text:
    Mario Rashad SWAIN, Appellant, v. The STATE of Texas.
    No. AP-74854.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 2, 2005.
    Rehearing Denied Jan. 25, 2006.

      Patrice Savage, Carthage, for Appellant.
    William M. Jennings, Criminal District Atty., Lance Larison, Carl Dorrough, Asst. Criminal District Attys., Longview, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion of

the Court,

in which KELLER, P.J., and PRICE, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in November 2003 of capital murder. Tex. Penal Code § 19.03(a). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced appellant to death. Art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises nineteen points of error, many of which are challenges to the admission of his oral and written statements as well as other evidence which he claims are the fruits of an illegal arrest. A brief summary of the facts surrounding his arrest and the taking of his statements will be helpful to address these points.of error. We affirm.

STATEMENT OF FACTS

Lola Nixon, the victim, lived in a house on Iris Circle in Longview, Texas. Nixon made plans to have dinner with friends on the evening of December 27, 2002, but never arrived at the restaurant. Neighbor Ashley Dulweber noticed a truck parked outside a vacant house on their street at around 9:00 p.m. that evening and reported it to police. A police officer who was dispatched to Iris Circle noted the license plate number of the truck and left about forty minutes later after seeing no unusual activity.

Nixon’s Mends contacted the police when they were unable to locate her on December 28. When the police arrived at Nixon’s house, Nixon was gone and there was evidence of forced entry and blood throughout the house. The police checked the license plate number of the truck that had been parked on Iris Circle the previous night. They contacted the registered owner, who told them that his grandson, appellant, had possession of the truck. Appellant was not home when the police first attempted to contact him at his residence, but he called Detective Terry Davis about thirty minutes later. Davis told appellant that he wanted to talk to him, and appellant gave him the address of the residential treatment home where he was working as an after-hours house sitter.

Davis and Detective Jim Nelson went to appellant’s place of employment that evening and asked him why his truck had been on the victim’s street the night before. He first stated that he parked the truck on Iris Circle while he went riding around with a friend. Davis responded that he did not believe him, and then appellant changed his story. He stated that he and a man named Casey Porter broke into a house on that street, that Porter beat the female homeowner who arrived home in the middle of the burglary, and that they placed her in the trunk of her black BMW, drove her to a remote location in southern Gregg County near the airport, and left her there alive. He then signed a consent form authorizing a search of his truck and agreed to show the detectives where he and Porter left the victim. They got into Davis’ car, where Davis read appellant his Miranda warnings. Appellant then directed the detectives to an area off Highway 349 near the airport. Nixon was not there, but they found blood on the grass and a black trash bag and a piece of a tire jack on the ground.

Davis took appellant to the Longview Police Department, where he again read appellant his Miranda warnings and took his first written statement shortly after midnight. Appellant stated that Porter beat a woman when they were burglarizing her home and that they left her at a secluded area “near Jerry Lucy Road and Farm-to-Market 349.” Davis obtained a warrant to arrest appellant for burglary of a habitation at around 3:00 or 4:00 a.m. Police also arrested and questioned Porter, but released him when they verified his alibi.

At 6:30 a.m. on December 29, Davis read appellant his warnings and took his second written statement, in which he said that Brian Mason Woods beat a woman while they were burglarizing her home, and that “she was alive when [they] left her off Highway 349.” The police then contacted Woods and excluded him as a suspect after confirming his alibi. Woods testified that appellant came to his house on the morning of December 28, told him that he had robbed a woman, and gave him some jewelry that he took during the robbery. Appellant also used credit cards that he took during the robbery to withdraw cash and fill Woods’ car with gas.

Appellant was charged with burglary of a habitation and was taken before a magistrate for his statutory warnings at 10:30 a.m., at which time he requested the appointment of counsel. He was then taken to the Gregg County District Attorney’s Office, where he was questioned by Detective Monty Gage and Mike Augustihe, an investigator with the District Attorney’s Office. He left the office with Gage and Augustine and directed them to Nixon’s body, which was located in an abandoned vehicle within a mile of where appellant first led the police. Nixon had been beaten over the head and stabbed in the chest. The medical examiner testified that “[t]he cause of death was homicidal violence, including sharp force injuries, blunt force injuries, and probable strangulation.”

Appellant was taken back to the Long-view Police Department, where Davis again read him his rights and took his third written statement at 1:00 p.m. In this statement, he admitted that he alone burglarized the victim’s home, hit her in the head with a tire tool, attempted to clean her up in the bathroom, and placed her in the trunk of her black BMW. He drove her to a secluded area and placed her in an abandoned car, believing that she was still alive when he left. He then returned to the victim’s house, attempted to clean up the scene, and left on foot. He later disposed of the tire tool in a dumpster at a CiCi’s Pizza restaurant, used the victim’s credit cards for gas and money, and gave Woods some jewelry. Police found the tire tool in a dumpster located across the parking lot from CiCi’s Pizza. Police also searched appellant’s truck and found black jeans, tennis shoes, and batting gloves stained with Nixon’s blood, as well as keys to Nixon’s car and her garage door opener.

INDICTMENT

In point of error nineteen, appellant challenges the indictment, which alleged in pertinent part that appellant “intentionally cause[d] the death of an individual, namely, Lola Nixon, by cutting or stabbing her with a knife, or by striking her with a tire tool ...” Appellant argues that the indictment was defective because it alleged the manner and means in the disjunctive. This claim is forfeited on appeal because appellant failed to object to the indictment on this basis prior to trial. Art. 1.14(b). Point of error nineteen is overruled.

VOIR DIRE

In point of error seventeen, appellant argues that the trial court abused its discretion when it refused to allow him to question veniremembers on the law of parole. The trial court denied appellant’s request to ask the following questions of each veniremember:

1. Would the minimum length of time a Defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues?
2. On which special issue would this be important?
3. How would this 40-year minimum sentence be important to you in answering the special issues?
4. Would you be more likely, or less likely, generally, to view a Defendant as a continuing threat to society if you knew he would not be paroled for a minimum of 40 years[?]

The trial court did not abuse its discretion by refusing to allow appellant to ask veniremembers these proposed questions. In Sells v. State, 121 S.W.3d 748, 756 (Tex.Crim.App.), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157 L.Ed.2d 378 (2003), we held that these questions are improper because they “implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions.” Point of error seventeen is overruled.

ADMISSION OF WRITTEN AND ORAL STATEMENTS

Prior to trial, appellant filed a “Motion for Hearing on Voluntariness of Any Admission or Confession Whether Written or Oral” and a “Motion to Suppress Evi-denee” requesting the suppression of all written and oral statements he made to law enforcement officers at the time of or subsequent to his arrest. The State called Detectives Davis and Gage to testify at the pretrial hearing on these motions. At the conclusion of their testimony, appellant objected and the trial court ruled as follows:

[DEFENSE COUNSEL]: Your Hon- or, we’d argue that it be suppressed, that it does not comply with Article 38.22.
THE COURT: How?
[DEFENSE COUNSEL]: Well, I’m getting there, Your Honor. That pursuant to Article 38.23, that anything that doesn’t comply with the previous article is not admissible. He’s, one, shown no authority to make an arrest. He was arrested without a warrant. . I don’t see anywhere in the Code where just because somebody tells you they did something, that you can arrest them without a warrant. He indicates he was — he says detained, but he says he had him in the car, and he was not free to go, and he couldn’t have gone if he had tried to go. He was not a felon with any .evidence that he was about to escape. That ;vrould be pursuant to Article 14.03. He was not taken before a magistrate without unnecessary delay under Article 14.06.
THE COURT: I’m going to find that the taking of the statements comply with all applicable requirements of the law. And I’m going to overrule the motion to suppress the statements. And they will be .admitted in evidence on proper predicate at the trial on the merits ...

In his first four points of error, appellant contends that his oral statement to Gage and Augustine and his third written statement were obtained in violation of his right to counsel. In points one and two, he argues that the police violated his right to counsel under the Fifth and Sixth Amendments because they continued to question him after he appeared before the magistrate and requested the appointment of counsel. In points three and four, he argues that the taking of these statements after he requested the appointment of counsel “violated [his] Texas constitutional guarantee that he shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, and thus deprived him of life, liberty, property, privileges or immunities, without due course of law.” He also asserts in points three and four that these statements were inadmissible under Article 38.23 because they were obtained in violation of his right to counsel.

In his written “Motion to Suppress Evidence,” appellant generally argued “[t]hat any statements made by Defendant were obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex. Const. art. I, §§ 10 and 19.” He also generally argued in his motion to suppress that his statements were inadmissible under Article 38.23. These arguments were global in nature and contained little more than citations to constitutional and statutory provisions. At the hearing on the motion to suppress, appellant failed to complain about being questioned after asserting his right to counsel, and instead simply objected that his statements were inadmissible because the police illegally arrested him and failed to comply with the requirements of Articles 38.22, 14.03, and 14.06. Appellant’s global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal. TEX. R. APP. P. 33.1. Points of error one, two, three, and four are overruled.

