author: Justice CASTILLO. Justice HINOJOSA. Justice CASTILLO. Justice YÁÑEZ.

text:
    Roger GERDES, Jr. and Carolyn Gerdes, Appellants, v. John KENNAMER and Mora Kennamer, Appellees.
    No. 13-03-046-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 6, 2004.
    Rehearing En Banc Overruled Feb. 3, 2005.

      Cynthia T. Sheppard, Cuero, Robert P. Houston, Linda C. Reese, Houston Marek & Griffin, Victoria, for appellants.
    Murray Fogler, McDade Fogler Maines, L.L.P., Houston, for appellee.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

Appellants Roger Gerdes (“Gerdes”) and Carolyn Gerdes (collectively, the “Gerdeses”) appeal the terms of a turnover order issued pursuant to section 31.002 of the civil practice and remedies code as well as the trial court’s finding of Gerdes’ noncompliance with two earlier turnover orders. In seven issues, the Gerdeses challenge the trial court’s exercise of discretion: (1) in ordering the Gerdeses to sign and turn over “nonexistent documents”; (2) in determining that the judgment creditors, appellees John Kennamer (“Kennamer”) and Mora Ken-namer (collectively, the “Kennamers”), established that the property could not be attached readily or levied on by ordinary legal process; (3) in ordering the Gerdeses to execute documents that violate the articles of incorporation of a Mexican entity owned by the Gerdeses; (4) in ordering the Gerdeses to execute and turn over documents that appoint Kennamer as then-agent; (5) in ordering Carolyn Gerdes, a non-debtor third party, to execute and turn over documents; (6) in adjudicating the Gerdeses’ substantive property rights during the turnover proceeding; and (7) in finding that Gerdes failed to comply with the first two turnover orders. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Gerdes is a judgment debtor of Ken-namer. Pursuant to section 31.002 of the civil practice and remedies code, the trial court issued three turnover orders to assist Kennamer in collecting the judgment. Tex. Civ. PRAC. & Rem.Code Ann. § 31.002 (Vernon 1997). On evidence that the Gerdeses each own fifty per cent of a Mexican entity called Inmobiliaria Don Rogelio (“Don Rogelio”), the trial court issued orders that would effect a turnover of their interest in Don Rogelio. Don Rogelio is valuable because it holds title to a large plot of land in Mexico and represents Kennamer’s only avenue to collect on a $915,392.65 judgment against Gerdes. On October 14, 2002, on Kennamer’s motion, the trial court signed the first turnover order, requiring Gerdes to turn over to the Matagorda County Sheriffs Department within seven days, “the original stock certificates or any other physical evidence of ownership for all of the shares of stock of (a) Inmobiliaria Don Rogelio S. de RL. de C.V., (b) Hacienda de Aves Inc., and (c) Hacienda de Aves S.A. de C.V. so the same may be sold under execution.”

Gerdes produced no documents. On October 28, 2002, the trial court ordered Gerdes to appear on December 2, 2002 to “show cause why he should not be held in contempt for violation of this Court’s Turnover Order of October 14, 2002.” After the trial court ordered the show-cause hearing but before the hearing took place, Gerdes turned over a stock certificate for 500 shares of Hacienda de Aves, Inc. He turned over nothing else. At the show-cause hearing, Gerdes argued that he complied with the order to the best of his ability in that he turned over everything he had. Gerdes claimed that no stock certificates were ever issued for the Don Rogelio stock and, therefore, he could not turn over any stock certificates. The trial judge, after commenting that he did not think he could hold Gerdes in contempt, stated that the first turnover order was a “continuing order and it applies — it’s not excused.” The trial judge then suggested that the Kennamers’ counsel “do some more digging to see what these — who owns these assets.” The trial court expressly declined to issue a contempt ruling and recessed the hearing.

On the same day, the trial court signed the second turnover order, requiring Gerdes to “turn over ... any original evidence of ownership of property in the name of Inmobiliaria Don Rogelio S. de R.L. de C.V., including but not limited to [a specific plot of land] so the same may be sold under execution.” The trial court then recessed the hearing until January 8, 2003.

When the hearing reconvened, the Ken-namers’ counsel presented seven documents which, if executed by the Gerdeses, would effect the issuance of the Don Rogelio stock Gerdes claimed was never issued. Also, the documents would authorize the transfer of that stock to the sheriffs office and then to the final purchaser. Over Gerdes’s objection that he could not force his wife to sign the documents, the trial court issued a third turnover order requiring Gerdes to deliver originals of the seven documents, executed by both him and his wife, to the Sheriffs office. The order also states “Roger Gerdes, Jr. has failed to comply with the Court’s Turnover Order dated October 14, 2002, and the Second Turnover Order dated December 2, 2002.” The trial court recessed the hearing until February 4, 2003, when Gerdes was “to appear and show compliance with this order.”

Gerdes appeals the third turnover order, arguing that it is beyond the scope of the turnover statute. See Tex. Civ. PRAC. & Rem.Code Ann. § 31.002 (Vernon 1997). Also, Gerdes argues that the trial court erred in finding that he failed to comply with the first two turnover orders. At the time of this appeal, the trial court had not found Gerdes in contempt.

II. STANDARD OF REVIEW

Issuance of a turnover order is a statutory remedy grounded in equity. See Ex parte Johnson, 654 S.W.2d 415, 417 (Tex.1983) (orig.proceeding). We review a trial court’s decisions when sitting as a court of equity under an abuse-of-discretion standard. See Welder v. Green, 985 S.W.2d 170, 180 (Tex.App.—Corpus Christi 1998, pet. denied) (“Matters of equity are addressed to the trial court’s discretion.”); see also Thomas v. McNair, 882 S.W.2d 870, 881 (Tex.App.—Corpus Christi 1994, no writ) (finding no abuse of discretion in trial court’s order of sale and partition). Accordingly, we review a trial court’s decision to issue a turnover order under the abuse-of-discretion standard. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). In matters of equity, we find abuse of discretion only if the trial court ruled arbitrarily, unreasonably, or without regard to guiding legal principles. Id.; Welder, 985 S.W.2d at 180. A trial court abuses its discretion in determining the legal principles that control its ruling if the court clearly fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). We may not reverse a turnover order for abuse of discretion merely because we disagree with the trial court’s decision, if that decision was within the trial court’s discretionary authority. Buller, 806 S.W.2d at 226.

III. ANALYSIS

A. Execution by Carolyn Gerdes

In their fifth issue, the Gerdeses assert that the trial court abused its discretion in issuing the third turnover order (the “Order”) by compelling Carolyn Gerdes, a non-debtor third-party, to execute and turn over documents. The Order states “[i]t is accordingly ordered that Roger Gerdes, Jr. shall, on or before 14 days from the date of this order deliver to the Matagorda County Sheriffs office, Department 2323 Ave. E, Bay City, Texas 77414, originals of the ownership and transfer documents, executed by Roger Gerdes, Jr. and Carolyn Gerdes.” The trial court ordered Gerdes to turn over interest in Don Rogelio by delivering executed originals of the documents.

A trial court has the authority to order the turnover of property “subject to the debtor’s control.” Tex. Civ. P:rac. & Rem. Code AnN. § 31.002(b)(1) (Vernon 1997). We take judicial notice of the record in cause number 13-02-657-CV, styled “Roger Gerdes, Jr. and Carolyn Gerdes v. John Kennamer,” 155 S.W.3d 523, 2004 WL 2786078 (Tex.App.—Corpus Christi 2004, no pet. h.), which is an appeal of the underlying judgment. See In re Estate of York, 934 S.W.2d 848, 851 (Tex.App.-Corpus Christi 1996, writ denied) (holding that appellate court may take judicial notice of its own files involving the same subject matter between the same parties). Evidence introduced during the trial that resulted in the underlying judgment here showed that the Gerdeses also each owned fifty per cent of Hacienda de Aves, the Texas corporation whose 500 shares Gerdes turned over. Gerdes presented no evidence in response to the turnover order that Carolyn Gerdes’s interest in Don Rogelio was not subject to his control. Nor did he tender the documents with his signature only. Accordingly, on these facts we find that the trial court’s order that Gerdes deliver originals of documents executed by both himself and his wife to effect a turnover of ownership in Don Rogelio is not beyond the scope of the turnover statute. See Tex. Civ. Prac. & Rem.Code Ann. § 31.002(b)(1) (Vernon 1997). We hold that the trial court did not abuse its discretion in issuing a turnover order that required Gerdes to turn over documents signed by both himself and Carolyn Gerdes. See Buller, 806 S.W.2d at 226. We overrule the Gerdeses’ fifth issue.

B. Nonexistent Documents

In their first issue, the Gerdeses contend the trial court abused its discretion by ordering them to sign and turn over nonexistent documents. They argue that the Order orders them to turn over “nonexistent documents that were simply made up by the Appellee.” They also argue that forcing them to sign the documents is beyond the scope of the trial court’s power under the turnover statute.

