source: Caselaw Access Project

author: ELIZABETH RAY, Judge

license: Public Domain

text:
    TEMPEST BROADCASTING CORPORATION, Appellant, v. Christopher D. IMLAY and Booth, Freret, Imlay & Tepper, P.C., Appellees.
    No. 14-04-00080-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 18, 2004.

      Tracy J. Willi, Houston, for Appellant.
    Ann Tomino LeBlanc, Houston, and Terry Fitzgerald, Woodlands, for Appellees.
    Panel consists of Justice EDELMAN, Justice GUZMAN, and Judge RAY.

      The Honorable Elizabeth Ray, Judge of the 165th District Court of Harris County, sitting by assignment pursuant to Tex. Gov’t Code § 74.003(h).

   OPINION

ELIZABETH RAY, Judge

(Assigned).

In this interlocutory appeal, we are asked to consider whether the trial court erred in granting the special appearance of an out-of-state lawyer and law firm whose contacts with Texas have been limited to the performance of legal representation on behalf of their Texas client in negotiations with a Texas company to purchase a Texas radio station. For the reasons detailed below, we reverse and remand.

FACTUAL and PROCEDURAL BACKGROUND

1. A Texas Seller Begins Negotiations with a Texas Buyer.

At the center of this dispute is an AM radio station located in Robstown, Texas, and a Federal Communication Commission (FCC) broadcasting license. Appellant Tempest Broadcasting Corporation (“Tempest”), a Texas corporation with its principal place of business in Harris County, Texas, once owned the physical radio station and also held the FCC license. In 1998, Tempest sold the station and assigned the license to another Texas entity, The Worship Center of Kingsville (‘WCK”), and provided financing to WCK (while retaining a security interest). After a few years, WCK became delinquent on its payments and Tempest and WCK began to discuss possible options.

B Communications (“B”), also a Texas entity, approached Tempest and WCK to discuss purchasing the radio station and obtaining an assignment of the FCC license. To assist in the negotiations, B hired attorney Christopher Imlay and his firm, Booth, Freret, Imlay & Tepper, P.C. (the “law firm”). Imlay, president of the law firm and a resident of Maryland, practices solely in the area of communications law before the FCC.

2. Imlay and the law firm conduct negotiations with Tempest for the radio station and broadcasting license.

Imlay first communicated with Tempest’s owner, David Showalter, on September 14, 2001, by telephone. At that time, according to Showalter, Imlay advised that the sale should go through a “two-step” process — the land first and then the license. On September 25, 2001, Imlay forwarded to Showalter two proposed documents, both of which were drafted by the law firm. The first was an asset purchase agreement for the purchase and sale of the station and land in Robstown, Texas, for $32,000, and the second was a separate license assignment agreement conveying the FCC license to B for $200,000. B, Tempest, and WCK were all listed as parties to these proposed agreements.

On at least two occasions during the negotiations in 2001 and 2002, Imlay represented in writing to Showalter that he would start the FCC application for approval of the license assignment after the agreements were signed. Drafts of the two agreements and proposed revisions were exchanged between Tempest and Im-lay.

3. Imlay and the law firm negotiated a separate agreement of the FCC license from WCK to B without informing Tempest.

In October 2000, apparently unbeknownst to Tempest, B and WCK entered into a separate agreement in which WCK agreed to assign the FCC license to B for $10,000. Imlay obtained FCC approval for the assignment on behalf of B. The assignment of the license was consummated on January 4, 2002. On January 10, 2002, Imlay notified Tempest by fax that “all of the necessary arrangements for the assignment of the FCC license from The Worship Center of Kingsville are in place.” Showalter responded by fax to Imlay the next day, claiming that Tempest had relied on Imlay’s representations that the parties’ complete agreement (physical plant AND license) was “a done deal” and that, in reliance on those representations, Tempest had refrained from taking action to protect its interest in the property and the license. Tempest, WCK and B eventually executed an asset purchase agreement in which B agreed to pay Tempest $225,000 for the land and physical property of the radio station (not including the license), but the closing provided for in the agreement never occurred. The parties dispute the reasons why that closing never occurred.

4. Tempest sues B, Imlay, and the law firm, and the trial court grants the defendants’ special appearance.

In the spring of 2003, Tempest sued B, Imlay, and the law firm, alleging breach of contract, tortious interference with contract, fraud, and hindering a secured creditor. Tempest’s primary complaint was that the defendants, without Tempest’s knowledge or permission, obtained the FCC license — the most valuable asset — for $10,000 while representing to Tempest that they intended to complete the purchase of the license and the station property for $232,000. According to Tempest, once the defendants possessed the FCC license, they had no need for the station, which had little value apart from the license.

In response, Imlay and the law firm filed a special appearance supported by Imlay’s affidavit. In the affidavit, Imlay asserted generally that neither he nor any other attorney in the law firm practiced law in Texas; neither he nor the law firm owned property, maintained an office or bank accounts, or paid taxes in Texas; neither he nor anyone in the law firm ever traveled to Texas to meet with any party to this litigation; and neither he nor the law firm has ever purposefully directed any action toward residents or businesses in Texas. A day before the hearing on the special appearance, Tempest amended its petition to add allegations of conspiracy to defraud against all defendants and additional facts to support personal jurisdiction over Imlay and the law firm. At a hearing on the special appearance, Showalter testified regarding his communications with Imlay and the law firm and submitted supporting exhibits.

On motion by Imlay and the law firm, the trial court permitted them to submit a reply post hearing, and when they did so, they included an additional affidavit by Imlay in which he responded more specifically to the misrepresentations and other conduct alleged by Tempest. The trial court delayed its ruling until after Imlay’s second affidavit was filed post-hearing, but then granted the special appearance and dismissed Tempest’s claims against Imlay and the law firm. Although Tempest requested findings of fact and conclusions of law and renewed its request in a notice of past due findings of fact and conclusions of law, the trial court was not required to and did not file them. This interlocutory appeal followed.

ANALYSIS

I. The Procedural Arguments

Before we reach the substantive arguments, we must address two of Tempest’s arguments concerning the standard and scope of our review. First, Tempest argues that we should apply a less deferential standard of review to implied findings of fact, because the trial court failed to issue findings of fact and conclusions of law after Tempest properly requested them. Tempest believes this would encourage trial courts to comply with proper requests in interlocutory appeals. Second, Tempest contends that our review of the evidence should not include Imlay’s second affidavit, which was attached to appellees’ reply in support of their special appearance and filed post-hearing, because Texas Rule of Civil Procedure 120a requires that affidavits shall be served at least seven days before the hearing on the special appearance. We disagree with Tempest’s first argument and agree with the second. Accordingly, we hold that the trial court erred in granting appellees’ special appearance.

A. Is Tempest Entitled to a Lowered Standard of Review Because the Trial Court Did Not File Findings of Fact and Conclusions of Law?

Tempest argues that, instead of applying a legal and factual sufficiency review to the implied fact findings, we should review them de novo. Tempest’s theory is that, because the trial court did not file findings of fact and conclusions of law, after being properly requested, we should apply a less deferential standard of review to the trial court’s implied fact findings. We disagree.

In reviewing a trial court’s ruling on a special appearance, the plaintiff has the initial burden of pleading allegations sufficient to bring the nonresident defendant within the provisions of the Texas long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002); Ring Power Sys. v. Int’l De Comercio Y Consultoria, S.A., 39 S.W.3d 350, 352 (Tex.App.-Houston [14th Dist.] 2001, no pet.). At the special appearance hearing, however, the nonresident challenging the court’s assertion of personal jurisdiction must negate all jurisdictional bases. BMC Software, 83 S.W.3d at 793; Ring Power Sys., 39 S.W.3d at 352.

Whether a court has personal jurisdiction over a defendant is a question of law, which we review de novo. BMC Software, 83 S.W.3d at 794. However, the trial court is often called upon to resolve factual issues before deciding the jurisdiction question. Id.; C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.-Houston [14th Dist.] 1999, no pet.). When, as here, the trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. BMC Software, 83 S.W.3d at 795. In that situation, when the appellate record includes both the reporter’s and clerk’s records, however, these implied findings are not conclusive and may be challenged for legal and factual sufficiency. Id. In reviewing a legal sufficiency challenge, the no-evidence challenge fails if there is more than a scintilla of evidence to support the finding. Id. In reviewing a factual sufficiency challenge, we set aside the trial court’s decision only if its ruling is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

Tempest acknowledges that Texas Rule of Appellate Procedure 28.1 expressly provides that the trial court “need not, but may ... file findings of fact and conclusions of law” relating to an appealable interlocutory order. See Tex.R.App. P. 28.1. Nevertheless, it argues that when a party properly requests findings of fact and conclusions of law and preserves the issue for appeal, it should not be subjected to a “harsher” standard of review because the trial court declines to file them. Tempest argues that the standard of review for implied findings should be de novo because, by applying this less deferential standard of review, trial courts will be encouraged to issue findings of fact and conclusions of law when properly requested. Otherwise, they will have no incentive to ever file them in an interlocutory appeal.

