author: Justice BRIDGES.

text:
    WET-A-LINE, L.L.C., Appellant, v. AMAZON TOURS, INC., Appellee.
    No. 05-07-01561-CV.
    Court of Appeals of Texas, Dallas.
    June 2, 2010.

      Kenneth B. Chaiken, Chaiken & Chaiken, P.C., Dallas, TX, Richard G. Mills, The Law Offices of Rick Mills, Duncanville, TX, for Appellant.

      Melissa J. Bellan, Buchanan & Bellan, LLP, G. Kevin Buchanan, Buchanan & Burke, L.L.P., Dallas, TX, for Appellee.
    Before Justices BRIDGES, O’NEILL, and FITZGERALD.
   OPINION

Opinion By

Justice BRIDGES.

Wet-A-Line, L.L.C. appeals the trial court’s denial of its special appearance and, in a single issue, argues the trial court’s denial was in error. We reverse the trial court’s denial of Wet-A-Line’s special appearance and render judgment that Wet-A-Line’s special appearance is granted and the action against Wet-ALine is dismissed.

Amazon Tours, Inc., a Texas corporation, and Wet-A-Line, a Georgia limited liability company, both operate fishing tours in South America. At one time, Trek International Safaris, a Florida corporation, was the exclusive broker and agent for Amazon’s tours. James Kern worked as Amazon’s manager and had access to Amazon’s business accounts, vendor accounts, customer accounts, and a confidential customer list. Kern left Amazon, and Amazon came to believe Kern was using Amazon’s confidential information in his business and attempting to sell the information to Amazon’s competitors, including Wet-A-Line. Amazon believed Kern, Wet-A-Line, and Trek were spreading false rumors about Amazon in order to damage Amazon’s business and redirect Amazon’s customers. Amazon also believed Kern brokered an agreement between Trek and Wet-A-Line for the sale of Wet-A-Line’s trips.

Amazon filed suit in Texas against Wet>A-Line, Kern, and Trek, alleging Kern violated a covenant not to compete, breached his fiduciary duty, misappropriated trade secrets, and committed theft under the Texas Civil Practice and Remedies Code by providing Wet-A-Line access to Amazon’s business accounts and confidential customer information. Amazon subsequently added Richard and Amelia Schair, Wet-A-Line’s owners, as defendants. Amazon amended its pleadings and alleged, among other things, Kern and Wet-A-Line tortiously interfered with existing and prospective business relationships, committed defamation and slander, and published and spread false and disparaging information about Amazon.

Amazon alleged jurisdiction was proper in Texas because Wet-A-Line used “booking agents” in Texas to market its fishing trips. Amazon identified Kern, Kent Clifton, and Gene Ditmore as Wet-A-Line’s Texas booking agents. Amazon alleged Web-A-Line advertised its fishing trips and listed links to its website on a website hosted by a Texas resident, sold more than $100,000 in fishing trips to Texas residents, and sent unsolicited emails and newsletters to Texas residents offering special deals to book fishing trips. Amazon alleged Richard Schair, one of Wet-ALine’s owners, traveled to Texas on business and met with Texas residents for the purpose of forming a trade group to promote or facilitate Mexican bass fishing operations. Schair also traveled to Port Ar-ansas, Texas, to “trade trips” with a Texas resident for “business and promotional purposes.” According to Amazon, Wet-ALine entered an agreement with Kern whereby Kern would market Wet-ALine’s fishing trips at trade shows in Texas in competition with Amazon.

Regarding Wet-A-Line’s online activities, Amazon alleged Wet-A-Line operated an interactive website that allowed Texas residents to send inquiries, enabled Wet-A-Line to attempt to sell fishing trips based on these inquiries, and featured a “Book Now” option for Texas residents to purchase fishing trips online. Richard Schair maintained blog entries and promoted Wet-A-Line’s products and services on various websites viewable by Texas residents.

Wet-A-Line and Richard Schair and Amelia Schair, as Wet-A-Line’s owners, filed special appearances asserting Wet-A-Line and the Schairs did not have sufficient minimum contacts with Texas and had not purposely availed themselves of the privilege of conducting activities in Texas. Therefore, they argued, the exercise of jurisdiction over them would be a violation of their Due Process rights and would offend traditional notions of fair play and substantial justice.

At the hearing on Wet-A-Line’s and the Schairs’s special appearances, Schair testified by written deposition that Kern represents his own company, Emu Outfitting Company, under which he markets “trips to new destinations.” Schair testified Kern was under no obligation to provide Wet-A-Line customers, had no contract with Wet-A-Line, and made the decision whether or not to send Wet-A-Line customers. The record shows Kern first contacted Wet-A-Line about establishing a business relationship. Also in the record is an unsigned document that shows Kern and Wet-A-Line contemplated a business relationship in which Kern would book Wet-A-Line tours for his customers and take “discounts” as commission when the customers paid for the tours. Schair testified Ditmore, another of Wet-A-Line’s alleged agents, also received “a discount on trips that [Ditmore was] welcome to resell according to availability.”

Kent Clifton testified he owns Westside Adventures, a travel agency for hunting and fishing trips. Clifton received calls from clients wanting trips and, based on the client’s interests, directed the clients to different tour operators, including Wet-ALine. When a client booked a trip, Clifton received the client’s deposit and sent it to the tour operator. Eight weeks prior to the trip, the client paid the remainder of the cost, and Clifton took his twenty-percent commission and forwarded the rest to the tour operator. Clifton testified Wet-A-Line and the other tour operators exercised no control over Clifton’s business activities. When Clifton received promotional materials for Wet-A-Line tours, he put a sticker over Wet-A-Line’s name that contained his own business information. Wet-A-Line delivered all of its services to Clifton’s customers out of the country, and never in Texas. Clifton testified approximately twenty-five percent of his business in 2006 came from clients in Texas, but he did not send all of his Texas clients on Wet-A-Line tours. His clientele had never been entirely from Texas. Following the hearing, the trial court granted the Schairs’s special appearances but denied Wet-A-Line’s special appearance. This appeal followed.

In a single issue, Wet-A-Line argues the trial court erred in denying its special appearance. Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790-91 (Tex.2005); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002); Hoffmann v. Dandurand, 180 S.W.3d 340, 345 (Tex.App.-Dallas 2005, no pet.). Because the trial court’s exercise of personal jurisdiction over a nonresident defendant is a question of law, an appellate court reviews the trial court’s determination of a special appearance de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); BMC Software, 83 S.W.3d at 794.

The Texas long-arm statute permits Texas courts to exercise jurisdiction over nonresident defendants that do business in Texas. See Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041-.045 (Vernon 2008); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.2007); BMC Software, 83 S.W.3d at 795. The broad language of section 17.042 extends Texas courts’ personal jurisdiction “as far as the federal constitutional requirements of due process will permit.” PHC-Min-den, 235 S.W.3d at 166.

The Due Process Clause of the Fourteenth Amendment operates to limit the power of a state to assert personal jurisdiction over a nonresident defendant. Asahi Metal Indus. Co., Ltd,, v. Superior Court of Cal., Solano County, 480 U.S. 102, 108, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14,104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under the Due Process Clause, personal jurisdiction over a nonresident defendant is constitutional when the nonresident defendant has established minimum contacts with the forum state and the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Burger King, 471 U.S. at 476, 105 S.Ct. 2174; PHC-Minden, 235 S.W.3d at 166.

To establish minimum contacts, the defendant must have purposefully availed himself of the privilege of conducting activities inside Texas and enjoyed the benefits and protections of Texas laws. Wolf v. Summers-Wood, L.P., 214 S.W.3d 783, 788 (Tex.App.-Dallas 2007, no pet.). The defendant’s activities must justify a conclusion the defendant could reasonably anticipate being called into a Texas court. Id.

Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either general or specific jurisdiction. Helicopteros, 466 U.S. at 413-14, 104 S.Ct. 1868. General jurisdiction may exist over a nonresident defendant in a lawsuit where the cause of action does not arise out of or relate to the nonresident defendant’s contacts with the forum state. See Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. 1868; PHC-Minden, 235 S.W.3d at 168. General jurisdiction is present when the nonresident defendant’s contacts in a forum state are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796. A general jurisdiction inquiry is very different from a specific jurisdiction inquiry and involves a “more demanding minimum contacts analysis” than for specific jurisdiction. PHC-Minden, 235 S.W.3d at 168; CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996).

Usually, the defendant must be engaged in longstanding business in the forum state, such as marketing or shipping products, or performing services or maintaining one or more offices there; activities that are less extensive than that will not qualify for general in personam jurisdiction. PHC-Minden, 235 S.W.3d at 168 (quoting 4 ChaRles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.5 (2008)).

As the Texas Supreme Court has noted in PHC-Minden, the United States Supreme Court has only upheld a finding of general jurisdiction in one case: Perkins v. Benguet Consolidated Mining Company, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). See PHC-Minden, 235 S.W.3d at 167. In Perkins, a company’s president, who was also its general manager and principal shareholder, maintained an office in Ohio in which he “did many things on behalf of the company.” Perkins, 342 U.S. at 447-48, 72 S.Ct. 413; PHC-Minden, 235 S.W.3d at 168. He maintained company files in Ohio, carried on correspondence from there, drew and distributed salary checks from his Ohio office, used two Ohio bank accounts for company funds and had an Ohio bank act as transfer agent for the company’s stock, held director’s meetings in Ohio, supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines there, and dispatched funds from Ohio bank accounts to cover purchases of machinery for such rehabilitation. Id. Under these circumstances, the Court held “it would not violate federal due process for Ohio either to take or decline jurisdiction of the corporation in this proceeding.” Id. at 448, 72 S.Ct. 413.

