author: G. ALAN WALDROP, Justice.

text:
    Russell SILVERMAN, Appellant, v. Damaris JOHNSON, Appellee.
    No. 03-09-00143-CV.
    Court of Appeals of Texas, Austin.
    July 15, 2010.

      William Dean Crist, Christopher J. Weber, Christopher J. Weber, L.L.C., San Antonio, TX, for appellant.
    Barbara Gayl Ancira, Law Offices of Barbara Gayl Ancira, P.C., Bulverde, TX, for appellee.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

This is a suit affecting the parent-child relationship. After the district court entered a final divorce decree, appellant Russell Silverman filed a petition to modify the prior order as well as a motion to transfer venue pursuant to section 155.201 of the Texas Family Code. See Tex. Fam.Code Ann. § 155.201(b) (West 2008) (providing that, on timely motion, court shall transfer proceeding to county in which child has resided for six months or longer). The district court dismissed Silverman’s petition based on his failure to comply with a condition precedent for filing an action for modification as set out in the divorce decree. We hold that it was an abuse of discretion to dismiss the suit when transfer was required by statute. We reverse and remand.

Silverman and appellee Damaris Johnson divorced in March 2006. The parties entered an agreed divorce decree appointing Johnson as the sole managing conservator of the couple’s 11-year-old son R.S., and Silverman as possessory conservator.

The decree included the following provision:

It is agreed that prior to the Respondent being able to sustain any action in court for modification of conservator-ship, custody or the terms and conditions for visitation, Russell Scott Silver-man shall pay a sum of five thousand dollars ($5000.00) to Damaris Jeanette Silverman for her initial attorneys’ fees in defending such a suit. If Russell Scott Silverman brings an action for modification without first paying Damar-is Jeanette Silverman five thousand dollars ($5000.00), his action will be promptly dismissed with prejudice, sanction Russell Scott Silverman and the attorney who represents him bringing this suit and a judgment entered against Russell Scott Silverman for all of the attorney’s fees incurred by Damaris Jeanette Silverman.

On January 9, 2009, Silverman filed a petition to modify the parent-child relationship. However, Silverman did not make the $5,000 payment required by the divorce decree. Also on January 9, Silver-man filed a motion to transfer the proceeding to Harris County based on the fact that Johnson and R.S. had moved and R.S.’s county of residence had changed.

Johnson filed a motion to dismiss and for sanctions before the Comal County court. Johnson’s request for dismissal was based on Silverman’s non-payment of the $5,000 required by the divorce decree. Her request for sanctions was based on the non-payment of the $5,000 as well as her allegations that Silverman had failed to properly serve his petition on Johnson and that the petition to modify was frivolous. Following a hearing on February 12, 2009, the district court granted Johnson’s motion, dismissed Silverman’s petition with prejudice, and imposed sanctions of $3,500 on Silverman and $1,000 on his attorneys. Silverman appeals.

Silverman argues that the district court erred in ruling on Johnson’s motion to dismiss and for sanctions instead of transferring venue of the case in accordance with Silverman’s motion to transfer. After entering the final decree of divorce in 2006, the Comal County district court generally retained continuing, exclusive jurisdiction of this matter due to its being a suit affecting the parent-child relationship. See Tex. Fam.Code Ann. §§ 155.001, .002 (West 2008). However, if a suit to modify an order is filed in the court having continuing, exclusive jurisdiction and the child has resided in another county in Texas for six months or longer, the court “shall” transfer the proceeding on the timely motion of a party. Id. § 155.201(b). Johnson does not dispute that Silverman’s motion to transfer was timely, see id. § 155.204(b) (West Supp. 2009), or that R.S. has resided in Harris County for longer than six months. Thus, transfer of this matter was mandatory. See id. § 155.201(b). However, Johnson contends that the district court had authority to enforce its prior order — even with the result being dismissal with prejudice — prior to entering an order on the motion to transfer.

We review a trial court’s denial of a motion to transfer venue de novo. See Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 347 (Tex.App.-San Antonio 2007, pet. denied) (citing Wilson v. Texas Parks & Wildlife Dep’t, 886 S.W.2d 259, 260-62 (Tex.1994)). However, the district court did not rule on the motion to transfer, but granted Johnson’s motion to dismiss instead. Silverman had sought to stay the district court’s consideration of the motion to dismiss until the venue issue was resolved, but before ruling on the motion to dismiss the district court denied Silverman’s motion to stay. Because the decision to deny a motion to stay is within the discretion of the trial court, and the alleged error is the district court’s granting a case-dispositive motion before entering an order on the motion to transfer, we review the district court’s grant of Johnson’s motion to dismiss based on an abuse of discretion standard. See Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 291 (Tex.App.-Houston [1st Dist.] 1992, no writ). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 288, 241-42 (Tex.1985).

Improper venue, when timely challenged, is reversible error. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (West 2002) (“On appeal from the trial on the merits, if venue was improper it ... shall be reversible error.”); Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 658, 666 (Tex.App.-Dallas 2008, no pet.) (“Even mandatory venue provisions can be waived.”). The Texas Supreme Court has held that transfer of a case to a county where the child has resided for more than six months is a “mandatory ministerial duty.” Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987); see also Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex.1996) (“When considering venue, we have noted that the Legislature’s use of the word ‘shall’ in a statute generally indicates the mandatory character of the provision.”).

Notwithstanding the fact that transfer was mandatory, Johnson contends the district court had authority under section 155.004 of the family code to “enforce its order for a violation that occurred before the time continuing, exclusive jurisdiction was lost under this section.” Tex. Fam.Code Ann. § 155.004(b) (West 2008). The district court’s dismissal and imposition of sanctions was done pursuant to the terms of the 2006 divorce decree previously entered by the court. However, the loss of continuing, exclusive jurisdiction — resulting from the transfer of this case to Harris County — would not have occurred pursuant to section 155.004. See id. § 155.004(a). The statute governing the court’s jurisdiction pending transfer is family code section 155.005. Section 155.005 provides that “[d]uring the transfer of a suit from a court with continuing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders.” Id. § 155.005(a) (West 2008). While section 155.005 does not expressly state that the court cannot render permanent orders, the more reasonable construction is that when transfer is to occur — particularly when mandatory venue lies in a different court — the transferring court’s actions should be limited to temporary matters so that the court with continuing jurisdiction can make the permanent decisions. The order of dismissal entered by the district court in this case was not a temporary order.

Moreover, we note that the transferring court’s abstaining from enforcing its prior order due to a pending mandatory transfer will not nullify the effect of such order. The family code states:

(a) A court to which a transfer is made becomes the court of continuing, exclusive jurisdiction and all proceedings in the suit are continued as if it were brought there originally.
(b) A judgment or order transferred has the same effect and shall be enforced as if originally rendered in the transferee court.
(c) The transferee court shall enforce a judgment or order of the transferring court by contempt or by any other means by which the transferring court could have enforced its judgment or order. The transferee court shall have the power to punish disobedience of the transferring court’s order, whether occurring before or after the transfer, by contempt.

Id. § 155.206(a)-(c) (West 2008). Therefore, after transfer, the Harris County district court will have the authority to entertain Johnson’s motion to dismiss and for sanctions.

