author: EVA M. GUZMAN, Justice.

text:
    BAKER HUGHES OILFIELD OPERATIONS, INC., Appellant, v. HENNIG PRODUCTION CO., INC., Appellee.
    No. 14-04-00009-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 24, 2005.

      Geoffrey H. Bracken, Stacy R. Oben-haus, Houston, Cynthia Hollingsworth, Dallas, for appellant.

      David W. Pace, Houston, for appellee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

In this arbitration case, Baker Hughes Oilfield Operations appeals from a summary judgment in favor of Hennig Production Company confirming an arbitration award and from the trial court’s order denying Baker Hughes’ request to vacate or modify the award. Baker Hughes argues the trial court erred in (1) granting summary judgment because the arbitrators allegedly exceeded their powers; (2) modifying the arbitration award; and (3) failing to issue findings of fact. We hold the arbitrators did not exceed them powers and the trial court did not otherwise err, accordingly we affirm the trial court’s judgment.

I. FACTS AND PROCEDURAL BACKGROUND

Hennig contacted Baker Hughes about perforating a formation in a well Hennig was operating. On July 30, 2001, Baker Hughes’ employees came to the well site and fired the perforation charges; however, the perforating tool — the “gamma gun” — collapsed in the well and Baker Hughes’ employees were unable to remove it. They rigged down the service unit, leaving the tool in the well. Hennig subsequently performed “fishing” operations, attempting to retrieve the tool.

On September 12, 2001, Hennig signed Baker Hughes’ field service order for “lost tools,” and on September 28, Baker Hughes invoiced Hennig for the tool remaining in the well. Shortly thereafter, Hennig retrieved a part of the tool from the well and then refused to pay Baker Hughes’ invoice, claiming the recovered part indicated the tool had collapsed because it did not conform to Hennig’s pressure specifications.

Baker Hughes filed a demand for arbitration in accordance with the arbitration provision contained in its field service order, seeking damages from Hennig for lost tools, interest, and attorneys’ fees. Hen-nig counterclaimed for damages to the well resulting from the collapse of the perforating tool. The arbitration lasted four days, during which time the panel received testimony from twelve witnesses, admitted twenty-nine exhibits from Baker Hughes, and fifty-eight exhibits from Hennig. The parties filed numerous arbitration pleadings, submitted post-hearing briefs and presented oral arguments. The panel found in favor of Hennig, awarding $351,090.43 in damages.

Hennig filed a motion to confirm and enforce the arbitration award in the trial court, but subsequently filed a motion for summary judgment seeking confirmation. Baker Hughes filed a motion to vacate the award or, alternatively, to modify it. The trial court considered both motions and signed a final summary judgment in favor of Hennig. This appeal ensued.

II. ANALYSIS

In its first appellate issue, Baker Hughes contends the arbitrators exceeded their powers and therefore, the trial court erred in confirming the arbitration award and in denying its motion to vacate. Baker Hughes asserts in its second issue that the trial court improperly modified the award by including a date for the accrual of prejudgment interest and, in its third issue, argues the trial court erred in failing to file findings of fact. We address Baker Hughes’ third issue first because, should we sustain the issue, we must remand the case to the trial court.

A. Findings of Fact

Baker Hughes requests we abate this appeal and remand to the trial court for entry of findings of fact regarding the court’s order denying Baker Hughes’ motion to vacate or modify the arbitration award. Although the trial court rendered a summary judgment, Baker Hughes argues that findings of fact are required because the trial court signed a separate order denying its motion to vacate and the hearing on that motion was not a summary proceeding.

It is well settled that findings of fact are not proper in a summary judgment context. See, e.g., IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441-42 (Tex.1997); Golden v. McNeal, 78 S.W.3d 488, 495 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). There cannot be a genuine issue as to any material fact for summary judgment to be properly rendered and the legal grounds are limited to those stated in the summary judgment motion and any response. IKB Indus., 938 S.W.2d at 441. Hence, there are no facts to find. Id. Because this case was disposed of through summary judgment, we conclude that findings of fact are not warranted under the circumstances of this case. Moreover, many of Baker Hughes’ proposed findings and conclusions were contrary to the trial court’s judgment and thus, were properly denied. See In re Marriage of Grossnickle, 115 S.W.3d 238, 254 (Tex.App.-Texarkana 2003, no pet.). Accordingly, we reject Baker Hughes’ request for a remand to the trial court to issue findings of fact and overrule its third issue.

B. Arbitration Proceedings

Baker Hughes also argues the arbitrators exceeded their powers by deciding an issue that was not submitted to them and, further, they committed a “gross mistake” that requires vacating the arbitration award. Both parties agree the suit is governed by the Texas Arbitration Act (“TAA”), and we examine Baker Hughes’ arguments with reference to that statute when necessary.

1. Standard of review

Texas substantive law favors arbitration. Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex.App.-Dallas 2004, pet. denied). An arbitration award has the same effect as the judgment of a court of last resort, and a court reviewing the award may not substitute its judgment for that of the arbitrators merely because it would have reached a different result. Id. Nor may a reviewing court set aside an arbitration award for a mere mistake of fact or law. Id.; Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex. App.-Houston [14th Dist.] 1995, no writ). A reviewing court lacks jurisdiction to review complaints that do not assert statutory, common law, or public policy grounds to vacate or modify the award. Crossmark, 124 S.W.3d at 429 (citing CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 239 (Tex.2002)).

Under the TAA, upon application by a party, the trial court “shall” confirm an arbitration award unless the party opposing confirmation presents grounds for vacating, modifying, or correcting the award. Tex. Civ. PRAC. & Rem.Code Ann. § 171.087. An application under the Act is heard in the same manner and on the same notice as a motion in a civil case. Id. § 171.093. Generally, a summary judgment motion is not required for the trial court to confirm, modify, or vacate an arbitration award, but if a party chooses to pursue confirmation of the award through summary judgment proceedings rather than the motion procedure under the TAA, that party assumes the traditional burdens and requirements of summary judgment practice. Crossmark, 124 S.W.3d at 430 (citing Manner Fin. Group, Inc. v. Bossley, 79 S.W.3d 30, 32, 35 (Tex.2002)). Therefore, although we apply the standards of review for arbitrations, we also apply those for summary judgments. See id. at 430-31; Teleometrics Int’l, Inc. v. Hall, 922 S.W.2d 189, 193 (TexApp.-Houston [1st Dist.] 1995, writ denied). To the extent presumptions in favor of an arbitration award conflict with summary judgment standards of review, the arbitration rules “must yield to ... the presumptions in favor of a non-movant.” Tuco Inc. v. Burlington N. R.R. Co., 912 S.W.2d 311, 315 (Tex.App.-Amarillo 1995), aff'd as modified, 960 S.W.2d 629 (Tex.1997). Where the parties do not dispute the facts, review of a summary judgment properly focuses on whether the trial court correctly applied the law to the facts. Crossmark, 124 S.W.3d at 431. Any error of law made by the arbitrators, however, cannot be reviewed by a court confirming the award. Id. at 434.

Here, Hennig sought to confirm the arbitration award through summary judgment and thus, it had the burden to show there were no genuine issues of material fact prohibiting confirmation of the award, that is, no material facts regarding the grounds asserted by Baker Hughes to vacate, modify, or correct the award. See Crossmark, 124 S.W.3d at 431; Brozo v. Shearson Lehman Hutton, Inc., 865 S.W.2d 509, 510-11 (Tex.App.-Corpus Christi 1993, no writ); see also Tex. Civ. PRAC. & Rem.Code Ann § 171.087 (Vernon Supp.2004-05) (“Unless grounds are offered for vacating, modifying, or correcting an award ... the court, on application of a party, shall confirm the award.”); Mariner, 79 S.W.3d at 32.

Baker Hughes relies on two statutory grounds for relief from the arbitration award: Sections 171.088 and 171.091 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.088(a)(3)(A), 171.091(a)(2). We examine Baker Hughes’ claims.

2. Baker Hughes’ “exceeded powers” claims

Baker Hughes acknowledges the arbitrators’ authority is derived from the arbitration agreement and is limited to a decision of the matters submitted therein, either expressly or by necessary implication. Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959); J.J. Gregory Gourmet Servs., Inc. v. Antone’s Import Co., 927 S.W.2d 31, 35 (Tex.App.-Houston [1st Dist.] 1995, no writ). Here, Baker Hughes’ field service order contained the agreement to arbitrate, stating the parties would arbitrate “any controversy or claim arising out of or relating to the Agreement or to [Baker Hughes’] services, equipment, or products provided to Customer.” This is, by its plain language, a broad arbitration provision and subsumes any controversy or claim arising out of or relating to Baker Hughes’ services. See Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 231 (Tex.App.-Houston [14th Dist.] 1993, writ denied). Baker Hughes acknowledges this as well. But, Baker Hughes’ argues that because Hennig failed to specifically plead breach of contract claims and “disavowed” this was a contract case, Hennig removed contract claims from the “scope of the arbitration,” and consequently, by deciding the issue, the arbitrators exceeded their powers.