General jurisdiction has been described as “dispute-blind,” an exercise of the court’s jurisdiction made without regard to the nature of the claim presented. PHC-Minden, 235 S.W.3d at 168. Some commentators suggest using an analytical device whereby the court constructs a hypothetical claim without any forum connection “to insure that any related forum activities of the defendant are not improperly infiltrating the dispute-blind query.” PHC-Minden, 235 S.W.3d at 168-69 (citing Charles W. “Rocky” Rhodes, Clarifying General Jurisdiction, 34 Seton Hall L.Rev. 807, 819 (2004)). The example given is whether a corporate defendant’s actual activities in California are so pervasive and extensive that it should be amenable to general jurisdiction in California for a hypothetical employment claim filed by a New York citizen employed at corporate headquarters in New York. See PHC-Minden, 235 S.W.3d at 169; Clarifying General Jurisdiction, 34 Seton Hall L.Rev. at 819-20. Such an inquiry properly frames the issue, as general jurisdiction is based solely on the defendant’s “continuous and systematic” contacts with the forum. Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868; PHC-Minden, 235 S.W.3d at 169.

In contrast, specific jurisdiction is established if the nonresident defendant’s alleged liability arises from or is related to activity conducted within the forum. BMC Software, 83 S.W.3d at 796. The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868. Specific jurisdiction is established if the defendant’s alleged liability arises out of or is related to an activity conducted within the forum. Id.; Mold Mac, 221 S.W.3d at 576. For a nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. The mere sale of a product to a Texas resident will not generally suffice to confer specific jurisdiction upon our courts. Id. at 576.

Here, the record shows Amazon largely abandoned its argument that specific jurisdiction is proper over Wet>-ALine and concentrated on establishing that general jurisdiction was proper over Wet-A-Line. In its brief, Amazon provides no evidence to show Wet-A-Line committed any acts in Texas that would have resulted in an injury to Amazon. In attempting to establish specific jurisdiction, Amazon argues, “There is a substantial connection here; it’s all about peacock bass fishing.” Our review of the record shows Wet-ALine’s relationship with Kern, Clifton, and Ditmore was one in which Kern, Clifton, and Ditmore were not Wet-A-Line’s agents and independently sold their customers fishing trips and received a sales commission from the trip operator. Some of the trips were Wet-A-Line tours. To the extent Kern may have given Wet-ALine information about Amazon, this did not involve action by Wet-A-Line in Texas. Wet-A-Line’s operation of a website and sales to Texas residents and Schair’s promotional trips to Texas are not related to the operative facts of Amazon’s litigation and do not, therefore, support an exercise of specific jurisdiction over Wet-ALine. See Id. at 585, 576. Further, to the extent Amazon has alleged Wet-A-Line engaged in a conspiracy to defame and interfere with Amazon’s business, this does not support the assertion of personal jurisdiction over Wet-A-Line. Nat’l Indus. SandAss’n v. Gibson, 897 S.W.2d 769, 773 (Tex.1995) (“we decline to recognize the assertion of personal jurisdiction over a nonresident defendant based solely on the effects or consequences of an alleged conspiracy with a resident in the forum state.”).

Regarding general jurisdiction, Wet-A-Line sold tours to some of Kern’s customers, and Kern received a commission on the sales. However, Kern was not Wet-A-Line’s employee, had no contract with Wet-A-Line, and was under no obligation to provide Wet-A-Line with customers. Kern alone made the decision whether or not to send Wet-A-Line customers. Clifton and Ditmore also sold some Wet-A-Line tours to customers and took a commission on the sale, but neither of them were Wet-A-Line employees. Texas law does not presume agency, and the party who alleges it has the burden of proving it. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex.2007). Nothing in this record shows that Wet-A-Line had an agency relationship with Kern, Clifton, or Ditmore or was otherwise controlling their actions. See id. Further, Wet-A-Line never operated a tour in Texas. Schair traveled to Texas to promote Wet-A-Line but did not maintain an office in Texas, and the trips to Texas were sporadic. Based on this record, we conclude Wet-ALine’s contacts with Texas were not continuous and systematic such that exercise of general jurisdiction over Wet-A-Line would be justified. See Helicopteros, 466 U.S. at 416-17, 104 S.Ct. 1868; PHC-Minden, 235 S.W.3d at 167-69. Accordingly, the trial court erred as a matter of law in denying Wet-A-Line’s special appearance. See Helicopteros, 466 U.S. at 416-17, 104 S.Ct. 1868; PHC-Minden, 235 S.W.3d at 167-69; BMC Software, 83 S.W.3d at 800-01. We sustain Wet-ALine’s single issue.

We reverse the trial court’s denial of Wet-A-Line’s special appearance and render judgment that Wet-A-Line’s special appearance is granted and the action against Wet-A-Line is dismissed.


source: Caselaw Access Project

author: J. WOODFIN JONES, Chief Justice.

license: Public Domain

text:
    Ronald R. WAGNER, Appellant, v. Roberto D’LORM and Edward P. Dancause, Appellees.
    No. 03-08-00340-CV.
    Court of Appeals of Texas, Austin.
    June 2, 2010.

      Jerry N. Dennard, Kendall Legal Services, Inc., San Antonio, TX, for Appellant.
    Santiago “Jimmy” ■ Sandoval, Laredo, TX, Richard H. Anton, Law Office of Richard H. Anton, PC, Austin, TX, for Appel-lees.

      Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
   OPINION

J. WOODFIN JONES, Chief Justice.

Appellant Ronald R. Wagner sued ap-pellees Roberto D’Lorm and Edward P. Dancause in Travis County district court seeking a declaration that a default judgment previously obtained by D’Lorm and his attorney, Dancause, against Wagner in a Zapata County district court was void. D’Lorm filed a plea to the jurisdiction asserting that the trial court did not have subject-matter jurisdiction to declare void the judgment of another district court. Wagner moved for summary judgment on his declaratory-judgment claim. The trial court granted D’Lorm’s plea to the jurisdiction and denied summary judgment for Wagner, finding summary judgment “improper” for jurisdictional reasons. In a single issue on appeal, Wagner asserts that the trial court erred in granting D’Lorm’s plea to the jurisdiction and in denying his motion for summary judgment because the Zapata County default judgment is void and, therefore, may be collaterally attacked in another court of equal jurisdiction. We will reverse the trial court’s order and remand the cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, D’Lorm filed suit against Ronald R. Wagner & Co., L.P., a Texas limited partnership (“the partnership”), in Zapata County seeking damages for injuries he allegedly received in an accident with a vehicle that was owned and operated by the partnership. The record indicates that D’Lorm made several unsuccessful attempts to serve the partnership by serving Wagner, who was a limited partner in the partnership and its agent for service. The record does not reflect that Wagner was ever served, either personally or as agent for the partnership. The record also shows that Wagner was never added as an individual defendant in the Zapata County lawsuit, nor did he appear in any capacity before the Zapata County district court. Even though Wagner was not a party to the suit and evidently had not been served, the Zapata County court rendered a default judgment against him personally. The record shows that the style on the default judgment was different from previous documents filed in the case. Whereas previous pleadings were styled “Roberto D’Lorm v. Ronald R. Wagner & Co., L.P.,” the judgment was styled “Roberto D’Lorm v. Ronald R. Wagner.” The judgment recited that “Defendant, although duly cited to appear and answer herein, has failed to file an answer within the time allowed by law” and awarded D’Lorm damages against Wagner.

In January 2007, about three years and five months after the default judgment was rendered, Wagner filed suit against D’Lorm and his attorney, Dancause, in Travis County district court seeking a declaration that the Zapata County default judgment was void. Wagner also sought damages for slander of title and injury to his credit reputation, but he ultimately nonsuited those claims. D’Lorm answered and filed a plea to the jurisdiction asserting that “one district court cannot overturn the judgments and decrees of another,” and that the trial court therefore lacked jurisdiction to consider Wagner’s request for declaratory relief. Before the trial court ruled on D’Lorm’s plea to the jurisdiction, Wagner filed a motion for summary judgment on his claim for declaratory relief, arguing that the Zapata County default judgment was void. After hearing arguments, the trial court granted D’Lorm’s plea to the jurisdiction and denied Wagner’s motion for summary judgment on the ground that it was “improper,” citing issues relating to the court’s jurisdiction. Wagner perfected this appeal.

STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law, which we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). When reviewing a grant or denial of a plea to the jurisdiction, we consider the plaintiffs pleadings, construed in favor of the plaintiff, and any evidence relevant to jurisdiction without considering the merits of the claim beyond the extent necessary to determine jurisdiction. Id. at 226-27; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). In the present case, D’Lorm’s plea to the jurisdiction asserted that Wagner failed to plead a cause of action within the subject-matter jurisdiction of the Travis County district court. No jurisdictional evidence was submitted.

In a challenge solely to the pleadings, we decide if the plaintiff has alleged sufficient jurisdictional facts to show the trial court’s subject-matter jurisdiction, using a liberal construction in favor of the plaintiff. Miranda, 133 S.W.3d at 226. If the plaintiffs pleadings “affirmatively negate the existence of jurisdiction,” then a plea to the jurisdiction may be granted without affording the plaintiff an opportunity to amend his pleadings. Id. at 226-27. If, however, the pleadings do not “demonstrate incurable defects in jurisdiction,” but merely fail to allege sufficient facts to affirmatively show the trial court’s jurisdiction, then the plaintiff should be given an opportunity to amend. Id.

