author: CHARLES W. SEYMORE, Justice.

text:
    Kachikwu ILLOH, M.D., Appellant, v. Damita CARROLL and Karen Butler, Individually and as Representatives of the Estate of James Carroll, Appellees.
    No. 14-09-01001-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 5, 2010.

      Charles B. Holm, Nancy Bolin Broad-dus, Houston, for appellant.
    Christopher Bradshaw-Hull, Houston, for appellees.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Kachikwu Illoh, M.D., files this interlocutory appeal from the trial court’s orders denying his motion to dismiss and separately filed plea to the jurisdiction. Dr. Illoh contends the trial court erred by denying his motion to dismiss and his plea to the jurisdiction. We affirm the trial court’s order denying Dr. Illoh’s motion to dismiss but lack jurisdiction to consider the trial court’s denial of his plea to the jurisdiction.

I. Background

On January 15, 2007, James Carroll was admitted to Memorial Hermann Hospital. Dr. Illoh, who was employed by governmental-entity University of Texas Health Science Center at Houston (“UTHSCH”), was Mr. Carroll’s attending physician until January 22. Mr. Carroll was discharged from the hospital on February 16. Subsequently, he died on November 29, 2007, at a separate hospital. On March 31, 2009, Damita Carroll and Karen Butler, individually and as representatives of Mr. Carroll’s estate (“appellees”), filed suit against Dr. Illoh and another doctor. Appellees allege that Mr. Carroll died from septicemia caused by bed sores which developed during his treatment at Memorial Her-mann. Specifically, appellees claim Mr. Carroll’s death was caused by Dr. Illoh’s negligence in (1) “failing to implement appropriate care,” (2) “treating a patient without possessing the requisite skill,” (3) “failing to collaborate with Mr. Carroll’s family,” (4) “failing to properly supervise his care,” and (5) “failing to obtain a reasonable and necessary consult.”

Dr. Illoh filed a motion entitled “... Plea to the Jurisdiction and Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” in which he argued that the trial court lacked subject-matter jurisdiction because appellees failed to file suit within two years of Dr. Illoh’s treatment of Mr. Carroll (“statute-of-limitations motion”). Additionally, Dr. Illoh filed a motion to dismiss in which he argued that appellees were required to amend their petition to substitute Dr. Illoh for UTHSCH pursuant to the election-of-remedies provision in section 101.106(f). Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005). The trial court denied both motions, and Dr. Illoh timely filed this interlocutory appeal.

II. Texas Civil Practice and Remedies Code Section 101.106(f)

We begin with Dr. Illoh’s first and second issues in which he contends the trial court erred by denying his motion to dismiss pursuant to section 101.106(f). We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, which allows interlocutory appeals from denials of motions to dismiss pursuant to section 101.106, See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon 2008); Phillips v. Dafonte, 187 S.W.3d 669, 674-75 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

A. Standard of Review

Generally, we review a trial court’s order pertaining to a motion to dismiss under an abuse-of-discretion standard. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). However, the proper standard of review is determined by the substance of the issue rather than the type of motion considered by the trial court. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (to determine proper standard of review, “we must determine whether the [issue] is a question of fact or of law”). Dr. Illoh’s motion to dismiss presented an issue of statutory interpretation under section 101.106 of the Texas Tort Claims Act. Matters of statutory construction are reviewed de novo. City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003).

In construing a statute, our primary goal is to determine and effectuate legislative intent. Grimes County Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex.App.Houston [14th Dist.] 2008, pet. denied) (citing In re Canales, 52 S.W.3d 698, 702 (Tex.2001) (orig. proceeding)). If a statute is clear and unambiguous, we need not resort to rules of construction. Id. We may consider, among other things, the statute’s objectives and the consequences of a particular construction. Id. We try to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible. Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.2009). We presume that every word of a statute has been included or excluded for a reason. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004).

B. Election of Remedies under the Texas Tort Claims Act

The Texas Tort Claims Act (“TTCA”) establishes a limited waiver of immunity for certain suits against governmental entities. The TTCA waives governmental immunity to the extent liability arises from the “use of a motor-driven vehicle or motor-driven equipment,” or from “a condition or use of tangible personal or real property.” Tex. Civ. Prac. <& Rem.Code Ann. § 101.021 (Vernon 2005). To prevent litigants from circumventing the limits of the TTCA by suing government employees instead of governmental entities, the legislature provided several election-of-remedies provisions in section 101.106, including the following:

(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e), (f) (emphasis added). Therefore, to obtain dismissal under section 101.106(f), a government employee must establish the claims against him (1) are based on conduct performed within the general scope of his employment and (2) could have been brought under the TTCA against his government employer.

