text:
    Donald S. BRYANT, Jr. Ind. and as Trustee of the Bryant Family Trust, Appellant, v. Nicholas Allen ROBLEE, a/k/a Nicholas Richmond, Nicholas A. Richmond, and Thomas E. Roblee; Premier Marketing & Investments, Inc., a/k/a Premier Marketing and Investment Company, Inc.; Jewell Meyer; First Republic Bank; Everett Jung; California Federal Bank; Jae K. Jung; Lee Mcmillian; and Joseph Saranello, Appellees.
    No. 07-04-0037-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 1, 2004.

      James L. Gorsuch, James L. Gorsuch, P.C., Lubbock, for Appellants.
    Robert D. Weber, Piper Rudnick LLP, Los Angeles, CA, Gary M. Bellair, H. Grady Terrill III, Craig, Terrill, Hale & Grantham, L.P., Lubbock, for Appellee.
    Before QUINN and'REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Donald S. Bryant, Jr., acting individually and as trustee for the Bryant Family Trust, brings this appeal from an order granting a special appearance filed by ap-pellee, First Republic Bank. We will affirm.

The record before us shows Nicholas Roblee, a California resident, operated Premier Marketing & Investments, Inc., a California corporation. Appellant Bryant, a Texas resident, transferred $500,000 to Premier in the spring and summer of 2002 for investment purposes. Bryant brought suit in late 2002. His petition alleged Rob-lee and Premier failed to perform as agreed and failed to return the funds on his request. The petition also alleged Roblee and Premier made false representations concerning return of the money for the purpose of delaying his initiation of legal action against them.

Bryant also named other defendants, including First Republic Bank and one of its employees, Everett Jung. His first amended petition alleged Jung improperly had permitted Roblee and others to exercise authority over funds held in Premier’s accounts at the bank, and alleged First Republic was liable for Jung’s actions. First'Republic, a Nevada banking corporation, filed a special appearance pursuant to Rule of Civil Procedure 120a, in which it asserted it was not, and had never been, a Texas resident and was not otherwise amenable to process issued by Texas courts. Following a hearing, the court signed an order granting First Republic’s special appearance. It then severed the claims against the other parties, creating the final judgment from which Bryant now appeals.

Bryant presents four issues, all challenging the sustention of First Republic’s special appearance. Rule of Civil Procedure 120a provides for a special appearance by which a party may object to the court’s jurisdiction over the party on the ground that it is “not amenable to process issued by the courts of this State.” Tex.R. Civ. P. 120a; see Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630 (Tex.App.Dallas 1993, writ denied). Sections 17.041-.045 of the Civil Practice and Remedies Code provide for service of process on nonresident defendants “doing business” in our state. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2002). This provision of our long-arm statute extends personal jurisdiction of Texas courts “as far as the federal constitutional requirements of due process will permit.” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); see American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002).

The exercise of personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Purposely established minimum contacts may give rise in a particular case to jurisdiction that is specific or general. BMC Software, 83 S.W.3d at 795. When specific jurisdiction is asserted, the cause of action must arise out of, or relate to, the nonresident defendant’s contact with the forum state. Id. at 796. Pursuant to general jurisdiction, a forum may exercise personal jurisdiction over a defendant even with respect to a cause of action not arising from or relating to the defendant’s activities within the forum state, based on the defendant’s “continuous and systematic” contacts with the forum state. American Type Culture, 83 S.W.3d at 807; BMC Software, 83 S.W.3d at 796. It requires “a showing that the defendant conducted substantial activities within the forum, a more demanding minimum contacts analysis than for specific jurisdiction.” Id. at 797. Determination of what constitutes continuous and systematic contacts can be made only on a case-by-case basis. American Type Culture, 83 S.W.3d at 810. A defendant should not be subject to a foreign court’s jurisdiction based upon “random,” “fortuitous” or “attenuated” contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

A defendant challenging, by special appearance, a Texas court’s personal jurisdiction over it must negate all jurisdictional bases alleged by the plaintiff. American Type Culture, 83 S.W.3d at 807; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). The question whether a court has personal jurisdiction over a defendant is one of law. American Type Culture, 83 S.W.3d at 805-06; BMC Software, 83 S.W.3d at 794. When the challenge to a court’s jurisdiction over a nonresident defendant requires factual determinations that are contested on appeal, a court of appeals reviews those determinations under the standards for legal and factual sufficiency. BMC Software, 83 S.W.3d at 794. In this case, the jurisdictional facts are not disputed, so we review de novo the trial court’s application of the law to the established facts. See C-Loc Retention Systems, Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.-Houston [14th Dist.] 1999, no pet.) .

Bryant does not argue his claims against First Republic arise from its contacts with Texas. He seeks a finding of general jurisdiction over First Republic on the basis of what he alleges are its continuing and systematic contacts with our state. No testimony was presented at the hearing on the special appearance. The evidence includes an affidavit of First Republic’s chief operating officer supporting its special appearance motion and First Republic’s responses to Bryant’s interrogatories.

First Republic’s principal office is in Las Vegas, Nevada, and its executive offices are in San Francisco. As noted, Premier had two accounts at First Republic, opened at a First Republic branch in Los Angeles. First Republic has no Texas branch, office or other place of business, and no employees in Texas. It does not have a Texas agent for service of process. Its officer’s affidavit states First Republic has made “an occasional loan” to a Texas resident, but does not solicit business in Texas. The interrogatory responses reveal First Republic held, at the time of the response, 24 loans made during the past five years to customers with Texas mailing addresses, in the total principal amount of some $17,218,178, and had a total of 37 such loans during that period. First Republic made more than 12,000 loans during that period, and had 7340 open loans on its balance sheet at the time of the response. It held real estate liens on eleven properties located in Texas, securing loans in the original principal amounts of about $10,000,000. In addition, First Republic released five liens on Texas properties within the past five years. First Republic does not direct any advertising to Texas, but does advertise in national publications and maintain an Internet web site accessible from Texas.

Bryant’s brief emphasizes First Republic’s ownership of loans secured by liens on real property in Texas. He cites no authority in support of his premise that a nonresident corporation’s ownership of loans secured by liens on Texas real property constitutes continuous and systematic contacts with our state authorizing the exercise of personal jurisdiction. Ownership of real property alone does not provide contacts sufficient to establish general jurisdiction over a nonresident corporation. Potkovick v. Regional Ventures, Inc., 904 S.W.2d 846, 847 (Tex.App.-Eastland 1995, no writ) (foreign corporation’s ownership of real property sufficient basis for jurisdiction when property is subject of suit); see Shaffer v. Heitner, 438 U.S. 186, 208, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Goodenbour v. Goodenbour, 64 S.W.3d 69, 79 (Tex.App.-Austin 2001, pet. denied) (specific jurisdiction case). Merely contracting with a Texas resident is not sufficient. Magnolia Gas Co. v. Knight Equip. & Manufac. Corp., 994 S.W.2d 684, 691 (Tex.App.-San Antonio 1998, no pet.). Nor is correspondence with state residents. National Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 774 (Tex.1995). Likewise, we find that a nonresident corporation’s ownership of loans secured by liens on Texas real property does not alone give our courts general jurisdiction over the corporation.

Bryant argues that First Republic has availed itself of the protections of our laws by taking liens on Texas real property because it would utilize Texas law in foreclosure of the liens. A similar contention could be made with respect to the ownership of legal title to real property. Moreover, we have no evidence First Republic ever has foreclosed a lien on property in Texas. That the nonresident might in the future find it necessary to take action under Texas law to protect or enforce its rights in its property is not evidence of continuous and systematic contacts with our state at present.

Bryant also argues the quality of a nonresident defendant’s contacts, not the number, should govern the minimum contacts analysis, and that the analysis here should not be determined by the evidence that loans with ties to Texas represent only a small fraction of First Republic’s loan portfolio. While we must agree with that proposition, see American Type Culture, 83 S.W.3d at 806 (noting the quality and nature of contacts, rather than the number, to be important to minimum contacts analysis), and while the total principal amount of First Republic’s loans with ties to Texas is not inconsequential, the evidence concerning the existence of the loans does not tell much about the quality and nature of First Republic’s contacts with our state. The evidence does not show where or in what manner the loans were made, nor does it characterize the loan customers as individuals or entities. It does not show whether the loans secured by Texas real property are the same loans as those made to customers having a mailing address in Texas at the time of the interrogatory responses. As noted, the evidence contains First Republic’s acknowledgment that it has made “an occasional” loan to a resident of Texas, but the record does not equate a customer’s having a Texas mailing address with Texas residency. In short, the record does not demonstrate continuous and systematic contacts between First Republic and our state so as to permit our courts to exercise general jurisdiction over it. It is therefore unnecessary for us to address Bryant’s arguments that the exercise of jurisdiction over First Republic in this case would be consistent with, and would not offend, traditional notions of fair play and substantial justice. We overrule Bryant’s issues, and affirm the order and judgment of the trial court.

