source: Caselaw Access Project

author: Justice GARZA.

license: Public Domain

text:
    BORG-WARNER CORPORATION, Now Known as Burns International Services Corporation, Appellant, v. Arturo FLORES, Appellee.
    No. 13-03-058-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 16, 2004.
    Rehearing Overruled Feb. 3, 2005.

      Elizabeth L. Phifer, Dallas, for appellant.
    Scott W. Wert, Foster & Sear, Arlington, for appellee.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and GARZA.
   OPINION

Opinion by

Justice GARZA.

This is an asbestos case. Arturo Flores sued Borg-Warner for damages arising from his use of brake pads manufactured by Borg-Warner that contained asbestos. The jury found Borg-Warner Hable for negligence and strict liability. It also found that Borg-Warner acted with mahce and awarded $50,000 in punitive damages, in addition to $103,200 in compensatory damages. Borg-Warner now appeals the judgment by nine issues. For the reasons that follow, we affirm.

I. Legal Sufficiency of Negligence Claim

In its first issue, Borg-Warner argues that the evidence is legally insufficient to prove negligence.

A. Standard of Review

When reviewing a legal-sufficiency point, we consider only the evidence and inferences that tend to support a finding and disregard all evidence and inferences to the contrary. N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 908 (Tex.App.Corpus Christi 1999, pet. denied). If there is any evidence of probative force to support the finding (i.e., more than a mere scintüla), we will overrule the issue. Id.

B. Analysis

According to Borg-Warner, there is no evidence that asbestos fibers were released from its brake pads and, thus, no evidence that its brake pads injured Flores. A fundamental principle of products liability law is that a plaintiff must prove that the defendant supplied the product that caused his or her injury. Id. at 909. In the context of asbestos-related claims, if there is sufficient evidence that the defendant suppfied any of the asbestos to which the plaintiff was exposed, then the plaintiff has met the burden of proof. Id.

The foUowing evidence supports the jury’s finding that Borg-Warner’s brake pads injured Flores: (1) Flores was a mechanic from 1964 to 2001; (2) as a mechanic, Flores ground new brake pads prior to installation, a process necessary to minimize “brake squealing”; (3) the grinding process produced visible dust, ' which Flores inhaled; (4) from 1972 to 1975, Flores ground brake pads manufactured by Borg-Warner; (5) Borg-Warner’s brake pads contained between seven and twenty-eight percent asbestos by weight; (6) in 1998, Flores was diagnosed with asbestosis; (7) Dr. Castleman testified that brake mechanics can be exposed to asbestos by grinding brake pads, a process which produces “respirable asbestos fibers”; (8) Dr. Bukowski testified that “brake dust has been shown to ... have asbestos fibers”; and (9) Dr. Bukowski also testified that “brake dust can cause asbestosis.”

Borg-Warner maintains that the evidence is insufficient because the evidence does not prove that its brake pads actually produced “respirable asbestos fibers.” It compares the instant case to two decisions of this Court that involved asbestos claims. See id. at 911; Celotex Corp. v. Tate, 797 S.W.2d 197, 203 (Tex.App.-Corpus-Christi 1990, writ dism’d). We disagree that our prior precedent compels reversal of the judgment in the present case.

In Easter, the first case cited by Borg-Warner, this Court considered whether the evidence adduced at trial was legally and factually sufficient to prove causation. Easter, 988 S.W.2d at 908. The plaintiffs presented evidence that the defendant’s products contained asbestos. See id. at 909-10. . In addition, the plaintiffs offered evidence that the defendant’s products emitted dust containing respirable asbestos fibers, which one of the plaintiffs had inhaled. See id. at 911. On appeal, this Court held that the evidence was sufficient to prove the defendant’s products injured both plaintiffs. See id. at 911.

According to Borg-Warner, the precedent set by this Court in Easter requires that all asbestos plaintiffs prove the emission of respirable asbestos fibers in order to establish causation. We do not interpret Easter as imposing any such requirement. Easter relied heavily on “direct eyewitness,testimony that both ... [plaintiffs] worked in the presence of the asbestos-containing product or breathed dust from the product.” Id. at 910. According to the Court, such “evidence was legally and factually sufficient to demonstrate that ... [the plaintiffs] were exposed to dust from [the defendant’s] asbestos-containing products.” Id. Although the Easter opinion specifically mentioned respirable asbestos fibers, the Court did not suggest that the evidence would have been insufficient without such testimony. See id. at 911. To the contrary, the Court stated that “working] in the presence of the asbestos-containing product” was “direct evidence” of causation and sufficient to uphold the jury’s finding. Id. at 909.

In Tate, the second case cited by Borg-Warner, there was no evidence that respirable asbestos fibers were released from the defendant’s product. See Tate, 797 S.W.2d at 203. Rather, the evidence established that the plaintiff had been exposed to and inhaled raw asbestos, which caused him to develop mesothelioma. See id. On appeal, this Court held that the evidence was sufficient to prove causation. Id.

Borg-Warner relies on Tate to create a distinction between exposure to raw asbestos and exposure to a product containing asbestos. According to Borg-Warner, the plaintiff in this case was required to prove the emission of respirable asbestos fibers because he was only exposed to a product containing asbestos and not to raw asbestos. We find no support for this distinction in the case law cited by Borg-Warner.

Furthermore, even if we were to conclude that the emission of respirable asbestos fibers is necessary to prove causation, see In re ROC Pretrial, 131 S.W.3d 129, 136 (Tex.App.-San Antonio 2004, no pet.), the standard of review for legal sufficiency challenges would render Borg-Warner’s complaint moot. We consider only the evidence that supports the verdict, see Easter, 988 S.W.2d at 908, and the evidence is viewed in a light that tends to support the disputed fact. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). In this case, there is evidence that (1) the plaintiff inhaled dust created by a Borg-Warner product that contained asbestos, (2) when ground for fitting, brake pads containing asbestos can produce respirable asbestos fibers that can cause asbestosis, and (3) the plaintiff suffers from asbestosis. This is more than a scintilla of evidence on causation. Borg-Warner’s first issue is overruled.

II. Legal Sufficiency of Strict Liability Claim

In its second issue, Borg-Warner argues that the jury’s finding of strict liability is not supported by legally sufficient evidence. To recover compensatory damages, Flores was required to establish only one cause of action. We have already upheld the jury’s finding of negligence, and therefore, we need not decide whether the evidence was legally sufficient to establish strict liability. See Tex.R.App. P. 47.1 (requiring opinions of court to be “as brief as practicable” and decide only the “issue[s] raised and necessary to final disposition of the case”). Borg-Warner’s second issue is overruled.

III. Legal Sufficiency of Malice Finding

In its third issue, Borg-Warner argues that the evidence is legally insufficient to support the jury’s finding that it acted with malice.

Malice is defined as
(A) a specific intent by the defendant to cause substantial injury to the claimant; or
(B) an act or omission:
(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious, indifference to the rights, safety, or welfare of others.

Tex. Civ. PRAo. & Rem.Code ANN. § 41.001(7) (Vernon Supp.2003). In 1995, the legislature substituted malice for gross negligence as the prerequisite for punitive damages, but it also redefined malice, through the addition of subsection (B), to mirror the definition of gross negligence articulated by the Texas Supreme Court in Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 n. 2 (Tex.1998). Consequently, prior precedent regarding gross negligence is relevant to legal sufficiency of malice as redefined by section 41.001(7)(B). See Ellender, 968 S.W.2d at 921 n. 2.

Gross negligence includes two elements: (1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Id. at 921. Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Id. Under the first element, “extreme risk” is not a remote possibility of injury or even a high probability of minor harm; it is the likelihood of serious injury to the plaintiff. Id. Under the second element, actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Id. Circumstantial evidence is sufficient to prove either element of gross negligence. Id.

A. Malice-Objective Element

Borg-Warner argues that there was no evidence or legally insufficient evidence to show that use of its brake pads posed an extreme risk of harm. We disagree. Even according to Borg-Warner’s version of the record, medical and scientific literature dating as far back as 1898 published in the United States, Great Britain, and Germany documented the dangers of asbestos dust. According to Dr. Castle-man, between 1950 and 1968, hundreds of articles were published on the health hazards of asbestos. These articles emphasized the extraordinary dangers faced by employees, including brake mechanics, who worked with asbestos materials. According to Dr. Castleman, by. 1968, it was “definitely” confirmed that exposure to asbestos can cause asbestosis, as well as other diseases. This evidence is legally sufficient to establish the objective element of malice (i.e., likelihood of serious injury).

B. Malice-Subjective Element

Borg-Warner argues that even if the evidence is legally sufficient to prove the objective element of malice, there is no evidence that between 1972 and 1975 it had actual knowledge that use of its asbestos-containing products created an extreme risk of injury to automotive mechanics. In response, Flores argues that the dangers of asbestos have been common knowledge since at least the 1930s and that, as a manufacturer of asbestos products, Borg-Warner is assumed to have had such knowledge. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1089 (5th Cir.1973, writ denied) (“[T]he manufacturer is held to the knowledge and skill of an expert.”). We agree. As a manufacturer of asbestos products, Borg-Warner should be held to the knowledge and skill of an asbestos expert. See id.