We conclude that the district court abused its discretion in dismissing Silver-man’s suit when his timely filed motion to transfer was pending and such transfer was a mandatory ministerial duty. See Proffer, 734 S.W.2d at 673. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

      . This is not the first time that the parties have been before this Court. See, e.g., Silverman v. Johnson, No. 03-08-00271-CV, 2009 WL 2902716, 2009 Tex.App. LEXIS 7176 (Tex.App.-Austin Aug. 26, 2009, no pet.) (mem. op.) (affirming judgment on Silver-man's motion to modify parent-child relationship filed in February 2008); In re Silverman, No. 03-09-00074-CV, 2009 WL 1099197, 2009 Tex.App. LEXIS 2854 (Tex.App.-Austin Apr. 24, 2009) (orig. proceeding) (mem. op.) (requiring Johnson's attorney’s petition for enforcement and contempt, filed in October 2008, to be transferred to Harris County).

      . The hearing on Johnson’s motion to dismiss was held after the last date for her to have filed a "controverting affidavit” contesting the motion to transfer. See Tex. Fam.Code Ann. § 155.204(d) (West Supp. 2009). No affidavit was filed controverting Silverman’s allegation that R.S. has resided in Harris County for longer than six months. Thus, at that point, the proceeding was required to be transferred to the proper court without a hearing on the motion to transfer. See id. § 155.204(c).

      . Having sustained Silverman's first point on appeal, we need not address his second point on appeal.


source: Caselaw Access Project

author: SUE WALKER, Justice. LEE ANN DAUPHINOT, Justice,

license: Public Domain

text:
    Angie HANSON and Joe Hanson, Appellants, v. GREYSTAR DEVELOPMENT & CONSTRUCTION, LP; Houston Stafford Electrical Contractors; Multi Building Incorporated; WLA Vista Ridge V LP; WLA Vista Ridge GP V LLC; Cottonwood Real Estate Limited Partnership; Laramar Management Services LLC; Gables Residential Services Inc.; Walton Street Capitol, LLC; WLA Apartment Holdings V, LP; and WLA Vista Ridge GP Capital V, LLC, Appellees.
    No. 2-09-397-CV.
    Court of Appeals of Texas, Fort Worth.
    July 15, 2010.

      James A. Fisher, Fisher & Holmes, Dallas, for appellant.
    Lee L. Cameron, Jr., Jennafer G. Gro-swith, Wilson Elser Moskowitz Edelman & Dicker, LLP, Greg Winslett, Matt Pickel-man, Matthew Kita, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, Richard Rutledge, Rachel LeMay, The Woodlands, Dean J. Siotos, Henslee Schwartz, LLP, John Pease, Byron Henry, Cowles & Thompson, P.C., Dallas, for appellee.
    PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
   OPINION

SUE WALKER, Justice.

I.INTRODUCTION

This is a summary judgment appeal. The trial court granted summary judgments for Appellees Greystar Development & Construction, LP; Houston Stafford Electrical Contractors; Multi Building Incorporated; WLA Vista Ridge V LP; WLA Vista Ridge GP V LLC; Cottonwood Real Estate Limited Partnership; Laramar Management Services LLC; Gables Residential Services Inc.; Walton Street Capitol, LLC; WLA Apartment Holdings V, LP; and WLA Vista Ridge GP Capital V, LLC. Appellants Angie Hanson and Joe Hanson perfected this appeal.

II.Procedural and Factual Background

Angie and Joe Hanson were tenants in apartment 822 of The Villas of Vista Ridge in Lewisville. A stairway connecting apartment 822 to its attached garage was not built in accordance with the architect’s plans and did not comply with the City of Lewisville’s building code, and a prior tenant of apartment 822 had filed a written complaint that the stairway was dirty, wet, and made of untreated wood. Mrs. Hanson fell down the stairs and suffered life-threatening injuries. She is unable to remember how, why, or where in the stairwell she fell. Neither of the Hansons know whether the light in the stairwell was on or off when Mrs. Hanson fell. The Hansons subsequently sued Appellees, who are the contractors and subcontractors responsible for building The Villas of Vista Ridge and the current and former property managers of The Villas.

III.Summary Judgment Standards of Review

A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). The movant must specifically state the elements as to which there is no evidence. Tex.R. Civ. P. 166a(i). The burden then shifts to the nonmovant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. We view the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences in determining whether the nonmovant has produced evidence raising a genuine issue of material fact. King Ranch, 118 S.W.3d at 751.

In pursuing a traditional motion for summary judgment, the movant bears the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e). We review the motion and the evidence de novo, taking as true all evidence favorable to the nonmovant, indulging every reasonable inference, and resolving any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When, as here, the trial court does not specify the grounds on which the judgment is based, we will affirm the judgment if it is correct on any legal theory expressly placed at issue and supported by the evidence. Tex.R. Civ. P. 166a(c) (stating that issues must be “expressly set out in the motion or in an answer or any other response”); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam) (holding that when the grounds for the ruling are not specified, we affirm “if any of the theories advanced are meritorious”).

IV. No Evidence of Proximate Cause or tiie Absence of Proximate Cause Conclusively Established

Each Appellee filed either a traditional or a no-evidence motion for summary judgment on the issue of causation. Viewing the summary judgment record in the light most favorable to the Hansons, it establishes that Mrs. Hanson has no recollection of how she fell, that neither Joe nor anyone else saw her fall, and that no one knows whether the lights in the stairwell were turned on when she fell.

As summary judgment evidence, the Hansons filed an expert report from Jim Sealy, an architect. Mr. Sealy inspected the stairway in question and determined that variances in the risers exceeded those allowed by the building code. He also determined that the stairway’s illumination did not comply with the 1997 Uniform Building Code or the 2000 International Building Code. Mr. Sealy’s report indicates that in forming his opinions he relied upon a book called The Staircase written by Dr. Templer which explains that most stairway falls occur either on the first three steps on the stairway or on the last three steps. Mr. Sealy’s report indicates that the first three stairs on the stairway in question are of irregular height, but it does not mention the last three stairs. Mr. Sealy concluded,

Based on my visual inspection of the stairway in question and based upon [my] education, training and experience, as an architect, a designer of stairways and as a writer and interpreter of building codes and standards, it is my opinion that Mrs. Joe Hanson lost her balance and fell on the garage stairway of her apartment at the Villas at Vista Rose [sic] in Lewisville, Texas. It is also my opinion that Mrs. Hanson lost her balance and fell because of the inadequate lighting and irregular dimensions of the stairway upon which she was walking and those inadequacies and irregularities contributed to Mrs. Hanson overstepping a tread and that ultimately resulted in her loss of balance and her fall.
Further, it is my opinion that had the stairway been properly illuminated and had the risers (steps) been regular in their dimension Mrs. Hanson would not have lost her balance and she would not have fallen and been injured.

