author: Justice MOSELEY.

text:
    Ricky and Janice TURNER, Individually and as next friend of K.M.T., a Minor, Appellants, v. Jonathan FRANKLIN, M.D. and Evan Cohn, M.D., Appellees.
    No. 05-08-00011-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 13, 2010.
    Rehearing Overruled Nov. 9, 2010.

      Kirk L. Pittard, Durham & Pittard, LLP, Dallas, TX, for Appellants.
    Vernon L. Krueger, Stewart & Stimmel, LLP, R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Ty Bailey, Stinnett Thiebaud & Remington, L.L.P., Dallas, TX, for Appellees.

      Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice MOSELEY.

For some health care liability claims arising from the provision of “emergency medical care,” the claimant must show by a preponderance of the evidence that the defendant deviated from the applicable standard(s) of care “with wilful and wanton negligence.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.158 (Vernon 2005). The issues before us on this appeal are: (1) do the plaintiffs’ health care liability claims arise from the provision of “emergency medical care” within the meaning of section 74.153; and, if the answer to that question is “yes,” then (2) what does “wilful and wanton negligence” mean; (3) can the issue of “wilful and wanton negligence” ever be disposed of through summary judgment; and (4) was it properly disposed of by summary judgment here.

This lawsuit arises out of the medical care that K.M.T., the fourteen-year-old son of appellants Ricky and Janice Turner, received in the emergency department of Presbyterian Hospital in Allen. Even though the summary judgment evidence indicates K.M.T.’s condition was diagnosed and treated as a non-emergency, we conclude the Turners’ claims arise from the provision of “emergency medical care” within the meaning of section 74.153. We also conclude that in the context of section 74.153, “wilful and wanton negligence” means “gross negligence.” Finally, after reviewing the summary judgment evidence, we affirm the trial court’s no-evidence summary judgment as to appellee Evan Cohn, M.D., reverse the trial court’s traditional summary judgment as to appel-lee Jonathan Franklin, M.D., and remand the case for further proceedings.

BACKGROUND

Shortly after midnight on April 3, 2003, K.M.T. awoke with sudden and severe pain in his lower left abdominal region and swelling in his left testicle. His parents took him to the emergency department of Presbyterian Hospital in Allen. The nurse’s notes indicate K.M.T. described his symptoms as nausea and a pain level of “10” on a scale of one to ten. K.M.T. was examined by Franklin, an emergency department physician, who suspected K.M.T. had either testicular torsion or epididymi-tis. Testicular torsion is a condition whereby the testicle becomes twisted on its own spermatic cord and, if not treated within four to six hours, the testicle will die. Epididymitis is inflammation of the epididymis; it has many of the same symptoms as torsion but is not considered an emergency condition and is treated with antibiotics.

Franklin ordered pain medication for K.M.T. and a scrotal ultrasound in an effort to rule out torsion. A technician performed the ultrasound and called Cohn, the radiologist on call that night, at home to review the images. She told Cohn she observed arterial blood flow in both testicles and she did not see evidence of torsion. After reviewing the ultrasound images from his home, Cohn faxed a report to the emergency department; the report stated K.M.T. had epididymitis with no evidence of torsion. Based on his examination of K.M.T. and his review of Cohn’s report, Franklin diagnosed K.M.T. with epididymitis, prescribed pain medication and antibiotics, and discharged him at approximately 3:45 a.m.

K.M.T. sought medical treatment for the same complaint over the next several days. He saw his pediatrician twice and also returned to the same emergency department. Each time, the diagnosis of epidi-dymitis was confirmed, and K.M.T. was released. When the symptoms did not improve, K.M.T. returned to his pediatrician on April 9, 2008. The pediatrician ordered a new ultrasound. The radiologist who reviewed the new ultrasound noted a “left testicular tumor.” Based on the results of this new ultrasound, KM.T.’s pediatrician referred him to a urologist, Dr. William Strand.

Strand saw K.M.T. the same day. Strand’s impression was that K.M.T. did not have a testicular tumor, but, instead, had testicular torsion. Strand performed left scrotal exploratory surgery that same day and found and removed a torsed, nonviable left testicle.

The Turners filed suit asserting health care liability claims against Franklin and Cohn. They alleged: (1) Cohn incorrectly interpreted the scrotal ultrasound as being consistent with epididymitis with no evidence of torsion; and (2) Franklin failed to consult a urologist and incorrectly diagnosed epididymitis instead of testicular torsion.

Franklin and Cohn moved for traditional summary judgment, see Tex.R. Civ. P. 166a(c), arguing the evidence proved as a matter of law that their conduct did not rise to the level of willful and wanton negligence, as required by section 74.153. Cohn also filed a no-evidence motion for summary judgment, see Tex.R. Civ. P. 166a(i), arguing the Turners could not present sufficient evidence to raise a genuine issue of fact that he acted with willful and wanton negligence.

In response, the Turners argued that section 74.153 did not apply because appel-lees did not render “emergency medical care” to K.M.T. as defined by the statute. They also argued that whether a physician was willfully and wantonly negligent is a matter that can only be determined by the jury and is never an appropriate issue for summary judgment. Further, they argued the summary judgment evidence did not disprove willful and wanton negligence as a matter of law and that they raised a genuine issue of material fact on the element of willful and wanton negligence.

The trial court granted appellees’ motions and rendered final judgments in favor of each appellee. The Turners appeal.

Standards of Review

We review a summary judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). When we review a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiffs claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grin nell, 951 S.W.2d 420, 425 (Tex.1997); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.App.-Dallas 2009, no pet.); see also Tex.R. Civ. P. 166a(c). We take evidence favorable to the non-movant as true, and we indulge every reasonable inference and resolve every doubt in favor of the non-movant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994).

When we review a no-evidence summary judgment, we inquire whether the non-movant adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.); see also Tex.R. Civ. P. 166a(i). All conflicts in the evidence are disregarded, and the evidence that tends to support the non-movant is accepted as true. Connor v. Waltrip, 791 S.W.2d 537, 539 (Tex.App.-Dallas 1990, no writ). A no-evidence motion for summary judgment should be denied if the evidence is sufficient for reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (per curiam). On the other hand, if the evidence is so weak as to create only a mere surmise or suspicion of a fact’s existence, the evidence is in legal effect “no evidence,” and summary judgment is proper. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Smith, 285 S.W.3d at 909.

Discussion

A. Does Section 74.153 Apply?

Section 74.153 governs health care liability claims for injuries or death arising from the provision of “emergency medical care” in a hospital emergency department, or in an obstetrical unit or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department. It provides that, for such claims, the claimant

may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Tex. Civ. Prac. & Rem.Code Ann. § 74.153 (emphasis added).

In their first issue, the Turners assert section 74.153 does not apply to their claims because appellees did not provide “emergency medical care.” As stated in the Turners’ brief: “Because Dr. Franklin diagnosed a non-emergency condition and treated [KM.T.’s] condition in a non-emergent manner, Franklin cannot now take advantage of the protections in section 74.153 concerning the provision of emergency care which he did not provide.”

1. “Emergency Medical Care”

The statutory definition of “emergency medical care” as used in section 74.153 comprises two elements: (1) the type of care provided (i.e., “bona fide emergency services”), and (2) the circumstances under which those services are provided. Specifically, the legislature defined “emergency medical care” as

bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part....

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(7) (Vernon 2005) (emphasis added). Because the legislature provided more detail as to the second element of the definition, we will address that element first.

(a) Circumstances of providing services

Section 74.001(7) requires that the “bona fide emergency services” must be provided after the sudden onset of a medical or traumatic condition manifested with acute symptoms so severe that “the absence of immediate medical attention could reasonably be expected ” to result in serious jeopardy to the patient’s health, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. See id. (emphasis added). The section goes on to exclude “medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency.” Id. Therefore, it is the severity of the patient’s condition, its rapid or unforeseen origination, and the urgent need for immediate medical attention — including diagnosis, treatment, or both — in order to minimize the risk of serious and negative consequences to the patient’s health that comprise the second element of the definition of “emergency medical care.” The use of the phrase “could reasonably be expected,” italicized above, also makes clear that whether the circumstances meet the second element of “emergency medical care” must be viewed prospectively and objectively, not retrospectively or subjectively.

(b) “Bona fide emergency services”

Neither the phrase “bona fide emergency services” nor its constituent parts is defined by the statute. However, because the phrase is a component of the statutory definition of “emergency medical care,” the definition of “medical care” applicable to chapter 74 as a whole provides some guidance. That phrase is defined as “any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(19). In turn, the occupations code defines “practicing medicine” as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions.” Tex. Occ.Code Ann. § 151.002(13) (Vernon Supp.2009) (emphasis added). We consider the term “practicing medicine” to be narrower than both “medical care” and “bona fide emergency services”; however, we conclude the two latter terms both include the former, and that all three terms encompass diagnosis as well as treatment.

“Bona fide” is a Latin phrase meaning “in good faith.” See Black’s Law Dictionary 168 (7th ed. 1999). It is commonly used to convey that meaning, although in some circumstances “bona fide” is used in such a way as to compel a secondary meaning of “actual” or “real.” We find nothing to compel the conclusion that the legislature intended “bona fide” to convey the secondary definition. Moreover, we note that construing “bona fide” to mean “real or actual” would require “emergency medical care” to be determined retrospectively, in contradiction of the second element of the definition (discussed above), which requires a prospective determination.

