author: SANDEE BRYAN MARION, Justice.

text:
    Dr. Robert MORRIS, D.V.M. and Joyce M. Morris, Appellants, v. Claire POWELL and Sharon Holman, Individually and As Next Friend of Marilyn Holman and Mark Holman, Minor Children, d/b/a Powell Holman Boer Goats, Appellees.
    No. 04-04-00074-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 11, 2004.

      Donald A. Ferrill, R. Mark Oliver, Brown Pruitt Peterson & Wambsganss, P.C., Fort Worth, for appellants.
    Kelly Putney Rogers, Joe M. Davis, Nunley, Davis, Jolley & Hill, L.L.P., Boerne, David W. Wallace, Wallace Law Office, Sonora, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an accelerated appeal from the denial of appellants’ special appearances, in which they asserted the trial court did not have personal jurisdiction over them because they are non-residents of Texas and any contacts that occurred in Texas were on behalf of their employer, Morris Genetics, L.L.C. We affirm in part and reverse and render in part.

BACKGROUND

Appellants, Dr. Robert Morris and Joyce Morris, are residents of Missouri. Dr. Morris has a Texas veterinary license and he regularly performs embryo transplant surgeries in Texas. Mrs. Morris is an embryologist who works with Dr. Morris when he performs the transplant surgeries. Morris Genetics, L.L.C. is a Missouri limited liability company. Over a four-day period in September 2001, the Morrises performed embryo transplant surgeries on plaintiffs’ Boer goats. The transplants were not as successful as plaintiffs had hoped, and plaintiffs sued the Morrises individually and Morris Genetics, L.L.C. Plaintiffs alleged causes of action for negligence and fraud and/or negligent misrepresentation. The essence of plaintiffs’ claim is that the Morrises represented that them transplant program could achieve a seventy percent success rate; but instead, it achieved only a ten percent success rate. Plaintiffs allege the Mor-rises misrepresented their success rate and failed to use the proper standard of care “in keeping their equipment clean.” Morris Genetics, L.L.C. did not challenge the trial court’s jurisdiction. However, relying on the fiduciary shield doctrine, the Morrises challenged the trial court’s exercise of personal jurisdiction over them.

STANDARD OF REVIEW

A plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident defendant within the provisions of the Texas long-arm statute. BMC Software Belgium, N.V. v. Maryland, 83 S.W.3d 789, 793 (Tex.2002). Whether a court has personal jurisdiction over a defendant is a question of law. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002); BMC Software, 83 S.W.3d at 794. On appeal, we review de novo the trial court’s determination to grant or deny a special appearance. Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 794. To resolve the issue of jurisdiction, the trial court must frequently also determine questions of fact. Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 794.

If a trial court makes findings of fact and conclusions of law, we may review the fact findings for legal and factual sufficiency. BMC Software, 83 S.W.3d at 794. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. at 795. We reverse the ruling for factual insufficiency of the evidence only if the ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Unchallenged fact findings are binding on the appellate court. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). We review de novo the trial court’s legal conclusions based on the findings of fact to determine their correctness. BMC Software, 83 S.W.3d at 794. If we determine a conclusion of law is erroneous but the trial court nevertheless rendered a proper judgment, the erroneous conclusion does not require reversal. Id.

PERSONAL JURISDICTION

A Texas court may assert personal jurisdiction over a non-resident defendant only if the requirements of both the United States Constitution and the Texas long-arm statute are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (orig.proceeding). The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); BMC Software, 83 S.W.3d at 795. The Texas long-arm statute reaches as far as the federal and state constitutional guarantees of due process allow. CSR, 925 S.W.2d at 594. Therefore, “the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations.” Id.

The due process clause permits a state to exert personal jurisdiction over a non-resident defendant only if the defendant has some minimum, purposeful contacts with the state and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex.1998). A non-resident who has purposely availed himself of the privileges and benefits of conducting business in Texas has sufficient contacts with the forum to confer personal jurisdiction over it. CSR, 925 S.W.2d at 594. However, a defendant should not be subjected to the jurisdiction of a Texas court based upon random, fortuitous, or attenuated contacts. CSR, 925 S.W.2d at 595. A non-resident defendant must have purposely established such minimum contacts with the forum that it could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985).

The minimum-contacts analysis is further divided into general and specific personal jurisdiction. General jurisdiction is present when a defendant’s contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. CSR, 925 S.W.2d at 595. General jurisdiction requires a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction. Id.

The minimum-contacts analysis for specific personal jurisdiction focuses on the relationship between the defendant, the forum, and the litigation. Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex.1991). Specific personal jurisdiction is established if the defendant’s alleged liability arises from, or is related to, an activity conducted within the forum. Id. The defendant’s contacts must' have been “purposely directed” at the forum and must have had a “substantial connection” that resulted in the alleged injuries. Id. at 228.

An individual’s transaction of business within Texas solely as a corporate officer or employee does not create personal jurisdiction over that individual even though a Texas court has in personam jurisdiction over the corporation. Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir.1985). Texas appellate courts have held that the fiduciary shield doctrine does not protect a corporate employee from the exercise of specific jurisdiction as to torts for which the employee may be held individually hable. Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 488 (Tex.App.-San Antonio 2003, no pet.); see also SITQ E.U., Inc. v. Reata Restaurants, Inc., 111 S.W.3d 638, 651 (Tex.App.-Fort Worth 2003, pet. denied). However, although an individual’s contacts with a forum should not be analyzed based on his or her employer’s activities in that forum, one’s status as an employee does not insulate the employee from the trial court’s jurisdiction. Colder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984); SITQ, 111 S.W.3d at 651. “There is no blanket protection from jurisdiction simply because a defendant’s alleged acts were done in a corporate capacity.” SITQ, 111 S.W.3d at 651. Instead, each defendant’s contacts with the forum state must be assessed on an individual basis. Calder, 465 U.S. at 790, 104 S.Ct. at 1487.

The Fifth Circuit has held that the “thrust of the general rule is that the officer to be held personally liable must have some direct, personal participation in the tort, ‘as where the defendant was the ‘guiding spirit’ behind the wrongful conduct ... or the ‘central figure’ in the challenged corporate activity.’ ” Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir.1985) (quoting Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907 (1st Cir.1980)). Here, plaintiffs alleged the Morrises committed the torts of negligence and fraud and/or negligent misrepresentation. Plaintiffs spoke directly with Dr. Morris about conducting the embryo transplant services in Texas. It is not clear whether plaintiffs spoke to Mrs. Morris. The Morrises, as the only employees of Morris Genetics, L.L.C., performed those services in Texas. Any tortious acts will be attributable to the Morrises and all representations were made by one or both of the Morrises. Therefore, the plaintiffs made a prima facie showing that the Mor-rises are not protected by the fiduciary shield doctrine from the trial court’s exercise of specific jurisdiction over them.

GENERAL JURISDICTION

As evidence that the Morrises’ contacts were continuous and systematic, and that they conducted substantial activities within Texas, plaintiffs produced the following evidence: (1) Dr. Morris and Mrs. Morris have traveled to Texas since 1995 to perform embryo transplant services for a number of clients and (2) the Morrises come to Texas to visit family.

As a general rule, a court may not assert personal jurisdiction over an individual based on the individual’s relation to a corporation unless the corporation is the individual’s alter ego. Tuscano v. Osterberg, 82 S.W.3d 457, 468 (Tex.App.-El Paso 2002, no pet.); Royal Mortg. Corp. v. Montague, 41 S.W.3d 721, 738 (Tex.App.Fort Worth 2001, no pet.). A party asserting alter ego must prove this allegation. See BMC Software, 83 S.W.3d at 798. Accordingly, in order for the trial court to have properly denied the Morrises’ special appearances, the record must contain evidence to support the trial court’s finding of alter ego. Id. at 799-800.

Alter ego applies when there is such unity between a corporation and an individual that the separateness of the coi'-poration has ceased and holding only the corporation liable would result in injustice. Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986). Alter ego may be shown “from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes.” Id. As proof of alter ego, a court may consider: (1) the payment of alleged corporate debts with personal checks or other commingling of funds; (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for his personal use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990); Goldstein v. Mortenson, 113 S.W.3d 769, 781 (Tex.App.-Austin 2003, no pet.); Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Pinebrook Properties, Ltd. v. Brookhaven Lake Property Owners Ass’n, 77 S.W.3d 487, 500 (Tex.App.-Texarkana 2002, pet. denied).

As evidence of alter ego, plaintiffs contend first that the Morrises are the sole shareholders, officers, and employees of Morris Genetics, L.L.C. However, an individual’s standing as an officer, director, or majority shareholder of an entity alone is insufficient to support a finding of alter ego. Goldstein, 113 S.W.3d at 781. The plaintiffs also allege the Mor-rises did not hold corporate meetings or maintain corporate minutes. However, failure to comply with corporate formalities is no longer a factor in considering whether alter ego exists. Tex. Bus. Corp. Act Ann. art. 2.21(A)(3) (Vernon 2003); Howell, 84 S.W.3d at 714; Pinebrook Properties, 77 S.W.3d at 499. The plaintiffs also rely on the following: (1) neither of the Morrises were paid a salary, instead, they paid themselves on a “draw” basis as needed; and (2) their business card states “Morris Genetics,” but not “L.L.C.” Finally, when asked if there was “documentation given to you showing that [the Morrises] were going to do work for you?”, one of the plaintiffs responded, “That’s exactly how it was presented to me.”

