ETJ agreements. See id. §§ 42.023, 42.041 & 42.901. The sections cited by Mission provide methods by which a municipality may agree to reduce its ETJ, to release its ETJ to allow for the incorporation of another city, and to apportion overlapping ETJ. See id. Specific to the facts of this case, pursuant to section 42.023, a municipality may, by written consent, reduce its ETJ as defined in chapter 42 in favor of another municipality. See City of Murphy, 932 S.W.2d at 481. By this section, the legislature provided no limiting language such that the agreements necessarily require the reduced ETJ to be existing ETJ. We conclude, therefore, that a municipality may enter into an agreement to reduce either its existing or its future ETJ.

This is not to say, however, that upon the reduction of future ETJ another municipality, such as Mission in this case, automatically receives the reduced or released area thereby increasing its ETJ for annexation purposes beyond the boundaries specified in section 42.021. See City of Austin, 953 S.W.2d at 430. Receipt of another’s ETJ, existing or future, is not automatic. See id. The legislature allows for receipt of released ETJ only by annexation, population growth, or request. See Tex. Loc. Gov’t Code Ann. § 42.022 (Vernon 1999).

2. Validation Statute

Moreover, even if we were to conclude that the statute does not authorize municipalities to enter into binding agreements that limit ETJ in the future, we would conclude that the agreement at issue in this case was rendered valid pursuant to article 974d-39, section 3(b) of the 1992 Texas Validation Statute. See Tex. Rev.Civ. Stat. Ann. art. 974d-39, § 3(b) (Vernon Supp.1992); see also Tex. Loc. Gov’t Code Ann. § 51.003 (Vernon Supp. 2004-2005) (current validation statute). Article 974d-39 applied to “any incorporated city, town, or village operating under general laws or under a home-rule charter.” Tex.Rev.Civ. Stat. Ann. art. 974d-39, § 1 (Vernon Supp.1992). Section 3(b) provided as follows:

[a]ll governmental proceedings performed by governing bodies of [incorporated or attempted to be incorporated] cities and towns and their officers since their incorporation or attempted incorporation are validated as of the date of such proceedings, including extensions or attempted extensions of extraterritorial jurisdiction undertaken at the requires of owners of territory.

Id. § 3(b). Mission asserts that this 1992 Texas Validation Statute cured any substantive defects that may have existed in the 1991 ordinances. We agree.

The legislature has the power to ratify any act which it had the power to authorize, even if the act was void in its inception. City of Murphy, 932 S.W.2d at 481 n. 1. The question then is not one of legislative power, but one of construction of the validation act, whether the legislature intended to validate an attempt to apportion future ETJ. City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975). It is important to note that “curative statutes are liberally construed only to effectuate the intent of the legislature in enacting them and not to other ends.” Id. at 653.

Like its predecessors, section 3 of article 974d-39 contained general language validating governmental proceedings performed by cities since their incorporation. Tex.Rev.Civ, Stat. Ann. art. 974d-39 § 3(b) (Vernon Supp.1992). Section 3(b) also specifically validated extensions or attempted extensions of ETJ undertaken at the request of owners of territory; specific voluntary extensions allowed by statute. Id.; see Tex. Loc. Gov’t Code Ann. § 42.022(b) (Vernon 1999). Absent from this validation statute was language validating a municipality’s apportionment of future ETJ. However, because the legislature has addressed and allowed for the release of existing ETJ, see id. § 42.023, we conclude the legislature intended to validate an attempt to limit ETJ in the future as delineated by the ordinances in this case.

Nevertheless, while concluding the release of each city’s future ETJ was validated by statute, again, we do not conclude section 3(b) validated Mission’s receipt of the future ETJ. See City of Austin, 953 S.W.2d at 430. We cannot conclude that the legislature would validate an ordinance that attempted to expand a municipality’s ETJ through the receipt of another’s future ETJ in contradiction of the express statutory limitations on a municipality’s authority. See Tex. Log. Gov’t Code Ann. § 42.022 (Vernon 1999) (providing ETJ to be acquired through annexation, request or increase in number of inhabitants).

C. Ambiguity

Alton asserts, in the alternative, that the ordinances are ambiguous as to whether they apply solely to subdivision regulation or to annexation as well. It contends that a fact issue exists as to the intent of the breadth of the agreement and Mission’s motion for summary judgment should have been denied. The parties agree that they entered into an agreement. Our review, therefore, will be under the law regarding contract construction.

“[I]f there is no ambiguity, the construction of the written instrument is a question of law for the Court.” City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). “It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the Courts will give effect to the intention of the parties as expressed or as is apparent in the writing.” Id. “In the usual case, the instrument alone will be deemed to express the intentions of the parties for it is objective, not subjective, intent that controls.” Id. “The primary concern of a court interpreting a contract is to ascertain and to give effect to the intentions of the parties as expressed in the instrument.” R & P Enter, v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex.1980).

While the preamble of each ordinance refers to sections 42.021 and 42.901, the language in the body of each ordinance defines “boundaries” beyond which Alton’s ETJ and Mission’s ETJ will not go: Alton’s ETJ shall not extend south across, nor Mission’s ETJ north of, 4 Mile Line Road and Alton’s ETJ shall not extend west, nor Mission’s ETJ extend east, of Moorefield Road and Alton’s ETJ shall not extend north, nor Mission’s ETJ extend south of, 6 Mile Line Road. The ordinances do not state that they are limited to defining ETJ only for the purposes of subdivision development. The agreement, as memorialized by the ordinances, clearly expresses the intent of Mission and Alton to define ETJ for all purposes, not just for subdivision development. Moreover, Alton concedes that Mission has authority to assert power to regulate subdivision plats within a five-mile limit of its incorporated area, see Tex. Loc. Gov’t Code Ann. §§ 212.001-.003 (Vernon 1999 & Vernon Supp.2004-2005), and, pursuant to section 212.007, Mission, as the municipality with the largest population, had authority to review and approve a plat for a tract located in overlapping ETJ, if any, of Mission and Alton. See id. § 212.007(a) (Vernon 1999). Therefore, if the agreement were solely for the defining of future ETJ for subdivision development, it would not have been necessary. We conclude, therefore, the ordinances that form the basis of this suit are not ambiguous.

