author: Justice LANG-MIERS.

text:
    RT REALTY, L.P.; Aetna Casualty and Surety Company n/k/a Travelers Casualty and Surety Company; Lexington Insurance Company; Allstate Insurance Company; Dr. Karl A. Kuchenbacker, P.C.; Wilson, White & Copeland, L.L.P.; and Bailey Vaught Robertson & Company, Appellants, v. TEXAS UTILITIES ELECTRIC COMPANY, Appellee.
    No. 05-04-00302-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 13, 2006.

      E. Stratton Horres, Jr., Rebecca M. Al-cantar, Jeffery O. Marshall, Wilson Elser Moskowitz Edelman & Dicker, LLP; William E. Bailey, Law Offices of William E. Bailey; Lawrence T. Bowman, Cozen & O’Connor, P.C.; James Robert Krause, Lawrence J. Friedman, Friedman & Feiger, L.L.P.; Del W. Meeham, Jr.; Claude R. Wilson, Jr., Vial Hamilton, Koch & Knox, Dallas, for Appellants.
    Travis E. Vanderpool, Worsham, For-sythe, Sampels & Wooldridge; Melanie Irene Kemp, Dallas, for Appellee.
    Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

We deny Wilson, White & Copeland, L.L.P.’s motion for rehearing. On our own motion, we withdraw our opinion of November 21, 2005 and vacate our judgment of that date. This is now the opinion of the Court. This is an appeal of the order granting summary judgment dismissing claims against Texas Utilities Electric Company (TU Electric) and granting a motion for sanctions dismissing claims against TU Electric because of RT Realty’s spoliation of evidence. For the reasons that follow, we affirm.

BACKGROUND

Republic Tower II is a fifty-story office tower in downtown Dallas that was built in the 1960s. TU Electric provided electric service for Tower II through the underground network that supplies electrical power to all of the Dallas central business district. During construction, TU Electric representatives and representatives of the builder, architect, and owner (collectively, the customer) worked together to design the electrical vault that would house the equipment needed to supply the 480-volt service requested by the customer. TU Electric specified the weight and size of the transformers to be placed in the vault and the airflow required. The customer then built the vault, which was located in the first level basement (IB) of the parking garage under the Bryan Street sidewalk. It was covered by ventilation grates at the sidewalk level and contained four drains in the bottom. The vault was built primarily of concrete, but one wall was brick.

During initial construction, TU Electric installed current-limiting fuses (CL fuses) in the vault on its side of the point of delivery to protect its equipment from problems on the customer’s side of the point of delivery. In the late 1960s or early 1970s, TU Electric discovered that CL fuses did not always prevent arcs in the 480-volt systems and began to test alternative fire protection systems. As a result of these tests, TU Electric determined that a fenwal system provided better protection than the CL fuses. TU Electric retrofitted all of its 480-volt systems with the fenwal system, including its system for Tower II.

On May 5, 1995, a heavy rainstorm struck the Dallas area, causing extensive flash floods, hail, loss of life, and property damage throughout the area. At that time, RT Realty owned Tower II; and Dr. Karl Kuchenbacker, P.C.; Wilson, White & Copeland, L.L.P.; and Bailey Vaught Robertson & Company (collectively, Appellants) were tenants. Downtown Dallas received over five inches of rainfall per hour that evening. A massive amount of water surged down Bryan Street. Rain water flooded the first floor of Tower II, entering the elevator shaft and causing electrical arcing. Dense smoke filled the entire building. Witnesses testified that drains in the parking garage were unable to remove the amount of water flowing in from the street and accumulating in the garage.

Rain water also fell through the sidewalk ventilation grates into the electrical vault and the vault flooded. The pressure from the accumulating water caused the brick wall of the vault to collapse and spill water into the parking garage. By evening’s end, over sixty inches of water collected on level 5B, the lowest below ground level of the parking garage.

Earlier in the evening, Gene Strawn, who worked in the operator room on level 5B, saw water dripping from the access panels in the level 5B ceiling onto one of the pumps responsible for removing water from the drainage systems. He called to have a maintenance man help him cover the pumps. Before help arrived, Strawn observed that another pump was straining to pump the water out of level 5B and that the water level was within one foot of the top of this pump. Strawn also saw water flowing onto the main electrical equipment on level 5B. He did not attempt to determine the source of this water. When the maintenance man arrived, he saw shorting and sparks coming from this equipment. He did not do anything to protect the pumps or the main electrical equipment.

A couple of minutes later, Strawn left. He walked up to level 4B where he saw Dalton Page, Tower II’s security officer. Page suggested they move their cars from the underground parking garage because of all the water entering the building, so they drove their cars to the top of the exit ramp. Strawn saw water “coming down real fast” from the entrance ramp as he moved his car. They went to the security console on the main floor to wait out the storm. At one point, Strawn attempted to return to level 5B to check on the equipment, but could not get past the main floor because something, he guessed fumes, burned his eyes and nose. While at the security console, Page heard a loud “explosion” that was later determined to be the brick wall of the vault collapsing from the pressure of the accumulated water. At some point, Tower II lost all power. The building was evacuated and repairs took several months.

RT Realty sued TU Electric for (1) negligence and gross negligence in failing to maintain the vault and in failing to protect RT Realty’s electrical equipment, (2) breach of the implied warranties of merchantability and fitness for a particular purpose, (3) breach of contract, and (4) strict products liability. RT Realty sought recovery in excess of $40 million for property damage. The tenants intervened in the lawsuit and sought recovery in excess of $1.5 million for property damage and loss of business. Aetna and Lexington, who insured RT Realty, and Allstate, who insured Dr. Kuchenbaeker, also intervened seeking the recovery of over $17 million they paid to their insureds.

During the discovery phase of litigation, all of the parties’ experts agreed the electrical problem on May 5 began with arcs in the customer’s main electrical equipment on level 5B caused by water entering the equipment. But the parties disagreed about the source of that water. Appellants initially argued the water came from the vault when the brick wall collapsed. Later, they alleged that as the water level rose in the vault, the water entered the customer’s electrical system in the vault because of a faulty seal at the connection between TU Electric’s equipment and RT Realty’s equipment and then traveled through conduits from level IB to the main electrical equipment on level 5B. In the opinion of TU Electric’s experts, it was not physically possible for this to occur because the equipment that carried the electrical system from the vault to the main electrical equipment on level 5B was ventilated with holes in the conduits and made two ninety degree turns, and the water would have fallen through the ventilation holes before it could have reached the equipment on level 5B.

This ventilated equipment, which had been removed from the building after the flooding, was destroyed while litigation was pending. TU Electric argued it would be impossible to determine whether water traveled through this equipment without physically examining it. Appellants’ expert also agreed he would have to examine the equipment to determine that the water actually entered the equipment in the vault and traveled through the system to the main electrical equipment on level 5B.

TU Electric filed a motion for summary judgment on traditional and no evidence grounds, arguing, among other things, that all of Appellants’ claimed damages are economic damages for which TU Electric has limited liability under the terms of its tariff, and that it had no duty to protect RT Realty’s equipment. TU Electric also filed a motion for sanctions against Appellants, seeking dismissal of their claims because of spoliation of the electrical equipment.

The trial court granted TU Electric’s motion for summary judgment “in its entirety,” dismissing all claims against TU Electric. The trial court also granted TU Electric’s motion for sanctions and struck Appellants’ pleadings. Appellants appeal the trial court’s rulings.

SummaRY Judgment

Appellants argue the trial court erred (1) by granting TU Electric’s motion for sanctions and dismissing Appellants’ claims and (2) by granting summary judgment in favor of TU Electric. We address the summary judgment issue first. TU Electric filed one motion in which it argued both traditional and no-evidence grounds for summary judgment on all of Appellants’ claims.

Standard of Review

We review a grant of summary judgment de novo. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standard of review in traditional summary judgment cases is well established. The issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). The movant bears the burden of proof and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). All evidence and any reasonable inferences must be viewed in the light most favorable to the non-movant. Nixon, 690 S.W.2d at 548-49. Evidence favoring the movant’s position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). A defendant is entitled to summary judgment if it conclusively negates an essential element of the plaintiffs case or conclusively establishes all necessary elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

In a no evidence summary judgment, a party moves for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which the adverse party has the burden of proof. Tex.R. Crv. P. 166a(i). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Hartis v. Mason & Hanger Carp., 7 S.W.3d 700, 702 (Tex.App.-Amarillo 1999, no pet.).

We review a no evidence summary judgment under the same standard as a directed verdict. King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Accordingly, we examine the record in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). If the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is improper. Tex.R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. A party produces less than a scintilla of evidence when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). A party produces more than a scintilla of evidence if the evidence allows reasonable and fair-minded people to differ in their conclusions. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

Discussion

In its order granting TU Electric’s motion for summary judgment “in its entirety,” the trial court cited Southwestern Bell Telephone Co. v. Metro-Link Telecom, Inc., 919 S.W.2d 687, 692-93 (Tex.App.Houston [14th Dist.] 1996, writ denied), for the proposition that the “filed rate doctrine applies across the spectrum of regulated utilities,” and Mincron SBC Corp. v. WorldCom, Inc., 994 S.W.2d 785, 790 (Tex.App.-Houston [1st Dist.] 1999, no pet.), for the proposition that the “filed rate doctrine applies to non-pecuniary terms of service, not just rates.” From this we conclude the trial court granted summary judgment in favor of TU Electric because the terms of TU Electric’s tariff governed Appellants’ claims and that TU Electric was not liable pursuant to its tariff.

1. The filed rate doctrine

Prior to 1999, the Public Utility Commission (PUC) had “exclusive jurisdiction to regulate utility rates, operations, and services.” Grant, 73 S.W.3d at 216; Tex. Util.Code Ann. §§ 32.001(a) & 36.001 (Vernon 1998). The PUC required all utilities to file a document, called a tariff, listing its services and rates for those services. Tex. Util.Code Ann. § 32.101; Grant, 73 S.W.3d at 216. This document governed the utility’s relationship with its customers. Grant, 73 S.W.3d at 216. The tariff amounted to a binding contract between the utility and its customers. See Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668 (Tex.1999). Aggrieved customers could not enforce alleged rights that contradicted the tariffs provisions. Grant, 73 S.W.3d at 217.

