text:
    In re FOREMOST COUNTY MUTUAL INSURANCE COMPANY and Jim Doland.
    No. 09-05-122 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 19, 2005.
    Decided Aug. 11, 2005.

      E. John Gorman, Bradford W. Irelan, Irelan Hargis PLLC, Houston, for rela-tors.

      E. Hart Green, Weller, Green, Toups & Terrell, LLP, Beaumont, for real party in interest.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

PER CURIAM.

This mandamus proceeding arises from an insurance company’s denial of a fire loss claim made under a homeowner’s insurance policy. The company denied the policyholder’s claim after he refused to submit to an examination under oath. The company sought an abatement of the underlying suit to obtain the examination. After the trial court denied the company’s plea in abatement, the company petitioned this Court for a writ of mandamus. The primary questions we must resolve are whether the trial court abused its discretion in refusing to abate the case and whether relators have an adequate appellate remedy. For the reasons stated below, we conditionally grant the writ of mandamus.

Foremost County Mutual Insurance Company insured Kenneth Whitney’s mobile home and its contents through a “mo-bilowner’s policy.” A fire destroyed Whitney’s mobile home and Foremost ultimately denied Whitney’s claim. Whitney filed suit against relators, Foremost and Jim Doland (jointly referred to as “Foremost”). In his petition against the company, Whitney alleges breach of contract and violations of the Texas Insurance Code and Texas Deceptive Trade Practices Act (“DTPA”); against Doland, Whitney alleges DTPA violations. Foremost contends that Whitney’s suit is improper because he failed to comply with the policy’s conditions precedent that required him to submit to an examination under oath (“EUO”) prior to filing suit.

In the first two weeks after a fire destroyed Whitney’s mobile home on November 25, 2003, several events occurred. Whitney notified Foremost about the loss on the day of the fire. The next day, November 26, Doland inspected the site and Whitney authorized the release of his financial and employment records. On December 8, 2003, thirteen days after the fire, Foremost sent Whitney a “reservation-of-rights” letter stating that “a potential coverage issue” existed and reserving Foremost’s right to assert all terms and provisions of the policy. The letter further disclaimed Foremost’s intent to waive any of its rights or defenses and explained that Foremost’s “preliminary investigation in conjunction with cause & origin experts indicate the fire cause may not be of a[n] accidental nature. Please note the investigation of this loss is continuing.” In its letter, Foremost also asked Whitney to fully cooperate with the Company’s investigation.

In January 2004, Foremost continued its investigation. On January 9, 2004, approximately six weeks after the fire, Foremost told Whitney it was still investigating and requested that Whitney provide additional documents, namely “the completed property summary sheets along with any receipts for additional living expense.” Around January 22, 2004, Doland received the final report from the cause and origin investigator and a report from investigators reviewing Whitney’s financial status. From those reports, Doland concluded that arson may have been the cause of the fire and that Whitney, because of his proximity to the fire, was the most likely suspect. Do-land requested his supervisor to approve the taking of Whitney’s EUO.

In February, Foremost began its attempts to schedule Whitney’s EUO. On February 17, 2004, Foremost’s outside counsel asked Whitney directly for his EUO. On February 26, 2004, after learning that Whitney had retained counsel, Foremost’s outside counsel asked Whitney’s counsel for assistance in scheduling the EUO. Whitney refused and informed Foremost that it had waived its right to obtain the examination.

After Whitney declined to cooperate, Foremost ultimately denied coverage and Whitney filed suit. Because the trial court denied Foremost’s plea in abatement, Foremost filed its petition for writ of mandamus. Foremost contends the trial court abused its discretion by not abating the underlying suit to allow Foremost to examine Whitney under oath as provided by the policy’s conditions precedent. Foremost further contends that it has no adequate remedy by appeal.

The policy includes the following paragraphs:

PART IV — CONDITIONS

All obligations of the Company under this policy are subject to the performance by the Insured of the following conditions:

A. General Conditions Applicable to Both Parts of the Policy

4. Assistance and Cooperation. The Insured and any person interested in or claiming any benefit under this policy shall cooperate with the Company and, upon the Company’s request, assist in making settlements, in the conduct of suits, and in enforcing any right of contribution, indemnity or recovery against any person or organization who may be liable for any injury, damage or loss with respect to which insurance is afforded under this policy.
5. Proof of Loss. The Insured or someone in his behalf shall file proof of loss with the Company within 91 days after the occurrence of the loss, unless such time is extended in writing by the Company and upon the Company’s request, exhibit the damaged property to duly authorized representatives of the Company, and submit to and subscribe examinations under oath conducted by anyone designated by the Company, produce for the Company’s examination all pertinent papers, documents and records (or certified copies thereof, if originals be lost), permitting copies thereof to be made by or on behalf of the Company all at such reasonable times and places as the Company from time to time may designate....
8. Action Against the Company. No payment shall be due by the Company under this policy and no action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all of the terms of this policy, nor until 30 days after proof of loss is filed and that amount of loss is determined as provided in this policy....

When we interpret an insurance policy, we employ the rules of contract construction. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). “If policy language is worded so that it can be given a definite or certain legal meaning, it is not ambiguous and we construe it as a matter of law....” Schaefer, 124 S.W.3d at 157(citations omitted). If a contract is not ambiguous, the words used in the contract are to be given their ordinary meaning. See Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984). For an event to constitute a “condition precedent” under a contract, the contract must provide that the event shall “happen or be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992).

Paragraph IV A. 5. of Whitney’s insurance policy provides that a claimant, upon the company’s request, shall “submit to and subscribe examinations under oath conducted by anyone designated by the Company. ...” Paragraph IV A. 8. provides that “no action shall he against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all of the terms of this policy .... ” (emphasis added). These policy provisions clearly require Whitney to provide an EUO upon the Company’s request and to do so before filing suit. Policy terms requiring a policyholder to submit to an EUO before filing suit are valid as we previously determined in State Farm General Ins. Co. v. Lawlis, 773 S.W.2d 948, 949 (Tex.App.-Beaumont 1989, no writ). See also Philadelphia Underwriters’ Agency v. Driggers, 111 Tex. 392, 238 S.W. 633 (1922).

However, Wdiitney argues that Foremost waived its right to obtain his EUO because Foremost’s request was untimely. Wfiiitney contends that Foremost was required to tell him it wanted an EUO within fifteen days after Foremost received notice of his claim. Whitney bases his waiver argument on article 21.55 of the Texas Insurance Code (“Code”) as weh as certain policy provisions.

Article 21.55 of the Texas Insurance Code, entitled, “Prompt Payment of Claims,” requires that, within fifteen days of receiving a claim notice, an insurer shall: “(1) acknowledge receipt of the claim; (2) commence any investigation of the claim; and (3) request from the claimant all items, statements, and forms that the insurer reasonably believes, at that time, will be required from the claimant. Additional requests may be made if during the investigation of the claim such additional requests are necessary.” Tex. Ins. Code Ann. art. 21.55 (Vernon Supp.2005).

The plain language of the statute negates Whitney’s “fifteen day” waiver argument. Under the statute, the company may request additional information after the fifteen day period expires. While the company must begin investigating a claim and request initially required information from the claimant within fifteen days of receiving a claim notice, the statute also allows the company to request additional information that becomes necessary during the course of the investigation. Thus, Wdiitney’s argument ignores the statutory language allowing the insurer to make additional requests for information “if during the investigation of the claim such additional requests are necessary.” Art. 21.55 § 2(a)(3).

The EUO’s usefulness is not at issue as Whitney does not contest that it would have assisted the investigation. Foremost contends it reasonably determined it needed more information, namely the EUO, to finish investigating Whitney’s claim. In addition, Foremost asserts it decided to seek an EUO after the final cause and origin report made it necessary to rule out WTiitney as a suspect. Logically, Whitney’s EUO would provide information pertinent to this determination.

AVhitney’s waiver argument also ignores certain statutory language regarding the statute’s purpose, which is to promote prompt payment of insurance claims. Art. 21.55 § 8. Thus, an insurer who violates article 21.55 does not risk waiver of contractual rights, as urged by Wdiitney, but rather risks incurring penalties and attorney’s fees for unduly delaying the payment of a valid claim. See Breshears v. State Farm Lloyds, 155 S.W.3d 340, 344-45(Tex.App.-Corpus Christi 2004, pet. denied); Art. 21.55.

