author: Justice CARTER.

text:
    Marion Thomas WEST, Individually and d/b/a Royle Container Company, Appellant, v. BRENNTAG SOUTHWEST, INC., Successor in Interest to Delta Solvents and Chemical Company, formerly d/b/a Delta Container, Appellee.
    No. 06-04-00080-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 16, 2005.
    Decided July 20, 2005.

      John R. Mercy, Mercy, Carter & Tid-well, LLP, Texarkana, Ron Adkison, Well-born Houston, LLP, Henderson, for appellant.

      Craig A. Morgan, Elizabeth G. Bloch, Brown McCarroll, LLP, Austin, for appel-lee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

This is an appeal from a judgment in favor of a current landowner, Marion Thomas West, Individually and d/b/a Royle Container Company (West), awarding him $1,024,986.30 in damages and $500,000.00 in exemplary damages against a former operator on the land, Brenntag Southwest, Inc., Successor in Interest to Delta Solvents and Chemical Company, formerly d/b/a Delta Container (Delta/Brenntag), who engaged in drum reconditioning and waste disposal that caused significant contamination of the property. West appeals the trial court’s failure to award attorney’s fees. Brenntag brings several points of error, raising issues of standing, nature of the injury to the land, breach of contract, and measure of damages. We sustain two of Brenntag’s cross-points of error, concluding that West lacked standing to bring a cause of action in negligence or nuisance for injury to his land and that the jury’s findings regarding breach of an agreed order lacks support in the record. Based on those conclusions, we will overrule West’s point of error concerning attorney’s fees. Accordingly, we will reverse the trial court’s judgment and render judgment that West take nothing by his suit.

I. FACTUAL AND PROCEDURAL HISTORY

A.Delta’s Business

Delta Solvents & Chemical Company, predecessor-in-interest to Brenntag, leased the land at 200 Valentine Avenue in Long-view from the Walker Trusts. Delta entered into a contract to dispose of solvents and paint and also carried on a drum recycling business at the property. The record demonstrates that these operations involved the dumping of paint and solvents into earthen pits and into a buried milk truck. The record shows that Delta washed out the fifty-five gallon drums onto the ground and buried other fifty-five gallon drums containing hazardous waste. Not surprisingly, the record shows that, in 1980, Delta suspected the soil was polluted and ceased its business.

B. Sale of Business to Sikes

In 1980, Delta sold its business to Philip Sikes. Sikes leased the property from the Walker Trusts until 1982, when he undertook to purchase the land. Before the purchase, Sikes required removal of two buried tanks, one being the buried milk truck tank. He also had Delta remove some of the contaminated soil which, Sikes testified, Delta simply moved to another one of its properties down the road. While he owned the property, Sikes “heard” that drums had been buried on the property, but never located any. Sikes also operated a drum reconditioning business, but recycled the wastewater generated from the cleaning of the drums.

C. West Purchases Property from Sikes

In 1984, West purchased the property from Sikes. West continued the drum reconditioning until 1988. In 1988, West began preparations to build a loading dock on the property, preparations which in-eluded bulldozing down a tree. The bulldozer struck a buried drum that began spewing liquid, which then ignited. West discovered that this area has been used as a drum disposal. West contacted Sikes and Delta. The following day, a former Delta employee told West that he thought Delta had buried the drums there. West notified the Texas Water Commission (TWC), and it immediately began to investigate the site. Twenty drums were ultimately unearthed.

D.TWC’s Investigation and Agreed Order of Remediation

In June 1991, the TWC issued its preliminary report. The report detailed the history of ownership of and operations on the property, described the contamination present as “hazardous,” and attributed the contamination to the period of Delta’s operations.

In November 1991, West and Delta entered into an Agreed Order for Remediation with the TWC. The Agreed Order named West, his company (Royle Container), and Delta as respondents and deemed them “responsible” and “liable” parties within the Solid Waste Disposal Act. See Tex. Health & Safety Cobe Ann. § 361.271 (Vernon 2001). The Order found that Delta buried the drums and discharged rinse-water and spent solvents into earthen pits. The Order then outlined several steps to be taken by the respondents from planning to reporting to implementation.

E. What Has and Has Not Been Done

Delta/Brenntag hired ARCADIS, an independent environmental consulting firm, which drilled monitoring wells, took soil samples, and tested the soil. ARCADIS has not completed the remediation of the property. According to Brenntag’s expert, Michael Gates, Brenntag has spent $200,000.00 to $300,000.00 for ARCADIS’ services in advancement of the Agreed Order. In June 2003, Brenntag submitted its remediation action plan, which has not yet been approved. Gates testified that the cost to pump and treat the site with a sugar water treatment in accordance with the remediation plan would cost approximately $750,000.00 to $1,000,000.00.

F. West Files Suit

Over a decade after the parties entered into the Agreed Order, West filed suit. After the evidence was closed and the parties rested, the trial court allowed West to amend his petition to include a claim for breach of contract. The parties stipulated that the prevailing party’s attorney’s fees would be $59,000.00.

G. Jury Charge and Verdict

The trial court submitted the case to the jury on theories of negligence, nuisance, and breach of contract. Specifically, the jury was asked whether Brenntag failed to comply with the Agreed Order and what damages such failure caused to West. Delta did not object to the submission of the case in this manner. The jury found that Brenntag did fail to comply with the Agreed Order and that its failure caused West $900,000.00 in damages. The jury found in favor of West on all other issues as well. The jury then returned a verdict favoring West on the issue of exemplary damages.

I. Trial Court’s Judgment

The court entered judgment in favor of West, awarding actual damages in the amount of $1,024,986.30, plus post-judgment interest, and $500,000.00 in exemplary damages. The judgment recites all the jury’s findings, but does not specify on which it was based. The trial court did not award attorney’s fees to West.

J. Appellate History

Despite the sizeable award, West filed his notice of appeal July 12, 2004, indicating that his appeal would be taken to this Court. ■ Brenntag filed its notice of appeal August 11, 2004, in the Tyler Court of Appeals. Brenntag moved to dismiss the appeal filed in this Court and transfer the case to the Tyler court. Brenntag argued that West simply wanted to take the position of appellant and interfere with Brenn-tag’s appeal and that West’s appeal was frivolous and should be dismissed.

The matter was forwarded to the Texas Supreme Court. The Texas Supreme Court denied Brenntag’s motion to dismiss and its motion to transfer. Therefore, this Court has jurisdiction to determine the appeal and cross-appeal of the trial court’s judgment.

K.West’s Appeal and Brenntag’s Cross-Appeal

West appeals the trial court’s refusal to award attorney’s fees. West contends the trial court was required to do so since the parties stipulated that the prevailing party’s attorney’s fees would be $59,000.00. Brenntag also appeals the trial court’s judgment, bringing five points of error. For the purpose of clarity and in a manner consistent with the parties’ positions at argument, we first address Brenntag’s cross-points of error.

II. STANDING

Brenntag points out that West bought the Valentine Avenue property in 1984, years after Delta had deposited the contaminants. Since this injury occurred before West’s ownership, and since West did not get an assignment of claims from the previous landowner, Brenntag argues West lacks standing to sue Brenntag for those injuries occurring in 1976-1980, while Delta operated its business on the property. Concluding the pleadings and evidence fail to show a new injury during West’s ownership, we agree and dismiss West’s negligence and nuisance claims for want of jurisdiction.

A. Standing of Landowner to Sue for Injury to Land

In order for a landowner to have standing to sue for injury to land, one of two circumstances must exist. One, in the case where the injury occurred to the land before the current landowner’s purchase of the land, the vendor must have assigned such claims to the landowner. Two, the injury to the land must have occurred during the plaintiff-landowner’s ownership of the property.

No one contends that Sikes, the intervening landowner, assigned such claims to West. See Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 563 (1936). That being the case, the issue, not a new one to this Court, is whether there was an injury to the land while West owned the property.

Recently, we have held that “a landowner lacks standing to sue for injury to real property when any injury occurred before the landowner acquired the property, his or her deed contains no assignment of any cause of action, and there is no evidence of a new injury since the current landowner has owned the property.” See Cook, 145 S.W.3d at 780. In Cook, when Exxon ceased its operations on the land and abandoned its equipment, the damage was complete. Id. at 785. Affirming the trial court’s summary judgment, we concluded Cook failed to present any evidence that he sustained a new injury since he acquired the property. Id. at 786. Thus, he lacked standing to sue for injury to the land. Id.