Dr. Morris explained he and his wife drew money from the company account, “By seeing our financial circumstances, what we need money for and what our accountant tells us we should do.” Although the Morrises do not always consult with their accountant when making draws, they are each aware of when a draw is made. The Morrises alleged, and plaintiffs did not dispute, that (1) the company has always been adequately capitalized such that it is able to and does pay its debts as they come due; (2) the company has liability insurance; (3) there are no outstanding judgments against the company; and (4) the company and the Morrises maintain separate bank accounts.

This record does not show such unity between the Morrises and the corporate entity that the separateness of the corporation had ceased to exist. Accordingly, we hold that the evidence is insufficient to support the trial court’s finding that Morris Genetics, L.L.C. is the alter ego of the Morrises. For this reason, the trial court erred in denying the special appearances on the grounds that it had general jurisdiction over the Morrises.

SPECIFIC JURISDICTION

Although the trial court does not have general jurisdiction over the Morrises, a defendant must negate all possible grounds for personal jurisdiction in order to prevail on a special appearance. BMC Software, 83 S.W.3d at 793. Accordingly, we next consider whether the trial court has specific jurisdiction over each of the defendants.

Corporate agents are individually liable for fraudulent or tortious acts committed while in the service of their corporation. Shapolsky, 56 S.W.3d at 133. A corporate officer is primarily liable for his own torts, even though the principal is also liable for those actions. Id. However, the fact that a corporate officer is alleged to have committed a tort in Texas is not dispositive because that, alone, does not give Texas courts jurisdiction over a nonresident. Id.; Stern, 123 S.W.3d at 489. Instead, there must be a substantial connection between the contact and the cause of action in the forum state. See id.

In determining whether there is a substantial connection between the nonresident defendant and the State of Texas, we must consider “foreseeability.” Guardian Royal Exch., 815 S.W.2d at 227. Where a defendant sends false information into a state, knowing it will be relied upon by a resident of the forum state, there is a foreseeable consequence of direct economic injury to the resident at its domicile. See Calder, 465 U.S. at 790, 104 S.Ct. at 1487; Shapolsky, 56 S.W.3d at 134. Therefore, if the alleged tortfeasor knows that the brunt of the injury will be felt by a particular resident in the forum, it must reasonably anticipate being haled into court there to answer for its actions. Id.

Plaintiffs alleged the following facts in support of the trial court’s jurisdiction over the Morrises: (1) from on or about September 26, 2001 through September 29, 2001, the Morrises came to plaintiffs’ ranch in Edwards County, Texas to perform veterinary and embryo transplant services on plaintiffs’ Boer goats for the purpose of obtaining up to 252 Boer kids; (2) the Morrises transplanted 361 Boer embryos over this same time period; (3) the Morrises represented they had the necessary skill, licensure, and experience to achieve a successful embryo transplant program; (4) the Morrises represented an estimated 252.8 pregnancies from the embryo transplants; (5) the Morrises represented that Dr. Morris was a skilled and licensed veterinarian and Mrs. Morris was a skilled and licensed embryologist; and (6) despite the represented pregnancies, only twenty-nine live births were achieved.

Under their negligence claim, plaintiffs alleged the following: (1) Dr. Morris lacked the surgical skill necessary to satisfy the appropriate standard of care for a veterinarian performing embryo transplants; (2) the Morrises failed to care for their microscopes according to industry standards; (3) the Morrises failed to use proper care or proper equipment in transplanting the embryos; (4) the Morrises failed to properly transplant the embryos; and (5) the Morrises failed to use clean, bacteria-free equipment to perform the transplants. Under their fraud and/or negligent misrepresentation claim, plaintiffs alleged the following: (1) the Morrises represented term pregnancies of 252.8 Boer kids and they represented themselves as having the requisite skill and knowledge to achieve such results; (2) the Morrises knew or should have known that there were problems with their embryo transplant program, in advance of September 25, 2001, but failed to divulge such problems to plaintiffs; (3) the Morrises knew of poor results achieved in embryo transplants they performed in April 2001 and knowingly or recklessly represented to plaintiffs probable outcomes contrary to those results to induce plaintiffs to hire them; and (4) had plaintiffs known of the results achieved in April 2001, they would not have hired the Morrises to perform embryo transplants at their ranch.

The Morrises assert that these allegations and plaintiffs’ evidence fail to differentiate between performing their corporate duties for Morris Genetics, L.L.C. and them acting in their individual capacities. When, as here, there are multiple defendants, we must test each defendant’s actions and contacts with the forum separately. Shapolsky v. Brewton, 56 S.W.3d 120, 132 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). “At this stage of the proceeding, this court is not charged with determining the merit of’ plaintiffs’ allegations against the Morrises. Stern, 123 S.W.3d at 489. Instead, we examine plaintiffs’ allegations and then determine whether the evidence establishes a substantial connection between each of the Morrises and Texas. Id.

Evidence as to Both of the Morrises’ Contacts

Dr. Morris and Mrs. Morris are the incorporators, shareholders, officers, and sole employees of Morris Genetics, L.L.C. A copy of the Morrises’ business card identifies Morris Genetics, but without the “L.L.C.” designation. Under the words “Morris Genetics,” appear the following two lines: “Robert G. Morris, DVM” and “Joyce M. Morris, Embryologist.” Other documents admitted at the hearing likewise showed Morris Genetics, without the L.L.C. designation, and listed the Morrises by name with their respective titles. Plaintiffs allege certain representations were made about the number of live births to be expected, but plaintiffs do not indicate which of the Morrises made those representations. One of the plaintiffs said she received letters from the Morrises “concerning the proposed embryo transfer program,” but a copy of those letters is not in the record and plaintiff did not explain the content of the letters.

Evidence Specific to Dr. Morris’ Contacts

Plaintiffs initially spoke with Dr. Morris about performing the embryo transplant services in Texas, but the content of the conversation is not in the record. Dr. Morris performed the embryo transplant surgeries at issue in the underlying lawsuit. In interrogatories from a lawsuit brought by another dissatisfied rancher against the Morrises and attached to plaintiffs’ response to the Morrises’ special appearances, Dr. Morris admitted “his” normal success rate “as an employee of Morris Genetics, L.L.C.” ranged from forty to seventy percent, but that rate fell to approximately twenty percent in the Fall of 2001, and one reason for the decline “could be that [he] found anaerobic bacterial spores in the head of [his] microscope.” Dr. Morris stated he obtained his veterinary license in Texas in 2000 “[t]o act as an employee of Morris Genetics, L.L.C., and we were doing some work in Texas, and I visited with the Texas Board, they recommend[ed] I get a license.” Plaintiffs alleged Dr. Morris knew of his declining success prior to September 2001, but did not disclose this information to them. One of the plaintiffs testified she expected from the Morrises the same result other veterinarians achieved for her in past embryo transplants, approximately seventy-five percent.

Without deciding the merits of plaintiffs’ fraud or negligent misrepresentation claims, when Dr. Morris provided plaintiffs with an estimate of approximately 252.8 pregnancies while allegedly withholding information about his declining success rate, he knew the plaintiffs were in Texas and it was foreseeable that plaintiffs would rely on the estimated success rate he represented to them. See Calder, 465 U.S. at 789-90, 104 S.Ct. at 1487; Shapolsky, 56 S.W.3d at 134. Accordingly, the injurious effect in Texas of the torts Dr. Morris allegedly committed could have been foreseen. Furthermore, there is a strong nexus between the alleged torts committed by Dr. Morris and the contacts with Texas, i.e., it is these specific contacts that give rise to the claims brought by plaintiffs against Dr. Morris.

For these reasons, we conclude that Dr. Morris’ alleged actions/inactions support a finding that the trial court had specific jurisdiction over him.

Evidence Specific to Mrs. Morris’ Contacts

Mrs. Morris performed her duties as an embryologist in Texas. In interrogatories from the other lawsuit and attached to plaintiffs’ response to the Mor-rises’ special appearances, Mrs. Morris admitted “Morris Genetics, L.L.C.’s” normal success rate ranged from forty to seventy percent, but that rate fell to approximately twenty percent in the Fall of 2001. None of the plaintiffs said they spoke to Mrs. Morris.

We conclude that these allegations, specific to Mrs. Morris, do not constitute sufficient purposeful minimum contacts with Texas to satisfy due process. The fact that Mrs. Morris, a Morris Genetics, L.L.C. corporate officer, is alleged to have committed a tort in Texas is not dispositive because that, alone, does not give Texas courts jurisdiction over her as a nonresident. Shapolsky, 56 S.W.3d at 133; Stern, 123 S.W.3d at 489. Therefore, the trial court does not have specific jurisdiction over Mrs. Morris.

FAIR PLAY AND SUBSTANTIAL JUSTICE

We next consider whether Dr. Morris met his burden to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Guardian Royal, 815 S.W.2d at 231. “Once it has been determined that the nonresident defendant purposefully established minimum contacts with the forum state, the contacts are evaluated in light of other factors to determine whether the assertion of personal jurisdiction comports with fair play and substantial justice.” Id. at 228. These factors include (1) the burden on the defendant, (2) the forum state’s interests 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. Id.