Whitney urges us to find that an insurer who does not request an EUO within fifteen days of receiving a claim waives the right to obtain an EUO. This construction would not be based on the statute’s language and would be unintended by the legislature. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000)(legislative intent is determined from statute’s plain and common meaning); see Art. 21.55. Whitney cites no cases, nor have we found any, in which an appellate court has determined that a 21.55 violation results in a waiver of contractual rights. We find Foremost did not waive its right to seek an EUO by virtue of its alleged violations of the Insurance Code.

Whitney also contends Foremost waived its rights under the policy to obtain Whitney’s EUO. Policy provision Part V, paragraph C.l. contains the fifteen day limit upon which Whitney relies and is entitled “The Company’s Duties After Loss.” The paragraph states:

1. Within 15 days after the Company receives the insured’s written notice of claim, the Company must:
a. acknowledge receipt of the claim. If the Company’s acknowledgment of the claim is not in writing, the Company will keep a record of the date, method and content of the Company’s acknowledgment.
b. begin any investigation of the claim.
c. specify the information the insured must provide in accordance with the Conditions and Provisions of this policy.
The Company may request more information, if during the investigation of the claim such additional information is necessary.

Whitney asserts that construing the policy to allow Foremost to request additional necessary information would be an unreasonable construction that would render the fifteen day rule “meaningless” and violate the rules of contract construction. However, the policy requirement for Foremost to “specify the information the insured must provide” within fifteen days after the company receives notice of the claim is a “general rule.” The exception to this general rule is the policy provision that allows the company to request additional necessary information that it may need to reasonably investigate claims. Texas courts have long recognized that exceptions place limitations on general rules or provisions. See Reliance Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743, 745, (1928)(an exception “is something taken out of the instrument, whether statute, grant, or contract”). Here, the exception does not render the general rule “meaningless;” instead, it provides for an instance in which the “fifteen day” rule does not apply. If no additional information is necessary, then the general rule of the policy — the fifteen day rule— applies.

Here, the policy language “is worded so that it can be given a definite or certain legal meaning” and, thus, is not ambiguous. Schaefer, 124 S.W.3d at 157. The language clearly allows the company to seek additional necessary information after the expiration of the fifteen day period. ‘When construing the policy’s language, we must give effect to all contractual provisions so that none will be rendered meaningless.” Id. We do not isolate a single phrase, sentence, or provision and consider it apart from other policy provisions. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). "Whitney’s interpretation of the policy recognizes only the general rule — the fifteen day rule— and renders the exception meaningless.

Moreover, the law on waiver is well established. As explained by the Texas Supreme Court:

Waiver is defined as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, as in this case, the question becomes one of law.

Jernigan v. Langley, 111 S.W.3d 153, 156-57 (Tex.2003) (citations omitted). Applying Jemigan, we determine Whitney’s contractual waiver argument as a matter of law.

Here, the “surrounding facts and circumstances” pertinent to Whitney’s waiver-by-delay argument are undisputed. Id. The parties do not dispute that Foremost made its request to obtain Whitney’s EUO more than fifteen days after receiving notice of his loss or that Foremost also sent Whitney a letter specifically disclaiming any intent to waive its rights or defenses. Further, the record shows that Foremost waited to make a decision about whether to seek Whitney’s EUO until after it received the cause and origin report around January 24. The parties agree that Foremost first requested Whitney’s EUO on February 17, approximately three weeks after receiving the report and eighty-four days after the fire. We find that Foremost, by waiting until February to determine whether to request Whitney’s EUO in a claim possibly involving arson, did “nothing inconsistent with an intent to rely upon” its right to obtain the examination. Id. Accordingly, we find as a matter of law that Foremost did not waive its contractual right to take Whitney’s EUO.

Having determined the waiver question in Foremost’s favor, we now consider whether the trial court erred in refusing to grant abatement to allow Foremost to obtain Whitney’s EUO. We find the trial court erred. We previously decided this question in State Farm General Ins. Co. v. Lawlis, 773 S.W.2d 948, 949(Tex.App.-Beaumont 1989, no writ). Relying on Philadelphia Underwriters’ Agency v. Driggers, 111 Tex. 392, 238 S.W. 633 (1922) and Humphrey v. National Fire Ins. Co., 231 S.W. 750 (Tex.Com.App. 1921, judgm’t adopted), we said in Lawlis that “[[Insurance policy provisions requiring the insured’s submission to examination under oath as a condition precedent to sustaining a suit on the policy are valid. The insurer’s proper remedy to enforce the condition precedent is abatement rather than bar. Relator exercised its contractual right to require an oral examination under oath and there is no evidence that this right was ever waived.” Lawlis, 773 S.W.2d at 949 (citations omitted). In Lawlis, we conditionally granted the company’s petition for mandamus and provided that it would be issued only if the trial court failed to grant abatement. Id.

Lawlis controls here. Just as in Lawlis, Whitney’s policy required him to submit to an EUO as a condition precedent to filing suit and Whitney failed to do so. Thus, under Lawlis, Foremost’s proper remedy is abatement and mandamus will issue to enforce that remedy. Id.

Relying on In re Allstate County Mut. Ins. Co., 85 S.W.3d 193(Tex.2002) and Abor v. Black, 695 S.W.2d 564 (Tex.1985), Whitney asserts that abatement is improper. Allstate involved an automobile insurance appraisal provision. Allstate, 85 S.W.3d at 195. While finding that the trial court’s denial of appraisal was error and subject to mandamus, the Allstate Court also stated that “the failure to grant the motion to abate is not subject to mandamus. In any event, the proceedings need not be abated while the appraisal goes forward.” Id. at 196 (footnotes omitted). In Abor, the trial court denied the plaintiffs request for abatement of a declaratory judgment action. Abor, 695 S.W.2d at 565. The Abor Court declined to issue a writ of mandamus “to supervise or correct incidental rulings of a trial judge” because the plaintiff had an adequate appellate remedy. Id. at 566-67. The Court noted that “incidental rulings” included those on pleas in abatement. Id. at 567.

But both Allstate and Abor are distinguishable. Neither case involved a dispute for which abatement was the established remedy. Here, to the contrary, abatement has long been the established remedy to enforce an EUO clause. See Philadelphia Underwriters’ Agency v. Driggers, 111 Tex. 392, 238 S.W. 633 (1922); Humphrey v. National Fire Ins. Co., 231 S.W. 750 (Tex.Com.App.1921, judgm’t adopted).

To be entitled to mandamus relief, Foremost must meet two requirements. It must show that (1) the trial court committed a clear abuse of discretion and (2) it has no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005)(citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124,135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992)).

Regarding the first requirement, the Walker Court explained that a trial court abuses its discretion if “ ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law’ ” or if it clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839, 840 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). Further, a trial court does not have the discretion to make an erroneous legal conclusion even in an unsettled area of law. See Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996). Here, the trial court improperly accepted Whitney’s statutory and contractual waiver arguments regarding Foremost’s right to take Whitney’s EUO. As a result, the trial court erred when it declined Foremost’s request to abate the underlying suit. See Walker, 827 S.W.2d at 840; see Lawlis, 773 S.W.2d at 949. Foremost, thus, has established the first mandamus prong.

Regarding “no adequate remedy by appeal,” the Prudential Court recently acknowledged that this second requirement “has no comprehensive definition.” Prudential, 148 S.W.3d at 136. In granting mandamus relief to enforce contractual jury waivers, the Court explained that determining whether a party has an adequate remedy by appeal requires a “careful balance of jurisprudential considerations” that involves both “public and private interests.” Id. When “the benefits [of mandamus review] outweigh the detriments,” appellate courts must consider whether the appellate remedy is adequate. Id. “[W]hether an appellate remedy is ‘adequate’ so as to preclude mandamus review depends heavily on the circumstances presented and is better guided by general principles than by simple rules.” Id. at 137.

The Prudential Court concluded that mandamus review of interlocutory rulings would be appropriate for “significant rulings in exceptional cases.” Such review could be “essential to preserve important substantive and procedural rights ..., allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Prudential, 148 S.W.3d at 136.