As additional summary judgment evidence, the Hansons attached Mr. Sealy’s deposition to their summary judgment response. In his deposition, Mr. Sealy testified as follows:

Q. And the fact of the matter is, whether you want to rely on Dr. Tempter’s statistical or analytical research [in The Staircase ], you are in possession of no factual information whatsoever, to indicate where, if anywhere, on that stairway Mrs. Hanson fell, correct?
A. ■ That’s correct.
Q. Okay. Jump to the last page of your November 2007 report. I think we’ve covered this, but I just want to go ahead and make sure that we make sure that we’ve talked about it. First paragraph, middle of the first sentence: “It is my opinion that Mrs. Joe Hanson lost her balance and fell on the garage stairway of her apartment at the Villas of Vista rose — Vista Ridge — in Lewisville, Texas.” Did I read that correctly?
A. Yes.
Q. Okay. And again, you have no factual information, upon which to base that opinion, other than the husband of a nonresponsive woman who told you that that’s where she fell, correct?
A. Yes.
Q. Okay. Next sentence: “It is also my opinion that Mrs. Hanson lost her balance and fell because of the inadequate lighting.” I’m going to stop there.
You have no factual information whatsoever in your possession, do you, sir, to suggest that Mrs. Hanson fell anywhere because of inadequate lighting?
A. Correct.
Q. Okay. To continue on: “And irregular dimensions of the stairway upon which she was walking.” I’m going to stop there.
Isn’t it true, Mr. Sealy, that you have no factual information in your possession, upon which to rely, to suggest that Mrs. Hanson, if she fell, fell on that stairway because of irregular dimensions of the stairway, upon which she was walking?
A. Correct.
Q. Continuing on: “And those inadequacies and irregularities contributed to Mrs. Hanson overstepping the tread, and that ultimately resulted in her loss of balance and her fall.” Did I read that correctly?
A. Yes.
Q. And isn’t it true, Mr. Sealy, that you have no factual information, upon which to rely, to conclude that Mrs. Hanson, if she fell, fell because she overstepped a tread and lost her balance?
A. Correct.

Appellees claim that Mr. Sealy’s conclusion in his report that the poor illumination and irregularities in the steps caused Mrs. Hanson to fall constitutes pure speculation and conjecture, especially in light of the above deposition testimony attached to Appellants’ summary judgment response.

An expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009) (quoting Burrow v. Arce, 997 S.W.2d 229, 285 (Tex.1999)); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999). An expert’s conclusory statements are insufficient to raise a fact question to defeat summary judgment. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex.2004); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997) (holding conclu-sory statements by an expert are not sufficient to support or defeat summary judgment). Instead, an expert’s opinions must be supported by facts in evidence, not merely conjecture. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam). That is, an expert’s opinions cannot rest on the expert’s subjective interpretation of the facts. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex.2010). A party may complain that conclu-sory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony. See Pollock, 284 S.W.3d at 816.

Here, no facts exist in the summary judgment record that support Mr. Sealy’s opinions and conclusions that Mrs. Hanson fell on the stairs because of the irregularities in them or because of inadequate lighting. Consequently, Mr. Sealy’s conclusions, based on speculation and conjecture, constitute no evidence and will not defeat a summary judgment. See IHS Cedars Treatment Ctr., 143 S.W.3d at 803; see also Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (explaining that when an expert’s opinion is based upon assumed facts that vary materially from the actual undisputed facts, the opinion is without probative value).

The law is well settled that testimony such as Mrs. Hanson’s — that she did not know or recall how she fell — is insufficient to raise a fact issue on proximate cause. See, e.g., Excel Corp. v. Apodaca, 81 S.W.3d 817, 820-21 (Tex.2002) (holding no evidence existed to support jury’s cause-in-fact proximate cause finding because “at best, Apodaca offered evidence that he suffered work-related injuries, but presented no proof that if Excel had done something different at the worksite, Apo-daca would not have been injured or would not have been injured as severely”); Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25-27 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (affirming summary judgment for defendant after plaintiffs son fell from balcony because no evidence existed that alleged inadequate height of balcony railing “had anything to do with [sonj’s fall”); Hopper v. J.C. Penney, 371 S.W.2d 750, 752-53 (Tex.Civ.App.-Fort Worth 1963, writ ref'd n.r.e.) (holding no evidence of proximate cause existed and affirming directed verdict for defense when plaintiff admitted that she did not know what caused her to fall down stairway because appellate court was “left to speculate whether her hand failed to reach the handrail toward which she was reaching, or grasped the same only to have her hand slip; whether she missed the first step or stepped thereupon only to have her foot slip, her ankle turn, her heel or toe to catch in some obstruction, etc.”).

We agree with the Hansons that in this summary judgment proceeding, they were not required to negate the possibilities of other causes of Mrs. Hanson’s fall. See generally Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 621 (1950). We do not impose this burden upon them; instead, we review the summary judgment evidence in the light most favorable to them to determine whether a genuine issue of material fact exists on the proximate cause element of their causes of action against Appellees. The summary judgment record before us is simply void of any direct or circumstantial evidence or any reasonable inferences from the summary judgment evidence that any problem with the stairs was the cause in fact of Mrs. Hanson’s fall. The summary judgment evidence conclusively establishes that no one knows how, why, or where in the stairwell Mrs. Hanson fell.

Accordingly, because each Appellee moved for summary judgment — either traditional or no-evidence summary judgment — on the ground that no genuine issue of material fact existed with regard to the proximate cause element of the Han-sons’ claims against it and because each of the claims asserted by the Hansons against each of the Appellees requires proof of proximate cause, we affirm the trial court’s summary judgments for each of the Appellees on this ground. See, e.g., Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989) (instructing us that if trial court’s summary judgment does not specify the grounds upon which it is granted, we are to affirm the judgment if any of the theories advanced are meritorious). We overrule the Hansons’ sole issue claiming that the trial court erred by granting summary judgments for Appellees.

V. Conclusion

Having determined that Appellees’ no-evidence and traditional summary judgment motions — which challenge the proximate cause element of all of the Hansons’ causes of action against Appellees — are meritorious, we affirm the trial court’s summary judgments. Because we affirm the trial court’s summary judgments on this basis, we need not address the Han-sons’ challenges to the other grounds on which the trial court’s summary judgments could have been based.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

In a civil trial, a plaintiff must prove her ease by a preponderance of the evidence. In response to a no-evidence summary judgment motion, however, a plaintiff need only produce enough evidence on a challenged element to raise an issue of fact. Because I believe that the Hansons produced sufficient evidence on causation to defeat a no-evidence motion for summary judgment, I respectfully dissent.

The “cause in fact” element of proximate cause requires proof that the negligent act or omission complained of was a substantial factor in bringing about the harm at issue. Even when it is undisputed that negligence has occurred, the plaintiff must put on proof of a causal link between the negligence and the injuries complained of. A plaintiff may use circumstantial evidence to establish causation.

The Hansons produced evidence that not only were the edges of the treads on the stairs irregular throughout the stairway, but they were also unpainted or otherwise marked, so that they blended together visually, making it difficult for someone to identify the edge of the tread. On top of that, the stairway did not have adequate light. Common sense and the average lay person’s own experience is all that is necessary to provide the requisite knowledge that any of the conditions of which the Hansons complain make stairs unsafe, let alone the combination of the conditions. Unfortunately, there were no witnesses, and so other than Angie’s own testimony, no evidence could definitively establish the cause of her fall. But Angie’s injuries were so severe that she now has no memory of what caused her to fall. The Han-sons did, however, produce evidence showing not only that the stairs did not conform to building codes, but that the particular conditions of the stairs are known causes of stair falls.