The evidence before the trial court is undisputed that Roger and Carolyn Gerdes are the sole owners of Don Rogelio, each owning fifty per cent of the company. Contrary to the Gerdeses’ assertions, the documents, and the property interest that the documents will effectively convey, exist. The documents comprise seven pages of the appellate record, were in evidence during the hearing, and are included as an appendix in the Gerdeses’ own brief. The Gerdeses’ argument suggests the relevancy of a line of authority in which trial courts were reversed for ordering debtors to turn over property in spite of a record establishing that the debtors did not possess and had no means of obtaining the property subject to the turnover order. See e.g., Ex parte Prado, 911 S.W.2d 849, 850 (Tex.App.—Austin 1995, orig. proceeding). Stated differently, the records established that the debtors did not possess the keys to their own cells. See id. The Prado court explicitly stated that the turnover order there failed “[b]e-cause the record shows Prado had no existing nonexempt property or the future rights to any such nonexempt property.” Id. Here, however, the evidence establishes the Gerdeses’ ownership interest in Don Rogelio. Gerdes must simply sign the documents, obtain his wife’s signature, and deliver the documents to the Sheriffs office. Nothing in the record suggests that Gerdes is unable to comply with the turnover order.

Further, while the turnover statute does not specifically provide that a trial court can compel a judgment debtor to execute documents, the statute does not limit the trial court’s powers to ordering only the turnover of property and documents. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 328 (Tex.App.—Dallas 1997, writ denied). Rather, the statute provides that a judgment creditor is entitled to aid from a court through injunction “or other means” to reach the debtor’s property. Id. (citing Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (Vernon 1986)). A trial court has authority to compel a debtor to execute documents that will aid in collecting a judgment debt. Burns, 948 S.W.2d at 328. Accordingly, we hold that the trial court acted in conformity with guiding legal principles and did not abuse its discretion by ordering Gerdes to execute documents effecting a turnover of the Gerdeses’ interests in Don Rogelio. See Buller, 806 S.W.2d at 226. We overrule the Gerdeses’ first issue.

C. Inadequacy of Ordinary Legal Process

In their second issue, the Gerdeses contend that the Kennamers failed to establish that the property subject to the trial court’s turnover order could not be attached readily or levied on by ordinary legal process. We agree that the turnover statute requires the judgment creditor to show that the property could not be attached readily or levied on by ordinary legal process. Tex. Civ. Prao. & Rem.Code Ann. § 31.002 (Vernon 1997). However, when a creditor presents evidence that corporate stock is held in the hands of third parties out of the state, the evidence is sufficient to support a finding that the stock could not be attached readily. Childre v. Great Southwest Life Ins. Co., 700 S.W.2d 284, 288 (Tex.App.—Dallas 1985, no writ). We hold that the Kennam-ers established that the Gerdeses’ interest in Don Rogelio, a Mexican entity, could not be attached readily or levied on by ordinary legal process. See id. We overrule the Gerdeses’ second issue.

D. Corporate Formalities

In their third issue, the Gerdeses claim that the trial court abused its discretion in ordering them to execute documents that violate Don Rogelio’s articles of incorporation. The Gerdeses contend that Don Rogelio’s articles of incorporation require that all meetings take place at the corporate domicile, arguing that the turnover over requires them to either travel to Mexico to sign the documents or violate Don Rogelio’s articles of incorporation.

It is unclear from the record whether Don Rogelio is a partnership, corporation, or some other business organization under Mexican law. We assume without deciding that the Gerdeses are correct in asserting that Don Rogelio is a corporation. In the absence of a pleading or proof of law from another jurisdiction or a motion to take judicial notice of the laws of another jurisdiction, laws of other jurisdictions are presumed to be the same as those of Texas. See Tex.R. Evid. 203; see also Gevinson v. Manhattan Const. Co. of Ok., 449 S.W.2d 458, 465 n. 2 (Tex.1969); In re Estates of Garcia-Chapa, 33 S.W.3d 859, 863 (Tex.App.—Corpus Christi 2000, no pet.); Ochoa v. Evans, 498 S.W.2d 380, 387 (Tex.Civ.App.—El Paso 1973, no writ) (assuming Mexican law of tort of conversion is same as Texas law absent proof to contrary). The Gerdeses submitted no pleading or proof of any Mexican laws or expert testimony applying Mexican law to interpret the documents at issue. Nor does the record reflect that the trial court took judicial notice of Mexican law. See Tex.R. Evid. 203. Accordingly, we apply Texas law and rules of interpretation. See Gevinson, 449 S.W.2d at 465 n. 2; see also Garcia-Chapa, 33 S.W.3d at 863; Ochoa, 498 S.W.2d at 387.

Article 9.10(A)(1) of the Texas Business Corporations Act provides:

Any action required by this Act to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall have been signed by the holder or holders of all the shares entitled to vote with respect to the action that is the subject of the consent.

Tex. Bus. CoRP. Act Ann. art. 9.10(A)(1) (Vernon 1997). Further, article 9.10(D) provides:

If action is taken with respect to a particular matter by the holders of shares of a class or series by means of a written consent in compliance with Section A of this Article, any provision of this Act that requires advance notice of a meeting or of the proposed action will not apply as to that class or series for such action.

Tex. Bus. Corp. Act Ann. art. 9.10(D) (Vernon 1997). The record is clear that together, Roger and Carolyn Gerdes own all of the shares of Don Rogelio. The documents that the trial court ordered Roger Gerdes to turn over are specific corporate resolutions that effect a transfer of the Gerdeses’ interests in Don Rogelio. Accordingly, “consents in writing, setting forth the action so taken” will be “signed by the holder or holders of all the shares,” making article 9.10 directly applicable and dispensing with the requirement of a meeting in Don Rogelio’s domicile. See id. Further, the “action so taken” need not be taken in a formal manner. See Amarillo Oil Co. v. Mapco, Inc., 99 F.R.D. 602, 606 (D.Tex.1983) (holding article 9.10(D) satisfied when chair, without taking vote, stated “[w]e have re-elected the same officers” and secretary prepared minutes and had consents executed). Accordingly, applying Texas law, we hold that the Order does not require the Gerdeses to violate Don Rogelio’s articles of incorporation. We overrule the Gerdeses’ third issue.

E.Appointment of Agent to Effect Transfer of Ownership

In their fourth issue, the Gerdeses assert that the trial court abused its discretion by ordering them to execute and turn over documents that appoint Ken-namer as their agent. They argue that the trial court’s order provides that “the property could be turned over to Kennamer, instead of the sheriff.” In their brief, the Gerdeses do not identify by citation to the record in which document the appointment they challenge appears. We note that one of the documents contains the following language:

[T]he members by unanimous vote [alp-point John Kennamer and [blank] so that in the name and representation of [Don Rogelio], either one. of them appear before a public notary of their choice to formalize the resolutions adopted herein, sign the proper document and obtain the proper papers to, by themselves or through a third party, register those resolutions in the proper Public Registry of Commerce.

Again, the Gerdeses did not provide to the trial court any evidence of relevant Mexican law or any interpretation of this language under Mexican law, nor does the record reflect that the trial court took judicial notice of Mexican law. See Tex.R. Evid. 203. The plain language of this provision does not allow for the transfer of title to the real property at issue directly to Kennamer. We overrule the Gerdeses’ fourth issue.

F.Adjudication of Substantive Property Rights

In their sixth issue, the Gerdeses complain that the trial court abused its discretion by adjudicating their substantive property rights in a turnover proceeding by determining that their interest in Don Rogelio is community property. They argue that the turnover statute is purely procedural in nature and does not provide for the determination of the substantive rights of the parties. See Cravens, Dargan & Co. v. Peyton L. Travers Co., 770 S.W.2d 573, 576 (Tex.App.—Houston [1st Dist.] 1989, writ denied).

“To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion.” Southwest Country Enter., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 495 (Tex.App.—Fort Worth 1999, pet. denied) (citing Tex.R.App. P. 33.1(a)). Failure to do so waives the complaint. Southwest Country, 991 S.W.2d at 495 (citing Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g)). The record does'not show that the Gerdeses made any request, objection, or motion relating to the trial court’s community-property finding. Accordingly, we hold that the Gerdeses waived this issue in the trial' court and cannot now present it for appellate review. See Tex.R.App. P. 33.1. We overrule the Gerdeses’ sixth issue.

G.Noncompliance Finding

In their seventh issue, the Gerdes-es contend that the trial court erred in finding that Gerdes failed to comply with the first two turnover orders. At the time the Gerdeses initiated this appeal, the trial court had not found Gerdes in contempt of the first two orders. After initiating this appeal, and after the trial court found him in contempt, Roger Gerdes filed a petition for writ of habeas corpus with this Court and a writ of mandamus and petition for writ of habeas corpus with the Texas Supreme Court. Those proceedings appropriately addressed the compliance issue. We hold that the validity of the trial court’s finding of noncompliance with the first two turnover orders is not properly before this Court in this appeal. We decline to address the Gerdeses’ seventh issue.

