author: Justice CARTER.

text:
    Brenda RITCHEY, Appellant, v. Steve PINNELL and Amy Pinnell, Appellees.
    No. 06-10-00010-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 20, 2010.
    Decided Sept. 21, 2010.

      William R. Power, Law Office of William R. Power, Mineóla, for appellant.
    G. Blake Thompson, J. Mark Mann, Stacie EL Tandy, The Mann Firm, Henderson, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Brenda Ritchey appeals the trial court’s order granting Steve and Amy Pinnell’s motion for summary judgment. Ritchey purchased a home from the Pinnells which Steve had remodeled prior to the purchase. Steve had purchased the home as an investment intending to remodel the home and resell it. The remodeling included extensive plumbing and electrical work. Although Steve hired a licensed electrician to “move the ... service line from the front of the house to the-to the side of the house,” Steve did the majority of the electrical work and all of the plumbing himself without a license, without obtaining permits, and without inspections. Ritchey filed suit against the Pin-nells for statutory real estate fraud and breach of contract. After discovery, the Pinnells filed a combination traditional and no-evidence motion for summary judgment. After a hearing, the trial court granted the Pinnells’ motion for summary judgment. On appeal, Ritchey argues the trial court erred in granting the motion for summary judgment because the independent investigation for Ritchey did not preclude recovery, the Pinnells made material misrepresentations, the “as is” clause does not prevent recovery for statutory fraud, and there is some evidence the Pinnells breached the contract. We reverse the trial court’s order granting the Pinnells’ motion for summary judgment as to the statutory fraud claim because there are genuine issues of material fact and affirm the summary judgment regarding the breach of contract claim.

I. Factual Summary

Steve testified that he is not a licensed electrician and that he learned how to do electrical work by reading “how-to guides” and “looking] at things that were done in my house already.” In the seller’s disclosure, the Pinnells represented that there were no “alterations or repairs made without necessary permits or not in compliance with building codes in effect at the time.” Steve testified in his deposition that he thought he “was doing it properly and that I was doing everything the right way.” Steve asserted, “I thought if I owned the home, I could work on anything on my side of the City’s box.”

The parties signed a standard preprint-ed form real estate contract. This contract contained a clause that the buyer “accepts the Property in its present condition.” After the purchase, Ritchey alleges that she discovered much of the electrical work did not meet code requirements and was performed without the necessary permits. Ritchey also alleges the water heater is located in the wrong location. Ritchey was refused an application for a certificate of occupancy. Eventually, Steve was fined by the Texas Department of Licensing and Regulation for performing electrical repairs without a license.

II. Standard of Review

In reviewing an order granting summary judgment, we are restricted to the arguments expressly presented to the trial court in the written motion for summary judgment and the response. Tex.R.App. P. 33.1; Tex.R. Civ. P. 166a(c); see Clear Creek Basin Auth., 589 S.W.2d at 677; Driskill v. Ford Motor Co., 269 S.W.3d 199, 206 (Tex.App.-Texarkana 2008, no pet.). In determining whether grounds are expressly presented to the trial court, appellate courts “may not rely on briefs or summary judgment evidence.” Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997). In our review, we “must review all of the summary judgment grounds on which the trial court actually ruled, whether granted or denied, and which are dispositive of the appeal, and may consider any grounds on which the trial court did not rule.” Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999) (citations omitted).

The Pinnells filed a combination traditional and no-evidence motion for summary judgment. A combination motion is permissible under the Texas Rules of Civil Procedure. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.2004); see Tex.R. Civ. P. 166a. In their written motion for summary judgment, the Pinnells argued there was no evidence of statutory real estate fraud because there was no evidence of a false representation and no evidence Rit-chey relied upon a false representation. The Pinnells also argued Ritchey’s reliance was negated as a matter of law because she hired an inspector. Last, the Pinnells argued summary judgment should be granted on the breach of contract claim because there was no evidence the Pinnells breached the contract. Although the Pin-nells argue on appeal that the “as is” clause of the contract should prohibit recovery for statutory real estate fraud, this argument was not raised in the Pinnells’ motion for summary judgment.

To prevail on a traditional motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d 671; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377 (Tex.App.-Texarkana 1989, no writ). The defendant must conclusively negate at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each element of an affirmative defense. Martinez, 941 S.W.2d at 911. Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issues of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex.1985); see Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). A motion for summary judgment must stand on its own merits, and the nonmovant may argue on appeal that the movant’s summary judgment proof is insufficient as a matter of law, even if the nonmovant filed no response to the motion. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000).

To prevail on a no-evidence motion for summary judgment, the movant must first allege there is no evidence of one or more specified elements of a claim or defense on which the nonmovant would have the burden of proof at trial. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); see Tex.R. Civ. P. 166a(i). If the nonmovant produces less than a scintilla of probative evidence on the specified element, the motion must be granted. Id. “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

III. Statutory Fraud Claim

A. Independent Inspection

The Pinnells argue Ritchey’s claims were negated as a matter of law because Ritchey hired an inspector who inspected the premises prior to closing. In her summary judgment affidavit, Ritchey stated that she relied upon the sellers’ disclosure in deciding to purchase the house. The Pinnells, though, claim the fact that Rit-chey hired an inspector establishes Rit-chey did not rely on the disclosure as a matter of law.

The Pinnells rely on M.L. Mayfield Petroleum Corp. v. Kelly, which held the reliance element of fraud is negated by evidence that a purchaser relied upon his own investigation. 450 S.W.2d 104 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.). The court held:

[N]o purchaser who relies on his own investigation may successfully assert that he relied upon representations made to him by his vendor. If a purchaser makes a personal investigation which is free and unhampered and the conditions are such that he must obtain the information he desires, he is presumed to rely upon his own investigation rather than on representations made to him by his vendor.

Id. at 110.

In considering the same issue, the Dallas Court of Appeals has taken a different approach. That court has held that an independent inspection negates causation and reliance as a matter of law when the buyer relied solely on the pre-purchase inspection, which revealed the defect complained of, and there is a renegotiation of the sales contract establishing that the existence of the defect was part of the parties’ bargain. See Bernstein v. Thomas, 298 S.W.3d 817, 822-23 (Tex.App.-Dallas 2009, no pet.); Kupchynsky v. Nardiello, 230 S.W.3d 685, 688-89 (Tex.App.Dallas 2007, pet. denied); Fernandez v. Schultz, 15 S.W.3d 648, 652 (Tex.App.-Dallas 2000, no pet.); Dubow v. Dragon, 746 S.W.2d 857, 860 (Tex.App.-Dallas 1988, no writ). But see Lesieur v. Fryar, 325 S.W.3d 242 (Tex.App.-San Antonio 2010, no pet. h.) (rejecting the test announced in Dubow and its progeny). We agree with the reasoning of the Dallas court on this issue.

In this case, there is no evidence that Ritchey’s inspection revealed the defect complained of. While an independent inspection may discover repairs which do not meet code requirements, we note most physical home inspections are unlikely to discover whether the proper permits were obtained. Further, the evidence establishes there was no renegotiation of the contract based on the results of the inspection. Therefore, the fact that Ritchey-hired an inspector does not negate reliance and causation as a matter of law. The fact that Ritchey hired an inspector merely creates a fact issue concerning whether Ritchey relied upon the misstatement that no work was conducted without the necessary permits. Genuine issues of material fact exist concerning whether the fact that Ritchey hired an inspector negated the reliance and causation elements of statutory real estate fraud.