In support of its argument, Baker Hughes relies on City of Baytown v. C.L. Winter, Inc., 886 S.W.2d 515, 518-19 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In City of Baytown, the appellant argued the arbitrators exceeded their powers because, in part, the appellee never complained about an issue in its original or amended specification of claims. 886 S.W.2d at 518. The court disposed of the issue by noting that the broad arbitration provision in that case — covering “all questions of dispute” — permitted the arbitrators to render an award based on the issue, stating “[i]n light of the broad arbitration clause ... the arbiters did not exceed their authority.” Id. In its examination of the issue, however, the court included the parties’ “pleadings” as well as the appellee’s specification of claims, Id. Relying on that language, Baker Hughes asserts that a determination of the arbitrators’ powers is based on the parties’ specific claims. We reject this assertion. It has long been held that the arbitrators’ powers are defined by the arbitration agreement. Gulf Oil Corp., 327 S.W.2d at 408. City of Baytown does not represent a contrary conclusion. Indeed, the Bay-town court expressly affirmed this long standing principle and concluded that the broad arbitration provision covered all questions of dispute between the parties, including the issue appellant alleged was not raised in the claims. 886 S.W.2d at 518.

Baker Hughes’ argues that Hennig did not specifically assert a breach of contract claim in its initial pleadings and therefore, the arbitrators’ powers were limited to Hennig’s DTPA and breach of warranty claims. Reading the arbitration agreement and pleadings as narrowly as Baker Hughes advocates is contrary to Texas law. See Guidry, 327 S.W.2d at 408 (stating the arbitration agreement defines the arbitrators’ powers and they decide issues expressly and impliedly submitted); see also Monday v. Cox, 881 S.W.2d 381, 385 (Tex.App.-San Antonio 1994, writ denied) (stating arbitration pleadings are to be construed liberally). Baker Hughes’ argument is also contrary to law favoring arbitration. Thus, we cannot agree with Baker Hughes’ contention.

Moreover, even were we to look to the parties’ arbitration pleadings in this case to determine whether the arbitrators exceeded their powers by deciding an issue not submitted to them — but within the scope of the agreement — the pleadings reflect that Hennig’s contract claims were in fact submitted for a determination by the panel.

3. Contract claims were submitted to the arbitrators

In its demand for arbitration, Baker Hughes defined the nature of the dispute as “[Hennig] has failed to make payments for work performed and services provided by [Baker Hughes].” In response, Hennig alleged violations of the DTPA, misrepresentations, breach of express warranties, negligence, negligent misrepresentation, defective performance of contract, and reckless conduct by Baker Hughes. Hennig also asserted that Baker Hughes’ express warranties constituted a modification of the contract terms and disclaimers between the parties. Subsequent arbitration pleadings filed by the parties also reflect that various contract claims were raised and submitted to the arbitrators. See Thomas v. Prudential See., Inc., 921 S.W.2d 847, 849 (Tex.App.-Austin 1996, no writ) (stating that when parties actually submit an issue to the arbitrators, courts look to the scope of the submissions to determine if an arbitration panel exceeded its authority). Further, throughout the arbitration proceedings, Baker Hughes argued Hennig’s claims were merely breach of contract claims and Hennig asserted that Baker Hughes’ liability in the case arose from both tort and contract principles. Importantly, in its post-hearing brief, Hennig argued that its counterclaims involved tools and services provided by Baker Hughes pursuant to an oral agreement between the parties. Baker Hughes responded to Hennig’s claim, arguing that Hennig was bound to the terms of the field service order as the written agreement of the parties and was bound to its assumption of the risk, to the entireties clause, and the indemnification and hold harmless provisions contained in the agreement.

Plainly, the parties submitted breach of contract claims to the arbitrators, Baker Hughes responded, and the arbitrators decided the matter in Hennig’s favor. We reject Baker Hughes’ argument that the arbitrators exceeded them powers by deciding breach of contract issues.

Likewise, we reject Baker Hughes’ assertion that because Hennig asserted tort claims, Hennig avoided parol evidence issues and Baker Hughes’ contract and UCC defenses. The record reflects that Baker Hughes’ contract and UCC defenses were submitted to the arbitrators and rejected by them. For example, in its response to Baker Hughes’ request for summary disposition, Hennig listed Baker Hughes’ arguments in part as: (1) the risk of loss was allocated to Hennig under the contract; (2) Baker Hughes disclaimed implied warranties of merchantability and fitness for a particular purpose; and (3) Baker Hughes’ contract limited its liability to compensation received from Hennig. These statements evidence that Baker Hughes asserted breach of contract and UCC defenses, Hennig responded to those defenses, and the panel considered, but rejected those defenses.

4. Baker Hughes’ “gross mistake” claims

Regarding Baker Hughes’ first issue, we address its common-law argument that, by awarding Hennig cost-of-repair damages, the panel failed to exercise honest judgment, committing a “gross mistake” which requires vacating the award. Baker Hughes claims that the award of damages was in error because Hennig failed to prove its repairs were reasonable and necessary and only proved their actual cost.

Under the common law, an arbitration award may be set aside if the decision appears to be tainted with “gross mistake as would imply bad faith and failure to exercise honest judgment.” IPCO-G.&C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 258 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

A party seeking recovery for costs of repair must prove their reasonable value. Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex.App.Fort Worth 1996, writ denied). However, to establish the right to recover repair costs, it is not necessary to use the words “reasonable” and “necessary.” Id. A claimant need only present sufficient evidence to justify the finding that the costs were reasonable and the repairs necessary. Id.

Here, Hennig pleaded that its fishing operations were reasonable, prudent, and in accordance with generally accepted standards. Importantly, Baker Hughes argued that Hennig’s damages, if any, and if not precluded by the contract, were limited to the cost of repairing the well, which it stated was $851,090.43. In its arbitration award, the panel stated that it was “undisputed” that the fishing costs were $351,090.43, “which the Arbitration Panel find[s] to be reasonable and necessary.” Based on the foregoing, the record does not demonstrate a “gross mistake” was made.

In conclusion, regarding Baker Hughes’ first issue, the agreement to arbitrate is a broad provision and covers the contract issues submitted by the parties to the arbitrators. The arbitrators did not exceed their powers, and we overrule Baker Hughes’ first issue.

C. Prejudgment Interest

In the arbitration award, Hennig received prejudgment interest “at 6% per annum until the date of the Arbitration Award,” but the date prejudgment interest began accruing was omitted. In its final judgment, the trial court corrected the award to include an accrual date, inserting the day Baker Hughes filed for arbitration. In its second appellate issue, Baker Hughes argues this was error because it resulted in the trial court, rather than the panel, deciding a substantive legal issue affecting the merits of the controversy— the amount of prejudgment interest. Hennig argues in response that the award is imperfect in form, the date inserted as an accrual date is contained in the award, inclusion of an accrual date does not impact the merits of the controversy, and therefore, under the TAA, the trial court’s correction was permissible. We agree.

Under the TAA, a reviewing court may modify or correct an arbitration award only under very limited circumstances. See Tex. Crv. PRAC. & Rem.Code Ann. § 171.091. As it applies to this case, the TAA provides that a court “shall” modify or correct an award if, on timely application, “the form of the award is imperfect in a manner not affecting the merits of the controversy.” Id. § 171.091(a)(3). Further, if the application to modify is granted, the trial court “shall modify or correct the award to effect its intent.” Id. § 171.091(c). The trial court, however, cannot speculate as to the intent of the arbitrators. Riha v. Smulcer, 843 S.W.2d 289, 293 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

A prevailing party receives prejudgment interest as a matter of course. See Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 75 F.3d 1048, 1057 (5th Cir.1996) (“[A]n equitable award of prejudgment interest should be granted to a prevailing plaintiff in all but exceptional circumstances.”). In this case, the panel awarded Hennig prejudgment interest, but failed to include a date enabling its calculation. The date inserted by the trial court conforms to the prejudgment interest calculations required under Texas law. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex.1998) (holding that prejudgment interest begins to accrue on the earlier of (1) 180 days after the date a defendant receives written notice of a claim or (2) the date suit is filed, and is computed as simple interest). Indeed, in response to Hennig’s request to include an accrual date, Baker Hughes argued that the correct date was either the 180th day after written notice of the claim or the date suit was filed, whichever was earliest. The date inserted by the trial court adopts Baker Hughes’ argument. Moreover, on appeal, Baker Hughes does not argue that the date inserted is incorrect, nor that fact issues indicate another date would be more correct. Baker Hughes argues only that its inclusion affects the merits of the controversy.