IV. CONCLUSION

We have overruled six of the Gerdeses’s issues and declined to address the seventh in this proceeding. We AFFIRM the trial court’s turnover order.

Dissenting opinion by J. YÁÑEZ.

Concurring opinion by J. HINOJOSA.

Concurring Opinion by

Justice HINOJOSA.

I concur with the disposition and reasoning of Justice Castillo’s majority opinion. However, I disagree with Justice Castillo’s recommendation that the majority opinion be designated a “memorandum opinion.” Because I oppose the designation of the majority opinion as a “memorandum opinion,” I also concur with that part of Justice Yaez’s dissenting opinion entitled “Designation of Opinion.” See Tex.R.App. P. 47.4 (Opinion may not be designated memorandum opinion if author of concurrence or dissent opposes that designation).

Dissent by

Justice CASTILLO.

I believe the opinion and the dissent meet the requirements of a “memorandum opinion” set forth in rule 47.4. Rule 47.4 states, in pertinent part:

An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.

Tex.R.App. P. 47.4. (Emphasis added). The majority opinion and the dissent do not meet any of the criteria. Thus, I would designate the opinion as a “memorandum opinion.”

Respectfully, I disagree with the precedent the dissent and concurrence on designation set. They disagree with the designation of “memorandum opinion” because the “issues are not settled.” I read the first sentence of rule 47.4 which states, “If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the Court’s decision and the basic reasons for it,” to apply uniformly to those cases in which we need not reach a decision on the merits. In those cases before us that present issues for review, we then determine whether one of the criteria in the remaining part of rule 47.4 is met. In short, I construe the mandatory language in rule 47.4 to mean that designating our work as an “opinion” is the exception and not the rale.

Dissenting Opinion by

Justice YÁÑEZ.

Appellants, Roger Gerdes (“Gerdes”) and Carolyn Gerdes, appeal a January 8, 2003 turnover order, in which the trial court ordered Gerdes to: (1) execute and turn over documents which would purportedly effect the transfer of all of the stock of Inmobiliaria Don Rogelio de R.L. de C.V., a Mexican corporation; and (2) obtain the signature of his wife, Carolyn, on such documents. The turnover order is in satisfaction of a judgment in Kennamer’s favor in appellate cause number 13-02-657, styled Roger Gerdes, Jr. and Carolyn Gerdes v. John Kennamer and Mora Kennamer. Because I would reverse the judgment in cause number 13-02-657 for the reasons expressed in my dissenting opinion in that cause, I also dissent from the majority’s opinion in this cause, 13-03-046-CV, affirming the trial court’s turnover order.

Designation of Opinion

Texas Rule of Appellate Procedure 47.4 provides as follows:

If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.

Tex.R.App. P. 47.4.

Justice Castillo has recommended that the majority opinion be designated a “memorandum opinion.” I disagree that the majority opinion should be designated a “memorandum opinion” because the issues in this case are not settled. See id. Further, as author of this dissenting opinion, I oppose the designation of the majority opinion as a “memorandum opinion.” See id. Accordingly, the majority opinion must be designated as an “opinion.” See id.

      . Section 31.002 provides:
      (a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:
      (1) cannot readily be attached or levied on by ordinary legal process; and
      (2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

        (b) The court may:
      (1) order the judgment debtor to turn over the nonexempt property that .is in the debtor's possession or is subject to the debtor’s control, together with all documents or records related to the property, to a designated sheriff or constable for execution;
      (2) otherwise apply the property to the satisfaction of the judgment; or
      (3) appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.
      (c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience.
      (d) The judgment creditor may move for the court's assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding.
      (e) The judgment creditor is entitled to recover reasonable costs, including attorney's fees.
      (f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute, including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support.
      Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (Vernon 1997).

      . We also note that interest to the real property at issue passed to Don Rogelio through Gerdes’s son. The evidence at trial showed that the son transferred his interest in the real property to Don Rogelio at Gerdes's direction and on his instructions. For a more detailed discussion of how title to the real property passed to Don Rogelio, see our disposition of the Gerdeses’ appeal of the underlying judgment in Gerdes v. Kennamer, 155 S.W.3d 523 (Tex.App.—Corpus Christi 2004, n.p.h.).

      . See In re Gerdes, 117 S.W.3d 795 (Tex.2003); see also cause number 13-03-5 84-CV, In re Gerdes, Order Denying Application for Writ of Habeas Corpus dated October 7, 2003 (unpublished disposition).

      . On November 4, 2004, my rule 47.6 request was denied. TEX. R. APP. P. 47.6. Under rule 47.6, a court en banc may change a panel’s designation of an opinion.


source: Caselaw Access Project

author: ALMA L. LÓPEZ, Chief Justice.

license: Public Domain

text:
    Nathan THOMPSON, Appellant, v. Mona VELASQUEZ, Justice of the Peace Pct. 2, Uvalde County, Texas and Mariano Pargas, Jr., Justice of the Peace Pct. 6, Uvalde County, Texas, Appellees.
    No. 04-03-00847-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 8, 2004.

      David A. Bosworth, Law Office of David Bosworth, San Antonio, for appellant.
    John P. Dodson, County Attorney-Uvalde County, Uvalde, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Nathan Thompson appeals the trial court’s order dismissing his petition for writ of mandamus for lack of jurisdiction. In three points of error, Thompson contends that the trial court had jurisdiction, and the trial court erred in finding that he was not entitled to mandamus relief. We agree with Thompson that the trial court had jurisdiction to consider his petition; however, because the trial court did not consider the merits of the petition, Thompson’s issue regarding the merits of the petition and his entitlement to relief are not ripe for our consideration. Accordingly, we reverse the trial court’s order and remand the cause to the trial court for further proceedings consistent with this opinion.

Thompson filed a petition for writ of mandamus in district court seeking mandamus relief in relation to two municipal court misdemeanor convictions. The justices of the peace in the two municipal courts filed an answer and a motion to dismiss. After a hearing, the trial court dismissed the petition finding that it had no jurisdiction.

Article V, Section 8 of the Texas Constitution confers the following jurisdiction on the district courts:

District court jurisdiction consists of exclusive, appellate, and original jurisdiction in all actions, proceedings, and remedies, except in cases where exclusive, appellate, or other jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District court judges shall have the power to issue writs necessary to enforce their jurisdiction.

Tex. Const, art. V, § 8. In addition, section 24.011 of the Texas Government Code provides:

A judge of a district court may, either in termtime or vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas and all other writs necessary to the enforcement of the court’s jurisdiction.

Tex. Gov’t Code Ann. § 24.011 (Vernon 2004).

Both the constitutional and statutory provisions clearly give the district courts jurisdiction to issue writs in enforcement of their jurisdiction. The question, however, becomes whether the district courts also have jurisdiction to issue wilts against county, justice or municipal judges, and other persons in regard to the actions of those judicial officers concerning criminal litigation. See generally 43B GeoRGE E. Dix & RobeRT O. DawsoN, Texas PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 46.15 (2001).

In Winfrey v. Chandler, the Texas Supreme Court was presented with the issue of whether a district court had the jurisdiction to issue a writ of prohibition against a county judge. 159 Tex. 220, 318 S.W.2d 59, 60 (1958). The court held as follows:

A district court is not authorized to exercise general supervision and control over the county court in criminal proceedings, and its power to interfere with the orderly dispatch of such business by the latter tribunal is limited to that conferred by the Constitution and statutes of our State. Art. 5, Sec. 8, of the Constitution, Vernon’s Ann. St., provides that the district courts “shall have power to issue wilts of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.” The applicable statute, in so far as it is relevant here, follows the language of the Constitution. Art.1914, Vernon’s Ann. Tex. Civ. Stat. Under these constitutional and statutory provisions, a district court has no power to stay the trial of a criminal case pending in another court except where necessary and appropriate to protect or enforce its own jurisdiction. See Seele v. State, 1 Tex.Civ.App. 495, 20 S.W. 946 (No writ).

The case cited as authority in Winfrey also discussed the district court’s jurisdiction to issue a writ of prohibition. See Seele v. State, 1 Tex.Civ.App. 495, 20 S.W. 946, 946 (1892, no writ). After reviewing the applicable constitutional provisions, the Seele court held that the district court did not have jurisdiction to issue a writ of prohibition; however, the court noted:

If the provision of the constitution in question had included prohibition as it did injunction and other named writs, it would have been within the jurisdiction of the district court to have issued such writs in all eases that were permitted under the principles and usages of common-law and equity practice, as is illustrated by the construction of the law in question in the case of County of Anderson v. Kennedy, 58 Tex. 616. We find no provision in the law that conferred upon the district court the power to issue the writ of prohibition.