B. The Effect of the “As Is” Clause

On appeal, the Pinnells argue that the trial court did not err in granting summary judgment because the “as is” clause contained in the contract prohibits recovery for statutory real estate fraud. In Prudential Insurance Co. of America v. Jefferson Associates, Ltd., the Texas Supreme Court concluded an “as is” agreement may negate the element of causation necessary to recover on claims regarding the physical condition of the property, including statutory real estate fraud. See Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995). The parties in this case executed the standard preprinted “ONE TO FOUR FAMILY RESIDENTIAL CONTRACT (RESALE).” This contract provided “Buyer accepts the Property in its present condition; provided Seller, at Seller’s expense, shall complete the following specific repairs and treatments” with the following addition: “repair or replace damaged wood on exterior of house as shown in Exhibit ‘A.’ ” There is no dispute that this provision qualifies as an “as is” clause. The parties, though, dispute whether this “as is” clause bars Ritchey from recovering for statutory real estate fraud.

Ritchey’s brief on appeal alleges the Pinnells’ motion for summary judgment alleged that Ritchey’s causes of action “failed because she had accepted the property “as is” in her May 17, 2007, purchase agreement.” The Pinnells did not argue the “as is” clause barred recovery for statutory real estate fraud or cite the Prudential line of cases in their motion for summary judgment. Although the Pinnells’ motion for summary judgment references the “as is” clause in reference to the breach of contract cause of action, the motion does not advance this argument in the context of statutory real estate fraud.

In reviewing an order granting summary judgment, we are restricted to the arguments expressly presented to the trial court in the written motion for summary judgment and the response. Tex. R.App. P. 38.1; Tex.R. Civ. P. 166a(c); see Clear Creek Basin Auth., 589 S.W.2d at 677; Driskill, 269 S.W.3d at 206. Although the briefs claim the issue was an available ground for summary judgment, we may not rely on the briefs in determining whether grounds are expressly presented to the trial court. Martinez, 941 S.W.2d at 912. The failure to raise a ground in a motion for summary judgment precludes summary judgment from being granted on that ground. See id.; Klentzman v. Brady, 312 S.W.3d 886 (Tex.App.Houston [1st Dist.] 2009, no pet.). “A motion must stand or fall on the grounds expressly presented in the motion.” McConnell, 858 S.W.2d at 341.

The record suggests the “as is” clause argument was raised during the hearing on the motion for summary judgment. Summary judgment issues, though, must be presented in writing and may not be presented orally to the trial court. See Clear Creek Basin Auth., 589 S.W.2d at 677 (“To permit ‘issues’ to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing.”); see Tex.R. Civ. P. 166a.

Summary judgment cannot be granted on grounds not properly presented to the trial court in the written motion for summary judgment. Because the Pinnells failed to raise, in their written motion for summary judgment, the issue of whether the “as is” clause negates the statutory real estate fraud causation, summary judgment could not be granted on that ground.

C. Knowledge of Misrepresentations

The Pinnells’ motion for summary judgment also argued there was no evidence Steve knew the misrepresentation was false and no evidence the alleged misrepresentations induced the sale.

Statutory fraud does not require a declarant to know the misrepresentation to be false in order to be liable for actual damages. Larsen v. Carlene Langford & Assocs., 41 S.W.3d 245, 249 (Tex.App.Waco 2001, pet. denied); Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 726 (Tex.App.-Waco 1998, pet. denied) (The statutory cause of action differs from the common-law fraud “except that the statute does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages.”). Under Section 27.01(a)(1) of the Texas Business and Commerce Code, a person commits statutory real estate fraud if he or she (1) makes a false representation, (2) of a past or existing material fact, (3) to a person, (4) for the purpose of inducing that person to enter into a contract, and (5) the person relies on that representation in entering into that contract. Tex. Bus. & Com.Code Ann. § 27.01(a)(1). The statute allows recovery of actual damages by the defrauded person. Thus, Ritchey was not required to present evidence that Steve knew the misrepresentation was false to recover actual damages.

There is some evidence the false representation induced the sale. The alleged misrepresentation occurred in the sellers’ disclosure prior to the sale. In her summary judgment affidavit, Ritchey states that she “read and relied on the Notice in deciding to enter into the contract pursuant to which I would agree to purchase the home.” She states that Steve “has conceded he had no permits, no code, and no inspections for the work he did.” Further, her affidavit stated she had been unable to obtain an occupancy permit to move into the home. There is more than a scintilla of evidence the false representation induced the sale.

The trial court erred in granting the Pinnells’ motion for summary judgment on the statutory fraud cause of action.

IY. Breach of Contract Cause of Action

Ritchey argues that the trial court erred in granting summary judgment on her breach of contract claim because the “Pinnells agreed to sell and Ritchey agreed to purchase a residence suitable for occupancy.” In their motion for summary judgment, the Pinnells alleged the “as is” clause defeats Ritchey’s claims and there is no evidence the Pin-nells breached the contract. A buyer, when purchasing something “as is,” agrees to make his or her own appraisal of the bargain and to accept the risk that the buyer may be wrong. Mid Continent Aircraft Corp. v. Curry County Spraying Serv., Inc., 572 S.W.2d 308, 313 (Tex.1978); Oakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d 363, 370 (Tex.App.-El Paso 2002, pet. denied). “[T]he nature of an ‘as is’ clause is to avoid the creation of any warranties, express or implied; thus the clause negates such warranties to the extent allowed by law.” Welwood v. Cypress Creek Estates, Inc., 205 S.W.3d 722, 728 (Tex.App.-Dallas 2006, no pet.). The “as is” clause negates any contractual claims based on defects in the condition of the house. Ritchey agreed to make her own appraisal of the condition of the house and assumed the risk that her appraisal was incorrect. There is no evidence the Pinnells breached the contract. The trial court did not err in granting the Pinnells’ motion for summary judgment on the breach of contract claim.

V. Conclusion

The Pinnells failed to establish they were entitled to a traditional summary judgment on the statutory real estate fraud cause of action. The fact that Rit-chey hired an inspector, standing alone, does not negate reliance or causation. Fact issues exist concerning whether the hiring of an inspector negates causation or reliance. The issue of whether the “as is” clause negates causation was not raised by the Pinnells’ motion for summary judgment on this issue and, therefore, cannot be a basis for granting summary judgment. The trial court erred in granting summary judgment concerning the statutory real estate fraud cause of action.

Because the “as is” clause negates any contractual claims based on defects in the condition of the house and there is no evidence the Pinnells breached the sales agreement, the trial court did not err in granting summary judgment to the Pin-nells on Ritchey’s breach of contract claims. We reverse in part and affirm in part. We affirm the portion of the summary judgment rendering the Pinnells a take-nothing judgment on Ritchey’s breach of contract claims. We reverse the portion of the summary judgment concerning statutory real estate fraud and remand for further proceedings consistent with this opinion.

      . There is no evidence that Steve ever claimed the house as his homestead.

      . See Tex. Bus. & Com.Code Ann. § 27.01(a)(1) (Vernon 2009). The reliance and materiality elements of statutory real estate fraud "do not differ from common law fraud.” Fisher v. Yates, 953 S.W.2d 370, 381 n. 7 (Tex.App.-Texarkana 1997), writ denied, 988 S.W.2d 730 (Tex.1998) (per curiam).

      . The trial court’s docket sheet indicates a hearing was held on the motion for summary judgment. The parties have not provided this Court with a reporter’s record of the hearing. "In a summary judgment hearing, the trial court's decision is based upon written pleadings and written evidence rather than live testimony.” Paselk v. Rabun, 293 S.W.3d 600, 610 (Tex.App.-Texarkana 2009, pet. denied). A reporter’s record of the hearing is not necessary in summary judgment proceedings. See McConnell v. Southside Indep. Sell. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979).