D. Continuing Performance

In the alternative, Alton contends the agreement impermissibly contemplates a continuing performance, or successive performances for an indefinite duration, and, therefore, allows Alton to terminate the agreement at any time. However, unlike Clear Lake Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, 390 (Tex.1977) (involving an agreement that provided fixed rates for an indefinite time caused governmental entities great future financial losses), the authority upon which Alton relies, the agreement between Alton and Mission involved one transaction, similar to the sale of real estate, that took place when the ordinances were passed.

E.Repeal of Ordinance

Alton also contends it has authority to repeal the ordinance for the public good pursuant to section 51.001 of the Texas Local Government Code. See Tex. Loc. Gov’t Code Ann. § 51.001 (Vernon 1999) (setting out that city may “adopt, publish, amend, or repeal an ordinance that ... is for the good government, peace, or order of the municipality or for the trade and commerce of the municipality.... ”). However, Alton’s argument disregards the fact that the mutual ordinances represent a contract between Alton and Mission, and contract principles apply in this case. See Belton v. Head, 137 S.W. 417, 418 (Tex.Civ.App.-Austin 1911, no pet.) (“All ordinances ... are subject to repeal, except such as are contractual in their character.”)

F.Lack of Consideration

Also in the alternative, Alton argues a fact issue exists regarding Alton’s affirmative defense that the purported agreement between the cities fails for lack of consideration. See Carrico v. Kondos, 111 S.W.3d 582, 586-87 (Tex.App.-Fort Worth 2003, no pet.) (issue of material fact on affirmative defense of failure of consideration precluded summary judgment). However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex.R.App. P. 38.1(h). Because this contention is inadequately briefed, we will not review it.

G.Attorney’s Fees

Alton also complains that the trial court should not have awarded attorney’s fees and costs to Mission because the trial court based this award upon its decision to grant Mission’s motion for summary judgment. In a declaratory judgment action the trial “court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Pbac. & Rem.Code Ann. § 37.009 (Vernon 1997). “[I]n reviewing an attorney fee award under the [declaratory judgment act], the court of appeals must determine whether the trial court abused its discretion by awarding fees when there was insufficient evidence that the fees were reasonable and necessary, or when the award was inequitable or unjust.” Boc-quet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Alton contends that because Mission was not entitled to prevail upon its summary judgment motion, the trial court’s award of costs and fees was not equitable and just. However, having determined that Mission was entitled to prevail on its claims regarding future ETJ and Alton was not, we conclude the trial court did not abuse its discretion in awarding costs and attorney’s fees to Mission.

H.Annexation

Additionally, we note that the trial court granted Mission’s summary judgment on the basis that the cities entered into a valid agreement and that Alton’s repeal of the agreement was void. It did not grant Mission’s summary judgment on the basis that Alton’s complained-of annexations were void, and Mission does not bring annexation as an issue on appeal. The trial court also denied Alton’s motion for summary judgment, as well as all other relief sought. On appeal, Alton complains that Mission also violated the agreement. Alton, however, did not urge Mission’s violation as a basis for its motion for summary judgment. See Tex.R. Civ. P. 166a(c) (providing motion for summary judgment shall state specific grounds); McConnell v. Southside Indep. Sch. Dist, 858 S.W.2d 337, 339 (Tex.1993) (concluding issues not expressly presented to trial court by written motion or response cannot be considered on appeal as grounds for reversal). Therefore, the issue of annexation and Mission’s alleged breach are not before us.

IV. Conclusion

Accordingly, we conclude the trial court did not err in granting Mission’s motion for summary judgment and denying Alton’s motion for summary judgment to the extent the motions addressed limitation of future ETJ. Alton’s first and second issues are overruled.

Having overruled Alton’s issues on appeal, we affirm the trial court’s declaration that, as to future ETJ, Alton’s ordinance 91-05 and Mission’s ordinance 1614 constituted a valid and fully enforceable contract and Alton’s action of repealing ordinance 91-05 constituted a breach of contract.

      . On August 23, 1963, ETJ became effective by the adoption of the Municipal Annexation Act. See Tex.Rev.Civ. Stat. Ann. art. 970a (Vernon 1963), repealed by Acts 1987, ch. 149, sec. 49(1), 1987 Tex. Gen. and Spec. Laws 707, 766, (now located at Tex Loc. Gov’t Code Ann. § 42.001 (Vernon 1999)).

      . An exception to this rule, inapplicable to this case, occurs in cases of judicial apportionment of ETJs that overlapped on August 23, 1963. See Tex. Loc. Gov’t Code Ann. § 42.901 (Vernon 1999).

      . Alton does not challenge the trial court's judgment to the extent it addresses the release of its existing ETJ. See Tex. Loc. Gov’t Code Ann. § 42.023 (Vernon 1999) (providing ETJ of municipality may be reduced if city gives written consent by ordinance or resolution). Alton also concedes that Mission has authority to assert power to regulate subdivision plats within a five-mile limit of its incorporated area. See id. §§ 212.001-.003 (Vernon 1999 & Supp.2004-2005); see also id. § 212.007(a) (Vernon 1999) (stating that municipality with largest population has authority to review and approve plat for tract located in overlapping ETJ). Therefore, Alton is not challenging the judgment as it relates to subdivision development.

      . We do not agree with Mission’s independent alternative argument wherein it asserts that pursuant to chapter 212 of the local government code, its statutory ETJ in 1991 was five miles for all purposes. See Tex. Loc. Gov't Code Ann. § 212.001 (Vernon 1999). Section 212.001 defines ETJ as five miles for municipalities located in a county with a population of 5,000 or more along the Rio Grande, and begins with the words "[i]n this subchapter.” Id. Therefore, we construe the definition of ETJ in section 212.001 as one applying only to municipal regulation of subdivisions and property development, not to annexation. See id. §§ 212.001, 212.042 (provisions of sub-chapter A not in conflict with subchapter B apply to development plats); see also Tex. Gov’t Code Ann. § 311.011 (Vernon 1998 & Supp.2004) (to ascertain legislative intent, first look to plain and common meaning of words used by legislature); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex.2002) (same); Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002) (interpreting statutes, a legal matter, is subject to de novo review); Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002) (overriding goal of statutory interpretation is to determine legislature’s intent).

