author: Justice BRIDGES.

text:
    Elizabeth SMITH, Appellant, v. Searcy M. FERGUSON, Jr. and S.M. Ferguson, Inc., Appellees.
    No. 05-99-01770-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 1, 2005.
    Rehearing Overruled April 29, 2005.

      Christopher M. Weil, Weil & Petrocchi, P.C., Jeffrey Wallace Hellberg, Jr., Dallas, for appellant.

      Marshall M. Searcy, Kelly, Hart & Hall-man, P.C., Fort Worth, for appellee.
    Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by

Justice BRIDGES.

Elizabeth Smith appeals the judgment denying her counterclaim against her ex-husband, Searcy M. Ferguson, Jr., in which she asserts-that Ferguson is liable for unpaid property taxes on a property she was awarded in the parties’ divorce. Ferguson cross-appeals, asserting the trial court erred in granting summary judgment against him on a number of causes of action he brought as plaintiff against Smith. We affirm the denial of recovery by Smith on her counterclaim and affirm the trial court’s summary judgment against Ferguson on his claims against Smith.

Facts

In January 1987, Smith and Ferguson agreed to a final judgment and decree of divorce, which incorporated an Agreement Incident to Divorce (AID) dated November 1986. Controversies between the parties ensued, and after multiple suits were filed, the parties settled a number of disputes in 1988 through a settlement agreement (1988 Agreement). Subsequently, to settle other disputes, the parties signed a letter agreement dated August 29, 1989 (1989 Agreement). Under one clause of the 1989 Agreement, Ferguson agreed he would not “reopen” the divorce case or the AID.

Disputes between the parties continued, and on November 8, 1994, Ferguson sued Smith. Under the AID, Smith was awarded a valuable diamond ring. Ferguson initially asserted a claim for conversion of the ring, which was purchased during an attempted reconciliation in 1984. Ferguson also alleged that, during the attempted reconciliation, Smith and a confederate broke into Ferguson’s office, stole valuable confidential business and banking records, and maliciously destroyed property to cover up the theft. Accordingly, he asserts, through Smith’s failure to disclose material facts and her deceit, she fraudulently induced both the purchase of the ring and his entering into a lop-sided property settlement; neither would have happened had he known of Smith’s break-in and deception during the attempted reconciliation. He alleges also that Smith fraudulently concealed the facts so that he first learned in 1993 of Smith’s involvement in the break-in and her deceit during the reconciliation period in 1984.

Ferguson later added causes of action alleging Smith breached particular contractual obligations under the AID, including assertions that (1) Smith blocked Ferguson’s transfer of community-owned stock, (2) she failed to assume the obligation for the lien on the Southampton property awarded her in the divorce, and (3) she failed to file a proper income tax return for 1986, the last year of the marriage. Smith counterclaimed for, among other things, payment of ad valorem property taxes on a piece of property on Second Avenue in Dallas, which Smith was awarded in the divorce. In the 1988 Agreement, Ferguson had agreed to pay back taxes on that property.

In March 1998, the trial court entered an interlocutory summary judgment against Ferguson, dismissing his claims that are the subject of this appeal. After a bench trial in July 1999, the trial court denied Smith recovery on her counterclaim for payment of taxes on the Second Avenue Property. Smith brought this appeal, and Ferguson cross-appealed.

While this appeal was pending, Ferguson filed a petition in bankruptcy, and this case was abated for nearly three years. Ferguson filed a motion to reinstate the case, which the Court granted.

Smith’s Counterclaim for Payment of Property Taxes

As part of the 1988 Agreement, Ferguson agreed to the following contractual obligations:

Ferguson agrees to pay and obtain discharge for all ad valorem taxes due for all tax years prior to 1987 for that certain real property located on Second Avenue, Dallas, Texas ... and Ferguson does further agree that he shall satisfy and obtain a discharge and release from all taxing authorities claiming past due taxes in association with such property for the tax years prior to 1987 on or before December 15,1988.

The provision goes on to include an indemnity obligation:

Ferguson does further hereby agree to indemnify and hold Smith harmless from any and all claims, demands, actions, and lawsuits, including all expenses, costs, and attorney’s fees associated with the defense thereof, arising out of taxes due to any taxing authority related to the Second Avenue Property for tax years prior to 1987.

With respect to the indemnity provision, it was undisputed that, in 1995, various taxing authorities brought an in rem action for payment of property taxes on the Second Avenue Property, dating from 1970 through 1978. Smith conceded at oral argument that her indemnity claim was premature, as the tax case was pending at the time. We agree with Smith, and thus we have no indemnity issue to decide in this appeal.

We turn to the contractual obligation to pay and obtain a discharge and release of tax obligations by December 15, 1988. A party asserting a breach of contract claim must sue no later than four years after the day the claim accrues. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002).

Ferguson argues that the four-year statute of limitations ran on that obligation on December 15, 1992, over two years before Smith filed her counterclaim on January 11,1995. Smith asserts that her claim was revived under section 16.069 of the civil practice and remedies code, which provides as follows:

If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is required.

Tex Civ. PRAC. & Rem.Code Ann. § 16.069(a) (Vernon 1997). Smith contends that her claim for payment of taxes arose “out of the same transaction or occurrence” as Ferguson’s claim, in that all claims arose out of the divorce and subsequent settlement agreements.

For a counterclaim to arise out of the “same transaction or occurrence” as the original claim, there must be a “logical relationship” between the claims. The essential facts on which the counterclaim is based must be significantly and logically relevant to both claims. Frazier v. Havens, 102 S.W.3d 406, 411 n. 3 (Tex.App.Houston [14th Dist.] 2003, no pet.); see Jack H. Brown & Co. v. Northwest Sign Co., 718 S.W.2d 397, 400 (Tex.App.-Dallas 1986, writ ref d n.r.e.) (construing identical language used in civil-procedure rule 97(a) concerning compulsory counterclaims). One court has held that a claim concerning the interpretation of a particular provision in a deed was not logically related to a counterclaim attacking the validity or legality of the entire deed. Freeman v. Cherokee Water Co., 11 S.W.3d 480, 483 (Tex.App.-Texarkana 2000, pet. denied).

Smith’s cause of action is based on a provision in the 1988 Agreement concerning the payment of taxes on the Second Avenue Property. Ferguson did not allege any cause of action specifically related to that issue. Rather, he alleged that Smith breached specific, unrelated provisions of the AID and committed fraud. The facts essential to Smith’s tax claim are not significantly or logically related to Ferguson’s claims and thus did not “arise out of the same transaction or occurrence” under section 16.069. Tex. Civ. PRAC. & Rem.Code Ann. § 16.069(a). Accordingly, the trial court properly denied Smith recovery on her counterclaim for back taxes.

Summary Judgment Disposing of Ferguson’s Causes of Action

The trial court granted summary judgment, without stating reasons, on Ferguson’s claims for “Breach/Fraud,” including federal income tax issues, and “Indemnity — FDIC/Southampton.” The trial court went on to conclude that these claims were barred and Ferguson was estopped by agreement from bringing them, citing specifically Ferguson’s agreement in the 1989 Agreement not to reopen the divorce case or the AID.

We review a traditional summary judgment under well-established standards. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. To decide whether a disputed material fact issue exists, we take as true the evidence favorable to the non-movant. Id. We indulge every reasonable inference, and resolve any doubts, in favor of the non-movant. Id.

Release and “Estoppel by Agreement”

Ferguson argues that the “release” language from the 1989 Agreement — that he would not “reopen” the divorce or AID— does not encompass his claims and neither did the 1989 settlement agreement bar litigation of his claims through collateral estoppel.

To release effectively a claim in Texas, the instrument must “mention” the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). Even if the claims exist when the release is executed, any claims not clearly within the subject matter of the release are not discharged. Id. Brady, nonetheless, does not require that the parties anticipate and identify each potential cause of action relating to the subject matter of the release. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 698 (Tex.2000). In Keck, the language at issue released “all claims whatsoever,” whether existing or arising in the future, that were attributable to legal services rendered during a specified time period. Id. at 697. The Court held that language effectively released a legal malpractice claim despite the parties’ specific reference to their intent to release claims for unpaid legal fees. Id. at 698.