      . The Pinnells argue they were not required to make a seller’s disclosure. This is incorrect. The Texas Property Code requires, subject to a few limited exceptions which do not apply here, a number of disclosures, including whether “alterations or repairs [have been] made without necessary permits or not in compliance with building codes in effect at that time.” Tex. Prop.Code Ann. § 5.008(a), (b), (e) (Vernon Supp. 2010) (this statute has been amended since the transaction in question, but none of the amendments are relevant to this appeal); see Myre v. Meletio, 307 S.W.3d 839, 843 (Tex.App.-Dallas 2010, pet. filed). ("In the context of a real estate transaction, a seller is under a duty to disclose material facts that would not be discoverable by the exercise of ordinary care and diligence by the purchaser, or that a reasonable investigation and inquiry would not uncover.”).

      . In her deposition, Ritchey stated that her brother, who is a "journeyman master electrician,” informed her of the problems. Whether the summary judgment evidence is sufficient to establish that the electrical work did not meet code requirements was not challenged by the Pinnells in their motion for summary judgment. The Pinnells do not contest that repairs were made without necessary permits.

      . The Pinnells argued in their motion for summary judgment that the water heater’s location is no evidence of a defect. Ritchey admitted the water heater is in the same location it was when she purchased the house.

      . In her summary judgment affidavit, Ritchey states her request for a certificate of occupancy was refused. In their appellate brief, the Pinnells argue Ritchey did not request a certificate of occupancy until after she had already filed suit. The record citation provided does not support this allegation, and we have not found any evidence in the record concerning when Ritchey requested a certificate of occupancy.

      . Prudential concerned a commercial real estate transaction where the building was later found to contain asbestos. Prudential characterizes "as is” clauses as "facts which negate proof of causation required for recovery.” Prudential, 896 S.W.2d at 164. The court reasoned, by agreeing to an "as is” clause, the buyer disclaims the existence of any express or implied warranties, agrees to make his or her own assessment of the bargain, and accepts the risk that the buyer’s own assessment may be wrong. Id. Thus, a valid enforceable "as is” clause negates as a matter of law the possibility that the seller's conduct will cause him or her damage. Id. The Texas Supreme Court, however, noted that not all “as is” clauses are valid and enforceable. The court cautioned that an "as is” clause is not enforceable if the seller induced the buyer to enter into the contract by a fraudulent representation or if the seller engaged in conduct that impaired, obstructed, or interfered with the buyer’s inspection of the property. Id. at 160-62. The Texas Supreme Court held that a fraudulent representation occurs when "the maker knew it was false when he made it or made it recklessly without knowledge of the truth.” Id. at 163. Distinguishing misrepresentations from a failure to disclose, the Texas Supreme Court held a party is not liable for failing to disclose a defect unless the party had actual knowledge of the defect. Id. Finally, other aspects of a transaction may make an "as is” agreement unenforceable. The court should inquire whether the clause "is an important part of the basis of the bargain, not an incidental or ‘boiler-plate’ provision, and is entered into by parties of relatively equal bargaining position.” Id. at 162; see Kupchynsky v. Nardiello, 230 S.W.3d 685, 691 (Tex.App.-Dallas 2007, pet. denied).

      . Ritchey's motion for new trial suggests that the Pinnells argued the "as is” clause bars recovery for statutory real estate fraud to the trial court at the hearing on the motion for summary judgment. As noted above, we do not have a reporter’s record of the hearing on the motion for summary judgment.

      . Statutory real estate fraud requires actual awareness to recover exemplary damages. Tex. Bus. & Com.Code Ann. § 27.01(c). Because actual knowledge is not required to recover actual damages, it is not necessary for us to decide whether there is some evidence of actual knowledge.

      . Under certain circumstances, though, an implied warranty cannot be waived. See Centex Homes v. Buecher, 95 S.W.3d 266, 274-75 (Tex.2002) (implied warranty of habitability "can be waived only to the extent that defects are adequately disclosed”); Humber v. Morton, 426 S.W.2d 554, 555 (Tex.1968) (recognizing an implied warranty of habitability for new homes sold by builder); Ritchey does not allege this transaction created implied warranties which could not be waived.

      . We note "[t]he acts of a party may breach duties in tort or contract alone or simultaneously in both.” Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986). The applicability of the "as is” clause to a tort claim, under Prudential, 896 S.W.2d at 162, differs from its applicability to a breach of contract claim. We have not addressed whether the "as is” clause would bar recovery for a tort claim such as statutory real estate fraud.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    J & J SPORTS PRODUCTIONS, INC., Appellant, v. 1) JWJ MANAGEMENT, INC., Individually and d/b/a Playmates; and 2) Joe Wayne Feemster, Individually and d/b/a Playmates, Appellees.
    No. 2-09-404-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 23, 2010.
    Andrew R. Korn, David M. Diaz, Korn, Bowdich & Diaz, L.L.P., Dallas, TX, for Appellant.
    Steven H. Swander, Fort Worth, TX, for Appellees.
    PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellant J & J Sports Productions, Inc. appeals from the trial court’s judgment dismissing its claims against Appellees JWJ Management, Inc. (individually and d/b/a Playmates) (JWJ) and Joe Wayne Feemster (individually and d/b/a/ Playmates) (Feemster). In one point, J & J Sports argues that the trial court erred by concluding that the two-year statute of limitations from section 16.003 of the Texas Civil Practice and Remedies Code applies to its claims. Because we hold that the two-year statute of limitations does apply, we affirm.

I.Background

J & J' Sports was authorized to sub-license the live telecast of a boxing event held on May 28, 2005. On May 28, 2008, J & J Sports filed suit against JWJ and Feemster for cable piracy under sections 553 and 605 of the Federal Communications Act of 1934(FCA). In its petition, J & J Sports alleged that JWJ and Feem-ster had shown a closed-circuit telecast of the event in their commercial establishment without first obtaining the rights to show the event from J & J Sports.

JWJ and Feemster filed a cross-motion for summary judgment on the ground that the piracy claims were time-barred by the two-year statute of limitations provided by civil practice and remedies code section 16.003(a). J & J Sports argued in response that the trial court should follow the Fifth Circuit’s holding in Prostar v. Massachi and apply the three-year statute of limitations found in the federal Copyright Act. The trial court granted JWJ and Feemster’s motion, and J & J Sports now appeals.

II.Standard of Review

We review a summary judgment de novo. A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Limitations is an affirmative defense.

III.Discussion

Applicable Law

In J & J Sports’s sole issue, it argues that the trial court erred by concluding that the two-year limitations period in section 16.003 applies to claims brought under the FCA, specifically 47 U.S.C. §§ 553 and 605. Congress has provided a four-year limitations period for civil actions arising under federal statutes enacted after December 1, 1990. For federal statutes enacted prior to that time that do not specifically provide an applicable limitations period, the general rule is to “ ‘borrow’ the most closely analogous state limitations period.” Courts have also, though more rarely, borrowed an analogous federal limitations period in certain circumstances.

The United States Supreme Court has discussed at length the analysis courts should use in determining the applicable statute of limitations for a federal statute that does not expressly provide an applicable limitations period. In Agency Holding Corp. v. Malley-Duff & Associates, the Court considered the appropriate statute of limitations for civil enforcement actions under the Racketeer Influenced and Corrupt Organizations Act (RICO). The Court began by noting that in the past, it had “generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law,” but that courts are not always required to apply a state statute of limitations whenever a federal statute is silent on the question of limitations. The Court then articulated the initial inquiry in determining the appropriate limitations period: “whether all claims arising out of the federal statute ‘should be characterized in the same way, or whether they should be evaluated differently depending upon the varying factual circumstances and legal theories presented in each individual case[,]’ ” that is, whether one uniform limitations period should be applied to all claims that arise out of the statute. Once the court has made this determination, the court must decide whether a federal or state limitations period should apply to such claims. The federal Rules of Decisions Act generally requires the application of a state limitations statute, but in some limited circumstances, “‘state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law,’ ” and in those circumstances, “ ‘it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.’ ”

The Court stated that “the mere fact that state law fails to provide a perfect analogy to the federal cause of action is never itself sufficient to justify the use of a federal statute of limitations.” But it may be appropriate to borrow a limitations period from another federal statute “when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.”

