author: PER CURIAM.

text:
    In re LISA LASER USA, INC. and Lisa Laser Products, oHG, Relators.
    No. 09-0557.
    Supreme Court of Texas.
    April 16, 2010.

      Derek Lawrence Davis, Byrd Davis Fur-man, L.L.P., Austin, for Relators.
    George Breck Harrison, Joshua Abraham Romero, Jackson Walker L.L.P., Austin, for Real Parties in Interest.
   PER CURIAM.

In this mandamus petition we are asked to review a trial court’s refusal to enforce a forum-selection clause designating a California forum for any lawsuits “arising out of’ a distribution agreement. The clause was in an exhibit to the agreement, signed by all the parties, but the exhibit specifically referenced only one of the two defendants sued. We hold that the trial court abused its discretion in failing to enforce the clause, and we conditionally grant the petition.

Relator Lisa Laser Products, oHG (“Lisa Germany”) is a German partnership that manufactures lasers for use in various medical fields. Lisa Laser USA, Inc., (“Lisa USA”) is the registered assumed named of a California corporation affiliated with Lisa Germany (collectively, “Lisa Laser”). Lisa Germany manufactures medical lasers, and Lisa USA is the distributor of those products within the United States. In 2005, Lisa USA signed a distribution agreement with Real Party in Interest HealthTronies, Inc., a Georgia corporation headquartered in Austin, Texas. In 2007, the agreement was superseded by an Amended and Restated Distribution Agreement (the Distribution Agreement or Agreement) that included Lisa USA and HealthTronics, the original contracting parties, and added Lisa Germany as a party. The President of Lisa USA, the CEO of Lisa Germany, and the Senior Vice-President for Medical Products of HealthTronics signed it.

The Distribution Agreement gave HealthTronics exclusive U.S. distribution rights for particular Lisa Laser medical devices. It also provided HealthTronics with rights of first refusal to distribute new, related products that Lisa Laser may produce, on condition that HealthTronics fulfill yearly purchase quotas and comply with other requirements. The Distribution Agreement also contained eight separately attached Exhibits, labeled A through H. Exhibit F is Lisa Laser’s “Standard Terms and Conditions.” Its preamble states:

The following standard terms and conditions of sale apply to sales by Seller [Lisa Laser USA, Inc.] to HealthTron-ics, Inc. ... pursuant to the Distribution Agreement between the parties, a copy of which is attached hereto and incorporated herein by this reference, except as specifically modified in the Distribution Agreement.

Exhibit F also includes the following forum-selection clause, in Paragraph 16:

APPLICABLE LAW; JURISDICTION AND VENUE
This agreement will be governed by the laws of the State of California. The California state [or federal] courts of Alameda County, California ... will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and [HealthTronics] hereby consents to the jurisdiction of such courts.

Exhibit F is mentioned in the body of the Distribution Agreement in Section 4, titled “Terms of Purchase of Products By Customer.” Relevant here, under the subhead “Terms of Purchase Orders” in Section 4, Exhibit F is incorporated:

To the extent consistent with the terms set forth in this Agreement, Lisa Laser USA[’s] standard terms and conditions, set forth as Exhibit F hereto, shall be applicable to the shipment of any Product to [HealthTronics]. [HealthTron-ics]’s purchase orders submitted to Lisa Laser USA from time to time with respect to Products to be purchased hereunder shall be governed by the terms of this Agreement, and nothing contained in any such purchase order shall in any way modify such terms of purchase or add any additional terms or conditions.

In September 2008, Lisa Laser notified HealthTronics that it was in default for failing to use its best efforts to market and sell the products to which it had exclusivity. HealthTronics alleged that it was abiding by the minimum purchase requirements during the contract period, but that Lisa Laser had refused to provide information about new products, failed to offer a right of first refusal to distribute new products, and began to directly market new products in the United States. HealthTronics then filed suit in district court in Travis County, Texas against both Lisa USA and Lisa Germany for breach of contract and tortious interference with contract (related to confidentiality and non-solicitation agreements between HealthTronics and its former employees) and sought monetary damages and injunc-tive relief.

In the trial court, Lisa Laser filed a motion to dismiss for improper forum on the basis of the forum-selection clause in Exhibit F. The trial court denied the motion. Lisa Laser then sought mandamus relief and an emergency stay at the court of appeals. After originally granting the requested stay, the court of appeals denied the petition for writ of mandamus. 2009 WL 2217745. Following the denial, Lisa Laser petitioned this Court for relief.

Mandamus relief is available when a trial court clearly abuses its discretion and relief on appeal after a final judgment is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). A trial court abuses its discretion when it fails to properly interpret or apply a forum-selection clause. In re Laibe Corp., 307 S.W.3d 314 (Tex.2010). Further, an appellate remedy is inadequate when a trial court improperly refuses to enforce a forum-selection clause because allowing the trial to go forward will “vitiate and render illusory the subject matter of an appeal” — i.e., trial in the proper forum. In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex.2004) (quoting Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992)); accord In re Laibe Corp., 307 S.W.3d at 316. Accordingly, we have repeatedly held that mandamus relief is available to enforce an unambiguous forum-selection clause in a contract. See, e.g., id.; In re AIU Ins. Co., 148 S.W.3d at 115-19; In re AutoNation, Inc., 228 S.W.3d at 665; In re Int’l Profit Assocs. I, 274 S.W.3d at 674; In re Int’l Profit Assocs. II, 286 S.W.3d at 922; In re ADM Investor Servs., Inc., 304 S.W.3d 371 (Tex.2010). In general, forum-selection clauses should be given full effect, and subjecting a party to trial in a forum other than the contractually chosen one amounts to “‘clear harassment’ ... injecting inefficiency by enabling forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing settlement dynamics.... ” In re AutoNation, 228 S.W.3d at 667-68 (quoting In re AIU Ins. Co., 148 S.W.3d at 117).

In this case, HealthTronics argues that the forum-selection clause does not apply to the Texas lawsuit. First, it argues that because the clause was contained only in Exhibit F, it applies only to claims specifically related to “sales by Seller ... to HealthTronics,” and not to any other claims based on the parties’ relationships (such as breach of contract for failure to provide rights of first refusal or tortiously interfering with HealthTronics’s contracts with its employees). Second, HealthTron-ics argues that the 2007 modification of the limiting language in the preamble indicates the parties’ intent to limit the forum-selection clause only to disputes over sales transactions. Because all of HealthTron-ics’s claims are directed at protecting its rights for the marketing and sale of the new lasers “to third parties” and protecting its confidential information, Health-Tronics contends the claims in the Texas lawsuit are outside the scope of the clause and the Court should enforce the language of the Agreement as written and bargained for. Finally, HealthTronics argues because the plain language of the preamble to Exhibit F indicates that the exhibit applies only to sales by “Seller” [Lisa USA] to HealthTronics, the forum-selection clause does not apply to its claims against Lisa Germany, a signatory to the Distribution Agreement but an entity that was specifically omitted from the terms in Exhibit F.

In this case, HealthTronics does not argue that the forum-selection clause is unenforceable, but that it only applies to part of the contract — sales transactions between it and Lisa USA. In examining whether claims brought by the plaintiff were within the scope of the clauses, this Court held that a reviewing court should engage in a “common-sense examination of the claims and the forum-selection clause to determine if the clause covers the claims.” Int'l Profit Assocs. I, 274 S.W.3d at 677 (citing Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 444 (5th Cir.2008)); In re Laibe Corp., 307 S.W.3d at 316. In International Profit Associates I, the Court borrowed from its arbitration jurisprudence to determine whether a forum-selection clause included in contracts to provide business consulting services would apply to a tort suit. 274 S.W.3d at 674. In that case, the plaintiff the consulting company and its employee for negligently providing services, fraud, and breach of duty of good faith after the consulting company’s employee allegedly embezzled large sums of money from the client. The Court held that “whether claims seek a direct benefit from a contract turns on the substance of the claim, not artful pleading.... [A] claim is brought in contract if liability arises from the contract, while a claim is brought in tort if liability is derived from other general obligations imposed by law.” Id. at 677 (citing In re Weekley Homes, L.P., 180 S.W.3d 127, 131-32 (Tex.2005)). Using that rationale, the Court held that the tort claims arose from the contractual relationship of the parties. Id.

