text:
    James Michael GRANT, Appellant, v. The STATE of Texas, Appellee.
    No. 10-08-00393-CR.
    Court of Appeals of Texas, Waco.
    Jan. 27, 2010.

      Walter M. Reaves, Waco, for appellant.
    David A. Castillo, Coryell County Dist. Atty., Gatesville, for appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

James Michael Grant, II, pled guilty to the offense of Murder. Tex. Penal Code Ann. § 19.02 (Vernon 2003). He was sentenced by the court to 45 years in prison. He now appeals. Because the juvenile court did not abuse its discretion in waiving its jurisdiction and transferring Grant to criminal court, because the trial court did not err in denying his motion to suppress his statement, and because Grant’s constitutional challenge was not preserved, we affirm the trial court’s judgment.

Juvenile TransfeR Hearing

In his first and third issues on appeal, Grant challenges the juvenile court’s decision to waive its jurisdiction and transfer Grant to criminal court. We review those issues first.

When the State requests a transfer, the juvenile court is required to conduct a hearing without a jury to consider the transfer of a juvenile for criminal proceedings. Tex. Fam.Code Ann. § 54.02(b), (c) (Vernon Supp.2009). Before the hearing, the court is required to order and obtain a complete diagnostic study, social evaluation, and full investigation of the juvenile, his circumstances, and the circumstances of the alleged offense. Id. § 54.02(d). A juvenile court may then waive its jurisdiction and transfer the juvenile to criminal court if, after a full investigation and a hearing, the court determines there is probable cause to believe that the juvenile committed the offense alleged and that because of the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings. Id. § 54.02(a)(3).

The juvenile court can determine probable cause in a nonadversary preliminary hearing through the use of hearsay besides written and oral testimony. In re D.W.L., 828 S.W.2d 520, 524 (Tex.App.Houston [14th Dist.] 1992, no writ). The court does not determine the juvenile’s innocence or guilt at the hearing, but merely evaluates whether he should be tried as a juvenile or adult in subsequent proceedings. Id. at 524-525. The trial court is the sole factfinder in a transfer hearing and may choose to believe or disbelieve any or all of the witnesses’ testimony. Id. at 525.

Under Article 44.47 of the Texas Code of Criminal Procedure, an appeal from a juvenile court’s decision to certify a juvenile as an adult and to transfer the case to criminal court under section 54.02 of the Texas Family Code is a criminal matter. Tex.Code Crim. Proc. Ann. art. 44.47(a), (c) (Vernon 2006). A challenge to the certification and transfer order can be made only in conjunction with the appeal of a conviction of or an order of deferred adjudication for the offense for which the defendant was transferred to criminal court. Id. at art. 44.47(b). The juvenile court’s decision to transfer a case to district court is reviewed for abuse of discretion. McKaine v. State, 170 S.W.3d 285, 289 (Tex.App.-Corpus Christi 2005, no pet.); Faisst v. State, 105 S.W.3d 8, 12 (Tex.App.-Tyler 2003, no pet.).

Probable Cause

Grant first challenges the juvenile court’s finding of probable cause to believe Grant committed the offense of murder. Specifically, Grant challenges the sufficiency of probable cause to believe Grant committed murder as a party.

Probable cause consists of sufficient facts and circumstances to warrant a prudent person to believe that the suspect committed the offense. In re K.B.H., 913 S.W.2d 684, 689 (Tex.App.-Texarkana 1995, no pet.); In re D.W.L., 828 S.W.2d 520, 524 (Tex.App.-Houston [14th Dist.] 1992, no writ). A person commits an offense as a party if acting with intent to promote or assist the commission of an offense; he solicits, encourages, directs, aids, or attempts to aid another person to commit an offense. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003).

Facts developed at the hearing

In the early morning of September 15, 2007, the body of James Michael Grant (Michael), the father of appellant Grant, was found lying in a bar ditch a few feet from his pickup. Michael was wrapped in bed linens and tied with coax cables and yellow nylon ropes. His body had been stabbed multiple times in the chest and stomach area. Michael was wearing only boxer shorts and was covered in blood. The tailgate of his pickup was down. Because it appeared to investigators that Michael had been killed somewhere else and dumped in the bar ditch, the investigation was moved to Michael’s house.

Michael’s master bedroom looked like it had been ransacked. All of the drawers had been pulled out of the dresser. The bed sheets had been taken off of the bed. Blood was splattered on the wall, the bed, and the carpet. The garage door was open and there were no signs of a forced entry. A large comforter soaked in blood was on top of either the washer or the dryer. Blood was on the doorway leading out into the garage, on the garage floor, and on the driveway.

Jesus Ramos, a Texas Ranger investigating the murder, was told by Michael’s father, Garnett, that the relationship between Grant and Michael was bad.

Ramos and Ricky Helms, an investigator with the Coryell County Sheriffs Department, initially spoke with Grant during the evening of September 15th. Grant told Ramos he was at home asleep at the time of the murder. He stated he went to bed at about 11:30 p.m. and slept through the night. Although Grant’s room was across the house from Michael’s room, it was a very small house. Grant stated to Ramos that Michael sold drugs and that Grant believed someone had killed Michael. Grant denied hearing any commotion in the house.

Ramos noticed during the interview that there was “a lot of hate” in Grant and that Grant was not emotional or distraught that his father had been killed. Ramos also thought Grant had a cocky attitude. While Ramos was questioning Grant, Grant would not answer a question until the next question was asked, as if Grant was stalling. When Ramos continued with his questions, Grant became upset. He pointed his finger at Ramos and told Ramos not to interrupt him. Grant affirmed that he and Michael had a physical altercation in the past. When asked if he could “take” his father, Grant was very confident and cocky, stating he could hold his own. During the interview, Ramos got the impression that Grant was intentionally attempting to be manipulative or deceitful. When Grant left the room to go to the bathroom during the interview, he grabbed the door handle using his t-shirt. Ramos thought Grant was trying to prevent him from acquiring Grant’s fingerprints.