Tempest’s argument fails to encompass the concept that a trial court might voluntarily file findings and conclusions to assist the appellate courts, an occurrence neither unique nor unusual. Indeed, this argument smacks of the notion that trial judges need an incentive to voluntarily clarify their legal reasoning. Typically the record makes the judge’s thoughts crystal clear, as was the case here. Tempest’s argument also ignores Rule 28.1, which states that a trial court may — but is not required to — file findings of fact and conclusions of law. See Smith Barney Shearson, Inc. v. Finstad, 888 S.W.2d 111, 114 (Tex.App.-Houston [1st Dist.] 1994, no writ). Moreover, Tempest does not explain why reviewing implied fact findings under a legal and factual sufficiency review is unduly harsh, and it does not provide us any authorities that support applying a de novo review of implied fact findings in this circumstance. Therefore, we are not persuaded that we should encourage trial courts to do something that, under the rules, they are expressly not required to do.

Accordingly, we will review any implied findings of fact for legal and factual sufficiency. See BMC Software, 83 S.W.3d at 795; In re King’s Estate, 244 S.W.2d at 661.

B. Should We Consider Imlay’s Second Affidavit Attached in Support of Appellees’ Reply, When the Affidavit Was Not Served at Least Seven Days Before the Special Appearance Hearing as Required in Rule 120a?

Tempest also raises an issue concerning the scope of our review. At the special appearance hearing, Tempest presented testimony from Showalter and introduced a number of exhibits in support of jurisdiction. Imlay and the law firm presented no additional evidence, instead relying on Imlay’s previously-filed affidavit. Toward the end of the hearing, the following exchange took place as Tempest’s counsel, Ms. Willi, made her final argument:

Ms. Willi: ... We have specific jurisdiction under all of the facts that we have stated today and as well as in the discovery responses, we have grounds to support even general jurisdiction because he has regular contacts with Texas. He represents — he states in his interrogatories that he represents entities all over Texas in their endeavors to buy radio stations located here in Texas and he has represented particularly the B Communications clients since at least 1993 on many Texas transactions.
Ms. LeBlanc: Your Honor, just one caveat to that. If I could reply to that, Your Honor, is that Mr. Imlay has never actually met B Communications here in Texas. He was retained while attending a seminar in Oklahoma pertaining to the FCC. So, he’s never met with anyone on this transaction here in Texas.
The Court: Give me a reply as soon as you can.
Ms. LeBlanc: Yes, Your Honor.

Thereafter, Imlay and the law firm filed a reply, but they attached to the reply a second, more detailed affidavit by Imlay. In the second affidavit, which is three pages long and contains seventeen substantive paragraphs, Imlay sets out numerous factual allegations (none of which were raised at the hearing) to support his position that jurisdiction should not attach.

Tempest filed objections to the second affidavit, arguing that, among other things, it was untimely because, under Texas Rule of Civil Procedure 120a(3), any affidavits “shall be served at least seven days before the hearing” on the special appearance. See Tex.R. Civ. P. 120a(3). Appellees assert that their late-filed response was acceptable because it is within the trial judge’s discretion to allow movants an opportunity to reply, and the trial court’s request for a reply from the movants implicitly permitted the late filing of the affidavit. Appellees reason that, since Tempest did not file its response to the special appearance and its first amended petition containing the additional jurisdictional allegations until the day before the hearing, they should be allowed to file their controverting proof after the hearing. Appellees conclude with the argument that Tempest waived its objection to the later-filed affidavit because it failed to secure a ruling as required by Texas Rule of Appellate Procedure 33.1.

The language of Rule 120a is specific that any affidavits “shall be served at least seven days before the hearing.” See Tex.R. Civ. P. 120a(3). Imlay and the law firm did not file their second affidavit until after the hearing. The rule provides that, when it appears from the affidavits of a party opposing the special appearance that he is unable to present by “facts essential to justify his opposition,” the trial judge may “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” See id. (emphasis added); see also Potkovick v. Reg’l Ventures, Inc., 904 S.W.2d 846, 850 (Tex.App.-Eastland 1995, no writ) (holding that trial court does have some discretion under Rule 120a to enter other orders as are “just”). This part of the rule appears to permit the judge some discretion to order a continuance or other relief, but only in response to the affidavit of a party opposing the special appearance who claims he cannot adequately prepare for the special appearance hearing. Here, because appel-lees are the movants in the special appearance motion (as opposed to being the opposing party), this part of the rule does not apply to them. Additionally, since appel-lees did not demonstrate by affidavit that they needed a continuance of the hearing to “present facts essential to justify [their] opposition,” we find no basis in the rule to support the contention that the late-filed affidavit must be considered by the trial judge.

Now we must consider appellees’ contention that Tempest waived its objection to Imlay’s second affidavit because it did not obtain a ruling from the trial court. See Tex.R.App. P. 33.1(a). The record does not support the argument that the court intended to permit appellees carte blanche rights to provide additional evidence (via affidavit). Since the late-filed affidavit was not properly before the trial court pursuant to 120a, it makes no sense to penalize Tempest for failing to obtain a ruling from the trial court on its objection to the very filing of which it complains. Had appellees requested leave of court to re-open the evidence in a subsequent hearing to add the tardy affidavit, Tempest at least would have been given the right to present controverting evidence and cross-examine. As it is, appellees have gotten in the last word while Tempest was silenced by section 120a.

Nor are we persuaded by appellees’ argument that they did not know of Tempest’s specific allegations until shortly before the hearing. Imlay and the law firm were the movants and had the burden to demonstrate they were not amenable to jurisdiction in Texas. They were also aware of the basis for Tempest’s claims, which was apparent from its original petition. Permitting movants to submit post-hearing affidavits in such a situation encourages them to withhold evidence until after the hearing, potentially providing an unfair advantage to the movant and extending the entire process in a manner not contemplated by Rule 120a.

Therefore, we hold that Imlay’s second affidavit was not properly before the trial court and should not be considered.

II. The Long-arm Statute and Federal Due Process Requirements

We turn now to the substance of the appeal. Tempest contends that Imlay and the law firm satisfy the requirements of the Texas long-arm statute because they conducted business in Texas and committed torts in Texas. Tempest also argues that subjecting Imlay and the law firm to the jurisdiction of Texas courts would not violate the federal due process clause.

Texas courts may exercise jurisdiction over a nonresident defendant when (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional guarantees of due process. See Tex. Crv. Peac. & Rem.Code §§ 17.041 — .069; Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident who does business in Texas. Tex. Civ. PRAC. & Rem.Code § 17.042. A nonresident “does business” in Texas for the purposes of the Texas long-arm statute if he “commits a tort in whole or in part in this state.” Id.; see also Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943, 946 (Tex.Civ.App.-Texarkana 1977, no writ). Because the language of the long-arm statute is broad, its requirements are met so long as the exercise of personal jurisdiction comports with the limitations of federal due process. Coleman, 83 S.W.3d at 806 (citing Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)).

Personal jurisdiction over nonresident defendants satisfies the requirements of federal due process when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). A nonresident defendant that has purposefully availed itself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). A nonresident defendant should not be subject to a foreign court’s jurisdiction based on “random,” “fortuitous,” or “attenuated” contacts. Id. When minimum contacts have been demonstrated, the defendant must present a “compelling case” that the existence of other factors would render jurisdiction unreasonable. Guardian Royal, 815 S.W.2d at 231.

We first examine Tempest’s contention that appellees satisfied the requirements for the exercise of jurisdiction under the Texas long-arm statute. We then address whether the exercise of jurisdiction over appellees comports with the limitations imposed by federal due process on the exercise of jurisdiction.

A. “A Purposeful Act” — Was Jurisdiction Invoked Under the Long-arm Statute Because Imlay and the Law Firm Committed Torts in Texas?

Among other things, Tempest contends that Imlay and the law firm committed torts in Texas that bring them within the reach of the Texas long-arm statute. Imlay and the law firm disagree because they believe they proved that Im-lay did not make any misrepresentations and he did not tortiously interfere with any contract. When reaching a decision to exercise or decline jurisdiction based on the defendant’s alleged commission of a tort, the trial court should rely only upon the necessary jurisdictional facts and should not reach the merits of the case. See Ring Power Sys. v. Int’l De Comercio & Consultoria,, S.A., 39 S.W.3d 350, 353 (Tex.App.-Houston [14th Dist.] 2001, no pet.). The purpose of a special appearance is not to determine liability, but whether the actions alleged by a plaintiff are of a type that suggest a defendant should expect to be subject to Texas jurisdiction. Mort Keshin & Co., Inc. v. Houston Chronicle Publ’g Co., 992 S.W.2d 642, 648 (Tex.App.-Houston [14th Dist.] 1999, no pet.). “Accordingly, where the plaintiff alleges an action in tort that arose out of an act committed in Texas, the necessary proof is only that the purposeful act was committed in this State.” Ring Power, 39 S.W.3d at 353.

