text:
    NATIONAL ENTERPRISE, INC., Appellant, v. E.N.E. PROPERTIES, et al., Appellees.
    No. 10-03-00372-CV.
    Court of Appeals of Texas, Waco.
    March 23, 2005.

      Charles W. Blount, Smith Underwood & Perkins, Dallas, for appellant.
    J. David Dickson, Beard, Kultgen, Bro-phy, Bostwick & Dickson, L.L.P., Waco, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

National Enterprise, Inc., appeals from an order granting summary judgment in favor of E.N.E. Properties and others (ENE). Because we find that National Enterprise is not entitled to assert a six-year statute of limitations available to successors-in-interest of the Resolution Trust Corporation, we affirm.

Background

ENE signed and delivered to the Resolution Trust Corporation (RTC) a real estate lien note and a deed of Trust encumbering several parcels of real estate in McLennan County. Subsequently, the RTC assigned its interest in the note and deed of trust to National Enterprise. Because ENE defaulted on the note, National Enterprise foreclosed on the properties securing the note, but the amount realized was insufficient to satisfy the outstanding obligation. Four and a half years later, National Enterprise filed suit against ENE to collect the deficiency. ENE filed a traditional motion for summary judgment claiming that the suit was barred by the statute of limitations. The trial court granted ENE’s motion for summary judgment.

On appeal, National Enterprise argues that the trial court erred in (1) granting ENE’s motion for summary judgment because issues of material fact exist; (2) granting ENE’s motion for summary judgment because the suit was filed within the applicable statute of limitations; (B) awarding attorney fees to ENE based upon their request for a declaratory judgment; and (4) denying its motion for summary judgment.

Late-Filed Summary Judgment Evidence

ENE argues that because National Enterprise filed its amended summary judgment evidence late, this evidence is not properly before us. Shortly after the summary judgment hearing, National Enterprise filed its first amended petition, first amended motion for summary judgment, and a supplemental affidavit introducing new evidence.

Summary judgment evidence must be filed twenty-one days before the hearing, unless the party obtains leave of court to file afterward. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); VICC Homeowners’ Assn., Inc. v. Los Campeones, Inc., 143 S.W.3d 832, 837 (Tex.App.-Corpus Christi 2004, no pet.). When nothing appears in the record to indicate that leave of court was obtained, it is presumed that the trial court did not consider the late-filed evidence. Benchmark Bank, 919 S.W.2d at 663; VICC Homeowners’ Assn., 143 S.W.3d at 837. The record before us does not indicate that National Enterprise obtained leave of court, nor does National Enterprise dispute ENE’s claim that no permission was given. Therefore, National Enterprise’s evidence is not part of the summary-judgment record, and we will not consider it. See Alaniz v. Hoyt, 105 S.W.3d 330, 339 (Tex.App.-Corpus Christi 2003, no pet.).

ENE’s Motion for Summary Judgment

National Enterprise argues in its first and second issues that the trial court erred in granting ENE’s traditional motion for summary judgment because issues of material fact exist and because the statute of limitations has not expired.

We review the decision to grant or deny a summary judgment motion de novo. See Rosas v. Hatz, 147 S.W.3d 560, 563-64 (Tex.App.-Waco 2004, no pet.); Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Larsen v. Carlene Langford Assocs., Inc., 41 S.W.3d 245, 249 (Tex.App.-Waco 2001, pet. denied) (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)).

The standard of review for a traditional summary judgment is well established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Rosas, 147 S.W.3d at 564. The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Rosas, 147 S.W.3d at 564. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Rosas, 147 S.W.3d at 564.

National Enterprise argues that under federal law, the RTC is subject to a six-year statute of limitations in regards to any action brought by the RTC. 12 U.S.C.A. § 1821(d)(14(A)(i)(I) (West 2001)). Therefore as an assignee of the RTC, National Enterprise argues that it is entitled to assert the six-year limitations period. ENE agrees that assignees of the RTC may assert a six-year limitations period, but only if the cause of action accrues before the assignment, when the RTC was still the holder of the note.

It is well settled that an assignee of the FDIC may assert the six-year statute of limitations as a successor of the FDIC. Jackson v. Thweatt, 883 S.W.2d 171, 178 (Tex.1994). However, the Texas Supreme Court has held that whether an assignee of the FDIC can invoke the six-year limitations period depends upon when the underlying cause of action accrues. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 574 (Tex.2001). In deciding Wolf, the Court relied upon two federal circuit cases denying successors of the FDIC the right to claim the six-year statute of limitations when default on the note occurred after the FDIC assigned it. Id. at 572-73 (citing Beckley Capital Ltd. Partn. v. DiGeronimo, 184 F.3d 52, 58 (1st Cir.1999); Cadle Co. v. 1007 Jt. Venture, 82 F.3d 102, 106 (5th Cir.1996)).

Therefore, because the RTC has “the same powers and rights to carry out is duties ... as the [FDIC] has under ... 12 U.S.C. § 1821,” the question is when did National Enterprise’s cause of action accrue? 12 U.S.C.A. § 1441a (B)(4)(A) (West 2001); Wolf, 44 S.W.3d at 574; see also Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 82-83 (Tex.App.-Eastland 2003, pet. denied).

National Enterprise argues that the note was in default while it was still in the possession of the RTC. ENE argues that the note was in default after assignment because in National Enterprise’s pleadings it lists the transaction between itself and the RTC, and then states, “Defendants subsequently defaulted on the note.” ENE also points to the affidavit of Chad-wic Gifford, submitted by National Enterprise, which discusses the assignment of the note from the RTC, and then states, “Defendants subsequently defaulted on the note.” However, according to the reasoning in Wolf, the issue is not when the note was in default, but when the cause of action for the deficiency accrued. Wolf, 44 S.W.3d at 574.

Wolf acquired the debtor’s note from a long line of successors, the first of which was the FDIC. Id. at 565. The first successor-in-interest immediately after the FDIC accelerated the note. Id. Once Wolf acquired the note, he initiated foreclosure proceedings against the debtor. Id. The debtor claimed that a four-year statute of limitations precluded foreclosure. Id.; Tex. Civ. PRAC. & Rem.Code Ann. 16.035(b) (Vernon 2002). Wolf argued that because the note was in default while in the possession of the FDIC, he was entitled to assert the six-year statute of limitations. Id. at 566. The Texas Supreme Court acknowledged that the two federal circuit cases they relied upon used “default” as the triggering event for the six-year limitations period, but rationalized that “it is clear from their reasoning that these courts rely on the default date only to the extent that it was synonymous with the accrual date in those cases.” Id. at 574. The Court found that the accrual date for the foreclosure action did not occur when the debtor defaulted but when a subsequent successor of the FDIC accelerated the note. Id. Because Wolfs cause of action accrued after the assignment from the FDIC, the Court held that the six-year statute of limitations did not apply. Id.

National Enterprise’s cause of action is a claim of deficiency after a foreclosure sale. Section 51.003 of the Texas Property Codes states:

(a) If the price at which real property is sold at a foreclosure sale under Section 51.002 is less than the unpaid balance of the indebtedness secured by the real property, resulting in a deficiency, any action brought to recover the deficiency must be brought within two years of the foreclosure sale and is governed by this section.

Tex. Prop.Code Ann. § 51.003 (Vernon 1995).

National Enterprise’s cause of action for a deficiency after the foreclosure accrued at the time of the foreclosure sale, indisputably occurring while National Enterprise was in possession of the note. Therefore, National Enterprise is not entitled to assert the six-year statute of limitations, and the two-year limitations period applies. See Wolf, 44 S.W.3d at 574; Tex. Peop.Code § 51.003. National Enterprise brought this cause of action four and a half years after the foreclosure sale. Consequently, its suit is barred by the statute of limitations, and the trial court did not err in granting ENE’s motion for summary judgment. Accordingly, National Enterprise’s first and second issues are overruled.

Declaratory Judgment and Attorney’s Fees

National Enterprise argues in its third issue that the trial court erred in awarding attorney fees to ENE based upon its counterclaim for a declaratory judgment.

In its answer, ENE requested a declaratory judgment that there was no deficiency from the foreclosure sale. Later in its motion for summary judgment, ENE argued that because it requested a declaratory judgment, it was entitled to reasonable attorney’s fees. When the court granted ENE’s motion for summary judgment, it awarded ENE $9,500.00 in attorney’s fees.

A trial court “may award costs and reasonable and necessary attorney’s fees as are equitable and just” in a declaratory judgment proceeding. See Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997). The grant or denial of attorney’s fees in a declaratory judgment action lies within the discretion of the trial court, and its judgment will not be reversed on appeal absent an abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); McMillan v. Dooley, 144 S.W.3d 159, 186 (Tex.App.-Eastland 2004, no pet.). However, the Declaratory Judgment Act is not available to settle disputes already pending before the court. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex.1990); Anderson v. New Property Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 390-91 (Tex.App.-Texarkana 2003, pet. denied); Brush v. Reata Oil and Gas Corp., 984 S.W.2d 720, 730 (Tex.App.-Waco 1998, pet. denied). A counterclaim based on the Declaratory Judgment Act must state a claim for affirmative relief. Millard, 800 S.W.2d at 841, n. 8. A claim for affirmative relief is stated if the counterclaim alleges a cause of action independent of the plaintiffs claim. Id. at 841.

ENE’s request for declaratory judgment involves the same parties and the same issues. Anderson, 122 S.W.3d at 391. National Enterprise asserts there is a deficiency, and in the counterclaim ENE’s requests a declaratory judgment that there is no deficiency. ENE does not present any issue beyond that asserted by National Enterprise, nor does it seek a declaration as to the parties’ ongoing relationship. Id. The request for declaratory-judgment is merely a denial of National Enterprise’s cause of action. Millard, 800 S.W.2d at 841.