A fact finder may draw inferences from the evidence. And courts have, in limited cases, allowed the fact finder to find causation based on an inference drawn from the evidence.

[I]f a cause is shown that might produce an event and it being shown that an event of that particular character did occur, it may be inferred that the known possibility produced the result. Plaintiff is not required to exclude an appreciable chance that the event might have occurred in some other way. Expressed otherwise, a conclusion of causal connection may be inferred by a balance of probabilities.

Because the Hansons produced some evidence showing (1) that the stairs were in a certain condition, (2) that the condition is a known cause of stair falls, and (3) that someone did fall, they therefore produced some evidence from which a fact finder could infer that the condition of the stairs caused the fall. This evidence was sufficient to raise a genuine issue of fact on causation.

This case is unlike other situations in which the injuries complained of could have any number of possible causes, each just as likely as any other, or a case in which there was evidence of other obvious potential causes. The Hansons produced evidence, not just of conditions that might cause someone to fall, but of conditions known to cause falls. In fact, building codes prohibit these kinds of conditions precisely because they are known to be dangerous and to cause falls. Thus, there was evidence of a condition that was known to be dangerous and known to produce a certain result — falling—and no evidence of any other obvious cause of Angie’s fall. The Hansons therefore had no need to produce evidence discounting other possible causes of the fall. By balancing the probability that the condition of the stairs caused the fall against the probability that some unknown factor, the existence of which there was no evidence, caused the fall, a fact finder could infer that it was more likely than not that the stairs’ condition caused the fall. I would therefore hold that under these limited facts, the Hansons produced sufficient evidence on causation to at least raise an issue of fact and defeat no-evidence summary judgment. Accordingly, I respectfully dissent.

      . The portions of The Staircase attached to Mr. Sealy’s report also list user behavior factors known to cause stair falls including hurrying, running, having a slow gait, not paying attention, being distracted, and carrying things. Thus, this source recognizes that in addition to any stair defects these user behaviors may cause stair falls.

      . Tex.R. Civ. P. 166a(i).

        . Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex.2009); Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex.2008).

      . Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex.2007); Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex.2004).

      . B. M. & R. Interests v. Snyder, 453 S.W.2d 360, 363-64 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.).

      . See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 757 (Tex.1975) (allowing the juiy to infer that the plaintiff had taken certain actions based on direct evidence of the plaintiff's characteristic behavior), abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978).

      . Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 337 (Tex.Civ.App.-Houston 1959, no writ); see also Davis v. Anderson, 501 S.W.2d 459, 463 (Tex.Civ.App.-Texarkana 1973, no writ); Bohn Bros. v. Turner, 182 S.W.2d 419, 422-23 (Tex.Civ.App.-Austin 1944, writ ref'd w.o.m.).

      . See Davis, 501 S.W.2d at 463; Collier, 322 S.W.2d at 337; Bohn Bros., 182 S.W.2d at 422-23.

      . Cf. Hang On II, Inc. v. Tuckey, 978 S.W.2d 281, 284 (Tex.App.-Fort Worth 1998, no pet.); Hopper v. J.C. Penney Co., 371 S.W.2d 750, 752-53 (Tex.Civ.App.-Fort Worth 1963, writ ref'd n.r.e.).

      . See Collier, 322 S.W.2d at 337; cf. Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839-40 (Tex.2010).

      . Cf. Merrell, 313 S.W.3d at 839-40.


author: LESLIE B. YATES, Justice.

text:
    Aaron WIESE, Appellant, v. PRO AM SERVICES, INC., Appellee.
    No. 14-08-00989-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 20, 2010.

      Hugh L. McKenney, Houston, for Appellant.
    John H. Trueheart, Jr., Houston, for Appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

Appellee Pro Am Services, Inc. (Pro Am) brought suit for conversion against appellant Aaron Wiese. Following a bench trial, the trial court found in favor of Pro Am and ordered Wiese to pay actual and punitive damages. Wiese raises six issues on appeal, arguing that Pro Am’s claims were barred by the statute of limitations for conversion and that there is no evidence or insufficient evidence to support several of the trial court’s findings of fact and conclusions of law. Pro Am raises a cross issue and argues that the trial court erroneously calculated the amount of actual damages awarded to Pro Am. Because we conclude that the evidence is legally insufficient to support the trial court’s award of actual and punitive damages, we reverse the trial court’s judgment and render judgment for Wiese.

I. Factual and ProceduRal Background

Wiese leased commercial space located in Houston to Kyle Mason, who used the property to operate a bar. Pro Am placed a jukebox, pool table, foosball table, and two tabletop videogame machines in Mason’s bar. Revenues from the machines were shared equally between Mason and Pro Am. Mason defaulted on his lease obligations sometime prior to October 2005, and Wiese changed the property’s locks. All of Pro Am’s equipment remained in the bar after the locks were changed. That same month, Pro Am began sending letters to Wiese requesting an opportunity to retrieve its equipment. Wiese did not respond to any of these requests, and Pro Am was unable to recover its property. Pro Am filed suit in August 2007 seeking possession of the equipment, actual damages, and attorney’s fees. Pro Am added a claim for punitive damages in a later filing. Wiese returned the equipment after Pro Am filed suit, some 124 weeks after Pro Am’s first request for possession. After a bench trial, the trial court found that Wiese converted Pro Am’s property and awarded $9,200 in actual damages, $5,000 in exemplary damages, and prejudgment interest. At Wiese’s request, the trial court entered findings of fact and conclusions of law. This appeal followed.

Wiese raises six issues on appeal. In his first issue, Wiese argues that Pro Am’s conversion claims were barred by the statute of limitations for conversion. In his remaining issues, Wiese contends that there is no evidence or insufficient evidence to find that (1) Pro Am incurred expenses, including attorney’s fees, in regaining possession of the equipment, (2) Pro Am suffered actual damages as a result of the conversion, (3) Wiese wrongfully withheld possession of the equipment, (4) Wiese withheld the equipment intentionally, willfully, and maliciously, and (5) Pro Am was entitled to punitive damages.

II. Discussion and Analysis

In his second, third, and sixth issues, Wiese contends that there is no evidence or insufficient evidence to support findings of fact (F), (H), and (I), which state:

F. Pro Am Services, Inc. had expenses including attorney’s fees in regaining possession of the equipment.
H. Pro Am Services, Inc. suffered actual damages of $9,200.00 plus prejudgment interest as a result of the wrongful conversion of the equipment.
I. Aaron Wiese acted intentionally, willfully and maliciously in converting the equipment and an award of punitive damages in the amount of $5,000.00 is appropriate.

Pro Am also challenges finding of fact (H) in a cross issue raised on appeal. Because Wiese’s challenge to the legal sufficiency of the evidence relating to damages is dispositive, we do not discuss Wiese’s first, fourth, or fifth issues.