In this case, the jury was presented with scientific and medical knowledge spanning over a century that documented the likelihood of serious injury to workers exposed to asbestos, especially asbestos dust. Nevertheless, Borg-Warner manufactured disk brake pads that had to be ground before use, a process which produced dust containing asbestos. No warning labels were placed on the product’s packaging, and as a result, users of the product, including Flores, were not cautioned to take precautionary measures to avoid exposure to the asbestos.

Even assuming arguendo that this evidence were insufficient, Borg-Warner’s failure to invest in research promoting health and safety would suffice to establish the subjective component of malice. See Louisiana-Pa. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex.1999) (“Corporate safety policies, or the lack of them, can serve as the basis for a gross negligence finding.”). Despite the widely-known danger of asbestos products, Borg-Warner “had a research facility for product development, testing, and research from 1956 to 1988 with a ten million dollar per year budget, and [yet] ... no percentage of gross sales were spent on research regarding asbestos and the health effects of asbestos.”

Given this evidence, we conclude that the jury’s finding of malice was supported by more than a scintilla of evidence. Borg-Warner’s third issue is overruled.

IV.Motion for Directed Verdict

In its fourth issue, Borg-Warner contends that the trial court erred by failing to grant its motion for directed verdict. A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). A directed verdict for a defendant may be proper in two situations. First, a court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery. Id. Second, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action. Id.

We have already concluded that there is more than a scintilla of evidence supporting the jury’s finding of negligence and malice. Borg-Warner was not entitled to a directed verdict. See id. Its fourth issue is overruled.

V.Motion for JNOV

In its fifth issue, Borg-Warner argues that the trial court erred in denying its motion for a judgment notwithstanding the verdict. A court may grant a motion for judgment notwithstanding the verdict if a directed verdict would have been proper. Tex.R. Civ. P. 301; Ft. Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). Because Borg-Warner was not entitled to a directed verdict, the trial court did not err in denying its motion for JNOV. See Tex.R. Civ. P. 301; Sbrusch, 818 S.W.2d at 394. Its fifth issue is overruled.

VI.Motion for New Trial

In its sixth issue, Borg-Warner argues that the trial court erred in denying its motion for new trial because there was no evidence or legally and factually insufficient evidence to support the jury’s findings regarding comparative responsibility and damages. A trial court’s denial of a motion for new trial is reviewed for abuse of discretion. See Pharo v. Chambers County, 922 S.W.2d 945, 947 (Tex.1996). As a preliminary matter, we note that Borg-Warner has failed to provide this Court with any statement of the law regarding factual sufficiency challenges and has thus failed to preserve any error regarding factual sufficiency. Tex. RApp. P. 38.1(h) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); In re A.J.G., 131 S.W.3d 687, 691 (Tex.App.-Corpus Christi 2004, pet. denied). We therefore decide this issue only as it relates to the legal sufficiency of the evidence.

A. Comparative Responsibility

Borg-Warner argues that the jury erred in assessing its responsibility at 37% because the evidence established that it was only between 4.5 and 6.25% responsible. Although mathematical calculations are provided in support of this contention, citations to the record and to relevant case law are entirely lacking in Borg-Warner’s brief. See Tex.R.App. P. 38.1(h). Even assuming arguendo that this issue has been preserved, Borg-Warner has given us no basis for concluding that the trial court abused its discretion in denying a new trial. See Pharo, 922 S.W.2d at 947.

B. Damages

Borg-Warner also argues that a new trial should have been granted because the damages awarded by the jury were excessive. As the Texas Supreme Court has explained, the standard of review for an excessive damages complaint is factual sufficiency of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). Borg-Warner has failed to provide a statement of the law regarding factual sufficiency and the law regarding excessive damages. It has preserved nothing for this Court to review. Tex.R.App. P. 38.1(h). Borg-Warner’s sixth issue is overruled.

VII. Admission of Evidence

In its seventh issue, Borg-Warner argues that the trial court erred by admitting certain evidence into the record, including Plaintiffs Exhibit 1 and certain testimony by Dr. Castleman.

A. Standard of Review

The admission or exclusion of evidence is a matter within the trial court’s sound discretion. Easter, 988 S.W.2d at 914. 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. To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court’s ruling was in error and that the error probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a); Easter, 988 S.W.2d at 914. When the issue is exclusion of evidence, the reviewing court must review the entire record to determine if error occurred. Easter, 988 S.W.2d at 914.

B. Plaintiffs Exhibit 1

Borg-Warner contends that Plaintiffs Exhibit 1, a book authored by Dr. Castleman, was hearsay and should not have been admitted into evidence. At trial, Flores offered chapter eight of Dr. Castleman’s book into evidence, and Borg-Warner objected on the grounds that the book was hearsay and that a proper foundation had not been established for its admission. On appeal, Borg-Warner maintains that the trial court erred by admitting the book into evidence for the following reasons: (1) the book amounts to hearsay, see Tex.R. Evid. 802; (2) it does not fall under the learned-treatise exception to the hearsay rule, see Tex.R. Evid. 803(18); and (3) even if it does fall under the exception, the trial court had no discretion to admit the book into evidence, as rule 803(18) only allows such works to be read into the record, not be received as exhibits. See id.

Although Borg-Warner has argued persuasively that the trial court erred in admitting Dr. Castleman’s book into evidence, it has failed to demonstrate that any such “error probably caused the rendition of an improper judgment.” Tex. R.App. P. 44.1(a). In fact, our independent review of the record shows the opposite. Dr. Castleman testified extensively regarding the contents of his book, in particular chapter eight, and Borg-Warner was given the opportunity to cross-examine him. Thus, even if chapter eight were improperly admitted into evidence, we would be unable to conclude that such an “error probably caused the rendition of an improper judgment.” Id.; see also Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508, 519 (Tex.App.Houston [14th Dist.] 1987, writ denied) (holding that even if trial court erred in admitting into evidence exhibits containing studies because they were hearsay, error was harmless because experts discussed studies in detail during their trial testimony).

C. Dr. Castleman’s Testimony

Next, Borg-Warner argues that the trial court erred by allowing Dr. Cas-tleman to give opinion testimony on the “absence and/or adequacy of warning labels on asbestos-containing products.” At trial, Borg-Warner’s counsel acknowledged to the trial court that Dr. Castleman

was designated to testify about the medical and scientific literature, the availability of materials as a substitute [for asbestos], exposure levels of asbestos, review of documents entered into evidence in this case[,] ... his conclusions regarding Defendant’s [sic] negligence, strict liability, ... [and whether] Defendants conspired to suppress information ....

Although counsel for Borg-Warner objected to Dr. Castleman’s testimony because “[h]e is not qualified by training or education to testify about warning labels,” counsel subsequently conceded that she “certainly” could not dispute “the rest of his expertise.” In doing so, she waived any error regarding Dr. Castleman’s expertise except as to warning labels. See Tex. R.App. P. 33.1(a).

As an asbestos expert, Dr. Castle-man was entitled to state his opinion on mixed questions of law and fact, including whether Borg-Warner was negligent, grossly negligent (i.e., acted with malice), or strictly liable. See Tex.R. Evid. 704; Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.1987) (“Fairness and efficiency dictate that an expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.”). Under Texas law, strict liability can be predicated on one of three different theories: (1) manufacturing defects; (2) design defects; and (3) marketing defects (i.e., inadequate warnings). Keene Corp. v. Gardner, 837 S.W.2d 224, 228 (Tex.App.-Dallas 1992, writ denied). Thus, Dr. Castleman was entitled to state his opinions regarding manufacturing, design, and marketing defects of Borg-Warner’s products, including the inadequacy of any warnings. See Tex.R. Evid. 704; Birchfield, 747 S.W.2d at 365; Gardner, 837 S.W.2d at 228.

In overruling this issue, we note that Borg-Warner never placed any warnings on its brake pads. Dr. Castleman’s testimony regarding the “absence and/or adequacy of warning labels on asbestos-containing products” was essentially that “no warning whatsoever” would not “be an adequate warning of the dangers and hazards associated with working with ... [Borg-Warner’s] product, [including] grinding and milling.” Given these considerations, even if an error had occurred, we would be unable to conclude that it “probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1(a); see also Schlafly v. Schlafly, 33 S.W.3d 863, 870 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (“To find reversible error, we must conclude that the whole case turns on the error.”). Borg-Warner’s seventh issue is overruled.

VIII. Exclusion of Settled Defendants from Jury Charge

In its eighth issue, Borg-Warner argues that the trial court erred by excluding from the jury questions on apportioned responsibility certain parties that had settled with Flores. The statute that controls this issue, section 33.003 of the Texas Civil Practice and Remedies Code, reads as follows:

(a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whéther by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who
has been joined under Section 33.004.