We also addressed the issue of standing in a similar situation in Denman v. Citgo Pipeline Co., 123 S.W.3d 728 (Tex.App.-Texarkana 2003, no pet.). The Denmans discovered soil contamination, buried concrete structures, and asbestos-covered pipelines soon after they purchased the property. Denman, 123 S.W.3d at 731. They sued Citgo, which had conducted operations on the land for twenty-two years before ceasing operations a year and a half before the Denmans purchased the land. Id. at 730. The Denmans were subsequent purchasers and had no assignment of the claim from the previous landowner. Id. at 731-34. We affirmed summary judgment in favor of Citgo because the Denmans lacked standing to sue, having shown no injury to land during their ownership. Id.

In Exxon Corp. v. Pluff, 94 S.W.3d 22 (Tex.App.-Tyler 2002, pet. denied), a landowner sued Exxon based on the oil company’s failure to remove all of the oilfield materials used in drilling and operation of oil wells on his property. Pluff testified that his claim against Exxon was based on its failure to remove all of the oilfield materials that were used in the drilling and operation of the oil wells on the property and that all of those materials were on the property before he bought it. Id. at 26. He also testified that Exxon had not conducted any operations on the property since he purchased it and that no oil spills occurred after the date he purchased the property. Id. The Tyler Court of Appeals concluded Pluff had no cause of action, and therefore lacked standing, because he showed no injury occurred during his ownership of the land. Id. at 28. The court concluded the undisputed evidence “showed a continuing condition that already existed on the date of purchase,” and “[wjithout a new injury that occurred after [Pluff] purchased the property or an assignment of a cause of action for the prior injury, [Pluff] had not been aggrieved and therefore had no standing.” Id.

B. Review of Standing

Standing is a necessary component of subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1998). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. Pluff, 94 S.W.3d at 26.

The proper initial inquiry is whether West had a “cause of action, which involves the combination of a right on the part of the plaintiff and a violation of such right by defendant.” See id. The general test for standing in Texas requires that there be a real controversy between the parties that will be actually determined by the judicial declaration sought. Tex. Ass’n of Bus., 852 S.W.2d at 446. It is important to keep in mind that standing deals with whether a litigant is the proper person to bring a lawsuit, not whether that party can ultimately prevail on the claims asserted. See Hunt v. Bass, 664 S.W.2d 328, 324 (Tex.1984) (holding “the question of standing is distinct from the question of proof and once the plaintiffs alleged an interest peculiar to themselves and distinguishable from the public generally, they were entitled to a factual hearing”); Faulkner v. Bost, 137 S.W.3d 254, 259 (Tex.App.-Tyler 2004, no pet.).

Standing is generally a question of law determined by the court from the pleadings. See Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Tex. Ass’n of Business, 852 S.W.2d at 446. To have standing, the pleader must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Tex. Ass’n of Bus., 852 S.W.2d at 446; Bailey v. City of Austin, 972 S.W.2d 180, 184-85 (Tex.App.-Austin 1998, pet. denied). The Texas Supreme Court has stated, however, that plaintiffs need not preview their case on the merits simply to establish jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000).

A review of standing is not limited to the pleadings when a plaintiff is required to prove facts that are “primarily jurisdictional,” as when a plaintiff organization attempts to establish associational standing. Id. An appellate court should construe the petition in favor of the party, and if necessary, review the entire record to determine if any evidence supports standing. Tex. Ass’n of Bus., 852 S.W.2d at 446; Bailey, 972 S.W.2d at 184-85. Here, as described, in order to establish his standing as a subsequent landowner, West was required to show a new, distinct injury that occurred after he acquired the property. So, the issue of West’s standing as a subsequent landowner is analogous to the determination of associational standing insofar as the determination. of standing does require the plaintiff to prove facts that are “primarily jurisdictional.” With that, we conclude this case is one in which it is necessary to review the entire record to determine if any evidence supports standing. See Tex. Ass’n of Bus., 852 S.W.2d at 446.

C. No New Injury, No Standing

First, we look to West’s pleadings, construing them in a light most favorable to him. See id. at 445. In his first amended petition, West alleges the following:

This suit [arose] when the plaintiff WEST bought a tract of land that had previously belonged to Brenntag’s predecessor in interest, DELTA SOLVENTS AND CHEMICAL COMPANY or one of its affiliates. DELTA had conducted operations on the premises prior to West’s acquisition of the property-

So, the petition makes clear that the injury to the land involved Delta’s prior operations. Since the petition clearly puts West in the position of a subsequent landowner, these allegations, the inaccuracies in ownership aside, raise the need for West to further allege that Delta’s prior operations somehow had injured the land during West’s ownership. However, the petition does not do so. Rather, the petition only confirms that need by alleging that, unknown to West at the time of his purchase of the land, “DELTA had violated numerous environmental laws during their time on the property.” West does not allege any dates of a new injury or a more general allegation that the land was injured during his ownership. That is, he does not allege any of the “primarily jurisdictional” facts necessary to establish standing. See Blue, 34 S.W.3d at 554-55. He alleges that he would not have bought the property had he known of the contamination and that, as a result of the contamination, West cannot sell the property without taking a “big loss on it.” While these allegations do have some bearing on the issue of damages, they do not provide the specific facts necessary to confer standing on West when the petition plainly states that West is a subsequent owner of the land on which Delta operated.

We recognize that, since the issue of standing was not raised until Brenntag’s motion for judgment notwithstanding the verdict, West did not have an opportunity to cure the inadequacies in his pleadings. We bear that in mind as we move on to a review of the record to determine whether it reveals facts sufficient to confer standing.

West argues that the gradual leaking of contamination into the soil continued to occur while he owned the property and that, therefore, he has sustained a new injury and has standing to sue. He argues that he has sustained a new injury since “the hazardous waste had not been fully removed, the ground water had been contaminated, the water had migrated offsite, and the site had not been fully secured.”

The record establishes that the injury to the Valentine Avenue property occurred during the years 1976-1980, while Delta irresponsibly dumped solvents into the earth and buried several drums of solvents into the earth. The fact, on which West relies, that the injury has remained throughout West’s ownership does not create a new injury to the land. Rather, the injury is a continuous, lingering injury and one for which West, a subsequent landowner without an assignment of claims, has no standing to sue. The trial court was without subject-matter jurisdiction over these claims. We sustain Brenn-tag’s complaint, and dismiss for want of jurisdiction West’s claims for injury to land. See Douglas v. Delp, 987 S.W.2d 879, 882 (Tex.1999).

III. BREACH OF CONTRACT

Our disposition of West’s claims of negligence and nuisance concerning the injuries to land does not dispose of the issues concerning the jury’s findings on West’s contract claim. After the close of evidence, the trial court allowed West to amend his petition to allege a cause of action for breach of contract. Brenntag did not object to this amendment and, in fact, submitted its own question on West’s performance under the Agreed Order. The contract claim is, thus, properly before us. We will address the merits of Brenntag’s cross-point of error regarding the trial court’s denial of Brenntag’s motion for judgment notwithstanding the jury’s verdict on the breach of contract issues.

The jury found that Brenntag, but not West, “fail[ed] to comply with the November 1991 Agreed Order” and that Brenn-tag’s failure resulted in damages to West in the amount of $900,000.00. Brenntag contends the trial court should have disregarded the jury’s answers on West’s breach of contract claim because the evidence established, as a matter of law, that there was no cause of action for a breach of contract.

A. Standard of Review

A trial court may disregard a jury’s findings and grant a motion for judgment notwithstanding the verdict when there is no evidence on which the jury could have made its findings. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970). No evidence exists, and the trial court should render a judgment notwithstanding the verdict, when the record discloses one of the following: (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. See Merrell Dow Pharms., Inc. v. Hauner, 953 S.W.2d 706, 711 (Tex.1997). In making this determination, we must review the record in the light most favorable to the verdict, considering only the evidence and inferences that support the verdict and rejecting the evidence and inferences contrary to the verdict. Man-corp, 802 S.W.2d at 227.

B. Breach of Contract

The elements of a breach of contract are that (1) the plaintiff and defendant had a valid, enforceable contract; (2) the plaintiff performed or tendered performance of the contractual obligations; (3) the defendant breached the contract; and (4) the defendant’s breach caused the plaintiffs injuries. Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.App.Houston [1st Dist.] 1997, no pet.). Applying the no-evidence standards to the elements of breach of contract, we conclude that the trial court should have disregarded the jury’s finding that Brenntag’s failure to comply with the Agreed Order damaged West in the amount of $900,000.00.