C. Analysis

In his motion to dismiss, Dr. Illoh presented evidence supporting his contention that appellees’ negligence suit is based on conduct that occurred while he was acting within the general scope of his employment with UTHSCH. In response, appellees argued that Dr. Illoh failed to establish the second prong of section 101.106(f) because he did not prove their claims could have been brought against UTHSCH. According to appellees, Dr. Illoh can only establish this prong by proving their negligence suit falls within the TTCA’s limited waiver of immunity for claims arising from the condition or use of personal property. Indeed, in 2006, we held that government doctors were not entitled to dismissal under section 101.106(f) because they failed to establish that plaintiffs claims could be brought against the government employer under the TTCA’s waiver of immunity. See Phillips, 187 S.W.3d at 675. Undaunted, Dr. Illoh argued below and now argues on appeal that the Texas Supreme Court’s 2008 decision in Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653 (Tex.2008), effectively overruled the plaintiffs burden to show a waiver of sovereign immunity as recognized in cases such as Phillips.

In Garcia, the plaintiffs filed suit against a school district and its superintendent, asserting, among other things, common-law negligence claims. Id. at 654. The trial court denied the school district’s motion to dismiss pursuant to section 101.106. Id. at 655. In determining that section 101.106 did not apply, the court of appeals opined that only 101.106(e) could apply when a governmental entity and its employee were sued at the same time. Mission Consol. Indep. Sch. Dist. v. Garcia, 166 S.W.3d 902, 904-05 (Tex.App.-Corpus Christi 2005), aff'd in part, rev’d in part, 253 S.W.3d 653 (Tex.2008). The court of appeals held that section 101.106(e) did not apply, reasoning that plaintiffs’ common-law negligence claims were not brought “under this chapter” because they did not fall within the TTCA’s waiver of immunity. Id. at 905. The supreme court rejected this narrow interpretation of the phrase “under this chapter,” concluding: “Because the [TTCA] is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the TTCA]’ for purposes of section 101.106.” Garcia, 253 S.W.3d at 659. The supreme court also noted, however, that it was not called upon to interpret the phraseology of section 101.106(f):

Section 101.106(f) contains a slightly different phrase. It states that the suit against the employee is to be dismissed when the suit “could have been brought under this chapter against the governmental unit.” The interpretation of section 101.106(f) is not before us here and neither party argues that it applies to this case.

Id. at 660 n. 5.

While acknowledging the supreme court’s assertion that it was not asked to interpret the language in section 101.106(f), Dr. Illoh argues Garcia’s interpretation of the phrase “under this chapter” is equally applicable to section 101.106(f). He contends appellees’ negligence theories “could have been brought under” the TTCA for purposes of section 101.106(f), regardless of whether the TTCA actually provides a waiver of immunity for such theories, and he contends the legislative intent behind section 101.106 supports this position. He argues the legislature, by amending section 101.106, intended to persuade litigants to bring suit against governmental entities instead of suing government employees for the results of their work. He argues that the legislature’s goal in section 101.106(f) includes expediting the litigation process by forcing litigants to choose whether to sue a governmental entity or its employee when the employee seeks dismissal. Finally, he argues that the amendments were intended to prevent scenarios where the trial court must determine whether a government employee was sued in his individual or official capacity.

We have no doubt the legislature contemplated protection of government employees when it amended section 101.106. See id. at 656-57. Nevertheless, the legislature chose to include, the phrase “could have been brought” in section 101.106(f), indicating that it did not intend for automatic dismissal of every claim filed against a government employee based on conduct he performed within the scope of his employment, but only for those claims that “could have been brought under [the TTCA] against the governmental unit....” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f). We must give effect to the statutory language selected by the legislature and presume the phrase “could have been brought” was included in subsection (f) and excluded from other subsections for a reason. See Phillips, 288 S.W.3d at 880; Old Am. County, 149 S.W.3d at 115. Clearly, suit can only be brought against a governmental entity when there is a waiver of immunity from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003) (“Immunity from suit prohibits suits against the State unless the State expressly consents to the suit.”). By requiring a government employee to prove the plaintiffs claims “could have been brought” against his government employer, the legislature intended section 101.106(f) to apply only when the government employer has waived immunity. Because of the additional language in section 101.106(f), it is understandable that the supreme court specifically noted in Garcia that it was not interpreting section 101.106(f).