After the interview with Grant, Ramos searched Megan Lewis’s house with her consent. Megan was Grant’s mother and Michael’s ex-wife. Grant was present at the time of the search. Both Megan and Grant acted strange. They were not distraught about Michael’s death. They were laughing and having a good time, making strange comments. Grant commented that if all he lost that day was his boots, because they had been taken to be compared to bloody footprints, then it was a good day.

John Hopkins, Megan’s boyfriend, was the first person arrested for Michael’s murder. One day, after the murder and after drinking, Hopkins put a gun to his head. At one point, Hopkins pointed the gun at Grant to get him to “back off.” Megan and Grant called 911. On the recording, Megan and Grant were both trying to talk Hopkins out of committing suicide. Grant was pleading with Hopkins not to kill himself. Grant was crying, and toward the end of the recording, Grant told Hopkins that he loved him. Ramos found Grant’s reaction to Hopkins’s suicide attempt strange because Grant had not given that same emotion about Michael’s death.

By the time police arrived, Hopkins had left the house. Megan directed the police to a suicide note left by Hopkins. The note implicated only Hopkins in Michael’s murder. But when interviewed after his arrest, Hopkins confessed to his involvement in the murder and implicated both Grant and Megan.

Hopkins stated in his confession that Megan wanted Hopkins to kill Michael so that she could gain custody of her children. He initially thought Megan was crazy but became so romantically involved with her that he wanted to please her. Hopkins stated that he asked Grant what he would think if Hopkins killed Michael. Grant replied that Hopkins would be a king in their eyes, referring to Grant and Megan. After that, Hopkins decided to kill Michael and told Megan of his decision. Hopkins said he placed a call to Grant and told Grant he was going to kill Michael and needed the back door unlocked so that Hopkins could enter the house. Grant was to call Hopkins when Michael fell asleep. Grant complied and let Hopkins into Michael’s bedroom. Hopkins told Grant to leave the room. Grant stood in the living room and watched while Hopkins began stabbing Michael. Afterwards, Grant came in the room, and Hopkins handed him the knife. Hopkins walked out of the room and heard Grant make statements such as, “You deserved that, you son of a bitch.” Hopkins walked back to the room and found that Michael’s body had been removed from the bed and saw Grant stomping on Michael’s chest. Hopkins also stated that once the body was loaded into the pickup, he and Grant went back in the house and ransacked it. Then they dumped the body in a bar ditch.

Cellular telephone records showed that a call was made from Hopkins’s phone to Grant’s phone at 7:31 p.m. on September 14th. Another call was made from Hopkins’s phone to Grant’s phone at 11:35 p.m. Calls from Grant’s phone to Hopkins’s phone were made at 11:45 p.m. and 11:58 p.m. on the 14th, and then at 12:39 a.m., 1:21 a.m., 1:50 a.m., 2:13 a.m., 2:15 a.m., and 2:25 a.m. on the 15th of September. There is a call from Michael’s phone to Grant’s phone at 1:13 a.m. on the 15th as well.

After Hopkins’ confession, warrants were obtained for Grant’s and Megan’s arrest. When Ramos arrived to arrest Grant, Grant was wearing a loose t-shirt. Ramos asked him to raise his arms so Ramos could see if anything was hidden under the shirt. Grant refused. When Ramos grabbed the bottom of the t-shirt, Grant slapped Ramos’s arm away and told Ramos to get his “fucking” hands off of him. Grant was then arrested and re-interviewed.

At the second interview, Grant confirmed that he spoke to Hopkins at about one or two o’clock in the morning. Hopkins told him he was coming over to the house and he needed the door opened. Grant said he waited and when Hopkins arrived, Grant opened the back door to the patio. When Grant asked Hopkins what he wanted, Hopkins stated, ‘You know what I’m here for,” and displayed a knife strapped to his waist. Grant said he thought Hopkins was there to kill him. Hopkins told Grant to leave the room and Grant walked into the living room. Grant stated that Hopkins then proceeded to stab Michael. Grant stated that at various times he was held at knifepoint or gunpoint and was forced to help Hopkins. Neither Ramos nor Helms thought Grant was afraid of Hopkins.

During the investigation, Ramos spoke to E.M., a classmate of Grant. When, in E.M.’s view, Grant was acting strange one day, E.M. asked Grant if Grant had killed Michael. Grant nodded his head and made stabbing motions. E.M. was afraid of revealing this information because when he, Grant, and Hopkins, were on their way to buy marijuana on day after the murder, Hopkins told E.M. that if anyone was informing the police about the murder, that person would be in trouble.

Also during the investigation, Investigator Helms took a statement from Megan’s father. He stated that during Megan and Michael’s divorce, Megan made the statement that she wished Michael was dead or that someone would kill him. Megan’s father said that Grant volunteered to do it for his mother.

Helms also took a statement from R.H., a juvenile who was housed in a detention facility in Dennison, Texas. R.H. stated that in August of 2007, prior to R.H.’s detention, Grant approached him a couple of times and said that he wanted to kill Michaél. They then plotted to kill Michael. The plan devised was to stab Michael, load him up in a vehicle, and get rid of the body. R.H. was recruited to help clean up the mess.

Cari Starritt-Burnett, an attorney who assisted Michael with his divorce, testified that when she heard that Michael had been killed, she immediately knew there was foul play and that the family was involved in it. A few months after the divorce, Michael relayed an event to Cari that caused her concern. Michael told her that he woke up one night to see Grant holding a knife over him. John Lee, a local attorney and friend of Michael’s, relayed the same incident as told to him by Michael. Lee also said that Grant showed no emotion at Michael’s funeral and that he looked bored. When Lee heard of Michael’s death, he immediately suspected Grant.

