author: KEM THOMPSON FROST, Justice.

text:
    Beverly Lois TAYLOR and Jeffrey D. Taylor, individually and as next friends for James Taylor, Joshua Taylor, Jacob Taylor, and Hannah Taylor, minors, and Jeffrey D. Taylor, Jr., Appellants, v. John W. CARLEY, Appellee.
    No. 14-03-00661-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 28, 2004.
    Rehearing En Banc Overruled March 10, 2005.

      Alton C. Todd, Friendswood, Sheila Lee Haddock, Houston, for appellants.
    Norman Snyder, Jr., Wendi Ervin Powers, William J. Sharp, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   OPINION

KEM THOMPSON FROST, Justice.

This case presents a dispute between a psychologist and his former patient. We must determine (1) whether the psychologist’s alleged negligent diagnosis caused the patient’s injury, and (2) whether the psychologist, who had referred the patient to a psychiatrist and who was no longer seeing the patient, had a duty to monitor her progress. Appellants/plaintiffs Beverly Lois Taylor and Jeffrey D. Taylor, individually and as next Mends for James Taylor, Joshua Taylor, Jacob Taylor, and Hannah Taylor, minors, and Jeffrey D. Taylor, Jr., sued appellee/defendant John W. Carley, Ph.D., a psychologist, alleging that Dr. Carley negligently misdiagnosed Beverly Taylor’s condition and failed to follow her symptoms after referring her to a psychiatrist. Dr. Carley moved for summary judgment on traditional and no-evidence grounds, and the trial court granted the motion. We conclude (1) there is no evidence that Dr. Carley’s alleged negligence in diagnosing Mrs. Taylor proximately caused her injury, and (2) Dr. Car-ley had no duty to follow or monitor Mrs. Taylor’s condition after she stopped seeing him. Accordingly, we affirm.

I. Factual and PROCEDURAL BackgRound

Mrs. Taylor’s first appointment with Dr. Carley occurred in September 1998. Mrs. Taylor consulted with him because she had just returned to full-time work outside the home, was experiencing feelings of anxiety, and having problems in her marriage. In the course of her treatment with Dr. Car-ley, Mrs. Taylor discussed her oldest son’s attention deficit/hyperactivity disorder (“ADHD”). Dr. Carley eventually had Mrs. Taylor take some computerized tests, which, according to Mrs. Taylor, Dr. Car-ley said were to test for possible ADHD. Toward the end of his sessions with Mrs. Taylor, Dr. Carley diagnosed her as having attention deficit disorder (“ADD”), not hyperactivity, as well as other conditions. Dr. Carley told Mrs. Taylor he wanted a psychiatrist or other medical doctor to evaluate her and determine what her medication needs might be.

Dr. Carley told Mrs. Taylor about Dr. John Steffek, a psychiatrist who rented office space from Dr. Carley and saw patients at that location one day a week. Dr. Carley advised Mrs. Taylor that Dr. Stef-fek generally treated adolescents and children. Mrs. Taylor knew she was free to see any psychiatrist or other medical doctor she chose, but made her independent choice to consult with Dr. Steffek.

Dr. Steffek met with Mrs. Taylor in mid-December 1998. At that time, they talked about multiple issues to clarify or rule out a diagnosis of ADHD. Before meeting Mrs. Taylor, Dr. Steffek had access to Mrs. Taylor’s history from Dr. Carley, but Dr. Steffek had not arrived at the conclusion that Mrs. Taylor had ADHD. Based on his interaction with Mrs. Taylor and having her talk about questions on a printed page he gave her, Dr. Steffek concluded Mrs. Taylor exhibited seven of nine phenomena for a diagnosis of ADHD, inattentive type. This was one of Dr. Steffek’s three final diagnoses, the other two being generalized anxiety disorder and mixed personality with compulsive, dependent features.

Dr. Steffek told Mrs. Taylor she needed to undergo blood tests, a urinalysis, and an electrocardiogram before he could prescribe medication. Mrs. Taylor completed the blood tests and the urinalysis, but did not have the electrocardiogram. According to Mrs. Taylor, she chose not to have the electrocardiogram because she was busy working and had five children. Dr. Steffek subsequently told Mrs. Taylor she did not need the electrocardiogram because the results of the laboratory work were favorable. Dr. Steffek then gave Mrs. Taylor Dexedrine tablets and told her to try them and also to redo the computer test with Dr. Carley after taking the Dexedrine. Mrs. Taylor reported that her husband was seeing a difference in her behavior, and the results of the re-test also showed improvement after the Dexedrine.

In mid-January 1999, Dr. Steffek first prescribed Adderall for Mrs. Taylor. Dr. Steffek would write the prescriptions one way, but give Mrs. Taylor different directions for taking the medication. Dr. Steffek also instructed Mrs. Taylor to gradually increase the dose, determine how she would feel, and determine whether she had any of the side-effects that typically appear with this medication. If there were no side-effects and functioning was not optimal, Mrs. Taylor was to increase the first dose of the day to attempt to get a more beneficial response. Mrs. Taylor saw Dr. Steffek again in mid-February 1999, and saw him every two months thereafter. According to Mrs. Taylor, sometime around April 1999, she started experiencing headaches and weight loss and reported these symptoms to Dr. Stef-fek. There is some evidence that, at one point, Mrs. Taylor was taking twenty milligrams of Adderall in the morning and twenty in the afternoon, but that was subsequently reduced to fifteen milligrams in the morning and ten in the afternoon. Dr. Steffek never checked Mrs. Taylor’s blood pressure while she was under his care.

According to Mrs. Taylor, she saw Dr. Carley two times after she started taking the Adderall, the second occasion being February 23, 1999. Mrs. Taylor did not report any problems with the medications or side effects to Dr. Carley. At the February 23 visit, Mrs. Taylor reported to Dr. Carley that she was “doing well.” Mrs. Taylor then started missing appointments with Dr. Carley. Dr. Carley wanted Mrs. Taylor to reschedule the missed appointments, but Mrs. Taylor explained to him she could not do so because she could not be missing two or three days a week going to appointments for two different doctors. By the time Mrs. Taylor started experiencing headaches and weight loss, she had stopped seeing Dr. Carley.

Mrs. Taylor testified that by September 1999, she was taking fifteen milligrams of Adderall in the morning and ten milligrams in the afternoon. On September 24, 1999, Mrs. Taylor was hospitalized with “sudden onset of confusional state, headache, and agitation.” Two computered tomography scans performed that day were normal. According to her medical record, Mrs. Taylor’s “presentation, especially the presence of hypertension and mild tachycardia, was suspected of amphetamine toxicity.” Magnetic resonance imaging (“MRI”) was performed the following days. Repeat MRIs showed ischemia (restricted blood flow) of the upper medullary region. Mrs. Taylor had suffered a stroke.

Mrs. Taylor and her husband sued Dr. Carley, Dr. Steffek, three Walgreen entities, and the manufacturer and supplier of Adderral. The Taylors alleged Dr. Car-ley was negligent in (1) failing to assess and evaluate Mrs. Taylor’s status and response to medical treatment and to report such findings to the physician; (2) failing to assess and diagnose Mrs. Taylor’s condition accurately; (3) failing to assess the true extent of the symptoms from which Mrs. Taylor was suffering; (4) failing, on Mrs. Taylor’s subsequent visits, to perform an assessment of the side-effects of the prescribed Adderall; (5) ignoring Mrs. Taylor’s reports of symptoms associated with side-effects from the prescribed Ad-derall; and (6) deviating from the standard of care for a psychologist treating a patient with complaints like Mrs. Taylor’s.

Dr. Carley moved for summary judgment on traditional and no-evidence grounds. He alleged he was entitled to summary judgment as a matter of law because he owed no duty to Mrs. Taylor to:

(1) assess and evaluate Mrs. Taylor’s status and response to medical treatment and to report such findings to the physician;
(2) accurately assess and diagnose Mrs. Taylor’s condition “for purposes of evaluating her need for medication, contraindications to any medication, such as Adderall, side effects of [sic] symptoms associated with that medication”;
(3) assess the true extent of the symptoms Mrs. Taylor was suffering “as it relates to symptoms [Mrs. Taylor] claims to have sustained as a result of taking Adderall”; and
(4) to perform an assessment of the side-effects of the prescribed Adde-rall on Mrs. Taylor’s subsequent visits.