Upon approval by the PUC, the tariff was presumed reasonable unless a litigant proved otherwise, and it had the force and effect of law until suspended or set aside. Grant, 73 S.W.3d at 216-17. This became known as the “filed rate doctrine.” Id. Under this doctrine, “a utility’s obligations to its customers cannot exceed its duties under a filed tariff.” Id. at 217. As a result, customers cannot sue a utility in contract or tort over issues governed by the tariffs terms. Id.

In Auchan, the Texas Supreme Court applied the filed rate doctrine and held that a tariff provision that limits liability for economic damages arising from a utility’s negligence is not unreasonable and that the negligence claims were foreclosed by the terms of the tariff. Auchan, 995 S.W.2d at 675. But that case did not address whether a tariff may limit liability for gross negligence or willful misconduct. Id. More recently in Grant, the supreme court held the tariff, limiting liability for personal injury damages arising from ordinary negligence, was reasonable as a matter of law because it was narrowly drawn and provided a remedy for the utility’s gross negligence or willful misconduct. Grant, 73 S.W.3d at 220.

2. The TU Electric tariff

We review the reasonableness of a tariff as a question of law. Auchan, 995 S.W.2d at 671. TU Electric’s tariff limited its liability for economic damages, but provided a remedy for damages caused by TU Electric’s wanton or willful acts or omissions. The tariff provided:

4.5.3.1 Company Liability and Responsibility
Company is responsible for the design, installation, operation and maintenance of electric facilities up to and including the point of delivery except as provided elsewhere in this Tariff for Electric Service. Customer is responsible for the design, installation, operation, and maintenance of electric facilities beyond the point of delivery except as provided elsewhere in this Tariff for Electric Service.
Company may perform voluntary or emergency acts to electric facilities which are the responsibility of the Customer but shall have no liability for damages or injuries resulting from said acts except to the extent the said damages or injuries are proximately caused by acts or omissions of the Company which are found to be wanton or willful with the intent to cause injury.
In any claim or cause of action relating to the provision of electric service asserted by Customer or any other person against Company, Company shall not be liable for any consequential, special, or non-direct damages, including but not limited to loss of use of equipment, extra expense due to the use of temporary or replacement equipment, loss of electronic data or program, loss of business revenue, costs of capital or any cost not part of necessary repair to or reasonable replacement of electric equipment whether the claim or cause of action is based upon contract, tort, negligence, products liability, or any other theory of recovery, (emphasis added)

Under Texas law, tariffs such as TU Electric’s are reasonable as applied to economic damages resulting from the utility’s ordinary negligence. See Grant, 73 S.W.3d at 220; Auchan, 995 S.W.2d at 675; First Assembly of God, Inc. v. Tex. Util. Elec. Co., 52 S.W.3d 482, 490 (Tex.App.Dallas 2001, no pet.).

We conclude TU Electric’s tariff is reasonable under the circumstances of this case and that it applies to Appellants’ claims.

3. TU Electric’s duty and claimed gross negligence

Appellants argue that TU Electric is liable for Appellants’ damages because TU Electric was grossly negligent when it (1) excluded RT Realty from the vault thereby preventing RT Realty from maintaining its electrical equipment, (2) failed to provide adequate protective devices and inform RT Realty of the availability of the fenwal system, (3) failed to inspect the seal in the vault, and (4) failed to install water pumps in the vault.

Appellants argue the tariffs “wanton or willful” language is included within the definition of gross negligence and that the tariff does not deny the customer a remedy for gross negligence. In its motion for summary judgment, TU Electric argued its tariff did not create a duty that TU Electric would protect RT Realty’s equipment or maintain the vault.

The threshold inquiry regarding a gross negligence claim is whether a legal duty existed. See Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). We determine whether TU Electric owed Appellants a legal duty by examining the terms of the tariff. First Assembly of God, Inc., 52 S.W.3d at 491. The existence of a legal duty is a question of law to be decided by the court. See Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 711 (Tex.2003); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

a. Claimed exclusion from the vault

Appellants contend that TU Electric had exclusive control of the vault and was grossly negligent by failing to allow RT Realty access to the vault to conduct maintenance on its electrical system. Appellants did not make this claim under then-gross negligence theory in response to TU Electric’s motion for summary judgment— they only made this claim under their repudiation-of-the-tariff theory. Accordingly, we limit our discussion of this issue to Appellants’ repudiation theory later in this opinion. See Tex.R.App. P. 33.1(a); Grant, 73 S.W.3d at 222.

b.Claimed failure to provide adequate protection devices and inform of fenwal system

Appellants also contend that TU Electric was grossly negligent because it did not provide adequate protective devices to RT Realty or inform it about the fenwal system. We must review TU Electric’s tariff to determine the parties’ responsibilities. TU Electric’s tariff provided:

4.5.3.2 Customer Liability and Responsibility
It is particularly understood that the Customer assumes full responsibility for electric energy furnished to Customer at and past the point of delivery and will indemnify the Company against and hold the Company harmless from all claims for damages including but not limited to injuries to any persons ... and damages to property occurring upon the premises of the Customer arising from electric power and energy delivered by Company whether or not caused by the negligence of the Company except when the negligence of Company or its agent or agents was the sole proximate cause of such injuries ... or damages to property, (emphasis added)

This provision, and section 4.5.3.1 which we quoted earlier, supports TU Electric’s argument that it owed no duty to RT Realty to protect or maintain equipment past the point of delivery. Nevertheless, Appellants argue TU Electric assumed the duty to protect RT Realty’s equipment by installing CL fuses on the customer’s side of the point of delivery. But we found no evidence in the record to support Appellants’ theory that TU Electric installed CL fuses on RT Realty’s side of the point of delivery. And Appellants conceded in their supplemental response to TU Electric’s motion for summary judgment that the CL fuses were on TU Electric’s side. Additionally, engineers involved in the design and construction of electrical service to Tower II during initial construction testified that CL fuses were installed on TU Electric’s side of the point of delivery to protect TU Electric’s equipment only. As a result, Appellants offered no evidence that TU Electric assumed a duty to protect RT Realty’s equipment and did not raise a fact issue on this point.

c. Claimed failure to inspect seal

Appellants also argue that TU Electric was grossly negligent because it failed to inspect the seal on RT Realty’s electrical equipment in the vault to prevent water from entering it. But this seal is on RT Realty’s side of the point of delivery and, pursuant to the tariff, TU Electric had no duty to inspect or maintain any equipment on RT Realty’s side of the point of delivery. Accordingly, Appellants failed to raise a fact issue on TU Electric’s duty to inspect the seal on RT Realty’s electrical equipment.

d. Claimed failure to maintain vault

Appellants also argue that TU Electric failed to maintain the vault and install pumps to prevent flooding. Again, the tariff does not establish that TU Electric had a duty to maintain the vault. Testimony from engineers involved in the original design stated that the customer was responsible for the vault’s drainage design, and Appellants have not directed us to any evidence that raises a fact issue about TU Electric’s duty to maintain the vault.

In summary, appellants offered no evidence that TU Electric owed them a duty to protect RT Realty’s equipment and prevent the damages that were caused by the May 5 flood. Without a duty, there can be no negligence and no gross negligence. First Assembly of God, Inc., 52 S.W.3d at 491; see Thapar, 994 S.W.2d at 637; Axel- rad v. Jackson, 142 S.W.3d 418, 422 n. 1 (Tex.App.-Houston [14th Dist.] 2004, pet. filed). The trial court properly granted TU Electric’s motion for summary judgment on Appellants’ gross negligence claim.

4. Claimed repudiation of the tariff

Appellants also claim TU Electric had exclusive control of the vault and repudiated the tariff by failing to allow RT Realty access to the vault to perform maintenance on its equipment, and by installing CL fuses beyond the point of delivery. Appellants claim that TU Electric’s repudiation prevented Appellants from performing under the tariff and excused Appellants from performance.

In this case, TU Electric’s tariff provided:

4.5.15 Protection of Company’s Facilities on Customer’s Premises
Customer uses reasonable diligence to protect Company facilities on Customer’s premises and to permit only personnel authorized by Company or by law to have access to such facilities.

This provision does not deny RT Realty access to the vault, and summary judgment evidence showed that RT Realty could have accessed the vault with an escort from TU Electric. In fact, the only evidence Appellants offered in support of their argument that RT Realty was excluded from the vault is the affidavit of Stephen Anderson, at the time the vice-president of operations and construction for the Tower II property management company. Anderson testified

As far as I am aware, RT Realty did not have access to Texas Utilities Electric Company’s (“TXU”) vault. Furthermore, the vault grate, located on the Bryan Street sidewalk, remained locked at all times and RT Realty did not have the means to open it. TXU had control of the only means to gain access to the vault.

But TU Electric’s tariff placed the responsibility on the customer to protect TU Electric’s facilities on RT Realty’s premises, not the reverse. And the tariff did not deny RT Realty access to the vault; instead it required RT Realty as the customer to limit access to TU Electric’s facilities on the premises to persons authorized by TU Electric or by law. RT Realty did not present evidence that it attempted to access the vault or that TU Electric denied RT Realty access to the vault. Anderson stated only that, as far as he knew, RT Realty did not have access to the vault. Anderson’s affidavit did not raise a fact issue.

Appellants rely on Henderson v. Central Power & Light, 977 S.W.2d 439 (Tex.App.-Corpus Christi, pet. denied), to support their argument. In Henderson, Central Power & Light’s (CPL) tariff required the customer to maintain its connections to CPL’s meter box, but CPL placed a seal and warning label on the meter box stating that breaking or tampering with the seal was hazardous and unlawful and “will subject the customer to inspection and resealing charges, to damages and to prosecution.” Id. at 448. The Hendersons would have had to break the seal in order to perform maintenance on their connection. The Henderson court concluded that CPL repudiated the tariff because CPL’s actions had prevented the plaintiffs from complying with the maintenance provisions of the tariff. As a result, the court held that the maintenance and limitation of liability provisions of the tariff were unenforceable. Id.