In their special appearances and on appeal, the Morrises allege that “litigating this matter individually from Missouri would be very inconvenient, extremely expensive, and cause substantial disruptions to them in the event of prolonged absences for litigation purposes, creating a substantial burden on [them].” We do not believe this burden would be so great as to be inconsistent with the constitutional guarantees of due process. The Morrises travel to Texas to conduct their business and to visit family and friends. The alleged negligence occurred in Texas and the Morrises were paid for their services while in Texas. Texas’s interest in adjudicating this dispute becomes even stronger when, as here, the tort is alleged to have been committed in whole or in part in Texas. Shapolsky, 56 S.W.3d at 135. We therefore hold the trial court did not err in finding that exercising jurisdiction over Dr. Morris comports with traditional notions of fair play and substantial justice.

CONCLUSION

The trial court has specific jurisdiction over Dr. Morris and the exercise of that jurisdiction comports with fair play and substantial justice. Accordingly, we affirm the trial court’s Order Overruling Objection to Jurisdiction as to Dr. Morris. The trial court does not have either general or specific jurisdiction over Mrs. Morris. Accordingly, we reverse the trial court’s Order Overruling Objection to Jurisdiction as to Mrs. Morris, and render judgment dismissing the cause against Mrs. Morris for lack of personal jurisdiction.

      . Prior to 2000, Dr. Morris performed embryo transplant services in Texas without a license apparently under a referral from an attending veterinarian.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    The CITY OF PARIS, Texas, Appellant, v. Bobby FLOYD and L.C. Brown Construction, Appellees.
    No. 06-03-00160-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 29, 2004.
    Decided Oct. 26, 2004.

      Christopher D. Freeman, A. William Arnold III and Associates, PC, Dallas, for appellant.
    Mark H. How, Short, How, Freís, Heitz, PC, Dallas, Paul Miller, Texarkana, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

All agree that extraordinarily heavy rainfall overwhelmed part of the City of Paris sewer system under construction— and its lift station containing motor-driven pumps — near Bobby Floyd’s rental house occupied by tenants, Shawn and Amy Phil-pot. As a result, raw sewage flowed into the house, along with rainwater and silt.

Floyd sued L.C. Brown Construction and the City of Paris, alleging that an inadequately supervised Brown negligently failed to close its excavation and to install certain components in the system; that the City failed to properly operate, use, and maintain the system, including the motor-driven pumps in the lift station; that the City failed to use sufficient equipment in the system; and that the City negligently misused the lift station and its motor-driven pumps to attempt to transport storm waters, rather than just the sewage for which they were designed. The Philpots intervened as parties plaintiff, with similar allegations. The trial court denied the City’s request that the claims against it be dismissed for want of jurisdiction based on sovereign immunity.

The City asks this Court to dismiss the claims against it based on its plea to the jurisdiction because (1) it is not liable vicariously for Brown’s actions, because Brown was an independent contractor as set out by the written contract, and there is no evidence of actions by Brown and the City which would allow a finding of the right of the City to control Brown’s activities; (2) sovereign immunity was not waived because plaintiffs allege only a “non-use” of motor-driven equipment, not an “operation or use” of that equipment; (3) no City employee could be liable because none could have stopped the flooding from occurring in the Floyd house; and (4) no City employee was identified in the pleadings. We reject the City’s arguments and affirm the trial court’s denial of the City’s requested dismissal. We address the City’s arguments in turn, but first we set out relevant law on sovereign immunity and how we are to review motions to dismiss which assert sovereign immunity.

Sovereign Immunity and Appellate Review of Pleas to the Jurisdiction

A governmental unit is not liable for the torts of its officers or agents without a constitutional or statutory provision waiving sovereign immunity. Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). In a limited waiver of sovereign immunity arguably applicable here, the Texas Tort Claims Act provides that a governmental entity is hable if “(A) ... property damage ... arises from the operation or use of ... motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law — ” Tex. Civ. PRac. & Rem.Code Ann. § 101.021(1) (Vernon 1997).

Unless sovereign immunity has been waived, the immunity defeats the trial court’s jurisdiction, and a plea to the jurisdiction is in order. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex.2004). The petitioner in a lawsuit must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause of action. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Whether a court has subject matter jurisdiction is a question of law. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo. In some cases, however, disputed evidence of jurisdictional facts may require resolution by the finder of fact. Miranda, 133 S.W.3d at 226.

The Texas Supreme Court in Miranda set out how we should review trial court rulings on pleas to the jurisdiction, and our review is to differ depending on whether the plea challenges the pleadings or the evidence. See id. at 226-28.

If the plea challenges the pleadings, we determine whether the pleading alleges facts affirmatively demonstrating the court’s jurisdiction, and in that pursuit we construe the pleadings liberally in favor of the pleader. If the pleadings insufficiently demonstrate jurisdiction, but could be made sufficient by amendment, an opportunity to amend should be allowed. On the other hand, if the pleadings affirmatively negate jurisdiction, dismissal is proper without the opportunity to amend. Id.

If the plea challenges the existence of jurisdictional facts, there are three alternatives. First, the trial court has discretion to determine whether a jurisdictional disposition should be made at a preliminary hearing or later, after the case has been more fully developed. Second, if the evidence is conclusive or uncontrovert-ed, the plea should be ruled on as a matter of law. Third, if there is a fact issue, the preliminary plea is properly denied. Id.

1. Brown’s Independence was not Conclusively Proven

The City first argues that Brown was an independent contractor, as set out by the written contract, and that there is no evidence of control exerted by the City sufficient to support a finding that, notwithstanding the contract, the City had the right to control Brown’s activities.

The test for determining whether an employment or an independent contractor relationship exists is whether the purported employer has a right to control the details of the person’s work. Shell Oil Co. v. Khan, 138 S.W.3d 288 (Tex.2004); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex.2003); INA of Tex. v. Torres, 808 S.W.2d 291, 293 (Tex.App.-Houston [1st Dist.] 1991, no writ). When a contract establishes an independent contractor relationship, evidence outside the contract may be produced to show that, despite the contract terms, the true operating agreement vested the right of control in the principal. Newspapers, Inc., v. Love, 380 S.W.2d 582, 592 (Tex.1964).

Sporadic action directing the details of the work will not destroy the agent’s independence provided by the contract. Id. at 588. An occasional assertion of control should not destroy a settled independent contractor relationship agreed to by the parties. Id. The true test is the right of control, and exercise of control is evidentiary only. Id. Otherwise, contract rights and relationships based thereon would be destroyed. Id. The assumption of exercise of control must be “so persistent and the acquiescence therein so pronounced” as to raise an inference that, when the incident occurred, the parties by implied consent had agreed that the principal had the right to control the details of the work. Id.; Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

Floyd does not contest the existence of the contract, but argues instead that, at this point in the proceeding, he has not had any opportunity for discovery that could reveal whether the City exercised actual control over the activities of the contractor. At the hearing on the City’s motion to dismiss, Floyd relied on the City of Saginaw v. Carter, 996 S.W.2d 1 (Tex.App.-Fort Worth 1999, writ dism’d w.o.j.), in arguing that a sovereign immunity claim cannot be granted before parties have had an opportunity to conduct discovery. The City argued the sovereign immunity issue should be determined before the City should be required to respond to discovery.

This proceeding remains at an early stage. With the development of additional evidence through discovery, it is possible, under these pleadings, that Floyd might show the negligence of Brown’s workers is imputable to the City, or that Floyd might independently show the negligence of City employees contributed to the improper use of the motor-driven equipment, or that the City’s operation of the lifts was negligent in itself. Floyd is not required, at this preliminary stage, to try his case on the merits, given the trial court’s discretionary refusal to dismiss the case. See Miranda, 133 S.W.3d at 227-28 (trial court has discretion to allow development at preliminary stage of case); cf. Tex.R. Civ. P. 166a(i) (no-evidence summary judgment may be pursued only after adequate discovery time).

We hold the trial court was within its discretion in determining that, at this early stage of the proceedings, the case has not been sufficiently developed and that plaintiffs may, with adequate discovery, be able to produce evidence that would show that, in practice, the City exercised the right to control Brown’s actions. Even if plaintiffs fail in that regard, other causes of action charge direct negligence of the City independent of Brown, which, too, might be developed with adequate discovery.

The trial court did not err by denying the City’s motion on this basis.

2. Plaintiffs Adequately Alleged an “Operation or Use” of Motor-Driven Equipment

The City next asserts that plaintiffs essentially allege only a “non-use” of motor-driven equipment, not an “operation or use” of that equipment as required by Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(1)(A). We disagree.

The lift station’s pumps are motor driven, and thus fall within the generic definition of the Code. See 4 DG’s Corp. v. City of Lockney, 853 S.W.2d 855 (Tex.App.-Amarillo 1993, no writ). The question is whether Floyd’s and the Philpots’ pleadings sufficiently allege operation or use of those pumps. Floyd’s operative pleading, Plaintiffs Third Amended Petition, in its paragraph V, alleges the operation or use of motor-driven equipment by asserting the City and its “agent(s)” were negligent

e. In failing to properly operate, use, maintain, or install the electric pumps within the Lift Station such that they could control the water entering the system through Brown Construction’s open excavation. In that regard, Plaintiff alleges that said Lift Station and its electric motors to transport storm runoff water, for which use they were not designed, were in fact “motor driven equipment” as that term is defined by Tex. Civ. Prac. & Rem. § 101.021(1) and § 101.215(32);
f. In failing to operate, use, maintain, or install sufficient equipment within the Lift Station to handle water such as that which entered into the system on the occasion in question; and
g. In operating and/or using said Lift Station and its electric motors to transport storm runoff water, for which use they were not designed.