Although In re International Profit Associates I discussed a tort/contract dichotomy, rather than the scope of contractual coverage, its reasoning applies in this case. HealthTronics alleges that Lisa Laser failed to inform it of new products and failed to offer it a right of first refusal to distribute new products in the United States. Lisa Laser’s obligation, if any, to do so only arises from the Distribution Agreement, in which Lisa Laser agreed to sell and HealthTronics to buy urological lasers pursuant to certain terms. Those terms are set out both in the body of the Distribution Agreement as well as in the Exhibits.

HealthTronics’s textual argument — that the forum-selection clause applies only to sales “By Seller to HealthTronics” and that Section 4 of the Distribution Agreement incorporates the standard terms and conditions as “applicable to the shipment of any Product to the Distributor” — is unavailing. The Distribution Agreement and the Standard Terms and Conditions in Exhibit F are not separate, or even separable, agreements. Exhibit F does not contain price or quantity terms. Cf. Tex. Bus. & Com.Code § 2.201 (setting basic terms for enforceable contracts for the sale of goods with a value over $500); Miller v. Vaughn & Taylor Const. Co., 345 S.W.2d 852, 853 (Tex.Civ.App.-Fort Worth 1961, writ ref'd n.r.e.) (“A contract is not sufficiently certain to be enforced if it fails to specify the quantity of the goods to be sold.”). Nor does it mention any particular product to be distributed. It is nothing more than the standard terms of purchase that would normally accompany any commercial purchase order. Likewise, the Distribution Agreement, while setting out the rough outline of the parties’ obligations, is also incomplete. It requires and incorporates the additional terms from the exhibits to fully elucidate the parties’ agreement. The exhibits are consecutively paginated following the body of the Distribution Agreement. The Distribution Agreement and the Exhibits were intended to be one document. And even if the exhibits have some independent significance, as this Court recognized in In re Laibe, “[a] contract can consist of more than one document [and documents pertaining to the same transaction may be read together.” In re Laibe Corp., 307 S.W.3d at 317. This is a prime example of a single transaction governed by a document with multiple subparts, referencing each other, and substantially incomplete without each other, but together comprising the Agreement.

Because neither document could be considered “this Agreement” by itself, the common sense approach is to read the two documents as multiple documents describing a singular transaction, with the forum-selection clause applying to all claims arising out of the Distribution Agreement. Int’l Profit Assocs. I, 274 S.W.3d at 677; see also In re Laibe, 307 S.W.3d 314; Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34 (5th Cir.1990). Further, the forum-selection clause itself describes a scope broader that the mere sales transactions between Lisa USA and HealthTronics. It states that California shall be the forum “over any dispute arising out of this agreement,” not merely any dispute arising out of any particular sale.

HealthTronics cites to two Texas court of appeals cases in support of its position that the forum-selection clause should not apply to its claims-Apollo Property Partners, LLC v. Diamond Houston I, L.P., No. 14-07-00528-CV, 2008 WL 3017549, 2008 Tex.App. LEXIS 5884 (Tex.App.-Houston [14th Dist.] Aug. 5, 2008, no pet.) and IKON Office Solutions, Inc. v. Eifert, 2 S.W.3d 688 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Both are distinguishable. Apollo Property Partners is inappo-site because the forum-selection clause at issue did not clearly mandate an Illinois forum; rather, it merely prevented either party from raising venue or personal jurisdiction arguments if an action were filed in Illinois. 2008 WL 3017549 *2-3. IKON Office Solutions is distinguishable because the portion of the sale agreement containing the arbitration clause (an employment agreement) was an independent, integrated agreement, and because the arbitration provision did not broadly require arbitration of all disputes between the parties. “[T]he narrow arbitration clause in this case cover[ed] only disputes related to the termination of employment.” IKON Office Solutions, 2 S.W.3d at 696 (emphasis added). Because the fraudulent inducement claims at issue in the case were not related to the termination of the individual’s employment, the dispute was outside the scope of the arbitration clause.

HealthTronics also argues that a change from the original 2005 distribution agreement evidences the parties’ intent for the forum-selection clause to apply only to sales transaction disputes between Health-Tronics and Lisa USA. The preamble to Exhibit F in the 2005 distribution agreement stated that the standard terms and conditions “apply except as specifically modified in the Distribution Agreement between the parties.... ” The preamble in the amended, 2007 Distribution Agreement, which is effective for this dispute, states that the terms apply “to sales by [Lisa USA] to HealthTronics, Inc. pursuant to the Distribution Agreement between the parties.” This amendment does not limit the forum-selection clause (which continues to state that the clause applies to “any disputes” between the parties) but merely describes the “standard terms and conditions.” This amendment is reasonable, considering that Lisa Germany was not a party to the 2005 agreement, but is a party to the 2007 Distribution Agreement, and the amendment was necessary to identify the buyer and the seller.

HealthTronics’s claims arise out of the Agreement rather than other general obligations imposed by law. That is, but for the Agreement, HealthTronics would have no basis to complain that Lisa Germany failed to offer the right of first refusal to HealthTronics to distribute new products, failed to provide HealthTronics information about new products, allowed other distributors to sell products for which HealthTronics was supposed to be the exclusive distributor, and wrongfully terminated the contract. See In re Int’l Profit Assocs. I, 274 S.W.3d at 678. Accordingly, the trial court erred in refusing to enforce the clause in the Texas lawsuit.

Next, HealthTronics contends that even if the forum-selection clause applies to its claims against Lisa USA, it does not apply to claims against Lisa Germany, because the plain language of the preamble makes Exhibit F applicable only to “sales by Seller [Lisa USA] to HealthTronics, Inc. ... pursuant to the Distribution Agreement.” As discussed above, Exhibit F is the default terms and conditions to the sales and distribution contract between Lisa Laser and HealthTronics. Because no sales actually occur between Lisa Germany and HealthTronics, it is not surprising that Lisa Germany is not mentioned in Exhibit F.

HealthTronics’s claims against Lisa Germany are for breaches of the right of first refusal and exclusivity clauses in the Distribution Agreement. Lisa Germany was a signatory to the Distribution Agreement, which incorporated Exhibit F, and Health-Tronics seeks to enforce obligations of the contract in this lawsuit. A plaintiff “cannot both have his contract and defeat it too.” In re Weekley Homes, L.P., 180 S.W.3d 127, 135 (Tex.2005). In other words, HealthTronics cannot claim that Lisa Germany has obligations to Health-Tronics under the Distribution Agreement and simultaneously claim that the forum-selection clause does not apply to those claims. See also Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 528 (5th Cir.2000) (holding, in the context of an arbitration agreement, that “a signatory to that agreement cannot, ... ‘have it both ways’: it cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration’s applicability because the defendant is a non-signatory”).

Accordingly, reading the forum-selection clause in Exhibit F in context of the whole Agreement, considering that Lisa Germany was a signatory to the Distribution Agreement, that the forum-selection clause applies to “any dispute arising out of this agreement,” and that HealthTronics seeks to hold Lisa Germany responsible for obligations under the Distribution Agreement, we conclude that all disputes arising out of the Distribution Agreement against either or both defendants are to be litigated in Alameda County, California.

