author: Justice FITZGERALD.

text:
    CITY OF GREENVILLE, Texas, Appellant, v. SISK UTILITIES, INC., Appellee.
    No. 05-04-01079-CV.
    Court of Appeals of Texas, Dallas.
    June 15, 2005.

      James Andrew Bench, Scott, Walker & Bench, Greenville, for Appellant.
    Philip D. Alexander, Curtis, Alexander, McCampbell & Morris, Emory, for Appel-lee.
    Judith F. Snyder, pro se.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by

Justice FITZGERALD.

This is a sovereign immunity case. Ap-pellee Sisk Utilities, Inc. was performing “road bores” in connection with sanitary sewer work and was required to bore under a water line belonging to appellant City of Greenville. According to Sisk, the City orally agreed to install a valve in its water line to shut water off during the bore. The City installed the valve, but during the work the water line broke, damaging Sisk’s equipment. According to Sisk, the City also incorrectly located a sewer line, causing delay for Sisk. Sisk sued the City for breach of contract and various torts, including negligence and misrepresentation. The City answered and filed a plea to the jurisdiction claiming sovereign immunity. Sisk claimed the City’s immunity was waived by the Texas Local Government Code and by the city charter. The trial court granted the City’s plea for all matters except Sisk’s claim based on “the alleged existence of a contract and the purported breach thereof.” The City appeals. In two related issues, the City charges that the trial court erred by denying its plea to the jurisdiction on the contract claim and by impliedly finding that the City had waived its immunity from suit by contracting with Sisk.

Governmental immunity protects governmental entities from lawsuits for damages absent legislative consent. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The doctrine embraces two distinct concepts: (1) immunity from suit, and (2) immunity from liability. See id. A governmental entity waives immunity from liability when it contracts with private citizens. Id. at 405-06. Immunity from suit, on the other hand, is waived only through consent expressed by clear and unambiguous language. See Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex.2002) (“Express consent is required to show that immunity from suit has been waived.”); see also Tex. Gov’t Code Ann. § 311.034 (Vernon 2005) (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language”). When determining whether there is a clear and unambiguous waiver of immunity from suit, we resolve any ambiguity in favor of retaining immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003).

In this case, Sisk argues that the City’s immunity from suit has been waived (a) by the Texas Legislature in the Texas Local Government Code, which provides that a municipality “may plead and be impleaded in any court,” and (b) by the City itself in its charter, which avers that the City “may sue and be sued, ... may implead and be impleaded in all courts and places and in all matters whatsoever.” Tex. Loc. Gov’t Code Ann. § 51.075 (Vernon 1999); City of GREenville CHARTER Art. 2, Sec. 5. This Court has recently analyzed and rejected similar arguments. See, e.g., Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 123 S.W.3d 63, 66-67 (Tex.App.-Dallas 2003, pet. filed) (concluding “sue and be sued” language found in section 11.151(a) of the Texas Education Code is not waiver of immunity); City of Carrollton v. McMahon Contracting, L.P., 134 S.W.3d 925, 927-28 (Tex.App.-Dallas 2004, pet. filed) (concluding language in section 51.075 that city “may plead and be impleaded in any court” is not waiver of immunity). See also Dallas Fire Fighters Ass’n v. City of Dallas, No. 05-03-01787-CV, 2004 WL 1662945, at *2 (Tex.App.-Dallas July 27, 2004, pet. filed); City of Mesquite v. PKG Contracting, Inc., 148 S.W.3d 209, 214 (Tex.App.-Dallas 2004, pet. filed). We will not revisit our prior holdings today.

We conclude the City’s immunity from suit has not been waived. Accordingly, we decide the City’s issues in its favor. We vacate the appealed-from portion of the trial court’s order — i.e., the phrase “except for the Plaintiffs claim based on the alleged existence of a contract and the purported breach thereof’ — and we render judgment for the City.

      . Sisk did not file a notice of appeal complaining of the portion of the trial court's order that found in the City's favor.


source: Caselaw Access Project

author: Justice CASTILLO.

license: Public Domain

text:
    ADVANCE’D TEMPORARIES, INC., Appellant, v. RELIANCE SURETY COMPANY, Corpus Christi Crosswinds Apartments, Ltd., Cesar Gonzalez, Individually and d/b/a Gonzalez Construction, Appellees.
    No. 13-01-821-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    July 22, 2004.
    Rehearing and Rehearing En Banc Overruled June 23, 2005.

      J. Bennett White, Wilson, Sheehy, Knowles, Robertson & Cornelius, Tyler, Roland L. Leon, Baker, Leon, Fancher & Matthys, Corpus Christi, for appellant.
    Stephen P. Streety, Hebinck & Alter, Martin M. Hokanson, Houston, Douglas D. Mclallen, Corpus Christi, for appellees.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by

Justice CASTILLO.

This is a mechanic’s lien case. Advanced Temporaries, Inc., a temporary employment agency, challenges the trial court’s legal conclusion that Advanced has

no standing to assert lien rights under chapter 53 of the Texas Property Code. The issue is one of first impression in Texas. We reverse and remand.

I. Background Facts

Advanced filed suit against Reliance National Indemnity Company (“Reliance”), Corpus Christi Crosswinds Apartments (“Crosswinds”), and Cesar Gonzalez, d/b/a Gonzalez Construction (“Gonzalez”), seeking $208,219.56 in damages arising out of contracts associated with an apartment construction project. Reliance filed a counterclaim seeking indemnity against Gonzales. L & T, J.V. (“Lamar”) intervened and brought causes of action against Gonzalez and Advanced. Advanced added causes of action against Lamar. Gonzalez brought cross-claims against Lamar.

In August of 1999, construction began on a building project known as the Corpus Christi Crosswinds Apartments. Lamar, Crosswind’s general contractor, entered into three subcontracts with Gonzalez: (1) a $450,000 contract for framing labor; (2) a $205,000 contract for drywall installation; and (3) a $30,150.75 contract for roofing labor. Crosswind’s general contract with Lamar required it to post a payment bond, with Reliance as surety, in the amount of $6,305,000, which was the total contract price. On November 10, 1999, Advanced contracted with Gonzalez to provide temporary employees for Gonzalez’s use in performing its subcontract with Lamar on the Crosswinds project.

Accordingly, Advanced recruited, hired, and provided to Gonzalez for the Crosswinds project general laborers, carpenter’s helpers, and carpenters. Between November 15, 1999 and February 11, 2000, Advance’d qualified the workers by verifying legal documentation, driver’s licenses, social security cards, and federal employment forms. Advance’d hired the workers as its employees and earned their worker’s compensation, unemployment insurance, and general liability insurance. Advance’d invoiced Gonzalez weekly, paid all of the supplied employees, and made all proper payroll deductions. At times, more than one hundred Advance’d workers labored at Crosswinds under Gonzalez’s supervision.

The relationship between Lamar and Gonzalez deteriorated. Gonzalez’s work at Crosswinds abruptly ended on February 12, 2000. On termination, Lamar paid Gonzalez for all outstanding work. Gonzalez paid Advance’d $63,210.67. A $208,219.56 outstanding balance remained unpaid.

Advance’d then asserted a claim against the payment bond but was unsuccessful in collecting on the bond. It filed suit for the outstanding balance. Following a bench trial, the court rendered judgment in full against Gonzalez in favor of Advance’d but denied Advance’d judgment against Crosswinds, Lamar, and Reliance. Following the bench trial, the trial court signed the final judgment on September 4, 2001. This appeal ensued.

In its second issue, Advance’d challenges the trial court’s conclusion of law that Advance’d “is not a person entitled to the benefits of the mechanic’s lien statutes.” Advance’d contends it is entitled to recover against the payment bond because, by virtue of its contract with Gonzalez, a subcontractor, it falls squarely within chapter 53 of the property code as a provider of labor in the direct prosecution of the work. Lamar and Reliance assert that the services provided by Advance’d, as a temporary employment agency, were payroll or administrative services and are not in the nature of “labor” or “work” as contemplated by the property code. Specifically, Lamar and Reliance argue, none of the services Advance’d provided was “labor for construction or repair.” Therefore, they conclude, Advance’d is not entitled to a lien or judgment against the payment bond.