In points of error seven, eight, eleven, and twelve, appellant argues that his oral statements to Davis and Nelson and his first and second written statements were inadmissible fruits of an illegal arrest. He asserts that the admission of these statements violated the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, §§ 9, 10, and 19 of the Texas Constitution, and Article 38.23. We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). We review the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported in the record. Id. We will sustain the trial judge’s decision if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

Appellant complains that he was illegally arrested without a warrant or probable cause. In his brief, he points to the testimony of Detective Nelson and argues that he was “under arrest” at the time he was handcuffed. Nelson testified at trial that appellant “appeared to be quite nervous” when he and Detective Davis questioned him at the residential treatment home where he worked. He testified that at some point while they “were in the garage talking,” he handcuffed appellant and stated that “[they] were going to detain him,” because appellant was “moving around quite a bit” and he did not know “if he was just nervous or he was going to attempt to flee.” Detective Davis, on the other hand, consistently testified that appellant was not placed in handcuffs, and that appellant became “detained” at the point when he got into Davis’ police car and received his Miranda warnings.

There is no bright-line test providing that mere handcuffing is the equivalent of an arrest. Balentine, 71 S.W.3d at 771. The relevant inquiry is whether a reasonable person would have believed that he was not free to leave under the circumstances surrounding the incident. Anderson v. State, 932 S.W.2d 502, 505 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997). In the instant case, appellant called Davis and gave him his workplace address. Davis arrived in his unmarked car and parked on the street in front of the residential treatment home. Davis testified that his “main focus and train of thought at that point in time was [appellant’s] truck and why it was on Iris Circle.” Davis testified that appellant was not in custody at the time he admitted his involvement in the burglary, but he was “not free to leave” at the point when he got into Davis’ car.

Even if we were to assume that appellant was arrested at the residential treatment home where he worked, the evidence viewed in the light most favorable to the trial court’s ruling supports a finding that the arrest did not take place until after he admitted his involvement in the burglary. Thus, appellant’s admission that he was involved in the burglary and any prior statements he made to Davis and Nelson were not fruits of the arrest.

Warrantless arrests in Texas are authorized only in limited circumstances and are governed primarily by Chapter 14 of the Code of Criminal Procedure. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). Article 14.03(a)(1) authorizes the warrantless arrest of a person found in a suspicious place and under circumstances which reasonably show that an offense has been or is about to be committed. Any “place” may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police. Gallups v. State, 151 S.W.3d 196, 202 (Tex.Crim.App.2004), citing Dyar v. State, 125 S.W.3d 460, 468-71 (Tex.Crim.App.2003).

In this case, the circumstances reasonably showed that an offense had been committed. Nixon had been reported missing and there was evidence of forced entry and a bloody struggle in her home. Appellant was the driver of a truck parked on Nixon’s street the night she disappeared. Appellant admitted that he and Porter broke into a house and that Porter beat the female homeowner. Exigent circumstances arose when appellant stated that he and Porter left the beaten victim alive at a remote location. Davis testified that his “biggest concern at that point in time was to go find Lola Nixon.” Davis further testified: “Obviously, based on that [statement], at that point in time, me not knowing whether or not I had a dead woman or not, I couldn’t tell that from the crime scene, it was imperative that we find where this woman was possibly for her life.” Nelson testified that he thought appellant might attempt to flee. Given appellant’s nervous behavior and his admission that he had been involved in a crime, it was reasonable to believe that appellant would not remain at the residential treatment home if the officers left to obtain a warrant.

If appellant was arrested at the residential treatment home, then his warrantless arrest was authorized under Article 14.03(a)(1). Any oral or written statements appellant made thereafter were not fruits of an illegal arrest. Points of error seven, eight, eleven, and twelve are overruled.

ADMISSION OF EXHIBITS

In points of error five and six, appellant complains that the trial court erroneously admitted State’s Exhibits 14, 34 through 48, 79, 90 through 123, and “the numerous photographs taken at the crime scene.” He asserts that these exhibits should have been suppressed under the fruit of the poisonous tree doctrine and Article 38.23 because they were recovered based on statements obtained in violation of his right to counsel.

In his pretrial motion to suppress evidence, appellant generally requested suppression of “[a]ll tangible evidence obtained by the State of Texas, or its agents, as a result of Defendant’s arrest.” Appellant does not complain on appeal that these exhibits were fruits of an illegal arrest. Instead, he argues that the exhibits were fruits of statements taken in violation of his right to counsel. Appellant’s trial objection does not comport with the issue raised on appeal; thus, he has failed to preserve his complaint for our review. TEX. R. APP. P. 33.1. Points of error five and six are overruled.

In points of error nine, ten, thirteen, fourteen, fifteen, and sixteen, appellant argues that multiple State’s exhibits and “the testimony placing appellant in possession of Nixon’s credit cards” were inadmissible fruits of the illegal arrest. He specifically complains about State’s Exhibits 24 through 26, which include the bloody grass, tire jack, and trash bag police found when appellant first showed them where he and Porter allegedly left the victim, and State’s Exhibits 27 through 30 and 32, which include the various items police found in appellant’s truck after he gave written consent to search the vehicle. Appellant argues that the admission of this evidence violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, §§ 9, 10, and 19 of the Texas Constitution, and Article 38.23.

When the State offered Exhibits 24, 25, and 26 into evidence during trial, appellant affirmatively stated that he had no objections. The affirmative acceptance of this previously challenged evidence waived any error in its admission. Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). Further, as we established in previous points of error, appellant was not subjected to an illegal arrest. Thus, the trial court did not abuse its discretion in admitting the remainder of the evidence at issue. Points of error nine, ten, thirteen, fourteen, fifteen, and sixteen are overruled.

FUTURE DANGEROUSNESS

In his eighteenth point of error, appellant claims that the evidence is legally insufficient to support the jury’s affirmative answer to the “future dangerousness” special issue because he had no prior criminal convictions and was a “model prisoner” while incarcerated awaiting trial. We review the evidence in the light most favorable to the jury’s verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071, § 2(b)(1); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The State presented evidence at punishment that appellant had attacked several other women in the years before he committed the instant offense. Betty McDonald Clark testified that a man hid in the back seat of her car and attacked her from behind with a stun gun in August of 1999. When she escaped and ran inside a convenience store for help, the man stayed in her car for about five minutes, then exited the car and walked away. Police later found that the dome light inside Clark’s car had been removed. A police officer testified that appellant’s fingerprints matched the fingerprints on the dome light cover and door of Clark’s car.

Judith Harper testified that a man hid in the back seat of her car and attacked her from behind with a stun gun after she left a grocery store in October of 1999. Store employee Michael Maiden opened the passenger door, at which point Harper ran inside the store to call police. The man exited the vehicle, asked Maiden “what [his] problem was,” and walked away. Harper testified that she later noticed that the dome light inside her car had been removed. Maiden identified appellant as the man involved in the incident.

Appellant’s friend Crystal Hargett testified that she was riding with appellant once in 2000 when he asked her to knock on a woman’s door and tell her that her car had broken down and that she needed to use her phone. When she asked him why, he stated that he needed to know if the woman was home or if she had any children, so he could go into her house when no one was there. Hargett pretended to go to the woman’s door, then came back and told appellant she did not have a phone. Hargett testified that she was with appellant another time when he spotted a woman who left her car running at a gas pump. Appellant told Hargett to take the car and to knock the woman out if she came back to the pump, but Hargett refused his request.

In January 2001, Ashley Russell and Olivia Torres discovered that they were both dating appellant and decided to confront him by arriving together to pick him up from work. Appellant got into the car with them and drove off at a high rate of speed. He remained silent and kept driving when Torres asked him to let her out of the car, so she jumped out and began running down the road. Appellant got out of the car, chased her, shoved her, knocked her down, and repeatedly kicked and hit her while she was on the ground. When Torres got up and ran toward a nearby house for help, appellant ran back to his car and drove away.

Russell continued to date appellant and lived with him from February to November of 2001. She testified that appellant kept items in his car such as a wrench and a brown glass bottle containing a substance that he said would “put people to sleep.” Appellant spoke to Russell about “knocking older women out at car washes and taking their money,” and following women home and watching them to determine the times they left and came home from work. Russell also testified that appellant kept a spiral notebook in which he recorded descriptions of women, automobiles, and license plate numbers.

Teresa McMene testified that she was hit in the head from behind as she was leaving the salon where she worked in October of 2002. She fell to the ground and saw a man standing over her, so she began kicking and screaming. The man yanked on her purse and broke its strap, then fled on foot. Police found a beer bottle and a wrench at the scene. In November of 2002, McMene discovered that her phone and cosmetology license had been taken from the salon. The investigating police officer testified that someone had tried to pry open a window and had jimmied the lock on the back door. Kristie Anderson, who was living with appellant at the time, testified that appellant brought home a phone that was similar to the one stolen from McMene.