The facts in this case are different. Appellants offered no evidence that TU Electric prevented RT Realty from having access to the electrical facilities beyond the point of delivery, as CPL did in Henderson. Even if TU Electric controlled the only means to unlock the vault grate, it does not mean that RT Realty was deprived of access such as to result in repudiation of the tariff. Additionally, as we have noted, we found no evidence to support Appellants’ argument that the CL fuses were installed on RT Realty’s side of the point of delivery. As a result, the trial court properly granted TU Electric’s motion for summary judgment dismissing Appellants’ claim that TU Electric repudiated its tariff because Appellants did not raise a fact issue below.

5. UCC does not apply to TU Electric’s tariff

Appellants asserted claims for breach of the implied warranties of merchantability and fitness for a particular purpose contained in the uniform commercial code. In its motion for summary judgment, TU Electric argued the UCC warranty and conspicuousness requirements do not apply to the provision of electric services and that its tariff contained a disclaimer of these implied warranties. Appellants responded that the disclaimer was not effective because it was not conspicuous as required by the UCC and was only in capital letters and not set off in bold-faced type or otherwise distinguishable. See Tex. Bus. & Com.Code Ann. § 2.316(b) (Vernon 1994).

The Texas Supreme Court has already addressed and rejected Appellants’ argument. In Grant, the supreme court faced a similar issue and concluded that applying article two of the UCC to utility tariffs would “impair the comprehensive statutory scheme regulating the sale of electricity to Texas consumers” and that “the UCC expressly prohibits such an application.” 73 S.W.3d at 218 (citing Tex. Bus. & Com.Code Ann. § 2.102). Based on Grant, we conclude the UCC does not apply to TU Electric’s tariff and the trial court properly granted TU Electric’s motion for summary judgment on Appellants’ breach of warranty claims. Grant, 73 S.W.3d at 218-19.

6. Claimed breach of contract

Appellants claim that TU Electric installed protective devices to protect RT Realty’s equipment from dangerous electrical arcing thereby creating an implied-in-fact contract between TU Electric and RT Realty that TU Electric would protect and maintain RT Realty’s electrical equipment. Appellants argue they raised a fact issue about whether TU Electric breached this contract by failing to take adequate measures to ensure the safety of the towers. However, as we have already concluded, the tariff is the contract that governs the parties’ relationships. It does not place the responsibility on TU Electric for maintenance of electrical facilities on RT Realty’s side of the point of delivery. And, as we have also noted, the evidence does nót show TU Electric installed protective devices to protect RT Realty’s equipment. As a result, Appellants did not raise a fact issue on this point, and the trial court properly granted TU Electric’s motion for summary judgment dismissing Appellants’ breach of contract claim.

7. Claimed strict liability

Appellants claim that TU Electric continued to provide electricity through the vault even after TU Electric learned the fuse system it installed was inadequate and defective. Appellants claim that the water entering the vault during the rain storm, combined with the defective fuse system that allowed the electricity to continue to flow, created an unreasonably dangerous and hazardous condition. In their response to TU Electric’s motion for summary judgment, Appellants argued they produced evidence raising a fact issue that (1) TU Electric actively participated in the design of the vault, (2) TU Electric had control of the final design of the vault, (3) TU Electric maintained exclusive control of the vault and the electrical equipment, and (4) water escaped from the vault through the bus ducts causing the arcing and fire in RT Realty’s electrical equipment on level 5B.

As we have already concluded, TU Electric’s tariff did not impose a duty on TU Electric to maintain the vault or the electrical equipment on RT Realty’s side of the point of delivery. We also concluded that Appellants failed to raise a fact issue that TU Electric denied them access to the vault. And Appellants’ strict liability claim is directed at TU Electric’s alleged failure to maintain RT Realty’s equipment, not the dangerous or defective nature of the electricity itself. Consequently, we conclude Appellants failed to raise a fact issue on their strict liability claim, and the trial court properly granted TU Electric’s motion for summary judgment on this claim.

In summary, we conclude Appellants did not raise an issue of fact to preclude summary judgment. For all of the above reasons, we overrule Appellants’ second issue and conclude the trial court did not err by granting summary judgment in favor of TU Electric. Because of our disposition of these issues, we do not need to address Appellants’ arguments concerning the “act of God” or indemnification provisions of the tariff.

Violation of Public Policy and Open CouRts PROVISION

Bailey Vaught Robertson & Company argues that allowing TU Electric to “hide” behind its tariff when it is now subject to open competition in the marketplace is a violation of public policy. And Wilson, White & Copeland, L.L.P. argues it is a violation of the open courts provision of the Texas Constitution to deny a tenant, which it argues is not a customer for purposes of the tariff, its day in court. But both parties failed to raise these arguments in the trial court. As a result, the parties did not preserve these issues for our review. Tex.R.App. P. 33.1(a); Grant, 73 S.W.3d at 222.

Dismissal as Sanctions for Spoliation of Evidence

Because the resolution of Appellants’ second issue is dispositive, we do not address their first issue, in which Appellants argue the trial court abused its discretion by granting TU Electric’s motion for sanctions and dismissing their claims.

Conclusion

We conclude the trial court did not err by granting TU Electric’s motion for summary judgment and overrule Appellants’ second issue. We do not reach Appellants’ first issue. Accordingly, we affirm the trial court’s judgment.

      . An arc is a sustained luminous discharge of electricity across a gap in an electrical circuit.
        See Webster’s third new int’l dict. 110 (1981).

        . Appellants also sued Dallas Area Rapid Transit and several construction and engineering firms, but they are not involved in this appeal.

      . Because the interests of the insurance companies and RT Realty and its tenants are the same for purposes of this appeal, we refer to them jointly as Appellants. See Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 669 (Tex.1999).

      . The Legislature amended the Public Utility Regulatory Act in 1999 "to deregulate the electricity-generation market and to permit certain electricity providers to compete for customers.” Grant, 73 S.W.3d at 216 (citing Senate Comm, on Elec. Util. Restructuring, Bill Analysis, Tex. S.B. 7, 76th Leg., R.S. (1999)). The "amendments do not affect a utility's tariff filed under and governed by the pre-1999 regulatory scheme.” Id. Accordingly, the amendments do not apply to this case.

      . Because the parties do not dispute the definitions of these terms, we will assume, without deciding, that Appellants are correct. See, e.g., Grant, 73 S.W.3d at 220 (referring to tariffs providing a remedy for "gross negligence or willful misconduct” or "gross negligence as well as willful or wanton acts”); Guadalupe-Bianco River Authority v. Pitonyak, 84 S.W.3d 326, 341 (Tex.App.-Corpus Christi 2002, no pet.) (referring alternately to "gross negligence" and "willful” and "wanton” acts).

      . The tariff provided:
      4.5.3.3. Disclaimer of Warranties
      COMPANY MAKES NO WARRANTIES WHATSOEVER WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

      . Wilson, White & Copeland, L.L.P.’s argument that it was not a TU Electric customer was not briefed separately in its initial brief on appeal and was raised and argued separately for the first time in its reply brief. This issue was not preserved for our review because it was not raised in the trial court. Tex.R.App. P. 33.1(a); Grant, 73 S.W.3d at 222.


source: Caselaw Access Project

author: RICHARD H. EDELMAN, Justice. GUZMAN, J. FOWLER, J.,

license: Public Domain

text:
    In re Glory HOPKINS, Relator.
    No. 14-06-00035-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 18, 2006.
    Richard L Tate, Richmond, for relator.
    W. Troy McKinney, Eric Thode, Houston, for respondent.
    Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
   PLURALITY OPINION

RICHARD H. EDELMAN, Justice.

On January 6, 2006, relator, Glory Hopkins, filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2005); Tex. Elec.Code Ann. §§ 161.009, 273.061 (Vernon 2003); see also Tex.R.App. P. 52. We denied relief in an opinion filed January 10, 2006. On January 13, 2006, relator filed a second petition. Relator seeks a writ of mandamus directing Eric Thode, County Chairman of the Republican Party of Fort Bend County, to accept her application and certify her for placement on the Republican party general primary ballot as a candidate for District Clerk of Fort Bend County. Thode rejected relator’s application because it was not received by January 2, 2006, at 6:00 p.m. See Tex. EleC.Code ANN. § 172.023 (Vernon 2003).

Relator seeks equitable relief from the statutory deadline to file her application for a place on the general primary election ballot. See Tex. Elec.Code Ann. § 172.023(a) (Vernon 2003). Relator asserts Thode violated a statutory duty to provide candidates with a correct address to file their applications by mail. Relator cites section 172.021(c) of the Election Code for the proposition that because candidates are allowed to file by mail, a statutory duty arose to provide the correct address to candidates for filing their applications by mail. See Tex. Elec.Code Ann. § 172.021(c) (Vernon Supp.2005).

As relevant to this case, courts may fashion an equitable remedy, including extension of a statutory deadline, to correct an official’s violation of a statutory duty. See In re Gamble, 71 S.W.3d 313, 318 (Tex.2002). When exercising this jurisdiction, a court must balance the competing equities. Id. at 317. Extending the statutory deadline is an extraordinary departure from the careful planning of the legislature and not to be invoked lightly. Id. at 318. In this case, to whatever extent the law imposed a duty on Thode to provide a correct address for filing applications by mail, and to whatever extent the three e-mails he sent containing an incorrect zip code in the address for Precinct Chair applications violated this duty, he corrected this error by providing correct information in several other and subsequent e-mails, including all of those directed to candidates for all elected positions besides Precinct Chair. Conversely, by choosing to send her application and petitions by mail, but not having the package postmarked until December 27, Hopkins assumed a risk that delivery of the materials, even if correctly addressed, could be delayed over the holiday weekend, and that she would not be notified in time to retrieve and timely file those materials by January 2. Under these circumstances, relator has not established that the failure to timely file her application reasonably resulted from the violation of a statutory duty such that the competing equities warrant extending the statutory deadline.