      . This statute became effective in 1992. See Kinkaid School, Inc. v. W. McCarthy, 833 S.W.2d 226, 231 (Tex.App.-Houston [1st Dist.] 1992, no writ) (concluding statute applies to governmental acts and proceedings occurring before effective date of statute).

      . By a counterclaim, Alton alleged that Mission first breached the agreement by the extension of its ETJ south of 6 Mile Road and north of 4 Mile Road and by an annexation east of Moorefield Road.


author: Justice CASTILLO.

text:
    Eric D. HARRISON, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, et al., Appellee.
    No. 13-04-274-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 26, 2005.
    Rehearing Overruled June 23, 2005.

      Eric D. Harrison, Cuero, pro se.
    Deven Desai, Asst. Atty. Gen., Austin, for appellee.
    Before Justices RODRIGUEZ, CASTILLO, and GARZA.
   OPINION

Opinion by

Justice CASTILLO.

Appellant, Eric D. Harrison, an indigent inmate in the Texas Department of Criminal Justice-Institutional Division (TDCJ), appeals his pro se case under chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem.Code Ann. § 14.003 (Vernon 2002). He sued appel-lees, the TDCJ, a captain, and a correctional officer, seeking district court de novo review of an administrative disciplinary decision. We affirm the trial court’s chapter 14 dismissal of the lawsuit.

I. Issues Presented

Harrison presents two issues: (1) whether the trial court erred in dismissing his prisoner’s in forma pauperis suit under chapter 14 as frivolous without a fact hearing; and (2) whether the disciplinary procedures in question were constitutionally sound because he was denied (a) the right to confront and cross-examine a witness, and (b) a neutral and detached hearing officer.

II.Background

By a major disciplinary report, Harrison was charged with threatening to inflict harm on a corrections officer on or about November 1, 2008. Harrison denied the allegation. A disciplinary hearing was convened on or about November 10, 2003. Harrison pleaded not guilty, and, after the evidentiary hearing, was found guilty. Punishment was assessed at a “reprimand with action.” After exhausting internal appeals, Harrison filed suit for de novo review in the district court of the disciplinary action imposed. In his original petition, he alleged the disciplinary action was not reasonably supported by substantial evidence and was an abuse of discretion. As relief, he requested that the district court conduct review de novo, vacate the administrative decision, and expunge his record of the disciplinary action. Harrison filed a motion to proceed informa pauper-is, a declaration of previous court filings, and a declaration of previous grievance filings.

Appellees filed a motion to dismiss, asserting his claims were barred because the relief requested was barred as a matter of law. Harrison’s response asserted essentially that the motion had no basis in law or in fact. The trial court granted the motion to dismiss. The order states the trial court (1) reviewed the lawsuit for compliance with chapter 14 of the civil practice and remedies code, and (2) dismissed pursuant to chapter 14. This appeal ensued.

III.Scope and Standard of Review

The proper standard of review for the dismissal of a frivolous claim pursuant to chapter fourteen is an abuse of discretion. Jackson v. Tex. Dep’t of Crim. Justice-Institutional Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied). To establish an abuse of discretion, an appellant must show the trial court’s actions were arbitrary or unreasonable in light of all the circumstances. Id. (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984)). The standard is clarified by asking whether the trial court acted without reference to any guiding rules or principles. Spurlock v. Schroedter, 88 S.W.3d 733, 735-736 (Tex. App.-Corpus Christi 2002, no pet.).

The trial court has broad discretion to dismiss an inmate’s claim as frivolous. Jackson, 28 S.W.3d at 813. In making that determination, the trial court may consider if (1) the claim’s realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear that the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prag. & Rem.Code Ann. § 14.003(b) (Vernon 2002); Jackson, 28 S.W.3d at 813; Spurlock, 88 S.W.3d at 736.

IV.Discussion

By a sub-issue in his first issue presented, Harrison complains of the dismissal of his petition without a hearing. In determining whether to dismiss a suit under section 14.003, the court may hold a hearing. Tex. Civ. PRAC. & Rem.Code Ann. § 14.003(c) (Vernon 2002). The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court. Id, The statute’s plain language indicates the court’s determination to hold a hearing is discretionary. Spurlock, 88 S.W.3d at 736. Accordingly, it was not mandatory that the trial court conduct a healing to decide whether Harrison’s suit should be dismissed. Id. Because the healing was not mandatory, the trial court did not err in failing to hold a hearing. Id. Thus, we overrule the sub-issue in Harrison’s first issue. We turn to Harrison’s remaining issues.

Because the trial judge held no hearing on the motion to dismiss, he may not dismiss on the ground that there was no arguable basis in fact. See id. The issue before us therefore is whether the trial court properly determined there was no arguable basis in law for the suit. Id. To assess whether the trial court properly made this determination, we examine the types of relief and causes of action set out in the petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Id. In considering the record before us, we review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers. Id.

The dismissal motion asserted grounds against both of Harrison’s claims. Because the order does not state the specific ground on which it was granted, Harrison must show that each independent argument alleged in the motion to dismiss is insufficient to support the order. See Carson v. Walker, 134 S.W.3d 300, 302 (Tex.App.-Amarillo 2003, no pet.). We turn to Harrison’s causes of action for (1) de novo district court review of a disciplinary decision, (2) expungement of the disciplinary record, and (3) unconstitutional disciplinary procedures.

A. De Novo District Court Review

Harrison argues that de novo review is available under section 2001.173 of the Texas Government Code. See Tex. Gov’t Code Ann. § 2001.173 (Vernon 2000). Appellees counter that, while section 2001.173 allows for district court de novo review, section 2001.226 clearly states that section 2001.173 does not apply to TDCJ inmates. See Tex. Gov’t Code Ann. § 2001.226 (Vernon 2000). Section 2001.226 states:

This chapter does not apply to a rule or internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure.

See id.

We agree with appellees. A person may obtain judicial review of an administrative action only if a statute provides a right to judicial review, or the action adversely affects a vested property right or otherwise violates a constitutional right. See Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex.2000); Firemen’s & Policemen’s Civil Serv. Comm’n v. Kennedy, 514 S.W.2d 237, 239 (Tex.1974); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951). Harrison’s lawsuit requests de novo review of an administrative decision assessing discipline for a rule infraction. Section 2001.226 expressly bars de novo review by district court in this instance.