      . Premier had two accounts at First Republic, opened at a First Republic branch in Los Angeles. Bryant’s suit does not allege the funds he transferred to Premier ever were deposited.in First Republic. The evidence indicates both accounts at First Republic were opened early in 2001 and closed later that same year, several months before Bryant first invested funds with Premier.

      . Biyant's first amended petition also alleged another employee of First Republic made a false representation to him during a telephone conversation, but he does not assert it as a basis for personal jurisdiction over First Republic.

      . First Republic's responses also stated, in response to an interrogatory asking the "number of loans made within the past five years which have been paid off by Texas residents,” that First Republic had "closed” 15 loans over the past 5 years that were made to customers with a mailing address in Texas.

      . A conclusion that First Republic’s mere taking of liens on Texas real property does not constitute minimum contacts forming a basis for the exercise of personal jurisdiction, and thus does not, standing alone, constitute “doing business” under the long-arm statute, is consistent with provisions of Texas corporation law, by which foreign corporations are not deemed to be transacting business in our state and required to obtain a certificate of authority when they engage in transactions such as creating, acquiring or enforcing security interests in real property. See Tex. Bus. Corp. Act Ann. art. 8.01, §§ B(7), B(8), B(12) (Vernon 2003).


source: Caselaw Access Project

author: PHIL JOHNSON, Chief Justice.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Lance Ladell COERS, Appellee.
    No. 07-02-0521-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 28, 2004.
    Rene S. Lial, Staff Atty., Austin, for appellant.
    Stephen Hamilton, Boatwright & Hamilton, LLP, Lubbock, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

The Texas Department of Public Safety appeals from a judgment directing the TDPS to rescind its suspension of Lance Ladell Coers’s drivers license. We reverse.

BACKGROUND

On May 24, 2002, TDPS Trooper Jan-drew observed Lance Ladell Coers driving without the proper use of a safety belt. Based on this observation, Jandrew initiated a traffic stop of Coers and observed signs of intoxication. After Coers performed and failed field sobriety tests, Jan-drew arrested him for driving while intoxicated and requested a breath sample. Coers refused. As a result of the refusal, Coers’s driver’s license was suspended. See Tex. TRAnsp. Code Ann. § 724.035 (Vernon Supp.2002). Coers requested an administrative hearing. See Section 724.041.

Jandrew did not appear at the hearing, and the TDPS used Jandrew’s report to establish that she had reasonable suspicion or probable cause to stop or arrest Coers. Jandrew’s report indicated that she stopped Coers for driving without a safety belt. Coers objected to that part of the report referencing his non-use of a safety belt on the basis that “use or non-use of a safety belt is not admissible evidence in a civil trial.” Section 545.413(g). The ALJ overruled Coers’s objections and sustained the suspension of Coers’s license. Section 724.043.

Coers appealed to the county court at law. See Section 524.041. The county court at law judge held that the ALJ erred in admitting evidence of Coers’s non-use of a seatbelt in a civil trial and that absent the evidence of non-use of a seatbelt there was no evidence to show reasonable suspicion for the stop of Coers’s vehicle. Judgment was rendered reversing the decision of the ALJ and ordering TDPS to rescind its suspension of Coers’s driver’s license.

The sole issue presented on appeal is whether the county court at law erred in ruling that evidence of Coers’s non-use of a safety belt was not admissible in the administrative proceeding.

Appellate standard of review for a trial court’s interpretation of law is de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See National Liability and Fire Insurance Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Bridgestone/Firestone v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994).

In Glyn-Jones, the manufacturer of a seatbelt asserted that the language now before us precluded the injured person in a civil products liability suit from introducing evidence that an allegedly defective seatbelt was in use at the time of injury. The Supreme Court addressed the Legislature’s intent in regard to the language in question as it existed in Tex.Rev.Civ. Stat. Ann. art. 6701d, § 107C(j), the predecessor statute to Section 545.413(g):

Article 6701d, section 107C was enacted to mandate the use of seat belts and to provide a criminal penalty for the failure to wear a seat belt. The last sentence of the section states that “[u]se or nonuse of a safety belt is not admissible evidence in a civil trial.”
Subsection (j) was included in section 107C in order to make clear that the sole legal sanction for the failure to wear a seat belt is the criminal penalty provided by the statute and that the failure could not be used against the injured person in a civil trial, (emphasis added).

Id. at 133-34. See also, St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 507 (Tex.1997).

The Glyn-Jones Court could have simply said that the Legislature did not intend to preclude admission of evidence of seat belt usage in the type of case then under consideration. It did not do so. Although one could argue that the “sole legal sanction” language is dictum, we view the language to be the foundation on which the Court based its ruling. Accordingly, we will adhere to the Supreme Court’s interpretation of legislative intent as expressed in Glyn-Jones. See In re K.S., 76 S.W.3d 36, 49 (Tex.App.-Amarillo 2002, no pet.); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 816 (Tex.App.-Corpus Christi 1996, writ denied); Penick v. Christensen, 912 S.W.2d 276, 286 (Tex.App.-Houston [14th Dist.] 1995, writ denied). The language of Section 545.413(g) did not require the ALJ to exclude evidence of Coers’s non-use of a seatbelt.

We have not ignored Coers’s argument that- after Glyn-Jones was decided the Legislature has revisited the statutory language now found in Section 545.413(g) and has added a specific exception for proceedings under Subtitle A or B, Title 5 of the Family Code. See fn. 2, infra. In effect, he argues the doctrine of expressio unius est exclusio alterius: the maxim that the expression of one implies the exclusion of others. See Mid-Century Ins. Co. of Texas v. Kidd, 997 S.W.2d 265, 273-74 (Tex.1999). The doctrine, however, is an aid to determine legislative intent, not an absolute rule, id., just as are other aids to statutory interpretation such as the presumption that the Legislature acts with knowledge of prior court decisions and interpretations of statutory language. See Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999); Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex.1968). It is not necessary for us to analyze the statute by using such aids to statutory construction in face of the Supreme Court’s clear determination of the Legislature’s intent in Glyn-Jones that the Legislature intended the language of Section 545.413(g) to limit sanctions for failure to use a seatbelt to the criminal penalty provided by statute.

The judgment is reversed. The decision of the Administrative Hearings Law Judge is affirmed.

      . Further reference to a section of the Texas Transportation Code will be by reference to "Section ■—

      . TDPS had the burden to prove by a preponderance of evidence, that:
      (1) reasonable suspicion or probable cause existed to stop or arrest Coers,
      (2) probable cause existed to believe that Coers was operating a motor vehicle in a public place while intoxicated,
      (3) Coers was placed under arrest by the officer and was requested to submit to the taking of a [breath or blood] specimen, and
      (4) Coers refused to submit to the taking of a [breath or blood] specimen on request of the officer. Section 724.042.

      . See Act of June 16, 1995, 74th Leg., R.S., ch. 165 § 1, 1995 Tex. Gen. Laws 1025, 1644 repealed by Act of June 11, 2003, 78th Leg., R.S., ch. 204 § 8.01, 2003 Tex. Gen. Laws 847, 863. Although the provision in question has been repealed as of September 1, 2003, our analysis will be of the provision in effect at the time of the offense. See Dodson v. State, 969 S.W.2d 117, 119 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Since TDPS and appellee both refer to the disputed provision as Section 545.413(g), we will adopt the same for consistency.

      .The parties do not join issue on, and we do not express an opinion as to, whether the administrative hearing was a "civil trial” within the meaning of Section 545.413(g).


author: PER CURIAM.

text:
    In the Matter of Tony GIBBS.
    No. 07-04-0347-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 28, 2004.
    Mike Brown, Lubbock, for Appellant.
    Wade Jackson, Asst. Criminal District Atty., Lubbock, for State.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   ORDER OF ABATEMENT AND REMAND

PER CURIAM.

Appellant Tony Gibbs, Jr., has given notice of appeal from a judgment that he engaged in delinquent conduct. The appellate court clerk received and filed the trial court clerk’s record on August 16, 2004, and received and filed the trial court reporter’s record on August 17, 2004.

Appellant has timely filed a notice of appeal, and the trial court has certified that appellant has the right of appeal. Further, the trial court has found appellant indigent and appointed appellate counsel. Appellant’s brief was due on September 16, 2004. On September 27, 2004, this court sent notice to appellant’s counsel that the brief had not been filed. This notice further directed that appellant file a response by October 7, 2004, reasonably explaining the failure to file a brief. Tex. R.App. P. 38.8. Appellant has not responded to the notice.