Id. at 947. Therefore, the holdings in Winfrey and Seele can be read narrowly as only addressing the district court’s jurisdiction to issue writs of prohibition.

In Grimm v. Garner, the Texas Supreme Court considered an appeal in which the intermediate court of appeals upheld the power of the district court to issue a writ of mandamus commanding a municipal court judge to grant a motion to set aside a criminal complaint. 589 S.W.2d 955, 955 (Tex.1979). The court noted that the only question presented was whether the defendant’s right to appeal by trial de novo provided him with an adequate remedy at law, making mandamus relief improper. Id. In discussing the court of appeals’ conclusion that the district court had jurisdiction to issue the writ of mandamus, the court concluded:

District courts are empowered by the Texas Constitution to “issue writs of habeas corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction.... ” Tex. Const, art. V, § 8. We have interpreted that power to be a grant of distinct jurisdiction, carrying the substantive power to issue the writs named in all cases in which courts of law or equity under settled rules would have the power to issue them, whether they be necessary to enforce some jurisdiction given by other constitutional provisions or not.

Id. at 956; see also Smith v. Flack, 728 S.W.2d 784, 799 (Tex.Crim.App.1987) (Onion, P.J., dissenting) (noting district courts have general mandamus authority in civil and criminal law matters); but see Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (stating district court has mandamus jurisdiction only to enforce its own jurisdiction).

After noting the changes in the constitutional provision governing district court jurisdiction, including a 1985 amendment, one commentator concluded that district courts have general mandamus jurisdiction’ reasoning:

Despite Winfrey, then, the pre-1985 version of article V, section 8 most likely gave the district courts general power to issue mandamus but not prohibition with regard to criminal as well as civil matters in county, justice and municipal courts.
The 1985 reformulation of the constitutional grant of power to the district courts was probably not intended to work major change in their writ authority. Proceedings for writ relief are among the “actions, proceedings, and remedies” jurisdiction over which is not conferred on some other court, tribunal, or administration body, and thus within the jurisdiction of the district courts. Since this jurisdiction no longer excludes prohibition, the district courts now almost certainly have both mandamus and prohibition jurisdiction regarding criminal matters in municipal, justice, and county court.

43B George E. Dix & RobeRt O. Dawson, Texas PRACTICE: Criminal PRACTICE & Procedure § 46.15 (2001). We agree with this reasoning. See In re Marshall, No. 04-02-00819-CV, 2002 WL 31662743, at *1 (Tex.App.-San Antonio Nov.27, 2002, orig. proceeding) (noting district court is proper forum to seek mandamus relief against municipal court judge) (not designated for publication). Accordingly, the district court erred in dismissing Thompson’s petition for writ of mandamus for lack of jurisdiction. We express no opinion on whether mandamus relief is proper on the merits of the petition because the district court has not ruled on the merits of the petition.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    In the Interest of C.A.K.
    No. 04-03-00825-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 8, 2004.

      Stephan B. Rogers, Beverly R. Riekhoff, Henslee, Fowler, Hepworth & Schwartz, L.L.P., Curtis Stoddard, James E. Monnig, San Antonio, Sharon F. Blakeney, Law Office of Sharon F. Blakeney, Kathleen Cassidy Goodman, Law Office of Kathleen Cassidy Goodman, Boerne, Frank E. Freeman, Houston, for appellant.
    Ruth G.-Malinas, William H. Ford, Ball & Weed, P.C., Richard R. Orsinger, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Sondra Kahlig appeals the trial court’s judgment that modified the parties’ joint conservatorship of C.A.K., a minor child, and designated the father, Clarence Kah-lig, as the sole managing conservator. We affirm the judgment of the trial court.

Background

On April 3, 2001, the trial court entered an agreed final divorce decree that terminated the marriage between Sondra and Clarence Kahlig. The decree appointed Sondra and Clarence joint managing conservators of their child C.A.K., with equal management rights and time access. Contemporaneously with the entry of the divorce decree, the parties signed an agreement for binding arbitration that appointed an arbitrator to resolve any future disputes concerning management rights and time access. The arbitration agreement reserved the designation of joint or sole managing conservatorship and the primary physical residence of the child as issues to be determined by a jury.

Fourteen months later, after several ar-bitrations, Sondra Kahlig filed a petition to modify the parent-child relationship requesting that she be appointed sole managing conservator. Clarence. Kahlig filed a counter-petition also seeking appointment as sole managing conservator. A 15-day jury trial was held. Nine experts and more than twenty fact witnesses testified. On May 22, 2003, the jury found that the joint managing conservatorship should be modified, and Clarence should be designated the sole managing conservator.

Pursuant to their arbitration agreement, Sondra and Clarence then arbitrated the specific modifications to their management rights and periods of access to the child. On June 16, 2003, the arbitrator entered Arbitration Award No. 6, determining that it was in C.A.K.’s best interest to spend 70% of his time with Clarence and 30% with Sondra, and making other modifications to the parents’ rights and duties. The arbitrator also awarded $522,742.95 in attorney’s fees and court costs to Clarence, with an offset of $391,000 for nioney Clarence owed to Sondra, yielding a balance of $131,742.95 owed by Sondra. A clause in the arbitration award makes the $131,742.95 balance due and payable by Sondra only if she seeks review or modification of the court’s judgment.

Clarence filed a motion to confirm the arbitration award and to enter judgment, which was set for a hearing on July 3, 2003. On the day of the hearing, Sondra filed a motion requesting a non-jury “best interest” hearing under § 153.0071(b) of the Texas Family Code to determine whether Arbitration Award No. 6 was in the child’s best interest. During the July 3, 2003, hearing, the trial court was ready to determine whether Sondra was entitled to a best interest hearing, but Sondra’s attorney announced “not ready” and withdrew the setting on the motion. The court stated it would reserve ruling on the motion for a best interest hearing, and instructed Sondra’s attorney to re-set it for a new hearing date. The court then proceeded to enter its “Order in Suit Affecting the ParenNChild Relationship” appointing Clarence Kahlig as sole managing conservator, and confirming and incorporating Arbitration Award No. 6 in its entirety. Sondra had requested the court delay entering a final order, but the court overruled her request.

After entry of the order confirming the arbitration award, Sondra filed an application to vacate the arbitration award and a motion for new trial based on the lack of a “best interest” hearing, the invalidity of the attorney’s fees provision, and the insufficiency of the evidence to support the jury’s verdict on conservatorship. The court verbally denied her motion for new trial after a hearing on September 15, 2003, but expressly reserved ruling on Sondra’s motion to vacate the arbitration award, and again reserved ruling on Sondra’s motion for a best interest hearing. The judge made clear, however, that a final judgment had already been entered in the modification proceeding. Sondra never re-set her motion to vacate or her motion for a best interest hearing, and the record does not show she ever requested a ruling on either motion. The trial court did not rule on either motion before its plenary power expired on October 16, 2003. Sondra timely filed notice of appeal from the order entered July 3, 2003.

Analysis

As a preliminary matter, Clarence Kahlig filed a motion to strike certain documents from the clerk’s record during the pendency of this appeal. Clarence argues that documents filed prior to the April 3, 2001, divorce decree are not relevant to the modification proceeding, and their inclusion in the clerk’s record is contrary to the trial court’s ruling that only post-divorce evidence was admissible. The inclusion of a document in the clerk’s record does not necessarily mean it is relevant to the merits of the appeal, and an appellate court is free to disregard any irrelevant portions of the clerk’s record. Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 726 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Accordingly, the motion to strike is denied.

On appeal, Sondra Kahlig asserts three issues: (1) the trial court erred in entering a final judgment without conducting an evidentiary hearing to determine whether the arbitration award was in the child’s best interest; (2) the court erred by confirming the arbitration award because it denies her open access to the courts; and (3) the court erred by confirming the arbitration award because the arbitrator showed evident partiality and exceeded his authority. We will address each issue in turn.

Best Interest Hearing

Sondra makes numerous arguments that the trial court erred in entering its final judgment confirming Arbitration Award No. 6 without first holding an evi-dentiary hearing to determine whether the arbitration award was in C.A.K.’s best interest pursuant to § 153.0071(b) of the Texas Family Code. See Tex. Fam.Code Ann. § 153.0071(b) (Vernon 2002). Clarence responds that Sondra waived any right to a best interest hearing by the express terms of the arbitration agreement, or, alternatively, Sondra failed to preserve error. We agree.

“In Texas, ‘arbitration’ is generally a contractual proceeding by which the parties to a controversy, in order to obtain a speedy and inexpensive final disposition of the disputed matter, select arbitrators or judges of their own choice, and by consent, submit the controversy to these arbitrators for determination.” Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 221 (Tex.App.-Houston [1st Dist.] 1996, no writ); see also Alderman v. Alderman, 296 S.W.2d 312, 315 (Tex.Civ.App.-San Antonio 1956, writ ref'd). An arbitration clause is interpreted under contract principles and its language will be enforced according to its plain meaning unless that would defeat the parties’ intent. Porter & Clements, 935 S.W.2d at 220. If the contract is worded in such a way that it may be given a certain or definite legal interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995).