Here, the public interest factor in granting mandamus and abatement is strong. An insurer has the duty to reasonably investigate a claim. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 47 (Tex.1998). “The scope of the appropriate investigation [by the insurance company] mil vary with the claim’s nature and value and the complexity of the factual issues involved.” Id. at 44-45. Enforcing EUO clauses allows the company to conduct a more thorough investigation before it must make a determination on accepting or rejecting a claim. Had Foremost been allowed to take Whitney’s EUO and complete its investigation, Foremost may have determined Whitney was not a suspect and paid the claim without the expense and time-loss involved with litigation. On the other hand, Foremost might have discovered that the fire was intentionally set by its insured, justifying it in a subsequent decision to deny the claim.

Here, the mandamus remedy is important to preserve the insurer’s contractual right to obtain an EUO prior to suit, a right long recognized in Texas. By requiring abatement to allow Foremost to obtain Whitney’s EUO, we “spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Prudential, 148 S.W.3d at 136.

Accordingly, we find that the trial court has no discretion to deny abatement to allow Foremost to take Whitney’s examination under oath and that Foremost has no adequate remedy on appeal. Accordingly, we conditionally grant Foremost’s petition for writ of mandamus. We trust the trial court will comply with this opinion; the writ will issue only if it fails to do so.

WRIT CONDITIONALLY GRANTED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re BAPTIST HOSPITALS OF SOUTHEAST TEXAS.
    No. 09-05-090 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 23, 2005.
    Decided Aug. 11, 2005.

      James R. Old, Jr., C. Scott Mann, Jr., Charles W. Goehringer, Jr., James M. Dedman IV, Germer Gertz, LLP, Beaumont, for relator.
    Greg M. Dykeman, Adam B. Nichols, Strong Pipkin Bissell & Ledyard, LLP, Beaumont, Barbara Hawley Smith, Russell B. Morgan, Bould, Cummings, Conners & Berry, PLC, Nashville, TN, Ricky A. Raven, Thompson & Knight, LLP, Houston, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY, and KREGER, JJ.
   OPINION

PER CURIAM.

Relator, Baptist Hospitals of Southeast Texas, seeks a writ of mandamus compelling the trial court to quash the deposition of an attorney of record and enter a protective order. Mandamus will issue to correct an abuse of discretion if there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 888, 840 (Tex.1992)(orig.proceeding). The trial court’s clear failure to analyze or apply the law correctly will constitute an abuse of discretion. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (orig.proceeding). When a trial court orders disclosure of privileged information, the aggrieved party lacks an adequate remedy by appeal and mandamus will lie. See Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex.1996)(orig.proceeding). We conditionally grant the petition for writ mandamus.

Baptist sued various contractors and engineering and architectural firms for negligence, breach of contract, and breach of warranty regarding the design and construction of the ambulatory surgical center owned by Baptist. Beaumont Surgical Affiliates, Ltd. (BSA), the real party in interest in this mandamus proceeding, was Baptist’s tenant at the Center. Claiming Baptist breached the lease by failing to provide suitable premises, BSA intervened in the lawsuit. BSA served a notice to take the deposition of one of Baptist’s attorneys of record in the litigation, and Baptist moved to quash the deposition. Baptist asserted work product and attorney-client privileges. The trial court denied the motion and ordered that BSA could proceed with the deposition.

The Texas civil procedure and evidence rules embody work-product and attorney-client privileges that have long been part of the common law. In re City of Georgetown, 53 S.W.3d 328, 332 (Tex.2001). As the United States Supreme Court explained when it first set out the work product privilege in 1947, the “[p]roper presentation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.” Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). Describing the potential detrimental effect if the law did not protect attorney work product, the Court stated:

Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

Id., 329 U.S. at 511, 67 S.Ct. 385.

In reflecting upon the importance of the work product and attorney client privileges in the document production context, the Fourteenth Court has observed that “[i]f we were to hold that all or part of a document containing privileged information should be disclosed because it also included facts pertinent to the lawsuit, the purpose of the attorney-client and work-product privileges would be annihilated.” Pittsburgh Coming Corp. v. Caldwell, 861 S.W.2d 423, 425 (Tex.App.-Houston [14th Dist.] 1993) (orig.proceeding). The Court went on to say that the “ultimate effect of such a holding would be that clients would be reluctant to give their attorneys any factual information for fear that it would be subject to discovery. And no attorney could even begin to prepare a case for trial, or be able to give sound advice for lack of those facts.” Id. (citation omitted). The Court described this process of parsing “facts” from matter protected by the privileges as a “chilling intervention into the attorney-client relationship under the guise of ‘looking for facts,’ ” which “pierces the core of a critical privilege to carve out limited and usually superfluous morsels of discovery otherwise obtainable. In our opinion the cost is too great.” Id.

Crucial to this case is that the attorney noticed for deposition is the attorney of record in on-going litigation who has been ordered to testify concerning the subject matter of the litigation. Compelling an attorney of record involved in the litigation of the case to testify concerning the suit’s subject matter generally implicates work product concerns. In State ex rel. Curry v. Walker, 873 S.W.2d 379, 380 (Tex.1994), the plaintiff served a subpoena duces tecum requiring the District Attorney or his representative to appear for a deposition upon written questions and to produce a criminal file to be used in related civil litigation. The Supreme Court held the work product privilege precluded the discovery, and conditionally granted the writ of mandamus. Id. at 380-81. Quoting from its earlier decision in National Union Fire Insurance Company v. Valdez, the Walker Court explained that “ ‘[a]n attorney’s litigation file goes to the heart of the privileged work area guaranteed by the work product exemption. The organization of the file, as well as the decision as to what to include in it, necessarily reveals the attorney’s thought processes concerning the prosecution or defense of the case.’ ” Id. at 380 (quoting Nat’l Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458, 460 (Tex.1993)). Here, BSA’s notice of deposition, containing no limitation as to subject matter and directed at the opposing litigation attorney, is analogous to the attempts in Walker and Valdez to discover an attorney’s litigation file; the discovery goes to the heart of privileged work area guaranteed by the work product exemption.

The Rules of Civil Procedure protect work product from discovery. Tex.R. Civ. P. 192.5(b). Rule 192.5(a) defines work product as follows:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

Tex.R. Crv. P. 192.5(a). The rule distinguishes between core work product and non-core product. Core work product, which is not discoverable, is defined as the work product of an attorney, or his representative, that contains the attorney’s mental impressions, opinions, conclusions, or legal theories. Tex.R. Crv. P. 192.5(b)(1). Work product that does not fall within “core work product” may be discoverable, but “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.” Tex.R. Crv. P. 192.5(b)(2). If a court orders the discovery of work product pursuant to Rule 192.5(b)(2), the court “must — insofar as possible — protect against disclosure of the mental impressions, opinions, conclusion, or legal theories not otherwise discoverable.” Tex.R. Civ. P. 192.5(b)(4).

A party whose deposition has been noticed may seek protection through assertion of privileges and offer evidence supporting the privilege asserted. This party has the burden of proof. See generally In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223. Initially, the party must make a prima facie showing of privilege, which requires only the “ ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’ ” Id. at 223(quoting Texas Tech Univ. Health Sciences Ctr. v. Apoda-ca, 876 S.W.2d 402, 407 (Tex.App.-El Paso 1994, writ denied)). In the work product context, this means the prima facie case must show the discovery sought is work product created in anticipation of litigation or for trial. Tex.R. Civ. P. 192.5(a).

To support its privilege claims, Baptist submitted affidavits. Phillip G. Sivils, director of claims/insurance/legal services at Baptist Hospitals from June 2000 through January 2003, stated by affidavit as follows:

2. ... I retained Charles W. Goehringer, Jr. of Germer Gertz L.L.P. to represent Baptist for legal consultation and representation concerning the matters which have ultimately become the basis for this suit. I was concerned about possible litigation at the time that I retained [him].
3. I retained the services of Mr. Goeh-ringer and his firm in approximately 2001.
4. The purpose was to investigate, prosecute and defend all claims relating to the construction and design of the ambulatory surgery center.... I fully intended Mr. Goehringer to investigate all legal issues relating to the construction and design of the ASC and determine what design and construction defects, if any, that may have existed, in anticipation of and in preparation for litigation. Mr. Goehringer’s duties did not, nor did they ever, during my employment at Baptist, include any decisions regarding remediation and repair efforts. Any and all such decisions were made by Baptist, its employees and consultants.
5. I retained Mr. Goehringer to investigate the circumstances surrounding any issues relating to the ASC in question. Specifically, I retained him for his legal knowledge, skills and ability to monitor and investigate potential and actual claims for legal analysis. The sole purpose for my retention of Mr. Goehringer in the above-referenced matter was for him to investigate, monitor, prosecute and defend legal claims for Baptist relating to the ASC.
6. Mr. Goehringer’s background as an engineer made him uniquely qualified to effectuate legal representation of Baptist in this matter. I did not hire him to perform or supervise any engineering related tasks.
7. Mr. Goehringer was not a project manager for Baptist for any property, issue, or enterprise. He only served as Baptist’s legal counsel and performed necessary legal services and investigations on Baptist’s behalf.

