author: Justice MOSELEY.

text:
    In re: Pamela STALEY Declaratory Judgment Action.
    No. 05-08-01171-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 3, 2010.

      Mary D. McKnight, Law Office of McKnight & Young, L.L.P., Dallas, TX, for Appellant.
    M. Forest Nelson, Dallas, TX, James A. Pikl, Scheef & Stone, LLP, Frisco, TX, for Appellee.
    Before Chief Justice WRIGHT and Justices MOSELEY and FRANCIS.
   OPINION

Opinion By

Justice MOSELEY.

Pamela Staley entered into a Compromise Settlement Agreement (CSA) with trustees of various trusts formed during her marriage to Thomas Staley. The CSA was also incorporated into a decree of divorce between Pamela and Thomas. A number of subsequent lawsuits were filed asserting claims regarding the trusts, the CSA, and the divorce. After these suits were consolidated, the trial court severed a number of the claims into a separate case and rendered a final judgment. The judgment ordered specific performance of the CSA by ordering one of the trusts to pay $600,000 plus interest into the court’s registry and ordering Pamela to execute certain motions and other documents. The judgment also dismissed with prejudice Pamela’s claim for partition of certain real property held by one of the trusts and well as her other trust-related claims.

Pamela appeals, complaining the trial court erred in granting the motions for summary judgment filed by Thomas and Staley & Associates, Inc., and James Herblin, individually and as trustee of Heritable Trust assignee of Charis Interests, and erred in denying her own motion for summary judgment. She also argues the trial court improperly “modified and altered” the terms and conditions of the CSA and improperly supplied property descriptions. We affirm.

I. BACKGROUND

We detail only the background facts and the litigation among these parties pertinent to the dispositive issues on appeal. During Pamela and Thomas’s marriage, trusts were established to protect their assets and benefit their children. Among the trusts established were Egarg Interests and Charis Interests. Real property was transferred to the trusts, including five parcels of land totaling about 123 acres bought during the Staleys’ marriage, referred to as the Collin County farm.

A. Divorce Litigation

Pamela sued Thomas for divorce in 1994. She alleged that Thomas had “initiated a plan to transfer and conceal assets of the community estate” and “had transferred community assets into [certain] trusts” including interests in certain real property. Among her claims were a claim for fraudulent transfer against Thomas, a request for an inventory and appraisement of all separate and community property, and claims for fraud and breach of fiduciary duty against the community estate. That suit was dismissed.

In 1999, Pamela again sued Thomas for divorce, filing her petition in the 254th Judicial District Court, Dallas County. She made essentially the same claims as she did in 1994 regarding the creation of the trusts and transfers of community property to them without her consent. She also joined as parties the trustees of Egarg Interests and Charis Interests.

The trial court rendered a final decree of divorce on May 29, 2002. The decree awarded Thomas as his sole and separate property any “rights of interest in property put in the trusts formed during the marriage of the parties,” and divested Pamela of “all right, title, interest, and claim in and to such property.” The decree went on to state: “The trusts do not form part of the community estate created with and during the marriage of .[Thomas and Pamela].”

The divorce decree also incorporated the CSA, which was between Pamela and her representatives and those in privity with her (called the “Releasing Parties”), and the trustees of certain trusts, including Charis Interests, and their assigns and any entity acting for them in the future (called the “Released Parties”). The CSA provided, in relevant part (quoting below):

1. [Pamela] had actual knowledge of the formation of each of the trusts, at or about the time each trust was formed.
2. The RELEASING PARTIES ... have no ownership or possessory interest in the corpus/Company Holdings of any of the trusts to the best of [Pamela]’s knowledge....
4. The trusts do not form part of the community estate created with and during the marriage of [Thomas and Pamela]. All of the trusts provide for the ultimate distribution of the Company Holdings, and not the generation of profits from the dissipation of Company Holdings....
6. [Pamela], at or about the time the 1994 divorce proceedings were initiated either knew or had reason to know about the activities of each of the ti’usts....
The RELEASING PARTIES on behalf of themselves and on behalf of their respective representatives, lawyers, and agents, do hereby agree, represent, warrant and covenant as follows:
COMPROMISE OF DISPUTED CLAIMS. This Agreement is a compromise of disputed and known and unknown past, present or future claims arising out of formation and activities of trusts formed during the marriage of [Thomas and Pamela]....

PAYMENT. The RELEASED PARTIES wih pay to RELEASING PARTIES within twelve months of this Agreement’s execution by all parties the sum of $700,000.00, by issuing the following checks to the following payees for the following time frames:

1. Within ten days of execution of this Agreement by all parties to the Agreement, $100,000.00 payable to Pamela S. Staley, and Moore & Anderson, L.L.P., said payment to be delivered to the offices of Moore & Anderson, L.L.P. ...; and
2. Within either twelve months of execution of a Joint Motion to Dismiss with Prejudice and Agreed Order of Dismissal by all parties to this agreement, by and through their respective counsel, or within ten (10) days of one of the trusts receiving proceeds from closing on the sale of a parcel of land held by one of the trusts released in this Agreement, whichever occurs first, $600,000.00 payable to Pamela S. Staley and Moore & Anderson, L.L.P., said payment to the delivered to the offices of Moore & Anderson, L.L.P....
This payment of $600,000.00 shall be secured by a deed of trust upon property in Carrollton, ... and a promissory note in the principal amount of $600,000.00. The note shall be at no interest for the six month period following execution of this Agreement. After that six month period, the note shall accrue simple interest at the prime rate....
CONDITIONS. This Agreement shall not be required to be paid, and this Agreement shall be of no force or effect, unless and until all of the following events and conditions occur: (1) All parties to the Agreement have executed this Agreement; (b) A Joint Motion to Dismiss With Prejudice and an Agreed Order of Dismissal is signed by the counsel of record for the relevant RELEASED PARTIES and RELEASING PARTIES in the Lawsuit; and (c) the representation from all counsel of record for RELEASING PARTIES and RELEASED PARTIES confirming the settlement represented by this Agreement as a good faith settlement.
Upon the delivery of the RELEASED PARTIES’ initial payment of $100,000.00 as described in the PAYMENT section above, the parties, by and through their respective counsel, shall execute, deliver and file in the Lawsuit a Joint Motion to Dismiss with Prejudice and Agreed Order of Dismissal....
EXECUTION OF OTHER DOCUMENTS. From time to time at the request of the RELEASED PARTIES, and without further consideration, at such party’s expense and within a reasonable period of time after request hereunder is made, the RELEASING PARTIES hereby agree to execute and deliver any and all further documents and instruments, and shall do all acts, as the RELEASED PARTIES may reasonably request.

The divorce decree was not appealed.

B. Post-Divorce Payment and Property Dispositions

It is undisputed that the $100,000 payment was made, and that Pamela’s counsel signed a joint motion to dismiss and agreed order of dismissal and gave them to Pamela, but Pamela never furnished them to opposing counsel.

In August 2002, Charis Interests transferred its ownership in real property, including the Collin County farm, to Allodial Limited Partnership in exchange for a limited partnership interest in Allodial. Charis Interests then assigned its partnership interests to Heritable Trust and ceased to exist. In either August or September 2002, Allodial sold some real property (not including the Collin County farm) for over $2 million (the 2002 sale).

C. Post-Divorce Litigation

1. 134th District Court (Dallas County) Litigation

In January 2003, Herblin, as trustee of Heritable Trust assignee of Charis Interests, sued Pamela in the 134th Judicial District Court in Dallas County. In his First Amended Original Petition, Herblin asked the trial court to interpret the CSA and declare the rights and duties of the parties. He alleged Pamela had breached the CSA by failing to execute and deliver documents and instruments required under the CSA and as reasonably requested by the trusts. He asserted that he had performed under the CSA because he had made the $100,000 payment and the $600,000 payment was not yet due. Herb-lin requested the remedy of specific performance, contending Pamela’s failure to comply with the CSA constituted inequitable conduct and requesting the court to order her “to execute and deliver the necessary documents to effectuate” the CSA.

Pamela answered and alleged causes of action against Herblin based on allegations concerning the formation of the trusts and the transfers of property to them, as well as the 2002 sale. In her live pleading at the time of summary judgment, entitled “Fourth Amended Counter-Petition to Disregard Sham Entities, Set Aside Void Transfers, Partition Real Property, Appoint a Receiver, and For Damages,” she named as defendants Staley & Associates, Inc.; Herblin, individually and as trustee of Heritable Trust assignee of Charis Interests; and Thomas individually.

Pamela alleged that the trusts were set up by Thomas, that they were sham entities, that Thomas made “void, unilateral transfers” to the trusts, and that she did not consent to the transfer of community property to the trusts. She alleged a “civil conspiracy to defraud” her of her right to community property and “fraud on the community.” She requested the appointment of a receiver for all the property in the trusts. She also alleged that the CSA was unenforceable and that Herblin’s failure to make the $600,000 payment after the 2002 sale was a material breach.

In Herbliris first motion for summary judgment, filed on September 11, 2006, he requested summary judgment on his claim for breach of contract seeking specific performance relief, arguing Pamela’s declaratory relief was subsumed within his breach of contract claim; Herblin also argued that Pamela had no evidence of certain specified elements of her rescission counterclaim. Pamela responded to this motion. In February 2007, the trial court sent a letter denying Herblin’s motion.

