text:
    BASF FINA PETROCHEMICALS LIMITED PARTNERSHIP, Atofina Petrochemicals, Inc., and BASF Corporation, Appellants, v. H.B. ZACHRY COMPANY and Zachry Construction Corporation, Appellees.
    No. 01-03-00723-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 18, 2004.

      Osborne J. Dykes, III, Terriann Trostle, Fulbright & Jaworski L.L.P., Houston, TX, for Appellants.
    Barrett H. Reasoner, Gibbs & Bruns, L.L.P., Stephen D. Susman, J. Hoke Peacock, III, Susman Godfrey, L.L.P., Robin C. Gibbs, Gibbs & Bruns, L.L.P., Houston, TX, for Appellees.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TERRY JENNINGS, Justice.

Appellants, BASF FINA Petrochemicals Limited Partnership (BFLP), ATOFINA Petrochemicals, Inc. (ATOFINA), and BASF Corporation (BASF), who were not parties to the underlying suit, challenge the trial court’s order awarding BFLP its costs for producing documents and other discovery materials to appellees, H.B. Za-chry Company and Zachry Construction Corporation (collectively Zachry), but denying BFLP’s request for reimbursement of its attorneys’ fees incurred in the production of these materials.

In two issues, BFLP contends that the trial court erred in denying BFLP’s request for reimbursement of the attorneys’ fees it incurred in producing documents and other materials in response to Za-chry’s subpoenas because the Texas Rules of Civil Procedure require a party to reimburse a nonparty for the nonparty’s “reasonable costs of production,” under rule 205.3(f), and permit a trial court to “impose reasonable conditions on compliance with a subpoena,” including ordering compensation for “undue hardship,” under rule 176.7.

We affirm.

Factual and Procedural Background

BASF and ATOFINA are joint ventur-ers in BFLP and own a large ethylene plant located in Port Arthur, Texas. In 1998, BASF and ATOFINA had contracted with ABB Lummus Global, Inc. (ABB Lummus) for the construction of the plant. Problems in the construction of the plant were the subject of the underlying lawsuit filed in June 2001 by Zachry, a subcontractor, against ABB Lummus, the general contractor. BASF, ATOFINA, and BFLP (hereafter, collectively BFLP) were not parties to the lawsuit.

In April 2002, Zachry served a subpoena on BFLP seeking the production of 41 categories of documents, electronic data, and other material related to the construction and performance of the plant. BFLP and Zachry subsequently agreed to narrow the scope of the subpoena to 14 categories of material within BFLP’s files and the personal files of eight individuals connected with the plant construction project. BFLP and Zachry also agreed to maintain the confidentiality and to limit the disclosure of any material produced. In September 2002, Zachry served BFLP with a second subpoena seeking the production of an additional 13 categories of documents and electronic data. In response to the subpoenas served on it by Zachry, BFLP produced, among other items, approximately 165 boxes of documents, 30,000 email messages and attachments, 70 megabytes of e-mail data, and 8,000 spreadsheets.

BFLP also filed two motions for costs, requesting that, pursuant to rules 205.3(f) and 176.7, the trial court order Zachry to reimburse BFLP for both its legal fees and its costs incurred in gathering, reviewing, and producing the documents and other materials. BFLP did not seek to recover attorneys’ fees it incurred for the preparation and filing of its objections and motions or for the arguments of its attorneys at the several hearings before the trial court. In March 2003, the trial court ordered Zachry to pay BFLP $32,338.29 as reimbursement for its costs of production, but denied BFLP’s request for $249,234.50 in attorneys’ fees. In its order, the trial court explained the basis for its ruling as follows:

After considering such motions and responses, the authorities cited, and the arguments of counsel, the Court was of the opinion that such motions should be granted in part, but that [BFLPj’s attorney fees should not be awarded because the Texas Rules of Civil Procedure do not authorize the Court to award [BFLP] attorney fees under Rules 205.3(f) or 176.7.

BFLP then filed a motion for rehearing of its motions for costs, which the trial court denied. Zachry and ABB Lummus subsequently settled their dispute and, on June 4, 2003, the trial court signed an order of dismissal that “fully and finally resolv[ed] and release[d]” all pending claims in this lawsuit.

Standing

We first address the issue of whether BFLP, who was not a party in the underlying lawsuit, may challenge, by direct appeal, the trial court’s order denying BFLP’s request for its attorneys’ fees incurred in the production of documents subpoenaed by Zachry, who was a party.

It is well-established that “an appeal can generally only be brought by a named party to the suit.” City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754 (Tex.2003). However, there are exceptions to the general rule, including the doctrine of virtual representation. Id. at 754-55. Under this doctrine, an appellant may be deemed a party when “(1) it is bound by the judgment; (2) its privity of estate, title, or interest appears from the record; and (3) there is an identity of interest between the appellant and a party to the judgment.” Id. (quoting Motor Vehicle Bd. of the Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 110 (Tex.1999)). The Texas Supreme Court has noted that, in determining whether an appellant should be considered a “party” for purposes of appeal, “the most important consideration is whether the appellant is bound by the judgment.” Rio Grande Valley Gas Co., 109 S.W.3d at 755.

BFLP’s position and the circumstances presented here are analogous to the factors considered in Rio Grande Valley Gas. Although BFLP is not in “privity of interest” with any party to the final order of dismissal, BFLP’s interests were directly represented by its own counsel in the trial court and it is, in effect, “bound” by the trial court’s final order of dismissal, in that BFLP cannot independently seek recovery of its attorneys’ fees from Zachry in a subsequent lawsuit. Had the trial court ordered Zachry to pay the fees sought by BFLP, Zachry undisputedly would have had the right to seek appellate review of that ruling upon the entry of a final judgment.

Moreover, under the particular circumstances presented here, to conclude otherwise would leave BFLP, and other similarly situated nonparties, with no legal remedy. Shortly after the trial court signed its order denying BFLP’s request for attorneys’ fees, BFLP filed a petition for writ of mandamus in this Court. Pri- or to this Court’s consideration of that petition, the parties to the underlying lawsuit settled their dispute, and, as noted above, in June 2003, the trial court signed an order of dismissal that “fully and finally resolv[ed] and release[d]” all pending claims. The trial court’s plenary power to vacate, modify, correct, or reform its judgment has now expired, and we may not issue a writ commanding the trial court to perform a void act. Accordingly, we hold that, based on the circumstances presented in this case, BFLP has standing to challenge the trial court’s order by direct appeal.

Standard of Review

The trial court’s interpretation of rules 205.3(f) and 176.7 presents a question of law that we review de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999) (per curiam) (“The availability of attorney’s fees under a particular statute is a question of law for the court.”); see Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). We apply the same rules of construction to the Rules of Civil Procedure as we apply to statutes. Bradt, 14 S.W.3d at 762. “When a rule of procedure is clear, unambiguous, and specific, we construe its language according to its literal meaning.” Id.; see Murphy v. Friendswood Dev. Co., 965 S.W.2d 708, 709 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

The Code Construction Act also applies to the interpretation of the Rules of Civil Procedure. Tex. Gov’t Code Ann. § 311.002(4) (Vernon 1998); In re Walkup, 122 S.W.3d 215, 217 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding). The Act provides that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage” and that “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” Tex. Gov’t Code Ann. § 311.011 (Vernon 1998).

With regard to how courts should interpret and apply the Rules of Civil Procedure, rule 1 provides as follows:

The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.

Tex.R. Crv. P. 1.

In its order, the trial court expressly stated that its ruling to deny BFLP’s request for attorneys’ fees was not an exercise of its discretion in applying the Rules of Civil Procedure, but was, instead, based on its conclusion that “the Texas Rules of Civil Procedure do not authorize the Court to award [BFLP] attorney fees under Rules 205.3(f) or 176.7.” Accordingly, we review the trial court’s ruling, based on its interpretation of these rules, de novo.

“Costs of Production”

Rule 205.3(f) states that “[a] party requiring production of documents by a nonparty must reimburse the nonparty’s reasonable costs of production.” Tex.R. Crv. P. 205.3(f) (emphasis added). In its first issue, BFLP contends that the trial court erred in denying BFLP’s request for reimbursement of its attorneys’ fees incurred in responding to Zachry’s subpoenas, because such fees are a “cost of production” within the contemplation of rule 205.3(f) and the ordinary meaning of its language. BFLP sets out its argument as follows:

The plain language of [rule] 205.3(f) commands that Zachry reimburse all the “reasonable costs of production” that BFLP incurred responding to Za-chry’s subpoenas. The rule does not exclude legal fees. Construing the rule liberally to achieve a just, fair, [and] equitable result, as required by [rule] 1, these costs must be reimbursable. Were they not, the rule’s protection would be illusory; the realities of litigation demand that attorneys’ fees will be the dominant expense in most large document productions. Giving the phrase “costs of production” its ordinary meaning, as required by the rules of construction, reasonable legal fees are plainly reimbursable.