DISCUSSION

In his sole point of error, Wagner asserts that the trial court erred when it granted D’Lorm’s plea to the jurisdiction and denied his motion for summary judgment. Wagner contends that he mounted a valid collateral attack on the Zapata County judgment by alleging facts showing that the judgment is void because the Zapata County court lacked jurisdiction over him as he was neither served nor was a party to the suit. Wagner asserts that “because the [Zapata County] judgment is void ... it can be collaterally attacked in any court of equal jurisdiction.” D’Lorm counters that Wagner has failed to properly employ the options available to him to challenge the Zapata County judgment. Citing McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), D’Lorm contends that Wagner should have filed a bill of review in the Zapata County district court that rendered the default judgment. Because Wagner failed to file a bill of review in Zapata County during the time allowed, D’Lorm asserts that he has “waived any rights to attack the [default] judgment.” The Travis County District Court’s Subject-Matter Jurisdiction

In this appeal from the grant of D’Lorm’s plea to the jurisdiction on the pleadings, our task is to decide whether Wagner has pleaded sufficient jurisdictional facts to invoke the trial court’s subject-matter jurisdiction, using a liberal construction of his pleadings. Miranda, 133 S.W.3d at 226. In his petition, Wagner alleged that the Zapata County default judgment is void because he was neither named as a party nor served with process:

D’Lorm was involved in an accident ... with a vehicle owned and operated by RONALD R. WAGNER & CO. L.P, a Texas Limited Partnership.... [Defendants] filed [D’Lorm’s petition] in the 49th Judicial District of Zapata County, Texas, in Cause No. 5,368 styled ROBERTO D’LORM, PLAINTIFF V. RONALD R. WAGNER & CO., LP, a Texas Limited Partnership. Plaintiff RONALD R. WAGNER was not named a Defendant, nor was he ever served with process.... On August 29th, 2003, [the defendants] took a Default Judgment against [Wagner personally] ... notwithstanding the fact that [Wagner] was neither a named Defendant or ever served with process.... The trial court had no jurisdiction over [Wagner].... Inasmuch as [Wagner] was not a Defendant in Cause No. 5,368, nor was he served with process, the 49th Judicial District Court of Zapata County, Texas had no jurisdiction over [Wagner] and the Default Judgment against him should be declared void and of no further force and effect.

A judgment is void, and thus may be collaterally attacked, if the rendering court had “no jurisdiction over a party or his property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” Austin Indep. Sch. Dist. v. Stem Club, 495 S.W.2d 878, 881 (Tex.1973); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005) (same); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding) (same). For a court to have personal jurisdiction over the defendant, the defendant must be amenable to the jurisdiction of the court and the plaintiff must have invoked that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.1985). This Court has also held that a judgment may be collaterally attacked because of “fundamental error.” Texas Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex.App.-Austin 1997, pet. denied). Fundamental error occurs where “the record shows the court lacked jurisdiction or that the public interest is directly or adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). A court’s rendition of judgment against a party not named in the suit is fundamental error. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.1991).

Here, Wagner pleaded that he was neither named as a party nor served with process. If true, that would mean that the Zapata County district court committed fundamental error by rendering judgment against Wagner because he was not a party, see id., and that the court lacked personal jurisdiction over Wagner when it rendered default judgment against him because he was not served, Kawasaki Steel Corp., 699 S.W.2d at 200. For either reason, the default judgment rendered against him would be void and subject to collateral attack. See Austin Indep. Sch. Disk, 495 S.W.2d at 881.

We need not decide at this juncture whether the Zapata County default judgment is actually void. Having decided that Wagner’s pleaded facts, if true, would render the Zapata County default judgment void, we need only determine whether the Travis County district court had jurisdiction to entertain his suit.

The supreme court addressed this issue by implication in Browning v. Placke, a mandamus action in which the relator sought relief from an order rendered by a Lee County district court that declared void a judgment rendered three years earlier by a Dallas County district court. 698 S.W.2d 362, 363 (Tex.1985). The plaintiffs in the Lee County suit argued that the Dallas County judgment was void because it was rendered without the joinder of an “indispensable” party. Id. In rejecting that argument, the supreme court held that failure to join an indispensable party does not render a judgment void. Id. The court reiterated that unless a judgment is void for one of the four reasons listed in Austin Independent School District — i.e., no jurisdiction over a party or his property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court — it is not subject to collateral attack in another court of equal jurisdiction. Id. The court held that the declaration issued by the Lee County court, therefore, was error. Id. (“[T]he Lee County district court declared void a judgment which has not been shown to have been rendered by a court without jurisdiction to do so-[Tjhat action conflicts with Austin Independent School District .... ”). Thus, the Dallas County judgment may have been voidable, but it was not void, and so could not be successfully collaterally attacked. Id.

We draw two conclusions from Browning. The first is that if a challenged judgment is void, a different, co-equal court can properly render judgment declaring it void. This conclusion follows logically from the holding of the case and, more specifically, from the opening paragraph of the court’s opinion:

This original mandamus proceeding presents the question whether a district court may declare void the judgment of another district court. We hold that absent a showing that the prior court lacked jurisdiction, no such declaration is permissible.

Id. at 362 (emphasis added). The second conclusion — the one that answers the question presented here — -follows as a matter of course: if the trial court may properly render such a judgment, it necessarily must have jurisdiction to render it.

Other cases addressing the issue directly or in dicta also hold or imply that courts have jurisdiction to declare void the judgment of another court. See, e.g., Segrest v. Segrest, 649 S.W.2d 610, 613 (Tex.1983) (“[T]he Segrests’ 1974 divorce decree should be viewed as being erroneous or voidable, as opposed to being void .... Mr. Segrest’s suit for declaratory judgment is therefore not a remedy available to him to set aside the final decree of divorce rendered in 1974.” (emphasis in original)); Dallas County Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex.App.-Dallas 2010, no pet.) (“The Andolinas do not contend the bankruptcy court’s order confirming Horizon’s plan of reorganization was void. Therefore, any collateral attack on the bankruptcy court’s confirmation order must fail.”); Cohen v. Cohen, 632 S.W.2d 172, 173 (Tex.App.-Waco 1982, no writ) (party in declaratory-judgment action brought to construe provisions of otherwise final divorce decree did not allege the decree was void, therefore declaratory judgment not permitted).

McEwen v. Harrison Is Not Applicable

D’Lorm argues that Wagner has “waived any rights to attack the [default] judgment” in the present case because he failed to employ one of the remedies enumerated in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). McEwen and its progeny hold that, on direct attack,

when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it.

Id,, at 709 (construing Texas Rule of Civil Procedure 329b to limit remedies used to directly attack judgment). The phrase “jurisdictional power” means “ ‘jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs.’ ” Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985) (quoting Been v. Kirk, 508 S.W.2d 70, 72 (Tex.1974)). D’Lorm asserts that, because the Zapata County court had subject-matter jurisdiction in that case and the time for filing an appeal from that judgment has expired, Wagner’s only remedy “to attack” the judgment was a proceeding in the nature of a bill of review. We disagree.

McEwen applies only to a direct attack on a judgment, not to a collateral attack. See 345 S.W.2d at 710 (holding that rule 329b’s limits apply to “all remedies in the nature of direct attacks”). A direct attack on a judgment is defined as

a proceeding instituted for the purpose of correcting the earlier judgment. It may be brought in the court rendering the judgment or in another court that is authorized to review the judgment on appeal or by writ of error [i.e., restricted appeal]. The purpose of a direct attack is to change the former judgment and secure the entry of a correct judgment in lieu of the earlier incorrect one.

Austin Indep. Sch. Dist., 495 S.W.2d at 881. Here, Wagner does not seek to “correct” the Zapata County judgment, nor does he seek to “change” it and secure entry of a “correct judgment” in lieu thereof. Nor does he seek to have the judgment vacated or set aside. Moreover, Wagner brought his attack in a different court from the one that rendered the judgment under attack. A direct attack must be brought in the court that rendered the judgment under attack because only that court or a higher court on appeal may amend or vacate it. See id. at 881. For these reasons, Wagner’s attack here is properly classified as collateral, not direct. See also Browning, 698 S.W.2d at 363 (appeal from declaration rendered by one court declaring judgment of another court void is collateral attack); Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092, 1096 (1935) (attack on judgment of one court in another court is collateral attack); Baqdounes v. Baqdounes, No. 01-07-01102-CV, 2009 WL 214508, at *2 (TexApp.-Houston [1st Dist.] Jan. 29, 2009, pet. denied) (“[The plaintiffs] attack on the prior ... judgment does not attempt to secure the rendition of a single, correct judgment in place of an earlier one. [The Plaintiff therefore] brings a collateral attack on ... the decree.”). Because Wagner did not mount a direct attack on the Zapata County judgment, the limitations imposed by McEwen and rule 329b do not apply here.

“Judgment-Interpretation Cases” Are Not Applicable

The present case is also distinguishable from the line of cases holding that a court has no jurisdiction to render declaratory judgment to “interpret” a prior judgment. In the present case, Wagner does not seek to “interpret” the Zapata County judgment, i.e., he does not ask the court to construe the judgment’s substantive provisions. See, e.g., Martin v. Dosohs I Ltd., 2 S.W.3d 350, 354 (Tex.App.-San Antonio 1999, no pet.) (no jurisdiction to use declaration to construe substantive provisions of land-partition judgment); Sutherland v. Sutherland, 560 S.W.2d 531, 533 (Tex.Civ.App.-Texarkana 1978, writ ref d n.r.e.) (no jurisdiction to construe relative rights and duties of parties with respect to provisions of final order of divorce). Wagner does not seek to relitigate the merits of the controversy decided by the judgment under attack, nor does he attempt to avoid the procedural limitations for attacking judgments. Further, as we hold here, Wagner’s request for declaratory relief is not an “improper” collateral attack. See Rapid Settlements, Ltd. v. SSC Settlements, LLC, 251 S.W.3d 129, 140 (Tex.App.-Tyler 2008, no pet.) (declaratory-judgment action is improper if it collaterally attacks judgment not alleged to be void). For these reasons, the present case is fundamentally different from “judgment-interpretation” cases. See Texas Dep’t. of Ins., Div. of Workers’ Comp. v. Insurance Co., 306 S.W.3d 897, 902-03 (Tex.App.-Austin 2010, no pet.) (analyzing reasons why courts lack subject-matter jurisdiction to interpret final judgments).