The parties agree that the Agreed Order did impose contractual obligations to the State; the remaining issue appears to center on the existence of obligations to one another. More specifically, we must determine whether the Agreed Order creates a valid, enforceable contract between West and Brenntag as co-respondents. In order to have a valid, enforceable contract satisfying the first element of a cause of action for breach, there must be mutual obligations between West and Brenntag:

A contract must be based on valid consideration, i.e., mutuality of obligation. Consideration consists of benefits and detriments to the contracting parties. The detriments must induce the parties to make the promises, and the promises must induce the parties to incur the detriments. A contract that lacks consideration lacks mutuality of obligation and is unenforceable.

In re Turner Bros. Trucking Co., 8 S.W.3d 370, 373 (Tex.App.-Texarkana 1999, orig. proceeding) (citing Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408-09 (Tex.1997)). Put another way, a valid contract must contain “an exchange of obligations of value to each contracting party, reciprocally or mutually induced.” See Holguin v. Twin Cities Servs., Inc., 750 S.W.2d 817, 819 (Tex.App.-El Paso 1988, no writ).

C. No Contract Between West and Brenntag

Although there are arguable points regarding each element of a breach of contract, we need only address the first element. Even reading the Agreed Order in a light most favorable to the verdict, we do not find support for the position that it created a valid, enforceable contract between West and Brenntag. In fact, it establishes the opposite. Again, the Order names as “responsible” and “liable” respondents West, Royle Container, and Delta. It goes on to outline the duties which the respondents, as a group, must fulfill. These duties are imposed by and owed to the State. Nowhere does the Order specify what Brenntag must do to fulfill obligations to West. The Agreed Order does not reveal mutual obligations between West and Brenntag. Rather, the consideration supporting the Agreed Order flows only between the State and the respondents. Nor does the remaining record support the jury’s findings as to the contractual damages. Testimony regarding a lack of communication and cooperation between West and Brenntag over the course of several years serves to confirm that the Agreed Order did not create a valid, enforceable contract between West and Brenntag.

The record, even when viewed in a light most favorable to the jury’s findings, does not support the finding that Brenntag’s failure to comply with the Agreed Order caused $900,000.00 in damages to West. The record establishes, as a matter of law, that West could not recover on a breach of contract claim. The trial court should have granted Brenntag’s motion for judgment notwithstanding the verdict as to the jury’s findings regarding the damages sustained due to Brenntag’s alleged breach of the Agreed Order. We sustain Brenntag’s third point of error.

IY. ATTORNEY’S FEES: WEST’S SOLE POINT OF ERROR

West argues that the trial court erred by not awarding him attorney’s fees in light of the jury’s finding on his breach of contract claim and the parties’ stipulation as to the amount of reasonable attorney’s fees for the prevailing party. He prays that this Court modify the trial court’s judgment to award him $59,000.00 in attorney’s fees. See Tex.R.App. P. 43.2. Brenn-tag argues that West never brought this issue to the trial court’s attention and that, in fact, the judgment entered closely resembles the judgment proposed by West himself, including the omission of attorney’s fees. Additionally, Brenntag points to West’s motion for entry of judgment that did not award attorney’s fees. We agree with Brenntag’s position and find no error in the omission of attorney’s fees.

A. Awarding Attorney’s Fees Under Section 38.001

The award of reasonable attorney’s fees to a plaintiff recovering on a valid claim of breach of contract is mandatory under Texas law. In re Smith, 966 F.2d 973, 978 (5th Cir.1992). Once a jury finds that a party should prevail on a claim on which attorney’s fees are mandated, the only question remaining is the reasonable value of the attorney’s fees, not whether they should be awarded. Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 23 (Tex.App.-Tyler 2000, pet. denied).

West sought recovery of his attorney’s fees pursuant to the Texas Civil Practice and Remedies Code which provides, in pertinent part, that “[a] person may recover reasonable attorney’s fees ... in addition to the amount of a valid claim and cost, if the claim is for: ... an oral or written contract.” Tex. Civ. PRAC. & Rem. Code Ann. § 38.001(8) (Vernon 1997).

B. No Error Since No Recovery on Breach of Contract Claim

West seeks attorney’s fees solely on the basis of the jury’s findings regarding breach of contract. We have concluded the trial court should have disregarded the jury’s finding as to breach of the Agreed Order, since there was no evidence to support such a claim. So, it obviously follows that West was not entitled to attorney’s fees based on the jury’s findings regarding breach of contract.

V. CONCLUSION

We sustain Brenntag’s first cross-point of error regarding standing, concluding West lacked standing to sue for negligence or nuisance, since he failed to show a new injury to his land during his ownership. We also sustain Brenntag’s point challenging the jury’s finding as to breach of the Agreed Order. The Order does not create a valid, enforceable contract between corespondents West and Brenntag. Our disposition of Brenntag’s first and third contentions makes it unnecessary to address its remaining issues on appeal.

We overrule West’s complaint regarding the trial court’s failure to award attorney’s fees, since we have concluded there was no evidence to support the only cause of action on which he sought attorney’s fees. Having found that West lacked standing to sue for negligence or nuisance, the judgment as to those claims is reversed and judgment is rendered that those claims be dismissed for want of jurisdiction. The judgment as to the remaining claims is reversed and judgment is rendered that West take nothing.

      . David Vickery, a former Delta employee, described the business as a "shotgun operation” in which the “homemade” devices never functioned properly.

      . The TWC is the predecessor to the Texas Natural Resource Conservation Commission and, now, the Texas Commission on Environmental Quality.

      . Brenntag filed a counterclaim for contribution, seeking West’s portion of the approximately $270,000.00 Brenntag has spent toward meeting the Agreed Order and his portion of future costs estimated at $800,000.00.

      .Because the evidence conclusively established that Delta never owned the land at issue and that West had purchased from an intervening landowner at any rate, the trial court granted Brenntag’s motion for directed verdict on West’s claim for recision of the sale of the property.

      . Gregg County, from which this appeal was taken, lies within both the Sixth and the Twelfth appellate districts. See Tex. Gov’t Code Ann. § 22.201(g), (m) (Vernon 2004).

      . West actually filed one prior notice of appeal and a prior supplemental notice of appeal. In its first notice of appeal, West complained of the trial court's imposition of a five percent post-judgment interest rate rather than ten percent and the omission of certain items of- evidence. In its supplemental notice of appeal, West claimed the trial court erred in excluding “certain items of evidence.” In its motion to dismiss, Brenntag argued that the interest rate was set by statute and clearly applied to this case and that there were no items of West’s offered evidence excluded by the trial court.

      . The right to sue for the injury is a personal right belonging to the person owning the property at the time of the injury. Cook v. Exxon Corp., 145 S.W.3d 776, 781 (Tex.App.-Texarkana 2004, no pet.); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex.Civ.App.-Austin 1980, writ ref’d n.r.e.). Therefore, without express provision, the right does not pass to a subsequent purchaser of the property. Abbott, 721 S.W.2d at 875.

      . In Cook, this Court stated that, whether the injury was temporary or permanent, the injury had to have occurred while the plaintiff owned the land: "Even if the distinction between temporary and permanent is relevant to the issue of standing, a current owner would have standing only if a new injury occurred while he or she owned the property.” See Cook, 145 S.W.3d at 784. West’s and Brenntag’s arguments have mingled the temporary/permanent distinction into the inquiry regarding whether any injury occurred during West’s ownership. The essence of West’s position is that the injury to the land— the contamination — was a temporary injury that occurred while he owned the property.

      . Although not necessary to the disposition of this appeal, we address the parties’ well-developed contentions regarding the nature of the injury to the Valentine Avenue property and note the applicability of the Texas Supreme Court’s recent decision in Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 272 (Tex.2004), in which the Court clarified the temporary/permanent distinction when evaluating injuries to land.
      A nuisance is permanent if it is "constant and continuous,” and if "injury constantly and regularly recurs.” Id. In contrast, a nuisance is temporary if it is of limited duration. Thus, a nuisance may be considered temporary if it is uncertain if any future injury will occur, or if future injury "is liable to occur only at long intervals.” Id. A nuisance is also temporary if it is "occasional, intermittent or recurrent," or "sporadic and contingent upon some irregular force such as rain.” Id. "Thus, if a nuisance occurs several times in the years leading up to a trial and is likely to continue, jurors will generally have enough evidence of frequency and duration to reasonably evaluate its impact on neighboring property values. In such cases, the nuisance should be treated as permanent, even if the exact dates, frequency, or extent of future damage remain unknown.” Id. at 280 (footnote omitted). "Conversely, a nuisance as to which any future impact remains speculative at the time of trial must be deemed 'tempo-raiy.' " Id.