Parties should be able to bargain for and execute a release that fully and finally resolves disputes between them. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171,179 (Tex.1997). A release that clearly expresses the parties’ intent to waive fraudulent-inducement claims can preclude such a claim. Id. at 180-81 (fraudulent-inducement claims released by language including “all causes of action of whatsoever nature” and releasing party “from any and all liability damages of any kind known or unknown, whether in contract or tort”).

In their various agreements, the parties agreed to at least three separate provisions indicating their intent to release certain claims against each other. In the AID, signed in November 1986, the parties agreed to the following (emphasis added):

9.01. Release of Claims. The parties hereby expressly release and relinquish, each to the other, every claim (including claims for intentional or willful torts), demand, right and interest that he or she may have in or against the other, or in or against his or her estate, together with any income or earnings thereof, arising from and during the marriage and, of and from, any other reason growing out of the marital relationship thereby created.

After the divorce decree in January 1987, Ferguson and Smith were involved in numerous suits against each other. Smith asserted several suits against Ferguson to collect past due child support payments. The adult daughter, Sawnie, also sued Ferguson asserting he failed to meet certain obligations to her trust fund. In a separate matter, Ferguson had sued American Petrofina (“Fina”) concerning an oil-and-gas matter. Smith intervened in that suit, asserting an interest on the children’s behalf in certain properties.

Ferguson sued Smith as a third-party defendant in a suit concerning a loan by Bank of Dallas. In another matter, Union Bank and Trust had demanded payment on a substantial note of Ferguson’s. According to Ferguson, he was forced to sell his family ranch in Forney — which required Smith’s cooperation — to satisfy that debt.

These issues culminated in the 1988 Agreement between Smith and Ferguson, signed in September 1988. In it, among other things, the parties settled and agreed to dismiss at least four different actions against each other. Ferguson agreed to apply funds from the closing on the ranch to pay certain past-due child support obligations, and Smith received an agreed amount from the proceeds at closing.

Subsequently, Ferguson and Smith agreed in the 1989 Agreement to the following: Smith would dismiss her intervention in the Fina case. Ferguson would apply funds from that suit toward obligations to Sawnie’s trust and would satisfy arrearages in child support and begin paying monthly child support in a set amount. In the last paragraph of the 1989 agreement, Ferguson agreed that “he will not reopen the divorce case of the parties or the Agreement Incident to Divorce made a part of such Decree.”

The parties’ initial agreement in the AID to release intentional tort claims encompasses the fraud claim. The crux of Ferguson’s argument is that he should nonetheless be able to bring the fraud claim because Smith fraudulently concealed her deceitful behavior during the marriage, and he first discovered it only after agreeing to that release. The context of Ferguson’s later agreement points us to the opposite conclusion. Upon settling a multiplicity of suits in 1988 and 1989, Ferguson agreed not to “reopen” the AID or divorce. With his fraud claim, he now seeks recission of the allegedly “lopsided” AID and the decree incorporating the AID. As noted by the Schlumberger court, parties should be able to bargain for and execute a release that fully and finally resolves disputes between them. Id. at 179. We conclude that, coupled with the release language in the AID, Ferguson’s agreement not to reopen the AID encompassed his fraud claim.

The AID explicitly stated breach-of-contract claims were not released. Ferguson alleged a contract claim based on Smith’s “failure to disclose” material facts concerning her allegedly deceitful behavior during the attempted reconciliation. We conclude that the language releasing intentional and willful torts subsumes this “contract” claim as well.

We look to the facts alleged in the petition, not the legal theory. Utica Lloyd’s of Tex. v. Sitech Eng’g Corp., 38 S.W.3d 260, 264 (Tex.App.-Texarkana 2001, no pet.). The underlying nature of the claim controls, and a plaintiff cannot by artful pleading avoid the adverse effects of an agreement. Fridl v. Cook, 908 S.W.2d 507, 514 (Tex.App.-El Paso 1995, writ dism’d w.o.j.) (plaintiff cannot, through artful pleading, avoid arbitration agreement).

Ferguson’s “failure to disclose” claim is based on the same allegedly deceitful acts by Smith that Ferguson alleges are fraudulent. This purported contract claim merely restates a category of fraud. See Schlumberger, 959 S.W.2d at 181 (fraud by non-disclosure is simply a subcategory of fraud). Ferguson’s claim alleging Smith’s failure to disclose the material fact of her fraud is barred by Ferguson’s agreement to release the fraud claim.

Ferguson also alleged that Smith failed to file proper income tax returns for 1986, contrary to her obligations under the AID. He alleges she failed to report income and consequently failed to pay her share of taxes on community-property income for 1986. He asserts that the Internal Revenue Service discovered these deficiencies in 1992, after limitations had run on any claim it had against Smith. As a result, Ferguson alleges, he was made to pay Smith’s portion of the taxes due. As grounds for summary judgment. Smith asserted this claim was contradicted by contractual terms the parties had agreed to and was also barred by limitations and laches.

In the AID, the parties agreed to file separate tax returns for 1986, the final year of the marriage, and to pay the tax computed under the separate returns. They also agreed to cooperate in the preparation of the other’s return and to encourage their tax preparers to file the returns promptly to avoid the need for any extensions. They agreed to forward immediately to the other a copy of any deficiency notice from the IRS.

The decree incorporating the AID was signed in January 1987. Some eighteen months later, Ferguson signed the 1988 Agreement. In addition to paying past-due child support from funds from the sale of the ranch, Ferguson agreed to pay certain taxes as well. He agreed to pay one-half of the property taxes from 1986 on the Southampton property and to pay taxes on the property on Second Avenue, as discussed above. Ferguson also agreed to satisfy, and indemnify Smith against, any federal tax liens against a specific oil-and-gas property. Following that provision, Ferguson agreed to pay any existing federal tax liens on property in which Smith had an interest, and he further indemnified Smith against any claims or actions related to “any and all taxes, whether income, ad valorem or of any other character ... for tax years prior to 1987.”

Notably, Ferguson does not allege that Smith breached her obligations in the AID to file her 1986 tax return promptly. We note that Ferguson would have known of any such breach at the time he signed the 1988 Agreement, in September 1988. He nonetheless signed the 1988 Agreement, agreeing to pay a number of existing tax claims and indemnifying Smith against any and all federal tax claims for tax years prior to 1987. We conclude that, given this context, Ferguson’s indemnity of Smith against federal tax deficiencies effectively estopped him from bringing this claim based on Smith’s alleged breach of her obligation in the AID to file a proper income tax return for 1986.

Limitations on Breach-of-Contract Claims

Smith asserts the affirmative defense that the statute of limitations barred Ferguson’s contract claims. In her motion for summary judgment, she alleges that “all causes of action for breach of contract ... are alleged to have occurred more than four years before November 8, 1994, when Plaintiffs’ suit was filed and are barred by appropriate statutes of limitation and lach-es.”

An action for breach of contract is governed by a four-year statute of limitations. Tex. Civ. PRAC. & Rem.Code Ann. § 16.051 (Vernon 1997); Stine, 80 S.W.3d at 592 (general four-year statute of limitations applies to breach of contract). A party asserting a breach of contract claim must sue no later than four years after the day the claim accrues. Stine, 80 5.W.3d at 592. It is well-settled that a breach of contract claim accrues when the contract is breached. Id.

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). The defendant must conclusively prove when the cause of action accrued. Id, If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id. The burden does not shift to the nonmovant until the movant establishes its entitlement to a summary judgment as a matter of law. Gibson v. Ellis, 58 S.W.3d 818, 825 (Tex.App.-Dallas 2001, no pet.).

Ferguson’s contract claims, for which he seeks actual damages, all concern the AID, signed in November 1986. Smith asserts in her motion for summary judgment that the causes of action for breach are based on events occurring before November 8, 1990, beyond the four-year limitation period. To establish her affirmative defense of limitations, Smith must, at a minimum, conclusively establish that each alleged breach occurred before November 8, 1990.