The Philpots’ operative pleading, Second Amended Plea in Intervention, in its paragraph X, alleges the operation or use of motor-driven equipment by asserting the City and its “agent(s)” were negligent

e. In failing to properly maintain the electric pumps within the Lift Station such that they could control the water entering the system through Brown Construction’s open excavation. In that regard, Intervenors allege that said Lift Station and its electric motors to transport storm runoff water, for which use they were not designed, were in fact “motor driven equipment” as that term is defined by Tex. Civ. Prac. & Rem. § 101.021(1) and § 101.215(32);
f. In operating the electric pumps at the Lift Station and sewer fines to pump rain water overflow when the pumps and fines were only designed for sewage;
g. In failing to operate the electrical pumps effectively at a time when the fine was exposed to rainwater overflow; and
h. In operating an electrical [sic] pump that was of insufficient size and capacity to handle rainwater overflow and in failing to operate, use, install or maintain sufficient motorized equipment within the Lift Station to handle water such as that which entered the premises in question.
Intervenors contend that the motor-driven pumps are motor-driven equipment as defined by the TTCA.

Reading the pleadings in the fight most favorable to the nonmovants, Miranda, 133 S.W.3d at 226-27, we hold they are sufficient to raise an issue of whether the City was negligent in its operation or use of motor-driven equipment.

3. Inevitability of Damages has not been Conclusively Proven

The City next asserts that no City employee could be liable, because none could have stopped the flooding from occurring in the Floyd house. While evidence may ultimately be produced that demonstrates that result, at this stage of the case, that has not been conclusively proven. The trial court was within its discretion in refusing to dismiss on this basis as well. Id. k. Failure to Identify any City Employee in Pleadings does not Require Dismissal

Finally, the City asserts that no City employee was identified in the pleadings and therefore the case must be dismissed because of that pleading defect. We disagree.

Again, this is a prediscovery or early discovery situation, and the trial court was faced with allegations that the City has not been particularly forthcoming with such information. The pleadings are thus sufficient to allege liability, in the face of a motion to dismiss for lack of jurisdiction, and the trial court was within its discretion in refusing to dismiss the case this early. Id.

The City also complains because the pleadings speak only of “agents” of the City in connection with allegations of negligence. We presume that the City is equating agents to employees. While that complaint might be made the subject of a special exception, agents may well also be employees.

Conclusion

In fight of the plaintiffs’ pleadings and the early stage of the case, as shown by the lack of meaningful discovery, we conclude the trial court did not abuse its discretion by overruling the motion to dismiss.

We affirm the order denying the motion to dismiss.

      . Typically, whether a written contract establishes an independent contractor relationship is a question of law for the court, while the question of actual control is a question of fact for the jury. Khan, 138 S.W.3d 288.

      . In its reply brief, the City says Saginaw was criticized by the Texas Supreme Court in Miranda. This is correct, but that criticism made the point that a trial court can hear needed jurisdictional evidence beyond the pleadings even if fraudulent pleading of jurisdictional facts is not alleged. The Court did not criticize Saginaw's pronouncement that the parties should have a reasonable opportunity for discovery. Miranda, 133 S.W.3d at 224.


author: Justice ROSS.

text:
    Victor Kenneth CARTER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00095-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 29, 2004.
    Decided Oct. 28, 2004.

      Eddie Northcutt, Sulphur Springs, for appellant.
    Martin E. Braddy, Asst. Dist. Atty., Sul-phur Springs, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Victor Kenneth Carter, Jr., appeals his conviction for felony assault on a family member, his long-term girlfriend, Pamela Wright. See Tex. Pen.Code Ann. § 22.01(b)(2) (Vernon Supp.2004-2005). Carter stipulated to the jurisdictional prior conviction for assault on a family member. The sentence was enhanced to a second degree felony by a prior felony conviction for delivery of a controlled substance. See Tex. Pen.Code Ann. § 12.42(a)(3) (Vernon Supp.2004-2005). Carter stipulated to this prior conviction as well. A jury found Carter guilty and assessed his punishment at seventeen years’ imprisonment. The trial court sentenced him in accordance with the jury’s verdict. Carter appeals, alleging the trial court erred by denying his motion to suppress and by admitting Wright’s statements to the police under the “excited utterance” exception to the hearsay rule. We affirm the judgment.

Factual Background

Carter and Wright lived as husband and wife, and had a relationship for approximately thirty years. On a rainy, stormy night, Carter and Wright became involved in a heated argument. On responding to a domestic disturbance call, Kenny Stillwag-oner, an officer with the Sulphur Springs Police Department, observed Wright standing in the front yard in the rain with a “busted lip,” with blood on her shirt, and with mud and grass on her clothing. Wright informed Stillwagoner that Carter had pushed her down, grabbed her by the face holding her mouth shut, and dragged her through the mud. In the process of responding to the same domestic disturbance call, Brad Horton, also with the Sulphur Springs Police Department, observed Carter walking away from the scene approximately four blocks down the street. Horton recognized Carter and detained him. When Stillwagoner radioed that an assault had occurred, Horton then requested Carter to accompany him to the house where Wright was located. After further investigation, Carter was arrested for assault on a family member. Wright testified at trial that, on the night in question, Carter did not assault her and that she fell in the flower bed. Wright did admit that her lip had been injured that night and that her shirt had blood on it. Wright also admitted she had dropped assault charges against Carter in the past at the request of her children. Wright testified she has used and still does use illegal drugs. In addition, Wright testified that “she lie[s] a lot. When you’re on drugs you tend to do that.”

Although Wright testified that she had lied to the police and that she simply fell that night, the jury found Carter guilty of felony assault on a family member.

Summary

Carter contends the trial court should have granted his motion to suppress because the police detained him illegally by arresting him without a warrant and without sufficient probable cause. In addition, Carter complains the evidence did not show Wright was still under the stress of excitement caused by the event. Without Wright’s statement, Carter argues there is legally insufficient evidence he committed assault on a family member. We first address whether Carter was initially arrested or only detained as an investigatory detention. We conclude the trial court did not abuse its discretion in finding the police only detained Carter rather than arrested him, and the transporting of Carter did not exceed the permissible bounds of an investigatory detention. Second, we address whether the trial court erred in admitting Wright’s initial statements to the police under the “excited utterance” exception. We conclude the trial court did not clearly abuse its discretion. Last, this opinion determines the evidence was legally sufficient.

Carter was not Illegally Arrested

Carter contends the trial court erred in not granting his motion to suppress because the police arrested him without sufficient probable cause or a warrant. Both Stillwagoner and Horton received a dispatch call concerning a family disturbance which allegedly occurred at 732 Fuller Street. Stillwagoner proceeded directly to 732 Fuller Street. While responding to the dispatch call, Horton observed Carter at the 300 block of Fuller Street, walking away from 732 Fuller Street. Horton testified he knew Carter well and knew him on sight. Horton called Carter over to his car and questioned him about “what was going on as far as the call that [the police] had received.” When Horton received a call from Stillwagoner that an assault had occurred, Horton asked Carter to get into the car and transported him to 732 Fuller Street. The State contends Carter’s detention at 300 Fuller Street constituted only an investigatory detention, but Carter contends the detention constituted an arrest.

A trial court’s decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim.App.1999). The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000). At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856. We may review de novo those questions not turning on credibility and demeanor. Id. Where, as here, a trial court makes no explicit findings of historical fact, the appellate court should view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

In Harris, Chief Justice Cornelius described the categories of police interaction with civilians as follows:

There are three general categories of police and civilian interaction. The first category is that of an encounter. Police officers do not violate the Fourth Amendment by merely approaching an individual in public to ask questions. Such an encounter does not require any justification whatsoever on the part of an officer. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986).
The second category is that of a temporary or investigative detention. This is a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Such a detention requires that the officers have a reasonable suspicion that the person detained is involved in criminal activity. Daniels v. State, 718 S.W.2d at 704-05.
The third category is that of an arrest. An arrest must be justified by probable cause to believe that the suspect has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991); see generally Francis v. State, 896 S.W.2d 406 (Tex.App.-Houston [1st Dist.] 1995, pet. granted).

Hams v. State, 913 S.W.2d 706, 708 (Tex.App.-Texarkana 1995, no pet.). The central issue with which we must be concerned in this case is into which of these categories did the officer’s detention of Carter fall.

“Unlike an encounter, an investigative detention and an arrest are seizures.” Josey v. State, 981 S.W.2d 831, 838 (Tex.App.-Houston [14th Dist.] 1998, pet. refd). Since both an investigative detention and an arrest involve a seizure of the citizen, a certain objective level of suspicion must be shown by the officer to justify the seizure. State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex.Crim.App.2000). If the interaction involves an investigative detention, the officer must show reasonable suspicion the citizen is connected to criminal activity. Id. If the interaction is an arrest, the officer must show probable cause to believe the citizen has engaged in or is engaging in criminal activity. Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App.1996).