Due to the nature of RICO claims, the federal courts had been inconsistent in how they approached selecting a statute of limitations to apply. To be liable under § 1962 of RICO, a person has to have engaged in a “pattern of racketeering,” meaning at least two acts of racketeering activity. The term “racketeering activity” encompasses numerous and diverse topics, across many areas of law, including nine state law felonies and over twenty-five federal statutes. The types of acts constituting “racketeering activity” range from actions such as mail fraud and embezzlement to acts “generally associated with professional criminals such as arson, bribery, theft[,] and political corruption.” Thus, in trying to determine which state limitations period applies, a court could analogize a RICO claim to numerous causes of action with a multiplicity of applicable limitations periods. The Court therefore needed to set a uniform statute of limitations for RICO claims to avoid “intolerable ‘uncertainty and time-consuming litigation.’ ”

After determining that it needed to set one uniform limitations period to apply to all claims arising out of RICO, the Court ultimately concluded that the applicable limitations period should come from the federal Clayton Act rather than from state law. The Court placed particular importance on the “similarities in purpose and structure between RICO and the Clayton Act” and “the clear legislative intent to pattern RICO’s civil enforcement provision on the Clayton Act,” which the Court stated “strongly counseled] in favor of’ applying the Clayton Act’s limitations period.

The Court remarked that “[t]his [was] especially true given the lack of any satisfactory state law analogue to RICO.” Unlike, for example, a claim under 42 U.S.C. § 1983 — the predicate acts of which “plainly sound[] in tort,” making claims under that statute amenable to the application of a state’s statute of limitations for tort claims — the predicate acts that give rise to a racketeering claim under RICO “cannot be reduced to a single generic characterization.”

The Court also observed that because of the multi-jurisdictional nature of RICO eases, the practicalities of litigation provided an additional compelling reason for applying a federal statute of limitations. Not only could a single claim be subject to multiple limitations periods within a jurisdiction, but because RICO cases are commonly based on interstate transactions, any one RICO claim could also be governed by the statute of limitations for multiple states. In summary, because a claim under RICO could encompass numerous acts that would be subject to different statutes of limitations within a jurisdiction, the Court needed to establish a uniform limitations period to apply to all RICO claims. Because a claim could be based on predicate acts that occurred in multiple jurisdictions, and because the statute itself was clearly patterned on a federal statute, the limitations period for that federal statute should apply to RICO claims.

In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Court addressed the applicable statute of limitations for a private suit brought under § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule lOb-5. The Court reiterated that borrowing a limitations period from a federal statute is a closely-circumscribed exception to the general rule of borrowing from state law. From its previous cases, the Court distilled a three-step, hierarchical inquiry for determining the appropriate limitations period. First, a court must consider the need to establish one uniform limitations period to apply to the federal cause of action. Does the federal cause of action “encompass numerous and diverse topics and subtopics ... such that a single state limitations period may not be consistently applied within a jurisdiction”? If so, “federal interests in predictability and judicial economy counsel the adoption of one source, or class of sources, for borrowing purposes.”

Next, a court considers whether to use a state or federal source, giving particular consideration to the geographical character of the claim — that is, if the claim is multistate in nature. The concern is that if a plaintiffs claim could be brought in more than one state, each with a different limitations period, this could give rise to forum shopping and would “ ‘virtually guarantee complex and expensive litigation over what should be a straightforward matter.’ ” We note that the Court expressed concern about whether a single claim could possibly be subjected to statutes of limitations in multiple states; the Court made no mention of concern about whether a plaintiff who pursues claims against different defendants in separate lawsuits might be subjected to different statutes of limitations based on where those lawsuits are filed.

As a final consideration, a court looks to see if a federal limitations period has a “closer fit” than a state law limitations period. Even if the multistate nature of a claim points toward borrowing a federal statute, the court still must look to see if the analogous federal source truly affords a closer fit with the cause of action at issue than does any available state-law source.

The Court once again considered the issue of borrowing in North Star Steel Co. v. Thomas, In that case, the Court determined the applicable statute of limitations for claims under the federal Worker Adjustment and Retraining Notification Act (WARN). The Court again noted that a statute of limitations should be borrowed from a federal source, rather than a state source, “when the state limitations periods with any claim of relevance would ‘frustrate or interfere with the implementation of national policies,’ ” or be “at odds with the purpose or operation of federal substantive law,” but that borrowing from a federal source is a “ ‘a closely circumscribed ... [and] narrow exception to the general rule’ ” of borrowing from state law. The Court held that the claims at issue “[fell] squarely inside the rule, not the exception.”

Although the defendants in North Star Steel argued that litigation under WARN presented a risk of forum shopping, the Court declined to adopt a uniform federal rule for all WARN claims. The Court acknowledged that “the practice of adopts ing state statutes of limitations for federal causes of action can result in different limitations periods in different States for the same federal action” and that “some plaintiffs will canvass the variations and shop around for a forum.” But, the Court observed, “[T]hese are just the costs of the rule itself, and nothing about WARN makes them exorbitant.” That is, the fact that a federal statute could be subjected to one limitations period in one state but a different limitations period in another state does not by itself justify adopting a uniform federal limitations rule for a federal cause of action.

The Court acknowledged that it had previously adopted a uniform federal rule for RICO claims and that in doing so, it was influenced by the “practicalities of litigation” of RICO claims. But, the Court pointed out, claims under WARN are based on an act or acts at a single site and, unlike RICO violations, “do not ‘commonly involve interstate transactions.’” The Court concluded by holding that because WARN did not share the “multistate nature” of RICO and is

so relatively simple and narrow in its scope, that “no [comparable] practicalities of litigation compel us to search beyond state law for a more analogous statute of limitations[.]” Since, then, a state counterpart provides a limitations period without frustrating consequences, it is simply beside the point that even a perfectly good federal analogue exists.

Although the Supreme Court has not yet determined the applicable limitations period for claims under the FCA, the Third, Fifth, and Ninth Circuits have reached the issue. The Fifth Circuit held that the limitations period from the federal Copyright Act applies to civil actions under the FCA. In Prostar, the Fifth Circuit considered whether to apply a Louisiana limitations period to claims brought under 47 U.S.C. §§ 553 and 605. The court concluded that the closest analogue under Louisiana law to the plaintiffs cable piracy claim was the tort of conversion. The court declined, however, to apply Louisiana’s one-year limitations period for conversion claims. Instead, emphasizing the need for national uniformity in enforcing the FCA, the court held that the application of Louisiana conversion law would undermine the implementation of the FCA because “[t]he application of state conversion law in each of the fifty states would result in widely varying limitations periods,” which would require national cable companies to “ ‘make fifty separate decisions’ in their efforts to investigate and pursue cable policy.” Thus, the court appeared to interpret the “uniformity” consideration set out by the Supreme Court as a consideration of whether implementation of the cable piracy statutes’ policies and the practicalities of litigation required a limitations period that was uniform across jurisdictions, rather than merely uniform within a jurisdiction. The court concluded that a single federal standard should apply to cable piracy claims and that the federal Copyright Act provides an appropriate federal law analogue to such claims. Accordingly, the court applied the Copyright Act’s limitations period of three years to the cable piracy claims.