A. Standard of Review

When findings of fact are challenged on appeal, we utilize the same standards that we apply in reviewing jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); Ahmed v. Ahmed, 261 S.W.3d 190, 193-94 (Tex.App.-Houston [14th Dist.] 2008, no pet.). When both the legal and factual sufficiency of the evidence are challenged, we first review the legal sufficiency of the evidence to determine whether there is any evidence of probative value to support the factfin-ders’ decision. See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752 (Tex.App.Houston [14th Dist.] 2005, no pet.); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied). In a legal sufficiency or no evidence review, we determine whether the evidence would enable reasonable and fair-minded people to reach the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In conducting this review, we credit favorable evidence if reasonable factfinders could and disregard contrary evidence unless reasonable factfinders could not. Id. We must consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. We must, and may only, sustain no evidence points when either the record^ reveals a complete absence of evidence of a vital fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence establishes conclusively the opposite of the vital fact. Id. at 810.

B. The Trial Court’s Finding That Pro Am Incurred Expenses, Including Attorney’s Fees, in, Regaining Possession of the Converted Equipment

In his second issue, Wiese argues there is no evidence or insufficient evidence supporting the trial court’s finding that Pro Am incurred expenses, including attorney’s fees, in regaining possession of its equipment. Because Pro Am successfully regained possession of the converted equipment, it is entitled to recover its expenses necessarily incurred in recovering the equipment. See Donnelly v. Young, 471 S.W.2d 888, 891 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.) (op. on reh’g). James Brame, Pro Am’s president, testified that Pro Am’s only expenditures made while attempting to recover the converted equipment were attorney’s fees. Wiese contends there is no evidence that Pro Am incurred any recoverable expenses while attempting to regain possession of its equipment because attorney’s fees generally are not recoverable for conversion claims.

In Texas, attorney’s fees may be recovered from an opposing party only as authorized by statute or by contract between the parties. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817 (Tex.2006). Attorney’s fees are generally not available for conversion claims. Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The trier of fact may consider attorney’s fees in conversion actions when determining exemplary damages, but not when calculating actual damages. See First Nat’l Bank of Missouri City v. Gittelman, 788 S.W.2d 165, 171 (Tex.App.Houston [14th Dist.] 1990, writ denied); Earthman’s, Inc. v. Earthman, 526 S.W.2d 192, 208 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

During oral argument, Pro Am asserted that Donnelly v. Young justifies the trial court’s finding that it was entitled to recover attorney’s fees as expenses in regaining possession of the equipment. According to Donnelly, a plaintiff who recovers converted property may recover expenses, payments, attorney’s fees, and the value of the time expended while attempting to regain possession of the property. Donnelly, 471 S.W.2d at 891. However, the court’s discussion of such a recovery was limited to situations where a plaintiff successfully recovers real property and incurs fees “in the removal of incumbrances and/or clouds on his title” resulting from conversion. Id. Nowhere in the opinion does the court suggest that attorney’s fees may be recovered as expenses incurred while regaining possession of converted personal property. Thus, the holding in Donnelly is limited to the recovery of attorney’s fees as an expenditure made in connection with recovering converted real property when an attorney’s services are necessary to perform some legal function other than filing suit. Any other reading would contradict the general rule that attorney’s fees are not recoverable as actual damages in conversion actions. See Broesche, 218 S.W.3d at 277; Gittelman, 788 S.W.2d at 171. Accordingly, we hold that Pro Am was not entitled to recover attorney’s fees as part of its expenses incurred in regaining possession of the equipment.

Pro Am presented no evidence of any expenses incurred while recovering the equipment unrelated to attorney’s fees. Because Pro Am is not entitled to obtain attorney’s fees as part of any expense recovery, there is a complete absence of evidence related to any recoverable expenses. After reviewing the evidence in the light most favorable to the challenged finding, we conclude that there is legally insufficient evidence to support the trial court’s finding that Pro Am incurred any recoverable expenses in regaining possession of the converted equipment. See City of Keller, 168 S.W.3d at 810, 822. Accordingly, we sustain Wiese’s second issue.

C. The Trial Court’s Finding That Pro Am Suffered Actual Damages As a Result of the Equipment’s Conversion

In his third issue, Wiese contends there is no evidence or insufficient evidence to support the trial court’s finding that Pro Am suffered actual damages of $9,200 as a result of the wrongful conversion of the equipment. Pro Am argues in its sole cross issue that the trial court’s award of $9,200 in actual damages is erroneous because there is sufficient uncontro-verted evidence showing that it suffered $43,426 in actual damages, consisting of $34,224 in loss of use damages and $9,200 in attorney’s fees.

A plaintiff must prove damages before recovery is allowed for conversion. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex.App.-Dallas 2009, no pet.) (citing United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex.1997) (per cu-riam)). Damages are limited to the amount necessary to compensate the plaintiff for any actual losses suffered as a result of the conversion, and neither the plaintiff nor the wrongdoer should be unjustly enriched by the conversion. Id. A plaintiff who establishes conversion is entitled to either (1) the return of the property and damages for its loss of use during the time of its detention or (2) the value of the property. Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 497 (Tex.App.-Corpus Christi 1999, no pet.); see also Gittelman, 788 S.W.2d at 169; Adam v. Harris, 564 S.W.2d 152, 155 (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref'd n.r.e.).

Pro Am sought damages for loss of use for the time period during which Wiese possessed the equipment, and Brame testified concerning these damages. An owner is competent to testify regarding the value of converted property and, in the absence of controverting evidence, such testimony will sustain a verdict. See Burns v. Rochon, 190 S.W.3d 263, 270-71 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also Burlington N. R.R. v. Gen. Projection Sys., No. 05-97-00425-CV, 2000 WL 1100874, at *8 (Tex.App.-Dallas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for publication) (concluding testimony by plaintiffs Chief Financial Officer concerning converted property’s rental value was legally and factually sufficient to support an award for loss of use damages). According to Brame’s testimony, Pro Am lost $34,224 in revenue during the 124 weeks Wiese possessed the equipment. Brame based this figure on his twenty-eight years’ experience in the coin-operated equipment business and on a comparison of the average weekly revenues for similar pieces of equipment at other locations over particular periods of time. Pro Am argues that Brame’s uncon-troverted testimony supports a finding that it is entitled to an award of $34,224 in loss of use damages. See Burns, 190 S.W.3d at 270-71; Burlington N. R.R., 2000 WL 1100874, at *8. Wiese contends that Brame’s testimony is not credible evidence supporting an award of loss of use damages because “the alleged damages [have] no basis.” We agree with Wiese that there is no legally sufficient evidence proving Pro Am’s loss of use damages.