Here, Sondra and Clarence signed an agreement for binding arbitration that provides in relevant part:

Both parties renounce and waive and estop themselves from asserting that the arbitrator’s decisions made pursuant to this Agreement are not in the best interest of the child, and each party waives the right to a judicial determination that the arbitrator’s award is not in the best interest of the child, [emphasis added]

The plain language of this provision expressly waives both parties’ rights to assert the arbitrator’s decisions are not in the best interest of the child and to seek judicial review. A party’s express renunciation of a known right can establish waiver. Tenneco, Inc. v. Enterprise Prod. Co., 925 S.W.2d 640, 643 (Tex.1996). Absent fraud, misconduct, or gross mistake, none of which Sondra claims, the express waiver by parties to an arbitration agreement of a right to judicial review is permissible and effective. See Grissom v. Greener & Sumner Constr., Inc., 676 S.W.2d 709, 711 (Tex.App.-El Paso 1984, writ ref'd n.r.e.).

Sondra argues it is against public policy to permit her to contract away the right to a best interest hearing. We disagree. It is the state’s policy to encourage peaceful resolution of disputes, particularly those involving the parent-child relationship, including mediation of issues involving conservatorship, possession and child support. See Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 1997). An arbitration award has the same effect as a judgment of a court of last resort, and is conclusive on the parties as to all matters of fact and law. CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.2002). “Subjecting arbitration awards to judicial review adds expense and delay, thereby diminishing the benefits of arbitration as an efficient, economical system for resolving disputes.” Id. Pursuant to that public policy of encouraging arbitration, review of an arbitration award is so limited that it may not be vacated even if there is a mistake of fact or law. Stieren v. McBroom, 103 S.W.3d 602, 605 (Tex.App.-San Antonio 2003, pet. denied). We hold Sondra waived her right to a best interest hearing by the express terms of the arbitration agreement.

Moreover, the record shows that the child’s best interest was adequately protected by both the arbitrator and court. The arbitration agreement contemplates the arbitration proceeding would be conducted in the nature of a trial, with witnesses and evidence being presented to the arbitrator in lieu of a judicial proceeding. See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.047-.051 (Vernon Supp.2004-2005) (providing that an arbitration hearing includes the right to testify, present evidence and sworn witnesses, and cross-examine witnesses, the right to be represented by an attorney, and the right to depose and subpoena witnesses). Here, Arbitration Award No. 6 recites that it is based in part on the evidence from the jury trial on modification of conser-vatorship. The parties agree that the arbitrator heard all the expert testimony presented at trial, or reviewed the transcripts, and then heard additional evidence presented during the two days of arbitration. In fact, the arbitrator’s grant of 70/30 possession to Clarence and Sondra, respectively, tracks the recommendation which was- presented at trial by the court-appointed psychologist, Dr. Gunzburger. Moreover, a judicial finding that-the arbitration award is in the child’s best interest is implicit in the court’s judgment. The judgment states, “[t]he Court finds that the following orders are in the best interest of the child,” and then proceeds to “approve and incorporate” Arbitration Award No. 6 in its entirety. The record shows that the child’s best interest was adequately protected.

Finally, Sondra argues that the trial court had an independent duty under § 153.0071(b) to hold a best interest hearing before confirming the arbitration award. Sondra asserts that the plain language of § 153.0071(b) requires the court to hold a hearing to determine whether an arbitrator’s award is in the best interest of the child before it may enter an order confirming the arbitration award. She cites two cases, neither of which support her argument. The first case, Stieren v. McBroom, is a child support modification case in which a best interest hearing was held on a motion to vacate the arbitration award. Stieren, 103 S.W.3d at 606. In Stieren, unlike the instant case, the motion to vacate was filed before confirmation of the arbitration award. Id. at 605. The trial judge in Stieren had not previously heard any evidence on the merits of the child support modification and the best interest of the child, and granted an evi-dentiary hearing on the motion to vacate. Id. Stieren does not stand for the proposition that a best interest hearing is always required before an arbitration award may be confirmed. The second case cited by Sondra, Considine v. Considine, holds simply that before conservatorship or possession may be modified, the court must conduct a hearing with the admission and consideration of evidence. Considine v. Considine, 726 S.W.2d 253, 254 (Tex.App.-Austin 1987, no writ). The court in Considine reversed a default judgment modifying conservatorship because there was no evidence presented to support the modification. Id. That is not the case here, as the court had heard 15 days of testimony on the best interest of the child with respect to modification of the conservator-ship.

The trial court has been granted the authority, when properly invoked by a party, to substitute its judgment for that of the arbitrator in determining whether the award is in the best interest of the child. See Tex. Fam.Code Ann. § 153.0071(b); see also Stieren, 103 S.W.3d at 605 (noting legislature made a decision to grant trial court power to substitute its judgment for arbitrator’s judgment in the limited context of suits affecting the parent-child relationship). Section 153.0071(b) provides, “[i]f the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator’s award unless the court determines at a non-jury hearing that the award is not in the best interest of the child.” Tex. Fam.Code Ann. § 153.0071(b) (emphasis added); see also Tex. Civ. Prac. & Rem. Code Ann. § 171.087 (Vernon Supp.2004-2005) (stating, “[ujnless grounds are offered for vacating, modifying, or correcting an award under Section 171.088 or 171.091, the court, on application of a party, shall confirm the award”) (emphasis added). The party challenging the arbitration award must request the best interest hearing and must obtain a ruling on its request in order to invoke the right to a hearing and preserve error. See Tex. RApp. P. 33.1(a)(1),(2).

Here, the record shows the trial court was ready to rule on Sondra’s motion for a best interest hearing on two separate occasions, but Sondra asked for a delay and the court expressly reserved ruling on each occasion. The trial court’s plenary power ultimately expired without a ruling ever being made on Sondra’s motion for a best interest hearing. We hold Sondra waived any error by failing to obtain an express or implicit ruling on her motion for a best interest hearing. Tex.R.App. P. 33.1(a)(2)(A); see GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 260 (Tex.App.-San Antonio 2003, pet. denied); Cherry v. Lee, 899 S.W.2d 329, 331 (Tex.App.-Houston [14th Dist.] 1995, no writ) (nothing is preserved for review where trial- judge does not rule on motion and no objection is made to court’s failure to rule).

Accordingly, we hold that Sondra waived her right to a § 153.0071(b) best interest hearing in the express provisions of the arbitration agreement, and by failing to obtain a ruling on her request for the hearing.

Open Access to COURTS

In her next issue, Sondra argues that the clause in the arbitration award that requires her to pay $131,743 in attorney’s fees to Clarence only if she seeks review or modification of the judgment is unconstitutional because it deprives her of open access to the courts. See Tex. Const. art. I, § 13. Clarence responds that the assessment of attorney’s fees does not bar or punish Sondra for seeking judicial review, but merely provides a permissible financial incentive to refrain from further litigation. We agree.

The court’s judgment confirmed and adopted Arbitration Award No. 6 in its entirety. A provision of the award orders Sondra to reimburse Clarence for $522,742.95 in attorneys’ fees, expert fees and court costs incurred by him during the modification proceeding. The award provides an offset of $391,000.00 for money Clarence owes to Sondra, leaving a balance of $131,742.95 owed by Sondra. Sondra does not challenge the assessment of attorney’s fees against her, or the amount assessed, only the payment provision that states when such amount becomes due and payable.

The challenged clause states:

The balance of $131,742.95, plus interest at the rate of 10% per annum from the date of this Award until paid, shall be due and payable from Ms. Kahlig to Mr. Kahlig on the date Ms. Kahlig files any motion to reconsider, motion for new trial, or appeal to [sic] the judgment of the Court in her most recent motion to modify, or any subsequent motion to modify in suit affecting parent-child relationship pertaining to [C.A.K.], or any request for relief, from either the Court or this Arbitrator, in an attempt to increase her periods of possession and access to [C.A.K.], or to secure greater rights and duties than those apportioned to her in this Award [Arbitrator’s Award No. 6].
The award of ... $131,742.95 shall be remitted (ie., rendered not due and owing) in its entirety (principal and interest), and will no longer be due and owing to Mr. Kahlig by Ms. Kahlig, on the occurrence of any of the following:
1. In the event the parties agree to any modification of Ms. Kahlig’s periods of possession and access after December 31, 2008, without Ms. Kahlig filing a request for relief; or
2. Ms. Kahlig does not file any of the above requests for relief prior to the occurrence of those events which would normally terminate a party’s obligation for child support (See, See. 154.001, Tex. Fam.Code Ann.).