Cheryl Tull, Michael’s girlfriend at the time of his death, also testified. She stated that she was around Michael’s children on every other weekend and that it was typical for there to be an uncomfortable exchange between Michael and Grant at least once or twice a weekend. By the summer of 2007, Tull had become afraid of Grant. At the end of June, there was an incident where Grant and Michael had yelled at each other. When Grant went to his room, he was heard throwing objects. He also punched holes in his wall. When Grant came out of his room, he said something to the effect, “You’re going to die.” Tull testified about another episode with Grant during the summer of 2007. They had been to Schlitterbahn and stopped to spend the night at Michael’s sister’s house. There was an “ugly scene” about where the kids were going to sleep. The next day on the way home, Grant leaned up in between the front seats, tapped Michael on his arm and said something to the effect that there was a place where someone can be stabbed and that the person will die instantly.

The Determination

After reviewing the record, we find the juvenile court did not abuse its discretion in finding sufficient facts and circumstances to warrant a prudent person to believe that the suspect committed the offense of murder as a party acting with intent to promote or assist the commission of the offense. Grant’s first issue is overruled.

Seriousness of the Offense

In this third issue, Grant contends that the juvenile court abused its discretion in waiving its jurisdiction based solely on the seriousness of the offense and in failing to consider the actual facts regarding what occurred. Grant argues that there was nothing to suggest the court engaged in an analysis of the facts of the offense. Contrary to Grant’s argument, it is clear from the record that the'juvenile court took the facts of the offense into consideration and did not base its decision solely on the seriousness of the offense. This consideration is most evident when the trial court made its probable cause determination. After the hearing on the State’s petition for discretionary transfer, the trial court stated on the record,

... there is ample evidence from which to determine that there is probable cause to believe that the defendant committed the offense of murder as a party with two other charged individuals. And without going into any specificity of which evidence that is, but simply that the physical facts of the investigation, the investigation and testimony concerning the two crime scenes, the juvenile respondent’s present (sic) at the primary crime scene where the offense would have had to have been committed, the unlikelihood that that could have happened without someone in that residence having been aware of it, and then with everything else, the phone calls, the statement of the juvenile respondent, all of those matters conspire to establish the probable cause.

Accordingly, the juvenile court did not abuse its discretion in waiving its jurisdiction. Grant’s third issue is overruled.

Ckiminal Court Proceedings

Grant’s second and fourth issues on appeal concern his proceedings in criminal court.

Motion to Suppress

His second issue is two fold: the trial court erred in denying his motion to suppress his written statement because Grant’s mother was not notified that he was taken into custody in violation of Texas Family Code Section 52.02(b) and because his mother was denied access to him before he gave his statement. See Tex. Fam.Code Ann. § 52.02(b) (Vernon 2008). Grant specifically argued at the motion to suppress hearing that pursuant to section 52.02(b), the law enforcement officers who arrested Grant did not give the required notice to anyone. He argued that the reason for the notice is so statements are not taken in such a way that juveniles do not have the benefit of advice from someone looking out for them.

Even if a violation of section 52.02(b) has occurred, a holding which we are expressly not making, Grant’s statement is not automatically excluded. To suppress a juvenile’s statement because of a violation of section 52.02(b), there must be some exclusionary mechanism. Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002). Section 52.02(b) is not an independent exclusionary statute. Id. If evidence is to be excluded because of a section 52.02(b) violation, it must be excluded through the operation of Article 38.23(a). Id. In light of Article 38.23(a), before a juvenile’s written statement can be excluded due to a violation of section 52.02(b), there must be a causal connection between the Family Code violation and the making of the statement. Id. The burden of proving this causal connection rests with the party attempting to exclude the statement, in this case, Grant. Pham, v. State, 175 S.W.3d 767, 774 (Tex.Crim.App.2005). Once a causal connection is established, the burden then shifts to the State to either disprove the evidence the defendant has produced, or bring an attenuation-of-taint argument to demonstrate that the causal chain asserted by the defendant was in fact broken. Id.

Grant had the burden of proving a causal connection between the alleged violation of section 52.02(b) and his statement. No evidence of a causal connection was presented at the motion for new trial hearing. Accordingly, the trial court was not required to exclude Grant’s statement.

To the extent that Grant actually made the argument to the trial court that Grant’s mother was denied access to him, that part of the issue is overruled. Generally, section 61.103 of the Texas Family Code provides that parents have a right of access to their child. Tex. Fam.Code Ann. § 61.103(a) (Vernon 2008). However, if the parent is denied the right of access, the child may not raise that complaint on appeal. Id. § 61.106.

Accordingly, the trial court did not err in denying Grant’s motion to suppress. Grant’s second issue is overruled.

Constitutionality of Statute

In his fourth issue, Grant argues that “the Texas Statute prohibiting community supervision for a person convicted of murder” is unconstitutional as applied to him, because it violates the protection against cruel and unusual punishment. An appellant must preserve an “as applied” constitutional challenge by raising it at trial. See Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex.Crim.App.2008); Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex.Crim.App.1994). Grant raised his “as applied” challenge in a pre-trial motion to quash. However, a motion to quash does not preserve the “as applied” challenge for appeal. Flores, 245 S.W.3d at 437, 442 (Cochran, J., concurring); Sheldon v. State, 100 S.W.3d 497, 505 (Tex.App.-Austin 2003, pet. refd) (op. on reh’g). Grant has not preserved this issue for our review. Accordingly, his fourth issue is overruled.

Conclusion

. Having overruled each of Grant’s issues on appeal, we affirm the trial court’s judgment.

      . Grant actually challenges the factual sufficiency of the evidence citing to case law which used the civil standard for factual sufficiency of the evidence as a review for a probable cause determination and was decided prior to the change in the Family Code and Code of Criminal Procedure which made the appeal of a transfer hearing a criminal matter. Because we believe the review of the probable cause determination necessarily encompasses a review of all the evidence presented at the transfer hearing, as in any other probable cause analysis, we will utilize the same standard of review for probable cause in this circumstance that we would to determine probable cause for any other purpose. See In re D.W.L., 828 S.W.2d 520, 524 (Tex.App.Houston [14th Dist.] 1992, no writ).