In the short time since Garcia was issued, two courts of appeals have applied the supreme court’s interpretation of section 101.106(e)’s “under this chapter” language to section 101.106(f)’s “could have been brought under this chapter” language. See Kelemen v. Elliott, 260 S.W.3d 518, 523-24 (Tex.App.-Houston [1st Dist.] 2008, no pet); Castro v. McNabb, 319 S.W.3d 721, 731 (Tex.App.-El Paso 2009, no pet.). However, the majority of courts of appeals have declined to reach a similar conclusion. See Menefee v. Medien, 319 S.W.3d 868, 873-76 (Tex.App.-Fort Worth 2010, no pet. h.); Reedy v. Pompa, 310 S.W.3d 112, 117-19 (Tex.App.-Corpus Christi 2010, pet. filed); Lieberman v. Romero, No. 05-08-01636-CV, 2009 WL 3595128, at *2 (Tex.App.-Dallas Nov. 3, 2009, pet. filed) (mem. op.); see also Leonard v. Glenn, 293 S.W.3d 669, 681-85 (Tex.App.-San Antonio 2009, pet. filed) (determining, without reference to Garcia, that government employees need to show claims could have been brought against government employer under TTCA’s limited waiver of immunity). We believe those courts declining to apply Garcia to section 101.106(f) offer persuasive reasoning.

The Corpus Christi Court of Appeals held,

[T]he phrase “could have been brought” [in section 101.106(f) ] modifies the phrase “under this chapter.” We conclude the phrase “could have been brought” unambiguously invokes the Tort Claims Act’s limited waiver of immunity from suit and liability, and the Texas Supreme Court [in Garcia ] did not intend to undo the scores of opinions holding otherwise.

Reedy, 310 S.W.3d at 119 (citation omitted).

The Fort Worth Court of Appeals reasoned: “[By] giving the language of subsection (f) its plain meaning, a suit that ‘could have been brought under this chapter against a governmental unit’ necessarily means a suit that falls within the TTCA’s limited waiver of sovereign immunity.” See Menefee, 319 S.W.3d at 875. Construing section 101.106(f) to require a government employee to prove the claims asserted against him are within the TTCA’s waiver of immunity also “avoids an absurd consequence,” because “requiring a plaintiff to dismiss the employee and to sue a governmental unit when the plaintiffs claims do not fall within the TTCA’s limited waiver of immunity ... would constitute a statutory mandate requiring a plaintiff to file an un meritorious suit.” Id.

Accordingly, we agree with those courts declining to apply Garcia’s interpretation of section 101.106(e) to section 101.106(f). Furthermore, “[b]ecause the supreme court has neither addressed subsection 101.106(f) nor overruled the prior cases out of this Court addressing that section, we conclude we are bound by our own Court’s precedent.” Lieberman, 2009 WL 3595128, at ⅜2. A government employee seeking dismissal under section 101.106(f) must prove the claims asserted against him could have been filed against his government employer because they fall within the TTCA’s limited waiver of immunity. See Phillips, 187 S.W.3d at 675. Because Dr. Illoh has failed to fulfill this requirement, we overrule his first issue and affirm the trial court’s order denying his motion to dismiss.

In his second issue, Dr. Illoh contends the trial court erred by refusing to dismiss this suit because appellees failed to amend their petition to include UTHSCH within thirty days after he filed a motion to dismiss under section 101.106(f). Because we conclude Dr. Illoh did not establish the applicability of section 101.106(f), we overrule his second issue.

III. Interlocutory Order Denying Plea to the Jurisdiction

In his third issue, Dr. Illoh contends the trial court erred by denying his plea to the jurisdiction. In his plea, Dr. Illoh argued that the trial court lacked jurisdiction over this case because appellees filed suit after the expiration of the two-year limitations period prescribed by section 74.251 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon 2005). Appellees argue in their response brief that the trial court’s interlocutory order denying Dr. Illoh’s plea to the jurisdiction is not appealable.