A declaratory judgment action may not be used solely to obtain attorney’s fees that are not otherwise authorized by statute. Breitenfeld v. SAS Institute, Inc., 147 S.W.3d 672, 679-80 (Tex.App.-Dallas 2004, no pet.); Southwest Guar. Trust Co. v. Hardy Road 13.4 Jt. Venture, 981 S.W.2d 951, 956 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Therefore, we find the trial court abused its discretion in awarding attorney’s fees to ENE. Breitenfeld, 147 S.W.3d at 680 (“attorney’s fees are not authorized where a counterclaim requests a declaratory judgment that is the mirror image of a claim already asserted by an adversary in the suit”). Accordingly, we sustain National Enterprise’s third issue.

Conclusion

Because National Enterprise’s first, second, and third issues are dispositive of this case, we need not consider its other issue. Because we sustained National Enterprise’s third issue, we modify the judgment by deleting the portion awarding $9,500.00 in attorney’s fees to ENE, and affirm the judgment as modified.

      . Other parties include Bedford D. Edwards, Joyce H. Edwards, Galen B. Edwards, Cathy Edwards, Elaine E. Nelson, David Nelson, and Bedford D. Edwards as Trustee. These individuals were partners in E.N.E. Properties, currently a dissolved partnership.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    Stephen Shane SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00102-CR.
    Court of Appeals of Texas, Waco.
    March 23, 2005.

      Sandy S. Gately, Gatesville, for appellant.
    B.J. Shepherd, Hamilton County Dist. Atty., Martin L. Peterson, Hamilton County Asst. Dist. Atty., Meridian, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Stephen Smith was convicted by a jury of tampering with equipment manufactured and used to hold anhydrous ammonia. Tex. Health & Safety Code AnN. § 504.002 (Vernon 2003). Stephen was tried jointly with his brother, Cody Smith. Stephen was subject to punishment for the offense under section 7.02 of the Penal Code. Tex. Pen.Code Ann. § 7.02 (Vernon 2003). He was sentenced to seven years’ confinement. He appeals on two issues: (1) the evidence was insufficient to prove anyone tampered with anhydrous ammonia equipment; and (2) the trial court erred in failing to grant his motion for mistrial.

We will overrule the issues and affirm the judgment.

BACKGROUND

An employee of Watson Farm & Ranch Supply testified that one morning he saw a pickup truck on the property. He saw a man get out the passenger side of the truck and run toward some anhydrous ammonia ■ tanks. He then saw a burst of white gas. The man returned to the pickup which then left the property. Another employee also testified to seeing the cloud of white gas and the man running back to the pickup truck carrying a “bucket.” The manager of the property was alerted and pursued the truck. The truck was eventually stopped by a Hamilton County deputy and the driver and passenger were placed in custody. The driver of the vehicle was Stephen Smith, and the passenger was Cody Smith.

“Tampering”

Stephen argues that the evidence is insufficient to prove he tampered with anhydrous ammonia equipment. Although he does not specify, he seems to be arguing legal, rather than factual, sufficiency. He argues that the acts testified to at trial do not constitute “tampering” within the meaning of section 504.002 of the Health and Safety Code. When reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether a rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Resolution of Stephen’s legal insufficiency argument depends upon our interpretation of “tampers with” in section 504.002. That section provides, in relevant part, that a person commits an offense if he “tampers with equipment manufactured and used to hold, apply, or transport anhydrous ammonia without the express consent of the owner of the equipment.” Tex. Health & Safety Code Ann. § 504.002. The term “tampers with” is not defined by the statute. Absent a definition in the statute, a word will have its plain meaning unless applying that meaning would produce an absurd consequence, or if the language is ambiguous. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Thus we look to the common meaning of term. Black’s Law Dictionary defines “tamper” as “to meddle so as to alter (a thing); esp., to make changes that are illegal, corruptible, or perverting” and “to interfere improperly; to meddle.” Black’s Law Dic-tionaey 1494 (8th ed.2004).

Stephen argues that because there was no testimony that the tank was damaged, altered, or made inoperable, no tampering occurred. However, the evidence at trial showed that Cody caused the tank to release its contents. His conduct was sufficient to constitute improper interference with and meddling with the tank.

The use of the term “tamper” in section 504.002 is analogous to the use of that term in section 28.03 of the Penal Code, prohibiting criminal mischief, and in section 466.309 of the Government Code, prohibiting tampering with lottery equipment. Tex. Pen.Code Ann. § 28.03 (Vernon 2004-05); Tex. Gov’t Code Ann. § 466.309 (Vernon 2004). Courts applying section 28.03 have construed the term “tampers with” broadly in cases where the defendants are charged with tampering with gas or electric meters, tapping into gas or electrical supplies, or interfering with telephone service. See Williams v. State, 596 S.W.2d 862 (Tex.Crim.App.1980) (interfering with telephone service); Howlett v. State, 994 S.W.2d 663 (Tex.Crim.App.1999) (diverting gas from flowing through meter gauge); Robertson v. State, 888 S.W.2d 493 (Tex.App.-Amarillo 1994, pet. ref'd) (diverting electricity from electrical wires); Edmondson v. State 747 S.W.2d 8 (Tex. App-El Paso 1988, pet. ref'd) (diverting gas from a public gas line). In Williams, the Court of Criminal Appeals construed “tampers with” to include “conduct that falls short of damaging the property but nevertheless interferes with the owner’s proprietary rights or abuses the property in a way that diminishes its value.” 596 S.W.2d at 865. “Tampers with” under section 466.309 has been interpreted to include inserting trick money to obtain lottery tickets without paying for them. Doyle v. State, 148 S.W.3d 611 (Tex.App.Austin 2004, pet. ref'd.).

The Legislature’s intent in section 504.002 was not merely to deter physical damage to anhydrous ammonia containers but to prevent the release of a dangerous gas and to assist law enforcement in fighting illegal production of methamphetamine. By meddling with the tank so as to release anhydrous ammonia gas, Cody tampered with equipment used to hold anhydrous ammonia without the consent of the owner of that equipment. Finding the evidence legally sufficient, we overrule this issue.

Undisclosed Evidence

Stephen argues that the trial court erred in failing to grant his motion for mistrial because the State failed to disclose the loss of critical evidence. The evidence at issue was an “Igloo” container. An officer testified that he recovered the container in a bush on the side of the road, that the container was missing a handle, and that a handle fitting the container was found inside the truck. The State offered a photograph of the container, but the container itself had been lost. Stephen argued at trial and argues on appeal that the container was Brady evidence.

To find a Brady violation, an appellant must show that: (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002). Evidence is material if there is a reasonable probability that the outcome of the trial would have been different if the evidence had been disclosed. Id. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id. Whether the evidence is material is viewed in the context of the overall strength of the State’s case. Id. at 613.

Stephen has not met his burden of showing that, in light of all of the evidence, it is reasonably probable that the outcome would have been different had the container been available. He argues that if the actual container had been produced, he would have been able to counter the officer’s testimony that the handle found in the truck fit the container or demonstrate that neither Cody’s nor Stephen’s fingerprints were on the container. Assuming without deciding that the container was evidence favorable to the defense, the testimony regarding the container was not critical to the prosecution’s case. The identification of Stephen and Cody Smith as the persons on the Watson property was established by identification of the blue pickup truck with a roll of carpet in the back and an officer’s testimony that Cody smelled strongly of anhydrous ammonia, that he had a runny nose, and that his eyes were red. Thus, even if the defense were able to disprove any connection between the Smiths and the “Igloo” container, it is unlikely that the outcome of the case would have been different.

Viewed in the context of the State’s overall case, the lost container was not material. The trial court thus did not abuse its discretion in denying the motion for mistrial. We overrule this issue.

CONCLUSION

Having overruled the issues, we affirm the judgment.

      . Cody Smith appealed to this court on identical issues. See Smith v. State, No. 10-04-00103-CR, 2005 WL 675590 (2005).


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    PROVIDENCE HEALTH CENTER a/k/a Daughters of Charity Health Services of Waco; and DePaul Center a/k/a Daughters of Charity Health Services of Waco, Appellants, v. Jimmy and Carolyn DOWELL, Individually and on behalf of the Estate of Jonathan Lance Dowell, Deceased, Appellees.
    No. 10-02-00026-CV.
    Court of Appeals of Texas, Waco.
    March 30, 2005.

      Greg White, Ñaman Howell Smith & Lee, LLP, Andy McSwain, Fulbright Win-niford Bice & Marable, Waco, for appellants.
    Jim Dunnam, Dunnam & Dunnam, LLP, Waco, Sharon L. Cullen, The Mediation Firm, Houston, Vincent Lee Marable, III, Wharton, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

This is an appeal from an adverse judgment in a medical malpractice case. Finding no error, we affirm the judgment.

THE EVENTS

Early on a Saturday, twenty-one-year-old Lance Dowell was taken by Freestone County Sheriffs Deputies to Providence Health Center in Waco (Providence) because he had self-inflicted wounds and was talking about committing suicide. He was seen at the emergency room by Dr. James C. Pettit, who requested a psychological assessment from the DePaul Center (De-Paul), which is affiliated with Providence. Sister Mary Theresa Fox, a joint employee of Providence and DePaul, evaluated Lance’s condition and determined that he was not “actively suicidal.” Dr. Pettit reached the same conclusion. Lance was discharged from the hospital, accompanied by his mother, Carolyn Dowell (Carolyn).

During that same day, Lance went to his mother’s home in Waco and bathed, went to Lake Limestone, went to Fairfield with his brother Larry to a rodeo, and visited with friends. On Sunday he and Larry attended a family reunion and made plans to meet at a party that night. On Sunday evening, Lance hung himself.