2. 271st District Court (Wise County) Litigation

In February 2007, Pamela and three of the Staleys’ children filed a Motion to Modify in Suit Affecting Parent-Child Relationship, Original Petition for Declaratory Judgment, for Damages and Other Relief in the 271st Judicial District Court in Wise County, where they resided. In addition to Thomas, who was sued “individually and in his capacity in Staley & Associates, Inc.,” this pleading also named as defendants Staley & Associates Inc. and Herblin, individually and as trustee of Heritable Trust assignee of Charis Interests. Among other allegations, the plaintiffs alleged the trusts established by Thomas were “illusory” and Thomas transferred to the trusts property in which Pamela owned an interest. The “real property” that was the subject of the pleading was the Collin County farm. Among other claims and requests for relief, the plaintiffs sought enforcement of the divorce decree and a declaratory judgment setting aside the CSA as a nullity.

3. 219th District Court (Collin County) Litigation

The 134th and the 271st Judicial District Courts transferred their respective cases to Collin County. They were eventually transferred to the 219th Judicial District Court, where they were administratively consolidated. On September 27, 2007, Thomas and Staley & Associates, Inc. (collectively, Thomas) filed a motion for summary judgment, asserting both traditional and no-evidence grounds. In part, Thomas asserted that the summary judgment evidence established as a matter of law his affirmative defenses of res judicata and statute of limitations.

On October 3, 2007, Herblin filed a second motion for summary judgment, in which he joined in and incorporated Thomas’s motion for summary judgment. Pamela filed responses to both Thomas’s motion and Herblin’s second motion.

Pamela also filed her own motion for summary judgment, to which both Thomas and Herblin responded.

Thereafter, the trial court signed a memorandum order granting in part Herb-lin’s first motion for summary judgment (which the Dallas district court judge had denied by letter ruling), finding the CSA to be “valid and enforceable.” In the memorandum order, the trial court also granted Thomas’s motion for summary judgment and Herblin’s second motion for summary judgment in part, finding the CSA enforceable, dismissing Pamela’s declaratory judgment concerning the Collin County farm, and granting summary judgment to “all of Pamela’s claims for removal of trustee, breach of fiduciary duty, common law fraud, conversion, civil conspiracy, accounting and receivership, as it relates to any claims against [the Collin County farm].” The trial court denied Pamela’s motion for summary judgment.

Subsequently, the trial court severed into a new case:

• Heritable Trust’s claim against Pamela for specific performance of the CSA, and Pamela’s counterclaim against Heritable Trust for declaratory judgment that the CSA was unenforceable;
• Pamela’s claims for declaratory judgment to set aside the CSA and request to divide the “subject property”; and
• all of Pamela’s claims for removal of trustee, breach of fiduciary duty, common law fraud, conversion, civil conspiracy, accounting and receivership “as it related to any claim against the ‘subject property’ which would include all of Pamela Staley’s claims and causes of action seeking to attack or set aside, in whole or in part, the May 29, 2002 Final Decree of Divorce.”

The new case was assigned trial court cause number 219-01011-2008 and styled “In re Pamela Staley Declaratory Judgment Action.” This is the case before us.

The trial court thereafter rendered a final judgment, dated August 4, 2008, reciting, in pertinent part:

that Heritable Trust’s motionf] for summary judgment on the declaratory judgment claims is GRANTED. The Court finds the 2002 CSA is valid and enforceable, and shall be enforced, to wit: IT IS ORDERED that Heritable Trust shall deposit into the Court’s registry within sixty (60) days of the date of this Judgment the sum of $600,000.00 plus simple interest from May 30, 2002 to June 15, 2008 in the sum of $200,000 plus simple interest from June 16, 2008 until the date of deposit at the rate of 5%.
IT IS FURTHER ORDERED that Pamela Staley shall deliver to the Court within sixty (60) days of the date of this Judgment a signed motion and proposed order to dismiss all of her pre-2002 claims against the following trusts, to wit: Charis Interests, Ecarg, Cromwell Holding Company, and Gideon Interests, and shall execute documents necessary to release all of her claims against the three acres of Carrollton property that was used as security for the $600,000.00.
IT IS FURTHER ORDERED that Thomas C. Staley’s Motion for Summary Judgment is GRANTED in part, and all claims made by Pamela Staley in which she claims any interest in or relating to the five (5) parcels of land collectively referred to as the Collin County farm consisting of approx. 123 acres of property located in Collin County, Texas and referred to as the “subject property” ... are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Heritable Trust’s October 3, 2007 and Thomas C. Staley’s September 27, 2007 (as supplemented and corrected on October 1, 2007) Motions for Summary Judgment are GRANTED in part, and all of Pamela Staley’s claims for removal of trustee, breach of fiduciary duty, common law fraud, conversion, civil conspiracy, accounting and receivership are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Pamela Staley’s October 25, 2007 Counter Motion for Summary Judgment is DENIED in its entirety.
All other relief requested in this cause is DENIED. This Order disposes of all parties and claims and constitutes the final judgment in the declaratory judgment actions relating to the enforceablilty of the 2002 CSA and the request to divide the Subject Property.

This appeal followed.

II. DISCUSSION

A. Standard of Review

We review a traditional summary judgment using the well-established standard. The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex.2005). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). When a movant asserts multiple grounds for summary judgment, and the order does not state the theory upon which the trial court based judgment, the nonmovant must show on appeal the failure of at least one element of each theory asserted. Benchmark Bank v. State Farm Lloyds, 893 S.W.2d 649, 650 (Tex.App.-Dallas 1994, no writ) (citing Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970)).

When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993); Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.Dallas 1996, writ denied). Neither party can prevail because of the other’s failure to discharge its burden. Howard, 933 S.W.2d at 216. When both parties move for summary judgment, we consider all the evidence accompanying both motions in determining whether to grant either party’s motion. Howard, 933 S.W.2d at 217; Benchmark Bank, 893 S.W.2d at 650. When the trial court grants one motion and denies the other, the reviewing court should determine all questions presented. See Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The reviewing court should render the judgment that the trial court should have rendered. Id.

Pamela presents six issues on appeal. The arguments under these six issues are somewhat complex, intertwined, and repetitive. However, collectively they complain of the trial court’s judgment: (1) finding “the 2002 CSA is valid and enforceable and shall be enforced ... (2) dismissing Pamela’s claims to “any interest in or relating to” the Collin County farm; and (3) dismissing all Pamela’s claims for “removal of trustee, breach of fiduciary duty, common law fraud, conversion, civil conspiracy, accounting and receivership.” As a matter of organization, we will address Pamela’s arguments under these dispositions.

B. Arguments Concerning the Validity and Enforceability of the CSA

The enforceability of the CSA was a subject of Herblin’s first motion for summary judgment (filed September 11, 2006, in the 134th (Dallas) District Court and transferred to Collin County), and of Pamela’s motion for summary judgment (filed October 25, 2007 in the 219th (Collin) District Court). Pertinent to the issues on appeal, Herblin argued he was entitled to specific performance of the CSA, and Pamela argued the CSA was unenforceable and Herblin breached it. Because specific performance of the CSA rests on its enforceability, we first consider Pamela’s arguments that the trial court erred by denying her motion for summary judgment on grounds it was unenforceable.

1. Applicable law

“A person interested under a ... written contract ... may have determined any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 2008). The elements of a valid and enforceable contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex.App.-Fort Worth 2004, pet. denied). The elements of a breach of contract claim are: (1) the existence of a valid contract between plaintiff and defendant; (2) the plaintiffs performance or tender of performance; (3) the defendant’s breach of the contract; and (4) the plaintiffs damage as a result of the breach. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Specific performance is not a separate cause of action, but an equitable remedy that may be awarded upon a showing of breach of contract. Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex.App.-Dallas, 2007, pet.denied). It is used as a substitute for monetary damages when such damages would not be adequate. Id. A party seeking specific performance must demonstrate that he has performed, or tendered performance of, his obligations under the contract. Id.

2. Pamela’s Motion for Summary Judgment

Pamela asserted a cause of action “to set aside the [CSA] for material breach by plaintiff, fraudulent inducement, and unen-forceability, unconscionability, and undue influence.” She moved for summary judgment on her claims, in part, on grounds that the CSA “has been materially breached and is unenforceable.” The trial court’s final judgment denied her motion.

Pamela’s fourth issue on appeal states: “The Trial Court should have granted Appellant’s Motion for Summary Judgment finding the [CSA] to be materially breached and unenforceable.” Pamela argues that, according to its terms, the CSA is effective “as of the last date of execution set forth below,” and the interest provision concerning the $600,000 payment was to begin “six months following the date of execution.” However, the summary judgment evidence shows that although the CSA is signed, it is undated. Because it is undated, Pamela argues the CSA is unenforceable.

However, the CSA was incorporated in the decree of divorce that was dated May 29, 2002. Accordingly, the provisions of the CSA conditioned on dates rest on the date of the divorce decree. See Soto v. Soto, 936 S.W.2d 338, 341 (Tex.App.-El Paso 1996, no writ) (upon approval of marital property agreement, court may incorporate it by reference in divorce decree; when so incorporated “the divorce decree becomes a consent judgment, subject to the same degree of finality and binding force as a judgment rendered in an adversary proceeding”). We reject Pamela’s arguments that an executed but undated CSA that has been incorporated into a dated, signed final judgment is nevertheless unenforceable for lack of a date of execution. '

Pamela also argues the CSA is unenforceable because the “Execution of other Documents” provision does not specify the nature of the documents, a time certain for her to execute such documents, and the “reasonableness of such requests is certainly a fact issue.” She also argues the CSA is unenforceable because the “Payment” and “Conditions” provisions were contradictory and conflicting. However, these arguments do not concern the elements of an enforceable contract or breach of contract. See Hubbard, 138 S.W.3d at 481; Frost Nat’l Bank, 29 S.W.3d at 593. Further, Pamela agreed at the divorce prove-up that the CSA “contains the terms and conditions of [her] agreement in connection with settling [her] claims against the trust, the third-party defendants in this case.” Pamela produced no summary evidence that she did not agree to the terms and conditions of the CSA.