Both the Third and Ninth Circuits reached a different conclusion than the Fifth Circuit did in Prostar and held that the applicable limitations period should be one borrowed from state law. In Kingvision Pay-Per-View, Carp. v. 898 Belmont, Inc., the Third Circuit noted that Pennsylvania, the state in which the claims were brought, has a cable piracy statute similar to the federal statute; that statute has a two-year statute of limitations. Although the plaintiff in that case argued that the three-year limitations period of the federal Copyright Act should apply, the Third Circuit determined that no special considerations relevant to bringing FCA claims would be frustrated by a two-year limitations period. The court observed that “[t]he overall purpose of the FCA is to ‘regulat[e] interstate and foreign commerce in communication by wire and radio so as to make available ... to all the people of the United States ... a rapid efficient ... communication service with adequate facilities at reasonable charges[,]’ ” and that the specific provisions of §§ 558 and 605 were passed “to prevent unauthorized interception of cable transmissions, including interception through unauthorized use of decoding devices.” Because there was no evidence that the practicalities of litigation under those sections required a longer statute of limitations, and because the application of the state law limitations period did not frustrate the purpose or implementation of the FCA, the court found no reason to apply a longer limitations period.

In DirecTV, Inc. v. Webb, the Ninth Circuit determined the statute of limitations for a violation of 47 U.S.C. § 605. The court pointed out that California has a piracy statute “remarkably similar to § 605 in purpose and structure.” In contrast to the Fifth Circuit’s analysis in Prostar, the court held that the consideration of a need for uniformity does not refer to “a litigant’s preference for a single limitations period in multiple lawsuits across multiple jurisdictions.” Nor does the consideration relate to whether the borrowed limitations period should come from federal rather than state law. Rather, the issue of uniformity arises when the federal cause of action is so complex that “a single state limitations period may not be consistently applied within a [single] jurisdiction.” The court also noted that, in that case, the piracy claims against the defendant were not multistate in nature in that they did not stem from predicate acts spanning multiple jurisdictions. And furthermore, the court held, “[G]eo-graphic considerations do not counsel for the adoption of a federal limitations period less analogous than a state counterpart.” Thus, the court concluded that the statute of limitations applicable to the California cable piracy statute should apply to the plaintiffs claims.

Analysis

We now turn to the claims in this case. J & J Sports argues that this court should follow Prostar. Precedent of the Fifth Circuit, though persuasive, is not binding on this court. We therefore conduct our own analysis to determine what limitations period applies.

J & J Sports contends that Texas does not have a state statute analogous to the FCA’s statutory scheme protecting against unauthorized reception of cable transmissions. J & J Sports is incorrect; unlike Louisiana, Texas has a closer analogue to the federal cable piracy statutes than common law conversion. As with the federal provisions at issue here, Texas provides for both criminal and civil liability when a person uses a device to obtain cable or satellite services without authorization. Under section 31.12 of the penal code, a person commits an offense of theft of or tampering with multichannel video or information services if the person, without authorization, intentionally or knowingly uses an unauthorized access device to obtain services from a multichannel video or information services provider. The term “access device” means “an access device, connection, or device wholly or partly designed to make intelligible an encrypted, encoded, scrambled, or other nonstandard signal carried by a multichannel video or information services provider.” The term “multichannel video or information services provider” means “a licensed cable television system, video dialtone system, multichannel multipoint distribution services system, direct broadcast satellite system, or other system providing video or information services that are distributed by cable, wire, radio frequency, or other media.” With respect to civil liability for such actions, the Texas Theft Liability Act (TTLA) makes certain theft offenses subject to civil penalties as well. Section 134.002 specifically provides for a civil cause of action against a person who commits an offense under section 31.12. As with 47 U.S.C. §§ 553 and 605, under the TTLA, a plaintiff may recover both actual damages and statutory damages for a violation of section 31.12. Thus, Texas has a state law analogue that parallels the federal cable piracy statutory scheme. We must now determine whether we should apply the Texas limitations period applicable to section 134.002 to J & J Sports’s federal claims or whether we should instead borrow from a federal law analogue.

We agree with the reasoning of the Third and Ninth Circuits. The federal Copyright Act does not truly afford a closer fit to the federal cable piracy statute than the Texas cable piracy statutory scheme. And the practicalities of litigation under the cable piracy statute do not make the application of the federal Copyright Act (or any other federal law) significantly more appropriate. The cable piracy statutory scheme does not address a range of topics and subtopics. It does not base liability on multiple acts, each with its own limitations period, creating confusion as to which limitations period should be applied. And the predicate act or acts that subject a person to liability do not occur across multiple jurisdictions. Instead, the piracy claims are based on “a localized violation in a single jurisdiction.”

Furthermore, borrowing Texas’s two-year statute of limitations does not frustrate either the purpose or the implementation of the FCA’s cable piracy provisions. We agree with the Third Circuit that having a two-year statute of limitations does not impede the FCA’s purpose of preventing the unauthorized interception of cable transmissions, including interception through unauthorized use of decoding devices. Because the federal policies at stake are not frustrated by applying a two-year statute of limitations, and because the practicalities of litigation under the FCA’s cable piracy provisions do not counsel against borrowing Texas’s two-year statute of limitations, we decline to follow Prostar.

J & J Sports argues that cable piracy “clearly implicates several areas of the law, such [as] fraud, theft of services, conspiracy to breach contract, unjust enrichment, or interference with economic advantage.” But whereas cable piracy could possibly be compared to any of these causes of action, proving a claim under the cable piracy statutory scheme does not require establishing those other claims. The fact that those other causes of action have varying statutes of limitations is therefore irrelevant to our analysis.

J & J Sports also argues that cable signals and satellite communications are multistate operations. It points out that it is a California corporation with an exclusive license with a Nevada-based promoter and that the defendants in this case were in Texas. J & J Sports misconstrues the geographic consideration requirement set out by the Supreme Court. The “multi-state nature” of a claim does not refer to whether the parties are in different jurisdictions. The consideration relates to whether the predicate acts of the defendant occurred in different jurisdictions. J & J Sports’s claim is based, as most cable piracy claims will be, on an act at a single site. And the Supreme Court has pointed out that even if the claim is multi-state in nature, before borrowing a federal limitations period, a court must determine that an analogous federal source truly affords a closer fit with the cause of action at issue than does any available state-law source. The federal Copyright Act does not afford a closer fit to the federal cable piracy statutes than does the Texas cable piracy statutes.

Section 134.002 of the civil practice and remedies code, which incorporates section 31.12 of the penal code, is the Texas statute most closely analogous to the cable piracy provisions of the FCA. Accordingly, we hold that the statute of limitations applicable to section 134.002 applies to the federal causes of action asserted here. Under section 16.003(a) of the civil practice and remedies code, except where otherwise provided, a two-year limitations period applies to a claim for trespass to or the taking of personal property. Because section 134.002 addresses theft of personal (intangible) property, section 16.003(a) applies to section 134.002 claims. Accordingly, we hold that a two-year statute of limitations applies here.

J & J Sports brought its claims more than two years after the alleged unauthorized interception. The trial court therefore did not err by granting JWJ and Feemster’s cross-motion for summary judgment based on the application of the two-year statute of limitations in section 16.003(a). We overrule J & J Sports’s sole issue.

IV. Conclusion

Having overruled J & J Sports’s sole issue, we affirm the trial court’s summary judgment.

      . Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon Supp. 2010).

      . 47 U.S.C.A. § 553 (West 2001) (“No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law."); id. § 605 (West 2001) ("No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.").

      . See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a).

      . See Prostar v. Massachi, 239 F.3d 669, 678 (5th Cir.2001); see also 17 U.S.C.A. §§ 101— 1332 (West 2005 & Supp. 2010).

      . Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009).

      . Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.2008); see Tex.R. Civ. P. 166a(b), (c).

      . Tex.R. Civ. P. 94; In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex.2010).

      . 28 U.S.C.A. § 1658 (West 2006); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 1845, 158 L.Ed.2d 645 (2004) (holding that a cause of action "arises under” an act after December 1, 1990, "if the plaintiff's claim against the defendant was made possible by a post-1990 enactment”).

      . Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414-15, 125 S.Ct. 2444, 2448, 162 L.Ed.2d 390 (2005).

      . Id.