Thus, we conclude “bona fide emergency services” means any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions. And if such services are provided during the time period and under the circumstances specified in section 74.001(7), they constitute “emergency medical care” within the meaning of section 74.158.

2. Analysis

The Turners argue that because appellees misdiagnosed K.M.T. with a non-emergency medical condition (epididymi-tis) and treated it accordingly (i.e., with antibiotics), their claims against appellees do not arise out of the provision of “emergency medical care.” The essence of their argument is that section 74.158 applies only when a physician diagnoses a condition as an emergency and treats it accordingly. We reject this argument for several reasons.

First, the Turners’ argument ignores the fact that “emergency medical care” includes both “diagnosis” as well as “treatment.” As discussed above, the very act of diagnosing the patient under the circumstances and during the time period outlined in section 74.001(7) is itself included within the meaning of “emergency medical care.” And that holds true regardless of whether the health care provider reached a diagnostic conclusion that the patient was suffering from a true emergency condition.

Second, the Turners’ argument would restrict the additional protections afforded to health care providers by the statute to those instances in which they reached the diagnostic conclusion that the patient was suffering from a true emergency condition. This restriction would create an incentive for health care providers to assume the most dire of possibilities — and treat the patient accordingly — in order to be assured of the protections afforded by the statute. In contrast, the legislature did not define “emergency medical care” according to whether a particular diagnosis was made. Rather, it defined “emergency medical care” according to the type of services provided — including both diagnosis and treatment — and the circumstances under which those services were provided — i.e., after the sudden onset of a serious medical condition where failure to provide immediate medical attention could reasonably be expected to result in dire consequences to the patient.

Third, the Turners’ argument necessarily entails a retrospective determination of whether a particular set of circumstances constitutes an emergency. This ignores the statutory language clearly calling for a prospective determination of that issue and undercuts the legislature’s purpose in enacting the statute to provide physicians or health care providers a prospective incentive to provide emergency medical care in uncertain circumstances.

Because “medical care” includes the diagnosis of any disease or injury, we reject the contention that “bona fide emergency services” does not include the diagnosis of a non-emergency condition. As long as the diagnosis is made under the circumstances and within the time period provided, the diagnosis constitutes the provision of emergency medical care, regardless of the diagnostic determination made. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(7).

Here, K.M.T. went to the emergency department after experiencing “sudden” and “severe” pain. One of the possible diagnoses of his condition — testicular torsion — would, if correct, result in the loss of the testicle if not treated promptly. (In fact, it turned out K.M.T. was suffering from testicular torsion.) The Turners do not dispute that conducting an ultrasound examination constituted a good faith course of action under the circumstances. Indeed, the Turners assert appellees deviated from the standard of care — not by conducting the ultrasound examination— but by improperly interpreting its results.

Thus, Franklin’s and Cohn’s actions were in response to the sudden onset of acute and severe symptoms where the lack of immediate medical attention “could reasonably be expected” to result in serious consequences to K.M.T.’s health and physical condition. See id. We conclude that appellees’ actions constitute “bona fide emergency services” within the meaning of section 74.001(7). Thus, the Turners’ claims are for injuries arising out of the provision of emergency medical care within the meaning of section 74.001(7), and section 74.158 applies to their claims. We resolve the Turners’ first issue against them.

B. Can Willful and Wanton Negligence be Resolved by Summary Judgment?

In their second issue, the Turners argue the element of willful and wanton negligence is not appropriate for determination by summary judgment and should always be submitted to a jury. They also argue willful and wanton negligence, as used in section 74.158, is- not the standard of care, but, instead, is the standard of proof required at trial. See id. § 74.153 (entitled “Standard of Proof in Cases Involving Emergency Medical Care”).

1. Meaning of Willful and Wanton Negligence.

To resolve the Turners’ argument, we must first assess the meaning of “wilful and wanton negligence.” The statute does not define this phrase. The parties agree it is equivalent to gross negligence. However, the meaning of “wilful and wanton negligence” for purposes of section 74.153 is an issue of first impression in this Court.

The legislative history of House Bill 4 indicates the legislature did not intend to change the standard of liability for emergency care. During the senate hearings adopting the conference committee report on House Bill 4, one senator, in response to a question about the language in section 74.153, stated “No, the standard is the same. Both wilful and wanton negligence are covered, but this is basically a gross negligence standard. You don’t have to prove intent.” S.J. of Tex., 78th Leg., R.S. 5004 (2003). Further, courts addressing the former Good Samaritan statute, which is similar to section 74.153, have equated willful and wanton negligence with gross negligence. And Texas courts have also equated willful and wanton conduct with gross negligence when interpreting similar language in other statutes.

We conclude the legislature intended “wilful and wanton negligence,” as used in section 74.153 of the civil practice and remedies code, to mean “gross negligence.”

Gross negligence, in turn, is comprised of two elements-one objective and one subjective. Circumstantial evidence is sufficient to prove either element of gross negligence. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22-28 (Tex.1994).

First, viewed objectively from the actor’s standpoint, the act or omission must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others, considering the probability and magnitude of the potential harm to others. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.2008); Moriel, 879 S.W.2d at 23. Under the objective element, the defendant’s conduct must create “an extreme degree of risk,” which is a “threshold significantly higher than the objective ‘reasonable person’ test for negligence.” Moriel, 879 S.W.2d at 22 (quoting Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993)); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). Extreme risk is more than a remote possibility of injury or even a high probability of slight injury; the defendant’s conduct must involve “the likelihood of serious injury” to the plaintiff. Moriel, 879 S.W.2d at 22 (quoting Alexander, 868 S.W.2d at 327).

To meet the subjective element, the actor must “have actual, subjective awareness of the risk involved and choose to proceed in conscious indifference to the rights, safety, or welfare of others.” Hogue, 271 S.W.3d at 248; see also Moriel, 879 S.W.2d at 28; Ellender, 968 S.W.2d at 921. “The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare, and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.” Burk Royalty, 616 S.W.2d at 922; accord Ellender, 968 S.W.2d at 921.

2. Deciding Willful and Wanton (i.e., Gross) Negligence by Summary Judgment

Having concluded the “wilful and wanton negligence” standard under section 74.153 is equivalent to a gross negligence standard, we consider the Turners’ argument that the standard can never be decided by summary judgment.

The Turners have not cited authority expressly holding that willful and wanton negligence or gross negligence must always be decided by a jury or trier of fact. Several cases have reversed summary judgments where the defendant argued he had disproved gross negligence or willful and wanton negligence as a matter of law. In other cases, the trial court’s summary judgment determination of that issue was upheld.

Because willful and wanton negligence (i.e., gross negligence) has a subjective element inquiring into the defendant’s state of mind, and because issues of intent are usually best left to the trier of fact to resolve based on all the evidence and surrounding circumstances, determining that issue by summary judgment usually will be inappropriate. However, we conclude there is nothing about the willful and wanton negligence standard in section 74.153 that categorically precludes it from resolution by summary judgment. As with any other issue, whether summary judgment is proper must be determined by reviewing the summary judgment evidence in each case under the established, applicable standards. Tex.R. Civ. P. 166a.

We resolve the Turners’ second issue against them.

C. Was Summary Judgment Appropriate Here?

In their third issue, the Turners argue Franklin did not conclusively disprove that he acted with willful and wanton negligence. They also argue that they raised genuine issues of material fact regarding whether Franklin and Cohn acted with willful and wanton negligence.

1. As to Franklin

Because Franklin moved for summary judgment only on traditional grounds, it was his burden to conclusively disprove the subjective element required to prove gross negligence. See Grinnell, 951 S.W.2d at 425; Deneve, 285 S.W.3d at 909. In other words, he had to negate as a matter of law that he had “actual, subjective awareness of the risk involved and [chose] to proceed in conscious indifference to the rights, safety, or welfare of others.” Hogue, 271 S.W.3d at 248; see also Lee Lewis Constr. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Burk Royalty, 616 S.W.2d at 922. We take the evidence favorable to the Turners, the non-movants, as true and indulge every reasonable inference and resolve every doubt in their favor. Trapnell, 890 S.W.2d at 800.

Franklin relies on the deposition testimony of the Turners’ expert, Dr. Craig Kennedy, who testified that although he believed that Franklin made the wrong “call” and that his actions constituted negligence, he did not believe Franklin tried to harm K.M.T. or that Franklin’s actions constituted a “complete want of care” for K.M.T. Franklin argues this evidence negated the element of intent as a matter of law and thus summary judgment in his favor was justified. The Turners respond that intent to harm is not required to prove a defendant acted with willful and wanton negligence, and thus the testimony cited to support Franklin’s position that the conduct was not intentional is irrelevant. We agree with the Turners.

Evidence of “some care” will not disprove gross negligence as a matter of law. See Ellender, 968 S.W.2d at 923-24 (evidence of “some care” will not insulate defendant from gross negligence liability); Frias v. Atl. Richfield Co., 999 S.W.2d 97, 105-06 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (evidence of precautions taken by employer to protect employees from exposure to benzene did not conclusively negate subjective element of gross negligence). Courts must look for “evidence of the defendant’s subjective mental state rather than the defendant’s exercise of care.” Moriel, 879 S.W.2d at 20. Gross negligence does not require proof the defendant intended or tried to harm the plaintiff; it requires proof the defendant was subjectively aware of the risk involved and chose to proceed in conscious indifference of the rights, welfare, and safety of others. Hogue, 271 S.W.3d at 248.