Ferguson asserts that Smith blocked the sale of the community stock in Union Bank, in breach of the AID’s provision in which both agreed that “such stock shall be sold for cash, unless otherwise agreed to in writing, within a reasonable time.” Ferguson argues that the value of the stock was a material asset and that “the Union Bank became insolvent with the resultant complete devaluation of the stock.” He states in his affidavit that the Federal Deposit Insurance Corporation (FDIC) closed the bank about May 8,1988. Thus, undisputed assertions support an inference that once the FDIC closed the bank in 1988, the stock was no longer marketable. Accordingly, Ferguson’s cause of action for Smith’s alleged breach — through blocking a timely stock sale — would have accrued during 1988, more than four years before Ferguson filed suit. This claim is barred by the statute of limitations, and summary judgment on that basis was proper.

Ferguson also alleged that, contrary to the AID, Smith breached her obligation to assume any encumbrances on the property in Southampton, New York. By affidavit, Smith testifies that Ferguson improperly encumbered the property with a lien -in favor of Union Bank in October 1986. She includes a letter from Union Bank to attorney Michael McCauley, in which the bank accedes to his demand to release the lien on Smith’s Southampton property. The letter, dated December 1987, shows a “cc” to Searcy M. Ferguson, Jr.

This evidence supports an inference that Ferguson knew of Smith’s alleged breach — her failure to satisfy the amount of the lien- — in 1987, which is outside the four-year limitation period. We turn to Ferguson’s response. In his affidavit, Ferguson does not deny knowing in December 1987 that the bank had released the lien. Rather, he states in his affidavit, “After getting the bank president to call my notes on December 9, 1987, [Smith] demanded and got my [Southampton] collateral and/or liens she had-expressly assumed to pay in the AID released with no credit on my bank debt.” He makes further reference to the sale, in 1988, of his ranch property to satisfy the bank debt. Thus, Ferguson’s own testimony supports the inference that he knew in December 1987 that the bank was demanding payment on the note, without benefit of Smith’s obligation to assume the lien. We conclude that Smith conclusively established that this cause of action for breach accrued no later than 1988, over four years before Ferguson’s filing of this suit in 1994. Thus, this claim is barred by limitations, and summary judgment was proper.

Accordingly, we AFFIRM the denial of recovery on Smith’s counterclaim for the payment of taxes on the Second Avenue Property. We AFFIRM the trial court’s summary judgment on Ferguson’s fraud and breach-of-contract claims against Smith.

      . S.M. Ferguson, Inc. is the parly-plaintiff that allegedly purchased the ring.

      . Smith’s other claims were severed, leaving only her property-tax issue in this suit.

      . Ferguson’s other claims, which concern oil and gas properties and attorney’s fees, were subsequently resolved and are not at issue in this appeal. Also, Ferguson does not argue on appeal that the trial court erred in granting summary judgment on the conversion claim.

      . The release provision in the AID excluded claims for breach of the AID:
      [Njeither party is released or discharged from any obligation under this Agreement. ... Further, this Release does not cover any claims either Party may have against the other resulting from tax returns filed by the Parties, or either of them, for taxable years commencing with 1984.

      . The full provision reads as follows:
      Ferguson does hereby agree to pay out of the proceeds of the Closing all amounts due to the United States Internal Revenue Service for past due federal income taxes which have resulted in placement of federal tax liens against any asset in which Smith has a present interest, and to further obtain releases for Smith from the Internal Revenue Service releasing federal tax liens that it now has in any such property in which Smith has an interest. Ferguson further agrees to indemnify and hold Smith harmless from any and all demands, claims, actions and lawsuits, including, expenses, costs and attorney’s fees incurred in connection with the defense thereof or related to any and all taxes, whether income, ad valorem or of any other character, plus any penalties and interest associated therewith, for tax years prior to 1987.

      . Smith also asserted that limitations barred the fraud claim as well. Because we affirm summary judgment on the fraud claim on other grounds, we need not reach the question whether summary judgment was proper based on limitations.


source: Caselaw Access Project

author: BOB MCCOY, Justice.

license: Public Domain

text:
    Christopher David COURSON, Appellant, v. The STATE of Texas, State.
    No. 2-04-130-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 3, 2005.
    Richard K Franklin, Dallas, for Appellant.
    Bruce Isaacks, Crim. Dist. Atty., Erin B. Healey, Lori Moraine, Darren Ralstin, Asst. Dist. Attys., Denton, Matthew Paul, State Prosecuting Atty., Austin, for Appel-lee.
    Panel F: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
   OPINION

BOB MCCOY, Justice.

Appellant Christopher David Courson was convicted of causing injury to a child with a deadly weapon, his hands, and sentenced to ninety-nine years’ confinement. On appeal, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction and the trial court’s denial of his motion for new trial. We will affirm.

I. FACTUAL BACKGROUND

Appellant brought his six-month-old daughter, Kylie, to Medical Center of Lew-isville’s emergency room on June 27, 2003 in a comatose state. A hospital volunteer testified that Appellant at first told her that he fell while he was taking a shower with Kylie; later he told her that Kylie fell out of his arms and landed on her side. The emergency room physician who treated Kylie testified that Appellant said he had been carrying Kylie in his arms when she fell out of his arms and landed on the floor. The police officer who first arrived at the hospital testified that Appellant said he had been taking a shower with Kylie, that he slipped and fell as he stepped out of the shower, and that Kylie “squirted up out” of his arms as he fell. After initially being treated at Lewisville, Kylie was later transferred to Children’s Medical Center of Dallas (“Children’s”).

Regarding Kylie’s injuries, child neurologist Jay Cook, M.D. testified that Kylie had broken blood vessels in her eyes and indications of cerebral pressure, both of which indicated shaken baby syndrome. Kylie’s CT scan showed that she also had subdural hematomas on both sides of the brain. Dr. Cook explained that subdural hematomas can be caused by anything that moves the head forward and backward. Dr. Cook also testified that if a child were injured by falling down and hitting her head, she would exhibit other signs of trauma; in contrast, if a child were injured by shaking, there would be no additional signs other than handprints on the chest. Dr. Cook noted that a chest x-ray showed that Kylie had a rib fracture that was at least two weeks old.

Dr. Cook further testified that Kylie’s CT scan showed that her brain had suffered at least two traumatic events; one occurred in the twenty-four-hour period before Kylie was brought to the hospital, and the other had occurred some time before that. Dr. Cook also testified that Kylie suffered two skull fractures and that these had been caused by some external force, such as a fall. However, he explained that Kylie suffered injuries throughout her brain, not in just one location, and that this diffuse brain damage was not the type of injury that would result from a fall.

Travis Kevin Lilly, M.D., the emergency room physician who first treated Kylie, testified that she had suffered at least two incidents of trauma as shown by her retinal hemorrhages, a hallmark of shaken baby syndrome, and skull fractures; however, he could not date the age of the retinal hemorrhages. He noted that Kylie had no bumps or bruises on her head or face to indicate that she had fallen out of Appellant’s arms that morning. He also stated that rib fractures do not occur every time a baby is shaken.

Dr. Lilly further testified that the CT scan showed “acute,” or new, bleeding in Kylie’s brain that had occurred sometime within the previous twenty-four hours. He testified that Kylie also had two “suba-cute,” or old, areas of bleeding called he-matomas, one on each side of the front part of her brain; the one on the left was twenty-four to forty-eight hours old, and the one on the right was two to three days old. Dr. Lilly stated that a “significant force” to the head could have caused the old hematomas to bleed again, but he explained that the acute blood appeared towards the back of Kylie’s brain, while the old hematomas were in the front of her brain. Nancy McNeil, a pediatric nurse practitioner, also testified that old hemato-mas can leak new blood, but this new blood would not necessarily show up as a new hemorrhage on a CT scan. Nurse McNeil further testified that a sudden onset of symptoms such as unresponsiveness would not result from a “rebleed” of an old hema-toma; rather, it would be the result of another, acute incident.

Peter Luckett, M.D., the physician in charge of the Children’s trauma unit at the time Kylie was admitted, testified that he questioned Kylie’s family about her health history in an effort to ascertain the cause of her condition. He reported that the family told him that Kylie had been “completely, entirely normal” before the day she was taken to the emergency room and that there was no reason to believe that there was anything wrong with her. Dr. Luckett testified that because Kylie was brought to the hospital near death but was normal before that, it was an “acute, catastrophic event” that caused her symptoms that day. He also testified that Kylie suffered from shaken baby syndrome and that a baby who had been shaken would not necessarily have any bruises on her chest and back.