      . 483 U.S. 143, 144, 107 S.Ct. 2759, 2761, 97 L.Ed.2d 121 (1987); see also 18 U.S.C.A. §§ 1961-1968 (West 2000 & Supp. 2010).

      . Agency Holding, 483 U.S. at 146, 107 S.Ct. at 2762.

      . Id. at 147, 107 S.Ct. at 2762.

      . Id.

      . 28 U.S.C.A. § 1652 (West 2006).

      . Agency Holding, 483 U.S. at 147, 107 S.Ct. at 2762-63 (quoting DelCostello v. Teamsters, 462 U.S. 151, 161, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983)).

      . Id., 107 S.Ct. at 2763.

      . Id. at 148, 107 S.Ct. at 2763 (quoting DelCostello, 462 U.S. at 171-72, 103 S.Ct. at 2294) (emphasis added).

      . Id.

      . 18 U.S.C.A. § 1962.

      . Agency Holding, 483 U.S. at 149-50, 107 S.Ct. at 2763-64.

      . Id.; see also 18 U.S.C.A. § 1962.

      . Agency Holding, 483 U.S. at 149-50, 107 S.Ct. at 2763-64.

      . Id. at 150, 107 S.Ct. at 2764 (quoting Wilson v. Garcia, 471 U.S. 261, 272, 105 S.Ct. 1938, 1945, 85 L.Ed.2d 254 (1985)).

      . 15 U.S.C.A. § 15 (West 2009).

      . Agency Holding, 483 U.S. at 150, 107 S.Ct. at 2764.

      . Id. at 150-52, 107 S.Ct. at 2764-65.

      . Id. at 152, 107 S.Ct. at 2765.

      . Id.

      . Id. at 153-54, 107 S.Ct. at 2766.

      . Id.

      . Id.

      . Id.

      . 501 U.S. 350, 352, 111 S.Ct. 2773, 2776, 115 L.Ed.2d 321 (1991); see 15 U.S.C.A. § 78j(b) (West 2009); 17 CFR § 240.10b-5 (1990).

      . Lampf, 501 U.S. at 356, 111 S.Ct. at 2778.

      . Id. at 356, 111 S.Ct. at 2778-79.

      . Id. at 357, 111 S.Ct. at 2779.

      . Id.

      . Id.

      . Id.

      . Id. (quoting Agency Holding, 483 U.S. at 154, 107 S.Ct. at 2766).

        .Id.

      . Id. at 357-58, 111 S.Ct. at 2779.

      . 515 U.S. 29, 115 S.Ct. 1927, 132 L.Ed.2d 27(1995).

      . Id. at 31, 115 S.Ct. at 1929; see 29 U.S.C.A. §§ 2101-2109 (West 2009).

      . North Star Steel, 515 U.S. at 34, 115 S.Ct. at 1931 (quoting DelCostello, 462 U.S. at 161, 103 S.Ct. at 2289, and Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977)).

      . Id. at 34, 115 S.Ct. at 1930 (quoting Reed v. United Transp. Union, 488 U.S. 319, 324, 109 S.Ct. 621, 625, 102 L.Ed.2d 665 (1989)).

      . Id. at 35, 115 S.Ct. at 1931.

      . Id. at 36, 115 S.Ct. at 1931-32.

      . Id. at 36, 115 S.Ct. at 1932.

      . Id.

      . Id. at 36-37, 115 S.Ct. at 1932.

      . Id. at 37, 115 S.Ct. at 1932 (citations omitted).

      . Prostar, 239 F.3d at 677.

      . Id. at 671.

      . Id. at 675.

      . Id. at 676-77.

      . Id. at 677.

        .Id. at 678.

      . 366 F.3d 217 (3rd Cir.2004).

      . Id. at 219.

      . Id. at 225.

      . Id. (quoting 47 U.S.C. § 151).

      . Id.

      . 545 F.3d 837 (9th Cir.2008).

      . Id. at 848 (citing Lampf, 501 U.S. at 358, 111 S.Ct. at 2779 (instructing that "commonality of purpose and similarity of elements” are relevant considerations when selecting a statute of limitations period to apply)).

      . Id. at 850-51.

      . Id. at 851.

      . Id. (citing Lampf, 501 U.S. at 357, 111 S.Ct. at 2779).

      . Id.

      . Id.

      . Id. at 848.

      . Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993).

      . See Fielding, 289 S.W.3d at 848 (reviewing summary judgment de novo).

      . Tex. Penal Code Ann. § 31.12(a)(4) (Vernon 2003).

      . Id. § 31.12(b)(1).

      . Id. § 31.12(b)(3).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 134.001-.005 (Vernon 2005).

      . Id. § 134.002.

      . See id. § 134.005(a)(1); see also 47 U.S.C.A. §§ 553(c)(3), 605(e)(3)(C).

      . See Lampf, 501 U.S. at 356, 111 S.Ct. at 2778 (noting that a court should apply a federal rule only when federal policies at stake and practicalities of litigation make that rule significantly more appropriate than borrowing a limitations period from an analogous state law).

      . See DirecTV, Inc., 545 F.3d at 851.

      . See Kingvision Pay-Per-View, Corp., 366 F.3d at 225.

      . Cf. Agency Holding, 483 U.S. at 149-50, 107 S.Ct. at 2763-64 (discussing RICO, which lists more than thirty acts or offenses and makes the commission of any two a violation of RICO).

      . See Prostar, 239 F.3d at 676 (determining that Prostar’s claim illustrated the "multistate nature” of FCA actions in that Prostar was a Texas corporation suing for signal piracy conducted in Louisiana).

      . See North Star Steel, 515 U.S. at 37, 115 S.Ct. at 1932 (noting that WARN’s obligations are triggered by activities that, unlike RICO violations, "do not ‘commonly involve interstate transactions’ ”).

      . Lampf, 501 U.S. at 357-58, 111 S.Ct. at 2779.

      . Tex. Civ. Prac. & Rem.Code Ann. § 16.003.

      . See Chau, 254 S.W.3d at 455.


author: JEFFREY V. BROWN, Justice.

text:
    SIMMONS, JANNACE & STAGG, L.L.P., Appellant, v. The BUZBEE LAW FIRM, Appellee.
    No. 14-09-00699-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 30, 2010.
    Steven Jannace, Syossett, NY, for appellant.
    Christopher K. Johns, Houston, for ap-pellee.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

JEFFREY V. BROWN, Justice.

This is an appeal from a judgment signed July 24, 2009. The record reflects appellant, Simmons, Jannace & Stagg, L.L.P., is attempting to appear pro se. The law firm of Simmons, Jannace & Stagg, L.L.P., may not proceed pro se. “Corporations and partnerships, both of which are fictional legal persons, obviously cannot appear ■ for themselves personally.... [T]hey must be represented by counsel.” Southwest Express Co. v. Interstate Commerce Comm’n, 670 F.2d 53, 54 (5th Cir.1982) (per curiam) (interpreting 28 U.S.C. § 1654); accord Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); see also Tex. Bus. Orgs. Code Ann. § 152.056 (Vernon Pamphlet 2009) (“A partnership is an entity distinct from its partners.”); Dell Dev. Corp. v. Best Indus. Uniform Supply Co., Inc., 743 S.W.2d 302 (Tex.App.Houston [14th Dist.] 1987, writ denied) (analogizing Tex.R. Civ. P. 7 to 28 U.S.C. § 1654).

On August 17, 2010, this court notified the parties that appellant’s brief would be stricken and the appeal subject to dismissal for want of prosecution unless an attorney authorized to practice law in the State of Texas filed a substitute brief on behalf of appellant. Appellant was informed the appeal would be dismissed unless it filed a response on or before September 6, 2010, showing meritorious grounds for continuing the appeal.