The quoted testimony indicates Kennedy believed Franklin tried to care for K.M.T. and did not intend to harm him. It does not, however, address Franklin’s subjective awareness of a risk or whether he acted with conscious indifference to the rights, safety, or welfare of others. This evidence is insufficient to disprove gross negligence, i.e., willful and wanton negligence, on Franklin’s part as a matter of law.

Nor do we believe that classifying a defendant’s acts or omissions as a “judgment call” conclusively negates the subjective element of gross negligence. The subjective awareness and conscious indifference necessary for a finding of gross negligence will almost always require evidence of “all of the surrounding facts, circumstances, and conditions, not just individual elements or facts.” City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005) (quoting Burk Royalty, 616 S.W.2d at 922); Moriel, 879 S.W.2d at 23 (defendant’s subjective mental state may be proven by direct or circumstantial evidence). While we recognize that such subjective elements may sometimes be resolved on summary judgment, on this summary judgment record, Franklin did not disprove the subjective element of gross negligence as a matter of law.

Viewing the summary judgment evidence in favor of the Turners, we conclude Franklin failed to meet his burden to prove as a matter of law that he did not, with subjective awareness of the risk involved, choose to proceed in conscious indifference to the rights, safety, or welfare of K.M.T. Accordingly, we sustain the Turners’ third issue as to Franklin.

2. As to Cohn

The Turners alleged Cohn misinterpreted KM.T.’s ultrasound images and wrongly concluded K.M.T. had epididymi-tis with no evidence of torsion. Cohn filed a combined no-evidence and traditional summary judgment motion asserting that the Turners had no evidence, or could not raise a fact issue about whether, he acted with willful and wanton negligence in reviewing KM.T.’s ultrasound. We consider Cohn’s no-evidence motion first. See Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex.App.-Dallas 2007, pet. denied). In response to that motion, the burden was on the Turners as non-movants to present sufficient evidence to raise a genuine issue of fact on the challenged element. Gen. Mills Rests., 12 S.W.3d at 832.

To meet that burden, the Turners relied on a report from their expert radiologist, Dr. E. Richard Graviss, who opined Cohn was negligent in concluding the ultrasound showed K.M.T. had normal testicular flow in the left testicle. The Turners contend Graviss’s report raised a fact issue about whether Cohn breached the negligence standard of care, and they renew their earlier argument that whether that breach was with willful and wanton negligence “is uniquely an issue for the jury to determine.” We have already rejected this latter argument.

While Graviss’s report may well have raised a fact issue as to Cohn’s negligence, it does not raise a fact issue about whether Cohn’s alleged error in judgment was more than mere negligence. See Wheeler, 866 S.W.2d at 50-51 (discussing summary judgment evidence that raised fact issue about whether conduct was willfully and wantonly negligent). Specifically, it did not address whether Cohn was subjectively aware of an extreme risk or acted with conscious indifference to the rights, safety, or welfare of others. See Hogue, 271 S.W.3d at 248. And the Turners do not cite to any other direct or circumstantial evidence in the record raising a genuine issue of fact on the subjective element of willful and wanton negligence.

Because Graviss’s report does not raise a genuine issue of material fact concerning the element of willful and wanton negligence, the no-evidence summary judgment in favor of Cohn was proper. Accordingly, we do not need to consider the issues the Turners raised in response to Cohn’s traditional motion for summary judgment.

We resolve the Turners’ third issue against them as to Cohn.

Conclusion

We affirm the trial court’s summary judgment in favor of Cohn. We reverse the trial court’s summary judgment in favor of Franklin and remand that portion of the case for further proceedings.

      . Section 74.153 uses the spelling "wilful,” but "willful” is the preferred American spelling. Bryan A. Garner, The Redbook: A Manual on Legal Style 99, 243 (West 2002); see Webster’s Third New International Dictionary 2616, 2617 (1993). Except in direct quotations, we use the preferred American spelling.

      . Unless noted otherwise, all references to the "code” or other statutory references are to the Texas Civil Practice and Remedies Code.

      . The Turners also alleged below that section 74.153 is unconstitutional. Appellees did not address this argument in their motions for summary judgment. The Turners, however, do not raise the constitutional issue on appeal. The trial court signed two orders, one for each defendant, both of which state, “This Judgment is final, disposes of all claims between Plaintiffs and [appellee], and is appeal-able.” This is sufficient to constitute a final judgment for purposes of appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex.2001).

      . The Turners’ brief goes on:
      It would contravene public policy to allow a health care provider to not provide emergency care and at the same time be protected for providing emergency care. When a health care provider diagnoses a non-emergent condition and provides non-emergent treatment, the healthcare provider should be held to the same standard as other health care providers who provide non-emergent treatment. Thus, despite the fact that treatment was rendered in an emergency room, because Dr. Franklin and Dr. Cohn did not provide "emergency medical care” they cannot avail themselves of the heightened standard of proof contained in section 74.153.

      . This definition is similar to the definition of “emergency medical condition” in the federal Emergency Medical Treatment and Active Labor Act (EMTALA), codified at 42 U.S.C. § 1395dd(e)(l) (2006), and the definition of "emergency services” in section 311.021 of the Texas Health and Safety Code that specifies the responsibility of hospitals and physicians to provide emergency services without regard to a person's ability to pay for the services. See Tex. Health & Safety Code Ann. § 311.021 (Vernon 2010).

      . This "prospective” nature of the definition of emergency medical care is also compelled by the purpose of the statute. Section 74.153 expanded the former Good Samaritan statute to include physicians and health care providers treating patients in (or immediately after transfer from) hospital emergency departments. The legislature acted to encourage physicians and other health care providers to provide emergency medical care. See Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, Part Three, 36 Tex. Tech L.Rev. 169, 267-68 (2005) (the addition of section 74.153 was "made to recognize the unique challenges of providing emergency care and the liability risks associated with emergency care....”). Limiting section 74.153 to only those situations where it is determined — after the fact— that a real emergency existed would frustrate the statute’s purpose of providing — on a prospective basis — additional incentives to physicians and health care providers to treat patients in uncertain situations where a delay in treatment “could reasonably be expected” to result in serious, negative consequences.

      . See, e.g., Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex.1994) (discussing exemption from compulsory school attendance laws for students taught in "bona fide home schools”); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983) (defining "bona fide purchaser” and "bona fide mortgagee” as requiring the purchaser or mortgagee to acquire its interest in the property in good faith, for value and without notice of the claim or interest of a third party, citing Houston Oil Co. of Tex. v. Hayden, 104 Tex. 175, 135 S.W. 1149 (1911)).

      . See, e.g., Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979) (discussion of whether charge constituted interest or a "bona fide commitment fee”); Ramo, Inc. v. English, 500 S.W.2d 461, 465 (Tex. 1973) (discussion of whether transaction constituted a "bona fide loan”); see also 29 U.S.C. § 213 (2006) (excepting from statutory minimum wage and maximum hour requirements employees "employed in a bona fide executive, administrative, or professional capacity. ...”).

      . In doing so, however, we do not reach or address whether Franklin or Cohn were negligent in their treatment of K.M.T.

      . See Hernandez v. Lukefahr, 879 S.W.2d 137, 141 (Tex.App.-Houston [14th Dist.] 1994, no writ) (analyzing former Good Samaritan statute and concluding "it is obvious the legislature meant to exclude [from the protection of the statute] outrageous acts rising to the level of conscious indifference”); see also Dunlap v. Young, 187 S.W.3d 828, 836 (Tex.App.-Texarkana 2006, no pet.); Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 50 n. 25 (Tex.App.-Houston [1st Dist.] 1993, no writ) (citing Burk Royalty Co. v. Walls, 616 S.W.2d 911, 919-20 (Tex.1981)).

      . See Burk Royalty, 616 S.W.2d at 916-20 (equating willful negligence, conscious indifference to the welfare of others, and reckless disregard for the rights of others with gross negligence); Chrismon v. Brown, 246 S.W.3d 102, 106-07 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (equating "wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others” exception to immunity defense under civil practice and remedies code section 84.007(a) with gross negligence); Moncada v. Brown, 202 S.W.3d 794, 799-800 (Tex.App.-San Antonio 2006, no pet.) (equating willful and wanton conduct under government code section 497.096 with gross negligence); Warren v. Medley, 521 S.W.2d 137, 139 (Tex.Civ.App.-Beaumont 1975, no writ) (duty owed to licensee by owner of property not to injure him by "willful, wanton or gross negligence”).

        See also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 2 cmt. a, b (2010) (noting terms such as gross negligence, willful or wanton misconduct, and reckless disregard for risk have been used to convey the idea of aggravated wrongdoing that still falls short of intentional torts and equating such terms with recklessness).

      . We note one of our sister courts declined to equate "wilful and wanton negligence” with gross negligence in the context of a health care liability case. See Benish v. Grottie, 281 S.W.3d 184, 192 (Tex.App.-Fort Worth 2009, pet. denied) (noting differences in interpretations, declining to equate willful and wanton negligence with gross negligence, and declining to define term). However, Benish involved the sufficiency of an expert report, not the standard of proof or care required at trial by section 74.153. Id. Here we are confronted by that latter issue, as a hearing on a motion of summary judgment constitutes a trial, Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex.1988); McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex.App.Dallas 2001, pet. denied), and defining the phrase "willful and wanton negligence” is a necessary prerequisite to determining whether summary judgment-on either traditional or no-evidence grounds-based on that issue was proper.

      . See, e.g., the definition of "gross negligence” contained in chapter 41 of the civil practice and remedies code relating to damages:
      (11) "Gross negligence” means an act or omission:
      (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
      (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
      Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11) (Vernon 2008).