The forum-selection clause at issue in this case governs the forum for the dispute between HealthTronics and Lisa Laser, and the trial court abused its discretion in failing to dismiss the case based on the clause. For these reasons, and without hearing oral argument, Tex.R.App. P. 52.8(c), we conditionally grant Lisa Laser’s petition for writ of mandamus and direct the trial court to vacate its order and grant Lisa Laser’s motion to dismiss. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

      . oHG is short for "offene Handelsgesells-chaft'' which literally translates to "open trading company.” Langenscheidt’s German-English, English-German Dictionary 112, 165 (E. Klatt & G. Golze eds., 1962); Modern Dictionary of International Legal Terms 27 (Little, Brown & Co. 1993) (1992). It is the German equivalent of a general partnership. E.g., Norbert Meister & Gunner Schuster, Classifying Foreign Entities Investing in Germany, 2 Int’l Tax Rev., July/Aug. 1991, at 42, 42.

        . Before this Court for the first time on appeal, Lisa Laser argues that California law applies to determine whether the forum-selection clause is applicable and whether mandamus relief is available to correct the trial court’s error, as the parties chose California law in the Distribution Agreement. This Court has applied Texas law in the mandamus cases in which the parties seek to enforce a forum-selection clause, even if the contract also contains a choice-of-law clause selecting the application of another state's substantive law. See, e.g., In re AIU Ins. Co., 148 S.W.3d 109, 111 (Tex.2004) (applying Texas law in a mandamus action enforce a forum-selection clause in a contract that also included a choice-of-law provision designating New York law); In re Automated Collection Techs., Inc., 156 S.W.3d 557, 558 (Tex.2004) (same, Pennsylvania law); In re AutoNation, Inc., 228 S.W.3d 663, 665 (Tex.2007) (same, Florida law); In re Lyon Fin. Servs., 257 S.W.3d 228, 230-31 (Tex.2008) (same, Pennsylvania law); In re Int’l Profit Assocs., Inc. ("Int’l Profit Assocs. I”), 274 S.W.3d 672, 674 (Tex.2009) (same, Illinois law); In re Int’l Profit Assocs., Inc. ("Int’l Profit Assocs. II”), 286 S.W.3d 921, 922 (Tex.2009) (same, Illinois law). Further, the determination of whether mandamus relief is available is a matter of procedure. The law of the forum state applies to procedural questions. Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 & n. 17 (Tex.2008). Accordingly, we apply Texas law in determining whether mandamus relief is available in this case.

      . Notwithstanding Lisa Laser’s invocation of California law, the parties do not allege that there are any material differences between California and Texas law when it comes to interpretation and enforcement of forum-selection clauses. In California, as in Texas, (a) the denial of a motion to dismiss or to stay pursuant to a valid forum-selection clause may be the basis for mandamus relief; (b) a mandatory forum-selection clause is to be enforced unless it is unreasonable; and (c) the plaintiff must shoulder a “heavy burden’’ to prove unreasonableness, and mere inconvenience and additional expense is insufficient. See, e.g., Net2Phone, Inc. v. Superior Court, 109 Cal.App.4th 583, 135 Cal.Rptr.2d 149, 154 (2003); Olinick v. BMG Entm’t, 138 Cal.App.4th 1286, 42 Cal.Rptr.3d 268, 273 (2006);
        Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal.3d 491, 131 Cal.Rptr. 374, 551 P.2d 1206, 1208-09 (1976).


source: Caselaw Access Project

license: Public Domain

text:
    Leila Regenia Brown HIDALGO, Petitioner, v. Alvin Steve HIDALGO, Respondent.
    No. 09-0415.
    Supreme Court of Texas.
    May 28, 2010.
    Rehearing Denied June 18, 2010.

      Brad M. LaMorgese, Stephen Michael Orsinger, Gene Alexander Leposki, McCurley Orsinger McCurley Nelson & Downing LLP, Dallas, Richard R. Orsinger, McCurley Orsinger McCurley Nelson & Downing LLP, San Antonio, Keith Griffin, Attorney at Law, Dallas, Teresa L. Campbell, Flynn Campbell & Francis, Southlake, Charles R. Hodges, Denton, TX, for Petitioner.
    Georganna L. Simpson, Jeremy C. Martin, Simpson * Martin, LLP, Larry Hance, Hance & Wickham, P.C., Dallas, TX, for Respondent.
   PER CURIAM.

Should a party who relies on a then-valid procedural argument in the court of appeals be able to assert substantive arguments if this Court invalidates the procedural argument while the case is pending? We answer yes.

Leila and Alvin Hidalgo were divorced in California in 2002, and the divorce decree required Alvin to obtain life insurance with Leila as beneficiary. Leila filed the California decree in Texas state court as a foreign judgment. See Tex. Civ. Prac. & Rem.Code § 35.003. In 2005, Leila filed a motion to enforce the decree, claiming Alvin had failed to pay the insurance premiums. Alvin disputed her claim, contending he was now retired and no longer required to carry the policy.

This appeal concerns the interplay of three different trial court orders:

Order 1 (January 3, 2006). This order denied Leila’s motion for enforcement of the divorce decree, stating Alvin was no longer required to maintain the insurance policy. Leila filed a motion for rehearing, asking the trial court to amend the order to state that Alvin must resume paying premiums if he returns to work before age 65.

Order 2 (April 4, 2006). This order, 91 days later, vacated Order 1 and held that Leila’s motion for rehearing sought a substantive change to the first order and extended the trial court’s plenary power to vacate it based on Texas Rule of Civil Procedure 329b. Rule 329b provides that a motion to modify a final order has the effect of extending the trial court’s plenary power over that final order. Order 2 directed Alvin to pay all the policy premiums then due. This order effectively granted Leila a new trial. Alvin then filed a motion for new trial and a motion to confirm Order 1.

Order 3 (July 5, 2006). This order, 183 days after Order 1 (92 days after Order 2), set aside Order 2 and confirmed Order 1 in favor of Alvin as the final order. The court gave two reasons for setting aside Order 2:(1) Leila’s motion for rehearing did not satisfy Rule 329b because it did not seek a substantive change to Order 1; and (2) even if the motion for rehearing did satisfy Rule 329b, there was no final judgment reflecting Order 2 that was issued before the expiration of the trial court’s plenary power under Rule 329b.

Leila appealed on grounds that Order 3 was void under then-controlling Porter v. Vick, which held that a trial court may vacate or “ungrant” a new trial order only within 75 days of the date the judgment is signed, the period specified in Rule 329b(c) for ruling on a motion for new trial. 888 S.W.2d, 789, 789-90 (Tex.1994). Leila also filed a petition for writ of mandamus. The court of appeals consolidated the appeal and the mandamus petition.

The court of appeals initially granted Leila mandamus relief. Relying on Porter, the court held that Order 3 favoring Alvin was void because it “was signed outside the time period within which a trial court may revive a prior judgment by vacating the order granting a new trial— seventy-five days from the date of the original judgment.” However, after the court of appeals issued its opinion, we issued In re Baylor Medical Center at Garland, which held that “[w]hen a new trial is granted, the case stands on the trial court’s docket ‘the same as though no trial had been had.’ ” 280 S.W.3d 227, 230-31 (Tex.2008) (quoting Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.2005)). Thus, a trial court has power to set aside an order granting a motion for new trial “ ‘any time before a final judgment is entered.’” Id. at 231 (quoting Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993)).

In light of Baylor Medical Center, the court of appeals granted Alvin’s motion for rehearing and held that Order 3 was not void after all. 279 S.W.3d 456, 458, 462. The court analyzed the three trial court orders described above and concluded that Order 1 was a final order and judgment, Order 2 “effectively granted a new trial,” and Order 3 “itself constituted a final order subject to appeal.” Id. at 460-62. The court of appeals determined that Order 3 was not void, although the court noted that “the trial court’s reasons” for signing it “may have been incorrect.” Id. at 462, 463.

Leila’s initial briefs in the court of appeals focused on her argument that Order 3 was void because the trial court had lost jurisdiction to issue it; she did not attack Order 3 on substantive grounds. Further, the court of appeals indicated it would not consider substantive arguments because it considered them waived. Id. at 463. Leila’s appeal to this Court requests that she now be allowed to assert substantive arguments since, under Baylor Medical Center, Order 3 is no longer proeedurally void.