II. ANALYSIS

A. Standard of Review

We review a trial court’s challenged conclusions of law as legal questions. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Jackson v. Kincaid, 122 S.W.3d 440, 445 (Tex.App.Corpus Christi 2003, pet. filed). Thus, we review de novo a trial court’s application of the law to the facts. In other words, we determine the correctness of the trial court’s legal conclusions. BMC Software, 83 S.W.3d at 794. We are not obligated to give any particular deference to those conclusions. Pegasus Energy Group v. Cheyenne Petroleum Co., 3 S.W.3d 112, 121 (Tex.App.-Corpus Christi 1999, pet. denied). As the final arbiter of the law, we have the power and the duty to evaluate legal determinations of the trial court independently. Id.

B. Applicable Law

In Texas, the law recognizes two forms of mechanic’s hens: constitutional and statutory. The most common, applicable here, is found in chapter 53 of the Texas Property Code. Section 53.021 states:

(a) A person has a lien if:
(1) the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of:
(A) a house, building or improvement;
(B) a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or
(C) a railroad; and
(2) the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor.

Tex. PROP.Code ANN. § 53.021(a)(1), (a)(2) (Vernon Supp.2004). The purpose of the statutory mechanic’s lien is to protect laborers and materialmen who come within its terms for labor and materials consumed in the construction of improvements to real property. Sout0h Coast Supply Co. v. A & M Operating Co. {In re A & M Operating Co.), 182 B.R. 986, 991 (Bankr.D.Tex.1993). No protection is afforded those who labor to produce or repair chattels. Id. A subcontractor in Texas is entitled to a lien when furnishing labor or materials for construction or repair of a building under or by virtue of a contract with the owner or the owner’s subcontractor. Tex. Prop. Code Awn. § 53.021(a)(1)(A), (a)(2) (Vernon Supp.2004). However, the statute is not designed to protect only subcontractors. Rather, the supreme court has held that “the mechanic’s and materialman’s hen statutes of this State will be liberally construed for the purpose of protecting laborers and materialmen.” Page v. Structural Wood Components, 102 S.W.3d 720, 723 n.3 (Tex.2003) (quoting First Nat’l Bank v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex. 1974)).

The usual building contract imposes the duty to pay for furnished labor and materials primarily on the contractor. Wilson v. Sherwin-Williams Paint Co., 110 Tex. 156, 217 S.W. 372, 372 (1919). The contractor selects the subcontractor. If loss must fall somewhere (either on the materialman, owner, or contractor) when a subcontractor fails to perform an obligation, it should fall on the contractor, who should be supervising the subcontractor’s activities. Id. A materialman’s right to recover is not dependent on the status of the accounts between the general contractor and the subcontractor. See Campbell Bros., Inc. v. Gen. Elec. Supply Co., 383 S.W.2d 61, 64 (Tex. Civ.App.-Dallas 1964, writ ref d n.r.e.); see also John F. Buckner & Sons v. Ark. Fuel Oil Corp., 301 S.W.2d 325, 329 (Tex.Civ.App.-Waco 1957, no writ). Similarly, neither should the status of accounts determine the rights of one who furnished labor. See Campbell Bros., Inc., 383 S.W.2d at 64; see also John F. Buckner & Sons, 301 S.W.2d at 329. To do so would deprive those furnishing labor of substantial and certain benefits that the lien statutes are designed to provide. See Sherwin-Williams Paint Co., 217 S.W. at 373.

Chapter 53 defines “labor” is as “labor used in the direct prosecution of the work.” Tex. Prop.Code Ann. § 53.021(3) (Vernon Supp.2004). “Work” is “any part of construction or repair performed under an original contract.” Tex. Prop.Code Ann. § 53.001(14) (Vernon Supp.2004). To construe the statute as Lamar and Reliance propose and require every lien claimant to engage in the business of construction is contrary to the legislature’s intent to construe the lien statute liberally for the purpose of protecting laborers and material-men. See Page, 102 S.W.3d at 723 n. 3. Accordingly, we hold that chapter 53 of the property code affords protection to those who “furnish labor” as well as those who actually labor on a construction project in Texas.

However, we conclude that not every arrangement will establish that a temporary employment agency “furnishes labor” as defined by chapter 53. For instance, a temporary employment agency may contract with a construction company to provide only administrative services for the contractor’s employees and not labor engaged in direct prosecution of the work. The California Court of Appeals has addressed just this issue. See Contractors Labor Pool, Inc. v. Westway Contractors, Inc., 53 Cal.App.4th 152, 61 Cal.Rptr.2d 715, 722-23 (1997). The plaintiff, a corporation in the business of furnishing skilled and unskilled temporary workers to construction contractors, sought recovery of damages for breach of contract and to assert lien rights on a payment bond. The court stated:

[T]he legal status of an employer of laborers furnished to a work of improvement is the crucial factor which distinguishes a person who “furnishes” such laborers to the project, and is thus entitled to lien rights, from a person who merely organizes the work force, performs administrative functions, advances wages, or does all three on behalf of another, and is consequently not entitled to lien rights.

Id. The court further stated that “an entity which takes upon itself the legal responsibilities of an employer is entitled to a mechanic’s lien and related remedies if it furnishes the labor of its employees to a work of improvement, but one who does not assume those legal responsibilities is not.” Id. The court affirmed the trial court’s judgment entitling the corporation in the business of furnishing temporary construction workers mechanic lien rights on the payment bond. Id.

This Court also addressed a similar question on an appeal from a summary judgment. See AMS Constr. Co., Inc. v. Warm Springs Rehab. Found., Inc., 94 S.W.3d 152, 161 (Tex.App.-Corpus Christi 2002, rule 53.7(F) mot. for extension of time filed). There, AMS Construction and Third Coast entered into an agreement that AMS was to furnish labor to Third Coast for the construction of a hospital. Id. at 155. Third Coast was to pay AMS the invoice price of the labor furnished. Id. Warm Springs contended AMS only provided administrative services for Third Coast, specifically payroll services, and was not entitled to a lien as a matter of law. Id. We held that whether AMS “furnished labor” for chapter 53 lien purposes is a question of fact. Id. at 161.

Here, Advance’d is a temporary employment agency, not in the construction business itself, that provides temporary construction workers under a contractual arrangement analogous to the agreement at issue in Warm Springs. Advance’d contracted with Gonzalez to provide the necessary labor to enable Gonzalez to fulfill its contractual duties to Lamar. Therefore, ultimately, the nature of the arrangement among Advance’d, the temporary workers it supplied, and Gonzalez is a question of fact. See id.

We have reviewed relevant decisions in other jurisdictions to develop factors to consider in determining if Advance’d furnished labor in direct prosecution of work on the Crosswinds construction project. Those factors include: (1) the temporary employment agency’s involvement in selecting and screening the workers for hire; (2) the use by the agency of its own criteria for hiring the workers; (3) affirmative representations by the agency to the workers that it is their employer; (4) the nature of documentation exchanged between the workers and the agency at the start of the working relationship; (5) the agency’s involvement in training, supervising, and disciplining the workers and otherwise retaining control over the workers or directing their behavior; (6) whether the agency rather than the contractor determined which workers could be terminated; and (7) whether the agency withheld workers rather than services on nonpayment by the contractor. See, e.g., Contractors Labor Pool, 61 Cal.Rptr.2d at 722; see also Tri-State Empl. Servs. v. Mountbatten Sur. Co., 99 N.Y.2d 476, 477-78, 758 N.Y.S.2d 595, 788 N.E.2d 1028 (2003) (adopting Contractors Labor Pool multi-factor test to determine right of agency to which contractor outsourced its payroll and human resources responsibilities to assert lien rights on payment bond).