Nicole Anderson testified that appellant attacked her in December of 2002. About a month prior to the attack, she had seen appellant in front of her apartment building and had asked to borrow his phone. Then, on December 5, 2002, she was alone in her apartment with her newborn baby when she woke up at 3:00 or 4:00 a.m. and saw appellant standing in her room. As she held her baby and tried to turn on the light, appellant jumped on her, choked her, and demanded her money and credit cards. He threatened to kill her and held a knife to her at one point. Appellant stayed in her apartment for several hours and wore black gloves the entire time. He left through her bedroom window at 8:00 or 9:00 a.m., but returned with a brown glass bottle and said that he would “put [her] to sleep and make [her] forget everything that happened.” He poured the substance on a cloth and held it to her face, causing her to pass out. When she awoke around 10:00 a.m. and tried to leave her apartment with her baby, appellant was standing outside her front door. He asked her where she was going and if she told anyone what had happened. She said she had not told anyone about the incident and that she was going to visit a friend down the street. Appellant responded that “[she] could go, and he wouldn’t hold [her],” and then left.

Kristie Anderson lived with appellant from February 2002 until the time of his arrest. She testified that on December 27, 2002, she found a piece of paper in their apartment with the name “Lola Nixon,” the phrase “Sitel girl” in parentheses, an address, and a license plate number written on it. She had found other pieces of paper before that contained names, addresses, phone numbers, license plate numbers, and descriptions of vehicles. She testified that appellant also kept a bottle in their apartment which contained a substance that “you could knock somebody out with.” She further testified that appellant told her he would “take [her] down with [him]” and that he would have her children taken away if she testified against him at trial.

Both the facts of the instant offense and the other evidence showing appellant’s escalating pattern of violence support a finding of future dangerousness. Sonnier v. State, 913 S.W.2d 511, 516-17 (Tex.Crim.App.1995); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). The evidence, viewed in the light most favorable to the verdict, was sufficient to support the jury’s affirmative answer to the future dangerousness special issue. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Id. Point of error eighteen is overruled.

We affirm the judgment of the trial court.

WOMACK and JOHNSON, JJ., concurred.

      . Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

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

      . Appellant referred to Woods as "Mason” in his statement.

      . At the pretrial hearing on the motion to suppress, Gage testified that appellant told him and Augustine that he acted alone in the commission of the crime and agreed to direct them to the location where he left the victim. At trial, Gage and Augustine testified only that appellant directed them to the location where he left the victim. Neither of them testified at trial regarding appellant's oral admission that he acted alone in the commission of the offense.

      . Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001); Barajas v. State, 93 S.W.3d 36, 39 (Tex.Crim.App.2002).

      . At trial, appellant failed to object to the admission of his oral statement to Gage and Augustine and simply renewed his pretrial objection with regard to his third written statement.

      . The trial court’s "Findings of Fact and Conclusions of Law on Defendant's Motions” explicitly refer only to the voluntariness of appellant's written statements and consent to search the truck.

      . The officer’s testimony is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place. Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.), cert. denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997).

      . Davis took appellant’s second written statement at 6:30 a.m., after he had obtained a warrant to arrest appellant for burglary of a habitation.

      . When the State moved to introduce Exhibit 14 into evidence at trial, defense counsel stated, "Pretrial objections.” Each time the State moved to introduce the remaining exhibits into evidence, defense counsel stated, “No objection.”
      Even if preserved for review, appellant’s "fruit of the poisonous tree” position apparently was rejected by the Supreme Court in United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion).

      .Appellant also complains of the admission of State's Exhibit 33, but the State did not offer this exhibit into evidence at trial.

      . The evidence showed that appellant and Nixon had both worked at Sitel.


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Justice.

license: Public Domain

text:
    In re DILLARD DEPARTMENT STORES, INC. and Grizelda Reeder.
    No. 08-04-00259-CV.
    Court of Appeals of Texas, El Paso.
    March 3, 2005.
    Rehearing Overruled April 20, 2005.

      Mike Milligan, El Paso, for real party in interest.
    Robert A. Valadez, Shelton & Valadez, Nissa M. Sanders, Grofts <& ' Callaway, P.C., San Antonio, for relators.
    Gonzalo Garcia, El Paso, respondent pro se.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

In this original proceeding, Relators Dillard Department Stores, Inc. and Grizelda Reeder (collectively “Dillard’s”) seek mandamus relief from an order denying their motion to compel arbitration of a defamation claim by former employee Andrea Martinez. Because Ms. Martinez’s defamation claim did not fall within the scope of the arbitration agreement, the trial court did not abuse its discretion in refusing to compel arbitration. We therefore deny the requested writ of mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

Andrea Martinez began her employment with Dillard’s in 1983. In November 2002, Ms. Martinez was terminated from her employment with the company. In November 2003, Ms. Martinez filed suit against Dillard’s. In her original petition, she alleged that Grizelda Reeder, Dillard’s district manager, told the Cielo Vista store manager that she had evidence that Ms. Martinez had been stealing merchandise through fraudulent use of gift cards. Ms. Martinez stated that she and the store manager were terminated based upon two other allegedly false accusations: (1) that she had violated Section 61.016 of the Texas Labor Code by paying her daughter for her services with gift cards; and (2) that she had violated a corporate policy or instruction by allowing a gift card to be credited to an employee’s account. She also claimed that immediately after her termination, a rumor began among current and former employees of Dillard’s that she had actually been terminated for theft, notwithstanding her innocence of that original charge. Ms. Martinez asserted a cause of action for defamation against Dillard’s, Ms. Reeder, and two unnamed defendants.

Dillard’s generally denied Ms. Martinez’s claims and filed a motion to compel arbitration, stating that Ms. Martinez had signed a form, “AGREEMENT TO ARBITRATE CERTAIN CLAIMS,” on August 25, 2000 and that her defamation claim was expressly covered in the Rules of Arbitration. Attached to the motion were Ms. Martinez’s signed acknowledgment of receipt of the Agreement to Arbitrate and the Rules of Arbitration and a copy of the Rules of Arbitration, effective “9/17/02,” purportedly governing in this case. In her response, Ms. Martinez denied that she agreed to arbitrate her claims as alleged in the Motion and denied that defamation claims were specifically included in any arbitration agreement she voluntarily or knowingly signed. She also denied that the agreement to arbitrate was supported by valid consideration and affirmatively asserted that Dillard’s promise to arbitrate any disputes with her was illusory because it had the power to modify and amend the agreement without notice to her.

On April 28, 2004, the trial court conducted a hearing on Dillard’s motion to compel. At the hearing, Ms. Martinez’s counsel stipulated that she had entered into an agreement to arbitrate in 2000, but it was not the one initially submitted to the court, that is, the “new” Rules of Arbitration dated September 17, 2002. On the day of the hearing, Dillard’s filed a supplemental pleading in which it asserted for the first time that it was entitled to arbitration under the agreement in effect in 2000. However, at the hearing, Dillard’s introduced into evidence an affidavit from Nanette Savage, the administrative assistance to Dillard’s general counsel and records custodian, in which Ms. Savage attested that Exhibit “B,” the 2002 Rules of Arbitration, were the arbitration rules that outlined “the arbitration process applicable to all employees of Dillards, Inc. and its affiliates, subsidiaries and limited liability partnerships in effect on the date of Ms. Martinez’ termination.” Ms. Martinez’s counsel argued that Dillard’s had judicially admitted, by its prior pleadings in which it had relied on the 2002 Rules, that it has a right to modify its arbitration agreement with Ms. Martinez, therefore the arbitration promise itself was illusory. Specifically, Ms. Martinez’s counsel argued that the 2002 Rules of Arbitration, with its many obvious changes, showed that Dillard’s retained the power to change the arbitration agreement unilaterally, arbitrarily without notice or agreement, which makes consideration for the original agreement to arbitrate illusory. In response, Dillard’s argued that it was entitled to arbitration because Ms. Martinez admitted that she agreed to arbitration under the 2000 Rules of Arbitration, nothing in the document stated Dillard’s could unilaterally amend the rules, and the factual allegations in her defamation suit fell within the scope of the 2000 Rules of Arbitration.

At the hearing, Dillard’s called Cielo Vista Store Manager Paul Clauser to testify about the company’s Rules of Arbitration. Mr. Clauser testified that in 2000, Dillard’s implemented an arbitration policy for its associates. Mr. Clauser agreed that the 2002 Rules of Arbitration were not the arbitration rules Ms. Martinez agreed to; rather she had agreed to the 2000 Rules of Arbitration. Dillard’s argued that Mr. Clauser’s testimony showed that the 2002 Rules applied to employees who signed the agreement to arbitrate after those rules were amended, not to Ms. Martinez.

After the hearing, the trial court denied Dillard’s Motion to Compel Arbitration and Supplemental Motion to Compel Arbitration. Dillard’s now brings this original proceeding in mandamus.