Accordingly, we abate the appeal and remand the cause to the trial court. Tex. R.App. P. 38.8(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appointed counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether appellant’s present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant’s appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney’ for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk’s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter’s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk’s record or the supplemental reporter’s record; and (5) cause the records of the proceedings to be sent to this court. In the absence of a request for extension of time from the trial court, the supplemental clerk’s record, supplemental reporter’s record, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than November 24, 2004.


author: DON H. REAVIS, Justice.

text:
    Steven Charles LANDRUM, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0298-CR.
    Court of Appeals of Texas, Amarillo.
    Nov. 2, 2004.

      Kregg Hukill, Olton, for appellant.
    Sara Scribner, Joseph P. Oman, Special Prosecutor, Lubbock, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

A jury convicted appellant Steven Charles Landrum of theft and sentenced him to 15 years confinement. By one point of error, appellant contends the trial court erred in overruling his objection to the admission of business records via a custodian of records affidavit because the State did not strictly comply with the filing deadlines prescribed by the Rules of Evidence. We affirm.

Between November of 1998 and March of 1999, appellant persuaded several individuals to invest in viatical settlements. Instead of investing the victims’ money, however, appellant spent the funds, amounting to more than $200,000, on various business and personal expenses. In March of 2004, the Bailey County Grand Jury indicted appellant for misapplication of fiduciary property and first degree felony theft. In anticipation of trial, the State, on April 7, 2004, filed with the District Clerk various bank records accompanied by custodian of records affidavits. At trial, which began on April 21, 2004, the State offered the records and supporting affidavits into evidence, and the trial court admitted them.

By his only point of error, appellant contends the trial court erred “in overruling [his] objections to the admission of evidence as a business record under Rule 902(10) where the State did not strictly comply with the requirement that the affidavits and records be files [sic] at least fourteen (14) days prior to the commencement of trial.” Specifically, he asserts the trial court should have excluded the records because, by his calculations, they had only been on file with the clerk for 13 days before the start of trial. Appellant then summarily concludes that “the erroneously admitted records influenced the outcome in this matter.” We disagree.

The discrete question presented for our determination is whether the State’s filing of the records with the Clerk on April 7, 2003 was timely for purposes of Rule 902(10). That rule authorizes the admission of business records and supporting affidavits if they “are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit.” Rule 902(10)(a). The State acknowledges that no rule squarely prescribes the method for the computation of time in criminal cases. It argues instead that Rule 902(10) should be implemented the same way in a criminal case as it is in a civil case since the rule is applicable to both types of proceedings. See Rule 101(b) (providing that “these rules govern civil and criminal proceedings ... in all courts of Texas ... ”). The State then suggests that the proper method of computing time in a criminal case should be that prescribed by Rule of Civil Procedure four, which excludes “the day of the act, event, or default after which the designated period of time begins to run,” but counts “the last day of the period so computed.” Tex.R. Civ. P. 4. We decline to adopt the analysis propounded by the State.

First, we note that although Rule 902(10) provides that “[njotice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause,” it makes no reference to Rule of Civil Procedure four. Next, Rule of Civil Procedure four provides a method to compute time periods “prescribed or allowed by these rules, by order of court, or by any applicable statute.” Because the Rules of Evidence are not statutes, Rule of Civil Procedure four, by its express terms, has no applicability to them. Third, before the adoption of the Rules of Evidence, the Business Records Act regulated the admission of business records into evidence in criminal and civil cases. Act of September 8, 1951, 52nd Leg., R.S., ch. 321, 1951 Tex. Gen. Laws 545, repealed, by Texas Rules of Criminal Evidence, eff. Sept. 1, 1986; see Hodge v. State, 631 S.W.2d 754, 757 (Tex.Cr.App.1982) (holding that the Business Records Act is applicable to criminal cases). Like the current rule, the former statute made no reference to Rule of Civil Procedure four or its predecessor.

We are also persuaded that Rule of Civil Procedure four has no applicability to the resolution of the issue presented here because it requires the opposing party to respond to the filing. Rule of Civil Procedure four applies when an act is required or allowed to be done within a specified time. See State v. Rayburn, 352 S.W.2d 357, 360 (Tex.Civ.App.-Texarkana 1961, writ ref'd n.r.e.). In contrast, unlike the discovery rules, Rule 902(10) does not require that the other party respond in any way. Instead, where a party has established an adequate predicate or foundation for the admission of business records, they may be admitted as an exception to the hearsay rule. See Clayton v. State, 652 S.W.2d 950, 956 (Tex.Cr.App.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). That is, the State had the burden to prove each of the elements set out in Rule 902(10) to establish the foundation for the admission of the evidence. Johnson v. Brown, 560 S.W.2d 763, 764 (Tex.Civ.App.-Eastland 1978, writ ref'd n.r.e). Under Rule 902(10), records are admissible under the business records exception to the hearsay rule if the records and accompanying custodian of records affidavit “are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence, at least fourteen days prior to the day upon which trial of said cause commences....” Because Rule 902(10) did not require appellant to do anything in response to the State’s filing, we conclude that Rule of Civil Procedure four has no application to the question of whether the State met its burden of proof for the admission of the business records.

Having found Rule of Civil Procedure four to be inapplicable, we now address the appropriate method for determining whether the business records were timely filed with the clerk of the court at least fourteen days prior to the day upon which the trial commenced. In answering that query, we note that an instrument is deemed filed when it is placed in the custody or control of the clerk. Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 681 (Tex.1979); see also Jamar v. Patterson, 868 S.W.2d 318, 319, (Tex.1993) (reaffirming the directive that a document is filed when it is tendered to the clerk or otherwise put under the custody or control of the clerk) and Strawder v. Thomas, 846 S.W.2d 51, 58 (Tex.App.-Corpus Christi 1992, no pet.) (recognizing that an instrument is effective as filed when it has been received into the custody of the clerk of the court for filing). Such is the rule in both civil and criminal cases. See Birdwell v. State, 996 S.W.2d 381, 382 (Tex.App.Houston [14 Dist.] 1999, pet. ref'd) (acknowledging that an instrument is deemed filed when it is left with the clerk, regardless of whether a file mark is placed on the instrument). Utilizing this edict, we conclude that the challenged records were filed for purposes of Rule 902(10) when they and their supporting affidavits were presented to the court clerk on April 7, 2004. Then, counting the 7th as day one, the 8th as day two, and so on, we hold that day 14 was April 20, 2004. As a result, the records were filed with the clerk at least 14 days prior to the commencement of trial on April 21, 2004. Appellant’s sole point of error is overruled.

Accordingly, the judgment is affirmed.

      . A viatical settlement is an agreement by which the owner of a life insurance policy that covers a person who has a catastrophic or life-threatening illness receives compensation for less than the expected death benefit of the policy in return for a turning over of the death benefit or ownership of the policy to the other party. Merriam-Webster’s Collegiate Dictionary, 1392 (11th ed. 2003).

      . All references to rules are to the Texas Rules of Evidence, unless otherwise designated.

      . Appellant does not favor us with an explanation of the method he utilized in reaching the conclusion that the records were only on file with the clerk for 13 days before trial. Neither does he refer us to any authority establishing the proper method for tabulating the minimum notice period contemplated by the rule. We presume from his argument, however, that appellant counts neither the day the records and affidavits were filed, nor the day on which the trial began.

      .In reaching this conclusion, appellant cites Hernandez v. State, 939 S.W.2d 665, 668 (Tex.App.-El Paso 1996, pet. ref'd) for the proposition that "[cjompliance with Rule 902(10) is mandatory.” Appellant correctly attributes that statement to the Hernandez court; however, the El Paso court's opinion resolved a case that was factually distinguishable from the case at bar. The issue in Hernandez was whether the rule contemplated the admission of records and supporting affidavits filed in a cause number that was subsequently dismissed when the case was re-indicted under a new cause number. Furthermore, even assuming Hernandez controlled our decision here, we conclude, as the El Paso court did, that the erroneous admission of the records in violation of Rule 902(10) is, nonetheless, subject to a harm analysis. And, like the El Paso court, we find appellant was not harmed by the admission of the records.

      . A party responding to interrogatories or requests for admissions must serve a written response on the requesting party within 30 days after service of the interrogatories. Tex.R. Civ. P. 197.2(a) & 198.2(a).

      . An amendment to the Texas Rules of Evidence or Rule 4 of the Texas Rules of Civil Procedure to promote uniformity of construction or application may be advisable.


author: Justice MORRIS.

text:
    SANMINA-SCI CORPORATION and Sanmina Corporation, Appellant, v. Leonard OGBURN, Appellee.
    No. 05-03-01576-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2004.
    Rehearing Overruled Feb. 4, 2005.