Dr. Illoh contends we have jurisdiction over this issue pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, allowing for interlocutory appeal of a trial court’s order granting or denying a governmental unit’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008). However, section 51.014(a)(8) is inapplicable because Dr. Illoh is not a governmental unit. See Young v. Villegas, 231 S.W.3d 1, 6-7 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Even if section 51.014(a)(8) is applicable to government employees, an interlocutory appeal would not be permitted. Dr. Illoh’s contention that appellees failed to file suit within the limitations period prescribed in section 74.251 does not raise issue regarding the trial court’s subject-matter jurisdiction; instead, it is an affirmative defense. See Montgomery County v. Fuqua, 22 S.W.3d 662, 668 (Tex.App.-Beaumont 2000, pet. denied) (“Section 51.014(a) ... does not authorize us to hear an appeal based on a statute of limitations defense”). “[A]n interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional.” Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004).

Additionally, Dr. Illoh may not appeal an interlocutory order pursuant to section 51.014(a)(5), which, as explained above, permits a government employee to file an interlocutory appeal from an order denying a motion for summary judgment based on immunity, because Dr. Illoh’s plea to the jurisdiction is predicated on the statute of limitations under section 74.251, not immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5).

Dr. Illoh also contends we have jurisdiction because appellees failed to send him timely notice of their claims, an issue he argues is a challenge to the trial court’s subject-matter jurisdiction. Dr. Il-loh argued and presented evidence in his plea to the jurisdiction that the limitations period under section 74.251 was not tolled because appellees did not comply with the notice requirements prescribed by section 74.051. See Tex. Civ. Prac. & Rem.Code Ann. § 74.051 (Vernon 2005). “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009) (emphasis added). As expressed above, Dr. Illoh is not a governmental entity. Moreover, Dr. Illoh has not cited persuasive authority supporting his contention that notice pursuant to section 74.051 is a jurisdictional requirement under these facts.

Accordingly, we lack jurisdiction to review the trial court’s order denying Dr. Illoh’s plea to the jurisdiction.

IV. Conclusion

We affirm the trial court’s order denying Dr. Illoh’s motion to dismiss but lack jurisdiction to consider the trial court’s order denying Dr. Uloh’s plea to the jurisdiction.

      . Before Garcia, several courts of appeals interpreted section 101.106(f) to require a showing that the plaintiff’s claims were within the TTCA's limited waiver of immunity (including those courts that have since applied Garcia to section 101.106(f), see infra). See, e.g., Hall v. Provost, 232 S.W.3d 926, 928 (Tex.App.-Dallas 2007, no pet.); Kanlic v. Meyer, 230 S.W.3d 889, 893-94 (Tex.App.-El Paso 2007, pet. denied); Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 875 (Tex.App.-Amarillo 2007, pet. filed); Williams v. Nealon, 199 S.W.3d 462, 464-67 (Tex.App.-Houston [1st Dist.] 2006, pet. filed); Franka v. Velasquez, 216 S.W.3d 409, 412 (Tex.App.-San Antonio 2006, pet. granted).

      . The supreme court has granted review of the issue of whether the “could have been brought under this chapter” language in section 101.106(f) requires a government employee to prove the claims meet the TTCA’s waiver of immunity. See Franka, 216 S.W.3d at 413 (petition for review granted on April 18, 2008).


source: Caselaw Access Project

author: TERRY McCALL, Justice.

license: Public Domain

text:
    Steve OUALLINE, Appellant, v. Ken BURNS, Jr., Appellee.
    No. 11-09-00160-CV.
    Court of Appeals of Texas, Eastland.
    Aug. 5, 2010.

      Walter E. Wilson, Odessa, for appellant.
    Stewart McKeehan, Stewart McKeehan P.C., Odessa, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

This appeal arises out of a proceeding filed pursuant to Tex. Civ. Prao. & Rem. Code ANN. § 31.006 (Vernon 2008) to revive a dormant judgment. In two issues, appellant, Steve Oualline, challenges the trial court’s order granting the requested revival of judgment. We affirm.

Background Facts

Appellee, Ken Burns, Jr., filed the underlying proceeding on September 25, 2008, seeking to revive a “reformed judgment” he obtained in 1997 against Oual-line and Louis Dunnam. Burns had previously obtained a judgment in 1992 against Oualline and Dunnam on a promissory note they executed in Burns’s favor. Dunnam prosecuted an appeal from the 1992 judgment to the El Paso Court of Appeals, but Oualline did not appeal the 1992 judgment. As set forth in greater detail below, the El Paso Court of Appeals reversed the trial court’s judgment and remanded the case back to the trial court for further proceedings consistent with its opinion. The trial court subsequently entered the 1997 judgment based upon the opinion and judgment of the El Paso Court of Appeals.