In the trial court, Sondra did not raise her constitutional argument that the payment clause denies her open access to the courts; therefore, she has waived it on appeal. Tex.R.App. P. 33.1(a)(1); see Grissom, 676 S.W.2d at 711; Kline v. O’Quinn, 874 S.W.2d 776, 791 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (opin. on motions for reh’g) (constitutional argument was waived by party’s failure to present it in trial court). In addition, her claim would fail on its merits because the payment provision does not impose any additional financial obligation or “punishment” on Sondra if she seeks judicial review or modification. She is liable for the attorney’s fees and court costs under the terms of the arbitration agreement. The assessment of court costs and attorneys fees against the non-prevailing party is not a “punishment,” but rather a routine procedure. See Tex.R. Civ. P. 131, 139. The payment clause does not foreclose Sondra’s access to the courts, or punish her for exercising her right to appeal or to initiate further modifications. Rather, it merely provides a financial incentive to cease further litigation.

ARBITRATOR’S AUTHORITY AND “Evident Partiality”

In her last issue, Sondra asserts the arbitrator exceeded his authority and exhibited “evident partiality” in his assessment of attorney’s fees against her, thereby requiring the award be vacated. Clarence responds that under the terms of the arbitration agreement, the arbitrator had the express authority to assess attorney’s fees against the party seeking modification, and Sondra failed to present any evidence of partiality by the arbitrator that would warrant vacating the award of attorney’s fees. Again, we agree.

Section 171.087 of the Texas Arbitration Act provides that upon application of a party, the court shall confirm the arbitration award unless grounds are offered for vacating, modifying or correcting the award under § 171.088. See Tex. Civ. Prac. & Rem.Code Ann. § 171.087. Sondra’s motion to vacate the arbitration award, filed after the award was confirmed by the court, alleged two statutory grounds under § 171.088:(1) that the payment provision revealed the arbitrator’s evident partiality toward Clarence, and (2) exceeded the arbitrator’s power. See Tex. Crv. Prac. & Rem.Code Ann. § 171.088(a)(2)(A), (a)(3)(A) (Vernon Supp.2004-2005). Even though a hearing was held on Sondra’s motion to vacate the arbitration award, the trial court never ruled on the motion and Sondra never objected to its failure to rule. Therefore, Sondra has not preserved any error with respect to the statutory grounds for vacating the attorney’s fees award. Tex.R.App. P. 33.1(a)(2)(A); see GJR Mgmt., 126 S.W.3d at 260; Kline, 874 S.W.2d at 790-91 (non-prevailing party in arbitration must raise grounds to vacate the arbitration award in the trial court in order to be able to present those grounds on appeal).

Moreover, the record does not contain any evidence that the arbitrator exceeded his authority or exhibited partiality or bias. Section 171.048(c)(1) of the Texas Arbitration Act states the arbitrator shall award attorney’s fees if the fees are provided for in the arbitration agreement. Tex. Civ. Prac. & Rem.Code Ann. § 171.048(c)(1). Section 1.04 of the arbitration agreement authorizes the arbitrator “at his own discretion and taking into consideration which party initiated the arbitration, [to] make a binding arbitration award requiring either party to pay costs, legal fees or expert fees of the other party.” The authority of an arbitrator is derived from the arbitration agreement and is limited to a decision of the matters submitted to arbitration, either expressly or by necessary implication. Barsness v. Scott, 126 S.W.3d 232, 241 (Tex.App.-San Antonio 2003, pet. denied) (quoting Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959)). An arbitrator therefore exceeds his authority only when he decides a matter not properly before him. Id. The challenging party has the burden to establish facts showing the arbitrator exceeded his power and there is no such evidence here. By the express terms of the arbitration agreement, the arbitrator clearly had authority to assess attorney’s fees and costs against Sondra. Moreover, Sondra agreed to the arbitrator’s assessment of the attorney’s fees and court costs -in this particular modification proceeding.

Furthermore, an arbitration award alone cannot establish “evident partiality” by the arbitrator under § 171.088(a)(2)(A). City of Baytown, 886 S.W.2d at 520 (losing result by itself was not evidence of partiality by arbitrator). A party seeking to vacate an arbitration award has the burden to bring forth a sufficient record to establish any basis, including constitutional grounds, that would warrant vacating the award. GJR Mgmt., 126 S.W.3d at 263; Kline, 874 S.W.2d at 790-91. The party must prove the existence of facts that would establish a reasonable impression of the arbitrator’s partiality to one party, such as an interest in the outcome or a relationship with a party. City of Baytown, 886 S.W.2d at 520. Here, there is no transcript of the arbitration proceedings and there is no evidence of partiality by the arbitrator in the record. See Grissom, 676 S.W.2d at 711-712 (failure to supply transcript of arbitration proceeding, or court hearing, caused party to fail to meet its burden on motion to vacate).

Accordingly, we hold that Sondra waived her right to a best interest hearing, and failed to preserve error on the award of attorney’s fees. See Tex.R.App. P. 33.1(a)(1),(2). In addition, Sondra failed to present any evidence that the arbitrator exceeded his powers or exhibited evident partiality toward Clarence.

Based on the foregoing reasons, we affirm the trial court’s judgment.

      . During the preliminary stage of the appeal, Sondra filed a motion to abate the appeal arguing that there was no final judgment because the court had expressly reserved ruling on her motion for a best interest hearing and motion to vacate the arbitration award. In an order issued February 13, 2004, this Court denied her motion to abate because even if the trial court had intended to rule on those two motions, it lost plenary power on October 16, 2003, and no longer had jurisdiction to address the merits of the motions.

      . Sondra’s motion for new trial was overruled by operation of law on September 16, 2003. See Tex.R. Civ. P. 329b(c). On October 10, 2003, within its plenary power, the court signed a written order denying the motion for new trial that reiterated it was "reserving] ruling on [Sondra's] Motion for Evidentiary Hearing pursuant to § 153.0071(b) of the Texas Family Code and her Application to Vacate Arbitrator’s Award, so that counsel may examine the reporter's record of the trial.” The court's plenary power expired on October 16, 2003, thirty days after the motion for new trial was overruled by operation of law. See Tex.R. Civ. P. 329b(e).

      . By order issued October 5, 2004, the court granted Sondra's motion to withdraw her first issue challenging the factual sufficiency of the evidence to show a "material and substantial change” in the child's circumstances, and dismissed that issue from the appeal.

      . Sondra does not challenge any specific provision of Arbitration Award No. 6 as not being in the child’s best interest; therefore, we do not review the substance of the award’s modifications to the parents’ management rights and time access.

      . At oral argument, Sondra's attorney raised a new argument that the offset provision of the attorney’s fees award interferes with the parties’ property settlement agreement in the divorce decree, and that the arbitrator therefore exceeded his powers. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex.R.App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990); Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563 n. 2 (Tex.App.-Texarkana 2003, pet. denied).

      . The court held three hearings on whether the assessment of attorney’s fees and court costs from the modification proceeding would be arbitrated or tried to the jury. The court finally agreed to permit the issue to be submitted to both the jury and the arbitrator, and to allow the parties to choose between the two decisions. Sondra subsequently withdrew her request for the jury to assess the court costs and attorney's fees, and agreed to submit the issue to the arbitrator.


author: KAREN ANGELINI, Justice.

text:
    Sandra Silva de TAMEZ, Individually as Representative of Juan Guadalupe Tamez (Deceased) and as Next Friend of Denise Silva de Tamez, a Minor Child, and Michael G. Willoughby, Appellants, v. SOUTHWESTERN MOTOR TRANSPORT, INC., Appellee.
    No. 04-04-00182-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 8, 2004.

      Jeff Small, Law Office of Jeff Small, J. Felix Gonzalez, Cichowski & Gonzalez, P.C., Ronald A. Ramos, Law Office of Ronald A. Ramos, P.C., San Antonio, for appellants.
    Roger D. Kirstein, M. Scott Zimmerer, Langley & Banack, Inc., San Antonio, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Sandra Silva de Tamez, as spouse of Tamez, as the representative of his Estate, and as next friend of Denise Silva de Ta-mez, a minor child, and Alicia Montalvo de Tamez (“Tamez”) and Michael G. Wil-loughby appeal the summary judgments rendered in favor of Southwestern Motor Transport, Inc. (“SMT”). Tamez sued SMT and Willoughby under the Wrongful Death Act and Survival Statute for personal injuries and damages arising from a tractor-trailer accident. Subsequently, Willoughby cross-claimed against SMT and Edwin Montalvo and counter-sued Ta-mez, alleging negligence and vicarious liability. SMT filed two separate motions for summary judgment against Tamez and Willoughby, both based on the affirmative defenses of waiver and release. SMT contended that the Release Agreements signed by both Tamez and Willoughby released SMT from liability for any injuries caused by the negligent acts and/or omissions of SMT and/or its employees, officers, agents and/or servants. The trial court granted SMT’s motions as to all claims. We affirm the judgment of the trial court.