We note that the trial court did not make any factual determinations concerning whether the amount of attorneys’ fees requested by BFLP was reasonable. The court simply concluded that, under rule 205.3(f), it was not authorized to award attorneys’ fees.

It is well established that, as between litigants, a prevailing party cannot recover its attorneys’ fees from an opposing party unless permitted by statute or by contract between the parties, and that “[a]n award of attorney’s fees may not be supplied by implication but must be provided for by the express terms of the statute in question.” Holland, 1 S.W.3d at 95 (quoting First City Bank-Farmers Branch v. Guex, 677 S.W.2d 25, 30 (Tex. 1984)). BFLP asserts that, because it was not a party to the underlying lawsuit, these general rules governing the recovery of attorneys’ fees do not apply and that, in determining whether the phrase “costs of production” includes attorneys’ fees, we must accord these words their ordinary, common meaning and, pursuant to rule 1, give them a “liberal construction.”

In support of its contention that the general rules regarding the recovery of attorneys’ fees do not apply to nonparties, BFLP relies on Nationwide Mutual Insurance Company v. Holmes, 842 S.W.2d 335 (Tex.App.-San Antonio 1992, writ denied). In that case, the court of appeals upheld a jury’s damage award of $7,500 in additional attorneys’ fees incurred by an insured whose insurer failed to inform him before trial that it would indemnify him. Id. at 340-42. The Holmes court noted the general rule that attorneys’ fees are not recoverable, but upheld the award “in the name of equitable principles.” Id. at 342. In reaching its holding, the court noted:

The general rule disallowing attorney’s fees applies to attorney’s fees that are incurred while prosecuting or defending a cause of action. In the case at hand, the attorney’s fees were not incurred prosecuting or defending the underlying cause of action. Therefore, this prohibition should not apply. There is nothing sacrosanct about attorney’s fees per se that forbids their award as damages. Instead, attorney’s fees as damages are disallowed generally because our system of American jurisprudence does not award successful litigants their attorney’s fees.

Id. BFLP also relies on cases from other jurisdictions that it asserts indicate that the phrase “costs of production” includes legal fees. See Williams v. City of Dallas, 178 F.R.D. 103, 113-14 (N.D.Tex.1998) (indicating that court would, at some future date, award subpoenaed witnesses their reasonable costs and expenses, including attorneys’ fees, incurred in complying with subpoenas); Letcher v. Wñghtsman, 60 Okla. 14, 158 P. 1152 (1916) (holding that phrase “costs of collection” includes attorneys’ fees).

In contrast, and in support of its contention that the phrase “costs of production” in rule 205.3(f) may not be read to include attorneys’ fees, Zachry relies on Bradford v. Campdera, 581 S.W.2d 501 (Tex.Civ.App.-Eastland 1979, no writ), in which the court of appeals addressed the scope of the phrase “reasonable costs of producing” as that phrase was used within former rule 177a of the Rules of Civil Procedure. That former rule read as follows:

A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other tangible things designated therein; but the court, on motion made seasonably and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion to quash or modify upon the advancement by the person in whose behalf the subpoena is issued, of the reasonable costs of producing the books, papers, documents or tangible things.

Tex.R. Civ. P. 177a (Vernon 1957, repealed 1998) (emphasis added).

Bradford involved a lawsuit over an alleged failure to pay child support. 581 S.W.2d at 502. During the course of the litigation, one of the parties subpoenaed four nonparty witnesses, whose counsel then successfully quashed the subpoenas. Id. As part of its final judgment, the trial court awarded attorneys’ fees to the non-party witnesses to reimburse them for their legal fees incurred in connection with quashing the subpoenas. Id. After reviewing the language of former rule 177a, the court of appeals reversed the trial court’s award of attorneys’ fees and rendered judgment that the nonparty witnesses recover nothing. Id. at 504. The Bradford court explained its reasoning as follows: “A strict construction of the phrase, ‘the reasonable costs of producing the books, papers, documents or tangible things,’ does not authorize an award of attorney’s fees taxed as costs.” Id. at 503-04.

The parties direct us to no cases interpreting rule 205.3(f). However, as noted above, Texas courts have consistently maintained that, in the absence of any authority explicitly authorizing an award of attorneys’ fees, such an award is not recoverable, either against an opposing party or as a “cost of production.” See Holland, 1 S.W.3d at 95; Bradford, 581 S.W.2d at 503-04. In construing the plain language of rule 205.3(f), we may not supply, by implication, an allowance for the recovery of attorney’s fees as a “cost of production.” See Holland, 1 S.W.3d at 95. We may not interpret a rule, even in the name of equitable principles, beyond its specific language, and we decline to read rule 205.3(f) as broadly as urged by BFLP. See Bradt, 14 S.W.3d at 762.

Here, although BFLP, albeit prudently, sought legal advice regarding potentially privileged or confidential documents, the expense of obtaining this advice was incurred to protect the interests of BFLP, not to facilitate compliance with Zachry’s subpoena and the actual production of the documents in question. Such attorney’s fees were not, strictly speaking, “costs of production.” Moreover, we note that, in drafting rule 205.3(f), the Texas Supreme Court was faced with the difficult task of balancing the policy goals of protecting non-parties from incurring burdensome and unnecessary expenses in responding to the discovery requests of litigants and providing litigants with the ability to resolve their dispute by presenting to a neutral fact finder, all evidence, from whatever source, relevant to the dispute. We must presume that, had the Texas Supreme Court intended for nonparties to recover their attorneys’ fees as “costs of production,” it could have expressly provided for the recovery of such fees in rule 205.3(f), just as it had provided for attorneys’ fees elsewhere in the Rules of Civil Procedure pertaining to discovery. See, e.g., Tex.R. Civ. P. 215.2(b)(8), 215.3 (authorizing trial court to impose sanctions for discovery abuse by, among other things, requiring sanctioned party “to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees” of aggrieved party). The fact that the Texas Supreme Court chose not to expressly include such provision gives additional credence to the rationale that we should not supply one by implication. See Holland, 1 S.W.3d at 95.

Accordingly, we hold that the trial court did not err in concluding that it was not authorized to award BFLP its attorneys’ fees under rule 205.3(f). We overrule BFLP’s first issue.

“Undue Burden or Expense”

In its second issue, BFLP argues that the trial court erred in denying its request for reimbursement of its attorneys’ fees because such fees were an “undue burden or expense” or “undue hardship” incurred by BFLP in responding to Zachry’s subpoenas and are reimbursable under the provisions of rule 176.7. That rule provides as follows:

A person causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.

Tex.R. Crv. P. 176.7 (emphasis added).

Here, the trial court did not make any fact findings concerning whether Zachry had taken “reasonable steps” to limit the scope of its subpoenas or whether the subpoenas had imposed an “undue burden or expense” on BFLP. Rather, the trial court concluded that, after having ordered Za-chry to reimburse BFLP for all of its nonlegal costs incurred in responding to the subpoenas, it could do no more.

As with rule 205.3(f), rule 176.7 does not expressly provide for an award of attorneys’ fees to compensate a nonparty for its “undue expense” in responding to a party’s subpoena. Rule 176.7 imposes the same duty on a trial court to protect persons served with subpoenas as that which is embodied in rule 45(c) of the Federal Rules of Civil Procedure. Rule 45(c)(1) provides as follows:

A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.

Fed.R.CivP. 45(c)(1).

Unlike rule 176.7, rule 45(c)(1) provides a federal court with the express authority to impose sanctions, in the form of attorneys’ fees, upon a party who imposes an “undue burden or expense” upon a nonparty whom it has served with a subpoena. Here, however, BFLP does not argue that the trial court erred in not sanctioning Zachry.

For the same reasons stated in connection with our analysis of rule 205.3(f), we hold that, absent express authority to the contrary, the trial court was not authorized to award BFLP its attorneys’ fees under rule 176.7 either as “protection from undue burden or expense” or as compensation for “undue hardship” in complying with a subpoena. See Holland, 1 S.W.3d at 95. As with rule 205.3(f), we must presume that, had the Texas Supreme Court, in drafting rule 176.7, intended for nonparties to recover their attorneys’ fees incurred in complying with a subpoena, it could have expressly provided for the recovery of such fees, especially in light of the inclusion of such pi'ovision in federal rule 45(c)(1). We may not supply such provision by implication. Id.