Accordingly, we deny relator’s petition for writ of mandamus.

GUZMAN, J. concurring, opinion to follow.

FOWLER, J. dissenting, opinion to follow.

GUZMAN, J.

concurring.

This is relator Glory Hopkins’ second petition for writ of mandamus filed in this Court. Although this court is not required to issue an opinion when denying mandamus relief, it may do so. See Tex.R.App. P. 52.8(d). This case presents significant factual differences from those presented in other cases decided under the relevant statutes, and the novel facts in this case may recur in future cases. Concluding that it is preferable to explain the basis for denying mandamus relief, I write separately to address the application of the law to these unique facts.

I. Factual Background

Eric Thode is the chair of the Republican Party of Fort Bend County. According to his affidavit, Thode distributes a weekly newsletter by e-mail to approximately 1,700 subscribers. Glory Hopkins, the District Clerk of Fort Bend County and a prospective candidate for reelection, does not subscribe to the newsletter; however, Thode asserts that he has sent e-mail communications to Hopkins through Thelma Hurd, who Thode states is Hopkins’s designee for e-mail communications. Hopkins’s campaign manager, Mandi Bronsell, subscribes to this weekly newsletter. Hopkins does not contend that Bronsell received communications from Thode— such as the three newsletters at issue here — as Hopkins’s agent, or that Hopkins instructed Thode to send e-mail communications to her through Bronsell.

Three of these weekly newsletters, dated November 21, 2005, November 28, 2005, and December 5, 2005, stated in pertinent part as follows:

FILING FOR PRECINCT CHAIR
If you would like to serve as Precinct Chair for your election precinct for the 2006-08 cycle, please download a copy of the filing form, fill it out, have it notarized and return it to me. The link to the form is here: [hyperlink omitted]. You can hand deliver the form to me at our next event, which is the Republican Party of Fort Bend County Christmas Party on Thursday, December 8 at Southern National Bank from 7:00 to 9:00 pm. Or, you can mail the form back to me at:
Republican Party of Fort Bend County
P.O. Box 1987
Sugar Land, Texas 77487-1987
If you would like to send it CERTIFIED mail, please mail your form to:
Mr. Eric Thode
Universal Compression
4444 Brittmoore
Houston, Texas 77487-1987
The form may also be faxed to me with a cover sheet to [fax number omitted]. The form must be returned to me by January 2, 2006 at 6:00 pm.

The first address, that of the Republican Party of Fort Bend County, is stated correctly. The second address is Thode’s business address. The zip code on the Brittmoore address is misstated; it incorrectly repeats the zip code to the Sugar Land post office box of the Republican Party of Fort Bend County, rather than the Houston zip code of Thode’s business.

Importantly, the newsletters at issue did not state that candidate applications for any position other than that of precinct chair would be accepted at Thode’s business address. Nor did the newsletters state that filing fees or petitions would be accepted at Thode’s business address. Previous newsletters sent on November 7, 2005 and November 14, 2005 contained a similar announcement regarding filing for precinct chair, but omitted mention of filing the application at Thode’s business address.

In the weeks following the filing deadline for precinct chair, the newsletters did not state that applications for precinct chair or for any other position would be accepted at Thode’s business address. A subsequent newsletter sent on December 12, 2005 correctly stated the address of the Republican Party of Fort Bend County as the address where checks could be sent in connection with a fundraiser. The same newsletter listed “Current Filings for the March 2006 Republican Party Primary.” Hopkins is not listed among the candidates who had filed to appear on the ballot in the primary; her opponent for the office of district clerk is listed. The newsletter reminds prospective candidates that “the filing deadline is Monday, January 2nd at 6:00 pm. If you need information, please contact chairman Eric Thode at [phone number omitted].” Newsletters dated December 19, 2005 and January 2, 2006 again correctly stated the address of the Republican Party of Fort Bend County as the address where checks could be sent in connection with a fundraiser, though they did not revisit the issue of filing for candidacy.

On November 17, 2005, Thode sent an email to elected Republican Fort Bend County public officials and persons who had expressed an intent to run for office, reminding them that the filing period to be included in the election would end on January 2, 2006 at 6:00 pm. The e-mail was sent to Hurd, as Hopkins’s designee. In the e-mail, Thode listed five methods to deliver the filing materials as follows:

1. Hand delivery to Thode at the Republican Christmas Party on December 8;
2. Delivery to his business office on Brittmoore Road (this instruction included directions, Thode’s office telephone number and cellular phone number);
3. Delivery via certified or regular mail to Thode’s business office (this instruction included the full and correct address);
4. Delivery via regular mail to the Republican Party of Fort Bend County (this instruction included the full and correct address); or
5. “Schedule a time to deliver to me in some other fashion.” (For this instruction, too, Thode listed his office and cellular telephone numbers).

Thode states in his affidavit that Hopkins made an appointment to meet Thode on December 21, 2005 to deliver her completed election application and filing fee. This was one of the options listed in Thode’s e-mail to elected officials and prospective candidates whose identities were known. Nevertheless, Hopkins did not produce her application or filing fee at the meeting, but she does not dispute that the meeting took place as alleged.

On December 27, 2005, Hopkins began the process of mailing her election application and filing fee by certified, first class mail. She addressed the envelope herself, using the address that her campaign treasurer, Libby King had provided to her. King had obtained the party address from Hopkins’s campaign manager, Bronsell. Bronsell had forwarded the incorrect listing of Thode’s business address to King, but had not included the lines above the address indicating that the address was for “FILING FOR PRECINCT CHAIR.”

Hopkins left the envelope containing her election application and filing fee at Fort Bend Postal for mailing, and the owner of the company, Jesse Mata, noticed that the street address on the envelope was a Houston address, while the zip code 77487 was a Sugar Land, Texas zip code. He testified by affidavit that “because all Houston zip codes start with ’770-,’ I assumed that Ms. Hopkins intended to write ’77087,’ ” and so changed the zip code on the certified mailing green card from the Sugar Land zip code from 77487 to 77087. He further testified that he may have changed the zip code on the envelope itself before mailing it (“either I or an employee of the United States Postal Service made that change to reflect the Certified Mailing Green Card”). Mata states that he would not have altered the zip code(s) if the address and the zip code had matched. Hopkins picked up the certified mail receipt for the letter on December 29, 2005.

Approximately twenty minutes after the statutory filing deadline expired on January 2, 2006, Thode notified Hopkins’s treasurer, King, that Hopkins’s candidacy papers had not been received. By tracking the certified mail receipt, Hopkins subsequently learned that on December 29, 2005, the United States Post Office had declared the envelope undeliverable, and was returning it to her. A copy of Hopkins’s original application for candidacy and a new check for the filing fee were hand-delivered to the secretary of the Fort Bend Republican Party on January 3, 2006; however, Thode notified Hopkins that he could not certify her candidacy to the secretary of state because her filing was untimely.

Hopkins therefore asks this court to issue a writ of mandamus, compelling Thode, as the county chair of the Republican Party, to include her name as a candidate for District Clerk for Fort Bend County. Thode does not oppose the relief requested, while her opponent, Annie Rebecca Elliott, opposes the petition for writ of mandamus. The Elections Administrator for Fort Bend County states that the requested relief would not delay or impair the election process “if [he is] informed by January 25, 2006 of whether or not Glory Hopkins will be on the ballot.”

II. Issues

Hopkins contends that she is entitled to equitable relief compelling Thode to enter her name on the general primary ballot because Thode allegedly violated a statutory duty “when he provided the wrong address for candidates to file applications by certified mail.”

III. Analysis

A prospective candidate for a county office must timely file his or her application with the county chair or the secretary, if any, of the county executive committee. Tex. Eleo.Code Ann. §§ 172.021(3), 172.022(a)(2) (Vernon 2003). An application for a place on the general primary election ballot must be filed not later than 6:00 p.m. on January 2 in the primary election year. Id. at § 172.023(a). Here, there is no question that relator’s application failed to satisfy this requirement.

Statutory requirements concerning candidacy for political office are mandatory and are to be strictly enforced. Wallace v. Howell, 707 S.W.2d 876, 877 (Tex.1986). If a prospective candidate’s application does not comply with the Code’s requirements, the party chair must reject the application. Tex. Elec.Code Ann. § 141.032(e) (Vernon 2003); see also id. at § 172.029(d) (county chair must omit the prospective candidate’s name from the list submitted to the Secretary of State). No party official can alter the filing deadline. Painter v. Shaner, 667 S.W.2d 123, 125 (Tex.1984) (orig.proceeding). Party chair Thode therefore acted in accordance with the Election Code when he declined to accept relator’s untimely application.

This, of course, does not conclude the analysis. A court can nevertheless provide an equitable remedy after the expiration of statutory deadlines when necessary to correct a party official’s violation of a duty imposed by law. See, e.g., Davis v. Taylor, 930 S.W.2d 581, 584 (Tex.1996) (granting mandamus directing that prospective candidate be placed on ballot where county chair missed deadline to certify candidate to the secretary of state); Painter v. Shaner, 667 S.W.2d 123, 125 (Tex.1984) (granting mandamus to allow late filing of application where the prospective candidate was ready to file on the filing deadline, but found the county chair’s office was locked); see also Tex. Elec.Code Ann. § 273.061 (Vernon 2003) (“The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer”). We therefore must determine if the county chair violated a legal duty by misstating his business address in the newsletter when enumerating ways in which a prospective candidate for precinct chair could file his or her application.

The Election Code specifically authorizes prospective candidates to submit their applications by mail. Tex. Eleo.Code Ann. § 1.007(c) (Vernon 2003). In addition, “the authority to whom a delivery, submission, or filing is required [by the Election Code] to be made may accept the document or paper at a place other than the authority’s usual place for conducting official business.” Id. at § 1.007(b). Reading these two provisions together, it is clear that the county chair may accept mailed candidacy documents and filing fees at a location other than the usual place of business.