      . In Hogue, the supreme court concluded evidence the hospital knew that the ability to perform "stat" echo-cardiograms (meaning immediate or as soon as possible) was necessary for its emergency department, but elected not to obtain echo-cardiogram capability on a stat basis even after being advised to do so, along with other evidence, was legally sufficient under a clear and convincing evidence standard to support the jury's conclusion that the hospital "acted with conscious indifference to an extreme risk of serious injury when it (1) elected to outsource echo services without a guaranteed response time while providing emergency services, (2) failed to communicate this limitation to its medical staff so they could consider other options to treat critical care patients, and (3) delayed obtaining the echo in spite of the serious risk to [plaintiff’s] health.” Hogue, 271 S.W.3d at 253.

      . For example, in Wheeler, the defendant emergency medical technicians (EMTs) obtained summary judgment based on an affirmative defense under the former Good Samaritan statute, which limited their liability for emergency care to acts that were willfully or wantonly negligent. Wheeler, 866 S.W.2d at 50. The appellate court concluded there were internal contradictions in the deposition testimony and that the EMTs’ expert failed to address whether some of the conduct was grossly negligent and appeared to contradict the testimony of the EMTs. Id. Thus, the appellate court reversed, holding that the EMTs failed to establish as a matter of law they were not willfully or wantonly negligent. Id. at 51.

      . For example, Dunlap affirmed a summary judgment for the defendant EMTs because the summary judgment evidence conclusively established they were not "willfully or wantonly negligent” under the former Good Samaritan law. Dunlap, 187 S.W.3d at 837 (concluding summary judgment evidence, including expert’s concession that whether to intubate patient during transport to hospital was a "judgment call,” supported summary judgment for defendant EMTs); see also Hernandez, 879 S.W.2d at 142 (concluding doctor established elements of Good Samaritan statute as a matter of law including negating that he was willfully or wantonly negligent).
      Summary judgments have also been affirmed in other cases under a willful or wanton negligence or gross negligence standard. See Moncada, 202 S.W.3d at 802-03 (summary judgment evidence conclusively established affirmative defense of immunity from liability under government code section 497.096 and that defendant was not "intentionally, wilfully, or wantonly negligent"); Warren, 521 S.W.2d at 139 (premises owner successfully discharged "onerous burden of showing that he was not guilty of any willful or wanton conduct or gross negligence” when his guest was injured after another guest placed her on top of a glass table, which broke).

      . See Moriel, 879 S.W.2d at 23. Because direct evidence of a party's state of mind is rarely available, this element may be proved by circumstantial evidence. Id. ("We hereby reaffirm our holding that the defendant’s subjective mental state can be proven by direct or circumstantial evidence.”).

      . "Issues of intent, knowledge[,] and state of mind are not susceptible to being readily controverted and are best left to the determination of the trier of fact.” Lawrence v. TD Indus., 730 S.W.2d 843, 845 (Tex.App.-Dallas 1987, writ ref’d n.r.e.) (affidavits of defendant’s employees stating they were not consciously indifferent to the rights of the deceased were not readily controvertible and did not support summary judgment for defendant on plaintiff's gross negligence claim).

      . See Hunsucker v. Omega Indus., 659 S.W.2d 692, 698 (Tex.App.-Dallas 1983, no writ) ("We conclude that issues such as reasonableness and foreseeability are inherently issues for a jury because whether each is precluded as a matter of law depends upon all the facts and circumstances in each case.... Because of variations of the circumstances which may be shown at a trial on the merits, summary judgment is rarely justified in such cases.”).

      . Kennedy's deposition testimony is as follows:
      Q. Do you think that Dr. Franklin tried to harm this patient?
      A. No.
      Q. Do you think that he felt he was ordering the wrong test for this patient?—
      A. No.
      Q. Do you think that he felt his actions were going to cause harm to the patient—
      A. No.
      Q. —and he decided to do it anyway?
      A. No.
      Q. Do you think he made a judgment call in this case and you just feel that judgment call was in error? Would that be fair?
      A. Well—
      Q. To my client?
      A. I think every decision we make regarding our patients can be called a judgment call. Every treatment, diagnostic, and disposition decision we make is — involves clinical judgment. I know the term "judgment” may have some legal connotation that I’m not aware of. But yes, he made a judgment. He made judgments about his patient, like we all do in the clinical context, and I believe the judgments he made were negligent or we wouldn’t be here today. So a judgment call — I think the most common usage of that is in sports parlance, and I don’t know if that applies in this case. It depends what you mean by "judgment call.”

        Q. Do you believe that Dr. Franklin's action in this case involved a complete want of care — that is, he treated this patient as if he didn’t care for him whatsoever?
      A. No.
      Q. It certainly appears that he did care for the patient and he did try to come to a diagnosis, he made a diagnosis and he gave appropriate treatment for that diagnosis, although you believe it was the wrong one; true?
      A. Correct.

      . See Dunlap, 187 S.W.3d at 837; Hernandez, 879 S.W.2d at 142 (evidence established lack of wanton negligence).

      . See Frias, 999 S.W.2d at 105-06; Wheeler, 866 S.W.2d at 50 (concluding internal contradictions in defendants' deposition testimony and expert’s affidavit that failed to address whether conduct was gross negligence and contradicted some testimony of defendants precluded summary judgment for defendants under Good Samaritan statute); Lawrence, 730 S.W.2d at 845 (concluding defendants’ affidavits that they were not consciously indifferent to the rights, welfare, and safety of plaintiff did not conclusively negate subjective element of gross negligence).

      . Graviss’s affidavit stated, in relevant part:
      Doppler interrogation of the left testicle revealed low velocity blood flow without a demonstrable arterial pulse. Black and white images did not show the color, however it can be recognized. Neither testicle exhibited the amount of blood flow that I expect in patients of [K.M.T.] age. The spectral waveforms in the right testicle exhibited a distinct arterial peak. The absolute exclusion of torsion is by demonstrating an arterial waveform. The Doppler waveform of the left testis revealed only low velocity flow without arterial peaks.
      The scrotal sonogram report from 04/03/03 is accurate except for the second sentence in the findings "there is normal testicular flow identified.” The waveform pattern in [K.M.T.]'s left testicle does not exclude the possibility of torsion. (Arterial peaks are absent.)
      I am familiar with the standard of care utilized by radiologists in evaluating sonograms of the testes to diagnose testicular torsion and/or epididymitis, and the standard of care for treating testicular torsion. That standard requires the presence of arterial blood flow (an arterial peak). In my opinion, Dr. Cohn failed to meet or provide the standard of care when he evaluated the sonogram of [K.M.T.] by concluding "there is normal testicular flow identified ” when in fact the sonogram failed to show arterial blood flow in the left testicle. A report of no arterial flow in the left testis should have caused early intervention with the expected preservation of left testicular viability. The testis will die if not detorsed promptly. (Six hours is an acceptable standard.)
      Graviss also noted he did not review certain information about the ultrasound and that he "could reach a different opinion” if he had access to additional information.


source: Caselaw Access Project

author: SUSAN LARSEN, Justice (former).

license: Public Domain

text:
    B & T DISTRIBUTORS, INC., Appellant, v. Lorina Weaver WHITE, Appellee.
    No. 08-09-00121-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 31, 2010.

      Adam Pugh, Slater Kennon & Jameson, L.L.P., Austin, TX, for Appellant.
    Stephen F. White, Law Offices of Stephen F. White, P.C., San Antonio, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J„ and LARSEN, J.
   OPINION

SUSAN LARSEN, Justice (former).

This appeal involves rights to a parcel of real property in Kendall County, Texas. Appellant/respondent B & T Distributors, Inc., challenges the trial court’s judgment awarding the property to appellee/petitioner Lorina Weaver White, claiming: (1) a lis pendens does not bar a properly levied writ of execution; (2) an abstract of judgment is not required to levy a writ of execution; and (3) White’s claims were barred by res judicata and forum shopping. We affirm.

FACTS

Jeff Sill and Lorina Weaver White were divorced in DuPage County, Illinois on November 9, 2001. The decree of divorce included a marital settlement agreement which, among other provisions, awarded Sill real property in Bergheim, Kendall County, Texas. Sill was also liable for various payments to White, and a security provision in the agreement provided:

9.1 The Husband represents and warrants that he is able to make the payments on all of the above debts because of the transfer of the business and all of the assets in the business to him. If, for any reason, he fails to pay any of the above debts, he agrees that his interest in the Boerne, Texas home and the Ber-gheim, Texas vacant land shall be awarded to the wife as her sole and separate property and clear of any interest of the Husband. The deed shall be signed on these properties, both from the Husband to the Wife and from the Wife to the Husband and shall be held by their respective attorneys transferred either voluntarily or by Court Order from the Husband to the Wife upon verification that all of these debts have been paid and from the Wife to the Husband upon evidence of his failure to pay same.
9.2 This real estate is not in joint names and is not being transferred to either party at the time of the entry of the Judgment, but rather the transfer ■will take place once the issue of the payment of the debts has been resolved.

Lorina Weaver White filed notices of filing of foreign decree and lis pendens regarding the Kendall County property on April 18, 2007. On June 13, 2007, she filed a motion to enforce foreign decree in the County Court at Law of Kendall County, alleging that Sill had failed to meet his obligations as required under the divorce decree. The Court ordered husband to deed over all his rights to the property to wife on March 19, 2008. That deed was recorded on May 6, 2008.