      Here, contrary to the trial court's determination, the injury to the land was, as a matter of law, permanent under Schneider Nat’l Carriers. That being the case, even if West would have alleged that he sustained a new injury by the release in 1988 of the chemical from the drum ruptured while bulldozing, such a claim would clearly be barred by the two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002). He learned soon after the release that Delta likely deposited the drums in the ground. At the very latest, West knew of the source of the contamination by 1991, when the TWC released its report identifying Delta as the source of contamination. He did not bring suit until 2002.
      Had West been successful in arguing that the injury was a temporary one, he still would have encountered significant obstacles, since his recovery would be limited to those damages sustained during the two years before suit. See Yancy v. City of Tyler, 836 S.W.2d 337, 341 (Tex.App.-Tyler 1992, writ denied). The evidence would not support the jury’s finding that West sustained $900,000.00 in damages between 2000 and 2002.

      . The jury also was asked whether West failed to comply with the Agreed Order, a question to which it answered no. Brenntag contends that such answers — that Brenntag failed to comply and that West did not — are irreconcilable.

      . If we can give a definite legal meaning or interpretation to a written instrument, it is not ambiguous. Gen. Devices, Inc. v. Bacon, 888 S.W.2d 497, 502 (Tex.App.-Dallas 1994, writ denied). We must enforce unambiguous contracts as written. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 517, 243 S.W.2d 154, 157 (1951); Gen. Devices, 888 S.W.2d at 502.

      . In fact, only Royle Container is specifically directed to perform certain duties. As a current operator, the State ordered Royle Container to adhere to registration and permit requirements. All other duties in the Agreed Order are owed by the respondents as a group.


source: Caselaw Access Project

author: Justice SUE LAGARDE (Retired).

license: Public Domain

text:
    The STATE of Texas, Appellant, v. David Wayne JONES, Appellee.
    No. 05-04-00819-CR.
    Court of Appeals of Texas, Dallas.
    July 26, 2005.

      William T. (Bill) Hill, Jr., John Henry Stone, Asst. Dist. Atty., Dallas, and Katha-riñe K. Decker, Asst. Dist. Atty., McKinney, for State.
    Thomas G. Pappas, Burleson Pate & Gibson, LLP, Dallas, for Appellee.
    Before Justices BRIDGES, FRANCIS, and LAGARDE

      . The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION

Opinion by

Justice SUE LAGARDE (Retired).

In this State’s appeal, we must decide whether the trial judge reversibly erred in granting appellee David Wayne Jones’s motion to dismiss for failure to provide him a constitutional speedy trial. Applying the appropriate standards, we conclude the trial court reversibly erred. Accordingly, we reverse the trial court’s order of dismissal with prejudice and remand this case to the trial court with instructions to reinstate the indictment.

Factual & Procedural Background

In October 1999, the sexual assault offense alleged in this case was reported to the Dallas County District Attorney’s Office (DA) by the complainant’s mother. Appellee was not arrested pre-indictment, and the State conducted a two-year investigation before seeking an indictment. That investigation included a personal interview by an investigator from the DA’s office with appellee at the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), where appellee was serving a sentence on another Dallas County sexual assault conviction.

On November 28, 2001, the Dallas County grand jury indicted appellee for the offense of aggravated sexual assault of a child younger than fourteen years. See Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-05). The offense was alleged to have occurred on or about September 1, 1990. A “capias/warrant of arrest” was issued on the same date the indictment was returned against appellee and “came to hand” of the Dallas County Sheriff on November 30, 2001. At all relevant times, the State knew appellee was confined in the TDCJ-ID. “Right around ... the end of July,” and “[c]ertainly no earlier than July 25th, 2003,” appellee learned from his civil commitment lawyer of the indictment in this case. After learning of the indictment, appellee immediately contacted his mother and asked her to contact his attorney to bring him back to Dallas County to resolve the case. The Sheriff did not execute the arrest warrant until August 7, 2003, when appellee was brought from the TDCJ-ID and placed in the Dallas County Jail.

In September 2003, through his attorney, appellee filed a motion to dismiss, asserting the statute of limitations had run. The court conducted a hearing on the motion and, on January 20, 2004, denied the motion. The case was set for trial on June 7, 2004. On May 26, 2004, appel-lee filed a second motion to dismiss, this time asserting as grounds a violation of his right to a speedy trial under both the federal and state constitutions. See U.S. Const. Amend. VI; Tex. Const, art. 1, § 10. Appellee alleged in the motion to dismiss that “[o]ver ten years have elapsed between the alleged conduct and indictment date. Over one year and eight months has [sic] elapsed since the Defendant received notice of the indictment. Neither Defendant nor defense counsel has committed [any] act or omission contributing to these delays.” Appellee further asserted he had been in the continuous custody of either the Dallas County Sheriffs Office or TDCJ-ID since June 11, 1991, and the allegations underlying the indictment were known to both the Dallas Police Department (DPD), the investigating agency which brought the original charges, and the DA’s Office. Appellee further asserted the DPD was apprised of the existence of this charge in 1994 and that “Howard Blackmon of the Dallas County District Attorney’s Office was appraised [sic] in 1999.” Appellee alleged the DA’s conduct was “too transparent to be anything but a bad faith attempt to violate the plea agreement and lengthen the Defendant’s incarceration.” Appellee further claimed his “loss of ability to defend ... occurred through the loss of witnesses, the dimming of witnesses’ memories, and physical changes to the place of the alleged event.”

On June 3, 2004, the court held a hearing on the motion to dismiss on speedy trial grounds. The trial judge heard testimony from the prosecutor, the court coordinator for the 195th . Judicial District Court, and appellee, as well as arguments of both counsel. Insofar as appellee’s assertion of bad faith by the prosecutor is concerned, the trial court stated on the record there was no evidence presented whatsoever of any nefarious plot by the DA’s office. However, the judge went on to hold that the State’s excuse of a heavy case load did not justify the failure to inform appellee of the indictment, and he stated his reasons in the record. The trial judge filed findings of fact and conclusions of law. Based on the evidence presented and his explicit fact findings, the trial court concluded the prosecutor’s failure to notify appellee of the indictment and to provide him a speedy trial impaired appellee’s ability to prepare a defense. Thus, the court concluded the only remedy was dismissal of the charge. The trial court dismissed appellee’s case with prejudice. It is from this dismissal order the State appeals.

Standard of Appellate Review

An appellate court is required to apply a bifurcated standard of review: an “abuse of discretion” standard to the trial court’s factual findings and a de novo standard of review to the trial court’s legal conclusions. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)) (appellate courts should afford almost total deference to a trial court’s determination of the historical facts that are supported by the record); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997) (appellate courts conduct de novo review by independently weighing and balancing the four Barker factors). Our review must be done in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). We must uphold the trial court’s ruling if it is supported by the record and is correct under the applicable law. See Munoz, 991 S.W.2d at 821.

We must defer to the trial judge’s fact findings that are supported by the record. See id. The State has not challenged any of the fact findings on appeal. Essentially the facts are undisputed. We, therefore, review de novo and independently weigh and balance the Barker factors to determine the legal significance of the relevant facts to appellee’s claim his speedy trial right was violated.

Right to Speedy Trial

The Sixth Amendment to the United States Constitution provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const. amend. VI (emphasis added); Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

The Texas Constitution likewise provides that “[i]n all criminal prosecutions the accused shall have a speedy ... trial.” Tex. Const. art. 1, § 10 (emphasis added). The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.Sd 643, 648 (Tex.Crim.App.2002). If an accused’s speedy trial right is violated, the proper remedy is dismissal of the prosecution with prejudice. Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App.2003) (citing Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) and Hull v. State, 699 S.W.2d 220, 224 (Tex.Crim.App.1985)).

In determining whether one has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See id. at 887 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). The relevant factors to be weighed include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant’s assertion of his speedy trial right, and any prejudice to the defendant resulting from the delay. Id. at 888-89.

Analysis

Before we turn to our independent review, however, we summarize the relevant dates and time periods involved. The offense was alleged to have occurred on September 1, 1990. The DA’s office became aware of the alleged offense in October 1999. Appellee was indicted on November 28, 2001. A capias/warrant of arrest was delivered to the Dallas County Sheriffs Office on November 30, 2001. Appellee’s civil commitment attorney informed appellee of the indictment near the end of July 2003. The arrest warrant was executed on August 7, 2003. In September 2003, appellee filed a motion to dismiss asserting limitations. The motion was denied following a January 2004 hearing, and the case was set for trial on June 7, 2004. On May 26, 2004, appellee filed a second motion to dismiss, asserting violation of his speedy trial rights under both the federal and state constitutions. On June 3, 2004, the judge held a hearing on the second motion to dismiss and signed a written order granting the motion. On June 9, 2004, the judge entered written findings of fact and conclusions of law.