Tex. Crv PeaC. & Rem.Code Ann. § 33.003 (Vernon 1997). As the Houston court has explained, “[SJection 33.003 only requires submission of a question on the comparative responsibility of a settling defendant if there are pleadings alleging, and evidence supporting, liability on the part of the settling defendant.” Kroger Co. v. Betancourt, 996 S.W.2d 353, 358 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see also Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 154 (Tex.App.-Austin 1998, no pet.) (“The legislature apparently did not intend to require juries to assess responsibility when none was alleged or proven.”).

Borg-Warner’s brief does not identify specific evidence supporting the liability of the settling parties. See Tex. R.App. P. 38.1(h) (requiring “appropriate citations to authorities and to the record”). Thus, we cannot conclude that the trial court erred by excluding them from the jury charge. See Tex.R. Crv. P. 278 (“The court shall submit the questions, instructions, and definitions ..., which are raised by the written pleadings and the evidence”). Borg-Warner’s eighth issue is overruled.

IX. Motion to Compel Settlement Information

In its ninth issue, Borg-Warner contends that the trial court erred by denying its motion to compel settlement information for the purpose of obtaining a settlement credit. Before trial, Borg-Warner elected dollar-for-dollar settlement credit under chapter 33 of the remedies code. Tex. Civ. Prac. & Rem.Code AnN. § 33.014 (Vernon 1997). It therefore had the burden of proving its right to such a credit. See Ellender, 968 S.W.2d at 927. This burden includes proving the settlement credit amount, which can be accomplished by placing the settlement agreement or some other evidence of the settlement amount in the record. Id. Borg-Warner complains that it could not establish the amount of its settlement credit without evidence of the actual settlement agreements executed by Flores with other parties.

Counsel for Flores provided Borg-Warner with a letter dated May 31, 2002, stating that the total settlement amount received by Flores was $40,125. This letter was admitted into evidence. Subsequently, on August 7, 2002, counsel for Flores submitted a second letter into evidence that stated the aggregate settlement amount as $42,125. Borg-Warner argues that these letters are insufficient to establish the total amount of settlement credit to which it is entitled because the aggregate settlement amount cannot be verified without the actual settlement agreements. We disagree. Under Ellen-der, the settlement credit amount can be established by the actual “settlement agreement or some other evidence of the settlement amount.” Id. (emphasis added). There is no requirement that the actual settlement agreement be submitted into evidence in order to establish the settlement credit amount. See id.

The essence of Borg-Warner’s complaint is that it could not verify the total settlement amount obtained by Flores and that it was therefore entitled to post-verdict discovery. Counsel for Flores objected to Borg-Warner’s request to produce the actual settlement agreements because the agreements were confidential; however, counsel for Flores provided the trial court with a list of parties with whom Flores had settled and the respective settlement amounts. The trial court reviewed this information in camera, along with portions of the settlement agreements, and ultimately found that the settlement credit amount of $42,125 was accurate. The documents reviewed by the trial court were sealed, and Borg-Warner’s designation of materials to be included in the clerk’s record did not list them. Consequently, we have no means of reviewing the trial court’s decision to deny discovery of the settlement agreements based on confidentiality or the effect of any such error. See In re Frank A. Smith Sales, Inc., 32 S.W.3d 871, 875 (Tex.App.-Corpus Christi 2000, orig. proceeding) (explaining that “when the trial court disallows discovery and the missing discovery cannot be made part of the appellate record ... a reviewing court is unable to evaluate the effect of the trial court’s alleged error on the record before it”). Borg-Warner’s ninth issue is therefore overruled.

X. Conclusions

For the aforementioned reasons, Borg-Warner’s issues on appeal are overruled and the judgment of the trial court is affirmed.

      . The elements for a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex.1995).

      . In a supplemental brief filed after submission of this case, Borg-Warner cites In re ROC Pretrial, 131 S.W.3d 129, 136 (Tex.App.San Antonio 2004, no pet.) as requiring expert testimony that the asbestos in question is respirable or "friable.” In ROC Pretrial, the San Antonio court noted that the type of asbestos that causes asbestosis is "friable” asbestos, that is, asbestos fibers that are capable of being inhaled and make their way into the lung tissue, ultimately interfering with the patient's ability to breathe. Id. The San Antonio court held that there was no expert testimony that spraying, sanding, or grinding a liquid paint or coating produces friable asbestos fibers likely to cause asbestosis. Id. This case is fundamentally different from ROC Pretrial. Here, experts have testified that asbestosis can be caused by the inhalation of dust emitted from brake pads containing asbestos and that such dust contains "respirable asbestos fibers.” Thus, we conclude that this case is distinguishable from ROC Pretrial, in which the asbestos apparently could not be inhaled. See id.

      . The jury charge used in this case instructed the jury to determine compensatory damages if it found that Borg-Warner was negligent, strictly liable, or both.

      . Section 41.001 of the Texas Civil Practice and Remedies Code was amended by Act of June 2, 2003, 78th Leg., ch. 204, § 13.02, 2003 Tex. Gen. Laws 847, 887, eff. Sept. 1, 2003, but section 23.02(d) of Acts 2003, 78th Leg., ch.2004 provides that "[a]n action filed before the effective date of this Act ... is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.” The instant action was filed prior to September. 1, 2003 and is therefore governed by the version of section 41.001 that was in effect prior to September 1, 2003. All citations to section 41.001 in this opinion refer to the version in effect prior to September 1, 2003.

      . Borg-Warner’s sole authority on this issue is Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985, no writ), which was disapproved by the Texas Supreme Court in Pustejovsky v. Rapid-Ame. Corp., 35 S.W.3d 643, 653 (Tex.2000).

      . This decision covers Borg-Warner's sixth issue as it relates to both compensatory and punitive damages.

      . The book in question is Barry I. Castleman & Stephen L. Berger, Asbestos: Medical and Legal Aspects (4th ed.1996).

      . Section 33.003 of the Texas Civil Practice and Remedies Code was amended by Act of June 2, 2003, 78th Leg., ch. 204, § 4.02, 2003 Tex. Gen. Laws 847, 855, eff. Sept. 1, 2003, but section 23.02(c) of Acts 2003, 78th Leg., ch.2004 provides that "[a]n action filed before July 1, 2003 is governed by the law in effect immediately before the change in law ... and that law is continued in effect for that purpose.” The instant action was filed prior to July 1, 2003 and is therefore governed by the version of section 33.003 that was in effect prior to September 1, 2003. All citations to section 33.003 in this opinion refer to the version in effect prior to September 1, 2003.

      . Section 33.014 of the Texas Civil Practice and Remedies Code was repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 4.10(6), 2003 Tex. Gen. Laws 847, 859, eff. Sept. 1, 2003. Because this action was filed before the effective date of the amendment, we apply the version of section 33.014 that was in effect prior to September 1, 2003. See Smith v. Cudd Pressure Control, Inc., 126 S.W.3d 106, 109-11 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (applying section 33.014 to case filed before September 1, 2003).


author: DON BURGESS, Justice. DAVID GAULTNEY, Justice,

text:
    Kenneth AUST, Appellant, v. CONROE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 09-04-063 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Sept. 2, 2004.
    Decided Dec. 16, 2004.

      Charles A. Watson, Shana O’Neal Calderon, Collins & Watson, LLP, Houston, for appellant.
    Clay T. Grover, Robert M. Dunn, Jr., Feldman <& Rogers, LLP, Houston, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DON BURGESS, Justice.

Kenneth Aust sued the Conroe Independent School District (“District”) alleging the District retaliated against him after he filed a workers’ compensation claim. Aust appeals the trial court’s grant of summary judgment in favor of the District. We will reverse and remand.

Aust, an electrician’s helper, worked for the District for approximately nineteen years. In December, 2000, he injured his knee while getting out of a maintenance truck. Aust filed a workers’ compensation claim and had surgery that was only partially successful in repairing his knee. Continuing to have knee problems, Aust unsuccessfully sought light duty work. In November, 2001, the District informed Aust his electrical helper position was being eliminated, moved Aust to another department, and decreased his salary. Aust resigned and filed his lawsuit against the District, asserting retaliation and constructive discharge. The District filed a motion for summary judgment, which was granted by the trial court without a hearing.

In challenging Aust’s retaliation claim, the District contended Aust presented no evidence of a causal link between Aust’s filing a worker’s compensation claim and the District’s transferring Aust and reducing his salary and no evidence demonstrating a retaliatory motive on the District’s part. As to Aust’s constructive discharge cause of action, the District maintained Aust had no evidence of intolerable working conditions and no evidence of a causal link between his filing a worker’s compensation claim and his alleged constructive discharge. Aust brings two issues; both relate to his retaliation claim. Issue one contends the trial court erred in granting summary judgment because the District failed to show it had a legitimate reason for demoting him and reducing his salary. Issue two maintains that even if the district presented sufficient evidence to shift the burden to him, summary judgment was improper because he presented evidence raising a fact issue on retaliatory intent.

