author: EVELYN V. KEYES, Justice.

text:
    Alicia Dianne WEST, Appellant, v. SMG, Appellee.
    No. 01-08-00720-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 27, 2010.

      David L. Sheller, The Sheller Law Firm, Houston, TX, for Appellant.
    Peter J. Bambace, Holm, Bambace LLP, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Alicia D. West, sued SMG and six other defendants for negligence, gross negligence, and negligence per se after she was injured at a concert at Reliant Arena. The trial court granted SMG’s no-evidence motion for summary judgment. West appeals, arguing that (1) SMG owed her a duty of protection against the harmful acts of a third party because it operated a venue for a public event and retained exclusive control of security; (2) the trial court erred in granting SMG’s no-evidence motion for summary judgment on negligence; (3) the trial court erred in granting SMG’s no-evidence motion for summary judgment on gross negligence; and (4) the trial court erred in denying West’s motion for continuance.

We affirm.

Background

On November 1, 2003, West attended a concert by the bands “A Perfect Circle” and “The Icarus Line” at Reliant Arena in Houston, Texas. The Icarus Line performed first. During its performance, The Icarus Line (hereinafter “the band”) was booed. It retaliated by spitting on the audience and subsequently by hurling water bottles into the crowd. One of these bottles struck West on the side of the head. She fell to the concrete floor and suffered injuries. West contends she is “permanently disabled and unable to work, drive, go to school or care for herself.” SMG operated the Reliant Park for Harris County. It licensed Reliant Arena to Pace Concerts (Pace) for this concert, and, by contract with Pace, it required the use of Contemporary Services Corporation (CSC) for security for the concert.

On November 1, 2005, West filed suit against the band, its individual members, Clear Channel Communications, Inc., Clear Channel Entertainment-Exhibits, Inc., Pace Concerts, GP Inc., Contemporary Services Corporation, Inc., Hyatt Corporation, Inc., Aramark Corporation, Inc., and SMG. In her amended original petition, West claimed that SMG’s negligence, gross negligence, and negligence per se in failing to provide adequate security for the performance by The Icarus Line caused her injury. SMG denied all of West’s claims.

On July 31, 2006, SMG filed a no-evidence motion for summary judgment, claiming that West had not produced any evidence to indicate that SMG was negligent, grossly negligent, or negligent per se. In its motion, SMG argued that (1) West could not “demonstrate that there is any evidence to support her negligence cause” because she “cannot put forth any evidence that ... SMG owed [her] a legal duty”; (2) West had not produced any evidence to support a showing of gross negligence; and (8) there was no evidence that SMG had violated a statute, and therefore there was no evidence for her claim for negligence per se.

West responded to SMG’s motion on January 17, 2007, claiming that she had produced summary judgment evidence sufficient to support her claims of negligence and gross negligence. Specifically, West argued that her summary judgment exhibits showed that, because SMG through its contract with its agent CSC retained control over security for the concert, SMG lowed a duty to West to protect her from harmful acts by the band, that SMG knew lor should have known that the band posed Ian unreasonable risk of harm, and that it [failed to warn her of the dangers or take [action to increase security, and thus SMG Is liable to her for her injuries.

I West produced 12 exhibits as evidence |>f her claims: (1) CSC’s employee handbook; (2) the incident report generated ■rom West’s injury; (3) the contract between SMG and CSC; (4) the deposition of Richard A. Welsh, a branch manager for ■SC; (5) the deposition David A. Reed, ■SC’s event manager for this concert; (6) Hi affidavit from West; (7) an affidavit Bom West’s mother; (8) the “Artist Bgreement Addendum” between Pace and Hie Icarus Line; (9) the licensing agreement between SMG and Pace that allowed Pace to put on the concert; (10) the “Artist Agreement Addendum” between Pace and “A Perfect Circle,” the band that performed after “The Icarus Line”; (11) the deposition of Gerald L. Eversole, in-house counsel for SMG; and (12) an affidavit from Jon W. Wanger, one of West’s attorneys, that consists principally of materials downloaded from the band’s website.

In her response, West also filed a motion for a continuance, arguing that the trial court should not rule on SMG’s no-evidence motion for summary judgment until she could depose Efrem Faulkner, the CSC employee who drafted the incident report and who was, at that time discovery was being conducted, serving with the United States military overseas. She stated that she anticipated that Faulkner would testify based on his “particular knowledge and observations of the events, actions, and inactions that took place prior to and during the event at Reliant Arena when Plaintiff was injured.” The motion was not verified.

The trial court heard oral argument on SMG’s no-evidence motion for summary judgment on January 29, 2007, but it did not enter judgment at that time. On March 31, 2008, the trial court held a status conference and set SMG’s no-evidence motion for summary judgment for final submission on April 14, 2008. On April 7, 2008, West filed a motion requesting another continuance on the trial court’s ruling on SMG’s motions for summary judgment. In this motion, she contended that she needed the continuance so that she could depose an additional eight witnesses, who, she contended, would testify that SMG was negligent in failing to establish regulations and to train employees to protect the audience members from “attacks by performers.” Faulkner was not among those she proposed to depose. SMG objected to West’s request for a continuance. It based its objection on the fact that West had already had 29 months to depose those witnesses but had not made any prior request to do so. The trial court denied West’s request for more time for discovery. It granted SMG’s no-evidence motion for summary judgment on May 21,2008.

On June 5, 2008, SMG filed a motion to sever. On that same day, West filed a motion asking the trial court to reconsider its decision to grant SMG’s no-evidence motion for summary judgment, and, without leave of court, she amended her petition, adding new claims under the Deceptive Trade Practices Act. On July 25, 2008, the trial court granted SMG’s motion to sever. West then filed an objection to the trial court’s failure to rule on West’s motions for continuance and her amended petition. SMG responded, arguing that the trial court’s grant of summary judgment for SMG implicitly denied West’s motion for continuance.

On August 18, 2008, West filed a notice of appeal of the trial court’s no-evidence summary judgment on her negligence and gross negligence claims and its denial of a continuance.

Finality of Judgment

As a jurisdictional threshold matter, we first address the finality of the judgment in favor of SMG. See Waco Indep. School Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex.2000) (stating that appellant courts may raise subject-matter jurisdiction sua sponte). On July 25, 2008, the trial court granted SMG’s motion to sever “all of plaintiffs claims and causes of action brought against SMG” and assigned the severed claims a new cause number. On August 18, 2008, West filed an objection to the trial court’s failure to rule on her motions for continuance and on her amended petition, arguing that the failure to grant the continuance and to rule on the live pleading was error and therefore the summary judgment was not final. SMG’s response correctly pointed out that the order granting SMG’s motion for summary judgment impliedly denied West’s motion for continuance. See Carter v. MacFadyen, 93 S.W.3d 307, 310 n. 2 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). It also correctly pointed out that the trial court need not rule on an amended petition filed after the entry of summary judgment. See Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 745 (Tex.App.-Houston [14th Dist.] 1995, no writ); Nguyen v. JP Morgan Chase Bank, No. 14-07-00086-CV, 2008 WL 2130430, at *3 (Tex.App.-Houston [14th Dist.] May 22, 2008, no pet.) (mem.op.).

We conclude that the summary judgment in favor of SMG denied all relief not granted by the judgment and was final I as to all of West’s claims against SMG. Therefore, we do have jurisdiction in thisl appeal over all of West’s claims as to SMG.I

No-Evidence Summary Judgment

A. Standard of Review

We review grants of summary judgmenl de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A no-evidence motion for summary judgmerB must be granted if, after adequate time for discovery has passed, the moving party asserts that there is no evidence of one or more specified elements of a claim or a defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex.R. Civ. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.2006).

Essentially, a party that files a no-evidence summary judgment motion has moved for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged in the motion. Id. at 582. We review the evidence presented by the summary judgment record in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)). The evidence produced must amount to more than a scintilla in order to raise a genuine issue of material fact. Madison v. Williamson, 241 S.W.3d 145, 151 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). Evidence amounts to more than a scintilla if it enables reasonable and fair-minded people to differ in the conclusions to be drawn from it. See id. at 151-52. Evidence fails the scintilla test if it gives rise only to surmise or suspicion about the fact to be proven. See id. at 152.

When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate that none of the proposed grounds is sufficient to support the judgment. Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex.1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.-Houston [1st Dist.] 1988, writ denied). Conversely, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

B. Liability of Premises Owner for Harmful Acts of Third Parties

In her first three issues, West argues that the trial court erred in granting SMG’s no-evidence motion for summary judgment because (1) SMG operated a public venue and retained exclusive control of security for the event and, therefore, it owed her a duty of ordinary care; (2) she presented summary judgment evidence supporting each of the elements of her negligence claim; and (3) she presented summary judgment evidence supporting her gross negligence claim.

A showing of negligence requires a plaintiff to establish three elements: (1) a legal duty owed by the defendant to the-plaintiff; (2) a breach of that duty; and (3) damages proximately resulting from the breach. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Duty is a threshold question in a negligence case. Id. Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. If the trial court determines that there is no duty, the inquiry regarding negligence ends. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998).