Pamela also argues the CSA is unenforceable because of the formation of Heritable and Allodial. She argues the payment of the $600,000 was “impossible” because of the formation of these entities. Pamela refers to certain documents presented to the trial court by Thomas’s attorney for in camera review. However, Pamela’s motion for summary judgment did not present this argument; thus we will not consider it as grounds for reversing the trial court’s judgment denying her motion. See Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979).

Pamela also argues the CSA is unenforceable because of “undue influence” in signing the CSA, based on her allegation that counsel told her to sign the CSA because otherwise “she would get nothing.” Duress or undue influence constitute affirmative defenses that, if applicable, might negate consent. See Tex.R. Civ. P. 94. However, the burden of proving such an affirmative defense would be on Pamela. See id. The summary judgment record does not show that Pamela raised an issue of fact as to each issue of such a defense, such as to negate her consent to the terms of the CSA. See id.; Hubbard, 138 S.W.3d at 481.

In her sixth issue, Pamela argues, in part: “Had Heritable tendered the $600,000.00 (which the CSA recites is for “•personal injuries”), this would hardly represent Pamela’s share of a $17,000,000.00 estate, ending a 21 year marriage with 5 children, and is grossly unconscionable.” (Footnote omitted.) This is the totality of Pamela’s argument that the CSA is unenforceable because of “gross unconscionability.” We conclude she has waived this argument on appeal. See Tex.R.App. P. 38.1(h) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).

Finally, Pamela contends Herblin materially breached the CSA because the 2002 sale: (1) was “hidden” by Thomas and Herblin, and (2) triggered the $600,000 payment under the CSA’s “Payment” provision. The CSA clearly provides that payment would be made only after Pamela met the “Conditions” provision, and it is undisputed that she did not.

3. Herblin’s First Motion for Summary Judgment

In Herblin’s first motion, he asserted the CSA was an enforceable contract; that Herblin fully performed the CSA by paying $100,000; that Pamela breached the CSA by failing to deliver the signed motion to dismiss and agreed order; and that Pamela did not perform the conditions precedent to the $600,000 payment. He sought a judgment on his claim for breach of the CSA and request for specific performance.

The trial court denied Herblin’s first motion while the case was pending in Dallas County. After the case was transferred to Collin County and Herblin’s claim was severed into the current case, the trial court rendered a final judgment (as set out above) granting Herblin’s first motion for summary judgment, declaring the CSA valid and enforceable, and ordering the parties to take certain actions pursuant to the CSA.

Pamela’s first issue on appeal states: “The Trial Court should not have granted Summary Judgment for Herblin and Heritable on issues not specifically pled in the Summary Judgment Motion before the Court, which was filed October 3, 2007.” She asserts that Herblin’s first motion was based on limitations grounds and that the motion “does not even address the enforceability of the CSA.”

Pamela is incorrect. As stated previously, Herblin’s first motion asserted that Pamela breached the CSA and that he was entitled to specific performance of that agreement. Herblin’s second motion joined and incorporated Thomas’s motion for summary judgment as to Pamela’s trust-related claims against him. To the extent necessary, we will address Pamela’s arguments as to the second motion in connection with those claims. However, her argument is unavailing as to the final judgment ordering specific performance of the CSA.

Under her first issue, Pamela also argues Herblin’s first motion for summary judgment was denied by the judge of the 134th Judicial District Court (Dallas County) before the case was transferred to Collin County, and thus the trial court in Collin County erred in granting that motion. However, an order denying a motion for summary judgment is an interlocutory ruling that may be changed or modified until a final judgment is rendered; a previously denied motion for judgment may be granted without further motion or prior notice to the parties. See Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 556, (Tex.App.-Amarillo 2004, pet. denied). We reject Pamela’s argument to the contrary.

C. Arguments Concerning Pamela’s Claims to Interest in the Collin County Farm

In her Motion to Modify, filed in Wise County, Pamela asserted she and Thomas used community funds to buy the Collin County farm and requested it be partitioned. After the Wise County suit was transferred to Collin County, Thomas filed a motion for summary judgment “addressing all claims and causes of action pending against them [that is, Thomas and Staley & Associates, Inc.] in this action.” Thomas’s traditional motion for summary judgment asserted, inter alia, that Pamela’s claims sought to re-litigate the terms of the 2002 divorce decree, and were barred by res judicata based on that decree. The trial court granted Thomas’s motion without stating the grounds on which it was ruling.

1. Applicable law

An affirmative defense, such as res judicata, is one of confession and avoidance. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996). An affirmative defense does not seek to defend by merely denying the plaintiffs claims, but rather seeks to establish an independent reason why the plaintiff should not recover. Id. Res judicata applies to a final divorce decree to the same extent that it applies to any other final judgment. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.1990). If an appeal is not timely perfected from the divorce decree, res judicata bars a subsequent collateral attack. Id. Res judicata applies even if the divorce decree improperly divided the property. Id.

Res judicata bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). For res judicata to apply, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.2008).

2. Discussion

In support of his motion, Thomas submitted the following evidence: his affidavit stating that he and Pamela were married in 1980, and that they established “a series of trusts” in 1998 and 1994 and transferred real estate they owned to these trusts; Pamela’s handwritten notes from the 1994 divorce that the Collin County farm was placed in Egarg Interests, one of these trusts; and the final decree of divorce in the 254th Judicial District Court stating that “[a]ny rights of interest in property put in the trusts formed during the marriage of the parties” was Thomas’s separate property, and “the trusts do not form part of the community estate created with and during” Pamela and Thomas’s marriage. In addition, the summary judgment evidence shows that as of May 29, 2002, Charis Interests was the owner of all property previously held by the trusts, and that Heritable was Charis Interests’s assignee as to any interest it had in the property.

We conclude Thomas proved the elements of his affirmative defense of res judicata on the Collin County farm claim. See Igal, 250 S.W.3d at 86; Barr, 887 S.W.2d at 628. Accordingly, the burden of proof shifted to Pamela to present to the trial court any issues precluding summary judgment in Thomas’s favor on this affirmative defense. See City of Houston, 589 S.W.2d at 678.

In her response to Thomas’s motion, Pamela argued that the divorce decree was interlocutory. Under her sixth issue, Pamela argues that res judicata “does not apply to an interlocutory order” and that the order is interlocutory because a motion to dismiss must still be signed and she has been asked to sign deeds to property that she contends had been purchased with community funds.

However, the divorce decree meets the standard of a final judgment. See, e.g., Brines v. McIlhaney, 596 S.W.2d 519, 522-23 (Tex.1980) (orig. proceeding) (discussing final divorce decree). Pamela cites no authority that any actions to effect the property division render the divorce decree interlocutory. We reject Pamela’s argument to the contrary.

Under her third issue, Pamela also argues, inter alia, that the trial court should not have granted Thomas’s motion for summary judgment. She asserts Thomas’s summary judgment proof is “not relevant to any issues before the Court.” However, she does not argue that the trial court erred in not granting her objections to such evidence on relevancy grounds. In fact, Pamela’s brief states that all of the parties failed to obtain rulings on objections and special exceptions to the summary judgment evidence, and thus waived them. Accordingly, we need not consider this argument.

Because Thomas conclusively proved his affirmative defense of res judicata, the burden shifted to Pamela to raise an issue of fact precluding summary judgment on that ground. Because Pamela failed to meet this burden, we conclude the trial court did not err in granting Thomas’s motion for summary judgment directed to Pamela’s claims relating to the Collin County farm. See City of Houston, 589 S.W.2d at 678 (movant may obtain summary judgment by pleading and conclusively establishing each element of affirmative defense, shifting burden to nonmovant to present evidence sufficient to raise fact issue); Benchmark Bank, 893 S.W.2d at 650 (when movant asserts multiple grounds for summary judgment, and order does not state theory upon which trial court based judgment, nonmovant must show on appeal failure of at least one element of each theory asserted).

Pamela also makes two other arguments directed to the Collin County farm under her second issue. First, she contends the trial court should not have modified and altered the terms and conditions of the CSA and should not have supplied property descriptions. She argues specifically that the trial court erred in adding the description of the Collin County farm because neither the CSA nor the divorce decree contains any property description. However, the record shows that Pamela claimed the Collin County farm was community property and had not been partitioned in the divorce. The record includes the description of the Collin County farm. We conclude the eom-plained-of description was necessary to carry the trial court’s final judgment in this case into execution concerning the declaratory judgment and specific performance issues. See Schwartz v. Jefferson, 520 S.W.2d 881, 888 (Tex.1975) (orig. proceeding) (trial court has authority to make orders necessary to carry judgment into execution in manner consistent with provisions and finality of judgment).