In its pleadings, Tempest alleges that Imlay and the law firm committed the torts of fraud, conspiracy to defraud, and tortious interference with contract, and that this conduct caused Tempest to suffer damages. In the fraud and conspiracy to defraud causes of action, Tempest alleges that appellees and B represented that it was necessary to structure the transaction for the purchase of the radio station and the FCC license separately to avoid the violation of any FCC laws. They also made various statements and representations to Tempest that they were working to conclude the entire transaction and preparing to close on the agreement. In fact, Tempest alleges, appellees and B were actually seeking to obtain the FCC license for less than it was worth without Tempest’s knowledge, and they never intended to conclude the transaction. In its tortious interference claim, Tempest alleges that appellees and B were aware of WCK’s obligations to Tempest, but nevertheless induced it to ignore and violate those obligations in order to obtain the transfer of the FCC license at an egregiously discounted price. In a separate section, Tempest alleges additional facts supporting jurisdiction, including at least ten specific communications with Imlay in Texas regarding the negotiations for the radio station and the license.

At the special appearance hearing, Tempest presented testimony from Show-alter in support of the specific allegations made in its first amended petition. Show-alter testified that Imlay made specific representations over the telephone and in writing to him in Texas regarding the necessity of structuring the transaction to document the assignment of the FCC license separately from the sale of the radio station property and other assets, and regarding the progress of the negotiations. Showalter stated that he relied on those representations. Tempest submitted evidence of written communications from Imlay on law firm letterhead and proposed draft agreements sent to Tempest in Texas, as well as written communications and drafts from Tempest to Imlay at the law firm. Showalter also testified that there were “multiple other letters and phone calls” between him and Imlay.

Appellees contend, however, that they negated all bases of jurisdiction alleged by Tempest by demonstrating that they did not commit any torts in Texas. See French v. Glorioso, 94 S.W.3d 739, 746-47 (Tex.App.-San Antonio 2002, no pet.) (noting that “where jurisdiction rests upon the fact the defendant committed a tortious act, the specially appearing defendant can defeat the exercise of jurisdiction by proving that he did not do the act alleged”). We disagree.

First, appellees rely heavily on Imlay’s second, more detailed affidavit, submitted with their post-hearing reply, in which he denies making misrepresentations to Tempest. As we have already determined, however, Imlay’s second affidavit was not properly before the trial court because it was not timely filed. Without this affidavit, many, if not all, of Tempest’s jurisdictional facts as well as Tempest’s allegations of misrepresentations by Imlay are undisputed.

Even if we were to consider Imlay’s second affidavit, however, our conclusion that appellees failed to negate all jurisdictional bases would not change. Although Imlay denied making certain oral representations to Showalter during the negotiations, he did not dispute the contents of any of his written communications to Tempest, nor did he dispute that he made the communications. These communications support Tempest’s allegations and the communications were properly before the trial court as evidence. For example, the evidence shows that, on October 24, 2001, Imlay forwarded two draft asset purchase agreements to Showalter and Gerald Be-navides of B, one for the FCC license assignment and one for the radio station property and other assets. Both drafts included Tempest, B, and WCK as parties, and reflected that Tempest held a security interest in some of the station’s assets. Yet, at around the same time (and unbeknownst to Showalter), on October 26, 2001, B and WCK executed the license assignment agreement that did not include Tempest as a party. Although Imlay asserts in his second affidavit that there was nothing surreptitious about the assignment, he provides no explanation as to why he was drafting documents on one hand that included Tempest as a participant in both aspects of the transaction, while on the other hand, he was simultaneously drafting a separate assignment from WCK for his client.

Appellees also rely on an October 19, 2001 letter that Imlay wrote to Showalter in which he informed Showalter that B was going to acquire the FCC license and files directly from WCK. However, other letters from Imlay, both before and after the October 19 letter, show that Imlay represented that he would not proceed with the FCC application for approval of the license assignment until after the parties signed the agreements. It is undisputed that, despite his representations, Imlay proceeded with obtaining FCC approval before B reached an agreement with Tempest. And, in another letter Imlay wrote to Tempest on January 10, 2002, Imlay stated that “all the necessary arrangements for the assignment of the FCC license from The Worship Center of Kings-ville are now in place,” implying that the assignment was set to occur sometime in the future. But, by that time, the FCC had already approved the application for the license assignment from WCK to B and the assignment had been consummated. Although appellees contend the statement is not misleading, we note that Imlay offers no explanation in his second affidavit for the inherent discrepancy in the statement.

Therefore, even if we were to consider Imlay’s second affidavit, Tempest’s jurisdictional facts based on representations about the structure and progress of the transaction — made to Tempest in Texas and relied upon by Tempest to its detriment — are supported by the documentary evidence and are not negated. These jurisdictional facts are sufficient to support the exercise of long-arm jurisdiction. See Ring Power, 39 S.W.3d at 353-54 (noting that alleged misrepresentation committed partially in Texas satisfied requirement for jurisdiction under long-arm statute); Mem’l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex.App.-Houston [14th Dist.] 1992, no writ) (holding misrepresentation made by out-of-state defendant to Texas plaintiff who relied on it in Texas satisfied requirement for jurisdiction under long-arm statute based on commission of a tort in part in Texas).

Next, appellees contend that Tempest was on constructive notice of the filing of the application seeking FCC approval for the license assignment, because it placed the application on public notice on November 13, 2001, and the FCC placed the grant on public notice on December 27, 2001. And, appellees assert, Tempest could have filed a petition to deny the assignment between those dates. However, the only evidence in the record to support any of these statements is Imlay’s statement in his second affidavit that “the FCC application filed was placed on public notice for thirty days before the FCC granted the application.” Appellees provide no legal authority to support their argument that the filing put Tempest on constructive notice, and do not explain how constructive notice affects Tempest’s jurisdictional allegations. In any event, this “constructive notice” argument does not negate Imlay’s representations to Tempest that he would file the application for FCC approval of the assignment of the license only after the parties had executed the agreements.

Appellees also attempt to dispute other allegations Tempest makes in its pleadings. For example, appellees dispute Tempest’s allegation that the price paid for the assignment of the FCC license was egregiously discounted. In their brief, Im-lay and the law firm contend that the price B paid for the license was “quite reasonable” and that the value of the radio station was less than Tempest alleged. However, appellees fail to highlight evidence in the record to support these contentions, and we have found none.

Appellees also argue that Tempest breached the agreements first by failing to provide certain documentation and instituting foreclosure proceedings. However, this is a legal argument in defense of Tempest’s breach of contract action against B, and it does not affect Tempest’s jurisdictional argument.

Finally, appellees argue that they could not have tortiously interfered in the contract between Tempest and WCK because the FCC prohibits the retention of a security interest in a broadcasting license. However, this is a legal argument that goes to the merits of Tempest’s liability claims, and we need not reach it here. See Ring Power, 39 S.W.3d at 353; Mort Keshin & Co., 992 S.W.2d at 648.

We find that, based on this record, ap-pellees did not meet their burden to negate all jurisdictional facts alleged. Therefore, appellees failed to demonstrate that they do not satisfy the requirements for the exercise of jurisdiction under the long-arm statute based on their commission of torts in Texas.

B. Federal Due Process is Satisfied

1. Minimum contacts

Tempest argues that Imlay’s and the law firm’s contacts demonstrate a substantial connection with Texas that cannot be characterized as random, fortuitous, or attenuated. Imlay and the law firm respond that their activities in representing B in the negotiations were merely incidental to Imlay’s practice as communications counsel before the FCC, and therefore cannot subject them to personal jurisdiction in Texas.

Minimum contacts requires a substantial connection between the nonresident defendant and Texas. See Guardian Royal, 815 S.W.2d at 226. The substantial connection must derive from the action or conduct of the nonresident, purposefully directed toward Texas. Id. A nonresident defendant’s minimum contacts with Texas may confer either specific or general personal jurisdiction. BMC Software, 83 S.W.3d at 795. Our analysis in this case focuses on specific jurisdiction.

Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted within the forum. Id. at 796. Accordingly, we focus on the defendant’s activities and expectations in deciding whether it is proper to call it before a Texas court. Coleman, 83 S.W.3d at 806. The minimum-contacts analysis requires that a nonresident defendant “purposefully avail” itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of the laws of Texas. Id. The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that they reasonably could anticipate being called into a Texas court. Coleman, 83 S.W.3d at 806 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). It is not the quantity but the quality and nature of the contacts that are important to the minimum-contacts analysis. See id. Even a single act can support jurisdiction so long as it is substantial. See Cartlidge v. Hernandez, 9 S.W.3d 341, 348 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Mem’l Hosp. Sys., 835 S.W.2d at 650-51.