“A complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises liability claim.” Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998). “Premises liability is a special form of negligence where the duty owed to the plaintiff depends upon the status of the plaintiff at the time the incident occurred.” W. Inv., Inc., 162 S.W.3d at 550. In the case of an invitee, such as West, a premises liability inquiry focuses on whether the defendant proximately caused the plaintiffs injuries “by failing to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that it knew about or should have known about.” Id. By contrast, “[r]e-covery on a negligent activity theory requires injury by or as a contemporaneous result of the activity itself — not a condition created by the activity.” Mayer v. Willowbrook Plaza Ltd., 278 S.W.3d, 901, 909 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (citing Timberwalk, 972 S.W.2d at 753; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992)). Negligence and premises liability are independent theories of recovery, and the Texas Supreme Court has held, “We have rejected attempts to blur the distinctions between [negligence and premises liability] claims.” State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997).

1. Duty of Premises Owner to Protect Against Assaultive Acts of Third Parties

Here, as in Timberwalk, West contends that SMG’s failure to provide adequate security measures created an unreasonable risk of harm from the band’s assaultive conduct that SMG knew or should have known about and failed to correct. This is a premises liability claim predicated on SMG’s duty to provide security for the concert adequate to protect West from the band’s assault on attendees.

Generally, there is no legal duty to protect another from a third person’s criminal acts. Timberwalk, 972 S.W.2d at 756. However, when one controls the premises, he has a duty to use ordinary care to protect invitees from “criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.” Id. (quoting Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex.1997)); see also Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767-68 (Tex.2010). This exception applies to a landlord who retains control over the security and safety of the premises. Del Lago Partners, 307 S.W.3d at 767-68; Timberwalk, 972 S.W.2d at 756. This duty developed from the notion that the party with the power to control expulsion is in the best position to protect against harm. Del Lago Partners, Inc., v. Smith, 206 S.W.3d 146, 153 (Tex.App.-Waco 2006), aff'd, 307 S.W.3d 762 (Tex. 2010).

A duty of a person who owns or controls property to protect persons on the property from the risk of criminal conduct exists, however, only when the risk is so great that it is both unreasonable and foreseeable. Timberwalk, 972 S.W.2d at 756. “The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from the risk.” Id. Once this prerequisite has been satisfied, the parameters of the duty must be determined. Id. Foreseeability is the beginning of the determination of the extent of the duty to protect against a third party’s criminal acts. Id. ‘Whether such [a] risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred.” Id. at 757. “Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” Id. at 756 (quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996)).

“When the ‘general danger’ is the risk of injury from criminal activity, the evidence must reveal ‘specific previous crimes on or near the premises’ in order to establish foreseeability.” Timberwalk, 972 S.W.2d at 756 (quoting Walker, 924 S.W.2d at 377). Factors a court should consider when determining whether third party criminal conduct was foreseeable include: (1) whether any criminal conduct previously occurred on or near the property; (2) how recently such conduct occurred; (3) ihow often such conduct occurred; (4) how similar the prior conduct was to the conduct that occurred on the property; and 1(5) what publicity surrounded the occurrences to indicate that the land owner/occupier knew or should have known about them. Id. at 757.

I In addition, the Texas Supreme Court ■as recently held, in Del Logo Partners, lhat a property owner and operator with Ictual and direct knowledge that violence I; imminent has a duty to protect an invi-ne from imminent assaultive conduct by a Billow patron. 307 S.W.3d at 769-70 (fínd-Bg nature and character of bar at closing Bme after ninety minutes of heated alteration between intoxicated patrons to be Bctor in foreseeability of assaultive behav-H by patrons). The court recognized that He nature and character of the premises Ho be a “factor that makes criminal activi-Hmore foreseeable.” Id. at 767-68. More Hicifically, it recognized that criminal Hiduct may become foreseeable because H immediately preceding conduct. Id. court reasoned that “since the land-^Bier ‘is not an insurer of the visitor’s ^Bty, he is ordinarily under no duty to ^Brcise any care until he knows or has Hon to know that the acts of the third Hon are occurring or are about to occur.’” Id. at 769 (quoting Restatement (Second) of Torts § 344 cmt. f (1965)) (emphasis added in Del Lago). However, “[i]n certain situations ... the actor may have sufficient knowledge of the immediate circumstances ... to foresee that party’s misconduct.” Id. (quoting Restatement (ThiRd) of ToRts § 19 cmt. f (2010)) (emphasis added in Del Lago). The court concluded that “when a property owner ‘by reason of location, mode of doing business, or observation or past experience should reasonably anticipate criminal conduct on the part of third persons, ... [the owner] has a duty to take precautions against it.’ ” Id.

West contends that SMG knew or should have known when it required Pace to hire CSC to provide security for the concert that members of the band would foreseeably commit an intentional act of assault while performing at Reliant Park that would require additional measures to be in place to protect invitees. West also contends that SMG controlled the means and details of CSC’s security for the concert, and, in that capacity, it had a duty to provide adequate security for concertgoers, and thus it had a duty to require CSC to increase security as assaultive conduct by the band became imminent.

West states that SMG should have foreseen the band’s bottle throwing because CSC’s employee handbook instructed its employees that they should “not allow guests to throw any type of projectile” and “[w]hen an object goes into the seating area you must go and check on the guest to see if they need medical attention.” She also points to the contract between Pace and the other band that performed that night, A Perfect Circle, which required that “all beverages sold in venue be poured into cups. No bottles, plastic or other should be allowed into the hands of patrons.” West directs us to a deposition by Richard Welsh, the CSC branch manager, who testified that he had “seen water bottles thrown from the stage of rock concerts a few times.” She also directs us to a deposition by David Reed, a member of CSC’s security team, in which he testified that, during the band’s performance, he “witnessed the lead singer toss a bottle. He had been tossing bottles of water into the audience. And I called the security manager of the show to decide and said, ‘look this has got to stop.’ ” Finally, she directs us to a statement on the band’s website in 2004: “Approach at your own risk, for there is always a chance of having a limb or an organ picked at in the shuffle of it all.” The incident made the basis of this suit, however, occurred in 2008, before the date of the statement on the website.

None of this evidence amounts to more than a scintilla of evidence that SMG knew or should have known when it signed the contract with Pace requiring CSC to be hired to provide security that extra security measures would be required to protect invitees from the assaultive acts of the band. The summary judgment evidence cited by West is no evidence: (1) that water bottles had previously been thrown into the crowds by performers at Reliant Park; (2) that assaults by performers on invitees had occurred at Reliant Park in close temporal proximity to the events complained of; (3) that such conduct was frequent; (4) that it was similar to that which occurred; or (5) that SMG knew or should have known of any publicity surrounding assaultive behavior by the band from which it was foreseeable that the band would assault the crowd. See Timberwalk, 972 S.W.2d at 757. We conclude that, as a matter of law, West has failed to provide evidence of the foreseeability of the band’s criminal actions that would impose upon SMG a duty to take extra security precautions in advance of the concert to protect attendees beyond requiring Pace to hire CSC.

2. Responsibility of Premises Owner for Negligence of Agent in Failing to Provide Security

West also contends that SMG exercised control over the means and details by which CSC provided security at concerts at Reliant Arena. She contends that, although SMG subcontracted security during the concert to CSC, it retained control over the means and details of CSC’s provision of security during the concert, and, therefore, SMG was a principal and CSC was its agent rather than an independent contractor. She argues that CSC, as an agent for SMG, was acting within the scope of the general authority given by SMG and under its direction and had a duty to increase security to protect invitees from the band’s assaultive conduct, which was foreseeable under the circumstances, that CSC breached its duty, and therefore liability can be imputed to SMG, as CSC’s principal.

Generally, the individual or entity that hires an independent contractor is not vicariously liable for a tort or an act of negligence committed by the independent contractor. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947-48 (Tex.1998) (citing Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990)). However, whenl the hiring entity retains control over thel specific details and methods by which th J task is to be accomplished, the indepenl dent contractor acts as an agent and thJ individual or entity that hired the contracl tor can be held to be vicariously liable fol the torts or negligent acts of the agen® Id. By contrast, when one has the right tl control the end sought to be accomplisheiB but not the means and details of how I should be accomplished, the person en ployed acts as an independent contractoB and not as an agent, and the person fl entity that hired the contractor is not liable for the contractor’s negligent acts. See Olympia Capital Assocs. v. Jackson, 247 S.W.3d 399, 413 (Tex.App.-Dallas 2008, no pet.); Ltd. Logistics Servs., Inc. v. Villegas, 268 S.W.3d 141, 153 (Tex.App.-Corpus Christi 2008, no pet.); see also Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

In an attempt to establish SMG’s control over the means and details of the provision of security at Reliant Park, West points to the contract between SMG and its co-defendant Pace, the entity that promoted the concert at issue, which required Pace to hire CSC. She also cites to a portion of a paragraph of Paragraph F of the Reliant Park General Rules and Regulations, which in its entirety states:

The Facility retains exclusive Electrical, Food & Beverage Services, Security, Medical, Ticket, Office, Event Staff and Housekeeping contractors and it is mandatory that the Licensee and Licensee’s exhibitors and/or attendees obtain the Services of these contractors exclusively as required in conducting your/ their business in the Facility.