Accordingly, we hold that the trial court did not err in concluding that it was not authorized to award BFLP its attorneys’ fees under rule 176.7. We overrule BFLP’s second issue.

Conclusion

We affirm the order of the trial court. All pending motions regarding the parties’ briefing to this Court are granted.

      . This order was signed by the Hon. Kathleen Stone, sitting as a visiting judge for the Hon. Elizabeth Ray, the presiding judge of the 165th District Court of Harris County, Texas.

      . Tex.R. Civ. P. 205.3(f).

      . Tex.R. Civ. P. 176.7.

      . See In re BASF FINA Petrochemicals Ltd. P'ship, No. 01-03-00657-CV, 2004 WL 2618361 (Tex.App.-Houston [1st Dist.] Nov. 18, 2004).

      . Tex.R. Civ. P. 329b(d).

      . Because we have held that BFLP has a remedy by direct appeal, we have dismissed the petition for writ of mandamus as moot. In re BASF, No. 01-03-00657-CV, 2004 WL 2618361, slip op. at 2.


source: Caselaw Access Project

author: Opinion by Justice MOSELEY.

license: Public Domain

text:
    In the Interest of S.E.W. and S.A.W., Children.
    No. 05-03-01175-CV.
    Court of Appeals of Texas, Dallas.
    May 19, 2005.
    Rehearing Overruled Aug. 19, 2005.

      Kellye A. Swanda, Arlington, April E. Smith, Mesquite, for appellant.
    Lori L. Ordiway, Asst. Dist. Atty. for Dallas County, Chief of the Appellate Division, Dallas, for appellee.
    Before Justices MOSELEY, BRIDGES, and O’NEILL.
   OPINION

Opinion by Justice MOSELEY.

In this termination of parental rights case, the primary issues are whether an expert witness was qualified to give an opinion as to the results of drug testing of hair samples and whether the opinion was reliable where the expert did not conduct the test or know which of several available tests the laboratory used. Although we conclude the evidence is legally sufficient to support the judgment, we conclude the trial court abused its discretion in admitting the expert’s opinion and the error probably caused the rendition of an improper judgment. We reverse the trial court’s judgment and remand for further proceedings.

After two referrals and an investigation, the Texas Department of Protective and Regulatory Services removed S.E.W. and S.A.W. from Debbie Marien (Mother) and Stefan Geller (Father) and later sought to terminate their parental rights to the children. Based on the jury’s findings that the parents endangered the physical or emotional well-being of the children and that termination was in the children’s best interest, the trial court terminated the parental rights of Mother and Father to their son, S.E.W., and daughter, S.A.W.

BACKGROUND

Mother was married to another man in California when S.E.W. was born. In 2001, Mother, who was pregnant, Father, and S.E.W. were traveling from California to Kentucky to stay with her relatives. On the way, they stopped in Dallas due to Mother’s illness. S.A.W. was born in Dallas on October 28, 2001. The family obtained assistance from a local church, including a baby bed, food, clothing, and other basic items because they did not have anything to care for the new baby. The associate pastor of the church, Steve Hardin, called the Department three days after S.A.W.’s birth because of his concerns about the family’s living conditions— they were staying in a motel in an area known for a high crime rate. The Department investigated and ruled out any abuse or neglect, but told the pastor it would keep the case open.

Later, the family was able to move to a better motel. Hardin continued to provide food and milk, but would not give them cash because Father would spend it on alcohol. Hardin also tried to help Father find work, but Father did not have proper identification. The family spent Thanksgiving with Hardin and his family. Hardin was concerned that Mother appeared glassy-eyed and was unable to care for her children, and might be under the influence of drugs. Hardin’s family took care of the baby while Father was preoccupied with S.E.W., who was 20 months old. Father’s interaction with S.E.W. was tender and appropriate. (There is evidence in the record that Father did not know either child was his until paternity testing was done in this case.)

After Thanksgiving, the family moved again. The clerk of the motel where they were living called Hardin several times about the oldest child being left alone. Hardin confronted Mother about the complaints and she said S.E.W. had been unsupervised but that she was too tired to get up. The family continued to move to different motels.

The manager and clerk of one of the motels testified that several times they saw the oldest child wander out of the room to the office. They would return him to the room. One time, the door to the room was open and Mother was asleep. The clerk testified she did not know about the baby. Father allowed the older child to wander away from the laundry room several times. Each time the child was returned to him, he would become angry and spank the child. The manager said Father handled the child roughly, dragging him by the arm. Other residents complained about Mother and Father begging for money or food, screaming at each other, and using alcohol. Motel employees gave the family money for a while, but stopped after they began to doubt Mother was using the money to buy milk and diapers.

Alma Bradshaw, a resident of the motel, tried to help the family. She first saw Mother standing outside the motel in the rain with the baby. Bradshaw invited Mother in for coffee. When Father came home from work he was drinking whiskey. Bradshaw testified that when the oldest child walked in front of the television, Father told him to move then threw him against the wall. The child then ran to Bradshaw for comfort. Mother, who was drinking tequila in her coffee, did not say anything to Father during the incident. Bradshaw also described an incident where she saw the older child run into the parking lot and Mother dragged him across the pavement by the arm and the leg.

Bradshaw admitted that she had been convicted of sexually abusing a two-year old child almost ten years before trial, that she had been taking psychotropic medications for about twenty years, she had been in numerous mental institutions, and she had mutilated herself and had suicidal thoughts. Her mental health records were admitted in evidence.

Bradshaw testified that both children developed bad rashes because Mother used motel hand towels for diapers and did not change them when wet. Many times, the children were given sugar water instead of milk. Bradshaw also said that Mother often left the children unsupervised while she walked to the store or begged for money. Bradshaw gave the family money to buy milk, but they spent it on cigarettes and alcohol.

Bradshaw contacted the Department in March 2002. During Department interviews, both Mother and Father admitted to using drugs as teenagers, but denied currently using drugs. The Department determined drug testing was necessary to assess the risks to the children. Mother and Father agreed to drug testing, but the collection company was only able to obtain a hair sample from Mother. The Department removed the children after receiving the results of Mother’s test.

After the children were removed, Bradshaw arranged for Mother and Father to move in with Bradshaw’s former foster mother. During this time, Bradshaw saw Father strike Mother. At a later time, police were called about a disturbance between Mother and Father. According to the police officer, Mother said Father threatened to shoot her with a rifle. Mother was hysterical but stated that Father threatened to kill her with the gun. The officer found Father standing by his truck several yards away from the house. Father was initially calm, but became agitated and began shouting profanities at and about Mother. The officer was afraid Father would harm Mother if left alone with her. Father was arrested but later released after Mother signed an affidavit of non-prosecution. Mother told the officer she had been drinking and the officer smelled alcohol on Father.

The Department filed a petition to terminate Mother’s parental rights about three months after removing the children. At that time, the identity of the father of the children was uncertain. After paternity testing determined that Father was the biological father of both children, the Department filed an amended petition to terminate his parental rights to the children.

After the petition was filed against Father, he had an altercation with Bradshaw. Father slashed Bradshaw’s throat with a knife and told her, “This is for you taking my kids away.” Father was awaiting trial on criminal charges relating to this incident at the time of the trial of the termination case.

Mother denied that Father ever threw the older child against the wall, denied ever using hand towels instead of diapers, and denied giving the children sugar water instead of milk. She also denied that Father abused her or that she ever told anyone he was abusive. She said she called the police because she thought Father was going to shoot himself and the police arrested him even though she told them Father had not threatened her. Regarding her positive drug test, Mother claimed that she had been given a cigarette with cocaine in it by another woman. Mother became sick after smoking the cigarette. According to Mother, the woman who witnessed this was murdered several days later. Mother believed Bradshaw had “set her up.”

After the children were removed, Mother and Father submitted to five random urine analyses. All were negative. A Department representative said this indicated there was no ongoing drug problem. Mother submitted another hair analysis in October 2002. Father submitted a hair analysis in February 2003. According to an expert from the company that collected the hair samples, both hair samples tested positive for cocaine.

Legal Sufficiency

In his second and fourth issues, Father challenges the legal sufficiency of the evidence to support the judgment. Mother does not challenge the legal sufficiency of the evidence to support the judgment against her. Father attacks the sufficiency of the evidence to support the finding that termination was in the best interest of the children, but his only argument is that because the evidence is insufficient to support the statutory grounds for termination, termination cannot be in the best interest of the children. Therefore, we only address the sufficiency of the evidence to support the statutory grounds for termination.