Appellees argue that they should not be subjected to personal jurisdiction merely because Imlay was performing services on behalf of his local client. In support of this contention, they cite Star Technology, Inc. v. Tultex Corp., 844 F.Supp. 295 (N.D.Tex.1993). In that case, the court found jurisdiction lacking over the nonresident defendant attorney who had traveled to Texas twice in connection with the representation of his client and filed pleadings in the lawsuit in Dallas. Id. at 298. The court held that these contacts were insufficient to confer specific personal jurisdiction, noting that, other than these contacts, the attorney’s former representation appeared to have occurred in Washington, D.C., with the remainder handled by local counsel. Id.

However, Star Technology is easily distinguishable. Appellees suggest that Im-lay did not actually engage in the negotiations with Tempest, only that he was the conduit for information or instructions from B. Contrary to this suggestion, the record demonstrates that Imlay, as B’s counsel, participated in several months of negotiations with a Texas resident for a Texas radio station and its FCC license, and participated in drafting agreements affecting Texas real property and assets in Texas. These contacts were not merely random, fortuitous or attenuated. See BMC Software, 83 S.W.3d at 795. Appel-lees chose to undertake the representation of B in this matter, knowing that their client was located in Texas and that it was interested in acquiring a Texas radio station and FCC license from a Texas resident. Appellees now seek to avoid the consequences of that choice.

More importantly, however, in Star Technology, the plaintiff alleged no specific acts by the attorney in Texas to support its allegation of conspiracy. Id. at 299-300. Here, Tempest alleged that Imlay made representations in Texas upon which it relied to its detriment. These allegations form the basis of Tempest’s claims against Imlay and the law firm. The evidence in support of these allegations shows that appellees should have known that Ini-lay’s representations, provided in writing and by telephone, would be relied upon by Tempest. See Ring Power, 39 S.W.3d at 354; Mem’l Hosp. Sys., 835 S.W.2d at 650-51. The evidence is also sufficient to support a conclusion that appellees purposefully availed themselves of the benefits and protections of Texas laws when they transmitted Imlay’s representations to Tempest in Texas. See Ring Power, 39 S.W.3d at 354; Mem’l Hosp. Sys., 835 S.W.2d at 651.

Therefore, we hold that appellees did not meet their burden of negating specific jurisdiction as a basis for the trial court’s exercise of jurisdiction.

2. Fair play and substantial justice

Having determined that appel-lees had sufficient minimum contacts with Texas, we must now decide whether asserting jurisdiction comports with “traditional notions of fair play and substantial justice.” See Guardian Royal, 815 S.W.2d at 228. In analyzing this issue, we consider the following factors: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. at 231. Only in rare cases will the exercise of jurisdiction not meet this test when the nonresident defendant has purposefully established minimum contacts with the forum state. Id.

Appellees argue that the exercise of jurisdiction over them would conflict with our decision in D.H. Blair Investment Banking Corp. v. Reardon, 97 S.W.3d 269, 275 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.), because in that case we held that D.H. Blair’s mere knowledge that its actions would have effects in Texas did not equate to purposefully availing itself of the privileges and benefits of conducting business in that state. However, in that case, it was uncontested that none of D.H. Blair’s alleged activities occurred in Texas, and the implied finding that it had such knowledge was the only basis for asserting jurisdiction. Id. at 274-75. As discussed above, appellees made direct representations to Tempest in Texas and participated in negotiations with Texas residents regarding the sale of the Texas radio station and FCC license. Therefore, the holding in D.H. Blair is not applicable here. We also note that, because specific jurisdiction was not found, the D.H. Blair court did not even discuss the fair play and substantial justice requirement. Appellees make no other argument to support their contention that exercising jurisdiction over them would offend traditional notions of fair play and substantial justice.

Applying the fair play and substantial justice factors to this case, we find that exercising jurisdiction over appellees is not unreasonable. First, appellees have presented no evidence that defending themselves in Texas would impose a burden on them. The mere fact that they are not physically located in Texas is not persuasive. See Ring Power, 39 S.W.3d at 354-55 (noting that “distance alone is not ordinarily sufficient to defeat jurisdiction”). Second, Texas has a significant interest in adjudicating issues involving Texas entities and Texas property. Regarding the third and fourth factors, it is in both Tempest’s and Texas’s interest to obtain relief against appellees and B in a single action in Texas. Finally, the exercise of jurisdiction over appellees furthers the social policy of the states in protecting their residents from economic loss resulting from torts. See Guardian Royal, 815 S.W.2d at 228.

Accordingly, we hold that the exercise of specific personal jurisdiction over appel-lees comports with traditional notions of fair play and substantial justice.

CONCLUSION

For the foregoing reasons, we hold that the trial court erred in granting Imlay and the law firm’s special appearance. We reverse the trial court’s order and remand this matter to the trial court for further proceedings.

      . In support of its argument, Tempest cites two cases, but neither case supports applying a de novo standard of review to fact findings, implied or otherwise, in a special appearance. In Zamarron v. Shiriko Wire Co., Ltd, this court merely determined that any complaint the appellant had about the trial court's failure to file findings of fact and conclusions of law after it granted a special appearance was waived because the appellant failed to file a notice of past due findings of fact and conclusions of law. See 125 S.W.3d 132, 137 n. 3 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). The Zamarron court gave no indication of the nature of the appellant's complaint and did not discuss applying an alternative standard of review. See id. Tempest also cites Gen. Electric. Co. v. Brown & Ross International Distributors, Inc., for the proposition that the appellate court reviews all the evidence properly presented to the trial court in a special appearance. See 804 S.W.2d 527, 534 (Tex.App.-Houston [1st Dist.] 1990, writ denied). We do not disagree with that statement. However, in that case, the defendants, whose special appearance was reversed and remanded, argued in a motion for rehearing that the court of appeals erroneously applied a de novo standard of review to the evidence, and in response, the court simply stated that, in a special appearance, it was appropriate to review all the evidence in the record. See id.

      . This argument was made for the first time at the oral argument of this case.

      . Tempest also alleged that appellees satisfied the "doing business” requirement of the long-arm statute by representing Texas residents in negotiations with other Texas residents affecting the sale of real estate in Texas, participating in the negotiations, and drafting instruments that would affect the sale of real property in Texas. Imlay and the law firm respond that they did not "do business” in Texas because Imlay was acting only as communications counsel, he does not represent B or other clients in Texas, his communication with his Texas clients is only incidental to his practice before the FCC, and he does not draft or negotiate documents affecting real property in Texas. Because we have determined that Tempest's allegations and evidence support the exercise of long-arm jurisdiction based on the commission of a tort, we need not examine these other allegations.

      . Although Imlay states in his second affidavit that Showalter "was made aware of the assignment,” he does not state when or how this took place. Showalter testified he first became aware of the license assignment agreement between B and WCK during discovery in this lawsuit. Showalter also testified that he did not learn of the FCC consent to the assignment until some time after the consent was granted.

      . One letter was a fax transmittal form, dated September 25, 2001, in which Imlay stated, "I am prepared to start the FCC application as soon as you all get these documents executed.” In another letter, dated October 24, 2001, Imlay wrote, "Once these agreements are executed by all parties we will electronically file the assignment application with the FCC and will copy all parties with it” and stated that other formalities "should not preclude the filing of the FCC application once these agreements are signed.”

      . In connection with their argument that Im-lay was retained exclusively as communications counsel and did not draft or negotiate documents affecting real property in Texas, appellees point out that B had retained local counsel to handle the actual conveyance of property in Texas. However, the record reflects very little evidence, if any, of local counsel's participation in the negotiations after Imlay and the law firm became involved.


author: WANDA McKEE FOWLER, Justice.

text:
    HARRIS COUNTY, Appellant, v. Barbara GIBBONS, Appellee.
    No. 14-02-00398-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 18, 2004.

      Stephen A. Smith, Houston, for Appellant.
    Lorin M. Subar, Dallas, and Stephen George Boutros, Houston, for Appellees.
    Panel consists of Justices ANDERSON, FOWLER, and SEYMORE.
   OPINION ON REHEARING

WANDA McKEE FOWLER, Justice.

We withdraw the opinion of December 16, 2003 and issue this opinion on rehearing. Appellant’s Motion for Rehearing En Banc is overruled.

In this negligence action, Harris County appeals a judgment in favor of appellee, Barbara Gibbons, on the grounds that: (1) the evidence was legally and factually insufficient to support the jury’s finding that a Harris County deputy was acting within the scope of his employment at the time of the accident at issue; and (2) the trial court erred in ignoring the jury’s finding that the deputy was acting in good faith. We affirm.

I. BACKGROUND

The facts in this case are essentially undisputed. Harris County Deputy Sheriff Robert Barber rear-ended an automobile driven by Barbara Gibbons. At the time of the accident, Barber was driving a Harris County Sheriffs Department patrol car; however, his shift as a Harris County deputy sheriff had ended and he was on his way to another job. The accident occurred when Barber, stopped at a red light behind Gibbons’ vehicle, entered the license number of an adjacent truck into his on-board computer terminal to determine if it was stolen. As Barber glanced down at the terminal to see the results of his query, the patrol car moved forward, striking Gibbons’ vehicle.