      Dean J. Siotos, Fox, Conner & Snelson, Dallas, Jeffrey J. Wolf, Jackson & Walker, LLP, Fort Worth, for Appellant.
    Brian P. Lauten, Ted B. Lyon, Jr., Ted B. Lyon & Associates, P.C., Mesquite, for Appellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MORRIS.

This is a premises liability action brought by Leonard Ogburn after he was injured at a warehouse facility controlled by Sanmina-SCI Corporation and Sanmina Corporation. Sanmina appeals from the jury’s verdict in favor of Ogburn contending there is no evidence to support the jury’s finding the company had actual or constructive knowledge of the alleged dangerous condition on its premises that proximately caused Ogburn’s injuries. Sanmi-na further contends there is no evidence or insufficient evidence to support the jury’s award of $45,000 in future medical expenses. Ogburn responds that Sanmina had actual knowledge that its warehouse door was broken, making his injury caused by part of the door falling on him foreseeable. Furthermore, Ogburn argues the evidence of his need for future surgery and medications is sufficient to support the jury’s award of future medical expenses. We conclude the evidence is sufficient to support both jury findings. We affirm the trial court’s judgment.

I.

At the time of the incident made the subject of this suit, Leonard Ogburn was employed as a truck driver by Consolidated Freight Company. Part of Og-burn’s job responsibilities included making deliveries to a warehouse operated by Sanmina-SCI Corporation and Sanmina Corporation. While making a delivery to Sanmina on March 16, 2001, Ogburn attempted to lift one of the warehouse doors. As he was doing so, a heavy roller fell off the door, striking him on the shoulder. Ogburn claimed that, as a result of this incident, he suffered serious and possibly permanent injuries.

Ogburn brought this suit against Sanmi-na alleging claims for negligence and premises liability. According to Ogburn, Sanmina knew before he was injured that the door was broken and presented a hazard to others. At trial, Ogburn presented evidence that for several weeks before March 16, the door was routinely propped open with a pole or piece of wood to keep it from closing and he personally told the warehouse supervisor the door needed to be fixed before someone got hurt. Ogburn contended Sanmina was liable for his injuries because the company failed to repair the door, prevent its usage, or warn others of the danger posed by the door.

Although several Sanmina employees conceded at trial that they were aware the door was broken, the company contended it was unaware of any problem with the door rollers specifically and, therefore, it could not have foreseen one of the rollers falling off and hurting someone. After hearing the. evidence, the jury found both parties negligent and attributed seventy percent of the negligence to Sanmina. The jury awarded Ogburn monetary damages to compensate him for his injuries, including $45,000 in future medical care expenses. Sanmina brought this appeal.

II.

It its first issue on appeal, Sanmi-na contends the judgment against it should be reversed and a new judgment rendered in its favor because Ogburn presented no evidence at trial that Sanmina had actual or constructive knowledge of any “unreasonably dangerous condition” involving the warehouse door that would cause a roller to fall off and injure someone. Sanmina argues its awareness that the door would not remain open unless propped open constitutes knowledge of an “unrelated condition” and such knowledge cannot be substituted for knowledge of the specific dangerous condition that caused Ogburn’s injury. Ogburn responds that Sanmina is impermissibly attempting to narrow the knowledge and foreseeability requirements for liability by redefining the alleged dangerous condition in this case. We agree.

It has long been the law that when an occupier of premises has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, it has a duty to take whatever action is reasonably prudent under the circumstances to reduce or eliminate the unreasonable risk from that condition. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). An occupier is considered to have constructive knowledge of any dangerous condition that a reasonably careful inspection would reveal. See id.

A condition poses an unreasonable risk of harm for premises-defect purposes when there is sufficient probability a harmful event will occur that a reasonably prudent person would have foreseen it or some similar event as likely to happen. County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). Foreseeability requires only that the general danger of a harmful event occurring be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). Foreseeability does not require anticipation of just how injuries will grow out of the dangerous situation. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970).

In this case, it is undisputed that Sanmi-na had actual knowledge that its warehouse door was broken and would roll closed unless it was propped open. Og-burn himself warned the warehouse supervisor that the door was a safety issue before he was injured. When the door was eventually repaired after Ogburn was injured, new rollers needed to be installed. Although Sanmina may not have been aware of the specific problem with the rollers, it was aware of the dangerous condition created by the broken door. Simply because Ogburn was injured by the door in a different manner than might have been anticipated does not change the fact that his injury was foreseeable. See Brown, 80 S.W.3d at 556-57. We conclude the evidence is legally sufficient to support the jury’s finding that Sanmina had actual or constructive knowledge of the unreasonably dangerous condition that proximately caused Ogburn’s injuries. We resolve Sanmina’s first issue against it.

In its second issue, Sanmina contends the evidence is legally and factually insufficient to support the jury’s award of $45,000 in future medical expenses. To recover future medical expenses, a plaintiff must show there is a “reasonable probability” that such expenses will be incurred in the future. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862-63 (Tex.App.-Fort Worth 2003, pet. denied). This includes evidence proving that, in all treasonable probability, future medical care will be required and the reasonable cost of such care. See Daimler-Chrysler Corp. v. Hillhouse, No. 04-02-00548-CV, 2004 WL 1195687 (Tex.App.-San Antonio Jun. 2, 2004, no pet. h.). The determination of what amount, if any, to award in future medical expenses is within the jury’s sound discretion. See Bush, 122 S.W.3d at 863. Because issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain, appellate courts are particularly reluctant to disturb a jury’s award of these damages. See Pipgras v. Hart, 832 S.W.2d 360, 365 (Tex.App.-Fort Worth 1992, writ denied).

At trial, both Ogburn’s treating physician, Dr. W.Z. Burkhead, and Sanmi-na’s expert medical witness, Dr. James Walter, presented their opinions about Og-burn’s need for future medical care. Both doctors discussed Ogburn’s need for more treatment including a surgical procedure known as a glenohumeral fusion. Among the documents admitted into evidence was Dr. Burkhead’s written opinion in which he stated that Ogburn had elected not to have the glenohumeral fusion. Dr. Burkhead further opined, however, that if Ogburn’s condition did not improve significantly, he would need to have the surgery. Dr. Burkhead orally confirmed in his testimony before the jury that Ogburn had chosen not to have the surgery and stated, as a result, he was not recommending the surgery at that time. But Dr. Burkhead also stated there was a reasonable probability that Ogburn would eventually need to undergo the glenohumeral fusion. Burkhead estimated the cost of the surgery to be approximately $25,000. Sanmina’s expert, Dr. Walter, agreed with Dr. Burkhead’s opinion both as to the reasonable probability that the glenohumeral fusion would be required and the reasonable cost of the procedure.

In addition to the surgery, Ogburn presented evidence that his future medical care needs would include the cost of medication. Ogburn testified his medication expense was approximately $300 per month and he would need to take the medication for the rest of his life. At the time of trial, he was fifty-six years old.

Based on the foregoing, we conclude the evidence is legally and factually sufficient to support the jury’s award of future medical expenses. We resolve Sanmina’s second issue against it.

We affirm the trial court’s judgment.


author: BOB McCOY, Justice.

text:
    SEAWAY PRODUCTS PIPELINE COMPANY, Appellant, v. Doyle HANLEY, Tom Chambers, Aledo Construction, Inc., Annetta Development Corporation, and Richard A. Bloomfield, Sr., Appellees.
    No. 2-03-127-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 2, 2004.

      Andrews & Kurth L.L.P., J. Mark Breeding, C. Charles Dippel, and W. Earl Touchstone, Houston, for Appellant.
    Law, Snakard & Gambill, P.C., Ed Hud-dleston, and Dabney D. Bassel, Fort Worth, for Doyle Hanley.
    Kirkley & Berryman, L.L.P., J. Lyndell Kirkley, and B. Dan Berryman, Fort Worth, for Tom Chambers.
    C. Edward Fowler, Jr., Dallas, for Aledo Construction, Inc.
    David Broiles, Fort Worth, for Annetta Development Corporation.
    Brown, Pruitt, Peterson & Wambsganss, P.C., Misty M. Pratt, and Christopher J. Pruitt Fort Worth, for Richard A. Bloomfield, Sr.
    Panel B: DAUPHINOT, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

INTRODUCTION

Appellant Seaway Products Pipeline Company (“Seaway”) claims the trial court erred in granting summary judgment in favor of appellees Doyle Hanley (“Han-ley”), Tom Chambers (“Chambers”), Aledo Construction, Inc. (“Aledo”), Annetta Development Corporation (“Annetta”), and Richard A. Bloomfield, Sr. (“Bloomfield, Sr.”) on causes of action arising from the rupture of a pressurized gasoline pipeline during the development of a lot in a residential subdivision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the late 1980s Chambers became the owner of the property which is the subject of this suit. He later formed Annetta on April 9, 1997, and deeded the property to Annetta. The following month Annetta, as owner of the land, entered into a Development Agreement with Aledo, which was identified in the agreement as the developer, whereby the property would be laid out and sold to homebuilders. On April 22, 1998, Sean Knight Custom Homes, Inc. (“Custom Homes”) entered into a contract with Annetta to purchase lot 26 of phase 7 of the property, and on June 15 of that year a warranty deed to Knight from An-netta was executed. Knight then conveyed the lot to Rick Bloomfield, who subsequently transferred the lot on November 17, 1998 to his father, Richard E. Bloomfield, Sr., who owned the lot in question at the time the incident that is the subject of this lawsuit occurred.