THE SUIT

Lance’s parents, Carolyn and Jimmy Dowell (hereinafter collectively referred to as “the Dowells”) sued Providence, De-Paul, and Dr. Pettit under the Texas Wrongful Death Act and the Survival Statute, asserting a claim of medical negligence and a claim under the federal “anti-dumping” statute. A jury found that Lance suffered personal harm as a direct result of the failure to provide an appropriate psychiatric screening evaluation. After finding that the negligence of all three defendants proximately caused the injury in question, the jury apportioned the negligence 20% to Dr. Pettit, 40% to Providence, and 40% to DePaul. Damages were assessed as follows: $100,000 each to the Dowells for past mental anguish and loss of society and companionship; $100,000 each for the same elements in the future; and $400,000 for pain, mental anguish, and funeral and burial expenses as compensation for Lance. The court entered a judgment accordingly.

Dr. Pettit filed a notice of appeal, which we docketed under cause number 10-01-420-CV. Providence and DePaul also filed a notice of appeal, which we docketed under cause number 10-02-026-CV. The causes were argued and submitted on the same day, and the opinions were issued together. We then learned from Dr. Pet-tit’s counsel that he had filed a Chapter 7 bankruptcy proceeding prior to the issuance of our opinions. Because it was void, we withdrew our opinion and judgment in Dr. Pettit’s appeal, and, because our two cases resulted from a single trial court judgment, we also withdrew our opinion and judgment in this cause. The Dowells obtained a release from the bankruptcy stay, which allowed us to reinstate Dr. Pettit’s appeal. However, after reinstatement, we were notified that Dr. Pettit had filed a new bankruptcy proceeding under Chapter 13.

Providence and DePaul are not entitled to benefit from a bankruptcy filing by Dr. Pettit. See Pustejovsky v. Rapid-American Corp. 35 S.W.3d 643, 645 n. 2 (Tex.2000); Lisanti v. Dixon, 147 S.W.3d 638, 641 (Tex.App.-Dallas 2004, no pet.); see also In re Southwestern Bell Tel. Co., 6 S.W.3d 753, 755 (Tex.App.-Corpus Christi 1999, orig. proceeding). The trial court’s judgment allocates the liability of all defendants and meets the criteria for a severance. Accordingly, we sever the Do-wells’ claims against Providence and De-Paul from those against Dr. Pettit and proceed with the decision in this appeal. Tex.R.App. P. 8.3(b).

ISSUES IN THIS APPEAL

Providence and DePaul (hereafter collectively called Providence) assert in five issues: (1) the evidence does not show a sufficient causal connection to hold either of them liable for Lance’s suicide; (2) the court erred in failing to ask the jury whether the Dowells’ negligence in failing to follow the instructions that were given when Lance left the hospital was a proximate cause of his death; (3) because the evidence shows that Lance had a child, the court erred in failing to require the Do-wells to join that child as a party; (4) because no personal representative of Lance’s estate had been appointed, the Dowells had no standing to bring a claim under the survival statute; and (5) no evidence exists to support an award of damages for pain and mental anguish to Lance’s estate.

We will address the issues in this same order.

STANDARD OF REVIEW

We begin by considering the traditional no-evidence review standards, then add the requirements peculiar to medical negligence cases. We note at this point, however, that Providence relies on other pronouncements by the Texas Supreme Court in connection with its attack on causation. We will discuss those decisions in due course.

TRADITIONAL REVIEW STANDARDS

We review no-evidence points by considering only the evidence and all reasonable inferences that support the jury’s finding while disregarding all evidence and inferences to the contrary. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge must fail. Id. If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995). Generally, if the court of appeals sustains a “no evidence” point, it is the court’s duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (quoting Nat’l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)).

A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)).

When we review an “insufficient-evidence” point challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent’s proof, although adequate if taken alone, is overwhelmed by the opponent’s contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515, 519 n. 11 (1991)).

MEDICAL-NEGLIGENCE REQUIREMENT

In a medical-negligence case, the plaintiff is required to show evidence of a “reasonable medical probability” that the injury was proximately caused by the negligence of the defendant. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). There are four elements to be proved: (1) a duty by the physician/nurse/hospital to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 629-30 (Tex.App.-El Paso 2001, pet. denied).

WAS PROVIDENCE’S NEGLIGENCE A CAUSE?

Providence’s first issue attacks the finding of causation, asserting that the evidence does not support a conclusion that any negligence on their part was a “cause in fact” of Lance’s suicide. They say the connection between these defendants and Lance’s suicide is “simply too attenuated to constitute legal cause.”

The components of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). These elements cannot be established by mere conjecture or guess, but must be proven by evidence of probative force. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975); see also Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970) (proof must be “beyond the point of conjecture”); Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex.App.-Waco 1999, pet. denied).

“Cause in fact” means the act or omission was a substantial factor in bringing about the injury and, without it, harm would not have occurred. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001). “Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers her negligent act created for others. Id. at 785. Foreseeability does not require that the person who creates the dangerous situation anticipate the precise manner in which the injury will occur; instead, the injury need only be of a general character that the actor might reasonably anticipate. Id.

The jury answered affirmatively the broad-form question whether Providence’s negligence proximately caused the injury in question. The charge instructed the jury as to the meaning of proximate cause. Providence does not attack the charge or the finding, as such. Rather, it says that two opinions of the Texas Supreme Court that address the element of proximate cause, both discussing Section 431 of the Restatement (Second) of ToRts, justify a finding of no proximate cause as a matter of law.

The Dowells introduced expert testimony on the issue of causation, which was not objected to by Providence and is not attacked on appeal. We measure sufficiency of the evidence by the court’s actual charge, not some other unidentified law, when the opposing party fails to object to the charge. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). On the basis of the expert’s testimony alone, we can determine that the record contains “some evidence” to support the jury’s finding of causation. Orozco, 824 S.W.2d at 556. Furthermore, we cannot say a review of the evidence supporting and opposed to the finding of causation, measured against the definition of proximate cause given to the jury, demonstrates that the finding is clearly wrong and unjust. Cain, 709 S.W.2d at 176; Checker Bag, 27 S.W.3d at 633. With that review under traditional standards in mind, we turn to an evaluation of Providence’s “attenuation” claim.

In Lear Siegler, Inc. v. Perez, Perez was pulling a mobile traffic-control sign manufactured by Lear Siegler, which had malfunctioned at an earlier time. After Perez stopped on the traveled part of the roadway and positioned himself near the sign, he was struck by a vehicle driven by Lerma. Perez later died from the injuries. The Court concluded that the circumstances of Perez’s injuries were too remotely connected with Lear Siegler’s negligence or product defect to constitute legal cause. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991). After discussing Section 431, the court stated:

We recognize there may be cases in which a product defect or a defendant’s negligence exposes another to an increased risk of harm by placing him in a particular place at a given time. Nonetheless, there are certain situations in which the happenstance of place and time is too attenuated from the defendant’s conduct for liability to be imposed.

Id. (Emphasis added). In affirming the trial court’s grant of a summary judgment for Lear Siegler, the court noted, “[i]t is undisputed that Lerma was asleep, and proper operation of the flashing arrow sign would have had no effect on his conduct.” Id.

In Union Pump Co. v. Allbritton, a firefighter was injured when she hopped or slipped off a pipe rack at a chemical plant, after helping successfully extinguish a fire caused by a defective pump manufactured by Union Pump. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 774 (Tex.1995). She asserted that the fire and her injuries would never have occurred “but for” the defective pump. Id. After the trial court’s summary judgment for the defendant was reversed by the court of appeals, the Supreme Court noted that the question was whether Union Pump established that neither its conduct nor its product was a legal cause of Allbritton’s injuries. Id. at 775. “Stated another way, was Union Pump correct in contending that there was no causative link between the defective pump and Allbritton’s injuries as a matter of law?” Id. The Court noted that cause in fact is an element of both proximate cause and producing cause, “including the requirement that the defendant’s conduct or product be a substantial factor in bringing about the plaintiffs injuries.” Id. The Court then said, “[a]t some point in the causal chain, the defendant’s conduct or product may be too remotely connected with the plaintiffs injury to constitute legal causation.” Id. (emphasis added) (citing City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987)). Discussing Lear Siegler, the Court said, “[a]s this Court explained in Lear Siegler, the connection between the defendant and the plaintiffs injuries simply may be too attenuated to constitute legal cause. 819 S.W.2d at 472. Legal cause is not established if the defendant’s conduct or product does no more than furnish the condition that makes the plaintiffs injury possible.” Id. at 776 (emphasis added). The opinion also cites Bell v. Campbell, a two-collision case involving “intervening causes,” as opposed to “concurring causes,” where the Comet observed that “all forces involved in or generated by the first collision had come to rest” before the second collision in which the plaintiffs sustained injuries. Id. (citing Bell v. Campbell, 434 S.W.2d 117, 122 (Tex.1968)).

A third case, recently decided, involves the same question. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794 (Tex.2004). In Mason, the plaintiff was injured while riding as a passenger in a single-car accident. Id. at 796. Both she and the driver, Thomas, had been released from a mental health care facility some twenty-eight hours earlier. Id. She sued her doctor, the driver’s doctor, a nurse, and the health care facility. The trial court granted summary judgment, finding no proximate cause; the court of appeals reversed and remanded for a trial. Id. at 797-98. The Texas Supreme Court noted that Mason did not argue that the defendants “caused Thomas to experience a psychotic episode, drive wildly, or crash the Corvette.” Id. at 801. Thus, by releasing her, they “merely created the condition” in which the accident occurred. Id. at 799.