Appellant filed no response. Accordingly, the appeal is ordered dismissed.


author: LESLIE B. YATES, Justice.

text:
    JONG IK WON, Appellant, v. Francisco P. FERNANDEZ, Appellee.
    No. 14-09-00781-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 30, 2010.

      Stuart N. Wilson, Houston, for appellant.
    Robert A. Kouts, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellant Jong Ik Won appeals from the trial court’s order granting summary judgment that the execution sale at which he purchased real property owned by appellee Francisco P. Fernandez was void. We reverse and remand.

In 2003, a default judgment was rendered against Fernandez in favor of Pablo Betancourt. To satisfy the judgment, Be-tancourt instituted procedures to have an execution sale of a piece of real property owned by Fernandez. A constable conducted the execution sale, and Won bought the property at the sale and then properly recorded the deed.

Fernandez filed a suit against Won to declare the execution sale void. Fernandez asserted many grounds to invalidate the sale and chose to move for summary judgment on the ground that the sale was void because Betancourt had not obtained a judgment hen by filing and recording an abstract of judgment in the county clerk’s records before initiating the execution. The trial court granted the motion, and this appeal followed. In two interrelated issues, Won argues that the trial court erred in granting summary judgment because a judgment lien is not necessary for a valid execution sale. We agree.

Execution is a method of enforcing a judgment. See Tex.R. Civ. P. 621; In re Andrews, 239 F.3d 708, 711 (5th Cir.2001). To initiate an execution, a judgment creditor must obtain from a court a writ of execution that meets certain requirements and deliver it to a sheriff or constable. See Tex.R. Civ. P. 622, 629. The officer then levies on the property described in the writ of execution, usually by taking possession of the property (if personal property) or endorsing the writ (if real property). See Tex.R. Civ. P. 637, 639; In re Andrews, 239 F.3d at 711. If the officer then follows all appropriate procedures, such as providing notice to the property owner, the property may be sold to satisfy the judgment. See Tex.R. Civ. P. 646a-650; In re Andrews, 239 F.3d at 711.

Fernandez argues that the execution sale is void because Betancourt, the judgment creditor, did not file and record an abstract of judgment to create a judgment lien and without a lien, the officer had no authority to sell the property. Fernandez is correct that filing and recording an abstract of judgment creates a judgment lien as to the judgment debtor’s real property. See Tex. PROp.Code Ann. § 52.001 (West Supp.2009); Gary E. Patterson & Assocs., P.C. v. Holub, 264 S.W.3d 180, 193-94 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). It is undisputed that Betancourt did not obtain a judgment lien. However, a judgment lien is not a prerequisite to an execution sale to satisfy a judgment. See Tex.R. Civ. P. 621-656 (setting forth execution procedures; judgment lien never referenced); Clint Indep. Sch. Dist. v. Cash Invs., Inc., 970 S.W.2d 535, 537 (Tex.1998) (“A valid judgment, execution, and sale are required to pass title to property at an execution sale.”). Fernandez is correct that execution is a proper method to enforce a judgment lien, but he cites no authority for his theory that a judgment lien is necessary for a valid execution sale. Fernandez insists that an officer has no authority to sell another’s property without a lien, but the writ of execution gives the officer authority, and the levy in the execution process creates an execution lien. See Tex.R. Civ. P. 629, 637, 639; Tex. Employers’ Ins. Ass’n v. Engelke, 790 S.W.2d 93, 95 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (“A valid levy of an execution creates a lien on the debtor’s property in favor of the judgment creditor.”); James v. Eagle Rock Ranch, 304 S.W.2d 471, 476 (Tex.Civ.App.-Austin 1957, no writ) (noting that a creditor may obtain a lien by either levy of execution or recording an abstract of judgment). Therefore, a judgment lien is not necessary to give the officer authority to act.

The execution deed recites that all execution procedures were followed, and that has not been challenged for purposes of this appeal. The execution sale was not invalid because Betancourt did not obtain a judgment lien, and the trial court erred in granting summary judgment on this basis. We sustain Won’s issues, reverse the trial court’s judgment, and remand for further proceedings consistent with this opinion.

      . Because a judgment lien only applies to real property, see Tex. Prop.Code Ann. § 52.001, it would be impossible to have a judgment lien as a prerequisite for an execution sale of personal property.

      . See, e.g., Baker v. West, 120 Tex. 113, 36 S.W.2d 695, 697 (1931) (noting the well-settled law that a judgment lienholder can foreclose on a judgment lien in an independent suit or through an execution sale).

      . A judgment lien and execution lien work together. If a judgment creditor obtains a judgment lien and then executes on the judgment, the date of the execution lien relates back to the date of the judgment lien, thereby giving the judgment creditor priority over other creditors with claims arising after the date of the judgment lien. See Onyx Ref. Co. v. Evans Prod. Corp., 182 F.Supp. 253, 256 (N.D.Tex.1959); Hugh M. Ray & Robin Russell, Tex. Practice Guide: Creditors Rights §§ 9:47, 10:76 (2009).

      .We express no opinion regarding any other grounds that Fernandez may later assert to attempt to invalidate the execution sale.


author: TRACY CHRISTOPHER, Justice.

text:
    CHCA WEST HOUSTON, L.P. d/b/a West Houston Medical Center, Appellant, v. Nicole PRIESTER, Appellee.
    No. 14-09-01077-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 7, 2010.

      John Christopher Dunne, Robert Eugene Bell, Houston, for appellant.
    Robert R. Luke, John S. Serpe, Houston, for appellee.
    Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

In this interlocutory appeal of an order denying a motion to dismiss, the appellant health care provider contends that the trial court was required to dismiss the claims against it because the claimant failed to serve the provider with expert reports within 120 days after filing an original petition against a different defendant in separate suit. We affirm.

I. Factual and Procedural Background

On June 16, 2008, Nicole Priester sued Anthony Ademolu in Harris County Civil Court at Law No. 4 for sexual assault and intentional infliction of emotional distress. The assault allegedly occurred while Pries-ter was a patient at West Houston Medical Center, where Ademolu was employed as a technician. Counsel for Priester and Ade-molu agreed on the record that Priester’s suit did not assert a health care liability claim and that Ademolu would not require Priester to comply with the procedures for such claims as set forth in Chapter 74 of the Civil Practices and Remedies Code.

On March 27, 2009, Priester filed a separate lawsuit in a Harris County district court against CHCA West Houston, L.P. d/b/a West Houston Medical Center (“CHCA”). Within 120 days after filing suit against CHCA in the district court, Priester served CHCA with three expert reports. CHCA moved to dismiss the claims against it, arguing that Priester was required to serve it with expert reports within 120 days after suing Ademolu in the county civil court at law. The district court denied the motion, and CHCA brought this interlocutory appeal.

II. Governing Law

Within 120 days of filing the original petition in a health care liability suit, the claimant must serve each party with one or more expert reports, together with the curriculum vitae of each expert listed in the report. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2009). For each physician or health care provider against whom a health care liability claim is asserted, the report must provide a fair summary of the expert’s opinions as to the applicable standard of care; the manner in which the care provided failed to meet that standard; and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If the claimant fails to timely serve a defendant physician or health care provider with an expert report, the trial court must grant the defendant’s motion to dismiss the claim with prejudice. Id. § 74.351(b).

When reviewing a trial court’s ruling on such a motion to dismiss, we apply the abuse-of-discretion standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Id. We defer to the trial court’s factual determinations, but review questions of law de novo. Id. Thus, to the extent resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Id.

To interpret a statute, we must ascertain and give effect to the legislature’s intent as expressed in the statute’s language. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex.2010). In doing so, we use the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. Tex. Gov’t Code Ann. § 311.011(b) (Vernon 2005). Otherwise, we apply the words’ plain and common meaning unless the legislature’s contrary intention is apparent from the context or such a construction would lead to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). We presume that the legislature intended a just and reasonable result. Tex. Gov’t Code Ann. § 311.021(3). Moreover, “in interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” Tex. Gov’t Code Ann. § 312.005. Thus, even when interpreting an unambiguous statute, we may consider the statute’s object, the circumstances of its enactment, legislative history, and former statutory provisions. Tex. Gov’t Code Ann. § 311.023.