We turn now to our de novo review and independent weighing and balancing of the relevant Barker factors. In our review, we are mindful that under the plain language of both the federal and state constitutions, the speedy trial right applies only to an accused.

A. Length of the Delay

The length of the delay is measured from the time the defendant is arrested or formally accused. See United States v. Manon, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Unless the delay is “presumptively prejudicial,” courts need not inquire into the other factors. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. The State concedes the delay here was “presumptively prejudicial” and that it bears the responsibility for most of the delay. The State contends, however, that appellee contributed to approximately the last one-third of the delay by failing to timely demand a speedy trial once he learned of the indictment.

To trigger a speedy trial analysis, the accused must allege the interval between the accusation and the trial has crossed the threshold dividing ordinary and presumptively prejudicial delay. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). As the State recognizes, generally a delay approaching one year is sufficient to trigger a speedy trial inquiry. See Shaw, 117 S.W.3d at 889. Once the accused makes this showing, one factor among several, the reviewing court must consider the extent to which the delay stretches beyond the bare minimum needed to trigger examination of the claim. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686; Zamorano, 84 S.W.3d at 649. This latter inquiry is significant because “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S. at 652, 112 S.Ct. 2686; Zamorano, 84 S.W.3d at 649.

In this case, there was an approximately thirty-month delay between the date of indictment and trial. Of that time, appel-lee stipulated that the nine months between the date he learned of the indictment and the date of trial should not count against the State. The remaining twenty-one months are attributable to the State. We conclude this factor weighs against the State.

B. Reasons for Delay

In assessing the “reason for the delay” factor, different weights must be assigned to different reasons. See Barker, 407 U.S. at 531, 92 S.Ct. 2182. Some reasons are valid and serve to justify the delay, while other reasons are not valid and do not serve to justify the delay. See id.

The trial court found that the prosecutor’s reasons for not timely filing the case, not timely seeking an indictment, and not timely setting it for trial were that he was busy with several high-profile capital murder cases, and because the defendant was already incarcerated, the prosecutor believed there was no urgency in doing so. Because only an accused has a speedy trial right, we do not consider in our independent analysis any pre-indictment delay. See United States v. MacDonald, 456 U.S. 1, 7-10, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). We consider only the length of delay beginning from the date appellee was indicted. See id. at 7, 102 S.Ct. 1497.

Our review of the record suggests the prosecutor’s “busy schedule” reasons did not address the failure of other law enforcement officials to timely serve appellee with a copy of the indictment and execute the warrant of arrest. Rather, the prosecutor’s evidence addressed only pre-indictment delays that are irrelevant to a proper speedy trial analysis. The State presented no evidence to explain why the Dallas County Sheriff’s Office waited almost two years to execute the “eapias/warrant” when the State knew of appellee’s location. Thus, the record leaves unexplained the delay from the date of the indictment until the warrant was executed.

Even if a defendant’s location is known, the State must exert due diligence in obtaining his presence for trial. See Meshell v. State, 739 S.W.2d 246, 250 (Tex.Crim.App.1987) (citing the former state statutory speedy trial act which it declared unconstitutional on separation of powers grounds); Ex parte Hilliard, 687 S.W.2d 316, 319 (Tex.Crim.App.1985). Indeed, if a prosecutor seeks the presence of a defendant by capias, he is “obliged by [his] own assigned responsibility to exercise due diligence to follow through in the endeavor to obtain the presence of an accused for trial.” Lyles v. State, 653 S.W.2d 775, 780 (Tex.Crim.App.1983) (Clinton, J., concurring). And, unlike the former statutory speedy trial act which addressed prosecutorial delays only, the constitutional right to a speedy trial governs the entire criminal justice process. See Chapman v. Evans, 744 S.W.2d 133, 136 (Tex.Crim.App.1988). However, the primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. See id. at 136-37 (citing Turner v. State, 504 S.W.2d 843, 845 (Tex.Crim.App.1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App.1973)). Both the trial court and prosecution are under a positive duty to prevent unreasonable delay. Chapman, 744 S.W.2d at 137 (citing Wilson v. Bowman, 381 S.W.2d 320, 321 (Tex.1964)). Consequently, the unexplained delay, even if by the Dallas County Sheriffs Office, is attributable to the State for the purpose of our speedy trial analysis, and we will consider it.

To the extent the State’s “busy schedule” reasons go to the period of time from August 7, 2003, until the trial date of June 7, 2004, the State contends, and appellee so stipulated, that the nine-month delay after appellee learned of the indictment should not weigh against the State. Nevertheless, even excluding the delay attributable to appellee, we conclude this factor weighs against the State.

C. Appellee’s Assertion of His Speedy Trial Right

Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Zamorano, 84 S.W.3d at 651 (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). Therefore, the defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Id. Although a defendant’s failure to seek a speedy trial does not amount to a waiver of his right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim. See Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. The longer the delay, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. See id. at 531, 92 S.Ct. 2182. Thus, a defendant’s inaction weighs more heavily against a speedy trial violation the longer the delay becomes. See id. at 532, 92 S.Ct. 2182.

In this case, appellee did not file a motion affirmatively requesting a speedy trial. Instead, he filed a motion to dismiss in which the only relief sought was dismissal of the indictment. This fact potentially weakens appellee’s case, because “a dismissal instead of a speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial.” Zamorano, 84 S.W.3d at 651 n. 40 (citing Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.-Fort Worth 1997, no pet.)).

The State argues appellee did not request a speedy trial immediately upon learning of the indictment but, instead, filed other motions in the interim between indictment and trial. Thus, the State contends, the nine-month delay between the time appellee learned of the indictment and trial is attributable to him. Appellee stipulated that the nine-month delay was not attributable to the State. Moreover, although appellee filed a motion to dismiss on limitations grounds, he never affirmatively raised a speedy trial claim until about two weeks before the trial date. We conclude this factor weighs against appel-lee.

D. Prejudice to the Appellee Resulting from the Delay

The final factor of “prejudice” must be assessed in light of the interests the speedy trial right was intended to protect. See Barker, 407 U.S. at 532, 92 S.Ct. 2182. Those interests are: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused’s anxiety and concern, and (3) to limit the possibility the defense will be impaired. Id. The third interest of limiting the impairment of the defense has been said to be the most serious. See id. Although a showing of actual prejudice is not required in Texas, the accused has the burden to make some showing of prejudice that was caused by the delay of his trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App.1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex.Crim.App.1971)). Once the accused makes some showing of prejudice, the burden shifts to the State to show that no prejudice resulted. Harlan v. State, 975 S.W.2d 387, 390 (Tex.App.-Tyler 1998, pet. ref'd).

Here, appellee was neither incarcerated for this offense nor did he even know he had been indicted for this offense until approximately the beginning of August 2003. Therefore, the first two interests protected by the speedy trial right are not matters of concern in our analysis. Consequently, appellee’s claimed prejudice necessarily turns on the possibility that his defense was impaired by the delay.

Affirmative evidence of particularized prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. See Doggett, 505 U.S. at 655, 112 S.Ct. 2686. However, the presumption of prejudice to a defendant’s ability to defend himself can be “extenuated ... by the defendant’s acquiescence” in the delay. See id. at 658, 112 S.Ct. 2686.

Appellee testified at the hearing on his motion to dismiss on speedy trial grounds that his defense was impaired by the delay. In relevant part, appellee testified as follows:

[Defense Counsel]: Okay. Now after the time that you gave your deposition, which is in, what, '94 or '95?
[Appellee]: '94.
[Defense Counsel]: Okay. Did you focus or have anything to do or in any way think about the aspects of this case, other than attempting to get the back time credit you felt you were entitled to between the original plea and the subsequent plea in '93?
[Appellee]: No.
[Defense Counsel]: Okay. Were you focused on your therapy and treatment?
[Appellee]: Yes, sir.
[Defense Counsel]: Okay. Do you feel that your ability to defend yourself, in particular, your memory of certain witness’s [sic] names, the lay out of the YMCA building itself, and certain physical aspects of the cases, has been dimmed by the passage of time?
[Appellee]: Yes.
[Defense Counsel]: Do you think that’s harmed your ability to have effective representation and to defend yourself against this accusation?
[Appellee]: Yes, I do.

