author: TERRY JENNINGS, Justice.

text:
    Habibollah YAZDCHI, Abbas Yazdchi, and Ahmad Yazdchi, Appellants, v. BANK ONE, TEXAS, N.A. and Chase Bank, Texas, N.A., Appellees.
    No. 01-03-00793-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 21, 2005.
    Rehearing Overruled June 16, 2005.

      William E. Ryan, Law Offices of William E. Ryan, Houston, TX, for Appellant.
    Jennifer L. Davis, McGlinchey Stafford, P.L.L.C., Maureen A. Wharton, Houston, TX, Bradley J. Johnson, Bank One Law, Compliance & Government Relations, Dallas, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

TERRY JENNINGS, Justice.

Appellants, Habibollah Yazdchi (“Habi-bollah”), Abbas Yazdchi (“Abbas”), and Ahmad Yazdchi (“Ahmad”) (collectively “the Yazdchis”), challenge the trial court’s rendition of summary judgment in favor of appellees, Bank One, Texas, N.A. (“Bank One”), and J.P. Morgan Chase Bank, successor by merger to Chase Bank of Texas, N.A. (“Chase”) (collectively, “the Banks”), in the Yazdchis’ breach of contract suit to recover funds transferred to a court-appointed receiver from accounts held under their names at Bank One and Chase. In two issues, appellants contend that the trial court erred (1) in granting summary judgment in favor of the Banks and (2) in denying their motion to set aside the non-suit of Habibollah’s claims against Chase. We affirm.

Factual and Procedural Background

Before the actions giving rise to this lawsuit, the State of Texas, in November 1999, filed suit against Ali Yazdchi (“Ali”), a son of Habibollah and a brother of Abbas and Ahmad, in which the court entered a temporary restraining order against Ali after finding that Ali may have been violating various provisions of the Deceptive Trade Practices-Consumer Protection Act. In this separate lawsuit (the “Ali action”), the court concluded that, unless it restrained Ali from engaging in certain acts and froze Ali’s assets, Ali would “continue to use deception in the sale of motor vehicles to consumers” and “secrete his assets before a judgment for restitution [could] be entered.” The court ordered numerous financial institutions, including Bank One and Chase, that were “holding money in the name of and/or for the benefit of the above named Defendant,” to freeze funds “belonging to or owned by, in the possession or custody of, standing in the name of, or claimed by said Defendant, or any of Defendant’s aliases.” The order identified and “covered” twenty-four accounts, by account number, at eighteen separate financial institutions, including four “known” accounts at Bank One and two “known” accounts at Chase.

After conducting a hearing and considering evidence, the court entered a temporary injunction and appointed a temporary receiver. The court found, among other things, that it appeared Ali “fraudulently kept all monies given to him by consumers ... and deposited same into bank accounts owned and controlled by [him],” “sought to conceal and/or dissipate assets,” “used a number of different aliases and false addresses to conceal his identity, assets and whereabouts,” and “sought to avoid paying creditors and judgments filed against him.” The court also found that “if assets currently in the name (or alias name) of defendant and controlled by defendant are not frozen pending final trial, that said assets are subject to secretion and dissipation by the defendant.” The court ordered financial institutions “holding money in the name of and/or for the benefit of the above named Defendant” to freeze funds “belonging to or owned by, in the possession or custody of, standing in the name of, or claimed by said Defendant, or any of Defendant’s aliases.” The court appointed the Honorable David West as the temporary receiver “of Ali Yazdchi and any assets standing in the name of Ali Yazdchi or any alias of Ali Yazdchi.” The court authorized West to “take possession and charge of all property and assets of defendant Ali Yazdchi ... including, but not limited to,- any deposits made by or for Ali Yazdchi (or any alias name of Ali Yazdchi) with any bank ... including all assets standing - in an alias name of defendant.” The temporary injunction contained a section titled “Direction to all Depository Institutions,” which prohibited the Banks from transferring any property belonging to Ali “or standing in any alias name of’ Ali. The temporary injunction also contained a section titled “Turn Over Order and Authority for Third Parties,” which commanded all third parties, including the Banks, holding assets belonging to Ali, “jointly or singularly, or standing in the name of an alias of Defendant ... to immediately place all such assets in the custody” of the receiver. After the temporary injunction was entered and the receiver appointed, the receiver acquired possession of funds on deposit with the Banks in accounts held under the name of Ali or appellants.

The Ali action concluded with the entry of an Agreed Final Judgment, Permanent Injunction, and Appointment of Permanent Receiver. In the final judgment, the court ordered that Ali, “his assigns, officers, agents, servants, employees, relatives ... and any other persons in active concert or participation with him” be restrained from engaging in various acts including “[ujsing any type of name, other than ‘Ah Yazdchi’ in any type of transaction ...,” “[rjepresenting, expressly or by implication, that defendant is any other person, other than-‘Ali Yazdchi,’” “[a]c-quiring, obtaining, or using any credit card under any name other than ‘Ah Yazdchi,’ ” “[cjreating, altering, falsifying, modifying or changing real estate records ..., using alias names, hiding one’s identity or clouding title to realty,” and using incorrect social security numbers, Texas driver’s license numbers or birth dates. The court also directed the distribution of the “frozen funds.”

Over two years after entry of the final judgment, appellants brought this suit against Bank One and Chase, as well as the State and David West, seeking to recover the funds that had been transferred from the Banks to West pursuant to the temporary injunction. The Banks filed separate summary judgment motions. Bank One asserted that appellants’ claims were barred because it turned over funds held in accounts in Ali’s name or appellants’ names pursuant to a court order. Bank One argued that it was required to comply with the restraining order and temporary injunction, and that it was not required to conduct an investigation into the ownership of the accounts prior to complying. Bank One also argued that section 31.010 of the Texas Civil Practice and Remedies Code protected it from liability to appellants for compliance with the court orders.

Chase made similar arguments in its summary judgment motion. Additionally, Chase argued that its depository contract with H'abibollah protected it ficom liability to Habibollah and that Habibollah’s claims were barred by section 59.008 of the Texas Finance Code because Habibollah failed to take any action to prevent it from complying with the court orders.

The court rendered summary judgment in favor of the Banks, severed appellants’ claims against the Banks from their claims against the other defendants, and entered a final judgment. Subsequently, Habibol-lah filed a motion for nonsuit, requesting that the court dismiss his claims against Chase with prejudice, which the court granted. After the nonsuit was granted, Habibollah changed counsel and filed a motion to set aside the nonsuit, claiming that his previous attorney did not have authority to file the nonsuit. The record does not contain a ruling by the trial court on this motion.

Standard of Review

A party moving for summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Farah v. Mafrige & Kormanik, 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-mov-ant will be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549. When a defendant moves for summary judgment, it must either (1) disprove at least one element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiffs cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Farah, 927 S.W.2d at 670.

Here, the summary judgment order did not specify the grounds upon which the trial court relied, and thus the appellants, as the non-movants, are required to show that each summary judgment ground alleged was insufficient to support summary judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). Accordingly, we will affirm the trial court’s summary judgment order if any of the grounds presented in the supporting motion was meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Turn Over

Appellants contend that the trial court erred in rendering summary judgment in favor of the Banks on their breach of contract claims for several reasons. First, appellants argue that their rights to the funds on deposit with the Banks were not adjudicated in the Ali action because they were neither parties nor privies to the Ali action, and therefore no order entered in that case could affect their legal rights. Second, appellants argue that the Banks misinterpreted the orders entered in the Ali action as applying to funds held in accounts under their names, when such orders only applied to assets actually owned by, or in the possession of Ali. Appellants assert that the temporary injunction contained a “latent ambiguity” created by reference to Ali’s aliases and that the lawful interpretation of the temporary injunction is that the order transferred assets standing in an alias name only when Ali was actually using the alias name as an alias. Appellants conclude that the Banks unlawfully transferred assets standing in their names without regard to whether Ali actually owned or was in possession of those assets. Third, appellants contend, by analogizing to garnishment law, that neither Bank was obligated by law to turn over funds in accounts held in their names. Appellants allege that the Banks “were on notice of conflicting claims of ownership to these accounts” by the account holders, and thus the Banks had a right and duty to interplead the funds. Fourth, appellants dispute the application of the statutory defenses cited by the Banks.