      . Hopkins had at some point prior to the murder been in prison in either New Jersey or Pennsylvania for a sex offense with a minor female.

      . At trial, Grant argued for the suppression of a statement given on September 15, 2007 and a statement given on October 29, 2007. On appeal, he contests the denial of the motion as to the second statement only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold Eric HAM, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00331-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    April 13, 2010.
    Discretionary Review Refused Aug. 25, 2010.

      John Bennett, Attorney at Law, Amarillo, TX, for Appellant.
    Luke McLean Inman, District Attorney, Wellington, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

PER CURIAM.

Appellant Harold Eric Ham has appealed his conviction and sentence. As an initial and ancillary matter, he challenges the trial court’s denial of his request for court-appointed appellate counsel and a free record on appeal. Finding the trial court correctly found appellant is not indigent for purposes of appointment of counsel and a free record, we will affirm.

Background

Appellant was convicted of murder and sentenced to 99 years confinement. He was represented by retained counsel at trial. Following sentencing, he requested appointment of appellate counsel. To support his request, appellant filed a sworn statement in the trial court reporting assets valued at $26,900. The calculation consisted of zero monthly income, $1,400 cash on hand, an automobile valued at $3,000, and real property valued at $30,000. From the value of the real estate, appellant subtracted $7,500 for a debt secured by a lien in favor of his trial counsel. Appellant’s monthly obligations totaled $1,070. This total consisted of $300 for utilities, $150 for vehicle insurance, $120 for medications, and $500 for food. The trial court denied the application, finding appellant was not indigent.

Appellant filed a motion for rehearing which the trial court granted. It conducted an evidentiary hearing on the motion. At the hearing, appellant requested appointment of counsel as well as a free appellate record. Appellant was the only witness. He testified his sister told him an attorney offered to represent him on appeal for $15,000. With respect to the cost of the appellate record, appellant agreed the record would cost “several thousand dollars.” There was no evidence of the payment terms or conditions required by the reporter and clerk for preparation of the appellate record.

Concerning assets, appellant testified he owns 300 acres of agricultural land in common with his two sisters. He valued his interest in this property at $30,000 but added the property had been listed with realtors for almost three years without a “serious” offer. On cross-examination, appellant explained he valued the property using the appraised value for ad valorem taxation. He was not certain of the listing price for sale but did not believe it was below $300 an acre. The land contains a creek and stock tank, and such wildlife as dove, deer and wild hogs. The property has not been leased for hunting; however, it is leased for cattle grazing and cultivation. Annual rental, according to appellant, is $3,200 which is deposited into an account to pay property taxes.

Appellant owns a 1998 Dodge pickup which he valued at $1,500 to $2,000. His mother uses the vehicle for transportation due to problems with her vehicle. Appellant referenced a checking account with a $1,500 or $1,000 balance, but added these funds belong to his mother. Appellant’s mother places $100 every two weeks in his prison commissary account. He is permitted an $85 draw on the account every two weeks. According to appellant, the amount withdrawn largely meets his present expenses.

Regarding other expenses, appellant testified he has no children. Appellant stated he owes trial counsel $7,500 to be paid on the sale of his land. There was no proof of a perfected lien against the property. He is also indebted to his aunt for $10,000. As for these obligations, appellant provided no specific terms of repayment. At the hearing, the trial court took judicial notice of appellant’s affidavit. It does not show repayment of any obligations in monthly installments.

The trial court found appellant is not indigent. In orally rendering its decision, the court stated it found common ownership of the real property might make a sale more difficult but the evidence did not show an effort by appellant to divide the property or obtain a loan secured by the property for payment of appellate counsel and the record. The court concluded appellant did not establish a prima facie case of indigence.

In response to appellant’s claim of indigence, we abated the appeal and directed the clerk and reporter to prepare a record of the indigence proceedings. We ordered the parties to then brief the issue. Appellant has filed a brief; the State has not.

Analysis

Concerning determination of a defendant’s indigence for the purpose of appointed appellate counsel and a free appellate record, the Court of Criminal Appeals recently succinctly explained:

A defendant is indigent for purposes of the appointment of appellate counsel if he is not financially able to employ counsel. For purposes of qualifying as an indigent in order to receive a copy of the record furnished without charge, a defendant must be unable to pay or give security for the appellate record. Indi-gency determinations are made at the time the issue is raised and are decided on a case-by-case basis. Determining indigency for purposes of appointing counsel and indigency for purposes of obtaining a free record are discrete inquiries, but the factors to be considered are the same. A defendant can be found indigent for one purpose without being found indigent for the other. Relevant to both indigency determinations are the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. Each county should have guidelines and financial standards that it applies to determine whether a defendant is indigent for purposes of appointing counsel.

McFatridge v. State, 309 S.W.3d 1, 6-6 (Tex.Crim.App.2010) (internal quotation marks and footnotes omitted). As for the burden of proof and review of the trial court’s determination, the court continued:

[The Court of Criminal Appeals] has adopted a two-step process to guide courts in making indigency determinations for purposes of a free record for appeal. First, the defendant must make a prima facie showing of indigency. Once the defendant satisfies this initial burden of production, the burden then shifts to the State to show that the defendant is not, in fact, indigent. This means, essentially, that unless there is some basis in the record to find the defendant’s prima facie showing to be inaccurate or untrue, the trial court should accept it as sufficient to find him indigent. After a defendant establishes a prima facie showing of indigency, an appellate court can uphold a trial court’s determination of non-indigence only if the record contains evidence supporting such a determination. In [Whitehead, 130 S.W.3d at 874, the Court of Criminal Appeals], recognized that the two-step process outlined above also applies when determining whether a person is indigent for purposes of appointed counsel. A reviewing court should uphold a trial court’s ruling denying indigent status only if it finds that the trial court, having utilized this two-step process, reasonably believed the defendant was not indigent.