Gibbons sued Harris County under the Texas Tort Claims Act for personal injuries suffered as a result of the accident. The matter was tried to a jury and judgment was rendered against Harris County in the amount of $27,000.

II. Scope of Employment

In its first issue, Harris County argues that the evidence at trial was legally and factually insufficient to support the jury’s finding that Barber was acting in the course and scope of his employment at the time of the accident. Harris County sets forth several assertions in support of its argument: (1) Barber was on his way to a personal errand and the county had not directed his route, therefore, analogizing to workers compensation cases, Barber was considered off-duty; (2) Barber did not actually see any criminal activity taking place, and therefore he was not acting within the scope of his employment; (3) Barber was benefitting himself by using the patrol car, thus, under the “dual purpose doctrine” Barber was off-duty; and (4) under the language of section 612.005 of the Texas Government Code, Barber’s use of the patrol car is insufficient to establish he was acting in the course and scope of employment.

A. Standard of Review

When a party attacks the legal sufficiency of an adverse finding on an issue it did not have the burden to prove at trial, it must demonstrate that there is no evidence to support the adverse finding. Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 347 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Croucher v. Croucher, 660 S.W.2d 55 (Tex.1983)). In reviewing a no-evidence issue, we consider only the evidence favoring the finding, disregarding all direct and circumstantial evidence to the contrary. Id. (citing Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002)). We are “required to determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

A challenge to the legal sufficiency of the evidence must be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havmer, 953 S.W.2d 706, 711 (Tex.1997). ‘When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

B. Analysis

Under the doctrine of sovereign immunity, governmental entities are not liable for the negligence of their employees absent a constitutional or statutory waiver of immunity. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994); City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 169 (Tex.App.-El Paso 1997, pet. denied). Whether there has been a statutory waiver of immunity is a question of law for the court to decide based upon the facts of the case. City of El Paso, 950 S.W.2d at 169.

As noted, Gibbons brought suit against Harris County under the Act, which provides that a governmental unit is liable for personal injuries caused by the wrongful act, omission, or negligence of an employee acting within the scope of his employment if the personal injury was the result of the operation or use of a motor-driven vehicle and the employee would be liable to the claimant under Texas law. Tex. Crv. Prac. & Rem.Code § 101.021(1). “Scope of employment” is defined in the Act as “the performance for a governmental unit of the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Id. § 101.001(5) (emphasis added).

Essentially, Harris County argues that Deputy Barber could not be acting within the scope of his employment because he was off-duty. However, scope of employment is not determined simply on the basis of whether an officer is technically off-duty or on-duty. Indeed, it is well established that an off-duty officer can still be engaged in the lawful discharge of his duties. See Morris v. State, 523 S.W.2d 417, 418 (Tex.Crim.App.1975); Wood v. State, 486 S.W.2d 771, 774 (Tex.Crim.App.1972); Firemen’s & Policemen’s Civil Serv. Comm’n v. Burnham, 715 S.W.2d 809, 811 (Tex.App.-Austin 1986, writ denied). Instead, when determining the status of an officer, we must ask “in what capacity was the officer acting at the time he committed the acts for which the complaint was made?” Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex.App.-Houston [14th Dist.] 1995, writ denied). If an officer is performing a public duty, such as enforcement of general laws, he is acting “in the course and scope of his employment as a police officer even if the [private] employer directed him to perform the duty.” Bridges v. Robinson, 20 S.W.3d 104, 111 (Tex.App.-Houston [14th Dist.] 2000, no pet.), disapproved of on other grounds, Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex.2002); see Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145, 150 (Tex.App.-Austin 2001, no pet.); see also Blackwell, 909 S.W.2d at 139. Moreover, every peace officer has a duty to preserve the peace. Mansfield, 37 S.W.3d at 151; City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.App.-Dallas 1994, no writ) (“Police officers have a duty to prevent crime and arrest offenders.”). An officer is not relieved of this duty simply because he is “off-duty.” Blackwell, 909 S.W.2d at 139. In fact, as a matter of law, an off-duty officer who observes a crime becomes an on-duty peace officer. City of Dallas, 883 S.W.2d at 377; see also Mansfield, 37 S.W.3d at 149-50. When there is no immediate crime and the off-duty officer is protecting a private employer’s property or otherwise enforcing a private employer’s rules or regulations, the trier of fact determines whether the officer was acting as a public officer or as a servant of the employer. Mansfield, 37 S.W.3d at 150; see Blackwell, 909 S.W.2d at 139-40.

Here, Barber testified that he checked the license plate number of the truck to “stop possible crime” and there was “just cause” to believe the vehicle may have been stolen. According to Barber, several factors led him to believe the car may have been stolen: (1) it was a vehicle normally known to be stolen in Harris County and across the nation, and was “favored” by thieves; (2) there was damage to the driver’s side lock; and (3) there was a male driving it. Because of these factors, Barber testified it was his “duty to check it out.” Barber also stated that, according to Harris County’s policy, he is on call twenty-four hours a day, seven days a week, and is required to carry his gun, badge, and identification at all times. He is expected to react to any breach of the peace at the moment it occurs, and stated he was doing so when he struck Gibbons’ car. Also, when the accident occurred Barber had the option to have his radio signed off; however, he was signed on and, had he received any calls, he was required to respond.

Barber testified further that he was entitled to compensatory time regarding the incident because he was investigating a potentially stolen vehicle. Following the accident, Barber went to his substation and filled out the necessary forms required by the county when an officer is involved in an accident. Barber testified further that he was doing his job by checking the license plate and was doing it for the citizens of Harris County. We find this testimony legally sufficient to establish that, when Barber checked the license number of the truck, he was acting to prevent crime and was within the scope of his employment as a Harris County deputy sheriff. Cf. Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614, 621 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (portion not designated for publication) (noting a reasonable suspicion may trigger an off-duty officer’s “public duty”).

Although Barber may have been technically “off-duty” at the moment of the accident, his actions — admittedly the direct cause of the accident — were within his capacity as a peace officer. Barber was glancing at his on-board computer, examining the results of the license plate check he had conducted based upon his suspicion that the truck may have been stolen. Those actions fall squarely within the performance of his duties as a deputy sheriff. Indeed, had Barber determined the truck was in fact stolen, he had the obligation as a peace officer to pursue it. A private individual would not have had the ability to run a license check on an in-board computer, nor the responsibility to apprehend the suspect. See City of Dallas, 883 S.W.2d at 377; see also Garner v. Saunders, 281 So.2d 392, 393 (Fla.Dist.Ct.App.1973) (concluding that the city’s regulation that an officer always carry a weapon was probative of whether he was acting in the scope of employment).

Barber was acting at the time of the accident in furtherance of the public interest by acting on his suspicion that the vehicle had been stolen. Therefore, Barber was performing a police function in checking the truck’s license plate and was acting within the scope of his employment as a Harris County deputy sheriff, as that term is defined under the Act. See City of Houston v. Love, 612 S.W.2d 211, 213 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.) (finding that an off-duty officer was in the scope of his employment when a traffic accident occurred while on his way back from the city garage because he was required to take his patrol car in for servicing); Cuellar v. City of San Antonio, 821 S.W.2d 250, 256 (Tex.App.-San Antonio 1991, writ denied) (concluding that evidence indicating an officer was off-duty at the time of a murder was insufficient to establish the officer was not acting “under color of law,” particularly when testimony established that the city’s regulations suggested an officer was considered to be on-duty twenty-four hours a day); see also Holland v. City of Houston, 41 F.Supp.2d 678, 700 (S.D.Tex.1999) (noting that the Houston Police Department Manual provided that a technically off-duty officer was not relieved of his responsibility to take prompt and proper police action and finding that an off-duty officer became immediately on-duty when a fight began).

Finally, we address Harris County’s argument that section 612.005(b) of the Texas Government Code governs this ease. Section 612.005(b) provides:

The governing body of a political subdivision shall provide for insuring each law enforcement officer appointed or employed by the political subdivision against liability to third persons arising out of the officer’s operation of a motor vehicle owned, leased, or otherwise controlled by the political subdivision at any time that the officer is authorized to operate the vehicle, including times that the officer is authorized to operate the vehicle while off duty.

Tex. Gov’t Code § 612.005(b) (emphasis added). Harris County reasons that, because the statute makes reference to an officer being off-duty, an officer can be off-duty while driving a patrol car. Although we agree with this latter premise, it does not address the issue in this case. Here, we must determine whether Barber, technically “off-duty,” was performing a police function such that he was acting within the “scope of employment” as that term is defined under the Act. Clearly, the statute does not address whether Barber’s actions brought him within the scope of employment.

Harris County also asserts that just because a deputy is in a patrol car, he is not necessarily on-duty. We agree. However, we do not agree that a deputy cannot act within the scope of his employment because he is technically off-duty. Harris County’s argument is too simplistic an approach and overlooks established precedent. Although Barber had not specifically witnessed any criminal activity, he had a suspicion that the vehicle may have been stolen and pursued that possibility. As a consequence, the accident occurred. Barber’s actions involved more than simply being in a patrol car.