This is not a case in which the arbitrators did not award prejudgment interest, yet a trial court modified the award to include it. This case is also distinguishable from the case relied on by Baker Hughes, International Bank of Commerce-Brownsville v. International Energy Development Corp., 981 S.W.2d 38, 53-54 (Tex.App.-Corpus Christi 1998, pet. denied). In that case, the trial court modified the post-judgment interest rate awarded by the arbitrators. Id. The appellate court determined the trial court erred because there was no statutory or case law supporting the modification. Id. Here, however, the trial court did not modify the prejudgment interest rate or the award of interest itself; instead, the trial court’s judgment merely effectuates the arbitrators’ award of interest and is therefore permitted under Section 171.091, which directs the court to modify the form of an otherwise imperfect award. See Tex. Civ. Peac. & Rem.Code Ann. § 171.091(a)(3), (c).

As evidenced by the award, the arbitrators intended to award prejudgment interest. Thus, the trial court did not resort to speculation regarding the arbitrators’ intent, but only corrected the form of an imperfect award to effectuate that intent. We conclude that the trial court did not err in correcting the arbitration award, and Baker Hughes’ second issue is overruled.

D. Sanctions

Finally, Hennig requests we award damages under Rule of Appellate Procedure 45 against Baker Hughes for filing a frivolous appeal. See Tex.R.App. P. 45. If a court of appeals determines an appeal is frivolous, it may, after notice and a reasonable opportunity for response, award just damages to the prevailing party. Id. Granting sanctions is discretionary, and we must exercise that discretion “with prudence, caution, and after careful deliberation.” Rios v. Northwestern Steel & Wire Co., 974 S.W.2d 932, 936 (Tex.App.Houston [14th Dish] 1998, no pet.). We impose sanctions only under those circumstances we find truly egregious. Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Hennig contends that sanctions are appropriate because Baker Hughes presented an incomplete record on appeal, raised critical issues for the first time on appeal, and filed an inadequate brief misstating the record and making unsupported accusations. We do not agree that the record in this case evidences such egregious circumstances that sanctions against Baker Hughes are warranted. Accordingly, we decline Hennig’s request.

III. CONCLUSION

In conclusion, the broad arbitration provision in this case encompasses the contract issues submitted to the arbitrators for their decision. The arbitrators did not exceed their powers, nor did the trial court err by inserting the date Baker Hughes filed for arbitration as the prejudgment interest accrual date or in failing to issue findings of fact. We overrule all of Baker Hughes’ appellate issues and affirm the trial court’s judgment.

      . Tex. Civ. Prac. & Rem.Code Ann. § 171.001-.098 (Vernon Supp.2004-05).

      . Section 171.088(a)(3)(A) provides that a court shall vacate an award if the arbitrators exceeded their powers. Tex. Civ. Prac. & Rem. Code Ann. § 171.088. Section 171.091(a)(2) provides that a court shall modify or correct an award if the arbitrators have made an award with respect to a matter not submitted to them and the award may be corrected without affecting the merits of the decision. Id. § 171.091.

      . The parties stipulated that the contract between them for purposes of the arbitration and "disposition of their respective claims” was as represented in Baker Hughes’ field service order.

      . Baker Hughes also relies on Monday v. Cox, 881 S.W.2d 381, 385 (Tex.App.-San Antonio 1994, writ denied). In that case, the appellate court reviewed the trial court’s order refusing to enforce the arbitrator's award of attorney’s fees. Id. at 383. The parties’ agreement also contained a broad arbitration clause. Id. Noting the deference given to the arbitrator’s decision, the court looked to the limited statutory provisions enabling a trial court to set aside an award and concluded, under those circumstances, that the issue was whether the matter of attorney’s fees had been submitted to the arbitrator. Id. at 384. To determine this, the appellate court also examined the parties' statements of claims presented to the arbitrator, determined the matter had been submitted, and concluded the trial court erred in setting aside that portion of the award. Id. at 383-84. In this case, there is nothing in the record to indicate the parties narrowed the scope of the arbitration agreement through a submission agreement, or any other such agreement.

      . To the extent Baker Hughes argues a party is prohibited from asserting both tort and contract claims in an arbitration proceeding, we reject that position as well. When the arbitration agreement between parties is broad, such as the one here and covers “any claims,” the parties may bring tort claims arising in connection with the dispute. See,

        e.g., Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992) (holding DTPA claims were arbitrable); Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding that in absence of limiting language, a broad arbitration agreement encompassed the parties’ tort claims).

      . Oral argument was allowed following the post-hearing briefs.

      . Baker Hughes also argues the panel committed a gross mistake by “awarding on matters not submitted.” We have already addressed those arguments above.

      . Hennig timely filed a motion to modify the award with the panel, requesting the attorneys’ fees awarded be modified. In response, Baker Hughes argued the request sought a substantive modification of the award and should be denied. Subsequently, Hennig filed a letter requesting that the panel add a prejudgment interest accrual date. Baker Hughes argued in response that the request was untimely and, out of an “abundance of caution,” that the accrual date requested by Hennig was incorrect. Baker Hughes stated that the correct accrual date was either the 180th day after written notice of the claim or the date suit was filed, whichever was earliest. The panel denied Hennig’s requests. In its order, the panel stated that the request to modify attorneys’ fees was one to “redetermine the merits of its Award,” denying it on that basis. However, the panel denied Hen-nig’s request to add an accrual date as being untimely.

      . See generally Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 581 (5th Cir.1986) (stating broad arbitration agreement may cover issue of prejudgment interest causing a court’s award of interest to be "additional relief”); Nuno v. Pulido, 946 S.W.2d 448, 451-52 (Tex.App.-Corpus Christi 1997, no writ) (concluding issue of prejudgment interest was submitted to arbitrators and thus, trial court's award of interest was in error); Kermacy v. First Unitarian Church of Austin, 361 S.W.2d 734, 735-36 (Tex.Civ.App.-Austin 1962, writ ref'd n.r.e.) (concluding claim for prejudgment interest prior to award was submitted to arbitrators and merged into the award).


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    INTERSTATE APARTMENT ENTERPRISES, L.C., Appellant, v. WICHITA APPRAISAL DISTRICT; Wichita County, Texas; City of Wichita Falls, Texas; and Wichita Falls Independent School District, Appellees.
    No. 2-04-243-CV.
    Court of Appeals of Texas, Fort Worth.
    April 21, 2005.

      Russell, Leonard, Key & Key, P.L.L.C., Thomas W. Key, Wichita Falls, for Appellant.
    Perdue, Brandon, Fielder, Collins & Mott, L.L.P., Robert Mott, Sandra Griffin, and Harold Lerew, Austin and Wichita Falls, for Appellees.
    PANEL A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   PLURALITY OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Interstate Apartment Enterprises, L.C. appeals from the trial court’s order granting appellee Wichita Appraisal District’s (WAD) motion to dismiss for lack of jurisdiction. We affirm in part and reverse and remand in part.

II. Background Facts

Appellant is a limited liability company that owns an apartment complex in Wichita Falls. WAD is the appraisal district for Wichita County. In January 2003, appellant’s mortgage escrow agent notified appellant that there was a $13,200.67 shortage in appellant’s escrow account, which was to be used to pay ad valorem taxes on the apartment complex for the 2002 tax year. The taxes were due on January 31, 2003. Concluding that the shortage was the result of an unanticipated increase in the WAD’s valuation of the property, appellant’s employee Tammy Bommer called WAD and advised one of WAD’s representatives that appellant had not received notice of the increased valuation and that she thought the valuation was wrong. In response, WAD sent appellant a letter explaining how to file a motion to correct the appraisal roll under section 25.25 of the Texas Property Tax Code. WAD advised appellant that the tax code requires a property owner to pay taxes on the property subject to the appeal before the delinquency date or forfeit the right to appeal and attached a copy of section 25.25(d), which provides that an “error may not be corrected unless it resulted in an appraised value that exceeds by more than one-third the correct appraised value.” See Tex. Tax Code Ann. § 25.25(d) (Vernon 2001). In addition, WAD sent appellant a form on which to file the section 25.25 motion.