Lear Siegler, Union Pump, and Mason discuss the concept now asserted by Providence in terms of “attenuation” of causation. That is to say, at some point in the chain of events, the defendant’s negligence and later events are simply too remotely connected for those events to be said to have been “caused” by that negligence. Providence says this is just such a case and that we should make that determination as a matter of law. We do not agree.

Providence points to the “substantial factor” discussions in Lear Siegler, Union Pump, and the Restatement. Union Pump, 898 S.W.2d at 776; Lear Siegler, 819 S.W.2d at 471-72; Restatement (Second) of ToRts § 431 cmt. a (1965). But, “substantial factor” has long been an element of proximate cause in Texas. Union Pump cites City of Gladewater v. Pike, which recites the “substantial factor” definition. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). Pike, in turn, cites McClure v. Allied Stores of Texas, Inc. for the same definition, and McClure cites Texas & Pacific Railway Co. v. McCleery, which states, “Negligent conduct is, in law, a cause in fact of harm to another only if it is a substantial factor in bringing about the harm.” McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980); Texas & Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex.1967). McCleery cites Hopson v. Gulf Oil Corp., a 1951 decision by the Supreme Court, stating: “Two elements or tests of proximate cause are causation and the limitation to foreseeable consequences. As to causation, it is said that if the defendant’s act or omission was a substantial factor in bringing about the result, it will be regarded as a cause, and that ordinarily it will be such a substantial factor if the result would not have occurred without it.” Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355 (1951). Thus, for at least fifty years, “substantial factor” has been a part of the test for determining proximate cause. Furthermore, the Court has observed that the issue of whether a particular act of negligence is a cause in fact of an injury is a particularly apt question for jury determination. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex.1975) (citing PROSSER, Law of ToRts § 41 at 237 (4th ed.1971)). “The question of proximate cause is one of fact particularly within the province of a jury, and a jury finding on proximate cause will be set aside only in the most exceptional circumstances.” Texas Dept. of Transp. v. Olson, 980 S.W.2d 890, 893 (Tex.App.-Fort Worth 1998, no pet.); see also Browning-Ferris, Inc. v. Hobson, 967 S.W.2d 543, 546 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Rodriguez v. Moerbe, 963 S.W.2d 808, 818 (Tex.App.-San Antonio 1998, pet. denied); Potter v. Anthony Crane Rental of Tex., Inc., 896 S.W.2d 845, 850 (Tex.App.-Beaumont 1995, writ denied).

We note that this is a case involving a claim of negligent “omission,” i.e., the failure by Providence to provide an “appropriate psychiatric screening,” rather than a negligent “act” or a product defect. The question we confront is “does the evidence conclusively show that Providence’s medically-negligent omission, as found by the jury, ceased to be a cause in fact of Lance’s suicide because of the passage of time or other factors?” If so, the trial court should have granted Providence’s motion to disregard jury findings or motion for judgment notwithstanding the verdict.

Lear Siegler, Union Pump, and Mason were summary judgment proceedings where the trial court had granted a motion that established lack of causation as a matter of law. Mason, 143 S.W.3d at 797-98; Union Pump, 898 S.W.2d at 774; Lear Siegler, 819 S.W.2d at 472. The Court, of necessity, treated the issue as a question of law in that context. We read the opinions as the Supreme Court saying that a court may, as a question of law, weigh competing policy considerations and define the limits of legal causation by “fixing the line between immediate results and remote results” of wrongful acts. Union Pump, 898 S.W.2d at 775 (quoting Springall v. Fredericksburg Hosp. and Clinic, 225 S.W.2d 232, 235 (Tex.Civ.App.San Antonio 1949, no writ)).

Providence points to these facts: (1) Lance appeared to be perfectly normal when he was discharged, (2) no one knows precisely why he killed himself, (3) thirty-six hours passed between his discharge and the suicide, (4) it is just as likely that a new and unknown event triggered his suicide, (5) a proper exam could not have guaranteed hospitalization — because Lance might not have consented to stay, and (6) hospitalization would not have guaranteed that treatment would have prevented the suicide. None of these factors, nor all of them together, conclusively prove that the negligence attributable to Providence was too remotely connected to Lance’s suicide to constitute legal causation. Thus, we believe that the fact issue as to causation was properly submitted to and decided by the jury. Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 269 (Tex.App.Houston [14th Dist.] 2000, pet. denied).

Although the opinion does not discuss attenuation, we find support for our position in Wilson v. Brister, 982 S.W.2d 42 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). There, Dr. Brister treated his patient, Carr, one time for depression—on October 29, 1991. Wilson, 982 S.W.2d at 43. On November 15, Carr shot herself in the head with a gun given to her by a friend. Id. Wilson, Carr’s father, sued Dr. Brister in a wrongful death and survival action, complaining that the doctor’s omissions were a proximate cause of his daughter’s death. Id. Dr. Brister moved for summary judgment on the basis that Wilson could not prove causation, and the court granted the motion. Id. After noting that Dr. Blister’s deposition stated that the goal of hospitalizing a patient with suicidal ideations was to prevent suicide, that Carr’s personal history increased the risk of suicide, and that the doctor said she would have hospitalized Carr if Carr were imminently suicidal, but denied that she was, the San Antonio Court examined the claim that the friend’s action in giving Carr a gun while knowing that she intended to commit suicide was a break in the causation chain. Id. at 44. Also noting that when criminal conduct is foreseeable that conduct does not truncate a previous tortfeasor’s liability, the court reversed the summary judgment, stating: “Though Dr. Brister offered proof of an intervening cause, she did not conclusively prove that her negligent acts or omissions were not a concurring cause. Because a causation issue remained, [Dr. Brister] did not prove entitlement to summary judgment as a matter of law.” Id. at 45.

We overrule issue one.

WAS THE PARENTS’ NEGLIGENCE A CAUSE?

At the conclusion of the trial, Providence requested that the court inquire of the jury whether any of the Do-wells’ actions during the time between Lance’s visit to the hospital and his suicide were a cause of his suicide. The Dowells respond by saying (1) they had no duty to their adult child with respect to this issue and (2) Lance’s actions were not a proper subject of inquiry because of section 93.001 of the Civil Practice and Remedies Code, which provides that suicide is not a defense if it was caused in whole or in part by the defendant’s failure to comply with an applicable legal standard. Tex. Civ. Prac. & RehCode Ann. § 93.001 (Vernon Supp.2004-05).

Providence does not address the question of duty. The Dowells cite two cases: Boyd v. Texas Christian University, where the Fort Worth Court declined to impose a duty on the University to control, supervise, or discipline its adult student athletes, and Villacana v. Campbell, where, in a suit brought by two murder victims’ parents, the Corpus Christi Court affirmed a summary judgment in favor of parents whose son, while living with them, committed the murders. Boyd v. Texas Christian Univ., 8 S.W.3d 758, 760 (Tex.App.-Fort Worth 2000, no pet.); Villacana v. Campbell, 929 S.W.2d 69, 75-77 (Tex.App.-Corpus Christi 1996, writ denied). We will follow the reasoning of the Corpus Christi Court on the issue of negligent control:

Liability for negligence requires the existence of a legally cognizable duty. The court decides whether a duty exists under the facts surrounding the occurrence in question. A court can, therefore, properly dispose of a negligence case by summary judgment if it finds no duty in the actor even assuming all facts alleged in the petition are true.
There is no general duty to control the conduct of third persons. This rule applies even if the actor has the practical ability to control the third person. The . law creates exceptions to this rule when the actor and the third person have a special relationship which imposes a duty upon the actor to control the third person’s conduct. Included within these special relationships is that of parent/child.
A child is a “person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.” TEX. FAM. CODE ANN. § 11.01(1) (repealed 1995) (recodified at § 101.003(a) (Vernon Supp.1996)). An adult is any other person. Id. (recodi-fied at § 101.003(c)). No current Texas law imposes liability on a parent for the actions of an adult child. We hold that, as a matter of law, appellants have no cause of action for negligent control, and the trial court’s grant of summary judgment was proper.

Villacana, 929 S.W.2d at 75 (case citations omitted). We likewise find no duty on the part of Lance’s parents to control his actions. We overrule issue two.

A MISSING BENEFICIARY

STANDING TO SUE

Issue three asserts that the judgment is improper because the Dowells did not assert a claim on behalf of Lance’s child, Alec. In issue four, Providence questions the Dowells standing to bring this suit.

The jury charge specifically asked about damages to Jimmy and Carolyn by name. Alec was not mentioned. Without evidence of any interaction or familial relationship between Alec and Lance and without evidence that Lance ever supported or was capable of financially supporting Alec, it would not be improper to proceed without Alec because he would not be entitled to any benefits. See Henwood v. Richardson, 163 S.W.2d 256, 258 (Tex.Civ.App.-Texarkana 1942, writ ref'd w.o.m.). Based on Plaintiffs Third Amended Petition, the record also demonstrates that the suit was brought on behalf of all parties entitled to bring a wrongful death suit. Texas Health Enter., Inc. v. Geisler, 9 S.W.3d 163, 169-70 (Tex.App.-Fort Worth 1999, pet. dism’d).

The Wrongful Death Act provides a three-month window for any statutory beneficiary to file an action “for the benefit of all.” Tex. Crv. PRAC. & Rem.Code Ann. § 71.004(b), (c) (Vernon 1997). If none of the statutory beneficiaries bring an action within the three months, the executor or administrator must bring the action unless requested not to do so by any of the statutory beneficiaries. Id. As parents, Jimmy and Carolyn were entitled to bring the action individually. As the administra-trix, Carolyn was also entitled to bring the action on behalf of the estate. Sincé Alec, or his next friend, did not bring a suit within three months, did not object to Carolyn filing as administratrix, and declined an invitation to join the Dowell’s case, there is support for the trial court’s not abating the wrongful death suit. See Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 664 (Tex.App.-San Antonio 1999, pet. dism’d).