Our inquiry requires us to consider the difference between an investigatory detention and an arrest. Article 15.22 of the Code of Criminal Procedure provides that “[a] person is arrested when he has been actually placed under restraint or taken into custody-” Tex.Code CRiM. PROC. Ann. art. 15.22 (Vernon 1977). The Texas Court of Criminal Appeals has interpreted the above statute to require consideration of the degree of the restriction or restraint to distinguish an arrest from other detentions. The relevant inquiry according to the Texas Court of Criminal Appeals is whether “appellant had been restricted or restrained in his liberty to such a degree as to constitute an arrest.” Amores, 816 S.W.2d at 412. An “arrest” occurs “when a person’s liberty of movement is successfully restricted or restrained, whether this is achieved by an officer’s physical force or the suspect’s submission to the officer’s authority.” Medford, 13 S.W.3d at 773. In Medford, the Texas Court of Criminal Appeals held an arrest is complete only if “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Id. at 773-74 (quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.1988)). The subjective intent of either the police officer or the defendant is irrelevant. Vicioso v. State, 54 S.W.3d 104, 110 (Tex.App.-Waco 2001, pet. ref'd); see Medford, 13 S.W.3d at 773-74; cf. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (show of authority should be determined objectively). Factors which Texas courts have considered are whether the officer actually undertakes an investigation, the accused is handcuffed, the accused is detained at gunpoint, the number of police far outnumbers the citizens, the use of threatening language, the transporting of the accused to another location, the blocking of the accused’s vehicle, and the use of other physical force.

Carter argues that, because the arrest report indicates the place of arrest as 300 Fuller Street, he was clearly arrested at 300 Fuller Street. We note that the arrest report stated the place of arrest was 300 Fuller Street and Stillwagoner testified that may have been what he thought at the time. However, Stillwagoner was not present at 300 Fuller Street. Horton testified that he did not prepare the arrest report and that Stillwagoner was never present at 300 Fuller Street. Stillwagoner also stated he was never present at 300 Fuller Street. Further, Stillwagoner later testified Carter was initially detained at 300 Fuller Street. Stillwagoner testified Horton never informed him that he had arrested Carter at 300 Fuller Street. Horton testified Carter was only detained at 300 Fuller Street, not arrested.

Even if Stillwagoner and Horton subjectively believed they had arrested Carter, no arrest had occurred. Because a reasonable person would not have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest, Carter was merely detained rather than arrested. Horton testified that he “asked” Carter to get into the car and denied that he “told” Carter to get into the car. Carter was not handcuffed or read his rights at 300 Fuller Street. Although Horton testified that Carter was not free to leave, he also testified that Carter was not informed he was under arrest or was not free to leave. After the detention occurred, Horton and Stillwagoner conducted further investigation. A reasonable person would not have believed his or her freedom of movement had been restricted to the degree associated with formal arrest. We conclude the trial court did not abuse its discretion in determining Carter was initially merely detained at 300 Fuller Street, rather than arrested.

Detention for investigation requires the officers to have a reasonable suspicion of criminal activity. The Supreme Court in Terry v. Ohio established the test for investigative detention, i.e., “Terry stops.” Terry established a two-pronged test for investigative detentions. To determine the reasonableness of an investigative detention, the court must inquire: “(1) whether the officer’s action was justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997); see Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“Under the first prong, ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” Davis, 947 S.W.2d at 242 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). The specific, articulable facts, along with rational inferences from those facts, must allow the officer to reasonably conclude the person detained actually is, has been, or soon will be engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

The second prong of Terry requires the scope of the detention to be “like any other search, ... strictly circumscribed by the exigencies which justify its initiation.” Davis, 947 S.W.2d at 243 (quoting Terry, 392 U.S. at 25, 88 S.Ct. 1868). The officer, however, must diligently pursue a means of investigation that lasts no longer than is necessary and should be the “least intrusive means reasonably available.” Id. at 245.

Horton had reasonable suspicion to detain Carter based on the dispatch call and the subsequent radio call from Stillwagoner. Because the officers had specific, ar-ticulable facts providing reasonable suspicion Carter had committed a crime, the first prong of Terry is satisfied. However, the officers must have diligently pursued a means of investigation that lasted no longer than was necessary and was the “least intrusive means reasonably available.”

The issue then becomes whether the officer’s transporting of Carter to 732 Fuller Street was an unreasonable intrusion. We note the act of transporting a suspect to another location may be a factor indicating an arrest has occurred. See Delk, 855 S.W.2d at 711-12; Jones, 746 S.W.2d at 283; Moore, 55 S.W.3d at 659; Vicioso, 54 S.W.3d at 109-10. Under the second prong of Terry, the temporary detention of Carter must be reasonable. “An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Davis, 947 S.W.2d at 245 (quoting Perez v. State, 818 S.W.2d 512, 517 (Tex.App.Houston [1st Dist.] 1991, no pet.)); see Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also Herrera v. State, 80 S.W.3d 283, 287 (Tex. App.-Texarkana 2002, pet. ref d). “The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Davis, 947 S.W.2d at 245 (quoting Perez, 818 S.W.2d at 517).

The Supreme Court has indicated that a nonarrest detention made on reasonable suspicion can be rendered unreasonable by excessive movement of the suspect, e.g., the movement from a field location to a station house is excessive. See Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Royer, the Supreme Court, in a plurality opinion, held movement of approximately forty feet was excessive. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229. The Supreme Court’s concern appears to focus on the fact the movement was unrelated to any legitimate law enforcement objective and significantly changed the nature of the detention. In Royer, the suspect was detained on a busy airport concourse with the suspicion he was transporting narcotics. Id. at 494, 103 S.Ct. 1319. The suspect was then moved a distance of approximately forty feet to a small office removed from public view, and his ticket and driver’s license were seized. Id. The Supreme Court held the movement changed the nature of the detention by placing the defendant in a small room essentially under the control of the officers and removing the detention from public view. Id. at 502-03, 103 S.Ct. 1319. The Supreme Court further reasoned the movement was unrelated to the objective of the detention— searching Royer’s luggage — which could have just as easily been searched on the concourse. Id. at 505, 103 S.Ct. 1319. The Court held that the movement did not further any legitimate law enforcement purpose. Id. Therefore, the Supreme Court held that the methods employed in Royer were not the least intrusive available. Id. at 505-06.

This case is clearly distinguishable from Royer. In our case, the movement failed to change the nature of the detention. Carter was moved from being detained in the street to being detained in front of his house. Unlike Royer, this move did not create an environment which removed Carter from public view or placed him more extensively under the control of the officers. Further, the movement did facilitate greater convenience in investigating the offense, unlike the situation in Royer. Therefore, the movement did stem from a legitimate law enforcement purpose.

Further, we note several Texas courts have held that transporting an individual to the scene of the alleged crime or another location is not an unreasonable intrusion. Garza v. State, No. 06-03-00058-CR, 2004 WL 527883, 2004 Tex.App. LEXIS 2467 (Tex.App.-Texarkana Mar.18, 2004, no pet.) (not designated for publication) (transporting suspect to residence in order to perform consensual search); Joseph, 865 S.W.2d at 103 (least intrusive means available to investigate suspicion); Davis, 783 S.W.2d at 317 (reasonable investigative detention involving transporting suspect to scene two and a half miles away); see Dittoe v. State, 935 S.W.2d 164, 166-67 (Tex.App.-Eastland 1996, no pet.) (ordered to return to victim’s house, which was located a few blocks away). Because this case is distinguishable from Royer, we conclude the trial court did not abuse its discretion in determining Carter was merely detained at 300 Fuller Street and the subsequent transporting of Carter to the scene was reasonable.

Carter also contends the police officers did not have probable cause to arrest him for assault/family violence. Following the reasoning of the Supreme Court that the trial court is not in an appreciably better position than the reviewing court to make a determination concerning probable cause, the Texas Court of Criminal Appeals has held that the review of probable cause of a warrant-less seizure of a person should be reviewed de novo. Guzman, 955 S.W.2d at 87.

In reviewing a warrantless arrest to determine the existence of probable cause, courts should examine the facts known to the officer at the time of the arrest. Atkins v. State, 919 S.W.2d 770, 774 (Tex.App.-Houston [14th Dist.] 1996, no pet.). “Subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest.” Id. Probable cause exists if the officers have reasonably trustworthy information sufficient to warrant a reasonable belief an offense has been or is being committed. McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003). While probable cause requires more than mere suspicion, it requires far less evidence than the evidence needed to support a conviction. Middleton v. State, 125 S.W.3d 450, 460 (Tex.Crim.App.2003).

When Carter was arrested at 732 Fuller Street, the officers had been informed by Wright that Carter had pushed her down, grabbed her by the face holding her mouth shut, and dragged her through the mud. Stillwagoner had observed that Wright had a “bloody lip” and had mud, grass, and blood on her shirt. We conclude the police officers had probable cause to arrest Carter.