BACKGROUND

Juan Guadalupe Tamez died and Michael G. Willoughby was seriously injured when the tractor-trailer in which they were driving crashed into an interstate overpass. At the time of the incident, Tamez and Willoughby were team co-drivers operating a tractor-trailer that Edwin Montalvo Trucking (“Montalvo”) leased to Southwestern Motor ' Transport, ' Inc. (“SMT”) pursuant to an Independent Contractor Service Agreement. Willoughby and Tamez were employees of Montalvo.

Prior to driving for SMT, SMT required that all leased drivers sign a pre-injury release agreement purportedly releasing SMT from any liability due to negligent acts and/or omissions oh its part. On March 20, 2001, Willoughby signed a pre-injury release agreement (“Release Agreement”). On May 4, 2001, Tamez signed an identical Release Agreement. On May 5, 2001, Willoughby and Tamez embarked on the trip that is subject of this dispute.

All parties agree that this appeal involves the resolution of a single issue: Is the Release Agreement signed by both Willoughby and Tamez enforceable as a matter of law? We hold that this Release Agreement is a standard third-party release that is valid and binding upon Wil-loughby and Tamez. Accordingly, we overrule all issues on appeal, and affirm the summary judgment of the trial court.

RELEASE AGREEMENT

A release agreement, valid on its face, is, until set aside, a complete bar to any action based on matters covered in the release. McMahan v. Greenwood, 108 S.W.3d 467 (Tex.App.-Houston [14th Dist.] 2003, reh’g overruled). All releases are regarded as contracts and, as such, are governed by the general rules relating to the construction of contracts. Id.

A. Standard of Review

We review a summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. TEX. R. CIV. P. 166a©; Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex.1992). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

B. Contractual Requirements

1. Fair Notice

Because pre-injury releases involve an extraordinary shifting of risk, we impose certain fair notice requirements. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507-08 (Tex.1993). These fair notice requirements include the express negligence doctrine and the conspicuousness requirement. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex.2004). The express negligence doctrine requires that the parties’ intent to release liability from the releas-ee’s own future negligence must be expressed in unambiguous terms within the four corners of the agreement. Id. The second requirement, conspicuousness, provides that the releasing language must be conspicuously written, so that a reasonable person against whom it is to operate should notice it. Id. Language that appears in contrasting type, colors, or in capitals satisfies the conspicuousness requirement. Id. A release that fails to satisfy either of the fair notice requirements of the express negligence doctrine or conspicuousness when they are imposed is unenforceable as a matter of law. Id.

Here, both fair notice requirements were satisfied. The Release Agreement signed by both Willoughby and Tamez states:

3. Release. I hereby agree to RELEASE Carrier from any and all liability for any injury(ies) or other damage(s) to me caused in whole or in part by Carrier and/or its employee(s), officer(s), agent(s) and/or servant(s), including any and all such injury(ies) and/or damage(s) caused by or resulting from the NEGLIGENT ACT(S) AND/OR OMISSION(S) of Carrier and/or its employee(s), officer(s), agent(s) and/or servant(s).

The bolding, capitalization, and underlining is as indicated in the original Release Agreement. Here, the release in favor of SMT easily satisfies the requirements of fair notice by reciting specifically that SMT is being released from its own negligence and by using contrasting type to satisfy the conspicuousness requirement.

2. Meeting of the Minds

Nevertheless, on appeal, both Willoughby and Tamez assert that summary judgment was improper because fact issues remain regarding what Willoughby and Tamez understood the effect of these documents to be. A release encompasses the contractual element of mutual intent and whether the minds of the parties have met. See Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex.App.-San Antonio 1998, no pet.). Specifically, Tamez contends that because .he was limited in his ability to read or write English, he was unable to understand a complex legal document such as the Release Agreement. Therefore, according to Tamez, there was essentially no meeting of the minds and no binding contract of release. We disagree.

To the contrary, a person who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and he must be held to have known and fully comprehended the legal effect of the contract. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex.App.-Houston [1st Dist.] 1986, no writ). Moreover, illiteracy is no defense and will not relieve a party of the consequences of the contract. Vera, 989 S.W.2d at 17.

Here, Tamez, a resident alien from Mexico, signed a release that satisfies the elements of fair notice and conspicuously states that “I acknowledge that I have read this Agreement, and fully understand the provisions and convenants contained in this Agreement.” Therefore, even though English was not his first language, we must presume, as a matter of law, that Tamez read and understood the contract, unless he was prevented from doing so by trick or artifice. Vera, 989 S.W.2d at 17. Because Tamez has not raised an issue regarding fraud, misrepresentation, or concealment in the procurement of the Release Agreement, we hold that it is a valid and binding contract, and Tamez is bound by the terms of the instrument as fully as would those who could, and did not, read it. See Indemnity Ins. Co., 129 Tex. at 173, 101 S.W.2d 553. Accordingly, we overrule this issue on appeal.

3. Consideration

In addition, Tamez and Wil-loughby argue that the Release Agreement must be declared void for lack of consideration. We recognize failure of consideration as an affirmative defense to an action on a written agreement. See Nat’l Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935). A release agreement, like any contract, must be supported by valid consideration. Flatt v. Hill, 379 S.W.2d 926 (Tex.App.-Dallas 1964, writ ref'd n.r.e.). In accordance with the general rules of contracts, consideration sufficient to support a release must consist of either a benefit to the releasor or a detriment to the person released. Atkins v. Womble, 300 S.W.2d 688, 702-03 (Tex.App.-Dallas 1957, writ ref'd n.r.e.). SMT asserts that it provided Tamez and Wil-loughby with two benefits as consideration for the Release Agreement: (1) the ability to participate as leased co-drivers for its company, and (2) occupational health insurance. With regard to SMT’s first item of consideration, we agree.

a. Ability to Participate as Leased Co-drivers

First, SMT asserts that it provided valid consideration to support the Release Agreements by allowing Willough-by and Tamez to participate in a voluntary activity to which they had no legal right— the ability to participate as leased co-drivers for SMT. We agree. When the relea-sor acquires a legal right to which he would not otherwise be entitled in exchange for signing the release, the relea-sor receives a benefit. See Atkins, 300 S.W.2d at 702-03. The Release Agreement, as signed by Willoughby and Tamez, states that “as a condition to me being a driver and a passenger co-driver of one or more trucks operated for Carrier, Contractor and Carrier require that I agree to the release provisions and covenants contained in this Agreement.” Here, Tamez and Willoughby did not have a legal right to participate as leased co-drivers for SMT. They were given the voluntary opportunity, however, as part of their employment with Montalvo, to participate as leased co-drivers for SMT. As a condition to participating in this voluntary activity, SMT required its drivers to sign the Release Agreement. Therefore, by electing to participate as a leased co-driver for SMT, both Tamez and Willoughby accepted the consideration proffered by SMT and granted a pre-injury release in return.

b. Occupational Health Insurance

SMT also claims that it provided valid consideration to support the Release Agreement because Montalvo Trucking furnished occupational health insurance to Willoughby and Tamez pursuant to the terms of its Independent Contractor Service Agreement with SMT. We disagree with SMT’s contention, however, that this term constituted a statement of consideration for the Release Agreement. While we recognize that it is not necessary that SMT directly furnish the consideration for the Release Agreement, there still must be evidence that the consideration was “bargained for” in exchange for the release. See TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 672 (Tex.App.-Austin 2002, no pet.) (holding that advantage to party was not consideration when it was neither promised nor given by anyone in exchange for obligations undertaken by party); see generally RESTATEMENT (SECOND) OF CONTRACTS § 71 (1981). The ICS Agreement is a wholly different contract as between SMT and Montalvo Trucking, establishing their rights and duties. There is no indication in the ICS Agreement, and SMT does not cite to one, that would link a provision in its terms to consideration for the later Release Agreement between Willoughby and Tamez and SMT.

Nevertheless, only some consideration is necessary, and we hold that there was valid consideration for the release based on Tamez and Willoughby’s ability to participate as leased co-drivers. Accordingly, we overrule this issue on appeal.

C. Employment Relationship

Therefore, the Release Agreement having satisfied all the contractual requirements of a standard third-party release, Willoughby and Tamez further contend that the trial court erred in entering summary judgment in favor of SMT since a fact question exists with regard to whether they were employees of SMT. If Willough-by and Tamez were employees of SMT, Willoughby and Tamez contend the Release Agreement should be either preempted by federal law or declared void as against public policy. In maintaining that a fact issue exists with regard to this alleged employment relationship, Wil-loughby and Tamez contend that: (1) they were “statutory employees” of SMT, or, in the alternative, (2) they were SMT’s borrowed servants. As to both, we disagree.