Appellant paid the taxes and filed a section 25.25 motion before the January 31, 2003 delinquency date. Despite the fact that section 25.25 allows a correction only if the error resulted in an appraised value that exceeds the correct value by more than one-third, appellant stated in its motion that, in its opinion, the value of the property for the 2002 tax year was $6.7 million, an amount that did not satisfy the one-third requirement. On April 21, 2003, WAD sent appellant a letter stating that while the valuation may have been incorrect, appellant was not entitled to a correction because “the value [was] not one-third over appraised.” Appellant’s appeal to the Appraisal Review Board was also denied.

Appellant filed suit seeking a declaratory judgment that (1) the valuation for the 2002 tax year was void because WAD failed to give appellant notice of the valuation increase and provided appellant with misleading information regarding which remedy to pursue, (2) taxes for 2002 should have been assessed and levied based on the 2001 valuation, and (3) appellant is entitled to a refund of the taxes paid for the 2002 tax year to the extent that the 2002 payment exceeded the amount that would have been owed using the 2001 valuation. WAD filed a motion to dismiss arguing that the trial court lacked jurisdiction to hear the suit because appellant failed to exhaust its administrative remedies regarding the lack of notice issue. Specifically, WAD argued that appellant should have filed a protest of WAD’s failure to give notice under section 41.411 of the tax code.

Appellant filed a motion for partial summary judgment arguing that because WAD provided appellant with inaccurate and false information, it was barred from asserting its jurisdictional defense. Appel-lees filed responses to appellant’s motion. Based on an agreement between the parties, the trial court admitted all of the evidence attached to appellant’s motion for partial summary judgment and WAD’s response. On May 3, 2004, the trial court entered an order granting WAD’s motion to dismiss for lack of jurisdiction.

III. Standard of Review

Because the existence of subject matter jurisdiction is a matter of law, we review de novo the trial court’s dismissal for lack of jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). In doing so, we must examine appellant’s pleadings to determine whether appellant has “affirmatively shown that the trial court had subject matter jurisdiction.” Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 404 (Tex.2000).

IV. Issues on Appeal

In appellant’s first issue, it argues that an appraisal district has a duty either to provide accurate information or to not provide inaccurate or incomplete information regarding the method of contesting an increase in property valuation. Appellant also argues that a breach of this duty exempts the taxpayer who relies on the inaccurate or incomplete information to its detriment from the jurisdictional requirement that it exhaust administrative remedies before filing suit. In its second issue, appellant argues that the trial court abused its discretion by granting the motion to dismiss based on the testimony presented.

A. Motion to Correct Appraisal Roll

Section 25.25 allows a property owner to file a motion with the appraisal review board to correct an error in the appraisal roll that resulted in an incorrect value of the owner’s property. Tex. Tax Code Ann. § 25.25(d). However, section 25.25 allows a correction only if the error resulted in an appraised value that exceeds by more than one-third the correct appraised value. Id. Further, a section 25.25 motion must be filed before the date the taxes become delinquent. Id.

B. Notice

According to section 25.19 of the tax code, the chief appraiser of an appraisal district must deliver a written notice to a property owner of the appraised value of the property owner’s property if the appraised value of the property is greater than it was the preceding year. Id. § 25.19(a)(1) (Vernon Supp.2004-05). Section 41.411 allows a property owner to protest the chief appraiser’s failure to deliver any notice to which the property owner is entitled. Id. § 41.411 (Vernon 2001).

C. Exhaustion of Administrative Remedies

Section 42.09 states that the procedures for the adjudication of the grounds of protest authorized by the tax code are exclusive, and a taxpayer may not raise these grounds as a basis for a suit to obtain a refund of taxes paid. Id. § 42.09(a)(2) (Vernon 2001). As a corollary, judicial review of an administrative order is not available unless all administrative remedies have been pursued to the fullest extent. Webb County Appraisal Dist v. New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex.1990); Denton Cent. Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 264 (Tex.App.-Fort Worth 2003, pet. denied), cert. denied, — U.S. —, 125 S.Ct. 106, 160 L.Ed.2d 115 (2004). Further, to preserve a specific issue for review in the district court, the same issue must first be raised before the appraisal review board. Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572 (Tex.App.-Fort Worth 2003, pet. denied).

D. Estoppel

Generally, a trial court cannot acquire jurisdiction by estoppel. Wilmer-Hutchins ISD v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001). In Wilmer-Hutchins, the trial court dismissed Sullivan’s suit for retaliatory discharge against the school district because of failure to exhaust administrative remedies. Id. at 293. The Texas Supreme Court held that even if the school district misled Sullivan regarding the availability of certain administrative remedies, such conduct does not confer jurisdiction on the trial court. Id. at 295.

E.Analysis

At the outset, we note that a section 25.25 motion and a protest under section 41.411 address two different issues. The section 25.25 motion is used when the taxpayer believes its property has been overvalued, while section 41.411 allows a taxpayer to protest the appraisal district’s failure to provide notice of an increased valuation of the property. Tex. Tax Code Ann. §§ 25.25(d), 41.411.

Here, appellant filed a motion to correct an error in the appraisal records under section 25.25, arguing that its property had been overvalued for the 2002 tax year. In its petition, appellant requested a declaratory judgment that the 2002 valuation was void because WAD failed to provide appellant with notice of the increased valuation and provided appellant with misleading information regarding how to protest lack of notice. Appellant also stated that it had objected to WAD’s valuation of the property. We will construe appellant’s petition as raising both the lack of notice and the overvaluation issues. See Tex. Assoc. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) (holding that an appellate court should construe pleadings in plaintiffs favor when reviewing the trial court’s dismissal for lack of jurisdiction).

Because appellant did not raise the lack of notice issue before the Appraisal Review Board by filing a protest of failure to give notice under section 41.411, the trial court did not have jurisdiction to hear appellant’s complaint regarding lack of notice. See Quorum Int’l, 114 S.W.3d at 572; ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist. 137 S.W.3d 146, 154 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Moreover, even if WAD misled -appellant by providing inaccurate or incomplete information regarding which administrative remedy appellant should pursue, such conduct did not confer jurisdiction on the trial court. See Wilmer-Hutchins, 51 S.W.3d at 294. Accordingly, we need not decide the issue of whether WAD had a duty either to provide appellant with accurate information or to not provide appellant with inaccurate or incomplete information regarding the method of contesting an increase in property valuation. We overrule appellant’s first issue.

In its second issue, appellant contends generally that the trial court abused its discretion in granting the motion to dismiss and more specifically that the trial court abused its discretion to the extent its decision was based on the findings that WAD did not, in fact, mislead appellant or provide appellant with false or inaccurate information. To sustain appellant’s specific complaint, we must first have held that WAD had a duty to not mislead appellant regarding which remedy to pursue and that a breach of this duty exempts appellant from the jurisdictional requirement that it exhaust administrative remedies before filing suit. On the contrary, we held that regardless of whether this duty exists, appellant is not exempt from the jurisdictional requirement that it exhaust administrative remedies before filing suit in district court and that the trial court did not have jurisdiction over the lack of notice issue. Thus, we overrule appellant’s specific complaint regarding the trial court’s findings of fact.

As to appellant’s general complaint regarding the motion to dismiss, we have already held that the trial court did not have jurisdiction over the lack of notice issue. But the trial court did have jurisdiction over the overvaluation issue. Because appellant filed a section 25.25 motion to correct the appraisal roll, the trial court could decide whether the Appraisal Review Board properly denied appellant’s section 25.25 motion. Therefore, the trial court erred by granting WAD’s motion to dismiss as to the valuation question. We sustain appellant’s second issue in part.

VI. Conclusion

We affirm the part of the dismissal order pertaining to jurisdiction over the lack of notice issue and reverse the part of the dismissal order pertaining to jurisdiction over the overvaluation and remand that part for a determination of whether the Appraisal Review Board properly denied appellant’s section 25.25 motion to correct the appraisal roll.

CAYCE, C.J. and McCOY, J. concur without opinion.

      . Appellees Wichita County, Texas, City of Wichita Falls, Texas and Wichita Falls Independent School District waived their right to fíle a brief in this case and adopted the brief filed by WAD.

      . WAD valued the property at $7.44 million for the 2002 tax year. Nothing in the record indicates the property's valuation for the 2001 tax year.

      . See TexR.App. P. 38.9 (requiring appellate courts to construe briefing rules liberally).

      . While we recognize that the trial court could have granted summary judgment on this issue because WAD’s valuation of $7.44 million did not exceed appellant’s opinion of the value by more than one-third, WAD did not request summary judgment, and the trial court cannot dispose of an issue on the merits in a jurisdictional challenge.


author: ANNE GARDNER, Justice.

text:
    Julio C. MATHEUS, Appellant, v. Sandra Kay SASSER, Nancy Lanier Sands, Auckland Corporation, and Auckland, L.P. d/b/a Keller Williams Realty, Appellees.
    No. 2-03-222-CV.
    Court of Appeals of Texas, Fort Worth.
    April 21, 2005.