Involuntary termination of parental rights implicates fundamental constitutional rights. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). A trial court may order involuntary termination of parental rights if the factfinder finds by clear and convincing evidence (1) the parent has committed one of the enumerated statutory conditions, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). Each required finding must be based on clear and convincing evidence. Id. § 161.206(a).

Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. This level of certainty is necessary to preserve the fundamental fairness in government-initiated proceedings that threaten to end a natural parent’s desire for and right to companionship, care, custody, and management of his or her children. See Santosky v. Kramer, 455 U.S. 745, 756-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” Id. (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

When we review the legal sufficiency of the evidence in a parental-rights termination case, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002); Wilson v. State, 116 S.W.3d 923, 928 (Tex.App.-Dallas 2003, no pet.). In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding; we assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so; and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266. We do not, however, disregard undisputed evidence that does not support the finding. Id.

Here, the Department alleged grounds for termination under family code subsections 161.001(1)(D) (i.e. endangering conditions or surroundings) and 161.001(1)(E) (i.e. endangering conduct). See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E). Subsection 161.001(1)(D) requires clear and convincing evidence that the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” Id. § 161.001(1)(D). This subsection refers only to the acceptability of the child’s living conditions. See In re S.H.A., 728 S.W.2d 73, 84 (Tex.App.-Dallas 1987, writ refd n.r.e.). Subsection 161.001(1)(E) requires clear and convincing evidence that the parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Tex. FamCode Ann. § 161.001(1)(E). This subsection refers only to the parent’s conduct, as evidenced not only by the parent’s acts, but also by the parent’s omissions or failures to act. In re S.H.A., 728 S.W.2d at 85. The Department need only prove one of the subsections in order to satisfy the first requirement of section 161.001. Wilson, 116 S.W.3d at 928. We first address the evidence as to subsection 161.001(1)(E) (i.e. endangering conduct).

The record contains evidence that Father would spend money on alcohol and cigarettes rather than on the needs of the children. There was also evidence Father neglected the older child by allowing him to wander off unsupervised. The record contains evidence of Father’s violence and emotional abuse toward the children. Father yelled at and spanked the older child after allowing him to wander away. Father threw the child against the wall for walking in front of the television. There was also evidence of violence against Mother and Bradshaw. There was evidence of Father’s abuse of alcohol, drug use as a teenager, and his positive hair test for cocaine. Although some facts were disputed, a reasonable factfinder could resolve those disputes in favor of the findings supporting termination. Based on this and other evidence in the record, viewed in the light most favorable to the findings, the jury could reasonably form a firm belief or conviction that Father “engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangers the physical or emotional well-being of the child[ren].” Tex. Fam.Code Ann. § 161.001(1)(E). We conclude the evidence is legally sufficient to support the jury’s finding. Because this finding is sufficient to support the judgment terminating Father’s parental rights to the children, we need not discuss the other statutory grounds. See Wilson, 116 S.W.3d at 928. We resolve Father’s second and fourth issues against him.

ExpeRT Testimony

Before trial, the trial court held a hearing to determine the qualifications and admissibility of the Department’s expert witness regarding drug testing. The trial court overruled the challenge and allowed the expert to testify at trial over Father’s objection. Father’s first issue and Mother’s third issue assert the trial court erred in allowing the expert to testify.

For an expert’s opinion to be admissible under evidence rule 702, the expert must be qualified on the specific issue before the court, and the expert’s opinion must be relevant and based on a reliable foundation. Tex.R. Evid. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex.2002); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719-20 (Tex.1998); Merrell Dow Pharms., Inc. v. Hav-ner, 953 S.W.2d 706, 714 (Tex.1997); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-58 (Tex.1995). We review the trial court’s decision to admit or exclude expert testimony for abuse of discretion. See Gammill, 972 S.W.2d at 727; Robinson, 923 S.W.2d at 558.

At the pretrial hearing, the Department called James Turnage as an expert in drug testing. Turnage testified his company did drug and DNA testing. Turnage has the highest certification for administering and collecting specimens. Once collected, the specimens are sealed and shipped to an independent laboratory in Nevada. The laboratory actually performs the testing on the specimens and sends a report back to Turnage. He explained that federal transportation regulations require collection companies to send samples to be tested by an independent laboratory. His company has used a laboratory in Nevada for several years. The laboratory is certified and although Turnage had never visited the facility, he believed the laboratory was qualified and had excellent reliability.

Turnage’s employees collected hair samples from Mother in October 2002 and from Father in February 2003. Turnage sent those samples to the laboratory in Nevada and received a report back from the laboratory. The reports were not admitted in evidence at trial or the pretrial hearing. According to Turnage, the reports indicated the methodology used by the laboratory, but not the specific instrument or machine used. Turnage explained the methodology was to perform an immunoassay test initially. If that test indicated a positive result, either a gas chromatography mass spectrometry (GCMS) or gas chromatography mass spectrometry mass spectrometry (GCMSMS) test would be run to confirm the results. The reports in this case did not indicate whether the GCMS or the GCMSMS test was performed and Turnage did not know which test was actually performed. Based on the reports, however, Turnage gave the opinion that Mother and Father tested positive for cocaine. He explained that Mother’s test indicated she had used cocaine within three months of the test because her specimen was head hah*. Father’s specimen was body hair and Turnage explained that a positive test result on body hah* would indicate usage within a period of seven to ten months before the test.

Turnage testified similarly at trial. Tur-nage also admitted he had no knowledge about the test done on Mother’s hair in March 2002, about seven months before his company collected a sample from Mother. He was shown a document and asked about the results of the March 2002 hair strand test collected by another company. He testified that the results were from the same laboratory that he used and based solely on the document shown him at trial he opined that Mother was positive for cocaine in March 2002.

In determining whether an expert is qualified, trial courts “must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Gammill, 972 S.W.2d at 719 (quoting Brothers v. Heise, 924 S.W.2d 148, 152 (Tex.1996)). Turnage admitted he had no knowledge of how the actual tests were performed on these samples, of the protocols used for the instruments or whether those protocols were followed with these samples, and whether or not a standard was run before or after the tests. He also admitted he was not an expert on the operation of the instruments for conducting a GCMS test.

The Department argues Turnage was only an expert in collecting samples, sending them to the laboratory, and interpreting the results. However, the actual results of the scientific tests are the relevant evidence of drug use in this case. Turnage was the sponsoring witness for the test results. By his own admission, Turnage was not qualified to give an opinion as to the results of the scientific tests on the hair samples his company collected. As the Department concedes, “He made no claims of expertise in the actual testing of the samples or the ultimate reliability of the tests or instruments used by the lab.” Thus his interpretation of the results of the laboratory tests fails to establish that those results are reliable. Turnage’s “opinion” that the samples tested positive for cocaine was beyond the scope of his expertise and based entirely on the written report he received from the laboratory in Nevada. Thus he did not have expertise concerning the actual subject about which he offered his expert opinion. Gammill, 972 S.W.2d at 719. Without a positive result, Turnage’s opinions about hair sampling were irrelevant.

Rule 702 also requires that expert testimony be relevant and based on a reliable foundation. Tex.R. Evid. 702. In determining reliability, the trial court should evaluate the methods, analysis, and principles relied on by the expert in reaching the opinion and ensure that the opinion comports with applicable professional standards and has a reliable basis in the knowledge and experience of the discipline. Gammill, 972 S.W.2d at 725-26. The supreme court has identified several nonexclusive factors to determine whether an expert’s testimony is reliable and admissible. See Robinson, 923 S.W.2d at 557. These factors may not be apply to certain types of testimony, but there must be some basis for the opinion offered to show its reliability. Expert testimony is unreliable if “ ‘there is simply too great an analytical gap between the data and the opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).

The Department did not offer evidence explaining the scientific theory and reliability of the immunoassay and GCMS/ GCMSMS tests for determining whether a person had used cocaine. Nor did the Department request the trial court take judicial notice of the reliability of these scientific tests. See Tex.R. Evid. 201; Hernandez v. State, 116 S.W.3d 26, 29 (Tex.Crim.App.2003) (concluding that scientific validity and reliability of scientific theory and methodology may be established by judicial notice). Thus, the trial court was not presented with the information necessary for it to perform its gatek-eeping function. See Hernandez, 116 S.W.3d at 30 (concluding trial court abused its discretion in admitting drug test results of an ADx analyzer “without any showing of its scientific reliability or any reliance upon other scientific materials or judicial opinions which had found ‘an ADx analyzer’ a reliable methodology for determining whether a person does or does not have marijuana in his body.”).