1. Statutory Employee

First, Willoughby and Tamez contend that they were “statutory employees” of SMT whose waiver of liability provided under the Release Agreement was preempted by federal law, specifically 49 U.S.C. § 14102 and 49 C.F.R. § 376.12.

a. Background

During the first half of the twentieth-century, interstate motor carriers, like SMT, attempted to immunize themselves from liability for negligent drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors.” See Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37 (Tex.App.-Fort Worth 2002, no pet.). Therefore, in 1956, Congress amended the Interstate Common Carrier Act (“Act”) to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of such vehicles.” Id. at 38. The purpose of the amendments to the Act was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the leased drivers, thereby protecting the public from accidents, preventing public confusion about' who was financially responsible if accidents occurred, and providing financially responsible defendants. Id. As a result of the regulatory authority granted in the Act, the Interstate Commerce Commission issued regulations that require a certificated interstate carrier who leases equipment to enter into a. written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment, for the duration of the lease. 49 C.F.R. §§ 376.11-.12 (2000); Morris, 78 S.W.3d at 38. These regulations are known as the Federal Motor Carrier Safety Regulations (FMCSR). 49 C.F.R. subch. B (2000).

Because under the FMCSR, interstate motor earners have both a legal right and duty to control leased vehicles operated for their benefit, the regulations create a statutory employee relationship between the employees of the owners-lessors and lessee-carriers. Morris, 78 S.W.3d at 38-39. The FMCSR preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier’s employee while operating an interstate carrier vehicle. Id. at 39. Thus, an interstate motor carrier’s liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common-law doctrines of the master-servant relationship and responde-at superior. Id. Instead, an interstate carrier is vicariously liable as a matter of law under the FMCSR for the negligence of its statutory employee drivers. Id.

b. Analysis

Citing the FMCSR, Willoughby and Tamez contend that, because they were statutory employees of STM for purposes of protecting the public, SMT must be prevented from insulating itself from liability due to its status as third-party rather than employer, and the Release Agreement must be preempted by federal law. See 49 C.F.R. § 376.11-12. We disagree.

Section 376.12 provides that “the authorized carrier lessee shall have exclusive use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 C.F.R. § 376.12(c)(1). Nevertheless, paragraph (c)(4) of § 376.12 further instructs the court:

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements.

In interpreting and reconciling these provisions, we agree with the rationale of the court in Pouliot v. Paul Arpin Van Lines, Inc., 292 F.Supp.2d 374, 383 (D.Conn.2003): “The import of this language is plain—the existence of a lease under regulations that impose liability between the carrier-lessee and the public does not have any impact on the type of relationship that exists between the carrier-lessee and the contractor-lessor.”

In fact, the Fifth Circuit has specifically held that the policy underlying the FMCSR does not apply as to co-employees of motor carriers injured by their fellow employees’ negligence since they could recover from their employer in workers’ compensation. See Price v. Westmoreland, 727 F.2d 494, 497 (5th Cir.1984); see also White v. Excalibur Ins. Co., 599 F.2d 50, 55-56 (5th Cir.1979). Here, Willoughby and Tamez could recover from Montalvo, their employer, via both occupational health insurance and their common law rights. Accordingly, with regard to statutory employment, we overrule this issue on appeal.

2. Borrowed Servant

Second, Willoughby contends that, because SMT retained control over the details of Tamez and Willoughby’s work, they were SMT’s borrowed employees and/or SMT was a co- or dual employer with Montalvo, thus making SMT liable for the consequences of Tamez and Willough-by’s negligence. Again, we disagree.

Under the “borrowed servant” doctrine, the employee of one employer can become the employee of another “special” employer. In so doing, the central inquiry is which employer had the power to control and direct the employees in the manner and details of their work. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex.2002) (holding that the test for determining whether a person is the employee of the general employer or the borrowed servant of the special employer is which employer controls and gives specific direction to the borrowed employee). Generally, the right of control and direction is a question of contract between the two employers. See Alice Leasing Corp. v. Castillo, 53 S.W.3d 433, 440 (Tex.App.-San Antonio 2001, pet. denied). Moreover, where both employers are operating under a contract expressly assigning the right to control, a court can dispose of the borrowed employee issue without the necessity of considering the facts and circumstances of the project. Id. Here, the Independent Contractor Service Agreement between SMT and Montalvo explicitly gave Montalvo the right of control over Willoughby and Tamez. Accordingly, we hold that neither Willoughby nor Tamez was an employee of SMT, and we overrule this issue on appeal.

D.Public Policy

Finally, in conjunction with their employment issues, Tamez and Wil-loughby contend that the Release Agreement was void because it violated public policy. In alleging violations of public policy, Willoughby contends that the Release Agreement was coercive because its execution was procured as a condition of employment; it circumvented the policy favoring the provision of occupational medical coverage for employees under the workers’ compensation scheme; and it transferred the risk of job-related injuries from SMT to its employees. A release, just as any other contract, is subject to the public policy of the state. Ranger Ins. Co. v. Ward, 107 S.W.3d 820 (Tex.App.-Texarkana 2003, pet. denied).

In addressing the Release Agreement with regard to public policy considerations, all parties principally rely upon the court’s analysis in Lawrence v. CDB Servs., Inc., 44 S.W.3d 544 (Tex.2001), superseded by Tex. Lab.Code Ann. § 406.033(e) (Vernon Supp.2004-05) (“Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee’s injury or death is void and unenforceable”). In Lawrence, an employee sued his employer for negligence in causing his work-related injuries. Id. at 545-46. The employer was a non-subscriber to workers’ compensation insurance but provided benefits through an employee benefit plan for employees who elected to participate in the plan. Id. Lawrence, the employee, signed an election to participate in the employee benefit plan and, as a requirement for participation, waived his right to recover from the employer for work-related injuries. Id. Following work-related injuries, Lawrence argued that the election to participate in the employee benefits plan that included the waiver of his right to sue his employer was void because it violated pub-lie policy. Id. Emphasizing Lawrence’s voluntary election between the employer’s benefits plan and the employee’s right to sue, the Lawrence court disagreed and held that the Workers’ Compensation Act did not establish public policy prohibiting an otherwise valid pre-injury agreement by which the employee waived common law rights to sue the employer for negligence in exchange for rights to benefits. Id. (“Absent any clear indication of legislature intent to prohibit such agreement, we decline to hold them void on public policy grounds”).

Applying the Lawrence decision, Willoughby and Tamez focus on this voluntary election of rights distinction and allege that they were not free to decline to sign the releases required by SMT, and, furthermore, were not provided any benefits by SMT in return for signing the release agreements. This discernment, however, is inapplicable. The underlying premise of the court’s decision in the Lawrence case was the existence of an employer-employee relationship. See Lawrence, 44 S.W.3d at 544 (applying to actions brought against employers by employees acting in the course and scope of their employment). As discussed above, neither Willoughby nor Tamez were employees of SMT, statutory or otherwise; they were employees of Montalvo Trucking and were merely leased drivers of SMT. As non-employees of SMT, SMT should not be required to provide Willoughby or Tamez with workers’ compensation or any other viable and voluntary alternative. Accordingly, we overrule this issue on appeal.

CONCLUSION

We overrule all issues, and affirm the judgment of the trial court.

      . Because Willoughby did not raise this argument to the trial court, however, he has waived it on appeal.

      . Tamez relies on the testimony of Ida Mon-talvo: "based on my acquaintance with Juan Tamez for more than five years and my knowledge of his English language capabilities, he could not possibly understand a legal document as complex as the Release Agreement.”

      .Absent proof of mental incapacity, a person who signs a contract is presumed to have read and understood the contract, unless he was prevented from doing so by trick or artifice. Associated Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706, 708 (1956); Indemnity Ins. Co. of N. Am. v. W.L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556-57 (1937). This is true even in cases in which a party to the contract is illiterate. W.L. Macatee & Sons, 101 S.W.2d at 557.

      . In the Release Agreement, "Contractor” re- . fers to Montalvo, Willoughby and Tamez’s employer, and "Carrier” refers to SMT.

      . The provision in the Agreement SMT refers to actually provides: "CONTRACTOR agrees to acquire and maintain at CONTRACTOR’S expense worker’s compensation insurance acceptable to CARRIER, covering all employees of CONTRACTOR employed for the purpose of furnishing services under the terms of this Agreement.... CONTRACTOR further agrees that any such worker’s compensation insurance policy will contain a waiver of subrogation endorsement, waiving any right of subro-gation against CARRIER.”

      . Act of Aug. 3, 1956, Pub.L. No. 84-957, 1956 U.S.C.C.A.N. 1163 (current version at 49 U.S.C.A. § 14102(a)(4) (1997)). The current version of the statute contains the same requirement, but it is worded a little differently. It requires carriers to assume full direction and control of the leased vehicles "as if the motor vehicles were owned by the motor carrier.” 49 U.S.C.A. § 14102(a)(4).

      . Although Lawrence was superseded by statute, Lawrence remains the law of those claims, like Tamez's and Willoughby’s, brought by workers who both signed agreements and suffered injury before September 1, 2001. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex.2004).