In light of the foregoing, we hold that Wagner’s pleadings were sufficient to give the trial court subject-matter jurisdiction to adjudicate his claims for declaratory relief. The court therefore erred when it granted D’Lorm’s plea to the jurisdiction. We sustain that portion of Wagner’s issue on appeal.

Denial of Wagner’s Motion for Summary Judgment

In the second portion of his issue on appeal, Wagner asserts that the trial court erred in denying his motion for summary judgment on his claims for declaratory relief. The trial court denied Wagner’s motion in light of its decision that it lacked jurisdiction to adjudicate his declaratory-judgment claim. The denial of a motion for summary judgment is generally not reviewable on appeal. See Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex.2007). In any event, because the cause must be remanded in light of our holding that the trial court did not lack subject-matter jurisdiction, we need not address the denial of Wagner’s motion for summary judgment.

CONCLUSION

We hold that the trial court'had subject-matter jurisdiction to hear and consider Wagner’s declaratory-judgment suit. We therefore reverse the district court’s dismissal order and remand the cause to that court for further proceedings.

      . Dancause did not file a brief in this appeal.

      . Determining the type of attack mounted by Wagner here is important both for the analysis in this appeal and because it determines the presumptions that the trial court will give to the Zapata County judgment on remand.
      This Court has held that, in a collateral attack, the challenger must show error on the face of the judgment itself, Narvaez v. Maldonado, 127 S.W.3d 313, 317-18 (Tex.App.-Austin 2004, no pet.), and the supreme court has stated that "[i]n a collateral attack, the judgment under attack is presumed valid,” Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). Nonetheless, the supreme court has also held that "[t]he presumption supporting judgments does not apply when the record affirmatively reveals a jurisdictional defect.” Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex.2008) (" 'In order for a collateral attack to be successful the record must affirmatively reveal the jurisdictional defect.’ " (quoting White v. White, 142 Tex. 499, 179 S.W.2d 503, 506 (1944))).


author: Justice MOSELEY.

text:
    Jeff MOORE, d/b/a T & M Production, Appellant, v. JET STREAM INVESTMENTS, LTD., Sara P. Rudd, Executrix of the Estate of J.B. Rudd, and Youngblood Properties, L.P., Appellees.
    No. 06-09-00106-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted May 17, 2010.
    Decided June 3, 2010.

      James P. Finstrom, Jefferson, for appellant.
    Dean A. Searle, Marshall, for appellees.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

I. FACTUAL AND PROCEDURAL BACKGROUND

In its inception, this case involved a dispute between Jeff Moore, d/b/a T & M Production (who had been the holder of the oil and leasehold estate of certain realty in Harrison County, Texas) and Jet Stream Investments, LTD, et al. (the holder of the interests which had been subject to the oil and gas lease), wherein it had been alleged that the oil and gas lease had terminated under the terms of the lease for want of production. The case was instituted and tried as an action for declaratory judgment. After a bench trial, the trial court awarded judgment in favor of Jet Stream, including damages in the amount of $94,752.54, plus attorney’s fees. On appeal, this Court held, inter alia, that the trial court erred in awarding damages measured by gross revenue from oil sales, and determined that Jet Stream’s recovery should be measured by net revenue from oil sales. As a result of that determination, while affirming the finding that the lease had terminated, we reversed the award of damages and remanded that portion of the case to the trial court for further proceedings consistent with our opinion that Jet Stream’s recovery should be limited to damages for good-faith trespass (i.e., the value of the minerals produced minus drilling and operating costs).

We further recognized that should the recovery by Jet Stream be substantially different when a different determination of the measure of damages is employed, this could also substantially impact the trial court’s determination of the fairness of the attorney’s fee award. In this regard, Moore maintained that because he obtained some relief on rehearing before this Court, “the award of attorney’s fees for appeal should either be set aside or awarded to both Appellant and Appellee.” We recognized that under the facts of this case, even though the trial court’s award of attorney’s fees would not be an abuse of discretion, the trial court might choose to exercise its discretion differently in light of our opinion. Moore, 261 S.W.3d at 432. We, therefore, reversed that portion of the judgment awarding attorney’s fees to Jet Stream and remanded that portion of the case to the trial court to determine whether, in light of our opinion, an award of such fees to Jet Stream is “equitable and just.” Id.

Upon remand, the trial court conducted a trial on June 17, 2009, in which it heard evidence related solely to the issue of damages and attorney’s fees, per this Court’s mandate dated January 15, 2009. On July 7, 2009, the trial court wrote a letter to counsel for all litigants which outlined its findings with respect to damages and attorney’s fees, in accord with the opinion of this Court. Thereafter, on August 4, 2009, Moore filed a motion to reopen the presentation of evidence, which motion was denied after hearing by the trial court. The final judgment upon remand, issued August 21, 2009, awarded Jet Stream damages in the amount of $50,847.16, representing the net value of the revenues produced. The judgment further awarded attorney’s fees to Jet Stream in the amount of $10,000.00 for fees incurred “in the pursuit of this cause” together with contingent attorney’s fees on appeal.

II. ISSUES ON APPEAL

On appeal, Moore raises five issues, claiming that the trial court erred in the following respects: (1) when it denied Moore’s motion to reopen evidence to correct the market value of oil produced; (2) when it failed to include the cost of a letter of credit (which was required by the Texas Railroad Commission (Commission) as a condition of resuming production) as a part of the operating costs to be deducted from gross revenues; (3) in its determination of the value of minerals produced; (4) in failing to give Moore credit on the judgment for sums previously paid to Jet Stream and for sums held in suspense by Plains Marketing; and (5) in failing to reform the final judgment on remand to reflect the award of attorney’s fees as set forth in the trial court’s July 7, 2007, letter to counsel. We affirm the judgment of the trial court.

A. The Trial Court Appropriately Exercised Its Discretion in Denying Moore’s Motion to Reopen the Evidence

Moore maintains that he discovered, subsequent to the hearing, that the total gross revenue figure presented by Jet Stream at the hearing was incorrect. While Moore concedes that twelve days prior to the hearing, Jet Stream produced the market value figures it relied upon at trial, he only realized the inaccuracy of those figures when he received records from Plains Marketing subsequent to the hearing.

The primary purpose of the mandated hearing was to determine damages for a good-faith trespass — the value of the minerals minus drilling and operating costs. Id. at 430. Jet Stream offered evidence that the total gross revenue derived from oil production during the pertinent time period was $153,158.87. Kenneth Frazier, an expert witness called by Jet Stream, testified that the information he employed to determine total gross revenue was obtained from the Commission. Frazier explained that the total figure represented the value of the oil that was actually produced, as opposed to the value of the oil actually sold. Said another way, “total gross revenue” represents the amount of production of oil from the well multiplied by a standard and recognized market value for oil. Finally, Frazier testified that Moore did not receive the entire $153,-158.87 — the value of the oil produced— because oil produced from March 2008 through September 2008 remains in storage on location.

In his motion to reopen evidence and on appeal, Moore contends that the records from Plains Marketing, which reflect the purchase price of the oil sold to it, contradict the figures introduced at trial. Moore claims the court erred in failing to reopen the evidence to permit the error in mineral value to be corrected.

In a bench trial, the trial court may permit either party to offer additional evidence at any time when it clearly appears to be necessary to the due administration of justice. Tex.R. Civ. P. 270; In re Estate of Huff, 15 S.W.3d 301, 308 (Tex.App.-Texarkana 2000, no pet.). A trial court’s discretion to permit additional evidence “should be exercised liberally to allow both parties to fully present their case.” Ex parte Stiles, 950 S.W.2d 444, 446 (Tex.App.-Waco 1997, no writ). We review a trial court’s decision to permit additional evidence under an abuse of discretion standard. In re J.A.H., 996 S.W.2d 933, 935 (Tex.App.-Waco 1999, no pet.). The test for abuse of discretion is whether the court acted without reference to guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). In deciding whether to permit additional evidence, a trial court may consider (1) whether the movant showed due diligence in obtaining the evidence; (2) whether the additional evidence is decisive; (3) whether reopening the evidence will cause undue delay; and (4) whether reopening the evidence will cause injustice. Huff, 15 S.W.3d at 308.

We now apply these factors to the facts of this case to determine if the trial court acted within its discretion in denying Moore’s motion to reopen.

(1) Due Diligence

The hearing concluded June 17, 2009. On July 7, 2009, the trial court wrote a letter to counsel advising of its ruling on the merits. Moore’s motion to reopen the evidence was filed August 4, 2009. Moore contends that even though the motion was filed in August after trial in June, due diligence was exercised because he was not aware of the discrepancy in the evidence on mineral value until that time.

At the hearing in June, Moore made no attempt to present independent evidence of the value of the minerals which were produced or sold. Moreover, there is no contention that the evidence Moore sought to introduce via his motion to reopen was unavailable to him at the tune of trial. Indeed, it appears that this evidence was readily available to Moore prior to trial. Counsel for Moore was candid in advising the court at the motion to reopen that there was access to this evidence “all along.” When asked about the availability of the records regarding mineral value, O’Bannon (the sponsoring witness of the evidence in question) confirmed that such records were available at the time of trial. Likewise, Moore does not dispute the availability of that evidence at the time of trial. Given these facts, we are compelled to conclude that there has been a failure to show diligence in attempting to produce the evidence in a timely fashion. Where the party seeking to reopen has not shown such diligence, a trial court does not abuse its discretion by refusing to reopen a case after evidence is closed. McNamara v. Fulks, 855 S.W.2d 782, 784 (Tex.App.-El Paso 1993, no writ).

(2) Decisive Evidence

Frazier testified that the value of the production for the pertinent time period was $153,158.87. This evidence was undisputed at trial. O’Bannon testified at the hearing on motion for new trial that the value of the minerals it purchased (as opposed to the value of the minerals actually produced) was $146,730.22. This figure represents the value of the minerals purchased by Plains Marketing, while the value proffered by Frazier represents the value of total production. Moreover, there is no dispute that oil was produced, but not sold, between March and September 2008.