In the trial court, Dr. Carley argued the uncontroverted evidence established he was a psychologist, not a psychiatrist, and as such, he had a duty to evaluate Mrs. Taylor’s psychological symptoms “for the purposes of providing counseling, but not for the purposes of determining whether medication is required or whether [Mrs. Taylor] is having adverse symptoms, resulting from use of Adderall.” He argued there was no breach of duty because the evidence established Mrs. Taylor never complained to Dr. Carley of “any symptoms, side effects, or adverse consequences, whatsoever, whether related to the Adderall or not.” Finally, Dr. Carley argued there was no causation because, although Mrs. Taylor might raise issues about the adequacy of his note-taking, the accuracy of his diagnosis, or the adequacy of his counseling, none of these acts or omissions could have proximately caused Mrs. Taylor’s stroke, which she claimed resulted solely from taking the Adderall. Dr. Carley also pointed to Dr. Steffek’s testimony that Dr. Steffek had prescribed the Adderall and had not relied on Dr. Carley’s notes, treatment, or diagnosis in deciding to prescribe the medication to Mrs. Taylor. In support of the traditional motion for summary judgment, Dr. Carley attached his own deposition testimony and that of Mrs. Taylor and Dr. Steffek.

Dr. Carley also moved for no-evidence summary judgment under Texas Rule of Civil Procedure 166a(i), alleging there was no evidence as to duty, breach of duty, or proximate cause. He specifically asserted:

Particularly, there is no evidence that Dr. Carley prescribed Adderall to Beverly Taylor; there is no evidence that Dr. Steffeck [sic] based his decision to prescribe Adderall to Beverly Taylor in whole or in part on Dr. Carley’s findings or diagnosis of ADHD; there is no evidence that Dr. Carley knew or should have known of the potential adverse consequences of the drug Adderall upon Mrs. Taylor; there is no evidence that Dr. Carley knew or should have known of adverse symptoms or effects suffered by Mrs. Taylor following prescription of the Adderall; there is no evidence that Dr. Carley’s acts or omissions, if any, proximately caused the damages she complains of, all of which arose or are derived from her claim that she sustained a stroke as a result of taking Adderall.

The Taylors responded to the summary judgment motions and also objected to Dr. Carley’s reliance on the depositions of Dr. Steffek and Dr. Carley because both individuals were interested parties. The Tay-lors’ own summary-judgment evidence consisted of (1) excerpts from the depositions of Dr. Carley, Dr. Steffek, and Mrs. Taylor, (2) an affidavit from Ron Kimball, Ph.D., who had reviewed Dr. Carley’s chart notes for Mrs. Taylor, (3) a letter from Mitchell S. Felder, M.D., Mrs. Taylor’s psychiatrist expert, and (4) Northeast Medical Center Hospital’s discharge summary for Mrs. Taylor. The Taylors attempted to adduce evidence regarding duty solely by pointing to the uncontro-verted evidence that Mrs. Taylor was Dr. Carley’s patient.

The Taylors attempted to raise a genuine fact issue regarding the breach-of-duty element by referring to Dr. Kimball’s affidavit. Dr. Kimball criticized the incompleteness of Dr. Carley’s notes, and opined that Dr. Carley had violated the standards of care by (1) using an inappropriate technique (biofeedback) to assess ADHD in an adult; (2) using a standard psychological battery not considered reliable in evaluating possible Axis I disorders (anxiety disorder); and (8) never completing a formal process of diagnosis. Regarding breach of duty, Mrs. Taylor also relied on Dr. Car-ley’s deposition testimony that (1) he had made the diagnosis of ADD; (2) ADD had to have been present before age seven; (3) Mrs. Taylor had not previously been diagnosed with ADD; and (4) Mrs. Taylor did not have hyperactivity (required for ADHD).

Finally, the Taylors attempted to raise a genuine fact issue regarding the causation element by referring to the following events: (1) Adderall was prescribed for Mrs. Taylor’s misdiagnosed ADD; (2) Mrs. Taylor was self-monitoring whether she was achieving therapeutic levels of Adde-rall, which can cause the precursor to a stroke by elevating blood pressure; (3) Dr. Steffek and Dr. Carley referred patients to each other; (4) Dr. Steffek was renting office space from Dr. Carley and treated Mrs. Taylor at that location; (5) Dr. Stef-fek and Dr. Carley would discuss mutual patients, of which Mrs. Taylor was one; and (6) Dr. Carley knew about Mrs. Taylor’s Adderall prescription. Mrs. Taylor also alleged, “Plaintiff [Mrs.] Taylor’s neurologist upon admittance at Northeast Medical Center Hospital, Dr. Massoud Bina, suspected that her stroke was due to amphetamine toxicity. Further, it is Plaintiffs psychiatrist expert’s opinion that the high dosage of Adderall prescribed by Dr. Steffek caused [Mrs.] Taylor’s stroke.”

Without stating the grounds, the trial court granted Dr. Carley’s summary-judgment motion on all claims the Taylors asserted against him. The trial court subsequently severed the claims against Dr. Carley from the Taylors’ claims against the remaining defendants, thus making the judgment final as to Dr. Carley.

II. Issue Presented and STANDARD OF REVIEW

In a single issue the Taylors allege the trial court erred in granting summary judgment on unspecified grounds when the summary-judgment evidence established that Dr. Carley owed Mrs. Taylor a duty arising from the psychologist-patient relationship as a matter of law and, at a minimum, raised fact issues regarding (1) whether Dr. Carley breached that alleged duty by misdiagnosing Mrs. Taylor’s condition, and (2) whether Mrs. Taylor suffered damages as a result of medication prescribed by the psychiatrist to whom Dr. Carley referred Mrs. Taylor in foreseeable reliance on the alleged misdiagnosis.

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant’s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Id. We take as true all evidence favorable to the non-movant, and we make all reasonable inferences therefrom in the non-movant’s favor. Id. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. When the trial court does not specify the grounds for its ruling, we affirm if any of the grounds advanced in the motion has merit. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Because Dr. Carley moved for summary judgment on both traditional and no-evidence grounds and the trial court did not specify which it granted, we can uphold the summary judgment on either ground. See Bruce v. K.K.B., Inc., 52 S.W.3d 250, 254 (Tex.App.-Corpus Christi 2001, pet. denied); see also FNFS, Ltd. v. Sec. State Bank & Trust, 63 S.W.3d 546, 548 (Tex. App.-Austin 2001, pet. denied); Barraza v. Eureka Co., 25 S.W.3d 225, 231 (Tex. App-El Paso 2000, pet. denied).

III. Analysis

A. The Taylors’ Assertions and General Negligence Elements

The Taylors contend Dr. Carley was negligent in two ways: (1) misdiagnosing Mrs. Taylor’s condition, and (2) failing to monitor the side-effects of the Adderall, which Dr. Steffek prescribed. The elements of a negligence claim are existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, No. 01-0926, 47 Tex. Sup.Ct. J. 666, 668, 2004 WL 1396194, at *3 (Tex. June 18, 2004). The threshold inquiry is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

B. Proximate Cause and Dr. Carley’s Alleged Misdiagnosis

A reviewing court may assume the existence of a duty and resolve the appeal on the basis of one of the other elements, such as proximate cause. See Mason, 47 Tex. S.Ct. J. at 666, 2004 WL 1396194, at *1 (doing so in context of reviewing summary judgment). The two elements of proximate cause are cause in fact and foreseeability. Mason, 47 Tex. S.Ct. J. at 668, 2004 WL 1396194, at *3. These elements cannot be satisfied by mere conjecture, guess, or speculation. Id.

“Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred.” Id. That the harm would not have occurred without an actor’s negligence is a necessary, but not sufficient, factor. See id. Thus, cause in fact is not established when a defendant’s negligence does no more than furnish a condition that makes the injuries possible. Id. “The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries .... [and] justify the conclusion that such injury was the natural and probable result thereof.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (quotations omitted). Accordingly, even if an injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiffs injuries simply may be too attenuated to constitute legal cause. Id.

Foreseeability means the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Foreseeability, however, does not require a person to anticipate the precise manner in which injury will occur once the person creates a dangerous situation through his negligence. Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Id.