Based upon the foregoing, we conclude that the evidence was legally sufficient to support the jury’s finding that Barber was acting within the scope of his employment at the time of the accident. We overrule appellant’s first issue.

III. Official Immunity

As an alternative to its first issue, Harris County argues that if we conclude Barber was acting within the scope of his employment, it is entitled to official immunity because the jury found Barber was also acting in good faith. Although the trial court submitted a question to the jury regarding good faith, it disregarded the jury’s finding on the issue. In its second issue, Harris County contends the trial court erred in disregarding the jury’s finding that Barber acted in good faith.

A trial court may disregard a jury finding if the finding is not supported by the evidence or if the issue is immaterial. Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154, 157 (Tex.1994); Harris County v. Garza, 971 S.W.2d 733, 735 (Tex.App.-Houston [14th Dist.] 1998, no pet.). A trial judge may not ordinarily disregard a jury finding on its own initiative. St. Paul Fire & Marine Ins. Co. v. Bjornson, 831 S.W.2d 366, 369 (Tex.App.-Tyler 1992, no writ). If no motion to disregard a jury finding is filed and the trial court sua sponte disregards the finding, the court’s action will be upheld only where the disregarded finding is immaterial. See id. A question is immaterial when it should not have been submitted or, though properly submitted, is rendered immaterial by other findings. Spencer, 876 S.W.2d at 157.

Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). If a public official is entitled to official immunity, the employer is also granted immunity. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995). Here, the trial court disregarded the finding because Barber was not performing a discretionary duty by operating his vehicle in a non-emergency situation. The trial court found Barber could have checked the license plate without having the accident if he had kept a proper lookout. Barber was negligent in performing the ministerial act of driving a vehicle in a non-emergency and failing to follow the laws of the State of Texas. By disregarding the jury’s finding that Barber acted in good faith, the trial court made the implied finding that Barber was not performing a discretionary duty at the time of the accident. In addressing whether the trial court erred in disregarding the jury’s finding of good faith, we will address the sufficiency of the evidence to support the trial court’s implied finding that at the time of the accident Barber was performing a ministerial act.

A discretionary act is one that requires “personal deliberation, decision, and judgment.” Chambers, 883 S.W.2d at 654. Ministerial acts are those where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Id. In determining whether conduct is discretionary, we focus on whether the public official was performing a discretionary function, not on whether he had discretion to do an allegedly wrongful act while discharging that function. Id.

Unlike high speed chases or traffic stops, operating a car in a non-emergency situation does not involve personal deliberation or the exercise of professional expertise, decision, or judgment. Woods v. Moody, 933 S.W.2d 306, 308 (Tex.App.-Houston [14th Dist.] 1996, no writ). Driving a car is a ministerial act because it requires a person to perform in a given state of facts and in a prescribed manner in obedience to the method of legal authority, without regard to the propriety of the act being done. City of Houston v. Daniels, 66 S.W.3d 420, 425 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Absent special circumstances that suggest the officer was performing a discretionary function, such as engaging in a high speed chase, an officer driving a motor vehicle while on non-emergency business is performing a ministerial act. Id.

Here, the evidence supports the finding that Barber’s actions in failing to maintain a proper lookout and to keep a proper distance from Gibbons’ car caused the accident. Further, Barber was not responding to an emergency situation. At trial, Barber acknowledged his duty to follow traffic regulations, including maintaining a proper lookout and proper distance from the vehicle in front of him. Barber’s negligent operation of his vehicle was separate and apart from his action of checking the license plate. See Boyattia v. Hinojosa, 18 S.W.3d 729, 735 (Tex.App.-Dallas 2000, pet. denied) (constable’s decision regarding the manner of parking his patrol car was distinct from his duty to serve court documents). Because Barber was operating his patrol vehicle in a non-emergency situation, he was obligated to operate his patrol car in a safe manner in accordance with traffic laws and was performing a ministerial function. See Daniels, 66 S.W.3d at 425.

Harris County asserts that because we found facts sufficient to establish Barber was acting within the scope of his employment under the Act, we must necessarily conclude he was performing a discretionary function. Although we have determined Barber was acting within the scope of his employment, because it was a non-emergency situation, he had a duty to operate his vehicle in a safe manner and was therefore performing a ministerial act. A government employee may act within the scope of his employment, but not be protected by immunity. See e.g. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994) (differentiating discretionary and ministerial duties of government medical personnel). Because Barber was performing a ministerial function in operating his vehicle in a non-emergency situation, the question of his good faith was immaterial. Therefore, the trial did not err in disregarding the finding. We overrule Harris County’s second issue.

Conclusion

Finding no error in the trial court’s ruling, we overrule appellant’s two issues and affirm the judgment of the trial court.

      . Tex. Civ. Prac. & Rem.Code §§ 101.001-.109. All subsequent references to the "Act" are to the Texas Tort Claims Act.

      . Gibbons also initially sued Deputy Barber, but nonsuited him following his testimony.

      . This provision, cited more fully infra, states that a governmental entity must provide insurance for officers driving government-owned vehicles, even when those officers are "off duty.” Tex. Gov’t Code § 612.005(b).

      .A complaint concerning factual insufficiency of the evidence to support a jury finding must be preserved by filing a motion for new trial. Tex.R. Civ. P. 324(b). Harris County did not file a motion for new trial. Thus, it has waived that point on appeal and we do not address it.

      . Barber had not turned in his time, stating he felt bad about the accident.

      . Barber was also represented by the County for some time following the accident.

      . Barber’s actions, in checking the license number, might also be construed as an investigation. Certainly, an investigation is an activity which falls within the “tasks lawfully assigned” to a Harris County deputy sheriff and is in furtherance of Harris County’s business. See Turnage, 64 S.W.3d at 621; see also Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex.App.-El Paso 1990, writ denied) (”[E]ven where an employee is on call [twenty-four] hours a day he must be engaged in or about the furtherance of the affairs or business of his employer to be in the scope of his employment."). During oral argument, Harris County referred to Barber’s conduct as an "investigation" on a number of occasions, including its discussion of scope of employment.

      . Other jurisdictions also recognize that an officer, technically off-duty, may still be acting within the scope of his employment. See, e.g., Johnson v. Dufrene, 433 So.2d 1109, 1112-13 (La.Ct.App.1983) (finding an off-duty officer acting within the course and scope of employment when he struck plaintiff's car while driving unmarked police car, because he was on call twenty-four hours a day to fix malfunctioning filing machines); District of Columbia v. Davis, 386 A.2d 1195, 1201-05 (D.C.1978) (concluding that technically off-duty officer was acting within course and scope of employment because regulations required he always carry his weapon); Garner, 281 So.2d at 393 ("By virtue of the regulations requiring Saunders to be on duty at all times and to be always in possession of a firearm, he may well have acted within the scope of his authority

      . Having concluded that Barber was performing a police function at the moment of the accident, we do not address Harris County's arguments relying on workers compensation cases.

      . Gibbons argues that Harris County failed to preserve this issue because it did not object to the trial court’s statements that it would submit the question on good faith, but ignore the finding when issuing judgment. The trial court made these statements during the charge conferences. Following judgment, Harris County filed a "Motion to Set Aside and/or Modify Judgment” and a motion for judgment notwithstanding the verdict. In both motions, the county argued the point which it now asserts on appeal regarding good faith. Thus, the county advised the trial court of its complaint with specificity and the trial court ruled on it. It sufficiently preserved the issue for our review. See Tex. R.App. P. 33.1(a); Chappell Hill Bank v. Lane Bank Equip. Co., 38 S.W.3d 237, 246-47 (Tex.App.-Texarkana 2001, pet. denied).

      . Because Harris County failed to request an issue on the discretionary duty element of its affirmative defense, there was no jury finding. Harris County had an obligation to request an issue on whether Barber was performing a discretionary or ministerial function to establish its defense. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992).

      . There were some discrepancies in Barber's testimony regarding whether he properly assessed traffic prior to moving forward. Barber testified that he glanced up before his vehicle began to move and that as he moved forward, Gibbons stopped her car. However, the officer investigating the accident reported Barber stated he was looking down when he noticed traffic on both sides moving forward and he looked up while moving forward, striking Gibbons’ car. The jury found Barber proximately caused the accident and attributed 100 percent of the negligence to him.

      . Having concluded the trial court correctly ignored the jury’s findings on good faith, we do not address Gibbons’ cross-point on appeal, wherein she contends that the great weight and preponderance of the evidence does not support the jury's verdict on the issue.


author: Justice MORRIS.

text:
    Leo Daniel THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-01589-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 3, 2004.
    Michael E. Miller, Dallas, for Appellant.
    Larissa Roeder, Asst. Criminal District Atty., Dallas, for State.

      Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MORRIS.

In this case, Leo Daniel Thomas challenges his conviction for misdemeanor assault. He contends in a single issue that the trial court erred by entering an affirmative finding of family violence. We affirm the trial court’s judgment.