Meanwhile, B & T Distributors, Inc. sued Jeff Sill and Newport Construction Services, Inc. in Allen County, Ohio. On February 10, 2004, B & T obtained judgment against Sill. B & T filed a writ of execution in Kendall County on April 8, 2008, which was returned unserved on May 2, 2008. B & T filed an abstract of judgment in Kendall County on May 7, 2008 (in the official records) and May 13, 2008 (in the judgment records).

White initially filed suit against B & T requesting a temporary restraining order and injunction in Kendall County, which she non-suited. She then filed in neighboring Travis County, and again non-suited that case after the judge refused her a temporary injunction. She filed a third time, again in Kendall County, and ultimately obtained judgment awarding her the property. This appeal follows.

Lis pendens preserved White’s claim to land against later-executed writ of execution

In its first issue on appeal, B & T contends that the trial court erred in finding that the lis pendens barred B & T from levying a writ of execution on the property. We disagree, concluding that the lis pendens preserved White’s interest in the property.

The relevant timeline regarding the competing claims to the property is as follows:

April 18, 2007 Notice of filing foreign decree filed in Kendall County by Lorina Weaver White

April 19, 2007 Notice of lis pendens filed in Kendall County by Lorina Weaver White

April 8,2008 Writ of Execution served on Kendall County Constable by B & T

May 2, 2008 Property levied upon and seized by Constable

May 6, 2008 Deed from Jeff Sill to Lorina Weaver White filed in Kendall County

May 7,2008 Abstract of judgment filed by B & T in Kendall County

In his findings of fact and conclusions of law, the trial court found that “the only relevant document filed in the Real Property Records of Kendall County, Texas before the deed from Jeff Sill to Lorina Weaver White on May 5, 2008 was the Notice of Lis Pendens filed by Lorina Weaver White on April 12, 2007” and “[t]he first document filed by Defendant [B & T] in the Real Property Records of Kendall County, Texas was the abstract of judgment....” Based upon this, the trial court concluded that:

B & T’s claim would be as to the interest which Jeff Sill had, if any, to the real property at the conclusion of White-Sill lawsuit. Lorina Weaver White filed her lis pendens on April 12, 2007. The filing gave notice to the public that there was pending litigation where she sought title to the subject real property pursuant to the terms of her November 9, 2001 Divorce Decree from Jeff Sill. Plaintiffs lis pendens was filed prior to B & T attempting, in any manner, to enforce its foreign judgment against Jeff Sill in the State of Texas.

B & T argues that this conclusion is incorrect, as a lis pendens operates only as notice to potential voluntary purchasers of a conflicting claim. B & T further argues that a Us pendens does not create a lien, but is simply a warning to potential purchasers. Thus, B & T contends that the first lien to attach to the property was created by the constable’s May 2, 2008 levy pursuant to B & T’s writ of execution.

A lis pendens is a notice, recorded in the chain of title to real property warning all persons that certain property is the subject matter of litigation. The purpose of a notice of lis pendens is to put those interested in a particular tract of land on inquiry about the facts and issues involved in the suit and to put prospective buyers on notice that they acquire any interest subject to the outcome of the pending litigation. Countrywide Home Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex.App.-Austin 2007, pet. denied). Although Howard speaks of “prospective buyers,” we note the lis pendens statute contains no such limitation:

A recorded lis pendens is notice to the world of its contents. The notice is effective from the time it is filed for record, regardless of whether service has been made on the parties to the proceeding. Tex. Prop.Code Ann. § 13.004(a) (Vernon 2004) (emphasis added).

In Long Beach Mortgage Co. v. Evans, 284 S.W.3d 406, 414-15 (Tex.App.-Dallas 2009, pet. denied), the Dallas Court of Appeals considered a situation similar to that before us here. There, a Dallas residence was purchased with money wrongfully acquired from TLC America, Inc. The residence was also used as collateral for a home equity loan funded by Long Beach Mortgage, upon which the owners later defaulted. The home became the subject of competing claims by Evans, TLC’s receiver in California SEC litigation, and Long Beach Mortgage. Id. at 409. Upon discovering that TLC’s funds had been used as purchase money, Evans filed a lis pendens on the property on July 23, 2002; the California court imposed a constructive trust on the residence in December 2002. Id. Long Beach Mortgage had recorded its deed of trust on August 2, 2002. Evans filed suit in Dallas to resolve the conflicting claims.

The Dallas Court of Appeals found that because Evans filed the lis pendens prior to the date Long Beach executed and filed its deed of trust, Long Beach’s lien claim was, as a matter of law, subordinate to Evans’s lis pendens. Id. at 415. The Court noted that, under Tex. Prop.Code Ann. § 12.007,

“[D]uring the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.” The lis pendens statute gives litigants a method to constructively notify anyone taking an interest in real property that a claim is being litigated against the property. A recorded lis pendens is notice to the world of its contents_Id. at 413-14 (original emphasis and internal citations omitted).

The Dallas court appeared completely untroubled by the parties’ status as competing judgment creditors. It simply held that, because Evans’s lis pendens was recorded first, Long Beach’s hen claim was subordinate to Evans’s rights under the constructive trust. Id. at 414-15. Similarly, we conclude that B & T’s interest in the Kendall County property was subordinate to the outcome of White’s litigation because her Us pendens was filed before B & T took any action to enforce its judgment. Howard, 240 S.W.3d at 4. Appellant B & T’s first issue on appeal is overruled.

Levy and abstract of judgment did not create superior rights

In its second issue on appeal, B & T argues that the trial court erred in concluding that levy pursuant to the writ of execution was insufficient to take control of the property absent the filing of the abstract of judgment. This is important, B & T argues, because the levy occurred prior to the filing of White’s deed, and therefore its lien should be superior. We agree that a valid levy of execution creates a lien on the debtor’s property in favor of the judgment creditor. T.E.I.A. v. Engelke, 790 S.W.2d 93, 95 (Tex.App.-Houston [1st Dist.] 1990, orig. proa). We disagree, however, that this has any practical effect on the litigation here. For the reasons discussed above, we conclude that the Us pendens was sufficient to preserve White’s claim to the property and was filed first in time in the deed records. As White was entitled to the property in its entirety, there was nothing left to satisfy B & T’s judgment via its levy of execution. Issue Two is overruled.

Res judicata and forum shopping

In its third issue, B & T argues that the trial court erred in refusing to dismiss White’s lawsuit based on res judi-cata and forum shopping. As iterated above, White filed suit against B & T first in Kendall County. This she non-suited. She then filed in neighboring Travis County, and again non-suited her case. She filed a third suit, again in Kendall County, and ultimately obtained the judgment which is on appeal now. B & T first argues that the Travis county suit, wherein she was denied a temporary injunction, constitutes res judicata. It then argues that three lawsuits in two venues constitutes blatant forum shopping which warranted dismissal as well.

Res judicata requires the convergence of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identical parties or their successors in privity; and (3) a second action based on the same claims that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). Here, it appears there was never any ruling in the first Kendall County suit, there was a denial of temporary injunction (an interlocutory order) in the Travis County suit, and thus the only final ruling came in the suit presently before this Court. Res judicata does not apply here. That portion of the third issue is overruled.

With regard to the forum shopping argument, we conclude that Appellant has failed to preserve that issue for our review. A perusal of the record reveals no motion or argument below that raises that issue, nor is there any order by the trial court in that regard. In order to preserve a complaint for appellate review, it must have been presented to the trial court for ruling. Tex.R.App. P. 33.1; In re A.D.P., 281 S.W.3d 541, 547 (Tex.App.-El Paso 2008, no pet.). That portion of the third issue is overruled.

CONCLUSION

For these reasons, we find no error in the trial court’s judgment. It is affirmed.

LARSEN, J. (sitting by assignment).

      . The property is described inconsistently. It is clear, however, that “3.4 acres in Bergheim, Texas” and "North Barcroft Estates, Unit 2, Lot 158, 3.515 acres, Kendall County Texas” are the same property.

      . Husband later challenged the marital settlement as unconscionable. Both the trial court and appellate court found he had not met his burden of showing unconscionability, and affirmed the marital settlement agreement.


author: KEM THOMPSON FROST, Justice.

text:
    MARZO CLUB, LLC, Enero Lakes, LLC, Febrero Land, LLC, and 2006 Brazoria Venture, LLC, Appellants, v. COLUMBIA LAKES HOMEOWNERS ASSOCIATION, Appellee.
    No. 14-09-00099-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 19, 2010.

      Mark H. Neal, Angleton, Raymond L. Gregory II, Houston, for appellants.
    Joseph Patterson, Angleton, for Appel-lee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

KEM THOMPSON FROST, Justice.

This appeal arises from a declaratory judgment action in which the plaintiff, a homeowners association, sought a judicial determination and declaration of its rights, power, and authority regarding its role as a developer of a subdivision and its ability to amend the deed restrictions for the entire development. The defendants, who had purchased for development several parcels identified on the plats of the subdivision, sought summary judgment against the homeowners association on several grounds. In response, the homeowners association filed a competing motion for summary judgment, seeking a declaration that all those with “developer” rights must consent to any proposed deed restrictions. The trial court granted the homeowners association’s summary-judgment motion, denied the developers’ motion, and rendered a final judgment. We reverse and remand.