DISCUSSION

Standard, of Review

A writ of mandamus will issue if the trial court has clearly abused its discretion and there is no other adequate remedy of law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig. proceeding). With respect to resolution of factual issues or matters within the trial court’s discretion, we may not substitute our judgment for that of the trial court. Id. at 839-40. The relator must show that the trial court could reasonably have reached only one decision. Id. at 840. We cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to the trial court’s decision of legal issues, our review is much less deferential. Walker, 827 S.W.2d at 840. A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

Mandamus will not issue where there is a clear and adequate remedy at law, such as a normal appeal. Walker, 827 S.W.2d at 840. When the trial court erroneously denies a motion to arbitrate under the Federal Arbitration Act, mandamus is the appropriate remedy. In re Bruce Terminix Co., 988 S.W.2d 702, 703-04 (Tex.1998)(orig. proeeedingXThere is no adequate remedy by appeal for denial of the right to arbitrate, because the very purpose of arbitration is to avoid the time and expense of a trial and appeal); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992)(orig. proceeding). Here, Dillard’s introduced evidence that Dillard’s is a full line retail department store headquartered in Little Rock, Arkansas. The company maintains operations throughout Texas and in twenty-eight other states. In the course of its business operations, it conducts business activities across state lines and is involved in numerous transactions involving interstate commerce. An employment relationship involving commerce, which encompasses contracts relating to interstate commerce, is a sufficient transaction to fall within the Federal Arbitration Act. In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 877-78 (Tex.App.-El Paso 1999, orig. proceeding). It is undisputed that the FAA applies to agreement to arbitrate at issue.

Agreement to Arbitrate

A party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement. See Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996)(orig. proceeding). There is a strong presumption in favor of arbitration once the party seeking to compel arbitration proves that a valid arbitration agreement exists. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896, 898-99 (Tex.1995)(orig. proceeding). The trial court’s determination of the arbitration agreement’s validity is a legal question subject to de novo review. Webster, 128 S.W.3d at 227.

Dillard’s argues that the parties’ agreement to arbitrate was valid and supported by consideration. The 2000 Rules of Arbitration state that: “The Company and the Associate agree that the procedures provided in these Rules will be the sole method used to resolve any covered dispute arising between them.” The Rules also state that “[i]n all cases, the decision of the arbitrator is final and binding....” Although Dillard’s attached the 2002 Rules of Arbitration as the governing arbitration agreement between the parties in its initial pleading, it later filed additional pleadings seeking to compel arbitration under the 2000 Rules of Arbitration. At the hearing, Dillard’s counsel agreed that the 2002 Rules did not apply to Ms. Martinez.

Ms. Martinez does not dispute that she agreed to be subject to the Rules of Arbitration that were in effect in August 25, 2000. Rather, she argues that the consideration element for the 2000 arbitration agreement was illusory, which renders that agreement unenforceable. Ms. Martinez acknowledges in her brief that there is no language in the 2000 Rules of Arbitration that expressly states that Dillard’s retained a right to modify or rescind the arbitration agreement. Instead, she contends that “Dillard’s has indisputably behaved as if it had that power by creating new rules, much more favorable to itself than the old, and requesting that the Court compel arbitration pursuant to the new rules as modified.” Ms. Martinez argues that despite the absence of an express reservation right in the Rules, Dillard’s in fact retained the power of modification or rescission without any notice to affected employees. In so arguing, Ms. Martinez also asserts that Dillard’s judicially admitted that it retained the right to modify the rules by attaching the 2002 Rules of Arbitration to its motion to compel and arguing in its initial pleadings that it was entitled to proceed under those rules.

If an employer retains the unilateral right to modify an arbitration plan, the consideration for the arbitration agreement is illusory. Webster, 128 S.W.3d at 230 n. 2; but see In re Halliburton Co., 80 S.W.3d 566, 569-70 (Tex.2002)(arbitration agreement containing employer’s right to modify or terminate the arbitration program was supported by sufficient consideration where express contract provisions provided for employee notification of changes and prospective application of any amendments). We apply standard contract principles to determine whether a valid arbitration agreement exists. In re Bunzl USA, Inc., 155 S.W.3d 202, 208-09 (Tex.App.-El Paso 2004, orig. proceeding), citing Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th Cir.2003); see also Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983)(primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument). Here, there is neither an express nor implicit provision in the arbitration agreement indicating that Dillard’s retained any unilateral right to modify the parties’ agreement. It is clear that Dillard’s did, in fact, modify its arbitration agreement since the parties presented two different versions of the Rules of Arbitration. Mr. Clauser’s testimony indicates that Dillard’s provided no notice of the modified plan to its existing employees, including Ms. Martinez. Mr. Clauser also offered somewhat vague testimony as to whether the modified plan would apply to Dillard’s existing employees. However, Dillard’s represented to the trial court that it sought to compel arbitration under the Rules of Arbitration that Ms. Martinez had agreed to in August 2000, not the 2002 Rules of Arbitration it originally had pled was the governing agreement.

At the hearing, Ms. Martinez’s counsel argued that by its pleadings, Dillard’s had judicially admitted that it has the right to modify or amend its arbitration agreement with Ms. Martinez, without notice or consent. A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue and bars the admitting party from disputing it. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.). As long as the statement stands unretracted, it must be taken as true; it is binding on the declarant and he cannot introduce evidence to contradict it. Id. The elements required for a judicial admission are: (1) a statement made during the course of a judicial proceeding; (2) that is contrary to an essential fact or defense asserted by the person making the admission; (3) that is deliberate, clear, and unequivocal; (4) that, if given conclusive effect, would be consistent with public policy; and (5) that is not destructive of the opposing party’s theory of recovery. Id. at 641-42. Counsel’s statements on behalf of a client may serve as judicial admissions. Id. at 641. However, statements made by a party or his counsel in the course of judicial proceedings which are not based on personal knowledge or are made by mistake or based upon a mistaken belief of the facts are not considered judicial admissions. DeWoody v. Rippley, 951 S.W.2d 935, 946 (Tex.App.-Fort Worth 1997, writ dism’d by agr.).

We agree with Dillard’s that its initial reference to the 2002 Rules in its motion to compel pleading does not constitute a judicial admission that Dillard’s reserved the right to amend the rules or that the 2002 Rules of Arbitration applied to Ms. Martinez. In its initial pleading, Dillard’s did not make a deliberate, clear, and unequivocal statement that it reserved the right to modify or otherwise amend the parties’ arbitration agreement of 2000. Further, Dillard’s later filed a supplemental motion that asserted its right to arbitration under the 2000 agreement and during the hearing on the matter Dillard’s represented to the court that it now sought arbitration under the 2000 Rules of Arbitration. We conclude that Dillard’s established that the parties’ entered into a valid written agreement to arbitrate certain claims under the 2000 Rules of Arbitration.

Scope of the Arbitration Agreement

To determine whether a claim falls within the scope of an arbitration agreement, we focus on the factual allegations of the complaint, rather than the legal causes of action asserted. Prudential Secs. Inc., 909 S.W.2d at 900. If the facts alleged “touch matters,” have a “significant relationship” to, are “inextricably enmeshed” with, or are “factually intertwined” with the contract that is subject to the arbitration agreement, the claim will be arbitrable. Pennzoil Co. v. Arnold Oil Co., Inc., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding). However, if the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract, the claim is not subject to arbitration. Id. Under the Federal Arbitration Act, any doubts as to whether a claim falls within the scope of the agreement must be resolved in favor of arbitration. Prudential Secs. Inc., 909 S.W.2d at 899. “[A] court should not deny arbitration ‘unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.’ ” Prudential Secs., Inc., 909 S.W.2d at 899, quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir.1990).

Here, the 2000 Rules of Arbitration provided that Arbitration applies to the following claims over the reasons leading to separation and, in addition, once a loss of employment occurs, and only in that circumstance, it also applies to the following claims, timely made, which could have arisen out of the associate’s employment:

Violations of any other federal, state, county, municipal or other governmental, constitution, statute, ordinance, regulation, public policy or common law, affecting economic terms of employment.
Personal injuries arising from a termination, except those covered by workers’ compensation.