Id. at 6 (internal quotation marks and footnotes omitted). Prima facie evidence is that quantum of proof on which the factfin-der may find the matter in issue established unless rebutted by other evidence. See Snoke v. State, 780 S.W.2d 210, 213 (Tex.Crim.App.1989) (per curiam) (once prima facie showing of indigency is made out, defendant has shown entitlement to record unless evidence refuting claim is offered); Thomas v. State, 474 S.W.2d 692, 695 (Tex.Crim.App.1972) (discussing definition of prima facie evidence).

Here, the issue concerns the first step of the trial court’s indigency determination, that is, whether the facts on which appellant relied are sufficient to establish a prima facie case of indigency.

The record indicates appellant has no obligation for the support of dependents, minimal to no monthly expenses, and no apparently obligatory terms of repayment for a loan from his aunt. He additionally owns a pickup with an equity value of $1,500 to $2,000. Of primary import to this discussion, appellant owns real property he values at $30,000. Even assuming a perfected lien of $7,500 against the property, a significant equity remains. Appellant’s evidence does not establish his financial inability to employ counsel. We agree with the trial court’s finding that appellant is not prima facie indigent. See Tex.Code Crim. Proc. Ann. art. 1.051(b) (Vernon Supp.2009).

Appellant cites Barry v. Brower, 864 F.2d 294 (3d Cir.1988) for the proposition that “[t]he Constitution requires states to meet a ‘present’ need for counsel. If by their nature an accused’s assets cannot be timely reduced to cash and cash is required, the ‘present’ financial inability to obtain counsel which defines indigence for Sixth Amendment purposes appears.” Id. at 299-300. The defendant in Barry possessed a joint interest in his home. He contacted six attorneys for representation. Five declined a mortgage as security and the sixth declined “long-term financing.” Id. at 300 n. 12. Thus the evidence supported the defendant’s need for cash to employ counsel.

This record contains no similar evidence of unsuccessful attempts by appellant to make use of his land, with or without its liquidation, to meet his present need for representation. It thus cannot be said that this record shows appellant requires cash to employ counsel or obtain an appellate record.

Agreeing with the trial court appellant failed to make a prima facie showing he is financially unable to employ counsel, or unable to pay or give security for the appellate record, we affirm its order denying appellant appointed counsel for appeal and a free appellate record.

      . Tex.Code Crim. Proc. Ann. art. 26.04 (Vernon Supp.2009) (appointment of counsel); Tex.R.App. P. 20.2 (record).

      . This attorney signed appellant's notice of appeal and appeared at the hearing for appellant. He also signed appellant’s brief on the indigence issue in this court.

      .Appellant's affidavit lists no dependents. Appellant testified in passing of expenses for insurance, food, and utilities. Given his testimony indicating his present expenses are satisfied by withdrawals from his commissary account, the trial court reasonably could have considered the references to insurance, food and utility expenses, and the similar expense amounts reflected in his affidavit, to indicate that appellant assisted his mother with these items before incarceration. The $500 monthly food expense appellant listed in his affidavit, for instance, could not be a personal expense after his incarceration. The record contains no explanation how, with no monthly income, appellant paid the $1070 monthly expenses he itemized in his affidavit.

      . The trial court reasonably could have concluded appellant's debts to his trial counsel and his aunt were not immediately payable. See Whitehead v. State, 130 S.W.3d 866, 878-79 (Tex.Crim.App.2004) (reaching similar conclusion with respect to indebtedness to family member).

      . See Ham v. State, 301 S.W.3d 930 (Tex.App.-Amarillo 2009) (per curiam order).

      . The record contains no indication of the standards promulgated by Hall County or their application by the trial court. See Tex. Code Crim. Proc. Ann. art. 26.04(a),(Z) (Vernon Supp.2009) (countywide procedures for appointment of counsel must include procedures and financial standards for determining whether a defendant is indigent).


author: Justice MORRIS.

text:
    WON PAK, Adisu Tadesse, and Ronny Luong, Appellants, v. Cameron M. HARRIS, Garza & Staples, P.C., Garza & Staples, LLP, and Dismuke, Waters & Schriedel f/k/a Dismuke & Waters, P.C., Appellees.
    No. 05-08-00857-CV.
    Court of Appeals of Texas, Dallas.
    April 15, 2010.
    Rehearing Overruled June 15, 2010.

      David K Line, The Line Law Firm, P.C., Dallas, TX, for Appellants.
    Martin Samuel Schexnayder, Houston, TX, Nicole Therese Leboeuf, Shackelford Melton & McKinely, Dallas, TX, for Appel-lees.
    Before Justices MORRIS, O’NEILL, and FILLMORE.
   OPINION

Opinion By

Justice MORRIS.

In this appeal, Won Pak, Adisu Tadesse, and Ronny Luong challenge a take-nothing summary judgment on their lawsuit against their former attorneys Cameron M. Harris, Garza & Staples, P.C., Garza & Staples, L.L.P., and Dismuke, Waters & Schriedel f/k/a Dismuke & Waters, P.C. Appellants contend the trial court erred in characterizing all of their claims as professional negligence claims that were barred by the two-year statute of limitations. For the reasons that follow, we affirm the trial court’s judgment.

I.

Appellants owned and operated a computer refurbishing business known as Sun Tec Computers, Inc. In October 2008, appellants, along with David Good, Robert Beshirs, and Timothy Southwell, met with Cameron Harris to discuss merging Sun Tec with two companies owned by Beshirs and Southwell. The six individuals signed an engagement letter with Harris on November 17, 2003. In the letter, Harris agreed to represent the six individuals as the initial investors in organizing a new Texas limited partnership with a new Texas limited liability company as the general partner of the limited partnership, which in turn would own three other limited liability companies, one of which would potentially service Sun Tec customers.