When events intervene between the alleged negligent act and the injury, a question may arise whether such events constitute superseding causes that break the causal connection between the act and the injury. As the San Antonio Court of Appeals has explained:

Texas courts distinguish between a new and independent cause and a concurrent act. A concurrent act cooperates with the original act in bringing about the injury and does not cut off the liability of the original actor. A “new and independent cause,” sometimes referred to as a superseding cause, however, is an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury.

Benitz v. Gould Group, 27 S.W.3d 109, 116 (Tex.App.-San Antonio 2000, no pet.) (citations omitted).

In determining whether an intervening force rises to the level of a superseding cause, Texas courts consider the following six factors:

the fact the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
the fact the intervening force’s operation or its consequences appear after the event to be extraordinary, rather than nomal, in view of the circumstances existing at the time of the force’s operation;
the fact the intervening force is operating independently of any situation created by the actor’s negligence or is not a normal result of such a situation;
the fact the operation of the intervening force is due to a third person’s act or to his failure to act;
the fact the intervening force is due to an act of a third person that is wrongful toward the other and thus subjects the third person to liability to him; and
the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex.1999). The issue of new and independent cause is a component of the ultimate issue of proximate cause and not an affirmative defense. Rodriguez v. Moerbe, 963 S.W.2d 808, 821 n. 12 (Tex. App.-San Antonio 1998, pet. denied).

In the present case, the Taylors alleged the following causal chain: (1) Dr. Carley misdiagnosed Mrs. Taylor as having ADD/ADHD; (2) Dr. Carley then referred Mrs. Taylor to Dr. Steffek; (3) Dr. Steffek also misdiagnosed Mrs. Taylor as having ADD/ADHD; (4) Dr. Steffek prescribed Adderall for Mrs. Taylor’s condition and had Mrs. Taylor self-monitor the effects of the medication; (5) Mrs. Taylor took more than the recommended dose of Adderall; and (6) the Adderall caused Mrs. Taylor to have adverse side effects and eventually suffer a stroke. Thus, according to the Taylors’ allegations, at least three events intervened between Dr. Car-ley’s diagnosis and Mrs. Taylor’s stroke: (1) Dr. Steffek’s independent diagnosis; (2) Dr. Steffek’s prescription of the Adderal; and (3) Mrs. Taylor’s taking more than the recommended dose of the medication. As alleged, the intervening acts implicated, at a minimum, factors three (independent action of intervening force), four (operation of intervening force as a result of a third person’s act), five (wrongfulness of third person’s act), and six (degree of culpability of third person) of the six superseding-cause criteria set forth above.

In the no-evidence part of his summary-judgment motion Dr. Carley contended there was no evidence of proximate cause. Dr. Carley specifically alleged, among other things, that there was no evidence (1) Dr. Carley prescribed Adderall to Mrs. Taylor; (2) Dr. Steffek based his decision to prescribe Adderall to Mrs. Taylor in whole or in part on Dr. Carley’s findings or diagnosis of ADHD; (3) Dr. Carley knew or should have known of the potential adverse consequences of the drug Ad-derall upon Mrs. Taylor; and (4) Dr. Car-ley knew or should have known of adverse symptoms or effects suffered by Mrs. Taylor following her taking of this medication. Thus, Dr. Carley’s no-evidence allegations particularly challenged the Taylors to produce proof of the foreseeability component of proximate cause.

In response, the Taylors presented summary-judgment evidence, which they summarized as follows:

Adderall is an amphetamine and a Schedule II narcotic which can become addictive. Beverly Taylor was reporting headaches and weight loss to Defendant Steffek. Beverly Taylor was subscribed [sic] Adderall for her misdiagnosed ADD. She was self monitoring whether she was achieving therapeutic levels. Adderall can cause the precursor to a stroke by elevating her blood pressure. Defendant Steffek treated patients, including Beverly Taylor, at Dr. Carley’s office on Thursdays. Dr. Steffek was renting space from Dr. Carley. They would refer patients to each other. Dr. Steffek has referred ADHD patients to Dr. Carley before. When Dr. Steffek was in Dr. Carley’s office on Thursday’s [sic] he would sit down and have a conversation about their mutual patients. Beverly Taylor was a mutual patient. Dr. Carley knew she was being prescribed Adderall. Dr. Carley’s breach of the standard of care in making the diagnosis of ADD and referring her for medication treatment was a cause of the ultimate damages and injuries sustained by the Plaintiffs herein. Plaintiff Taylor’s neurologist upon admittance at Northeast Medical Center Hospital, Dr. Massoud Bina, suspected that her stroke was due to amphetamine toxicity. Further, it is Plaintiffs psychiatrist expert’s opinion that the high dosage of Adderall prescribed by Dr. Steffek caused Beverly Taylor’s stroke. Adderall would not have been prescribed if her anxiety disorder had not been misdiagnosed by Dr. Carley. (original footnotes deleted; present footnotes added by this court.)

The Taylors have not produced any summary-judgment evidence showing (1) that Dr. Steffek based his decision and treatment on Dr. Carley’s diagnosis, or (2) that Dr. Carley knew or should have known of the potential adverse consequences of Ad-derall on Mrs. Taylor. In light of Dr. Steffek’s and Mrs. Taylor’s roles in the chain of events and the lack of evidence that Dr. Steffek’s allegedly wrongful act was a concurrent act, as opposed to a new and independent cause, Mrs. Taylor’s summary-judgment evidence is insufficient to raise a genuine issue of fact on the element of proximate cause.

At oral argument, the Taylors directed this court’s attention to Benitz, 27 S.W.3d at 116-17 and Wilson v. Brister, 982 S.W.2d 42, 44-45 (TexApp.-Houston [1st Dist.] 1998, pet. denied). In those cases, the appellate courts were reviewing the grant of traditional summary judgment motions in which the defendants shouldered the burden of conclusively proving the presence of a superseding cause. See Benitz, 27 S.W.3d at 117; Wilson, 982 S.W.2d at 45. They are not persuasive authority for deciding the appropriateness of a no-evidence summary judgment in the present case. See Phan Son Van, 990 S.W.2d at 753 n. 2 (stating, if defendant moves for no-evidence summary judgment based on lack of foreseeability, it will be plaintiffs burden to provide summary-judgment evidence of foreseeability).

C. Duty and Dr. Carley’s Alleged Failure to Monitor Mrs. Taylor’s Reaction to Adderall

Mrs. Taylor contends Dr. Carley had a duty to monitor Mrs. Taylor’s progress on the medication Adderall and to report his impressions to Dr. Steffek. According to Mrs. Taylor’s deposition testimony, she saw Dr. Carley only twice after she began taking the Adderall. She did not tell Dr. Carley about any problems with medications or side effects. At the second visit, she told Dr. Carley she was “doing well.” When she started experiencing headaches and weight loss, she was no longer seeing Dr. Carley.

The narrow question in this case, therefore, is whether a psychologist has a duty to monitor or follow the progress of a former patient who is no longer seeing the psychologist but is seeing a physician to whom the psychologist referred the patient. The Taylors cite no authority to support such a duty, and we have found none. We decline to create a new duty not recognized by Texas law. See T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass’n, 79 S.W.3d 712, 720 (Tex. App.-Houston [14th Dist.] 2002, pet. denied).

IV. Conclusion

Having concluded that there is no evidence Dr. Carley’s alleged negligence in diagnosing Mrs. Taylor proximately caused Mrs. Taylor’s injury and that Dr. Carley had no duty to follow or monitor Mrs. Taylor’s condition after she stopped seeking treatment from him, we overrule the Taylors’ sole issue on appeal. Accordingly, we affirm the trial court’s judgment.

      . Dr. Carley appears to have used ADD and ADHD interchangeably in his notes, explaining "ADHD is kind of like the vernacular you use which could include ADD or ADHD.”

      . Mrs. Taylor testified that Dr. Steffek did not run any independent tests on her. This testimony is consistent with the interactive nature of Dr. Steffek's approach to diagnosis, which involves the patient talking about each of the phenomena on the printed form rather than having them fill out a checklist.

      . Adderall is an amphetamine. At the time of Dr. Steffek’s deposition in February 2002, the Federal Drug Administration had not approved Adderall for adult use. Dr. Steffek prescribed Adderall instead of Dexedrine for the patient’s "ultimate convenience,” because it has a "longer therapeutic day.”