The uncontroverted evidence admitted at trial reflects the value of minerals produced, but unsold, to be $6,859.50. The two sets of figures are easily reconciled, and the difference between the two essentially has to do with a value measured by minerals sold versus the value measured by minerals produced. Evidence of the value of oil actually sold is not decisive because it does not represent the value of all of the minerals.

(3) Undue Delay

Moore contends that reopening the record would not have caused undue delay because it was only a matter of presenting production figures into evidence. However, when one takes into account the protracted trial and appellate history of this case, the trial court could well have determined that further delay would be undesirable; the trial court was of the opinion that the matter had previously been subject to perhaps excessive delay between the date this Court issued its opinion and the hearing on remand.

Further, although Moore indicated that all he wanted to do if he was allowed to reopen was introduce only a small amount of evidence, the trial court is obligated to permit both sides to fully develop the case if a reopening is allowed. Huff, 15 S.W.Bd at 308. Therefore, there might have been a more lengthy presentation than Moore anticipated.

When weighed against the rather lengthy history of this case, any delay occasioned by the reopening of the evidence could easily be deemed less than desirable.

(4) Injustice

We cannot say that the admission of the evidence proffered by Moore regarding the value of the minerals sold was necessary to the due administration of justice when one takes into account the fact that the record reflected the existence of competent evidence of the value of the minerals, in compliance with this Court’s directive. We further observe that had the motion to reopen been granted, Moore would have essentially been afforded the opportunity to retry his case, after having already been given the trial court’s letter ruling. The trial court could reasonably conclude that Moore’s desire to offer additional evidence was related to its letter ruling. Here, the interests of justice do not warrant a second bite at the apple.

When each of these factors is taken into account, the fact remains that Moore did not show diligence in attempting to produce the available evidence in a timely fashion. The interests of justice do not warrant a reopening of the evidence. The trial court did not abuse its discretion in denying Moore’s request to reopen the evidence. See McNamara, 855 S.W.2d at 784. We overrule this point of error.

B. The Damage Award Was Supported by the Evidence

In his second point of error, Moore contends that the $2,000.00 cost for Moore to obtain a letter of credit should have been included as a part of the operating costs to be deducted from the value of the minerals in order to determine damages. Moore further contends that certain additional expense items should have been included within the category of operating costs, including (1) pumping expenses of $1,500.00 per month; (2) the cost of a pumper to check the well during the time the well was nonoperational; and (3) miscellaneous expenses of $4,989.91. Moore urges that a clear reading of the ruling of the trial court adopted all expenses Moore submitted, totaling $114,552.12 and that he is entitled to a credit against the value of the minerals in this amount. We disagree.

Neither Moore nor Jet Stream requested findings of fact and conclusions of law, and for reasons we will discuss later in this opinion, the trial court’s letter to counsel of July 7, 2009, cannot be considered as such.

In the absence of formal findings of fact and conclusions of law, the trial court’s judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Rosa’s Café, Inc. v. Wilkerson, 183 S.W.3d 482, 486 (Tex.App.-Eastland 2005, no pet.). The trial court’s determination that the net value of revenues produced was $50,847.16 is supported by evidence.

At the June hearing, the uncontroverted evidence established that the value of minerals produced was $153,158.57. After mineral value was established, Moore introduced evidence of claimed operating costs totaling $114,552.12. Those costs included pumping expenses of $1,500.00 per month for thirty-seven months, $750.00 for one month, and $500.00 per month for nine months, for total pumping expenses of $60,750.00. In addition, Moore presented evidence of the cost of the letter of credit, as well as those expenses categorized as “miscellaneous” in the amount of $4,989.91.

Frazier testified on behalf of Jet Stream that operating costs attributable to production totaled $69,011.71. Of this amount, $22,200.00 represents pumping costs at a rate of $400.00 per month. Frazier was also of the opinion that neither the expense related to the issuance of a letter of credit, nor the miscellaneous expenses offered by Moore, were chargeable expenses of well operation.

In a nonjury trial or hearing, the trial court is the sole judge of the witness’s credibility and the weight to be afforded the testimony. Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (TexApp.-Dallas 1989, writ denied). The trial court, as the fact-finder, has the right to accept or reject all or any part of any witness’s testimony. Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 357 (Tex.1996). The trial court may believe one witness and disbelieve others, and may resolve inconsistencies in any witness’s testimony. Id. Accordingly, the court was free to base its decision upon the testimony offered by Jet Stream or by Moore or on a combination of all of the evidence introduced at trial. Here, the trial court’s damage figure is supported by ample evidence.

We further observe that in the absence of findings of fact and conclusions of law, a determination of the precise evidence upon which the judgment is based is mere speculation.

Because there is evidence to support the judgment rendered, we overrule this point of error.

C. The Trial Court Did Not Err in Determining the Value of the Minerals

There are three mineral values at issue. The first is the value of the oil produced, which was proven at trial to be $153,158.57. The second value is that of the minerals actually sold, this being $146,730.00. The final value (the one proposed by Moore on appeal to be determinative) is the value of the minerals sold, less severance taxes. This value is $139,962.90. Moore claims the trial court erred when it found the value of the oil produced to be $153,158.87. We disagree.

First, and as previously discussed, the evidence introduced at trial supports the value of the oil produced as being $153,158.57. In fact, this evidence was not controverted. Moreover, while evidence supporting Moore’s assertion of mineral value as $139,962.90 was introduced at the hearing on motion for new trial, no such evidence was introduced at trial. Thus, the trial court could not have erred in failing to find the mineral value to be an indeterminate number unsupported by the evidence. Moore does not claim on appeal that the trial court erred in overruling his motion for new trial.

Moreover, we perceive this argument to be somewhat disingenuous. Jet Stream’s trial exhibit 3 sets forth all of the information necessary to establish the value of the oil produced. This exhibit provides the following information:

Actual Cost Ex/“C”
and Avg. Annual/
Production Disposition Monthly Oil Price
(Source: Texas (Source: Texas (Source: EIA
RRC Website-RRC Website— Website WTI— Revenue from
DATE Ex. “A”) Ex. “A”) Ex. “B” (See Fn) Oil Sales
Aug.-05 278 176 62.49 $ 10,998.77
Sept.-05 151 290 $ 63.00 18,268.84
Oct.-05 153 143 59.89 8,563.56
Nov-05 152 162 $ 56.00 9,072.49
Dec.-05 103 103 56.77 5,846.80
Jan.-06 86 62.99 $ 5,416.71
Mar.-06 37 80 60.69 4,854.88
May-06 127 178 68.48 12,188.73
Jun.-06 71 60.28 $ 5,304.90
Aug.-06 95 99 70.37 6,966.23
Sept.-06 136 134 61.81 8,282.00
May-07_21_110_$ 60.94_$ 6,703.18
Qct-07_139_144_$ 83.20_$ 11,980.22
NOV.-07_120_161_$ 92,87_$ 14,952.71
Feb.-08_5_116_$ 92.01_$ 10,673.62
Mar.-08_7_0_$105.45_$ 738.15
Apr.-08_10_0_$112.58_$ 1,125.80
May-08_12_0_$125.40_$ 1,504.80
JuL-08_9_0_$133.37_$ 1,200.33
Sept.-08_22_0_$104.11_$ 2,290.42
Total Gross Revenue since January 2005 $153,158.87

The information in Jet Stream’s exhibit 3, as set forth in the referenced table, reflects gross revenue for total oil sold (disposed of) from August 2005 through February 2008. However, from March 2008 through September 2008, exhibit 3 reflects that fifty-three barrels of oil were produced, but not sold. The value of this oil (produced, but not sold) totals — according to the average annual/monthly oil price — $6,859.50.

On appeal, Moore claims the total value of the oil produced was $146,730.00. Moore then claims that amounts paid for severance taxes should be deducted, to arrive at the value of the minerals less operating expenses. Moore’s argument fails for two reasons. First, Moore’s premise is incorrect; the evidence clearly establishes that the value of the oil produced was $153,158.87. Moreover, there is no evidence that the value of the oil produced was $146,730.00, as Moore contends. Moore testified that the value of oil sold through February 2008, as reflected on Jet Stream’s exhibit 3, is correct. Further, Moore agreed that the amount of production listed on exhibit 3 for March 8 through September 8 is correct; in fact, this is a recapitulation of what Moore reported to the Commission. Even though he did not dispose of the oil produced from March 8 through September 8, Moore agreed that the value of minerals produced was $153,158.87 (due to the fact that some oil remained unsold at the time of trial).

This testimony directly contradicts Moore’s position on appeal, i.e., that the value of the minerals produced amounts to only $146,730.22. In fact, Moore acknowledged that the value of the oil sold is $146,730.22. O’Bannon, the sponsoring witness of the evidence offered at the motion for new trial, acknowledged that his numbers only represented the amount of oil purchased from Moore by Plains Marketing. The only evidence of the value of the oil produced was that offered by Jet Stream and acknowledged by Moore to be correct.

Moore’s third appellate point cannot be sustained for the further reason that no evidence was introduced at trial reflecting the amount of severance taxes paid on this amount. Because no such evidence was before the trial court, such evidence cannot be considered on appeal. Tex.R.App. P. 33.1.

We overrule this point of error.

D. Sums Previously Paid and Currently Held in Suspense by Plains Marketing

At the hearing on motion for new trial, O’Bannon testified that funds were held in suspense by Plains Marketing until further orders of the court. However, $6,106.04 of the funds which should have remained in suspense were actually paid out to Jet Stream for production between August 2005 and January 2007. Moore further claims the sum of $2,641.27 currently remains in suspense for production between January 2007 and the present. Moore contends that (1) he is entitled to receive a credit against the judgment for the payment to Jet Stream in the amount of $6,106.04 and (2) he is entitled to receive a credit against the judgment in the amount of $2,641.27, the amount which currently remains in suspense.