On April 5, 1999, Melvin Walcott (“Wal-cott”) ruptured Seaway’s pipeline with a backhoe tractor while working on the subdivided lot owned by Bloomfield, Sr. A week prior to the accident, Bloomfield, Sr. was to close on the sale of the lot to prospective homeowners, the McWeeneys, but due to problems encountered by the McWeeneys, the closing had to be rescheduled. Also prior to the rescheduled closing, the McWeeneys hired Sean Knight (“Knight”), Bloomfield, Sr.’s son-in-law and owner of Custom Homes, to build a house on the lot. While Bloomfield, Sr. was out of the country on business, Walcott, who had been hired by Knight, began clearing the lot in preparation of construction. Although Bloomfield, Sr. left a power of attorney with his son Rick Bloomfield to enable him to close on the lot in his father’s absence, the accident occurred before the sale could take place.

As a result of the rupture, adjoining lot owners Tim and Ashley McAuliffe (“McAuliffes”) brought various claims against Seaway, ARCO, Knight, Custom Homes, Walcott, and those they asserted were involved in the development of the subdivision and sale of the lot: Hanley, Aledo, Chambers, and Annetta. Seaway asserted cross-claims against the existing defendants (except ARCO), added third party defendants, including Bloomfield, Sr., and settled with the McAuliffes. The claims between the McAuliffes and all other parties were severed, leaving only Seaway’s cross-claims and third-party claims in this cause.

Seaway asserted that Hanley, Aledo, Chambers, and Annetta were liable for negligence and gross negligence in (1) platting the lot so that the pipeline was situated in the front of the lot, (2) mislocat-ing the pipeline easement on the recorded plat of the subdivision, (3) publicizing a sales map without reference to or otherwise indicating the existence of the pipeline, and (4) failing to warn others of the existence, location, and depth of the pipeline. Seaway claimed that Knight and Wal-cott were Bloomfield, Sr.’s agents, and that Bloomfield, Sr. and Knight were engaged in a joint enterprise with regard to the development and sale of the lot. Seaway also claimed that Bloomfield, Sr., directly and through Knight and Walcott, was (1) negligent; (2) negligent per se for failing to notify Seaway that excavation was to be conducted on the lot, as required by section 251.151 of the Texas Utilities Code; and (3) liable for Seaway’s reasonable and necessary cost of removal, remedial action, and other costs pursuant to section 361.344(a) of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. § 361.344(a) (Vernon 2001).

Hanley and Bloomfield, Sr. filed individual no-evidence motions for summary judgment, Aledo filed a motion combining traditional and no-evidence grounds, and Chambers and Annetta (“Chambers/An-netta”) filed a joint motion also combining traditional and no-evidence grounds. In response to Seaway’s answer, Hanley filed detailed objections directed to each of the exhibits Seaway offered as summary judgment evidence. Likewise, Bloomfield, Sr. objected to the affidavit of Kathy Berry, a former ARCO employee, and the “Background” section in Seaway’s summary judgment response, claiming it made factual statements that were unsupported by the evidence.

The trial court (1) granted each of appel-lees’ motions for summary judgment; (2) sustained, in some part, each of Hanley’s objections to the summary judgment evi-denee offered by Seaway; (3) sustained Bloomfield’s objections to Berry’s affidavit and the “Background” section of Seaway’s response; (4) severed Seaway’s claims against the other defendants, including Knight, Sean Knight Custom Homes, and Walcott, who did not obtain summary judgment; and (5) entered a final take-nothing judgment in favor of appellees. In two issues, Seaway claims the trial court erred in granting appellees’ motions for summary judgment and in striking Berry’s affidavit.

STANDARD OF REVIEW FOR NO-EVIDENCE MOTION

After an adequate time for discovery, the party without the burden of proof may, ■without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The purpose of the rule requiring specificity in a motion for summary judgment is to provide the opposing party with adequate information for opposing the motion and to define the issues. Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex.App.-Austin 1995, writ denied). The specificity requirement is satisfied if the grounds in the motion give “fair notice” to the nonmovant. Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194 (Tex.App.-Amarillo 1999, pet. denied). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

HANLEY’S SUMMARY JUDGMENT MOTION

Seaway challenges the form of Hanley’s no-evidence motion for summary judgment. Specifically, Seaway claims that Hanley’s motion did not require it to produce summary judgment evidence as to any element of negligence because Han-ley’s motion only “challenged negligence generally and did not specifically state the elements for which there is no evidence,” and to the extent Hanley’s motion challenged specific facts or the evidentiary components of an element, it was also deficient.

Indisputably, the common law doctrine of negligence consists of three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 465 (Tex.App.-Fort Worth 2002, no pet.). Here, Hanley’s motion for summary judgment states, in part, that there is no evidence of legal duty or proximate cause. Therefore, Hanley’s motion was proper and required Seaway to produce summary judgment evidence that raised a genuine issue of material fact as to the elements of duty and proximate cause. Tex.R. Civ. P. 166a(i); Grant, 73 S.W.3d at 215.

While Seaway presented summary judgment evidence below, the trial court sustained Hanley’s objections to that evidence. Therefore, before discussing whether it produced more than a scintilla of probative summary judgment evidence, Seaway had to explain why the trial court erred in striking its evidence. However, Seaway failed to discuss the trial court’s order in its brief. Therefore, because Seaway failed to challenge the trial court’s order, Seaway is left with no evidence on appeal that would raise a genuine issue of material fact regarding its claims against Hanley. See Tex.R.App. P. 38.1(e) (“The brief must state concisely all issues or points presented for review.”).

Belatedly, Seaway argues in its reply brief that Rule 38.1(e) of the Texas Rules of Appellate Procedure mandates that its challenge to the trial court’s grant of summary judgment be treated as a challenge to the trial court’s separate order striking Seaway’s summary judgment evidence, and thus it did not need to raise a separate issue regarding the trial court’s order striking its summary judgment evidence. See id. (stating an appellate issue “will be treated as covering every subsidiary question that is fairly included”). Seaway, however, cites no case law supporting this proposition. Moreover, Seaway’s second issue on appeal is contrary to this proposition. In its second issue, Seaway does raise a separate argument regarding the trial court’s exclusion of one of Seaway’s affidavits that was offered as summary judgment evidence against Bloomfield, Sr., unlike its contentions regarding the summary judgment it offered against Hanley. Finally, for the first time on appeal, Seaway attempts to complain of the trial court’s order in its reply brief, but it furnishes no authorities in support of its contentions. Under this state of the record, we will not consider these matters on appeal. See Tex.R.App. P. 38.1(e), (h); Triad Home Renovators, Inc. v. Dickey, 15 S.W.3d 142, 146 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Accordingly, in regard to Hanley’s no-evidence summary judgment, we overrule Seaway’s first issue.

BLOOMFIELD’S SUMMARY JUDGMENT MOTION

As with Hanley, Seaway challenges the form of Bloomfield’s no-evidence motion arguing that Bloomfield, Sr. did not specify which elements of Seaway’s negligence, negligence per se, and Texas Solid Waste Disposal Act (“SWDA”) claims lacked evidentiary support. However, a simple reading of Bloomfield, Sr.’s motion for summary judgment shows that he asserted that there was no evidence that (1) he had a duty or that he breached his duty as a landowner; (2) he breached a duty imposed on him by statute; or (3) he was subject to the SWDA because he does not fit the definition of a “person responsible for solid waste” under the SWDA. Therefore, in regard to Seaway’s negligence claims, Bloomfield, Sr.’s motion required Seaway to produce summary judgment evidence that raised a general issue of material fact as to duty and breach. See Tex.R. Civ. P. 166a(i). In regard to Seaway’s claim of negligence per se under section 251.151 of the Texas Utilities Code, Seaway was required to produce summary judgment evidence that raised a general issue of material fact as to Bloomfield, Sr.’s breach of the duty. See id. Finally, in regard to Seaway’s claim under the SWDA, Seaway was required to produce summary judgment evidence that raised a genuine issue of material fact regarding whether Bloomfield, Sr. is a person responsible for solid waste under the SWDA. See id.