B. Record Expunction

Harrison also sought expunction of the record memorializing the disciplinary action. To adjudicate the cause of action, the trial court would be required to review the propriety of the disciplinary proceedings Harrison asserts in his de novo review claim, together with administrative rules regarding the keeping of disciplinary records. Because his second cause of action also involves a “rule” of the TDCJ “that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure,” within the clear meaning of the statute, we conclude that the cause of action falls within the scope of section 2001.226 and, thus, is also barred.

An additional basis for concluding the claim is statutorily barred exists in the context of chapter 14 proceedings. We further conclude that expungement of Harrison’s disciplinary record is derivative of his de novo review claim. Because we have concluded his de novo review claim is barred, the expungement cause of action which is inextricably intertwined with his first cause of action is moot.

C. Constitutional Claim

In his second issue, Harrison asserts that the disciplinary procedures were unconstitutional because he was denied the right to confront and cross-examine the complainant correctional officer, and he was denied a neutral and detached hearing officer. We conclude that the plain meaning of section 2001.226 also bars the constitutional claim. Section 2001.226 expressly applies to an “internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate” or “to an action taken under that rule or procedure.” See Tex. Gov’t Code Ann. § 2001.226 (Vernon 2000). We must presume that the Legislature intended the plain meaning of the words it used in the statute, and we must give effect to its intent.

V. Conclusion

The trial court could properly have concluded that there was no arguable basis in law for Harrison’s lawsuit. Cf Spurlock, 88 S.W.3d at 737. Accordingly, we conclude that the trial court did not act without guiding principles, and did not abuse its discretion. See Jackson, 28 S.W.3d at 813. We overrule Harrison’s first and second issues. We affirm the order dismissing the lawsuit.

      . In a civil case, this Court will accept as true the facts stated unless another party contradicts them. See Tex.R.App. P. 38.1(f). The statement must be supported by record references. Id.

      . The statement attributed to Harrison was, “You could get hit if continuing to clean benches.”

      .Harrison refers to a hearing in which the correctional officer testified by telephone. He additionally refers to a hearing tape and his witnesses' statements. However, a record of the testimony and evidence is not part of the record before us.

      . We apply standard rules of statutory construction. See Tex. Gov't Code Ann. § 312.002(a)(Vernon 2005) (ordinarily, "words shall be given their ordinary meaning”). In construing a statute, the reviewing court should determine and give effect to the Legislature’s intent. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). The court must first look to the statute’s plain and common meaning. Allen, 15 S.W.3d at 527; Fitzgerald v. Advanced Spine Fixation, 996 S.W.2d 864, 865 (Tex.1999). The court presumes that the Legislature intended the plain meaning of the words it used. Allen, 15 S.W.3d at 527.

      . Harrison sought de novo review for a determination that the discipline administered was "null and void.”

      .Section 2001.173 states:
      (a) If the manner of review authorized by law for the decision in a contested case that is the subject of complaint is by trial de novo, the reviewing court shall try each issue of fact and law in the manner that applies to other civil suits in this state as though there had not been an intervening agency action or decision but may not admit in evidence the fact of prior state agency action or the nature of that action except to the limited extent necessary to show compliance with statutory provisions that vest jurisdiction in the court.
      (b) On demand, a party to a trial de novo review may have a jury determination of each issue of fact on which a jury determination could be obtained in other civil suits in this state.

        Tex. Gov’t Code Ann. § 2001.173 (Vernon 2000).

      . An inmate must exhaust his administrative remedies before filing suit. See Tex. Gov't Code Ann. §§ 501.007-.008 (Vernon 2004) (outlining the specific procedures an inmate must complete in order to exhaust his administrative remedies). Harrison filed copies of his grievance, showing the date his grievances were filed, the date written decisions were received, and copies of the written decisions. See Tex. Civ. Prac. & Rem.Code Ann. § 14.005(a) (Vernon 2002). The parties do not dispute that Harrison exhausted his administrative remedies.

      . See note 4.

      . See note 4.


author: RICHARD BARAJAS, Chief Justice.

text:
    I & JC CORP. and Bayside Brush Co. d/b/a Camila Paris, Appellants, v. HELEN OF TROY L.P., Appellee.
    No. 08-04-00110-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2005.

      Rene Ordonez, Delgado, Acosta, Braden & Jones, P.C., El Paso, for Appellants.
    R. Wayne Pritchard, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s denial of special appearance motions decided against Appellants. For the reasons stated herein, we affirm the trial court’s finding that jurisdiction in Texas is appropriate.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant I & JC Corp. is a Florida corporation originally incorporated for the business of retail sales of women’s hair accessories. Appellant Bayside Brush Co. was subsequently created to focus on retail sales of hair accessories and I & JC transferred its focus to the wholesale distribution of hair accessories. Appellant corporations are separate corporate entities though they share officers and directors and have a close business relationship.

Appellee, Helen of Troy L.P. is a limited Texas partnership in the business of supplying many types of hair and beauty products under various brand names. During the late 1990’s, Appellants had a business relationship with the supplier of Karina products. Appellee acquired Karina in 1999. After the acquisition of Karina, the parties continued to do business but Appellants contend that the terms and conditions for the placement of orders for products and purchases was changed. A short time after the purchase, the relationship ended over a dispute about the credit arrangement between the parties. Appellants were in possession of several thousand dollars worth of hair products which they offered to return for credit. Appellee refused the return and demanded payment. Appellants deny that they owe any money for the merchandise and that their only obligation is to return the products.

Subsequent to the end of the relationship, Appellants began marketing substantially similar hair products under the name Camila Paris using what Appellee contends is the “trade dress” being used by Appellee for Karina products. Appellee also contends that Appellants have begun using, without permission, the name “Karina,” on the meta tags of their active website. Appellants have sold, and continue to sell, products both in Texas and across the nation, using the Camila Paris label which Appellee contends is a trade dress infringement. Appellee sued Appellants in El Paso, Texas alleging violations of the Karina trademark and trade dress protection, unfair competition, violation of the Texas Business and Commerce Code, a breach of contract, requesting a declaratory judgment, and requesting injunctive relief. Each Appellant filed a Special Appearance challenging jurisdiction of the Texas courts. Appellee’s response to the special appearances asserted five grounds for establishing jurisdiction over Appellants: (1) breach of contract, (2) trade dress infringement, (3) trademark infringement, (4) interactive websites, and (5) alter ego.