C. Application of the Law to the Facts

Here, the record shows that Advanced recruited carpenters and general laborers to work for Gonzalez on the construction project. The record is not clear as to whether Advanced used its own hiring criteria, if any, in making employment decisions. However, Advanced did qualify the workers by verifying legal documentation, driver’s licenses, social security cards, and federal employment forms. The record is devoid of evidence of any screening, qualifying, or hiring decisions undertaken by Gonzalez. Further, Advanced recruited and hired all workers as its own employees and provided all worker’s compensation, unemployment insurance, and general liability insurance. Finally, all workers hired by Advanced to work for Gonzalez received paychecks from Advanced, and Advanced made all proper payroll deductions. On these facts, we conclude that the trial court did not reach a correct legal conclusion. See BMC Software, 83 S.W.3d at 794. Therefore, we hold that Advanced “furnished labor in direct prosecution of the work” on the Crosswinds construction project pursuant to section 53 of the Texas Property Code. See Tex. PROp.Code Ann. §§ 53.001(14), 53.021(3) (Vernon Supp. 2004). We sustain Advance’d’s second issue.

III. CONCLUSION

Our disposition of the second issue compels reversal of the trial court’s judgment. Accordingly, we do not address the remaining issues raised by Advanced. See Tex.R.App. P. 47.1. Accordingly, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

      . The surety named by Advanced in its petition was Reliance Surety Company. Appel-lees filed their brief in the name of Reliance National Indemnity Company. We adopt the designation as it appears in appellees’ brief.

      . Advance’d claims Gonzalez’s brother began dating the daughter of Lamar’s superintendent. Meanwhile, hostilities arose between Gonzalez and the superintendent, resulting in Gonzalez’s departure. Lamar counters that issues regarding the quality and timeliness of Gonzalez’s work led to the termination.

      . The trial court found that Advanced provided Gonzalez the following services: recruiting of employees, payment of payroll for the employees, payment of payroll taxes for the employees, and providing general liability and worker compensation insurance for the employees.

      . The issues raised by Advanced are whether: (1) Lamar has to pay twice; (2) Advanced provided labor; (3) Advanced is a bank; (4) the laborers were involved in direct prosecution of the work; (5) bond claims are capped by the pertinent subcontract; (6) Advanced was negligent; and (7) Advanced timely perfected its entire claim. Because our decision today may affect resolution of the other issues, we do not reach them in this appeal. See Johnson v. Ventling, 132 S.W.3d 173, 179 n. 4 (Tex.App.-Corpus Christi 2004, no pet. h).


author: EVA M. GUZMAN, Justice.

text:
    Mario ALANIZ, Jr., Ludivina Alaniz Hernandez, Rodolfo Alaniz; Ludivina Alaniz Hernandez, as Next Best Friend of Her Minor Sisters, Judith Alaniz & Diana Alaniz; Individually, Jointly & as Representatives of the Estates of Mario Alaniz, Deceased, and Ludivina Alaniz, Deceased; Elizabeth Sifuentes, and Elisa Sifuentes, Appellants v. REBELLO FOOD & BEVERAGE, L.L.C., SRK Management, Inc. d/b/a Howard Johnson Suites, Kirit Patel, and Howard Johnson International, Inc., Appellees.
    No. 14-03-00478-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 17, 2005.

      Eduardo Lucio, Dallas, for appellants.
    John B. Wallace, John Kevin Spiller, R. Stephen Ferrell, Houston, Mark Aronow-itz, Kemah, for appellees.
    Panel consists of Chief Justice HEDGES, Justices FROST and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

We withdraw our opinion of September 21, 2004, and issue this substituted opinion. In this dram-shop case, we examine several evidentiary issues, including whether (1) appellants produced more than a scintilla of evidence in response to appellees’ no-evidence summary judgment motion; (2) appellees’ summary judgment evidence established its entitlement to judgment as a matter of law; and (3) the trial court erred in granting appellees’ motion to strike the testimony of appellants’ expert witness. We conclude the trial court properly granted summary judgment and did not err in striking the expert’s testimony. Thus, we affirm the trial court’s judgment.

Factual and Procedural Background

Tragically, in the early morning hours of May 17,1998, as Mario Alaniz and his wife, Ludivina, crossed Seawall Boulevard, they were struck and killed by a vehicle driven by Ronald Kurtz. The record shows Kurtz began drinking at J.W.’s 8 Mile Road Bait Camp (“J.W.’s”) during the afternoon hours of May 16. While at J.W.’s, Kurtz drank between four and six beers. At about 9:30 that evening, Kurtz and several of his friends left J.W.’s and went to the Oasis, a bar owned by appellee Rebello Food and Beverage Services, L.L.C., d/b/a The Oasis (“Oasis”). While at the Oasis, Kurtz had two mixed drinks. He left the Oasis at approximately 11:45 p.m. Kurtz testified that as he turned onto Seawall Boulevard, he blacked out and he has no recollection of what happened thereafter, including the accident, which occurred at approximately 12:40 a.m. on May 17.

Appellants, children of Mr. and Mrs. Alaniz, the childrens’ aunt, and grandmother, filed suit against Kurtz and ap-pellees, Oasis, SRK Management, Inc., d/b/a Howard Johnson Suites (“SRK”), and Kirit Patel, alleging various causes of action, including suit under the Dram Shop Act. Appellants claimed appellees served alcoholic drinks to Kurtz when it was apparent he was obviously intoxicated.

Appellees filed a traditional and no-evidence motion for summary judgment arguing (1) their evidence established it was not apparent to anyone at the Oasis that Kurtz was obviously intoxicated; and (2) there was no evidence Kurtz was obviously intoxicated and no evidence of proximate causation. Appellees also filed a motion to exclude the testimony of appellants’ expert witness, James C. Garriott. Appellants filed a partial motion for summary judgment, claiming that appellees’ attempt to join Kurtz as a responsible third party, and thereby apportion liability, was in contravention of the Dram Shop Act. After a hearing on the motions, the trial court granted appellees’ motion and denied appellants’ motion. This appeal ensued.

Issues Presented

In seven issues, appellants challenge the trial court’s grant of summary judgment in favor of appellees on the following grounds: (1) appellees’ no-evidence summary judgment motion failed to meet the specificity requirements of Rule 166a(i); (2) appellants raised more than a scintilla of evidence as to the elements of their Dram Shop Act cause of action; (3) material issues of fact existed regarding the apparent intoxication of Ronald Kurtz and proximate causation; (4) appellees’ summary judgment evidence was insufficient; (5) the testimony of appellants’ expert witness should not have been stricken; (6) appellants’ summary judgment motion on the issue of the intoxicated driver’s comparative responsibility should have been granted; and (7) the trial court erred in requiring appellants to produce a blood alcohol level as evidence of obvious intoxication. We address appellants’ issues in the order in which they are raised.

Discussion

A. Did appellants’ no-evidence summary judgment motion meet the requirements of Rule 166a(i)?

In their first issue, appellants argue that appellees’ no-evidence summary judgment motion failed to meet the specificity requirements of Rule 166a(i). See Tex.R. Civ. P. 166a(i). Appellants contend appellees’ motion merely recites the Dram Shop Act and makes a general statement as to a lack of evidence. Appellants argue that because of the lack of specificity, they did not have sufficient notice as to which elements appellees were challenging. After examining the Dram Shop Act and appellees’ no-evidence motion, we conclude the motion was sufficiently specific under Rule 166a(i).

Rule 166a(i) provides in part that a no-evidence summary judgment motion must “state the elements as to which there is no evidence.” Id. Essentially, this requirement prohibits conclusory no-evidence motions or general no-evidence challenges to an opponent’s case. See Tex.R. Civ. P. 166a(i) cmt.; Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Under the Dram Shop Act, a plaintiff must prove that at the time alcohol was provided, sold, or served, it was apparent to the provider that the person consuming the alcohol was obviously intoxicated to the extent that he presented a danger to himself and others. See Tex. Alco. Bev.Code Ann. § 2.02(b)(1) (Vernon 1995); Borneman v. Steak & Ale of Tex., Inc., 22 S.W.3d 411, 412 (Tex.2000). The plaintiff must also prove that the intoxication of the person consuming the alcohol was a proximate cause of the damages suffered. Tex. Alco. Bev.Code Ann. § 2.02(b)(2) (Vernon 1995); Bomeman, 22 S.W.3d at 412.