Ms. Julia Hyett, the Baptist employee who succeeded Sivils, attested to similar facts regarding Goehringer and his representation of Baptist Hospital. Neither Hyett nor Sivils dispute that Goehringer was present for numerous inspections of the surgery center.

BSA presented affidavits indicating Goehringer was involved in observing, investigating, monitoring, reviewing, and evaluating the technical problems at the surgery center; that he communicated numerous times with BSA representatives; that he attended meetings where construction problems were discussed; that he was involved in testing performed at the Center; that he represented that Baptist would compensate BSA’s Darlene Vega for a weekend’s work and pay the cost of BSA’s hygienist’s mold inspection; and that he was the “point of contact” person for Baptist with BSA. With this conduct, BSA argues Goehringer’s work was not that of an attorney but that of an “engineer, construction manager and relationship manager.” BSA contends Goeh-ringer’s work in this area was not work product, he was not acting as an attorney, and he became a fact witness subject to being deposed.

BSA relies on In re Texas Farmers Insurance Exchange, 990 S.W.2d 337 (Tex.App.-Texarkana 1999, orig. proceeding), mand. denied, 12 S.W.3d 807 (Tex.2000), to argue that Goehringer was acting, not as an attorney, but as a fact witness. Farmers Insurance hired an attorney to take examinations under oath from the insureds after their home was destroyed by fire. Farmers, 990 S.W.2d at 339. When the fire investigator reported that no accidental ignition source could be identified as the cause of the fire, Farmers denied the claim. Id. The insureds sued Farmers and sought the deposition of the attorney. Id. In considering Farmers’ attorney-client privilege claim, the Court found the privilege did not apply because, until the date the insureds sued Farmers, the attorney had acted as an investigator conducting a routine investigation, not as an attorney. Id. at 340-41. As to the work product exemption, the Court further found the fire investigator’s conclusion— that no accidental ignition source for the fire could be identified — “would not have led a reasonable person to anticipate litigation.” Id. at 342. The Court also concluded the trial court was incorrect in finding the trigger date for anticipation of suit to be the date the suit was filed rather than the date the claim was denied. Id. at 341, 343.

While we do not mean to suggest agreement with the language and holding in Farmers, the instant case is distinguishable. In Farmers, the Court determined the attorney was hired and functioned as an investigator until the date Farmers denied the claim and that litigation was not anticipated until the claim was denied. Unlike the attorney in Farmers, Goehringer is the attorney of record in on-going litigation. He was retained to investigate, monitor, and evaluate problems relating to the surgical center’s design and construction and to represent Baptist in all phases of the controversy, including anticipated litigation.

Every attorney of record in a case being litigated, or in a case where litigation is anticipated, obtains “factual, relevant information.” Performing the function of a lawyer does not preclude a litigation attorney from observing, investigating, monitoring, and evaluating the facts surrounding the matter in controversy. The evidence does not show Goehringer was a fact witness divorced from the litigation. His work was reasonably related to and in furtherance of the prosecution of Baptist’s case against the defendants, and also related to mitigating its damages regarding BSA and to defending against BSA’s causes of action. We conclude his activities fall within the Rule 192.5 work product definition.

BSA maintains it seeks information that Goehringer did not acquire in anticipation of litigation and argues that Baptist was not anticipating litigation against BSA when Baptist filed suit against the contractors and other defendants in February 2002. BSA did not intervene in the suit until December 2003. However, the record establishes that in an April 2002 letter from BSA to Baptist, BSA expressly-threatened suit against Baptist over the same matters addressed in Baptist’s suit against the contractors. Based on that letter and the fact that Baptist had already filed suit regarding defects in the premises leased by BSA, a reasonable person would have concluded there was a substantial chance litigation with BSA would occur. More particularly, Baptist, the party resisting discovery, could have believed in good faith there was a substantial chance litigation would ensue and investigated, monitored, evaluated, and attempted to mitigate damages in anticipation of suit. The work product privilege is of continuing duration and not applicable solely to the lawsuit in which it arises. See Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 751-52 (Tex.1991). Thus, the work product developed in anticipation of, and during, Baptist’s litigation against the contractors extends to BSA’s intervention against Baptist in the same suit. Moreover, Baptist’s evidence established the prima-facie work product privilege.

BSA argues that even if Baptist did reasonably anticipate litigation, Goeh-ringer was under an ethical obligation to inform BSA representatives, whom he knew to be represented by counsel, that he could not speak with them about the facts of the case. Tex. Disciplinaey R. PROf’l Conduct 4.02(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon 2005)(Tex. State BaR R. art. X § 9). Because Goehringer allegedly failed to do so, BSA argues Baptist cannot cloak itself in work product privilege. The preamble to the rules of professional conduct states, “[TJhese rules are not designed to be standards for procedural decisions[,]” and they “are not intended to govern or affect judicial application of either the attorney-client or work product privilege.” Tex. DisciplinaRY R. Prof’l Conduct preamble ¶¶ 15, 16. We note there is no indication in the record that BSA objected to or did not consent to the communications with Goeh-ringer. Given the circumstances, we decline to apply the rule to estop the assertion of the work product privilege in this case.

In view of the work product privilege, BSA had the burden to demonstrate the substantial need and undue hardship requirements for discovery of non-core work product. See Tex.R. Civ. P. 192.5(b)(2). While BSA submitted affidavits that indicated Goehringer was intimately involved in remediation efforts and was the only Baptist representative with whom BSA dealt on all operational, leasing, and construction issues, there is also evidence BSA routinely dealt with numerous Baptist employees, including Phillip Sivils, Julie Hyett, Wilson Weber, David Parmer, David Lognion, and Randy Tippett, as well as consultants William Neild and Larry Gray, and various contractors on those issues. Further, a Baptist employee stated by affidavit, “Mold remediation plans were prepared by various consultants and contractors retained by Baptist and not by Mr. Goehringer. All air testing for the Surgery Center was directed and coordinated by industrial hygienist, Kyle Dotson, as well as other consultants retained by Baptist, and not by Mr. Goehringer.” If, as BSA argues, it had substantial need for this information, there were Baptist employees and numerous contractors and consultants who could be deposed. Although BSA purportedly deposed Baptist personnel Julie Hyett and David Parmer, BSA apparently did not, in this record, ask any questions about the mold testing, the construction, leasing, and operational aspects of the Center, or payment of Vega, a BSA employee, or BSA’s industrial hygienist’s expenses — areas about which BSA says it wants information. Baptist also states BSA has not deposed Baptist’s architectural expert or any of the other experts and contractors who actually performed the work. BSA does not dispute this claim. Thus, BSA has failed to show it cannot acquire the information it seeks or its substantial equivalent through other sources and less intrusive means.

Generally, an attorney of record in litigation is an advocate, not a fact ■witness, in the litigation process. As with compelling production of opposing counsel’s litigation file, compelling a deposition of the opposing party’s attorney of record concerning the subject matter of the litigation is inappropriate under most circumstances. Calling opposing counsel of record as a witness seriously disrupts the counsel’s functioning as an advocate and may create a false impression that the advocate was improperly involved in the underlying issues in the litigation. Restatement (ThiRd) of the Law Goveening Lawyers § 108(4) cmt. 1 (2000). Normally, if an issue of disqualification is to be raised, it should be done in a straightforward manner by a motion to disqualify. See generally In re Sanders, 153 S.W.3d 54(Tex.2004)(a£firming trial court’s denial of motion to disqualify). A motion to disqualify has not been filed here.