III. Analysis

CHCA contends that the petition Pries-ter filed in her earlier suit against Ademo-lu contained health care liability claims, and thus, she was required to serve CHCA with expert reports within 120 days after suing Ademolu in the county civil court at law, even though CHCA was not a party to that action. CHCA’s argument is based in part on section 74.351(a), which provides as follows:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.

Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2009) (emphasis added). An earlier version of this section provided that expert reports were to be served “not later than the 120th day after the date the claim was filed.” Citing Methodist Charlton Medical Center v. Steele, CHCA argues that the legislature “clearly intended to make Chapter 74’s expert report requirements more stringent when it amended the statute in 2005.” See 274 S.W.3d 47 (Tex.App.-Dallas 2009, pet. denied). According to CHCA, this change required Priester to serve CHCA with an expert report within 120 days of suing Ademolu, even though CHCA was never a party to any litigation with Priester during that time.

We need not address the parties’ dispute as to whether Priester previously asserted a health care liability claim against Ademolu because even if she did, such allegations would not have triggered a duty that Priester serve CHCA with an expert report. The filing of an original petition does not “start the clock” for the claimant to serve expert reports on health care providers whom the claimant has never named as a party. The 2005 amendment to section 74.351(a) clarifies when an expert report must be served, not who must be served. See S. Comm, on State Affairs, Bill Analysis, Tex. H.B. 2645,79th Leg., R.S. (2005); H. Comm. On Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg., R.S. (2005). Both before and after the amendment, claimants were required under section 74.351(a) to serve expert reports “on each party or the party’s attorney.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added). Both before and after the amendment, expert reports have been required as to “each physician or health care provider against whom a liability claim is asserted.” Id. (emphasis added). Both before and after the amendment, the consequence for failure to timely serve parties with an expert report “as to a defendant physician or health care provider” has been that, on such a defendant’s motion, the trial court must enter an order that awards the defendant “reasonable attorney’s fees and costs of court” and “dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.” Id. § 74.351(b) (emphasis added). Thus, treating the filing of an “original petition” as triggering a duty to serve expert reports on nonparties would be inconsistent with the remainder of the statute.

In arguing that the trial court abused its discretion by failing to dismiss Priester’s claims against it, CHCA cites cases in which courts have held that a plaintiff in a health care liability suit cannot restart the statutory deadline to file an expert report by (a) nonsuiting and refiling the same claims against the same defendant, (b) amending the petition to assert the same claims against the same defendant or (c) amending the petition to add additional health care liability claims to those already asserted against a particular defendant. In each of these cases, however, courts in effect held that the statutory deadline to serve the parties to a suit with expert reports concerning a particular health care provider’s conduct is measured from the date that the plaintiff first made that provider a defendant in a health care liability lawsuit.

Such cases are readily distinguishable from the circumstances presented here. It is undisputed that Priester served CHCA with expert reports within 120 days after filing the original petition in this, her original lawsuit against CHCA, and CHCA cites no case in which a court has held that in amending section 74.351(a), the legislature intended to require a claimant to serve expert reports to a health care provider before the claimant has made the provider a party to any suit. To the contrary, even when a defendant health care provider has been added to a pending suit by amendment of the petition, courts consistently have held that expert reports as to the claims against that defendant must be filed within 120 days after an amended petition first added that provider to the case. See, e.g., Daybreak Cmty. Servs., Inc. v. Carbrite, 320 S.W.3d 865, 871-73 (Tex.App.-Amarillo 2010, no pet.); Hayes v. Carroll, 314 S.W.3d 494, 501 (Tex.App.Austin 2010, no pet.); Stroud v. Grubb, — S.W.3d -, -(Tex.App.-Houston [1st Dist.] 2010, pet. filed); Arizpe v. Wilcox, No. 04-09-00408-CV, 2010 WL 1708285, at *3 (Tex.App.-San Antonio Apr. 28, 2010, pet. filed) (mem.op.); Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 85 (Tex.App.-Corpus Christi 2010, no pet.); Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *2 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem.op.). The reasoning of those cases apply here with even more force because the first pleading to assert claims against CHCA was also the original petition in the case.

We overrule the sole issue presented in this appeal and affirm the trial court’s ruling denying CHCA’s motion to dismiss.

      . After filing suit against CHCA in district court, Priester nonsuited her claims against Ademolu in the county civil court at law and amended her district court petition to add him as a defendant. There she reasserted her claims against Ademolu for assault and intentional infliction of emotional distress, adding allegations that his conduct was performed in the course, and scope of his employment. The expert reports were served on Ademolu as well as CHCA, and no issues are presented to us concerning the claims pending in the district court against him.

      . The defendant may be served directly or through counsel. Id.

      . Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (emphasis added), amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (eff. Sept. 1, 2005).

      . In Steele, the plaintiffs timely served expert reports on the defendants named in their original petition. Id. at 48. They amended the petition to add Methodist Charlton Medical Center as a defendant and served Methodist with expert reports 147 days after filing their original petition against the other defendants. Id. at 48-49. Significantly, the timeliness of those reports was not at issue in the appeal. The plaintiffs then amended the petition a second time, adding claims against all of the defendants 236 days after the original petition was filed, but produced no further expert reports. Id. at 49. In reversing the trial court’s denial of the defendants’ motion to dismiss the latest claims, the Fifth Court of Appeals explained that although ”[t]he plain language of the statute ... requires such a report for each health care liability claim,” it was undisputed that the plaintiffs "failed to serve expert reports on appellants with respect to those claims” added in their second amended petition. Id. at 50 (emphasis in original). Thus, the facts in Steele are distinguishable from those presented here. Moreover, the Steele court's conclusion was not dependent on the 2005 amendment to section 74.351(a), as is illustrated by the fact that, in support of its conclusion, the court cited section 74.351(b) — which was not amended in 2005 — and cases decided under earlier versions of 74.351(a) as well as those decided under the current version. See id. (citing Poland v. Grigore, 249 S.W.3d 607, 613-14 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (former version of section 74.351), Maxwell v. Seifert, 237 S.W.3d 423, 426 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (current version of section 74.351), and Puls v. Columbia Hosp. at Med. City Dallas, 92 S.W.3d 613, 617 (Tex.App.-Dallas 2002, pet. denied) (former version of section 74.351)).

      . The parties to that suit agreed that Priester had not asserted health care liability claims against Ademolu, and they entered a Rule 11 agreement that Ademolu would not raise any failure to comply with the procedures prescribed in Chapter 74 as a defense to the allegations in Priester’s petition. See Tex.R. Civ. P. 11.

      . In each Bill Analysis, the respective authoring committee wrote,
      [T]here has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of HB 4 that the report be triggered by the filing of the lawsuit.
      [The amendment] clarifies the timing of when an expert report is due on a medical malpractice case.

        .See, e.g., Mokkala, 178 S.W.3d at 67; accord, White v. Baylor All Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL 1361612, at *1 (Tex.App.-Amarillo 2009, pet. denied) (mem. op.) (same); Runde v. Foley, 274 S.W.3d 232, 235 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (same); Daughtery v. Schiessler, 229 S.W.3d 773 (Tex.App.-Eastland 2007, no pet.) (same).

      . See Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex.App.-Dallas 2009, no pet.). In Lone Star, plaintiffs amended their petition twice before they successfully served a particular defendant health care provider, and the court held that difficulty in serving the defendant did not extend the deadline to serve an expert report to the defendant. Id.

      . See Maxwell, 237 S.W.3d at 426.