We overrule issues three and four.

EVIDENTIARY SUPPORT FOR FINDING OF DAMAGES FOR PAIN AND MENTAL ANGUISH

Providence’s fifth and final issue asserts there is no evidence to support the jury’s finding of damages for pain and mental anguish.

In question 5, which asked about the amount of damages that would compensate Lance for (a) pain and mental anguish and (b) funeral and burial expenses, the jury’s answer was $400,000. The funeral and burial expenses were $6,815.

Damages for pain and mental anguish may be proven by circumstantial evidence. Providence’s argument was rejected by the Corpus Christi Court of Appeals in Spohn Hospital v. Mayer, 72 S.W.3d 52, 68 (Tex.App.-Corpus Christi 2002), rev’d on other grounds, 104 S.W.Sd 878 (Tex.2003). There, the court found that the medical examiner’s certificate of death that stated “asphyxia by hanging” was some evidence of probative value that would support the jury’s finding of damages for pain and mental anguish suffered by the deceased prior to his death. Id. As the Dowells point out, Lance’s death certificate is almost identical to the certificate in Mayer.

We overrule issue five.

CONCLUSION

We sever the Dowells’ claims against Providence and DePaul in this Cause from those against Dr. James C. Pettit pending in Cause No. 10-01-00420-CV. Having overruled all issues, we affirm the trial court’s judgment as to Providence and De-Paul.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

This is an appeal of a wrongful death and survival suit. We should reverse and render. Because the majority does not do so, I respectfully dissent.

PROCEDURAL PRELUDE

In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.

Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the pri- or opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex.2000).

This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court’s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.

PRIOR HISTORY OF TfflS APPEAL

The Court’s opinion affirming the trial court’s judgment, the judgment, and Chief Justice Gray’s dissenting opinion, all dated October 6, 2004, were withdrawn November 10, 2004 and the Court’s opinion, Chief Justice Gray’s dissenting opinion, and the judgment of this date are substituted therefor.

With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.

The Dissenting Opinion

In Appellants’ first issue, they contend that there was no evidence of proximate cause and no evidence that Appellants failed to perform an appropriate psychiatric screening examination. See 42 U.S.C. § 1395dd(a) (2000).

Appellees contend that Appellants waived their issue by faffing to object to the testimony of one of Appellees’ expert witnesses. The eases cited by Appellees, to the extent that they are on point, concern the waiver of objections to the methodological reliability of expert testimony, not the sufficiency of the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998); Crown Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex.App.-Houston [14th Dist.] 2001), rev’d, 136 S.W.3d 227 (Tex.2004); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n. 2 (Tex.App.-San Antonio 1998, pet. denied). By making an objection to the charge, filing a motion to disregard jury questions and for judgment notwithstanding the verdict, and filing a motion for new trial, all on the grounds that there was no evidence of proximate cause, Appellants preserved their no-evidence complaint. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex.2004); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992).

Lance Dowell was admitted to the Providence Health Center emergency room for treatment of shallow self-inflicted cuts to his wrists. A nurse employed by Appellants performed a psychological evaluation of Lance. Appellees contend that Appellants failed to promulgate or enforce policies for psychological screenings, that the nurse failed to perform an appropriate screening, and that these failures caused Lance’s death. The undisputed evidence was that when the nurse evaluated Lance, Lance was lucid, calm, remorseful, stable, and not actively suicidal. There is no evidence that, if Appellants had recommended admission to the DePaul Center, a psychiatric hospital, Lance would have agreed or could have been compelled to be admitted. After Lance was released from Providence to Appellees, and until his death, Appellees saw nothing out of the ordinary about Lance except that he was “more withdrawn.” The day that he was released from the hospital, Lance visited with his family, went to a rodeo, and visited with friends. The next day, he had lunch with his family and helped a friend bale hay. About a day and a half after he left Providence, Lance hanged himself. Appellees’ expert testified, at most, that had Lance been admitted to DePaul the probability that he would commit suicide upon his release would have been reduced.

Under these facts, there is no evidence that Appellants’ conduct was a substantial cause of Lance’s death. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Ramos, 143 S.W.3d 794, 798-800 (Tex. 2004); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex.2002); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex.1998). Accordingly, we should sustain Appellants’ first issue.

We should, then, after sustaining Appellants’ first issue, reverse and render judgment that Appellees take nothing from Appellants. Therefore, we should not consider Appellants’ other issues.

Because the disposition of the first issue would be dispositive of the appeal, I will not discuss my disagreements, and there are many, with the remainder of the majority’s opinion. I note only in passing that an estate, by that name, is not a proper party to litigation. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n. 2 (Tex.2000); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975). I also note that two notices of appeal from the same judgment should bear the same docket number on appeal. Tex.R.App. P. 12.2(c). Docketing this cause and Cause No. 10-01-00420-CV, styled Pettit v. Dowell, as two separate appeals was improper.

      . As a result of this severance, the appeal with respect to Dr. Pettit, No. 10-01-00420-CV in this court, remains abated pending the resolution of the bankruptcy proceeding. Vaughn v. Ford Motor Co., 91 S.W.3d 387, 388 n. 1 (Tex.App.-Eastland 2002, pet. denied).

      . Only the fourth element is at issue in this appeal. Providence does not attack the finding that Sister Mary Theresa Fox failed to use ordinary care or that an injury occurred.

      . We also note Justice Cornyn’s lengthy concurring opinion, in which he disagrees with the Court’s cause-in-fact analysis and concludes that such questions would be better analyzed under the foreseeability element of proximate cause and the "damages occurring in a natural and continuous sequence” inquiry under producing cause. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 777-86 (Tex.1995) (Cornyn, J. concurring).

      . The specific monetary awards against Providence and DePaul, respectively, are set out on pages 9-11 of the judgment. Costs, pre- and post-judgment interest, and entitlement to writs and processes are adjudged against these parties on pages 13-14 of the judgment. Providence and DePaul shall pay all costs of this appeal.

      . See also Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex.2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex.2004).


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    Andrew Niles GORDON, Appellant, v. David Drew GORDON, Appellee.
    No. 10-05-00051-CV.
    Court of Appeals of Texas, Waco.
    March 30, 2005.
    Andrew Niles Gordon, Huntsville, pro se.
    Vance Dunnam, Jr., Dunnam & Dun-nam, LLP, Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

PER CURIAM.

Appellant, Andrew Niles Gordon, attempts an appeal from a judgment dated November 9, 2004, in favor of Appellee, David Drew Gordon. On December 23, Andrew filed with the trial court a pro-se motion for extension of time to file his brief. He mailed an “Appellant’s Brief’ to this court on January 11, 2005, and we filed it on January 25. Because the document evidenced Gordon’s desire to appeal, we docketed the appeal even though we had no record of a separate notice of appeal having been filed. See In re B.G., 104 S.W.3d 565, 568 (Tex.App.-Waco 2002, order). Also on January 25, the clerk of this Court sent a letter to Andrew stating “it appears that Gordon’s appeal is subject to dismissal for want of jurisdiction because the appeal was filed more than 30 days after the date the judgment was signed. Therefore, the Court may dismiss the appeal, unless, within 10 days after the date of this letter, a response is filed showing grounds for continuing the appeal.” On February 1, the clerk of this Court sent a letter to Andrew stating that the original filing fee of $125.00 is past due, and payment must be received within 10 days or “this cause will be presented to the Court for dismissal of this appeal in accordance with Tex.R.App. P. 42.3(c).” Andrew sent a response on February 7 (filed on February 11), stating that he filed his appeal in a timely manner, but he filed it with the trial court. The trial court never received a notice of appeal. In his February 7 response, he also included a “Motion for Leave to Proceed In Forma Pauperis.”

An affidavit of indigence must be filed in the trial court with or before the notice of appeal. Tex.R.App. P. 20.1(c)(1). The appellate court may grant an extension of time to file the affidavit, if, within 15 days after the deadline for filing the affidavit, a motion for extension is filed. Id. 20.1(c)(3). Even if we consider the motion for extension of time to file his appellant’s brief, filed on December 23, 2004, or the “Appellant’s Brief,” mailed on January 11, 2005, as the notice of appeal, Andrew’s affidavit of indigence was not filed “with or before the notice of appeal.” Also, considering either filing as a notice of appeal, the affidavit was not filed within 15 days of these filings. Thus, Andrew’s affidavit of indigence is untimely, and we dismiss this appeal for failure to comply with a notice from the clerk to pay the filing fee. See id. at 42.3(c).

The clerk is authorized to write off the filing fee as uncollectible.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

Very few documents have been filed or received at this point in this appeal. From what we have, I have been able to piece together the following time-line:

Date Description
10/29/04 Docket entry of hearing
11/02/04 Motion for New Trial
11/02/04 Motion to Reinstate
11/08/04 Notice of Appeal
11/09/04 Judgment signed
12/23/04 Motion Extension of Time to File Brief
(12/17/04) (mailed above motion)
02/07/04 Appellant’s Brief filed
02/07/04 Appellant’s Motion for Leave to Proceed in Forma Pauperis
02/07/04 Declaration of Inability to Pay Cost

The motion for new trial and the notice of appeal both appear to be prematurely filed as they were filed prior to the signing of the judgment. Tex.R.App. P. 12.1 and 12.2. But there can be no question the notice of appeal was timely for the purpose of invoking our jurisdiction. Tex.R.App. P. 27.1.

But the Court’s holding oveirules the procedure we followed in In the Interest of K.K., L.M., M.M., and T.K., 10-04-00303-CV (letter order) that allowed a late filed indigence affidavit after the receipt of a reasonable explanation and reset the timetable to contest that affidavit. I am very reluctant to overrule a procedure so recently established. But I will join the decision, making it a unanimous holding that if the indigence affidavit is not timely filed, and no extension to consider the late filed indigence affidavit is timely filed, the case must be dismissed if the filing fee remains unpaid.