I. NEGLIGENCE

Regarding its negligence claims, Seaway asserted that a genuine issue of material fact exists as to whether Bloomfield, Sr., directly and through Knight and Walcott, breached the following duties: (1) exercising ordinary reasonable care in attempting to develop the lot; (2) making reasonable efforts to investigate and determine the existence, location, and depth of the pipeline on the lot in order to ensure that it was not disturbed during development of the lot; (3) notifying all persons who were going to perform development and construction activities on the lot of the existence, location, and depth of the pipeline; (4) providing proper and adequate supervision of Walcott during development activities on the lot; and (5) using ordinary care to keep the lot in a safe condition.

Seaway failed to present any summary judgment evidence showing that Bloomfield, Sr. authorized or was even aware of Knight’s and Walcott’s development of the lot. Therefore, all of Bloomfield, Sr.’s alleged breaches of duty, except Bloomfield, Sr.’s duty to use ordinary care in keeping the lot in a safe condition, hinge on Bloomfield, Sr.’s negligence through Knight and Walcott during the development of the lot. Accordingly, we will first address whether Seaway presented some probative summary judgment evidence that raised a genuine issue of material fact as to whether Bloomfield, Sr.’s relationship with Knight or Walcott created a duty that he breached during the development of the lot. Then, we will turn to Bloomfield, Sr.’s direct liability and determine if Seaway presented some probative summary judgment evidence that raised a genuine issue of material fact that Bloomfield, Sr. breached his duty to use ordinary care to keep the lot safe.

A. Bloomfield’s Relationship with Knight and Walcott

Seaway contends that Bloomfield, Sr. was engaged in a joint enterprise with Knight to develop and sell the lot and therefore was liable for Knight’s negligent acts committed in developing the lot, including exercising reasonable control over Walcott. Under Texas law, a joint enterprise signifies a legal relationship between two or more parties that imposes the responsibility upon each party for the negligent acts of the others while acting in furtherance of their common undertaking. See Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex.1974). A joint enterprise is established when the parties involved have (1) an agreement, expressed or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that common purpose; and (4) an equal right to direct and control the enterprise. Id. at 15-17; Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 272 (Tex.App.-Fort Worth 2001, pet. denied).

While Seaway’s response correctly lays out the elements required to establish a joint enterprise, it fails to adequately connect the summary judgment evidence it presented to the specific elements. Instead, Seaway generally asserts that “[it] presented sufficient summary judgment evidence establishing that Bloomfield[, Sr.] engaged in a joint enterprise with Knight and Knight Custom Homes in order to develop and sell [the lot].” Specifically, Seaway argues that the evidence indicates that Bloomfield, Sr. and Knight were offering the lot and Knight’s building services in one package.

1. Deposition Testimony

To support its joint enterprise theory, Seaway points to the deposition testimony of Bloomfield, Sr., Knight, Tim McAuliffe, an adjoining landowner, and Shelia Mitchell, an employee of ARCO. Their deposition testimony shows the following: (1) Bloomfield, Sr. purchased the lot on November 17, 1998; (2) Bloomfield, Sr. let Knight know that lot was available, that he wanted $42,000, and he’d sell it to anybody that had $42,000; (3) Bloomfield, Sr. asked Knight, and no one else, to try to find a buyer because Knight worked in that general area and he had the greatest potential of running across somebody that might buy the lot; (4) McAulifee saw a Knight Custom Home sign on the lot beginning in October or November of 1998; (5) Bloomfield, Sr. had been to the lot six or seven times before the rupture; (6) Knight told Bloomfield, Sr. that he had found buyers (the McWeeneys) that were willing to pay Bloomfield, Sr.’s asking price; (7) the only contact Bloomfield, Sr. had with the McWeeneys was through Knight’s office; (8) Bloomfield, Sr. still owned the lot when the McWeeneys hired Knight to build a house on the lot a week or two before the rupture on April 5, 1999; and (9) after the rupture, Bloomfield, Sr. asked Mitchell how long it would take for the property to be cleaned up and said something about wanting to build on the lot, which made Mitchell assume that he personally wanted to build on the lot.

Because we find it dispositive, we focus our analysis on whether the parties in this case had a community of pecuniary interest. In determining whether evidence of a community of pecuniary interest exists, the Texas Supreme Court has “focused upon evidence showing pooling of efforts and monetary resources between entities to achieve common purpose, namely reduction in costs and contemplation of economic gain by approaching the project as a joint undertaking.” Blackburn, 58 S.W.3d at 276 (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 614 (Tex.2000)). Here, there was no evidence of a sharing of resources, pooling of funds, monetary investment, costs or benefits between Bloomfield, Sr. and Knight. Instead, the evidence shows “[njothing more than limited evidence of mere convenience to the parties arising from the arrangement and a shared general business interest,” which is insufficient to establish a joint enterprise. Id. at 277. Therefore, Seaway failed to present evidence to raise a genuine issue of material fact that Bloomfield, Sr. was engaged in a joint enterprise with Knight to develop and sell the lot. Accordingly, Bloomfield, Sr. cannot be held liable under a joint enterprise theory for Knight’s or Walcott’s negligent acts.

2. Berry’s Affidavit

In its second issue, Seaway claims the trial court erred by striking Berry’s affidavit, which Seaway offered as summary judgment evidence of agency and joint enterprise between Bloomfield, Sr. and Knight. The affidavit reads in relevant part:

Shortly after the pipeline rupture occurred, I traveled to Parker County, Texas to review the pipeline rupture events and assist with various site investigations and clean-up activities. After the incident occurred, I received a telephone call from [Bloomfield, Sr.]. [Bloomfield, Sr.] was calling to get information about the pipeline rupture and clean-up activities and explained he had been out of the country at the time the pipeline had been ruptured. During the conversation, [Bloomfield, Sr.] specifically asked me when the clean-up activities would be completed because he was anxious to have construction resumed at the property. [Bloomfield, Sr.] indicated he was involved, with his son-in-law, Sean Knight, in the development of this property.

Bloomfield, Sr. objected to the affidavit, arguing that it was based on conclusory statements by an interested party which were unsubstantiated and contained Berry’s opinions and subjective beliefs. Specifically, Bloomfield, Sr. argued that Berry’s affidavit did not state what Bloomfield, Sr. did to “indicate” that he and Knight were involved in the development of the lot. Additionally, Bloomfield, Sr. complained that the affidavit was produced approximately one year and four months after Seaway’s third-party petition was filed and after the conclusion of the discovery period in this case. The trial court sustained Bloomfield, Sr.’s objections and struck the affidavit.

We review a trial court’s rulings in admitting or excluding evidence under an abuse of discretion standard. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). To be competent summary judgment evidence, an affidavit must be based on personal knowledge, set forth facts admissible in evidence, and affirmatively show the affiant’s competency to testify as to the matters stated therein. Tex.R. Crv. P. 166a(f). Texas case law holds that unsupported conclusory statements are not credible and are not susceptible to being readily controverted, and as a result are not proper summary judgment evidence. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no writ).

Berry’s affidavit is such a statement. Whereas a sentence in the affidavit explains that Bloomfield, Sr. “specifically asked” a question related to the clean-up of the lot, nothing in the following sentence sets forth the facts to support what Bloomfield, Sr. did to “indicate” that he was involved with Knight in developing the property. Moreover, concluding that Bloomfield, Sr. and Knight were “involved” in developing the lot provides no certainty as to what Bloomfield, Sr. actually told Berry his relationship was with Knight. In fact, subdivision developers are always “involved” with both builders and home buyers to the extent the sales of lots are in conjunction with builders, home buyers, or both, but this does not make them joint entrepreneurs. Therefore, the trial court did not abuse its discretion when it struck the affidavit. We overrule Seaway’s second issue challenging the trial court’s order striking Berry’s affidavit.

B. Bloomfield, Sr.’s Duty to Use Ordinary Care to Keep the Lot Safe

Turning from Bloomfield, Sr.’s liability through Knight and Walcott, we must now determine if Seaway presented some probative summary judgment evidence that Bloomfield, Sr. personally breached his duty as a landowner. As a landowner, Bloomfield, Sr.’s only duty was to use reasonable care in keeping his land in a safe condition. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty to keep the premises in a safe condition subjects a landowner to direct liability for negligence in two situations: (1) those arising from a premises defect and (2) those arising from an activity or instrumentality on the land. Id. Whether a duty exists is a question of law for the court to decide based on the facts and circumstances. Golden Spread Council, Inc. # 562 of the Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289 (Tex.1996).