Second, Pamela argues she seeks to partition undivided community real property. However, it is undisputed that Charis Interests held the Collin County farm at the time of the divorce and that the divorce decree awarded Thomas “[a]ny rights of interest in property put in the trusts formed during the marriage of the parties” and the “trusts do not form part of the community estate created with and during” Thomas and Pamela’s marriage. According, the. divorce decree clearly shows the Collin County farm is not undivided community real property subject to post-divorce partition.

D. Arguments Regarding Pamela’s Other Trust-Related Claims

In her Motion to Modify, filed in Wise County, Pamela asserted claims for: the removal of trustees; breach of fiduciary duty; common law fraud; conversion; civil conspiracy; an accounting; and the appointment of a receiver. These trust-related claims rested on her allegations that the trusts Thomas established were fictitious entities and Thomas’s “alter egos,” and that he fraudulently transferred community property to these entities.

1. Thomas’s Motion for Summary Judgment

We noted above that Thomas moved for summary judgment on grounds, among others, that he was entitled to summary judgment on all Pamela’s claims because they were barred by res judicata. We have concluded above that Thomas proved that affirmative defense as to Pamela’s claim for partition of the Collin County farm. Likewise, Thomas’s evidence shows that, in the 1999 divorce, Pamela joined as parties the trustees of the trusts formed during the marriage and alleged fraud and conversion based on Thomas’s transfer of community property to the trusts, conclusively establishing that the same trust-related claims either were raised or could have been raised in the 1999 divorce. See Igal, 250 S.W.3d at 86; Barr, 837 S.W.2d at 628.

Under her fifth issue, Pamela asserts the trial court should not have granted Thomas’s motion for summary judgment dismissing her claims for “fraud, civil conspiracy, partitioning undivided real property and damages.” As she argued in connection with the Collin County farm, Pamela argues that res judicata “does not apply to an interlocutory order.”

We rejected those arguments previously in connection with her claims involving the Collin County farm. Thus, we conclude that Thomas proved his affirmative defense of res judicata to these trust-related claims, and that Pamela failed to meet her burden to present to the trial court any issues that would preclude summary judgment in Thomas’s favor on this ground. See City of Houston, 589 S.W.2d at 678; Benchmark Bank, 893 S.W.2d at 650. We conclude the trial court did not err in granting Thomas’s summary judgment in his favor on these trust-related claims on grounds of res judicata.

2. Herblin’s Second Motion for Summary Judgment

In his second motion for summary judgment, Herblin “join[ed] in, and incorporate[d] by reference in its entirety” Thomas’s motion for summary judgment. Therefore, we reach the same conclusion concerning Herblin’s second motion for summary judgment that we did as to Thomas’s motion, that is, that the trial court did not err in granting summary judgment on the trust-related claims on res judicata grounds.

III. CONCLUSION

As set forth above, we have reviewed and rejected, or determined we need not address, Pamela’s arguments complaining of the trial court’s final judgment. To the extent Pamela contends her brief has raised any other arguments, we conclude that they are waived. See Tex.R.App. P. 38.1(f) (“The brief must state concisely all the issues or points presented for review.”); (h) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Accordingly, we resolve Pamela’s six issues against her. We affirm the trial court’s final judgment in its entirety.

      . It is undisputed that, as of the May 29, 2002 divorce decree, the Collin County farm as well as all the remaining real property owned by the other Staley trusts was held by Charis Interests.

      . We construe the judgment’s references to "Heritable Trust's” motions to refer to the motions filed by Herblin, its trustee. See, e.g., Ray Malooly Trust v. Juki, 186 S.W.3d 568, 570 (Tex.2006) (per curiam) (noting a trust is not a separate legal entity and stating general rule that "suits against a trust must be brought against its legal representative, the trustee”).

      . Additionally, if a motion for summary judgment presents both no-evidence and traditional grounds as to the same challenged element, we first review the propriety of the summary judgment under the rule 166a(i) no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004) (“If the plaintiffs fail to produce more than a scintilla of evidence under that [rule 166a(i)] burden, then there is no need to analyze whether [the defendant’s] proof satisfied the Rule 166a(c) burden.”).
      However, our review of Thomas's motion for summary judgment (in which Herblin joined), shows that his “no-evidence” grounds related to his argument that there was no evidence that the decree overlooked any particular property, and thus, pursuant to sections 9.203 and 9.007 of the family code, a court cannot disturb or change the property division in a divorce decree. Whether or not this is a proper subject for a no-evidence motion, see Kelly v. Brown, 260 S.W.3d 212, 216 (Tex.App.-Dallas 2008, pet. denied) (“A party cannot file a no-evidence motion for summary judgment based on a matter, such as an affirmative defense, on which it has the burden of proof.”), our conclusions set forth herein make it unnecessary to address this subject on either no-evidence or traditional grounds. See TexR.App. P. 47.1. Thus, we do not recount the standard of review applicable to no-evidence summary judgments.

      . The summary judgment record includes the CSA, the divorce decree, and the reporter’s record for the hearing at which the CSA was discussed in light of a final divorce decree, pending resolution of issues concerning the children. The summary judgment evidence shows that Pamela signed the CSA. In the prove-up hearing for the divorce on April 25, 2002, Pamela responded “Yes” when her counsel asked: "Mrs. Staley, is it your agreement that the trust settlement agreement contains the terms and conditions of your agreement in connection with settling your claims against the trust, the third-party defendants in this case?” In the divorce decree, the trial court stated, "The Court decrees and approves the [CSA] entered into between [Pamela and others and the trustees and others]. Same attached as Exhibit B.” It is undisputed that Pamela received the $100,000 payment pursuant to the CSA, but did not deliver a joint motion to dismiss with prejudice and an agreed order of dismissal per the terms of the CSA.

      . In her second issue, Pamela also contends the trial court should not have modified and altered the terms and conditions of the CSA and should not have supplied property descriptions. We address that issue in the context of Pamela's complaints about the trial court's rulings concerning the Collin County farm.

      . Pamela’s response to the motion for summary judgment also argued that res judicata was inapplicable because the parties to the prior litigation, or those in privity with them, were not the same because the present suit included new parties (Heritable Trust, Herb-lin, Allodial, and Charis Interests). However, Pamela does not present a "new party" or "privity" argument on appeal.

      . We need not address Pamela’s arguments regarding the affirmative defense of the statute of limitations raised in Thomas's motion for summary judgment.

      . Pamela did not object to Herblin's motion on grounds that it incorporated Thomas’s motion, nor does she make such an argument on appeal.

      . We need not address Pamela’s arguments under her second issue concerning her claims for “abuse of process” and interference with contractual relations because those claims were not included in the severance order. We need not address Pamela’s arguments in her fourth issue concerning the formation and actions of the trusts after the divorce decree because the severance order shows these claims were not included in the new cause. Pamela did not address any issue or argument to the severance order.


source: Caselaw Access Project

author: BILL MEIER, Justice.

license: Public Domain

text:
    Christopher O’DELL and Arlington Steakhouse, Inc., Appellants, v. Rebecca WRIGHT, Appellee.
    No. 2-09-062-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 5, 2010.
    Rehearing Overruled Aug. 26, 2010.

      Law Office of Wes Dauphinot, P.C., and Wes Dauphinot, Arlington, TX, for Appellants.
    Law Offices of Paul Francis, and Paul Francis, Arlington, TX, for Appellee.
    PANEL: LIVINGSTON, C.J.; McCOY and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I. Introduction

Appellee Rebecca Wright (“Wright”) sued Appellants Christopher O’Dell and Arlington Steakhouse, Inc. (“O’Dell”) for sexual harassment, assault and battery, and constructive discharge. A jury found in favor of Wright, awarding a total of $425,000 in past mental anguish damages based on its findings of sexual harassment and assault. In four issues, O’Dell argues that the trial court erred by not allowing O’Dell to call a witness; that the trial court erred by allowing Wright to testify about being abducted and sexually assaulted when she was five years old; that the trial court erred by not applying a statutory cap to the sexual harassment damages; and that the evidence is legally and factually insufficient to support both the jury’s mental anguish finding and the amount of damages awarded. We will affirm.

II. Background

Wright worked as a waitress at Arlington Steakhouse, a restaurant in Arlington, Texas, from July 2004 to October 2004. By all accounts, after O’Dell had verbally reprimanded Wright for serving a dessert not available on the menu to a long-time customer of the restaurant, Wright quit and walked out. Shortly thereafter, Wright filed a complaint against O’Dell with the Texas Workforce Commission— alleging sexual harassment. After receiving a right-to-sue notice, Wright filed this present lawsuit.

According to Wright’s testimony at trial, O’Dell — Wright’s supervisor and a stockholder in Arlington Steakhouse — made numerous lewd and sexually suggestive comments to her, touched her multiple times in a sexually offensive way, and created a sexually harassing environment for her and other female waitstaff at the restaurant. Wright said that on one occasion, as she was taking a break, O’Dell stuck his finger down the back of her pants. On another occasion, O’Dell took his finger and “stuck it down [the front of her] shirt.” Wright said that both times she told O’Dell not to do such things, but he “smirked and walked off.” Wright alleged that O’Dell had also once stuck his tongue in her ear as she was entering orders in the restaurant’s computer. Wright said that O’Dell also brushed his body up next to hers, so much so that she could feel his “private part” pressed against her body. Wright testified that these events made her feel “[v]ery gross, very dirty,” and “very angry.” Wright said that each time O’Dell would do these types of things, she told him to stop.