Carter’s last argument is the police officers illegally arrested him without a warrant. In Texas, a police officer may make a warrantless arrest only if “(a) there is probable cause with respect to that individual, and (b) the arrest falls within one of the exceptions specified in the Texas Code of Criminal Procedure.” McCraw v. State, 117 S.W.3d 47, 54 (Tex. App.-Fort Worth 2003, pet. ref'd); see Tex. Code CRiM. PROC. Ann. arts. 14.01, 14.02, 14.04 (Vernon 1977), art. 14.03 (Vernon Supp.2004-2005). Section 14.03(a)(4) provides that a peace officer may arrest “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person’s family or household.” Tex. Code CRiM. Proc. Ann. art. 14.03(a)(4); see McCraw, 117 S.W.3d at 54. Because Horton and Stillwagoner had probable cause to believe an assault involving bodily injury occurred, the statute permitted the war-rantless arrest of Carter.

Carter cites McCraw for the proposition the police could not arrest a suspect without a warrant when the alleged assault did not occur in the presence of the arresting officer. This is an incorrect reading of McCraw. McCraw held that a police officer could arrest a suspect if he or she either observed the assault or had probable cause to believe an assault on a family member occurred. McCraw stated that “[f]or an officer to effect a warrantless arrest for an assault, the assault must either occur in the officer’s presence or view or the officer must have probable cause to believe that the assault resulted in bodily injury to a member of the suspect’s family or household.” McCraw, 117 S.W.3d at 54 (emphasis added). In McCraw, the court determined the officer did not observe the alleged assault and did not have probable cause to believe that bodily injury occurred. Id. This case is distinguishable from McCraw because the police had probable cause to believe that Carter had intentionally or knowingly caused bodily injury to a family member.

We hold the trial court did not abuse its discretion in denying the motion to suppress. The trial court did not abuse its discretion in determining that Carter’s detention at 300 Fuller Street was merely an investigatory detention. The trial court also did not abuse its discretion in concluding the subsequent transporting of Carter to 732 Fuller Street was reasonable. We conclude the officers had probable cause to arrest Carter and a warrantless arrest was authorized under the exceptions to the requirement of a warrant.

Wright’s Statements were Excited Utterances

In his second point of error, Carter alleges the trial court erred by admitting hearsay under the “excited utterance” exception. Carter contends the State presented insufficient evidence the statements were “excited utterances.” According to Carter, the evidence would be insufficient to support the jury’s verdict without the hearsay testimony.

A trial court’s decision concerning the admission of evidence under an exception to the hearsay rule, including the “excited utterance” exception, should not be reversed on appeal unless a clear abuse of discretion is shown. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). An abuse of discretion occurs only when the trial court’s decision “was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992)).

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). Hearsay should not be admitted except as provided by statute or by the Rules of Evidence. Tex.R. Evid. 802. “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. Tex.R. Evid. 803(2). This exception is called the “excited utterance” exception. Under the “excited utterance” exception, three requirements must be shown:

(1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the de-clarant and renders the utterance spontaneous and unreflecting,
(2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and
(3) the statement must relate to the circumstances of the occurrence preceding it.

Harris v. State, 133 S.W.3d 760, 771 (Tex.App.-Texarkana 2004, pet. ref'd). It is the absence of opportunity for reflection and fabrication — an opportunity lost because the declarant is in the grips of overwhelming emotion' — that forms the basis for the “excited utterance” exception. Id. “In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event.” Id. (quoting Zuliani, 97 S.W.3d at 595).

The paramount factor is whether the declarant is still dominated at the time by emotions triggered by the principal act or event. Snellen v. State, 923 S.W.2d 238, 243 (Tex.App.-Texarkana 1996, pet. ref'd); see King v. State, 953 S.W.2d 266, 269 (Tex.Crim.App.1997). Therefore, statements made while the de-clarant was in the grip of emotion, excitement, fear, or pain of the exciting event are still admissible even after an appreciable time has elapsed between the exciting event and the statement. Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001); Snellen, 923 S.W.2d at 243; Jones v. State, 772 S.W.2d 551, 554-55 (Tex.App.-Dallas 1989, pet. ref'd); see Hawkins v. State, 792 S.W.2d 491, 494-95 (Tex.App.-Houston [1st Dist.] 1990, no pet.). Whether the statement was made in response to questioning is simply a factor to be considered, and the statement may still qualify as an excited utterance. Salazar, 38 S.W.3d at 154.

Over the defense’s objection, the trial court allowed the State to introduce evidence of Wright’s statements to the police minutes after the incident occurred. When she made the statements, Wright was still upset and crying due to the assault. Stillwagoner testified outside the presence of the jury as follows:

[State] And what was Ms. Wright’s state when you got there?
[Stillwagoner] She was pretty upset, crying. She was soaking wet.
[State] By pretty upset what do you mean?
[Stillwagoner] Crying and just, you know, upset.
[State] Would you say slighty upset or would you say very upset?
[Stillwagoner] I would say very upset.
[State] And she was crying, she was very upset. Anything else you noticed about her?
[Stillwagoner] Yeah, there was grass and dirt on her clothing and I noticed grass and dirt on her face. She had a bloody lip and there was blood on the front of her shirt.
[State] Was it just a drop or two or what?
[Stillwagoner] It was some good size spots. It wasn’t drops.
[Defense Counsel] Was she so upset at the time you talked to her that you couldn’t even talk to her?
[Stillwagoner] No.
[Defense Counsel] In other words, she was settled down enough where you could talk to her?
[Stillwagoner] I had calmed her down some, yes.
[Defense Counsel] She was in control of herself to the point where she could remember what had happened minutes and maybe hours before; is that correct?
[Stillwagoner] Sure.
[State] Did she seem like she was still excited and very upset from what had happened to her when she was talking to you?
[Stillwagoner] Yes.
[State] And when she told you all these things?
[Stillwagoner] Yes.
[State] Did she seem like she was calmly and coolly reflecting upon what had happened and was she still excited?
[Stillwagoner] Yes, she was still excited.
[State] So she wasn’t calmly and coolly reflecting then, was she?
[Stillwagoner] No, sir.
[Defense Counsel].... But she was relating this to you and it’s not to the point to where she was totally dominated by emotion; is that correct?
[Stillwagoner] As I had calmed her down enough to talk to me.
[Court] All right. Now the Court, if I understood you right, you said you arrived — the call came and you arrived between two and three minutes later?
[Stillwagoner] Yes, sir.
[Court] And you said that she was in an emotional state at that point? She was—
[Stillwagoner] Very upset.
[Court] — very upset. And were there tears or crying?
[Stillwagoner] Yes, sir.

The trial court did not clearly abuse its discretion in finding Wright was still in the grip of emotion, excitement, fear, or pain caused by the assault when she made her statements to the police. Stillwagoner testified he arrived at the scene approximately two or three minutes after the dispatch. He testified Wright was extremely upset and was still crying. Although Stillwagoner testified Wright had calmed down to a certain extent, the issue of whether she was still under the influence of the excitement of the assault is within the zone of reasonable disagreement. The trial court did not clearly abuse its discretion in admitting Wright’s statement as an excited utterance.

The Evidence is Legally Sufficient

Carter argues that, without the hearsay evidence admitted under the excited utterance exception, there is legally insufficient evidence to support the jury’s verdict. Because legal sufficiency was raised in the point of error concerning the alleged error in admitting Wright’s statements to police, we will address whether legally sufficient evidence exists to support the jury’s verdict.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.1991).

Section 22.01 provides that a person commits an offense if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse” and that the offense is a felony of the third degree if it is committed against “a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.” Tex. Pen. Code Ann. § 22.01 (Vernon Supp.2004-2005). Section 22.01 states that “ ‘[f]amily’ has the meaning assigned by Section 71.003, Family Code.” Tex. Pen.Code Ann. § 22.01. Section 71.003 of the Family Code provides that “family” includes “individuals who are the parents of the same child, without regard to marriage,.... ” Tex. Fam.Code Ann. § 71.003.

Viewed in a light most favorable to the prosecution, sufficient evidence exists for a rational jury to conclude beyond a reasonable doubt Carter committed the offense. Stillwagoner observed Wright at the scene with a “bloody lip,” with blood on her shirt, and with mud and grass on her clothing. Wright informed Stillwagoner that Carter had pushed her down, grabbed her by the face holding her mouth shut, and dragged her through the mud. Wright testified Carter had been previously convicted of assaulting her, Carter stipulated to the prior assault, and the State introduced the judgment of the previous assault. Wright testified she and Carter have two children. We conclude legally sufficient evidence exists.

Conclusion

The trial court did not abuse its discretion in denying the motion to suppress or in admitting Wright’s statements to the police under the “excited utterance” exception. Legally sufficient evidence exists to support the conviction.

We affirm the judgment.

      . Carter and Wright have two- grown children. Section 71.003 of the Family Code provides that “family” includes "individuals who are the parents of the same child, without regard to marriage,....” Tex. Fam.Code Ann. § 71.003 (Vernon 2002).

      . Wright was also the victim in that case.

      . See Amores v. State, 816 S.W.2d 407, 411-12 (Tex.Crim.App.1991), modified sub silentio by Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App.2000), and by Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997) (abandoning the "as consistent with innocent activity as with criminal activity” test).