I. Factual and Procedural Background

In 1972, Tenneco Realty Development Company (“Tenneco Realty”) began development of the Columbia Lakes Subdivision (the “Subdivision”). For each of the Subdivision’s five sections, a separate plat was prepared and filed in the real property records of Brazoria County, Texas (“Real Property Records”). According to the restrictions filed for each section (the “Original Restrictions”), Tenneco Realty desired “to create and carry out a uniform plan and scheme for the improvement, development and sale of certain property in Columbia Lakes.” In the Original Restrictions, Tenneco Realty stated that, to accomplish this end, it established and promulgated the restrictions and covenants contained in the Original Restrictions upon “those properties located in Columbia Lakes which are herein defined as the ‘Subdivision.’ ” Under the terms of the Original Restrictions, “all reserves ... shown on the recorded plat(s) of the Subdivision are hereby designated to be unrestricted areas and to be used for any purpose designated by the Developer.” “Developer,” in turn, is defined as

Tenneco Realty ..., its successors and assigns, including such persons, partnerships or corporations which in agreement with Tenneco Realty ..., are substituted for Tenneco Realty ... under this instrument. Such substitution may relate to all or any part of this instrument and shall become effective by the execution and recording of an appropriate amendment to this instrument. (emphasis added). Though the Developer did not impose restrictions on the reserves under the Original Restrictions, the Developer reserved the right to impose such restrictions in the future. In 1988, CLT Properties, Inc. (“CLT Properties”) assumed the role of Developer of the Subdivision.

Conveyances of Tracts Marked as Reserves

In August 2005, CLT Properties conveyed to Columbia Lakes, LLC (“Columbia Lakes”) various lots in the Subdivision as well as two tracts of land located in areas identified as reserves on a plat of one of the sections of the Subdivision (“a Columbia Lakes Plat”). CLT Properties also executed and filed in the Real Property Records an “Amendment to Restrictions and Partial Transfer and Assignment of Rights and Functions of the Developer of Columbia Lakes Subdivision” (“Partial Transfer”). In the Partial Transfer, CLT Properties assigned all “its right, title, interest, equity and estate as Developer with respect to certain real estate within Columbia Lakes Subdivision listed in Exhibit A attached hereto (the ‘Property') unto Columbia Lakes, LLC ....” (emphasis added). Exhibit A identifies the real property CLT Properties conveyed to Columbia Lakes. Columbia Lakes accepted assignment of CLT Properties’s rights and interest regarding the Architectural Control Commit tee and Columbia Lakes Maintenance Fund Committee, and Columbia Lakes agreed to perform the functions and obligations relating to these committees. CLT Properties reserved for itself and its successors “all the right title, interest, equity and estate as Developer in the [Original] Restrictions with respect to remainder of all property now or hereafter owned by CLT Properties, Inc. in Columbia Lakes Subdivision.” Columbia Lakes thereafter assigned its right, title, and interest in its role as Developer of the Subdivision to Columbia Lakes Homeowners Association (the “Association”).

In January 2006, CLT Properties conveyed to appellant Febrero Land, LLC (“Febrero”) two tracts of land located on a Columbia Lakes Plat. Later that year, in September 2006, CLT Properties conveyed to appellant 2006 Brazoria Venture LLC (“Brazoria Venture”) two tracts of land located on a Columbia Lakes Plat as well as an easement. In these two conveyances, CLT Properties did not state that it was conveying any developer rights.

In September 2006, CLT Properties conveyed to appellant Marzo Club, LLC (“Marzo”) various tracts of land located on a Columbia Lakes Plat, including land located in areas identified as reserves on a Columbia Lakes Plat. In addition, CLT Properties executed and filed in the Real Property Records, an instrument in which CLT Properties assigned to Marzo “all of [CLT Properties’s] right, title, interest, equity and estate as Developer in the [Original Restriction as amended] with respect to the [property conveyed to Marzo] unto [Marzo].” In this instrument, the parties noted that this assignment and the rights of Marzo under the assignment are “expressly subject to any Amendments to Restrictions and Partial Transfer and Assignment of Rights and Functions of the Developer of Columbia Lakes Subdivision” made before or contemporaneously with them.

Similarly, in September 2006, CLT Properties conveyed to appellant Enero Lakes, LLC (“Enero”) two tracts of land located on a Columbia Lakes Plat, including land located in areas identified as reserves on a Columbia Lakes Plat. In addition, CLT Properties executed and filed in the Real Property Records, an instrument in which CLT Properties assigned to Ene-ro “all of [CLT Properties’s] right, title, interest, equity and estate as Developer in the [Original Restrictions as amended] with respect to the [ property conveyed to Enero] unto [Enero].” In this instrument, the parties noted that this assignment and the rights of Enero under the assignment are “expressly subject to any Amendments to Restrictions and Partial Transfer and Assignment of Rights and Functions of the Developer of Columbia Lakes Subdivision” made before or contemporaneously with them.

It is undisputed that none of the conveyances to Febrero, Brazoria Venture, Marzo, or Enero included any property conveyed to Columbia Lakes by CLT Properties.

Purported Amendments to Subdivision Restrictions

In February 2008, the Association, purportedly acting under its authority as a Developer of the Subdivision, adopted and filed in the Real Property Records purported amendments to the Subdivision Restrictions (the “Purported Amendments”), which included the following new definitions and other restrictions that are pertinent to the case under review:

“Reserves or Reserve Area(s) — All areas of real property shown on the recorded plat(s) of the Subdivision which are designated as a “reserve” area on said plat, or otherwise, at any time, heretofore designated as an ‘unrestricted area.’
“For the purposes of this instrument, the word “Lot” shall also be deemed to also include [] any portion of any reserve shown on the recorded plat(s) of the Subdivision or any area identified by this instrument or such plat(s) as an unrestricted area [], whether by platting, subdivision, or by adoption of a condominium scheme of development, same being set aside for individual and private use and occupancy according to the recorded plat(s) of the Subdivision, or any recorded plat evidencing the subdivision of any Reserves or Reserve Area(s) into individual lots, or the functional equivalent of individual lots.”
All Reserves or Reserve Area(s) are hereby designated restricted use areas, with the use thereof being restricted that [sic] those uses which are currently in active operation on the affected portion of the Reserve on the date of recording of this Amendment to the Restrictions of Columbia Lakes Subdivision, in the [Real Property Records]. Any change in the use of, or alteration(s) of the exterior elevations of any existing improvements physically situated on said Reserve, or any portion thereof, shall require prior written approval by [the Association], in its capacity as a Developer -within the Subdivision, acting either by and through its Board of Directors, or its Architectural Control Commit tee duly appointed by its Board of Directors.

Declaratory Judgment Action

The Association then filed a declaratory judgment action against Febrero, Enero, Marzo, and Brazoria Venture (collectively, “Developers”). In its petition, the Association alleged that the Developers were developing their property, platting acreage into additional residential lots in the Subdivision, and developing commercial ventures. According to the Association, the Developers declined to engage in discussions -with the Association regarding any contributions to the Maintenance Fund for the Subdivision. The Association further alleged:

[The Association], recognizing its obligations to the Subdivision at large, by virtue of its responsibility for not only the collection and expenditure of the Maintenance Fund, but also its responsibilities for exercising architectural control authority under the terms of the Restrictions, has determined that it is appropriate for (i) areas within the Subdivision parcels heretofore characterized as unrestricted “reserves”, upon their development for sale, improvement and use as residential lots, to bear their fair share of covering the expenses associated with the Subdivision which are covered by the Maintenance Fund, and (ii) for a certain level or control to be exercised over the architectural aspects of proposed new development within the Subdivision on lands previously unrestricted as to their use.

The Association sought a judicial determination and declaration of its rights, power, and authority under the recorded documents regarding its role as a Developer of the Subdivision. The Association also sought a specific declaration that the Purported Amendments are “valid and subsisting.” The Developers answered separately, each filing both general and specific denials, and each seeking a declaration that the Purported Amendments are invalid and unenforceable.

Cross-Motions for Summary Judgment

The Developers moved for summary judgment on traditional and no-evidence grounds. They asserted the following grounds:

1. The parcels purchased by Brazoria Venture and Febrero are not within the boundaries of the Subdivision. Although part of the property purchased by these entities is located within a large area labeled “Reserve” on Section 4 of the Subdivision, this large “reserve” area is not included in the acreage described as Section 4 of the Subdivision, so it is not included in the Subdivision.
2.The parcels purchased by the Developers were sold to them as unrestricted property without the Purported Amendments, which were adopted in 2008.
8. CLT Properties excluded from its transfer to Columbia Lakes the properties and developers’ rights that were purchased by Marzo and Enero. Thus “developer rights” within the Subdivision are partitioned and limited by the specific parcels to which they relate within the Subdivision.
4. Marzo and Enero, as Developers, did not consent to the Purported Amendments.
5. Marzo and Enero, as Developers, were entitled to exempt any lots in the Subdivision from a maintenance charge.

In their summary-judgment motion, the Developers requested the trial court to declare that the Purported Amendments are “invalid and of no force or effect.”