We agree with the parties that the primary legal issue in this case concerns the legal effect of the orders, and primarily the temporary injunction, issued in the Ali action. We begin our analysis with consideration of the statutes that the Banks contend protect them from liability to the appellants for compliance with the court’s orders entered in the Ali action.

A financial institution that complies with an order to turn over assets to a receiver is not hable for such compliance to:

(1) the judgment debtor;
(2) a party claiming through the judgment debtor;
(3) a co-depositor with the judgment debtor; or
(4) a co-borrower with a judgment debt- or;

Tex. Civ. PRAC. & Rem.Code Ann. § 31.010 (Vernon Supp.2004-2005). Additionally, when a claim is made against a customer of a financial institution, “[t]he customer bears the burden of preventing or limiting a financial institution’s compliance with or response to [such] claim_” Tex. Fin. Code Ann. § 59.008(c) (Vernon Supp.2004-2005).

Appellants argue that the protections afforded in section 31.010 do not apply because appellants are not suing the Banks for “compliance with a court order”; rather, appellants contend that no court order compelled the transfer of funds to the receiver. Appellants further assert that they do not fit the description of the four classes of persons to whom section 31.010 applies, and thus their claims against the Banks are not barred. Similarly, appellants argue that section 59.008 of the Finance Code does not apply because when the Banks transferred the funds based on an alleged misinterpretation of the orders, the Banks were taking actions that were not compelled by the orders, and thus they were not “complying with a court order.” Appellants also assert that none of the turn over orders entered in the Ah action make a claim against them, the “customers” of the Banks, but instead make a claim against Ah, who appellants ahege was not a customer of the Banks.

When we construe a statute, our primary goal is to ascertain and give effect to the legislature’s intent in enacting it. In re Canales, 52 S.W.3d 698, 702 (Tex.2001). If a statute is clear and unambiguous, we need not resort to rules of construction or other aids to construe it. Id. However, we may consider, among other things, the statute’s objectives, the legislative history, and the consequences of a particular construction. Id.

A plain reading of section 31.010 reveals that the protections afforded by the statute apply to protect the Banks from liability to appellants for complying with the orders issued in the Ali action. The turn over orders are unambiguous and expressly required financial institutions, including the Banks, holding assets belonging to Ali, jointly or singularly, or standing in the name of any alias of Ali, including the names of the appellants, to immediately place all such assets in the custody of the receiver. The Banks complied with the orders by turning over all such assets.

The protections afforded under section 31.010 entitled the Banks to comply with the plain language of the orders entered in the Ali action and to presume that prior to entry of those orders, the court found that the funds in the accounts held under appellants’ names were effectively in Ali’s possession or were subject to his control. See Tex. Civ. PRác. & Rem.Code Ann. 31.010(b). While there is no evidence that the Banks participated in the Ali action or sought to determme the rationale for the court’s decision to enter the temporary injunction, they were not' required to do so. The Banks received a copy of the order, indicating that the court had found that Ali was using accounts at their institutions, under alias names, to deposit funds from illegal activities. The court commanded the Banks to turn over funds held in these accounts. Section 31.010 permitted the Banks to rely on the court’s orders without conducting an independent investigation and without fearing that they would be subject to liability for complying with the plain language of the orders.

Contrary to appellants’ argument, the Banks were not required to disprove appellants’ allegations of ownership in order to be entitled to summary judgment. Section 31.010 applies to protect the Banks from liability from a broad class of persons, not simply the named judgment debtor or the named account holder. Tex. Civ. PRác. & Rem.Code Ann. § 31.010(b). The statute’s inclusion of a broad class of persons indicates that the statute seeks to encourage a financial institution to comply with a turn over order even when there might be competing or unresolved claims to the accounts identified in the order. For example, under the statute, if an order compels a financial institution to turn over all accounts held by a judgment debtor, and the financial institution turns over funds held by the judgment debtor in a joint account, the financial institution would be protected from liability for claims brought by the joint account holder. Tex. Civ. Peac. & Rem.Code Ann. § 31.010(b)(3). In this case, while Ali and appellants were not named joint account holders, the court in the Ali action necessarily found that the funds in “appellants’ accounts” were actually in Ali’s possession or subject to Ali’s control. Thus, appellants can be characterized as “co-depositors” on the accounts that were subject to the turn over order, and appellants’ claims are barred by section 31.010. See id.

Moreover, section 59.008 of the Finance Code also protects the Banks from liability on the appellants’ breach of contract cause of action. Section 59.008 states:

The customer bears the burden of preventing or limiting a financial institution’s compliance with or response to a claim subject to this section by seeking an appropriate remedy, including a restraining order, injunction, protective order, or other remedy, to prevent or suspend the financial institution’s response to a claim against the customer.

Tex. Fin.Code Ann. 59.008(c). Section 59.008 unequivocally places the burden on a customer of a financial institution to prevent a financial institution from complying with or responding to notices of freeze, receivership, restraining orders, and injunctions asserting or establishing claims against customer accounts. Id. Appellants did not present any evidence nor do they contend that they took any action, other than the filing of this lawsuit over two years after the entry of the temporary injunction and the final judgment, to prevent the Banks from complying with the orders.

Finally, precedent in the garnishment context, which the parties agree is analogous to the facts presented in this case, supports the Banks’ contention that they were not required to conduct an investigation into the ownership of the funds prior to complying with the court’s orders in the Ah action. In Bank One, Texas, N.A. v. Sunbelt Savings, F.S.B., 824 S.W.2d 557, 557-58 (Tex.1992), an individual judgment debtor commingled his personal assets with company assets in a company account at Bank One. The plaintiff obtained a writ of garnishment against Bank One to collect against the individual judgment debtor, but instead of naming the company in the writ, the plaintiff merely named the individual judgment debtor, who did not maintain an individual account at Bank One. Id. at 558. Bank One answered the writ by stating that it was not indebted to the company. Id. The supreme court affirmed judgment in favor of Bank One, holding:

When a creditor wants to challenge title to funds held by a third party, the creditor should seek a writ of garnishment naming the nominal owner, not the true owner. The court is then responsible for determining time ownership. Requiring a garnishee bank to determine true ownership of its deposits improperly shifts judicial responsibility to the garnishee.

Id.; see also Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 162 (Tex.App.Houston [14th Dist.] 1996, writ denied) (finding bank’s failure to impound funds held in accounts of person not named in writ of garnishment did not violate the writ). Similarly, here the Banks received the restraining order and the temporary injunction, and based on the plain language of those orders, the Banks froze accounts held under appellants’ names and turned over the funds in those accounts to the court-appointed receiver. The face of the orders commanded them to do so. Requiring the Banks to inquire into the true ownership of the accounts would improperly shift judicial responsibility to the Banks.

Accordingly, we hold that the Banks, as a matter of law, are not liable for the funds transferred from the appellants’ accounts to the court-appointed receiver pursuant to the orders entered in the Ah Action. Although the orders entered in the Ali action did not adjudicate the appellants’ ownership rights to the funds transferred by the Banks to the receiver, the Banks, under Civil Practice and Remedies Code section 31.010 and Finance Code section 59.008 and under common law, are protected from liability to the appellants for compliance with those orders. We further hold that the trial court did not err in granting summary judgment for the Banks on the appellants’ claim for breach of contract.