We do not suggest that the testing methods used by the remote laboratory are not reliable, only that this record does not establish the reliability of those methods either by evidence or through a proper request for judicial notice. We recognize that “Texas and Federal courts have found the gas chromatography test to be a reliable method for identifying compounds, and it has been generally accept[ed] in the scientific community.” Combs v. State, 6 S.W.3d 319, 322 (Tex.App.-Houston [14th Dist.] 1999, no pet.). This record, however, does not reflect that the trial court took judicial notice of the reliability of such methods or was provided with the information necessary to take such notice.

Further, even though the scientific theory of testing hair samples for illegal drugs using immunoassay and GCMS or GCMSMS may be reliable, there was no showing of the reliable application of that theory in this case. Turnage merely speculated that the lab must have followed protocol or it would lose its licensfe. He said that the report would not have been released if the results were not correct. The law does not require a “court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 258 (Tex.2004) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). Thus the results of the tests are not reliable simply because Turnage said they were. See Havner, 953 S.W.2d at 712 (“[I]t is not so simply because ‘an expert says it is so.’ ”). The court must independently evaluate the underlying data to ensure that the methodology is reliably applied in this specific case. Guadalupe-Bianco River Auth. v. Kraft, 77 S.W.3d 805, 808 (Tex.2002); Havner, 953 S.W.2d at 712.

Turnage’s expertise in collecting hair samples for testing could not bootstrap the reliability of the actual testing procedures done by the remote laboratory. He admitted he had no expertise in the actual testing or ultimate reliability of the tests or instrumentation used by the laboratory. Despite this admission, Turnage rendered the opinion that Mother and Father’s hail' samples were positive for cocaine. We conclude the trial court abused its discretion in admitting Turnage’s testimony.

We now consider whether the trial court’s error was harmful. Tex.R.App. P. 44.1(a). We look to the whole record to determine whether the error probably caused the rendition of an improper judgment. Id.; City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex.1995); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992).

The evidence regarding drug use in this case was critical and was disputed. One Department supervisor testified that the decision to remove the children was based solely on Mother’s positive hair test in March 2002. While both Mother and Father admitted to the Department they had used drugs as teenagers, they denied currently using drugs. Mother and Father also submitted to five random urinalyses, all of which were negative for drug use. A Department supervisor agreed these results indicated no ongoing drug problem. However, based on the positive results of the hair tests, the supervisor recommended termination of parental rights because of drug usage.

Much of the other evidence in the case was disputed. Mother denied giving the children sugar water instead of milk and testified she always used diapers, never hand towels. She also denied that Father threw S.E.W. against a wall. The initial referrals to the Department ruled out abuse or neglect. Mother explained that the Department’s chief witness, Bradshaw, had set her up and arranged for her to borrow a cigarette laced with cocaine. Mother claimed this was the cause of the first positive drug test and that the second test overlapped the first test. Turnage denied that the two tests could have overlapped. Bradshaw, a witness to many of the neglect and abuse allegations, had significant credibility issues, including a prior conviction for sexually abusing a two year old child and mental health problems.

Based on a review of the entire record, we conclude that the error in admitting the expert testimony regarding the results of the drug tests probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a).

Disposition

To preserve error for appeal, a party must make a timely and specific objection to the admission of the evidence. Tex.R.App. P. 33.1, Tex.R. Evid. 103(a)(1). The record is clear that the pretrial hearing was a hearing to determine a Dau-bert/Robinson challenge. Mother’s attorney was present at the hearing, but did not question the expert and did not argue for or against the challenge. Mother did not file a written objection to the expert’s testimony, nor did she object or ask any questions of the expert during the pretrial hearing. Mother did not object to the expert’s testimony at trial on the grounds of reliability or lack of qualifications. She did, however, file a motion for new trial where she argued the expert was not qualified because he had no knowledge of the machines used to conduct the drug test, the methodology used in the drug testing, the last time the machine was cleaned, whether the protocol for the machine was followed, and he was only an expert as to collection of hair samples, not testing for drugs.

The Department argues that Mother failed to preserve error on her objections to the reliability of the expert testimony. We agree that Mother failed to preserve error on this issue. However, we have broad discretion to remand in the interest of justice. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). As long as there is a probability that a case for any reason has not been fully developed, an appellate court has the discretion to remand rather than render a decision. Rondos v. Lincoln Prop. Co., 110 S.W.3d 716, 724 (Tex.App.-Dallas 2003, no pet.); Bayway Serv., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 161 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Because we conclude the trial court erred in overruling Father’s objection to the expert opinion and that error was harmful, a new trial will be necessary. We also conclude that a remand of the case against Mother is in the interest of justice. We resolve Father’s first issue and Mother’s third issue in their favor. Accordingly, we reverse the trial court’s judgment and remand for further proceedings. We need not address the remaining issues. Tex.R.App. P. 47.1.

The judgment of the trial court is reversed and this case is remanded for further proceedings.


author: TOM GRAY, Chief Justice.

text:
    TEAGUE NURSING HOME, et al., Appellants, v. Maudie WILSON, Individually and by and through Her Next Friend Minnie CARSON, Appellee.
    Nos. 10-05-00138-CV, 10-05-00231-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    J. Eric Elder, Edward P. Quillin, Quillin Law Firm, Dallas, for appellants.
    David T. Marks, Jacques G. Balette, The Marks Firm, Houston, for appellee.
   DISSENTING OPINION

TOM GRAY, Chief Justice.

With no motion or briefing from the parties and with no analysis at all regarding severability, the majority plays on, litigating the interest of litigants without their input. This is not the majority’s first gratuitous insertion of their desires in this fact pattern. See Ma-Stell, Inc. v. Anadarko E & P Co., No. 10-03-358-CV, 2005 WL 984785, at *1, 2005 Tex.App. LEXIS 3193, at *1-2 (Tex.App.-Waco Apr. 27, 2005, order) and Muennink v. Anadarko E & P Co., No. 10-05-00204-CV, 2005 WL 984785, 2005 Tex.App. LEXIS 3193 (Tex.App.-Waco Apr. 27, 2005, order).

The majority should at least address the propriety of severance. I have seen nothing that supports the validity of severing this appeal.

A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Id. [Saxer v. Nash Phillips-Copus Co. Real Estate, 678 S.W.2d 736 (Tex.App.-Tyler 1984, writ refd n.r.e.)]; Weaver v. Jock, 717 S.W.2d 654 (Tex.App.-Waco 1986, writ refd n.r.e.). The controlling reasons for a severance are to do justice, avoid prejudice and further convenience. St. Paul Ins. Co. v. McPeak, 641 S.W.2d 284 (Tex.App.-Houston [1st Dist] 1982, writ refd n.r.e.).

Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990)

Conclusion

For these reasons. I dissent from the severance and reinstatement order.


text:
    TEAGUE NURSING HOME, et al., Appellants, v. Leroy WILSON, Appellee.
    Nos. 10-05-00137-C V, 10-05-00230-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    J. Eric Elder, Edward P. Quillin, Quillin Law Firm, Dallas, for appellants.
    David T. Marks, Jacques G. Balette, The Marks Firm, Houston, for appellee.
   DISSENTING OPINION

TOM GRAY, Chief Justice.

With no motion or briefing from the parties and with no analysis at all regarding severability, the majority plays on, litigating the interest of litigants without their input. This is not the majority’s first gratuitous insertion of their desires in this fact pattern. See Mas-Stell, Inc. v. Anadarko E & P Co., No. 10-03-358-CV, 2005 WL 984785, at *1, 2005 Tex.App. LEXIS 3193, at ⅞1~2 (Tex.App.-Waco Apr. 27, 2005, order) and Muennink v. Anadarko E & P Co., No. 10-05-00204-CV, 2005 WL 984785, 2005, Tex.App. LEXIS 3193 (Tex.App.-Waco Apr. 27, 2005, order).

The majority should at least address the propriety of severance. I have seen nothing that supports the validity of severing this appeal.

A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Id. [,Saxer v. Nash Phillips-Copus Co. Real Estate, 678 S.W.2d 736 (Tex.App.-Tyler 1984, writ ref d n.r.e.)]; Weaver v. Jock, 111 S.W.2d 654 (Tex.App.-Waco 1986, writ ref d n.r.e.). The controlling reasons for a severance are to do justice, avoid prejudice and further convenience. St. Paul Ins. Co. v. McPeak, 641 S.W.2d 284 (Tex.App.-Houston [1st Dist] 1982, writ ref d n.r.e.).

Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990)

Conclusion

For these reasons. I dissent from the severance and reinstatement order.


author: TERRY MeCALL, Justice. W.G. ARNOT, III, Chief Justice,

text:
    Terry Gene FREEMAN, Appellant, v. STATE of Texas, Appellee.
    No. 11-03-00173-CR.
    Court of Appeals of Texas, Eastland.
    May 26, 2005.

      David H. Stokes, Law Firm of David H. Stokes, for appellant.
    Terry Gene Freeman, Tennessee Colony, pro se.
    John Terrill, District Attorney, Stephen-ville, for appellee.
    Panel consists of ARNOT, C.J., and WRIGHT, J„ and MeCALL, J.
   Opinion

TERRY MeCALL, Justice.

A jury convicted Terry Gene Freeman, appellant, of aggravated sexual assault of a child under the age of 14 years old. TEX. PEN. CODE ANN. § 22.021(a)(1)(B) (Vernon Supp.2004-2005). The jury assessed his punishment at life imprisonment. In his first point of error, appellant argues that he was denied the right to intelligently exercise his peremptory challenges during voir dire because of the failure of two veniremembers to disclose that they served on the grand jury that indicted appellant’s wife for failing to protect her child, the victim, from appellant. TEX. PEN. CODE ANN' § 22.041(c) & (f) (Vernon 2003). In his second point of error, appellant contends that he was denied effective assistance of counsel because his counsel failed to preserve error after the trial court denied his challenges for cause against two additional veniremembers. We affirm.

Appellant’s wife was indicted on September 19, 2002, for failure to protect her daughter (appellant’s stepdaughter) from appellant’s sexual assault. Section 22.041(c) & (f). Appellant was indicted by the next impaneled grand jury on February 4, 2003, for the offense of aggravated sexual assault of his stepdaughter. Appellant’s trial was held on May 5 and 6, 2003.

In his first point of error, appellant claims that he was denied his right to intelligently exercise his peremptory challenges on voir dire because two jurors at his trial, Garry Lynn Horn and Elizabeth Ann Hanson Baxter, were untruthful and did not disclose that they had previously served on the grand jury which indicted appellant’s wife for failing to protect the victim.

At the outset of voir dire, the prosecutor told the venire panel that he planned to call appellant’s wife as a witness, that “she currently has a pending indictment against her arising out of this same case,” that the charge against her was “failing to act to prevent this from happening,” and that he would give her “use immunity.” The prosecutor then told them that “use immunity” meant that the wife could be forced to testify in this case, but that the State could not use her testimony in this case in the case against her. The prosecutor then asked Horn whether granting use immunity to appellant’s wife would have any effect on his judging her credibility. Horn answered, “Not at all.”

During voir dire, the prosecutor asked if anyone knew Brent Luttrell, a potential witness. Horn said that he did and that he knew Luttrell through school. The prosecutor then asked if Horn knew anything about this case. Horn said, “No.”

When the State concluded its questioning, appellant’s counsel asked the venire panel if anyone knew the prosecutor. Baxter said that she knew the prosecutor from serving on the grand jury during the second half of the previous year. Counsel then asked Baxter if “anything about that experience might influence [her]?” Baxter said, “No.” Appellant’s counsel also asked Horn if he knew the prosecutor. Horn said that he had been on the grand jury twice and that both of the prosecutor’s children were in high school when Horn was the high school principal. Counsel then asked if “[ajnything about that that might have you leaning one way or the other?” Horn said, “Not at all.” Later, an unidentified venireperson stated that he or she was on the same grand jury as Baxter. The unidentified venireperson may have been Horn; however, the record only refers to a “venireperson.”

Appellant’s first point of error was not presented to the trial court in a motion for new trial. Thus, the record on this issue is limited. Based on the dates that Baxter said that she served on the grand jury, it appears that Baxter was on the grand jury that indicted appellant’s wife; but the record does not confirm that fact. Horn may be the person who signed the wife’s indictment as foreperson of the grand jury, but there is nothing in the record to establish that he was.

There is nothing in the record to show that Horn and Baxter were biased or prejudiced even if they did serve on the wife’s grand jury. Their brief answers may have been truthful; there is no evidence in the record to show otherwise. In the absence of a showing that panel members were biased or prejudiced by prior jury service, no error is shown. Kirkland v. State, 786 S.W.2d 557, 559-60 (Tex.App.Austin 1990, no pet’n).

A defendant does have the right to question veniremembers in order to intelligently exercise peremptory challenges and challenges for cause. Linnell v. State, 935 S.W.2d 426, 428 (Tex.Cr.App.1996). A defense counsel normally should ask questions calculated to bring out information that might indicate a prospective juror’s inability to be impartial. See Armstrong v. State, 897 S.W.2d 361, 363 (Tex.Cr.App.1995). Yet, the failure of counsel to ask questions during voir dire does not necessarily mean that counsel’s conduct was deficient. See Goodspeed v. State, No. PD-1882-03,—S.W.3d-, 2005 WL 766996 (Tex.Cr.App.2005).

This case is similar to Armstrong v. State, supra,. The issue in Armstrong was whether a prospective juror’s failure to reveal that she and the prosecutor were close friends constituted juror misconduct. The court held that it did not because no one had asked the panelists if they knew the prosecutor. Armstrong v. State, supra at 364; see Goodspeed v. State, supra at -. No one asked Horn and Baxter if they served on the grand jury that indicted appellant’s wife.

During the six-month grand jury term, the grand jurors may have reviewed many cases. Even if it is established that Horn and Baxter served on the grand jury that indicted appellant’s wife, it may be that they did not remember any facts relating to the charge against appellant. We can only say that appellant has not shown that Horn or Baxter were biased or prejudiced and were not impartial jurors. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that he was denied effective assistance of counsel. Specifically, appellant argues that trial counsel faded to preserve error after the trial court denied his challenges for cause against two veniremembers, Toler and Weiler. When a challenge for cause made by the defense has been denied, the defense must preserve error by: (1) exercising a peremptory challenge against the veniremember whom the trial court failed to excuse for cause; (2) exhausting his peremptory challenges; (3) having a request for an additional peremptory challenge denied; and (4) identifying an objectionable jury member in the case. Johnson v. State, 43 S.W.3d 1, 7 (Tex.Cr.App.2001). The two veniremembers did not serve on appellant’s jury; however, trial counsel did not request additional peremptory challenges or identify two objectionable jury members. This point of eiTor also was not raised in a motion for new trial.

To determine whether appellant’s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

If the trial court did not abuse its discretion in denying the two challenges for cause, then it is immaterial that trial counsel did not take steps to preserve error after the trial court denied his challenges for cause against Toler and Weiler. We review a trial court’s ruling on a challenge for cause with “considerable deference” because the trial court was in the best position to evaluate the venire-member’s demeanor and responses. Newbury v. State, 135 S.W.3d 22, 32 (Tex.Cr.App.2004). A trial court’s ruling on a challenge for cause will be reversed “only if a clear abuse of discretion is evident.” Id. at 32. After reviewing the record, we find that the trial court below did not abuse its discretion in denying appellant’s challenges for cause against Toler and Weiler. There was no need for trial counsel to preserve the alleged error.

Appellant claims that the trial court should have granted his challenge for cause to Toler because Toler did not correctly understand the concepts of “beyond a reasonable doubt” and “presumption of innocence.” Appellant points to the record where Toler said that he would expect the defense to present some evidence and that he would be troubled if the defendant did not present some evidence. As the veniremembers did in Newbury, however, Toler also testified that he could follow the law. The prosecutor asked To-ler if he could follow the law if the court instructed him that the burden is on the State to prove its case and that the defendant does not have to call any witnesses. Toler replied, “To the best of my ability I would, yes.”

Appellate courts should not second-guess a trial court’s ruling on a challenge for cause even where the veniremember’s responses are “vacillating, unclear, or contradictory.” Colburn v. State, 966 S.W.2d 511, 517 (Tex.Cr.App.1998). We find that the trial court did not abuse its discretion in denying appellant’s challenge for cause to Toler.

Appellant points out that Weiler testified that he had been a police officer for 27 years and the Tarleton State University Campus Police Chief from 1980-1987. Weiler indicated that he had been working with Child Protective Services for almost a year. The following exchange then took place:

[DEFENSE COUNSEL]: [Y]ou said that your experience with CPS would make it' basically impossible for you to be—listen to all of the evidence and be entirely fair in this case; is that correct? [WEILER]: I won’t say basically impossible—huh—but I did nine months investigation of which I had several cases involving parent-child sexual intercourse, and in only one case did I disprove that the child was doing it for retaliation.