Moore testified at the hearing on motion for new trial that Jet Stream was previously paid $6,107.04 from production funds. With respect to the question of whether Moore is entitled to a credit against the judgment in this amount, we note that no such evidence was before the trial court at the time of trial. Evidence of production funds paid to Jet Stream was disclosed at the hearing on the motion for new trial. Additionally, the information contained on exhibit 1 (Plains Marketing Accounting Summary) and introduced at the hearing on motion for new trial was likewise not before the trial court at the time of the trial. The issue of whether Moore is entitled to a credit for past production paid to Jet Stream was raised solely in connection with Moore’s motion for new trial, the denial of which has not been appealed. Because this issue has not been preserved for appeal, we may not consider it. Tex. RApp. P. 33.1. We, therefore, overrule this point of error.

Moore next contends that he is entitled to receive a credit against the judgment in the amount of $2,641.27, which currently remains in suspense. This issue is rendered moot by the judgment upon remand, which provides:

IT IS FURTHER ORDERED, that any purchaser of production from the W.L. Rudd B Lease # 00831, upon this Judgment becoming final, is ordered to pay over to the Plaintiffs all amounts maintained in suspense, from said lease, to be applied to the Judgment.

We, therefore, do not address this issue, as it is moot.

E. Modification of the Judgment to Change the Attorney’s Fee Award

In his final point of error, Moore maintains that the judgment upon remand should be modified to change the attorney’s fee award. We disagree.

The judgment upon remand provides, in part:

IT IS FURTHER ORDERED, that Plaintiffs receive their reasonable and necessary attorney’s fees in the amount of Ten Thousand and No/100 Dollars ($10,000.00), for the attorney’s fees incurred in the pursuit of this cause, together with contingent amounts in the event of an unsuccessful appeal by the Defendant in the amount of Ten Thousand and No/Dollars ($10,000.00) if this Judgment is unsuccessfully appealed to the Court of Appeals; an additional Ten Thousand and No/100 Dollars ($10,-000.00) if a Petition for Review is filed with the Supreme Court of Texas and is unsuccessful; and an additional Ten Thousand and No/Dollars ($10,000.00) if the Petition for Review is granted and the Supreme Court denies relief to the Defendant.

Moore relies on the letter ruling of the trial court of July 7, 2009, which states:

Concerning the issue of “equitable and just attorney fee,” the following fees are award [sic] to Plaintiff as “equitable and just”
$10,000.00 as originally awarded for the Trial Level Disposition.
The “good faith trespass” finding reflected in the Appellate Opinion, however, raises concerns as to the “equitable and just” status for awarding Attorney Fees to the Plaintiffs on appeal a concern that is compounded by language in Plaintiffs Original and Amended Petition in the case at hand that “... contingent amounts as attorney’s fees in the event of unsuccessful appeals by the Defendant.” Based on the concerns stated the award of Contingent Attorney
Fees on Appeal to the Plaintiff would not be “equitable and just.” Appellate Attorney Fees shall be paid by the incurring parties.

The resolution of this issue depends, at least in part, upon the accurate characterization of the trial court’s letter to counsel dated and filed on July 7, 2009. Accordingly, we will examine this communication to determine whether it can correctly be characterized as findings of fact and conclusions of law.

Findings of fact and conclusions of law need not be in any particular form so long as they are in writing and be “filed with the Clerk and shall be part of the record.” Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 124 (Tex.App.-Corpus Christi 1986, no writ); see Tex.R. Civ. P. 297. Thus, it is possible for findings of fact and conclusions of law to be contained in a trial court’s letter to counsel if such a letter is filed of record. Duddlesten v. Klemm, No. 06-08-00106-CV, 2009 WL 635153, at *2 (TexApp.-Texarkana Mar. 13, 2009, no pet.) (mem. op.). Here, the letter of the trial court to both counsel was filed of record.

There is, however, some authority to support the proposition that a trial court’s prejudgment letter may not serve as findings of fact and conclusions of law. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 877-78 (Tex.1990). Cherokee Water concluded that a letter written prior to rendition of judgment did not constitute findings of fact, especially in light of the fact that formal findings of fact and conclusions of law were subsequently filed. Cherokee Water has been distinguished in cases where a prejudgment letter expresses the trial court’s intent for appellate courts to rely on the letter ruling as the basis for its decision, where no other formal findings are entered. See Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex.App.-Eastland 2005, pet. denied). We recognized this distinction in Duddlesten, 2009 WL 635153, at *2. In Duddlesten, as in Kendrick, the trial court specifically stated the letter expressed its findings and conclusions and did not enter further findings and conclusions, even though request for same was made. Based on these differences with Cherokee Water, we concluded in Duddles-ten, as did the Eastland court in Kendrick, that the letter served to establish the trial court’s findings of fact and conclusions of law. We further recognized that not every letter written by the trial court to the attorneys will qualify as findings of fact and conclusions of law. Id.

Here, the letter ruling, though filed with the clerk, does not specifically state that it is intended to set forth the trial court’s findings of fact and conclusions of law. In this regard, the letter states that “[o]utlined below are my findings as to the items referenced above.” Here, however, neither party requested findings of fact and conclusions of law from the trial court. In light of these circumstances, we cannot conclude that the trial court intended for this Court to rely on its letter ruling for the basis of its decision. This is especially true in light of the fact that the subsequent judgment conflicts ■with the trial court’s letter on the issue of attorney’s fees. The letter therefore cannot logically form the basis of the court’s decision on this issue. We recognize that the judgment upon remand reflects the decision of the trial court.

We overrule this point of error.

We affirm the judgment of the trial court.

      . In Moore v. Jet Stream Investments, Ltd., 261 S.W.3d 412 (Tex.App.-Texarkana 2008, pet. denied), this Court addressed Moore’s appeal of the trial court's judgment declaring that an oil and gas lease had terminated due to non-production. Moore operated the lease, which contained a five-year primary term and continued thereafter as long as oil or gas was produced. On August 20, 2004, after Moore failed to comply with an order from the Texas Railroad Commission regarding posting financial assurance, the Commission ordered that he cease production. Production did not resume until July 15, 2005. Shortly after Moore resumed production, William L. Rudd, III, acting "[o]n behalf of the mineral owners," sent Moore a letter alleging the lease had terminated. Jet Stream Investments thereafter brought suit seeking a declaratory judgment that the lease had terminated. After granting Jet Stream’s motion for partial summary judgment, the case proceeded to trial on the merits, with judgment rendered in favor of Jet Stream.

      .We have pointed out in our recent case of Ramsey v. Grizzle, No. 06-09-00026-CV, 2010 WL 1980247 (Tex.App.-Texarkana May 19, 2010, no pet. h.), that such a controversy (i.e., whether a leasehold estate has reverted due to cessation of operations) is properly brought as an action in trespass to try title and not as an action for declaratory judgment. Unlike the Ramsey case, no complaint of this nature was raised here and the issue would, therefore, be unassigned or unpreserved error which we cannot entertain. Tex.R.App. P. 33.1. The Texas Supreme Court has allowed consideration of unassigned error only in cases wherein the jurisdiction of the appellate court is questionable and in cases involving quasi-criminal matters. In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003). This case fits into neither category and our previous opinion has become final.

      . Of this amount, $85,521.11 represented revenue received by Moore from the termination of the lease, and $9,231.13 represented underpayment of royalty.

      . Damages measured by gross revenue from oil sales were based upon bad-faith trespass. Because we determined that Moore’s trespass was done in good faith, damages are appropriately measured by net revenue from oil sales.

      . Moore, 261 S.W.3d at 430.

      . Id. at 431. Jet Stream requested and obtained attorney's fees under the Declaratory Judgments Act. Under Section 37.009, a trial court may award reasonable and necessary attorney’s fees that are “equitable and just." Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). When a judgment is reversed on appeal, the reversal may affect whether the award of attorney’s fees is equitable and just. SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Seis., Inc., 128 S.W.3d 304, 324 (Tex.App.-Dallas 2004, no pet.).

      .The judgment confirmed the previous award of underpaid royalty in the amount of $9,231.13, together with post-judgment interest from and after June 12, 2007.

      . Plains Marketing purchased and marketed the oil from Moore’s producing wells.

      . The total production figures were reported by Moore to the Commission.

      . At the hearing on Moore's motion for new trial, Jim O’Bannon, a crude oil representative from Plains Marketing, testified that total production for this lease, including severance taxes, is valued at $146,730.00. When severance taxes are deducted, the mineral value is $139,962.90. These figures are based on records reflecting amounts that Plains Marketing paid for the oil it purchased. O’Bannon does not know what was actually produced; he knows what Plains Marketing purchased. However, Plains Marketing bought all of the production from the lease with the exception of what might have been in the tanks at the time of the hearing.

      . O’Bannon testified at the motion for new trial:
      Q [By Plaintiffs’ Counsel] Okay. And so if this trial was held in June of 2009, had this — had the Defendant wanted to obtain diese records, he could have obtained this record and presented it; is that correct?
      A [By O’Bannon] Yes, sir.

      . Moore testified at the motion for new trial:
      Q [By Plaintiffs' Counsel] Mr. Moore, is there one item of information that you’re asking now for the Court to look at in making a determination of a new trial that wasn't available to you prior to our trial in June?
      A [By Moore] Probably not.

      . In fact, Moore confirmed that the figure of $153,158.87 represents the value of the minerals produced.

      . To the extent Moore claims trial court error for failing to reopen the evidence for the purpose of showing the amount of severance taxes paid, we note that the request to reopen was not made for that purpose. However, we recognize that information regarding the amount of severance taxes paid was likewise available to Moore at the time of trial. The source of Moore's evidence is the same for both the production data and the severance taxes.

      . In our previous opinion, the trial court was asked to determine the "value of the minerals” in order to subtract the costs of drilling and production. We did not limit the phrase "value of the minerals” to include only the value of those minerals actually sold. Moore, 261 S.W.3d at 430.