In their summary judgment motion, ap-pellees first provide a factual recitation of the case and conclude that section with a summation of their no-evidence and traditional summary judgment grounds. After setting forth their arguments on the traditional summary judgment motion, appel-lees then state their no-evidence motion arguments, in part, as follows:

a. One element of a dram-shop case is that at the time the provision of alcohol occurred, it was apparent to the provider that the person being provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others. Here, there is no evidence that while Kurtz was at the Oasis, it was apparent to the employees ... that Kurtz was obviously intoxicated to the extent that he presented a clear danger to himself and others.
b. The Dram Shop Act also requires that the intoxication of the recipient of the alcoholic beverages have been a proximate cause of the damages suffered. Here, there is no evidence that the intoxication of Kurtz was a proximate cause of the damages suffered.

The foregoing statements specifically set forth the two elements appellants are required to prove under the Dram Shop Act and, correspondingly, identify the specific elements on which appellees contend appellants have no evidence. See Tex. Alco. Bev.Code Ann. § 2.02(b); Borneman, 22 S.W.3d at 412 (setting out elements a plaintiff must prove under Dram Shop Act). Thus, appellees have satisfied the requirements of Rule 166a(i). See, e.g., Johnson v. Felts, 140 S.W.3d 702, 706-07 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (citing Johnson v. Brewer & Pritchard, 73 S.W.3d 193, 207 (Tex.2002)); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Further, the motion sufficiently put appellants on notice of the elements being challenged by appellees. Accordingly, we overrule appellants’ first issue.

B. Did material issues of fact preclude the trial court’s grant of summary judgment?

In their second and third issues, appellants argue, respectively, that the trial court erred in granting appellees’ no-evidence summary judgment motion regarding Kurtz’s intoxication, and in granting appellees’ traditional summary judgment motion on the issue of intoxication because material fact issues exist as to Kurtz’s “apparent intoxication” and causation. Although appellants argue these issues jointly in their appellate brief, we address each separately. Because the trial court’s judgment does not specify the grounds for its ruling, we may affirm judgment on any meritorious ground raised in the motion. Pa. Pulp & Paper Co. v. Nationwide Mut. Ins. Co., 100 S.W.3d 566, 570 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

1. No-Evidence Summary Judgment

a. Standard of review

A party may move for summary judgment on the basis that there is no evidence of an essential element of the non-movant’s cause of action. Tex.R. Civ. P .166a(i). To defeat a no-evidence summary judgment motion, a party must produce more than a scintilla of probative evidence raising a genuine issue of material fact on the challenged elements. See Tex.R. Civ. P. 166a(i) cmt.; Lampasas, 988 S.W.2d at 432. We will sustain the trial court’s judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex.App.-Houston [14th Dist.] 2000, no pet.). We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (TexApp.-Houston [1st Dist.] 1999, no pet.). “Unlike a mov-ant for traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense.” Lake Charles Harbor & Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

More than a scintilla of evidence exists if the evidence rises to a level that would allow reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). However, when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and is, in effect, no evidence. Id. Circumstantial evidence may be used to establish a material fact, but to raise a genuine issue of material fact, the evidence must transcend mere suspicion. Id. “Evidence that is so slight as to make any inference a guess is in legal effect no evidence.” Id.

b. Discussion

As previously stated, on appellants’ Dram Shop Act claims, they must prove two elements: (1) that at the time alcohol was provided, sold, or served, it was apparent to the appellees that Kurtz was obviously intoxicated to the extent he presented a danger to himself and others; and (2) Kurtz’s intoxication was a proximate cause of the damages suffered. See Tex. Alco. Bev.Code Ann. § 2.02(b); Borneman, 22 S.W.3d at 412. In the trial court, appellees argued there was no evidence that at the time Kurtz was served, it was apparent to the employees of the Oasis that he was obviously intoxicated to the extent that he presented a clear danger to himself and others and there was no evidence of proximate causation.

In response to appellees’ motion, appellants produced no direct evidence that while being served at the Oasis, Kurtz was obviously intoxicated. Instead, appellants pointed to circumstantial evidence which they claim raises a fact issue regarding Kurtz’s obvious intoxication. Primarily, appellants rely on a 40-second video tape made of Kurtz at a convenience store where he stopped just after the accident, at approximately 12:38 a.m. in the morning hours of May 17. Appellants also rely on the testimony of Michael Reilly, a customer at the convenience store when Kurtz entered, who testified that Kurtz appeared obviously intoxicated while at the convenience store. He stated that when Kurtz entered the store he was staggering and when Kurtz spoke, he was loud. Reilly also testified that it appeared Kurtz may have urinated on himself. However, given that Kurtz was at the convenience store approximately fifty to fifty-five minutes after leaving the Oasis, the video tape, and similarly Reilly’s testimony, establish only that when Kurtz was at the convenience store, he appeared obviously intoxicated. See J.D. Abrams, Inc. v. Mclver, 966 S.W.2d 87, 91-92 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Under the facts of this case, this evidence does not establish that Kurtz was obviously intoxicated while being served at the Oasis, and any inferences regarding his obvious intoxication while there would amount to no more than mere speculation. Thus, this evidence is in effect, no evidence, and fails to raise a sufficient fact issue.

Appellants also point to evidence that Kurtz blacked out only “seconds” after leaving the Oasis. Relying on El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987), appellants argue that circumstantial evidence that a driver has “blacked-out due to consumption of alcohol” sufficiently raises a fact issue and that they have brought forward the same evidence as in El Chico; however, for the reasons discussed below, we conclude El Chico is distinguishable.

First, in El Chico, there was no question the intoxicated driver had left the provider’s establishment only moments before the accident occurred. The evidence in that case established this fact. Id. at

308, 314. Here, viewing the evidence in appellants’ favor, the record indicates that Kurtz left the Oasis at approximately 11:45 p.m.; however, the accident occurred some fifty to fifty-five minutes after that time, regardless of when he may have blacked out. Appellants argue that because the accident occurred within two miles of the Oasis, we must infer that Kurtz left the bar at a time much closer to the accident. However, the record evidence reflects that Kurtz left the Oasis some time between 10:30 p.m. and 11:45 p.m.; therefore, any such inference would be merely speculation and conjecture. As noted, although evidence of Kurtz’s obvious intoxication and the requisite proximate causation may be established by circumstantial evidence, the evidence must transcend mere suspicion and conjecture. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex.2001); Calp v. Tau Kappa Epsilon Fraternity, 75 S.W.3d 641, 648 (Tex.App.-Amarillo 2002, pet. denied). A vital fact may not be established by “piling inference upon inference.” Entex v. Gonzalez, 94 S.W.3d 1, 8 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (citing Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968)). Facts from which an inference may properly be drawn must be established by direct evidence and not by other inferences. Id. Here, appellants would have this court draw inferences from Kurtz’s conduct at the convenience store and then pile those inferences upon inferences, and this we cannot do.

Moreover, plaintiffs burden of proof in El Chico was, as acknowledged by the El Chico court, less onerous than is appellants’ burden in this case. See El Chico, 732 S.W.2d at 315 (stating that with the enactment of Section 2.02 of the Alcoholic Beverage Code, the Legislature created a more onerous burden of proof for a plaintiff). In El Chico, the plaintiff was required to prove only that the beverage server “knew or should have known” that the individual was intoxicated. See id. at 314. In this case, appellants must prove that at the time alcohol was provided, sold, or served, it was apparent to the appellees that Kurtz was obviously intoxicated to the extent he presented a danger to himself and others. An inference the alcohol provider knew or should have known an individual was intoxicated is more reasonable when an accident occurs within a close temporal proximity to his leaving the provider’s establishment. In this case, this temporal proximity has not been established.