Regardless of the method of delivery, a prospective candidate's application for a place on the ballot must be timely filed. See id. at § 141.031(3) (emphasis added). An application filed by mail is considered to be filed at the time of its receipt by the appropriate authority. See id. at § 172.021(c). An application for a place on the general primary election ballot must be filed not later than 6:00 p.m. on January 2 in the primary election year. See § 172.023(a) (Vernon 2003) (emphasis added); see also In re Gamble, 71 S.W.3d 313, 318 (Tex.2002) (holding that “the candidate has a duty to file a compliant application before the filing deadline”); Escobar v. Sutherland, 917 S.W.2d 399, 404 (Tex.App.-El Paso 1996, no writ) (stating that “it is the candidate who is primarily responsible and accountable for properly completing and timely filing a proper application for a place on the ballot”). If the word “must” appears in the Election Code then that section requires mandatory compliance. Cohen v. Strake, 743 S.W.2d 366, 368 (Tex.App.-Houston [14th Dist.] 1988, orig. proceeding).

When construing a statute, we ascertain the legislature’s intent from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). When the legislature employs a term in one part of a statute and excludes it in another, we presume the legislature had a reason for doing so. Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex.2000). We do not invent a remedy the legislature could have, but did not, specify. State v. Roland, 973 S.W.2d 665, 666 (Tex.1998). As relevant to this case, it is significant that the Election Code dates the time of filing some documents from the date when the material is mailed. See Tex. ElecCode ANN. § 1.008 (Vernon 2003). In contrast, certain other documents are not considered filed until they are actually received by the authority or placed in the authority’s mailbox. See id. at § 1.009. In the case of a prospective candidate’s application and filing fee, the legislature has expressly chosen not to follow the “mailbox rule,” but instead to date the time of filing from the time at which the materials are actually received by the appropriate authority. See id. at § 172.021(c).

By dating the time of filing from the time of the application's receipt, rather than from the day the materials were mailed, the legislature placed the risk of non-delivery on the prospective candidate who chooses to file his or her candidacy documents by mail. Timely filing “is not the County Chair’s responsibility, it is not the Election Administrator’s responsibility, and it certainly is not the responsibility of the voting public who wish to someday cast their vote for the candidate. This accountability is not for the intentions but for the deed.” Escobar, 917 S.W.2d at 404.

If we were to accept Hopkins’s arguments and consider her application timely filed simply because she intended the materials to be mailed to Thode’s business address, in essence we would change the Legislature’s allocation of the risk of nondelivery to the prospective candidate.

We recognize, however, that despite the mandatory language of the statute, “under limited circumstances, statutory deadlines may be extended to correct an official’s violation of a statutory duty.” In re Gamble, 71 S.W.3d at 318. The facts of this ease do not present such-a circumstance. To be entitled to such equitable relief, Hopkins must show that Thode’s violation of a statutory duty caused her application and filing fee to be untimely. In order to meet this requirement, Hopkins argues that Thode had a statutory duty to provide a correct address for candidates to file their applications by mail, that he violated that duty in providing an incorrect address, that she relied upon the incorrect address, and that this caused her filing to be untimely. Hopkins does not cite to any provision in the Election Code imposing this duty; rather, she invites this court to impose such a duty. In support of this argument, Hopkins cites Painter v. Shaner, 667 S.W.2d 123 (Tex.1984). In Painter, the candidate went to the office on the last filing day in order to file his candidacy documents, and found the office locked, thus preventing his timely filing. See Painter, 667 S.W.2d at 124. There, the Texas Supreme Court found that because the candidate had a legal right to file .an application until 6:00 pm on the deadline date, the chairman had a concomitant legal duty to accept applications until 6:00 pm on the deadline date. Id. at 125. Painter demonstrates an obvious parity between the legal right, expressly stated by the legislature, and the imposition of a duty essential to the exercise of that right.

The same situation is not presented on these facts for several reasons. First, the only express duty imposed on Thode by the Election Code is to accept applications at “the authority’s usual place for conducting official business,” i.e., the address of Republican Party of Fort Bend County. See Tex. Elec.Code ANN. § 1.008(a) (Vernon 2003). No one argues that Thode misstated the address of the offices of the Republican Party. Though Thode was empowered to do so, he was not required to accept applications at a place other than the “usual place for conducting official business.” See § 1.008(b) (“The authority to whom a delivery, submission, or filing is required by this code to be made may accept the document or paper at a place other than the authority’s usual place for conducting official business”) (emphasis added). See also Tex. Gov’t Code Ann. § 311.016(1) (Vernon 2005) (when used in a statute, the word “ ‘may’ creates discretionary authority or grants permission or a power”). Thode did exercise this discretionary authority by arranging an alternate means of accepting Hopkins’s application at a personal meeting on December 21, 2005, though he was not required to do so. Hopkins failed to produce her application or filing fee at the meeting, and she also, was not required to do so. She was only required to file her application and pay the filing fee by 6:00 pm on January 2, 2006.

Hopkins nevertheless suggests that, having stated an address where he would accept applications for precinct chair by certified mail in three electronic newsletters in late November and early December, Thode had a duty to state the address correctly. However, even if one were to accept the argument that stating any address to subscribers created a duty to state the address correctly, there would still be no duty to state a correct address to non-subscribers. Moreover, this particular information was directed only to prospective candidates for precinct chair. Hopkins was neither a subscriber nor a prospective candidate for precinct chair.

Additionally, Thode’s discretionary authority to state an address at which he would receive some applications would not be converted into a duty simply because Hopkins (or more accurately, Bronsell) chose to rely on that address for a purpose for which it was manifestly not intended. Moreover, even if such a duty could have arisen, and even if the duty was violated, the violation was corrected by (a) Thode’s personal meeting with Hopkins to accept her materials by personal delivery, (b) his review of her filing options with her at the meeting, (c) the e-mail directed specifically to elected officials and candidates, correctly stating five methods of delivery, and (d) subsequent newsletters prior to Hopkins’s mailing that made no representations at all about accepting applications at any alternate place.

Finally, there is a lack of causation. Even if we were to accept the argument that Thode had a duty to correctly state his business address in the three newsletters at issue, the failure to state the address correctly would have harmed only prospective candidates for precinct chair offices. None of the newsletters represented that Thode would receive applications for any office other than the party office of precinct chair at his personal place of business. Perhaps even more importantly, the newsletters at issue stated only that applications would be accepted at Thode’s business address; they did not represent that filing fees would be accepted at that address. A filing fee is a necessary component of the candidacy materials for the public office of district clerk; a filing fee is not required of candidates for the party office of precinct chair. In fact, all of the newsletters require money to be sent to the offices of Republican Party of Fort Bend County, not to Thode’s business address. Accordingly, there was no indication that a filing for district clerk could be completed at Thode’s business address. Nevertheless, Hopkins mailed her filing fee as well as her application to this address, though she does not contend that there was ever any representation that filing fees would be accepted there.

IV. Conclusion

Because of the many material fact issues presented, mandamus is not authorized; because of the facts that are not disputed, mandamus is not justified. While the outcome to Hopkins may be harsh, the requirements of the Election Code and existing precedent do not allow us to grant equitable relief. Both candidates and voters have a common interest in predictable enforcement of the Election Code and the orderly progress of elections. The legislature has unambiguously placed the risk of untimely delivery or nondelivery on the candidate who mails his or her application and filing fee, and the facts presented neither justify nor authorize a departure from that allocation.

The dissent concludes that recent cases such as In re Gamble and In re Bell have moved away from strict statutory construction to a more fluid concept of achieving just and reasonable results. Nevertheless, justice and reasonableness are not judged solely from the standpoint of the aggrieved candidate. For example, Gamble recognizes that the legislature “has specifically called upon the courts to exercise their equitable powers to resolve election code violations.” In re Gamble, 71 S.W.3d 313, 317 (Tex.2002) (emphasis added). Gamble also recognizes that “[c]er-tainly, the candidate has a duty to file a compliant application before the filing deadline.” Id. at 318 (emphasis added). Accordingly, existing case law continues to weigh factors such as the timeliness of the application and the existence of an election code violation, neither of which is present here. Courts may additionally consider whether equitable relief would frustrate the legislature’s intent in enacting a statute. See In re Bell, 91 S.W.3d 784, 788 (Tex.2002). Here, granting the requested relief would frustrate the legislature’s intent to place the risk of untimely receipt of mailed documents on the prospective candidate. Finally, though this court may exercise its equitable powers to resolve election code violations, those powers must themselves be exercised in an equitable manner. There is no authority for the proposition that a prospective candidate’s incumbency or tenure is a factor that may even be considered in “balancing equities;” were it otherwise, the balance would always begin with a weight on the scale of the incumbent — a result that is neither just nor reasonable.

For the foregoing reasons, I respectfully concur.

FOWLER, J.,

dissenting.

I agree that the result reached by the majority is consistent with the black-letter statements contained in the Election Code. In fact, if this case had reached us before In re Gamble and In re Bell, I would have joined the plurality opinion on the plain language of the Election Code' and the case law applying it literally. However, in my opinion, In re Gamble and In re Bell signaled the Texas Supreme Court’s intent to review Election Code cases with a less hyper technical and more purpose-driven approach. For this reason, I respectfully dissent.

Ms. Hopkins seeks a writ of mandamus directing Eric Thode, County Chairman of the Republican Party 'of Fort Bend County (the “County Chair”), to accept her application and certify her for placement on the Republican Party general primary ballot as a candidate for District Clerk of Fort Bend County. The County Chair rejected Ms. Hopkins’ application because it was not received by 6:00 p.m. on January 2, 2006. See Tex. Elec.Code § 172.023.