This Court may remand the case to the court of appeals “for further proceedings in light of changes in the law.” Tex.R.App. P. 60.2(f). By similar logic, we have noted in the context of our authority to remand to the trial court that “we have discretion to remand for a new trial in the interest of justice, ... [and] [t]he most compelling case for such a remand is where we overrule existing precedents on which the losing party relied at trial.” Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex.1992).

When Leila briefed her case to the court of appeals, she made a legally meritorious procedural argument that Order 3 was void as untimely. Further, the court of appeals at that time had no reason to reach the substantive merits of a jurisdic-tionally void order. Due to the timing of events, Leila is confronted with a trial court judgment that she believes is substantively defective, but she has not had the opportunity to have those arguments heard on appeal. In light of a change in the law and in the interest of justice, Leila should be allowed to argue to the court of appeals the substantive reasons she believes the trial court’s judgment was erroneous.

Accordingly, we grant the petition for review and, without hearing oral argument, Tex.R.App. P. 59.1, reverse the court of appeals’ judgment and remand to that court for further proceedings consistent with this opinion.


author: MEYERS, J.,

text:
    Oscar PEREZ Jr., Appellant, v. The STATE of Texas.
    No. PD-0560-09.
    Court of Criminal Appeals of Texas.
    May 26, 2010.

      Tommy James Stickler, Alvin, for Appellant.
    David A. Dowdy, Asst. Crim. Dist. Atty., Angleton, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion for a unanimous Court.

Appellant, Oscar Perez Jr., was convicted of aggravated robbery, and the court assessed punishment at thirty-five years’ confinement. Appellant’s second court-appointed attorney filed a motion for new trial citing ineffective assistance of counsel. The hearing on the motion for new trial focused on the lack of preparation performed by Appellant’s trial counsel and the witnesses who could have testified on Appellant’s behalf had they been contacted. The trial court denied the motion for new trial, and Appellant appealed to the Fourteenth Court of Appeals. The court of appeals concluded that trial counsel’s performance was deficient, but that the proposed witnesses would not have benefitted Appellant. We granted review to consider whether the court of appeals erred by failing to conclude that Appellant was prejudiced by his counsel’s deficient performance. We will affirm the court of appeals.

I. Facts

On the evening of November 30, 2005, two men wearing bandanas around their faces entered the home of Maria Rangel. Maria lived there with her thirteen-year-old son, Ernesto. When one intruder’s bandana slipped, she recognized him as Marcus, a friend of her older son. She did not recognize the other man. Marcus demanded money and then rummaged through Maria’s belongings, pointing a knife in her direction the entire time. Ernesto was able to recognize both men. He identified the man whose face remained partially covered as Appellant. Ernesto knew Appellant as his brother’s ex-girlfriend’s brother. They had met approximately three times. According to Ernesto, Appellant pointed a knife at him while Marcus “trashfed] everything.”

II. Trial court

Appellant was charged with aggravated robbery and burglary of a habitation. However, after the State rested, it asked to reopen for the purpose of presenting more testimony regarding the use of a deadly weapon. The State also informed the judge that it would be abandoning Count 2 of the indictment, the burglary of a habitation charge, and proceeding only on Count 1, the aggravated robbery charge. In response, defense counsel, Mark Racer, requested an instruction on the lesser-included offense of robbery in exchange for the State’s reopening. As a result, the jury charge included instructions on aggravated robbery and robbery, and it did not include the burglary offense. The jury returned a verdict finding Appellant guilty of aggravated robbery. The judge entered a deadly-weapon finding and sentenced Appellant to thirty-five years’ confinement.

After the date of judgment, Racer filed a motion to withdraw as counsel. The court appointed another attorney, Tom Stickler, to represent Appellant. Stickler filed a motion for new trial citing five grounds, including ineffective assistance of counsel. At the hearing on Appellant’s motion for new trial, Racer testified that his attorney fee voucher noted an hour and a half of trial preparation. A court-appointed investigator listed four people who could possibly have served as witnesses for Appellant at trial had Racer sought their testimony. One of the people named was Roselie Padilla. She lived in a two-bedroom apartment with seven other people, including Appellant. Appellant slept on the sofa in the living room, near to Padilla and her son, both of whom slept on the floor. In her affidavit, offered at the hearing as evidence of an alibi, she stated that she was certain Appellant slept on the couch every night the week of the robbery. The court denied the motion for new trial, finding that Appellant did not meet his burden of showing prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III. Strickland

Strickland defines the elements required to show ineffective assistance of counsel. Id. at 687, 104 S.Ct. 2052. There are two required components: a performance component and a prejudice component. Id.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment

Id. To satisfy this prong of the analysis, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” based upon “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. For this performance inquiry we consider all of the circumstances, with “a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 688-89, 104 S.Ct. 2052.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. To satisfy this element, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. To succeed on an ineffectiveness claim, a defendant must show both components; failure to show either deficient performance or prejudice will defeat the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 818 (Tex.Crim.App.1999). The defendant bears the burden of proving ineffectiveness by a preponderance of the evidence. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). It was Appellant’s failure to show the second prong that resulted in the denial of his motion for new trial.

IV. Court of appeals

On appeal, Appellant argued that the trial court erred by denying his motion for new trial. Specifically, he cited the failure to pursue his alibi witness and the failure to do “any meaningful preparation or investigation” as constituting ineffective assistance of counsel. The court of appeals reviewed Appellant’s claim under Strickland’s two-prong test. Perez v. State, No. 14-07-00414-CR, 2008 WL 5220302, 2008 Tex.App. LEXIS 9293 (Tex.App.-Houston [14th Dist.] Dec. 11, 2008, pet. granted).

Under the first prong, the court decided that counsel’s performance was deficient based on the totality of the circumstances. Id. 2008 WL 5220302, at *5, 2008 Tex.App. LEXIS, 9293 at *13-14. In particular, the court noted the following facts as evidence that counsel’s representation fell below the standard of prevailing professional norms: Racer met with Appellant only two or three times before trial; he prepared for an hour and a half the day before the trial commenced; and, at trial, he did not present any witnesses or offer any evidence at all. Id. 2008 WL 5220302, at *4-5, 2008 Tex.App. LEXIS 9293, at *11-13. Therefore, the court concluded that Appellant met his burden under Strickland’s performance component.

Turning to the second prong, the court evaluated whether counsel’s failure to call witnesses at trial prejudiced the defense. The court reviewed Padilla’s affidavit and the testimony of Christina Pereda, who appeared at the hearing. Pereda lived in the same apartment as both Appellant and Padilla. Pereda said that while she could not provide an alibi for Appellant, Padilla could, and that she would have given Padilla’s contact information to Racer had she been given the opportunity to talk with him. The court found Pereda’s testimony and Padilla’s affidavit to be too unspecific to be helpful, and concluded that counsel’s deficient performance did not affect the judgment. Id. 2008 WL 5220302, at *6, 2008 Tex.App. LEXIS 9293, at *16-17. Because Appellant did not satisfy his burden under Strickland’s prejudice component, the court of appeals decided that Appellant had not received ineffective assistance of counsel. Id. 2008 WL 5220302, at *6-7, 2008 Tex.App. LEXIS 9293, at *18.

V. Analysis

We granted review to consider whether the court of appeals erred by failing to conclude that Appellant was prejudiced by Racer’s deficient performance. This issue pertains to Strickland’s second prong, and therefore we need not repeat the court of appeals’s analysis under the first prong, which determined that counsel’s performance was deficient. Counsel had “a duty to make reasonable investigations or to make a reasonable decision that [] particular investigations [were] unnecessary,” and the record clearly shows that this duty was neglected. Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Turning to the issue before this Court, Appellant asserts that he met his burden under the second Strickland prong by showing that if Racer had properly investigated and prepared for trial, Padilla would have served as an alibi witness, and the jury would have likely found Appellant not guilty. To succeed under the prejudice component, Appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. It will not suffice for Appellant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052. Rather, he must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. We review the totality of the evidence when evaluating Appellant’s ineffectiveness claim. Id.