We overrule appellants’ first issue.

Nonsuit

In his second issue, Habibollah contends that the nonsuit of his claims against Chase vacated the summary judgment entered in favor of Chase, that the trial court should have granted his motion to set aside the nonsuit, and that his claims against Chase should be remanded to the trial court for further consideration. However, it is well settled that a party may not escape the effects of an unfavorable ruling on the merits by taking a nonsuit of its claims. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.1995) (stating that a decision on the merits, such as a summary judgment, is not vitiated by a nonsuit; rather, “[o]nce a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiffs right to nonsuit.”). Thus, Habibollah’s contention that the nonsuit of his claims against Chase vacated the previous final summary judgment entered in favor of Chase lacks merit.

Having held that the trial court did not err in rendering summary judgment in favor of the Banks, we overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . State of Texas v. Ali Yazdchi, also known as Al Giovanni, Habibollah Yazdchi, Habibolah Yazdchi, Hosein Y. Mohamad, Mohamed H. Yazdchi, Abbas Yazdchi, A. Abbasyazdchi, Ahmad Yazdchi, Habibolloah Yazdchi, Ali Yazdi, Habibolah Yazdi, Amir Ahmad, Yazdchi Habibollah, Yazdchi Ali, Yazdchi Mohamad, Yazdchi Habibolah, Yazdchi Ahmad, A. Yazdchi Habibolah, A. Yazdchi, A. Yazdchi Abbas, A. Aliyazdchi, Sidney Sam Hessein, Mike Jones, Al Auto, Al Auto Sales, All's Cars, Ali's Cars, and Alis Cars, No. 1999-57020, pending in the 61st Judicial District Court of Harris County, Texas, the Honorable John Donovan presiding.

      . Tex. Bus. & Com.Code Ann. §§ 17.41-17.63 (Vernon 2002 & Supp.2004-2005).

      . The order restrained Ali Yazdchi from engaging in various acts and practices, including destroying his business records, purchasing and reselling vehicles from salvage or junk yards, turning back odometers on vehicles, and using any type of alias in selling or marketing goods or services.

      . The court noted that “[gjiven the likelihood of dissipation of Defendant’s assets prior to rendition of a final judgment, the possibility of restitution for consumers will be remote unless an order freezing assets is granted.”

      . The order expressly incorporated and applied to the names in the caption of the case.

      . While we are not presented with a full account of the proceedings in the Ali action prior to the entry of the temporary injunction, the record reveals that Habibollah testified at the injunction hearing concerning the funds in the bank accounts allegedly held in his name. Habibollah testified that some of his money was brought from Iran to the United States by friends, but that he did not know the name of the bank where his money was deposited, he had not personally made any deposits and he did not know the amount of money deposited. There is no indication that Abbas or Ahmad testified or otherwise participated in the Ali action.

      .The temporary injunction stated that it applied to financial institutions holding funds "[wjhether in defendant’s name or an alias name, including all financial accounts standing in any of the following names, to wit: Hosein Y. Mohamad, A. Abbasyazdchi, Habi-bollah Yazdchi, Ahmad Yazdchi, Habibolloah Yazdchi, Ali Yazdi, Habibolah Yazdi, Ali’s Cars, Ali Yazdchi, Yazdchi Habibollah, Amir Ahmad, Yazdchi Ali, Yazdchi Mohamad, A. Yazdchi, A. Yazdchi Abbas, Abbas Yazdchi, A. Aliyadchi, A. Aliyazdchi, or Habibolah Yazd-chi.”

      . In their brief, appellants concede that, the temporary injunction "specifically applied to all financial accounts standing in the names of Habibollah, Abbas and Ahmad.”

      . The aliases covered by the temporary injunction included those identified in the restraining order, the caption of the case, and the State’s application for the restraining order and the temporary injunction.

      . The record concerning the funds held in accounts at Bank One under appellants' names contains some discrepancies. The restraining order expressly applied to four Bank One accounts. Appellants assert that they held three Bank One accounts and concede that two of those accounts were identified, by account number, in the order. Bank One claims that there were only two accounts held under Ali's or appellants' names. However, Bank One admits that "all accounts under Ali Yazdchi’s name or his aliases' names” were transferred to the receiver pursuant to the temporary injunction. The record concerning the Chase accounts is much clearer; the funds transferred from Chase had previously been held in two accounts opened in the name of "Yazdchi Habibollah,” a name identified in the restraining order and the temporary injunction. Additionally, both of these accounts were specifically identified, by account number, in the restraining order.

      . “Relatives” was defined in the , final judgment to mean any person who is Ali’s father, mother, brother or sister.

      . The court ordered that a portion of the frozen funds be returned to Ali and that a portion of the frozen funds be transferred to the State to be distributed as restitution to those injured by Ali.

      . See Tex. Civ. Peac. & Rem.Code Ann. § 31.010 (Vernon Supp.2004 — 2005).

      . The terms and conditions applicable to “Yazdchi Habibollah’s” accounts with Chase included the following provisions:
      If any action, including administrative proceedings, garnishment, tax levies, restraining orders or other action is brought against you or your account, you agree to protect us from any liability or expense which may result from the action unless that liability or expense is the result of our breach of this agreement with you.... We have the right to pay any money from your account that is required by law....

      . See Tex. Fin.Code Ann. § 59.008 (Vernon Supp.2004-2005).

      . Bank One and Chase attached to their summary judgment motions copies of the restraining order, the temporary injunction, and the final judgment. Chase also attached an affidavit of its custodian of records along with the signature cards for the accounts held in the name of Yazdchi Habibollah, the terms and conditions applicable to those accounts, the statement sent to the address on the accounts after the funds were transferred to the receiver, indicating that a "forced debit” had been applied to the accounts, and the check sent to the receiver.

      . Appellants expend much effort in arguing that the doctrines of res judicata and collateral estoppel do not apply to preclude their claims against the Banks in this suit. However, neither Bank relied on these doctrines in their summary judgment motions, and discussion of these doctrines is not necessary to the disposition of this appeal.

      . We do not consider appellants' arguments, made for the first time in their reply brief, that the orders entered in the Ali action do not constitute competent summary judgment evidence or that Bank One did not establish that it relied on the orders in turning over the assets to the receiver. TexR.App. P. 38.3.

      .The Texas Civil Practice & Remedies Code sets forth procedures that enable parties to seek aid from courts in order to reach property of a judgment debtor. See Tex. Civ. Prac. & Rem.Code Ann. §§ 31.002, 64.001(a) (Vernon Supp.2004-2005). For example, a court may "order the judgment debtor to turn over nonexempt property that is in the debtor’s possession or is subject to the debtor’s control ... to a designated sheriff or constable....” Tex Civ. Prac. & Rem.Code Ann. § 31.002(b)(1) (Vernon Supp.2004-2005) (emphasis added). A court may also "appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.” Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(3) (Vernon Supp.2004-2005). Furthermore, a receiver may be empowered to take charge and keep possession of a property and make transfers, subject to the control of a court. Tex Civ. Prac. & Rem. Code Ann. §§ 64.031(1), (4) (Vernon Supp. 2004-2005).

      . "Financial Institution” is defined to include a state or national bank. Tex. Civ. Prac. & Rem.Code Ann. § 31.010(d) (Vernon Supp. 2004-2005).

      . A "[c]laim against a customer” includes a "notice of freeze, ... notice of receivership, restraining order, injunction or other instrument served on or delivered to a financial institution and purporting to assert, establish or perfect any interest in or claim against an account ... held or established by the financial institution in the name of the customer or for the benefit of the customer Tex. Fin. Code Ann. § 59.001(2) (Vernon Supp.2004-2005) (emphasis added). " ‘Customer’ means a person who uses, purchases, or obtains an account. ...” Tex. Fin.Code Ann. § 59.001(4) (Vernon Supp.2004-2005) (emphasis added).