Although the discovery rules provide access to material information, the rules also provide effective means of limiting discovery to preserve litigation as a viable dispute resolution mechanism. See generally In re Sears, Roebuck & Co., 146 S.W.3d 328, 331(Tex.App.-Beaumont 2004, orig. proceeding). Rule 192.4 authorizes the court to limit discovery methods permitted by the rules if the discovery is obtainable from some other source that is more convenient, less burdensome, or less expensive, or if the burden or expense of the proposed discovery outweighs its likely benefit. Tex.R. Civ. P. 192.4(a),(b). Generally, even when discovery of non-core work product is permitted because of substantial need and undue hardship under Rule 192.5(b)(2), a trial court should not order a deposition of an attorney of record on the subject matter of the litigation without requiring a showing that less intrusive discovery methods are unavailable to obtain the information sought. See generally In re ExxonMobil Corp., 97 S.W.3d 353, 358(Tex.App.-Houston [14th Dist.] 2003, orig. proceeding) (Factual information may be obtained by means other than requiring production of privileged documents.). Written discovery requests may be less intrusive because they do not require an attorney to make an immediate decision on whether a question involves work product or attorney-client privilege, and may not distract the attorney or involve the attorney as personally as a deposition. If, as a last resort, the advocate’s oral deposition is to be ordered, the area of questions permitted should be specified and a protective order entered, to protect against the disclosure of core work product and other privileged information. See Tex.R. Civ. P. 192.5(b)(4).

Here, BSA has not shown that it has substantial need of the facts known by Goehringer for the preparation of its case and that it is unable without undue hardship to obtain the substantial equivalent of the material by other means. The order compelling the deposition of the attorney of record does not limit its scope in any way or otherwise protect against disclosure of work product. Under these circumstances, the trial court abused its discretion in ordering the deposition of trial counsel.

We conditionally grant mandamus relief and will issue the writ only if the trial court does not vacate its order of February 23, 2005.

PETITION CONDITIONALLY GRANTED.

      . The United State Supreme Court characterized the discovery sought in Hickman as "an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney ... without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice.” Hickman, 329 U.S. at 509, 67 S.Ct. 385.

      . Cases involving different circumstances include Huie v. DeShazo, 922 S.W.2d 920 (Tex.1996)(deposition of attorney serving as lawyer for trustee of trust); West v. Solito, 563 S.W.2d 240, 242 (Tex.1978)(Supreme Court’s suggestion in dicta of a method of taking depositions of attorneys not in the litigation); Borden, Inc. v. Valdez, 773 S.W.2d 718(Tex.App.-Corpus Christi 1989, orig. proceeding)(deposition of in-house counsel); Pondrum v. Gray, 298 S.W. 409 (Tex.Com.App.1927, holding approved)(testimony of attorney who prepared agreement accompanying deed).

      . This opinion centers upon the work-product exemption raised by Baptist, but similar concerns may arise in the attorney-client privilege context when a party notices the deposition of the opposing attorney in the litigation.

      . The work product privilege includes the following exceptions: information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; certain trial exhibits; the name, address, and telephone number of any potential party or any person with knowledge of relevant facts; any photo or electronic image of underlying facts; and any work product created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence. Tex.R. Crv. P. 192.5(c).

      . Other cases, distinguishable from this case, have allowed the deposition of an attorney of record when he injects himself into the case as a witness by filing an affidavit on contested facts, or when he is alleged to have conspired to obtain a default judgment. See Smith, Wright & Weed, P.C. v. Stone, 818 S.W.2d 926(Tex.App.-Houston [14th Dist.1991], orig. proceeding) (conspiracy allegation); Lummus v. Dean, 750 S.W.2d 312 (Tex.App.-Beaumont 1988, orig. proceeding) (attorney's affidavit stated he was attorney of record, he was knowledgeable in the review and evaluation of injuries, and plaintiff’s medical charges were not made necessary by the auto accident); Hilliard v. Heard, 666 S.W.2d 584 (Tex.App.-Houston [1st Dist.] 1984, orig. proceeding) (defense counsel filed controverting affidavit in response to plaintiff's affidavit attesting to reasonableness of costs and necessity of goods and services sold to plaintiff.).

      . Farmers involved an attorney retained "to obtain facts by taking the [insureds’] examinations under oath” and to "give a legal opinion to Farmers regarding potential litigation issues.” Farmers, 990 S.W.2d at 341. The Court found the attorney was acting as an investigator, not an attorney. However, in Harlandale Independent School District v. Cornyn, the school district retained an attorney to investigate an alleged sexual assault on a school security guard and to deliver a legal analysis. Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 333 (Tex.App.-Austin 2002, pet. denied) (attorney-client privilege). The Court held the attorney conducted the investigation in her capacity as an attorney, and the material was privileged. Id. at 334—335. Further, the Court indicated that the requestor could seek the information from the same sources that were interviewed by the attorney. Id. at 335.

      . The Supreme Court has employed a two-part test for anticipation of litigation. Documents, communications, or mental impressions are prepared in anticipation of litigation if (1) a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue (objective standard); and (2) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and prepared the material, conducted the investigation, developed the mental impression, or communicated the information in anticipation of such litigation (subjective standard). See National Tank Co. v. Brotherton, 851 S.W.2d 193, 204-07 (Tex.1993); and Tex.R. Civ. P. 192.5(b).


author: CHARLES KREGER, Justice.

text:
    Michael WETHINGTON, Appellant, v. Billy & Ginger MANN, Appellees.
    No. 09-04-478 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on April 28, 2005.
    Decided Aug. 11, 2005.

      William S. Helfand, Kevin D. Jewell, David E. Jenkins, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, for appellant.
    Brett E. Dressier, Weitinger & Dressier, Houston, for appellees.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

This appeal arises from a suit filed by Billy and Ginger Mann for the death of their dog against Michael Wethington. Wethington, an officer of the Stagecoach Police Department, filed a motion for summary judgment on the grounds of official immunity. The trial court denied the motion and Wethington appealed pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2005).

We first address the order at issue on appeal. The trial court’s order purports to grant “Defendant’s Motion for Summary Judgment as to recovery for mental anguish and loss of love, society, and companionship; and as to punitive/exemplary damages and ORDERS that the Plaintiffs claims are dismissed with prejudice. DENIES as to liability.” The parties treat the order as a grant of Wethington’s motion, in part, and a denial of Wethington’s claim of immunity from suit. Pursuant to the order, the only claim for damages remaining in the suit is for the fair market value of the dog, a Great Dane. However, any challenge to the trial court’s dismissal of the other claims for damages is not appealable at this stage. Therefore, we only address whether the trial court erred in denying Wethington’s claim of official immunity.

The standard of review for denial of a summary judgment is the same as for the granting of a summary judgment. Powell v. Foxall, 65 S.W.3d 756, 758 (Tex.App.Beaumont 2001, no pet). The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, evidence favorable to the non-movant is taken as true. Id. at 548-49. Every reasonable inference in favor of the non-movant is indulged and any doubts are resolved in its favor. Id. at 549. The movant must either disprove at least one element of each of plaintiffs theories of recovery or conclusively establish each essential element of an affirmative defense. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). If the movant conclusively proves all essential elements of his defense, the burden shifts to the non-movant. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). The non-movant must then answer that affirmative defense for summary judgment purposes. Broussard v. Tyler County Hosp., 831 S.W.2d 584, 586 (Tex.App.-Beaumont 1992, no writ).

Wethington’s summary judgment evidence consists of his affidavit, the affidavit of Corporal David Miller, Plaintiffs’ Original Petition, and classified advertisements for the sale of Great Dane puppies. In response, the Manns’ summary judgment evidence is Wethington’s deposition and the affidavit of Harold Warren. In that order, we consider the evidence pertinent to the issue of official immunity.

SUMMARY JUDGMENT EVIDENCE

Wethington’s Affidavit

Officer Wethington responded to a call from Montgomery County Sheriffs Dispatch regarding a dog attack on a child at the Mann residence. Wethington arrived at the scene and determined it was necessary to locate the dog in order to secure the scene. When he stepped into the backyard, the dog charged him, “growling and snarling, with its head lowered.” Officer Wethington feared the dog was going to attack and determined he could not outrun the dog. He pointed his gun in the dog’s direction and discharged his weapon. The dog shuddered, walked back to the fence and collapsed.