So, we ask whether there is a reasonable probability that the jury would have had a reasonable doubt as to Appellant’s guilt had Padilla appeared at trial as an alibi witness. A pre-Strickland opinion from this Court, King v. State, 649 S.W.2d 42 (Tex.Crim.App.1983), is instructive on this question. In that case, the appellant asserted ineffective assistance of counsel in part because no witnesses testified on his behalf. Id. at 44. We stated that the “failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.” Id. Here, we are not convinced that Appellant would have bene-fitted from Padilla’s testimony, and we do not see a reasonable probability that her testimony would have changed the result of Appellant’s trial.

Padilla’s affidavit, the document upon which Appellant bases his entire ineffectiveness claim, states:

The Defendant, Oscar Perez, was charged with Burglary of a Habitation that occurred on November 30, 2005 at approximately 10:00 p.m. to 10:30 p.m.
Throughout the entire month of November and into December of 2005, I was living at the residence of Christina Pere-da. Also living at that residence was my son and Oscar Perez. Each night, Oscar Perez slept on the couch in the living room. Each night I, along with my son, slept on the floor by the couch that Oscar was on. Each night, we went to bed about 10:00 p.m. I am certain that Oscar was sleeping on the couch every night during the week of November 28th through December 2nd. I am certain that there was no night that Oscar was not there nor any night that he left. I remember this because it was the week after Thanksgiving and [sic] week or so before Oscar said the police were looking for him. At no time did Oscar Perez’ attorney contact me prior to the trial.

This is not beneficial to the extent required by Strickland, as we do not see a reasonable probability that Appellant would have been found not guilty had Racer presented Padilla’s testimony at trial. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. In fact, it is questionable whether this even functions as an alibi defense. Black’s Law Dictionary defines “alibi” as, “A defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.” Black’s Law Dictionary 56-57 (Abridged 7th ed.2000) (emphasis added).

The evidence concerning the timing of the robbery comes from the testimony of Maria Rangel and her son, Ernesto. Maria stated, “And I think it was about 8:00, something like that.” Ernesto testified that the break-in occurred “[p]retty late, like 10:00, 10:00 o’clock.” Padilla’s affidavit does not make it impossible for Appellant to have committed the robbery at around 8:00 or 10:00 p.m. on the evening of November 30. She states that she is “certain” Appellant slept on the couch every night the week of the robbery and that there was no night Appellant was not there. But with regard to Appellant’s presence at a specific time, the only information she provides is ambiguous.

She states, “Each night, we went to bed about 10:00 p.m.” It is unclear whether this one time-specific detail includes Appellant because the preceding sentence reads, “Each night I, along with my son, slept on the floor by the couch that [Appellant] was on.” So by saying “we went to bed about 10:00 p.m.,” she could be continuing to describe how she and her son slept, or she could be referring to all three people. Therefore, we cannot agree with Appellant’s assertion that “if the jury were to believe Ms. Padilla, then they would find that she went to bed along-side Appellant and her son on the night of the robbery at about 10:00 p.m., at the same time the robbery was occurring at another location.”

But even if Padilla is stating that Appellant went to bed at “about 10:00 p.m.,” that does not mean that it was physically impossible for Appellant to commit the robbery at approximately 8:00 or 10:00 p.m. Padilla’s testimony is too vague to be of any benefit to Appellant, and had she been called to testify at trial, we cannot say that there is a reasonable probability that Appellant would have been found not guilty. Padilla’s account is simply not the game-changer Appellant wishes it to be.

In evaluating the potential impact of an alibi witness, we must also consider the relative strength of the State’s case. We compare the evidence presented by the State with the “evidence the jury did not hear due to trial counsel’s failure to investigate.” Butler v. State, 716 S.W.2d 48, 56 (Tex.Crim.App.1986). In Butler, we affirmed the court of appeals’s reversal of the defendant’s conviction after concluding that he had received ineffective assistance of counsel. Id. at 57. In that case, when reviewing the prejudice component of the defendant’s ineffectiveness claim, we considered the strength of the State’s case:

No physical evidence linked appellant to the robbery. Only being stopped for speeding near the scene of the offense led to his arrest. He was convicted based on the identification testimony of only one witness, the complainant.

Id. at 56. In contrast, the evidence that defense counsel failed to present to the jury included the following:

the sworn testimony of two witnesses that someone other than appellant was actually the robber, and of a third witness that appellant was somewhere else at the exact time of the robbery.

Id. After reviewing what the State did present in light of what the defense failed to present, we concluded that the defendant had satisfied the second Strickland prong because the evidence undermined our confidence in the outcome of the defendant’s trial. Id. Appellant argues that the “strength of the case at bar is virtually indistinguishable from Butler and [the conviction] should be similarly reversed, not because his innocence was proven at the hearing on the motion for new trial, but so that the evidence may be subjected to the adversarial testing required by the Constitution.”

But Appellant’s contention ignores the standard required under Strickland: to show prejudice, there must be a reasonable probability, sufficient to undermine our confidence in the outcome, that the result of the proceeding would have been different had counsel performed reasonably. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. And, Appellant’s case is distinguishable from Butler such that we hold that Appellant’s conviction should not be reversed. True, the State’s case was not strong. The State presented three witnesses: Steve Ricks, the detective who arrived at the crime scene two days after the robbery; Maria Rangel; and, her son, Ernesto Rangel. Ernesto, who was thirteen at the time of the robbery, was the only eyewitness who could identify Appellant’s face, though it was partially covered with a bandana. However, the evidence the jury did not hear due to counsel’s failure to investigate is nowhere near as beneficial as the evidence in Butler (which included two witnesses who identified another man, by name, as the robber and a third witness who placed the defendant in his apartment at the exact time of the offense). Butler, 716 S.W.2d at 51. Despite the weaknesses in the State’s case, we cannot say that Padilla’s affidavit, nor any of the other evidence explored at the hearing, undermines our confidence in the outcome of Appellant’s trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

VI. Conclusion

We conclude that there is no reasonable probability that the result of the trial would have been different had counsel performed reasonably and satisfied his duty to investigate. We agree with the court of appeals that because Appellant did not show that his counsel’s deficient performance prejudiced the defense, Appellant did not receive ineffective assistance of counsel. We affirm the judgment of the court of appeals.

      . Throughout the trial, this man is called “Marco” and "Marcos.” On his judgment form, he is named "Marcus Antonio Tavira.”

      . The State asked that the court submit to the jury a deadly-weapon special issue in the charge.

      .Though it was admitted "for the purpose of this hearing,” it is unclear to what extent the judge actually considered the affidavit: "Even if I were to consider the affidavit, the affidavit is in my opinion deficient to establish because it does not state that the witness Roselie Padilla would be competent to testify, is over 18 or has personal knowledge of the facts."

      . Because Appellant's argument to this Court is based upon Racer's failure to present Padilla as an alibi witness at trial, the evidence of Racer's deficient performance that is most significant to our review is his failure to investigate Appellant’s alibi. Racer's notes from meeting with Appellant on February 8, 2006, reveal that Appellant informed him of an alibi witness, and yet, Racer did not attempt to track down the alibi witness, by calling Pereda, until the first day of trial, March 5, 2007.

      . Appellant’s brief states, "it is likely that the jury would have had a reasonable doubt and found him not guilty if they had just been presented with the alternate version of events contained in Ms. Padilla's affidavit.”

      . We cannot agree with Appellant that the "affidavit does directly contradict the State’s position at trial.”