Oualline contends that the 1997 judgment is inapplicable to him because he did not appeal the 1992 judgment. Based upon this contention, he asserts that the 1992 judgment is the applicable judgment to be used for determining Burns’s entitlement to an order reviving his judgment against Oualline. Oualline argues that the 1992 judgment cannot be revived by a proceeding instituted in 2008 because more than twelve years have passed since its entry.

Analysis

Tex. Civ. Prac. & Rem.Code Ann. § 34.001(b) (Vernon Supp.2009) provides that, if a writ of execution is issued within ten years after rendition of a judgment but a second writ is not issued within ten years after issuance of the first writ, the judgment becomes dormant. Section 31.006 provides that a dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date the judgment becomes dormant. Thus, the Civil Practice and Remedies Code provides a twelve-year residual limitations period for judgments.

Oualline relies on these provisions to assert that the 1992 judgment cannot be revived in a proceeding instituted in 2008. Burns requested the issuance of a writ of execution on the 1992 judgment in 1993. This is the only writ of execution that he requested to be issued with regard to the 1992 judgment. Accordingly, more than twelve years have elapsed since the issuance of a writ of execution for the 1992 judgment. Oualline asserts in his first issue that the trial court erred in reviving a judgment that had been dormant for more twelve years. In his second issue, he asserts that the trial court erred in attempting to interpret the ruling of the El Paso Court of Appeals. We will address these issues together because of their similarity.

We begin our analysis by examining the effect of the ruling of the El Paso Court of Appeals on the 1992 judgment with regard to Oualline. Dunnam alleged on appeal that the trial court erred in refusing to submit his usury defense to the jury. The El Paso Court of Appeals agreed with Dunnam’s usury allegation by finding that the promissory note he and Oualline executed embodied a usurious transaction. The El Paso Court of Appeals reversed the judgment of the trial court and remanded the cause to the trial court to determine the extent of Dunnam’s usury claim. The opinion from the El Paso Court of Appeals states as follows: “We reverse the judgment of the trial court and remand this cause to it for further proceedings.” The El Paso court’s judgment states: “The Court has considered this cause on the record and concludes there was error in the judgment. We therefore reverse the judgment of the court below and remand the case to the trial court for further proceedings consistent with the opinion of this Court.” Finally, the court’s mandate recites the court’s judgment verbatim.

The determining question in this appeal is ascertaining whether the El Paso Court of Appeals’s opinion, judgment, and mandate reversed the 1992 judgment in its entirety or only as to Dunnam’s interest. As a general rule, when one party appeals from a judgment, a reversal as to him will not justify a reversal as to other non-appealing parties. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex.1982). However, when an appellate court issues a judgment and mandate that unambiguously reverses, vacates, or otherwise modifies a lower court’s judgment in its entirety, that judgment and mandate is binding on all parties to the judgment. Eastin v. Dial, 288 S.W.3d 491, 499 (Tex.App.-San Antonio 2009, pet. denied); see Fletcher v. Blair, 874 S.W.2d 83, 84 n. 1 (Tex.App.-Austin 1994, writ denied).

The appellate court’s judgment and mandate in this cause unambiguously reverses the 1992 judgment in its entirety by its express language. If the court had intended to parse its ruling to apply only to Dunnam, it would have used words to that effect. The El Paso Court of Appeals’s act of extending its ruling on the usury defense to the entire 1992 judgment is logical given the fact that Dunnam and Oualline were jointly and severally liable as co-makers of the promissory note. See Tex. Bus. & Com.Code Ann. § 3.116(a) (Vernon Supp.2009). While it is generally the rule that non-appealing parties are excluded from relief upon appeal, a reversal of a trial court order may extend to non-appealing parties when the rights of the appealing parties are so interwoven or dependent on each other as to require a reversal of the entire judgment. See Ex parte Elliot, 815 S.W.2d 251, 251 (Tex. 1991). Osuna v. Quintana, 998 S.W.2d 201, 211 (Tex.App.-Corpus Christi 1999, no pet.), and Belz v. Belz, 667 S.W.2d 240, 244 (Tex.App.-Dallas 1984, writ ref'd n.r.e.), are examples of cases where the reversal of a joint and several liability judgment has been extended to non-appealing parties.