      McCathern Mooty Buffington, LLP and Levi G. McCathern, II, Chad L. Farrar and Raymond J. Toucotte, Jr., Dallas, for Appellant.
    Newsom, Terry & Newsom, LLP and J. Kent Newsom, Dallas, and Akin & Alman-za and A. Boone Almanza, Austin, for Ap-pellees.
    PANEL B: HOLMAN, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

This is a deceptive trade practices case in which we must determine the proper measure of damages for a realtor’s misrepresentation concerning the square footage of a house. The suit arose from a residential real estate purchase by Appellant Julio C. Matheus. Because the only complaints on appeal by Matheus relate to his claims against the two real estate agents who represented the seller, Nancy L. Sands and Sandra K. Sasser, and the agents’ employer, Auckland L.P. d/b/a Keller Williams Realty, we will discuss only the facts and issues relevant to his complaints against those Appellees. Because we hold that Matheus proffered no evidence of an appropriate measure of damages, we affirm the take-nothing judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Matheus was looking for a home for his family to live in while he built a house on a lot he had previously purchased. He testified that he only intended to live in the house for about a year and a half. He located a house for sale near his lot, engaged an agent, and made an initial offer of about $78 per square foot, based upon a Multiple Listing Service (MLS) listing sheet stating the house was offered at $359,000 with 4,218 “sq. ft. per tax”. Sands and Sasser, agents for the seller, admitted at trial that they had miscalculated the square footage of the house.

Sands and Sasser had obtained the number of square feet from the tax records, which showed square footage of the total living area and second floor space separately, and they had mistakenly added the two together. Both in the MLS sheet printed on Keller Williams letterhead and in a counteroffer letter to Matheus’s agent, Sasser and Sands stated that the house had 4,218 square feet. In the letter, Sands stated that the price being asked by the seller of $82.13 per square foot was “very competitive and definitely a great purchase price.”

Matheus testified that he relied on the representations of square footage in finally agreeing upon a price for the house of $343,225, which he calculated at $81.37 per square foot for 4,218 square feet. An appraisal performed at the request of his mortgage company to assure that the fair market value of the house met or exceeded the price revealed that the house had only 3,593 square feet. According to Matheus, he did not receive a copy of the appraisal until after he and his wife had signed the papers at closing. Upon learning that the house had less square footage than represented, Matheus offered to revoke the sale or to be credited a portion of the sales price for the difference in square footage, but the offer was refused.

Matheus sued Appellees and others under the DTPA for damages resulting from the misrepresentation concerning the house’s square footage. In a bench trial, Matheus asserted, and Appellees did not dispute, that the house actually contained only 3,593 square feet. Matheus testified the house he received was not the 4,218 square foot house he bargained for. Ma-theus testified that he prepared his offers and counteroffers “per square foot,” that he bargained for a house that contained 4,218 square feet at a price of $81.37 per square foot, and that he received only 3,593 square feet. Matheus sought damages of $50,856.25 for the shortage of 625 square feet, calculated at $81.37 per square foot.

At the conclusion of Matheus’s case, Ap-pellees moved for judgment on the DTPA claim on the basis that Matheus had presented no evidence of the fair market value of the property, which they claimed was a necessary element for recovery under either the benefit-of-the-bargain or out-of-pocket measures of damages. After hearing arguments from both sides, the trial court granted the motion. Matheus contends that the trial court erred by granting the motion for judgment because the measure of damages he proposed was a proper measure of damages in a case of this nature, and that his testimony established his damages under that measure.

STANDARD OF REVIEW

Appellees initially referred to their motion as a motion for judgment. Thereafter, and in their briefs to this court, the trial court and the parties sometimes characterize it as a motion for directed verdict. Because the case was tried to the trial court, the proper term is “motion for judgment.” Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 431 n. 1 (Tex.App.-Houston [14th Dist.] 1997, no pet.). This distinction is important because we review a judgment pursuant to a motion for judgment differently than a directed or instructed verdict. Qantel, 761 S.W.2d at 303-04. In entering judgment at the close of a plaintiffs case, the trial judge, acting as trier of fact and law, is presumed to have ruled on both the legal and factual issues. Id. at 304; Schwartz, 944 S.W.2d at 431. The trial court in this case, however, made findings of fact and conclusions of law clearly indicating that she ruled against Matheus on the ground that he produced no evidence under the proper measure of damages. Therefore, we do not reach the issue of factual sufficiency of the evidence.

We review Matheus’s complaint that the trial court erred in applying an improper measure of damages as a question of law subject to de novo review. Alamo Cmty. Coll. Dist. v. Browning Const. Co., 131 S.W.3d 146, 161 (Tex.App.-San Antonio 2004, pet. filed); Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 60 (Tex.App.-El Paso 2000, no pet.). We review Matheus’s complaint that the trial court erred in concluding that he produced no evidence under the proper measure of damages as we would a directed verdict. See Qantel, 761 S.W.2d at 303. In so doing, we must view the evidence in the light most favorable to Matheus as the party against whom the motion for judgment was granted and disregard all contrary inferences, to determine whether there is any probative evidence raising a material fact issue. Id.; White v. S.W. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983).

PROPER MEASURE OF DAMAGES

In response to Matheus’s argument that his damages are appropriately measured by the number of square feet by which the property was short times the price he paid per square foot, Appellees argue that there are only two measures of damages for misrepresentation, “benefit of bargain” and “out of pocket,” and that Matheus’s testimony based solely on those calculations is no evidence under either measure of damages. Although we agree that Ma-theus’s evidence does not satisfy either of those measures of damages, we disagree that those are the only measures of damages available for misrepresentation under the DTPA.

The applicable version of the DTPA provides that a consumer may recover “economic damages,” defined as “compensatory damages for pecuniary loss, including costs of repair or replacement.” Tex. Bus. & Com.Code Ann. §§ 17.45(11), 17.50(b)(1) (Vernon 2002). We have found no case suggesting that the term “economic damages” carries any different meaning than “actual damages” as allowed under the prior version of the DTPA. Therefore, we may appropriately apply the case law decided under the prior and current versions of the Act. Actual damages for misrepresentation under the DTPA are those recoverable at common law. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex.1997) (citing Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980)). At common law, actual damages are either “direct” or “consequential.” Id. (citing Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (Tex.1992) (Phillips, C.J., concurring)).

Direct damages are the necessary and usual result of the defendant’s wrongful act; they flow naturally and necessarily from the wrong. Arthur Andersen, 945 S.W.2d at 816. Direct damages are those that are conclusively presumed to have been foreseen or contemplated by the party as the result of his wrongful act. Henry S. Miller Co., 836 S.W.2d at 163. Consequential damages, on the other hand, are those that result naturally, but not necessarily, from the acts complained of. Id. at 163 (citing Dan B. Dobbs, The Law of Remedies § 9.2 (1973)). Under the DTPA, consequential damages need not be the usual result of the wrong but must be directly traceable to the wrongful act and result from it. Arthur Andersen, 945 S.W.2d at 816; see also Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181-82 (Tex.1995) (holding there must be evidence of a direct causal link between damages awarded, actions of defendant, and injury suffered to recover consequential damages for false, misleading, and deceptive actions under the DTPA).

For misrepresentation, there are two recognized measures of direct damages: the out-of-pocket measure or the beneflt-of-the-bargain measure, whichever gives the plaintiff the greater recovery. Arthur Andersen, 945 S.W.2d at 817; Leyendecker, 683 S.W.2d at 373; Ford Motor Co., 125 S.W.3d at 798. Out-of-pocket damages, based upon a restitutionary theory, measure the difference between the value the buyer has paid and the value of what he has received. Arthur Andersen, 945 S.W.2d at 817; W.O. Bankston Nissan, 754 S.W.2d at 128; Ford Motor Co., 125 S.W.3d at 798. Beneflt-of-the-bargain damages, under an expectancy theory, measure the difference between the value as represented and the value as received. Arthur Andersen, 945 S.W.2d at 817; W.O. Bankston Nissan, 754 S.W.2d at 128; Ford Motor Co., 125 S.W.3d at 798.