      .For example, the January 12, 1999 prescription was for 135 ten-milligrams tablets. The instructions provided with the prescription were to take one-and-a-half tablets three times a day, but Dr. Steffek instructed Mrs. Taylor to begin by taking ten milligrams in the morning and ten milligrams in the afternoon and build the dose up to twenty milligrams in the morning and ten in the afternoon. Dr. Steffek wrote the prescriptions the way he did "for the convenience of the patient and through the exigencies of dealing with the insurance companies who then determine how many pills a person can use during a month.”

      . Mrs. Taylor testified she never took forty milligrams, but stated she was not sure whether she took twenty milligrams at 6:00 a.m. and twenty at 1:00 p.m.

      . According to the discharge summary for Mrs. Taylor, she "had a history of adult onset ADD and has been treated with 40 mg of dextroamphetamine daily for nearly two years.”

      .Mrs. Taylor’s husband and her adult son also filed loss of consortium claims, and Mrs. Taylor and her husband filed loss of consortium claims on behalf of their four minor children.

      . (footnotes omitted).

      . Although the Taylors raised both misdiagnosis and failure to monitor in the trial court, their position on appeal is less clear. They state, for example, "[Dr. Carley] owed a duty to Ms. Taylor not to misdiagnose her condition and, arguably, his duty extended to monitor her progress on the medication and report his impressions to Dr. Steffek during the course of their joint treatment.” (Emphasis added.) Nevertheless, we address both the alleged misdiagnosis and the alleged failure to follow.

      . In his summary-judgment motion, Dr. Car-ley did not allege an absence of evidence to show Adderall caused the stroke. Our review is limited to the grounds asserted. See Gold v. City of College Station, 40 S.W.3d 637, 642 n. 3 (Tex.App.-Houston [1st Dist.] 2001, pet granted, judgm’t vacated w.r.m.).

      . In support, the Taylors cited only Mrs. Taylor's deposition in which she described her visits with Dr. Steffek. There is nothing in the cited deposition pages to indicate how long Mrs. Taylor was a mutual patient.

      .In support, the Taylors cited Dr. Carley’s deposition in which he testified as follows:
      Q. So, before January 6th, 1999 you did not know she was taking Adderal [sic]?
      A. Correct, until she came and had it with her on that day. Q. Right, right. No one had told you that that was going to be prescribed to your patient.
      A. Not at that time.

      .In support, the Taylors cited the affidavit of Dr. Ron Kimball, Ph.D., in which he opined that Dr. Carley’s failure "to follow proper standards in the assessment, diagnosis and development of a treatment plan ... resulted in the misdiagnosis of ADHD, the use of Adderall, and the development of an amphetamine toxicity that was implicating in a disabling CVA.” Dr. Kimball provided no facts to support the causal connection between the alleged misdiagnosis and the subsequent events. Affidavits containing concluso-ry statements unsupported by facts are not competent summary-judgment evidence. Skelton v. Comm'n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex.App.-Houston [14th Dist.] 2001, no pet.). The Taylors contend by not objecting to Dr. Kimball’s affidavit, Dr. Carley has waived any objection on appeal. An objection regarding the conclusive nature of an affidavit, however, is an objection to the substance of the affidavit that can be raised for the first time on appeal. Id.

      . As discussed in note 10, above, in his summary-judgment motion, Dr. Carley did not contend there was an absence of evidence to show Adderall caused the stroke.

      . The Taylors cited no summary-judgment evidence in support of this contention.


source: Caselaw Access Project

author: EVA M. GUZMAN, Justice.

license: Public Domain

text:
    Julia L. KURTZ, Appellant, v. Ronald D. KURTZ, Appellee.
    No. 14-02-01187-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2004.
    Rehearing Overruled March 10, 2005.

      Thomas C. Wright, Thomas R. Conner, Houston, for appellant.
    Ronald D. Kurtz, Pasadena, pro se.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

In this appeal we are asked to determine whether the trial court erred when it refused to award attorney’s fees and costs to appellant Julia L. Kurtz (“Julia”) pursuant to an agreed divorce decree providing, in part, for the payment of attorney’s fees and costs in “a subsequent suit to modify child support.” We also determine whether Julia’s child support modification claims are so inextricably intertwined with her financial claims asserted against appellee Ronald D. Kurtz (“Ronald”) and her defense of his counterclaims that segregation of her attorney’s fees is not required. Because we conclude the provision in the agreed divorce decree unambiguously requires Ronald to pay reasonable and necessary attorney’s fees and costs in a subsequent action to modify child support, we hold the trial court erred in refusing to award any fees under the provision. We further hold Julia is not required to segregate attorney’s fees and costs relating to her modification of child support claim from those expended in defense of Ronald’s counterclaims pertaining to the child support award and offsets for direct payments to Julia. However, we hold segregation is required for attorney’s fees and costs incurred in connection with Julia’s remaining financial claims against Ronald and her defense of his other counterclaims. Accordingly, we reverse and remand for a determination of Julia’s attorney’s fees and costs.

I. FACTUAL AND PROCEDURAL BACKGROUND

Julia and Ronald Kurtz were divorced on October 6, 1995. In their agreed divorce decree (the “Decree”), Ronald was ordered to pay $200 per month for the support of their two minor daughters. As part of the division of the parties’ estate, the Decree provided for the payment of attorney’s fees and costs as follows (“attorney’s fees provision”):

Further, RONALD D. KURTZ IS ORDERED to pay the attorney’s fees and costs incurred by JULIA L. KURTZ in a subsequent motion to modify child support. The attorney for JULIA L. KURTZ will provide to RONALD D. KURTZ on or before the Order Modifying Prior Order is executed by the Court a statement of the fees and costs incurred and IT IS ORDERED that RONALD D. KURTZ will pay said fees and costs within thirty (30) days from his receipt thereof.

Neither party appealed from the Decree.

More than six years after the divorce, Julia filed a “Petition to Modify Parent-Child Relationship and for Judgment.” In her petition, Julia sought an increase in Ronald’s monthly child support obligation, enforcement of previous judgments, and a cumulative judgment for various unpaid debts, including credit card debts, income tax liabilities, and medical expenses. Ronald filed an answer and subsequently, a counter-petition seeking, among other things, joint managing conservatorship, modified visitation rights, a restriction on the children’s residence, a decrease in child support, and offsets for payments made directly to Julia. Julia answered the counterclaim and amended her petition. In her second amended petition, Julia requested child support in excess of the presumptive statutory guidelines. She also acknowledged that Ronald voluntarily increased his child support payments when he became employed in 1998, and he had been paying $1,350 per month since January 1, 2001, when his income exceeded $6,000 per month.

After a bench trial, the court rendered judgment in favor of Julia on all issues except recovery of the majority of her attorney’s fees and costs. Although the trial court did award Julia $6,000 in attorney’s fees for time expended to reduce to judgment various debts Ronald owed under the Decree, it denied Julia’s request for attorney’s fees related to her action to modify Ronald’s child support obligation. The trial court also entered numerous findings of fact and conclusions of law.

In its findings and conclusions, the trial court determined the attorney’s fees provision impliedly provided for payment of “reasonable and necessary” attorney’s fees and costs. The court found that, to the extent the phrase “attorney’s fees and costs incurred” could be construed to mean anything other than “reasonable and necessary” attorney’s fees and costs, it was ambiguous. The court also found that the attorney’s fees provision is rendered unconscionable and unenforceable when interpreted in a manner allowing for the recovery of attorney’s fees and costs not reasonable and necessary to a suit for modification of child support. As a basis for denying Julia’s requested fees, the trial court reasoned that, because Ronald had been paying child support in accordance with the statutory guidelines, none of Julia’s attorney’s fees relating to the modification of child support were reasonable or necessary. Moreover, as a separate basis for denying attorney’s fees under the provision, the trial court found that Julia’s request for an award of child support in excess of the statutory guidelines constituted an unreasonable and excessive demand.

II. ISSUES PRESENTED

In twelve issues, Julia contends the trial court erred in refusing to award attorney’s fees and costs under the attorney’s fees provision because the Decree unambiguously provides she is entitled to recover those fees and costs without regard to whether they are reasonable or necessary. Moreover, Julia maintains she is entitled to all of the attorney’s fees and costs she incurred — over forty thousand dollars — because the child support claims are inextricably intertwined with her other financial claims and with Ronald’s counterclaims and thus, fall within the exception to the segregation requirement. Julia also challenges the trial court’s conclusions of law and the legal and factual sufficiency of the evidence supporting many of the trial court’s findings of fact.