(Emphasis added). CSC was the security contractor to which the contract referred.

The fact that SMG required Pace to hire CSC merely establishes, however, that CSC was the exclusive contractor for security services at Reliant. It does not establish that SMG retained exclusive control over the details and manner of security CSC provided at Reliant during the band’s concert. Thus, this is no evidence that CSC was the agent of SMG in responding to security needs that arose on-site, as necessary to establish SMG’s liability for any act or omission of CSC personnel present at the concert.

West also points to the CSC employee manual, which instructed CSC employees, “No guest shall be ejected from the venue for minor infractions of policies WITHOUT ADEQUATE WARNING and CSC and/or SMG management approval. Should you the need [sic ] arise to eject a guest, please notify your supervisor. Again, CSC and SMG management are the final decision makers regarding an ejection.” This passage in CSC’s employee manual to its security personnel is, also, however, no evidence that SMG actually exercised control over the ejection of guests “for minor infractions of policies,” much less exercised control over CSC’s response to emergency situations. In particular, it is no evidence that CSC actually looked to SMG during the band’s concert to instruct it how to control the escalating assaultive conduct of the band, whose members were not “guests” whom security personnel had decided to eject for minor infractions of policies.

Finally, as evidence of on-site control over the details and means of CSC’s provision of security, West refers us to the deposition testimony by CSC’s branch manager Welsh that, in advance of an event, SMG would meet with CSC and “tell us how many ticket-takers they want, how many ushers they want and how many on-staff security they want.” She also points us to the deposition testimony of Reed, a member of CSC’s security team and the event manager for the concert who was responsible for controlling the crowd that, in fact, such a meeting took place before this event with SMG’s event coordinator, CSC’s event coordinator, and the security managers for the bands.

Reed also testified that during the band’s performance he received a call over his radio “that a person was down on the floor” and a call from his CSC supervisor, Efrem Faulkner, who was on the floor “getting the information on the incident that had happened.” He was told West had been hit by a bottle of water from the stage area. He did not know of any other incidents that occurred that evening. However, he witnessed the lead singer of the band toss a bottle. “He had been tossing bottles of water into the audience.” Reed called the security manager for the band and stated, “Look this has got to stop,” just before he was informed by Faulkner that West had been hit. He testified that up until that point he had not had a problem with the crowd. Again, however, none of this is evidence that SMG controlled the details of the provision of security on-site during the performance.

3. Duty of Premises Owner with Actual and Direct Knowledge of Imminent Harm to Require Increased Security

Finally, there is no evidence that SMG “had actual and direct knowledge” that a violent assault on the concert-goers by the band was imminent, as required to hold a premises owner liable for the violent acts of third parties on invitees. See Del Lago Partners, 307 S.W.3d at 769-70. All of the evidence cited goes to CSC’s on-site control over the means and details of security and CSC’s knowledge of the band’s conduct. There is no evidence that this knowledge was communicated to SMG or that there was even time to communicate it or that it had been communicated, SMG would have had the responsibility to direct CSC as to how to proceed.

The situation in this case is wholly unlike that in Del Lago Partners. In that case, the evidence showed that Del Lago both staffed its bar and provided its own security. 307 S.W.3d at 764-65. Del Lago’s staff continued to serve drinks to drunk patrons during “ninety minutes of yelling, threatening, cursing, and shoving” between them without calling security until after the fight started. Id. at 765-66. Del Lago’s security employees, in turn, while aware that the bar was crowded, failed to visit it during the entire ninety minutes, although they customarily visited the bar five to eight times a night and had ejected a drunk fraternity member the night before. Id. at 770-71.

The supreme court concluded that the jury could have found that Del Lago bar staffers were fully aware of the events transpiring in the bar and nevertheless unreasonably neglected to notify security or to bring the situation under control and that the bar staffers were not provided the training and information to call security. Id. at 771-72. The court also concluded that the jury could also have found that Del Lago acted unreasonably in failing to provide a “security presence at closing.” Id. By contrast, there is no evidence in the instant case that SMG employees had actual and direct knowledge that assaultive conduct was imminent, or that any SMG personnel acted negligently in unreasonably failing to respond the band’s assaul-tive conduct or to require CSC personnel to do so.

We hold that West has failed to show that SMG knew or should have known when it required Pace to hire CSC of foreseeable assaultive acts by the band or others that would require extra security to protect concert-goers. Nor has West shown that SMG controlled the means and details of CSC’s provision of security for the concert on-site during the performance and had actual and direct knowledge that assaultive conduct by the band against concert-goers was imminent and that increased security was required. We hold therefore, that, as a matter of law, SMG had no legal duty to protect West from the band’s assaultive acts. Because West has failed to bring forth sufficient evidence on the element of duty, a necessary element of her negligence and gross negligence claims, we further hold that the trial court did not abuse its discretion in granting SMG’s motion for summary judgment.

We overrule West’s first, second, and third issues.

Failure to Grant Continuance

In her fourth issue, West contends that the trial court erred in granting SMG’s motion for summary judgment without ruling on her motion for a continuance to allow her to depose Faulkner, the security supervisor for CSC responsible for the area in which West was seated. West contends that she could not depose Faulkner because he had been deployed by the United States Military. West filed her motion for continuance on January 17, 2007, and the trial court impliedly overruled it by not ruling on her motion and granting SMG’s no-evidence summary judgment.

A trial court may order a continuance of a summary judgment hearing if it “appears from the affidavits of the party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition.” Joe, 145 S.W.3d at 161. A trial court’s denial of a motion for continuance and its determination that there has been adequate time for discovery are reviewed under an abuse of discretion standard. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002) (stating that denial of motion for continuance is reviewed for abuse of discretion standard); Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex.App.-Dallas 2002, no pet.) (stating that trial court’s determination that there has been adequate time for discovery is reviewed for abuse of discretion). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner “without reference to any guiding rules or principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999).

“When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); see also Tex.R. Civ. P. 166a(g), 251, 252. The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex.App.-Austin 2002, no pet.). If these requirements are met, three non-exclusive factors are considered in determining the propriety of a trial court’s ruling on a motion for continuance: (1) the length of time the case has been on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Joe, 145 S.W.3d at 161. While no bright line rule exists regarding the length of time a case has been on file and the propriety of denying a motion for continuance, Texas courts have overruled such motions in cases on file for fewer than nine months. See Rest. Teams Int’l, 95 S.W.3d at 339-40.

West filed a motion for continuance on the trial court’s ruling on SMG’s motion for summary judgment on January 17, 2007, seeking to depose Efrem Faulkner, a CSC employee. West’s motion principally contended that Faulkner “has particular knowledge and observations of the events, actions, and inactions that took place prior to and during the event at Reliant Arena when Plaintiff was injured.”

West’s case had been on file for a year and a half, since November 2005, when she filed her motion for continuance. Although the trial court heard oral argument on SMG’s motion for summary judgment on January 29, 2007, without granting the continuance, the court did not deem the motion for summary judgment finally submitted until April 14, 2008 — 14 months after SMG filed it and 29 months after West filed suit — and did not grant summary judgment until May 21, 2008. During this time, there is no evidence that West made any attempt to depose Faulkner. Rather, undermining her own argument, she abandoned that continuance and, instead, on April 7, 2008, filed a second motion for continuance, seeking seven other depositions, just one week before the motion for summary judgment was set for final submission. By the time of final submission of SMG’s summary judgment motion, West’s case had been on file for 29 months. Her motions for continuance provided no information regarding any efforts she had made to secure any of the depositions requested in a timely manner. Nor does the record contain any reference to the particular knowledge and observations of knowledge Faulkner or the other persons for whose deposition a continuance was requested that would have supplied proof of the elements of West’s negligence claims against SMG that West was unable to produce otherwise. We conclude that West failed to satisfy the factors that would have justified a continuance. See Rocha, 69 S.W.3d at 319; Joe, 145 S.W.3d at 161.

We hold that the trial court did not abuse its discretion in denying West’s motion for continuance. We overrule West’s fourth issue.

CONCLUSION

We affirm the judgment of the trial court.

      . West contends the water bottles contained ice, not liquid water.

      . SMG is the successor entity to LMI/HHI, Ltd., the firm that managed Reliant Park at the time of the concert. Like the parties, we refer to SMG and not LMI/HHI.

      . “Negligence per se is a common-law doctrine that allows courts to rely on a penal ^btatute to define a reasonably prudent person's standard of care.” Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex.2001).

      . SMG also filed a traditional motion for sum-tary judgment asserting the same claims. The trial court did not rule on it, and West appeals only the trial court’s ruling on the no-evidence summary judgment.

      . West’s response did not address her claim of negligence per se and she has not brought forth that issue on appeal.

      . West contended that she sent SMG a letter requesting depositions of these newly identified people on March 6, 2008. SMG claimeB it never received the letter. H


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    In the Matter of J.V.M.
    No. 08-09-00114-CV.
    Court of Appeals of Texas, El Paso.
    June 23, 2010.

      Michael D. Robbins, Assistant Public Defender, San Antonio, TX, for Appellant.
    Susan D. Reed, Criminal District Attorney, San Antonio, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

In his sole issue, Appellant, a juvenile, contends that the trial court abused its discretion when it placed him on probation in a facility other than his home. We disagree.