Standard of Review

While neither designating its motion as a “no-evidence” motion nor citing Rule 166a(i), the District maintained Aust could not produce any evidence of certain elements of his causes of action. Thus, we construe the District’s motion to be a no evidence motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004) (“If a motion clearly sets forth its grounds and otherwise meets Rule 166a’s requirements, it is sufficient.”) We review the trial court’s grant of a no-evidence summary judgment motion under the standards set forth in Rule 166a(i). See Tex.R. Civ. P. 166a(i). In order to defeat a no-evidence summary judgment motion before the trial court, the non-movant is required to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged by the movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). The non-movant raises a genuine issue of material fact by producing “more than a scintilla of evidence” establishing the challenged element’s existence and may use both direct and circumstantial evidence in doing so. Id. at 600-01. To determine if the non-movant produces more than a scintilla of evidence, we view the evidence “in the light most favorable to the non-movant,” while disregarding all contrary evidence and inferences. Ridgway, 135 S.W.3d at 601; King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). More than a scintilla exists where the evidence is such that it “ ‘would enable reasonable and fair-minded people to differ in their conclusions.’ ” Ridgway, 135 S.W.3d at 601 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (other quotations omitted)). But, if “ ‘the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’ ” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). Where, as here, the trial court granted summary judgment without specifying the grounds, the appellant must show it is error to base the judgment on any ground asserted in the summary judgment motion. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

Before applying the summary judgment standards, we first must determine what evidence was before the trial court when it granted summary judgment.

Both parties filed motions to strike. In its motion to strike, the District objected to deposition excerpts from the depositions of Aust’s co-workers; the District contended that the excerpts were not competent summary judgment evidence because the witnesses did not have personal knowledge of the events about which they were testifying. The District also objected to the transcript of a tape recorded conversation between one of Aust’s supervisors and an investigator hired by Aust. The District contended there was no showing the recording fairly represented the conversation. Aust raised various objections to affidavits from three District employees.

Neither party contends it obtained any ruling, explicit or implicit, on its objections. And, we find nothing in the record indicating the trial court explicitly ruled on either party’s objections; there was no hearing on the District’s motion and neither the trial court’s order nor its final judgment included any ruling on objections. Further, neither the order nor the judgment indicate that the trial court implicitly ruled on the objections. See Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753 (Tex.App.-Corpus Christi 2001), pet denied, 92 S.W.3d 530 (Tex.2002) (noting that “for there to be an ‘implicit’ ruling ... there must be something in the summary judgment or the record to indicate [that] the trial court ruled on objections other than the mere granting of the summary judgment.”); Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (party waived objections to summary judgment evidence where there was no order in the record sustaining objections, and the order granting summary judgment did not reflect that the trial court considered objections); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.-San Antonio 2000, no pet.) (“In short, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.”)

In addition, the presence of a Mother Hubbard clause in the final judgment denies claims for relief, but does not overrule objections. See Well Solutions, 32 S.W.3d at 317. As there is no order sustaining or overruling either party’s objections, and nothing in the judgment indicates the trial court considered them, the contested evidence remains a part of the summary judgment evidence. See Wright v. Greenberg, 2 S.W.3d 666, 676 (Tex.App.Houston [14th Dist.] 1999, pet. denied).

Applicable Law

Chapter 451 of the Texas Labor Code, commonly called the Anti-Retaliation Law, provides, “A person may not discharge or in any other manner discriminate against an employee because the employee has ... filed a workers’ compensation claim in good faith” or otherwise participated in a workers’ compensation claim or suit in specified ways. Tex. Lab.Code Ann. § 451.001 (Vernon 1996); see Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 4 & n. 1 (Tex.2000). The purpose of the statute is “to protect persons entitled to benefits under the Workers’ Compensation Act and to prevent them from being discharged for filing claims to collect those benefits.” Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex.1997) (per curiam). The Act is thus a statutory exception to the common-law employment-at-will doctrine. Alayon v. Delta Air Lines, Inc., 59 S.W.3d 283, 287 (Tex.App.-Waco 2001, pet. denied).

The essential elements of a retaliation cause of action are: (1) an employee, who (2) is discharged or discriminated against in any manner (3) because the employee has filed a workers’ compensation claim in good faith and (4) the discharge or discrimination would not have occurred when it did “but for” the filing of the claim. Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Alayon, 59 S.W.3d at 287. The employee has the burden of establishing a causal link or connection between the employee’s filing a workers’ compensation claim and the employer’s alleged retaliatory action. Continental Coffee, 937 S.W.2d at 450; Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316, 319 (Tex.App.-Beaumont 1997, no writ). The workers’ compensation claim also need not be the sole cause of the discrimination. See Jenkins v. Guardian Industries Corp., 16 S.W.3d 431, 436 (Tex.App.-Waco 2000, pet. denied).

In workers’ compensation retaliation claims, we apply a burden-shifting analysis. Jenkins 16 S.W.3d at 434, 441 (applying burden-shifting analysis in traditional summary judgment). Once the employee has established the causal link, the employer bears the burden to rebut the alleged retaliatory action by showing there was a legitimate reason behind it. Continental Coffee, 937 S.W.2d at 451. Then the employee has the burden either to: (1) produce evidence raising a fact issue on whether the employer’s stated reason was a pretext for retaliatory action or (2) challenge the employer’s summary judgment evidence as failing to prove as a matter of law that the stated reason was legitimate and nondiscriminatory. See Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex.App.-Dallas 2004, no pet.) (applying burden-shifting analysis in no-evidence summary judgment and, as support, citing M.D. Anderson Hosp. and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex.2000) (discrimination case)). The employee’s subjective beliefs are, however, no more than conclusions. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).

In his two issues, Aust asserts the trial court erred in granting summary judgment because the District failed to show it had a legitimate reason for demoting him and reducing his salary and, alternatively, if the district could establish a legitimate reason, summary judgment still was improper because he presented evidence raising a fact issue on retaliatory intent. Aust’s contentions, however, presume that he first established a causal link between the District’s alleged retaliatory action and his filing the workers’ compensation claim. See Continental Coffee, 937 S.W.2d at 450. As the District maintains Aust failed to establish a causal link, we first review Aust’s evidence on that issue under the no-evidence standard. In doing so, we examine the record in the light most favorable to Aust and disregard all contrary evidence and inferences. Chapman, 118 S.W.3d at 750-51. Aust is only required to produce “more than a scintilla” to avoid summary judgment. Ridgway, 135 S.W.3d at 600.

Aust may establish a causal link by either direct or circumstantial evidence. Continental Coffee, 937 S.W.2d at 451; Jenkins, 16 S.W.3d at 435-36. Circumstantial evidence may include: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Id. These five examples of circumstantial evidence, however, are not necessary elements of retaliation. See Alayon, 59 S.W.3d at 289; Dallas Area Rapid Transit v. Johnson, 50 S.W.3d 738, 741 (Tex.App.-Dallas 2001, no pet.).

While Aust maintains he presented both direct and circumstantial evidence of the causal link, we review his circumstantial evidence first. Aust testified his supervisors knew he had filed a workers’ compensation claim and that Dick Perry-man, one of his supervisors, had expressed a negative attitude toward Aust’s injured condition. On more than one occasion after Aust’s injury, Perryman told Aust he was not worth his salary. Aust also testified he was not treated the same as other employees who were injured or ill, but had not filed workers’ compensation claims; those employees were allowed to work in the warehouse on “light duty,” an option not offered to Aust. In addition, Aust also presented evidence that the District’s stated reason for his transfer — safety concerns — was false. Aust testified he was told he was being transferred because his position in the electrical department was being eliminated, but that two months after he resigned, the District hired someone else to fill his old position. Aust, thus, has presented circumstantial evidence on most of Continental Coffee factors. See Continental Coffee, 937 S.W.2d at 451.

Examining the record in the light most favorable to Aust, we find he has produced more than a scintilla of circumstantial evidence of the causal link between the District’s alleged retaliatory action and his filing a workers’ compensation claim. Chapman, 118 S.W.3d at 750-51. A review of Aust’s direct evidence is unnecessary.

Having determined that Aust met his initial burden on causal link, we now consider whether the District met its burden to show a legitimate reason for the alleged retaliation. Continental Coffee, 937 S.W.2d at 451. Through the affidavit of Robert H. Burns, the District presented evidence that Aust was transferred for a legitimate reason — concern for worker safety, a statutory duty of the employer. See Tex. Lab.Code Ann. § 411.103 (Vernon 1996).

With the District’s having provided evidence of a legitimate reason for transfer, the burden became Aust’s either to (1) produce evidence raising a fact issue on whether the stated reason was a pretext for retaliatory action or (2) challenge the employer’s summary judgment evidence as failing to prove as a matter of law that the stated reason was legitimate and nondiscriminatory. See Benners, 133 S.W.3d at 369.