Again, similar to the testimony in New-bury, Weiler subsequently testified that he could decide this case based solely on the evidence in this case; that he would not begin this case with a preconceived idea because of his past experience; and that, if he was convinced that the State did not prove its case, he could find the defendant not guilty.

[PROSECUTOR]:—but can you—can you—huh—decide this case based solely on the evidence in this case?
[WEILER]: That’s—Yeah, that’s what you do in each case.
[PROSECUTOR]: If you heard the testimony and the evidence, regardless of what your experience in life has been, and you were convinced the defendant— that the state didn’t prove the case beyond a reasonable doubt, could you find the defendant not guilty?
[WEILER]: Yes.

The prosecutor asked Weiler three times if he had any preconceived idea about how this particular case should come out, and each time Weiler said that he had no preconceived idea about this case.

Based on the record in this case, the trial court could have reasonably concluded that no evidence was adduced from Weiler that he had formed any opinion about appellant’s guilt. We cannot conclude that the trial court clearly abused its discretion in denying appellant’s challenge for cause to Weiler. Appellant’s second point of error is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

W.G. ARNOT, III, Chief Justice,

dissenting.

I respectfully dissent.

Protections afforded to a defendant at his or her jury trial are not present during grand jury proceedings. 2 FRANK MA-LONEY & MARVIN 0. TEAGUE, TEXAS CRIMINAL PRACTICE GUIDE § 40.07 (Matthew Bender & Co. ed., March 2001 & Aug. 2008). An accused does not have the right to confront or cross-examine witnesses who appear before the grand jury. Moczygemba v. State, 532 S.W.2d 636 (Tex.Cr.App.1976). An accused does not have the right to even appear before the grand jury, either by counsel or in person. Id. at 638. An accused has no right to counsel if called to testify before the grand jury. Harris v. State, 450 S.W.2d 629 (Tex.Cr.App.1970). An accused has no right to present exculpatory evidence to the grand jury. Grand jurors may consider tips, rumors, hearsay, or their own personal knowledge. In re Grand Jury Proceedings, 558 F.2d 1177 (5th Cir.1977). Only the State may question a witness. TEX. CODE CRIM. PRO. ANN. art. 20.04 (Vernon 2005); Smith v. State, 36 S.W.3d 134 (Tex.App.-Houston [14th Dist.] 2000, pet’n ref'd).

The grand jury that served from July to December 2002 indicted appellant’s wife on September 19, 2002, for failure to protect her daughter. TEX. PEN. CODE ANN. § 22.041(c) <& (f) (Vernon 2003). The next impaneled grand jury indicted appellant for aggravated sexual assault. The two jurors in appellant’s case served on the grand jury that had previously indicted appellant’s wife.

To indict appellant’s wife for failing to protect her daughter from appellant, the State had to present enough evidence to give the grand jury reason to believe that the victim was in danger of being assaulted by appellant and that the wife knew or should have known of that threat. TEX. CODE CRIM. PRO. ANN. art. 20.19 (Vernon 2005). Without evidence that the victim was in danger from appellant, appellant’s wife could not have been indicted for this offense.

Because grand jury proceedings are kept secret, we do not know what evidence concerning appellant’s danger to the child was presented to his wife’s grand jury. TEX. CODE CRIM. PRO. ANN. art. 20.02(a) (Vernon 2005). It is a reasonable assumption that some of the testimony from prosecuting witnesses at appellant’s trial was heard by the grand jurors who indicted appellant’s wife. But only one side of the story would have been heard. It is a reasonable assumption that the grand jurors on appellant’s wife’s case had passed on the credibility of witnesses as well as having passed on the credibility of some of the evidence presented at trial. It is improbable that these jurors could sit without their previous opinion and grand jury service influencing them.

I do not find the cases cited by the majority analogous. I would hold, as a matter of law, that Garry Lynn Horn and Elizabeth Ann Hanson Baxter were impliedly biased. Because of their silence, appellant was denied the right to intelligently exercise his peremptory challenges.


author: SAM GRIFFITH, Justice.

text:
    CONSOLIDATED PETROLEUM, PARTNERS, I, LLC, Appellant, v. Frank TINDLE, Appellee.
    No. 12-03-00308-CV.
    Court of Appeals of Texas, Tyler.
    June 8, 2005.

      Tom C. McCall, for appellant.
    A. James Lynn, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION DENYING MOTION FOR REHEARING

SAM GRIFFITH, Justice.

Consolidated Petroleum Partners I, L.L.C. filed an amended motion for rehearing, which is denied. We withdraw our opinion dated April 29, 2005 and substitute the following opinion in its place.

Consolidated appeals the trial court’s partial summary judgment entered in favor of Tindle. Consolidated raises four issues on appeal. We affirm.

Background

On June 15, 2001, Tindle and Consolidated entered into a written agreement governing the acquisition and disposition of certain oil, gas, and mineral leases in the Weesatche Area (“WA”) of Goliad County. Paragraph 5 of the agreement set forth that Tindle would fund a portion of the estimated WA leasehold acquisition costs as follows:

5. Participant agrees to provide funding in the amount of $200,000 contemporaneously with execution and delivery of this Agreement. The amount funded and the considerations provided above are in contemplation of funding a portion of the $494,187.29 amount shown on Exhibit A. ($200,000 Divided by $494,187.29 equals Participant’s .404704% of 8/8ths ownership in WA)[.] Participant and CPP agree that the Amount shown on Exhibit A is an estimate based on negotiated terms and is subject to modifications, however[,] participant in no way is obligated to fund in excess of the $200,000 amount unless mutually agreed upon.

The parties further agreed that Tindle would be entitled to the following compensation:

lb. Reimbursement of lease acquisition costs (based on Participant’s factor of .404704% of 8/8ths) funded by Participant attributable to each lease;
Id. The overriding royalty interest ... will be delivered to Participant as soon as reasonably practical after lease acquisition. With respect to the cash consideration provided in [Paragraph lb above], such amounts (determined on a lease by lease basis) will be paid to Participant upon the earlier to occur of (i) disposition of such lease or (ii) inclusion of such lease within a drilling unit by CPP. For these purposes, disposition of a lease means a sale of a lease to a third party.

Consolidated entered into similar agreements with other participants, who contributed various percentages of the total leasehold acquisition cost.

Consolidated acquired multiple leases in the WA, but, following the drilling of a dry hole, sold all of the leases to a third party for $275,000.00. Subsequently, Consolidated distributed a portion of the sales proceeds to Tindle in the amount of $86,689.40.

Tindle filed the instant suit claiming Consolidated breached its contract with him by not repaying him the $200,000.00 he contributed toward the leasehold acquisition costs. Tindle subsequently moved for partial summary judgment on his breach of contract claim. Consolidated responded to Tindle’s motion, contending not only that Tindle’s interpretation of the contract was flawed, but also that the total leasehold acquisition costs were greater than the estimated $494,187.29 figure upon which Tindle’s participation factor was based and were, in fact, $613,544.27.

On March 19, 2003, the trial court conducted a hearing on Tindle’s motion for partial summary judgment. On March 21, 2003, the trial court granted Tindle’s motion, ordering that he be awarded the difference between his $200,000.00 funding contribution and the $86,689.40 already paid to him by Consolidated. The court reserved issues pertaining to attorney’s fees and the value of the overriding royalty interest for trial.

Tindle later nonsuited his claims related to the respective values of the mineral acreage fee and the overriding royalty interest. On August 4, 2003, a trial was conducted on attorney’s fees. The trial court signed its final judgment on August 5, 2003, in which it awarded Tindle breach of contract damages of $113,311.00, attorney’s fees for both trial and appeal, and both prejudgment and post-judgment interest. Consolidated filed a motion for new trial, which the trial court denied. This appeal followed.

Standard of Review

In reviewing a traditional motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true;
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See id.; May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 628 (Tex.App.-Tyler 2001, no pet.). For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).

Contractual Interpretation

In its first and second issues, and in portions of its third and fourth issues, Consolidated argues that the trial court erred in granting Tindle’s motion for partial summary judgment because it improperly interpreted the contract between the parties and, as a result, improperly awarded damages to Tindle. Specifically, Consolidated argues that the agreement did not obligate it to repay Tindle the entirety of his funding contribution toward the lease acquisition costs if the leases were sold for a loss, but rather, Tindle was only entitled to be reimbursed the percentage of his participation factor based on sales proceeds from the leases as each was sold. Consolidated also argues that a material fact issue existed as to the leasehold acquisition costs and, therefore, as to the percentage comprising Tindle’s participation factor.

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); see also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex.1995). To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Id. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. Id.; Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex.1962).