In its response to Bloomfield, Sr.’s no-evidence summary judgment, Seaway claims Bloomfield, Sr. is liable under both situations. However, in its appellate brief, Seaway asserts that its negligence claim was not based on premises defects and that this is not a premises-defect case with respect to Bloomfield, Sr.’s actions or omissions. Instead, Seaway argues that the holding in Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691 (Tex.1967), places a duty on Bloomfield, Sr. arising from “his activities on the [l]ot.”

In Phillips, an employee of an excavator was injured when a bulldozer operated by his employer hit and ruptured a buried pipeline. Id. at 692. The injured employee brought a lawsuit against Phillips, the pipeline Operator, for its negligence in failing to properly inspect and warn of the presence of the pipeline. Id. The Texas Supreme Court held that a person excavating or digging up the surface owes a initial duty to make a reasonable effort to determine the location of known pipelines in order to avoid contact with them. Id. at 694-96. The court concluded that Phillips’s duty to prevent contact between its pipeline and heavy construction equipment by marking or giving warning of the pipeline only would arise only if it were once it is notified that an extraordinary or damaging use would be made of the surface near its pipeline. Id. at 695-96. Here, Seaway presented evidence showing Bloomfield, Sr. was aware of the pipeline, but it failed to present evidence showing that Bloomfield, Sr. was aware of Knight’s or Wal-cott’s activities on the surface which resulted in the rupture. Therefore, Seaway failed to present evidence raising a genuine issue of material fact that Bloomfield, Sr. did anything on the lot that created a duty under Phillips. See id. After considering the foregoing and concluding that Seaway withdrew its earlier claim of a premises defect, Seaway failed to present evidence raising a genuine issue of material fact regarding its claims of negligence against Bloomfield, Sr. as a landowner. Therefore, having determined that there was no evidence of a relationship between Bloomfield, Sr. and Knight, or that Bloomfield, Sr. breached his duty to keep the lot safe, we overrule Seaway’s first issue in regard to its negligence claims.

II. NEGLIGENCE PER SE

In order to maintain its negligence per se claim against Bloomfield, Sr., Seaway was required to bring forward some probative evidence that raised a genuine issue of material fact on whether Bloomfield, Sr. breached a duty imposed by section 251.151 of the Texas Utilities Code. See Tex.R. Civ. P. 166a(i). Section 251.151 provides as follows:

[A] person who intends to excavate shall notify a notification center not earlier than the 14th day before the date the excavation is to begin or later that the 48th hour before the time the excavation is to begin, excluding Saturdays, Sundays, and legal holidays.

TEX. UTIL. CODE ANN. § 251.151(a). Seaway argues section 251.151 imposed a duty on Bloomfield, Sr. to notify Seaway that he or Knight and Walcott intended to conduct excavation work on the lot and that Bloomfield, Sr.’s unexcused violation of the statute constituted negligence per se.

In support of its contentions, Seaway points to the deposition testimony of Wal-cott and Knight. In Walcott’s deposition, he testified that he was unaware that the pipeline existed and in his previous dealings with Knight, he relied on Knight to notify him of any pipelines or underground utilities. Similarly, Knight testified that it was normally his responsibility to call and locate the pipeline and utilities on the property and then to inform Walcott of their location.

However, Seaway failed to present evidence that Bloomfield, Sr. knew of the excavation or gave anyone permission to conduct the excavation, or, as previously discussed, that a joint enterprise existed or that Walcott was his agent, employee, or independent contractor. As a result, there is no evidence raising a genuine issue of material fact that Bloomfield, Sr. breached a duty imposed on him by section 251.151. See Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972) (stating that a person’s violation of a statute is not negligence per se if he neither knows nor should know of the occasion for compliance with the statute). Accordingly, in regard to Seaway’s negligence per se claim, we overrule its first issue.

III. TEXAS SOLID WASTE DISPOSAL ACT

In order to maintain its SWDA claim against Bloomfield, Sr., Seaway was required to bring forward some probative evidence that raised a genuine issue of material fact on whether Bloomfield, Sr. is a person responsible for solid waste under the SWDA. See Tex. Health & Safety Code Ann. §§ 361.271, 361.344; Moore, 981 S.W.2d at 269. The only evidence that Seaway offered was Bloomfield, Sr.’s deposition testimony that he owned the lot at the time of the gasoline pipeline rupture and that he still owns the lot.

Under the SWDA, a person is responsible for solid waste if the person is an owner or operator of a “solid waste facility.” Tex. Health & Safety Code Ann. § 361.271(a)(1). “Solid waste facility” is defined to include all contiguous land, including all structures, appurtenances, and other improvements, “used for processing, storing, or disposing of solid waste.” Id. § 361.003(36). “Processing” includes “the transfer” of solid waste “for reuse or disposal.” Id. § 361.003(25). “Disposing” is not defined in the statute; however, “disposal” is defined as the discharging, depositing, injecting, dumping, spilling, leaking, or placing of solid waste or hazardous waste. Id. § 361.003(7).

Beyond the statutory definitions, the Texas courts that have dealt with the SWDA have not fully addressed who qualifies as a person responsible for solid waste. R.R. St. & Co., Inc. v. Pilgrim Enters. Inc., 81 S.W.3d 276, 290 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Compton v. Texaco, Inc., 42 S.W.3d 354, 360 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Therefore, this is an issue of first impression. In construing the SWDA, our objective is to determine and give effect to the intent of the legislature. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998); R.R. St., 81 S.W.3d at 288. In doing so, we begin with the statute’s plain language because we assume that the legislature tried to say what it meant and, thus, that its words are the surest guide to its intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We also consider the entire act, its nature and object, and the consequences that would follow from each construction. See Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex.1999). We presume the legislature intended a just and reasonable result in enacting a statute. In re D.R.L.M., 84 S.W.3d 281, 290 (Tex.App.-Fort Worth 2002, pet. denied).

Here, Seaway failed to raise a genuine issüe of material fact regarding whether Bloomfield, Sr. owned or operated any land used for processing, storing, or disposing of solid waste. While Seaway points to evidence showing that the ruptured pipeline ran through Bloomfield, Sr.’s subdivided lot, Seaway failed to present any evidence showing how Bloomfield, Sr. was liable under the SWDA when Seaway owned the pipeline and the easement on which it is buried. Moreover, it is unfathomable that the legislature intended every residential landowner in Texas who has a pipeline easement running underneath their property to be considered an owner and operator of a “solid waste facility.” Accordingly, in regard to Seaway’s claim under the SWDA, we overrule its first issue.

ALEDO’S AND CHAMBERS/ANNET-TA’S SUMMARY JUDGMENT MOTIONS

In its petition, Seaway claimed that the “developers,” Aledo, Chambers, and An-netta (“Aledo/Chambers/Annetta”) breached the following duties: (1) platting the lot so that the pipeline was not situated in the front of the lot, (2) failing to accurately locate the pipeline easement on the recorded plat of the subdivision, (3) publicizing a sales map without reference to or otherwise indicating the existence of the pipeline, and (4) failing to warn those that purchased and planned to build on the lot of the existence, location, and depth of the pipeline. Aledo/Chambers/Annetta’s summary judgment motions asserted both traditional and no-evidence grounds. In their traditional grounds, they asserted that their summary judgment evidence negated the negligence elements of duty and causation. Chambers/Annetta’s traditional grounds also attempted to negate gross negligence. As a result of their no-evidence motion, Aledo/Chambers/Annetta required Seaway to raise a genuine issue of material fact as to the negligence elements of duty and causation, as well as the gross negligence element of malice. The trial court granted both motions without specifying the ground upon which its judgment was based. Because we find it dispositive, we focus our analysis on whether Seaway produced sufficient summary judgment evidence that raised a genuine issue of material fact as to causation.

I. PROXIMATE CAUSE

To prevail on a negligence claim, a plaintiff must prove that the defendant’s act or failure to act was a proximate cause of the plaintiffs injury. First Assembly of God, Inc. v. Tex. Util. Elec. Co., 52 S.W.3d 482, 491 (Tex.App.-Dallas 2001, no pet.). There are two elements of proximate cause: cause-in-fact and foreseeability. Id. at 493. “Cause-in-fact” means the act or omission was a substantial factor in producing the injury and, without it, the harm would not have occurred. Id. “Foreseeability” means the actor, as a person of ordinary intelligence, should have anticipated the danger to others created by his act. Id.