Pursuant to the opinion, judgment, and mandate from the El Paso Court of Appeals, the trial court entered the reformed judgment in 1997 that addressed Oualline’s liability. Upon receiving the appellate court’s mandate, the lower court has a mandatory, ministerial duty to enforce the appellate court’s judgment. See Tex.R.App. P. 51.1(b); In re Grossnickle, 115 S.W.3d 238, 243 (Tex.App-Texarkana 2003, orig. proceeding). It has no discretion to review, interpret, or enforce the mandate but, instead, must carry out the mandate. Grossnickle, 115 S.W.3d at 243. The trial court did not err in carrying out the ruling mandated by the El Paso Court of Appeals. Oualline’s first and second issues are overruled.

Finally, Oualline raises an additional matter in his reply brief that merits discussion. He contends that Burns is equitably estopped from asserting that the 1997 judgment is a final judgment as to him because Burns sought the issuance of a writ of execution for the 1992 judgment while the case was pending on appeal. We disagree. We first note that Burns sought the issuance of a writ of execution for both Oualline and Dunnam for the 1992 judgment in the same request. Furthermore, a prevailing party at trial has a statutory right to obtain execution of the judgment pending appeal unless and until the judgment debtor properly supersedes the judgment. Mercantile Bank & Trust v. Cunov, 733 S.W.2d 717, 718 (Tex.App.-San Antonio 1987, no writ); see Tex.R. Crv. P. 627. Accordingly, Burns’s request for the issuance of a writ of execution for the 1992 judgment did not constitute an assertion that the 1992 judgment was final as to Oualline because he had not appealed the judgment.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . The legislature transferred Ector County from the jurisdiction of the El Paso Court of Appeals to this court after the appeal of the 1992 judgment. Tex. Gov't Code Ann. § 22.201(Z) (Vernon Supp.2009).


author: RICK STRANGE, Justice.

text:
    Monte J. LAND, Carolyn J. Land, Robert Aldrich, Scott Wheatley, Heather Wheatley, Alvis H. Jackson, and Deana G. Jackson, Appellants, v. PALO PINTO APPRAISAL DISTRICT, Appellee.
    No. 11-08-00248-CV.
    Court of Appeals of Texas, Eastland.
    Aug. 5, 2010.

      Robert E. Aldrich, Jr., Brett F. Miller, Gardner Aldrich L.L.P., Fort Worth, Robert Greg Fitzgerald, Law Office of Greg Fitzgerald, Bedford, for appellants.
    Robert Mott, Joseph T. Longoria, Per-due, Brandon, Fielder, Collins & Mott, L.L.P., Houston, David F. Johnson, Jennifer Lovelace, Winstead PC, Fort Worth, for appellee.
    Panel consists of: WRIGHT, C.J., MeCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

This is a property tax dispute. Appellants are lessees of lots on Possum Kingdom Lake that are owned by the Brazos River Authority (BRA). Appellants filed suit against Palo Pinto Appraisal District (PPAD) challenging the valuation of their leasehold interest and improvements. The trial court found for PPAD. We affirm.

I. Background Facts

Monte and Carolyn Land, Robert Aid-rich, Scott and Heather Wheatley, and Al-vis and Deana Jackson (plaintiffs) lease lots on Possum Kingdom Lake that are owned by BRA, a tax-exempt state agency. Plaintiffs received notices of appraisal with PPAD’s valuation of their leasehold interests and structures. Plaintiffs disagreed with PPAD’s appraisals, and they filed Notices of Protest. The Appraisal Review Board ruled against them, and plaintiffs then filed suit. The trial court conducted a bench trial and found the market value of plaintiffs’ leasehold interests and their leasehold interests with improvements. The trial court’s valuation of the Aldrich property was essentially consistent with PPAD’s notice, but the other properties were significantly increased in value.

II. Issues

Plaintiffs challenge the trial court’s judgment with four issues. They contend that the trial court erred by utilizing the comparable-sales method to evaluate their leasehold interests, that the trial court erred by not considering the individual characteristics of their leases, that the trial court erred by utilizing a local modifier when valuing their improvements, and that the trial court erred by not awarding them attorney’s fees.