The formation documents for the new entities were drafted by Harris and signed by the six clients on December 31, 2003. Harris was not present at the signing. On January 12, additional documents were presented to and signed by Pak, including a contract assigning Sun Tec’s vendor contracts to IVEX, LLC, one of the newly formed limited liability companies. The following week, on January 19, Goode, Be-shirs, and Southwell (three of the four managing directors of the general partner of the newly created limited partnership) voted to exclude appellants Pak and Ta-desse from employment by and management of IVEX. Appellants contend that by this ouster, they lost the value and future profits of their company, Sun Tec, to Be-shirs and Southwell. The next day, appellants retained another attorney to represent them in their dispute with Southwell, Good, and Beshirs. But before appellants filed any claims against them, Good, Be-shirs, and Southwell sued Tadesse and Won Pak in Tarrant County seeking a declaratory judgment with respect to the merger agreement.

Appellants filed this lawsuit against Harris and his current and previous law firms on November 17, 2006. In their live pleadings, they asserted claims for negligence, breach of fiduciary duty, and conspiracy to commit fraud. Appellees moved for partial summary judgment on all causes of action pleaded by appellants other than those for professional negligence, arguing they constituted an impermissible fracturing of the negligence claim. The trial court granted appellees’ motion and rendered a take-nothing judgment on all claims asserted against appellees other than negligence. Appellees then moved for a second summary judgment on the grounds that appellants’ negligence claims were time-barred under the applicable statute of limitations. The trial court agreed and granted summary judgment on appellants’ remaining negligence claims. This appeal followed.

II.

In their first motion for summary judgment, appellees argued that all causes of action except those for negligence should be dismissed because they were nothing more than an impermissible division or fracturing of appellants’ professional negligence claim. In their first issue on appeal, appellants argue the anti-fracturing rule does not apply because their allegations of breach of fiduciary duty, conflicts of interest, misrepresentations, and aiding and abetting fraud support causes of actions for breach of fiduciary duty and conspiracy to commit fraud separate and apart from their negligence claims.

The anti-fracturing rule prevents plaintiffs from converting what are actually professional negligence claims against an attorney into other claims such as fraud, breach of contract, breach of fiduciary duty, or violations of the DTPA. Beck v. Law Offices of Edwin J. (Ted) Terry, Jr. P.C., 284 S.W.3d 416, 426-27 (Tex.App.Austin 2009, no pet.). For the anti-fracturing rule to apply, however, the gravamen of appellants’ complaints must focus on the quality or adequacy of the attorney’s representation. Murphy v. Gruber, 241 S.W.3d 689, 692-93 (Tex.App.-Dallas 2007, pet. denied). In contrast, claims of breach of fiduciary duty against an attorney focus on whether the attorney obtained an improper benefit from representing the client and involve the integrity and fidelity of the attorney. Id. at 693. Merely characterizing conduct as a “misrepresentation” or “conflict of interest” does not necessarily transform what is really a professional negligence claim into a fraud or breach of fiduciary duty claim. Id. at 697. Whether certain allegations asserted against an attorney and labeled as breach of fiduciary duty or fraud are actually claims for professional negligence is a question of law to be determined by the court. Id. at 692.

Appellants argue that they have asserted a proper breach of fiduciary claim and a fraud claim against appellees based on the following allegations. Appellants claim that Harris represented them with divided loyalties contrary to his oral promise to treat each person “equally and fairly” and failed to inform them of the conflict of interest between appellants and the other investors as well as other material facts. Specifically, they contend a conflict of interest arose as result of an October 23 email from Beshirs in which he relayed Good’s request that Harris keep confidential a previous discussion Harris, Beshirs, and Good had about “the tax issue.” The email further indicated that Good did not “want his fellow shareholders to know we talked.”

Appellants allege Harris did not disclose the email to them or alert them to any possible conflict of interest created by the email, which was sent the day before all six individuals met with Harris for the first time. Had they known about this conversation between Good and Beshirs, appellants contend they would not have proceeded with the merger. Appellants also claim Harris facilitated; conspired with, or aided and abetted the fraud of the other investors by not disclosing the conflict of interest allegedly created by the email, “having divided loyalties among the six clients,” failing to disclose Beshir’s email, failing to disclose after the merger that he did not draft the document assigning Sun Tec’s vendor’s contracts to IVEX, and “failing to take corrective action” after he learned of their fraud.

After reviewing the record before us, we conclude the allegations upon which appellants rely to support their breach of fiduciary duty and conspiracy to commit fraud claims do nothing more than recast their claims for professional negligence under alternative labels. The allegations involve the question of whether Harris failed to exercise the degree of care, skill, or diligence in performing his duty to inform appellants about issues that could arise during the representation of multiple clients and his duty to communicate with and among the clients he represented in this matter. Appellants allege Harris’s mishandling of the representation enabled fellow investors to defraud them out of their business. They do not complain specifically about any improper benefit Harris received from representing appellants. At the heart of appellants’ complaint is Harris’s alleged failure to provide adequate legal representation by his failure to properly inform, advise, and communicate with them. As such, we conclude the gist of appellants’ allegations involves the quality of Harris’s representation rather than the integrity and fidelity of the attorney. These complaints sound in negligence and not breach of fiduciary duty or fraud.