      . Admittedly, the imprecise testimony from the eyewitnesses would be a hurdle for any alibi. To benefit Appellant and satisfy Strickland, an alibi would have to at least account for Appellant between 7:30 and 10:30 p.m.

      . We agree with Appellant that the court of appeals analyzed Padilla’s affidavit too harshly, though its result was correct. Reasoning that "Ms. Padilla's affidavit did not provide a specific event that she and appellant attended the night of the robbery” and that "Ms. Padilla failed to provide a specific date or event,” the court of appeals overstated the requirement that the testimony simply be beneficial to the extent that it undermines confidence in the outcome. Perez, 2008 WL 5220302, at *5-6, 2008 Tex.App. LEXIS 9293 at *15. It would have been beneficial enough had Padilla stated that she saw Appellant at a specific time at a location other than the crime-scene. Butler, 716 S.W.2d at 51 (witness testifying that she last saw the defendant when she left for work at 7:50). Contrary to the court of appeals's reasoning, Padilla did not have to say that she and Appellant attended an event on the night of the robbery.

      . The evidence presented by Stickler for the defense at the hearing on the motion for new trial included the following witnesses: Mark Racer, Appellant's trial counsel; Michael Ward, the court-appointed investigator who tracked down Roselie Padilla; Diana Perez, Appellant’s mother who testified regarding the lack of communication from Racer; Christina Pereda, who testified that she could have provided Racer with the information necessary to contact Padilla; Appellant; David Dowdy, one of the attorneys for the State; and, Melissa Perez, Appellant's sister who stated that she did not know where her brother was on the night of the robbery. The exhibits included the following: the attorney appointment form assigning Racer to Appellant; Racer’s attorney fee voucher; the judgment for Marcus; and, Roselie Padilla's affidavit.


author: MARIALYN BARNARD, Justice.

text:
    In re C.R.S.
    No. 04-09-00814-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 10, 2010.
    Kimberly S. Keller, The Keller Law Firm, San Antonio, TX, Tomas Ramirez, III, Law Office Of Tomas Ramirez III, Devine, TX, for Appellant.
    Robinson C. Ramsey, Langley & Ba-nack, Inc., San Antonio, TX, David Blanton Wilkerson, Pleasanton, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by

MARIALYN BARNARD, Justice.

On December 21, 2009, relator, Steven Anthony Schutze, filed a petition for writ of mandamus, complaining of the trial court’s December 16, 2009 order granting a new trial. Relator asserts the. trial court abused its discretion by (1) granting a new trial without stating its reasons for disregarding the jury’s verdict in violation of In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009), and (2) granting a new trial in contravention of the jury’s verdict in violation of Texas Family Code section 105.002(c)(1)(D).

The underlying proceeding is a child custody suit. Following a trial on the merits on October 5-7, 2009, the jury returned its verdict naming relator, the child’s father, the parent with the exclusive right to designate the child’s residence. After dismissing the jury, the trial court announced it was sua sponte granting a new trial in the case, but did not sign an order granting a new trial. Relator then filed a motion for reconsideration, and the trial court subsequently entered a judgment consistent with the jury’s verdict. Real party in interest, Kianna Dawkins, who is the child’s mother, filed a motion for new trial and subsequently an amended motion for new trial. After conducting a hearing on the motion, the trial court signed an order granting a new trial on December 16, 2009. The order provided that “in the interest of justice and fairness and in the child’s best interest, good cause exists to grant a new trial.” This petition for writ of mandamus ensued.

While a trial court has significant discretion in granting new trials, the trial court must specify the reasons it disregarded the jury’s verdict by granting anew trial. See In re Columbia, 290 S.W.3d at 215. “The reasons should be clearly identified and reasonably specific. Broad statements such as ‘in the interest of justice’ are not sufficiently specific.” Id. We conclude the trial court abused its discretion because the order granting the new trial fails to clearly identify and reasonably specify the reasons the new trial was granted in violation of In re Columbia. Id.

Relator further asks this court to reinstate the jury’s verdict, asserting the trial court’s order granting a new trial contravened the jury’s verdict in violation of Texas Family Code section 105.002(c)(1)(D). However, the trial court has not stated its specific grounds for refusing to enter judgment on the jury’s verdict and granting a new trial. See In re Columbia, 290 S.W.3d at 214. Therefore, we decline to consider whether the trial court’s order granting a new trial contravened the jury’s verdict in violation of Texas Family Code section 105.002(c)(1)(D). Id. (holding that the Court “decline[s] to consider whether mandamus relief is available as to the trial court’s action in disregarding the jury verdict” because the trial court failed to state the specific grounds for refusing to enter judgment on the jury’s verdict and granting a new trial). As a result of the foregoing, we deny, without prejudice, relator’s request for a writ of mandamus directing the trial court to enter judgment on the verdict. Id.

Accordingly, we deny, without prejudice, any relief beyond directing the trial court to specify its reasons for granting the new trial. We conditionally grant the petition for writ of mandamus and direct the trial court to specify the reasons it refused to enter judgment on the jury’s verdict and ordered a new trial. The writ will issue only if the trial court fails to comply with this opinion within 20 days.


author: OPINION PER CURIAM.

text:
    Marjorie WASHINGTON, Appellant, v. WALKER PLACE APARTMENTS, Appellee.
    No. 05-09-01103-CV.
    Court of Appeals of Texas, Dallas.
    March 30, 2010.
    Marjorie Washington, Dallas, TX, pro se.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION PER CURIAM.

By letter dated February 5, 2010, we notified appellant that her brief was overdue and failure to file a brief within ten days would result in dismissal of the appeal without further notice. To date, appellant has failed to file either her brief or otherwise communicate with the Court regarding this appeal. Accordingly, on the Court’s own motion, we dismiss the appeal. See Tex.R.App. P. 38.8(a)(1).


author: DAVID GAULTNEY, Justice.

text:
    In the ESTATE OF Carl J. HOELZER.
    No. 09-09-00003-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 1, 2010.
    Decided April 29, 2010.

      Roxie Huffman Lormand, Orange, for appellant.
    Bruce Gregory, Gregory Law Firm, Port Neches, for appellee.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Richard David Hoelzer challenges an order removing him as independent executor of the estate of Carl Hoelzer. Under the circumstances, the trial court did not abuse its discretion in proceeding with the removal hearing, and the record includes sufficient grounds to support the removal. We affirm the order.

The Asbestos Claims

Carl Hoelzer died in 1987. Carl’s will named Lillian Hoelzer — -Carl’s wife and Richard’s stepmother — as the independent executor and sole beneficiary of Carl’s estate. The last paragraph of the will, above Carl’s signature, commands that “no other action shall be had in the County Court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims.”

Twenty-three years ago, the year of Carl’s death, Lillian, individually and as independent executor of Carl’s estate, filed an asbestos lawsuit in federal court in Beaumont. She settled with various defendants. Carl’s children intervened in the lawsuit as wrongful death beneficiaries. Two claims against defendants in bankruptcy remain pending and are listed as property of Carl’s estate.

Eighteen years ago, Carl’s children filed a petition in probate court to remove Lillian as independent executor of Carl’s estate. Trujillo v. Gaspard, No. 09-92-256 CV, 1993 WL 490252, at *1 (Tex.App.Beaumont Nov. 24, 1998, writ denied). The petition alleged Lillian breached her fiduciary duty and embezzled estate proceeds. Id. The trial court denied the petition. Id. Finding the appellants lacked standing, this Court dismissed their appeal. Id. at *6 (“Appellants are not interested parties to decedent’s estate, thus have no standing to bring their action for removal of appellee.”).

Carl’s children then filed suit against Lillian in Orange County District Court. Hoelzer v. Gaspard, No. 09-95-064 CV, 1996 WL 274369 (Tex.App.-Beaumont May 23, 1996, writ denied). They alleged Lillian breached her fiduciary duty by self-dealing, misapplying funds, embezzling funds, and committing gross misconduct. Id. at *1. The district court granted summary judgment in favor of Lillian based on the defense of limitations, and this Court affirmed the judgment fourteen years ago. Id. at *2.