Wright also testified to a number of comments O’Dell made to her during her employment at the restaurant. Wright said that at the end of her shift, she would report to O’Dell so that he could make sure her stations were in order. Wright said that O’Dell would frequently look her “up and down” and make sexually-connoting comments like, “[L]ooks good to me.” She said that he would also make comments about how her bottom looked good in her pants, how she smelled good, or that her breasts looked good in certain shirts. Wright said that O’Dell also made even more advancing comments. She said that O’Dell once propositioned her to go upstairs and perform oral sex for $20. On another occasion, O’Dell allegedly spoke about how his fingers were “double jointed” and asked Wright to “imagine what I can do.” Wright said that O’Dell’s comments were clearly sexual in nature. He allegedly also propositioned Wright to have a “threesome” with O’Dell and his wife and once invited Wright over for a nude swim in his pool. Wright said that O’Dell’s alleged conduct was typical of him and that he had done these types of things to other waitresses. Wright’s attorney introduced a portion of a petition by one of Wright’s co-workers who had also filed a similar suit against O’Dell.

Wright testified that O’Dell would also degrade her by calling her a “F — ing whore, F — ing bitch, stupid waitress, [and] stupid whore.” Wright said that all of these comments and conduct by O’Dell made her feel “very low ... just violated.” Wright said that she did not quit when these events occurred because she needed the job, was intimidated by O’Dell because he was her superior, and wondered if others would believe her account of these events. She also said that she felt “helpless” to leave and that somehow maybe she “deserved” what she was being exposed to.

During direct examination, Wright’s attorney asked her if she had ever in the past felt similar feelings that others would not believe her. As Wright began to answer, the following colloquy took place:

[Wright’s attorney]: Have you ever felt like that before?
[Wright]: Yeah.
[Wright’s attorney]: Would you tell the jury about it?
[Wright]: When I was 5 years old I was outside my mother’s—
[O’Dell’s attorney]: Objection, Your Honor. Relevance on this case.
[Trial Judge]: Approach the bench, please.
(Bench conference without court reporter.)
[Wright’s attorney]: I’m sorry about the interruption. Would you just tell us what happened, briefly?
[Wright]: When I was 5 years old, I was riding my bicycle out in front of my mother’s apartment. I was supposed to have a babysitter watching me.
[Wright’s attorney]: Slow down. You’re talking very fast. I don’t want you to have to do it twice.
[Wright]: When I was 5 years old, I was riding my bike in front of my mother’s apartment. My babysitter was supposed to be watching me, and she wasn’t. A guy in a truck pulled up and asked me if I had ever seen a dog. I stopped my bike and answered him. And at that time he grabbed me and threw me in his truck and made me lay down, and drove me to some apartments about an hour away. And there was this field across from the apartment (Crying), and made me perform oral sex on him. And then he pulled my shirt over my head and he left. And I had to walk across the apartments and find somebody to help me.
[Wright’s attorney]: And that was when you were five?
[Wright]: Yes.
[Wright’s attorney]: Was that your first bad experience with a male?
[Wright]: Yes.

O’Dell’s attorney made no further objections to this testimony, other than the one preceding the bench conference; and later, during cross-examination, he exchanged in the following colloquy with Wright about the same matter:

[O’Dell’s attorney]: Sure. And — now, you came up with — I understand three days ago you told your attorneys about being abducted when you were five years old?
[Wright]: Yes.
[O’Dell’s attorney]: And certainly if that occurred, I think everybody in this room would be sympathetic to you. But obviously when something pops up just before the day of trial that’s that important, I have to question it. Is there any reason why you didn’t bring it to your attorneys’ attention earlier?
[Wright]: It’s just something that I needed to talk about.
[O’Dell’s attorney]: Were there any witnesses to that event? Are there any witnesses to ... you being abducted?
[Wright]: No.
[O’Dell’s attorney]: Any police reports you have?
[Wright]: No.
[O’Dell’s attorney]: Were the police even called?
[Wright]: Yes. There may be a police report.
[O’Dell’s attorney]: Do you have it?
[Wright]: No.
[O’Dell’s attorney]: Have you ever actually seen it?
[Wright]: No.

Wright also testified extensively as to how O’Dell’s alleged actions affected her. In addition to saying that O’Dell’s actions made her feel “degraded ... violated ... low” and distrustful of working for others, she said that she had trouble forgetting what had occurred. She said that after the events, she has since interviewed for jobs and wonders whether her potential new bosses will treat her the same.

Wright said that she has nightmares regarding the events. Not only does she dream about the actual events, but she also has dreams where she is running from O’Dell. She testified that she once had a dream where she dreamed “for six hours” that she was trying to save O’Dell from drowning.

According to Wright, she has “a tendency to clinch [her] jaw” due to the anxiety that these events caused her. She said that she often holds her breath when she talks about O’Dell or anything that “deal[s] with him.” She experiences episodes of being nauseated and feels the need to vomit. Her body stiffens, her heart races, and she suffers from the “shakes.” Oftentimes, because of what she suffered, she feels almost paralyzed and her blood pressure rises. She said that she cannot control when she thinks about O’Dell and that she cannot control when these side effects occur.

Wright also explained how the trial was very stressful to her and that when she had to see O’Dell in the courtroom it made her feel dirty, angry, powerless, disgusted, and scared. Wright said that she started experiencing side effects the day after she quit, that they continued even up to and through trial, and that she did not have these side effects prior to her employment at the restaurant. Wright admitted that there were other stressful things in her life, including the death of her husband (whom she was separated from at the time) in a motorcycle accident a few months after she quit the restaurant. She also admitted that she had never received medical attention nor prescription drugs to help deal with the symptoms she testified to.

Wright also called O’Dell to testify. O’Dell testified that he possessed a general understanding regarding the laws pertaining to sexual harassment but that he did not have a specific policy in place at the restaurant. He said that in the event that anyone had a specific complaint, they were to report to him, his wife, or the assistant manager. O’Dell generally denied Wright’s accusations. He testified that it would have been impossible for him to stick his finger down Wright’s blouse because of the aprons that he required the waitstaff wear at the restaurant. He also said that it would have been very difficult to stick his finger in the back of Wright’s pants when she was taking a break, without being seen, due to where she would have been seated during breaks. O’Dell admitted that he would lose his patience and that he would use pejorative terms sometimes, and he at first denied ever calling Wright the names that she alleged he had called her but later agreed he had called her a “bitch.” He also admitted that another waitress had brought a similar suit, alleging complaints similar to those alleged by Wright, and that he had settled that suit as “a business decision.” In this suit, O’Dell brought his own counterclaim for defamation against Wright.

The jury returned a verdict in favor of Wright. Specifically, the jury found that O’Dell assaulted Wright, that Wright had been constructively discharged from her employment, and that Wright was subjected to harassment based on sex. The jury found that Wright had not defamed O’Dell. The jury awarded past mental anguish damages on both the assault and sexual harassment claims. The jury did not award any future mental anguish damages. The trial court entered judgment on the jury’s verdict. This appeal followed.

III. Discussion

A. The trial court’s denying Martinez’s testimony

In his first issue, O’Dell argues that the trial court erred by not allowing him to call a witness — Amanda Martinez— to testify. Wright counters that O’Dell failed to identify Martinez as a witness with knowledge of material facts on his responses to Wright’s discovery requests and admitted that this failure was due to inadvertence; thus, the trial court did not abuse its discretion by not allowing Martinez to testify. We agree with Wright.

A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, unless the court finds that (1) there was good cause for the failure to timely disclose or (2) the failure will not unfairly surprise or prejudice the other parties. Tex.R. Civ. P. 193.6(a). The purposes of this rule are to promote responsible assessment of settlement and prevent trial by ambush. Tex. Mun. League Intergov’tal Risk Pool v. Burns, 209 S.W.3d 806, 817 (Tex.App.-Fort Worth 2006, no pet.); see also Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 913-14 (Tex.1992). (op. on reh’g) (applying predecessor rule 215(5)). The party seeking to offer the evidence at issue has the burden to establish good cause or lack of unfair surprise or prejudice. Tex.R. Civ. P. 193.6(b). The trial court has discretion to determine whether the offering party has met its burden; however, a finding of good cause or the lack of unfair surprise or unfair prejudice must be supported by the record. Burns, 209 S.W.3d at 817. Inadvertence alone will not constitute good cause for the failure to timely make, amend, or supplement a discovery response. See Alvarado, 830 S.W.2d at 915 (“If inadvertence of counsel, by itself, were good cause, the exception would swallow up the rule, for there would be few cases in which counsel would admit to making a deliberate decision not to comply with the discovery rules.”).

In this case, according to O’Dell’s offer of proof, O’Dell intended to ask Martinez about three things: (1) that O’Dell would not have allowed Wright to wear the apron she contends she wore while working at the steakhouse; (2) that, contrary to Wright’s allegations, Martinez was never sexually harassed by O’Dell; and (3) that Martinez overheard Wright say that she would lie to get more money in this suit.

During the offer-of-proof hearing, O’Dell admitted that he knew for months about Martinez’s expected testimony regarding which apron Wright would have worn and Martinez’s expected denial that O’Dell made unwanted advances toward her. When questioned by the trial judge, O’Dell admitted that Martinez was his employee; that he had known about her for months; and that, despite having procured an affidavit from Martinez, her affidavit was never delivered to Wright. According to O’Dell, his failure to update disclosure including Martinez as a witness was “by mere oversight.”