Dillard’s argues that Ms. Martinez’s defamation claim falls within the scope of arbitrable claims, specifically for personal injury claims arising from a termination and for violations of common law affecting the economic terms of employment. With respect to the nature of Ms. Martinez’s claim, Dillard’s asserts that the tort of defamation falls within the scope of arbi-trable claims because Ms. Martinez alleged she suffered actual damages for “[s]hame and humiliation, emotional distress, and other psychological damages,” “[ijnjury to her reputation,” and “[l]oss of earnings and earning capacity....” However, merely pointing to the relief sought does not resolve the matter of whether the parties intended for defamation claims to be covered under the terms “[p]ersonal injuries arising from a termination.... ” Following oral argument and at the Court’s direction, the parties submitted letter briefs on relevant Texas case law on defamation as a form of personal injury. In so doing, Dillard’s has directed our attention to several cases, which support classification of a defamation claim as a personal injury. See Brewster et al. v. Baker et al., 139 S.W.2d 643, 645 (Tex.Civ.App.-Beaumont 1940, no writ)(“Damage to character as the result of slander or libel is a personal injury.”); International & G.N. Ry. Co. v. Edmundson, 185 S.W. 402, 405 (Tex.Civ.App.-San Antonio 1916), rev’d on other grounds by 222 S.W. 181 (Tex.Com.App. May 26, 1920)(“Injury to character or good name is a personal injury.”); Houston Printing Co. v. Dement et al., 18 Tex.Civ.App. 30, 33-34, 44 S.W. 558, 560 (Tex.Civ.App. Jan. 27, 1898, writ refused)(“[I]nju-ries to the reputation and to the health have ever been classed and treated by law writers as personal injuries.... Injuries which affect the personal security are injuries against the life, the limb, the body, the health, or the reputation of the individual.”); see also McNeill v. Tarumianz, 138 F.Supp. 713, 716 (D.C.Del.1956)(The generally accepted concept of a “personal injury” includes injuries to the reputation.). We agree that prior courts have broadly construed the term “personal injury” in various statutes to include defamation, and thus have not limited the term to bodily injury as it is commonly understood in modern parlance. However, in examining the term “[pjersonal injuries arising from a termination, except those covered by workers’ compensation,” in the context of the whole instrument, it is clear that the parties’ intent was to cover bodily injuries other than those included in workers’ compensation coverage.

In addition, we find that the defamation claim does not fall within the scope of arbitrable claims as a violation of common law “affecting economic terms of employment,” as nothing asserted in the defamation claim touched on issues generally regarded as economic terms of employment, such as wage levels, overtime pay, and so forth. Since Ms. Martinez’s defamation claim did not fall within the scope of the 2000 Rules of Arbitration, we cannot conclude that the trial court abused its discretion by denying the motion to compel arbitration.

For the reasons stated herein, the petition for writ of mandamus is denied.

LARSEN, J., Not Participating.

      . The 2002 Rules of Arbitration expressly include: "Any common law claim, including but not limited to defamation, tortious interference, intentional infliction of emotional distress.” While the 2000 Rules of Arbitration include: "Personal injuries arising from a termination, except those covered by workers’ compensation.”

      . The following exchange is the extent of Mr. Clauser's testimony concerning the applicability of the modified plan to existing employees:
      Q. Now, when Dillard’s made those changes in the 9/17/02 agreement, what announcement did they make of what they were doing, or what notice did they give, or what agreement did they obtain?
      A. As far as I know, there were none. They were just going forward.

      . Even if Dillard’s had in fact modified the 2000 arbitration agreement it had entered with Ms. Martinez, without notice or her consent, and had attempted to enforce the modified agreement, there is nothing in the agreement that provides for unilateral modification. Under such circumstances, Dillard’s would have been doing what it had no contractual right to do, and thus be in breach of the original agreement.


author: Justice BRIDGES.

text:
    Jo Ann E. COMBS, As Trustee of the Irene Ashworth Vencill Trust, Appellant, v. Wayne GENT, Appellee.
    No. 05-03-01781-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 2, 2005.
    Rehearing Overruled Feb. 11, 2006.

      Richard B. Schiro, Greg E. Butts, Law Offices of Richard B. Schiro, Dallas, for appellant.
    ' Bruce Monning, Monning & Wynne, L.L.P., Dallas, for appellee.
    Before Justices MOSELEY, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice BRIDGES.

Jo Ann E. Combs, as trustee of the Irene Ashworth Vencill trust, appeals the jury’s verdict in favor of Wayne Gent on Combs’ breach of fiduciary duty and legal malpractice claims. Following the jury’s verdict, the trial court entered a take-nothing judgment in favor of Gent. In four issues, Combs argues the jury’s verdict that Gent did not breach his fiduciary duty or commit legal malpractice is so against the great weight and preponderance of the evidence that it is clearly unjust and the trial court erred in allowing Gent to introduce evidence allegedly showing Combs filed false tax returns and in awarding attorney’s fees to Gent. We affirm the trial court’s judgment.

In December 1997, Gent received a call from Jennie Gilliam regarding the hiring of an attorney to take care of the business affairs of Irene Vencill. Jennie was Ven-cill’s caretaker. Gent met with Vencill, who indicated she was tired of dealing with her nieces and nephews regarding money matters, and she wanted a lawyer to take care of her finances. Vencill also advised Gent that he would have to deal with her nieces and nephews, and they “would probably end up suing” Gent.

Jennie testified that Doris Weaver had previously helped Vencill with her financial affairs and taxes, but Vencill believed Weaver had taken $15,000 from her. According to Jennie, “someone” called Adult Protective Services, and a representative came and talked with Vencill “for about three hours.” The representative told Jennie she needed to hire a lawyer for Vencill. Jennie called Elizabeth Ditto, Vencill’s niece, because Jennie was “not family.” Jennie and Ditto were present at Gent’s first meeting with Vencill. Gent was the fifth lawyer Jennie contacted regarding helping Vencill. Vencill told Gent she needed someone to “take over all of her affairs” and discussed Gent taking over her “whole estate” and her taxes. During the discussion with Vencill, Gent asked if Vencill had any questions, and Vencill said she “perfectly understood.” Gent discussed forming a trust and whether Vencill wanted to pay him a five percent fee or an hourly rate, and Vencill said she wanted to pay the five percent fee. When Gent agreed to take over Vencill’s affairs, Vencill told Gent, “I worry about it because, when I die, it’s going to be one bloodshed war.” After Gent took over Vencill’s affairs, Vencill seemed to gain peace of mind and became “very content.” Gent came by two or three times a week and called “several times.”

Gent formed a trust naming himself as trustee and his daughter and two sons as co-trustees in the event Gent was unable to be the trustee. Gent had asked Vencill about who would take care of her .business if something happened to him, and Vencill said she did not care, “as long as it’s a lawyer.” Gent told Vencill his daughter was already a lawyer, and one of his sons was in law school and the other was going to go to law school. Vencill reiterated she did not care who took over, “as long as they’re a lawyer” and “not a member of the family.” At the time Gent formed the trust, he determined Vencill’s total assets were approximately $737,000. The trust provided that Vencill was the sole beneficiary during her lifetime, and upon her death the trust assets were to be distributed to eighteen beneficiaries, most of whom were Vencill’s nieces and nephews.

In January 1998, Gent took an initial $16,000 fee based on the amount of property transferred into the trust. Vencill received a bill in the mail, and Weaver met with Vencill and talked about firing Gent and discussed the fee. Weaver tried to get Vencill “to tape on a tape machine about firing [Gent] because he was stealing from her.” At a subsequent meeting with Gent, Vencill asked if it was true he had taken the fee. Gent confirmed that he had taken the fee and explained how he determined the fee. Vencill agreed to the fee and did not raise the issue again. According to Jennie, Vencill was “fine, with it” after Gent explained the fee.

Gent opened the trust account and transferred various certificates of deposit and had Vencill deed all her real property into the trust. In February 1998, Gent wrote to PrimeVest Financial Services requesting that the PrimeVest fund be transferred to thé trust and out of Vencill’s individual name. In April, Gent wrote another letter requesting the transfer, because PrimeVest had taken no action. Pri-meVest sent Gent a letter requesting that Gent sign additional forms. Gent signed all the forms and mailed them back to PrimeVest. Gent received no other information from PrimeVest and assumed they had transferred the account into the trust as the other annuities had done.

On July 30, 1998, Gent sent Vencill a handwritten list of the assets he held as trustee, showing a total value of $797,122. That total assumed 156 acres in Kaufman County was worth $91,800, the value reflected on the tax rolls. In Gent’s August 1999 accounting, Gent noted the tax roll value was still approximately $91,000, but Gent noted a market value of $234,000.

Vencill had a Hartford Life annuity that had a seven-year term and paid 6.5 percent interest guaranteed for the seven years. If Vencill had surrendered the annuity early, she would have had to pay a seven percent surrender charge. In January 1999, the annuity matured, and Wade Emerson, the insurance agent who had arranged the annuity, suggested rolling the annuity into a new annuity. Emerson testified there were no tax consequences to rolling the annuity into a new one, and Gent signed over the $162,092 in annuity proceeds over to a new annuity with Jackson National Life. The Jackson annuity was to pay $6329 yearly for five years and then return the $162,092 at the end of that term. Emerson testified the purpose of the annuity was to put VencilPs money in a position to preserve the principal for her care and pay an annual rate. Vencill died February 26, 1999, but the Jackson annuity paid the first year’s annuity of $6349 on March 8, 1999. Upon learning of Vencill’s death, Jackson sent Gent $153,076, the amount due under the annuity contract plus interest. Emerson testified that Gent was looking out for Vencill’s best interests in arranging the Jackson annuity.