      . Our opinion was issued in August 2008, and the hearing on remand took place in June 2009.

      . Moore was required by the Commission to obtain a $2,000.00 letter of credit in order to continue to operate the wells in question.

      . We do not address this area of damage, as Moore concedes that this expense was included in the operating costs.

      . The latter two items represent the cost of a pumper to check the well during the time the well was nonoperational.

      . Miscellaneous expenses were for cell phone and postage; cell phone expenses were not allocated on a per lease basis.

      . In making this calculation, Frazier utilized Moore’s expense figures with respect to the following costs: (1) electric; (2) supplies; (3) record keeping; (4) well servicing; (5) general lease work; (6) chemicals; and (7) taxes and insurance.

      . The difference in the parties' evidence on pumping expenses is $38,550.00.

      . Moore contends that because the trial court issued an oral pronouncement from the bench (at the hearing on Moore's motion for new trial), it intended for Moore to recover the cost of the letter of credit, he is entitled to a credit for same. An oral pronouncement from the bench regarding a signed and filed judgment carries no weight in and of itself. The trial court had plenary jurisdiction to modify the judgment when such pronouncement was made. See, e.g., L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex. 1996). A motion to modify judgment, the appropriate procedural vehicle for the relief requested, was not filed. TexR. Civ. P. 329b(g) (“A motion to modify, correct, or reform a judgment ..., if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court's plenary power ... in the same manner as a motion for new trial.”).

      .For example, the trial court could have found that the value of the minerals produced. — $153,158.57—minus the operating expenses offered by Jet Stream — $69,011.71— would have entitled Jet Stream to recover $84,146.86. The award of the court — $50,-847.16 — being less than that amount, is supported by the evidence. Likewise, the trial court could have determined that the cost of the letter of credit and the miscellaneous expenses were not properly chargeable as operating expenses, based on Frazier's testimony. It may also have opted for inclusion of Moore’s expenses with respect to pumping costs, in combination with a reduction of other expenses, as mentioned above. We conclude that in each of these scenarios, the decision of the trial court with respect to the damages for good-faith trespass — the value of the minerals produced minus drilling and operating expenses — is supported by tire evidence.

      . Moore maintains that at trial, he did not agree that the amounts listed on Jet Stream's exhibit three outlining mineral values were accurate. He further contends that there was no expert testimony regarding the actual value of the oil produced. This is incorrect. Frazier created Jet Stream’s exhibit 3, and explained in detail the basis for the numbers included on that exhibit.

      . The average annual/monthly oil price is not in dispute.

      . O'Bannon testified at the hearing on motion for new trial that the "lease net” is actually $139,962.90. The "gross value” — or taxable value — is the lease net amount of $139,962.90, plus severance taxes in the amount of $6,767.35, yielding a gross value of $146,730.00. Evidence regarding severance taxes was not before the trial court at the time of trial, and therefore cannot be considered on appeal. TexR.App. P. 33.1.

      .O’Bannon testified as follows:
      Q [By Plaintiffs' Counsel] Okay. Now— so if we wanted to know what the value of the production was that Plains Marketing purchased, you would agree that it’s $146,730.22?
      A [By O'Bannon] Yes.
      Q Okay. And now, if there was other amounts that had been produced but has not yet been sold, you wouldn't have any records concerning those, would you?
      A No, sir.

        Q And of course, that would also have value — if there were oil still in the tanks or if there was oil that wasn’t purchased by Plains, those — you would not have any record concerning that.
      A That is correct.

      . It is unclear whether Moore contends on appeal that the correct measure of mineral value is the value of the oil sold versus the value of the oil produced. We conclude that the trial court correctly based its judgment on the value of the oil produced.

      . Moore does not explicitly claim the trial court's letter of July 2009 amounts to formal findings of fact and conclusions of law; however, the content of the letter is , treated as controlling and, thus, we recognize an implicit reliance upon the authority of the letter as findings of fact and conclusions of law.

      . The variance between the court’s letter ruling and the judgment was not addressed via a motion in the trial court to reform the judgment.

      . We acknowledge that findings of fact and conclusions of law filed after a judgment are controlling if they conflict with a previous judgment. Dickerson v. DeBarbieris, 964 S.W.2d 680, 684 (Tex.App.-Houston [14th Dist.] 1998, no pet.). There is no authority to support the proposition that prejudgment findings of fact and conclusions of law are controlling if they conflict with a subsequent judgment.


author: DAVID PURYEAR, Justice.

text:
    Bertha MEANS and Harlem Cab Company d/b/a Austin Cab, Appellants, v. ABCABCO, INC. d/b/a Lone Star Cab Co., and Solomon Kassa, Appellees.
    No. 03-08-00426-CV.
    Court of Appeals of Texas, Austin.
    June 3, 2010.

      William T. Peckham, Austin, TX, for appellants.
    Malcolm Greenstein, Greenstein & Kolker, Austin, TX, for appellees.

      Before Chief Justice JONES, Justices PURYEAR and HENSON.
   OPINION

DAVID PURYEAR, Justice.

Bertha Means and Harlem Cab Company d/b/a Austin Cab (collectively, “Austin Cab”) sued ABCABCO, Inc. d/b/a Lone Star Cab Co. and Solomon Kassa (collectively, “Kassa”) for slander and several other claims based on allegedly defamatory comments Kassa made regarding Austin Cab. The trial court granted Kassa’s no-evidence motion for summary judgment on Austin Cab’s claims on the ground that Kassa’s statements were not defamatory. Austin Cab’s single point of error on appeal is that the trial court erred in granting summary judgment as to Austin Cab’s claim for slander. Because we hold that the statements are not defamatory as a matter of law, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

Kassa worked as a taxicab driver for Austin Cab as an independent contractor between 1998 and 2008. While he was driving for Austin Cab, Kassa formed his own cab company, Lone Star Cab, and began efforts to gain a taxicab franchise from the City of Austin. At the time, only three cab companies held franchises, but the City was considering granting an additional franchise. As part of his efforts, Kassa appeared at City of Austin committee and council meetings to advocate on behalf of his cab company. Meanwhile, Kassa’s relationship with Austin Cab ended in May 2008 when Austin Cab terminated his contract because of Kassa’s repeated failure to comply with certain contractual terms. Kassa told others, however, that Austin Cab had terminated his contract because he had started his own cab company and was trying to gain a franchise to compete with Austin Cab. Specifically, at an April 5, 2007 Austin City Council meeting at which the award of a new taxicab franchise was under consideration, Doug Young, Kassa’s attorney and agent, made the following comments:

I do want to point out ... that you are not going to see a lot of the drivers from Lone Star and here’s why, you will hear from Solomon [Kassa], one of the officers of Lone Star. He has been the public face since 2003. The first time he talked at an Urban Transportation Committee in 2003, his contract with one of the three existing cab companies was summarily terminated within days of his appearance at that meeting.... The point was made to the drivers, if you are currently a driver for one of the existing companies and it’s no secret that the existing companies have all been on the record and the Urban Transportation Commission and I think they will be before you today, that they favor Mr. Fodo, their subcontractor for the award of this franchise. It’s not safe for Lone Star’s drivers to come and advocate for Lone Star today.

Six days after these comments, Austin Cab sued Kassa for declaratory judgment, tortious interference, libel, slander and defamation, and business disparagement. Austin Cab’s claims were based on the statements made by Kassa or his agent regarding the reasons Austin Cab terminated its contract with Kassa, including the agent’s April 5, 2007 statement to the Austin City Council. After a short time for discovery, Kassa filed a no-evidence motion for summary judgment as to each of Austin Cab’s claims, arguing that Austin Cab had no evidence that: (1) the statements were defamatory, (2) the statements were false, (3) the statements were directed at Austin Cab, (4) Austin Cab suffered actual damages, (5) the statements constitute defamation per se, (6) the statements constitute slander per se, (7) the statements were published within one year of the date suit was filed, and (8) the statements were published maliciously. Austin Cab filed a response to Kassa’s motion, attaching both documentary and testimonial evidence, and amended its pleadings to add claims for reckless infliction of emotional distress and negligence. After a hearing on Kassa’s motion, the trial court rendered partial summary judgment as to Austin Cab’s claims for declaratory judgment, tortious interference, libel, slander and defamation, and business disparagement on the ground that the April 5, 2007 statement to the Austin City Council was not defamatory.

Austin Cab next filed a motion to modify or vacate the trial court’s partial summary judgment, and Kassa filed a motion for no-evidence summary judgment as to Austin Cab’s remaining claims. After examining the pleadings and hearing argument from counsel on Austin Cab’s motion to modify or vacate and Kassa’s second motion for summary judgment, the trial court modified the previous partial summary judgment “to reflect that [Kassa’s] Motion for Summary Judgment is granted solely as to the statements made by [Kassa’s agent] but further finds that said statements are not defamatory and that the Motion to Vacate Summary Judgment is denied.” The trial court then addressed Kassa’s second motion for summary judgment and granted it “as to any and all other allegedly defamatory statements that were made by or attributed to” Kassa and dismissed all of Austin Cab’s remaining claims without specifying the grounds relied on for its ruling. Austin Cab’s single point of error on appeal is that the district court erred in granting Kassa’s motion for summary judgment on the slander claim stemming from Kassa’s April 5, 2007 statement to the Austin City Council. Austin Cab does not appeal the trial court’s dismissal of its other claims.

STANDARD OF REVIEW

We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.Sd 150, 156 (Tex.2004). Under the “no-evidence” rule 166a(i) standard, a defendant may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which the plaintiff would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a pre-trial directed verdict and we apply the same legal-sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). We review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. at 751. We will affirm a no-evidence summary judgment if the non-movant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the non-movant would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). More than a scintilla of evidence exists when reasonable and fair-minded people could differ in their conclusions based on that evidence. Forbes Inc. v. Granada Biosciences, 124 S.W.3d 167, 172 (Tex.2003).