In reaching this conclusion we necessarily reject appellants’ position that their conflict of interest allegations give rise to a breach of fiduciary duty claim. Even if a complaint implicates a lawyer’s fiduciary duties, it does not necessarily follow that such a complaint is actionable apart from a negligence claim. In fact, the standard of care in attorney negligence cases often refers to and is defined by the characteristics inherent in the fiduciary duty between the lawyer and the client. See Murphy, 241 S.W.3d at 696. Appellants do not allege Harris obtained an improper benefit from his representation or his failure to disclose any conflict of interest. To the extent that appellants argue Harris favored his own pecuniary interest in obtaining his legal fee over appellants’ interests, we conclude that this interest, without more, is insufficient to allege the type of dishonesty or intentional deception necessary to convert a negligence claim into one for breach of a fiduciary duty. See Beck, 284 S.W.3d at 433-34; Murphy, 241 S.W.3d at 699. As in Beck and Murphy, whether Harris received attorney’s fees or an improper personal benefit from the alleged failures to disclose is clearly not the gravamen of appellants’ complaints. See Beck, 284 S.W.3d at 433-34; Murphy, 241 S.W.3d at 699. Instead, appellants’ focus is that Harris’s actions caused or contributed to the other investors being able to defraud them. Accordingly, we conclude the trial court did not err in determining appellants’ allegations constitute claims of professional negligence. We resolve appellants’ first issue against them.

In their second issue, appellants challenge the trial court’s ruling on appel-lees’ second motion for summary judgment. Appellants argue the trial court incorrectly concluded their professional negligence claims were time-barred. Generally, a suit for professional negligence must be brought no later than two years from the date the cause of action accrues. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2009); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex.2001). A cause of action generally accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later and even if all resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). To be entitled to summary judgment based on their limitations defense, appellees must conclusively establish the date appellants’ cause of action accrued, negate the applicability of the discovery rule or any tolling doctrines raised, and prove as a matter of law that appellants’ claims are time-barred. See Bums v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

Appellants acknowledge their lawsuit was filed two years after Harris completed his work. And they do not dispute they were aware that they had been injured as early as January 19, 2004, the date they were ousted. Instead, they argue the statute of limitations was tolled under either Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991), the discovery rule, or “equitable tolling.”

Under Hughes, when an attorney commits legal malpractice in the prosecution or defense of a claim, the statute of limitations is tolled until all appeals on the underlying claim are exhausted. Hughes, 821 S.W.2d at 156-57. Appellants concede that Harris did only transactional work and, consequently, the alleged negligence did not occur in the prosecution or defense of a claim. Nevertheless, appellants contend the Hughes tolling doctrine applies to their professional negligence claims against appellees until all appeals are exhausted in appellees’ Tarrant County lawsuit against them. They claim the policy rationales set forth in Hughes are satisfied by applying the rule to their claims. Specifically, they contend that prosecuting this malpractice case while defending appellees’ lawsuit would require appellants to take inconsistent positions and resolution of ap-pellees’ lawsuit might determine the malpractice suit.

We have previously rejected the applicability of the Hughes tolling doctrine in professional negligence cases involving transactional work. See Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 292-93 (Tex.App.-Dallas 2005, no pet.). Because any alleged negligence arising out of Harris’s representation of appellants in the merger transaction at issue is not malpractice committed during the prosecution or defense of a claim that results in litigation, the Hughes rule does not apply to appellants’ claims. See id.

Appellants assert that even if the Hughes rule does not apply to their negligence claims, the discovery rule and “equitable tolling” delayed accrual of their negligence claims until they discovered the October 23 email and that the Sun Tec assignment document was not prepared by Harris. The summary judgment evidence established that on January 19, 2004, only three weeks after the closing at which the merger documents were signed, appellants were ousted from IVEX, the new company that had been assigned Sun Tec’s vendor contracts. The next day, appellants consulted with another attorney to explore potential causes of action against various entities as a result of the ouster. In fact, in a February 4, 2004 email to his new attorney, appellant Tadesse questioned the reorganization structure Harris set up, Harris’s failure to have all of the paperwork, and whether Harris represented “all the partners’ interest.” The email further asserts that Harris “left Won and I[sic] vulnerable.” There was also summary judgment evidence that appellant Luong knew as early as February 2004 that he could bring a claim against Harris for the work performed in the merger transaction. Finally, in April 6, 2004 responses to requests for disclosure in the Tarrant County lawsuit against them, appellants specifically named Harris as a potential party. Based on the summary judgment record before us, appellees conclusively established that appellants’ cause of action for professional negligence against appellees accrued no later than April 6, 2004 when appellants named Harris as a potential party in the Tarrant County lawsuit. The summary judgment evidence further negated the applicability of the discovery rule and the other tolling doctrines pleaded by appellants. That additional facts or details arguably supporting appellants’ professional negligence cause of action were revealed during the discovery period in this lawsuit does not alter our conclusion. Because appellants’ lawsuit was not filed within two years of April 6, 2004, their professional negligence claims were time-barred as a matter of law, and the trial court did not err in granting summary judgment based on limitations. We resolve appellants’ second issue against them.

We affirm the trial court’s judgment.

      . David Good was the president of Sun Tec but owned no stock in the company.

      . Harris denied drafting this assignment document.

      . Although appellants alleged in their pleadings and on appeal that the ouster occurred on January 19, 2004, the summary judgment evidence includes an excerpt from Won Pak's deposition indicating the ouster occurred a day later, on January 20.

      . After the merger and ouster, appellants discovered that Beshirs and Southwell had been convicted for federal crimes and that their two companies had purportedly been used to carry out their crimes.

      . According to appellants' third amended original petition pleading, the attorney contacted Harris to inquire about the matter.

      . Appellants do not challenge the trial court’s take-nothing summary judgment on their claims for stock fraud and securities fraud. Accordingly, we express no opinion on the trial court’s disposition of those claims.

      . Appellants contend the fact that Beshirs and Good were secretly speaking indicated dishonesty on their part.

      . In their brief, appellants differentiate application of the Hughes tolling rule between their fraud and malpractice claims. Because we have previously concluded that appellants’ claims sound only in professional negligence and not in fraud or breach of fiduciary duty, we do not address these arguments.

      . Appellants apparently discovered this information after this lawsuit was filed.


author: Justice MOSELEY.

text:
    ALLIED CAPITAL PARTNERS, LP, Appellant, v. PROCEED TECHNICAL RESOURCES, INC. and Edward R. Garcia, Appellees.
    No. 05-09-00707-CV.
    Court of Appeals of Texas, Dallas.
    April 27, 2010.