The Relevant Facts

Ms. Hopkins is the District Clerk of Fort Bend County, and has been the District Clerk’for 20 years. On December 27, 2005, six days before the filing deadline, she mailed her application to be placed on the ballot to the County Chair. She sent the application to an address obtained by her campaign manager from a December 5, 2005 newsletter written and e-mailed by the County Chair. In that e-mail (and two other e-mails), the County Chair directed individuals wishing to file for Precinct Chair and wanting to send their application by certified mail to send their materials to an address other than the Republican Party’s post office box address. The County Chair directed that certified mail be sent to him at his office on Britt-more Street in Houston, Texas. Unfortunately, the December 5 e-mail — and two other e-mails — listed an incorrect zip code for the Brittmore address; the zip code actually given was a Fort Bend County zip code. The County Chair acknowledges that these e-mails contained the wrong zip code. He also acknowledges that he gave the correct zip code for the Brittmore address in other e-mails. The record does not clearly reflect how many of the County Chair’s e-mails contained the correct zip code, but it appears that more than a few contained the correct zip code. It was Ms. Hopkins’ great misfortune to rely on the only three e-mails providing the wrong zip code.

In any event, because the wrong zip code was used to mail her materials, Ms. Hopkins’ application did not reach the County Chair by the filing deadline on January 2, 2006. Twenty minutes after the filing deadline, the County Chair notified Ms. Hopkins’ campaign staff that he did not receive her application. Ms. Hopkins discovered that evening that the zip code she used was wrong. The following day, she hand-delivered a copy of the original application and a check to the Republican Party of Fort Bend County.

The Parties’ Claims

In her most recent petition, Ms. Hopkins asserts the County Chair violated a statutory duty to provide candidates with the correct address to file their applications by mail. Citing to section 172.021(c) of the Election Code for the proposition that candidates are allowed to file by mail, she claims a statutory duty arose to provide the correct address to candidates for filing their applications by certified mail. See Tex. Elec.Code § 172.021(c). The Real Party in Interest and Hopkins’ primary opponent, Annie Rebecca Elliott, argues we are required to strictly enforce the mandatory statutory requirements.

I believe two rules or principles guide our review of this case. The Supreme Court has fashioned both principles to effectuate the purposes of the Election Code.

Two Guiding Principles

The first principle guides the enforcement of the Election Code requirements. Historically, the courts have strictly enforced the mandatory statutory requirements. Recently, however, the Texas Supreme Court has taken a more expansive approach. See In re Bell, 91 S.W.3d 784, 785 (Tex.2002); In Re Gamble, 71 S.W.3d 313, 317 (Tex.2002).

In Bell, the court recognized that the Code Construction Act (the Act) applies to construction of the Election Code. 91 S.W.3d at 785; see also Tex. Elec.Code § 1.003. The Act directs us to presume the Legislature intended a just and reasonable result in enacting statutes. See Tex. Gov’t Code § 311.021(3). Hence, the Texas Supreme Court has applied a rationale that produces a just and reasonable result in light of the objective of the statute in issue. See In re Bell, 91 S.W.3d at 787. In Bell; the court considered the purpose of requiring each petition signer to include the city and zip code in their address is to provide a basis for verifying their eligibility to participate in a particular election. Id. at 785-86. The court noted that the Election Code itself recognized certain information could be omitted without' invalidating a signature. Id. at 787. The court held that if the omitted information would not aid in determining the signer’s voting eligibility, invalidating the signatures was not a just and reasonable result in light of the statute’s objective. Id.

In this same vein, in certain cases the Texas Supreme Court has declined to require rigid adherence to statutory deadlines and has instead adhered “to the principle that [the court] should construe laws broadly in favor of eligibility....” Davis v. Taylor, 930 S.W.2d 581, 583 (Tex.1996). The court has found that candidates and the citizens in their district “have compelling interests warranting relief'’ and, when the election process would not be impaired, the court has granted relief. Id. at 583-84. The Texas Supreme Court has recognized “the Legislature has specifically called upon the courts to exercise their equitable powers to resolve election code violations.” In re Gamble, 71 S.W.3d at 317. In Gamble, the court found one purpose of the Election Code’s requirement that a party official review a candidate’s application and promptly notify the candidate if the application is rejected is to allow the candidate an opportunity to cure any defects. Id. at 318. Thus, a party official’s failure to perform that review is a proper consideration for a court called upon to hear a candidate’s claim for equitable relief. Id. The court held that while one consideration in weighing the right to equitable relief is a candidate’s own fault, mistakes by the candidate are not an absolute bar to equitable relief. Id. To summarize the first principle, in the appropriate case, courts are authorized to take an expansive approach because in that case, it will result in a just and reasonable result that furthers the purposes of the Election Code.

The second principle also relates to Election Code requirements, but in a different way. It concerns the creation of implied duties that necessarily arise from duties or rights expressly stated in the Election Code. For example, in Painter v. Shaner, the Texas Supreme Court noted the Election- Code required Painter to file his application with - the county chair by 6:00 p.m. on February 6, 1984. 667 S.W.2d 123, 124 (Tex.1984). Painter arrived at the correct office at 4:15 p.m. on February 6, but it was closed. The court extended the statutory deadline for filing his application, holding that the party chair has a duty to be available to accept applications for filing until 6:00 p.m. on the last day of filing. Id. at 125. This duty is not expressly stated in the Election Code, but must be implied if the candidate has until 6:00 p.m. on the last filing day to file an application. Absent such an implied duty, the statutory right to file until 6:00 p.m. on the last filing day would be meaningless.

A majority of the Waco court of appeals applied these two principles in an opinion it issued shortly after In re Bell and In re Gamble. See In re Elwell, 110 S.W.3d 11, 12 (Tex.App.-Waco 2002, orig. proceeding). In that case, the candidate, Elwell, was provided a packet of information by County Judge Roger Harmon. The packet included a memorandum from the Texas Secretary of State outlining the steps a potential independent candidate must take to appear on the November ballot. Id. at 12. The memorandum provided that the candidates must file an application, with a petition, no later than 5:00 p.m. on May 9, 2002. The packet also included a letter from Harmon that similarly referred to an application as well as a petition. However, the packet County Judge Harmon sent to Elwell did not contain an application. El-well delivered a folder to Harmon’s office at 4:00 p.m. on May 9 that did not contain an application. The omission was not discovered until after Elwell left the office. Elwell shortly learned of the missing application and returned to the office at approximately 5:20 p.m. on May 9, but the office was closed. Elwell filed his application the next morning. Harmon rejected Elwell’s candidacy on the basis that the application was not filed before the deadline. Id.

Relying on the Texas Supreme Court’s decision in In re Bell, the court was persuaded by Elwell’s argument that granting relief achieves a “just and reasonable result.” Id. at 14. Although no statute required Harmon to provide an application, the court found that Harmon’s failure to include an application form “had the potential to mislead [Elwell] into believing that the forms that were included were all that were required.” Id.

Why the Law Requires us to Grant Relief

If we take these two guiding principles — to interpret the Election Code more expansively to achieve a just and reasonable result and to imply any duties necessary to accomplish black-letter requirements contained in the statute — and apply them to this ease, I believe they require us to grant the relief Ms. Hopkins has requested.

With regard to an implied duty, as noted earlier in this opinion and in the plurality, a party chair may accept applications for office by mail. The implied duty arising from this authority to accept applications by mail is the following: If a party chair chooses to accept applications by mail, he or she must provide candidates a correct address. The County Chair here provided both correct and incorrect addresses for certified mail. The plurality finds in part that the County Chair met his duty by providing the correct address more times than he provided the incorrect address. I disagree that the County Chair fulfilled his duties.

Although the County Chair obviously sent many e-mails to the candidates and made many efforts to ensure that candidates had the correct address, he nonetheless sent out an incorrect address three times. He never notified anyone that the address in these e-mails was incorrect. That he distributed the correct address more times than the incorrect one is inconsequential. The important fact is that he never drew attention to the error, and so a person choosing to rely on the incorrect emails would have no way of knowing that some were incorrect — other than looking through all of the e-mails. This, unfortunately, is Ms. Hopkins’ plight.

We are aware that Ms. Hopkins could easily have avoided the problem if she had hand-delivered her application to the County Chair when she apparently had lunch with him sometime in December or if she had used one of the e-mails containing the correct address. These are diversionary issues that ignore the real issues: the party chair gave an incorrect address, he did not notify candidates it was an incorrect address, and Ms. Hopkins relied on it, not knowing it was incorrect. Moreover, it is common in Election Code violation cases for the candidate not to be without fault. See Gamble, 71 S.W.3d at 315-317; Elwell, 110 S.W.3d at 12-13; In re Ducato, 66 S.W.3d 558, 559-60 (Tex. App.-Fort Worth 2002, orig. proceeding). When one considers the real issues, the important fact is that the party chair did not fully comply with his duty.

This leads to the other guiding principle, that a just and reasonable result be reached in light of the purposes of the statute. The relevant sections of the Election Code for application of this rule are the sections allowing a party chair to accept applications by mail and the 6 p.m. deadline. See Tex. Elec.Code § 172.021(c) (an application filed by mail is .considered to be filed at the time of its receipt by the appropriate authority); Tex. Elec.Code § 172.023(a) (an application for a place on the general primary election ballot must be filed not later than 6 p.m. on January 2 in the primary election year). As T note above, the authority to accept applications by mail would be hollow if the chair were not required to give the correct address; that would not produce a just and reasonable result.

With regard to the 6 p.m. deadline, I have not found a stated purpose for that requirement in the Code, but, logically, the purpose must be several-fold: to provide an explicit cut-off date and time by which candidates must file so that the field of candidates is clearly delineated; to prevent stealth candidates; and to provide a uniform deadline that applies to all candidates. Granting Ms. Hopkins’ requested relief and allowing her name to be placed on the ballot even though she missed the deadline does not offend any of these purposes. She is, and has been, the District Clerk for 20 years. It was no secret she was up for re-election and would run in this election cycle for the office. In fact, she and the County Chair had several conversations about her candidacy. If we were to allow Ms. Hopkins on the ballot, the Code’s core purposes would not be frustrated. Conversely, if we do not allow Ms. Hopkins on the ballot, the practical effect of the majority’s reasoning is that, arguably, a candidate would be forced to continually check addresses for accuracy rather than reasonably rely on the information provided by the county chair.