BACKGROUND

Several days before turning seventeen, and after stipulating and pleading true to the allegations without any agreement between Appellant and the State, Appellant was adjudicated for the misdemeanor offense of delinquent conduct in the form of assault causing bodily injury to his 14-year old ex-girlfriend. Tex. Penal Code Ann. § 22.01(a)(1) & (b) (Vernon Supp.2009). At the disposition hearing, the trial court considered the underlying facts of the case which included a written police report stating that Appellant struck the complaining witness in the head approximately 30 times because Appellant’s brother was standing too close to her, and knocked her down and struck her on the back with a stool. In the written report, the police officer who was dispatched to the scene noted that when he entered the residence, he heard Appellant say, ‘What the fuck were you doing, bitch?” The officer observed that the complaining witness was bleeding from her nose and had visible injuries to her face, which was scratched and swollen around her eyes, and also found blood on a wall and the carpet. The trial court considered other evidence which included, but was not limited to: (1) Appellant’s gang affiliation; (2) a pre-disposition report showing Appellant’s past four juvenile adjudications, including prior dispositions where he was placed on probation at home on one occasion and outside the home in three other instances, and a probation violation; and (3) pending charges for evading arrest and criminal mischief for breaking windows, an act which was allegedly preceded by Appellant’s threatening phone call to his child’s mother in which he asserted that he would rather kill the child than pay child support. The pre-disposition report also showed that Appellant lived with his mother and possibly his father, had numerous incidents of behavioral and assaultive problems toward staff and other juveniles at the Krier Facility leading to his discharge from that facility, had been committed to the Texas Youth Commission for a period of one year and nine months after his fourth juvenile adjudication, and had a history of mild drug use. Appellant had also been diagnosed with bipolar disorder as well as attention-deficit hyperactivity disorder.

Appellant addressed the trial court, stating that he was maturing, had thought about his situation, and would like another chance to redirect himself before turning eighteen years old. The trial court noted that Appellant had been before the court since age 10, had been “placed” twice before, had been to the Texas Youth Commission, and observed that Appellant and the trial court had been trying to “get everything together for [Appellant] for a long time.” The trial court read and considered a letter prepared by Appellant, informed Appellant that she liked him, and stated that she believed Appellant could accomplish the goals set forth in his letter if he would “get [his] act together.”

Both the State and Appellant’s probation officer recommended that Appellant be placed on probation in the custody of the Chief Probation Officer for the purpose of placement until age 18. Appellant informed the trial court, “[T]he only issue that we wish to address is the placement issue, Your Honor.” This was the only comment made by Appellant regarding the recommended disposition in this case. Appellant never specified his objections to placing Appellant on probation outside the home nor did he show any basis or present any evidence to support home-based probation. Although Appellant’s mother was present at the hearing, no evidence was presented showing that Appellant, either in his own home or the home of a family member, could be provided the quality of care and level of support and supervision that he would need to meet the conditions of probation. Our review of the record shows that Appellant refused to sign the form setting forth the terms and conditions of his probation.

At the conclusion of the hearing, the trial court announced a need for disposition in the case for Appellant’s rehabilitation and for the protection of the public. The trial court followed the recommendation of the State and probation officer, placing Appellant on probation in the custody of the Chief Probation Officer for the purpose of placing Appellant in a facility, not in his parents’ home, and imposing other requirements and restrictions, until Appellant reached age 18.

In its Order of Disposition, the trial court made affirmative findings “[t]hat the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation,” and “[t]hat it is in the best interest of the child and for the child’s health, safety, morals and education, that the child be placed on probation in the care, custody and control of the Chief Juvenile Probation Officer[.]” Additionally, the trial court’s disposition order includes findings that it was in Appellant’s best interest to be placed outside his home, that reasonable efforts were made to prevent or eliminate the need for his removal from his home and to make it possible for Appellant to return to his home, and that the placement of Appellant outside the home was the appropriate disposition, in part due to Appellant’s “long and extensive history with [the] probation department.”

The trial court entered additional written findings that: (1) reasonable efforts had been made to prevent or eliminate the need for Appellant to be removed from his home; (2) Appellant had previously been placed on probation by the court; (3) “[t]he child and/or family was previously referred to the following community, court, or educational programs: Residential Placement (Meadowlands, Krier);” and (4) “[t]he child and/or family was previously referred to the following counseling or psychological services: Family Counseling at the Cindy Krier Facility & Youth Alternatives.”

DISCUSSION

Appellant complains that the trial court’s decision to place Appellant on probation in a facility outside his home was an abuse of discretion because none of the purposes set forth in Section 54.04(i) of the Texas Family Code were better served than if Appellant had received home-based probation. Tex. Fam.Code Ann. § 54.04(i) (Vernon Supp.2009). We affirm the trial court’s decision.

Standard of Review

Deciding this case in accordance with the precedence of the transferor court, the Fourth Court of Appeals in San Antonio, we review the trial court’s disposition order under the criminal abuse of discretion standard, without implementing the traditional evidentiary standards of legal and factual sufficiency. Tex.R.App. P. 41.3; In re K.T., 107 S.W.3d 65, 74-75 (Tex.App.-San Antonio 2003, no pet.); In re J.G., 195 S.W.3d 161, 187 (Tex.App.-San Antonio 2006, no pet.) (holding that where appellant complained about the trial court’s disposition-order findings under I § 54.04(i), the appellate court would apply an abuse-of-discretion standard, divorced from the evidentiary standards of legal land factual sufficiency). In conducting our [review, we defer to the lower court’s findings of fact, but determine de novo whether the facts supported by the record justify the disposition order, in light of the Purposes of the Texas Juvenile Code. Tex. Fam.Code Ann. § 51.01 (Vernon 2008); In re K.T., 107 S.W.3d at 67, 75. We “ ‘view Ihe evidence in the light most favorable to Ihe trial court’s ruling,’ affording almost Id tal deference to findings of historical fact fcat are supported by the record.” In re K.T., 107 S.W.3d at 75, quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When a resolution of factual issues does not turn upon an evaluation of the Hitnesses’ credibility or demeanor, we re-Hew de novo the trial court’s determination of law and its application of law to the facts. In re K.T., 107 S.W.3d at 75. A trial court has broad discretion in determining a suitable placement for a child adjudicated for delinquent conduct. In re K.J.N., 103 S.W.3d 465, 465-66 (Tex.App.-San Antonio 2003, no pet.). A trial court’s ruling will not be disturbed absent an abuse of discretion, which only occurs if the trial court acts unreasonably and without reference to guiding rules and principles. Id. at 466.

Texas Family Code

Section 54.04 of the Texas Family Code provides that a juvenile proceeding may consist of an adjudication hearing and a disposition hearing. See Tex. Fam.Code Ann. § 54.04(a) (Vernon Supp.2009). At the adjudication hearing, the court or jury must determine whether the juvenile has “engaged in delinquent conduct or conduct indicating a need for supervision.... ” Tex. Fam.Code Ann. § 54.03(a) (Vernon Supp. 2009). If the trial court determines that a juvenile has engaged in delinquent conduct or conduct indicating a need for supervision, the court conducts a separate and distinct disposition hearing subsequent to the adjudication hearing. Tex. Fam.Code Ann. §§ 54.03(a) & 54.04(a) (Vernon Supp. 2009). Unless the court or jury finds the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made, the court must dismiss the child and enter a final judgment without any disposition. Tex. Fam.Code Ann. § 54.04(c) (Vernon Supp. 2009). If the trial court finds that the child is in need of rehabilitation or that the protection of the public or of the child requires disposition, it may place the child on probation. Tex. Fam.Code Ann. § 54.04(d) (Vernon Supp.2009). No disposition placing a child on probation outside the child’s home is permitted unless the trial court or jury finds that the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of the probation. Tex. Fam. Code Ann. §§ 54.04(c) & 54.04(d)(1)(B) (Vernon Supp.2009). The trial court may place the child on probation in a suitable foster home, a suitable public or private residential treatment facility, or a suitable public or private post-adjudication secure correctional facility as permitted under the Texas Family Code. See Tex. Fam.Code Ann. § 54.04(d)(1)(B)®, (ii), & (iii) (Vernon Supp.2009). The trial court must specifically state its reasons for the disposition in its order and must include the terms of probation therein. Tex. Fam.Code Ann. § 54.04(f) (Vernon Supp.2009). When a trial court places a child on probation outside the child’s home or commits the child to the Texas Youth Commission, the court must, in part, include in its disposition order determinations: (1) that it is in the child’s best interests to be placed outside the child’s home; (2) that reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home; and (3) that the child, in the home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. Tex. Fam. Code Ann. §§ 54.04(i)(l)(A), 54.04(i)(l)(B), 54.04(i)(l)(C) (Vernon Supp.2009).