III. Appraising Plaintiffs’ Leasehold Interest

Because BRA owns the property and is tax exempt, the value of its interest may not be included in PPAD’s valuation. Instead, it is the value of plaintiffs’ leasehold interest that is taxable. Plaintiffs do not challenge the sufficiency of the evidence relied upon by the trial court to value their interests but contend that the trial court failed to follow the Tax Code because it used the wrong valuation methodology.

A. What Methodology May Trial Courts Utilize ?

The legislature has provided guidance for appraising a lease of tax-exempt property, writing:

A taxable leasehold or other possesso-ry interest in real property that is exempt from taxation to the owner of the estate or interest encumbered by the possessory interest is appraised at the market value of the leasehold or other possessory interest. However, the appraised value may not be less than the total rental paid for the interest for the current tax year.

Tex. Tax Code Ann. § 23.13 (Vernon 2008). Plaintiffs concede that the legislature did not specify how market value is calculated and that trial courts have discretion when determining the appropriate methodology to employ. But, they contend that the equity method — the difference between market rent and their contract rent — is the proper valuation method for leasehold estates such as theirs, and they cite Tarrant Appraisal District v. American Airlines, Inc., 826 S.W.2d 767, 770 (Tex.App.Fort Worth 1992, writ denied), in support of this proposition. Because PPAD’s expert utilized a comparable sales approach and made no attempt to ascertain market rent, plaintiffs conclude that their contract rent was established as market rent and, therefore, that their leasehold interests should be appraised at their annual rental.

PPAD responds that the American Airlines decision does not mandate the use of the equity method and that trial courts have the discretion to consider other valuation methods and notes that the Tax Code specifically provides: “In determining the market value of property, the chief appraiser shall consider the cost, income, and market data comparison methods of appraisal and use the most appropriate method.” Tex. Tax Code ANN. § 23.0101 (Vernon 2008). When the market data comparison method is utilized, the chief appraiser shall “use comparable sales data and shall adjust the comparable sales to the subject property.” Tex. Tax Code Ann. § 23.013 (Vernon Supp.2009). PPAD also notes that plaintiffs’ expert, Albert Scruggs Love Jr., testified that he would consider using comparable sales of leasehold interests as part of his approach and that an appraisal guide he finds authoritative, The Apjnuisal of Real Estate 12th Edition, allows their use.

In American Airlines, 826 S.W.2d 767, the Fort Worth court was faced with a dispute over the valuation of American Airlines’s leasehold estate at DFW Airport. Because the land is owned by a tax-exempt entity, American Airlines could only be taxed based upon the value of the leasehold. American Airlines argued that its interest should be valued based upon the equity method and that, because its rent was equal to the fair market rent for the property, the taxable value of its interest was equal to its annual rental. Id. at 768. The appraisal district advocated for the possessory method of valuation. It contended that, because American Airlines had the right to exclusive possession and use of the property for the length of the lease, this right could be valued by capitalizing the rental for the remainder of the lease. Id. The Fort Worth court agreed with American Airlines and, as noted by plaintiffs, wrote: “[T]he equity method is the proper method to appraise a leasehold interest on tax-exempt property.” Id. at 771. Despite this language, however, we do not believe that the court meant to foreclose the use of comparable sales and, if we are in error, do not believe that the Tax Code does.

Neither American Airlines nor the appraisal district offered evidence of comparable sales. Given the unique situation of a large leasehold at DFW Airport, that is hardly surprising. Consequently, the court was required to choose between the equity and possessory methods of valuation. The court rejected the possessory method, in part, because its application would make that portion of Section 23.13 setting the annual rental as a floor superfluous. Id. at 770. But it also noted that this method improperly charged the lessee with the lessor’s property value. Id. at 771. Neither of these concerns is implicated by a comparable sales approach.

In Panola County Appraisal District v. Panola County Fresh Water Supply District Number One, 69 S.W.3d 278 (Tex.App.-Texarkana 2002, no pet.), the court was faced with a dispute over the appraisal of leasehold interests on lake lots that were owned by a tax-exempt entity. The court held that comparable sales could be used to evaluate those interests but cautioned “true comparables would be derived from sales of leasehold interests, not from sales of fee-simple interests.” Id. at 283.

PPAD’s expert, James Daniels, testified that he was asked to appraise the value of plaintiffs’ leasehold estates. As part of his work, he researched real estate sales at the lake and found several sales of leasehold interests where the land was owned by BRA. Daniels explained how he valued the plaintiffs’ interests using these comparables, and he offered his opinion of the value of each leasehold.