Thereafter, testimony was developed that in October 2001, before appellee was indicted, an investigator from the DA’s office visited appellee at TDCJ-ID. When appellee was told he had a “legal visit,” he expected to see his attorney. However, when appellee went to the visiting booth, the DA’s investigator was present and said he was there to investigate a complaint against appellee. Appellee told the investigator he had an attorney and asked, “Where is my attorney Tom Pappas?” The investigator replied, “[0]h, Tom is your lawyer? I know Tom. I don’t think he would mind me talking to you without him here.” Based on that representation, appellee talked to the investigator without his attorney present.

Appellee also testified he had been in continuous custody at TDCJ-ID since 1993, had never done anything to avoid being arrested on this case, and, to his knowledge, no efforts had been made to obtain his appearance in this case. Appel-lee testified he had no pictures of the internal layout of the YMCA building but had learned that within the last year and a half the building had been “gutted” by its new owner. The following testimony was then elicited.

[Defense counsel]: Do you feel the fact that the, that you are no longer able to obtain pictures of the way the building looked back when you worked at the YMCA hampers or hinders your defense?
[Appellee]: Yes, I do.
[Defense Counsel]: Why?
[Appellee]: Because I’ve, I don’t really recall a lot of things from back then, the people I worked with or the building layout.
* * *
[Defense Counsel]: Okay. And was it your mind set and your belief in 2000 that, in fact, Lt. Walsh said in a newspaper article there was no evidence of any conduct other than fondling?
[Defense Counsel]: Okay. Your answer was?
[Appellee]: Yes.
[Defense Counsel]: Okay. Did that just reinforce your belief that you put all of this out of your mind and put it behind you and went forward with therapy?
[Appellee]: Yes, I did.
[Defense Counsel]: Okay. Be fair to say that in earlier October [sic] you and I discussed whether or not there were any new charges coming out of this case; is that correct?
[Appellee]: That’s correct.
[Defense Counsel]: And based upon our discussion, you again, put it all, kept it all out of your mind because you had no belief that no new charges were being filed?
[Appellee]: Right.

On cross-examination, after the State established that the State’s investigator had read appellee his Miranda warnings, the following relevant exchange between the prosecutor and appellee occurred:

[Prosecutor]: Okay. Mr. Jones, did you, in fact, waive those rights and talk to Mr. McGowan at that time?
[Appellee]: I don’t believe I was asked to waive the rights, but I did speak to him.
[Prosecutor]: All right. You never asked for an attorney to be present; is that correct?
[Appellee]: I asked him where is my attorney because I thought he would have brought him with him.
[Prosecutor]: Did you ask for him to be present prior to talking to Mr. McGowan?
[Appellee]: No.

The State then offered into evidence and, without objection, the trial court admitted the Miranda card bearing appellee’s initials.

Appellee claims he was prejudiced by the delay in two ways: it adversely affected his chance of parole and impaired his ability to present a defense. Appellee also claims the length of the delay was presumptively prejudicial. The State contends appellee’s claims of prejudice are without merit.

We agree with the State that the record does not support appellee’s claim of prejudice based on an adverse effect on his parole. No evidence was presented to show any nexus between the delay in bringing the case to trial and appellee’s parole.

The State also contends appellee’s failure to assert his speedy trial right until about two weeks before trial and the lack of specificity of prejudice undercut his assertion his defense was impaired. The State points out that appellee produced no evidence showing he, at any time during the delay, ever attempted to ascertain any witness’s name, locate any witness, or even that he believed any witness would testify favorably to his defense. The State further contends the record contradicts appel-lee’s claims his defense was impaired by showing that at least three of appellee’s former supervisors were available to testify. The State further argues that appel-lee’s claim about not remembering the layout of the YMCA building was irrelevant inasmuch as the offense was alleged to have occurred at White Rock Lake Park. The State also contends, even if appellee’s defense was so impaired, nothing in the record indicates that the twenty-one-month-delay attributable to the State caused the impairment because appellee made no differentiation between pre- and post-indictment delay. The State further asserts appellee testified that, for therapy reasons, he intentionally put the alleged incident out of his mind in 1994, a full seven years before he was indicted; therefore, it is a reasonable inference that other memory-related issues also occurred before indictment. Finally, the State contends the twenty-one-month-delay attributable to the State was not long enough to be considered “presumptively prejudicial” and that appellee did not show any actual prejudice resulting from the post-indictment/pre-service delay.

As Doggett makes clear, excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. See Doggett, 505 U.S. at 655, 112 S.Ct. 2686. That presumption, however, can be “extenuated ... by the defendant’s acquiescence” in the delay. See id. at 658, 112 S.Ct. 2686. The trial judge concluded the State had a duty to inform appellee of the indictment and it did not do so until twenty-one months after appellee’s indictment, a period of time described by the trial judge as a “very long time.” The State presented no evidence to explain the twenty-one month-delay by the Sheriffs office in executing the arrest warrant when appellee’s location was known at all relevant times. Under the facts of this case, appellee could not possibly have acquiesced in the twenty-one-month-delay between indictment and service in a case he did not know existed. The only portion of the delay to which appellee could possibly have acquiesced is the period from late July or early August 2003 until the June 2004 trial date.

Appellee testified only generally that his memory of names, events, and the layout of his former workplace, a YMCA building, had faded with time. The credibility choice of whether to believe appellee’s testimony that the passage of time and his therapy had impaired his memory was, of course, the trial judge’s choice, as fact finder. Nevertheless, appellee’s self-serving testimony alone does not amount to “some showing of prejudice.” See State v. Smith, 76 S.W.3d 541, 552 (Tex.App.-Houston [14 Dist.] 2002, pet. refd). We conclude appellee has not presented evidence sufficient to constitute “some showing of prejudice.”

Nor do we conclude the twenty-one month delay is so excessive as to give rise to presumptive prejudice. See Doggett, 505 U.S. at 655, 112 S.Ct. 2686. The delay in this case is significantly shorter than the nearly five-year delay attributable to the State in Barker. See Barker, 407 U.S. at 533-34, 92 S.Ct. 2182. We may not, therefore, hold that the length of the delay alone amounts to presumptive prejudice. See id. at 534, 92 S.Ct. 2182.

Having reviewed the evidence, we conclude appellee did not meet his burden of showing “some prejudice,” either actual or presumptive. We conclude this factor weighs against appellee.

Conclusion

Giving deference to the trial court’s findings on the relevant facts and balancing the Barker factors, we conclude the record does not support the trial court’s ruling. We resolve the State’s issue in its favor.

We reverse the trial court’s June 3, 2004 order of dismissal with prejudice and remand this case to the trial court with instructions to reinstate the indictment.

      . Appellee also filed, and the trial court granted, a motion for nunc pro tunc concerning his back time in the case on which appellee had been incarcerated in TDCJ-ID.

      . The only claims preserved below and before us in this case are appellee’s federal and state constitutional speedy trial claims; accordingly, no other issues are before us. See West v. State, 121 S.W.3d 95, 114 (Tex.App.-Fort Worth 2003, pet. ref’d) (failure to object on ground of violation of constitutional right to due process waives that ground).

      .Nor has our independent review of the record revealed any.

      .The trial judge made the following findings of facts: the charged offense was alleged to have occurred on or about September 1, 1990; the offense was reported to the assistant district attorney by the alleged victim’s mother in October 1999; the case was not filed by the district attorney’s office until October 2001, more than two years after the crime was reported; an indictment was returned on November 28, 2001, but the appel-lee was not notified that the case had been filed or indicted; the prosecutor made no attempts to inform appellee of the indictment in this case nor did he attempt to learn whether appellee had been so informed; ap-pellee learned of the indictment shortly before he was bench-warranted to the Dallas County Jail in August 2003, approximately 646 days (twenty-one months) after the indictment had been returned; the prosecutor's reasons for not timely filing the case, not timely seeking an indictment, and not timely setting the case for trial were that he was busy with several high-profile capital murder cases and, because appellee was already incarcerated, the prosecutor felt there was no urgency in doing so.

      . Based on his written fact findings, the trial judge concluded as a matter of law that the prosecutor had a duty to inform appellee or his attorney that an indictment had been returned against him so that preparation of a defense could begin; the prosecutor’s failure to notify appellee of the indictment and to provide him a speedy trial impaired appellee’s ability to prepare a defense; and appellee’s right to a speedy trial was violated under both the federal and state constitutions.