The Association then filed its own summary-judgment motion and a response to the Developers’ motion, which may be summarized as follows:

1. Even though the affidavit of the Developers’ surveyor, Raymond Williams, stated that none of the parcels conveyed to Febrero or Bra-zoria Venture were within the boundaries of the Subdivision, the Original Restrictions expressed that the reserves were part of the Subdivision, as were other unrestricted parcels of land, located throughout the overall Subdivision, because Tenneco Realty stated in those restrictions that “it is the intention of the Developer to include all of the premises, except as herein expressly excluded, in said plat-” According to the Association, these “reserves” were subject to the provisions of the Original Restrictions permitting the “Developer” or one with “developer rights” to later impose restrictions.
2. The Association admitted that the Developers’ contention that the property sold to them was unrestricted at the time they purchased their property is “factually correct,” but contended that because their purchases were made from property identified as “reserves,” they purchased their property aware that, under the Original Restrictions, a “Developer” could later impose restrictions on the designated reserve areas in the Subdivision.
3. The Association responded to the Developers’ position that developer rights were “partitioned and limited” to the parcels of land purchased by asserting that this argument is contrary to the Original Restrictions and Tenneco Realty’s intention to develop all the land on the several plats in a “single development.” The Association admitted, however, that the “current situation presented involves there being several entities which are vested with ‘developer rights’ within [the Subdivision].”
4. Responding to the Developers’ fourth ground for summary judgment, the Association argued that the Original Restrictions effectively require all parties with “developer rights” within the Subdivision to consent to the imposition of any restrictions on areas that were originally unrestricted “reserve” areas on the plats of the Subdivision.
5. Finally, in response to Enero and Marzo’s argument that they, as Developers, have the authority to exempt any Subdivision lots from the maintenance fee, the Association pointed out that the Original Restrictions defined “Lots” to explicitly include any portions of the reserves shown on the recorded plats of the Subdivision.

Building on its response in number 4, above, the Association, in its summary-judgment motion, recognized that the Developers, by taking the position set forth in their motion, had not consented to the adoption of the Purported Amendments. Thus, the Association did not request a declaration that the Purported Amendments were valid. Instead, the Association stated as follows:

[E]ven if the [Purported Amendments are] invalid for lack of assent thereto by other entities with “developer rights”, this Court should determine that — under the applicable provisions of the Original Restrictions — all parties who have been assigned “developer rights” in connection with the title to lands identified on the plats of the subdivision as “reserves” — including the [Association]— must consent to the adoption of any restrictions proposed for adoption as to any parcel identified as a “reserve” on the plats of the Subdivision.

The Association requested a declaration to that effect.

Trial Court’s Declaration

After considering the summary-judgment motions, responses, and summary-judgment evidence, the trial court rendered a final judgment, making the following declaration:

1. any entity or person which is assigned, or holds record title to, “developer rights” or the status of “Developer” in Columbia Lakes Subdivision must consent to the adoption of restrictions or restrictive covenants proposed to be imposed upon any parcel of land identified as a “reserve” on any of the recorded plats of Columbia Lakes Subdivision in order for such restrictions or restrictive covenants to be legally effective, and
2. that area of land labeled “reserve” on the plat of Columbia Lakes Subdivision, Section 4, the boundaries of which are as follows:
a. on the south, by the northerly line of Freeman Boulevard;
b. [o]n the east, by the northerly line of Freeman Boulevard and the west line of County Road 25;
c. on the north, by the southerly line of Olympia Drive and Block 37, Columbia Lakes, Section 4; and
d. on the west, by the easterly line of Olympia Drive and Block 45, Columbia Lakes Subdivision, Section 4,
is a “Reserve” parcel for the purposes of this declaration of the respective right[s] of the parties hereto.

The Developers now challenge on appeal the trial court’s declaratory judgment.

II. Standard of Review

Declaratory judgments decided by summary judgment are reviewed under the same standards of review that govern summary judgments generally. Tex. Civ. PRAC. & Rem.Code § 37.010 (Vernon 2008); Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). When, as in this ease, the grounds upon which the trial court relied are not specified in the order granting summary judgment, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

In this case, the trial court was asked to render a declaratory judgment based on various instruments recorded in the Real Property Records. These instruments are subject to the general rules of contract construction. See Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). In construing contracts, our primary objective is to ascertain and give effect to the intentions of the parties as expressed in the contract. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To ascertain the parties’ true intentions, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. However, when a written contract is worded so that it can be given a certain or definite legal meaning or interpretation, it is unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

III. Issues and Analysis

A. Is the trial court’s judgment supported by the pleadings?

In their first issue, the Developers contend that the trial court erred in granting summary judgment because the trial court’s judgment was not supported by the pleadings. The Developers point out that the Association did not specifically request in its petition that the trial court make the declaration contained in its judgment. Nonetheless, in its petition the Association requested a judicial determination and declaration of the Association’s rights, power, and authority under the recorded documents regarding its role as a Developer of the Subdivision. Because no special exceptions have been asserted against the petition, this court must construe that pleading liberally in the Association’s favor to include all claims that reasonably may be inferred from the language used therein. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). Though the Association did not specifically request the declaration made by the trial court, its general request was sufficient to constitute a request for the relief granted in the trial court’s judgment. Accordingly, we overrule the Developers’ first issue.

B. Did the trial court err in granting the Association’s summary-judgment motion because the Association acquired only partial developer rights?

In their third issue, the Developers assert that the trial court erred in declaring that all Developers or those with “developer rights” must consent to the adoption of any restrictions to be imposed on any parcel of land identified as a “reserve” on a Columbia Lakes Plat for such restriction to be legally effective. The Developers assert that the trial court erred because the Association acquired only partial developer rights.

As stated in the Original Restrictions, the “Developer” reserves the right to impose new restrictions “as to all or any portion of the reserves of the Subdivision identified on the aforesaid plat(s).” In addition, no amendment to the Original Restrictions relating to these reserves is effective unless the “Developer” consents. The Association has argued that, under the foregoing language from the Original Restrictions, Marzo, Enero, and the Association all must consent before any new restrictions are placed on these reserves, given that Marzo, Enero, and the Association are all “Developers.” But, in the Original Restrictions, it is expressly contemplated that “Developer” may include several entities that by agreement with Tenneco Realty are substituted in as “Developer” under the Original Restrictions. Under the unambiguous language of the Partial Transfer, CLT Properties (Tenneco Realty’s assignee) agreed with Columbia Lakes that Columbia Lakes would receive the right to be substituted in as Developer under the Original Restrictions (“Developer Rights”), but only as to the property conveyed to Columbia Lakes by CLT Properties (collectively, the “Columbia Lakes Properties”). CLT Properties expressly reserved all Developer Rights regarding property not conveyed by CLT Properties to Columbia Lakes. As the assignee of Columbia Lakes’s Developer Rights, the Association has no greater Developer Rights than its assignor, Columbia Lakes. See Adams v. Petrade Int’l, 754 S.W.2d 696, 720-21 (Tex.App.-Houston [1st Dist.] 1988, writ denied). Therefore, as a matter of law, the Association has Developer Rights only as to the Columbia Lakes Properties.

Under the unambiguous language of the relevant instrument, CLT Properties (Ten-neco Realty’s assignee) agreed with Marzo that Marzo would receive the Developer Rights as to the property conveyed to Marzo by CLT Properties (collectively, the “Marzo Properties”). Therefore, as a matter of law, Marzo has Developer Rights only as to the Marzo Properties. Similarly, under the unambiguous language of the relevant instrument, CLT Properties (Ten-neco Realty’s assignee) agreed with Enero that Enero would receive the Developer Rights as to the property conveyed to Enero by CLT Properties (collectively, the “Enero Properties”). Therefore, as a matter of law, Enero has Developer Rights only as to the Enero Properties.

It would be unreasonable and contrary to the unambiguous language of the relevant instruments to construe all parties with Developer Rights as being the “Developer” as to all reserves. Instead, as a matter of law, (1) the Association is the sole “Developer” as to the Columbia Lakes Properties; (2) Marzo is the sole “Developer” as to the Marzo Properties; and (3) Enero is the sole “Developer” as to the Enero Properties.

The Association asserts that, in the instruments by which Marzo and Enero received their respective Developer Rights, the parties expressly stated that the assignment of Developer Rights therein was subject to the Partial Transfer, in which the Association’s assignor received Developer Rights as to the Columbia Lakes Properties, as well as the rights and duties regarding the Architectural Control Commit tee and Columbia Lakes Maintenance Fund Committee. But, the respective Developer Rights of Marzo and Enero are not made subordinate to or coterminous with the Association’s Developer Rights because these subsequent instruments are subject to the Partial Transfer. The assignors in the subsequent instruments do not purport to assign any Developer Rights that were transferred in the Partial Transfer, and the fact that these assignments are subject to the Partial Transfer does not support the declaratory relief granted by the trial court.

The Association also relies upon Tenne-co Realty’s statement in the Original Restrictions that Tenneco Realty desired “to create and carry out a uniform plan and scheme for the improvement, development and sale of certain property in Columbia Lakes.” Though Tenneco Realty did state this desire in 1972, it chose the Original Restrictions as the means by which to pursue and effect this desire. As discussed above, the Original Restrictions allow for partial transfers of Developer Rights as to different properties. Presuming that CLT Properties’s assignment of Developer Rights to more than one entity may thwart Tenneco Realty’s stated desire for a uniform plan and scheme, CLT Properties had the right to do so under the unambiguous language of the Original Restrictions. We must give effect to this clear language, and we cannot alter the unambiguous provisions of the Original Restrictions based on a general statement of intent. See Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 181 (Tex.App.Houston [14th Dist.] 2007, pet. denied). Though the Association argues that the trial court’s construction of the instruments is sensible and fair, we are guided by a legal standard that requires us to determine whether this construction gives effect to the unambiguous language of these instruments. See Helmerich & Payne Int’l Drilling Co. v. Swift Energy Co., 180 S.W.3d 635, 646 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Concluding that it does not, we hold that the trial court erred in rendering the declaratory relief contained in its summary judgment. Accordingly, we sustain the Developers’ third issue. Having sustained this issue, we need not reach the Developers’ second, fourth, fifth, or sixth issues.