DISCUSSION

Austin Cab contends that Kassa’s statement to the Austin City Council is slander because it accuses Austin Cab of firing Kassa for trying to compete with Austin Cab. To prove a cause of action for slander, a plaintiff must prove that the defendant orally communicated a defamatory statement to a third person without justification or excuse. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). The issue for our determination is whether the words used by Kassa’s agent are “reasonably capable of a defamatory meaning.” Musser v. Smith Protective Sen., Inc., 723 S.W.2d 653, 655 (Tex.1987). Because Kassa’s words are unambiguous, this determination is a question of law for the court. Id.

Proper Use of No-Evidence Summary Judgment

Before we reach the issue of whether the statement is defamatory, we address sua sponte whether it was proper for the trial court to grant a no-evidence summary judgment on a question of law. Questions of law are proper subjects of traditional motions for summary judgment, see, e.g., Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989), but Kassa raised the issue in a no-evidence motion for summary judgment and the trial court granted summary judgment on that ground. The Dallas Court of Appeals has held that purely legal issues can never be the subject of a no-evidence motion for summary judgment. Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (TexApp.-Dallas 2000, pet. dism’d w.o.j); but see Cone v. Fagadau Energy Corp., 68 S.W.3d 147,156 (Tex.App.-Eastland 2001, no pet.) (holding that purely legal issue may be addressed as part of no-evidence summary judgment). Hamll, however, cites no authority for its bright-line proposition, nor does the court offer reasoning to support its conclusion. Hamll, 27 S.W.3d at 194. Furthermore, Hamll is distinguishable because the motion for summary judgment there involved a movant who had the burden of proof on the legal issue. Id.; see also Tex.R. Civ. P. 166a(i) (movant cannot have burden of proof on subject of no-evidenee summary judgment).

The purpose of summary judgment is to permit the trial court to promptly dispose of cases that involve un-meritorious claims or untenable defenses. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 678 n. 5 (Tex.1979); see also Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962) (summary judgment “provide[s] a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact”). Likewise, the no-evidence summary judgment allows a court to “pierce the pleadings” and evaluate the evidence to see if there is a genuine need for trial. Benitz v. Gould Grmip, 27 S.W.3d 109, 112 (Tex. App.-San Antonio 2000, no pet.). In the absence of an articulated reason or further support, we decline to follow Hamll’s lead and instead review the legal issue on appeal to determine if it was properly presented to the trial court and is susceptible to review under no-evidence summary judgment standards.

Kassa’s no-evidence motion asserted that Austin Cab could not produce any evidence of a defamatory statement, which is an element of Austin Cab’s slander claim. See Randall’s Food Markets, Inc., 891 S.W.2d at 646. Kassa’s motion meets the requirements of Rule 166a(i). See Tex.R. Civ. P. 166a(i). To defeat Kassa’s motion, Austin Cab had to present evidence raising a genuine issue of material fact regarding the existence of a defamatory statement. Id. Austin Cab produced a transcript of the statement and witness affidavits regarding the effect of the statement on those who heard it. After reviewing the evidence, the trial court found that the statement was not defamatory. If the statement produced by Austin Cab as evidence of a defamatory statement is not capable of defamatory meaning as a matter of law, then, logically, Austin Cab failed to produce evidence of a defamatory statement. Thus, summary judgment was proper. See King Ranch, 118 S.W.3d at 751 (no-evidence summary judgment should be sustained when there is complete absence of evidence of vital fact). Because the question of defamatory meaning was presented to the trial court within the framework of rule 166a(i) and because it is subject to a proper analysis under the no-evidence summary-judgment standards, we hold that it was not improper for the trial court to consider this legal issue under a no-evidence motion for summary judgment.

Analysis of Statement

Next we address de novo whether the words used by Kassa’s agent were reasonably capable of a defamatory meaning. See Musser, 723 S.W.2d at 654. We construe as a matter of law language that is unambiguous on its face and find it not actionable if it lacks defamatory meaning. See Carr v. Brasher, 776 S.W.2d 567, 570 (Tex.1989); Musser, 723 S.W.2d at 655 (if ambiguous, trier-of-fact must determine statement’s meaning and effect on listener). When considering whether a statement is defamatory, we construe the statement as a whole, in light of the surrounding circumstances, based on how a person of ordinary intelligence would perceive the entire statement. Id.

A statement is defamatory if it tends to injure the person’s reputation, exposing the person to public hatred, contempt, ridicule, or financial injury, or if it tends to impeach that person’s honesty, integrity, or virtue. See Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (West 2005) (libel); Restatement (Second) of Torts § 559 (1977) (defamation). A communication that is merely unflattering, abusive, annoying, irksome, or embarrassing, or that hurts only the plaintiffs feelings, however, is not actionable. H.O. Merren & Co., Ltd. v. A.H. Belo Corp., 228 F.Supp. 515, 517 (N.D.Tex.1964), ajfd, 346 F.2d 568 (5th Cir.1965); Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex.Civ.App.-Texarkana 1959, writ refd n.r.e.); see also 1 Robert D. Sack, Sack on Defamation 2-12 (3d ed.2009). To be defamatory, a statement should be derogatory, degrading, and somewhat shocking, and contain “ele-mentfs] of personal disgrace.” Sack, supra at 2-17 (quoting W. Page Keeton, et al, Prosser & Keeton on the Law of Torts § 111 (5th ed.1984)). Thus, it is not defamatory to accuse a person of doing that which he has a legal right to do. Associated Press v. Cook, 17 S.W.3d 447, 456 n. 8 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (“[E]xercising a legal right is not defamatory as a matter of law.”); see also Musser, 723 S.W.2d at 655 (accusing someone of doing that which they had right to do is not defamatory).

The statement in this case was made at an Austin City Council meeting during public comments regarding the award of a new taxicab franchise by the City. The speaker was advocating on behalf of Kassa to encourage the Austin City Council to award the franchise to Kassa’s cab company. The unambiguous meaning of Kassa’s statement and, in fact, the meaning ascribed to it by Austin Cab, is that Austin Cab terminated Kassa’s contract as soon as it found out that Kassa was seeking the award of a taxicab franchise that would compete with Austin Cab. The statement does not suggest some wrongful or unethical conduct by Austin Cab. It does not suggest that Austin Cab violated a law or the term of a contract or that Austin Cab breached its contractual obligations. What it does state is that Austin Cab terminated its contract with Kassa because he was supporting a competitor.

The ability to terminate a contract is a legal and ethical option often available to parties to a contract. See, e.g., Tex. Bus. & Com. Code Ann. § 2.106(c) (West 2009)(“ ‘Termination’ occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach.”). It is similar to the right of an employer or an employee to terminate the employment relationship at any time, with or without cause, absent agreement to the contrary. See County of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex.2007). For the same reasons, the suggestion that the action was retaliation for Kassa’s support of a competitor does not make the statement defamatory. The decision to terminate a contract or to fire an employee because the contractor or employee actively supports a competitor is an option available to a business absent agreement to the contrary. Businesses in a free-enterprise system are expected to protect and promote their best interests. See Wilkow v. Forbes, Inc., 241 F.3d 552, 557 (7th Cir.2001) (“[S]edulous pursuit of self-interest is the engine that propels a market economy.”). These are business decisions, and, like other business decisions, they are made in the context of the free enterprise system where competition is expected. Musser, 723 S.W.2d at 655.

Although Austin Cab finds Kassa’s statement insulting and offensive, the statement lacks the element of disgrace or wrongdoing necessary for slander. Kas-sa’s agent did nothing more than accuse Austin Cab of doing that which it had a legal right to do; thus, Kassa’s statement is not defamatory. Cf Musser, 723 S.W.2d at 655 (statement that former employee “relieved” his former employer of some of its accounts is not defamatory because it does not accuse employee of anything other than competitiveness); Cook, 17 S.W.3d at 456 n. 8 (statement that person invoked Fifth Amendment right is not defamatory as matter of law); San Antonio Express News v. Dracos, 922 S.W.2d 242, 248 (Tex.App.-San Antonio 1996, no writ) (statement that employee “walked off the job ... without any excuse” is not defamatory because it does not suggest he did anything illegal or unethical);' Einhorn v. LaChance, 823 S.W.2d 405, 411 (TexApp.-Houston [1st Dist.] 1992, writ dism’d w.o.j.) (statement that someone was “attempting to form a union” is not defamatory despite prejudice against unions); Taylor v. Houston Chronicle Publ’g Co., 473 S.W.2d 550, 554 (Tex. CivApp.-Houston [1st Dist.] 1971, writ ref d n.r.e.) (statement that coach refused to do his job unless player was traded is not defamatory because he had right to do so); Herald-Post Publ’g Co. v. Hervey, 282 S.W.2d 410, 415 (Tex.Civ.App.-El Paso 1955, writ refd n.r.e.) (statement that mayor changed city’s retirement plan to get rid of one employee is not defamatory because mayor and council had right to formulate retirement plan as they saw fit).

Based on our review of the statement in light of the circumstances in which it was made, we hold that it is not defamatory as a matter of law. Because the statement is not defamatory as a matter of law, Austin Cab produced no evidence of a defamatory statement and the trial court properly granted Kassa’s no-evidence motion for summary judgment as to Austin Cab’s claim for slander. We therefore overrule Austin Cab’s sole issue on appeal.

CONCLUSION

Having overruled Austin Cab’s sole issue, we affirm the trial court’s order.

      . Austin Cab maintains that Kassa's efforts to gain a competing taxicab franchise were not a factor in the termination of the contract and that the sole reason for termination was his failure to pay a deposit required by the contract. Kassa does not dispute the basis for his termination.

      . Although we do not necessarily agree that "one of the existing companies” refers to either appellant as Austin Cab asserts, we assume it does for purposes of review because our finding that the statement is not defamatory is dispositive of the appeal.