Application

Without again reciting the litany of facts which the trial court had before it at the disposition hearing, we note that the trial court was presented with and considered evidence that Appellant was affiliated with a gang, had previously been adjudicated, had been placed on probation both within and outside his home, had other charges pending, and had badly beaten his 14-year old ex-girlfriend because Appellant’s brother was standing “too close” to her. In its written disposition order, the trial court made each finding required by Texas Family Code Section 54.04(i)(l), including a finding that Appellant could not be provided the quality of care and level of support and supervision that he needed to meet the terms of probation, in part due to his long and extensive history with the probation department. Tex. Fam.Code Ann. §§ 54.04(i)(l)(A), 54.04(i)(l)(A)(B), 54.04(i)(l)(A)(C) (Vernon Supp.2009). The trial court’s findings are supported by evidence of Appellant’s extensive, near seven-year history of delinquent behavior, adjudications, probation within and without his home, repeated counseling attempts, his diagnoses of bipolar disorder and attention-deficit and hyperactivity disorder, and placement at Texas Youth Commission. Because the trial court, in exercising its broad discretion in determining a suitable placement for Appellant, properly determined and applied the law to the facts of this case when it ordered Appellant to serve probation outside his home, we find that the trial court did not abuse its discretion. Tex. Fam.Code Ann. § 54.04(d)(1)(B) (Vernon Supp.2009); In re K.J.N., 103 S.W.3d at 465-66. Appellant’s sole issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

      . " '[Disposition is a euphemism for sentencBing[ ] and is used to honor the non-criminal Btharacter of the proceedings.’ ” In re K.T., 107 S.W.3d at 67, quoting In re C.S., 804 A.2d 307, 309 n. 2 (D.C.App.2002).


text:
    John FOX, Appellant, v. Joe WARDY, Mayor, Susan Austin, Jose A. Lozano, John F. Cook, Daniel S. Power, Paul J. Escobar, Vivian Rojas, and Anthony W. Cobos, Appellees.
    No. 08-08-00309-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2010.

      John Fox, El Paso, TX, for Appellant.
    John Gates, El Paso, TX, for Appellees.
    Before CHEW, C.J., RIVERA, J., and GOMEZ, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

John Fox appeals the trial court’s dismissal of his case for lack of jurisdiction. We affirm.

BACKGROUND

Representing himself pro se, Fox instituted a tort action against Appellees, who are present or former members of the El Paso City Council, for negligence and gross negligence arising from a condemnation proceeding concerning an apartment building that he owned. According to the petition, Fox maintained that during the condemnation hearing, he raised several issues that were denied or ignored, and that the City Council continued the condemnation proceedings despite his complaints. Appellees generally denied the allegations and pled governmental immunity as the alleged acts or omissions occurred during the course and scope of a governmental function and in the performance of a governmental duty.

Appellees then filed their first amended answer and plea to the jurisdiction. According to Appellees, Fox’s suit against them while they acted in their official capacity was, in effect, a suit against the City of El Paso, which they represented, and that therefore, the City was entitled to sovereign immunity and Fox failed to plead any waiver of sovereign immunity. As alternative grounds, Appellees also contended that the court lacked subject-matter jurisdiction since Fox failed to comply with the requirements of Chapter 214 of the Local Government Code, that is, he failed to file a petition for writ of certiorari in seeking judicial review of the condemnation action.

On August 7, 2008, the trial court granted Appellees’ plea to the jurisdiction. Approximately twenty days later, Fox filed a motion to reconsider, which was, in essence, a motion for new trial, and the trial court denied the same on October 13, 2008. On October 2, 2008, the trial court entered findings of fact and conclusions of law. Those findings stated that Fox sued the City’s employees while acting in their official capacity and that Fox did not to comply with Chapter 214 of the Local Government Code in seeking judicial review of the condemnation action. Thus, the trial court concluded that the suit against the public officials was a suit against the City, which enjoyed sovereign immunity, that Fox failed to plead a waiver of sovereign immunity, and that he failed to comply with the Local Government Code in bringing his action, depriving the court of subject-matter jurisdiction. Fox filed his notice of appeal on November 3, 2008.

DISCUSSION

On appeal, Fox asserts two issues. The first is whether the trial court erred in dismissing his petition on grounds of sovereign immunity, and the second is whether the trial court erred in dismissing his petition on grounds that he failed to comply with Chapter 214 of the Local Government Code. Appellees respond that Fox’s notice of appeal was not timely and that his arguments are inadequately briefed. We disagree with Appellees but nonetheless find Fox’s contentions without merit.

Notice of Appeal

Appellate courts have jurisdiction only over appeals from final judgments and from specific types of interlocutory orders designated by the legislature as appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 2008), § 171.098 (Vernon 2005); Tex. Gov’t Code Ann. § 1205.068 (Vernon 2000). According to Appellees, the granting of a plea to the jurisdiction is an interlocutory order, and therefore, Fox’s notice of appeal was due twenty days after the trial court signed the order. See Tex.R.App. P. 28.1 (stating that interlocutory appeals are accelerated and that the filing of a motion for new trial will not extend the time to perfect the appeal); Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (stating that a person may appeal an interlocutory order that grants or denies a plea to the jurisdiction by a governmental unit).

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). For the plea to qualify as an interlocutory order, the granting or denying of the same by a governmental unit must leave other parties or claims at issue in the trial court. Cf. Lehmann, 39 S.W.3d at 195 (a judgment is final and appealable when it disposes of all parties and claims); Woosley v. Smith, 925 S.W.2d 84, 86 (Tex.App.-San Antonio 1996, no pet.) (“[A]n order is interlocutory when it fails to dispose of all parties to a suit and leaves the case in such a situation that further action by the court is required to settle the controversy.”). If it does not, “no obstacle or impediment stands in the way of proceeding,” and the granting of a plea to the jurisdiction is a final, appealable order. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex.1985).

Here, the trial court determined that it lacked subject-matter jurisdiction by granting Appellees’ plea to the jurisdiction and dismissing the case. That order disposed of all claims against all parties. Accordingly, we hold, under the facts of this case, that the trial court’s order sustaining the plea was not interlocutory, but a final and appealable order. See Speer, 685 S.W.2d at 23; Stanton v. Univ. of Tex. Health Sci. Ctr., 997 S.W.2d 628, 629 n. 1 (Tex.App.-Dallas 1998, pet. denied). Therefore, the provisions relied on by Ap-pellees are inapposite, and Fox, by filing a motion for new trial within 30 days after the judgment was signed and a notice of appeal within 88 days after the judgment was signed, invoked our jurisdiction over this appeal. See Tex.R.App. P. 26.1(a)(1) (notice of appeal must be filed with 90 days after the judgment is signed if any party timely files a motion for new trial); Tex.R. Civ. P. 329b(a) (motion for new trial must be filed prior to or within thirty days after the order complained of is signed).

Inadequately Briefed

Appellees also contend that Fox inadequately briefed his complaints. Although we liberally construe pro se briefs, we nevertheless hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978). Thus, to present an issue for our review, the pro se litigant’s brief must contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App. P. 38.1. Bare assertions of error, without argument or authority, waive error. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied).

Here, Fox’s brief contains a statement of the case, issues presented, a statement of facts, a summary of argument, and an argument section supported by case law. Although Fox fails to provide record cites for each sentence, we note that the record is small and that Fox is simply contesting Appellees’ plea to the jurisdiction and defense that Fox failed to comply with applicable statutes in bringing his suit. Therefore, we will exercise our discretion and address his complaints. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (appellate court has discretion to waive point of error due to inadequate briefing).

Chapter 2U

We begin our discussion with Fox’s second issue, which asserts that the trial court erred by dismissing the case for lack of subject-matter jurisdiction when he failed to follow the procedures outlined in Chapter 214 of the Local Government Code in seeking judicial review of the condemnation hearing. We do so because Fox appears to be appealing from the City Council’s condemnation resolution against his apartment building as his pleadings allege that the tort action resulted from the condemnation proceeding brought by the City Council, that his complaints were denied or ignored during the condemnation hearing, and that the City Council nevertheless continued the proceedings.

Section 214.0012 of the Local Government Code provides that an individual who seeks judicial review of a condemnation order issued by a municipality must file a petition for writ of certiorari in district court. Tex. Loc. Gov’t Code Ann. § 214.0012(a) (Vernon 2008); see also Martinez v. City of El Paso, 169 S.W.3d 488, 492 (Tex.App.-El Paso 2005, pet. denied), disapproved on other grounds by Tellez v. City of Socorro, 296 S.W.3d 645 (Tex.App.-El Paso 2009, pet. denied); Nussbaum v. City of Dallas, 948 S.W.2d 305, 308 (Tex.App.-Dallas 1996, no writ); J.B. Advertising, Inc. v. Sign Bd. of Appeals, 883 S.W.2d 443, 446 (Tex.App.-Eastland 1994, writ denied). Filing of the petition for writ of certiorari is a prerequisite to invoking the trial court’s subject-matter jurisdiction over the appellate proceeding. See Tellez, 296 S.W.3d at 650 n. 2; Martinez, 169 S.W.3d at 492.

Here, however, Fox appealed the condemnation order by instituting a tort action for negligence and gross negligence. He never filed a petition for writ of certio-rari. Therefore, Fox never invoked the trial court’s jurisdiction to judicially review the City Council’s actions at the condemnation hearing. See Tellez, 296 S.W.3d at 650 n. 2; Martinez, 169 S.W.3d at 492. Accordingly, the trial court did not err by dismissing the case for lack of subject-matter jurisdiction, and we overrule Fox’s second issue.