The State charged appellant by information with assaulting Erica Thomas by striking her head with his hand and by choking her. At trial, Thomas and appellant testified that they had a son together. In addition, they both acknowledged they had previously been married to each other. A jury found appellant guilty. Afterward, the trial court entered a family violence finding in the case.

In his sole issue on appeal, appellant contends the trial court erred by entering the family violence finding because appellant “had no notice that the State was seeking such a finding.” Under the Texas Code of Criminal Procedure, a trial court must enter an affirmative finding of family violence in its judgment if, in the trial of an offense against a person, the court determines that the offense involved family violence as defined by the family code. See Tex.Code Crim. Proc. Ann. art. 42.013 (Vernon Supp.2004-05). Included in the family code’s definition of family violence is an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, or assault. See Tex. Fam.Code Ann. § 71.004(1) (Vernon 2002). The family code’s definition of family includes former spouses and individuals who are the biological parents of the same child, without regard to marriage. See id. § 71.003.

A finding of family violence impacts a defendant’s sentence only if the defendant has previously committed a family-violence assault. Under the Texas Penal Code, a misdemeanor assault, such as the one in this case, becomes a third degree felony if the assault is committed against a member of the defendant’s family or household and it is shown at trial that the defendant has previously been convicted of an assault against a member of his family or household. See Tex. PemCode Ann. § 22.01(b)(2) (Vernon 2003). Here, however, the State did not attempt to prove appellant had previously been convicted of an assault involving family violence. The evidence before the trial court simply showed the single family-violence assault alleged in the information. In support of his argument, appellant relies on caselaw holding that the State must give notice when it intends to seek a deadly weapon finding, a fact that distinctly impacts a defendant’s parole rights. But appellant does not explain why the first-offense family violence finding supported by the record in this case is necessarily analogous to a deadly weapon finding. Unquestionably, the State must give notice of its intention to seek a deadly weapon finding. See Ex parte Patterson, 740 S.W.2d 766, 775 (Tex.Crim.App.1987) (holding that because deadly weapon finding, which affects parole eligibility, impacts defendant’s liberty interest, due course of law requires State to give notice of intention to pursue deadly weapon finding), overruled on other grounds, Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989). We question, however, whether a defendant is entitled to any notice of the State’s intent to seek a first-offense family violence finding that could not have any impact on punishment.

Regardless, the State in this case sufficiently notified appellant it intended to seek a family violence finding. In the information, the State alleged appellant had assaulted Erica Thomas. The record clearly reflects appellant’s awareness that Thomas was his ex-wife and that they had a child together. For the purposes of the Texas Family Code, they were “family.” Tex. Fam.Code Ann. § 71.003. And under the Texas Code of Criminal Procedure, the trial court had no discretion in entering a family violence finding once it determined the offense involved family violence. See Tex.Code Crim. Proc. Ann. art. 42.013. Accordingly, appellant had all the notice necessary to prepare for the State to seek a family violence finding. Cf. Narron v. State, 835 S.W.2d 642, 643 (Tex.Crim.App.1992) (holding defendant had sufficient notice of State’s intent to seek a deadly weapon finding where indictment alleged defendant possessed a firearm, a deadly weapon per se).

Moreover, even if the information did not formally inform appellant that the State would seek a family violence finding, he could not have been harmed by the alleged failure. Because he could not avoid the legal reality of his familial relationship with Thomas, a more formal notice from the State would not have changed the outcome of appellant’s case. Any error was harmless. See Tex.R.App. P. 44.2(a).

In a supplemental brief, appellant contends the recent United States Supreme Court case of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), inhibits the trial court’s ability to enter a family violence finding in his case. He argues that, under Blakely, section 42.013 “to the extent that it permits a judge to make a finding of Family Violence where the defendant has not waived the right to have the jury make such finding, is unconstitutional.” We agree with the State that Blakely does not affect the validity of the affirmative family violence finding entered by the trial court in this case. Blakely involved a state trial court’s ability to increase a defendant’s punishment above the presumptive sentencing range for the offense proved during the guilt-innocence phase of trial. Id. at 2534. Blakely reaffirmed the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that, other than the fact of a previous conviction, any fact that increases the punishment for a crime above the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 124 S.Ct. at 2536. The family violence finding made here, however, had no effect whatsoever on appellant’s punishment in this case. Therefore, the holding in Blakely does not affect appellant’s case.

We resolve appellant’s sole issue against him and affirm the trial court’s judgment.


author: Justice RICHTER.

text:
    Jennie BALL, Appellant, v. Wally SMITH, Appellee.
    No. 05-03-01360-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 8, 2004.

      David M. Stagner, Sherman, for Appellant.
    Martha Lee Bean, McKinney, for Appel-lee.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice RICHTER.

This is a no-evidence summary judgment case. Summary judgment was granted for appellee, Wally Smith. On appeal, appellant Jennie Ball asserts that the trial court erred in (1) granting Smith’s no-evidence motion for summary judgment and (2) ordering sanctions against her. We affirm the trial court’s judgment.

Factual Background

After dating briefly, Smith and Ball became engaged. Later, they mutually decided against formalizing the marriage and instead began living together at Smith’s residence. During this cohabitation, Ball made a number of expenditures for the benefit of Smith’s property.

Less than three years later, Ball filed an Original Petition for Divorce, alleging an informal marriage. Smith filed a Petition for Declaratory Judgment requesting the trial court to find that an informal marriage did not exist. In an amended petition for divorce, Ball then asked the trial court to construe the couple’s relationship as a partnership if it found that there was no informal marriage. After hearing evidence on Smith’s petition, the trial court found that there was no informal marriage, ruled that the claim of partnership would remain pending, and took the issue of attorney’s fees under advisement.

Smith denied the existence of a partnership in his unverified answer to Ball’s amended petition and asked the court for sanctions against Ball. Ball then filed her Second Amended Petition, which listed approximately $100,000 in expenditures that she had made for the benefit of Smith during their cohabitation. Alleging that she had made these expenditures because Smith had represented that she could live in his home for life, Ball asserted claims for equitable reimbursement and partition of assets and property, negligent misrepresentation, fraud, breach of contract, and reimbursement in light of a resulting trust. Ball likewise reiterated her alternative claim of partnership.

In response to Ball’s second petition, Smith filed his Motion for Final Summary Judgment and Motion for Sanctions. Smith alleged that Ball had failed to state a cause of action and had failed to present evidence to raise an issue of material fact as to the existence of marriage, partnership, resulting trust, or writing to evidence a promise or agreement that would support any of Ball’s other claims. In her response Ball addressed only two of her claims, asserting that she had provided more than a scintilla of evidence in support of her claims for partnership and for equitable reimbursement and partition. Regarding the latter claim, Ball asserted that the expenditures had not been based upon Smith’s representations, as she had alleged in her second petition.

After hearing argument on Smith’s motion, the trial court took the issue under advisement. With the court’s permission, Smith filed his amended affidavit, which specifically denied the elements of a partnership. Ball filed a supplemental response, repeating that she had provided more than a scintilla of evidence in support of her claims of partnership and for reimbursement and partition.

The trial court ultimately granted Smith’s motion for summary judgment, dismissed Ball’s second amended petition, and ordered Ball to pay Smith’s attorney’s fees. At Ball’s request, the trial court prepared Findings of Fact and Conclusions of Law. The trial court found, among other things, that Ball’s Second Amended Petition was frivolous and groundless, stating there is no basis in existing law to support her claim that the relationship should be construed as a partnership and/or should give rise to the distribution or partitioning of any property.

I. No-Evidence Summary Judgment Applicable Law

Smith argues there was no evidence of one or more essential elements of Ball’s claims under rule 166a(i) of the Texas Rules of Civil Procedure. See Espalin v. Children’s Medical Center of Dallas, 27 S.W.3d 675, 682-88 (Tex.App.-Dallas 2000, no pet.)(no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial). A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine issue of material fact. See Tex.R. Civ. P. 166a(i); see also Espalin, 27 S.W.3d at 683.

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmov-ant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of evidence to raise a genuine issue of material fact. Id. 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.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (citations omitted). In determining whether the nonmovant has met her burden, we consider the evidence in the light most favorable to the nonmovant. General Mills, 12 S.W.3d at 833.

Application of Law to Facts

In her first issue, Ball urges that the trial court erred in granting Smith’s motion for summary judgment because (1) the motion alleged that she failed to state a cause of action, a defect that should have been attacked with special exceptions; (2) the motion consisted of conclusory allegations and did not comply with the rules governing no-evidence motions; (3) she presented more than a scintilla of evidence raising a fact issue as to her claims of partnership and equitable reimbursement and partition; (4) Smith admitted the existence of the partnership by failing to verify his original answer to her petition for dissolution of partnership; and (5) she presented sufficient evidence of a constructive trust. Recognizing that Ball's first issue is multifarious, we will nevertheless address each complaint in the interest of justice.