The facts in this case are more appropriately analogized to those in J.D. Abrams, Inc. v. Mclver, in which the First

Court of Appeals determined that although there was evidence of the driver’s intoxication at the accident scene, because the accident occurred one hour after leaving the premises of the defendant’s establishment, there was no evidence that the driver appeared “obviously intoxicated” to the alcohol provider, to the extent the driver presented a clear danger to himself and others. 966 S.W.2d 87, 91-92 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). The First Court of Appeals distinguished El Chico primarily on this time differential. Id.

Likewise, here, although the video tape and Reilly’s testimony may be evidence that Kurtz was intoxicated immediately following the accident, because the accident occurred some fifty to fifty-five minutes after Kurtz left the Oasis, we do not agree that it is evidence he was obviously intoxicated while being served at that establishment. Although we recognize that circumstantial evidence may be used to establish any material fact, to raise a genuine issue of material fact the evidence must transcend “mere suspicion.” Ford Motor Co., 135 S.W.3d at 601. The evidence relied on by appellants raises only suspicions and is, in effect, no evidence. Moreover, there is no evidence in the record pertaining to when Kurtz may have been served his last drink at the Oasis, nor any evidence regarding Kurtz’s whereabouts during the fifty to fifty-five minute time interval between his departure from the bar and the deadly accident. Kurtz has no recollection of the events which occurred during that period of time and there is no other evidence in the record to account for it. Given this, we cannot infer from Kurtz’s appearance on the video tape that he was “obviously intoxicated” while at the Oasis and that this intoxication was the proximate cause of the accident. See, e.g., J.D. Abrams, 966 S.W.2d at 92 (finding evidence of intoxication at scene of accident occurring fifty-five minutes after leaving the premises of a defendant alcohol provider was no evidence the driver was “obviously intoxicated” while at that defendant’s establishment).

Appellants also claim that appel-lees’ own expert witness, Dr. Wayne Snod-grass, testified that Kurtz was “impaired” upon arriving at the Oasis. However, examining Snodgrass’s testimony in context, he specifically testified that Kurtz was “impaired for driving.” He then explained that a person may be “impaired for driving” when his blood alcohol level is .05, though the legal limit for driving while intoxicated in Texas is .08. Further, Snod-grass explained that even though an individual may be impaired for driving at a blood alcohol level of .05, that individual may not show any observational effects of the alcohol. Considering Snodgrass’s testimony, we cannot say that the statement raises a fact issue sufficient to defeat summary judgment.

Appellants argue that Snod-grass also testified it was not probable that Kurtz’s intoxicated state, as displayed in the video, arose after leaving the Oasis. In eliciting this statement from Snodgrass, appellants’ counsel asked how many drinks Kurtz would have had to consume between 11:45 p.m., the time Kurtz left the Oasis, and the time of the accident to appear as he did in the video, assuming Kurtz had a blood alcohol level of zero at 11:45 p.m. Snodgrass responded that Kurtz would have had to consume 9, 10, or 11 drinks in 53 minutes to get his blood alcohol level to .3, the point when Kurtz would be exhibiting observational effects of alcohol. Appellants’ counsel followed up, asking Snod-grass, “[i]s that possible to do that, drink that many drinks in 55 minutes?” Snod-grass stated, “It’s possible. Probably not likely.” Thus, in posing the hypothetical, counsel specifically asked Snodgrass to assume Kurtz had a blood alcohol level of zero at 11:45 p.m., an assumption contrary to the evidence in the case. There is no dispute that Kurtz, in fact, had been drinking that evening and the record evidence indicates that Kurtz could not have had a zero blood alcohol level when he left the Oasis. When an expert’s opinion is based on assumed facts that vary materially from actual, undisputed facts, the opinion has no probative value and is therefore, no evidence. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex.1995). The issue here is whether Kurtz was “obviously intoxicated” while being served at the Oasis such that he presented a danger to himself or others. Snodgrass’s response to the hypothetical posed is not more than a scintilla of probative evidence and fails to raise a genuine issue of material fact.

In sum, we conclude appellants failed to present more than a scintilla of evidence that at the time alcohol was provided, sold, or served to Kurtz while he was at the Oasis, it was apparent to appellees that he was obviously intoxicated to the extent he presented a danger to himself and others. Therefore, the trial court did not err in granting appellees’ no-evidence summary judgment motion. Having determined this, it is not necessary to examine whether the trial court also properly granted appellees’ traditional summary judgment motion. See Ford Motor Co., 135 S.W.3d at 600. However, we conclude that appel-lees also established their entitlement to a traditional summary judgment.

2. Traditional Summary Judgment a. Standard of Review

A traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Corporate Leasing Int’l, Inc. v. Groves, 925 S.W.2d 734, 736 (Tex.App.-Fort Worth 1996, writ denied). A trial court properly grants summary judgment in favor of a defendant if that party conclusively establishes all elements of an affirmative defense, or conclusively negates at least one element of the plaintiffs claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). We must take as true all evidence favorable to the non-movant and make all reasonable inferences in the non-movant’s favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

Once a defendant produces sufficient evidence establishing its right to summary judgment, the burden shifts to the plaintiff to come forward with competent, controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Borth v. Charley’s Concrete Co., 139 S.W.3d 391, 394 (Tex.App.-Fort Worth 2004, pet. denied) (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).

b. Discussion

Appellees’ summary judgment evidence included the affidavit and deposition testimony of Melody Albonetti, the individual serving drinks to Kurtz and several others accompanying him while he was at the Oasis. Albonetti stated that Kurtz did not appear intoxicated at the time she served the drinks to him. She also stated that Kurtz was not slurring his words, having trouble communicating, acting loud, boisterous or aggressive, and that he was not overly friendly to other guests or exhibiting other inappropriate behaviors. She further testified that Kurtz was not buying drinks for strangers or acting careless with his money, he was not using foul language or making irrational statements, and he was not stumbling or bumping into things. In sum, Albonetti stated that when she served the drinks to Kurtz, he did not appear obviously intoxicated to the extent he presented a clear danger to himself or others.

Brenda Ragan, also at the Oasis that evening, stated in her affidavit that she had successfully completed a Texas Alcoholic Beverage Commission-approved Alcohol Sellers/Servers Program, that she was with Kurtz at the Oasis and had observed him and interacted with him and he did not appear to be intoxicated. She stated further that Kurtz, “appeared to be sober and in full control of his mental faculties and bodily movements.” Like Al-bonetti, Ragan also testified that Kurtz was not exhibiting a list of behaviors traditionally construed as evidence of intoxication. Further, Ragan stated that based upon her training and experience, at no time did Kurtz appear obviously intoxicated to an extent that he presented a danger to himself or others.

In his deposition, James W. Carra, the owner of J.W.’s and a friend of Kurtz, stated that based upon his observations of Kurtz while at the Oasis, Kurtz did not appear obviously intoxicated to the extent he presented a danger to himself or others. Bobbi Carra, James’s wife, testified similarly. Although she acknowledged she was not really paying any attention to Kurtz, she testified that based on her observations of him, he was not obviously intoxicated while at the Oasis. Appellees also provided a transcript of the testimony of Theresa Yancey from the criminal proceeding against Kurtz. Yancey accompanied Kurtz and the others to the Oasis on May 16. She testified that Kurtz did not appear drunk when he left the bar. Yan-cey stated “[Kurtz] seemed all right,.... He didn’t seem drunk. He had no slurred words or physical impairment, unable to— weave or anything.”

Kurtz’s deposition testimony was also attached to appellees’ summary judgment motion. Kurtz testified that he suffered from post-traumatic stress disorder (“PTSD”) due to his combat service in Vietnam where he served as a Marine. He also stated that at the time of the accident, he was taking three medications for the PTSD, including Trazadone, Zoloft, and Lithium Carbonate. He stated he was not intoxicated on the night of the accident. Kurtz testified that after getting into his truck in the Oasis parking lot, he took one-half of a Trazodone tablet, approximately 100 milligrams. Shortly thereafter, he blacked out.