Plea to the Jurisdiction

Assuming Fox’s intent was not to appeal the condemnation hearing but rather sue Appellees for negligence and gross negligence in tort, we now turn to Fox’s first issue, which challenges the trial court’s dismissal for lack of subject-matter jurisdiction on grounds of sovereign immunity following Appellees’ filing of a plea to the jurisdiction. According to Fox, the trial court should not have dismissed the case without allowing him the opportunity to amend his pleadings. We disagree.

Jurisdiction is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Gonzalez v. Greyhound Lines, 181 S.W.3d 386, 391 (Tex.App.-El Paso 2005, pet. denied). In a suit against a governmental unit, the plaintiff has the burden to allege facts that affirmatively show the trial court’s jurisdiction to hear the case, see Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004), and we construe the pleadings liberally in favor of jurisdiction. See Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.; Gonzalez, 181 S.W.3d at 391.

Here, Fox’s suit against Appellees for acts or omissions arising during the scope of their employment was, in effect, a suit against the City, which the officials represented. See Gomez v. Housing Authority of the City of El Paso, 148 S.W.3d 471, 482 (Tex.App.-El Paso 2004), cert. denied, 546 U.S. 872, 126 S.Ct. 379, 163 L.Ed.2d 166 (2005); Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 708 (Tex.App.-San Antonio 2002, pet. denied). Generally, municipalities enjoy sovereign immunity, and Fox, as the party suing the governmental unit, had the burden to establish a waiver of the City’s sovereign immunity by pleading the City’s consent to be sued, express legislative permission, or a specific statute waiving the City’s immunity. Texas Dep’t of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). In this case, we are concerned with the latter as Fox labeled his suit a “tort action” and argued that the Texas Tort Claims Act (“TTCA”) applied. See Shull, 4 S.W.3d at 53 (we construe pro se pleadings liberally).

Under the TTCA, the City is a governmental unit and enjoys immunity from: (1) intentional torts; and (2) suits for negligence unless the action involved the use of publicly owned vehicles, premises defects, or injuries arising out of the conditions or use of tangible, personal property. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021, 101.057(2) (Vernon 2005); Miranda, 133 S.W.3d at 225. However, Fox never pled that his injuries, if any, were the result of the City’s operation of a motor vehicle, premises defects on the City’s property, or the condition of tangible, personal or real property that the City was responsible for. Rather, he simply pled negligence and gross negligence. Because Fox has not pled a waiver of the City’s sovereign immunity, the trial court lacked subject-matter jurisdiction and dismissal was proper. See Miranda, 133 S.W.3d at 226 (plaintiff has initial burden to plead facts affirmatively showing trial court has subject-matter jurisdiction).

Nevertheless, Fox contends that he should be afforded the opportunity to amend his pleadings to address sovereign immunity. However, a trial court only errs in failing to afford a plaintiff the opportunity to amend when there are curable defects in jurisdiction. See Sepulveda v. County of El Paso, 170 S.W.3d 605, 617 (Tex.App.-El Paso 2005, pet. denied). Here, Fox’s suit in tort arises from the City’s condemnation action where he alleged that the City Council denied his contentions that Thomas Maquire, a Code Enforcement Officer for the El Paso Building Services Department, should not have testified at the condemnation hearing as Fox was litigating a civil rights action against Maquire and Maquire did not possess the proper credentials to institute condemnation proceedings against Fox. Fox’s negligence action does not result from those statutory acts or omissions that provide for a waiver of the City’s immunity under the TTCA. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (sovereign immunity waived where injuries result from the City’s operation of a motor vehicle, premises defects on the City’s property, or the condition of tangible, personal or real property that the City was responsible for). Accordingly, the jurisdictional problems are not curable and the trial court did not err by dismissing the case without allowing Fox the opportunity to amend his pleadings. See, e.g., Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007); City of Austin v. Leggett, 257 S.W.3d 456, 476-77 (Tex.App.-Austin 2008, pet. denied) (cases holding trial court lacked subject-matter jurisdiction when pleading defects could not be cured). Fox’s first issue is overruled.

CONCLUSION

Having overruled Fox’s issues, we affirm the trial court’s judgment.

GOMEZ, Judge, sitting by assignment.

      . We construe pro se pleadings liberally. See Shull v. United Parcel Service, 4 S.W.3d 46, 53 (Tex.App.-San Antonio 1999), cert. denied, 531 U.S. 835, 121 S.Ct. 94, 148 L.Ed.2d 53 (2000). Fox’s motion to reconsider asked the court to reverse its order and reinstate the cause of action. We interpret this motion as a motion for new trial. See Llano v. State, 16 S.W.3d 197, 198 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (construing the substance of pro se motions as a motion for new trial).

        . Fox’s pleadings allege a tort action for negligence and seek monetary damages. The pleadings, therefore, are not an action to determine or protect his private rights from any officials’ acts without legal or statutory authority. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 404 (Tex.1997) (unlike a suit for damages based on the official’s discretionary acts, an action to determine or protect a private party's rights against an official who has acted without legal or statutory authority is not a suit against the sovereign that is barred by sovereign immunity), overruled on other grounds by General Services Com'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 593 (Tex.2001).


text:
    Tony TRUJILLO, Appellant, v. Sylvester CARRASCO, Appellee.
    No. 08-08-00299-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2010.

      Bill Weinacht, Pecos, TX, for Appellant.
    Albert G. Valadez, Fort Stockton, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J., and GOMEZ, Judge
   OPINION

GUADALUPE RIVERA, Justice.

Carrasco brought suit against Trujillo for damages sustained from the deaths of his fowl allegedly caused by Trujillo’s dog. The Justice Court rendered judgment in favor of Carrasco, and Trujillo appealed to the County Court. After amended petitions were filed and a bench trial held on the same, the trial court rendered judgment in favor of Carrasco and ordered Trujillo to pay $2,000 in damages. We reverse.

BACKGROUND

Carrasco resided just outside the city limits of Pecos, Texas, where he raised and sold roosters and hens that were kept in fenced pens and cages. Each rooster was valued between $125 and $150, and each hen was worth around $100. On the morning of January 3, 2007, Carrasco saw a pack of dogs jumping out of his pens after having killed nineteen roosters and three hens. Although some of the dogs escaped, Carrasco was able to corral two. One of those dogs was a black labrador, and the other was a chocolate labrador. The black labrador had a collar and tag, which was removed to identify the owner. Carrasco made a report with the sheriffs department, and the next day, the animal control officer took the dogs. The dog with the collar was later returned to his owner, Trujillo.

Trujillo, who lives inside the city limits, kept his dog in a pen in the backyard. But on January 3, 2007, the dog was missing and the gate to the pen was opened. Although Trujillo’s backyard is also fenced, there are holes underneath the fence, which presumably, is how the dog escaped. The dog had escaped once before, but there was no evidence that the dog had any vicious tendencies.

Carrasco later sued Trujillo for negligence per se and negligence. After rendering judgment for Carrasco, the trial court entered findings of fact and conclusions of law. Those relevant findings included the applicable city code ordinances that required owners to restrain their dogs and proscribed owners from allowing their dogs to run at large within the city. And the relevant fact findings were that Trujillo lived inside the city limits, that the city ordinances applied to Trujillo, that Trujillo’s dog previously ran at large, in violation of the city code, that Trujillo’s dog ran at large on January 3, 2007, that his dog entered Carrasco’s property, which was outside the city limits, and killed nineteen roosters and three hens, and that the dog caused $2,000 in damages to Carrasco’s fowl. The trial court then concluded that Trujillo owed a duty to Carrasco, that Trujillo breached that duty by allowing his dog to run at large previously and on January 3, 2007, causing damage to Car-rasco, and that the act of Trujillo’s dog running at large violated the city code and constituted negligence per se, making Trujillo liable for any damages to Carrasco’s property.

DISCUSSION

On appeal, Trujillo brings five issues. The first is that the trial court erred by holding him liable for negligence per se when Carrasco was not within the class of persons the violated ordinance was designed to protect, the second is that the trial court erred by holding him liable for negligence when Carrasco failed to tender a written amended pleading alleging the cause of action, and the third, fourth, and fifth issues are that the evidence is legally insufficient to support a finding of negligence and negligence per se. Finding negligence per se inapplicable and that no evidence establishes negligence, we reverse.

Negligence Per Se

Trujillo’s first issue asserts that he cannot be held liable for negligence per se when the violated city ordinance was not designed to protect individuals living outside the city limits. We agree. To prove negligence per se, Carrasco was required to show that a statute or ordinance was violated and that such violation was the proximate cause of his damages. See Moughon v. Wolf, 576 S.W.2d 603, 604 n. 2 (Tex.1978); Durham v. Zarcades, 270 S.W.3d 708, 718-19 (Tex.App.-Fort Worth 2008, no pet.). Moreover, Carrasco was required to show that the statute was designed to prevent injury to a class of persons to which he belongs. See Zavala v. Trujillo, 883 S.W.2d 242, 246 (Tex.App.-El Paso 1994, writ denied); Chapa v. Club Corp. of America, 737 S.W.2d 427, 429 (Tex.App.-Austin 1987, no writ).