      . The record indicates that Habibollah testified during the temporary injunction hearing in the Ali action. After his testimony, the court entered the injunction, effectively finding that the accounts held under the name "Yazdchi Habibollah” contained funds actually held by Ali, in Ali’s possession, or subject to Ali’s control. Thus, in issuing the injunction, the court in the Ali action purposefully included, as aliases, the names of the appellants, while knowing that some of the aliases referred to Ali's real-life relatives. It is apparent that the court intended to cover these accounts when it issued the injunction. Whether the court's findings were correct is not at issue in this appeal.

      . Certainly, a financial institution could take actions not protected by section 31.010 and we generally agree with appellants’ statement that section 31.010 would not apply if a financial institution mistakenly paid money out of an account. For example, if a financial institution received a turn over order directing it to turn over assets of Company ABC, but instead inadvertently turned over assets of Company XYZ, who maintained a separate account and was not identified in the order, nothing in section 31.010 would prevent Company XYZ from suing the institution. However, in this case, the order specifically identified accounts held in appellants’ names, and it is clear from the record that the court intended to reach accounts held in appellants' names. Thus, the argument that the Banks mistakenly paid funds from appellants' accounts is not correct.

      . We do not address whether the Banks had the right to interplead the funds. However, we reject appellants' contention that the Banks had a duty to interplead the appellants’ funds because the statute clearly contemplates that a financial institution may be compelled to turn over assets even when there is a potential for competing claims.

      . We note that although appellants argue that they are not suing the Banks for complying with a court order, appellants concede, in their brief, that the "primary legal issue in this case concerns the legal effect of the orders” issued in the Ali action.

      .Chase has presented evidence that after it applied a forced debit to the account in response to the temporary injunction, it sent notice to the account holder, "Yazdchi Habi-bollah,” and that it received no complaints until the filing of this lawsuit.

      . In light of our holding that, based on statutory and common law, the appellants cannot pursue their claims against the Banks, we need not address whether HabiboUah's claim against Chase is barred by the express terms of his depository contract with Chase.

      . We reject Chase's argument that Habibol-lah waived his right to appeal the summary judgment by filing his nonsuit with prejudice. In Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.1995), after the trial court rendered partial summary judgment in favor of the defendant, it entered a nonsuit dismissing the claims adjudicated by the summary judgment with prejudice. The supreme court reversed the court of appeals' holding that the summary judgment did not withstand the plaintiff’s nonsuit, stating that "[a] nonsuit after such a judicial pronouncement results in a dismissal with prejudice as to the issues pronounced in favor of the defendant.” Id. The supreme court went on to state that the court of appeals did not consider whether the trial court erred in entering summary judgment on the plaintiff's claims, and remanded these claims to the court of appeals for consideration. Id. Thus, Hyundai Motor Co. indicates that, even if the appellant’s claims against Chase were dismissed with prejudice after the entry of the summary judgment, this Court should still consider whether the trial court erred in entering the summary judgment in favor of Chase.


source: Caselaw Access Project

license: Public Domain

text:
    James Lee MULVIHILL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00501-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 21, 2005.
    Discretionary Review Refused Dec. 14, 2005.
    Steven R. Rosen, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

TERRY JENNINGS, Justice.

A jury found appellant, James Lee Mul-vihill, guilty of the offense of aggravated sexual assault of a child and assessed his punishment at confinement for 20 years. In his sole point of error, appellant contends that the trial court erred in admitting unqualified expert testimony. We affirm.

Factual and Procedural Background

Paula Johnson, the complainant’s mother, testified that she and appellant married in 1981 and that they subsequently had two daughters, the complainant and her older sister. In August 2000, due to marital difficulties, Johnson and appellant separated, and Johnson, the complainant, and the older sister moved into an apartment. Johnson explained that, before the middle of the complainant’s sixth-grade year, in early 2001, the complainant had been a “good,” “sweet,” and “[hjappy, lovable child.” However, in early 2001, the complainant had adopted a “tough-girl type exterior.” Johnson had also noticed other changes in the complainant. Johnson was notified twice by the complainant’s school that the complainant had told other students that she was going to commit suicide. The complainant also began telling lies, including telling neighbors that appellant had died of a heart attack. Furthermore, the complainant also consumed Xa-nax bars that other students had given to her.

Johnson further testified that, in June 2008, after Johnson picked up the complainant from the house of Cathy Lookof-sky, appellant’s sister, the complainant first told her that appellant had been touching the complainant inappropriately. About two weeks later, Johnson reported the information to the Baytown Police Department. She then placed the complainant in counseling with Dene Edmiston, a counselor at the New Horizons Center in Baytown, Texas, where the complainant was still receiving counseling at the time of trial.

The complainant testified that, on February 14, 2001, when she was 12 years old, she spent the night at appellant’s house. After she fell asleep, she was awakened when she felt appellant digitally penetrate her vagina. Appellant told her not to “tell anybody because [he] could go to jail.” The next morning, while appellant was driving the complainant back to Johnson’s apartment, appellant told her that if she “ever walked out of [his] life, that his life would be over right there.” Two weeks later, the complainant moved in with appellant, who touched her in a similar manner between two and ten times until the complainant moved back to Johnson’s apartment on March 31, 2001. However, in July 2001, after Johnson’s and appellant’s divorce was finalized, pursuant to a standard possession order, the complainant began visiting appellant every other weekend and on holidays. She explained that her visits with appellant were “good for a while,” but then appellant again began entering her bedroom at night and digitally penetrating her vagina. He continued to touch her in such a manner during every weekend visit until appellant left the country in April or May of 2002. The complainant explained that, after éach time appellant touched the complainant, while driving the complainant back to Johnson’s house, appellant would cry and tell the complainant that he loved her, that he wanted her to live with him, and that he did not want her to leave him. She also explained that appellant’s behavior made her feel guilty and “bad” and that she did not immediately tell anyone what had happened because she “didn’t want [appellant] to go to jail.” In June 2003, shortly before appellant returned to the United States, the complainant first told Lookofsky and then told Johnson that appellant had been touching her inappropriately.

As part of its case-in-chief, the State called Dene Edmiston, a counselor who had been treating the complainant, to testify. Edmiston testified that, in total, she had worked with sexually abused persons for three-and-one-half to four years. She explained that, at the time of trial and for the past two-and-one-half years, she was a counselor for New Horizons Center in Baytown, Texas, where she counseled those who had been sexually assaulted, sexually abused, and victimized by domestic violence. She explained that, on average, she had a caseload of 35 to 45 clients per month at New Horizons and that her clients’ ages ranged from ages four to fifty. Regarding her educational experience, she testified that she had a bachelor’s degree in humanities with an emphasis on women’s studies and that she had a master’s degree from the University of Houston at Clear Lake in behavioral sciences and human services with an emphasis on working with victims of domestic violence and sexual assault. Edmiston explained that her master’s degree program consisted predominantly of psychology courses. She also explained that, as a requirement for her master’s degree, she completed an internship at the Houston Area Women’s Center (HAWC). Furthermore, she testified that she had also volunteered at HAWC prior to fulfilling her internship requirement.

Thereafter, appellant requested a voir dire examination, outside the jury’s presence, to determine whether Edmiston was qualified to testify as an expert concerning the symptoms exhibited by sexually abused children. During voir dire, Edmi-ston admitted that she was neither a psychiatrist nor a psychologist. She reiterated her educational background and work history and stated that she regularly attended continuing education classes, including classes with Depelchin Children’s Center and the Texas Association on Sexual Assault. She also explained that her master’s degree program at HAWC had required her to complete an internship consisting of at least 500 hours. At HAWC, Edmiston had worked with young adults and adults who had been victims of domestic violence or who had been sexually assaulted. Prior to and separate from her internship for her master’s degree, she had volunteered at HAWC while she was obtaining her bachelor’s degree. Edmi-ston also explained that she had counseled the complainant on almost a weekly basis for the eight months prior to appellant’s trial.