If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Coker, 650 S.W.2d at 393. However, when a contract’s meaning is uncertain and doubtful or is reasonably susceptible to more than one meaning, it is ambiguous, and summary judgment is improper. See id.; Calhoun v. Killian, 888 S.W.2d 51, 54 (Tex.App.-Tyler 1994, writ denied) (if a written document is ambiguous, it cannot support a summary judgment because its meaning raises a fact issue, even if the parties fail to plead ambiguity). An ambiguity may be either “patent” or “latent.” See CBI, 907 S.W.2d at 520. A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter, and an ambiguity appears by reason of some collateral matter. See id.

The interpretation of an unambiguous contract is a question of law, which we review de novo. See MCI Telecommunications Corp. v. Texas Utilities Elec. Co., 995 S.W.2d 647, 650 (Tex.1999). Ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; rather, for an ambiguity to exist, both interpretations must be reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex.2000).

In interpreting a contract, we must presume that the parties thereto intended every clause to have some effect; therefore, we consider each part of the document with every other part of the document so that the effect and meaning of one part on any other part may be determined. See Bimbaum v. Swept LP, 48 S.W.3d 254, 257 (Tex.App.-San Antonio 2001, pet. denied). Moreover, we give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used such terms in a technical or different sense. Id. Finally, we enforce an unambiguous agreement as written. Id. We are not permitted to rewrite an agreement to mean something it did not. Id. We cannot change the contract simply because we or one of the parties comes to dislike its provisions or thinks that something else is needed in it. Id. Parties to a contract are masters of their own choices and are entitled to select what terms and provisions to include in or omit from a contract. Id. Here, while neither party argues that the agreement is ambiguous, each interprets its language differently, and neither concedes that its interpretation of the relevant passages is any less reasonable than the other party’s interpretation of the same. At the heart of the issue is Tindle’s participation factor and its function as outlined by the terms of the agreement.

Tindle’s “participation factor” is explained in paragraph 5 of the agreement. The participation factor is a percentage determined by dividing Tindle’s funding contribution, $200,000, by the total leasehold acquisition costs, which were estimated in the agreement, but had yet to be finally determined at its signing.

The compensation at issue relates to the amount of “reimbursement” due Tindle of the leasehold acquisition costs. According to paragraph lb, this compensation is based on Tindle’s participation factor. The agreement further states that such compensation will be determined on a lease by lease basis and paid to Tindle upon the sale of the lease to a third party. It is undisputed that all leases at issue were sold to a third party.

Consolidated argues that the intent of the parties, as evidenced by the language of the agreement, was that, upon the sale of each lease, Tindle would be reimbursed a portion of the sales proceeds based on his participation factor. Tindle argues that the agreement’s language evidences the parties’ intent that Tindle be reimbursed the portion of the lease acquisition costs he funded attributable to each lease at the time that lease was sold to a third party. Having read the agreement, we agree with the parties that the agreement is not ambiguous. However, we are unable to conclude that Consolidated’s interpretation of the contract language is reasonable.

The agreement never references “sales proceeds.” While paragraph Id of the agreement states that the compensation due Tindle is to be paid upon the sale of the lease to a third party and determined on a lease by lease basis, such language does not serve to alter the manner of calculating the amount of reimbursement owed Tindle for his contribution to the total lease acquisition costs as outlined in paragraph lb. The language used in paragraph Id, given its plain meaning, does not contradict the language used in paragraph lb.

Paragraph lb plainly states that Tindle will receive reimbursement of the lease acquisition costs he funded, which, as paragraph 5 states, is determined by multiplying the total lease acquisition costs by Tindle’s participation factor. To “reimburse” means “to pay back or compensate (a person) for money spent, or losses or damages incurred.” The AmeRican HeRItage DictionaRY 1042 (2nd Col. Ed.1982). Thus, Consolidated was obligated to repay Tindle the portion of the lease acquisition costs he funded.

Paragraph Id sets forth when the compensation in paragraph lb will become due and owing. It states that such compensation will be paid on a lease by lease basis when the leases are sold to a third party. Since multiple leases are contemplated earlier in the agreement, it is reasonable that the total compensation from paragraph lb would not be due upon the sale of the first lease if the remaining leases had yet to be sold. Rather, as the agreement states, such compensation would be paid on a “lease by lease basis.” As Consolidated notes in its brief, were the leases not sold to a third party, Tindle would not be entitled to payment.

We next consider whether the trial court properly awarded Tindle $113,311.00. Consolidated argues that a material fact issue existed as to the lease acquisition costs and, thus, as to the percentage comprising Tindle’s participation factor as well. However, the amount Tindle funded, $200,000.00, is a constant. Thus, no matter what the total lease acquisition costs were, when the amount of lease acquisition costs is multiplied by the percentage determined from dividing $200,000 by the lease acquisition costs, the product will always be $200,000.00. Therefore, while there may exist a fact issue as to the amount of the total lease acquisition costs, that fact issue is not material as it has no bearing on the amount of money to which Tindle was entitled as reimbursement pursuant to the agreement.

The record in the case at hand reflects that upon the sale of all the subject leases, Consolidated paid Tindle $86,689.40. The contract indicates that upon the sale of the leases, Consolidated was to pay Tindle the portion of the lease acquisition costs he funded, $200,000.00. Thus, since there was a breach of the agreement by Consolidated, the trial court’s award of $113,311.00 allowed Tindle to receive the benefit of the bargain. See, e.g., Prudential Securities, Inc. v. Haugland, 973 S.W.2d 394, 396 (Tex.App.-El Paso 1998, pet. denied) (elements of breach of contract); Hart v. Moore, 952 S.W.2d 90, 97 (Tex.App.-Amarillo 1997, writ denied) (expectancy damages, similar to benefit of the bargain recoveries, award damages for the reasonably expected value of the contract). Therefore, we hold that there did not exist a material issue of fact, and the trial court properly granted summary judgment in Tindle’s favor. Consolidated’s first and second issues are overruled. Consolidated’s third and fourth issues are overruled in part.

Attorneys’ Fees

In parts of its third and fourth issues, Consolidated states that the trial court erred in awarding attorney’s fees to Tin-dle. From our reading of Consolidated’s brief, it appears that Consolidated’s claim that Tindle is not entitled to recover attorney’s fees is dependent on our disposition of issues one and two and the portions of issues three and four as set forth above. Inasmuch as we have overruled the aforementioned issues concerning the trial court’s grant of summary judgment in Tin-dle’s favor, it follows that we cannot sustain Consolidated’s issues concerning Tin-die’s entitlement to recover attorney’s fees as part and parcel to its claim that Tindle is not entitled to summary judgment. In its brief, Consolidated has not argued that there is a lack of evidence to support Tindle’s entitlement to attorney’s fees apart from its contentions that the trial court’s grant of summary judgment on Tindle’s breach of contract claim was improper. See Tex.R.App. P. 38.1(h). The remainder of Consolidated’s third and fourth issues are overruled.

Disposition

Having overruled Consolidated’s issues one, two, three, and four, we affirm, the trial court’s judgment.

      . Other fact issues reserved for trial were dismissed by Tindle prior to Consolidated’s appeal.

      . The parties disagree as to the amount of the lease acquisition costs. Consolidated submitted summary judgment evidence that the lease acquisition costs were $613,544.27 with a participation factor of 32.59%. Tindle submitted summary judgment evidence that the lease acquisition costs were $494,187.29 with a participation factor of 40 .4704%.

      . The trial court further awarded Tindle the value of a mineral acreage fee in the amount of $11,161.00. However, upon consideration of a revised order submitted by Tindle, the court reserved the issue concerning the value of the mineral acreage fee for trial in addition to other fact issues previously reserved. Thus, with regard to his reimbursement claim for lease acquisition costs, Tindle was awarded $113,311.00.

      . For example, if a contract called for goods to be delivered to “the green house on Pecan Street,” and there were, in fact, two green houses on Pecan Street, a latent ambiguity would arise. See id. n. 4.

      . For example, if X/Y = Z, then (Z)(Y) = X. The parties agree that X = $200,000.00. If, as Consolidated argues, Y = $613,544.27, then Z = 0.325975. If, as Tindle argues, Y = $494,187.29, then Z = 0.404704. Yet, in either scenario X = $200,000.00 Such is the case no matter what value is attributed to Y.

      . We recognize that the sum of $86,689.40 and $113,311.00 exceeds the $200,000.00 to which Tindle was entitled by $0.40. Consolidated has not addressed this particular discrepancy in its brief and has therefore waived its consideration on appeal. See Tex.R.App. P. 38.1(h).