Here, the trial court found that the city’s ordinances proscribing dogs from running at large was violated. However, nothing in the record indicates that the violated ordinance was designed to protect individuals that lived outside the city limits. In fact, the sheriffs deputy and animal control officer testified that the city ordinances did not apply as the injury occurred outside the city limits. Further, even Carrasco acknowledged that he resided outside the city limits so that the city ordinance would not apply to him. As no evidence exists that Carrasco, who lived outside the city, belonged to the class of persons the city ordinances were designed to protect, Trujillo was not liable under the theory of negligence per se. See Kelly v. Brown, 260 S.W.3d 212, 219 (Tex.App.-Dallas 2008, pet. denied) (holding that train, not automobile driver, was within the class of persons the statute, which required automobile drivers to yield the right of way to trains at railroad crossings, was designed to protect). Accordingly, we sustain Trujillo’s first issue.

Negligence

In his fifth issue, Trujillo challenges the legal sufficiency of the evidence to support negligence. According to Trujillo, there was no evidence of proximate cause. We agree.

When a party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 579 (Tex.App.-El Paso 2004, pet. denied). A legal sufficiency or “no evidence” challenge will be sustained on appeal if the record shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex.App.-El Paso 2006, no pet.), citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). We view the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence if a reasonable juror could not. City of Keller, 168 S.W.3d at 807. We also indulge every reasonable inference that would support the verdict. Id. at 822. But if the evidence allows only one inference, the trier of fact may not disregard it. Id. When a no-evidence point of error rests on the competency of the evidence, we may not disregard contrary evidence showing it to be incompetent. Id. at 812.

The elements of an action for injuries caused by the negligent handling of an animal are that: (1) the defendant was the owner or possessor of an animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant’s breach proximately caused the plaintiffs injury. Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex.App.-Waco 2002, no pet.), citing Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.1974); Dunnings v. Castro, 881 S.W.2d 559, 561-62 (Tex.App.-Houston [1st Dist.] 1994, writ dism’d). Foreseeability, a necessary component of proximate cause in a suit for negligence, requires the plaintiff to establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). Although foreseeability does not require a person to foresee the particular accident or injury that in fact occurs, Brown v. Edwards Transfer Co., Inc., 764 S.W.2d 220, 223 (Tex.1988), it does require that (1) the injury be of such a general character as might reasonably have been anticipated, and (2) the injured party be so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated might reasonably have been foreseen. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 551 (Tex.1985). The inquiry is whether the injury might reasonably have been contemplated as a result of the defendant’s conduct. City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987).

Here, Trujillo asserts that Carrasco failed to prove that the dog was vicious or dangerous. However, in an animal negligence suit, the plaintiff is not required to prove that the animal was vicious or dangerous. Allen, 97 S.W.3d at 660; Dunnings, 881 S.W.2d at 562-63. Indeed, an owner of a domestic animal is required to know those dangerous propensities normal to its class. See Dunnings, 881 S.W.2d at 562, citing RESTATEMENT (SECOND) OF TORTS § 518. Nevertheless, the vicious nature of a dog or its class may be a factor, depending on the circumstances, in establishing foreseeability. See Gill v. Rosas, 821 S.W.2d 689, 691 (Tex.App.-El Paso 1991, no pet.); Petry v. Gasca, No. [ AXX-XX-XXXXX ]-CV, 1994 WL 132772, at *2-3 (Tex.App.-Houston [14th Dist.] Apr. 14, 1994, no writ) (op., not designated for publication).

The trial court found that simply because the dog escaped from its pen, the injuries to Carrasco’s fowl were foreseeable. However, Carrasco offered no evidence as to the dangerous propensities of escaped labradors, that such dogs are prone to hunting and killing fowl, or that they destroy property. Although labra-dors may exhibit these characteristics, it was incumbent on Carrasco to present such evidence or at the very least, ask the court to take judicial notice of a labrador’s characteristics. Moreover, the mere fact that the dog had previously escaped its pen was insufficient to establish foreseeability that the dog would kill another’s fowl when the city ordinances prohibited the keeping of fowl inside the city limits. Further, when the dog previously escaped, he did not cause harm to any place, thing, animal, or human being. Thus, when the dog escaped again, an ordinary person would not foresee, based on the evidence presented, that the dog would destroy another’s fence and kill its fowl. Because Carrasco failed to show foreseeability, and therefore, proximate cause, the evidence is legally insufficient to support a finding of negligence. See Gill, 821 S.W.2d at 691; Petry, 1994 WL 132772, at *2-3. Accordingly, we sustain Trujillo’s fifth issue.

CONCLUSION

Because we have held that Trujillo is not liable for negligence per se or negligence, which were the only theories of liability argued and found by the trial court, we need not address Trujillo’s remaining issues. Accordingly, we reverse the trial court’s judgment and render judgment that Carrasco take nothing.

GOMEZ, Judge, sitting by assignment.

      . Carrasco did not see any of the dogs actually kill the roosters or hens, nor does he know which dog killed which rooster or hen.

      . The plaintiff is only required to prove knowledge of the animal’s vicious propensities under the common-law theory of strict liability. See Allen, 97 S.W.3d at 660; Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex.App.-Corpus Christi 1992, no writ). Carrasco did not plead common-law strict liability. Although Carrasco's amended petition included a heading for strict liability, it is clear that the content of his amended petition was invoking negligence per se as he was relying on the violation of city ordinances. See Hodge v. Smith, 856 S.W.2d 212, 214 n. 1 (Tex.App.Houston [1st Dist.] 1993, writ denied) ("The titles of the pleadings and other court documents are not controlling. We are to look at the substance of the pleadings and proceedings to determine what actually occurred.”).

      . The trial court concluded that Trujillo was liable for damages solely because he violated the running-at-large ordinance, not because he violated any other ordinances. And on appeal, the parties only contend that the trial court find Trujillo liable for negligence and negligence per se because Trujillo’s dog ran at large.


text:
    AGE INDUSTRIES, LTD., Appellant, v. Thomas EDWARDS, Appellee.
    No. 08-08-00246-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2010.

      John L. Gamboa, Jr., Acuff & Gamboa, L.L.P., Fort Worth, TX, for Appellant.
    John P. Mobbs, Attorney at Law, El Paso, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J., and GOMEZ, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

Age Industries, Ltd. (Age Industries) appeals the trial court’s confirmation of an arbitration award and asserts that the trial court committed error. We affirm.

BACKGROUND

Thomas Edwards filed suit against Age Industries for breach of a written employment contract and fraud. The trial court granted Age Industries’ Motion to Stay Litigation and Compel Arbitration. The arbitrator awarded Edwards the present cash value of his employment contract, an additional $14,500, $32,000 in attorney’s fees, pre-judgment and post-judgment interest as allowed by law, and denied Edwards all other relief. Edwards then filed a motion to confirm the arbitration award and sought a conditional award of additional attorney’s fees, interest, and court costs. Age Industries filed its response to the motion, asserting that the arbitrator misinterpreted the law resulting in a “gross mistake.” The trial court entered its final judgment confirming the arbitrator’s award and granted Edwards’ request for fees, interest, and costs. Age Industries now appeals the trial court’s final judgment confirming the arbitrator’s award.

In two issues, Age Industries essentially contends that it is entitled to relief because (1) the trial court erred when it confirmed the arbitrator’s award as there was no binding compensation agreement between Edwards and Age Industries, and (2) the trial court failed to follow Texas contract law. We disagree.

DISCUSSION

Our review of a trial court’s confirmation of an arbitration award is extraordinarily narrow. Garza v. Phelps Dodge Refining Corp., 262 S.W.3d 514, 517 (Tex.App.-El Paso 2008, no pet.). We review de novo a trial court’s decision to confirm an arbitration award and, in doing so, we review the entire record. Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 567-68 (Tex.App.-Dallas 2008, no pet.); Home Owners Mgmt. Enters., Inc. v. Dean, 230 S.W.3d 766, 768 (Tex.App.-Dallas 2007, no pet.), citing Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 250 (Tex.App.Houston [14th Dist.] 2003, pet. denied). We give strong deference to the arbitrator with respect to issues properly left to the arbitrator’s resolution. Xtria L.L.C. v. Intern. Ins. Alliance Inc., 286 S.W.3d 583, 591 (Tex.App.-Texarkana 2009, pet. denied); Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 581 (Tex.App.-Dallas 2002, pet. denied).