' Finally, appellees also produced a report from their expert, Snodgrass, which concluded that “[t]he description of Ronald Kurtz as not being visibly intoxicated at the [Oasis] is consistent with known medical and scientific information regarding tolerance to alcohol.”

In light of this evidence, establishing that Kurtz did not appear obviously intoxicated while at the Oasis, it was incumbent upon appellants to present evidence raising a genuine issue of material fact with regard to this element. However, as discussed in the preceding section, appellants’ evidence failed to raise a fact issue.

In sum, we affirm the trial court’s granting appellees’ summary judgment motion and overrule appellants’ second and third issues.

C. Did the trial court err in granting appellees’ motion to strike appellants’ expert?

In their fifth issue, appellants argue the trial court erred in granting appel-lees’ motion to strike their expert witness, Dr. James Garriott. In their motion, ap-pellees assert that Garriott’s testimony is unreliable because Garriott relied on inaccurate assumptions about Kurtz’s alcohol consumption, his opinions were speculative, and he admitted that without an actual blood alcohol level for Kurtz, he could not estimate an accurate blood alcohol level while Kurtz was at the Oasis. We agree.

We review the trial court’s decision to exclude an expert’s affidavit under an abuse of discretion standard. Blan v. Ali, 7 S.W.3d 741, 744 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998)). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or made without reference to any guiding rules or legal principles. See id.

An expert opinion that is not based on a reliable foundation is inadmissible. Tex.R. Evid. 705(c); Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 124 (Tex.App.-San Antonio 1999, pet. denied). The burden is on the proponent of the evidence to demonstrate scientific reliability. Weiss, 989 S.W.2d at 124. Also, “[e]xpert opinions must be supported by facts in evidence, not conjecture.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003); see also United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997) (per curiam) (noting that supporting and opposing affidavits, under Rule 166a(f), must set forth facts as would be admissible in evidence).

In his report, Garriott opined as to Kurtz’s blood alcohol level at 11:30 p.m. on May 16, stating it would be .090 to .115, based on the assumption that Kurtz consumed four to six beers from 6:00 p.m. to 9:00 p.m., and two regular mixed drinks while at the Oasis. Garriott also opined regarding Kurtz’s blood alcohol level if the mixed drinks were “doubles,” and thus raising the estimated blood alcohol levels. In his deposition, however, Garriott admitted there was no evidence the drinks were doubles. Garriott also acknowledged that given a longer duration of consumption, blood alcohol levels would be lower. Although the evidence established Kurtz may have begun drinking as early as 1:00 p.m. on the afternoon of May 16, or as late as 4:30 that afternoon, Garriott’s opinions were based on the assumption that Kurtz began drinking at 6:00 p.m. despite the lack of record evidence that Kurtz began drinking at that later time. When an expert’s opinion is based on assumed facts that vary materially from the actual facts, the opinion has no probative value and is no evidence. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex.1995). Also, Garriott admitted he did not take into account whether Kurtz had eaten, though the evidence indicated he had. Garriott acknowledged further that food intake slows down the absorption of alcohol, affecting observational effects of drinking.

Importantly, during his deposition Gar-riott described the case as a “little bit unusual” because generally, when he testified as an expert on intoxication, he would have a blood alcohol level to extrapolate from in estimating a person’s level of intoxication. Garriott admitted that he relied “very heavily” on a known blood alcohol level in giving his opinions and making interpretations; however, he acknowledged there was no known blood alcohol level to work with in this case. Indeed, he admitted that because he did not have a blood alcohol level from which he could work, his opinion in this case was less reliable.

Garriott also stated that he could not testify to a reasonable medical probability or reasonable toxicological probability what Kurtz’s physical appearance may have been while he was at the Oasis and agreed that those witnesses physically present at the Oasis while Kurtz was there

were in the “best position to provide testimony and information regarding [Kurtz’s] physical characteristics and appearance during that time.”

Because Garriott had no actual blood alcohol level from which to extrapolate, his methodology was admittedly less reliable. In addition, Garriott based his calculations on facts not in evidence and on assumptions that were contrary to facts. Examining Garriott’s report and testimony in light of the above, we cannot say the trial court abused its discretion in excluding Gar-riott’s testimony. We overrule appellants’ fifth issue.

D. Did the trial court err in denying appellants’ partial summary judgment motion?

In their sixth issue, appellants argue the trial court erred in denying their summary judgment motion regarding apportioning liability to Kurtz. However, appellants’ motion for partial summary judgment did not seek a final judgment and therefore, we lack appellate jurisdiction to review the trial court’s denial of that motion. Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 396 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (citing CU Lloyd’s of Texas v. Feldman, 977 S.W.2d 568, 569 (Tex.1998)). Because we may not address an issue not properly before this court, we do not consider appellants’ sixth issue.

For the foregoing reasons, the judgment of the trial court is affirmed.

      . The record reflects Kurtz was tried and convicted in a criminal proceeding in connection with the deaths of Mario and Ludivina Alaniz.

      . The summary judgment evidence indicates Kurtz left the Oasis between 10:30 p.m. and 11:45 p.m.

      . Appellants later non-suited their claims against Kurtz.

      . Appellants also filed suit against Howard Johnson International, Inc. The trial court granted summary judgment in favor of Howard Johnson International and appellants do not challenge that judgment on appeal.

      . See Tex Alco. Bev.Code Ann. §§ 2.01-.03 (Vernon 1995) (hereinafter "Dram Shop Act”).

      . Tex.R. Civ. P. 166a(i).

      . This court previously has held that the sufficiency of a motion under Rule 166a(i) may be challenged for the first time on appeal. Cuyler v. Minns, 60 S.W.3d 209, 213 (Tex.App.Houston [14th Dist.] 2001, pet. denied).

      . Prior to the enactment of section 2.02 of the Alcoholic Beverage Code, an alcohol provider's duty to discontinue serving alcohol arose "once, through the observation of a patron's demeanor, conduct or appearance, [the provider] knows or should know the patron is intoxicated.'' El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). However, with the enactment of section 2.02, the Legislature created a more onerous burden of proof for a plaintiff. Id. at 315.

      . The police report indicates the accident happened at 12:40 a.m. on May 17, but appel-lees do not dispute that the accident happened prior to the video recording.

      . Appellants make a similar argument in reference to the El Chico court’s noting that the intoxicated driver was an alcoholic. However, the El Chico court based its holding on the fact that the driver showed signs of intoxication at the accident scene, which occurred within minutes of leaving the alcohol provider's premises. El Chico, 732 S.W.2d at 315. In this case, we do not have the temporal connection present in El Chico such that we can reasonably infer that, because Kurtz was an alcoholic and blacked out, his involvement in an accident approximately fifty minutes later establishes he exhibited signs of obvious intoxication while at the Oasis.

      . The El Chico court based its holding — that the driver’s “apparent intoxication” at the scene of the accident raised a fact issue as to whether the employees knew or should have known of his intoxication — on the temporal proximity of the accident to the driver’s leaving the defendant’s establishment. 732 S.W.2d at 315. The court mentioned that the intoxicated driver also had blacked-out. Id. at 308.

      . Appellants argue there is a fact issue as to when Kurtz left the Oasis, relying on an un-sworn, unsigned transcript of a telephone conversation with Brenda Ragan, a friend of Kurtz who was also at the Oasis that evening, in which she stated that when she left the Oasis at 11:45 p.m., Kurtz was still sitting at the bar. However, the unsworn, unsigned transcript is not competent summary judgment evidence and, therefore, we do not consider it in our analysis. See Perkins v. Critten-den, 462 S.W.2d 565, 568 (Tex.1970) (holding that unsworn statement was not an affidavit and could not support summary judgment); Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (finding the trial court should not have considered an incompetent affidavit in ruling on a motion for summary judgment); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex.App.-Houston [14th Dist.] 1989, no writ) (stating absence of jurat is substantive defect in affidavit and is not waived by failing to bring it to trial court’s attention); Conte v. Ditta, No. 14-02-00482-CV, 2003 WL 21191296, at ⅜3 (Tex.App.-Houston [14th Dist.] May 22, 2003, no pet.) (not designated for publication) (finding that, without notarization, a statement is not an affidavit and is not competent summary judgment proof and could not be considered on appeal, citing Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex.App.-Houston [14th Dist.] 1997, writ denied)).