We address only those issues necessary to resolve this appeal in the following order: (A) interpretation and application of the Decree’s attorney’s fees provision; (B) unreasonable and excessive demand; and (C) segregation of attorney’s fees.

III. ANALYSIS

A. INTERPRETATION AND APPLICATION OF THE DECREE’S ATTORNEY’S FEES PROVISION

1. Does the Attorney’s Fees Provision Unambiguously Provide for Payment of “Attorney’s Fees and Costs” Without Regard to the Reasonableness and Necessity of the Fees?

On appeal, Julia contends the attorney’s fees provision unambiguously requires that Ronald pay her attorney’s fees and costs without any requirement that the fees be reasonable or necessary. Ronald argues the phrase “attorney’s fees” can only be read to unambiguously mean “reasonable and necessary attorney’s fees” and, alternatively, if the phrase is ambiguous, then the trial court properly resolved the fact issue of the parties’ intent.

The attorney’s fees provision orders Ronald to pay “attorney’s fees and costs incurred” by Julia “in a subsequent motion to modify child support.” Thus, we agree the trial court erred in refusing to award Julia any of the attorney’s fees she incurred in the prosecution of her action to modify child support. However, we cannot agree she is entitled to recover those fees and costs without regard to their reasonableness or necessity.

In paragraphs nine and ten of its findings of fact and conclusions of law, the trial court concluded that “attorney’s fees” in the provision means “reasonable and necessary attorney’s fees,” stating:

9. The attorney fees expended by [Julia] to modify child support were not reasonable and necessary. Any contrary conclusion would suggest that, when a party is ordered, or agrees, to pay attorney fees in “a subsequent action to modify child support,” this creates a blank check in which the opposing party could recover unreasonable, unnecessary fees in any amount. This Court rejects this argument as legally and factually untenable.
10. The Decree Attorney Fee Provision is ambiguous to the extent that the phrase “attorney’s fees and costs incurred” could be construed to mean anything other than “reasonable and necessary attorney’s fees and costs incurred.” To the extent the Decree Attorney Fee Provision is a contract, the parties intended it to cover only reasonable and necessary attorney’s fees and costs incurred by Petitioner in a motion to modify child support. To the extent the Decree Attorney Fee Provision is an order of this Court, the Court intended and determines it to cover only reasonable and necessary attorney’s fees and costs incurred by Petitioner in a motion to modify child support.

Thus, the trial court concluded that reasonableness is an implied term of the attorney’s fees provision.

Because both Ronald and Julia agreed to the Decree, its construction is governed by the law of contracts. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); see also Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex.2000) (“An agreed judgment should be construed in the same manner as a contract.”). Whether a contract is ambiguous is a question of law. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

Neither Julia nor Ronald have provided any authority in support of their positions, and we have found no Texas case directly on point. However, our research reveals that at least one Texas court has held that an agreement to pay unspecified attorney’s fees implies payment of a reasonable fee for the attorney’s services. See Girard Fire & Marine Ins. Co. v. Koenigsberg, 65 S.W.2d 783, 785 (Tex. Civ. App.-Dallas 1933, no writ) (“Where the parties do not expressly agree as to the amount, the law raises a promise to pay that which is reasonable.”) Courts in other jurisdictions have also determined that, as a matter of public policy, reasonableness is an implied term in any contract for attorney’s fees. See, e.g., Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn.App. 468, 531 A.2d 177, 183 (1987); Kaminsky v. Kaminsky, 29 S.W.3d 388, 390 (Mo.Ct. App.2000); Missouri ex rel. Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832, 835 (Mo.Ct.App.1995). We agree with this reasoning.

Julia’s argument — that she is not required to demonstrate the attorney’s fees she seeks are reasonable and necessary because the attorney’s fees provision does not expressly state so — is unpersuasive. As the trial court reasoned, such a conclusion would result in a “blank check” permitting an opposing party to recover unreasonable, unnecessary fees in any amount. Moreover, the attorney’s fees provision is not rendered ambiguous merely because it does not expressly state that it is limited to “reasonable and necessary” attorney’s fees and costs.

Accordingly, we hold that reasonableness is an implied term in the Decree’s attorney’s fees provision and construe the term “attorney’s fees and costs” to unambiguously require that Ronald pay only reasonable and necessary attorney’s fees and costs.

2. Is the Attorney’s Fees Provision Unconscionable?

In paragraphs thirteen and fourteen of its findings and conclusions, the trial court determined that any interpretation of the attorney’s fees provision permitting the recovery of fees and costs not reasonable and necessary to a modification of child support renders the agreement unconscionable and unenforceable. Any other interpretation, the trial court explained, would permit Julia to recover all of her attorney’s fees even though only a portion of the fees incurred were expended on the action to modify child support.

On appeal, Julia contends Ronald waived the defense of unconscionability because he did not plead it. Additionally, she argues the fees were in fact reasonable and necessary; therefore, they cannot be unconscionable. Because we have determined that the attorney’s fees provision implies payment of reasonable and necessary attorney’s fees and costs, we do not consider whether a contrary interpretation would be unconscionable.

3. Do Ronald’s Voluntary Child Support Payments in an Amount Greater than Ordered in the Decree Render Julia’s Attorney’s Fees Unreasonable and Unnecessary?

Julia also contends the trial court erred in determining that the entire amount of the attorney’s fees and costs she requested under the attorney’s fees provision were unreasonable and unnecessary because Ronald was voluntarily paying child support in accordance with the statutory guidelines. We agree.

In paragraphs two, five, six, and seven of its findings of fact and conclusions of law, the trial court determined the following: (1) Ronald “voluntarily paid 22.5% of the first $6,000 of net resources to [Julia] as child support since, and before, the Petition to Modify was filed”; (2) the amount Ronald was voluntarily paying was the appropriate amount of support due; (3) Julia was seeking support in excess of the statutory guidelines; (4) when the Decree was executed in 1995, Ronald was unemployed and the Decree’s attorney’s fees provision was designed to “permit the formalization of the new child support amount” once Ronald became employed; and (5) because Ronald was already voluntarily paying “the full amount of child support due,” Julia’s action was unsuccessful and therefore she was not entitled to an award of attorney’s fees.

We conclude the trial court correctly-recognized Ronald’s contractual obligation to pay Julia’s attorney’s fees and costs when a new child support order was “formalized.” However, it erred in determining Julia was not entitled to any attorney’s fees for bringing an action for that very purpose because Ronald had been voluntarily paying child support in accordance with the statutory guidelines.

As an initial matter, nothing in the Decree provides that Ronald’s obligation to pay attorney’s fees and costs in a subsequent motion to modify child support is extinguished upon his voluntary payment of additional child support. Nor is there any requirement that Julia be successful in her suit to modify the child support. Hence, the trial court erred in concluding Julia was not entitled to any attorney’s fees because Ronald had been voluntarily paying additional child support and Julia’s action was therefore “unsuccessful.”

Additionally, under the circumstances, Julia was entitled to pursue child support in excess of the presumptive guidelines. Although Ronald had been paying additional child support, his monthly earnings exceeded $6,000 per month and therefore, the trial court could have increased his support obligation above the statutory guidelines if a variance was in fact in the children’s best interest. See TEX. FAM. CODE ANN. §§ 154.123, 154.126 (Vernon 2002). Although the guideline amounts are presumed to be reasonable, Ronald’s voluntary payment of that amount does not necessarily mean he was paying an amount of child support consistent with the best interests of the children. See id. § 154.122(a); Clark v. Jamison, 874 S.W.2d 312, 316-17 (Tex.App.-Houston [14th Dist.] 1994, no writ). Indeed, the trial court could not have concluded Ron-aid was paying the “appropriate amount” of child support until after a hearing on that very issue.

Further, as a substantive matter, the trial court erred in concluding a court order was not necessary because voluntary payments were being made. In Texas, agreements concerning child support must be approved by the court. TEX. FAM. CODE ANN. § 154.124 (Vernon 2002); Williams v. Patton, 821 S.W.2d 141, 143-44 (Tex.1991). Thus, even if Julia and Ronald had agreed to the amount of child support being paid, Julia would have no legal recourse in the event Ronald ceased paying voluntarily. Without an order, Ju-ba would be unable to obtain an arrearag-es judgment or a wage withholding order and enforcement by contempt would not be available. It was therefore incumbent upon Julia to obtain a court order to ensure that the child support obligation was legally enforceable.