According to Aust, Perryman said Aust was being transferred because his position in the electrical department was being eliminated. However, only two months after Aust resigned, the District hired someone else to fill his old position, an action belying any neutral reason for eliminating the job. Further, in its summary judgment motion, the District articulated a completely different reason — worker safety — for Aust’s transfer and the resulting decrease in his salary. But whether worker safety was involved is also controverted by Aust’s testimony that his new duties were as physically challenging as his old ones had been.

In addition, Aust provided a specific example of Perryman’s negative attitude towards Aust’s injury. And, according to Aust, other specifically injured or ill employees who had not filed workers’ compensation claims were allowed to work in the warehouse on “light duty,” an option not offered to Aust. Aust’s testimony thus provides some evidence that his filing a workers’ compensation claim was a factor in the District’s decision to transfer him to a lower paying job.

Here, we review the record in the light most favorable to Aust, disregarding all contrary evidence and inferences, to determine if Aust has produced more than a scintilla of evidence raising a fact issue on whether the District’s stated reason was a pretext for retaliatory action. Ridgway, 135 S.W.3d at 601; Chapman, 118 S.W.3d at 750-51; see Benners, 133 S.W.3d at 369. Indulging reasonable inferences from the record in favor of Aust, we find Aust’s testimony is more than a scintilla of evidence raising a fact issue on the District’s retaliatory intent. See Kokes v. Angelina College, 148 S.W.3d 384, 393 (Tex.App.-Beaumont 2004, no pet. h.) (opinion on original submission).

Issues one and two are sustained. The trial court’s order granting summary judgment in favor of the District is reversed, and this cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. Plaintiff admits he could not safely perform his job duties as an electrician’s helper. Under the circumstances, he needed a different job. The District offered him a position at the same salary but with less strenuous requirements. Plaintiff declined this offer because it would interfere with a second job he held with another employer.

Robert Burns, CISD’s Director of Facilities and Maintenance Operations, met with Aust and concluded worker safety required a job transfer. He transferred plaintiff to a different position in another department. That department had a different salary structure, and the result was decreased pay for Aust. Certainly the transfer was a consequence of Aust’s injury, but there is no competent evidence Burns made the transfer decision in retaliation for Aust filing a compensation claim.

Aust says he was given a false explanation for his transfer. He says his old job was not eliminated and his new job was not safer. However, even if the reason given to plaintiff was false, that alone is insufficient to show a retaliatory motive for the transfer. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 371 (Tex.App.-Dallas 2004, no pet.). Liability is not based on the correctness of the employer’s proffered explanation. In a case involving disability discrimination, the Supreme Court has held the relevant inquiry is not solely whether a reason given by the employer was false, but whether disability was a motivating factor. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (Plaintiff must show the reason proffered by the employer was false and discrimination was a reason). The same is true here. Aust was required to submit evidence that a factor in Burns’ decision was retaliation for his filing a compensation claim. See Elgaghil v. Tar rant County Junior Coll., 45 S.W.3d 133, 140 (Tex.App.-Fort Worth 2000, pet. denied). Absent competent evidence retaliation was a motivating factor for Burns’ transfer decision, summary judgment was proper. I would affirm the trial court’s judgment.

      . The District did not follow suggested standards for clearly delineating its basis for summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). In fact, as its standard of review, the motion articulates the traditional standard with citations to Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Additionally confusing is the District’s citation of Rule 166a(c) (the traditional rule) for certain standards that actually are contained in Rule 166a(i) (the "no-evidence” rule). See Tex.R. Civ. P. 166(a).

      . Neither the order nor the judgment contain any language indicating the trial court reviewed “all competent summary judgment evidence,” language that has been found adequate to support a finding the trial court implicitly sustained objections to the appellant’s summary judgment evidence. See Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied). However, in an unpublished opinion, this Court previously has declined to adopt the Frazier rationale. Nelson v. Dykeman, No. 09-01-226-CV, 2002 WL 538811, *1 to *3 (Tex.App.-Beaumont April 11, 2002, pet. denied) ("we decline to impose a rule that would essentially require the appellant to preserve error regarding the opposing party's objections to the summary judgment record. Absent a clear indication that the trial court actually excluded evidence offered in accordance with Rule 166a, its inclusion in the record must be presumed.”)

      . As direct evidence, Aust referred us to a transcript of a telephone conversation between Dick Perryman, one of Aust’s supervisors, and a private investigator hired by Aust to determine whether the District was providing negative references to Aust’s prospective employers. According to the transcription, Perryman cautioned the investigator to look carefully at any job application of Aust’s. Ultimately, Perryman stated he could not rehire Aust, explaining that "I’m going to say something, and I — it’s totally against what I think I should do, but I’m going to do it anyway. Workers’ comp.” Perryman continued: "This conversation didn’t happen.”
      The District, however, maintains the transcription is not competent summary judgment evidence because Aust has not shown that the tape recording fairly represents the purported conversation. The District further argues that while the individual who typed the transcript has certified she accurately transcribed the tape, she does not know Perryman, has never heard his voice and cannot properly authenticate the tape.

      . Any reference to workers’ compensation made by Perryman to someone he thought was a prospective employer months after Aust left the District is not actionable as retaliation. Retaliation claims under the Workers' Compensation Act require an employer/employee relationship. See Stoker v. Furr's, Inc., 813 S.W.2d 719, 722 (Tex.App.-El Paso 1991, writ denied). Furthermore, Perryman was not the ultimate decisionmaker for the transfer. Burns was.


author: DON BURGESS, Justice. DAVID GAULTNEY, Justice, STEVE McKEITHEN, Chief Justice,

text:
    Rocky SAVAGE and Elena Hope Savage, Appellants, v. Woodrow W. DOYLE and Mary Ann Doyle, Appellees.
    No. 09-04-174 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 2, 2004.
    Decided Dec. 16, 2004.

      Anne Pickle, Seale, Stover & Bisbey, Jasper, for appellants.
    Robert L. Flournoy, Flournoy & Dea-ton, LLP, Lufkin, for appellees.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DON BURGESS, Justice.

' Rocky Savage and Elena Hope Savage appeal a judgment granting summary judgment for the defendants, Woodrow W. Doyle and Mary Ann Doyle, in a dispute arising out of a real estate transaction. We reverse the summary judgment in part and remand for further proceedings consistent with this opinion.

On July 3, 2001, the Doyles and Rocky Savage entered into a contract for deed in which Savage agreed to pay $38,000 for the property. The final payment of $28,000 was due October 10, 2001. The contract required the Doyles to keep the property insured. According to Rocky Savage’s affidavit, the house sustained water damage from a water heater malfunction about September 1, 2001. Rocky Savage reported the damage to Woodrow Doyle and asked Doyle to make a claim on his insurance. On October 16, 2001, Rocky Savage executed a quitclaim deed that recited as consideration the cancellation of the contract for deed. That same day, the Doyles conveyed the property to Elena I. Hope, who is the same person as Elena Hope Savage. The warranty deed from the Doyles to Hope recited as consideration the sum of $28,000 paid by a third-party financier. Several months later, the Savages sued the Doyles for breach of contract for failing to make a timely claim upon the homeowner’s policy. They subsequently amended their pleading to add statutory claims for deceptive trade practices and fraud in a real estate transaction. See Tex. Bus. & Com.Code Ann. §§ 17.46(b)(12), (24); 27.01 (Vernon 2002 & Supp.2004). The Savages allegedly discovered extensive previous water damage to the home while they were repairing the damage from the leaking water heater. According to an affidavit filed by Rocky Savage, no claim was made on the insurance until May 17, 2002, and then the claim was denied for untimeliness. The Doyles moved for summary judgment “declaring that the Plaintiffs’ claims have been extinguished, released and satisfied” and for recovery of attorney fees. The trial court granted the motion and entered a take-nothing judgment.

In their first issue, appellants contend a material fact issue precludes summary judgment on the breach of contract claim. The motion for summary judgment contends the quitclaim deed executed by Rocky Savage canceled the contract for deed and operated to release all claims arising out of the contract for deed. The Savages argue the quitclaim deed is ambiguous with regard to whether Rocky Savage intended to release his right to seek to enforce a breach of the contract by the appellees, and that his affidavit established an issue for determination by the trier of fact. The appellees contend the quitclaim deed is clear on its face that it cancelled the contract and released any and all claims and rights that Rocky Savage had related to this property.

Whether a contract is ambiguous is a question of law decided by examining the contract as a whole in light of the circumstances present at its execution. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). An unambiguous contract can be given a definite or certain meaning as a matter of law, but a contract subject to more than one reasonable interpretation after applying the pertinent rules of construction is ambiguous, and creates a fact issue on the parties’ intent. Id. “Although oral statements regarding the parties’ intentions are inadmissible to vary or contradict the terms of the agreement, the court may examine prior negotiations and all other relevant incidents bearing on the intent of the parties.” Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 848 (Tex.App.Houston [14th Dist.] 2001, pet. denied). Parol evidence is not admissible for the purpose of creating an ambiguity, but if we determine a contract is ambiguous, parol evidence is admissible to resolve the ambiguity. See National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex.1995).