With these remarks, I join the Court’s opinion and judgment.

      . So, contrary to the concurring opinion’s implication, we could not imply a motion to extend.


author: FELIPE REYNA, Justice.

text:
    Richard SCOTT, Appellant, v. STATE of Texas, Appellee.
    No. 10-01-00077-CR.
    Court of Appeals of Texas, Waco.
    April 13, 2005.
    Discretionary Review Refused Sept. 28, 2005.
    Rehearing Overruled April 26, 2005.

      Richard Scott, Hamilton, pro se.
    B.J. Shepherd, Bosque County Dist. Atty., Martin L. Peterson, Bosque County Asst. Dist. Atty., Meridian, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Richard Scott of securing the execution of a document by deception. The court assessed his punishment at one year’s confinement in a state jail and a $2,000 fine. Scott represents himself on appeal and has failed to file a brief. We have reviewed the record for unassigned fundamental error, and having found none, we will affirm.

Background

The indictment alleges in pertinent part that Scott:

with intent to defraud and harm another, by deception caused or induced Debbie Rudolph, a public servant, to file or record a purported judgment of a purported judicial officer of a purported judicial entity that is not expressly created or established under the constitution or laws of this state or of the United States.

The indictment charges an offense under section 32.46 of the Penal Code, which provides in pertinent part:

(a) A person commits an offense if, with intent to defraud or harm any person, he, by deception:
(2) causes or induces a public servant to file or record any purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of:
(A) a purported court that is not expressly created or established under the constitution or the laws of this state or of the United States;
(B) a purported judicial entity that is not expressly created or established under the constitution or laws of this state or of the United States; or
(C) a purported judicial officer of a purported court or purported judicial entity described by Paragraph (A) or (B).

Tex. Pen.Code Ann. § 32.46(a)(2) (Vernon 2003).

Scott’s right to counsel was addressed at length during several pretrial hearings. Scott filed a motion alleging that he was indigent and requesting funds to hire counsel of his own choosing. Scott also filed a motion to obtain counsel of his own choosing who is not a member of the State Bar. The court denied these motions.

The State sent a letter to the trial judge asking the judge to plainly admonish Scott on the record regarding the dangers and disadvantages of self-representation because to that point Scott had not clearly and unequivocally waived his right to counsel. According to this letter, Scott advised the court in an August 22, 2000 hearing that he did not want court-appointed counsel “because he thought such counsel would betray him or ‘serve the court’s interest.’ ” In response, Scott filed a pleading asserting that he had not “waived his right to counsel of his choice, who is not a lawyer or member of the Texas BAR Association.”

The court allowed Scott to complete an application for court-appointed counsel. However, Scott filed a motion to recuse, which was referred to another judge and denied. In the affidavit supporting the recusal motion, Scott notes that the “court has repeatedly lectured the defendant on the supposed vital importance of his allowing the court to appoint an attorney to represent him.”

The judgment recites that Scott appeared without counsel at trial, “the Court having previously determined that Defendant knowingly and intelligently asserted his right to self-representation and, though claiming indigency, refused to request appointment of counsel or comply with the requirements of art. 26.04(c) ... of the Code of Criminal Procedure.”

Appellate History

Scott sought a free appellate record and the appointment of appellate counsel due to his alleged indigence. The trial court denied Scott’s indigence claim because Scott refused to testify under oath or by affirmation because of his religious beliefs. This Court reversed the indigence ruling and remanded the matter to the trial court for further consideration. See Scott v. State, 80 S.W.3d 184 (Tex.App.-Waco 2002, pet. ref'd).

On remand, the trial court received testimony and evidence from Scott and others. Scott’s mother-in-law testified that he owns a home which she gave him and which is unencumbered. The State presented evidence that the appraised value of this home is $26,220. The trial court signed an order denying Scott’s indigence claim because: (1) he owns property worth more than $20,000; and (2) he has made no effort to seek employment. This Court affirmed this order in an unpublished opinion. See Scott v. State, No. 10-02-00350-CR, 2004 WL 691685 (Tex.App.-Waco Mar. 31, 2004, pet. dism’d, untimely filed) (not designated for publication).

Thereafter, the Clerk of this Court notified Scott that he must pay the reporter’s fee for preparation of the reporter’s record or the appeal would be submitted on the clerk’s record alone. Despite being given ample opportunity to do so, Scott did not pay the fee, and the Clerk notified him that the appeal would be submitted on the clerk’s record alone. See Tex.R.App. P. 37.3(c).

The Clerk then notified Scott that his brief was due within thirty days. After this deadline passed, the Clerk notified Scott that his brief must be filed within fourteen days or the appeal may be considered without briefs or dismissed for abuse of the judicial process. See Lott v. State, 874 S.W.2d 687, 688 (Tex.Crim.App.1994); Peralta v. State, 82 S.W.3d 724, 725 (Tex.App.-Waco 2002, no pet.); see also Brager v. State, No. 0365-03, 2004 WL 3093237 (Tex.Crim.App. Oct.13, 2004) (not designated for publication).

Scott filed a motion to stay the appeal pending the resolution of a habeas proceeding in the trial court. This Court denied Scott’s request, and he filed an interlocutory “appeal” from the denial by this Court. The Clerk forwarded Scott’s appeal and the record to the Court of Criminal Appeals, which concluded that Scott’s appeal did not invoke its jurisdiction. The Clerk of this Court then notified Scott that he had thirty days to file the appellant’s brief, again warning Scott that, if he failed to do so, the appeal may be considered without briefs or dismissed for abuse of the judicial process. Id.

After Scott failed to file an appellant’s brief, the appeal was submitted without briefs.

Should The Appeal Be Dismissed?

Rule of Appellate Procedure 38.8(b) generally requires an appellate court to abate an appeal to the trial court when the appellant’s brief in a criminal case is not filed. However, Rule 38.8(b) does not apply when the appellant is representing himself. See Lott, 874 S.W.2d at 688 n. 2; Wade v. State, 31 S.W.3d 723, 725 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (per curiam); Coleman v. State, 774 S.W.2d 736, 738-39 (Tex.App.-Houston [14th Dist.] 1989, no pet.).

A criminal appeal may not be dismissed because of an appellant’s failure to file his brief. Tex.Code CRiM. PROC. Ann. art. 44.33(b) (Vernon 1979); cf. Tex.R.App. P. 38.8(a)(1) (authorizing dismissal of civil appeal if appellant fails to file brief and fails to reasonably explain such failure). However, a criminal appeal may be dismissed under rare circumstances for bad-faith abuse of the judicial process. See Brager, 2004 WL 3093237, at *1-3; see also Peralta, 82 S.W.3d at 725.

Scott has filed a significant number of ancillary pleadings and proceedings during the course of this appeal. Thus, it could be argued that he has engaged in dilatory tactics and abuse of the judicial process rather than seriously pursuing his appeal. Cf. id. A finding that he has done so would enable this Court to dismiss the appeal. See Brager, 2004 WL 3093237, at *3; Peralta, 82 S.W.3d at 725. However, we decline to do so.

As the Court of Criminal Appeals emphasized in Brager, the dismissal of an appeal on this basis should be limited to “the most extreme circumstances.” Brager, 2004 WL 3098237, at *6. Although Scott’s case arguably tests the limits for what constitute such circumstances, we will not dismiss his appeal. Rather, we will review the limited record available to us for unassigned fundamental error. See Lott, 874 S.W.2d at 688; Carroll v. State, 75 S.W.3d 633, 634 (Tex.App.-Waco 2002, no pet.); Wade, 31 S.W.3d at 725.

Fundamental Error

The Court of Criminal Appeals has identified a limited number of errors which are considered “fundamental.” The Court has identified three categories of fundamental error. They are (1) the denial of absolute, systemic requirements, (2) the violation of rights which are waivable only, and (3) errors recognized by the legislature as fundamental. See Saldano v. State, 70 S.W.3d 873, 887-88 (Tex.Crim.App.2002) (citing Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993)).

In Saldano, the Court enumerated the following “fundamental errors”:

• absence of jurisdiction over the person of the defendant;
• absence of subject-matter jurisdiction;
• prosecution under an ex post facto law;
• denial of the right to counsel;
• denial of the right to a jury trial;
• denial of 10 days’ preparation before trial for appointed counsel;
• holding trials at a location other than the county seat;
• comments by a trial judge which taint the presumption of innocence; and
•jury charge errors resulting in egregious harm.

See Saldano, 70 S.W.3d at 887-89. We will review the clerk’s record for any of these errors.

The presentment of an indictment invests the trial court with jurisdiction over the person of the defendant. Olivo v. State, 918 S.W.2d 519, 524-25 (Tex.Crim.App.1996); accord Ramirez v. State, 105 S.W.3d 628, 629 (Tex.Crim.App.2003). District courts have subject-matter jurisdiction over felony cases. Tex.Code CRIM. PROC. Ann. art. 4.05 (Vernon 2005).

The indictment in this case charges Scott with the commission of a state jail felony. Thus, the indictment invested the trial court with jurisdiction over Scott’s person and over the subject matter of the case.

The statute under which Scott was prosecuted was enacted in 1997. See Act of May 10, 1997, 75th Leg., R.S., ch. 189, § 2, 1997 Tex. Gen. Laws 1045, 1046 (amended 2003) (current version at Tex. Pen.Code Ann. § 32.46 (Vernon Supp.2004-2005)). Scott committed the offense in 2000. Thus, he has not been prosecuted under an ex post facto law.