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . In its brief, the State says that appellee was not informed of the indictment until August 2003, and in appellee's motion to dismiss on speedy trial grounds, he states that he "was not given any notice of the pending indict■ment until his transfer from TDC to the Dallas County Jail in August of 2003.” Appellee testified during the speedy trial hearing that he learned of the indictment no earlier than July 25, 2003.

      . That time period is actually about ten months, not nine; however, that discrepancy does not affect our analysis. We consider appellee’s stipulation to be a waiver of any complaint about that portion of the delay, and exclude it from our analysis.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: Justice SUE LAGARDE (Retired). FITZGERALD, J.

text:
    Debi ROSE, Appellant, v. GARLAND COMMUNITY HOSPITAL, Appellee.
    No. 05-01-01813-CV.
    Court of Appeals of Texas, Dallas.
    July 27, 2005.

      Lauri Michele Edsell Luxton and Jay C. English, English & Associates, P.C., Dallas, for Appellant.
    P. Michael Jung and Christine D. Rose-veare, Strasburger & Price, L.L.P., Dallas, for Appellee.
    Before Justices FITZGERALD, RICHTER, and LAGARDE.

      . The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION ON REMAND

Opinion by

Justice SUE LAGARDE (Retired).

In our original opinion in this case, we held that Debi Rose’s claim against Garland Community Hospital for negligent credentialing was not a health care liability claim governed by the Medical Liability and Insurance Improvement Act (MLI-IA). On November 5, 2004, the Texas Supreme Court held that “a claim for negligent credentialing is a claim against a health care provider for a departure from an accepted standard of health care, and as such it is a health care liability claim that carries all the statutory and common law burdens associated therewith.” Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 547 (Tex.2004). The supreme court reversed our judgment and remanded the case to us for further proceedings. Id.

On remand, the narrow issue we must decide is whether Rose’s expert report constituted a good faith effort to comply with the MLIIA. See id. at 547. Supplemental briefing on remand was permitted. Having reviewed Rose’s expert report, we hold the trial court did not abuse its discretion in concluding the report did not constitute a good faith effort to comply with the statute. Consequently, we affirm the trial court’s order dismissing Rose’s case against the hospital.

Background

The facts of this case are set out in our original opinion and in the supreme court’s opinion. Accordingly, we will not repeat them, except as necessary to our analysis.

Two separate affidavits were before the trial court and are before this Court: one dated April 10, 2001 and one dated July 10, 2001. Both affidavits were by Robert A. Ersek, M.D. The trial court considered both affidavits. Likewise, we consider both affidavits and will sometimes refer to them together as “Rose’s expert report.”

The April 10, 2001 report speaks only to medical treatment and not to negligent credentialing. The July 10, 2001 report states, in relevant part:

I have reviewed the treatment records of Debi Rose from James H. Fowler and the Cosmetic Surgery Center of North Dallas beginning on October 30, 1998 and ending on July 14, 1999. As stated in my April 10, 2001 report, a hospital/patient relationship existed between Garland Community Hospital and Debi Rose. The standard of care requires hospitals to do the following:
1. vigorously investigate complaints and allegations of medical negligence by patients against physicians who have privileges at the hospital;
2. ascertain a physician’s qualifications and ensure that a physician has the proper training before permitting him/her to perform surgical procedures;
3. to limit, curtail or restrict a physician’s privileges where multiple complaints and/or allegations of medical negligence are lodged against a physician or to supervise that physician during surgery.
I have concluded that Garland Community Hospital breached the standard of care in the following areas:
1.Garland Community Hospital knew or should have known of multiple prior incidents involving poor surgical skills on the part of Dr. James H. Fowler and took no action to prevent or restrict Dr. Fowler’s surgical privileges;
2. Dr. Fowler, as an Ear, Nose and Throat specialist, is not board certified in plastic surgery and should not have been permitted to perform plastic surgery. There was a failure of credentialing on the part of Garland Community Hospital for permitting Dr. Fowler to perform plastic surgery.
3. To the extent that the nurses and surgical staff participated and acquiesced in the performance of plastic surgery by Dr. Fowler, Garland Community Hospital incurred liability for same.

The trial court granted the hospital’s motion to dismiss, pursuant to section 13.01 of the MLIIA, on the ground Rose had not made a good faith effort to comply with the MLIIA’s requirement that she timely file an expert report. Rose, 87 S.W.3d at 189. Rose appeals from that dismissal.

Standard of Review and Applicable Law

The issue for the trial court was whether Rose’s expert report represents a good-faith effort to comply with the statutory definition of an expert report. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex.2002) (citing Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(i); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001)). In its order of dismissal, the trial court found that “[n]either the April 10 nor the July 10, 2001 report states the causal relationship, if any, between the alleged failure of [the hospital] in connection with its credentialing activities and the injury, harm or damages claimed.” The trial court also found, even considering both the April 10 and July 10, 2001 affidavits together, the affidavits do not satisfy the requirements of article 4590i.

We review a trial court’s order dismissing a claim for failure to comply with section 13.01(d)’s expert-report requirements under an abuse of discretion standard. Id. (citing Palacios, 46 S.W.3d at 878). And we review a trial court’s decision about whether a report constitutes a good-faith effort to comply with the MLIIA under an abuse of discretion standard. See id. (citing Palacios, 46 S.W.3d at 878). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for that of the trial court. See id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989)).

A negligent credentialing claim involves a specialized standard of care. Rose, 156 S.W.3d at 546 (citing Mills v. Angel, 995 S.W.2d 262, 275 (Tex.App.-Texarkana 1999, no pet.)). Therefore, expert testimony is required to establish liability because procedures ordinarily used by a hospital to evaluate staff privileges are not within the realm of a juror’s ordinary experience. See Mills, 995 S.W.2d at 275. Medical experts are not necessarily credentialing experts. In fact, a credentialing expert need not be a physician but may be a witness who is familiar with the standard of care for credentialing because of training and experience. See id. (citing Lopez v. Cent. Plains Reg’l Hosp., 859 S.W.2d 600, 603-04 (Tex.App.-Amarillo 1993, no writ), disapproved on other grounds by St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 n. 1 (Tex.1997)).

The relevant statute defines an expert report as “a written report by an expert that provides a fair summary of the expert’s opinions ... regarding applicable standards of care, the manner in which the care rendered ... failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Palacios, 46 S.W.3d at 877 (quoting Tex. Civ. Stat. AnN. art. 4590i, § 13.01(r)(6)). Because the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document. See id. at 878. A trial court should look no further than the report in conducting a section 13.01(i) inquiry. Id.

A report need not marshal all of the plaintiffs proof, but it must include the expert’s opinion on each of the elements identified in the statute. Id. at 878-79 (citing Hart v. Wright, 16 S.W.3d 872, 877 (Tex.App.-Fort Worth 2000, pet. denied)). To constitute a good-faith effort, a report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude the claims have merit. Wright, 19 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. The expert must explain the basis of his statements to link his conclusions to the facts. Wright, 19 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)).

Analysis

Nowhere in either affidavit is there a fair summary of the expert’s opinions regarding the causal relationship between the hospital’s failure to meet the specialized standard of care for credentialing and the injury, harm, or damages claimed. See Palacios, 46 S.W.3d at 877. In relevant part, the April 10, 2001 affidavit contains the following about causation:

The failure to utilize the appropriate procedures as outlined above constitutes negligence and gross negligence on the part of Dr. James H. Fowler and on the part of the facility where the treatment took place, Garland Community Hospital. Said failures were the proximate cause of Ms. Rose’s deformed abdomen, overly large breast augmentation, irregularities in her hips, thighs, arms, and shoulders, as well as the staph infection.

The causation referenced above refers to the causal link between the alleged negligent medical treatment and Rose’s injuries — it does not go to the causal link between the alleged negligent credentialing of Dr. Fowler by the hospital and Rose’s injuries. And the July 10, 2001 affidavit contains no language about such causation. Neither affidavit states there were multiple previous complaints or allegations by patients of medical negligence against Dr. Fowler, which, if they had been investigated, would have been found to be meritorious and would have led to restriction of Dr. Fowler’s privileges. Perhaps the complaints and allegations would have been unsustained as lacking merit. We may not infer causation. See Wright, 79 S.W.3d at 53 (stating that the report must include the required information within its four corners).