A quitclaim deed, such as the instrument executed by Savage, does not establish title but functions s a conveyance of whatever right, title, or interest the grantor possesses at the time of execution. See Rogers v. Ricane Enters., 884 S.W.2d 763, 769 (Tex.1994). In this case, the ap-pellees contend the quitclaim deed operated as a release of claims for breach of contract, deceptive trade practices, and fraud' in a real estate transaction. “In order to effectively release a claim in Texas, the releasing instrument must 'mention’ the claim to be released. Even if the claims exist when the release is executed, any claims not clearly within the subject matter of the release are not discharged.” Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). “Furthermore, general categorical release clauses are narrowly construed.” Id. The disputes over water damage and insurance claims are not mentioned in the quitclaim deed, which expressly releases only Savage’s claim to an interest in the real property.

The Doyles argue the recited cancellation of the unrecorded contract for deed precludes a later-filed suit for breach of contract because the contract has been cancelled or repudiated. The recital in the quitclaim deed is evidence that the contract for deed has been cancelled by the parties. It was executed contemporaneously with a warranty deed to Elena Hope; thus, the circumstances surrounding the execution of the quitclaim deed also support a conclusion that the parties cancelled the contract for deed to Rocky Savage. As the movants for summary judgment, the appellees must establish as a matter of law that Rocky Savage released his breach of contract claim when the parties cancelled the contract. We agree with appellees that the quitclaim deed is not ambiguous, as it clearly states: “for and in consideration of the sum of the cancellation of that one certain unrecorded Contract for Deed ... and other good and valuable consideration....” When the contract was canceled in consideration for the quitclaim deed, the parties’ obligations under the contract ended. A cancelled contract is ineffective as a legal obligation. See Ferguson v. DRG/Colony North, Ltd., 764 S.W.2d 874, 887 (Tex.App.-Austin 1989, writ denied). The trial court correctly granted summary judgment on plaintiffs breach of contract claim because the contract was cancelled. Issue one is overruled.

In their second issue, appellants contend the trial court erred in granting summary judgment on their deceptive trade practices claim. As with the breach of contract claim, the appellees moved for summary judgment on the deceptive trade practices claim on the ground that the quitclaim deed cancelled the contract for deed and released all of Rocky Savage’s claims against the Doyles. Appellees contend the Savages cannot assert “a claim for ambiguity” in the quitclaim deed because they failed to comply with the pleading requirements of Rule 94 of the Texas Rules of Civil Procedure. As plaintiffs, the Savages were not required to assert affirmative defenses in them petition. We note that the quitclaim deed and the circumstances surrounding its execution were presented to the trial court, as required by the rule on summary judgment procedure. See Tex.R. Crv. P. 166a(c). The quitclaim deed does not expressly release the tort claim, and the cancellation of the contract for deed does not necessarily satisfy the tort claim. Rocky Savage’s affidavit raises a fact issue on the parties’ intent in executing the document; therefore, the trial court erred in granting summary judgment on that ground.

The motion for summary judgment also argued that the contract for deed contains an “as is” provision that precludes “a claim for some minor property damage.” A valid “as is” agreement prevents a buyer from holding a seller liable because the buyer has agreed to take the full risk of determining the value of the purchase and has disclaimed reliance on whatever representations the seller may have made. See Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995). “[W]e do not suggest that an ‘as is’ agreement can have this determinative effect in every circumstance. A buyer is not bound by an agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent representation or concealment of information by the seller.” Id. at 162. “A seller cannot have it both ways: he cannot assure the buyer of the condition of a thing to obtain the buyer’s agreement to purchase ‘as is’, and then disavow the assurance which procured the ‘as is’ agreement.” Id. Matters affecting the validity of a disclaimer of reliance include whether the seller obstructed an inspection of the property, whether the clause is an important part of the basis of the bargain or mere boiler-plate, and whether the transaction is between sophisticated parties dealing at arm’s length. Id. “The contract and the circumstances surrounding its formation determine whether the disclaimer of reliance is binding.” Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179 (Tex.1997). This record reveals an arms’ length transaction but provides no information about the relative sophistication of the parties and the negotiation of the contract terms.

In the context of a summary judgment, a document containing the buyer’s disclaimer of reliance conclusively negates the element of reliance. Procter v. RMC Capital Corp., 47 S.W.3d 828, 834 (Tex.App.-Beaumont 2001, no pet.). To avoid summary judgment, therefore, the buyer “must present some summary judgment evidence that ‘but for’ the representations of the seller regarding the condition of the subject of the contract, the buyer would not have assented to the ‘as is’ clause in the sales’ contract.” Id. The summary judgment response evidence on the representations regarding the condition of the property must raise a fact issue on: (1) material representation; (2) falsity; (3) actual knowledge; (4) intent to induce reliance; (5) reliance; and (6) injury. Id. at 834-35. In his affidavit, Rocky Savage states that he did not look inside the walls, but that during his inspection of the property he found some spare plywood in the garage and asked Woodrow Doyle why it was there. According to Savage, “Mr. Doyle denied any problems.” Savage also relates that while cleaning the water damage from the hot water heater leak, he and Elena discovered additional water damage that “would indicate that the home had been previously damaged extensively.” In reply, Woodrow Doyle provided an affidavit in which he states that the water had been turned off for seven months before Savage took possession of the property, and that he had no knowledge of any leak in the water heater. According to Doyle, he and his son had repaired the roof on the house in July 2000, and “there may have been some plywood” there. Doyle stated he “explained that to Mr. Savage before we entered into a contract.” Neither affidavit states the matter clearly, but all inferences must be resolved in favor of the non-movant. It appears Savage discovered water damage inside the walls after he executed the contract for deed. Woodrow Doyle admits he assisted his son in a repair to the home in July 2000, and asserts that he reported the roof repair to Savage, but Savage claims Doyle “denied any problems.” Doyle was aware of a repair of a condition of the house that could have resulted in water damage inside the walls. Although Doyle claims he disclosed the roof repair, according to Savage’s account of their conversation the communication did not occur. If the seller knew a roof repair had been performed and did not disclose that fact to the buyer, that is some evidence from which it might be inferred that the seller was aware that the property had sustained water damage that his work on the roof corrected and that the seller concealed the water damage. We conclude that the existence of disputed issues of fact precludes resolution of the deceptive trade practices claim through summary judgment, notwithstanding the “as is” clause in the contract for deed. Issue two is sustained.

The final issue addresses the Savages’ claim for fraud in a real estate transaction. Appellants contend the motion for summary judgment does not address that claim. The motion refers to the “claim concerning deceptive trade practices” and does not mention the claim asserted under Section 27.01, Business and Commerce Code. Appellees argue their motion for summary judgment asserted the quitclaim deed released all potential claims. We have found that a fact issue precludes summary judgment on that ground. Issue three is sustained.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DAVID GAULTNEY, Justice,

concurring and dissenting.

I concur with the resolution of issue one, but respectfully dissent to the resolution of issues two and three.

The contract, prepared by the plaintiff, provided in part as follows:

5. Buyer has examined the property to Buyer’s complete satisfaction and knows its condition. In purchasing the property, Buyer relies on Buyer’s examination and judgment, not on the representation of any other person as t the value, future value, condition, size, age, use, or any other matter. Buyer acknowledges that in selling the property Seller makes no warrantied [sic] other than title. This contract is the entire and only agreement between Buyer and Seller, and it incorporates all other written, verbal, express, and implied agreements made between any party or any agent of any party to this contract in connection with this transaction. If any provisions in this contract conflict with any provisions in any other instrument, those in this contract shall control.

There is no evidence of the cause of the water damage, other than the damage caused by the hot water heater valve which occurred after plaintiff moved into the house. Knowledge of a roof repair cannot be equated with knowledge of water damage. Plaintiff presented no evidence of fraud in the inducement of the “as is” agreement. To the contrary, plaintiff prepared the contract in which he disclaimed reliance on any representation by defendant concerning the condition of the house. In the absence of any evidence of fraud in the inducement of the “as is” agreement, this contractual disclaimer negates any claim that representation about the condition of the house caused damage to plaintiff. I would overrule issues two and three and affirm the trial court’s judgment.

STEVE McKEITHEN, Chief Justice,

concurring and dissenting.

I concur in the resolution of issues two and three, but respectfully dissent to the overruling of issue one.