After a hearing on the special appearances, the trial court entered an order denying the special appearances. Appellants filed a Motion for Entry of Findings of Fact and Conclusions of Law. Plaintiff and Defendants filed Proposed Findings of Fact and Conclusions of Law. The trial court did not file findings of fact or conclusions of law and Appellants did not file a notice of past due findings of fact and conclusions of law.

Appellants filed a Notice of Interlocutory Appeal and assert six issues.

II. ISSUES ON APPEAL

In six issues, Appellants challenge the court’s denial of their special appearance. In Issues One through Four, Appellants complain that the trial court erred in finding specific and general jurisdiction as to each Appellant respectively. Issue Five complains that the trial court erred in finding that Appellant Bayside was the alter ego of I & JC in submitting each to jurisdiction because of the minimum contacts of each company. Issue Six complains generally that the trial court’s finding of jurisdiction violates traditional notions of fair play and substantial justice.

We read these issues collectively as a challenge to the trial court’s implied findings of fact and conclusions of law that there is sufficient evidence to subject both Appellants to the jurisdiction of Texas courts on the grounds of minimum contacts, commission of a tort, and alter ego, as a matter of law. Stated in the alternative, we read Appellants’ complaints as a challenge that there is no or insufficient evidence to support the trial court’s decision finding jurisdiction and denying the special appearance.

III. STANDARD OF REVIEW

A trial court’s order granting or denying a special appearance under Tex.R. Civ. P. 120a is appealable as an interlocutory appeal. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-05). The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute. See McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965). The special appearance procedure requires that a defendant challenging a Texas court’s personal jurisdiction over it must negate all jurisdictional bases. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002); Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). Once a plaintiff has properly plead sufficient jurisdictional facts, a defendant must present evidence to rebut the jurisdictional allegations asserted because the burden has shifted. Further, a plaintiff may present evidence of jurisdictional facts at the hearing on the special appearance. See Zimmerman v. Glacier Guides, Inc., 151 S.W.3d 700, 704 (Tex.App.-Waco 2004, no pet.).

Whether a court has personal jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). The trial court, however, frequently must resolve questions of fact before deciding the jurisdiction question. Id. If a trial court enters an order denying a special appearance, and the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. Id.; see Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (TexApp.-Dallas 1993, writ denied). The courts of appeals may review the fact findings for both legal and factual sufficiency. BMC Software Belgium, N.V., 83 S.W.3d at 794; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

Appellate courts review a trial court’s conclusions of law as a legal question. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, pet. denied). The appellant may not challenge a trial court’s conclusions of law for factual insufficiency; however, the reviewing court may review the trial court’s legal conclusions drawn from the facts to determine their correctness. Templeton v. Dreiss, 961 S.W.2d 645, 656 n. 8 (TexApp.-San Antonio 1998, pet. denied); Dallas County v. Sweitzer, 881 S.W.2d 757, 763 (Tex.App.-Dallas 1994, writ denied). If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Scholz v. Heath, 642 S.W.2d 554, 559 (Tex. App.-Waco 1982, no writ).

When a trial court rules on a special appearance, the losing party should request findings of fact and conclusions of law. Tex.R. Civ. P. 296; Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 715 (TexApp.-Austin 2000, pet. dism’d w.o.j.), cert, denied, 535 U.S. 1077, 122 S.Ct. 1960, 152 L.Ed.2d 1021 (2002). When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. BMC Software Belgium, N.V., 83 S.W.3d at 795; see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987); In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984). When the appellate record in-eludes the reporter’s and clerk’s records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court. BMC Software Belgium, N.V., 83 S.W.3d at 795; Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Zac Smith & Co., 734 S.W.2d at 666. When such points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Roberson, 768 S.W.2d at 281. For legal sufficiency points, if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. BMC Software Belgium, N.V., 83 S.W.3d at 795; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992).

We will set aside a finding of the trial court only if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex.App.-Houston [14th Dist.] 1988, writ denied). In reviewing such a point of error, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. See In re King’s Estate, 244 S.W.2d at 665; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In considering the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the finding should be set aside, regardless of whether some evidence supports it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King’s Estate, 244 S.W.2d at 661.

If evidence supports the implied findings of fact, we must uphold the trial court’s judgment on any legal theory supported by the findings. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Goodenbour v. Goodenbour, 64 S.W.3d 69, 75-76 (Tex.App.-Austin 2001, pet. denied); Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987); Runnells, 746 S.W.2d at 848. This is so regardless of whether the trial court articulates the correct legal reason for the judgment. Harrington v. Railroad Comm’n, 375 S.W.2d 892, 895 (Tex.1964); Goodenbour, 64 S.W.3d at 76; Fish v. Tandy Corp., 948 S.W.2d 886, 892 (Tex.App.-Fort Worth 1997, writ denied); Marifarms Oil & Gas, Inc. v. Westhoff, 802 S.W.2d 123, 125 (Tex. App.-Fort Worth 1991, no writ). We review thé legal conclusions supporting the judgment to determine whether they are correct as a matter of law. Goodenbour, 64 S.W.3d at 76; Lawrence v. Kohl, 853 S.W.2d 697, 699 (TexApp.-Houston [1st Dist.] 1993, no writ).

Although findings of fact are not required, see Tex.R.App. P. 28.1, if the trial court does not file findings of fact in a case challenging a special appearance, all questions of fact are presumed to support the judgment. Michiana Easy Livin’ Country Inc. v. Holten, 127 S.W.3d 89, 94 (Tex. App.-Houston [1st Dist.] 2003, pet. granted); Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 427 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

Further, the losing party is required to bring the trial court’s failure to the attention of the trial court. Texas Rule of Civil Procedure 297 provides, in part, the following:

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a “Notice of Past Due Findings of Fact and Conclusions of Law” which shall be immediately called to the attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the findings and conclusions were due.

Tex.R. Civ. P. 297.