Detective Eddie Barrett testified that he spoke with Appellant at the hospital while investigating Kylie’s injuries, and Appellant said that he was Kylie’s primary caregiver and that Kylie had been with him Wednesday and Thursday, the two days before he brought her to the ER. Appellant testified that he took care of Kylie during the day on Wednesday and Thursday but that he could not remember what he did during those evenings. He admitted that he was in the apartment Thursday evening with Kylie and Morgan, Kylie’s mother, but that he “might have left to go to the store or something” for a “[p]ack of cigarettes or something.”

Detective Barrett also testified that when he searched Appellant’s home after speaking with Appellant at the hospital, he noticed that even though Appellant claimed that the fall happened as he stepped out of the shower, none of the rubber toys sitting on the edge of the shower’s bathtub had been knocked over or disturbed. Based on the small size of the bathroom, Detective Barrett also doubted that Appellant, contrary to his story, could have fallen without hitting something such as the toilet seat or counter.

II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In his brief, Appellant does not dispute that Kylie had shaken baby syndrome. Instead, he argues that because the medical evidence did not pinpoint the exact time that Kylie’s injuries occurred, the State did not prove that he was the only person with access to Kylie who could have harmed her. Appellant points to Ky-lie’s old rib fracture and the lack of hand-prints on her chest as evidence that she was not injured when she was alone with Appellant that morning, and he claims that “[t]here is no evidence that anything happened to Kylie on the 27th of June 2003 other than all the injuries caught up with her and she became symptomatic.”

However, the State presented testimony from doctors that Kylie’s brain had suffered a traumatic event in the twenty-four-hour period before Appellant brought her to the hospital. There was also testimony that the new blood did not appear in the same area of Kylie’s brain as the old he-matomas, that Kylie’s severe symptoms would not have resulted merely from a “rebleed” of these old hematomas, that Kylie’s sudden decline from a normal state to a comatose state showed that she had suffered a new, “catastrophic” trauma, and that a shaking episode would not necessarily cause bruising or broken ribs. Accordingly, the jury could rationally have con-eluded that Kylie suffered serious bodily injury within the twenty-four-hour time period before Appellant took Kylie to the hospital and not merely that some old injuries became symptomatic, as Appellant argues.

Furthermore, the State was required to prove that Appellant was responsible for causing serious bodily injury to Kylie, not that he had exclusive possession of her for an indeterminate time period before taking her to the emergency room. See Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003). The evidence showed that Appellant was Kylie’s primary caregiver, and it further showed that Appellant was with Kylie for at least the twenty-four hour period before he brought her to the hospital. Appellant testified that he may have left Kylie at the apartment with her mother the night before “to go to the store or something” and that he could not remember what he did the night before that, but the jury was free to disbelieve Appellant’s testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.) (“The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony.”), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Likewise, the jury was free to reject any implication that some other, unnamed person could have caused Kylie’s injuries in light of all the evidence presented at trial. See Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004) (stating that the jury, not the reviewing court, has the responsibility of accepting or rejecting alternative theories of causation); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993) (holding that, in a circumstantial evidence case, “it is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances”), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222 (1994).

Accordingly, after examining the evidence under the applicable legal and factual sufficiency standards of review, we conclude that the jury was rationally justified in finding appellant’s guilt beyond a reasonable doubt. We overrule Appellant’s first and second issues.

III. WITNESS CONFRONTATION

In his third issue, Appellant argues that the trial court erred in denying his motion for new trial because admission of hearsay statements made by his wife, Morgan, to police after a domestic dispute between Morgan and Appellant violated his federal constitutional right to confront witnesses against him. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). However, the record does not reflect that Appellant raised any objection at trial to the admission of these statements.

To preserve a complaint for our review, a party must have presented to the trial court a timely and specific objection to the complained-of testimony. See Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g),. cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Appellant claims that because Crawford v. Washington was handed down during his trial, the only way to cure the error was through a motion for new trial. We review the trial court’s decision to deny Appellant’s motion for new trial under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); Jackson v. State, 139 S.W.3d 7, 13 (Tex.App.-Fort Worth 2004, pet. ref’d).

In Crawford v. Washington, the Supreme Court held that testimonial hearsay statements are subject to the requirements of witness unavailability and a prior opportunity for cross-examination contained in the Sixth Amendment’s Confrontation Clause, regardless of whether such statements are deemed reliable by the trial court. 541 U.S. 36, 124 S.Ct. at 1374. In so holding, the Court abrogated its earlier decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), as applied to testimonial hearsay statements. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. at 1374. However, Crawford v. Washington makes clear that the federal constitutional right to confront one’s accusers is neither new nor novel. See id.; Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.-Austin 2004, pet. refd). Accordingly, Appellant was well aware at the time the State elicited testimony regarding Morgan’s hearsay statements of his right to confront witnesses against him as well as the necessity of objecting at trial to the admission of these statements without his having had the opportunity to examine Morgan regarding the statements. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000) (holding that an objection at trial is required to preserve error on Confrontation Clause grounds), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001).

An objection must be made as soon as the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997); Wilson v. State, 44 S.W.3d 602, 606 (Tex.App.-Fort Worth 2001, pet. refd). The purpose of lodging a timely and specific objection is to inform the trial court of the basis of the objection and to give the court an opportunity to rule on the specific objection as the evidence is introduced. Aguilar v. State, 26 S.W.3d 901, 906 (Tex.Crim.App.2000). Accordingly, because Appellant failed to advance his Confrontation Clause objection to the hearsay testimony until after the conclusion of the trial, Appellant’s objection was untimely. As a result, Appellant forfeited his complaint that the hearsay testimony violated his federal constitutional right to confront witnesses against him. See Oveal v. State, No. 14-02-01089-CR, 2004 WL 2812842, at *1, — S.W.3d -, at - (Tex.App.Houston [14th Dist.] Dec. 9, 2004, no pet. h.) (holding that appellant failed to preserve his Confrontation Clause complaint under Crawford v. Washington by failing to object at trial); Crawford v. State, 139 S.W.3d 462, 464 (Tex.App.-Dallas 2004, pet. refd) (same); Bunton, 136 S.W.3d at 369 (same). Therefore, the trial court did not abuse its discretion in denying Appellant’s motion for new trial. We overrule Appellant’s third issue.

IV. CONCLUSION

Having overruled all Appellant’s issues on appeal, we affirm the trial court’s judgment.

      . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, -61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

      . See Zuniga v. State, 144 S.W.3d at 481; King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999).


author: DIANE DeVASTO, Justice.

text:
    EOG RESOURCES, INC., Appellant, v. Travis WALL and Laverne Wall, Appellees.
    No. 12-03-00340-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 10, 2005.

      Gregory D. Smith, Frank McClendon, III, Robert P. Dougherty, Jr., Dougherty Law Firm, Tyler, for appellant.
    G. Thomas Allison, III,D. Jeffrey Ram-bin, for appellees.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

EOG Resources, Inc. appeals from a summary judgment granted in favor of Travis and Laverne Wall in its suit for conversion of gas or, alternatively, for breach of an oil and gas lease. In six issues, EOG contends the summary judgment was improper because fact issues remain, the Walls did not establish an affirmative defense, the trial court made erroneous evidentiary rulings, and the summary judgment motions did not address the entire case. We reverse and remand.

Background

EOG is the owner of a 1944 oil and gas lease that covers certain property in Pano-la County. Among the original lessors were Watley and Mildred Strong, Laverne Wall’s parents. The lease covers three identified tracts of land and “all land owned or claimed by Lessor adjacent or contiguous to the land particularly described.” At the center of the dispute here is the following lease provision: “Lessor shall have the privilege at his risk and expense of using gas from any gas well on said land for domestic use in the principal dwelling thereon out of any surplus gas not needed for operations hereunder.” The Walls, and others, have for years taken gas allegedly pursuant to this provision. EOG disputes their right to do so.