Six days after Vencill’s death, several of Vencill’s beneficiaries sent Gent a letter requesting a copy of Vencill’s will and trust and a plan of action of the executor. A week later, Gent wrote to the beneficiaries informing them that Vencill’s property was to be liquidated and the proceeds divided between the eighteen beneficiaries. On March 23, 1999, Gent sent Donald Archer, whose address was listed on the initial letter, a copy of the trust. By June 1999, some of the beneficiaries had hired a lawyer, Robert Somers, and Gent had provided Somers a list of assets in the trust and a general status report. On June 23, 1999, Gent met with Archer and Somers. Following the meeting, Gent wrote again to Somers and proposed that, when the monies came in from the annuities, he would make a distribution to the beneficiaries, less $100,000, and turn over to Som-ers the remainder plus all CDs as they matured. Gent also proposed that he provide an accounting for his expenditures since the inception of the trust.

At the same time, Somers was preparing a lawsuit against Gent on behalf of Archer and some of the other beneficiaries. The original petition was filed July 8,1999. On August 17, 1999, Gent provided Somers an accounting and informed Somers that he needed to disburse funds to the beneficiaries as soon as possible. Gent also stated he was not opposed to being replaced as trustee, but he expressed concern about the additional costs associated with a new trustee. On August 21,1999, Gent distributed $18,750 to each of the beneficiaries. Pursuant to a settlement between the parties, the trial court entered an order on October 27,1999, accepting Gent’s resignation and appointing Combs substitute trustee.

On October 29, 2001, Combs, in her capacity as trustee, sued Gent in Kaufman County. Combs asserted claims of breach of fiduciary duty, negligence, and legal malpractice. Combs subsequently filed a motion to transfer venue, and the case was transferred to Rockwall County. The parties stipulated the summaries of each party’s attorney’s fees were accurate and waived further proof of attorney’s fees. The parties agreed that “all matters, including questions of fact and law and judicial discretion on the matter of attorney’s fees, [would] be decided by the court without the aid of a jury.” A jury found that Gent had not breached his fiduciary duty and had not committed legal malpractice. Gent filed a motion for attorney’s fees and judgment, and the trial court entered a judgment that Combs take nothing and ordered Combs to pay Gent’s attorney’s fees of $154,071, to be reduced by certain amounts depending upon whether Combs appealed. This appeal followed.

In her first issue, Combs argues the jury’s verdict finding Gent not guilty of breach of fiduciary duty must be reversed. In her second issue, Combs attacks the jury’s finding that Gent did not commit legal malpractice. In addressing Combs’ arguments, we must consider and weigh all of the evidence in the case and set aside the verdict only if we conclude “that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). Fiduciary duties arise as a matter of law in certain formal relationships, including the attorney-client relationship. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998). Attorneys owe their clients a fiduciary duty of “most abundant good faith,” requiring absolute perfect candor, openness, and honesty, and the absence of any concealment or deception. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 196 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Combs argues Gent charged excessive fees, did not fully disclose his fees, and either “ignored or botched” a “lengthy list of administrative items.” Combs complains that Gent failed to transfer into the trust the PrimeVest account; improperly “borrowed” money from the estate of Mae Reed, Vencill’s sister; and improperly made loans to Jennie. However, the jury heard the evidence concerning these complaints, and Combs does not show how the trust was harmed' by these actions. Combs further complains Gent named his children as successor trustees; concealed the fees he was collecting for himself; made a “remarkably ill-advised” annuity investment when he converted the Hartford Life annuity into a new annuity with Jackson; kept insufficient records; failed to attend to Vencill’s health care; and failed to file tax returns. Again, the jury heard the evidence regarding these complaints.

After reviewing the record, we cannot conclude that the jury’s failure to find a breach of fiduciary duty was so against the great weight and preponderance of the evidence as to be manifestly unjust. See Jackson, 116 S.W.3d at 761. Gent charged a total of $61,820.28 for his services as trustee and lawyer for two years. From the outset, Vencill told Gent there would be “one bloodshed war” after her death, and four other lawyers declined to take the job before Gent accepted it. Gent and Vencill discussed his fee, and Vencill “perfectly understood” their arrangement. Vencill also consented to Gent’s children, one of whom was already a lawyer at the time, being named as successor trustees. The record shows Gent took repeated action to transfer the PrimeVest account into the trust, and when Combs discovered the failure to successfully transfer the account, she took no action to attempt to correct the situation. Gent’s transfer of money from the Reed estate and his loans to Jennie, along with payments of his fees, were documented and the loans were paid back. The annuity Gent arranged avoided tax consequences and provided for a shorter five-year term than the previous seven-year annuity, taking into consideration Vencill’s age and state of health. Gent turned over documents and records to Combs after she was appointed trustee, and Combs had six months to file the estate tax return. Finally, there was no evidence that Jennie did not take care of Vencill or that Gent failed to attend to Vencill’s health care. We overrule Combs’ first issue.

As to the jury’s finding that Gent did not commit legal malpractice, Combs focuses her argument on two loans to Jennie that called for a usurious interest rate. Gent concedes that the loans to Jennie were usurious but argues that does not mean the loans proximately caused damages to the trust. See Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.1995). In fact, the record shows the loans were extinguished when Jennie received her August 1999 distribution. As to the complaints raised in Combs’ first issue, which she argues also constituted legal malpractice, we have reviewed the record and, for the reasons previously discussed, we find no merit in Combs’ claims. We conclude the jury’s finding that Gent did not commit legal malpractice was not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Jackson, 116 S.W.3d at 761. We overrule Combs’ second issue.

In her third issue, Combs argues the trial court erred in allowing Gent to introduce evidence Combs filed tax returns on behalf of the trust showing deductions totaling $58,920 for Gent’s fees. Evi-dentiary rulings are committed to the trial court’s sound discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 85, 43 (Tex.1998). A trial court abuses its discretion when it rules “without regard for any guiding rules or principles.” Id. An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Id. Moreover, any error in admitting evidence is cured where the same evidence comes in elsewhere without objection. Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 124 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

At trial, Gent cross-examined Michael Bedford, an accountant Combs hired to work for the trust. Bedford testified the Internal Revenue Service only allows deductions of reasonable compensation. From Bedford’s testimony, Gent developed his position that Combs signed the tax return claiming $58,920 in deductions for Gent’s fees and, by signing, Combs effectively was stating that Gent’s fees were reasonable compensation. Combs objected to this line of questioning, but the trial court overruled the objection. Subsequently, during Combs’ direct testimony, her attorney questioned her regarding how she could take the deduction for Gent’s fees and, at the same time, file a lawsuit to get the fees back without running afoul of the IRS. Combs testified she considered that the IRS might make the argument that it was an unreasonable fee, but she took the deduction because it was actually paid to Gent, and it would have been negligent of her not to take the deduction in favor of the trust. Thus, Combs herself raised the issue of her signing tax returns taking a deduction for Gents fees, and the error, if any, in overruling her objection to this evidence was thereby cured. See Schwartz, 127 S.W.3d at 124. We overrule Combs’ third issue.

In her fourth issue, Combs argues the trial court erred in awarding attorney’s fees to Gent or, in the alternative, the award of attorney’s fees was excessive. Specifically, Combs argues Gent acted with bad faith and pursued his own self interest to the detriment of the trust and the trial court therefore should have denied any recovery of attorney’s fees. The Texas Trust Code provides that, in any proceeding under the code, the court may make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just. Tex. PROp.Code Ann. § 114.064(a) (Vernon 1995). The grant or denial of attorney’s fees under section 114.064 is within the sound discretion of the trial court. Lyco Acquisition 1984 v. First Nat. Bank, 860 S.W.2d 117, 121 (Tex.App.-Amarillo 1993, writ denied).

The jury determined Gent did not breach his fiduciary duty or commit legal malpractice. Further, the parties stipulated the summaries of each party’s attorney’s fees were accurate and waived further proof of attorney’s fees. The parties agreed that “all matters, including questions of fact and law and judicial discretion on the matter of attorney’s fees, [would] be decided by the court without the aid of a jury.” Gent’s proof reflected a total of $124,487.41 in attorney’s fees through September 1, 2003. Combs’ proof showed legal fees amounting to $195,268.27. Although Combs argues the amount of attorney’s fees should have been reduced because Gent resisted Combs’ motion to transfer venue and engaged in “unnecessary and losing discovery battles,” the record reflects that the amount of attorney’s fees was reduced to $124,821, plus appellate costs, down from $135,737. Under these circumstances, we cannot conclude the trial court abused its discretion in awarding $154,071 in attorney’s fees to Gent. We overrule Combs’ fourth issue.

We affirm the trial court’s judgment.

      . Gent's children were never paid and never served as trustees.

      . In August 1999, Gent sent PrimeVest another letter requesting liquidation of the account for distribution to the beneficiaries. In June 2000, after Combs had taken over as successor trustee, Combs learned through a phone call that PrimeVest had never transferred the account out of Vencill’s name individually. Combs took no further action, though Gent testified that he would have pursued transfer of the asset into the ongoing trust even though Vencill was dead at the time of the discovery of the mistake.