The failure to file a notice of past due findings of fact waives the right to complain about the trial court’s failure to file findings of fact and conclusions of law. See Cmiis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (TexApp.-Houston [14th Dist.] 2000, no pet.); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex.1984). No such notice appears in the record of this case. Although the record shows that each party filed Proposed Findings of Fact and Conclusions of Law and Appellants noted in their Notice of Interlocutory Appeal that “Appellants timely filed a request for findings of fact and conclusions of law, which the trial court has yet to file” they did not file the Notice required by Rule 297 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 297.

If the appellant does not challenge the trial court’s findings of fact, when filed, these facts are binding upon both the party and the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ. App.-Beaumont 1980, writ refd n.r.e.). Accordingly, it is incumbent for the appellant to attack the findings by appropriate legal and factual sufficiency points of error. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.-Tyler 1978, writ refd n.r.e.).

It would have been helpful for the court to have articulated its findings of facts and conclusions of law but because no findings of fact or conclusions of law were filed in this case, we will presume that the trial court found all necessary facts to support the judgment. After review of the appellate record, however, we determine that there is ample evidence to support the trial court’s implied findings and its implied findings are not against the great weight and preponderance of the evidence.

IY. PERSONAL JURISDICTION-THE TEXAS LONG-ARM STATUTE

A Texas court may assert personal jurisdiction over a non-resident defendant only if the requirements of both the Texas long-arm statute and the United States Constitution are satisfied. See Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-045 (Vernon 1997 and Supp.2004-05); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1871-72, 80 L.Ed.2d 404 (1984); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996). A nonresident does business in Texas if it:

(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997).

In addition, the statute provides that “other acts” by the non-resident can satisfy the requirement of “doing business” in Texas. Id.; Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). The Texas Supreme Court has interpreted this broad statutory language to reach as far as the federal constitutional requirements of due process will permit. BMC Software Belgium, N.V., 83 S.W.3d at 795. Therefore, the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. CSR, Ltd., 925 S.W.2d at 594.

Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A nonresident defendant that has “purposefully availed” itself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985) (discussing the constitutional boundaries of personal jurisdiction). Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant has purposefully established “minimum contacts” with the forum state. Guardian Royal, 815 S.W.2d at 227. A defendant, however, should not be subject to a foreign court’s jurisdiction based upon “random,” “fortuitous,” or “attenuated” contacts. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183.

A. Minimum Contacts

Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either specific jurisdiction or general jurisdiction. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 413-14, 104 S.Ct. at 1871-72; BMC Software Belgium, N.V., 83 S.W.3d at 795; Guardian Royal, 815 S.W.2d at 226. Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted within the forum. BMC Software Belgium, N.V., 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 227. In contrast, general jurisdiction is present when a defendant’s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software Belgium, N.V., 83 S.W.3d at 796; Guardian Royal, 815 S.W.2d at 228; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Therefore, we must determine that there are either minimum contacts sufficient to confer specific jurisdiction or continuous and systematic contacts sufficient to confer general jurisdiction.

To establish specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant’s contact with the forum state, and the conduct must have resulted from that defendant’s purposeful conduct, not the unilateral conduct of the plaintiff or others. TeleVentures, Inc. v. International Game Technology, 12 S.W.3d 900, 907 (Tex.App.Austin 2000, pet. denied). Thus, in analyzing minimum contacts for the purpose of determining Texas courts’ specific jurisdiction, we focus on the relationship among the defendant, the forum, and the litigation. Id. at 908; Michiana Easy Livin’ Country Inc., 127 S.W.3d at 96; Blair Communications, Inc. v. SES Survey Equip. Services, Inc., 80 S.W.3d 723, 727 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Memorial Hosp. System v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex.App.-Houston [14th Dist.] 1992, no writ). The contacts must be purposely directed at or take place within the forum, and must have a “substantial connection” that results in the alleged injuries. Mic-hiana Easy Livin’ Country Inc., 127 S.W.3d at 96.

Under the minimum contacts test for specific jurisdiction, we must determine whether appellee has had purposeful contacts with the forum state, thus invoking the benefits and protections of its laws. Guardian Royal, 815 S.W.2d at 226. This requirement ensures that a nonresident defendant will not be haled into a jurisdiction based solely upon random or fortuitous contacts or the “unilateral activity of another party or a third person.” Id. As long as the contact creates a substantial connection with the forum state, even a single act can support jurisdiction, but a single act or occasional acts may be insufficient to establish jurisdiction if their nature and quality and the circumstances of their commission create only an attenuated connection with the forum. Burger King, 471 U.S. at 476 n. 18,105 S.Ct. at 2184. In determining whether a nonresident defendant’s contacts are random and fortuitous, the Texas Supreme Court has looked at whether the contacts are based upon the unilateral acts of the plaintiff or if the defendant participated in an act that resulted in a contact. CSR, Ltd., 925 S.W.2d at 595.

Merely contracting with a Texas citizen does not, by itself, satisfy the minimum contacts requirement. Michiana Easy Livin’ Country Inc., 127 S.W.3d at 96. However, even if a non-resident has a single contact with Texas, our courts may exercise specific jurisdiction if the contact is of substantial quality and nature and the cause of action arises out of that contact. Id.; Ahadi v. Ahadi, 61 S.W.3d 714, 719 (Tex.App.-Corpus Christi 2001, pet. denied); Memorial Hosp. Sys., 835 S.W.2d at 650. The focus of the examination must be the nature of the contacts and the “nexus” these contacts create with the forum state. Miehiana Easy Livin’ Country Inc., 127 S.W.3d at 96; Ring Power Sys. v. International De Comercio Y Consultoria, 39 S.W.3d 350, 354 (Tex.App.-Houston [14th Dist.] 2001, no pet.); McDermott v. Cronin, 31 S.W.3d 617, 621 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

B. Contacts with Texas

The trial court entered a general order denying the special appearance of the parties. Due to its general nature, we assume that the trial court made the appropriate factual findings and conclusions of law to support a finding of both specific and general jurisdiction of Texas courts over Appellants. Initially, we focus our analysis on the issue of whether Appellants’ contacts with Texas were sufficient to subject Appellants to specific jurisdiction. See Michiana Easy Livin’ Country Inc., 127 S.W.3d at 94; see also C-Loc Retention Systems, Inc. v. Hendrix, 993 S.W.2d 473, 478 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