Because Rose’s expert report lacks information linking the “expert’s” conclusion of negligent credentialing to the hospital’s alleged breach or to Rose’s damages, the trial court could have reasonably determined the report was conclusory. See id. (citing Palacios, 46 S.W.3d at 880; Earle, 998 S.W.2d at 890). A conclusory report does not meet the MLIIA’s requirements because it does not satisfy the Pa-lacios test. Id. (citing Palacios, 46 S.W.3d at 879). When an expert report’s conclu-sory statements do not put the defendant or the trial court on notice of the eom-plained-of conduct, section 13.01(i) affords the trial court no discretion but to conclude the report does not represent a good-faith effort to provide a fair summary of the specialized credentialing standard of care, how it was breached, and how it caused plaintiffs injuries, as section 13.01(r)(6) requires. See Palacios, 46 S.W.3d at 880. Accordingly, we hold the trial court did not abuse its discretion in concluding Rose’s expert report did not represent a good-faith effort to meet the MLIIA’s requirements. See Wright, 79 S.W.3d at 53.

And, just as in Palacios, because the statutory 180-day time period had passed when the trial court here made that determination, section 13.01(e) required the court to dismiss with prejudice Rose’s claims against the hospital. See Palacios, 46 S.W.3d at 880 (citing Tex.Rev.Civ. Stat. ANN. art 4590i, § 13.01(e)). Consequently, the trial court did not abuse its discretion in dismissing Rose’s claims against the hospital. We resolve Rose’s issue against her.

We affirm the trial court’s order.

FITZGERALD, J.

dissenting.

Dissenting Opinion by Justice FITZGERALD.

On remand, the issue before us is whether Rose’s expert reports constituted a good faith effort to comply with the Medical Liability and Insurance Improvement Act (“MLIIA”). See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex.2004). The parties narrowed the issue by focusing our attention upon the part of the definition of expert report that requires the written report(s) to provide a fair summary of the expert’s opinions regarding “the causal relationship between [the failure to meet the applicable standards of care] and the injury” (hereafter the “causal relationship element”). See Tex.Rev. Civ. Stat. Ann. art. 4590i, § lS-Olfr)©.

I part company with the majority because of the approach used to analyze the issue. The majority searches the expert reports to determine if they state the hospital’s credentialing process caused Rose’s injuries. The majority finds no such language. The majority acknowledges that the expert reports do contain language referring to the causal link between the medical treatment and Rose’s injuries.

The supreme court, on the other hand, dictates we recognize the inherently inseparable nature of the credentialing process and medical treatment. We, therefore, must review the expert reports to determine if they state that the hospital’s credentialing process, in conjunction with the medical treatment given Rose, caused Rose’s injuries. The specific issue, then, is whether the expert reports sufficiently state the causal relationship between (1) the hospital’s alleged negligent credentialing of Dr. Fowler and Dr. Fowler’s alleged negligent treatment of Rose, and (2) Rose’s injuries. They do.

Rose stressed that the hospital’s credentialing process was “inseparable” from the medical services provided. The supreme court emphasized that a hospital’s credentialing process is “an inseparable part of the medical services” a patient receives, that a hospital’s primary function is to provide a place in which doctors can provide health care services, and that the quality of the hospital’s medical staff is “intimately connected with patient care.” In short, “a hospital’s credentialing of doctors is necessary to that core function and is, therefore, an inseparable part of the health care rendered to patients.” Rose, 156 S.W.3d at 545.

The supreme court observed in Rose that our prior analysis of the hospital’s credentialing function was unrealistic and flawed. Our analysis on remand should, therefore, be very mindful of the supreme court’s compelling evaluation of the credentialing function of a hospital. The hospital’s credentialing decision enables the only doctor to access the operating room and medically treat the patient. It is patently obvious that negligent credentialing, an “enabling” act, without more, cannot and will not, per se, cause any injury to any patient. A negligent credentialing claim is illusory absent negligent medical treatment. Under these circumstances, the majority’s analysis of the causal relationship element — limited strictly to the negligent credentialing claim — is unrealistic and inconsistent with Rose.

The supreme court honed in on this essential point in more eloquent terms when it wrote:

When a plaintiffs credentialing complaint centers on the quality of the doctor’s treatment, as it does here, the hospital’s alleged acts or omissions in credentialing are inextricably intertwined with the patient’s medical treatment and the hospital’s provision of health care. Although neither the Hospital as an entity nor the credentialing board actually performed the surgeries on Rose, a doctor lacking credentials could not have performed surgery in that hospital. Likewise, Rose’s negligent credentialing claim derives from Dr. Fowler’s alleged negligent treatment. Indeed, without negligent treatment, a negligent credentialing claim could not exist.

Id. at 546.

Thus, the supreme court recognized the intertwined relationship of these claims by saying the credentialing claim against the hospital “derives from” the malpractice claim, and the two are “inseparable.” Id. When the two claims — negligent credentialing and negligent medical treatment— are considered together in this case, those segments of the expert reports referenced in detail by the majority sufficiently state the causal relationship element. This approach effectuates the core analysis of Rose.

The report qualifies as a good faith effort to provide a fair summary of the expert’s opinions. See art. 4590i, § 13.01(Z), (r)(6). The report meets both requirements of the Palacios test: it describes the elements of the intertwined offenses with sufficient specificity to inform the hospital of the conduct Rose has called into question, and it provides a basis for the trial court to conclude the claims have merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876-77 (Tex.2001). The trial court’s order dismissing Rose’s credentialing claims under the MLIIA should be reversed. Accordingly, I respectfully dissent from the majority’s opinion.

      . Rose v. Garland Cmty. Hosp., 87 S.W.3d 188 (Tex.App.-Dallas 2002), rev’d, 156 S.W.3d 541 (Tex.2004).

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87. While this case was on appeal, the Legislature enacted House Bill 4 ("H.B.4”), which repealed article 4590i and governs all health care liability claims filed on or after September 1, 2003. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 542 n. 2 (Tex.2004) (citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 884 (codified at Tex. Civ. Prac & Rem.Code Ann. §§ 74.001-.507 (Vernon 2005))). However, former article 4590i (designated herein as MLIIA) governs this case. Rose, 156 S.W.3d at 542 n. 2. Therefore, for purposes of simplicity, any citation to the former statute will be to Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01.

      . Technically, here, of course, there are "eight corners,” inasmuch as we have two separate affidavits, which, read together, constitute Rose’s expert report.

      . The hospital argued that “any act of negligence that does nothing more than put a person in a particular place at a particular time is too remote to constitute legal causation.” The hospital thus recognized the significance of the credentialing process when it conceded that this act gave Dr. Fowler the opportunity to be in the operating room to operate upon Rose. The hospital, however, minimized the conduct by arguing it was “too remote.” The hospital primarily relied upon Gonzalez v. El Paso Hosp. Dist., 68 S.W.3d 712 (Tex.App.-El Paso 2001, no pet.), which sets forth the applicable rules. The facts, however, involve health care providers who allegedly failed to respond to certain warning signs that occurred prior to the birth of a baby who died shortly after birth. The case does not address negligent credentialing and, therefore, is of marginal value. Rose countered that the reports adequately addressed causation as "the surgery could not have been botched if [Dr.] Fowler had not been credentialed by the Hospital.”

      . The majority quotes six paragraphs of the second expert report pertaining to the hospital’s alleged negligent credentialing and a single paragraph of the first report pertaining to Dr. Fowler’s alleged negligent medical treatment. I adopt these quoted segments to avoid needless repetition. The majority agrees the single paragraph relating to Dr. Fowler's alleged negligent medical treatment and Rose’s injuries does set forth the causal relationship element, but only between Dr. Fowler's medical treatment and Rose’s injuries. The majority stresses that neither report sets out the causal relationship element between the Hospital’s alleged negligent credentialing and Rose's injuries and, therefore, the expert reports do not constitute a good faith effort to comply with the MLIIA.

      .The relevant part of the report states:
      The failure to utilize the appropriate procedures as outlined above constitutes negligence and gross negligence on the part of Dr. James H. Fowler and on the part of the facility where the treatment took place, Garland Community Hospital. Said failures were the proximate cause of Ms. Rose’s deformed abdomen, overly large breast augmentation, irregularities in her hips, thighs, arms, and shoulders, as well as the staph infection.

      . In Palacios, the supreme court concluded the expert report failed because it did not adequately describe the relevant standard of care. As a result, neither the trial court nor the defendant could determine from the report what the expert believed the defendant was required to do differently. 46 S.W.3d at 880 ("Neither the trial court nor American Transitional would be able to determine from this conclusory statement if [the expert] believes that the standard of care required American Transitional to have monitored Pa-lacios more closely, restrained him more securely, or done something else entirely.”). The majority has not identified any similar difficulty in this case on the issue of causation.