At this point, appellant objected to Ed-miston’s qualifications as to proffering an opinion regarding the symptoms exhibited by sexually abused children and whether the symptoms exhibited by the complainant were consistent with such symptoms. Appellant argued that Edmiston did not have “the proper education,” the “proper hands-on experience,” and “the proper knowledge” to determine if “somebody is a victim of sexual abuse,” and that, in order for Edmiston to be qualified to testify as an expert, “she has got to show you something through literature, through medical experience, working in conjunction with doctors, psychologists, or psychiatrists.”

The trial court then asked Edmiston how many sexually abused children or young adults Edmiston had counseled, to which Edmiston replied 25 or 30. After confirming that the State would not solicit an opinion from Edmiston as to the complainant’s credibility or whether Edmiston herself believed that the complainant was sexually assaulted, the trial court ruled that Edmiston could testify as an expert concerning the symptoms exhibited by sexually abused children and - whether the complainant’s behavior was consistent with such symptoms. Appellant requested and received a running objection regarding Edmiston’s testimony as to the symptoms exhibited by sexually abused children.

Edmiston then described the symptoms that sexually abused children generally exhibit. She explained that every sexually abused child or teenager responds differently to his or her abuse, depending upon his or her mental development. She then explained to the jury the various ways that both children and teenagers feel and behave after being sexually abused, especially when the abuse is committed by a parent. She explained that abused children can he and engage in inappropriate behavior. Edmiston also told the jury about the process of “grooming,” whereby a perpetrator treats a child in a special or different manner from the way he or she treats others in order to gain access to the child. She noted that children often do not report sexual abuse immediately because they are confused and, depending upon their mental development, do not have the skills to communicate what has happened to them. She also explained that the sexual abuser may persuade the child not to tell anyone of the abuse because the abuser may be sent to jail. She concluded by testifying, that, in her opinion, the complainant had exhibited behavioral symptoms consistent with those exhibited by sexually abused children.

Standard of Review

Under Texas Rule of Evidence 702, trial courts have a “gate keeping” duty to ensure that expert testimony is not only relevant, but reliable. Hernandez v. State, 53 S.W.3d 742, 747-48 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). As an appellate court, we will not disturb a trial court’s determination that a witness is or is not qualified as an expert under Rule 702 unless a 'clear abuse of discretion is shown. Id. at 750. A reviewing court cannot conclude that a trial court abused its discretion simply because, in the same circumstances, it would have ruled differently or if the trial court made an error in judgment. Id. (citing E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995)). The test is not whether the facts present an appropriate case for the trial court’s action in the opinion of the reviewing court. Id. We will gauge an abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. Id. This Court has emphasized that trial courts enjoy wide latitude in determining whether expert testimony is admissible and that the pertinent suggested inquiries utilized in making this determination “are to be used flexibly and are not exclusive.” Id. at 752.

Expert Testimony

In his sole point of error, appellant argues that the trial court erred in admitting Edmiston’s “testimony about the symptoms of sexual abuse” because (1) she “lacked significant experience in dealing with child sex abuse victims, having treated only ’25’ or ’30’ children”; and (2) “the record does not reflect that [she] had ever given a single lecture, or written any article, on the subject of child sexual abuse, much less ever having testified in any court as an expert.” Furthermore, appellant emphasizes that Edmiston did not have any practical experience working with sexually abused children prior to working at New Horizons as a counselor.

In support of his argument that Edmi-ston was “not qualified to testify,” appellant relies on Fox v. State, 115 S.W.3d 550 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In Fox, the Fourteenth Court of Appeals concluded that the defendant did not satisfy his burden of establishing that his expert was qualified to testify regarding the (1) proper protocols for interviewing a child who has been abused; (2) developmental stages of a child; and (3) behavioral patterns of an abused child. Id. at 565-66. The court noted the expert’s qualifications as follows: (1) she had a master’s degree in social work from the University of Texas and a psychology degree from the University of Saint Thomas; (2) she worked for Child Protective Services and dealt with abused children; (3) at the time of trial, she had been a social worker in the public sector for ten years and in private practice for five years; and (4) she had been the Director of Behavioral Health at the Spring Branch Medical Center. Id. at 565. The court concluded that “because [the expert] had so little experience in dealing specifically with abused children and little experience in the techniques typically used to interview abused children, the trial court did not abuse its discretion in finding her not qualified to testify as an expert witness.” Id. at 566.

Significantly, the Fox court reached this conclusion without reference to the Texas Court of Criminal Appeals’ holding in Nenno v. State, which provides that courts, in determining whether nonseientific expert testimony is reliable under Rule 702 and, therefore, admissible, must determine (1) whether the expert’s field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of the expert’s field of expertise; and (3) whether the expert’s testimony properly relied upon or utilized the principles involved in her field. 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999).

This Court has noted that expert testimony regarding the effect of sexual abuse on children is “nonseientific expert testimony” and, in determining whether such nonseientific testimony is rehable and, therefore, admissible, we must consider (1) whether the expert’s field of expertise is a legitimate one; (2) whether the symptoms exhibited by sexually abused children are within the scope of the expert’s field of expertise; and (3) whether the expert’s testimony properly relied upon or utilized the principles involved in her field. Hernandez, 53 S.W.3d at 749. Again, we emphasize that expert-qualification inquiries are flexible and are not exclusive. Id. at 752. Moreover, we note that, where appropriate, “experience alone may provide a sufficient basis for an expert’s testimony.” Id. at 751. Accordingly, we decline to follow Fox and, instead, follow the precedent of Nenno and Hernandez in making the appropriate inquiries.

With respect to the first question, both the Court of Criminal Appeals and this Court have recognized that Edmiston’s field of expertise is legitimate. Cohn v. State, 849 S.W.2d 817, 818-19 (Tex.Crim.App.1993) (recognizing that research concerning the behavioral characteristics of children is a legitimate field of expertise); Hernandez, 53 S.W.3d at 751 (recognizing that experience regarding characteristics and dynamics of sexually abused children is a legitimate field of expertise); see also Clark v. State, 881 S.W.2d 682, 698 (Tex.Crim.App.1994) (recognizing that “special knowledge which qualifies a witness to give an expert opinion may be derived from the study of technical works, specialized education, practical experience, or a combination thereof’).

In regard to whether the subject matter of Edmiston’s testimony was within the scope of her field, Edmiston testified as to the symptoms that sexually abused children generally exhibit and that the complainant exhibited such symptoms. Edmi-ston testified that her opinions were based on her education, her training, and her experience as a counselor. She had earned a master’s degree in behavioral sciences and human services, with an emphasis on working with those who had been sexually abused. As part of her master’s degree, she had completed a 500-hour internship at HAWC, where she worked with young adults who had been sexually abused. Edmiston had taken numerous continuing education courses that concerned working with sexually abused persons. At the New Horizons Center, where she counseled those who had been sexually abused, she handled a caseload of 35 to 45 clients per month. Moreover, in her two-and-one-half years as a counselor at New Horizons, Edmiston had counseled between 25 and 30 children who had been sexually abused. For the eight months prior to the trial, Edmiston had counseled the complainant on a weekly basis. Thus, the trial court was presented with ample evidence to support an implied finding that the subject matter of Edmiston’s testimony was within the scope of her field.