EOG sued the Walls, and nine other defendants not party to this appeal, alleging that the defendants converted gas from EOG’s wells. In the alternative, EOG alleged that if the defendants were entitled to take any free gas pursuant to any written agreement or lease, they did so in violation of the contractual provision and are therefore liable to EOG for breach of contract. EOG asked for exemplary damages based on the defendants’ fraudulent or malicious acts. EOG also sought a court order, allegedly pursuant to the terms of the lease, requiring defendants to acquire liability insurance in connection with their use of the gas and execute an indemnification agreement to EOG. It also asked for a declaration, pursuant to the Uniform Declaratory Judgments Act, clarifying the defendants’ acceptable use of gas under the lease. Further, EOG requested a permanent injunction enjoining defendants from taking gas that they are not entitled to take and from taking gas until they have furnished EOG an insurance policy in an amount of at least twenty million dollars.

The Walls filed a single document entitled “Traditional & No Evidence Motions for Summary Judgment.” In their first argument, they asserted that a 1944 oil and gas lease gives EOG permission to draw gas from their land and gives the Walls the right to take a portion of the gas produced on their land and use it in their home. They argued that there is no evidence that EOG is entitled to the gas the Walls use in them home and, therefore, the conversion claim must fail. Further, they asserted entitlement to a traditional summary judgment because they conclusively established that they have the right, under the lease, to use the gas in their home, thereby defeating the conversion and breach of contract claims. In their second argument, the Walls asserted that their use of the gas was ratified by the Estate of R.E. Smith, EOG’s predecessor in interest. A 1979 agreement between the Estate and the Walls recited that the Walls desired, pursuant to the terms of the 1944 lease, to obtain gas for them personal, domestic use and, therefore, a Smith representative would show them where they could tap into the gas line. In return, the Walls agreed to hold the Estate harmless in the event of an accident. Finally, the Walls asserted that, as they have been using the gas since 1959, they have established the defense of adverse possession.

As summary judgment evidence, the Walls presented the 1944 lease, the 1959 deed conveying to them the surface estate of their 2.72 acres, a 1982 deed conveying to them an undivided mineral interest in 41.15 acres, the 1978 agreement with the Smith Estate, Travis Wall’s deposition testimony, and EOG’s answers to interrogatories.

EOG filed a response asserting that there are several questions of fact precluding a summary judgment. In support of its response, EOG filed the affidavit of Warren J. Davis, Division Land Manager for EOG. His affidavit was accompanied by a copy of the 1944 lease, a letter from EOG to the Walls explaining that delivery of gas into the line used by the Walls would cease, two plats showing the John Moms Survey A-446, and the 1978 Smith Estate agreement. EOG also offered excerpts from Travis Wall’s deposition testimony, EOG’s answers to interrogatories, the affidavit of J.D. Huppler, EOG’s Vice President and General Manager, and two liability insurance policies showing Travis Wall’s coverage limits.

EOG filed a motion for leave to file a supplemental response and supplemental exhibits including the deed conveying the Walls’ property to them, a portion of Travis Wall’s deposition testimony, the 1982 deed conveying mineral rights in certain property to the Walls, a portion of the deposition testimony of Sam Strong, Lá-veme Wall’s brother, and affidavits of Bill H. Burton and Warren J. Davis. The trial court denied this motion.

In its order disposing of the case, the trial court granted the Walls’ objections to the affidavits of Jack Huppler and Warren Davis and excluded those affidavits to the extent they offer opinions on the meaning of the term “surplus gas.” It granted the Walls’ objections to portions of the affidavit of Warren Davis that refer to, describe, or in any way rely on the opinions of Bill Burton, or any plat prepared by Bill Burton, and excluded those portions of the Davis affidavit. The court granted the Walls’ “traditional” and “no-evidence” motions for summary judgment, dismissed EOG’s claims against the Walls, and severed the claims against the Walls from the remaining defendants.

Admissibility of Evidence

In its fifth issue, EOG asserts the trial court erred in striking portions of its summary judgment evidence without allowing it the opportunity to cure the alleged defects. The Walls objected to EOG’s affidavits claiming they contained hearsay and legal conclusions and were not based on personal knowledge. EOG contends these are defects in form, which are curable. Accordingly, it argues, the trial court erred when it denied leave to file supplemental evidence tendered in an attempt to cure.

The Walls lodged hearsay objections against the affidavit of Warren Davis because Davis interpreted a plat he did not prepare. EOG asked leave to file a supplemental response and an affidavit by Bill Burton, the surveyor who prepared the plat, in an attempt to cure the alleged error. The trial court denied leave to supplement, granted the Walls’ objections to the portions of the affidavit that refer to, describe, or in any way rely on the opinions of Bill Burton, or any plat prepared by Bill Burton, and excluded those portions of the Davis affidavit. EOG argues that the tendered, non-hearsay Burton affidavit showed that the Walls’ home is not on the leased land. Therefore, if in evidence, the argument continues, it would have raised a fact question as to the applicability of the lease to the Walls’ property.

Further, the Walls objected to the affidavits of Jack Huppler and Warren Davis, claiming they contained legal conclusions and were not based on personal knowledge. The trial court granted the Walls’ objections and excluded those affidavits to the extent they offer opinions on the meaning of the term “surplus gas” as used in the lease. EOG tendered a supplemental affidavit of Davis to clarify his level of expertise and to explain the meaning of the term “surplus gas.”

Affidavits filed to support or oppose a motion for summary judgment must be made on personal knowledge and set forth such facts as would be admissible in evidence. Tex.R. Civ. P. 166a(f). Complaints that an affidavit contains hearsay or is not based on personal knowledge raise defects of form. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1962); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 n. 9 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Defects in the form of affidavits may be grounds for reversal if specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. Tex.R. Civ. P. 166(f). The trial court should allow supplementation to cure defects of form. See Webster v. Allstate Ins. Co., 833 S.W.2d 747, 749-50 (Tex.App.-Houston [1st Dist.] 1992, no writ).

In his affidavit, Bill Burton explained that he performed a survey of the lands covered by the 1944 lease and prepared a plat showing the boundaries of the land involved. After locating on the ground the houses owned by the Walls, he determined that those houses are not within the boundaries of the land identified in the lease. This affidavit cured the hearsay objections to references to the plat made by Davis in his original affidavit.

In his supplemental affidavit, Davis stated that he has been a landman in the oil industry in East Texas since 1981 and is familiar, through his experience, with the term “surplus gas.” He went on to explain the term’s meaning. Assertions founded on his personal experience in the oil industry in East Texas for twenty years, and particularly based on his employment with EOG, are sufficiently based on personal knowledge as required by the rule. See Lujan v. Tampo Mfg. Co., 825 S.W.2d 505, 509 (Tex.App.-El Paso 1992, no writ); City of Dallas v. Continental Airlines, Inc., 735 S.W.2d 496, 501 (Tex.App.-Dallas 1987, writ denied). Therefore, Davis’s supplemental affidavit cured the personal knowledge objection to his original affidavit. Further, in order for the trial court to determine if the Walls complied with the terms of the lease and properly analyze whether the lease was ambiguous, it needed to first determine whether there is a definite legal meaning or interpretation for the term “surplus gas.” See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983) (Even if neither party pleads ambiguity, a trial judge may conclude a contract is ambiguous.).

The Walls rely on the 1944 lease to claim entitlement to free gas from EOG’s lines. Therefore, EOG’s proffered evidence raising fact questions as to the applicability of the lease to the Walls’ home and whether the gas taken meets the definition of the term “surplus gas” as used in the lease constituted proper summary judgment evidence. The trial court erred in failing to allow EOG to supplement its evidence to cure formal defects in the previously submitted affidavits. See id. We sustain EOG’s fifth issue.

Conversion and Breach of Contract

In its first, second, and third issues, EOG asserts the trial court erred in granting the Walls’ motion for summary judgment because fact issues remain on the conversion and breach of contract claims. It argues that, although the lease states that its provisions “shall extend to the heirs, successors and assigns of the parties hereto,” the Walls have not conclusively established that they are the hems or successors to the Strongs’ rights in the 1944 lease. EOG also questions whether their home is located on the leased land. Further, EOG argues that the Walls’ uses of gas do not fit within the limited right that the lease’s free-gas proviso affords. EOG asserts that the Walls improperly took gas for two houses and a greenhouse. EOG contends that affidavit testimony proves it owns all the gas produced except for the limited possibility of a lessor’s domestic use, in one principal dwelling, of surplus gas not needed for operations, produced from a well on the leased land. In sum, EOG asserts that the summary judgment evidence raises numerous fact questions regarding the applicability of the lease and the Walls’ compliance with its terms.