Furthermore, O’Dell admitted that he had intended to put on Martinez’s alleged expected testimony regarding Wright’s having said she would lie to prove his counterclaim for defamation against Wright and that the information was indeed a surprise to both parties. We conclude that the trial court did not abuse its discretion by finding that O’Dell failed to establish his burden that there was good cause for the failure to timely disclose Martinez or prove that his failure to disclose her as a witness would not have surprised or prejudiced Wright. See Tex.R. Civ. P. 193.6(a). We overrule O’Dell’s first issue.

B. Wright’s testimony regarding her childhood abduction

In his second issue, O’Dell argues that the trial court erred by allowing Wright to testify about being abducted and sexually assaulted when she was five years old. O’Dell argues that he objected to this testimony at trial and that the trial court implicitly overruled his objection; thus, he is entitled to raise the issue on appeal. Wright argues that O’Dell never obtained an explicit ruling on his relevance objection; thus, he has not preserved this potential error for review. Furthermore, Wright argues that O’Dell never raised a separate objection to the testimony at issue based upon the rule providing for exclusion of relevant evidence if its probative value was substantially outweighed by danger of unfair prejudice; thus, Wright argues, to the extent that O’Dell now argues that this testimony was prejudicial, he also failed to preserve that argument for our review. Tex.R. Evid. 403.

To the extent O’Dell is arguing on appeal that Wright’s testimony was prejudicial, he has failed to preserve this complaint for our review because he objected at trial only that this testimony was irrelevant and not that its probative value was outweighed by its prejudicial value. Id. Thus, O’Dell’s argument that this testimony was introduced solely to “manipulate the jury with sympathy” does not comport with his objection below and is waived. See Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 897-98 (Tex.App.-Fort Worth 1998, no pet.) (holding appellant faded to preserve error as to relevancy by objecting to an expert’s qualifications).

To the extent, however, that O’Dell is arguing on appeal that the testimony in question is irrelevant, it is not readily ascertainable that the trial court implicitly ruled on O’Dell’s relevancy objection. See Tex.R.App. P. 33.1(a)(2)(A) (stating that in order to preserve an error for appeal, the trial court must have ruled on a party’s objection “either expressly or implicitly”). In this case, as Wright began to answer questions about what had happened to her as a child, O’Dell objected — citing relevance. The trial judge immediately called both parties’ attorneys to the bench and held a conference off the record. After-wards, without giving a ruling — and without any other objections being raised— Wright continued to testify regarding this same subject. This court cannot conclude that this is the type of implicit ruling contemplated by rule 33.1, and we can find no authority to suggest that an implied ruling can be found under the facts of this case. Compare Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.-Fort Worth 1998, no pet.) (holding that trial court implicitly overruled plaintiffs objections to defendant’s summary judgment proof when it granted defendant’s motion for summary judgment), with Dolcefino v. Randolph, 19 S.W.3d 906, 926-27 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding no implicit ruling could be ascertained from the record). Furthermore, O’Dell never requested a running objection regarding Wright’s testimony and in fact later questioned Wright about the same evidence; thus, the general rule that error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection would apply, and O’Dell has waived his objection to this testimony. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.2004) (citing Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984)); City of Houston v. Riggins, 568 S.W.2d 188, 190 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r.e.).

Additionally, even assuming this potential error was preserved, we conclude that the trial court did not abuse its discretion by allowing Wright to testify to these matters. Evidentiary rulings are committed to the trial court’s sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). Generally, evidence will be deemed to be relevant if it tends to prove or disprove any fact in issue. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex.2000). In this case, one of the issues debated between the parties was why Wright did not leave the restaurant after the first encounters that she found sexually harassing. Another issue was the extent of mental anguish that Wright had suffered because of O’Dell’s alleged offensive touching and sexual harassment. Wright testified that her fear of speaking out about what had occurred and the degree to which these events impacted her were shaped by what had happened to her when she was five years old. Given these issues, and focusing only on whether this testimony was relevant, we cannot conclude that the trial court acted arbitrarily or unreasonably by allowing Wright to testify over O’Dell’s relevance objection. We overrule O’Dell’s second issue.

C. Evidence supporting mental anguish damages

In his third and part of his fourth issues, O’Dell challenges the legal and factual sufficiency of the evidence supporting the mental anguish awards. The jury awarded Wright $175,000 in mental anguish damages based on the jury’s finding of assault and $250,000 in mental anguish damages based on the jury’s finding of sexual harassment. In these issues, O’Dell attacks both the sufficiency of the evidence supporting the mental anguish finding and that the awards are unfair and unreasonable compensation.

An award of mental anguish damages will survive a legal sufficiency challenge when the plaintiff has introduced direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption in her daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). We apply traditional no-evidence standards to determine whether the record reveals any evidence of “ ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger’ to support any award of damages.” Id. (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex.App.-Houston [1st Dist.] 1990, no writ)). Direct evidence may be in the form of the parties’ own testimony, that of third parties, or that of experts. Parkway, 901 S.W.2d at 444. The evidence also must justify the amount awarded. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). Although the impossibility of any exact valuation requires that juries be given a measure of discretion in finding damages, that discretion is limited. Id. A jury must find an amount that would fairly and reasonably compensate for the loss; however, juries cannot simply “pick a number and put it in the blank.” Id.

Here, Wright testified that on many occasions she had experienced anxiety, which included clinching her jaw, holding her breath, and the sensation of feeling stiff and unable to move: “I just stand still, like I’m stuck, I’m rooted. Like almost — it’s like almost paralyzing.” She said that she also experienced feelings of being nauseated and had episodes where her heart raced and her blood pressure rose. Wright testified that she experienced “shakefs].” According to Wright, she had nightmares, including dreams where she was running from O’Dell or saving him from drowning. Wright said that these symptoms began “the next day” after quitting when she discussed the events with her mother and that these side effects continued throughout the nearly four-year period leading up to trial. Wright further testified that retelling these events in preparation for trial made her feel “dirty,” “angry,” “disgusted,” and “powerless.” Wright said that when she recalls what transpired, it is as though she is experiencing the events “all over again.” We conclude and hold that Wright presented legally and factually sufficient evidence of compensable mental anguish both to the assault and to the sexual harassment claims. But our inquiry does not end there because Wright also must have presented evidence to justify the amount awarded. Saenz, 925 S.W.2d at 614.

In Saenz, our supreme court held that there must be evidence that the amount of damages awarded by the jury for mental anguish was fair and reasonable but acknowledged that such determination is often difficult:

There must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding. Reasonable compensation is no easier to determine than reasonable behavior — often it may be harder — but the law requires factfinders to determine both. And the law requires appellate courts to conduct a meaningful evidentiary review of those determinations. Id.

In Bentley v. Bunton, our supreme court reviewed a mental anguish award of $7 million, holding that it was excessive and without support in the evidence. 94 S.W.3d 561, 607 (Tex.2002). With regard to appellate review for evidentiary support of noneconomic damages, the Court wrote:

Just as a jury’s prerogative of assessing the credibility of evidence does not authorize it to find liability when there is no supporting evidence or no liability in the face of unimpeachable evidence, so a large amount of mental anguish damages cannot survive appellate review if there is no evidence to support it, or a small amount of damages when the evidence of larger damages is conclusive. The jury is bound by the evidence in awarding damages, just as it is bound by the law.

Id. at 606. Citing Saenz, the Bentley court “rejected the view that [the authority for appellate review of insufficient evidence] displaces [an appellate court’s] obligation ... to determine whether there is any evidence at all of the amount of damages determined by the jury.” Id. Recognizing that reasonable compensation is not easy to determine, we conclude that there is sufficient evidence in the record to support the amount of the jury’s awards for mental anguish and that the amounts awarded are fair and reasonable.

The jury heard testimony from Wright as to the disruption in her life and the personal toll taken by the events surrounding the assault and sexual harassment. Moreover, the jury was asked to consider an award for Wright’s future mental anguish, but it awarded no damages to her on this issue. See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 415 (Tex.App.-Houston [14th Dist.] 2001, judgm’t vacated w.r.m.) (reasoning that an award of some damages and not others indicates that jury “measured carefully” damages issue). From this record, it is certain that the jury did much more than “simply pick a number and put it in the blank.” See Saenz, 925 S.W.2d at 614. We conclude and hold that the jury’s awards for the assault and for the sexual harassment were fair and reasonable. We overrule O’Dell’s entire third and this portion of his fourth issues.

D. Texas Labor Code Section 21.2585’s statutory cap

In the remainder of his fourth issue, O’Dell argues that the trial court erred by entering judgment based on the jury’s finding of an award in excess of Texas Labor Code Section 21.2585’s statutory cap. See Tex. Lab.Code Ann. § 21.2585(d) (Vernon 2006). The labor code sets the maximum damages allowable, both compensatory and punitive, dependent on the number of employees of the defendant. See id. The damages awarded to Wright totaled $250,000 on the sexual harassment claim. An award of this amount would require the defendant to employ at least 500 persons. See id. O’Dell argues that because his steakhouse employed fewer than 100 employees, the mental anguish damages for Wright’s sexual harassment claim should have been capped at $50,000. Id.