Finally, we conclude that Edmiston’s testimony properly relied upon or utilized the principles in her field. Her opinions regarding the symptoms exhibited by sexually abused children were based on her advanced educational experience, her experience as both a volunteer and an intern at HAWC, her knowledge gained through her continuing education classes, and, primarily, her experience as a counselor at New Horizons, where she had counseled children who had been sexually abused. Furthermore, because Edmiston had counseled the complainant for the eight months prior to trial, Edmiston was in a position to observe the complainant’s behavior. Although appellant asserts that Edmiston, through her testimony, had to show the trial court “something through literature, through medical experience, working in conjunction with doctors, psychologists, or psychiatrists” in order to be qualified to testify regarding the symptoms exhibited by sexually abused children, the evidence of Edmiston’s education, training, and experience discussed above provide a sufficient basis for the trial court to have found that her testimony was reliable. The absence of studies quantifying or providing a statistical analysis does not affect the reliability and, therefore, admissibility, of her testimony but only affects the weight of the evidence. Hernandez, 53 S.W.3d at 749-50.

Our review in regard to a trial court’s ruling on the reliability of expert testimony focuses on whether the trial court acted without reference to the pertinent guiding rules or principles. Id. at 752. Here, we cannot conclude that the trial court failed to act with reference to guiding rules and principles in determining that Edmiston was qualified to render an opinion on whether the complainant had exhibited symptoms consistent with those generally exhibited by sexually abused children, and, therefore, we will not disturb its ruling. See Morales v. State, 32 S.W.3d 862, 865-66 (Tex.Crim.App.2000). Accordingly, we hold that the trial court did not abuse its discretion in admitting Edmiston’s testimony regarding the behavioral symptoms generally exhibited by sexually abused children and that the complainant had exhibited such symptoms.

We overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

      . Tex. Pen.Code Ann. § 22.011(a)(2)(A) (Vernon Supp.2004-2005).

      . TEX.R. Evid. 705(b).

      . Tex.R. Evid. 702.


author: ELSA ALCALA, Justice.

text:
    Shirin AJUDANI and Rosemary Shookoufandeh, Appellants, v. Jimmy WALKER, Attorney Ad Litem for Arezo Ajudani, a minor, Appellee.
    No. 01-03-01008-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 21, 2005.
    Lana R. Dieringer, Dieringer Law Firm, Houston, TX, for Appellant.
    Jimmy Walker, Dinkins, Kelly, Lenox, Lamb & Walker, L.L.P., Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellants, Shirin Ajudani and Rosemary Shookoufandeh, appeal the summary judgment granted in favor of appellee, Jimmy Walker, attorney ad litem for Are-zo Ajudani, a minor, which denied appellants’ application for probate of a holographic will and denied issuance of letters testamentary. Appellee’s motion for summary judgment asserted that the purported holographic will lacked the requisites of a valid will because it (1) lacked testamentary intent, and (2) lacked the decedent’s signature within the document. In two issues, appellants contend that the trial court erred by granting the summary judgment in favor of appellee because (1) the holographic will of the decedent, Shah-rokh Ajudani, was executed with the requisite testamentary intent, and (2) there is a “genuine issue of material fact” as to whether the holographic will had testamentary intent. Although appellants’ two stated issues pertain only to testamentary intent, appellants argue, in their second issue and within their prayer for relief, that a “fact issue” exists regarding whether the decedent’s signature appears on the purported holographic will.

We affirm the summary judgment on the basis that the decedent’s signature does not appear on the purported holographic will and thus decline to address appellants’ remaining issue concerning testamentary intent.

Background

Following the decedent’s death, his attorney received, by mail, a typewritten document entitled “Last Will and Testament of Shari Ajudani” and seven pages of handwritten information. Although appellants originally offered the typewritten document entitled “Last Will and Testament of Shari Ajudani” for probate, they later amended their request and instead offered for probate the seven pages of handwritten information as the purported holographic will. The issue before the trial court, and before us in this appeal, concerns only the seven pages of handwritten information, which, appellants assert, constitute the holographic will of the decedent.

Appellants’ application for probate included the seven pages of handwritten information that the decedent mailed to his attorney, as described below. Each of the seven pages has a circled number designating the page number in the top right hand corner. For example, page one has a circled number “1”; page two has a circled number “2”; page three has a circled number “3”; etc.

Page one of the handwritten information begins, “Dear Lana, Here is my will which we never had the chance to complete before,” and then explains personal difficulties the decedent has had. The second page of the handwritten information contains the statement, “I have tried to complete the last will and testament as much as I could.” The remainder of pages two through page six contain seven categories of information, each designated by a circled number. The bottom line of page six of the handwritten information states “CC: Rosemary, Shirin, Shahlah” and ■written vertically down the left side of the page it states, “P S.... ” This postscript references a banking transaction that occurred “yesterday 12/18/01.” The signature of the decedent does not appear anywhere within the first six pages of the handwritten information.

The seventh page of the handwritten information is written on what appears to be the decedent’s personal stationary, which is different from the plain paper used for the first six pages of the handwritten information. The contents of the seventh page consist only of a purported power of attorney, and states in its entirety as follows:

I hereby give Ms. Lana Dieringer attorney at law a full power of attorney to act on my behalf in the sale of my personal residence at 11911 6th Street Houston 77072[.] Also same power of attorney is given in negotiating, and sale of Birch-brook Apartments located at 12300 Fleming Houston 77013, Signed in this 18 day of December, 2001 by Shari Aju-dani 12/18/01.

A signature appears immediately before the “12/18/01.”

Appellee filed a motion for summary judgment asserting that appellants’ application for probate and issuance of letters testamentary should be denied because the purported holographic will (1) lacked testamentary intent and (2) lacked the signature of the decedent. Appellee asserted that the seven pages of handwritten information did not constitute a single holographic will, but were instead two separate documents, a six-page letter to the decedent’s attorney, and a power of attorney. According to appellee, the decedent’s signature, which appears on the seventh page, pertained only to the purported power of attorney, and was not a part of the six-page letter that appellant asserted was the holographic will.

At the motion for summary judgment hearing, appellants asserted that the seven pages of handwritten information constituted a single holographic will and that the decedent’s signature on the will, which un-disputedly appeared on the seventh page of the handwritten information, was within the holographic will, as required by law. Additionally, appellants asserted that the purported holographic will did not lack testamentary intent.

The trial court granted appellee’s motion for summary judgment and denied the application for probate of the purported holographic will and letters testamentary.

Summary Judgment

Under the standard of review for a traditional summary judgment, the moving party must establish that no material fact issue exists, and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In determining whether a disputed material fact issue precludes summary judgment, the court must take evidence favorable to the nonmovant as true and indulge every reasonable inference in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). If there is no genuine issue of material fact, judgment should issue as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.2001). Because the rendition of summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

When, as here, the trial court’s summary judgment order does not specify the ground or grounds on which summary judgment was rendered, we will affirm the summary judgment if any of the grounds stated in the motion is meritorious. See Mayes v. Goodyear Tire and Rubber Co., 144 S.W.3d 50, 55 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.) (citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001)). Summary judgment is appropriate in cases involving the interpretation of an unambiguous document. See Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983) (holding that if court can give certain or definite legal meaning or interpretation to words of instrument, it is unambiguous and court may construe it as matter of law); Bishop v. National Loan Investors, L.P., 915 S.W.2d 241, 245 (Tex.App.-Fort Worth 1995, writ denied); Hancock v. Krause, 757 S.W.2d 117, 119 (Tex.App.-Houston [1st Dist.] 1988, no writ) (holding construction of testamentary instrument is question of law for court where there is no ambiguity in instrument).

Holographic Will

To be valid, a holographic will must be signed by the testator and wholly in the testator’s handwriting. Tex. Pkob. Code Ann. § 59 (Vernon 2003); Hancock, 757 S.W.2d at 120. While the signature may be informal and its location is of secondary importance, it is still necessary that the maker intend that her name or mark constitute a signature, i.e., that the maker expresses approval of the instrument as her will. In re Estate of Schiwetz, 102 S.W.3d 355, 364 (Tex.App.-Corpus Christi 2003, pet. denied) (citing Luker v. Youngmeyer, 36 S.W.3d 628, 630 (Tex.App.-Tyler 2000, no pet.)).