      . While we do not condone Gent's use of funds from the Reed estate, the jury had all of the evidence before them, and we cannot conclude the fact he paid in this manner fees to which he was entitled renders the jury’s verdict that he did not breach his fiduciary duty so against the great weight and preponder-anee- of the evidence as to be manifestly unjust. See Jackson, 116 S.W.3d at 761.

      . It cost Gent $135,737 to defend himself in this case up to September 12, 2003. Combs' legal fees in this case totaled $195,268.27.


text:
    Josefa GONZALEZ, Irene Gonzalez, Jose Gonzalez, and Gonzalez Family, L.P., Appellants, v. GREYHOUND LINES, INC., Craig R. Lentzsch, Jack W. Haugsland, Jeff W. Sanders, Frederick F. Richards, Mark E. Southerst, Floyd Holland, Richard J. Caley, Linda Chavez, Al A. Meitz, Frank L. Nageotte, Alfred E. Osborne, Jr., Stephen M. Peck, Thomas G. Plaskett, Ernest P. Werlin, Chris Enserberger, Directors, Luis Venegas, Mal Acosta, Tony Peralta, Norberto Hernandez, Nick Flori, Van Brown, Charles Brown, Alfonso Penedo, Indiv. and As President of Sistema Internacional De Transporte De Autobuses, Inc., and Sistema Internacional De Autobuses, Inc., Appellees.
    No. 08-04-00033-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2005.
    Rehearing Overruled Sept. 7, 2005.

      Jeffrey B. Pownell, Seherr, Legate & Ehrlich, PLLC, El Paso, for Appellants.
    James Albert Jennings, Dallas, for Ap-pellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

Appellants Josefa Gonzalez, Irene Gonzalez, Jose Gonzalez, and Appellant Gonzalez Family L.P. appeal the trial court’s order dismissing for lack of subject matter jurisdiction their suit against Appellees Greyhound Lines, Inc. (“GLI”), Sistema Internacional de Transporte de Autobuses, Inc. (“SITA”), and other named defendants. Appellants argue on appeal that the trial court erred in granting the defendants’ plea to the jurisdiction and dismissing the case. Because jurisdictional evidence showed that Appellants lack standing to sue, we conclude the trial court did not err in determining it lacked subject matter jurisdiction and therefore, we affirm the trial court’s order.

On July 21, 2003, Appellant Gonzalez Family L.P. and Appellants Josefa Gonzalez, Irene Gonzalez, Jose Gonzalez, as limited partners in Gonzalez Family, L.P., filed suit against GLI, SITA, and other named defendants, who included the directors of GLI, various GLI terminal managers, and the president of SITA, individually and as president of SITA. In their petition, the Appellants alleged that over the course of twenty years the Gonzalez family had built a prosperous and expanding interstate, bus service company, Gonzalez, Inc. d/b/a Golden State, which had yearly sales of approximately nine million dollars. According to the petition, Appellant Gonzalez Family, L.P. held the controlling stock interest in Golden State. In 1998, the president of GLI approached the Gonzalez family to purchase controlling stock in Golden State. SITA, GLI’s wholly owned non-carrier holding company, acquired the controlling stock interest in Golden State. Appellants alleged that soon thereafter the defendants began diverting Golden State customers in El Paso to GLI and GLI subsidiaries’ facilities. Appellants claimed that these actions “resulted in interference and depreciation of [their] real estate in El Paso, TX as well as in the depreciation of Golden State’s assets.” The Appellants alleged that similar acts occurred in other cities as well and they further complained that Gonzalez family members were wrongfully removed from their respective managerial positions. The Appellants further alleged that the defendants acquired Golden State’s customers and assets with the intent to eliminate and bankrupt the now-defunct Golden State. In their petition, the Appellants asserted the following causes of action inter alia against the defendants: civil conspiracy, conspiracy in restraint of trade, fraudulent transfer, breach of fiduciary duty, fraud, fraudulent inducement, statutory fraud, wrongful interference with prospective contractual or business relations, member oppression, and unjust enrichment.

On September 12, 2003, Appellees GLI and SITA separately filed pleadings containing a plea to the jurisdiction, subject to a suggestion of bankruptcy, plea in bar, plea in abatement, and subject to original answer, verified denials and pleas, and affirmative defenses. The Appellees who were represented by the same counsel argued inter alia that the trial court lacked subject matter jurisdiction because the alleged causes of action were owned by the debtor, Golden State Transportation, and therefore were a part of the bankruptcy estate which was under the continuing exclusive jurisdiction of the United States Bankruptcy Court in Arizona. As such, Appellees argued, Appellant’s claims as equity owners were barred by the bankruptcy automatic stay and the Appellants also lacked standing to sue on their own. Ap-pellees also argued that Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez lacked standing and legal authority to assert claims for and on behalf of Appellant Gonzalez Family, L.P. because they are limited partners in that limited partnership, which could only sue through its general partner, who was not identified as a plaintiff in the petition. Moreover, Ap-pellees asserted that regardless, “Gonzalez Family, L.P.” did not have standing to sue because the only limited partnership that arguably owned any interest in Golden State was a different entity — a limited partnership with a different name: “Francisco and Josefa Gonzalez Family Partnership, L.P.”

Appellees each attached the Stock Purchase Agreement as an exhibit to their pleas. Pursuant to this Agreement, entered on September 24, 1997 between SITA, Golden State, and Francisco and Josefa Gonzalez Family Partnership, L.P. and its partners, Francisco and Josefa Gonzalez Family Partnership, L.P. sold to SITA 41.2 percent of its common stock in Golden State for 4.1 million dollars. Under the Agreement SITA also acquired from Golden State an additional 4,800 shares of newly issued shares of common stock for 2 million dollars. Francisco Gonzalez, Trastee for the Francisco and Josefa Gonzalez Trust, executed the Agreement on behalf of the seller Francisco and Josefa Gonzalez Family Partnership, L.P.

In response to the plea to the jurisdiction, Appellants informed the tidal court that Appellees GLI and SITA had filed an adversary proceeding for injunctive relief in the pending Chapter 11 bankruptcy case for Gonzalez, Inc. d/b/a Golden State in the Arizona Bankruptcy Court, alleging that Appellants’ instant state court lawsuit asserted claims that were the property of the Golden State bankruptcy estate, and as such was litigation that violated the automatic stay under 11 U.S.C. § 362. Appellants argued that the trial court had jurisdiction of their asserted claims until the Bankruptcy Court determined whether to impose a stay upon them in the pending adversary proceeding. Appellants also argued that the lawsuit should be abated if the Bankruptcy Court determined that the stay was applicable.

On October 2, 2003, the trial court held its first hearing on the Appellees’ plea to the jurisdiction. At the hearing, Appellees contended that Gonzalez Family L.P. was not the same entity as Francisco and Josefa Gonzalez Family Partnership, L.P., that the correct partnership and its general partner were not named in the lawsuit, and that all the causes of action asserted belonged to Golden State or were derivative claims which only a shareholder could bring after fulfilling certain statutory requirements. After hearing counsels’ arguments, the trial court decided to continue the hearing until after the date of the injunction proceeding in the Bankruptcy Court.

On November 20, 2003, the trial court held a second hearing on the Appellees’ plea to the jurisdiction. At the hearing, the trial court was informed that the Bankruptcy Court in Arizona had enjoined the majority of the causes of action asserted in Appellants’ state court lawsuit with the exception of Appellants’ causes of action for fraud, fraudulent inducement, and statutory fraud, and the wrongful termination claim contained with their alleged member oppression claim. Appellees maintained their contention that the trial court lacked jurisdiction to hear even the remaining non-estate causes of actions because the Appellants were not the proper plaintiffs and therefore lacked standing to sue them. Appellees again argued that the purported limited partnership was not correctly named, was not the same limited partnership as that listed in the Stock Purchase Agreement, and that the Gonza-lezes listed as plaintiffs in the case did not have standing to sue in the capacities they alleged. In response, Appellants argued that they had individual standing to bring the suit because they had alleged a direct injury caused by the defendants’ wrongful conduct. Appellants also argued that the issue of their capacity to sue was not jurisdictional. After the hearing, the trial court granted Appellees’ plea to the jurisdiction and dismissed the case for want of jurisdiction.

In a single issue, Appellants argue that the trial court erred in granting Appellees’ plea to the jurisdiction because their non-estate causes of action were not barred by the Bankruptcy Court’s automatic stay and they had alleged facts that affirmatively demonstrated the trial court’s subject matter jurisdiction over the entire case. Appellants also assert that with respect to Appellant Gonzalez Faüiily, L.P., the alleged pleading defect in the plaintiff name and the absence of the general partner as a plaintiff involved the issue of the limited partnership’s capacity to sue, not the issue of its standing. In addition, Appellant argue that any alleged pleading defect could have been cured by amendment of the pleadings. ■

Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claim asserted has merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A party may challenge a court’s subject-matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999). Whether the trial court has subject matter jurisdiction is a question of law which we examine under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

The plaintiff has the burden to allege facts that affirmatively show the trial court’s jurisdiction to hear the case. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The purpose of the plea is not to force a plaintiff to preview his case on the merits, but rather to establish a reason why the merits of the plaintiffs claims should never be reached. Blue, 34 S.W.3d at 554. We construe the pleadings liberally in favor of jurisdiction and look to the pleader’s intent. See Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. A court deciding a plea to the jurisdiction, however, is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Blue, 34 S.W.3d at 555.