In sum, we conclude Ronald’s voluntary child support payments did not abrogate Julia’s contractual right to attorney’s fees and costs for bringing an action to modify child support, nor did it obviate the need for a court order. Accordingly, the trial court erred in concluding that, because Ronald voluntarily paid support in accordance with the statutory guidelines, Julia was not entitled to any attorney’s fees and costs under the Decree.

B. UNREASONABLE AND EXCESSIVE DEMAND

In paragraph fifteen of its findings of fact and conclusions of. law, the trial court stated as follows:

15. As a separate and independent ground for its judgment, the Court finds that [Julia’s] attempt to gain child support of as much as $5,000 per month ([Julia’s] pre-trial demand) and at least $2,500 per month ([Julia’s] demand at the close of trial) constituted an unreasonable and excessive demand under Texas law.... In the instant case, [Julia’s] claim for above-guideline support was a clearly “excessive demand,” and [Julia] is entitled to no attorney’s fees and costs under the Decree Attorney Fee Provision.

On appeal, Julia contends that because Ronald failed to plead the affirmative defense of unreasonable and excessive demand, it was waived. She also contends the defense does not apply here; the attorney’s fees provision does not require that a demand be made; no demand was made; and, if a demand was made, it was not made unreasonably or in bad faith.

A party must affirmatively assert excessive demand as a defense to a claim for attorney’s fees. Standard Constructors, Inc. v. Chevron Chem. Co., Inc., 101 S.W.3d 619, 627-28 (TexApp.-Houston [1st Dist.] 2008, pet. denied) (citing Essex Crane Rental Corp. v. Striland Constr. Co., 758 S.W.2d 751, 758 (Tex.App.-Dallas 1988, writ denied)); Tuthill v. Southwestern Pub. Sen. Co., 614 S.W.2d 205, 212 (Tex.App.-Amarillo 1981, writ refd n.r.e.). Here, Ronald did not plead excessive demand as an affirmative defense and the record does not reflect the issue was tried by consent; therefore, we hold it was waived. See TEX.R. CIV. P. 94; Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, 889 S.W.2d 666, 671 (Tex.App.Houston [14th Dist.] 1994, writ denied). Consequently, the trial court erred in determining that Julia’s claim for child support in excess of the statutory guidelines constituted an excessive demand.

C. SEGREGATION OF ATTORNEY’S FEES

Lastly, Julia contends she is entitled to all the attorney’s fees and costs expended in the underlying suit, not just those expended on the modification of child support, because the child support claims were inextricably intertwined with her other financial claims and with Ronald’s counterclaims, and thus, were inseparable as a matter of law. As we explain below, we agree in part and disagree in part.

After the trial court entered judgment that Julia was not entitled to any attorney’s fees under the Decree’s attorney’s fees provision, Julia moved to modify, correct, or reform the judgment, arguing that she was entitled to all of her attorney’s fees because the claims were inextricably intertwined. Ronald disputed her assertion, pointing out that the testimony of Julia’s attorneys indicated they were able to segregate time expended on the modification action from time expended on other issues raised at trial. In its findings of fact and conclusions of law, the trial court rejected Julia’s “inextricably intertwined” argument.

In its findings, the trial court acknowledged Julia’s argument at trial that she was entitled to “all of her attorneys’ fees expended in this matter, whether or not related to the portion of the action in which she sought to increase child support.” However, the trial court found that the attorney’s fees provision “applies only to the portion of the present action in which [Julia] sought to modify child support, not to her other financial claims or her defense against [Ronald’s] counter-petition.”

By its express language, the attorney’s fees provision is limited to attorney’s fees and costs incurred in “a subsequent motion to modify child support.” Thus, the trial court was correct in determining that the provision entitled Julia to attorney’s fees, and costs only on a suit to modify child support. Accordingly, we examine whether Julia’s child support modification claim is inextricably intertwined with her other financial claims and her defense of Ronald’s various counterclaims.

When a plaintiff seeks to recover attorney’s fees in a case involving multiple claims, at least one of which supports an award of fees and at least one of which does not, the plaintiff must offer evidence segregating attorney’s fees among the various claims. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex.1991). An exception to this duty to segregate arises when the services rendered are in connection with claims arising out of the same facts or transaction and their prosecution or defense entails proof or denial of essentially the same facts. Id. at 11. Under those circumstances, the party suing for attorney’s fees may recover the entire amount for all claims that satisfy this exception. Sterling, 822 S.W.2d at 12.

To determine whether claims are inextricably intertwined, a court must examine the facts alleged in support of the claims. See id. at 11-12. Even if the claims arise out of the same transaction, if the prosecution or defense does not entail proof or denial of essentially the same facts, the exception does not apply. See Air Routing Int’l Corp. (Canada) v. Britannia Airways,, Ltd., 150 S.W.3d 682, 687 (TexApp.-Houston [14th Dist.] 2004, no pet. h.). We review the trial court’s determination of this issue de novo. See id.; see also Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 585 (Tex. App.-Austin 2003, no pet.) (stating, “[w]hether fees can be segregated between various claims and parties is a question for the court” and using language appropriate to a de novo review).

Here, in addition to an increase in Ronald’s child support obligation, Julia asserted other financial claims, seeking enforcement of previous judgments, including a judgment on various debts and obligations Ronald owed but failed to pay, such as credit card debts, income tax liabilities, and unpaid medical expenses. Julia also ' requested wage withholding orders for payment of additional judgments awarded in the Decree. Ronald’s counterclaims included: (1) a decrease in his child support obligation, (2) offsets for direct payments made to Julia “in the form of child support or otherwise,” (3) a change in conservator-ship, (4) a modification of the parties’ relative rights and duties, (5) a change in the terms of possession and access, (6) a restriction on the children’s passports, and (7) a restriction on the children’s county of residence.

To support the assertion that her claims were inextricably intertwined, Julia, contends some of the same factors the trial court could consider when determining an appropriate amount of child support are at issue in all her claims. In particular, Julia points to several factors, listed in section 154.123(b) of the Family Code, that the trial court may consider in determining whether to deviate from the child support guidelines. Specifically, Julia relies on the following factors:

• debts or debt service Julia assumed;
• the ability of the parents to contribute to the support of the child; and
• any other reason consistent with the best interest of the children, taking into consideration the circumstances of the parents.

Consequently, Julia reasons that all of the proof in the case was “essential” to the modification of child support action. Julia also argues that, like the child support action, resolution of Ronald’s counterclaims regarding the children required the court to determine whether a modification was in the best interests of the children and whether the circumstances of the children or the parties had materially and substantially changed. See TEX. FAM. CODE ANN. § 156.101 (Vernon 2002) (establishing grounds for modification of con-servatorship, possession, and access).

We conclude Julia was not required to segregate attorney’s fees and costs incurred in pursuing her action to modify child support from those incurred in defending Ronald’s counterclaims challenging the amount of child support and his claims for offsets on payments made directly to Julia. Those counterclaims directly challenged Julia’s action to increase Ronald’s child support obligation, and she had to defeat the counterclaims to prevail on her motion to modify child support. See, e.g., Willis v. Donnelly, 118 S.W.3d 10, 46-47 (Tex.App.-Houston [14th Dist.] 2003, pet. filed) (holding successful party in action to recover balance due on promissory note was also entitled to attorney’s fees incurred in defeating affirmative defenses to action and usury counterclaim); Coleman v. Rotana, Inc., 778 S.W.2d 867, 873-74 (Tex.App.-Dallas 1989, writ denied) (concluding fees incurred in defense of counterclaim are recoverable when facts necessary for plaintiff to recover on its claim also serve to defeat the counterclaim); Schepps Grocery Co. v. Burroughs Corp., 635 S.W.2d 606, 611 (Tex.App.Houston [14th Dist.] 1982, no writ) (“A party may properly recover for legal services in prosecuting its claim although the same services also relate to defending a counterclaim”). Therefore, Julia is entitled to attorney’s fees and costs for defending against Ronald’s counterclaims pertaining to the child support obligation and his requested offsets for direct payments.

We cannot say, however, that the factual basis necessary to support Julia’s child support modification claims are so inextricably intertwined with her defense against Ronald’s counterclaims relating to conservatorship, possession, and access and her other financial claims, as to fall within the exception to the segregation requirement. First, Julia does not offer an explanation of how her other financial claims — which include claims for various credit card debts and income tax liabilities — mirror her child support claims. Although Julia’s assumption of certain debts Ronald failed to pay is a factor the trial court may consider when determining whether to deviate from the child support guidelines, this is not enough to establish that the claims were inextricably intertwined.