      . Burkes v. State, 830 S.W.2d 922, 925 (Tex.Crim.App.1991); Morris v. State, 50 S.W.3d 89, 98 (Tex.App.-Fort Worth 2001, no pet.) (although officers did not ask suspect any questions, they did investigate); Horton v. State, 16 S.W.3d 848, 852 (Tex.App.-Austin 2000, no pet.); Rodriguez v. State, 975 S.W.2d 667, 676 (Tex.App.-Texarkana 1998, pet. ref'd); Murray v. State, 864 S.W.2d 111, 116 (Tex.App.-Texarkana 1993, pet. ref'd).

      . Amores, 816 S.W.2d at 412; State v. Moore, 25 S.W.3d 383, 387 (Tex.App.-Austin 2000, no pet.). However, "mere handcuffing” does not always indicate an arrest. Rhodes v. State, 945 S.W.2d 115, 118 (Tex.Crim.App.1997); accord Spight v. State, 76 S.W.3d 761, 769 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see Nargi v. State, 895 S.W.2d 820, 822 (Tex.App.-Houston [14th Dist.] 1995), pet. dism’d, improvidently granted, 922 S.W.2d 180 (Tex.Crim.App.1996).

      . Amores, 816 S.W.2d at 412; Flores v. State, 895 S.W.2d 435 (Tex.App.-San Antonio 1995, no pet.).

      . Murray, 864 S.W.2d at 116.

      . Amores, 816 S.W.2d at 411-12.

      . Delk v. State, 855 S.W.2d 700, 711-12 (Tex.Crim.App.1993) (transportation to police station); Jones v. State, 746 S.W.2d 281, 283 (Tex.App.-Houston [1st Dist.] 1988, pet. ref’d) (appellant placed under restraint by being driven around neighborhood by police officer); Moore v. State, 55 S.W.3d 652, 659 (Tex.App.-San Antonio 2001, no pet.) (transported suspect to jail); Vicioso, 54 S.W.3d at 109 (transported to sheriff's department). But see Joseph v. State, 865 S.W.2d 100, 103 (Tex.App.-Corpus Christi 1993, pet. ref’d) (least intrusive means available to investigate suspicion); Davis v. State, 783 S.W.2d 313, 317 (Tex.App.-Corpus Christi 1990, pet. ref’d), (untimely filed) (reasonable investigative detention involving transporting suspect to scene two and a half miles away).

      . Amores, 816 S.W.2d at 411.

      . Amores, 816 S.W.2d at 411-12; Gordon v. State, 4 S.W.3d 32, 37 (Tex.App.-El Paso 1999, no pet.) (placed in police car for an hour); Brown v. State, 826 S.W.2d 725, 727 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (suspect pushed on hood of vehicle and held in position).

      . We note that review of a seizure pursuant to a warrant should be whether the issuing magistrate had a substantial basis for concluding there was probable cause. III. v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App.2004).

      . We note the Supreme Court recently set out a new test for challenges to out-of-court statements based on the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court's opinion in Crawford was issued after Carter’s trial had concluded. Crawford noted that "[t]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 1369. This Court and the Dallas Court of Appeals have both held there is no violation of the Confrontation Clause under Crawford when a witness actually testifies at trial. Crawford v. State, 139 S.W.3d 462 (Tex.App.-Dallas 2004, pet. filed); Mason v. State, No. 06-03-00199-CR, 2004 WL 1615785, 2004 Tex.App. LEXIS 6458 (Tex. App.-Texarkana July 20, 2004, no pet.) (memo.op.) (not designated for publication). Because Wright testified at trial, the Confrontation Clause was not violated.


text:
    Roy JON, Appellant, v. Reginaldo STANLEY, et al., Appellees.
    No. 06-04-00026-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 31, 2004.
    Decided Oct. 29, 2004.

      Roy Jon, Beaumont, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Roy Jon filed a suit pro se against the Texas Department of Criminal Justice-Institutional Division for claims alleged under the Texas Tort Claims Act and for alleged violations of his constitutional rights under the Eighth Amendment. The trial court dismissed the lawsuit as frivolous January 23, 2002. On February 22, 2002, Jon signed a motion to reform the judgment, which was filed March 1, 2002. See Jon v. Stanley, No. 06-02-00092-CV (Tex. App.-Texarkana July 5, 2002, pet. denied) (not designated for publication). The trial court denied the motion to reform March 22, 2002. Jon signed a notice of appeal May 23, 2002, which was filed May 30, 2002. This Court dismissed the untimely appeal for want of jurisdiction July 5, 2002. Id.

Jon then petitioned in the trial court for a bill of review “to determine when the clerk forward [sic] the judgment.” The trial court dismissed this motion, noting that “the matters that are asserted by the plaintiff are matters which could have and should have been determined by the Trial Court on the original case,” and further finding that “the cause of action brought by the plaintiff in this case is frivolous.” Jon timely perfected this appeal, presenting five issues, only one of which concerns matters raised in his motion for bill of review.

A bill of review is an independent equitable action that a party to a previous action brings seeking to set aside a prior judgment that is no longer appeal-able or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. Jones v. Corcoran, 95 S.W.3d 673, 675 (Tex.App.-Houston [1st Dist.] 2002, no pet.). As a general rule, “bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment, and through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party” or a mistake or error by a court official. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999); Baker, 582 S.W.2d at 408. If a petitioner has ignored available legal remedies, a petition for bill of review will not be granted. Wembley Inv. Co., 11 S.W.3d at 927. We review the granting or denial of a bill of review under an abuse of discretion standard. Manley v. Parsons, 112 S.W.3d 335, 337 (Tex.App.-Corpus Christi 2003, no pet.).

Jon advanced two claims in his motion for bill of review: 1) that the post-judgment deadlines in his prior suit should have been extended because he did not receive notice of the judgment by the district clerk, and 2) that the trial court abused its discretion by dismissing his claims without allowing him the opportunity to pay the filing fee or allowing him to voluntarily dismiss the suit. We assume, from these allegations, Jon was complaining that, through no fault of his own, he was prevented from asserting a meritorious claim in his prior suit because of a mistake or error by court officials.

Jon makes no argument on appeal in support of his second claim. We therefore consider it abandoned. As noted, only the first issue presented in his brief relates to a claim made in his motion for bill of review. The other four issues pertain to matters that would have been appropriate in his failed appeal of his prior lawsuit. Because that appeal was untimely, we will not consider those issues here.

In the only issue presented in this appeal concerning the first claim made in his motion for bill of review, Jon contends that, in his prior suit, he was entitled to an extension of the appellate time line to perfect his appeal. He relies specifically on Tex.R. Civ. P. 306a(4).

Jon is correct; post-judgment deadlines may be extended under certain circumstances. Rule 306a provides, in relevant part, as follows:

3. Notice of judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed....
4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods [for the court’s plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment or an order, and for filing various documents that these rules authorize a party to file within such periods] shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other ap-pealable order was signed.
5.Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.

Tex.R. Civ. P. 306a(3), (4), (5).

Jon’s reliance on Rule 306a(4) is misplaced. Rule 306a(l) provides that the periods within which parties may file various post-judgment motions, and trial courts may exercise their plenary jurisdiction, all run from the date the judgment is signed. Jon is correct that Rule 306a(4) provides an exception to Rule 306a(l) if the party does not receive notice or acquire actual knowledge of the dismissal within twenty days after the signing of the judgment or other appealable order. This exception, however, cannot benefit Jon for two reasons. First, it merely enlarges the time for filing post-judgment motions, time which Jon did not need because he obviously received timely notice or actual knowledge of the trial court’s judgment dismissing his lawsuit because he did, in fact, file a post-judgment motion within thirty days of the signing of that judgment. Jon complains he did not receive notice of the trial court’s March 22, 2002, order overruling his motion to modify the judgment until July 2002. That order, however, is not the “other appealable order” to which Rule 306a(4) applies. Although the judgment dismissing his lawsuit was not appealable until Jon’s motion to modify had been overruled, either by express order or by operation of law, it was that judgment, not the trial court’s ruling on his post-judgment motion, that was appealable.

The second reason the Rule 306a(4) exception is of no avail to Jon is the language in the rule providing that “in no event shall such periods begin more than ninety days after the original judgment or other ap-pealable order was signed.” Even if the exception applied to the trial court’s March 22, 2002, order overruling Jon’s motion to modify, Jon acknowledges he did not receive notice of that order until July 2002. In order to establish the applicability of Rule 306a(4), a party must show receipt of notice within ninety days after the judgment or other appealable order was signed. Carrera v. Marsh, 847 S.W.2d 337, 341 (Tex.App.-El Paso 1993, orig. proceeding). June 20, 2002, was the ninetieth day after the order overruling Jon’s motion to modify was signed. His notice of that order, received in July 2002, simply was not covered by Rule 306a(4). See Levit v. Adams, 850 S.W.2d 469, 470 (Tex.1993).

Even if Rule 306a(4) did apply to Jon, in order to establish that applicability, he was required to file a sworn motion in the trial court establishing the date on which he first received notice or acquired actual knowledge of the signing of the order. Tex.R. Civ. P. 306a(5).