The DTPA allows the consumer to recover either the out-of-pocket measure or the beneflt-of-the bargain measure, whichever is greater. W.O. Bankston Nissan, 754 S.W.2d at 128. But contrary to Appellees’ argument, such direct damages are not exclusive under the DTPA. See, e.g., Henry S. Miller Co., 836 S.W.2d at 162 (explicitly stating “such direct measures ... are not exclusive ”) (emphasis added). Other damages may be allowed to ensure that the plaintiff is made whole. Id; Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 863 (Tex.App.-Corpus Christi 1999, pet. denied). In Perry Homes v. Alwattari, we expressly recognized that “[o]ut-of-pocket loss and benefit-of-the-bargain are not the exclusive measures of recoverable damages under the DTPA.” 33 S.W.3d 376, 386 (Tex.App.Fort Worth 2000, pet. denied).

Actual damages under the DTPA have been defined as “the total loss sustained [by the consumer] as the result of the deceptive trade practice.” Henry S. Miller Co., 836 S.W.2d at 162 (citing Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985); Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1980)) (alteration in original). Consequential damages have been allowed in DTPA cases for a variety of losses. See Henry S. Miller Co., 836 S.W.2d at 163 (loss of capital improvements); Kish, 692 S.W.2d at 468 (related and reasonable necessary expenses); White, 651 S.W.2d at 263 (loss of profits); Kold-Serve Corp. v. Ward 736 S.W.2d 750, 755 (Tex.App.-Corpus Christi 1987) (interest on indebtedness), writ dism’d, 748 S.W.2d 227 (Tex.1988); Village Mobile Homes, Inc. v. Porter, 716 S.W.2d 543, 550 (Tex.App.-Austin 1986, writ refd n.r.e.) (loss of improvements). Although the foreseeability requirement for consequential damages does not apply under the DTPA, such additional damages must be proved with reasonable certainty and are not recoverable if they are too remote, too uncertain, or purely conjectural. Arthur Andersen, 945 S.W.2d at 816. Consequential damages must be specially pled. Henry S. Miller Co., 836 S.W.2d at 164.

Matheus did not plead nor does he argue consequential damages but, rather, that damages based on a price per square foot basis are appropriate under the benefit-of-the-bargain measure. Under his calculations, he is entitled to damages measured by multiplying the difference between the number of square feet represented from that actually received (4,218-3,593 = 625) by the price per square foot he paid for the house as represented ($342,225/4,218 = $81.37), for a total of $50,856.25. Matheus relies upon George D. Thomas Builder Inc. v. Timmons, a case involving similar facts from the El Paso Court of Appeals, which approved the method of calculating damages that Matheus proposed in the trial court. 658 S.W.2d 194, 197 (Tex.App.-El Paso 1983, writ refd n.r.e.).

In that case, the Timmonses purchased a home for $30,000. Id. at 195. They claimed that their real estate agent “represented to them that the home had 1,420 square feet of improved living space,” and that they relied on that representation when agreeing on the purchase price. Id. When they subsequently decided to sell the home, it was determined that it actually had only 1,286 square feet of living space. Id. The Timmonses sued the real estate agent for violations of the DTPA. Id. At trial, the jury found that the representations as to square footage were “material” and found “that $3,000.00 would fairly and reasonably compensate the Plaintiffs for their actual damages.” Id. On appeal, the real estate agent challenged the legal and factual sufficiency of the evidence supporting the jury’s finding of damages. Id. at 197.

Based on an examination of the evidence, the court of appeals determined that it was apparent that the jury “calculated damages by using the difference in actual square footage in the home and the square footage represented.” Id. The Timmons court determined that “the cost of the house per square foot as represented would be $22.33, and the square footage deficiency would be 134 square feet. Multiplying the two, damages would be $2,992.22.” Id. The court held, “This is a permissible measure of damages in a case of this nature.” Id.

We are not persuaded that Tim-mons applies to the facts in this case. First, the jury question on damages was submitted generally in that case with no instruction as to the measure of damages, nor did the court of appeals characterize the damages as based upon any particular, common-law measure. The court was only able to ascertain how the jury calculated the damages through backing into the amount through mathematical calculations based on the evidence as to square feet and price, “without knowing exactly how the jury arrived at its figure.” Id. Without a discussion detailing the evidence or case law relied upon by the court, we are left to speculate as to whether the court considered the measure of damages allowed as benefit-of-the-bargain, return of out-of-pocket loss, or consequential damages.

Second, the statement of the court of appeals in Timmons that the measure of damages used was “permissible” is dicta since it does not appear that the correctness of the measure of damages was at issue. The opinion states only that the appellant challenged the legal and factual sufficiency of evidence to support the damages awarded. Id. Third, a significant distinction between this case and Timmons is that the purchaser contended in Timmons that the property’s value was “significantly lowered” by the discrepancy in square footage. Id. at 195. Calculating damages by the difference between the price per square foot as represented times the number of feet by which the property received is deficient might be appropriate where reimbursing the purchaser based on the price paid per square foot of the deficiency is needed to make the purchaser whole. In contrast to the purchaser in Timmons, Matheus has never contended that his property’s value was lowered by the deficiency in the square footage.

Indeed, Matheus admitted on cross-examination that, although he did not actually see the appraisal until after closing, he knew that the house appraised for more than what he was paying before closing. The appraisal, admitted into evidence without objection, placed a fair market value on the property of $347,000.00 at the time of closing, at the lesser but correct number of 3595 square feet. Thus, Matheus received property with a greater value than he bargained for even though it contained fewer square feet. Multiplying the price paid per square foot as represented by the number of square feet of the deficiency is not necessary to make Matheus whole. Instead, it would overcompensate him.

We, along with the Timmons court, note that the measure of damages sought to be invoked here has been used previously. In Cameron v. Terrell & Garrett, Inc., the Texas Supreme Court ascertained from the record that the jury in that case likewise calculated damages “by multiplying the cost of the house per square foot as represented ... times the square footage deficiency.” 618 S.W.2d 535, 538 n. 4 (Tex.1981). The jury question there, as in Tim-mons, did not contain an instruction on a measure of damages. Id. The supreme court did not address whether the measure of damages used by the jury was proper, holding that Terrell & Garrett, Inc. waived error by failing to object to the evidence and failing to request an instruction on the proper measure of damages. Id. Generally, damages calculated as Matheus proposes have only been allowed where a sale of real estate is on an agreed “per unit” basis. See Denman v. Stuart, 142 Tex. 129, 132-33, 176 S.W.2d 730, 732 (1944) (holding value per acre negotiated by parties for sale of tract applied to determine damages for shortage); Schleicher County v. Hudgens, 255 S.W.2d 927, 932 (Tex.Civ. App.-El Paso 1952, no writ) (holding vend-ee entitled to recover price per acre for shortage in realty sold by the acre); Moss-Tate Inv. Co. v. Owens, 22 S.W.2d 1096, 1098 (Tex.Civ.App.-Dallas 1929, writ ref'd) (allowing recovery at agreed price per foot for shortage in lot of 63.6 feet); see generally, Annotation, Measure and Elements of Damages Recoverable fivm Vendor Where There Has Been Mistake as to Amount of Land Conveyed, 94 A.L.R.3d 1091 (1979).

There was evidence that Matheus calculated the lump sum offers and counteroffers, as well as agreeing to the final price for the property on a per square foot basis of living space of the house for negotiation and comparison purposes with other properties. But the MLS sheet, in listing the price and description of the property, reveals a listing price of a lump sum figure, with the square feet stated as a descriptive reference. Matheus points to Sasser and Sands’s letter to Matheus’s agent stating that “[a]t the sales price of $346,450 it’s priced at $82.13 per square foot, which make[s] this property very competitive and definitely a great purchase price.” The letter further indicates that other houses on the market in the subdivision were priced at “an average of $95.98 per square foot” and other “comparable properties” were priced at “an average of $94.50 a square foot.” While the letter was evidence that the price per square foot was a negotiating factor in calculating the final price agreed upon between the parties, this does not equate to evidence that the sale of the house was a negotiated agreement for a sale based on a per square foot unit. The evidence of the agents was undisputed that they were never aware that Matheus was attempting to negotiate a sale on a per square foot basis. And Ma-theus has pointed to no evidence that the final negotiated price was agreed upon per square foot, that is, per “unit” as compared with a sale in “gross” so as to entitle him to measure the damages in the manner he seeks. We overrule Matheus’s first issue and hold that the trial court did not err in granting the motion for judgment because Matheus’s proposed measure of damages was not proper under the circumstances of this case.