The question before us is whether the page with the circled number seven containing the decedent’s signature is part of the purported holographic will. There are no disputed facts; the parties’ disagreement concerns the interpretation and significance of the page with the circled number seven.

We conclude that the page with the circled number seven is not part of the purported holographic will. The first six pages contain language referencing a will with seven enumerated subjects with comments and instructions to the decedent’s attorney. However, the seventh page, which is clearly a purported power of attorney, lacks a designation as a new and enumerated eighth subject of the letter. Also, the seventh page of the handwritten information is written on stationary of the decedent, in contrast to the first six pages, which are written on plain paper. Additionally, the page marked as the sixth page of handwritten information has both a “PS” (or postscript) and “CC” (or carbon copy) designation following the seventh enumerated subject of information. Moreover, the writer of the document wrote vertically in the margin of the sixth page of the document, thus completing the purported holographic will within the six pages. Finally, the purported power of attorney, which is dated “12/18/01” was written one day before the purported holographic will was written, as evidenced by the postscript on page six that references a banking transaction that occurred “yesterday 12/18/01.”'

Having reviewed the summary judgment evidence, we conclude that the purported holographic will and the power of attorney are unambiguously two separate documents. See Coker, 650 S.W.2d at 393. The decedent’s purported signature, appearing only on the page with the circled number seven, pertains only to the separate, handwritten purported power of attorney. Accordingly, we hold that the purported holographic will, because it lacks the decedent’s signature, is not a valid will. See Tex. Prob.Code Ann. § 59 (Vernon 2003); In re Estate of Schiwetz, 102 S.W.3d at 364.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Prob.Code Ann. §§ 59, 74 (Vernon 2004).

      . The seven categories of information pertain to the sale of a residence and a power of attorney to Lana Dieringer for the sale of the residence, how bank accounts should be disbursed, the sale of an apartment and the disposition of the assets from the sale, items in the decedent’s possession that belong to others, his funeral arrangements, a business relationship with "Gayle,” the disposition of a truck, and a check from Nations Bank.

      . Appellants contend that the trial court "specifically stated there was no testamentary intent contained in the holographic will.” However, the trial court's order granting summary judgment does not specify the ground relied on for its ruling. See In re W.E.R., 669 S.W.2d 716 (Tex.1984); Jampole v. Touchy, 673 S.W.2d 569, 574 (Tex.1984) (holding that court’s order controls over stated reasons or oral qualifications); Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 11 (Tex.App.-Houston [1st Dist.] 1995, writ denied).


author: EVELYN V. KEYES, Justice.

text:
    Rick BATES, Marianne Bates, and Dorothy Bates, Appellants, v. MTH HOMES-TEXAS, L.P. d/b/a Hammonds Homes and Meritage Corporation, Appellees. In re Rick Bates, Marianne Bates, and Dorothy Bates, Relators.
    Nos. 01-04-01086-CV, 01-04-01156-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 28, 2005.

      Amanda Leigh Richards, Richard L. Tate, Tate & Associates, Richmond, TX, for Appellant.
    Thi Anh Tran, Houston, TX, for Appel-lee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

In dual proceedings, appellants/relators, Rick Bates, Marianne Bates, and Dorothy Bates (“Bates”), challenge the trial court’s order that granted appellees/real parties in interest, MTH Homes-Texas, L.P. d/b/a Hammonds Homes and Meritage Corporation’s (“Hammonds”), motion to compel arbitration. In one issue, Bates contends that the trial court erroneously found an agreement to arbitrate. We dismiss the interlocutory appeal for want of jurisdiction and conditionally grant the petition for writ of mandamus.

Background

On January 26, 2004, Bates filed suit against Hammonds because of defects sustained during the construction of Bates’s new home. On September 9, 2004, Ham-monds filed a motion to compel arbitration based on a clause in an earnest-money contract addendum. On September 28, 2004, the trial court granted the motion to compel. Bates filed both an interlocutory appeal and a petition for writ of mandamus complaining of the trial court’s order. On January 21, 2005, we stayed the trial court’s arbitration order.

Appeal

The trial court did not expressly determine whether the Federal Arbitration Act (“FAA”) or the Texas Arbitration Act (“TAA”) applies. See 9 U.S.C. §§ 1-16 (2004); Tex. Crv. PRác. & Rem.Code Ann. §§ 171.001-.098 (Vernon Supp.2004-2005). Our method of review usually depends on which act applies. However, because mandamus, not interlocutory appeal, lies over an order granting a motion to compel arbitration, whether under the TAA or the FAA, we need not determine which act applies. See Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 834 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (combined appeal & orig. proceeding). Accordingly, we dismiss Bates’s interlocutory appeal for want of jurisdiction.

Mandamus

Standard of Review

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or the violation of a legal duty when there is no adequate remedy at law. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). When a trial court erroneously grants a party’s motion to compel arbitration, the movant has no adequate remedy at law and is entitled to a writ of mandamus. See In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.2001). We review the trial court’s order for abuse of discretion. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992); Trico Marine Servs., Inc. v. Stewart & Stevenson Technical Servs. Inc., 73 S.W.3d 545, 548 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (combined appeal & orig. proceeding). A trial court abuses its discretion when it errs in determining what the law is or in applying the law to the facts. In re Bruce Terminix Co., 988 S.W.2d 702, 703 (Tex.1998); Trico Marine Servs., 73 S.W.3d at 548. The trial court’s order does not state its grounds for granting Hammonds’ motion to compel arbitration. Thus, we review the grounds stated in Hammonds’ motion and affirm the trial court’s order if any of the grounds are meritorious. See In re H.E. Butt Grocery Co., 17 S.W.3d 360, 367 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding); North American Shipbuilding, Inc. v. Southern Marine & Aviation, 930 S.W.2d 829, 832 (Tex.App.-Houston [1st Dist.] 1996, no writ).

Agreement to Arbitrate

In its first issue, Bates argues that there is no agreement to arbitrate.

A party cannot be required to arbitrate unless it has agreed to do so. Trico Marine Servs., 73 S.W.3d at 548 (quoting How-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205 (Tex.App.-Houston [1st Dist.] 1997, orig. proceeding)); see also Tex. Civ. PRAC. & Rem.Code Ann. § 171.021(a) (Vernon Supp.2004-2005) (requiring judge to order arbitration upon finding agreement to arbitrate). “The parties’ agreement to arbitrate must be clear. In this determination, Texas contract law applies.” Trico Marine Servs., 73 S.W.3d at 548 (citations omitted). “Construction of an unambiguous contract is a question of law.” Id. (citing MCI Telecommunications Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650 (Tex.1999)). This Court may not expand upon the terms of the contract or tolerate a liberal interpretation of it by reading into it a voluntary, consensual agreement to arbitrate when one otherwise does not exist. See Seale v. Roy M. Mitchell Contracting Co., 321 S.W.2d 149, 151 (Tex.Civ.App.-Austin 1959, writ ref'd) (finding “no clear incorporation of the arbitration provisions of the principal contract into the subcontract between” the parties); In re ACG Cotton Mktg., L.L.C., 985 S.W.2d 632, 633 (Tex.App.-Amarillo 1999, orig. proceeding); Escajeda v. Cigna Ins. Co., 934 S.W.2d 402, 407 (Tex.App.-Amarillo 1996, no writ) (“[B]efore a contract can be read as delegating to third-parties that power [as sole arbiters of reasonableness and necessity of all future medical expenses], the words evincing the delegation must be express, plain, clear, and certain.”).