A non-prevailing party seeking to vacate or modify an arbitrator’s award has the burden to bring forth in the trial court a complete record of arbitration proceedings and establish any basis, including constitutional grounds, which would warrant the trial court’s entry of a vacated or modified judgment. GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd. and JMG Construction, Inc., 126 S.W.3d 257, 263 (Tex.App.-San Antonio 2003, pet. denied). When there is no transcript of the arbitration hearing, a court is unable to determine what evidence the arbitrator refused to hear or what evidence was offered before the arbitrator and we will, consequently, presume the evidence was adequate to support the award. Statewide Remodeling, Inc., 244 S.W.3d at 568; Jamison & Harris v. Nat’l Loan Investors, 939 S.W.2d 735, 737 (Tex.App.-Houston [14th Dist.] 1997, writ denied). Indeed, many Texas courts have held that there can be no appellate review of an arbitrator’s decision without a complete record of the evidence presented to the arbitrator during the arbitration proceedings. Statewide Remodeling, Inc., 244 S.W.3d at 568; Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 706 (Tex.App.-Fort Worth 2006, pet. denied) (lack of arbitration-proceedings record prevents review of issues); GJR Mgmt. Holdings, L.P., 126 S.W.3d at 263 (because non-prevailing party produced no record of arbitration proceedings, appellate court was unable to judge whether the alleged misconduct in fact occurred and, if it occurred, whether it deprived the appealing party of a fair hearing). Neither attorneys’ recollections of testimony of what was or was not presented to an arbitrator, nor attachments to motions to vacate or modify awards, will provide a complete record of arbitration proceedings. Statewide Remodeling, Inc., 244 S.W.3d at 569.

When matters are properly submitted before him, an arbitrator’s award is entitled to the same effect as a judgment of a court of last resort. Quinn v. Nafta Traders, Inc., 257 S.W.3d 795, 798 (Tex.App.-Dallas 2008, pet. granted); see CVN Group v. Delgado, 95 S.W.3d 234, 238 (Tex.2002) (arbitration award has the same effect as a judgment of a court of last resort, and a reviewing court may not substitute its judgment for that of the arbitrators merely because it would have reached a different decision). The arbitrator’s award is conclusive as to all matters of fact and law. Collins v. Tex. Mall, L.P., 297 S.W.3d 409, 415-16 (Tex.App.-Fort Worth 2009, no pet.), citing Nafta Traders, Inc., 257 S.W.3d at 798. Review of an arbitration award is, in fact, so limited that the award may not be vacated even if there is a mistake of fact or law. Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 798 (Tex.App.-Tyler 2007, no pet.) (failure of arbitrator to correctly apply the law provides no basis for setting aside arbitrator’s award); Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex.App.-Dallas 2004, pet. denied), citing Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex.App.-Houston [14th Dist.] 1995, no writ) (holding that courts may not vacate arbitration award even when based upon mistake in fact or law).

As in this case, a party seeking judicial review of an arbitration award governed by the Texas General Arbitration Act (TAA) is limited to a review based on the grounds enumerated in the statute. Tex. Civ. Prac. & Rem.Code Ann. §§ 171.087, 171.088, & 171.091 (Vernon 2005); Nafta Traders, Inc., 257 S.W.3d at 799. In fact, the TAA mandates confirmation of the arbitration award except where the statutory grounds set forth in Sections 171.088 or 171.091 of the TAA are offered for vacation, modification, or correction of the award. Tex. Civ. Prac. & Rem.Code Ann. § 171.087 (Vernon 2005); Nafta Traders, Inc., 257 S.W.3d at 799; Callahan & Associates v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex.2002). Where there is no allegation of a statutory or common law ground to vacate or modify the arbitration award, we lack jurisdiction to review the arbitrator’s decision. Providian Bancorp Services v. Thomas, 255 S.W.3d 411, 415 (Tex.App.-El Paso 2008, no pet.); Lee v. El Paso County, 965 S.W.2d 668, 671-72 (Tex.App.-El Paso 1998, pet. denied).

Application of Law

We first note that no record of the arbitration proceedings was presented to the trial court and none is before us now. As in the trial court below, because we do not have a record of the proceedings by which to consider Age Industries’ complaints, because we do not know what evidence or law the arbitrator did or did not have before it for its consideration, and because we do not know what law the arbitrator did or did not apply in determining Edwards’ award, we are ultimately unable to judge whether the alleged mistake of law and gross mistake occurred and, if it did occur, we cannot determine whether or not it deprived Age Industries of a fair arbitration proceeding. Statewide Remodeling, Inc., 244 S.W.3d at 568; Jamison & Harris, 939 S.W.2d at 737; Grand Homes 96, L.P., 208 S.W.3d at 706; GJR Mgmt. Holdings, L.P., 126 S.W.3d at 263. We must, therefore, presume that the evidence was adequate to support the arbitrator’s award. Statewide Remodeling, Inc., 244 S.W.3d at 568; Jamison & Harris, 939 S.W.2d at 737.

Age Industries contends that no record of the arbitration proceedings is required in this appeal because it now raises questions of law. The arbitrator’s award is conclusive as to all matters of fact and law, and we are mindful that even with the benefit of the arbitration record, which we do not have, our review of the arbitration award is so narrowly limited that we may not vacate the arbitration award even if the arbitrator committed a mistake of fact or law as Age Industries alleges in this instance. Rapid Settlements, Ltd., 234 S.W.3d at 798; Collins, 297 S.W.3d at 415-16; Nafta Traders, Inc., 257 S.W.3d at 798; Crossmark, Inc., 124 S.W.3d at 429.

Appellant’s two issues on appeal are overruled.

CONCLUSION

The trial court’s judgment is affirmed.

GOMEZ, Judge, sitting by assignment.


text:
    Lazaro HERNANDEZ, Appellant, v. Carmen S. HERNANDEZ, Appellee.
    No. 08-08-00231-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2010.

      Woodrow W. Bean III, El Paso, TX, for Appellant.
    Marlene Gonzalez, El Paso, TX, for Ap-pellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellant, Lazaro Hernandez, appeals the trial court’s findings, orders, and awards in his divorce case, complaining that the trial court committed error and abused its discretion. Finding that Appellant failed to adequately brief his issues, we determine that nothing is presented for review and, therefore, affirm the trial court’s judgment.

BACKGROUND

Appellant and Appellee were married in 1973, and Appellant petitioned for divorce in 2002. Temporary orders and injunctions were issued, and on January 9, 2006, the trial court issued an agreed decree of divorce. Appellant’s motion for new trial was granted and the trial court issued a final decree of divorce on March 20, 2008. The trial court made its findings, issued orders, and divided and awarded the marital estate between the parties. Appellant filed his notice of appeal.

After delivering his brief to this Court, Appellant was informed that his brief was not prepared in accordance with Rules 38.1(a), 38.1(e), and 38.1(k) of the Texas Rules of Appellate Procedure. Tex.R.App. P. 38.1(a), 38.1(e), and 38.1(k). Appellant prepared and filed his “corrected” brief on November 21, 2008.

DISCUSSION

In six issues on appeal, Appellant complains that the trial court erred when it held him in contempt and awarded monies and “arrearages” to Appellee, and abused its discretion by prohibiting him from withdrawing investment funds until 2015, awarding attorney’s fees to Appellee, awarding spousal maintenance in an improper amount, and not providing him with a proper credit. We do not, however, address these complaints as we find them inadequately briefed.

The Rules of Appellate Procedure require that Appellant’s brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R.App. P. 38.1(i). When, as here, the appellate issues are unsupported by argument or lack citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.-Amarillo 2003, pet. denied); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). As we noted in Valadez, it is Appellant’s burden to discuss his assertions of error, and we have no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error. Valadez, 238 S.W.3d at 845. Appellant’s argument should also explain why the law stated in the cited authorities is applicable to the facts of the case and why it supports the party’s position. Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App.2003) (holding that party failing to apply the law to the facts in his brief waives error); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions”).

In this instance, although Appellant provides citation to two statutes, one in his fourth issue and another in his fifth issue, his arguments remain unsupported by legal citations to any relevant authority, contain sparse citation to the record, and fail to support his contentions by applying the law to the facts established in the record. Consequently, Appellant has waived these issues. See Tex.RApp. P. 38.1; Swearingen, 101 S.W.3d at 100 (holding that party failing to apply the law to the facts in his brief waives error); San Saba Energy, L.P., 171 S.W.3d at 338; Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex.App.-El Paso 2005, no pet.) (issue inadequately briefed because argument did not contain any references to relevant cases or legal principles); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (issue inadequately briefed when party did little more than summarily state his point of error, without citations to legal authority or substantive analysis). We therefore overrule Appellant’s complaints on appeal.

CONCLUSION

The trial court’s judgment is affirmed.

      . Regarding Appellant's contempt — order complaint, we note that a court of appeals lacks jurisdiction to review a contempt order on direct appeal. Texas Animal Health Commission v. Nunley, 647 S.W.2d 951, 952 (Tex.1983); Ex parte Williams, 690 S.W.2d 243, 243 n. 1 (Tex.1985); Vernon v. Vernon, 225 S.W.3d 179, 180 (Tex.App.-El Paso 2005, no pet.); Krone v. Krone, No. 08-03-00144-CV, 2004 WL 1282646, at *1 (Tex.App.-El Paso June 10, 2004, pet. denied); see Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating the general rule that, with a few mostly statutory exceptions, an appeal may be taken only from a final judgment). However, a contempt judgment may be attacked by a petition for writ of habeas corpus where the contemnor is confined or by a petition for writ of mandamus if the contem-nor is not confined. In re Office of Atty. Gen. of Texas, 215 S.W.3d 913, 916 (Tex.App.-Fort Worth 2007, no pet.); see Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex.App.-Fort Worth 2001, pet. denied).