        .Cianci v. M. Till, Inc., 34 S.W.3d 327, 331 (Tex.App.-Eastland 2000, no pet.); Perseus, Inc. v. Canody, 995 S.W.2d 202, 207 (Tex. App.-San Antonio 1999, no pet.).

      . Appellants also rely on the statement of appellee’s expert witness, Dr. Wayne Snod-grass, that Kurtz was "probably” inebriated while at the convenience store, based on his appearance in the video tape. However, for the same reasons discussed above, the video tape is no evidence of whether Kurtz was obviously intoxicated while at the Oasis and we do not consider Snodgrass’s conclusion as probative evidence raising a fact issue regarding whether Kurtz was obviously intoxicated while at the Oasis.

      . Further, appellants point to the testimony of their expert witness as raising a fact issue; however, the trial court sustained tire appel-lees' motion to exclude the testimony of appellants' expert witness, an issue raised by appellants on appeal and addressed later in this opinion. Because we find the evidence was properly excluded by the trial court, we do not consider it in our analysis of the summary judgment. See Praytor v. Ford Motor Co., 97 S.W.3d 237, 246 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

      . Also, in response to appellees' summary judgment motion, appellants furnished a portion of J.W. Carra's testimony in which he stated he was not "keeping an eye on [Kurtz] or watching him, per se.” Appellants argue this is evidence that Carra was not observing Kurtz for signs of intoxication and thus, raises a fact issue. Carra's testimony, as relied on by appellees, is limited to his observations of Kurtz while at the Oasis. Stating he was not "keeping an eye” on Kurtz does not raise a fact issue as to whether Kurtz appeared obviously intoxicated while at the Oasis when observed by Carra.

      . .Ragan's affidavit stated:
      Based upon my personal observation of Ronald Kurtz, he did not appear confused, nor did he appear to be suffering from impaired perception, impaired memory or comprehension, increased reaction time, sensory motor incoordination [sic], disorientation, impaired imbalance, drowsiness, general muscular in-coordination [sic], or slurred speech.... Ron-aid Kurtz did not have glassy eyes, clumsiness in motion, staggering, an unsteady gait while walking, nor was Ronald Kurtz making inappropriate responses to the conversation of those around him or to those whom [sic] he was speaking.

      . Appellants did not provide evidence controverting Ragan’s statement.

      . In their fourth issue, appellants also challenge the affidavits furnished by appellees, arguing the witnesses were not observing Kurtz while he was at the Oasis, Albonetti's testimony was contradictory, and the witnesses were all "interested witnesses” and were themselves intoxicated while at the Oasis. However, because affidavits of interested witnesses present a defect of form rather than a defect of substance, preservation for our review requires an objection in the trial court. See Tex.R. Civ. P. 166a(£); Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex.App.Houston [14th Dist.] 1999, pet. denied). Further, even when a proper objection is lodged, affidavits remain part of the summary judgment record unless there is a written, signed order sustaining the objection. Id. (citing Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App.-Waco 1995, no writ)); Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 466 (Tex.App.-Texarkana 1998, pet. denied). In this case, although appellants generally stated in their response to appellees summary judgment motion that "[a]ll of [appellees’] evidence consists of interested witnesses,” there is no specific objection to the evidence and no ruling by the trial court. Thus, appellants have failed to preserve this argument for our review.

      . In light of this holding, we do not address appellants’ seventh issue, that the trial court erred in “requiring that Appellants produce a blood alcohol level as evidence of obvious intoxication."

      . Moreover, appellants' issue is rendered moot by the trial court’s summary judgment.


author: JOHN S. ANDERSON, Justice.

text:
    ADVANTAGE PHYSICAL THERAPY, INC., Appellant, v. Leonard CRUSE, Individually and d/b/a Cruse and Associates, Appellee.
    No. 14-04-00131-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 22, 2005.

      Kenneth C. Kaye, League City, Walter J. Kronzer, III, Houston, for appellant.
    Otto D. Hewitt, III, Alvin, for appellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant appeals the trial court’s take nothing judgment in favor of appellee. Appellant raises the following three issues on appeal: (1) whether a letter of protection can ever be a contract; (2) whether the letter of protection in this case is a contract; and (3) whether the trial court committed reversible error in holding the letter of protection in this case is not an enforceable contract. We affirm.

Factual and Procedural Background

Appellant, Advantage Physical Therapy, Inc. (“APT”), provided physical therapy services to Diana Kinnebrew for injuries she sustained in an automobile accident. Kinnebrew later retained appellee, Leonard Cruse, to represent her in a suit to recover damages arising from the automobile accident. During the pendency of Kinnebrew’s suit, Cruse sent an unsolicited letter of protection to APT. The letter of protection, dated June 25, 1998, states, “This is to advise that the balance of $2,828 due you from my client [Kinnebrew] in respect to medical treatment provided to her in respect to injuries that she sustained in a car wreck on [January 17,1997] will be protected out of any recovery made against the responsible party and/or her liability insurance carrier.”

In 2000, Kinnebrew’s case was tried to a jury, and Kinnebrew recovered $3,506.00 in damages. Cruse used the proceeds of the judgment to satisfy Kinnebrew’s outstanding debt to him, $2,780.41 in out-of-pocket expenses Cruse incurred in prosecuting Kinnebrew’s case and $1,402.40 in legal fees. Cruse’s expenses and fees exceeded the total amount of the judgment.

APT attempted to contact Cruse on several occasions in 2000 to determine the status of Kinnebrew’s case. In late January 2001, APT learned from Cruse that Kinnebrew had recovered approximately $3,000 in her suit.

In February 2001, APT’s attorney sent Cruse a letter seeking payment of the $2,328.00 amount due APT based upon Cruse’s June 25, 1998 letter of protection. Cruse responded with a letter explaining there were no funds to distribute to APT because Kinnebrew’s case expenses and his attorney’s fees had produced a negative net recovery. APT’s attorney sent a second letter to Cruse in July 2001, again demanding payment of the $2,328.00 amount allegedly owed to APT.

In September 2001, APT filed suit against Cruse, individually and d/b/a Cruse and Associates, alleging Cruse promised to pay APT the sum of $2,328.00 upon the receipt of funds from the Kinnebrew lawsuit but instead kept the funds for himself. After a two-day bench trial, the trial court signed a take nothing judgment in favor of Cruse. The trial court issued findings of fact and conclusions of law.

On appeal, APT challenges the trial court’s findings of fact and conclusions of law concerning Cruse’s letter of protection. Specifically, APT challenges finding of fact number four which states, “The Letter of Protection was (a) not a contract between [APT] and [Cruse], and (b) was not enforceable as a contract against [Cruse].” APT also challenges conclusion of law number three which states, “The Letter of Protection was neither a contract and [sic] nor enforceable as a contract against [Cruse].” Additionally, APT argues the trial court committed reversible error in not addressing the question of whether Cruse breached the letter of protection and asserts there is sufficient evidence to show a breach of contract occurred.

Discussion

A. Findings of Fact and Conclusions of Law

1. Findings of Fact

Findings of fact in a bench trial have the same force and dignity as a jury’s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ refd n.r.e.). When challenged on appeal, the findings are not conclusive if there is a complete reporter’s record, as there is here. In re K.R.P., 80 S.W.3d 669, 673 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The trial court’s findings will not be disturbed if there is evidence of probative force to support them. Id. A trial court’s findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

2. Conclusions of Law

We review the trial court’s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143-44 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Under de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex.App.-Houston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.