The usual measure of damages for loss of use is the reasonable cost of renting replacement property. Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 465 (Tex.App.-Dallas 2006, pet. denied). Brame did not testify concerning the cost of renting replacement equipment for Pro Am. A party who loses the opportunity to accrue earnings from the use of its equipment may also be entitled to recover loss of use damages in the form of lost profits. See Amelia’s Auto., Inc. v. Rodriguez, 921 S.W.2d 767, 771 (Tex.App.-San Antonio 1996, no pet.) (considering lost profits as loss of use damages where plaintiff was deprived of use of a tow truck); Chem. Express Carriers, Inc. v. French, 759 S.W.2d 683, 687-88 (Tex.App.-Corpus Christi 1988, writ denied) (discussing lost profits as loss of use damages where plaintiff lost use of an airplane). Recovery for lost profits is a fact-intensive determination that must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 504 (Tex.2001). There must be competent evidence showing the lost profits amount with reasonable certainty. Id. While the injured party is not required to provide an exact calculation of its lost profits, it must do more than show that it suffered some lost profits. Id. A calculation of lost profits must be based on net profits, not gross revenues. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 n. 1 (Tex.1992); see also Miga v. Jensen, 96 S.W.3d 207, 213 (Tex.2002).

Brame’s testimony consists wholly of calculations of lost gross revenues. There is no evidence that Brame deducted any amount for normal business operating expenses from his gross profits calculation. Therefore, Pro Am did not properly prove its loss of net income during the 124 weeks Wiese possessed the equipment. See Gittelman, 788 S.W.2d at 169-70 (finding no evidence of loss of use damages for loss of use of converted automobile because plaintiff submitted no evidence of expenses, such as car rental payments or gas reimbursements, supporting her damage claims). Because Pro Am did no more than show that it suffered “some lost profits,” it failed to provide competent evidence that it is entitled to recover loss of use damages consisting of lost profits. See Helena Chem. Co., 47 S.W.3d at 504. Accordingly, Wiese is not entitled to $34,224 in lost income or loss of use damages, and the trial court could not properly award Pro Am any amount for loss of use damages.

The trial court awarded Pro Am $9,200 in actual damages. Wiese argues, and we agree, that the only evidence justifying this amount is testimony by Pro Am’s counsel stating that Pro Am sought $9,200 in attorney’s fees. As we previously determined, Pro Am is not entitled to recover attorney’s fees as expenses or actual damages in this case. See Broesche, 218 S.W.3d at 277; Gittelman, 788 S.W.2d at 171; Donnelly, 471 S.W.2d at 891. Thus, there is no competent evidence related to any loss of use damages suffered by Pro Am. This renders the evidence legally insufficient to support the trial court’s judgment awarding Pro Am $9,200 in actual damages as a result of Wiese’s wrongful possession of the equipment. See City of Keller, 168 S.W.3d at 810, 822. Accordingly, we overrule Pro Am’s cross issue and sustain Wiese’s third issue.

D. The Trial Court’s Finding That Pro Am Is Entitled to Recover Punitive Damages

In his sixth issue, Wiese argues that there is no evidence or insufficient evidence to support the trial court’s award of $5,000 in punitive damages to Pro Am. Exemplary damages cannot be recovered unless the plaintiff proves actual damages. See Tex. Civ. Prac. & Rem.Code Ann. § 41.004(a) (Vernon 2008); AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 662 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (“A plaintiff cannot recover punitive damages if its compensatory damage claim is precluded as a matter of law.”). As discussed above, the evidence is legally insufficient to support the trial court’s award of expenses and actual damages. Accordingly, Pro Am is precluded from recovering punitive damages. We sustain Wiese’s sixth issue and vacate the trial court’s award of punitive damages.

III. Conclusion

We conclude that the evidence is legally insufficient to support (1) the trial court’s finding of fact that Pro Am incurred expenses, including attorney’s fees, in regaining possession of the converted equipment and (2) the trial court’s judgment that Pro Am is entitled to $14,200 in damages, consisting of $9,200 in actual damages and $5,000 in punitive damages. Accordingly, we reverse the trial court’s judgment and render judgment that Pro Am take nothing.

      . The Donnelly court states that attorney’s fees may also be recoverable if the plaintiff (1) prevails in a suit to regain converted realty against a third-party claiming to be a bona fide purchaser for value or (2) foregoes litigation and makes settlement payments to resolve his dispute with the third-party. Id. Neither of these scenarios are instructive in this case.

      . Brame testified that he calculated the loss of use damages for each piece of equipment as follows: $13 per week for the foosball table, $52 per week for the pool table, $46 per week for the countertop machine, and $165 per week for the jukebox. Brame then multiplied the sum of these amounts ($276) by 124 weeks to arrive at the $34,224 amount.

      . Even if we were to construe Brame’s calculations for weekly lost revenues as the weekly cost of renting replacement equipment, Brame’s testimony would not be sufficient to prove Pro Am's loss of use damages. It is improper to calculate damages for loss of rental value by ascertaining a daily, weekly, or monthly rental value and then multiplying that amount by the length of time rental property was necessary. See 3-C Oil Co. v. Modesta P'ship, 668 S.W.2d 741, 751 (Tex.App.Austin 1984, writ ref'd n.r.e.). "Consideration should be given to the possibility that plaintiff might not have been able to rent or use the property continuously because the measure [of loss of rental value] is the market value of the use, the net usable value, less the expense of keeping the property.” Id. at 751-52. No such consideration was given here.

      . During direct examination, Brame stated that Pro Am did not deduct any expenses from its share of the revenues collected from its equipment. However, he acknowledged during cross-examination that the coins collected from the machines were not pure profit because deductions were made to pay business expenses such as employee salaries and medical benefits. These deductions were not reflected in his calculations.

      . Compare also C.A. Walker Constr. Co. v. J.P. Sw. Concrete, Inc., No. 01-07-00904-CV, 2009 WL 884754, at *6 (Tex.App.-Houston [1st Dist.] Apr. 2, 2009, no pet.) (mem.op.) (concluding evidence was factually insufficient to support lost profits award because plaintiff's evidence addressed only expected profits without showing the likely expenses incurred in performing the contract), and Garcia v. Rutledge, 649 S.W.2d 307, 313 (Tex.App.-Amarillo 1982, no writ) (finding no evidence supporting plaintiff's loss of use damages in conversion claim regarding vehicle used for business purposes because plaintiff did not deduct operating expenses from gross earnings); with Republic Parking Sys. of Tex., Inc. v. Med. Towers, Ltd., No. 14-02-01141-CV, 2004 WL 2358315, at *6 (Tex.App.-Houston [14th Dist.] Oct. 21, 2004, pet. denied) (mem.op.) (sustaining lost profits damages after plaintiff factored management fees and expenses into damage calculations), and Amelia’s Auto., Inc., 921 S.W.2d at 771-72 (finding lost profit damages for loss of use of two trucks legally and factually sufficient where plaintiff included evidence of regular disbursements, including costs for maintenance, fuel, and insurance payments, in his lost profit calculations).

      . We note that the trial court reached a similar determination by stating in conclusion of law (C) that "[d]amages for loss of use of the equipment and loss of rental from the equipment during the time the equipment was converted is DENIED.”


author: Opinion By Justice O’NEILL.

text:
    The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. Larry M. GENTILELLO, M.D., Appellee.
    No. 05-07-00845-CV.
    Court of Appeals of Texas, Dallas.
    July 21, 2010.

      Michael W. Youtt, Jeremiah J. Anderson, William R. Burns, King & Spalding LLP, Houston, TX, for Appellant.
    Charla G. Aldous, Aldous Law Firm, R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Dallas, TX, for Appellee.
    Before Justices MORRIS and O’NEILL.