In this case, O’Dell admits that he never pleaded the damages cap. As a general rule, where maximum damages are provided in statutes in Texas, and a defendant wants to rely on the cap, it is considered a defense that must be pleaded and proved. Tex.R. Civ. P. 94; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97, 904-905 (Tex.2000); see, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 74.301 (Vernon 2005) (capping damages against health care providers); Tex. Civ. Prac. & Rem.Code Ann. § 41.008 (Vernon 2005) (capping punitive damages). We hold that it was incumbent on O’Dell, if seeking to avail himself of the protection of the damage cap, to both plead and prove the defense. See Shoreline, Inc. v. Hisel, 115 S.W.3d 21, 25 (Tex.App.-Corpus Christi 2003, pet. denied) (holding that statutory cap found in Texas Labor Code section 21.2585 is an affirmative defense that must be pleaded and proved). Because O’Dell never pleaded the damages cap, we overrule the remainder of O’Dell’s fourth issue.

IV. Conclusion

Having overruled all four of O’Dell’s issues, we affirm the trial court’s judgment.

LIVINGSTON, C.J. concurs without opinion.

      . In Saenz, our supreme court concluded that there was no evidence to support the jury’s $250,000 award for mental anguish damages, considering that the only evidence found in the record was one question and one answer, which indicated that Saenz worried and that she believed she and her husband might lose their home and that they could not afford the medical bills. 925 S.W.2d at 614.


author: Chief Justice MORRISS.

text:
    Gianna DRIVER, Appellant, v. James G. CONLEY, Sr., Appellee.
    No. 06-10-00004-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 27, 2010.
    Decided Aug. 11, 2010.

      Stan 0. Springerley, Longview, for Appellant.
    James G. Conley, Sr., Huntsville, pro se.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

James G. Conley, Sr., has previously been convicted of, and is serving time for, sexual assaults against Gianna Driver. For those torts, Driver obtained a civil money judgment against Conley. As part of Driver’s efforts to collect that judgment, she appeals from the denial of her request for a turnover order on a house and lot that Conley claims as his homestead. Driver argues that “someone who intentionally commits criminal acts of sexual assault within a home against a minor child may [not] be entitled to claim continuing homestead exemption” since “imprisonment in a new residence” should be deemed abandonment of homestead. Because we hold that Conley's imprisonment for his crimes does not constitute abandonment of his homestead, we affirm the trial court’s denial of Driver’s request for a turnover order concerning the house and lot in question.

“Homestead rights have historically enjoyed great protection in our jurisprudence.” Florey v. Estate of McConnell, 212 S.W.3d 439, 443 (Tex.App.-Austin 2006, pet. denied) (prisoner who murdered his wife was entitled to claim homestead exemption). Our Texas Constitution provides that “[t]he homestead of ... a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts” not specifically enumerated within. Tex. Const. art. XVI, § 50. Homestead rights are liberally construed to prevent citizens from losing their homes. Florey, 212 S.W.3d at 443. The party seeking a turnover order must prove that the property is not exempt. Hanif v. Clarksville Oil & Gas Co., No. 06-09-00110-CV, 2010 WL 2105936, at *3 (Tex.App.-Texarkana May 27, 2010, no pet.) (mem.op.); see Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a)(2), (b)(1) (Vernon 2008); Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

We review the granting or denial of a turnover order for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Tanner, 274 S.W.3d at 320. A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985). A trial court’s issuance of a turnover order, even if predicated on an erroneous conclusion of law, will not be reversed for an abuse of discretion if the judgment is sustainable for any reason. Buller, 806 S.W.2d at 226. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Tanner, 274 S.W.3d at 321-22. Driver’s points of error question whether there was “some evidence” supporting the trial court’s conclusion that Conley did not “abandon his homestead Property.”

All parties agree that the property in question was the homestead of Conley at some point. “Once acquired, homestead rights are not easily lost. Property may lose its homestead character only by the claimant’s death, abandonment, or alienation.” Duran v. Henderson, 71 S.W.3d 833, 842 (Tex.App.-Texarkana 2002, pet. denied). Driver argues that Conley’s incarceration constituted an abandonment of his homestead. “Abandonment of a homestead requires both the cessation or discontinuance of use of the property as a homestead, coupled with the intent to permanently abandon the homestead.” Womack v. Redden, 846 S.W.2d 5, 7 (Tex.App.-Texarkana 1992, writ denied). Evidence relied on as establishing “abandonment of a homestead must make it undeniably clear that there has been a total abandonment with an intention not to return and claim the exemption.” Id.

Driver’s first argument is that Conley’s homestead was abandoned due to his long-term imprisonment. Driver had the burden of proving abandonment with legally and factually sufficient evidence. Florey, 212 S.W.3d at 446. Conley was married and divorced several times. The home was purchased as his separate property in 1985. He testified, “I’ve lived there ever since. I have supported it fully. I have not abandoned it or anything of that type.... I have never left my home with the intention of not going back.” Records from the appraisal district list the property as Conley’s homestead. On advice of counsel, Conley filed for bankruptcy after the civil judgment in Driver’s favor. He declared the property as his homestead in that bankruptcy. Conley’s responses to discovery establish that his books and records are still kept at his home and that his daughter lived in the home from time to time. Conley testified he planned on living in the home on his release from incarceration.

Abandonment of a homestead must be voluntary. Id. at 444 (citing King v. Harter, 70 Tex. 579, 8 S.W. 308, 309 (1888)). “An act of necessity is not a voluntary abandonment of the homestead.” R.B. Spencer Co. v. Green, 203 S.W.2d 957, 959 (Tex.Civ.App.-El Paso 1947, no writ). While Conley voluntarily committed the crime, he did not voluntarily change his residence. A homestead is not abandoned merely because a person does not occupy the home during a prison sentence. Florey, 212 S.W.3d at 447. We conclude that there was some evidence to support the trial court’s finding that Conley’s homestead was not abandoned.

Driver did not attempt to contest Conley’s claims that he considered the home as homestead and planned to return to it when released from incarceration. Instead, Driver complained that “immediate transfer of [nonexempt] property” to pay legal fees was conducted in bad faith with the design of keeping Driver from collecting on her judgment. We are unsure of how transfer of nonexempt property to pay legal fees could affect Conley’s homestead status. The trial court’s finding of fact was that nonexempt property was transferred to pay legal fees and was not conducted in bad faith. We will not disturb this finding, which has no bearing on the issue of abandonment of homestead.

Driver next argued that the filing of a “sham bankruptcy’ recommended to Conley by counsel, coupled with his assertion that he may have been married according to common law, suggested that Conley “should be stopped from making such an exemption claim.” The trial court found, based on Conley’s uncontested testimony, that bankruptcy was filed on advice of counsel and that Conley was unsure of the status of his relationship with Moncoda. Again, Driver’s contentions and the evidence presented to support them did not establish that Conley abandoned his homestead and voluntarily left without intention to return.

Because there was some evidence supporting the trial court’s denial of Driver’s motion for turnover, we overrule Driver’s remaining points of error.

We affirm the trial court’s judgment.

      . Conley was convicted of two counts of aggravated sexual assault, three counts of sexual assault, and four counts of indecency with a child. He was sentenced to thirty-five years' incarceration on both counts of aggravated sexual assault and twenty years' incarceration on all remaining counts, all to be served concurrently.

      . To try to collect on the judgment, Driver filed with the trial court a motion for turnover order asking the court to order Conley to turn over his home and lot along with other unimproved lots, all in Harrison County. While the trial court ordered turnover of the unimproved lots, it agreed with Conley that the property containing his home remained his homestead.

      . Driver also claims that Conley was improperly bench warranted to allow for his presence at the turnover hearing. We do not address the merits of that claim because that issue was waived. "As a prerequisite to presenting a complaint for appellate review, the record must show that” a “complaint was made to the trial court by a timely request, objection, or motion.” Tex.R.App. P. 33.1. "A ‘timely’ objection is one interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.” Solomon v. Steitler, 312 S.W.3d 46, 58 (Tex.App.-Texarkana 2010, no pet.). Moreover, "a party will not be allowed to complain on appeal of an action or ruling which she invited or induced.” Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex.App.-Dallas 2008, no pet.).
      At an earlier attempted hearing on the turnover motion, the question of notice to Conley was addressed. After a short discussion, the trial court suggested, "[L]et’s ... see whether or not we can bench warrant [Conley] back” for the hearing. Driver’s counsel replied, "Okay. That would certainly be easier for me, because I don’t represent him.” At the hearing, counsel agreed to, and did, send a letter to Conley advising him that the court was issuing a bench warrant for his appearance at the next hearing date. No objection to the court's decision to issue a bench warrant was made. Only after the trial court ruled Conley was entitled to exercise his homestead exemption did Driver’s counsel file a motion to reconsider, raising an objection to the issuance of the bench warrant for the first time. This point of error was waived. It is also worth noting that issuing a bench warrant is a matter within the discretion of the trial court. See In re Z.L.T., 124 S.W.3d 163, 164 (Tex.2003).

      . We also note that a major point of contention in this case was Conley's claim that he was common-law married to Marta Moncoda. The Constitution currently provides that “[a]n owner or claimant of the property claimed as homestead may not sell or abandon the horne-stead without the consent of each owner and the spouse of each owner.” Tex. Const, art. XVI, § 50(b). Because Conley could make his homestead claim as a single adult, we need not address the issue of whether he was common-law married.

      . In any event, "it is well settled that a conveyance of exempt property may not be attacked on the ground that it was made in fraud of creditors.” Duran, 71 S.W.3d at 842-43 (emphasis added).