C. Did the trial court err in denying the Developers’ motion for summary judgment?

In their seventh issue, the Developers assert the trial court should have granted summary judgment in their favor. In their brief argument under this issue, the Developers assert that, for the reasons stated earlier in their appellate brief, there is no genuine fact issue, and they are entitled to summary judgment as to five items that they raised in the trial court and on appeal. But these five items are summary-judgment grounds; the Developers did not ask the trial court to make a declaration as to any of these five grounds. In their motion, the Developers asked the trial court to render judgment that the Association take nothing by its declaratory judgment action other than a declaration that the Purported Amendments are “invalid and of no force or effect.” The Developers have presented no appellate argument in support of the proposition that they were entitled to this relief as a matter of law. Nor have the Developers presented argument that the summary-judgment evidence proved as a matter of law that (1) the Association was not entitled to any of the relief requested in its petition, which contained a request that the trial court make a judicial determination and declaration of the Association’s rights, power, and authority under the recorded documents regarding its role as a Developer of the Subdivision; or (2) the Purported Amendments are “invalid and of no force or effect,” which would mean that the Purported Amendments are not effective as to the reserve areas contained in the Columbia Lakes Properties. We conclude that the argument under the seventh issue does not show the Developers’ entitlement to the summary-judgment relief requested in their motion. Accordingly, we overrule the seventh issue.

IV. Conclusion

The trial court’s judgment is supported by the pleadings. But the trial court’s only declaration is contrary to the unambiguous language of the relevant instruments. The Developers have not presented argument that they were entitled to the relief requested in their summary-judgment motion; therefore, they have not shown that the trial court erred in denying this motion. Though the trial court erred in rendering judgment, the Association and the Developers each have a request for declaratory relief pending that has not been resolved by this appeal. Accordingly, we reverse the trial court’s judgment, and we remand for further proceedings consistent with this opinion, including but not limited to, consideration by the trial court of the remaining requests for declaratory relief and the parties’ requests for attorney’s fees under section 37.009 of the Texas Civil Practice and Remedies Code.

      . Separate deed restrictions were filed for each section of the Subdivision, but all contain substantially similar language.

      . CLT Properties, Inc. voluntarily converted to a limited partnership known as CLT Properties, Ltd. during the series of events surrounding this case. This change is of no consequence to this proceeding, and we refer to both entities as "CLT Properties.”

      . Though the Developers noted in the trial court that the Association had effectively conceded that the Purported Amendments were not valid as to the Developers’ properties, the Developers did not object to an alleged lack of pleadings when the Association sought the relief in question in its summary-judgment motion. Even if the Association had failed to seek the relief in question in its petition, we would conclude that this issue was tried by consent. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex.1991) (applying in summary-judgment context the rule that a party who allows an issue to be tried by consent and fails to raise the lack of pleading before submission of the case cannot raise the pleading deficiency for the first time on appeal).

      . In the second item in its judgment, the trial court simply states that certain property is included in the term "Reserve” parcel for the purposes of the declaration in the first item. In the second item, the trial court did not declare that the property described therein was part of the Subdivision. Therefore, the second item is not a separate declaration and must be reversed along with the declaration in the first item.


author: BRIAN QUINN, Chief Justice.

text:
    Rafeal G. QUINONES, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-0193-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    Oct. 20, 2010.

      Eric Coats, Amarillo, for Appellant.
    John L. Owen, Asst. Dist. Atty., Amarillo, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Rafeal G. Quinones (appellant) appeals his conviction for possessing a controlled substance. His sole issue concerns whether the trial court erred in denying his motion to suppress. We overrule the issue and affirm the judgment.

Background

Randy Mincher (Mincher), an Amarillo Police Department officer, was dispatched to a business, My Club, to investigate a possible fight around 2:50 a.m. According to Mincher, My Club is an “after-hours club,” where “people usually go after the bars close to hang out and continue partying.” Upon arriving, the officer failed to observe a fight or find anyone admitting to a fight. He nonetheless began looking around for any other type of criminal activity present when he observed appellant holding a styrofoam cup. His experience told him that such cups were often used to carry alcoholic beverages. Furthermore, the consumption of such beverages in a public place at that time of night was prohibited by a City of Amarillo ordinance.

After appellant drank from the cup, Mincher walked over to him, looked inside the cup, and discovered that it contained beer. At that point, appellant was arrested for “consumption after hours.” So too was he searched incident to the arrest. The search resulted in the officer’s discovery of a clear plastic baggie containing cocaine.

Once indicted, appellant moved to have the contraband suppressed because the purported offense for which the officer initially arrested him required the geographic location at which the search occurred, ie. My Club, to be a public place. In his view, it was not such a locale because patrons were charged an admission fee and subject to search and exclusion by security personnel. The trial court denied the motion, after which appellant pled guilty to the charge for which he was convicted.

Issue — Motion to Suppress

Before us appellant alleges that the trial court erred in denying his motion since he had violated no law. Furthermore, he allegedly violated no law since My Club was not a public place and the City of Amarillo lacked the authority to regulate establishments that permitted clientele to bring their own alcoholic beverages onto the premises. We need only address the first contention since the second was not asserted below, and having not been proffered to the trial court for consideration, it was waived. See Darnes v. State, 118 S.W.3d 916, 919 (Tex.App.Amarillo 2003, pet. ref'd) (holding that the grounds for reversal asserted on appeal must comport with those mentioned at trial, otherwise they are waived).

We next note that the standard of review is one of abused discretion. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010); Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Thus, we defer to the trial court’s findings of historical fact but review, de novo, the manner in which it applied the law to those facts. Valtierra v. State, 310 S.W.3d at 447. Additionally, because the search at issue was incident to a warrantless arrest, it would behoove us to reiterate when such an arrest can occur.

Authority has long held that police officers may make warrantless arrests when facts and circumstances within the knowledge of the officer, and of which he has reasonably trustworthy information, would authorize a reasonably prudent person to believe that the suspect committed or is committing a crime. State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999); In re E.P., 257 S.W.3d 523, 526-27 (Tex.App.-Dallas 2008, no pet.). Under this test, the State need not prove that the suspect actually committed a crime. Rath er, it is enough to illustrate that the circumstances enabled a reasonable officer to believe that the suspect was doing so or had done so. See Adkins v. State, 764 S.W.2d 782, 785 (Tex.Crim.App.1988) (holding that art. 14.01 arrests have previously been sanctioned when an individual’s conduct, while not overtly criminal by itself, is coupled with an officer’s prior knowledge so that the otherwise innocuous conduct reflects that an offense is then occurring). In other words, if an officer could reasonably believe that the elements comprising a crime existed, given the totality of circumstances before him, he has probable cause to arrest the actor irrespective of whether the State can prove at trial that a crime actually, ie. factually, occurred. See Delgado v. State, 718 S.W.2d 718, 720-21 (Tex.Crim.App.1986) (finding the warrantless arrest legal even though the fact that the hypodermic syringe in the instant case later was shown by a laboratory report not to contain a controlled substance, contrary to the police officer’s impression at the scene).

As previously mentioned, the violation allegedly committed by appellant involved his drinking alcoholic beverages in a public place after hours. According to Mincher, it was illegal to consume such a beverage in a public place between the hours of 2:15 a.m. and 7:00 a.m. And, in determining whether a reasonable officer could deduce that My Club was a public place, we find guidance in legislative edict and judicial pronouncement. Our legislature has defined the term as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. Tex. Pen.Code Ann. § 1.07(a)(40) (Vernon Supp. 2010). In turn, sister courts have held that a place is public if the public has “any access” to it. Loera v. State, 14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.); Woodruff v. State, 899 S.W.2d 443, 445 (Tex.App.-Austin 1995, pet. ref'd). The focus, we are told, lies “on the extent of actual access and not on the formalities by which access is gained.” State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex.App.-San Antonio 2007, no pet.). And, depending upon the extent members of the public have access to the locality, a private residence could conceivably be a public place, Loera v. State, 14 S.W.3d at 469 (citing a situation where the homeowner conducts an “open house”), as could a gated community monitored by security guards, State v. Gerstenkorn, supra, or a fenced and guarded air force base wherein entrance is gained only through acquiring a permit. Woodruff v. State, supra. With this said, we turn to the record and circumstances disclosed therein which illustrate the extent to which members of the public had actual access to My Club.

Again, Officer Mincher testified that 1) he was familiar with the operation of My Club, 2) the club had security personnel at the door monitoring the ingress and egress of its clientele, and 3) those wishing to enter had to pay a fee. When asked whether “to the best of [his] knowledge, anybody can walk up to that club, pay their cover charges, and go inside,” the officer also said, “Absolutely.” Mincher further disclosed that My Club advertised its services in other “bars.” From these circumstances, a reasonable officer in the shoes of Mincher could rationally deduce not only that actual access to My Club was rather open (despite the presence of minor informalities one must satisfy) but also that the locale was a public place, as that term is commonly understood. Being able to so deduce, Mincher had probable cause to believe that appellant was committing a crime by drinking beer between 2:15 and 7:00 a.m. And, because of that, both the arrest and ensuing search were lawful.

The judgment is affirmed.

      . No one contests that the City of Amarillo had an ordinance encompassing that prohibition. And, though the ordinance was not introduced into evidence below, the officer described the offense and its elements. That was enough to illustrate the existence of the municipal restriction. DeDonato v. State, 819 S.W.2d 164, 166 (Tex.Crim.App.1991).