Wethington averred it is part of his duties as a police officer to respond to such calls and that he was acting as a police officer when called to the scene. Further, Wethington stated that as the result of his training and experience as a police officer, he determined there were no reasonable alternatives to ensure his safety and the safety of others and concluded it was necessary to shoot the dog.

Miller’s Affidavit

David Miller, a corporal in the Montgomery County Sheriffs Department, was called to the scene shortly after Officer Wethington was forced to shoot the dog. Corporal Miller averred that Wethington acted reasonably in response to the emergency call and to the circumstances presented when Wethington arrived as the first unit on the scene. Miller said Officer Wethington was both prudent and reasonable to search for the dog to determine whether it still posed a risk. Officer Miller stated standard police training requires an officer to attempt to secure the scene so as to make it safe to care for any victims, conduct an investigation, and protect others expected to arrive, such as paramedics and backup officers.

Miller further stated that Officer We-thington’s use of his weapon when the dog charged was consistent with the reaction of a reasonably prudent police officer in the same urgent circumstances. According to Miller, it was reasonable for Wethington to conclude the dog, having just attacked a child, would attack him and possibly others. Corporal Miller averred there were no plausible and reasonable alternative courses of action and that the action Officer Wethington took was the most appropriate response under the circumstances. Miller stated that given the seriousness of the emergency call, the severity of the injuries inflicted on the child by the dog, the unknown whereabouts of the dog, the apparent imminent attack of the large dog, and the probability the dog could attack others, Wethington’s actions, including shooting the dog, were reasonable. Corporal Miller concluded that a reasonably prudent officer under the same or similar circumstances could find Officer Wething-ton’s actions were justified.

Wethington’s Deposition

Officer Wethington testified he had not been provided any training in handling dangerous animals and the incident in question was his first experience with one. Wethington said he received a call from dispatch and replied he would be en route. When Wethington reached Timbergreen Drive, dispatch called back and informed him the location was not in the city of Stagecoach. Wethington advised dispatch that “if they would like, I would check by and advise anyway.” Dispatch agreed. Wethington testified the Stagecoach Police Department has an agency agreement with the Sheriffs office and will respond to their calls if asked.

When Wethington arrived at the scene, he was only aware that a child had been hurt by a dog. Upon arrival, a woman opened a side door and “yelled ’911. My baby is hurt.’ ” Wethington called dispatch and rushed inside the house. Once inside, the woman shut and locked the door behind him, rushed him through the door to a side room, and shut and locked that door behind them. Inside the room, Wethington saw blood on the floor and a little girl crying. The girl had a large gash across her leg, bite marks, and puncture wounds on her arm. She was severely bleeding. Wethington applied a sock to the leg wound and asked the woman about other children and herself. Wethington testified at that time he felt he needed to find the animal because paramedics and other deputies would be arriving. He asked the woman if the dog was in the house. She screamed and said hysterically that she did not know. Wethington stepped out the door and the woman locked the door behind him. He drew his weapon and went toward the center of the house. Wethington looked toward the back of the house and noticed a pair of French doors; one was ajar approximately one inch. He walked toward the door, opened it, and stepped onto the patio.

Approaching the end of the patio, We-thington saw a little brown dog come from inside the kennels; the dog was barking at him. He then saw the Great Dane come around the back of the kennels and out into the yard. The dog started toward Wethington, dropped its head, growled, and kept coming. Wethington said he could not outrun the dog, so he “knocked the safety off’ his weapon, pointed it in the animal’s direction, and fired. Wethington approximated his distance from the animal at twenty feet or closer. The dog stopped, “shuddered real hard,” turned toward the fence, walked back to the fence, and dropped over. Wethington checked the dog and did not notice any breathing.

He went back in the house and knocked on the bedroom door to be let in. The child appeared to be going into shock and Wethington “was hollering for the dispatcher to hurry up and get the ambulance there.” He tried to ask some questions but the woman was really incoherent. He noticed her shoe had been pulled off, she had grass stains on her pants, and had what she claimed was a tooth mark across one of her arms.

Warren’s Affidavit

Harold Warren is a retired peace officer. In his affidavit he stated that in his opinion Officer Wethington did not act in good faith in that no reasonably prudent official, under the circumstances present in this case, could have believed his conduct was justified. Warren stated that Wethington knew the location was outside his jurisdiction and that no reasonable officer would have believed that he had jurisdiction to respond to the emergency call outside of his geographic jurisdiction. Further, Warren noted that when Wethington entered the house, he found the family secure in a closed room, and he left that secure room to search for the dog. Warren states We-thington’s decision to enter the backyard is the foundation of his opinion that he did not act in good faith because arriving officers and paramedics “could not have reasonably been expected to approach the scene from the backyard” and “the dog posed no danger to the public if it was in the backyard.” Further, Warren avers the risk of investigating the backyard was imminent and great and the officer could not have expected the dog to react any differently. “Thus, by going into the backyard with his gun drawn, the officer placed himself into a situation where he would have no choice but to use deadly force.” Warren asserts no reasonably prudent officer would place himself in such a situation unless necessary and it was not necessary, or even prudent, for the officer to enter the backyard “because he could have confirmed the dog’s location from the relative safety of the backdoor or the fenced driveway.” According to Warren, because the officer suspected the dog was in the backyard, the only reasonable course of action was to confirm the dog’s location from another location and then let animal control deal with the situation.

ELEMENTS OF DEFENSE OF

OFFICIAL IMMUNITY

Official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). To be entitled to a summary judgment, We-thington had to establish all the essential elements of that defense. See id. “The elements of the defense of official immunity are (1) the performance of a discretionary function (2) in good faith (3) within the scope of the employee’s authority.” Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994).

Discretionary Function

Regarding the first element, an act is not discretionary, i.e., is ministerial, if it requires obedience to orders or the performance of a duty to which the actor has no choice. See Chambers, 883 S.W.2d at 654. An act is discretionary if it involves personal deliberation, decision, and judgment. Id. Investigating and acting on gathered facts is a discretionary function. See Fowler v. Szostek, 905 S.W.2d 336, 342 (Tex.App.-Houston [1st Dist.] 1995, no writ). Wethington was investigating a report of a dog attack on a child. His actions at the scene were based on the facts gathered. These actions required deliberation, decision, and exercise of judgment. We therefore find the summary judgment evidence shows Wethington was carrying out a discretionary function.

Good Faith

Good faith, the second element, requires this court to look to whether a reasonably prudent officer, under the same or similar circumstances, could have believed his or her conduct was justified based on the information the officer possessed at the time. See Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex.2002). The officer need not prove all reasonably prudent officers would have engaged in the same conduct, only that a reasonably prudent officer might have reached the same decision under the same circumstances. Id. That an officer was negligent will not defeat good faith; it is an objective test that inquires what a reasonable officer could have believed. Id.

Officer Wethington’s affidavit and Corporal Miller’s affidavit provide summary judgment proof of good faith. The facts sworn to in those affidavits are such that a reasonably prudent officer could have believed Wethington’s conduct was justified.

Offered as controverting evidence is Warren’s affidavit. Warren complains mainly of Wethington’s decision to enter the backyard, and asserts it was unnecessary and posed too great a risk. Warren’s complaints are well-founded only if We-thington knew the dog was in the backyard and that the dog was secured. There is no summary judgment evidence that We-thington knew where the dog was or that the dog could not get out of the yard. The evidence shows Wethington knew a dog had attacked a child, a door leading to the backyard was ajar, other officers and paramedics would be arriving at the scene, and the location of the dog was unknown. The record does not establish that no reasonable officer could have believed a search for the dog was justified. Accordingly, we find the summary judgment evidence established Officer Wethington entered the backyard in good faith.

Warren also alleges that because We-thington knew the location was outside his geographical jurisdiction, Wethington could not have believed he had jurisdiction to respond to the emergency call. We-thington’s testimony from his deposition clearly shows he believed otherwise. The call Wethington received was from the Montgomery County Sheriff’s Office dispatcher. Wethington testified that “if the dispatcher had completely disregarded me, then I would have disregarded the call.” Appellees cite no authority, and we are aware of none, holding it is unlawful for a police officer to respond to an emergency call outside his geographical jurisdiction. There is no evidence that a reasonably prudent officer could not have believed responding to the emergency call was justified. Accordingly, we find the summary judgment evidence established Wethington acted in good faith.