Whether an enforceable agreement to arbitrate exists is a legal question subject to de novo review. In re Kellogg Brown & Root, 80 S.W.3d 611, 615 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding). Although an arbitration agreement does not have to assume any particular form, the language of the agreement must clearly indicate the intent to arbitrate. See Massey v. Galvan, 822 S.W.2d 309, 316 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Without an agreement to arbitrate, arbitration cannot be compelled. Freis v. Canales, 877 S.W.2d 283, 284 (Tex.1994) (orig.proceeding).

Under both the TAA and the FAA, a party seeking to compel arbitration has the initial burden to establish the arbitration agreement’s existence and to show that the claims asserted fall within the agreement’s scope. In re Kellogg Brown & Root, 80 S.W.3d at 615; see Tex. Civ. PRAC. & Rem.Code Ann. § 171.021(a). If the party seeking arbitration carries its initial burden, the burden then shifts to the party resisting arbitration to present evidence on its defenses to the arbitration agreement. See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999); see also Tex. Civ. PRAC. & Rem.Code Ann. § 171.021(b) (Vernon Supp.2004-2005); Mohamed, 89 S.W.3d at 835.

In its motion to compel arbitration, Hammonds relied on the following clause of the earnest money contract addendum to show the parties’ intent to arbitrate:

THIS CONTRACT IS SUBJECT TO CHAPTER 27 OF THE TEXAS PROPERTY CODE. THE PROVISIONS OF THAT CHAPTER MAY AFFECT THE PURCHASER’S RIGHT TO RECOVER DAMAGES ARISING FROM THE PERFORMANCE OF THIS CONTRACT. IF PURCHASER HAS A COMPLAINT CONCERNING A CONSTRUCTION DEFECT ARISING FROM THE PERFORMANCE OF THIS CONTRACT AND THAT DEFECT HAS NOT BEEN CORRECTED THROUGH NORMAL WARRANTY SERVICE, THE PURCHASER MUST PROVIDE NOTICE REGARDING THE DEFECT TO THE BUILDER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, NOT LATER THAN THE 60TH DAY BEFORE THE DATE THE PURCHASER INITIATES A CLAIM TO RECOVER DAMAGES IN AN ARBITRATION PROCEEDING. THE NOTICE MUST REFER TO CHAPTER 27 OF THE TEXAS PROPERTY CODE, AND MUST DESCRIBE THE CONSTRUCTION DEFECT. IF REQUESTED BY THE BUILDER, THE PURCHASER MUST PROVIDE THE BUILDER AN OPPORTUNITY TO INSPECT AND CURE THE DEFECT AS PROVIDED BY SECTION 27.004 OF THE TEXAS PROPERTY CODE.

Hammonds argues that this clause shows that the parties intended to waive the right to a trial and instead to resolve any disputes through binding arbitration. Hammonds contends that if the parties had intended something other than arbitration, they would have used language such as “court of law,” instead of “arbitration proceeding.”

We disagree that this language is sufficiently “express, plain, clear, and certain” to evince the agreement of the parties to delegate to arbitrators the power to decide disputes between them. See Escajeda, 934 S.W.2d at 407. The clause in the earnest money contract addendum on which Hammonds relies is not a traditional arbitration clause. Rather, it is substantially similar to the statutorily mandated disclosure statement provided for in former section 27.007 of the Texas Property Code. See Act of May 8, 1999, 76th Leg., R.S., eh. 189,1999 Tex. Gen. Laws 666-667 (amended 2003) (current version at Tex. PROP.Code Ann. § 27.007 (Vernon Supp. 2004-2005)). Section 27.007 is entitled, “Disclosure Statement Required.” Id. The clause required pursuant to section 27.007 and the one at issue here both instruct the buyer regarding the giving of notice of construction defects to the seller. See Sanders v. Constr. Equity, Inc., 42 S.W.3d 364, 371-72 (Tex.App.-Beaumont 2001, pet. denied). Although the clause in the earnest money contract addendum refers to arbitration, it does not limit the parties’ rights to arbitration only. Rather, the clause — a statutorily required disclosure statement — provides the notice procedures to follow if a party seeks damages in an arbitration proceeding.

We conclude that the clause on which Hammonds relies, although it includes the word “arbitration,” is not sufficient to constitute an agreement to arbitrate because it does not clearly indicate the intent to arbitrate. Thus, contrary to Hammonds’ argument, the parties did not expressly agree in writing in the clause at issue to submit the- dispute to arbitration. See Glazer’s Wholesale Distribs., Inc. v. Heineken U.S.A., Inc., 95 S.W.3d 286, 297 (Tex.App.-Dallas 2001, pet. granted, judgm’t vacated w.r.m.); In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 880 (Tex.App.-El Paso 1999, orig. proceeding).

We sustain Bates’s first issue.

Conclusion

We dismiss the interlocutory appeal in appellate cause number 01-04-01086-CV for want of jurisdiction. We conditionally grant the petition for writ of mandamus in appellate cause number 01-04-01156-CV and order the trial court to vacate its September 28, 2004 order granting the motion to compel arbitration of the real parties in interest. The writ will issue only if the trial court fails to vacate its order. We withdraw our January 21, 2005 order staying all proceedings in the trial court. All pending motions are hereby denied.

      . The underlying lawsuit is Rick Bates, Marianne Bates, & Dorothy Bates v. MTH Homes-Texas, L.P. D/B/A Hammonds Homes & Meri-tage Corporation, No. 2004-38830 (11th Dist. Ct., Harris County, Texas).

      . This clause is substantially similar to former section 27.007 of the Texas Property Code. See Act of May 8, 1999, 76th Leg., R.S., ch. 189, 1999 Tex. Gen. Laws 666-667, amended 2003 (current version at Tex. Prop.Code Ann. § 27.007 (Vernon Supp.2004-2005)). One difference exists, however, in that at the end of the third sentence former section 27.007 provided, "before the date you file suit to recover damages in a court of law.” Id. In 2003, section 27.007 was amended to provide, "before the date you file suit to recover damages in a court of law or initiate arbitration.” See Tex. Prop.Code Ann. § 27.007. Because the events that preceded this cause of action occurred prior to the 2003 amendments, the 2000 version of the statute applies.

      . Hammonds additionally asserts that Bates has waived any arguments regarding the interpretation of the addendum language because Bates has not analyzed whether the clause at issue demonstrates an intent to arbitrate. We disagree; the interpretation of an unambiguous arbitration clause is a question of law for the Court. See Trico Marine Servs., 73 S.W.3d at 548. Hammonds also relies on other arguments related to other documents to demonstrate the parties’ intent to arbitrate. These additional arguments were not included in the motion to compel arbitration, and no reporter's record has been provided. Because Hammond's arguments were not presented to the trial court, we do not consider them here. See AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 201 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). We consider the record as it appeared before the trial court at the time of its ruling on the motion to compel arbitration. In re Profanchik, 31 S.W.3d 381, 386 (Tex.App.-Corpus Christi 2000, orig. proceeding). Thus, we also do not consider documents presented in Hammonds’ brief that were admittedly not before the trial court.

      . Former section 27.007 provided in relevant part:
      This contract is subject to Chapter 27, Property Code. The provisions of that chapter may affect your right to recover damages arising from the performance of this contract. If you have a complaint concerning a construction defect arising from the performance of this contract and that defect has not been corrected through normal warranty service, you must provide notice regarding the defect to the contractor by certified mail, return receipt requested not later than the 60th day before the date you file suit to recover damages in a court of law.
      Act of May 8, 1999, 76th Leg., R.S., ch. 189, 1999 Tex. Gen. Laws 666-667 (amended 2003) (current version at Tex Prop.Code Ann. § 27.007 (Vernon Supp.2004-2005)).