The trial court labored diligently to ensure that Scott’s right to counsel was scrupulously honored. Ultimately however, Scott refused to permit the court to appoint an attorney to represent him. Moreover, Scott is not indigent. The trial court gave Scott a more-than-reasonable opportunity to hire his own attorney. See Tex. Code Crim. PROC. Ann. art. 1.051(e) (Vernon 2005). Thus, Scott’s right to counsel has not been denied.

Scott requested and received a jury trial. Although it may be noted that the jury did not assess Scott’s punishment, his jury request did not seek jury sentencing. See Tex.Code Ceim. PROC. Ann. art. 37.07, § 2(b) (Vernon Supp.2004-2005). Moreover, there is no constitutional right to jury sentencing. See McMillan v. Pa., 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986); Martin v. State, 753 S.W.2d 384, 388 (Tex.Crim.App.1988); Martinez v. State, 66 S.W.3d 467, 471 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).

Because Scott did not have appointed counsel, the ten days’ preparation time required by article 1.051(e) does not apply. Scott himself had more than ten days’ notice before trial.

Scott was tried at the county seat.

Because Scott has failed to pay the reporter’s fee for preparation of the reporter’s record, we cannot find that the trial court made any comments which improperly tainted the presumption of innocence.

Finally, we have reviewed the jury charge and find it to be substantially correct.

Conclusion

We have reviewed the clerk’s record for unassigned fundamental error. Having found none, we affirm the judgment.


text:
    SAN SABA ENERGY, L.P., R.L. Zinn, Ltd., Gilbert Goldstein, and Nanzin Family Limited Partnership, Appellants, v. Charles T. McCORD, III, McCord Production, Inc., and McCord Investments, Inc., Appellees.
    No. 10-03-00159-CV.
    Court of Appeals of Texas, Waco.
    April 13, 2005.
    Rehearing Overruled May 24, 2005.

      Michael T. Trefny, Fant & Burman, LLP, Houston, for appellants.
    Dick Watt, Matthew B. Henneman, Watt Beckworth & Thompson, Houston, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

San Saba Energy, L.P. and others (collectively referred to as “San Saba”) filed suit against Charles T. McCord, III, McCord Production, Inc., and McCord Investments, Inc. (collectively referred to as “McCord”) alleging that McCord breached two contracts executed in connection with the parties’ agreement to jointly develop their oil and gas interests within a defined area of mutual interest (the “AMI”) and that McCord “engaged in a plan and scheme to defraud” San Saba out of additional mineral interests San Saba would have been entitled to under the contracts. The court granted McCord’s summary judgment motion and rendered a take-nothing judgment against San Saba.

San Saba contends in four issues that the court erred by granting McCord’s summary judgment motion because: (1) the parties’ contracts required McCord to offer San Saba a proportional interest in certain oil and gas interests which McCord acquired (or acquired the right to acquire) in a 605-acre tract which lies within the AMI; (2) a genuine issue of material fact remains on the question of whether McCord acquired oil and gas interests within the AMI subject to the parties’ contracts; (3) a genuine issue of material fact remains on the question of whether McCord participated in a plan and scheme to defraud San Saba out of this proportional interest; and (4) a genuine issue of material fact remains on the question of whether San Saba suffered damages.

Factual Background

In November 1997, San Saba, McCord, and others signed a purchase and participation agreement and a separate operating agreement with the Louisiana Land and Exploration Company (“LLEC”) whereby the former parties conveyed to LLEC a 75% working interest in the oil, gas, and other minerals in the AMI. Under the terms of these agreements, LLEC (the operator) would drill an initial well at its own expense. If the initial well was not a dry hole, then each of the other parties (the non-operators) could elect to participate in the completion of the initial well, each participant thereafter bearing its proportionate share of expenses.

The agreements also require each of the parties to share any additional mineral interest they acquired in the AMI. However, each agreement describes this obligation differently. Paragraph 1.2 of the purchase and participation agreement defines “Additional AMI Interests” as “any additional oil, gas or mineral interest or right to acquire such interest covering any portion of the AMI, other than the Leases and the Additional Leases.”

Paragraph 3.4 of the purchase and participation agreement provides:

3.4 Additional AMI Interests. Any Additional AMI Interest acquired by LL & E or any Seller shall be shared by LL & E and Sellers pursuant to Section XV.A. of the Operating Agreement, which Section provides, among other things, that the persons or entities specified, and in the proportions set out, in Schedule “6” hereto shall be entitled to receive, at no cost to them and without regard to any working interest participation election made by them or any other party pursuant to such Section XV.A, an overriding royalty interest in the lands covered by any leasehold interest acquired as an Additional AMI Interest equal to the difference between 25% and the burdens of record existing on any such Additional AMI Interest, as more particularly described in such Section XV.A. and such Schedule “6.” LL & E agrees to use reasonable efforts to obtain the lowest royalty burden possible when it acquires any Additional AMI Interest.

Section XV.A. of the operating agreement also describes the parties’ respective obligations with regard to additional AMI interests. This section provides in pertinent part:

Except in connection with the last paragraph of this Section A, should any party hereto acquire a lease interest, royalty, overriding royalty, or mineral right affecting any lands within the AMI or acquire the right to acquire any such interest (ie., by farmin), such party (hereinafter called the “Acquiring Party ”) shall immediately give written notice thereof to the other parties, together with all pertinent details and information, including (for illustrative purposes) cost of acquisition, royalty, overriding royalty, or other such burdens or unusual obligations affecting such interest or the right to acquire the same. Should any party acquire any interest (or acquire the right to acquire an interest) that covers lands situated partially within and partially outside of the AMI, then the provisions of this Article XV.A shall apply to such interest- or right both within and outside of the AMI as a whole.
The party (or parties) to whom such notice is given shall have a period of twenty (20) days exclusive of Saturdays, Sundays, or legal holidays after receipt of such notice to evidence, in writing, whether or not it elects to acquire its proportionate interest (in the same proportion that is set forth on Exhibit “A” III.D for such person) for payment of a like proportion of the acquisition costs,

(footnote added).

The purchase and participation agreement and the operating agreement are attached to each other as exhibits, and each is incorporated by the other. Paragraph 4.20 of the purchase and participation agreement provides, “In the event of a conflict between the provisions of this Agreement and those of the Operating Agreement, the provisions of this Agreement shall control.”

In March 1998, McCord entered a program agreement with O’Sullivan Oil & Gas Company, Scully Oil & Gas Company, and others. Under this agreement, O’Sullivan agreed “to identify and evaluate investment opportunities in the oil and gas industry.” McCord agreed to provide operating capital, in exchange for which McCord received “the right to participate in any Investment Opportunity that has been identified and selected for acquisition by this Program, in any amount up to an undivided 25% of the interest to be acquired.” The program agreement further provides:

With respect to each Investment Opportunity acquired by this Program, each party electing to participate and participating in that acquisition shall (a) be deemed the owner of the undivided interest therein that he or it is entitled to take or has elected to take, as the case may be, and (b) shall be entitled to receive from O’Sullivan, at such time as he or it so elects, an assignment (recordable assignment if the interest can be established as a matter of public record) of his pro rata part of any oil and gas lease, contractual right, program partnership, membership, corporate stock acquired as the Investment Opportunity, and (c) shall be free to deal with its pro rata undivided interest therein either with or independently of this Program, as it chooses.

Pursuant to the program agreement, Osprey Resources, Inc. purchased the 605-acre Perez ranch and certain royalty interests, which lay within the AMI. In addition, O’Sullivan acquired an oil and gas lease conveying the mineral estate in and under the Perez ranch which was originally executed in favor of the Sue-Ann Oil & Gas Company. O’Sullivan notified McCord of these acquisitions in June or July of 1998, and McCord agreed to participate in them.

McCord paid its pro rata share of the acquisition costs for the Perez ranch and the Sue-Ann lease. In August 1998, McCord determined that the Perez ranch lay within the AMI and notified O’Sullivan that it had elected to not participate in the ownership of the surface and mineral estates which had been acquired. O’Sullivan advised that it was about to sell these interests and suggested that McCord accept its pro rata share from the proceeds of the sales as reimbursement. McCord agreed to this arrangement.

O’Sullivan assigned a portion of the Sue-Ann lease that same month to Pursuit Exploration Company, another party to the purchase and participation agreement and the operating agreement. O’Sullivan assigned to Pursuit the oil and gas leasehold interest “lying below the subsurface depth of 9,765 [feet].” O’Sullivan sold the surface estate in November. O’Sullivan reimbursed McCord for 25% of the proceeds from these conveyances.

Because Pursuit Exploration was a party to the purchase and participation agreement and the operating agreement, it notified the other parties of its acquisition of that portion of the Sue-Ann leasehold lying beneath 9,765 feet. McCord elected to participate in the lease. San Saba declined.

Procedural Background

San Saba alleges in its eighth amended petition that McCord breached the parties’ agreements by failing to offer a proportional share of the interests and/or rights of acquisition which McCord acquired in the surface and mineral estates of the 605-acre tract. San Saba alleges that McCord engaged in “an elaborate sham” with Pursuit Exploration, O’Sullivan, and Scully to defraud San Saba out of the mineral interests it would have otherwise been entitled to under the agreements.

McCord filed a motion for summary judgment alleging: (A) “engaging in a plan or scheme to breach a contract is not a valid cause of action”; (B) under the terms of the joint operating agreement, there was no breach because (1) McCord never acquired title to any interest in the 605-acre tract, (2) McCord never acquired any “farmin’’ rights in the 605-acre tract, and (3) the purchase and participation agreement did not change McCord’s obligations with respect to additional mineral interests acquired in the AMI; and (C) there is no evidence that San Saba suffered damages as a result of McCord’s conduct.