Scope of Authority

The third element, scope of authority, is satisfied if the official is discharging the duties generally assigned to him or her. See Chambers, 883 S.W.2d at 658. “The fact that a specific act that forms the basis of the suit may have been wrongly or negligently performed does not take it outside of the scope of authority.” Koerselman v. Rhynard, 875 S.W.2d 347, 850 (Tex.App.-Corpus Christi 1994, no writ). Officer Wethington’s affidavit avers his duties include responding to such calls and that he was acting as a police officer when called to the scene. There is no controverting evidence. Rather, appellees focus on the fact that the Mann’s residence is outside Officer Wethington’s geographical jurisdiction.

Appellees mistake the scope of authority element. An official acts within the scope of his authority if he is discharging the duties generally assigned to him. Chambers, 883 S.W.2d at 658. Here, Officer Wethington was acting within the scope of his authority as an officer of the law, responding to an emergency call. We therefore find the summary judgment evidence established Wethington’s actions were within the scope of his authority.

Consequently, the trial court’s order denying Wethington’s claim of official immunity is reversed and judgment rendered that Billy and Ginger Mann take nothing.

REVERSED AND RENDERED.

      . The italicized language is handwritten.

      . Absent statutory authorization, only final judgments are appealable. Story v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998).


author: STEVE McKEITHEN, Chief Justice.

text:
    In the Interest of K.B.S.
    No. 09-04-446 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 30, 2005.
    Decided Aug. 11, 2005.

      J. Kevin Dutton, Jasper, for appellant.
    Michael S. Ratcliff, Jasper, for appel-lees.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellant, Marvin E. Runnels, filed a petition to adjudicate parentage seeking to establish his paternity of K.B.S. Filed in a pre-existing cause, the petition alleged the trial court was the court of continuing jurisdiction and Runnels had standing to bring a parentage action. The adoptive parents filed a “Special Appearance and Answer,” alleging that cause number 10243 had been sealed by the Court, and requesting dismissal of the suit on statute of limitations grounds. Without taking evidence, but apparently informed of the pri- or sealed proceedings in the matter — including the adoption order signed in 1996 establishing the parent-child relationship between the adoptive parents and the child — the trial court dismissed the cause with prejudice. We hold that the appel-lees entered a general appearance, but also hold that the appellant affirmatively negated his cause of action in his pleadings by pleading a cause of action that is barred by limitations. Accordingly, we affirm the judgment.

Runnels contends the trial court erred in granting the appellees’ special appearance. Although the document filed by the appellees is titled a special appearance, it is facially a general appearance. A special appearance is a sworn pleading filed “for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State.” Tex.R. Civ. P. 120a(l). The appellant’s petition alleges K.B.S. and the appel-lees reside in Bon Wier, Newton County, Texas, and appellees’ special appearance does not contest that allegation. The ap-pellees’ pleading joined issue in the case and raised an affirmative defense; therefore, the trial court could not properly dismiss the case under Rule 120a. Personal jurisdiction over the appellees was not actually an issue in the case, however, and the trial court evidently dismissed the case because the suit was not timely filed.

Runnels contends the trial court erred in granting the motion to dismiss on grounds of limitations. Unless affirmatively negated by the plaintiffs pleadings, an affirmative defense must be proven at trial or through summary judgment proceedings. See Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997) (“A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.”). Although no motion for summary judgment appears in the clerk’s record, Runnels recognized the limitations issue in a “Response to Motion to Dismiss” and the issue was presented to the trial court for a ruling. The procedure used by the parties below does not conform to the Rules of Civil Procedure applicable to summary judgment motions. However, the judgment of a trial court cannot be reversed on the ground that the trial court made an error of law unless the court of appeals concludes the error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. See Tex.R.App. P. 44.1(a).

Runnels pled that K.B.S. “has no presumed, acknowledged, or adjudicated father.” He also asked for service on the “adoptive” parents, appellees herein, and alleged the “adoptive father of the child the subject of this suit is [M.H.S.].” Thus, Runnels recognized in his pleadings that an adoption had occurred prior to the filing of his petition. Appellees pled that K.B.S. was previously adjudicated to be them child “and the above numbered and entitled cause has been sealed according to past Court orders and should not be utilized in any subsequent Suit Affecting the Parent-Child Relationship.... ” The dis-positive facts are not in dispute and the issue on appeal is one of law: whether K.B.S. had an “adjudicated father” by virtue of the 1996 adoption. Runnels argues he could file his suit at any time because the Family Code permits a putative father to commence a paternity action at any time when the child has no presumed, acknowledged, or adjudicated father. See Tex. Fam.Code Ann. § 160.606 (Vernon 2002). The appellees argue Runnels had to file a paternity suit within four years of the entry of the adoption decree because the Family Code requires a putative father who was not a party to an adjudication to file suit within four years of the effective date of the adjudication. See Tex. Fam. Code Ann. § 160.609(b) (Vernon 2002).

We do not believe the Legislature intended for the statute relied upon by appellant to allow such a disruption to a child who has lived for such a long period of time in a relationship with adoptive parents. At the time of the adoption, the Family Code provided that no adoption could be attacked more than two years after the adoption. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 220 (current version at Tex. Fam.Code Ann. § 162.012 (Vernon 2002)). Standing for a putative father to commence a paternity action at any time is conferred only when the child has no presumed, acknowledged, or adjudicated father. See Tex. Fam.Code Ann. § 160.606. Section 160.102 defines an “Adjudicated father” as “a man who has been adjudicated by a court to be the father of a child.” Tex. Fam.Code Ann. § 160.102 (Vernon 2002). Section 101.024 defines “Parent” as “a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father.” Tex. Fam.Code Ann. § 101.024 (Vernon 2002). Section 160.201(b) states that a father-child relationship is established between a man and a child by five possible means, one of which is adoption. Tex. Fam.Code Ann. § 160.201(b)(4) (Vernon 2002). A father may be a biological father or an adoptive father, and Section 160.609 does not restrict the applicable court proceeding creating the father-child relationship to other parentage actions. We construe the term “adjudicated father” in Section 160.609 to include an adoptive father as well as a father decreed to be a biological parent of the child. Prior to Marvin Runnels’ filing his petition to adjudicate parentage, M.H.S. was adjudicated to be K.B.S.’s father pursuant to the adoption order. Because K.B.S. had an adjudicated father, Runnels was not free to bring his action attempting to establish paternity at any time. The legislature established a four year limitation period within which suit must be commenced under circumstances where the child has an adjudicated father. The record reflects the four-year statutory period ended in December 2000.

Appellants’ own pleadings and the prior adoption order in the file establish the correctness of the dismissal order. We conclude under the circumstances the error in procedure does not require reversal of the trial court’s judgment. See Tex. R.App. P. 44.1(a). The judgment is affirmed.

AFFIRMED.

      . We ordered the record to be supplemented with the sealed adoption record in this cause. The original petition for termination and adoption alleges that the child's father is unknown. No service was perfected or attempted on the unknown father, no attorney ad litem was appointed to represent his interest, and the unknown biological father’s parental rights were not expressly terminated. The biological mother executed an Affidavit of Relinquishment of Parental Rights which was never revoked, and the biological mother’s parental rights were expressly terminated. The trial court entered an Order establishing the parent-child relationship between the child and the appellees and eight years have passed since the Order of Adoption was signed establishing the father-child relationship between the child and appellee M.H.S. On appeal, appellant does not make any constitutional challenge or argument.


text:
    In the Matter of J.A.G., JR.
    No. 09-04-459 CV.
    Court of Appeals of Texas, Beaumont.
    Aug. 11, 2005.

      David Kallus, The Woodlands, for appellants.
    David K. Walker, County Atty., Chris Allen, Asst. County Atty., Conroe, for ap-pellee.
    Before McKEITHEN, C.J., KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

The trial court found J.A.G., Jr., engaged in delinquent conduct by committing the offense of burglary of a habitation. The trial court further found his parents, Maria Zamora and Jose Garcia, Sr., “have by wilful act or omission, contributed to, caused, or encouraged [J.A.G.’s] delinquent conduct.” Pursuant to Tex. Fam.Code Ann. § 54.041 (Vernon Supp.2005), the trial court entered an Order Affecting Parents and Others. The trial court also entered an Order for Payment of Fees in accordance with Tex. Fam.Code Ann. § 54.0411(b) (Vernon 2002). Subsequently, Zamora and Garcia filed a notice of restricted appeal.