A. Platting the Lot

First, Seaway claims that the “developers” caused the rupture by platting the lot so that the pipeline crossed the front of the lot. In support of this assertion, Seaway’s answers conclude, “[h]ad the subdivision been platted in a reasonable and prudent manner so as to have the [pipeline pass through a green space or the rear or side of the lots, this incident would not have occurred.” In other words, Seaway claims that “but for” the lot being platted so that the pipeline was under the front yard, the rupture would not have occurred. In support of its conclusion, Seaway cites to several pages of the deposition testimony of Coy Garrett, Seaway’s expert. Additionally, Seaway concludes that “the evidence also established] that damages caused by [the developers’] negligence were foreseeable,” again citing to Garrett’s deposition testimony.

Having reviewed those sections of Garrett’s testimony, we conclude that Seaway has failed to present evidence raising a genuine issue of material fact that (1) the developers’ platting of the lot so that the pipeline ran under the front of the lot as opposed to the back or sides was a proximate cause of the rupture or (2) the developers could have foreseen the rupture. The closest Seaway came to cause-in-fact testimony was when Garrett testified, based on his rough sketches of the development with the pipeline on the sides or back of the lots, that had Walcott dug a hole in “the front” of the lots as he testified they should have been configured, Walcott would not have hit the pipeline. However, Garrett’s testimony assumes that Walcott would have dug in “the front” of the lot no matter which part of the lot “the front” was. Furthermore, there is no evidence why Walcott decided to dig in the front part of the lot, and there is no evidence that he would have dug in the same location if the lot had been configured differently. Therefore, Garrett’s assumption is not a reasonable inference from the evidence and does not constitute competent summary judgment evidence. See Tex.R. Evm 703, 705(c). Accordingly, there is no evidence showing that but for the developers platting the pipeline in the front of the lot, Walcott would not have hit the pipeline.

In regard to foreseeability, Garrett testified that it was reasonably foreseeable for Walcott or someone like him to dig in the front of the lot. However, Seaway was required to raise some evidence that the harm was foreseeable, not simply that the act that led to the harm was forseeable. See First Assembly of God, 52 S.W.3d at 491. While there is evidence that the developers could have foreseen construction activities taking place in the front of the lot where the pipeline was located, Seaway offered no evidence that the developers could have foreseen that Walcott would bury rocks in the front of the lot, ignore the pipeline' markers, and violate the statutory mandate to call the one-call number in order to determine the pipeline’s location before digging. Accordingly, there is no evidence showing that the developers could have foreseen the rupture. ,

B. Failing to Locate the Pipeline Easement on the Recorded Plat

Next, Seaway asserts that the developers caused the rupture by failing to accurately locate the pipeline easement on the recorded plat. However, Seaway failed to present any evidence that Knight or Walcott relied on the plat to locate the pipeline easement. Therefore, Seaway has presented no evidence of a cause-in-fact between the alleged error on the plat and-the pipeline rupture.

C. Publicizing a Sales Map Without Referencing the Pipeline Easement

Finally, Seaway alleged that the developers caused the rupture by publicizing a sales map to all potential purchasers without referring to or otherwise indicating the existence of the pipeline. In support of this argument, Seaway points to summary judgment evidence showing that (1) the McWeeneys gave a sales map to Charles Wilkes, a residential designer hired by the McWeeneys; (2) Wilkes used the sales map to draft a site plan; and (3) Knight eventually gave the site plan to Walcott. In other words, Seaway argues that but for the sales map omitting the pipeline, Wilkes would have included the pipeline in the site map and Walcott would have been aware of the pipe. ' However, Seaway fails to present any evidence that the sales map Wilkes used to draft the site plan was the sales map for the lot at issue (lot 26). In fact, the evidence show just the opposite; the sales map the McWee-neys gave Wilkes and on which he based his site plan was for a different lot (lot 29) that did not have a pipeline easement. Accordingly, Seaway has presented no evidence of a cause-in-fact between the omission of the pipeline on the sales map and the pipeline rupture.

Having concluded that Seaway failed to present sufficient evidence raising a genuine issue of material fact as to each of its negligence claims against the developers, we overrule Seaway’s first point in regard to its negligence claims against the developers.

II. GROSS NEGLIGENCE

In their summary judgment motions, the developers claim that there is no evidence that they acted maliciously. However, it is unnecessary to determine if Seaway presented some evidence raising a genuine issue as to malice because we have held that it failed to provide some evidence of negligence; thus, Seaway is not entitled to recover damages for gross negligence. See Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949-50 (Tex.App.-Austin 1990, writ denied) (holding that one’s conduct cannot be grossly negligent without being negligent); Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 752 (Tex.App.-Fort Worth 1998, no pet.) (citing Trevino for same). Accordingly, in regard to Seaway’s gross negligence claims against the developers, we overrule its first issue.

CONCLUSION

Having overruled Seaway’s issues on appeal, we affirm the judgment of the trial court.

      . Hanley owns Aledo. Primarily, Aledo’s work consisted of building the roads and water, sewer, and utility lines in the subdivision.

      . Seaway owns the pipeline and the easement on which it is buried, and ARCO Pipeline Company (“ARCO”), who is not a party on appeal, operates the pipeline.

      . Tex. Util.Code Ann. § 251.151 (Vernon Supp. 2004-05).

      . To the extent Seaway claimed that Hanley, Aledo, Chambers, and Annetta were liable under the Texas Health and Safety Code, Seaway does not contest any summary judgment granted as to such claims.

      . Seaway advances its second issue conditionally, stating "the [c]ourt may not need to reach and decide whether this was error because Bloomfield never challenged Seaway to produce evidence upon Bloomfield’s joint enterprise with Knight. If the issue must be reached, it was error to strike Bloomfield’s admission.”

      . See Tex. Health & Safety Code Ann. § 361.344.

      . Seaway also argues that because Bloomfield, Sr. attached and referred to summary judgment evidence, his no-evidence motion should be treated as a traditional motion or the evidence should simply be ignored. In accordance with the instructions of the Texas Supreme Court, we will simply ignore the evidence. See Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.2004) (stating that a no-evidence summary judgment which attaches summary judgment evidence should not be treated as a traditional summary judgment motion).

      . Additionally, Bloomfield, Sr.’s no-evidence summary judgment motion was sufficient to challenge Seaway's claims of negligence committed by Bloomfield, Sr., as well as those claims that could be imputed to him by the actions of Knight or Walcott. See TexR. Civ. P. 166a(i).

      . Tex. UtiiXode Ann. § 251.151.

      . In its answer to Bloomfield, Sr.’s no-evidence summary judgment, Seaway also asserts that Walcott was an agent and employee of Bloomfield, Sr. However, Seaway fails to address this issue in its brief. In the interest of justice, we will briefly discuss the merits of the summary judgment as to that issue. Under the agency theory, "the right to control” test is typically applied. Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 733 (Tex.App.-Fort Worth 2001, no pet.). Under this test, the court examines whether the alleged principal (Bloomfield, Sr.) had the right to determine the details of the agent's (Wal-cott’s) work. See id. It is the extent of the principal’s control over the details of accomplishing the assigned task that primarily distinguishes that status of independent contractor from agent. See id. Here, Seaway failed to present any evidence that Bloomfield, Sr. even knew who Walcott was, much less had the right to direct his work. Moreover, Seaway failed to present any evidence that would raise a genuine issue of material fact as to an independent contractor relationship between Bloomfield, Sr. and Walcott. See Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 602-03 (1961). Therefore, Seaway presented no evidence that Walcott was an agent, employee, or independent contractor of Bloomfield, Sr.

      . In addition to this deposition testimony, Seaway points to the affidavit of Berry, which the trial court later stuck pursuant to Bloomfield, Sr.’s objection. In the following section, we discuss Seaway’s second issue challenging the trial court’s decision to strike the affidavit.

      . Seaway also contends, without citing to the record, that Bloomfield, Sr.’s deposition testimony establishes that he also failed to notify Seaway and/or ARCO of the excavation. However, Bloomfield, Sr.'s deposition testimony reflects that (1) he was in the Philippines when the accident occurred, (2) he had not given anyone permission to conduct activities on his land, (3) he was not a part of Knight’s business and therefore not aware that Knight had been hired by prospective buyers to build a house on the lot subsequent to the closing, (4) Walcott, whom he did not know, was a trespasser who entered onto Bloomfield, Sr.'s land without his permission, and (5) Walcott was not in the performance of any duties for Bloomfield, Sr.

      . At oral argument, Seaway conceded that it no longer pursued its claim regarding the developers’ failure to warn.

      . According to Wilkes's deposition testimony, a site plan is not used for building purposes, but is a preliminary document used by builders solely to price the cost of constructing a new home and provide their clients with an intelligent budget, d provide their clients with an intelligent budget.