In their first issue, the appellants contend a material fact issue precludes summary judgment on the breach of contract claim. The majority is correct when they state: “As the movants for summary judgment, the appellees must establish as a matter of law that Rocky Savage released his breach of contract claim when the parties cancelled the contract.” I disagree with the majority’s reliance on a rescission case as authority for denying relief in a suit for breach of contract where the breach occurred prior to cancellation. Absent default on the part of the buyer, the contract is silent regarding the parties’ rights upon cancellation of the contract for deed. While it would have been necessary to cancel the contract for deed in order for the Doyles to convey clear title to Hope, it was not necessary for Savage to release a breach of contract claim against the Doyles in order for the Doyles to implement the transaction with Hope. I conclude that the quitclaim deed is ambiguous, as it does not clearly state the grantor’s intention to surrender any right other than his claim to title in the real property, and that no other intent is evident from the context of the transaction.

In his affidavit in response to the motion for summary judgment, Rocky Savage avers he executed the quitclaim deed because the property was being conveyed into Elena’s name and she was not a party to the contract for deed. He further states that the quitclaim deed was signed for purposes of clearing the title only, and he had no intention of releasing any claims against the Doyles when he signed the quitclaim deed. I conclude that a fact issue on the parties’ intent precludes summary judgment on the breach of contract claim. I would sustain issue one and reverse the summary judgment on all claims.

      . Rocky Savage and Elena Hope Savage allege they are married to each other. The date of their marriage is a fact issue in this case. In his affidavit, Rocky Savage avers they were married when he executed the contract for deed. According to Woodrow Doyle’s affidavit, five days after that date, Rocky said he and Elena were not married and were going to be married in Hawaii. Where we refer to Elena Hope Savage by her maiden name, we do so for ease of identification and not because we have determined her marital status at any particular point in time.

      . In a summary judgment case, the issue on appeal is whether the movants met their summary judgment burden by establishing that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). The standards for reviewing summary judgment are: (1) the movants for summary judgment have the burden of showing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movants will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

      . The issue is confined to the effect the execution of the quitclaim deed had upon the appellants' contract claim, and the merits of the claim for breach of the contract for deed are not before us.

      . The plaintiffs’ petition on this issue alleges the defendants represented that the contract for deed conferred or involved rights or remedies it did not have or involve, and that defendants failed to disclose information concerning the property known to the defendants at the time of the transaction with the intent to induce the plaintiffs into a transaction they would not have entered into had the information been disclosed.

      . The contract for deed provides:
      Buyer has examined the property to Buyer’s complete satisfaction and knows its condition. In purchasing the property, Buyer relies on Buyer’s examination and judgment, not on the representation of any other person as to the value, future value, condition, size, age, use, or any other matter. Buyer acknowledges that in selling the property Seller makes no warrantied [sic] other than title. This contract is the entire and only agreement between Buyer and Seller, and it incorporates all other written, verbal, express, and implied agreements made between any party or any agent of any party to this contract in connection with this transaction. If any provisions in this contract conflict with any provisions in any other instrument, those in this contract shall control.


author: SUSAN LARSEN, Justice.

text:
    Maria MEZA, Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00094-CR.
    Court of Appeals of Texas, El Paso.
    Dec. 16, 2004.

      M. Clara Hernandez, El Paso County Public Defender, El Paso, for Appellant.
    Jaime E. Esparza, Dist. Atty., El Paso, for Appellee.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

SUSAN LARSEN, Justice.

Maria Meza was convicted of hindering the apprehension or prosecution of her son, Ricardo, who was wanted for a felony. The jury sentenced her to five years in prison, but recommended that the sentence be suspended. In accordance with the jury’s verdict, the trial court sentenced Meza to five years in prison, probated for five years. On appeal, Meza argues that the State committed prosecutorial misconduct by asking her irrelevant and unduly prejudicial questions during the punishment stage of the trial and that the trial court erred by attaching unreasonable and factually unsupported conditions to her probation. We will affirm the judgment as modified.

Prosecutorial Misconduct

During the punishment stage of trial, and over objections by her attorney, the prosecutor asked Meza the following questions:

[Y]ou knew your children were doing things related to gangs inside your house, didn’t you?
You knew your children were in gangs, right?
Earlier today you testified ... that you knew the police were looking for Ricardo Meza partly because of his gang activity.... Is that correct?
[Y]our son, when he was charged with the aggravated assaults, ran off to Mexico and hid for over a year, isn’t that correct?
[Ijsn’t it true that your son, after being charged with the aggravated 'assault, ran away to Mexico and hid out from coming to court?

Meza denied that her children were in gangs, that she knew they were in gangs, or that Ricardo absconded.

In her first issue, Meza argues that the State committed prosecutorial misconduct by asking these questions. She contends that the questions were irrelevant and were an attempt by the State to use her sons’ characters and actions to prejudice the jury against her. She also contends that although the State gave the jury the impression that the questions were based on fact, the State presented no evidence that her children were in fact gang members or that Ricardo had absconded to avoid prosecution.

We find it unnecessary to address the merits of these contentions. It is well settled that the overruling of an objection to evidence is not reversible when other such evidence was admitted without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998). In this case, evidence that Meza’s sons were gang members and that Ricardo absconded was admitted at the guilt stage of the trial.

In particular, a police officer testified that he was familiar with Ricardo, his brother, and the Meza family through his work with the CRASH unit, which is a gang task force. The CRASH unit was called out to effectuate Ricardo’s arrest. Officers also testified that Ricardo had “a history of assaulting officers” and “a history of running,” that they were attempting “to make sure he wouldn’t run again,” and that Ricardo had “evaded and ... fought officers in the past.” Meza herself testified that there was an arrest warrant for Ricardo “regarding him absconding because he was a gang member,” that “the policemen had showed up on several occasions because [Ricardo] stole four trees, because he beat up a dame, he was part of a gang and he absconded,” and that “they showed up at my place ... telling me that he ... was in a gang and he had absconded, he had ran away from them.” At the beginning of the punishment stage, the prosecution offered all of the testimony and evidence from the guilt stage.

Moreover, during the guilt stage the defense stipulated to the admission of State’s Exhibit 1, which consisted of an alias capias for Ricardo’s arrest for assaulting a public servant, along with court documents reflecting that Ricardo failed to appear for his trial. In moving for the admission of this exhibit, the prosecutor stated that it was being introduced for “the limited purpose of showing that there was, in fact, a felony warrant out for [Ricardo Meza].” When Meza denied during the punishment stage that Ricardo had absconded, the prosecutor referred to State’s Exhibit 1 by asking, “So if the court documents that we have here show that he was supposed to show up in court and he failed to show up you’re telling this jury that those papers were lying ... ?” The prosecutor later made another reference to “the documents which have already been entered into evidence ... that Ricardo was charged with aggravated assault and ... that he did not show up.... ” The defense made no objection to these references to State’s Exhibit 1.

It is thus apparent that the jury was presented with evidence from which it could have inferred that Meza’s sons were gang members and that Ricardo absconded to avoid prosecution for aggravated assault. Therefore, the prosecutor’s reference to this information was harmless, and Meza’s first issue is overruled.

Conditions of Probation

As conditions of her probation, the trial court required Meza to do the following: (1) perform 200 hours of community service; (2) pay a $100 fine in installments of $5 per month; (3) reimburse the county $2,800 for her attorney’s fee in installments of $55 per month; (4) observe curfew between 10 p.m. and 5 a.m.; (5) participate in a G.E.D. program; and (6) pay $223 in court costs, a $20 jury fee, and a $60-per-month supervision fee. In her second issue, Meza argues that these conditions are unreasonable and were designed to assure that she would not successfully complete her probation. In particular, she argues that requiring her to pay the fine, fees, and costs was unreasonable because she is unable to pay these amounts. She further argues that there was no factual basis for the amount of the attorney’s fee.

The Court of Criminal Appeals has stated:

An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. A defendant who benefits from the contractual privilege of probation ... must complain at trial to conditions he finds objectionable.

Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999). If there is no opportunity to object to a trial court’s actions during a sentencing hearing, a motion for new trial will preserve error. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999); see also Speth, 6 S.W.3d at 534 & n. 9 (noting that the requirement of a trial objection assumes that the defendant knew what the conditions were in time to object at trial). An appellant may not complain about conditions of probation for the first time on appeal. Speth, 6 S.W.3d at 535; see also Hull v. State, 67 S.W.3d 215, 216-17 (Tex.Crim.App.2002); Heiringhoff v. State, 130 S.W.3d 117, 133-34 (Tex.App.-El Paso 2003, pet. ref'd).

The Court of Criminal Appeals has noted, however, that it ordinarily allows defendants to raise challenges to the sufficiency of the evidence for the first time on appeal. See Idowu v. State, 73 S.W.3d 918, 922 (Tex.Crim.App.2002). In Idoum, the trial court ordered the appellant to pay restitution to the victim. Id. at 920. The appellant complained to the court of appeals that the victim actually suffered no loss; therefore, in the words of the court of appeals, there was “no factual basis supporting the amount of restitution ordered.” Idowu v. State, Nos. 05-00-00168-CR & 05-00-00169-CR, 2001 WL 474401, at *7 (Tex.App.-Dallas May 7, 2001) (emphasis added), aff'd, 73 S.W.3d 918 (Tex.Crim.App.2002). Relying on Speth, the court of appeals rejected this argument because it was not raised in the trial court. See id.