Conclusion

In short, I believe the just and reasonable result is for this court to grant Ms. Hopkins’ petition and allow her name to be placed on the ballot. The Texas Supreme Court has acknowledged that a court may order equitable relief from a statutory deadline if it would not delay the election or prevent the orderly procession of the election schedule. See In re Gamble, 71 S.W.3d at 317; Davis, 930 S.W.2d at 584. This election would not be delayed if we granted relief. The record before this court, contains an affidavit from Steve Ra-born, the Elections Administrator for Fort Bend County, averring that if he is directed by January 25, 2006, to place Ms. Hopkins on the general primary ballot, it will not impair or delay the election process. The County Chair’s áffidavit concurs.

Thus, I would conditionally grant the writ of mandamus and direct Eric Thode, Respondent, to certify Ms. Glory Hopkins, Relator, as a candidate for the office of District Clerk of Fort Bend County, Texas, in the' Republican Party general primary election.

      . Although Gamble was an injunction proceeding, whereas this is a mandamus, such equitable relief has been afforded in mandamus cases. See Bell, 91 S.W.3d 784, 788 (Tex.2002) (orig.proceeding); Davis, 930 S.W.2d 581, 584 (Tex.1996) (orig.proceeding).

      . Unlike the office of district clerk, which is a public office for which voters of any party may vote, and which represents all of the constituents in the county, a precinct chair is an intra-party official, and represents only members of the same party. Prospective candidates for precinct chair are subject to a different filing schedule than prospective candidates for district clerk.

      . Hopkins states that it is "irrelevant that a mass e-mail/newsletter containing the correct zip code may have been sent to Ms. Hopkins’s secretary.” Hopkins denies that her secretary was her designee for e-mail communications, but does not deny that Hurd was her designee. However, Hopkins’s secretary is not identified by name, and no one has represented that Hurd is Hopkins’s secretary. It may be that Hurd and Hopkins’s secretary are the same person. If so, then Hopkins may be denying that Hurd was her designee for email communications from the Republican Party of Fort Bend County. If Hopkins is denying that contention, then the existence of this material fact issue (i.e., whether, as Thode testified, Hopkins’s agent received correct filing instructions applicable to incumbent public officials and prospective candidates) would prevent mandamus relief, for we may not resolve factual disputes in a mandamus proceeding. See In re Jones, 978 S.W.2d 648, 653 (Tex.App.-Amarillo 1998, orig. proceeding); Escobar v. Sutherland, 917 S.W.2d 399, 403 (Tex.App.-El Paso 1996, orig. proceeding). If Hurd is not Hopkins’s secretaiy, then we have no denial of Thode’s testimony that Hurd is Hopkins’s designee. In that event, Hopkins’s argument cuts both ways: if it is Hopkins’s position that her agent’s receipt of the correct address for filing the application for the office for which she is actually applying is irrelevant, then it stands to reason that her agent’s receipt of an incorrect address for filing an application for an office for which she is not applying is also irrelevant.

      . Though not discussed by any party, the zip code shown on the certified mail receipt was altered in the same manner as the "green card” and the envelope itself.

      . Although the United States Post Office declared the envelope “undeliverable” on Thursday, December 29, 2005, no evidence has been produced to show that the envelope would have been received at Thode’s business address by 6:00 pm on Monday, January 2, 2006, if it had been correctly addressed. This is yet another fact issue which would preclude mandamus, for even if we were to accept that the statements in the newsletter caused Hopkins to misaddress the letter, which then caused Mata to alter the address, there is no evidence that the correctly addressed letter would have been delivered pri- or to the deadline. While Mata and King state the "United States Postal Service website, on January 4, 2006, stated that Ms. Hopkins's certified mail would have been delivered if properly addressed on December 29, 2005,” the printout of the information on the website says only "Status: Return to Sender. Your item was returned to the sender on December 29, 2005 because it could not be delivered as addressed.” While it took the Post Office just two days to determine that the envelope was undeliverable as addressed, physical return of the envelope to Hopkins took another six days. She received the envelope back on January 4, 2006, eight days after originally mailing it.

      . In light of the fact that no one claims that Bronsell, Hopkins's campaign manager, was her designee for receipt of e-mail communications, there is in fact no contention that Thode made any representations to Hopkins at all regarding the address where her application could mailed. All of Hopkins’s contentions regarding mailing addresses are concerned only with representations made in an e-mail newsletter, and Hopkins does not'subscribe to the newsletter. •

      . The Code Construction Act (Tex. Gov.Code Ann. §§ 311.001 to 311.034 (Vernon 2005)) applies to the construction of each provision in the Election Code, except as otherwise expressly provided in the Code. Tex. Elec.Code Ann § 1.003(a), (Vernon 2003).

      . Tex. Elec.Code Ann. § 172.024(a)(14) (Vernon 2003).

      . Tex. Elec.Code Ann. § 172.021(b) (Vernon 2003).

      . See discussion of fundraising checks in the Facts section.

      . To the extent that Hopkins implies that she reasonably relied upon King’s representations of Bronsell’s representations of Thode’s representations concerning the invalid address, such an argument would itself preclude mandamus relief, either because the reasonableness of such reliance creates an issue of fact or because such reliance would be unreasonable as a matter of law. Moreover, the application of tort concepts of reasonable reliance have not been argued to apply to the issues regarding construction of the Election Code presented here.

      . Ms. Hopkins does not have a personal email address and so does not receive the County Chair's e-mails.

      . Although the e-mail Ms. Hopkins used was provided for filing for Precinct Chair, the Brittmore address was a correct address, but for the zip code, for filing for District Clerk.

      .On December 29, the United States Postal Service determined that her envelope was undeliverable as addressed. Ms. Hopkins received the returned envelope on January 4.

      . No one disputes he did this by accident; that is not an issue.

      . Fortunately, Ms. Hopkins is the only one who did not timely file her application because of the incorrect address.


author: STEVE McKEITHEN, Chief Justice.

text:
    Rhonda Aimee GAMBLE and Jay Gamble, Appellants, v. Larry PEYTON and Barbara Peyton, Appellees.
    No. 09-05-109 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Sept. 29, 2005.
    Delivered Dec. 22, 2005.
    Maggie D. Conner, R. Gary Stephens, Law Office of R. Gary Stephens, Houston, for appellants.
    James A. Newsom, Ann Moore, Munis-teri, Sprott, Rigby, Newsom & Robbins, P.C., Houston, for appellees.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This appeal requires us to decide whether a landowner is responsible for an injury sustained by a rider in a fall from a horse stung by fire ants. The appellant and plaintiff below, Rhonda Aimee Gamble, contends material issues of fact preclude the summary judgment granted on her premises liability claim against Larry Pey-ton and Barbara Peyton. For the reasons discussed herein, we affirm the trial court’s judgment.

Rhonda Gamble and her future husband Jay purchased Gabe, a green broke two- and-one-half-year-old palomino Quarter Horse, from the Peytons at their Montgomery ranch. The day after the Gambles paid the Peytons for the horse, the group walked to a small movable metal pen located in the pasture behind the barn. While they were standing outside the pen, Larry Peyton mentioned to Rhonda Gamble that he had been battling fire ants all summer and that the ants had been bad that year. He did not mention any particular location on the property or warn Gamble to be careful of ants in the pen. Neither Rhonda nor Jay Gamble observed any visible fire ant mounds inside the pen. Gabe’s trainer provided a mounted demonstration of the horse’s training, then asked Gamble if she wanted to ride. An experienced rider, Rhonda Gamble mounted the horse and rode around the perimeter of the pen for what Jay Gamble estimated to be ten to fifteen minutes. As Rhonda Gamble removed her right foot from the stirrup to dismount, Gabe began to crow hop. Gamble testified that as she bounced in the saddle, she felt “an explosion of electrical activity from my waist to my toes,” lost control of her lower body and fell to the ground. The trainer took the horse to the barn while Jay Gamble and the Peytons tended to Rhonda Gamble. When the trainer returned to the pen, she mentioned that Gabe had fire ants all over his back legs. Gamble sustained a back injury requiring surgery.

Citing Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633, 639 (Tex.App.-Austin 2003, pet. dism’d), Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1103-05 (10th Cir.2002), and Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo.1995), Gamble contends a fact issue exists regarding whether her injuries resulted from an inherent risk of equine activity. Sapone and Halpem involved construction of Wyoming’s Recreation Safety Act. They are readily distinguishable from this case. Both opinions contrasted the fact-specific analysis of duty required under Wyoming’s statute from the analysis appropriate for statutes that include a nonexclusive list of inherent risks. Sapone, 308 F.3d at 1102; Halpern, 890 P.2d at 566. Halpem recognized that when a court is presented with a case under a statute with a nonexclusive list of inherent risks, “it may compare the facts of the case to the list of legislatively defined inherent risks and decide, as a matter of law, whether the plaintiffs injury resulted from an inherent risk.” Id.

In Texas, a person cannot be held liable for personal injuries sustained by a participant in an equine activity if the injury results from dangers or conditions that are an inherent risk of the activity. Tex. Civ. PRAC. & Rem.Code Ann. § 87.003 (Vernon 2005). Unlike Wyoming, our legislature has enacted a nonexclusive list of inherent risks of equine activity. Id. Included in this list are the propensity for a horse to behave in ways that may result in personal injury to a person on the horse and the unpredictability of a horse’s reaction to an unfamiliar animal. Tex. Civ. Prac. & Rem.Cobe Ann. § 87.003(1), (2) (Vernon 2005). Appellant’s reliance on Steeg is misplaced. The injury in Steeg occurred as a result of a saddle slipping and there was some evidence supporting the claim that negligent saddling contributed to the injury. Steeg, 124 S.W.3d at 638-39. Reasoning that negligent saddling is not an inherent risk of horseback riding, the Austin Court of Appeals held that fact issues precluded summary judgment. Steeg, 124 S.W.3d at 638-39. Gamble’s injury occurred as a result of the horse’s violent reaction to being stung by ants. The injury-causing event here clearly falls within the statutorily defined inherent risks; therefore, the Peytons are not liable for Gamble’s injuries unless one of the statutory exceptions of Section 87.004 applies. Tex. Civ. Prac. & Rem.Code Ann. § 87.004 (Vernon 2005).