B. The Trial Court’s Findings and Conclusions Regarding the Letter of Protection

APT contends no evidence supports the trial court’s finding that no enforceable agreement existed. APT asserts Cruse’s testimony at trial that he thought the amount of recovery in the Kinnebrew suit too small to justify paying APT anything conclusively establishes an agreement existed. APT also argues the letter of protection guaranteed Cruse’s payment of the $2,328.00 owed to APT and meets all of the requirements of a contract. APT further contends the trial court committed reversible error by not addressing the question of whether Cruse breached the letter of protection. In response, Cruse asserts the letter of protection is not an enforceable contract because there was no acceptance, delivery, consideration, or execution of the letter of protection. Cruse further contends the trial court implicitly found and concluded there was no breach by Cruse.

To prove an action for breach of contract, a plaintiff must establish the existence of an enforceable contract. See Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.App.-Houston [1st Dist.] 1997, no writ) (listing elements of breach of contract action and including “the existence of a valid contract” as one of the necessary elements). The elements of the an enforceable contract are: (1) an offer; (2) an acceptance in strict compliance with terms of offer; (3) a meeting of the minds; (4) a communication that each party consented to the terms of the contract; (5) execution and delivery of the contract with an intent it become mutual and binding on both parties; and (5) consideration. Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Whether the parties reached an agreement is a question of fact. Beal Bank, S.S.B., v. Schleider, 124 S.W.3d 640, 653 n. 8 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Whether an agreement is legally enforceable is a question of law. Id; see also Gaede v. SK Investments, Inc., 38 S.W.3d 753, 757-58 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (‘Whether an agreement constitutes a valid contract is generally a legal determination for the court. However, whether parties intended to make a contractual agreement is usually a fact issue for the jury.” (internal citations omitted)).

“Letters of protection” are sometimes used by attorneys in personal injury litigation to guarantee payment to healthcare providers from the proceeds of any future recovery. See, e.g., Sealift v. Satterly, No. 14-03-00051-CV, 2008 WL 21664672, at *3 n.2 (Tex.App.-Houston [14th Dist.] July 17, 2003, no pet.) (mem.opinion); Brown v. Comm’n for Lawyer Discipline, 980 S.W.2d 675, 678 (Tex.App.-San Antonio 1998, no pet.); Belt v. Comm’n for Lawyer Discipline, 970 S.W.2d 571, 573 (Tex.App.-Dallas 1997, no pet.). In Sealift, this court analyzed whether an unsolicited letter of protection was an enforceable contract and concluded as follows:

First, there are a multitude of reasons why this letter of protection does not constitute a contract. Foremost is the fact that Satterly never accepted an offer by Fairbanks’ lawyers. Sealift’s lawyers acknowledged in the trial court that Satterly did not solicit the letter. Further, no evidence exists showing he responded to the correspondence in any way. The only action Sealift points to is Satterly’s listing of Fairbanks’ law firm as an additional insurer of medical bills on claim forms filed with his insurance company. This does not constitute acceptance.

2003 WL 21664672, at *3 (footnote omitted). Sealift involved an interlocutory appeal challenging the grant of a special appearance, and the issue was whether a letter of protection between a Missouri resident and a Texas law firm was sufficient to establish jurisdiction in Texas. The court ultimately concluded the letter of protection, even if it was an enforceable contract, did not establish jurisdiction. Id. at *3.

Cruse compares the facts of this case to Sealift and argues the unsolicited letter of protection here is not an enforceable contract because APT did not accept the letter of protection. APT counters that it accepted the letter of protection by conduct.

During trial, defense counsel asked APT’s president, Becky Gregory, ‘When you got [the June 25, 1998 letter of protection], did you write Mr. Cruse back and say, ‘This is fine,’ or ‘This is okay with us,’ or, ‘Keep us informed?’ Did you write anything back accepting this or saying, ‘Yes, this is fine.’?” Gregory answered, “Not to my knowledge.” On appeal, APT concedes it never accepted the letter in writing. Instead, APT contends acceptance of the letter of protection is evidenced by the following conduct: (1) handwritten notes by APT’s staff of phone calls APT made to Cruse’s office in 2000 and 2001 inquiring about the status of Kinne-brew’s case; and (2) APT’s decision not to sue Kinnebrew for her unpaid bill.

This conduct does not constitute acceptance of the letter of protection. First, the phone calls made by APT to Cruse’s office inquiring about the status of Kinnebrew’s case were not made until almost two years after Cruse sent the letter of protection to APT. Additionally, the phone log introduced into evidence does not evidence a clear and definite communication of acceptance by APT of Cruse’s letter of protection. Rather, the log shows the calls APT’s staff made to Cruse’s office were merely status inquiries. Second, with regard to APT’s decision not to sue Kinne-brew, Cruse had no way of knowing of APT’s decision not to sue Kinnebrew. Therefore, APT’s conduct of not pursuing collection efforts against Kinnebrew may not constitute acceptance.

It is well-settled that a binding contract must have an offer and an acceptance, and the offer must be accepted in strict compliance with its terms. See American Nat’l Ins. Co. v. Wamock, 131 Tex. 457, 114 S.W.2d 1161, 1164 (1938); Angelou, 33 S.W.3d at 278. The parties must have a meeting of the minds, and each party must communicate its consent to the terms of the agreement. The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer. See An-gelón, 33 S.W.3d at 278. To form a binding contract, the party to whom the offer is made must accept such offer and communicate such acceptance to the person making the offer. See id. at 279.

An acceptance is not binding until delivered to the offeror. See Jatoi v. Park Ctr., Inc., 616 S.W.2d 399, 400-401 (Tex.Civ.App.-Fort Worth 1981, writ ref d n.r.e.). “An acceptance which resides solely within the exclusive knowledge of the acceptor without being communicated to the offeror is ordinarily no binding acceptance.” Id. at 401; see also State v. Triax Oil & Gas, Inc., 966 S.W.2d 123, 128 (Tex. App.-Austin 1998, no pet.) (recognizing “silence does not normally indicate acceptance of an offer”); Restatement (Second) of CONTRACTS § 69(1), cmt. a (1981) (listing three situations in which silence may operate as acceptance, none of which are applicable here, and stating “Acceptance by silence is exceptional”). An offeree’s power of acceptance is terminated at the time specified in the offer, or if no time is specified, it is terminated at the end of a reasonable time. See Valencia v. Garza, 765 S.W.2d 893, 897 (Tex.App.-San Antonio 1989, no writ) (“Reasonable time depends on the circumstances in each case, including the nature and character of the thing to be done and the difficulties surrounding and attending its accomplishment and is generally for the jury [factfinder].”); Restatement (Second) of Contracts § 41(1) (1981) (“An offeree’s power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.”).

The record shows an acceptance of the letter of protection by APT was never communicated to Cruse. The absence of an acceptance communicated by APT to Cruse within a reasonable time renders the letter of protection unenforceable. See Jatoi, 616 S.W.2d at 400-01. Only APT, the offeree, had the power to provide the critical element of acceptance of Cruse’s offer. Even if all of the' other elements required for the formation of a binding contract were present here, the lack of an acceptance is fatal to the formation of a contract.

We conclude the trial court’s findings of fact are supported by evidence of probative force, and we uphold the trial court’s conclusion of law that the letter of protection was not enforceable as a contract. Because the letter of protection is'unenforceable as a contract, we need not address APT’s remaining issues concerning whether Cruse breached the letter of protection or whether there is sufficient evidence to show a breach occurred. Accordingly, we overrule issues one, two, and three.

Conclusion

The judgment of the trial court is affirmed.

      . The trial court's findings of fact and conclusions of law state that any finding of fact which may be mislabeled and constitute a conclusion of law is adopted as a conclusion of law, and any conclusion of law which may be mislabeled and constitute a finding of fact is adopted as a finding of fact.

      . APT’s first issue seeks an advisory opinion, inquiring, "Whether a letter of protection can ever be a contract?” An advisory opinion decides an abstract question of law without binding the parties. See Hays County v. Hays County Water Planning P’ship, 106 S.W.3d 349, 358 (Tex.App.-Austin 2003, no pet.). We are prohibited from rendering advisory opinions. Accordingly, we may not address APT's first issue. ■