Standard of Review

In a “no-evidence” summary judgment, a party is entitled to summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard as a directed verdict. Id. at 750-51. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. at 751. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.

To obtain a “traditional” summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element- of the plaintiffs cause of action as a matter of law or conclusively establishes all elements of an affirmative defense as a matter of law. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the non-movant to produce controverting evidence raising a fact issue as to the elements negated. Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970); Owen Elec. Supply, Inc. v. Brite Day Constr. Inc., 821 S.W.2d 283, 286 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

When the order granting summary judgment does not specify the particular grounds the trial court sustained, on appeal, the summary judgment opponent must defeat each summary judgment ground argued by the movant. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Otherwise, an appellate court must uphold the summary judgment on any ground that is supported by the evidence and pleadings. Id.

Conversion

Conversion is the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex.2002). To recover on a claim of conversion of property, the plaintiff has the burden to prove that he is the owner of the property alleged to have been converted. Russell v. City of Bryan, 919 S.W.2d 698, 704 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

Contract Construction

The interpretation of an agreement is purely a question of law. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). We review lease-construction questions de novo. Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002). In construing a lease, the court seeks to determine the intent of the parties as that intention is expressed in the lease. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 727-28 (Tex.1981).

Discussion

The Walls’ initial argument in their motions for summary judgment was that EOG could produce no evidence that it was the owner of the gas the Walls used in their home. They argued that EOG has no documents to prove its ownership and, moreover, that the 1944 lease gives the Walls the right to the gas. EOG responded that the lease is the document that proves EOG’s ownership of the gas. It asserted that it owns the lease and that the Walls have not proven themselves to be the heirs or successors in interest of the original lessors. The Walls agreed that EOG is the original lessee’s successor in interest but disagreed as to the lease’s application. They contended they have properly taken gas pursuant to the unambiguous lease. They also argued that their 1979 agreement with the Smith Estate indicates they have a right to the gas pursuant to the 1944 lease.

Two of the original six lessors were Mildred and Watley Strong, Laverne Wall’s parents. By its terms, the lease’s provisions extend to the Strongs’ heirs and successors in interest. There is no documentation in the record, however, to show whether the Walls, or someone else, are their heirs or successors in interest. The location of the Walls’ property also raises a fact question. The Walls live on a 2.7 acre plot of land deeded to them by the Strongs in 1959. The lease described the three tracts of land that it covered. EOG tendered evidence, the Davis and Burton affidavits and accompanying plat, asserting that the Walls’ residence was not located on property covered by the lease. Further, even if the Walls’ are the Strongs’ heirs and successors in interest, and the land is covered by the lease, there is a question of fact regarding whether the Walls’ home qualifies as the “principal dwelling” referred to in the lease. Travis Wall stated in his deposition that the Strong’s original home was located where his greenhouse presently is located. Possibly, that house was the “principal dwelling” in 1944. The Walls built their home in 1959. At some point after 1959, the Strongs’ home burned and they built another home beside the Walls’ home.

The benefit created by a free gas clause is deemed a covenant running with the surface estate of the property. Thomas v. Thomas, 767 S.W.2d 507, 509 (Tex.App.-Amarillo 1989, writ denied). The surface estate receives the benefits and the mineral estate has the burden. Id. Where, as here, the free gas clause is limited to the “principal dwelling,” that burden to the mineral estate cannot be extended to additional dwellings without the consent of the lessee. Id. at 509-10. The right to take free gas under a free-gas clause in an oil and gas lease is transferra-ble and assignable as is any other property interest. Id. at 510. However, under the terms of the lease, there can be only one principal dwelling. Travis Wall’s deposition testimony raises a question as to which home is the “principal dwelling.” See id. (The court determined that the “principal dwelling” was the first home built on the property, which continued to be owned by successors in interest to the surface estate even though it had been vacant for years.).

Further, EOG argues that the Walls did not prove that the gas they take is “surplus gas” within the meaning of the lease. Both sides assert that the lease is unambiguous. EOG submitted affidavits by Huppler and Davis explaining that the term means gas produced in excess of that needed for operations and that cannot be sold, that would normally be flared or vented. In his deposition testimony, Travis Wall said he did not know how to define “surplus gas” but it means there is enough gas for use in his home. As the lease limits any use of free gas to “surplus gas,” the meaning of the term must be determined. The trial court did not consider EOG’s evidence on this issue. EOG’s summary judgment evidence raised fact questions as to the meaning of the term “surplus gas” and whether the gas taken by the Walls was surplus gas.

On its face, the lease does not support the Walls’ contentions. Further, we disagree with their assertion that the 1979 agreement proves they rightfully take gas pursuant to the lease. That agreement states that, pursuant to the 1944 lease, the Walls desire to obtain gas for use in their home. This is proof only that, in 1979, the parties to the agreement believed the 1944 lease applied to the Walls. Accordingly, the Walls did not prove they had the right to the gas under the lease. Further, EOG presented more than a scintilla of evidence indicating that the Walls may not have that right. We conclude that fact questions exist regarding whether the Walls live on the surface estate covered by the lease, whether their home is the principal dwelling, whether the gas they take is “surplus gas,” and even whether they are the heirs or successors to the Strongs’ rights. Therefore, the order granting the Walls’ no-evidence and traditional motions for summary judgment was improper to the extent it rested on their arguments that the conversion and breach of contract claims cannot stand. See Chapman, 118 S.W.3d at 751; Black, 797 S.W.2d at 27. We sustain EOG’s first, second, and third issues.

Affirmative Defenses

Ratification

In its fourth issue, EOG contends the Walls failed to exclusively establish the affirmative defense of ratification. The Walls relied on their 1979 agreement with the Smith Estate to assert that their use of the gas was ratified. EOG argues that the Walls did not comply with the agreement, any ratification was personal to Smith, there is a fact issue regarding whether Smith was acting upon a material mistake of fact, and EOG revoked any permission to take gas that Smith may have granted the Walls.

Ratification is the adoption or confirmation, by one with knowledge of all material facts, of a prior act which did not then legally bind that person and which that person had the right to repudiate. Enserch Corp. v. Rebich, 925 S.W.2d 75, 84 (Tex.App.-Tyler 1996, writ dism’d by agr.) (op. on reh’g). Assuming the 1979 agreement resulted in ratification by the Smith Estate of the Walls’ use of free gas pursuant to the lease, that ratification cannot be extended to bind EOG. Actions taken by prior owners are not binding on a subsequent owner because the prior owners were not agents of the subsequent owners and were not acting on their behalf. Id. If the trial court granted the Walls’ motions for summary judgment based on their ratification theory, it did so erroneously.

Adverse Possession

Also in its fourth issue, EOG contends the Walls did not prove their affirmative defense of adverse possession. It asserts they did not show continuous, visible, or hostile possession or a claim of exclusive ownership. EOG argues that the Walls’ characterization of their use of the gas as permissive concedes the true owner’s right to withdraw that permission. Further, the line was buried and there is no evidence Smith ever knew of its existence. EOG also argues that the 1979 agreement did not indicate any present use, only the desire for a future tap. Finally, EOG contends that one cannot adversely possess a use or service and it would be burdensome to prove adverse possession of natural gas.

The right to free gas under an oil and gas lease is an interest in real property that can be acquired or lost by adverse possession under applicable statutes of limitations. Thomas, 767 S.W.2d at 510. Adverse possession means “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. PRAC. & Rem.Code Ann. § 16.021(1) (Vernon 2002). Section 16.028 of the Texas Practice and Remedies Code provides a twenty-five-year limitation period for actions involving adverse possession by one holding the property in good faith under a recorded instrument. Tex. Crv. PRAC. & Rem.Code Ann. § 16.028 (Vernon 2002). Section 16.028 requires a claimant relying on the twenty-five-year statute of limitations for adverse possession to come forward with a deed or some other type of instrument that purports to convey title to the property in question. Id.; Boyle v. Burk, 749 S.W.2d 264, 267 (Tex.App.-Fort Worth 1988, writ denied). The Walls, as movants, had the burden of showing as a matter of law that the suit is barred by limitations. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 80-81 (Tex.1989).