      . The Honorable Mark Whittington, Justice, Court of Appeals, Fifth District of Texas at Dallas, was on the panel at the time of original submission of this case. Justice Whitting-ton has since retired. This case will be decided by the two remaining panel members. See Tex.R.App. P. 41.1(b).

   OPINION ON REMAND

Opinion By Justice O’NEILL.

This is an interlocutory appeal from the trial court’s denial of the University of Texas Southwestern Medical Center at Dallas’s plea to the jurisdiction based on sovereign immunity. On original submission, we affirmed the trial court’s judgment. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 260 S.W.3d 221 (Tex.App.-Dallas 2008). We concluded he trial court properly denied UT Southwestern’s plea to the jurisdiction because Gentilello’s petition adequately alleged a violation of the Whistleblower Act. In reaching this conclusion, we determined Gentilello merely had to allege the Act was violated and that whether the specific factual allegations actually constituted a violation of the Act were not a proper inquiry on a plea to the jurisdiction. After our opinion issued, the Supreme Court issued State v. Lueck holding that the underlying elements of a Whistleblower claim had to be considered to ascertain whether a violation has actually been alleged. State v. Lueck, 290 S.W.3d 876, 881 (2009). The. Supreme Court later reversed our opinion in this case for reconsideration in light/of Lueck. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 300 S.W.3d 753 (2009) (per cu-riam). The sole issue on remand is whether Gentilello has alleged that he reported a violation of law to an “appropriate law enforcement authority.”

We will borrow from the factual recitation in our original opinion. Gentilello is a tenured professor of medicine at UT Southwestern. When initially employed by UT Southwestern, Gentilello was the Chair of the Division of Burn, Trauma and Critical Care and held the Distinguished C. James Carrico, M.D. Chair in Trauma. Gentilello alleges that during his employment, he discovered that Parkland residents were treating and performing surgical procedures on patients without the supervision of an attending physician. Gentilello believed this practice constituted a violation of Medicare and Medicaid rules and regulations. Gentilello reported the violations to Dr. Robert Y. Rege, the person at UT Southwestern who set the policies regarding the presence of attending physicians and who had the power to internally investigate Medicare and Medicaid violations. After making his report to Rege, Rege stripped Gentilello of his chair positions.

Gentilello sued UT Southwestern for violations of the Texas Whistleblower Act. He alleged that he had a good faith belief that Medicare and Medicaid violations were occurring at UT Southwestern and he reported these violations to the person that he believed in good faith had the authority to “investigate and correct” such practices. According to Gentilello, his reporting resulted in an adverse personnel action when he was stripped of his chair positions.

UT Southwestern filed a plea to the jurisdiction alleging Gentilello’s claims are barred by sovereign immunity. UT Southwestern acknowledged the Whistleblower Act waives immunity from suit for claims brought under the Act, but it asserted Gentilello did not allege a violation of that Act. In particular, it maintained Gentilello failed to allege that he reported a violation of law to an “appropriate law enforcement authority.” According to UT Southwestern, Gentilello had to specifically plead that Rege had been delegated “federal enforcement authority” by the Medicare and Medicaid statutes and regulations or that Rege had some sort of criminal jurisdiction.

Government immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Arnold v. UT Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 467 (Tex.App.-Dallas 2009, no pet.). Whether the trial court has subject-matter jurisdiction is a question of law, which we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 176 (Tex.App.-Dallas 2010, pet. filed). A plaintiff has the burden to allege facts affirmatively demonstrating the trial court has subject matter jurisdiction. Miranda, 133 S.W.3d at 226. In determining whether a plaintiff has done so, we construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Miranda, 133 S.W.3d at 226-27; Carr, 309 S.W.3d at 176. In determining a plea to the jurisdiction, we can also consider evidence, and must do so when necessary to resolve the jurisdictional issue. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Arnold, 279 S.W.3d at 467. If evidence presented at a plea to the jurisdiction negates the existence of jurisdictional facts as a matter of law, the plea to the jurisdiction should be granted. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.2008). However, if a fact issue is presented, the trial court should deny the plea. Id.

The Whistleblower Act contains an express waiver of immunity from suit. Specifically, a public employee who “alleges” a violation of the Act may sue the employing state or local government entity for the relief provided by the Act. Tex. Gov’t Code Ann. § 554.0035 (Vernon 2004); see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 n. 6 (Tex.2003). In determining whether a violation has been alleged, we consider whether the factual allegations would actually constitute a violation of the Act. Lueck, 290 S.W.3d at 876. However, a plaintiff need not prove its claim to satisfy the jurisdictional hurdle and the burden of proof with respect to the jurisdictional facts does not involve a significant inquiry into the substance of the claims. Id. at 884.

Under the Act, a state or local governmental entity may not take adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity to “an appropriate law enforcement authority.” See Tex. Gov’t Code Ann. § 554.002 (Vernon 2004). “Appropriate law enforcement authority” is a defined term in the Act. A report is made to an appropriate law enforcement authority if the authority is a part of a governmental entity that the employee in good faith believes is authorized to (1) regulate under or enforce the law alleged to be violated in the report or (2) investigate or prosecute a violation of criminal law. Tex. Gov’t Code Ann. § 554.002 (Vernon 2004).

In his petition, Gentilello alleged he observed illegal practices at UT Southwestern regarding trauma residents and the care of patients. Specifically, trauma residents were treating patients and performing surgery without the supervision of attending physicians. He asserted these practices were having an adverse effect upon the care of indigent patients at UT Southwestern. He reported the violations to Rege, “[t]he person at UT Southwestern who set the policies regarding the presence of attending physicians during surgery and who had the power to investigate these illegal activities and bring about an end to them.” He alleged he was demoted because of his good faith report.

In its plea to the jurisdiction, UT Southwestern asserted Gentilello failed to allege a claim under the Whistleblower Act because he did not plead he had a good faith belief that Rege was an “appropriate law enforcement authority.” On appeal, UT Southwestern asserts Gentilello’s petition, and the proof presented at the hearing on the plea to the jurisdiction, affirmatively negated any such good faith belief because Rege was Gentilello’s internal supervisor. According to UT Southwestern, unless the employing agency is itself a law enforcement agency, a supervisor can never be an appropriate law enforcement authority as a matter of law. It relies on Department of Transportation v. Needham, 82 S.W.3d 314, 317 (Tex.2002) and State v. Lueck to support this contention. We do not read either case so broadly.