In response, San Saba contended: (A) the terms of the purchase and participation agreement control over the terms of the operating agreement with respect to additional mineral interests acquired in the AMI; (B) a genuine issue of material fact remains on the question of whether McCord acquired an interest which he had an obligation to offer to the other parties under the terms of the agreements; (C) a genuine issue of material fact remains on the question of whether McCord conspired with others to defraud San Saba; and (D) a genuine issue of material fact remains on the amount of profits San Saba lost as a result of McCord’s conduct.

Breach of Contract Claim

San Saba contends in its first and second issues that a genuine issue of material fact remains on the question of whether McCord acquired (or acquired the right to acquire) an oil and gas interest in which the parties’ contracts required McCord to offer San Saba a proportional share. McCord responds that no fact issue exists because the agreements required it to offer a proportional share of additional interests to the other parties only if it acquired actual title to such additional interests or if it acquired a farm-in interest.

To resolve these issues, we must first determine what obligations the parties’ agreements imposed in connection with the acquisition of additional mineral interests. The purchase and participation agreement defines additional mineral interests in pertinent part as “any additional oil, gas or mineral interest or right to acquire such interest covering any portion of the AMI.” Conversely, the operating agreement defines the requisite additional interests as “a lease interest, royalty, overriding royalty, or mineral right affecting any lands within the AMI or acquire the right to acquire any such interest (i.e., by farmin).”

Because the operating agreement uses the descriptive term “i.e., by farmin” to modify the phrase regarding the acquisition of “the right to acquire” an additional mineral interest in the AMI, it contains a more restrictive definition of the requisite additional interests than does the purchase and participation agreement. See U.S. v. King, 849 F.2d 1259, 1260 (9th Cir.1988) (quoting H.W. Fowler, A Dictionary of Modern English Usage 263 (Sir Ernest Gowers, rev. ed., Oxford U. Press 1988)) (other citations omitted); see also Intel Corp. v. Broadcom Corp., 172 F.Supp.2d 478, 495 (D.Del.2001) (mem.); Redd v. Ingram, 207 Va. 939, 154 S.E.2d 149, 151 (1967).

“[A]greements executed at the same time, with the same purpose, and as part of the same transaction, are construed together.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig.proeeeding).

Here, both agreements provide that the terms of the purchase and participation agreement control in cases of conflict. Therefore, the definition of additional mineral interests contained in the purchase and participation agreement controls.

If a party to the agreements acquired such an interest, the operating agreement imposes an obligation on such party to “immediately give written notice thereof to the other parties, together with all pertinent details and information.” The operating agreement further provides each of the other parties shall have twenty days after receiving notice to make a written election to “acquire its proportionate interest ... for payment of a like proportion of the acquisition costs.”

The O’Sullivan program agreement provides in pertinent part that “each party electing to participate and participating in [an] acquisition shall ... be deemed the owner of the undivided interest therein that he or it is entitled to take or has elected to take, as the case may be.” (emphasis added). The summary judgment record reflects that McCord initially elected to participate in the purchase of the Perez ranch and in the acquisition of the Sue-Ann lease. McCord provided its proportional share of the purchase money for these acquisitions.

McCord retained its interest in the Sue-Ann lease for approximately three months and its interest in the Perez ranch for approximately five months.

According to the affidavit of Christopher Scully, offered in support of McCord’s summary judgment motion, when the Perez ranch and the Sue-Ann lease were acquired,

a percentage of the acquisitions were assigned to McCord. When McCord elected not to participate in [these] acquisitions, the McCord interests were reassigned to the other participants in the O’Sulhvan/McCord Joint Venture .... Once [these] interests were reassigned to the other O’Sullivan/McCord Joint Venture participants, McCord no longer held an interest in either [of them].

(emphases added).

Accordingly, a genuine issue of material fact remains on the question of whether McCord acquired an “additional oil, gas or mineral interest” within the AMI. Because a fact issue exists on the question of whether McCord acquired an “additional oil, gas or mineral interest” within the AMI and because it is undisputed that McCord failed to give notice of this additional interest to San Saba, we sustain San Saba’s first and second issues.

Fraud Claim

San Saba contends in its third issue that a genuine issue of material fact remains on the question of whether McCord participated in a plan and scheme to defraud San Saba out of this proportional interest. McCord characterizes San Saba’s claim as an allegation that McCord conspired with others to breach the parties’ agreements, which McCord contends is not an actionable claim.

“Generally, a movant must specially except before urging a motion for summary judgment that alleges a failure to state a claim, thereby giving the plaintiff an opportunity to amend deficient pleadings.” Toles v. Toles, 113 S.W.3d 899, 909 (Tex.App.-Dallas 2003, no pet.); accord Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998); Salmon v. Miller, 958 S.W.2d 424, 429 (Tex.App.-Texarkana 1997, pet. denied). Here, McCord did specially except, and the trial court sustained McCord’s special exceptions. San Saba filed its eighth amended petition after this ruling.

We agree with McCord that in Texas a party to a contract may not sue another party to the contract for conspiracy to breach the contract. See Grizzle v. Tex. Commerce Bank, N.A., 38 S.W.3d 265, 284-85 (Tex.App.-Dallas 2001), rev’d in part on other grounds, 96 S.W.3d 240 (Tex.2002); Deaton v. United Mobile Networks, L.P., 926 S.W.2d 756, 760-61 (Tex.App.-Texarkana 1996), rev’d on other grounds, 939 S.W.2d 146 (Tex.1997); see also Morgan Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 179 (Tex.1997) (“a person must be a stranger to a contract to tor-tiously interfere with it”); accord Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 78-79 (Tex.2000); Grizzle, 38 S.W.3d at 286.

Here, San Saba alleges that McCord engaged in fraudulent transactions with others, “to prevent Plaintiffs from realizing the full interest in the 605 acre lease and minerals to which they were entitled to [sic] under the [operating agreement].” This is nothing more than an allegation that McCord conspired with others to breach the operating agreement. Such a cause of action is not recognized in Texas. Id.

Accordingly, we overrule San Saba’s third issue.

Damages

San Saba contends in its fourth issue that a genuine issue of material fact remains on the question of whether it suffered damages as a result of McCord’s conduct. McCord responds that: (1) any damages San Saba suffered were caused not by McCord’s failure to offer the additional AMI interest to San Saba but by San Saba’s failure to take advantage of a later offer by Pursuit Exploration to participate in the same interest; (2) San Saba’s summary judgment response is deficient because it fails to identify any particular summary judgment evidence to prove causation; and (3) San Saba offered no evidence regarding the proper measure of damages.

In response to the summary judgment motion, San Saba offered several exhibits, including: (1) excerpts from McCord’s deposition and supporting documents; and (2) the 15-page affidavit of Jonathan Preston, San Saba’s managing general partner.

In the traditional portion of McCord’s summary judgment motion, McCord contends that any damages suffered by San Saba were caused by its own decision to not accept Pursuit’s offer to participate in “the same interest.” However, McCord’s own summary judgment evidence (also attached to San Saba’s response) establishes that Pursuit took an assignment of only the oil and gas below 9,765 feet, while the Sue-Ann lease earlier assigned to O’Sullivan included the oil and gas both above and below that depth. Thus, Pursuit did not (and could not) offer San Saba an opportunity to participate in the same interest. Accordingly, McCord failed to conclusively negate the causation element of San Saba’s breach-of-eontract claim. See IHS Cedars Treatment Ctr. of Desoto v. Mason, 143 S.W.3d 794, 798 (Tex.2004).

With respect to the no-evidence portion of the summary judgment motion, McCord contends that San Saba failed to present any evidence in response to its assertion that San Saba could produce no evidence of causation because San Saba failed to direct the trial court “to any specific evidence.”

As set out above however, San Saba attached excerpts from McCord’s deposition which show that Pursuit did not (and could not) offer San Saba an opportunity to participate in the same interest which McCord earlier acquired through O’Sullivan. Thus, San Saba produced more than a scintilla of evidence to establish causation. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

Preston’s affidavit provides more than a scintilla of evidence regarding the profits San Saba lost as a result of McCord’s failure to offer it a proportional interest in the Perez ranch and the Sue-Ann lease. See Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 759-61 (Tex.App.-El Paso 2000, no pet.).

Accordingly, we sustain San Saba’s fourth issue.

We affirm the judgment as to San Saba’s fraud claim, reverse the judgment as to San Saba’s breach of contract claim, and remand this cause to the trial court for further proceedings.

      . San Saba named numerous other defendants in the suit as well. However, the trial court severed San Saba’s claims against McCord from its claims against the other defendants.

      . According to the purchase and participation agreement, “the Leases” are the various oil and gas interests within the AMI which the non-operators owned at the time they entered the agreement. Paragraph 1.3 of the purchase and participation agreement defines the term "Additional Leases” as "leasehold interests, other than the Leases, acquired by LL & E(a) covering any portion of the AMI prior to the Initial Well reaching Casing Point, whether obtained pursuant to a Seismic Operation, other seismic option, or otherwise or (b) pursuant to a Seismic Option at any time.”

      . The last paragraph of Section A defines the parties’ rights and obligations if LLEC acquires additional leases within the AMI.

      . The operating agreement has a similar provision which states that it controls in the event of a conflict, except with respect to the purchase and participation agreement and the parties' gas balancing agreement.

      . As the 9th Circuit explained, “The abbreviation ‘i.e. ... introduces another way ... of putting what has been already said. It does not introduce an example, and when substituted for e.g. in that function ... is a blunder.' " U.S. v. King, 849 F.2d 1259, 1260 (9th Cir.1988) (quoting H.W. Fowler, A Dictionary of Modem English Usage 263 (Sir Ernest Gowers, rev. ed., Oxford U. Press 1983)).