The Walls claim the right to free gas pursuant to the 1944 lease. However, whether that document conveys that interest to the Walls is one of the paramount issues presented in this case. Therefore, the lease cannot be relied on as proof of a conveyance to prove adverse possession. The Walls did not show, as a matter of law, that the suit is barred by limitations. See Boyle, 749 S.W.2d at 267. As the Walls did not meet their burden to prove the affirmative defenses of ratification and adverse possession, the summary judgment should not have been granted on these grounds. We sustain EOG’s fourth issue.

Pending Claims

In its sixth issue, EOG asserts the trial court erroneously granted summary judgment on a claim not addressed by the motion for summary judgment. It argues that it pleaded for declaratory relief/specific performance of the lease’s requirement for insurance and indemnity but the summary-judgment motion ignores the claim.

A summary judgment cannot dispose of causes of action not addressed in the motion for summary judgment. Ecotech Int’l, Inc. v. Griggs & Harrison, Inc., 928 S.W.2d 644, 649-50 (Tex.App.-San Antonio 1996, writ denied). In its petition, EOG sought specific performance in terms of an order for the Walls to obtain liability insurance in connection with their use of gas and an order for them to execute and deliver a full and complete indemnification and hold harmless agreement to EOG in connection with their use of the gas. EOG further pleaded, pursuant to the Uniform Declaratory Judgments Act, for a declaration specifying what, if any, usage of free gas the Walls are entitled to under the lease. Further, EOG requested a permanent injunction enjoining the Walls from taking gas from EOG’s wells or, if a contractual right to take gas exists, an injunction enjoining them from taking gas until they have furnished a policy of liability insurance in an amount of at least twenty million dollars. These claims were not addressed in the motions for summary judgment and cannot be covered by the summary judgment. Id. We sustain EOG’s sixth issue.

Conclusion

The trial court erred in failing to allow EOG the opportunity to cure the errors in the form of its evidence. Because the Walls did not meet them burden to show entitlement to judgment as a matter of law, material' fact questions exist, and the motions did not address all of EOG’s claims, the trial court erred in granting the Walls’ motions for no-evidence and traditional summary judgment. We reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.


author: JAMES T. WORTHEN, Chief Justice.

text:
    PINE TRAIL SHORES OWNERS’ ASSOCIATION, INC., Appellant, v. George AIKEN, et al., Appellees.
    No. 12-03-00098-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 10, 2005.

      Sean P. Healy, Tyler, for appellant.
    John F. Berry, Pye, Dobbs & Berry, P.C., Paula H. Powell, Smith County Criminal Dist. Atty., Tyler, for appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Pine Trail Shores Owners’ Association (the “Association”) appeals from a take-nothing judgment following a bench trial in its suit on sworn account to collect assessments against forty-six lot owners in the Pine Trail Shores Subdivision (the “Subdivision”). In six issues, the Association contends the trial court erred in failing to enter judgment in its favor. We affirm.

Procedural and Factual Background

In 1971 and 1972, Eastern Resorts Property, Inc. established the Subdivision and divided it into four sections. It filed restrictions in the Deed Records of Smith County, Texas, which included a provision establishing assessments for lot owners. An owner of one lot was assessed $1.50 per month. Owners of multiple lots were assessed-$1.00 per month per lot, but no owner of multiple lots was to be assessed more than $4.00 per month. In 1994, Eastern Resorts assigned its rights in these restrictions to the Association.

In May 2001, the Association filed suit against 156 lot owners seeking to collect a total of $70,278.00 in assessments. Eventually, in October 2003, the Association went to trial against forty-six lot owners seeking a total of $25,564.40. After a bench trial, the trial court entered a take-nothing judgment and entered the following findings of fact and conclusions of law:

Findings of Fact
1. There has been no evidence provided by the Plaintiff as to the date and time that each Defendant’s cause of action began and the assessment began to accrue.
2. The Plaintiff has failed to describe those Defendants who made application to the Association and were accepted into the membership and those Defendants who were denied membership or those that were expelled from the membership.
3. The original By-Laws of the Association have not been provided to the Court, thereby evidencing the authority of the Association, acting alone, to amend the By-Laws and the Subdivision Restrictions filed of record in Smith County, Texas.
4. The Subdivision Restrictions that are filed of record in the Deed Records of Smith County, Texas state that an assessment is made of $1.50 per month per lot, the owner of which owns only one lot, and $1.00 per month per lot in respect to lots of which 2 or more are owned by the same person, but not to exceed $4.00 per month as to total of all lots owned by one owner.
5. No amendments to the Subdivision Restrictions or special assessments have been shown to the Court to be filed of record in the Deed Records in Smith County, Texas.
Conclusions of Law
1.Plaintiffs account of the Defendant’s assessments is not just and true and does not specify whether it is an assessment made under the original Subdivision Restrictions filed of record or an assessment made later under amended By-Laws or special assessments made by the Board of Directors.
2. Assessments shall not accrue on all the lots in the Pine Trail Shore’s [sic] Subdivision and some Defendants’ lots may have not been assessed under the Subdivision Restrictions.
3. The Plaintiff has faded to prove that the proper procedure was followed in amending the original By-Laws and the Subdivision Restrictions filed of record in Smith County.
4. The right to assessment on the lots in the Pine Trail Shore’s [sic] Subdivision are not to exceed $4.00 per month as to the total of all lots owned by one owner in the Subdivision.
5. These amendments and special assessments do not constitute proper notice to the Defendants as covenants running with the land.

The Association timely filed this appeal.

Standard of Review

Findings of fact in a bench trial have the same force and dignity as a jury verdict and are reviewable for legal and factual sufficiency of the evidence by the same standards as applied in reviewing a jury’s findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). In reviewing legal sufficiency, we consider only the evidence and inferences supporting the finding. Minnesota Mining & Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex.1997). Anything more than a scintilla of evidence is legally sufficient to support the finding. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in them conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). When considering a factual sufficiency-challenge, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

The standard of review for conclusions of law is whether they are correct. Dickerson v. DeBarbieris, 964 S.W.2d 680, 683 (Tex.App.-Houston [14th Dist.] 1998, no pet.). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Material Partnerships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.

Action on Sworn Account .

In its first issue, the Association contends that the trial court erred by failing to render judgment on its suit on sworn account. Specifically, the Association asserts that none of the defendants filed an answer that was sufficient to deny the validity of the account. Therefore, it concludes, it was entitled to judgment against each of the forty-six lot owners.

The lot owners cited by publication were represented by an attorney ad litem. The Association argues that the answer filed by the attorney ad litem, although verified, was insufficient because it did not include a challenge to any specific item of the accounts. Instead, the answer contained only a general allegation that the Association’s pleadings did not state a time period in which a systematic record had been kept for each of the lot owners and a date on which each lot owner’s account would have been due and payable. The other lot owners, who appeared pro se, filed only unverified general denials.

A suit on sworn account is based on Rule 185 of the Texas Rules of Civil Procedure. Rule 185 is a rule of procedure and not a rule of substantive law. Northwest Park Homeowners v. Brundrett, 970 S.W.2d 700, 702 (Tex.App.-Amarillo 1998, pet. denied). Therefore, a suit on sworn account cannot be the basis of any cause of action. Id. Rule 185 simply provides a procedure for the presentation of specific substantive claims enumerated in the rule. Id. For Rule 185 to be applicable, the claim must be for a liquidated money amount. See Tex.R. Crv P. 185.

To establish sufficient evidence to support a prima facie case in a suit on sworn account, the plaintiff must strictly follow the provisions outlined in the Texas Rules of Civil Procedure. Andrews v. E. Tex. Med. Ctr.-Athens, 885 S.W.2d 264, 267 (Tex.App.-Tyler 1994, no writ). A claim is liquidated (under Rule 185) if the amount of damages can be accurately calculated by the trial court from the factual allegations, as opposed to the conclusory allegations, in the plaintiffs petition and the instrument in writing evidencing the account. Mantis v. Resz, 5 S.W.3d 388, 392 (Tex.App.-Fort Worth 1999, pet. denied).