Likewise, although the factors the trial court may consider when deciding whether to deviate from the statutory guidelines may overlap to some extent with the factors it can consider in determining the issues raised in Ronald’s conservatorship, possession, and access counterclaims, overlapping factors or elements is not the standard. Julia fails to cite facts that are the bases of both her child support modification claims and her defense of Ronald’s counterclaims. Indeed, Julia’s counsel conceded at oral argument that she presented no testimony at trial to support her contention the claims were inextricably intertwined.

Finally, at trial, Julia’s attorneys conceded their ability to segregate the percentage of fees expended on the child support action. One of Julia’s attorneys, Thomas Conner, estimated that about one-third of his fees were expended on child support modification: “I would probably put it — if I was going to try to make a real good estimation, 30 percent on modification of support, 30 percent on modification of the other children issues, and 30 percent on the balance of everything else. A third, a third, a third.” Another of Julia’s attorneys, Gary Langford, testified on direct examination that about half of his fees were expended on child support modification. Thus, Julia’s attorneys were able to segregate the attorney’s fees and costs associated with the parties’ various claims and counterclaims.

In sum, we conclude that Julia’s defense of Ronald’s counterclaims to decrease child support and his claim for offsets for payments made directly to Julia, are inextricably intertwined with Julia’s child support modification claims. Those claims arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. See Air Routing Int’l Corp. (Canada), 150 S.W.3d at 694-700. However, Julia has failed to establish that her other financial claims against Ronald and her defense of his counterclaims relating to conservatorship, possession, and access are inextricably intertwined with her child support modification claims. See Young v. Neatherlin, 102 S.W.3d 415, 420 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (holding claims were not inextricably intertwined because evidence in record did not suggest that claims were so interrelated that their prosecution or defense entailed proof of essentially the same facts). Therefore, under the Decree’s attorney’s fees provision, Julia is entitled to reasonable and necessary attorney’s fees and costs incurred in her action to modify child support, and fees and costs incurred in her defense of Ronald’s counterclaims to decrease child support and for credit on payments made directly to Julia. However, Julia is not entitled to attorney’s fees and costs incurred in connection with her other financial claims and her defense of Ronald’s counterclaims relating to con-servatorship, possession, and access. We therefore remand to the trial court for a determination of Julia’s attorney’s fees and costs. See Sterling, 822 S.W.2d at 12.

Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings in accordance with this opinion.

      . Ronald and Julia were both lawyers at the time the Decree was entered; however, Ron-aid was unemployed.

      . Julia’s claims, other than her child support modification claims, will be collectively referred to throughout this opinion as her "other financial claims.”

      . The Family Code establishes guidelines for child support which are presumed to be reasonable and in the children’s best interests. TEX. FAM.CODE ANN. § 154.122 (Vernon 2002). The court may order support above or below the guideline amount if the evidence rebuts the presumption that application of the guidelines is in the best interest of the children and justifies a variance from the guidelines. Id. § 154.123(a). The guidelines are specifically designed to apply to situations in which the obligor's monthly net resources are $6,000 or less. Id. § 154.125. If the obli-gor’s net resources exceed $6,000 per month, the court shall apply the percentage guidelines to the first $6,000. Id. § 154.126. The court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the children. Id.

      . Specifically, Julia stated in her petition that (1) starting July 1, 1998, Ronald began paying $940 per month due to his becoming employed; (2) on October 15, 1998, he began paying $1,010 per month due to an increase in pay; (3) on January 15, 1999, he began paying $1,110 per month due to an increase in pay; and (4) on January 1, 2001, he began paying $1,350 per month as his net income was over $6,000.

      . Ronald does not appeal the $6,000 award.

      . Our conclusion that a contract for attorney’s fees impliedly means a contract for reasonable attorney’s fees is likewise consistent with the Texas Disciplinary Rules of Professional Conduct. Disciplinary Rule 104, governing a lawyer's fee arrangements with his clients, provides that "a lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee.” See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp. 1998). The rule explains that a fee is unconscionable “if a competent lawyer could not form a reasonable belief that the fee is reasonable.” Id. Every lawyer is bound by the rule and consequently, any fees charged or collected must be reasonable. Cf. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (holding an award of attorney’s fees under DTPA must be reasonable based upon Disciplinary Rule 1.04).

      . Although Julia contends she was not required to prove the reasonableness of her attorney’s fees, she did present evidence that the fees were reasonable. Ronald did not challenge the amount of the fees; as he explained during cross-examination by Julia’s attorney:
      Your Honor — Mr. Conner, I’ll cut to the chase for you. My complaint about the legal fees is that they weren’t necessary at all after the settlement offer or that they’re not legally — that your client isn’t legally entitled to them. I had no complaint about the amount of your bills or Mr. Langford or Ms. Taylor. And the point you were making about mine — and as an attorney I can say I think I was pretty impressed that you could try this case for the amount that you billed her.
      Instead, Ronald challenged the entirety of the fees and costs Julia sought as unnecessary— and therefore unreasonable — because he was voluntarily paying the guidelines amount of child support. We address this argument below.

      . Paragraph twelve of the trial court’s findings of fact and conclusions of law provides as follows: "Given that [Ronald] was already paying timely and voluntarily the exact child support amount awarded by the Court after trial, none of the attorneys’ fees and costs incurred by [Julia] in her motion to modify were reasonable and necessary."

      . In any event, Julia was successful because the trial court's order increased the amount of child support Ronald was required to pay from $200 per month to $1,350 per month.

      . Because Ronald waived this affirmative defense, we find it unnecessary to decide whether the doctrine of unreasonable or excessive demand is applicable to a suit for modification of child support.

      . In total, Julia’s attorney’s fees amounted to $42,465.79.

      . This exception is commonly referred to as the "inextricably intertwined” exception. See Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 684, n. 1 (Tex. App.-Houston [14th Dist.] 2004, no pet. h.).

      . In Stewart Title v. Sterling, the Texas Supreme Court reversed the trial court's implied segregation determination and addressed the appropriate remedy when "an appellate court determines that segregation was required.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex.1991). Rather than remanding to the court of appeals to conduct an analysis of the sufficiency of the evidence to support the trial court's segregation determination, the Sterling court held that "[fjollowing a review of the record, we conclude that the attorney's fees are capable of segregation.” Id. at 12. Accordingly, we conduct a de novo review of the trial court’s segregation determination.

      . In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court must consider evidence of all relevant factors, including:
      • the ages and needs of the children;
      • the ability of the parents to contribute to the support of the children;
      • any financial resources available for the support of the children;
      • the amount of time of possession of and access to the children;
      • the amount of the obligee’s net resources, including earning potential;
      • child care expenses necessary to enable either party to maintain gainful employment;
      • whether either party has the managing conservatorship or actual physical custody of another child;
      • the cost of travel in order to exercise possession of and access to the children;
      • any other reason consistent with the best interest of the children, taking into consideration the circumstances of the parents.
      TEX. FAM. CODE ANN. § 154.123(b) (Vernon 2002).

      . Mr. Langford offered no testimony regarding the percentage of attorney’s fees billed by Jacqueline Taylor, another attorney in his office, for the motion to modify child support.

      . Given our disposition of the issues, it is not necessary that we address Julia’s remaining legal and factual insufficiency challenges to the trial court’s findings of fact and conclusions of law. However, we do briefly address Julia’s complaints regarding paragraph seventeen, which provides as follows:
      The parties intended the Decree Attorney Fee Provision to apply to "a" motion to modify child support upon [Ronald's] becoming employed. [Julia’s] motion to modify child support in the present action exhausts this Decree Attorney Fee Provision, and [Ronald] bears no further responsibility or liability under that Provision, whether construed as a contract, an Order of this Court, or both.
      Julia contends this is an advisory opinion and is an improper legal conclusion, and further claims it is not supported by legally or factually sufficient evidence. We agree the issue was not ripe for determination.


author: BEA ANN SMITH, Justice.

text:
    The STATE of Texas, Appellant, v. Mario DELAGARZA, Appellee.
    No. 03-04-00249-CR.
    Court of Appeals of Texas, Austin.
    Jan. 21, 2005.
    Rehearing Overruled Feb. 17, 2005.