Zamora and Garcia alleged that neither participated in a hearing that resulted in the Order for Payment of Fees, entered August 25, 2004. The Order for Payment of Fees recites that a hearing was held on August 25, 2004. Appellants assert they are not aware of any hearing that took place on that date and that if it did, neither of them received notice of the hearing. Further, appellants allege that neither participated in a hearing that resulted in the Order Affecting Parents and Others, entered August 16, 2004. The Order Affecting Parents and Others recites that on August 16, 2004, the Motion for Parenting Orders “came on to be heard.” Appellants assert the motion was not addressed at the August 16 hearing, therefore there was no hearing on the motion and the Order did not result from a hearing in which either Zamora or Garcia participated. Appellants also claim Garcia was not present on August 16.

A restricted appeal must: (1) be brought within six months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be apparent from the face of the record. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). The record reflects appeal was brought within six months of entry of the trial court’s orders. Zamora and Garcia became parties to the proceedings when they were served with the original petition and issued a summons to appear at a hearing in their son’s case. See Adair v. Kupper, 890 S.W.2d 216, 217-18 (Tex.App.Amarillo 1994, no pet.). Accordingly, the first two requirements for a restricted appeal have been met.

We now turn to the issue of whether Zamora or Garcia participated in the proceedings. When analyzing the participation requirement, the question is whether the appellant took part in the decision-making event that resulted in the adjudication of his rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996). “Participation in the decision-making event producing the final judgment adjudicating a party’s rights will cut off that party’s ability to proceed by restricted appeal.” Clopton v. Pak, 66 S.W.3d 513, 516 (Tex.App.-Fort Worth 2001, pet. denied). The nature and extent of participation that precludes a restricted appeal is a matter of degree. Texaco, Inc., 925 S.W.2d at 589.

The record reflects Zamora signed a ‘Waiver of Rights” form which provides, “I further do hereby enter by appearance for all purposes, including the assessment of fees, costs, and restitution, if appropriate.” She was present at the hearing conducted August 16, 2004. On the same day, Zamora signed the Order Affecting Parents and Others. Above her signature is the following:

“WARNING: You are hereby notified that failure to comply with the attached orders can result in contempt. ...”
1. Order Affecting Parents and Others
2. Order for Payment of Fees

The Order for Payment of Fees, although not signed until August 25, was filed for record on August 16.

The decision-making event in this case is the August 16 hearing. Zamora was present and signed the Order Affecting Parents and Others, which includes an acknowledgment of the Order for Payment of Fees. Under these facts, we conclude that Zamora participated in the decision-making events that resulted in the orders at issue in this case. Accordingly Zamora’s appeal is dismissed for want of jurisdiction. See Tex.R.App. P. 30.

Regarding Garcia, the record reflects he was not present at the August 16 hearing. While the State asserts Garcia received adequate notice, the State makes no argument that Garcia participated in the decision-making event so as to cut off his ability to proceed by restricted appeal. See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 423 (Tex.App.-Dallas 2004, no pet.). We find Garcia did not participate in the decision-making event that produced the orders in question.

The final requirement is that the complained-of error appear on the face of the record.

Review by restricted appeal entitles the appellant to the same scope of appeal as an ordinary appeal, except the error must appear on the face of the record. Tex.R.App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam). For purposes of a restricted appeal, the record consists of all documents on file with the trial court at the time of judgment. Norman Communications, 955 S.W.2d at 270.

Armendariz v. Barragan, 143 S.W.3d 853, 854 (Tex.App.-El Paso 2004, no pet.).

Garcia alleges there is error on the face of the record in that the Orders were entered in violation of his right to due process because he never received notice. Garcia further complains the State failed to obtain a hearing and adduce evidence on the issues addressed by the Orders.

The Family Code provides that in order to comply with due process requirements, the juvenile court shall provide notice of a proposed juvenile order and a sufficient opportunity for the parent to be heard regarding the proposed order. See Tex. Fam.Code Ann. § 61.003 (Vernon Supp.2005). The record reflects Garcia was served with the original petition and issued a summons to appear in court at the place, date and time of the original hearing. The original petition gave Garcia notice of the claims for fees and restitution sought by the County. Section 51.115 of the Texas Family Code mandates that each parent of a child attend each hearing affecting the child, subject to contempt powers of the court. See Tex. Fam.Code Ann. § 51.115 (Vernon 2002). At the August 16, 2004 hearing, the trial court asked where Garcia was and Zamora replied, “Working.” She admitted they live together as man and wife and the record reflects they are married. The trial court questioned whether Garcia had signed the parent order and counsel for J.A.G. stated, “He is not coming, Judge.” Zamora said, “Sir, what can I say? I’m here for my son, and I can’t make my husband do it.”

A defendant who makes an appearance following service of process is entitled to notice of the trial setting as a matter of constitutional due process. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.Ct. 896, 899-900, 99 L.Ed.2d 75, (1988); LBL Oil Co. v. Int’l Power Serv., Inc., 777 S.W.2d 390, 390-91 (Tex.1989). The same is not true if the defendant fails to answer or otherwise appear. The law imposes no duty on the plaintiff to notify a defendant before taking a default judgment when he has been served properly with the citation and petition, and nonetheless has failed to answer or otherwise appear. See Brooks v. Assoc. Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex.App.-Houston [14th Dist.] 1994, no writ).

Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). It is uncontested that Garcia was served. Garcia does not contest the propriety of the citation or the method of service. Although the record does not reflect Garcia was informed of the date of the August 16 hearing, he had been put on notice of the claims that were adjudicated at that hearing. Because he failed to appear in response to the original citation, the court could adjudicate those claims without further notice. We find Garcia has failed to show error on the face of the record regarding his claim that he had no notice.

We now turn to Garcia’s complaint that the record is insufficient to support the trial court’s orders. Specifically, Garcia claims there is no evidence (1) that J.A.G.’s parents, by willful act or omission, contributed to, caused or encouraged J.A.G.’s delinquent conduct; (2) that J.A.G.’s parents are financially able to pay; and (3) of the amounts ordered by the trial court.

The record contains Recommendations for Detention by Referee wherein the Referee found, “The parent/guardian lacks sufficient parenting skills to provide adequate supervision.” Also in the record is a Social History Summary for J.A.G. It states, “Based on the two referrals received ... it appears that the parents are having a difficult time keeping the child under control. Neither incident was reported to the department by the parents nor had they reported difficulty controlling the child. The parents present the appearance that they are trying to control the child. They have taken no action that would support that appearance.” Thus, there is evidence on the face of the record to support the trial court’s finding.

The record does not show, on its face, that the parents are unable to pay and the Summary states both parents are employed. Moreover, Garcia does not refer this court to any authority that a finding of ability to pay is required to enter an Order for Payment of Fees. It is, however, an affirmative defense in an enforcement hearing. See Tex. Fam.Code Ann. § 61.056 (Vernon Supp.2005).

The Summary reflects amounts for restitution, detention, UA fees, court costs, and Kid Chat. The record contains an Affidavit of the Itemized Time, Services and Expenses for Court Appointed Counsel. A report from the court-appointed investigator contains facts regarding the amount owed in restitution and the investigator’s rates and expenses. This constitutes some evidence supporting the fees ordered to be paid.

Garcia relies on the fact that no eviden-tiary hearing was conducted and fails to address the evidence filed with the trial court or explain why that evidence is insufficient to support the trial court’s orders. See Tex.R.App. P. 38.1(h). See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, at 781-82 (Tex. 2005, pet. for rehearing filed) (not yet released for publication) (“both the Legislature and this Court have discouraged oral presentation of testimony and evidence when they can be fairly submitted in writing.”) For all these reasons, we find Garcia has failed to show error on the face of the record. Having failed to meet all the requirements for a restricted appeal, we dismiss Garcia’s appeal for want of jurisdiction. See Tex. R.App. P. 30.

DISMISSED FOR WANT OF JURISDICTION.

      . We note that Garcia is entitled to raise as an affirmative defense to enforcement of a juvenile court order that the juvenile court did not provide him with due process of law in the proceeding in which the order was entered. Tex. Fam.Code Ann. § 61.055(g) (Vernon Supp. 2005). References