EVIDENCE OF DAMAGES UNDER PROPER MEASURE

Matheus nevertheless contends that he produced legally sufficient evidence of damages under the benefit-of-the-bargain measure of direct damages. Initially, we disagree with Appellees’ argument that Matheus failed to offer any evidence of the fair market value of the property as represented. After negotiating, the parties settled on a sales price of $343,225. Matheus testified that the final sales price agreed upon reflects a price of $81.37 per square foot for a house represented to contain 4,218 square feet. The price agreed on between two parties is some evidence to support a fact finding on fair market value of property as represented in an action under the DTPA. Ford Motor Co., 125 S.W.3d at 799 (holding parties’ negotiated price of vehicle was evidence of market value as represented); Barraza v. Koliba, 933 S.W.2d 164,169 (Tex.App.-San Antonio 1996, writ denied) (op. on reh’g) (holding evidence of amount paid for property thought to include mineral rights was more than a scintilla to support market value of land as represented). The price agreed oh by the parties is evidence of the property’s fair market value as represented, at a time when Matheus believed the house contained 4,218 square feet.

Under either. the benefit-of-the-bargain or the out-of-pocket measure of damages, the plaintiff is also required to prove the fair market value of the item as received. W.O. Bankston Nissan, 754 S.W.2d at 128; Jabri v. Alsayyed, 145 S.W.3d 660, 667 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see Ford Motor Co., 125 S.W.3d at 799, 803 (holding recovery precluded absent evidence of market value of vehicle when received); Barraza, 933 S.W.2d at 170 (holding evidence legally insufficient to establish “other leg of damages model” absent evidence of market value of land without minerals on date of sale).

A property owner may testify as to fair market value of his property, but only if his testimony reveals that he is familiar with the market value and only if his assessment is based on market value rather than intrinsic value of the property to him. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996); Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984); Jabri, 145 S.W.Sd at 667; Ford Motor Co., 125 S.W.3d at 799; Barraza, 938 S.W.2d at 169. Fair market value is the price property would bring when offered for sale by one who desires, but is not obligated, to sell, and is bought by one who is under no obligation to buy. Jabri, 145 S.W.3d at 667; Nelson v. Najm, 127 S.W.3d 170, 177 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Intrinsic value, in contrast, is an inherent value not established by market forces, but based upon sentimental or personal value. Ford Motor Co., 125 S.W.3d at 799.

The only evidence as to the fair market value of the house as received with the 625 square foot shortage was the appraisal that reflected a value greater than the value represented. Matheus offered no expert testimony that the fair market value of the house with the shortage was less than the value as represented to him. Matheus, himself, testified only as to the amount he proposed to “make things right” by his own calculations based on the price he paid per square foot times the missing 625 square feet. According to Matheus, the square footage was important to him in purchasing the house because he wanted to be close to the house he planned to build, and that he wanted to sell it for at least what he put into it after making planned changes to the inside.

Matheus’s testimony affirmatively reflected that he was referring to the intrinsic value of the property to him for his personal purposes, rather than the fair market value. As such, his testimony was irrelevant to the proper measure of damages either based on benefit-of-the-bargain or out-of-pocket loss, and constituted no evidence of the market value of the property as received. Porras, 675 S.W.2d at 505 (holding testimony of owner referring to personal rather than market value irrelevant and no evidence, even absent objection); Ford Motor Co., 125 S.W.3d at 803 (holding owner’s opinion that vehicle’s value was “worthless” as “unsafe for what I want it for” affirmatively showed opinion based on personal value to him and constituted no evidence); Pontiac v. Elliott, 775 S.W.2d 395, 398-99 (Tex.App.-Houston [1st Dist.] 1989, writ denied) (holding owner’s testimony as to auto’s value as “nothing” as she could not depend on it or sell it referred to intrinsic value of vehicle to her and constituted no evidence).

Additionally, we note that the supreme court in Cameron seemed to express doubt as to the propriety of the jury’s manner of calculating the damages per square foot, in noting that the jury’s figures included the value of the land in evaluating the damages for deficiency in the square footage of the house. 618 S.W.2d at 538 n. 4. Similarly, the price agreed to by the parties in this case for the house also included the land. Matheus received the land as bargained for, along with the house, for the price he paid, but he produced no evidence of the price per square foot for the house, apart from the price for the entire lot and house together. See Leyendecker, 683 S.W.2d at 373 (holding buyer not entitled to out-of-pocket measure of damages based on deficiency in square footage of house absent evidence or finding as to the price paid for missing square footage as distinct from price of entire lot and improvements).

There was no competent evidence to support the damages sought by Matheus under either the benefit-of-the bargain or out-of-pocket measure of damages. Consequently, we overrule Matheus’s second issue and hold that the trial court did not err in granting Appellees’ motion for judgment.

CONCLUSION

Having overruled both of Appellant Ma-theus’s issues, we affirm the trial court’s take-nothing judgment against Appellant and in favor of Appellees Sasser, Sands, and Auckland.

      . The trial court granted a summary judgment in favor of Keller Williams Realty, Inc. as to all claims against it, and rendered a take-nothing judgment in favor of the seller of the property after trial. Appellant does not complain of the judgment in favor of those parties in this appeal.

      . See Tex Bus. & Com.Code Ann. § 17.46(b)(5), (9) (Vernon Supp.2004-05), § 17.50 (Vernon 2002). Matheus also brought other causes of action, but they are not at issue in this appeal.

      . In 1995, the legislature amended section 17.50(b)(1) to permit recovery of "economic damages” instead of "actual damages.” Act of May 29, 1989, 71st Leg., R.S., ch. 380, § 2, 1989 Tex. Gen. Laws 1490, 1491, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 5, 1995 Tex. Gen. Laws 2988, 2992 (current version at Tex Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon 2002)). After the amendment, appellate courts have used the terms "actual damages” and “economic damages” interchangeably and cited as authority Texas Supreme Court cases applying the statute prior to the amendment. See Ford Motor Co. v. Cooper, 125 S.W.3d 794, 798-99 (Tex.App.-Texarkana 2004, no pet.) (citing W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988) and Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex.1984)); Valley Nissan, Inc. v. Davila, 133 S.W.3d 702, 713 (Tex.App.-Corpus Christi 2003, no pet.) (citing Farrell v. Hunt, 714 S.W.2d 298, 300 (Tex.1986)).

      . On its face, this is a rescissionary measure, i.e., an out-of-pocket measure of damages: reimbursement for the difference between the price paid and the value of the property received, rather than the benefit-of-the bargain measure.


author: SUE WALKER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Marissa Yvonne TREVINO, Appellant, v. The STATE of Texas, State.
    No. 2-04-492-CR.
    Court of Appeals of Texas, Fort Worth.
    April 21, 2005.
    David Richards, Fort Worth, for Appellant.
    Tim Curry, Crim. D.A., Charles M. Mal-lín, Asst. Crim. D.A. and Chief of the Appellate Division, and Kimberley Wesley, and Kim D’Avignon, Asst. Crim. D.As., Fort Worth, for State.
    PANELA: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

Appellant Marissa Yvonne Trevino appeals the trial court’s judgment adjudicating her guilty of the offense of possession of methamphetamine of one gram or more but less than four grams and sentencing her to four years’ confinement. In a single point, she claims that her due process rights under the Texas Constitution were violated when her probation was revoked pursuant to code of criminal procedure article 42.12, section 5. See Tex.Code CRIM. PROC. Ann. art. 42.12, § 5 (Vernon Supp. 2004-05). Appellant argues that the statute is facially unconstitutional because it implements a total restriction on appellate complaints involving the trial court’s decision to adjudicate. The court of criminal appeals has held that the Texas Constitution does not provide a right to appellate review of criminal convictions; the Legislature therefore may properly limit or even deny the right to appeal a criminal conviction entirely. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); see also Henderson v. State, 132 S.W.3d 112, 114 (Tex.App.-Dallas 2004, no pet.). Consequently, the statutory denial of the right to appeal as set forth in article 42.12, section 5(b) is not facially unconstitutional. Phynes, 828 S.W.2d at 2. We overrule Appellant’s point and affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

I write separately to point out that the Texas Constitution does create the right to appeal, and it is that document which gives our legislature the authority to place limits on that right.

As I have stated previously,
The cornerstone of the restricted appeal from an adjudication hearing is not that the right to appeal is a legislatively created right, as this court has erroneously stated in the past. Rather, it is that the constitutionally-grounded right to appeal may be regulated by the legislature. Specifically, “in this state, the right of appeal is conferred only by the Constitution, with such exceptions or limitations as the legislature directs by statute.” Constitutional guarantees of due process and equal protection require that once the right to appeal a criminal conviction exists, it must be fairly applied.

The legislature has prohibited a defendant’s questioning the decision to adjudicate. The legislature has not prohibited his challenging the procedure, that is, the propriety of the conduct of the adjudication hearing. Were we to continue blindly to adhere to the notion that there are no constitutional limits to the legislature’s authority to regulate appeals, we would be forced to hold that the legislature could write into every statute it passes that there could be “no appeal challenging the constitutionality of this statute.”