Plaintiffs did not offer any valuation evidence other than the amount of their annual rentals, and they did not object to PPAD’s comparable sales testimony. Their position, therefore, necessarily rests upon the proposition that the trial court was required to follow the equity valuation method or that it was precluded from considering comparable sales. We find neither compelling. The trial court was required to determine the fair market value of plaintiffs’ interests without including the value of BRA’s interest. Because the trial court has some discretion to choose a methodology, because the Tax Code identifies comparable sales as an appropriate methodology, and because Daniels’s appraisals only valued plaintiffs’ leasehold interests, the trial court did not err by considering comparable sales. Issue One is overruled.

B. Did the Trial Court Consider the Individual Characteristics of Plaintiffs’ Leases?

PPAD utilized a mass appraisal process. The Tax Code authorizes this but requires that it be done in compliance with the Uniform Standards of Professional Appraisal Practice and that each property be appraised based upon the individual characteristics that affect its market value. Tex. Tax Code ANN. § 23.01(b) (Vernon Supp.2009). Plaintiffs argue that the trial court failed to follow this statute because it did not consider factors such as the length of their leases.

PPAD responds that it did consider individual characteristics but that they did not result in any valuation adjustments because the market did not adjust sales prices to reflect individual lease terms. Donna Rhoades is the chief appraiser for PPAD. Rhoades testified that her office investigated the relationship between the terms of BRA leases — both length and rent — and sales prices and found no correlation. She attributed this to the fact that BRA would enter into a new lease to match a purchaser’s loan. Daniels also testified that he looked at and considered lease terms but found that they did not impact sales prices. He gave as an example two comparable sales with significantly different lease lengths. One property sold for $83,500. The other sold for $84,500.

Plaintiffs contend that Rhoades and Daniels are improperly assuming that BRA will always renegotiate leases on request. However, the question before the trial court was the market value of plaintiffs’ property as of January 1, 2006. Predicting BRA’s future conduct necessarily involves risk, but the trial court heard uncontroverted evidence that, at least as of that date, the market did not discount sales prices because of the remaining length of a lease or because of any other specific lease provision. Because Tex. Tax Code Ann. § 23.01 (Vernon Supp.2009) limits consideration to characteristics that affect market value and because no witness testified that market value was impacted by lease terms, the trial court did not err in its valuation of plaintiffs’ leasehold estates. Issue Two is overruled.

IV. Appraising Plaintiffs’ Improvements

The Lands and the Wheatleys contend that the trial court erred by considering a location modifier when it valued their improvements. When different individuals or entities own the land and improvements, their interests are valued separately. Tex. Tax Code Ann. §§ 25.04, .08 (Vernon 2008). Rhoades testified that, when the Lands’ property was appraised, PPAD used a multiplier that she described as an economic factor or location modifier. PPAD utilizes the Marshall & Swift service to obtain a baseline value for construction costs. The modifier is applied to this value to reflect the cost to build in Palo Pinto County. Daniels was critical of this approach during his deposition because he believed that it attributed a portion of the location’s value to the value of the improvements. At trial, Daniels testified that, if he were interested solely in extracting the leasehold value, he would utilize a different method than employed by PPAD but that their methodology was acceptable when performing mass appraisals and that it resulted in a correct valuation of the leasehold interest plus improvements. He attributed the change in opinion to having given more thought to how a local modifier worked when using a mass appraisal technique. Daniels explained that, if you prepare an appraisal using an on-site estimate from a contractor, the additional cost to build in that particular location will necessarily be included but when an appraisal district does a mass appraisal and uses a cost estimation service such as Marshall & Swift, a location modifier is necessary.

Plaintiffs impeached Daniels by highlighting the change in testimony, but they offered no alternative valuation and did not object to Rhoades’s valuation testimony. The trial court did not err when it valued plaintiffs’ improvements. Issue Three is overruled. Because the trial court correctly valued plaintiffs’ interests, they are not entitled to attorney’s fees, and Issue Four is also overruled.

V. Conclusion

The judgment of the trial court is affirmed.

      . The Lands’ property value increased from $351,000 to $469,260. The Jacksons' property value increased from $359,050 to $472,140. The Wheatleys' property value increased from $132,010 to $296,630. The Aldrich property value decreased from $161,420 to $161,190.

      . The Lands filed a pretrial motion to exclude PPAD's experts but did not obtain a ruling on this motion.