Adequacy of Smith’s Motion for Summary Judgment

Ball’s first two complaints challenge the adequacy of Smith’s motion. First, Ball claims that Smith should have first attacked her alleged failure to state a cause of action with special exceptions so that Ball could amend her petition. We note that Smith’s motion alleged that Ball failed to state a cause of action and to raise a genuine issue of material fact as to essential elements of her claims. As a general rule, a party should not use a motion for summary judgment to attack a deficiency in a pleading that could be cured by amendment. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 54-55 (Tex.2003). However, if the nonmovant does not object to the motion for summary judgment on the ground that it is an attempt to circumvent the special exception practice, the issue is waived. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209 (Tex.1990). The record does not reflect that Ball objected to Smith’s motion on this ground. In fact, Ball responded to Smith’s motion as if it were a no-evidence motion for summary judgment by arguing that she had provided more than a scintilla of evidence regarding partnership and equitable reimbursement. Therefore, we will not consider the merits of this complaint.

Second, Ball contends that Smith’s motion lacks specificity. Although Ball did not bring this alleged defect to trial court’s attention, we have held that a nonmovant may challenge the legal sufficiency of a no-evidence motion for summary judgment on appeal without first objecting to the trial court. Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.Dallas 2002, no pet.). We must therefore determine whether Smith’s motion complies with the rules governing no-evidence motions for summary judgment.

A no-evidence motion for summary judgment must state the elements as to which there is no evidence. Tex.R. Civ. P. 166a(i). After making the general statement that there is no evidence to raise a genuine material fact, Smith’s petition addressed each of Ball’s claims.

Citing R.C.S. art. 6132b-2.02(a), Smith offered the statutory definition of “partnership” as an association of two or more people to carry on a business, as owners, for profit. He then listed from R.C.S. art. 6132b-2.03(a) statutory factors for determining whether an entity will be treated as a partnership:

(1) The right to receive a share of profits of the business;
(2) Expressions of intent to be partners;
(3) Participation, or the right of participation, in the control of the business;
(4) Sharing or agreements to share business losses or liabilities for third-party claims;
(5) The contribution of money or property to the business.

Smith then stated that no business was formed between himself and Ball. A common-sense reading indicates that these five factors are the elements that he challenged with respect to the alleged partnership.

Smith asserted that there was no resulting trust. He specifically claimed that there was no evidence that Ball did not intend him to have beneficial interest in the property.

Smith claimed that the remainder of Ball’s claims are based upon a purported promise to Ball. He cited section 1.108 of the family code, section 5.021 of the property code, and the statute of frauds to show that the promise that Ball used to support her claims must be in writing to be enforceable. He specifically asserted that there is no writing to evidence any promise or agreement as claimed by Ball.

We conclude that Smith’s motion was legally sufficient. Smith stated there is no evidence (1) of the five determining factors to indicate a partnership, (2) of Ball’s lack of intent to make a gift to Smith, and (3) of a writing that supports Ball’s claims of equitable reimbursement and partition, negligent misrepresentation, fraud, and breach of contract as a result of Smith’s alleged promise. Although Smith discussed several claims together, his assertions of no evidence are not mere conclusory allegations as Ball argues.

Ball’s Burden of Proof

To decide Ball’s remaining complaints, we must determine whether Ball presented summary judgment evidence raising a genuine issue of material fact with respect to any of her claims.

Partnership

Ball argues that she presented more than a scintilla of evidence raising a fact issue as to her claim of partnership. She further asserts that Smith’s failure to verify his original answer to her petition for dissolution of partnership constitutes an admission of the partnership, which should have prevented the trial court from granting a no-evidence summary judgment. We disagree.

In responding to Smith’s allegations regarding partnership, Ball had the burden to show that a partnership existed. In her first response to Smith’s motion, Ball claimed that she and Smith had agreed that she would run and maintain the household, which would allow Smith to devote more time and money to his classic car insurance business. She further claimed that she had taken an active part in the marketing and sales of the services provided by the business with the expectation of sharing the profits. As proof of this business arrangement, she outlined her expenditures on Smith’s household. Ball also attached her affidavit, which basically reiterated the assertions in the response.

Ball was not required to present or arrange all of her evidence in response to Smith’s motion. See Saenz v. Southern Un. Gas Co., 999 S.W.2d 490, 493-94 (Tex.App.-El Paso 1999, pet. denied). However, she did need to point out evidence that raised a fact issue on the challenged elements. Id. Ball did nothing more than present unsubstantiated claims. We agree with Smith that Ball offered no evidence of (1) her right to receive a share of the profits, (2) any intent to form a partnership for profit, (3) her participation, or right to participate, in the control of the business, or (4) sharing or agreements to share business losses or liabilities for third-party claims. Although Ball listed expenditures, she presented nothing to suggest that these were actually contributions to the purported business.

Ball is correct in her assertion that failure to file a rule 93 verified denial of partnership generally constitutes an admission of partnership, which cannot be controverted at trial. Washburn v. Krenek, 684 S.W.2d 187, 191 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). However, when Smith filed his no-evidence motion for summary judgment, Ball assumed the entire burden of proof. See Tex.R. Civ. P. 166a(i). Although a trial court may take judicial notice of its own records, it is required to do so only if requested by a party who supplies the necessary information to the court. Tex.R. Evid. 201(d); Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ). At no point did Ball bring Smith’s failure to verify his denial of a partnership to the trial court’s attention or ask that it take judicial notice of Smith’s original answer to her petition for dissolution of partnership.

We conclude that Ball failed to carry her burden of proof with respect to the existence of a partnership. At best, she has created only a mere surmise or suspicion of fact. See Marsaglia v. UTEP, 22 S.W.3d 1, 4 (Tex.App.-El Paso 1990, pet. denied).

Equitable reimbursement and partition

Ball likewise argues that she presented more than a scintilla of evidence raising a fact issue as to her claim of equitable reimbursement and partition. We again disagree.

Ball’s second amended petition asserted that she is entitled to equitable reimbursement and partition of assets and property because she made a substantial number of expenditures based upon Smith’s representations and assurances. Ball specifically claimed that she would not have made the expenditures without Smith’s promises.

After Smith asserted in his motion for summary judgment that this purported agreement was unenforceable because there was no writing to evidence it, Ball changed her claim regarding equitable reimbursement and partition. In her response to the motion for summary judgment, she asserted that her claim was not contingent on any representation by Smith. Then, in her supplemental response to Smith’s motion, she argued that the right to partition is absolute, citing section 23.001 of the property code.

The issue before us is whether Ball raised a fact issue on the challenged element. We conclude that she did not. The challenged element was Smith’s promise that prompted Ball to expend large amounts of money, as she alleged in her second amended petition. Ball did not carry her burden of proof by simply changing her claim in her response and attempting to support it. If Ball had wished to change her claim, she was free to amend her second amended pleading prior to the hearing. See Tex.R. Crv. P. 63.

Trust

Ball claims that she provided sufficient evidence of the existence of a constructive trust to raise a genuine issue of fact. According to Ball, she presented evidence of a prior confidential relationship and unfair conduct on Smith’s part in the affidavit attached to her response to Smith’s motion for summary judgment.

Ball’s response specifically addressed only two claims from her second amended petition — dissolution of partnership and equitable reimbursement and partition. Ball’s affidavit, attached as “Exhibit A” to her response, discussed the alleged partnership between Ball and Smith. Ball never referred to a trust in either the response or the affidavit.

We must decide whether Ball raised a fact issue on the challenged element. The challenged element regarding a trust was Ball’s lack of intent to make a gift to Smith. She never specifically addressed this challenge. Ball did not carry her burden of proof.

Accordingly, we overrule Ball’s first issue.

II. Sanctions

Ball argues that the trial court erred in imposing sanctions against her under chapter 10. See Tex. Civ. Phac. & Rem.Code Ann. § 10 (Vemon 2002). Smith contends that the trial court simply awarded attorney’s fees to the successful party rather than imposing sanctions. After examining the record, we agree with Smith.

In Smith’s Motion for Final Summary Judgment and Motion for Sanctions, he asked the trial court to award him reasonable attorney’s fees and to impose sanctions against Ball for filing a pleading that was both frivolous and groundless. At the hearing on the motion for summary judgment, Smith’s attorney presented evidence of attorney’s fees for both the claim of informal marriage and the motion for summary judgment. In its order granting summary judgment, the trial court awarded Smith $6,160 as attorney’s fees. In its findings of fact and conclusions of law, the trial court stated that Ball’s Second Amended Petition was both frivolous and groundless. It also stated that it was appropriate for Ball to pay Smith’s attorney’s fees.

However, the trial court never characterized the award as a sanction under chapter 10, as Ball asserts. In fact, Ball requested that the trial court state in additional conclusions of law that it had indeed sanctioned Ball pursuant to chapter 10, but the record contains no additional conclusions of law. Based on the record before us, we conclude that the trial court did not intend to impose sanctions.

We overrule Ball’s second issue.

Conclusion

Having overruled both of Ball’s issues, we affirm the judgment of the trial court.