To hold that the legislature may suspend all constitutional guarantees to persons on deferred adjudication community supervision invites capricious and arbitrary decisions to adjudicate. The law is well established that, in a criminal case, defendants are entitled to due process in community supervision and parole revocation hearings. Similarly, section 5(b) “does not deprive this Court of jurisdiction to determine if a ‘hearing’ was held that satisfied the requirements of substantive and procedural due process.” As an appellate court, we must ensure that constitutional protections are honored. In doing so, we are obligated to entertain claims regarding the constitutionality of a statute or constitutional violations in the statute’s application.

I would hold that Appellant may challenge the admissibility of evidence at the adjudication hearing as well as the legal sufficiency of the evidence to prove a violation. The courts have already recognized that a defendant may challenge the impartiality of the judge and the fairness of the proceeding. But once it is clear that a defendant’s due process interests were adequately protected, the decision to adjudicate, lying within the sound discretion of the judge, may not be appealed.

Because the majority relies on the mistaken premise that the Texas Constitution does not provide a right to appellate review of criminal convictions in summarily holding that article 42.12, section 5(b) is not facially unconstitutional, I respectfully dissent.

      . Tex. Const, art. V, § 5(a), (b).

      . Id.

      . Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Rhynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992).

      . Millican v. State, 145 Tex.Crim. 195, 167 S.W.2d 188, 191 (1943) (op. onreh’g).

      . Small v. State, 977 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1998, no pet.) (Dauphinot, J., concurring).

      . See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-05).

      . Of course, a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure is always available, but it seems an unnecessary burden to place on the Texas Court of Criminal Appeals.

      . See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979).

      . See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

      . Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.-Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding.... The adjudication hearing must provide a defendant with minimum substantive and procedural due process protection.”); Goins v. State, 826 S.W.2d 733, 735 (Tex.App.-Houston [14th Dist.] 1992, no pet.); see also Homan v. Hughes, 708 S.W.2d 449, 452 (Tex.Crim.App.1986) ("Nothing in Art. 42.12, supra, prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain reading of the germane section indicates just the opposite.”); Wright v. State, 592 S.W.2d 604, 605 (Tex.Crim.App. [Panel Op.] 1980); Earley v. State, 855 S.W.2d 260, 261-63 (Tex.App.-Corpus Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex.Crim.App.1994); De Leon v. State, 797 S.W.2d 186, 187-88 (Tex.App.-Corpus Christi 1990, no pet.) (“[A] body of decisional law has developed to allow a defendant to raise limited challenges to the trial court’s decision to adjudicate.”).

      . See, e.g., Earley, 855 S.W.2d at 262-63.


author: Justice BRIDGES.

text:
    ROYAL AMERICAN CONSTRUCTION COMPANY, INC., Appellant v. COMERICA BANK, as Assignee of Dorson, Inc. d/b/a Daven Products Co., Appellee.
    No. 05-04-01263-CV.
    Court of Appeals of Texas, Dallas.
    May 26, 2005.

      Christine D. Roseveare and Christopher Richard Ward, Strasburger & Price, L.L.P., Dallas, for Appellant.
    Peter C. Lewis, Walker, Bright & Lewis, P.C., Dallas, for Appellee.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice BRIDGES.

Royal American Construction Company, Inc. appeals the trial court’s order denying Royal’s special appearance. In a single issue, Royal argues the trial court erred in exercising personal jurisdiction over it. We affirm the trial court’s judgment.

Daven Products Company, a company with its principal place of business in Texas, sold construction-related products to Royal for use in Florida. Daven shipped the products from its warehouse in Car-rollton, Texas. Royal is not a Texas corporation. Daven sent invoices to Royal from Daven’s place of business in Carroll-ton, and all payments were received there. Daven shipped the construction material from its warehouse in Carrollton to Royal in Florida. Royal failed to pay, and Corn-erica, in its capacity as Daven’s assignee, filed suit in Texas. Royal filed a special appearance which the trial court denied. This appeal followed.

The plaintiff has the initial burden of pleading facts sufficient to bring a nonresident defendant within the provisions of the Texas long arm statute. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 633 (Tex.App.-Dallas 1993, writ denied). When a nonresident defendant challenges a trial court’s exercise of personal jurisdiction through a special appearance, it carries the burden of negating all bases of personal jurisdiction. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). The exercise of personal jurisdiction requires the trial judge to resolve any factual disputes before applying the jurisdictional formula. Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.App.-Dallas 1994, writ denied). When, as here, a trial judge fails to make findings of fact and conclusions of law, we view the trial court’s judgment as impliedly finding all the necessary facts to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

On appeal, we apply a factual sufficiency of the evidence review to the trial judge’s determination of disputed fact issues on the question of jurisdiction. Craig, 993 S.W.2d at 120; KPMG Peat Marwick, 847 S.W.2d at 632. Once we have determined the evidence is factually sufficient to support the trial judge’s resolution of disputed fact issues, we examine de novo whether the facts negate all bases for personal jurisdiction. See Craig, 993 S.W.2d at 120.

Royal challenges whether the evidence showed sufficient minimum contacts between Royal and Texas to support the exercise of personal jurisdiction and whether standards of fair play and substantial justice prevent Texas from exercising jurisdiction.

The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents “doing business” in Texas. Tex. Crv. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997). Although the statute lists particular acts which constitute “doing business,” the statute also provides that the nonresident’s other acts may satisfy the “doing business” requirement. Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997); see Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Because the Texas long-arm statute “reach[es] as far as the federal constitution permits,” Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990); U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978), we focus on the federal constitutional requirements for the exercise of personal jurisdiction. See Guardian Royal, 815 S.W.2d at 226. Under federal due process requirements, we determine: (1) whether the nonresident defendant has purposefully established “minimum contacts” with the forum state; and (2) if so, whether the exercise of jurisdiction comports with “fair play and substantial justice.” See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Guardian Royal, 815 S.W.2d at 226.

Minimum contacts may be established only on “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The actions of the nonresident defendant must justify a conclusion that the nonresident defendant should reasonably anticipate being called into court in the forum state. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 675 (Tex.App.-Dallas 1993, writ dism’d by agr.).

Personal jurisdiction may be either general or specific. KPMG Peat Marwick, 847 S.W.2d at 632; see Schlobohm, 784 S.W.2d at 357. Under specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant’s contact with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 227. With this standard in mind, we now examine whether Royal purposefully established “minimum contacts” with Texas; ie., whether there was a substantial connection between Royal and Texas arising from action or conduct of Royal purposefully directed toward Texas.

Here, the record shows Royal contracted with Daven to provide, among other things, doors, trim and hardware for approximately seventeen buildings at a Florida construction site. Royal received invoices from Daven’s place of business in Carrollton, and Royal sent all its payments to Carrollton. Daven shipped the construction material from its warehouse in Carrollton to Royal in Florida. The record contains a six-page “schedule of values” dated November 5, 1999 indicating $770,000 of products supplied to Royal by Daven. Two “subcontract worksheets” of that same date reflect trim and hardware Royal contracted with Daven to provide in the amount of $215,269 and $554,731. Da-ven’s “customer detail listing” reflects an ongoing business relationship between Royal and Daven in the form of more than eighty invoices between late 1999 and June 2000. Under these facts and circumstances, we conclude Royal has maintained continuous and systematic contacts with Texas that constitute a “substantial connection” between Royal and Texas such that Royal should reasonably anticipate being called into court in Texas. See Temperature Sys., 854 S.W.2d at 675; Guardian Royal, 815 S.W.2d at 230-31.

Having concluded Royal has the necessary minimum contacts with Texas, we must now determine whether the exercise of jurisdiction comports with “fair play and substantial justice.” See Guardian Royal, 815 S.W.2d at 231. In making this determination, we examine whether Royal presented a “compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174. Under this inquiry, we consider the following factors: (1) the burden on the nonresident defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Guardian Royal, 815 S.W.2d at 231. Only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal, 815 S.W.2d at 231; see Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174.

After careful review of these factors, we conclude there is nothing in the record to indicate that litigation in Texas would be excessively burdensome to Royal. The interests of Texas in adjudicating the dispute and Comerica’s interest in obtaining convenient and effective relief clearly weigh in favor of the exercise of jurisdiction. Under the facts and circumstances of this case, we conclude Royal purposefully established minimum contacts with Texas and the exercise of jurisdiction comports with fair play and substantial justice. See Guardian Royal, 815 S.W.2d at 231; Burger King Corp., 471 U.S. at 476-78, 105 S.Ct. 2174. Consequently, the trial judge was correct in denying Royal’s special appearance. We overrule Royal’s single issue.

We affirm the trial court’s order denying Royal’s special appearance.