C. Specific Jurisdiction

Appellee alleged that Appellants have committed acts that constitute doing business in the state of Texas such that they could reasonably have expected to be subject to the jurisdiction of Texas courts. Appellee plead that Appellants entered into a contract with Appellee, a Texas resident, with the intention of purchasing products from Appellee and agreed to pay for the products in Texas. Appellee contends that the contractual basis for the relationship between the parties may be one factor considered by the courts in determining that minimum contacts existed between Appellants and Texas. Further, Appellee alleges that Appellants committed certain torts against them in Texas. The torts complained of are the trade dress infringement and trademark infringement. The trade dress infringement allegedly occurred upon the sale of goods in Texas designed and packaged to resemble Appellee’s Karina product line, and the trademark infringement occurred through the use of Appellee’s Karina trademark in the meta tag of the Bayside web page. Appellants admitted that they sold products to Texas stores. Appellee contends and the trial court found by implication, that the contractual relationship, the sale of products in Texas stores and the allegations of tortious contact is sufficient to establish minimum contacts between Appellants and Texas. Appellants had the burden of negating the foregoing bases for personal jurisdiction. See Kawasaki Steel Corp., 699 S.W.2d at 203.

We recognize that the act of entering into a contract and the subsequent breach of a contract, without more, is not necessarily sufficient to confer jurisdiction on the Texas courts. See TeleVentures, Inc., 12 S.W.3d at 908. The record reflects, and we must presume that the trial court found, that the parties had entered into a contract whereby the Appellants ordered products from the Texas Appellee, agreed to pay for the products in Texas, and sent various communications back and forth between the parties regarding the agreement and that the contractual basis for supporting the cause of action was based on more than the mere entering into a contract with a Texas resident. Looking to the evidence which supports the implied .findings of the trial court, we cannot say that the trial court’s implied finding of minimum contacts because of the agreement to perform and subsequent breach of the Texas contract is manifestly unjust.

Turning to the issue of the commission of the torts, we agree with Appellee that there is sufficient evidence in the record to support the trial court’s implied finding that the tort of trade dress and trademark infringement were committed in Texas. The record reflects some evidence that Appellants sold products in Texas and that the sale of such products would constitute trade dress infringement. Again recognizing that our review is limited by the lack of findings, we cannot say that the implied finding is manifestly unjust or unsupported by the record. We do not reach the underlying merits of the case we look only to whether the trial court’s decision is erroneous as a matter of law. See Ring Power Sys., 39 S.W.3d at 353.

Appellants admitted that Bayside included a meta tag on the Bayside website which contained, without the permission of Appellee, the Karina trademark. We agree with Appellee that the use, without permission of another’s trademark in a meta tag may constitute trademark infringement. See Horphag Research Ltd., 337 F.3d at 1040; Playboy Enterprises, Inc. v. Calvin Designer Label, 985 F.Supp. 1220, 44 U.S.P.Q.2d 1156 (N.D.Cal.1997).

We review the evidence related to Appellants’ websites to determine whether it is sufficient to support the implied findings of specific and general jurisdiction by the trial court. “Internet use is characterized as falling within three categories on a sliding scale for purposes of establishing personal jurisdiction.” Michel v. Rocket Engineering Corp., 45 S.W.3d 658, 677 (Tex.App.-Fort Worth 2001, no pet.), citing Jones v. Beech Aircraft Corp., 995 S.W.2d 767, 772 (Tex.App.-San Antonio 1999, pet. dism’d w.o.j.). At one end of the scale are websites clearly used for transacting business over the internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. Id. On the other end of the spectrum are “passive” websites that are used only for advertising over the internet and are not sufficient to establish minimum contacts even though they are accessible to residents of a particular state. Id. In the middle are “interactive” websites that allow the “exchange” of information between a potential customer and a host computer. Id, Jurisdiction in cases involving interactive websites is determined by the degree of interaction. Id. Texas courts have used this test in determining whether an internet site is sufficient to support the exercise of general jurisdiction over a defendant. See, e.g., Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 922 (Tex.App.-Texarkana 2002, pet. denied); Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 506-07 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Gessmann v. Stephens, 51 S.W.3d 329, 338-39 (Tex.App.-Tyler 2001, no pet.); Michel, 45 S.W.3d at 677; Riviera Operating Corp. v. Dawson, 29 S.W.3d 905, 911 (Tex.App.-Beaumont 2000, pet. denied); Daimler-Benz Aktiengesellschaft, 21 S.W.3d at 725.

The record provides evidence that the Bayside website is interactive, i.e., that individuals may order off the website. The Bayside website provides access to Texas customers like any other user of the internet. Evidence was presented to the trial court regarding the operation of the website, which included evidence of payments made to various search engines to direct users to the websites, and the method for placement of orders. The Camila Paris products are available to Texas residents through the website. There is sufficient evidence presented to support the trial court’s implied finding that the Bay-side website is interactive and more than merely a passive site subjecting the corporate entity to the jurisdiction of Texas courts.

D. Alter Ego

We also agree that the record contains sufficient evidence to support the trial court’s implied finding that Bayside was the alter ego of I & JC thereby imputing its tortious conduct to I & JC under the alter ego theory.

Personal jurisdiction may exist over a nonresident defendant if the relationship between the foreign corporation and its parent corporation that does business in Texas is one that would allow the court to impute the parent corporation’s “doing business” to the subsidiary. Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir.1983); Walker v. Newgent, 583 F.2d 163, 167 (5th Cir.1978); BMC Software Belgium, N.V., 83 S.W.3d at 798. The rationale for exercising jurisdiction is that “the parent corporation exerts such domination and control over its subsidiary ‘that they do not in reality constitute separate and distinct corporate entities but are one and the same corporation for purposes of jurisdiction.’ ” Hargrave, 710 F.2d at 1159 (citations omitted); BMC Software Belgium, N.V., 83 S.W.3d at 798. The party seeking to ascribe one corporation’s actions to another by disregarding their distinct corporate entities must prove this allegation. Walker, 583 F.2d at 167; BMC Software Belgium, N.V., 83 S.W.3d at 798; see also Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 375 (Tex.1984). This is because Texas law presumes that two separate corporations are indeed distinct entities:

The general rule seems to be that courts will not because of stock ownership or interlocking directorship disregard the separate legal identities of corporations, unless such relationship is used to defeat public convenience, justify wrongs, such as violation of the anti-trust laws, protect fraud, or defend crime.

Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 339 (Tex.1968) (citations omitted).

To “fuse” the parent company and its subsidiary for jurisdictional purposes, the plaintiffs must prove the parent controls the internal business operations and affairs of the subsidiary. BMC Software Belgium, N.V., 83 S.W.3d at 799. But the degree of control the parent exercises must be greater than that normally associated with common ownership and directorship; the evidence must show that the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice. BMC Software Belgium, N.V., 83 S.W.3d at 799; see Hargrave, 710 F.2d at 1160; Conner v. Conti-Carriers and Terminals, 944 S.W.2d 405, 419 (Tex.App.-Houston [14th Dist.] 1997, no writ); see also Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975).

As evidence of alter ego, Appellee contends first that the two corporate Appellants are closely related entities. The evidence reflected that the individuals Jorge Castillo and Ivan Lopez are partners in the business operations of Bayside and I & JC. I & JC sells Camila Paris products through Bayside. The companies share the same offices, address, telephone number, officers, directors, and shareholders. Jorge Castillo, the president of I & JC controls the daily operations of Bayside but receives a paycheck only from I & JC. The financial operations of the companies are handled as one corporation. In short, the record is replete with examples of overlap between the two entities such that there is more than sufficient evidence for the trial court to have found that each corporation is the alter ego of the other and any minimum contacts of one may be imputed to the other.

This record shows such unity between the two corporations that the separateness of the corporations is virtually non-existent. Accordingly, we hold that the evidence is sufficient to support the trial court’s implied finding that I & JC is the alter ego of Bayside and Bayside is the alter ego of I & JC. For this reason, the trial court was correct in denying the special appearances on the grounds that it had general jurisdiction over the Appellants as a result of the doctrine of alter ego.

When reviewing the trial court’s ruling on Appellants’ special appearances, we do not reach the merits of the underlying case. See Ring Power Sys., 39 S.W.3d at 353. The purpose of a special appearance is not to determine liability, but whether the actions alleged by a plaintiff are of a type that suggest a defendant should expect to be subject to Texas jurisdiction. See Mort Keshin & Co. v. Houston Chronicle Publ’g Co., 992 S.W.2d 642, 648 (Tex.App.-Houston [14th Dist.] 1999, no pet.). “Accordingly, where the plaintiff alleges an action in tort that arose out of an act committed in Texas, the necessary proof is only that the purposeful act was committed in this State.” Ring Power Sys., 39 S.W.3d at 353. Thus, we need not determine whether a breach of contract actually occurred in Texas or whether the allegations of trade dress or trademark infringements actually are in fact trade dress or trademark infringements; rather, we focus on the fact that the underlying conduct occurred here in Texas. Instead, we need only determine whether those jurisdictional facts were adequately alleged in Appel-lee’s pleadings and whether those allegations were sufficiently supported by the evidence presented to the trial court to sustain the court’s ruling on Appellants’ special appearances.

Appellants contend that they have presented sufficient evidence to negate the jurisdictional facts found by the trial court. Because the trial court did not issue findings of fact and conclusions of law, however, we must presume that the trial court resolved all factual disputes in Appellee’s favor.

We are persuaded that the record in the trial court provided ample evidence to support its implied findings and conclusions that Appellants had sufficient minimum contacts with the state of Texas to justify either specific or general jurisdiction, that each corporation functions as the alter ego of the other, and that any torts committed by one may be imputed to the other. We recognize that we must focus on the nexus between the contact and the cause of action asserted. We are persuaded that the actions of the Appellants in trade dress infringement and trademark infringement are intimately involved with the Appellants’ contacts with Texans, specifically through their repeated and continuous solicitation of Texas customers. The allegation of tort, particularly via the forum of their interactive website, is sufficient, to implicate the need for Texas to provide a forum for redress to its citizens.

Finally, we consider whether the trial court’s determination violates principals of fair play and substantial justice.

E. Fair Play and Substantial Justice

Having found that Appellants had sufficient minimum contacts with Texas, we next turn to whether the exercise of jurisdiction in Texas is reasonable. To determine whether jurisdiction is reasonable, we evaluate the following factors: (1) the burden on the appellee, (2) Texas’s interest in adjudicating the dispute, (3) appellant’s interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Burger King, 471 U.S. at 477, 105 S.Ct. at 2184; Guardian Royal, 815 S.W.2d at 231.

There is no evidence in the record showing that litigation in Texas would be unfair or unreasonable to Appellants. Although there is a significant geographical distance between the parties’ business offices, distance alone is not sufficient to defeat jurisdiction. Guardian Royal, 815 S.W.2d at 231. The parties have regularly done business with Texas entities and intend to market to Texas through their interactive website. The torts, the trade dress infringement, and the use of the Karina trademark were intended to solicit sales from individuals searching for hair and beauty products. Texas has an interest in protecting Texas companies from the business torts of competitors doing business in our state.

Thus, we conclude that Appellants’ contacts with Texas are sufficient, particularly considering the quality and nature of their contacts, to confer specific jurisdiction oyer them. Furthermore, subjecting Appellants to the jurisdiction of Texas courts is reasonable under the circumstances and does not offend the traditional notions of fair play and substantial justice. Given the companies’ activities and voluntary use of the Karina trademark on their interactive website, Appellants should reasonably anticipate being haled into court in Texas in a suit pertaining to the torts of trade dress infringement and trademark infringement. Accordingly, we overrule Appellants’ Issues One through Six.

Having overruled each of Appellants’ issues, we affirm the judgment of the trial court.

      . "Trade Dress” is a term used to describe the "overall appearance and image in the marketplace of a product or a commercial enterprise. For a product, trade dress typically comprises packaging and labeling. For an enterprise, it typically comprises design and decor. If a trade dress is distinctive and nonfunctional, it may be protected under trademark law.” Black’s Law Dictionary 1500 (7th ed. 1999).

      . A meta tag is an item that is contained on a website. Some search engines examine meta tags to index information about web pages such as subject matter, type of content and author and direct users to a particular website. See Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1039 n. 2 (9th Cir.2003).