In Needham, the plaintiff, a Texas Department of Transportation (TxDOT) employee, reported to his supervisor that a coworker had committed a driving while intoxicated offense while driving a TxDOT vehicle. The plaintiff was subsequently demoted. He sued under the Whistleblower Act. Following a jury verdict in the plaintiffs favor, TxDOT appealed asserting Needham did not report to an appropriate law enforcement authority because TxDOT was “not an entity charged with regulating under, enforcing, investigating or prosecuting the state’s criminal laws, including those that penalize driving while intoxicated.” Needham, 82 S.W.3d at 318. The court of appeals disagreed concluding TxDOT was an appropriate law enforcement authority because it could discipline its employees for legal violations under its progressive disciplinary action policy. Id. at 319. The Supreme Court disagreed holding that an employer’s general authority to conduct an internal investigation and discipline its employees is not alone sufficient to show that the employer is an “appropriate law enforcement authority.” See Needham, 82 S.W.3d at 320-21. Otherwise, the Court explained, all governmental employers with a disciplinary policy for handling illegal conduct would be appropriate law enforcement authorities for any violations of law. See id. However, contrary to UT Southwestern’s suggestion, Needham does not hold a report to a supervisor can never constitute a good faith report. Rather, Needham explained, in determining whether an authority was an appropriate law enforcement authority, we look to whether the authority could regulate under or enforce the particular law alleged to be violated. Because TxDOT did not have authority to regulate under or enforce DWI laws or to investigate or prosecute such criminal offenses, TxDOT was not an appropriate law enforcement authority. Id. at 320. Likewise, Needham did not reasonably believe TxDOT had authority to regulate under, enforce, investigate or prosecute such criminal laws. Id. at 321. Thus, it reversed the jury’s verdict and rendered judgment for TxDOT

In Lueck, the plaintiff, another TxDOT employee, reported a possible regulatory violation to his supervisor. The Supreme Court concluded Lueck did not report a violation of law and additionally that the supervisor, in that case, was not an appropriate law enforcement authority. Lueck, 290 S.W.3d at 885-886. It explained that Lueck’s supervisor, as the head of a division within TxDOT, could not regulate nor enforce the law that Lueck alleged had been violated. Id. at 885. In further concluding that Lueck did not have a good faith belief that his supervisor was an appropriate law enforcement authority, the Supreme Court reasoned that Lueck himself “knew [his supervisor] was not the proper authority within TxDOT to regulate the reported violations because he recommended [his supervisor] have his e-mail “readily available” when discussing [the alleged violation] with other TxDOT divisions.” Id. at 886 (emphasis added). Thus, if anything, Lueck seems to recognize that in some cases a plaintiff may reasonably believe a report to an appropriate law enforcement authority may be made internally.

Having considered the holdings in Need-ham and Lueck, we cannot conclude either requires dismissal of Gentilello’s suit. Instead, we agree with the' Houston First Court of appeals that “[t]he fact that an employee makes a report of a violation of law to his employer or superior regarding the work being performed by the government entity that employs him does not automatically render the Whistleblower Act inapplicable.” See Tex. Dep’t of Human Servs. v. Okoli, 317 S.W.3d 800, 810-11 (Tex.App.-Houston [1st. Dist] 2010, no pet. h.). Thus, the question that remains is whether a fact issue exists on whether Gentilello had a good faith belief that Rege was authorized to regulate under or enforce the Medicare and Medicaid violations reported. Tex. Gov’t Code Ann. § 554.002 (Vernon 2004).

In making this determination, we turn to the allegations in Gentilello’s petition. UT Southwestern did not specially except to the petition, and we must therefore construe the petition liberally. While Genti-lello’s petition did not allege any specific provisions of the Medicare and Medicaid rules and regulations that were violated, he now directs us to several violations that were implicated by his petition. Pursuant to Medicare/Medicaid rules and regulations, a hospital, like UT Southwestern, “must be in compliance with applicable Federal laws related to the health and safety of patients” to receive benefits from the program. See 42 C.F.R. § 482.11. The hospital’s governing body must ensure the medial staff is accountable to the governing body for the quality of care provided to patients. 42 C.F.R. § 482.12(a). If a resident participates in surgical procedures, a teaching physician must be present during all critical portions of the procedure. 42 C.F.R. § 415.172. If emergency services are provided, the hospital must meet emergency needs in accordance with acceptable standards. 42 C.F.R. § 482.55. Emergency services must be organized under the direction of a qualified member of the medial staff and the policies and procedures governing medical care provided in the emergency service or department must be established by the medical staff. 42 C.F.R. § 482.55. Emergency services must also be supervised by a qualified member of the medical staff. 42 C.F.R. § 482.55. Furthermore, Medicare and Medicare rules and regulations allow payment according to a physician fee schedule for a procedure in which a resident participates only if a physician is present during the key portion of the service or procedure for which payment is sought. 42 C.F.R. § 415.172(a). Fraudulent billing for Medicare and Medicaid services constitutes a criminal offense. See 42 U.S.C. 1320a-7b(a).

According to UT Southwestern, Rege could not “regulate under” or “enforce” Medicare or Medicaid rules and regulations because he could not himself write the rules or impose fines or criminal liability under those rules and regulations. However, unlike the DWI statute at issue in Needham, the statutes at issue here specifically charge UT Southwestern and its physicians with implementing the laws at the hospital level. While Rege may not have had the power to write the rules or assess fines or other criminal sanctions for a violation of the rules, he had both the power and the duty to enforce those rules and regulations at UT Southwestern. Rege specifically testified that he had the ability to decide whether UT Southwestern could bill Medicare or Medicaid or not. There was also evidence that he could immediately stop any procedure in violation of the applicable rules and regulations and discipline an offending physician. Rege conceded at the hearing that he enforced the laws insofar as he set policies and procedures for Medicare and Medicaid compliance. He also conceded that he had the ability to “regulate, enforce, and investigate any irregular billings.” Rege also testified that he had the authority to enforce faculty supervision on residents.

Further, at the hearing on the plea to the jurisdiction, evidence was presented that UT Southwestern had created a formal billing compliance program to ensure it followed Medicare and Medicaid rules and regulations. The plan established a billing compliance office, appointed a billing compliance advisory committee, and designated a billing compliance officer. The plan required the committee to, among other things, undertake a process for faculty to report non-compliance and for such reports to be fully and independently reviewed. It also required the committee to formulate a corrective action plan to address any instances of non-compliance. The plan specifically stated that the Clinical Department Chair had the responsibility to ensure the goals of billing compliance were met. It is undisputed Rege was the Clinical Department Chair. Rege thus had the authority, responsibility, and ability to ensure UT Southwestern complied with the applicable Medicare and Medicaid rules and regulations.

Finally, there was evidence that UT Southwestern itself believed that the Whis-tleblower Act would protect certain internal reporting. Specifically, UT Southwestern’s billing compliance plan specifically stated that all reports, through appropriate mechanisms, of possible instances of non-compliance would be forwarded to the Billing Compliance Office and “that employees who report, in good faith, possible compliance problems shall be protected from retaliation or harassment, as established by law.” Cf. Okoli, 371 S.W.3d at 811 (fact issue as to good faith belief where employee told to report violations first to his supervisor where there was evidence employer authorized to investigate violations of law). This is some evidence of the reasonableness of Gentilello’s belief. In light of the Medicare rules and regulations as well UT Southwestern’s implementation of those rules and regulations, we conclude a fact issue exists on whether Gentilello had a good faith belief that he reported to an appropriate law enforcement authority. Therefore, the trial court properly denied UT Southwestern’s plea to the jurisdiction. We affirm the trial court’s order.

      . UT Southwestern did not contest that Genti-lello reported a violation of law.