The Court of Criminal Appeals affirmed, stating first that the court of appeals “did not err in concluding that appellant failed to preserve the issue of restitution for appellate review.” Idowu, 73 S.W.3d at 919. But the Court went on to state, “If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order, he must do so in the trial court....” Id. at 921 (emphasis added). And the Court further stated, “Whether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be preserved by objection at the trial level.” Id. at 922. The Court concluded, “Whether a party must object to preserve an evidentiary sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in this case because here, [the State presented evidence of the amount of the victim’s loss]. Thus, there was a factual basis for the amount of restitution the trial court ordered.” Id. It therefore seems that the Court held both: (1) that the appellant’s complaint regarding the factual basis for restitution was not preserved because he did not object in the trial court, and (2) that it need not decide whether an objection is required to preserve a factual-basis complaint.

In this case, the trial judge announced in open court that he was suspending Meza’s sentence and placing her on probation for five years “under terms and conditions that will be fully explained to you [Meza] by [the] community supervisions officer. ...” The following exchange then occurred among the judge, Defense Counsel Garcia, and Prosecutors Ferguson and Rosales:

Judge: Among these conditions will be that you perform 200 hours of community service, pay a fine in the amount of $100.00. Is there anything else?
Ferguson: Nothing from the — I’m sorry.
Garcia: Did you say a $100.00 fine?
Judge: Yes. $100.00
Ms. Rosales?
Rosales: Nothing, Your Honor.
Judge: Reimburse the County of El Paso for the cost of Mr. Garcia’s services in this case.
Garcia: Your Honor, I’m not—
Judge: Oh, come on, Mr. Garcia.
Garcia: All right. Well—
Judge: I’ll count the hours. I know how long—
Garcia: You want me to say $1,000.00, Judge, or $750.00.
Judge: Probably $1000.00 is going to be closer. Okay. We did 17.5 hours just in trial. And we had arraignments. Half an in here [sic]. And 20 in court. That’s 65. That’s $1,300.00. And then your out of court time all of your preparation and everything else.
Garcia: So how much are you going to assess her?
Judge: Well, you tell me. You got $1,300.00 just in court. I mean, how much time have you put into the case. I mean, you’re probably looking at another $1,500 trial preparation.
Garcia: Well, Judge, yes.
Judge: I know you’re trying to save your client some money, but you got to be fair to the county, too.
Garcia: I understand, Judge. It will be [sic] Would $1,500 be all right, Judge?
Judge: Sure. So that would be $2,800. You will reimburse the County of El Paso in the amount of $2,800, for the cost of Mr. Garcia’s excellent representation, and abide by all of the other standard terms and conditions of probation, set curfew at 10-10 o’clock curfew.

The judge then indicated that Meza would be required to get a G.E.D. and that, if possible, her community service hours should be performed at the police department “so that she can learn that police officers aren’t her enemies.... ”

The judge did not specify the amount of the payments Meza would be required to make for the fine and attorney’s fee, nor did he state that Meza would be required to pay $223 in court costs, a $20 jury fee, and a $60-per-month supervision fee. This information was, however, included in the written conditions of eom-munity supervision, which Meza signed on the same day her sentence was suspended. There is nothing in the record to show that Meza objected to these conditions. She did not file a motion for new trial. Accordingly, we conclude that Meza cannot complain about the unreasonableness of any of the conditions for the first time on appeal. To the extent her second issue complains of the unreasonableness of the conditions, the issue is overruled.

As noted above, Meza also complains about the lack of a factual basis for the attorney’s-fee condition. A trial judge enjoys broad discretion to determine the conditions of probation. See Tex.Code CRIM. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp.2004-05); Speth, 6 S.W.3d at 533. Among other conditions, the judge may order the defendant to “[rjeimburse the county ... in an amount that would have been paid to an appointed attorney had the county not had a public defender.” Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(11). Although the trial judge has discretion to determine the amount of the attorney’s fee, due process requires that there must be evidence in the record to provide a factual basis for the amount set by the trial court. Hester v. State, 859 S.W.2d 95, 97 (Tex.App.-Dallas 1993, no pet.). In other words, there must be at least some evidence in the record showing how the fee was determined. Miller v. State, 755 S.W.2d 211, 217 (Tex.App.-Dallas 1988), rev’d on other grounds, 815 S.W.2d 582 (Tex.Crim.App.1991). If there is no evidence to support the amount of the attorney’s fee, the judgment should be reformed to delete that condition. See Miller, 755 S.W.2d at 217.

Here, the judge ordered Meza to pay $1,300 for her attorney’s representation in court. Although the judge indicated that he knew the number of hours counsel had spent in court, his comments in open court do not reveal the number or the rate the judge used in his calculations: “We did 17.5 hours just in trial. And we had arraignments. Half an in here [sic]. And 20 in court. That’s 65. That’s $1,300.00.” The judge did not state that he was taking judicial notice of the county’s adopted fee schedule. See Hester, 859 S.W.2d at 98 (finding no factual basis for the amount of attorney’s fees where, among other things, the record did not show that the trial court took judicial notice of the county’s adopted fee schedule and counsel did not testify about the work completed or time spent on the case).

The judge also ordered Meza to pay $1,500 for her attorney’s pretrial preparation. The only reference in the record to this amount is the judge’s suggestion to counsel, “I mean, you’re probably looking at another $1,500' trial preparation,” followed by counsel’s acknowledgment, “Well, Judge, yes,” and then the question, “Would $1,500 be all right, Judge?” Counsel’s un-sworn acquiescence to the judge’s suggested amount is hardly sufficient to provide a factual basis for that amount. Neither the judge nor counsel mentioned the number of hours spent in pretrial preparation or the applicable rate for the services rendered.

We conclude that there is no factual basis to support the amount of the attorney’s fee. Because Meza did not raise her complaint about the attorney’s fee in the trial court, we are confronted with the issue seemingly left undecided in Idowu: Whether a complaint about the factual basis to support a condition of probation may be raised for the first time on appeal. We agree with Idowu’s suggestion that a factual-basis complaint is essentially an evidentiary-sufficiency complaint. See 73 S.W.3d at 922. Accordingly, Meza was not required to raise the complaint in the trial court. See id.; Flanary v. State, 166 Tex.Crim. 495, 496, 316 S.W.2d 897, 898 (1958); Perez v. State, 113 S.W.3d 819, 836 (Tex.App.-Austin 2003, pet. ref'd).

We must address one final argument made by the State. The State asserts that Meza invited any error in the assessment of the attorney’s fee because her counsel helped the trial court determine the amount. The Court of Criminal Appeals has given the following explanation as to when the invited error doctrine applies:

If a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error. This is not really a waiver of error previously committed. Rather, it is part of the definition of what can constitute error, and quite reasonably defines error of which a party may complain as excluding those actions of the trial court actually sought by the party in that tribunal.

Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999) (emphasis added) (quoting 43 GeoRge E. Dix & RobeRt O. Dawson, Texas Practice: Criminal Practice & Procedure § 42.141 (Supp.1999)). The record does not reflect that Meza or her counsel sought to have the trial court include the attorney’s-fee condition. Instead, it is clear that the trial judge raised the issue on his own initiative. Meza’s counsel merely responded to the judge’s requests. Under these circumstances, the doctrine of invited error does not apply. To the extent Meza’s second issue complains of the lack of a factual basis for the attorney’s-fee condition, the issue is sustained.

Conclusion

For the reasons stated herein, the judgment of the trial court is modified to delete the condition of probation that Meza reimburse the County $2,800 for her attorney’s fee.

In all other respects, the judgment is affirmed.

      . From a review of the context in which Meza made these statements, it appears that she was not stating that she believed Ricardo was a gang member or had absconded; she was simply repeating what law enforcement officers had told her.

      . In a succinct concurring opinion, Judge Price stated, “The majority concludes that the appellant failed to preserve his complaint about restitution. It goes on to address the merits of the appellant’s complaint. The discussion of the merits is obiter dictum and not necessary to the disposition of the case. I concur in the judgment only.” Idowu, 73 S.W.3d at 923 (Price, J., concurring).

      . Meza was represented by the El Paso County Public Defender.

      . Hester and Miller involved the application of article 26.05 of the Code of Criminal Procedure. See Hester, 859 S.W.2d at 97—98; Miller, 755 S.W.2d at 215-17. That statute provides for compensation of appointed attorneys, rather than public defenders. See Tex.CodeCrim. Proc. Ann. art. 26.05(a) (Vernon Supp.2004-05). It further provides, “If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided ... the court shall order the defendant to pay ... as court costs the amount that it finds the defendant is able to pay.” Id. art. 26.05(g).