Complying with the provisions of Rule 306a is a jurisdictional prerequisite. Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex.1987); Grondona v. Sutton, 991 S.W.2d 90, 91 (Tex.App.-Austin 1998, pet. denied). The sworn motion serves the purpose of establishing a prima facie case of lack of timely notice, thereby invoking the trial court’s jurisdiction for the limited purpose of holding a hearing to determine the date of notice. Grondona, 991 S.W.2d at 91-92; Carrera, 847 S.W.2d at 341-42. If the movant fails to establish the applicability of the exception in the prescribed manner, the trial court lacks jurisdiction to determine the date of notice, and any order doing so is void. Gillis, 741 S.W.2d at 365-66; Grondona, 991 S.W.2d at 92.

Jon failed to file a sworn motion in the trial court establishing the date on which he first received notice or acquired actual knowledge of the signing of the order. He therefore could not receive the benefit of Rule 306a(4), even if it applied.

Jon argues that, because he filed his notice of appeal in his prior suit within ninety days after the order overruling his motion to modify was signed, his appeal of that case was timely, citing John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex.2001). John held that the rules (contained in Rule 306a) do not set a deadline for filing a motion claiming the exception under Rule 306a(4), “other than the deadline of the expiration of the trial court’s jurisdiction.” Id. at 741. For the reasons stated above, Rule 306a(4) does not apply to Jon in this situation, and even if it did, Jon never followed it by filing a sworn motion in the trial court establishing the date on which he first received notice or acquired actual knowledge of the signing of the judgment or order.

Further, Jon’s contention in this regard constitutes a collateral attack on this Court’s judgment in his appeal in the prior suit. A bill of review is not a proper attack on an appellate court’s judgment and cannot be used as a substitute for review by the Texas Supreme Court. Cherry v. Altman, 872 S.W.2d 46, 47 (Tex.App.-Fort Worth 1994, pet. denied; pet. dism’d w.o.j. [2 pets.]). Jon sought review of our judgment by the Texas Supreme Court in the prior case and was denied. Jon, No. 06-02-00092-CV. A fundamental tenet of our jurisprudence holds that res judicata bars relitigation of issues previously settled by final judgment. Altman, 872 S.W.2d at 47.

Even addressing the merits of Jon’s contention, he did not timely appeal in the prior suit. Without regard to whether he had notice or knowledge of the trial court’s overruling of his motion to modify the judgment, Jon, as noted above, obviously received timely notice or actual knowledge of the trial court’s judgment dismissing his lawsuit. This is because, within thirty days of the signing of that judgment, he filed a motion to modify that judgment. Under Rule 329b, that motion to modify was required to be determined by written order signed within seventy-five days after the date the judgment was signed, or be considered overruled by operation of law on expiration of that period. Tex.R. Civ. P. 329b(c). Further, the filing of that motion to modify extended the deadline for filing a notice of appeal to ninety days after the judgment was signed. Tex.R.App. P. 26.1(a)(2). Because the judgment dismissing Jon’s suit was signed January 23, 2002, when Jon timely filed his motion to modify the judgment, he had until April 23, 2004, to file a notice of appeal, regardless of whether his motion to modify was disposed of by written order or overruled by operation of law. Thus, his notice of appeal filed one month later was untimely and this Court was without jurisdiction to consider it.

For these reasons, we conclude the trial court did not abuse its discretion in dismissing Jon’s motion for bill of review.

We affirm the judgment.

      . These four issues, as stated in Jon's appellate brief, are as follows:

      . Whether the trial courts [sic] review of a special Master Report was proper?

      . Whether Appellant’s claims under the Texas Tort Claims Act fell within the statute of the Texas Civil Practice and Remedy [sic] Code § 101.021(a)?

      . Whether the trial court abused it [sic] discretion by dismissing Plaintiff-Appellant’s cause of action ?

      .Whether the trial court abused it [sic] discretion by assessing court cost, fees, and expenses pursuant to sections 14.006 and 14.007?


author: Justice CARTER.

text:
    In re Linda ZUFLACHT, Individually, and Adoption Services Associates.
    No. 06-04-00117-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 10, 2004.
    Decided Nov. 12, 2004.

      Alex Tyra, Law Office of Alex Tyra, Longview, for relator.
    Ebb B. Mobley, John G. Troy Jr., Long-view, for real party in interest.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Relator, Linda Zuflacht, individually and in her capacity as director for Adoption Services Associates (ASA), has filed a petition for writ of mandamus to compel the Honorable Robin Sage, 307th Judicial District Court, Gregg County (the trial court) (1) to vacate its order of October 11, 2004, which denied Relator’s pleas in abatement and plea to the trial court’s jurisdiction; (2) to vacate the trial court’s order to present the child for paternity testing; and (3) to dismiss the action filed by the real party in interest, Timothy Guy Sum-merfield. Finding that the 408th Judicial District Court of Bexar County has continuing, exclusive jurisdiction of this matter, we will conditionally grant Relator’s request, pending the trial court’s compliance with our ruling.

Following the filing of the mother’s affidavit of voluntary relinquishment of parental rights to a licensed child-placing agency and an affidavit of the status of the child, the 408th Judicial District Court of Bexar County signed a decree terminating the parental rights of the mother and the child’s father, found to be unknown in the 408th court’s termination order. The termination order was signed June 2, 2004. The 408th Judicial District Court, Bexar County, named ASA as managing conservator of the child. The mother’s affidavit of status stated that she was not married at the time the child was born and that she did not know the identity of the father. A publisher’s affidavit shows that notice to the unknown father was published in Gregg County, where the real party in interest, Summerfield, filed an original suit affecting the parent-child relationship July 12, 2004, in the 307th Judicial District Court, Gregg County.

Following a hearing October 11, 2004, the 307th Judicial District Court, Gregg County, entered an order denying the ASA’s request for continuance and pleas in abatement and plea to the jurisdiction, and deferring a ruling on ASA’s motion to transfer the case to the 408th Judicial District of Bexar County. The 307th court further ordered the child to be produced for DNA paternity identification.

ASA filed this petition for writ of mandamus and a request for temporary orders. On October 20, 2004, this Court stayed the trial court’s order for paternity identification testing and directed Sum-merfield to respond to ASA’s requests for mandamus and for temporary orders.

The 408th Judicial District Court of Bexar County was vested with continuing, exclusive jurisdiction of this matter when the affidavit of voluntary relinquishment and the affidavit of the status of the child were filed. That court continued to assert its jurisdiction with issuance of the order of termination. See Tex. FamlCode Ann. § 155.001 (Vernon 2002); Cruz v. Scanlan, 682 S.W.2d 422, 423 (Tex.App.-Houston [1st Dist.] 1984, no writ) (district court acquired continuing, exclusive jurisdiction when the petition for termination and adoption were filed; the probate court’s subsequent appointment of temporary guardian was ineffective).

Summerfield directs us to discrepancies in the child’s date and time of birth, evidenced by the information contained in the birth certificate, by ASA’s pleadings, and by the testimony of Zuflacht. Summer-field also claims that the mother’s voluntary relinquishment affidavit does not show it was executed more than forty-eight hours after the child’s birth. See Tex. Fam.Code Ann. § 161.103 (Vernon Supp.2004-2005). Summerfield alleges ASA is guilty of “perjurious statements” and misconduct, which estop that party from contesting any jurisdictional dispute. In support of this argument, Summerfield cites Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974). Curtis involved a situation where the initial divorce order predated the Texas Family Code. Since there was no court of continuing jurisdiction before the pleadings which instituted the reported case, the Texas Supreme Court found that the first court in which pleadings were filed after January 1, 1974, was the court of dominant jurisdiction. Id. at 266-67. One of the purposes of the Texas Family Code was to avoid forum contests by establishing courts of continuing, exclusive jurisdiction.

More, importantly, however, we do not find, based on the record before us, there is sufficient evidence ASA is “guilty of such inequitable conduct as will estop [it] from relying on [the first filed suit, in the 408th] to abate a subsequent proceeding brought by [it] adversary,” here, Summer-field’s subsequent suit filed in Gregg County. See id. at 267. It is true that less than forty-eight hours would have elapsed between the child’s date and time of birth as evidenced on the birth certificate and the date and time noted on the mother’s affidavit of voluntary relinquishment. However, the record before us is not sufficient to establish that such inconsistencies are the type of inequitable conduct as would estop ASA from proceeding in Bexar County.

Any discrepancy between the birth certificate and the mother’s affidavits, or any other evidence which might be adduced regarding the merits of the case, do not involve the forum or venue. Cf. Sweezy Constr., Inc. v. Murray, 915 S.W.2d 527, 532 (Tex.App.-Corpus Christi 1995, orig. proceeding [mand. denied]) (allegations of misrepresentations between parties, even if going to the heart of the controversy, do not bear on the choice of forum). From the scant record before us, it appears ASA instigated a suit to terminate the parent-child relationships and place the child for adoption at a time when the child resided in Bexar County. None of the issues involved in the instant controversy bear on the initial choice of forum; yet the issues in both the Bexar County suit and the suit filed in Gregg County involve the same issues and parties.

It is clear that jurisdiction was established in the Bexar County District Court. Summerfield has failed to demonstrate that the conduct of the mother or relative estops ASA from proceeding in the Bexar County District Court. Based on the foregoing analysis, we conclude the 307th Judicial District Court in Gregg County was under a ministerial duty to dismiss Sum-merfield’s action in favor of the 408th court in Bexar County. We conclude the trial court erred by fading to dismiss this proceeding, as a court of continuing, exclusive jurisdiction had been previously established. The petition for writ of mandamus is therefore conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.