      Stephanie Goodman, Asst. Dist. Atty., San Angelo, for appellant.
    Kirk Hawkins, San Angelo, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

Appellee Mario Delagarza is under indictment for possessing methamphetamine and cocaine with intent to deliver. See Tex. Health <& Safety Code Ann. § 481.112 (West 2003). The State appeals an order granting Delagarza’s motion to suppress evidence. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.2004-05). We will reverse the suppression order and remand for further proceedings.

The challenged search was conducted pursuant to a warrant. An application for a search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause. Id. arts. 1.06 (West 1977), 18.01(b) (West Supp.2004-05). The facts submitted to the magistrate must be sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex.Crim.App.1986); State v. Bradley, 966 S.W.2d 871, 873 (Tex.App.-Austin 1998, no pet.). The sufficiency of the affidavit is determined by considering the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Bradley, 966 S.W.2d at 873. The issuing magistrate’s determination of probable cause must be given great deference and will be sustained if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim. App.2004); Bradley, 966 S.W.2d at 873.

The warrant at issue was applied for and issued on July 9, 2003. It authorized a search of the residence located at 3205 Orchard Street in San Angelo (referred to in the affidavit as the “suspected place”) and the arrest of Delagarza and Brianna Andros (collectively referred to in the affidavit as the “suspected party”). In summary, the probable cause portion of the affidavit stated:

• On March 31, 2003, an unnamed informer told the affiant, San Angelo police officer Brian Robinson, that the suspected party was living at 5 Dell-wood Street. The informer had seen a large number of people coming and going from that location, staying only a short period of time. Based on his training and experience, Robinson recognized this pattern of activity as being consistent with unlawful drug distribution. San Angelo police records confirmed that Delagarza lived at 5 Dellwood.
• On March 31 and April 7, 2003, trash bags left outside 5 Dellwood for collection were taken by Robinson and another police officer for inspection. On the first date, they found in the trash twelve pieces of burned foil, seven Ziploc plastic bags with the corners cut away, four plastic corner bags, and three plastic sandwich bags with the corners cut away. On the second date, they found nine pieces of burned foil, two plastic bags containing a white powder residue with the corners cut away, and one corner bag. Chemical field tests of plastic bags seized on each occasion were positive for cocaine.
• On June 10, 2003, the same anonymous informer told Robinson that the suspected party had moved “from the Suspected Place to an unknown location.”
• On June 26, 2003, Robinson received a “crime stoppers” tip regarding suspected drug dealing at the suspected place, that is, 3205 Orchard Street. Like the earlier tip regarding 5 Dell-wood, this tip was based on the number of people visiting the location and their brief stays. Water department records showed that the utilities at 3205 Orchard were in Delagarza’s name.
• On July 1, July 2, and July 4, 2003, Robinson and another officer picked up and searched trash bags left directly behind the suspected place for collection. On July 1, they found four plastic sandwich bags with the corners cut away, two pieces of burned foil, marihuana seeds and stems, and one handwritten note addressed to the suspected party. On July 2, they found nine plastic sandwich bags with the corners cut away, four pieces of burned foil, two plastic corner bags, and marihuana seeds and stems. In the bags retrieved on July 4, they found four plastic sandwich bags with the corners cut away, three pieces of burned foil, and marihuana seeds and stems. Chemical field tests on plastic bags found in the trash on July 1 and 2 were positive for cocaine.
• On July 9, 2003, the day the affidavit was presented to the magistrate, trash bags left for collection were again retrieved from outside the residence at 3205 Orchard. In the trash, Robinson found forty plastic sandwich bags with the corners cut away, twenty-two pieces of burned foil, three plastic bags tied into a knot, three plastic corner bags, marihuana seeds and stems, and a handwritten note with the name of the suspected party. A chemical field test on one of the plastic bags was positive for cocaine.
• Robinson knew from his training and experience that cocaine traffickers commonly use the bottom portions of plastic sandwich bags for packaging, that plastic sandwich bags and corner bags are used to package cocaine, and that cocaine is commonly ingested by heating it on foil.
• The suspected party has a record of arrests for resisting and evading arrest, and for obstructing police officers.

The warrant was executed on the day it was issued. Among the items seized were a small plastic bag containing a white powder substance, a package containing a green leafy substance, a water-pipe, and pieces of aluminum foil with burned residue. Delagarza was not present at 3205 Orchard Street when the warrant was executed. He was arrested elsewhere that day.

We conclude that the affidavit, when read in a common sense and realistic manner, gave the issuing magistrate a reasonable basis for concluding that controlled substances could be found at 3205 Orchard Street on July 9, 2003. From the four corners of the affidavit, the magistrate learned that Robinson’s attention was drawn to 3205 Orchard by a tip received on June 26, 2003, from an anonymous informer of unknown reliability. Although the affidavit did not state when these activities took place, the described comings and goings at 3205 Orchard were, in Robinson’s experience, indicative of unlawful drug dealing. Acting on this information, Robinson and other officers went to 3205 Orchard on four different occasions during the ten days preceding the issuance of the warrant. On each occasion, they retrieved trash bags left outside the residence for collection. In the trash, the officers found plastic sandwich bags from which the corners had been cut and the “corner bags” commonly used to package cocaine for sale. Chemical field tests of these bags were positive for cocaine. The officers also found marihuana and pieces of foil that appeared to have been used to heat cocaine prior to ingestion. The most recent of these trash searches took place the very day the affidavit was prepared and presented to the magistrate.

The magistrate was also told that Robinson had three months earlier received a similar anonymous tip regarding apparent drug dealing at 5 Dellwood, and that searches of the trash left outside that location on two different days had led to the discovery of burned pieces of foil and plastic bags testing positive for cocaine. Although this information did not directly support a finding of probable cause to search 3205 Orchard, it added some inferential support because police or utility records showed that both addresses were occupied by Delagarza at the relevant times.

Delagarza argues that the affidavit did not state facts sufficient to tie him to the suspected drug activities and did not give the magistrate probable cause to order his arrest. Delagarza’s motion to suppress, however, was directed to the evidence seized during the search of the premises at 3205 Orchard Street. There is no indication in the record that any evidence was seized- as a result of his arrest at a different location later that day. The question whether the warrant stated probable cause for Delagarza’s arrest is therefore not before us.

The affidavit in this cause is distinguishable from the probable cause affidavit held insufficient in Serrano v. State, 123 S.W.3d 53 (Tex.App.-Austin 2003, pet. filed). There, as here,- the affidavit was based in part on information received from an informer. Although the informer in Serrano had provided reliable information in the past, the tip merely stated the conclusion that Serrano was dealing drugs. Id. at 60. The tip did not describe the activities on which this conclusion was based, nor did it indicate where or when this supposed drug dealing took place. Id. at 60-61. Although the affidavit tenuously linked Serrano to the suspect address, the only evidence of drug dealing at that location was a one-time search of the trash that turned up two plastic bags, one of which tested positive for cocaine. Id. at 63. In the present cause, on the other hand, the informer, albeit not known to be reliable, described activities observed at 3205 Orchard that led both the informer and Robinson to suspect that drug dealing was taking place. These suspicions were confirmed by four different searches of the trash at that location, in each of which considerable evidence of drug dealing and use was discovered.

It is not our task, nor was it the task of the district court, to determine de novo whether the search warrant affidavit stated probable cause to search 3205 Orchard Street, but only to ensure that the issuing magistrate had a substantial basis for concluding that probable cause was shown. Gates, 462 U.S. at 239, 103 S.Ct. 2317; Swearingen, 143 S.W.3d at 810; Bradley, 966 S.W.2d at 876. The resolution of doubtful or marginal cases should largely be determined by the preference to be accorded to warrants. Bradley, 966 S.W.2d at 876 (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). In light of this preference for the warrant process, and giving the magistrate’s probable cause determination the deference it is due, we hold that the magistrate had a substantial basis for concluding that probable cause to search existed and that the district court erred by granting Delagarza’s motion to suppress.

The district court’s order granting the motion to suppress evidence is reversed and the cause is remanded to that court for further proceedings.

      . At the suppression hearing, Robinson testified that the affidavit should have stated that the informer told him that the suspected party had moved from 5 Dellwood to an unknown location.

      . Robinson testified that this note and the note found on July 9 were addressed to "Mario.”