Lillian died in 2007. In 2008, Richard was named the successor independent executor, as Carl’s will provided. Shortly thereafter, Richard filed a verified claim against the estate in the amount of $150,000 on behalf of himself and his three siblings. The sworn claim requested reimbursement for funds Lillian received as a result of the 1987 asbestos litigation but “never distributed” to Carl’s children. Richard “allowed and approved” as a result of the claim as independent executor.

The Motion to Remove

Clyde Hebert, Lillian’s son and appellee here, then filed a motion to remove and disqualify Richard as independent executor of Carl’s estate. The motion asserted that Richard filed the verified claim against the estate for his personal benefit. The motion stated that Richard’s allowance and approval of the claim “constitute sufficient grounds to support the belief that once the expected asbestos bankruptcy settlements are paid to the estate, [Richard] will simply pay the claimants of the [verified claim] the full amount of the asbestos settlement.” The motion argues this payment would be a misapplication of estate property because the courts have already determined that the claimants are not creditors of the estate and the claim is time-barred. According to the motion, Richard’s interests are adverse to the estate and his actions constitute “gross misconduct and mismanagement[.]” The motion also asserted that Richard was “about to misapply estate assets,” and had failed to timely file an inventory. After a hearing, the court concluded Richard was unsuitable to serve as successor executor and removed him as independent executor of Carl’s estate.

Appellant’s Issues

Richard raises three issues on appeal. In his first issue, he argues the trial court committed reversible error and denied him due process because he had not received forty-five days’ notice of the hearing. Second, he maintains the trial court committed reversible error and denied him due process by overruling his verified motion for continuance. In his third issue, he asserts there was no evidence, or alternatively insufficient evidence, to warrant removal under section 149C of the Texas Probate Code.

Rule 245

Although Richard’s verified motion for continuance did not reference Rule 245, he objected on that basis at the removal hearing. Texas Rule of Civil Procedure 245 provides that a court must give at least forty-five days’ notice of the first trial setting in a contested case, and any resetting of the case must be on a later date with reasonable notice to the parties. Tex.R. Civ. P. 245. We will assume that this was the first trial setting in addressing the argument that he was entitled to forty-five days’ notice.

The Texas Rules of Civil Procedure apply in probate matters unless the rules conflict with specific provisions in the Probate Code. See Tex.R. Civ. P. 2; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983). Section 33 of the Probate Code addresses citation, notices, and writs in probate matters. Tex. Prob. Code Ann. § 33 (Vernon 2003). The section provides in part that “No person need be cited or otherwise given notice except in situations in which this Code expressly provides for citation or the giving of notice[J” Id. § 33(a). Section 149C, the section of the Code that authorizes removal of an independent executor, expressly provides that the court may remove an independent executor for certain reasons “after the independent executor has been cited by personal service to answer at a time and place fixed in the noticef.]” Tex. Prob.Code Ann. § 149C(a) (Vernon Supp. 2009) , This provision gives the court some flexibility in providing notice of the time and place for answer. Because the Probate Code has a specific provision for notice of a removal hearing that does not require forty-five days’ notice to the independent executor, we conclude Rule 245 does not apply to the removal proceeding. See Tex.R. Civ. P. 2; Cunningham, 660 S.W.2d at 812; cf. Tex. Prob.Code Ann. § 78 (Vernon 2003) (containing no specific provision for notice of disqualification hearing); In re Estate of Crenshaw, 982 S.W.2d 568, 571 (Tex.App.-Amarillo 1998, no pet.) (applying Rule 245 to hearing on disqualification of independent executor under section 78 of the Texas Probate Code). Issue one is overruled.

DISCOVERY

In issue two, Richard argues he was denied due process because the trial court denied his verified motion for continuance. Due process generally refers to adequate notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001). Specifically, Richard claims he was denied discovery. A request to produce “forwarded” to Hebert ten days before the hearing had not been answered by the date of the hearing, and that was the basis for the motion for continuance. The specific issue presented on appeal is the one raised in the motion for continuance: the discovery issue. The question relates to the issue of adequate notice, because generally a party must exercise due diligence in conducting desired discovery. We first consider when service of the motion occurred.

Section 149C provides in part that the independent executor may be removed “after the independent executor has been cited by personal service to answer[.]” Tex. Prob.Code Ann. § 149C(a). At the removal hearing, Richard’s counsel argued her client “still has not been served,” but she “went ahead and filed an answer on his behalf, basically accepting service, so that [she] could file the motion to continue the case[.]” By appearing and filing an answer, counsel accepted service of the removal motion and the order to show cause, as she stated to the probate court.

Hebert had unsuccessfully attempted to serve Richard with the motion to remove at a Nederland address provided by Richard in his prior filings with the court. An affidavit from a deputy constable stated that Richard’s sister told thé deputy who attempted to serve Richard at the Neder-land address that she lived at the residence and that Richard lived in Florida. The deputy constable conducted a computer search and found a Florida address for Richard.

At the removal hearing, Richard’s counsel informed the court that Richard owns a house in Florida but resides in Texas. According to counsel, Richard evacuated from Texas as a result of Hurricane Ike. Richard had not returned to Texas. More than a month after Hebert filed the motion to remove Richard as independent executor of Carl’s estate, and on the date of the hearing, Richard filed an answer, a designation of a registered agent, and a motion for continuance.

To be qualified to serve as an independent executor, a non-resident of Texas must appoint a registered agent for service of process. See Tex. Prob.Code § 78(c) (Vernon 2003). Richard had not designated a registered agent at the time Hebert attempted service of the motion.

Section 33 of the Probate Code provides in part:

Where it is provided that personal service shall be had with respect to' a citation or notice, any such citation or notice must be served upon the attorney of record for the person to be cited. Notwithstanding the requirement of personal service, service may be made upon such attorney by any of the methods hereinafter specified for service upon an attorney.

Tex. PROb.Code Ann. § 33(f)(1) (Vernon 2003) (emphasis added). Section 34, entitled “Service on Attorney,” provides:

If any attorney shall have entered his appearance of record for any party in any proceeding in probate, all citations and notices required to be served on the party in such proceeding shall be served on the attorney, and such service shall be in lieu of service upon the party for whom the attorney appears. All notices served on attorneys in accordance with this section may be served by registered or certified mail or by delivery to the attorney in person. They may be served by a party to the proceeding or his attorney of record, or by the proper sheriff or constable, or by any other person competent to testify. A written statement by an attorney of record, or the return of the officer, or the affidavit of any other person showing service shall be prima facie evidence of the fact of service.

Id. § 34 (Vernon 2003) (emphasis added).

Richard does not contest the certificate of service dated September 4, 2008, by Hebert’s attorney of record establishing service of the motion on Richard’s attorney of record. We conclude appellant was served with the motion by “personal service” as that term is used in sections 149C and 33(f)(1) by timely service on his attorney of record. See Tex. Prob.Code Ann. §§ 33(f)(1), 34, 149C; see also Cunningham, 660 S.W.2d at 813. But see Wetsel v. Estate of Perry, 842 S.W.2d 374, 375 (Tex.App.-Waco 1992, no writ) (citing section 33(e), but not 33(f)(1), and holding that service on executor’s attorney is not “personal service” for purposes of section 149C).

The motion for continuance does not state when Richard or Richard’s attorney of record learned of the hearing date. Apparently this was not the first proceeding — in this and in other courts — related to the asbestos settlements. The documents may also relate to new litigation Richard filed in Orange County district court against Hebert, because the motion to continue or abate referenced that litigation. The motion does not adequately explain why Richard did not obtain the documents in any other proceeding, or at any time before Richard approved his own claim, nor does the motion explain why the document request was not brought to the attention of the court before the hearing date.