In Texas, a person is liable for damages arising from personal injury in an equine activity if the injury “was caused by a dangerous latent condition of land for which warning signs, written notices, or verbal warnings were not conspicuously posted or provided to the participant, and the land was owned, leased, or otherwise under the control of the person at the time of the injury or death and the person knew of the dangerous latent condition.” Tex. Civ. Prac. & Rem.Code Ann. § 87.004(3) (Vernon 2005) (emphasis added). Gamble argues a fact issue exists regarding whether a dangerous latent condition of land caused her injury. A bed of ants, she argues, is as much a condition of land as a plant, a man-made object, or a concealed hole. However, a structure built by ants is not at issue in this case, as it might be if, say, a horse stumbled on a crawfish tower or tripped in a mole hole and threw its rider. In this case, the horse unexpectedly reacted to wild animals. The Peytons argue that the ants themselves cannot be a dangerous latent condition of land because ownership and control of land does not convey ownership and control over wild animals on the land.

The Peytons rely primarily on two cases that pre-date the equine activities statute: Gowen v. Willenborg, 366 S.W.2d 695 (Tex.Civ.App.-Houston 1963, writ ref'd n.r.e.), and Nicholson v. Smith, 986 S.W.2d 54 (Tex.App.-San Antonio 1999, no pet.). In Gowen v. Willenborg, wasps openly nesting on a billboard stung a child trespasser as he climbed the structure. 366 S.W.2d at 696. The appellate court affirmed the defendant’s summary judgment. Id. at 698. “Generally the law does not require the owner or possessor of land to anticipate the presence of, or guard an invitee against harm from, animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality.” Id. at 697. The presence of dangerous insects in or near an artificial structure not in itself unreasonably dangerous does not transform the structure into one involving an unreasonable risk of harm. Id. at 698. By analogy, fire ants are normally present in nature and the riding pen is designed neither to protect against nor to control tiny insects; therefore, the presence of fire ants inside an outdoor riding pen is a natural condition. It is not an unreasonably dangerous condition requiring the statutory warnings.

Nicholson v. Smith, 986 S.W.2d 54 (Tex.App.-San Antonio 1999, no pet.), examined premises liability for personal injuries caused by wild animals in general and fire ants in particular. A resident of a privately owned RV park died after being stung over 1,000 times by fire ants while working under his house trailer. Id. at 57. The appellate court affirmed summary judgment for the landowner. Id. at 64. Relying on the precedent established in Gowen v. Willenborg, the appellate court reasoned that the resident was attacked by indigenous wild animals in their natural habitat, and the landowners did nothing to attract the fire ants onto their property or to incite aberrant behavior. Id. at 62. “A good deal of the vegetation in Texas stings, sticks or stinks. Any number of insects and animals can hurt, or even kill you.” Id. “Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety, as well as the extent of that threat. If a landowner was required to affirmatively disclose all risks caused by plants, animals, and insects on his or her property, ‘the burden on the landowner would be enormous and would border on establishing an absolute liability.’” Id. at 63-64 (citing Brunelle v. Signore, 215 Cal.App.3d 122, 263 Cal.Rptr. 415, 419-20 (1989)).

Gamble contends the doctrine of ferae naturae does not apply when the premises owners know or should know of the animals’ existence. She contends that the Peytons’ knowledge of the presence of ants in the pen is a fact issue. Most of the cases she relies on, however, do not involve animals in their natural habitat. She cites CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457, 459 (1970), where a tarantula bit a customer shopping for bananas. An employee had seen an insect crawl out of the bananas two days earlier, and the manager remarked that the last batch of bananas had been full of tarantulas. Id. at 250, 466 P.2d 457. The appellate court held the store, knowing the insects might be found in the bananas it was offering for sale, had a duty to take measures to guard against injury when the customers handled the bananas. Id. at 459-60. In Williams v. Milner Hotels Co., 130 Conn. 507, 36 A.2d 20 (1944), a long-term hotel patron complained to the manager about rats -in the room some time before one bit him while he slept. Id. at 20-21. The hotel argued for a standard of care commensurate with the character of the establishment, but the appellate court held the innkeeper had a duty to keep his inn in a reasonably safe condition and whether he acted with ordinary prudence was an issue for the jury. Id. at 21-22. In DeLuce v. Fort Wayne Hotel, 311 F.2d 853 (6th Cir.1962), an actress bitten by a foot-long rat in a hotel lobby sued under a statute that required an owner to keep the entire building free of vermin. Id. at 855. The hotel employees knew rats entered freely from the alley and took no precautions to prevent it. The appellate court reversed the judgment for the plaintiff and remanded the case for a new trial because whether it was reasonably foreseeable that a rat might enter the hotel lobby is a question of fact for the jury. Id. at 857. These cases all involve the presence of wild animals within the confines of commercial buildings.

Two of Gamble’s cited cases involve animal attacks out-of-doors. In Carlson v. State, 598 P.2d 969, 970 (Alaska 1979), plaintiff was mauled by a bear. Potential liability arose not from a responsibility to control the bear, but from the accumulation of garbage that attracted the bear to the highway turnout where it encountered and mauled the plaintiff. Id. at 970-71. The decision to not remove litter from the turnout was an operational decision for which the State was not immune. Id. at 972. Because the alleged negligence was the creation of a dangerous situation by not removing litter, as opposed to its inherent possession and control of wild animals, the doctrine of ferae naturae did not apply. Id. at 978. In Williams v. Gibbs, 123 Ga.App. 677, 182 S.E.2d 164 (1971), a rattlesnake bit a patron walking on the sidewalk towards the restroom of the combination restaurant and service station. Id. at 165. No snakes had been seen on the premises in six years of ownership. The court held the attack was not a foreseeable consequence of allowing the grass along the sidewalk to grow to six inches in height. Id. The appellate court noted that the law does not require a landowner to anticipate the presence of and guard against harm by wild animals. None of Gamble’s cases stand for the proposition that an owner is responsible for the actions of insects outdoors in a place where the particular animal is normally found.

Gamble argues the accident occurred in an improved horse pen, and fire ants should not be present in such a structure. The pen itself was not involved in the accident, and nothing about the pen made either the horse or the ants more dangerous. Gamble could not reasonably expect that an outdoor structure designed to contain horses would protect the horse from encountering ants. Unlike a building with walls and a floor, the pen presented no barrier to terrestrial insects.

Gamble contends the Peytons knew they had a fire ant problem but kept the danger a secret. Her claim is based entirely upon Larry Peyton’s conversation, as they stood at the pen before the demonstration commenced, that he had been battling fire ants and they were bad that year. This statement reveals a general awareness of the possible presence of fire ants, but it also demonstrates that he disclosed that possibility to Gamble before she mounted the horse. Gamble contends this warning is inadequate under the equine activity statute and that a fact issue exists as to whether the Peytons posted the statutory warning. See Tex. Civ. Piiac. & Rem.Code ANN. § 87.005 (Vernon 2005). Section 87.005 requires that a warning regarding inherent risks be posted by an “equine professional” if the professional “manages or controls a stable, corral, or arena where the professional conducts an equine activity.” Id. “Equine professional” is a statutorily defined term that means “a person engaged for compensation: (A) to instruct a participant or rent to a participant an equine animal for the purpose of riding, driving, or being a passenger on the equine animal; or (B) to rent equipment or tack to a participant.” Tex. Civ. Prac. & Rem.Code Ann, § 87.001(5) (Vernon 2005). Gamble bought this horse from the Peytons; she did not rent the horse or any tack, and she received no riding instruction for which she paid compensation. Section 87.005 does not apply. Furthermore, as we have already determined that the presence of fire ants inside an outdoor riding pen is not an unreasonably dangerous condition of land, the warning provisions contained in Section 87.004(3) also do not apply. Even for a dangerous latent ' condition, Section 87.004(3) does not apply if the participant is provided with a verbal warning. See Tex. Civ. PRAC. & Rem.Code ANN. § 87.004(3) (Vernon 2005). Larry Peyton informed Gamble that they had been having problems with ants. Gamble contends the ap-pellees failed to warn her to be careful of fire ants while in their enclosed pen, but Larry Peyton provided Gamble with a verbal warning coextensive with her evidence of his knowledge that ants could be present where she was riding the horse.

CONCLUSION

The unpredictability of a horse’s reaction to another animal is an inherent risk of an equine activity. Therefore, the landowners are not liable for personal injuries sustained by a horseback rider unless the injuries were caused by a dangerous latent condition of land' for which warnings were not provided. In this case, the rider’s injuries were caused by the horse’s reaction to being stung by fire ants. Ants are wild animals neither controlled nor harbored by the landowner, and the landowner provided to the rider a verbal warning of the possible presence of ants on the premises. We hold the trial court did not err in granting the landowners’ summary judgment. The judgment is affirmed.

AFFIRMED.

      . A second plaintiff, Jay Gamble, non-suited his claims in the trial court. Although his name appears on the notice of appeal, Jay Gamble did not file a brief or join in the brief filed by his wife, and the brief does not assert error regarding the non-suited claims. We therefore dismiss the appeal of Jay Gamble for want of prosecution. See Tex.R.App. P. 38.8.

      . We use the plaintiffs married name throughout this opinion.

      . The correct wording of the statute is "dangerous latent condition of land” not “dangerous or latent condition of land" as asserted by the appellant.

      . The appellant's examples of conditions of land are provided as part of her argument for a Section 87.004 exception to the application of Section 87.003. These other conditions appear to fall within the inherent risks mentioned in Section 87.003, and the appellant does not suggest otherwise.

      . The fire ant may be native species, Solenop-sis geninata or S. xyloni, or may be an introduced species, S. invicta, a native South American species introduced to the southern United States in the 1930’s and present in eastern Texas in incalculable numbers since the 1950's. See generally, http://fireant.tamu. edu/antfacts/identification.html. Because the Peytons did not introduce the ants to their property, and Gamble did not raise the possibly non-indigenous character of the fire ant as a ground for avoiding summary judgment, we will follow Nicholson and apply the doctrine of ferae naturae to fire ants.