First, we turn to the question of whether the Appellants had standing to maintain their suit against the defendants. To determine whether Appellants affirmatively demonstrated the trial court’s jurisdiction to hear the case, we consider the facts alleged in their petition, and any evidence submitted to the trial court which is pertinent to the jurisdictional issue. See Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001).

Standing is a component of subject matter jurisdiction, which we consider under the same standard by which we review subject matter jurisdiction generally. Tex. Ass’n of Bus., 852 S.W.2d at 445-46. A party has standing if it has a justiciable interest in the suit or a personal stake in the controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996); Tex. Ass’n of Bus., 852 S.W.2d at 444. In contrast, a party has capacity when it has the legal authority to act, whether it has standing or not. See Nootsie, Ltd., 925 S.W.2d at 661. A challenge to who owns a claim raises the issue of capacity, not standing, and therefore does not implicate the trial court’s subject matter jurisdiction. See Nootsie, Ltd., 925 S.W.2d at 662; Pledger v. Schoellkopf, 762 S.W.2d 145, 145-46 (Tex.1988)(per curiam).

Appellees asserted in their plea to the jurisdiction that Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez, as limited partners in Appellant Gonzalez Family, L.P., lacked standing and capacity to assert its claims on behalf of that entity. Appellees also argued that Appellant Gonzalez Family, L.P. had no standing to sue because it was not the same limited partnership that had sold a controlling interest in Golden State pursuant to the Stock Purchase Agreement. As jurisdictional evidence, Appellant admitted the Stock Purchase Agreement, which showed only Francisco and Josefa Gonzalez Family Partnership, L.P. and Golden State as the sellers of stock in Golden State to SITA. The agreement also listed the following individuals as [limited] partners in Francisco and Josefa Gonzalez Family Partnership, L.P.: Antonio Gonzalez, Francisco Gonzalez, Josefa Gonzalez, Enrique Gonzalez, Jose Gonzalez, Ismael Gonzalez, and Irene Gonzalez.

In the original petition, Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez only identified themselves as “the limited partners” in Gonzalez Family, L.P., an entity which they alleged held the stock interest in Gonzalez Inc., d/b/a Golden State. The three remaining causes of action designated as non-estate causes of action, that is, not subject to the Bankruptcy Court automatic stay were: fraud, fraudulent inducement, statutory fraud, and the wrongful termination claim under the member oppression allegation. In their petition, Appellants alleged that the defendants had committed fraud and fraudulent inducement by making material representations without which Appellants would never have sold stock in Golden State to Greyhound and/or its subsidiaries. Alternatively, Appellants alleged that the defendants had committed statutory fraud as defined in TEX.BUS. & COM.CODE ANN. § 27.01. In their member oppression claim, Appellants alleged that the defendants had committed member oppression inter alia by wrongfully terminating Appellants from their management positions and by fraudulently mismanaging Golden State to their detriment.

Standing of Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez

On appeal, Appellants assert that Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez had standing to sue the defendants in their capacities as individual plaintiffs, and therefore, the trial court had subject matter jurisdiction over the case. However, it is evident from Appellants’ petition that Appellants Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez expressly sued in their capacities as limited partners in the named limited partnership, Gonzalez Family, L.P., not in their individual capacities, and thus, intended to bring a derivative action on behalf of the limited partnership. While we observe that Josefa Gonzalez, Irene Gonzalez, and Jose Gonzalez were named in the stock purchase agreement, their status in the underlying transaction was as limited partners, not as individual sellers. Thus, their standing to sue with respect to that stock transaction between Francisco and Josefa Gonzalez Family Partnership, L.P. and SITA exists by virtue of their status as limited partners in that entity, which was not named as a party-plaintiff in their lawsuit. Despite Appellants’ contention that the named individuals intended to plead personal actions against the defendants, their pleading clearly negates that purported intention.

Standing of Appellant Gonzalez Family, L.P.

We next consider whether Appellants’ pleading and the admitted jurisdictional evidence showed that Appellant Gonzalez Family, L.P. had standing to sue the defendants. Appellants argue that alleged pleading defects of incorrectly naming the limited partnership and failure to have the general partner bring the lawsuit, at most went to the question of capacity to sue, not standing. Further, Appellants assert that these alleged defects could have been cured by amendment of the pleadings to confer subject matter jurisdiction on the trial court. We disagree.

By verified denial, Appellees asserted a defect in the plaintiff-parties pursuant to TEX.R.CIV.P. 98(4). In their plea to the jurisdiction, Appellees contended that Appellant Gonzalez Family, L.P. had no standing to sue because it was not the same limited partnership listed as seller of the controlling interest in Golden State stock in the stock purchase agreement. We note that Appellants argued at the hearings that Appellant Gonzalez Family, L.P. was the correct plaintiff, however, there is nothing in the record that indicates it was the same limited partnership that was represented in the Stock Purchase Agreement. Rather, the jurisdictional evidence presented established that there were only two sellers of Golden State stock, Francisco and Josefa Gonzalez Family Partnership, L.P.

Under Texas law, there is a distinction drawn between misnomer and misidentification, with particular consequences for tolling of limitations. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990). Misnomer occurs where the plaintiff misnames either itself or the correct defendant, but the correct parties are involved. Id. Misidentification, on the other hand, occurs when two separate legal entities with similar names actually exist and the plaintiff sues the wrong one because he is mistaken about which entity is the correct defendant. Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex.1999); Enserch Corp., 794 S.W.2d at 4-5. While the alleged pleading defect may well be a case of misnomer, the jurisdictional evidence standing alone indicates that a separate legal entity other than “Gonzalez Family, L.P.” was the limited partnership involved in the stock transaction. As such, we conclude that Appellant Gonzalez Family, L.P. lacked standing to sue the defendants. Since the Appellants collectively lacked standing to sue the defendants in their lawsuit, their petition could not be amended to confer subject matter jurisdiction on the trial court. We overrule Appellant’s sole issue on appeal.

For the reasons stated above, we affirm the trial court’s order of dismissal.

      . Appellants brought suit against twenty-six defendants. At the time of the hearings on the plea to the jurisdiction, not all of the defendants had been served. Appellees are those defendants that were served with process and appeared in the trial court.

      . Appellees filed virtually identical pleadings. Their pleadings also contained a verified denial as to a defect in parties-Plaintiffs pursuant to TEX.R.CIV.P. 93(4).

      . Four additional named defendants, Tony Peralta, Van Brown, Craig Lentzsch, and Mark Southerst, appeared and were represented by the same counsel as Appellees at the November 20 hearing. As already noted, all the Appellees filed virtually identical pleas to the jurisdiction.

      . Section 27.01 of the Texas Business and Commerce Code establishes a statutory cause of action for fraud in transactions involving real estate or stock in a corporation or joint stock company. See TEX.BUS. & COM. CODE ANN. § 27.01(a)(Vernon 2002). The statute provides that a false representation of a past or existing material fact constitutes fraud when it is made to a person for the purpose of inducing that person to enter into a contract and it is relied upon by that person in entering into that contract. See id. In addition, a false promise to do an act constitutes fraud when the false promise is material, is made with the intention of not fulfilling it, made to a person for the purpose of inducing that person to enter into a contract, and relied on by that person in entering that contract. See id.

      . A member oppression claim may exist when: (1) a majority shareholder's conduct substantially defeats the minority's expectations that objectively viewed, were both reasonable under the circumstances and central to the minority shareholder’s decision to join the venture; or (2) burdensome, harsh, or wrongful conduct, a lack of probity and fair dealing in the company’s affairs to the prejudice of some members, or a visible departure from the standards of fair dealing, and a violation of fair pláy on which every shareholder who entrusts his money to a company is entitled to rely. Pinnacle Data Services, Inc. v. Gillen, 104 S.W.3d 188, 196 (Tex. App.—Texarkana 2003, no pet.); see also Davis v. Sheerin, 754 S.W.2d 375, 381-82 (Tex.App.—Houston [1st Dist.] 1988, writ denied); see also TEX.BUS.CORP.ACT ANN. art. 7.05 (Vernon 2003)(court may appoint a receiver for the assets and business of a corporation when the acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent).

      .A limited partner may bring a derivative action on behalf of a limited partnership. See TEX.REV.CIV.STAT.ANN. art. 6132a-l, § 10.01 (Vernon Supp.2004-05). However, the statute requires that the petition, set forth with particularity the effort made to secure initiation of the action by a general partner or the reason for not making the effort. See TEX.REV.CIV.STAT.ANN. art. 6132a-l, § 10.03.