Here, the Association’s petition included a chart listing the total amount of unpaid assessments that it alleged were due from each of the defendants. However, the petition did not include an explanation of how the assessments were calculated. For example, it did not state the beginning date for the calculation of each assessment. Further, it did not identify any assessments that were based on partial months of ownership. The Association merely alleged that a specific record of paid and unpaid assessments had been kept and that the amounts in the chart reflected the amounts owed by each of the defendants based upon the number of lots owned and payments missed. These allegations are conelusory. Therefore, the Association’s pleadings did not establish that it had a liquidated claim against the lot owners because the trial court could not accurately calculate, from the factual allegations in the petition, the damages against each of the 156 lot owners in the suit on sworn account. Accordingly, we hold that the Association’s cause of action against the lot owners did not constitute a claim for a liquidated amount and was therefore not a suit on sworn account as a matter of law.

When a plaintiffs suit on sworn account is not based on a liquidated amount, the pleadings are neutralized and the plaintiff must prove his case at common law. See Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437, 439 (Tex.Civ.App.-Texarkana 1981, no writ). If the cause of action is unliquidated or is not proved by an instrument in writing, the court shall hear evidence as to damages. See Tex.R. Crv. P. 243; see also Mantis, 5 S.W.3d at 392. The “shall hear evidence” requirement of Texas Rule of Civil Procedure 243 applies even in a default situation. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Because the Association’s suit on sworn account did not fulfill the requirements of Rule 185, the form of the lot owners’ answers was inconsequential. The Association therefore had to prove its claims against the lot owners under Rule 243 by showing when the assessment began to accrue and for how long it accrued.

At trial, the Association called as a witness Joe Poitevent, the records custodian for the Association. Poitevent testified that all of the conelusory figures presented to the trial court in the chart placed in evidence were true and correct. However, he failed to explain how the assessments were calculated. As a result, no facts underlying the conelusory numbers were put in evidence. The Association therefore failed to meet its burden to establish the amount of the assessments due from each of the lot owners. The evidence in the record supports the trial court’s finding of fact number one and conclusion of law number one. These support the court’s take-nothing judgment. The Association’s issue one is overruled.

Authority of Association

In its third issue, the Association contends that the trial court erred in concluding that it lacked authority to increase the assessments of the lot owners. In its second issue, it contends that the defendants failed to raise as an affirmative defense the Association’s lack of authority to increase assessments. Because these two issues are intertwined, we will consider them together.

The Association stated that its authority for the assessments rested on the restrictions filed in 1971 and 1972 in the Smith County Land Records. However, Poitevent testified at trial that under new bylaws passed in 1987, the board of directors now had authority for raising assessments of lot owners in the Subdivision. Danny Hudson, a pro se defendant, objected to the introduction of these bylaws into evidence on the basis that the Association had no authority to pass the amended bylaws. The trial judge overruled his objection, but implied that she would consider his argument later. The Association, through Poitevent’s testimony, then showed that it had raised the assessments in 1992 from the amounts stated in the restrictions to $33.00 for the owner of one lot, $42.00 for the owner of two lots, $57.00 for the owner of three lots, and $72.00 for the owners of four or more lots. Poitevent also testified that the board of directors had raised the assessments again in 1996 to $40.00 for one lot and $15.00 for each additional lot.

The Association contends that it had the authority to do this. However, the trial court made a finding that because the original bylaws of the Association had not been provided to the court, there was no evidence in the record to establish the Association’s authority to raise the assessments above what was imposed by the 1971 and 1972 restrictions filed of record. A homeowners’ association has the powers and authority enumerated in its articles of incorporation, bylaws, and restrictive covenants. See Candlelight Hills Civic Ass’n v. Goodwin, 763 S.W.2d 474, 478 (Tex.App.-Houston [14th Dist.] 1988, writ denied). As stated above, the Association had the burden of proof on the authority issue. There was nothing in the record from which the trial court could find that the Association had the authority to raise the assessments from the 1971 and 1972 levels. Accordingly, we hold that the Association faded to prove that it had the authority to raise the lot owners’ assessments in 1992 and 1996.

With regard to the Association’s contention that the lot owners failed to properly plead the Association’s lack of authority as an affirmative defense, we conclude that contention is without merit. An issue is tried by consent when a party introduces evidence to support an issue that is not included in the written pleadings and no objection is made to the lack of pleadings. See Tex.R. Civ. P. 67; see also Duncan Land & Exploration v. Littlepage, 984 S.W.2d 318, 327 (Tex.App.Fort Worth 1998, pet. denied) (citing Bell v. Meeks, 725 S.W.2d 179, 179-80 (Tex.1987)). Affirmative defenses may be tried by consent even if not properly pleaded. Duncan Land & Exploration, 984 S.W.2d at 327. When a defensive issue is not properly pleaded but is brought before the trial court by the active assistance of both parties, it will be considered to have been properly raised to the trial court. Id. In this case, the Association introduced into evidence the amended bylaws under which it contended it had the authority to raise assessments. Hudson specifically objected to the Association’s lack of authority. The trial judge overruled Hudson’s objection, but informed him that she would “consider [his] legal argument as to what effect, if any, what they’re talking about has on their obligations. We’ll take that up later.” The Association then resumed its presentation of testimony relating to the amended bylaws. After closing arguments, the trial court requested briefs on the issue of authority. It was not until that time that the Association informed the trial court that no defendant had pleaded lack of authority.

A party’s unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating both parties understood the issue was in the case. Frazier v. Havens, 102 S.W.3d 406, 411 (Tex.App.-Houston [14th Dist.] 2003, no pet.). That occurred here. The Association’s issues two and three are overruled.

Reopening the Case

In its fourth issue, the Association contends the trial court erred by not allowing it to reopen the case after the evidence had been closed, closing arguments had been made, and the trial court had requested briefs on the issue of the Association’s authority to increase each lot owner’s assessments. Before the trial judge left the bench, the following exchange took place:

[ATTORNEY]: Your Honor—
THE COURT: Yes.
[ATTORNEY]: — could I get one clarifying question answered?
THE COURT: No, but you can ask a question.
[ATTORNEY]: Okay. The Defense that you just asked us to brief wasn’t raised by either party.
THE COURT: This is fundamental law. You’re asking me to enforce these restrictions.
[ATTORNEY]: I understand.
THE COURT: And I’m not going to enforce restrictions unless they’re enforceable.
[ATTORNEY]: I understand that, Your Honor.
THE COURT: Okay.
[ATTORNEY]: But there may be some additional — since that wasn’t raised, I didn’t present evidence on things that might raise the defense of estoppel in related defenses.
THE COURT: I’m not doing that. Y’all brief the law. Y’all have put on your evidence, and I’m going to rule. I’ve indicated to you what I’m going to rule on. So no more evidence in the case. Submit the briefs in two weeks. And we’ll stand in recess until then.

The question of reopening a case for the purpose of admitting additional evidence is clearly within the sound discretion of the trial judge. Zodiac Corp. v. Gen. Elec. Credit Corp., 566 S.W.2d 841, 346 (Tex.Civ.App.-Tyler 1978, no writ). We should not hold that the trial court abused its discretion by failing to reopen a case to allow further evidence unless the record clearly shows it. See id. Here, the Association stated that the matter the tidal court asked the parties to brief had not been raised by any party. As we have discussed above, the issue of authority to change the restrictions and therefore increase the lot owners’ assessments was tried by consent, actually first having been raised by the Association. Further, the Association did not specify to the trial court exactly what evidence it would present if it were allowed to reopen the case. As a result, we cannot determine that the trial court abused its discretion. The Association’s issue four is overruled.

Remaining Issues

In its fifth issue, the Association contends that the trial court’s finding of fact regarding membership of lot owners in the Association was in error. Because we have overruled the first four issues presented by the Association, it is unnecessary for us to address this issue. See Tex.R.App. P. 47.1; see also Northwest Park Homeowners, 970 S.W.2d at 704.

In its sixth issue, the Association contends that the trial court erred in not awarding its attorney’s fees. In order to be awarded attorney’s fees, the Subdivision must have been the prevailing party. It was not. See Tex. PRAC. & Rem.Code Ann. § 38.001(7), (8) (Vernon 1997). The Association’s sixth issue is overruled.

Disposition

Having overruled five of the Association’s issues and having determined that the remaining issue is not necessary to the disposition of the appeal, we affirm the judgment of the trial court.