      . For the first time on appeal, Driver contends Conley has "unclean hands” because "[i]t is unconscionable for a party to claim the benefit of a homestead exemption while using the very home at issue to commit sexual assaults of a minor." This issue was not presented to the trial court, and we need not consider it.


author: PER CURIAM.

text:
    Jammie Lee MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00314-CR.
    Court of Appeals of Texas, Amarillo, Panel A.
    Aug. 11, 2010.

      James L. Abbott, Abbott & Cates, Amarillo, TX, for Appellant.
    John L. Owen, Assistant District Attorney, Amarillo, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   MEMORANDUM OPINION

PER CURIAM.

Appellant, Jammie Lee Moore, was convicted of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams. The indictment contains allegations of two prior convictions for punishment enhancement purposes. A jury convicted Appellant of the offense charged and, based upon his plea of true to the enhancement allegations, assessed punishment at confinement for a period of 50 years. Appellant’s counsel has filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the reasons expressed herein, we abate and remand this cause to the trial court for appointment of new counsel.

In support of his motion to withdraw, Appellant’s counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no error upon which an appeal can be predicated. Id. at 744-45, 87 S.Ct. 1396. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App.1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided Appellant a copy of the Anders brief and motion to withdraw and appropriately advised Appellant of his right to file a pro se response in this matter. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App.1991). Appellant has filed a response and the State has responded to that pleading.

When faced with an Anders brief, an appellate court has a duty to conduct a full examination of the proceeding, and if its independent inquiry reveals a non-frivolous or arguable ground for appeal, it must abate the proceeding and remand the case to the trial court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App.2005).

In this ease the Clerk’s Record reflects a judgment signed September 14, 2010. The summary portion of the judgment reflects “Court Costs: see attached” and the following page contained in the record is a certified bill of costs, also dated September 14, 2010, containing a reference to attorney’s fees for Appellant’s court-appointed attorney totaling $3,300.00. The judgment further orders Appellant to pay all court costs “as indicated above.” A review of the Reporter’s Record does not reveal any evidence pertaining to Appellant’s ability to reimburse attorney’s fees.

A judgment ordering the reimbursement of court-appointed attorney’s fees without sufficient evidence of a defendant’s ability to pay can constitute error cognizable on appeal. See Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010).

Based upon this record we find at least three arguable grounds for appeal exist:

(1) Does an order for the reimbursement of attorney’s fees have to be included in the oral pronouncement of sentence as a precondition to its inclusion in the trial court’s written judgment? See Weir v. State, 278 S.W.3d 364, 366 (Tex.Crim.App.2009).
(2) Does attaching a copy of the Clerk’s certified bill of costs to a judgment with the notation “Court Costs: see attached,” while ordering the payment of court costs “as indicated above” constitute an order to pay the costs, including attorney’s fees, contained within that bill of costs? See Armstrong v. State, 320 S.W.3d 479 (Tex.App.-Amarillo 2010, no pet. h.).
(3) Was the evidence legally sufficient to show that Appellant had financial resources that would enable him to offset, in part or in whole the costs of legal services provided? See Mayer, 309 S.W.3d at 556.

Having concluded that arguable grounds for appeal exist, we grant Appellants counsels motion to withdraw, abate this proceeding, and remand this cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

We direct the trial court to appoint new counsel to represent Appellant on appeal by September 17, 2010. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel to the clerk of this Court immediately after the appointment of counsel is ordered. Finally, the trial court shall cause its order appointing counsel to be included in a supplemental clerks record which shall be filed with the Clerk of this Court by October 1, 2010. Appellants brief shall address the issues we have identified, together with any other arguable issues identified by counsel, and shall be due forty-five days from the date of the trial courts appointment of new counsel. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.

It is so ordered.

      . See Tex. Health & Safety Code Ann. § 481.115(d)(Vernon 2007).

      . See Tex. Penal Code Ann. § 12.42(d) (Vernon 2007).


author: Justice FRANCIS.

text:
    Jim WIKERT, Appellant, v. YEAR ONE, INC., Appellee.
    No. 05-09-01542-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 12, 2010.

      C. Bruce Willis, II, Dallas, TX, for Appellant.
    Scott Karl Koelker, Locke, Lord, Bissell & Liddell, LLP, Darren Lee McCarty, Alston & Bird, LLP, Scott W. Self, Dallas, TX, Douglas S. Hasty, Keller, TX, for Appellee.
    Before Justices O’NEILL, FRANCIS, and MURPHY.
   OPINION

Opinion By

Justice FRANCIS.

Jim Wikert appeals the trial court’s order granting Year One Inc.’s special appearance and dismissing with prejudice Wikert’s claims against Year One. In a single issue, Wikert claims the trial court erred because -it had both general and specific jurisdiction over Year One. We affirm.

On June 12, 2006, Wikert contracted with Douglas Hasty of Unique Motorcars for the production of a motor vehicle designed by Chip Foose of Foose Design, Inc. Two days later, Wikert wired $295,000 to Hasty’s business bank account. The car was to be completed by June 12, 2007. When Wikert did not receive the vehicle and was not reimbursed for his payment, he filed this suit.

In his sole issue, Wikert claims the trial court erred in granting Year One’s special appearance because the trial court has both general and specific jurisdiction over Year One.

Whether a court has personal jurisdiction over a nonresident defendant is a question of law that often requires the resolution of factual issues. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Kytel Int’l Group, Inc. v. Rent-A-Ctr., Inc., 132 S.W.3d 717, 719 (Tex.App.-Dallas 2004, no pet.). When, as in this case, the trial court does not issue findings of fact and conclusions of law to support its ruling on a special appearance, we will imply the trial court found all facts necessary to support the judgment that are supported by the evidence. BMC Software, 83 S.W.3d at 795.

The plaintiff bears the initial burden of pleading sufficient allegations to invoke the provisions of the Texas long-arm statute. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). To determine whether the plaintiff satisfied its pleading burden and to determine the basis for jurisdiction alleged by the plaintiff, a court considers the allegations in the plaintiffs petition as well as its response to the defendant’s special appearance. Flanagan v. Royal Body Care, Inc., 232 S.W.3d 369, 374 (Tex.App.-Dallas 2007, pet. denied); see Tex.R. Civ. P. 120a(3). Except as noted below, upon filing a special appearance the nonresident defendant assumes the burden of negating all bases of personal jurisdiction alleged by the plaintiff. Am. Type Culture Collection, Inc., 83 S.W.3d at 807; Siskind v. Villa Found, for Educ., Inc., 642 S.W.2d 434, 438 (1982). Absent allegations of any specific, purposeful act through which the defendant can be said to have sought a benefit by “availing itself of the jurisdiction,” evidence that a defendant is a nonresident is sufficient to meets its burden. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex.App.-Dallas 1993, writ denied) (citing Siskind, 642 S.W.2d at 438); see also Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005).

In his third amended petition, Wikert alleged he and Hasty, a Texas resident, entered into a purchase order and sales agreement for. the production of a motor vehicle designed by Foose, a California resident. Wikert alleged he purchased the car because it was designed by Foose. He also alleged Year One, a nonresident corporation located in Georgia, “provided the parts for the vehicle to be built.” Wikert alleged that although he was told the motor vehicle had not been completed, it had in fact been completed and was given away to a West Virginia couple in a contest held at the “2007 Good Guys PPG Nationals” in Columbus, Ohio. According to Wikert, the “contest was held with the assistance and promotion of Year One.” Because he did not receive the car and did not receive his $295,000 deposit back, Wikert sued Hasty, Foose, C. Foose Design, Inc., Year One, Good Guys Rod & Custom Association, and the West Virginia couple.

Year One filed a special appearance and, subject to the special appearance, a general denial. In its special appearance, Year One asserts it is a Georgia corporation and is not a resident of Texas. Year One also asserts no grounds establish either general or specific jurisdiction over Year One. In support of its special appearance, Stewart Haslam, vice president of marketing and finance for Year One, filed an affidavit testifying he has personal knowledge of the facts in his affidavit and they are true and correct. He also testifies Year One is a Georgia corporation and is not a resident of Texas. The remainder of Haslam’s affidavit supports Year One’s assertions that no grounds exist for general or specific jurisdiction over Year One.

Wikert’s third amended petition did not allege any specific, purposeful act through which Year One can be said to have sought a benefit by availing itself of the jurisdiction. See Michiana Easy Livin’ Country, Inc., 168 S.W.3d at 785. In fact, the only allegations Wikert made against Year One are:

Year One, Inc. hereinafter referred to as Year One provided the parts for the vehicle to be built.
The [Ohio] contest was held with the assistance and promotion of Year One, and the car was given to Paul and Ellen Fordyce, who are located in West Virginia.
Hasty, Chip Foose and Foose Design completed the motor vehicle, did not give the vehicle to Plaintiff, and gave it away through the contest to Paul and Ellen Fordyce, which is still in their possession. This contest was held by Good Guys and sponsored by Year One and Foose Design.

Wikert did not plead sufficient jurisdictional facts to bring Year One within the provision of the Texas long-arm statute and did not file a response to Year One’s special appearance; thus, Year One was only required to provide evidence that it is a nonresident. See Hotel Partners, 847 S.W.2d at 634. Because Year One presented evidence it is not a resident of Texas, we conclude the trial court did not err in granting Year One’s special appearance. We overrule Wikert’s sole issue.

We affirm the trial court’s order granting Year One’s special appearance.