A motion for continuance may not be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex.R. Civ. P. 251. When reviewing a trial court’s denial of a motion for continuance, an appellate court considers whether the trial court committed a clear abuse of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id.

Richard’s counsel attached an affidavit to the motion for continuance stating that the documents sought in the request for production were vital and material to defending against the motion to remove or disqualify, that the motion for continuance was not for purpose of delay, and that the requested documents could not be obtained from any other source. The items requested included documents related to the settlements and written communications from the law firm that handled the settlements. The affidavit and motion set forth a conclusion about the diligence exercised to obtain the discovery, but provided few specific facts.

On this record, it is not clear that the discovery request addressed only matters “not privileged” and “relevant to the subject matter” of the hearing. See Tex.R. Civ. P. 192.3 (scope of permissible discovery). Nevertheless, assuming the document request may have related to non-privileged matters relevant to the issue of the removal hearing, the court could have reasonably concluded that Richard had adequate notice of the removal motion through his counsel, and that Richard did not promptly bring the discovery issue to the court’s attention before the date of the removal hearing. When a motion for continuance claiming a need for discovery is filed on the day of a removal hearing, and sufficient explanation for the delay in presentation of the issue is not provided, the trial court may reasonably consider the motion as presented too late. See generally BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800-01 (Tex.2002) (denial of motion for continuance based on asserted need for discovery). Under the circumstances, appellant has not established that the court clearly abused its discretion in denying the motion for continuance requesting time for discovery and presented on the day of the removal hearing. Issue two is overruled.

“Sufficient GROunds Appear to Support Belief”

In his third issue, Richard asserts no evidence, or alternatively insufficient evidence, supports his removal under section 149C of the Texas Probate Code. Richard complains that it was not improper for him to try to correct a mistake Lillian committed as the former independent executor of Carl’s estate. According to Richard, since a final accounting has not been filed, the statute of limitations has not run on his claim.

An appellate court reviews a trial court’s order removing an independent’ executor for an abuse of discretion. See Lee v. Lee, 47 S.W.3d 767, 789 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); Spies v. Milner, 928 S.W.2d 317, 319 (Tex.App.Fort Worth 1996, no writ). An appellate court will not overturn the trial court’s decision merely because the appellate court might have reached the opposite conclusion, but will do so when the trial court’s decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Lee, 47 S.W.3d at 786 (citing Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997)).

Richard contends the trial court erred by applying section 78, instead of section 149C, in removing him as independent executor of Carl’s estate. Section 78 of the Texas Probate Code provides that a person is unqualified to serve as an executor or administrator if that person is:

(a) An incapacitated person;
(b) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;
(c) A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;
(d) A corporation not authorized to act as a fiduciary in this State; or
(e) A person whom the court finds unsuitable.

Tex. Prob.Code Ann. § 78 (Vernon 2003). See also Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex.App.-San Antonio 1996, no writ); see also Boyles v. Gresham, 158 Tex. 158, 309 S.W.2d 50, 53-54 (1958) (“Neither the Model Code nor the Texas Probate Code purports to define ‘unsuitable,’ and we shall not attempt here to define it.”).

Section 149C(a) states the court may remove an independent executor when:

(1) the independent executor fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to the independent executor’s knowledge;
(2) sufficient grounds appear to support belief that the independent executor has misapplied or embezzled, or that the independent executor is about to misapply or embezzle, all or any part of the property committed to the independent executor’s care;
(3) the independent executor fails to make an accounting which is required by law to be made;
(4) the independent executor fails to timely file the affidavit or certificate required by Section 128A of this code;
(5) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties; or
(6) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor’s fiduciary duties.

Tex. Prob.Code Ann. § 1490(a).

Richard cites Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex.2009), in support of his argument that only the grounds set out in section 149C can support removal of an independent executor. In Ka/ppus, the Supreme Court stated that “the grounds to remove an independent executor po.si-ap-pointment are different from those to disqualify an executor pre-appointment.” 284 S.W.3d at 835. The Court noted that “section 149C lists six specific grounds for removal, none quite as expansive as unsuitability.” Id.

Hebert maintains that the language of section 78 contains no restriction on its applicability post-appointment. Hebert contends that adopting Richard’s logic— that section 78 applies only pre-appointment — would mean that a person convicted of a felony offense post-appointment would be unqualified to serve, but would be allowed to continue to serve simply because he had already been appointed. Hebert asserts this “creates the intolerable circumstance of being forced to allow an unqualified person to remain as executor.”

Hebert also argued in his motion that the payment of the verified claim would be a misapplication of estate property. Hebert presented evidence that Richard filed the verified claim on his own behalf and on behalf of his siblings in an attempt to gain the same settlement funds resolved against Richard by a prior judgment. The trial court heard evidence of unsuccessful lawsuits filed by Richard prior to his appointment that were attempts to receive portions of the asbestos settlement funds. The trial court also heard evidence that several lis pendens had been filed. The trial court’s findings of fact include findings that, despite contrary rulings, Richard “allowed and approved” his verified claim. The trial court found Richard did not file an inventory within ninety days of being appointed as successor executor. The trial court’s conclusions of law state, among other things, that the verified claim was a personal claim favoring Richard and his siblings against the interest of Carl’s estate, that Richard’s “allowance and approval” of the verified claim and participation in related legal actions were adverse to Carl’s estate, and that Richard is disqualified to serve as independent executor of Carl’s estate.

Richard’s claim was listed on his first untimely inventory that was not presented to the court. The record supports the court’s finding that Richard did not file the inventory within ninety days of his qualification. Although the trial court did eventually approve an amended inventory Richard filed shortly before the removal hearing, that amended inventory did not include the $150,000 claim.

A judgment in a non-jury trial, if correct under any legal theory “supported by sufficient evidence and findings of fact, will be upheld even though there are errors in the conclusions of law.” Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 630 n. 10 (Tex.1992). We therefore need not decide whether section 149C precludes removal based on an executor’s “post-appointment” disqualification under section 78, because in this case sufficient grounds support removal under the provisions of section 149C. Section 149C(b) provides in part that the order shall state the cause for the removal. Tex. Prop.Code Ann. § 149C(b). Here, the record and the findings by the trial court support the order. In addition to finding that the independent executor was disqualified because he was “unsuitable,” the order concluded “removal” was appropriate. The court found sufficient grounds under the removal statute as well as the disqualification statute to replace Richard as independent executor of Carl’s estate.

Under section 149C, a trial court may remove an executor when “sufficient grounds appear to support belief that [the independent executor] has misapplied ... or is about to misapply ... all or any part of the property committed to [the independent executor’s care.]” Tex. Prob.Code Ann. § 149C(a)(2) (emphasis added). In this provision, the word “belief,” preceded by the words “appear” and “support”, does not imply a requirement of certitude. See id. Rather, it appears the Legislature intended to give discretion to the court to remove an independent executor under this provision when sufficient grounds indicate to the judge an effort by the independent executor to misapply estate property. See Kappus, 284 S.W.3d at 836 (“engaged in subterfuge or wrongful misuse”).

In deciding to remove Richard, the court was not required to determine the merits of Richard’s claim as a wrongful death beneficiary to any future settlement payments, or to decide the limitations issue. On this record, the judge could reasonably conclude “sufficient grounds appear to support belief’ that Richard intended to apply any funds received by the estate to pay a judgment-barred claim, a claim he did not list on the amended inventory presented to and approved by the court. See Tex. Prob.Code Ann. § 149C(a)(2); Black, 835 S.W.2d at 630, n. 10. The court could reasonably conclude under the circumstances of this case that the process Richard followed as independent executor to pursue his contested adverse claim against the estate was “sufficient grounds” for Richard’s removal under section 149C(a)(2). The removal order is supported by sufficient evidence. The trial court did not abuse its discretion by removing Richard. Issue three is overruled.

The order of removal is affirmed.

AFFIRMED.

      . This language has not materially changed since Carl's death.