      Mark Douglas Cronenwett, Higier Allen & Lautin, PC, Addison, TX, Jonathan Clark LaMendola, William D. Cobb, Jr., Carrie Johnson Phaneuf, Cobb Martinez Woodward PLLC, Dallas, TX, for Appellant.
    Dan S. Boyd, The Boyd Law Firm, P.C., Dean Fuller, Dallas, TX, for Appellee.
    Before Justices MOSELEY, RICHTER, and FRANCIS.
   OPINION

Opinion By

Justice MOSELEY.

This is an interlocutory appeal from a temporary injunction. Allied Capital Partners, LP entered into a factoring agreement with Proceed Technical Resources, Inc. (PTRI), guaranteed by Edward R. Garcia. The trial court enjoined Allied from contacting customers of PTRI from whom Allied claimed a security interest in accounts receivable owed by the customers to PTRI for the purpose of enforcing the security interest or requesting payment from the customers. The temporary injunction also prohibited Allied from indicating to PTRI’s customers that the parties were in litigation about the ownership of or interest in those accounts receivable.

In four issues, Allied contends the trial court abused its discretion by determining PTRI showed a probable right of recovery on its claims and by issuing the temporary injunction. We agree. We reverse the trial court’s orders granting and extending the temporary injunction, vacate the temporary injunction, and remand for further proceedings.

BACKGROUND FACTS

Allied and PTRI entered into a factoring agreement on October 31, 2008. Under the terms of the factoring agreement, PTRI could list which accounts it wanted to offer to Allied for factoring. Allied, which was not obligated to purchase any account PTRI offered to sell, would then either accept PTRI’s offer by paying the purchase price for all the listed accounts, less the reserve amount determined by Allied under the agreement, or mark out accounts it did not want to purchase and pay the purchase price for the remaining accounts, again less the reserve amount.

Allied agreed to provide PTRI a monthly statement of transactions affecting the reserve account. In general, PTRI warranted that all the accounts it sold to Allied would be valid, would be paid when due, and would not be disputed by the account debtor. If an account Allied purchased was not paid within a certain period of time or if PTRI breached its warranties, PTRI was required to repurchase the account.

To secure all of PTRI’s obligations and liabilities to Allied, the factoring agreement granted Allied a security interest in all of PTRI’s existing and later arising accounts and other assets as collateral. The factoring agreement stated it was the entire understanding between the parties and could not be modified except by a writing signed by both parties.

It is undisputed that, at PTRI’s request, Allied paid over $550,000 to buy out PTRI’s former factoring company, American Receivable. It is also undisputed that Allied purchased about $270,000 of PTRI’s accounts receivable in November. In December, PTRI submitted additional invoices for factoring. PTRI contends Allied refused to either pay cash for or reject these invoices, breaching the agreement. Allied claims it bought the December invoices, but applied all but $5000 of the purchase price to the reserve account under the factoring agreement because older factored invoices were past due.

Allied sued PTRI and Garcia in April 2009 to collect over $634,000 in unpaid factored invoices. Allied alleged PTRI breached its warranties under the factoring agreement and failed to repurchase unpaid accounts as required by the factoring agreement.

In May 2009, Allied contacted an account debtor of PTRI and requested it pay the account directly to Allied. PTRI then filed a counterclaim and request for a temporary restraining order and temporary injunction to prevent Allied from contacting its account debtors. Allied opposed the motion, asserting that under the terms of the factoring agreement it had a security interest in all of PTRI’s accounts — even those not purchased by Allied. After a hearing, the trial court granted the temporary injunction.

STANDARD OF REVIEW

We apply well-established standards of review to the granting or denial of a temporary injunction. See Bank of Texas, N.A. v. Gaubert, 286 S.W.8d 546, 552 (Tex.App,-Dallas 2009, pet. dism’d w.o.j.). We review the trial court’s action for an abuse of discretion. Id. A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). The applicant must show a cause of action against the other party, a probable right to the relief sought, and a probable, imminent, and irreparable injury if the injunction does not issue. Id. We do not reach the merits of the dispute on interlocutory appeal and will not assume the evidence presented at the temporary injunction hearing will be the same as the evidence developed at a full trial on the merits. See Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884-85 (Tex.App.Dallas 2003, no pet.). As we have recognized, the appeal of a temporary injunction should not be cause for trial delay and trial courts should proceed expeditiously to the full consideration of the merits to reduce the need for interlocutory appeals. Hiss v. Great N. Am. Companies, Inc., 871 S.W.2d 218, 219 (Tex.App.-Dallas 1993, no writ).

ANALYSIS

Allied contends PTRI failed to show a probable right of recovery because Allied performed under the terms of the factoring agreement and exercised its rights under that agreement. PTRI contends Allied committed a material breach of the factoring agreement by: (1) failing to either purchase or reject the December schedules of invoices; (2) keeping about $14,000 from non-factored accounts collected by Allied; and (3) failing to provide PTRI with a monthly accounting of the reserve account maintained by Allied under the factoring agreement. As a result, PTRI argues its performance under the agreement is discharged or excused.

“It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance.” Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 196 (Tex.2004) (per curiam); see also Prodigy Commc’ns Corp. v. Agric. Excess & Surplus Ins. Co., 288 S.W.3d 374, 378 (Tex.2009). PTRI relies on this general principle to support the temporary injunction, arguing that once Allied committed a material breach PTRI was excused from further performance under the factoring agreement. PTRI, however, fails to analyze the materiality of alleged breaches or to recognize the limitations on the application of the general rule.

The supreme court follows the restatement of contracts in determining the materiality of a breach. See Mustang Pipeline, 134 S.W.3d at 196; Restatement (Second) of Contracts § 241, 242 (1981). Some of the significant circumstances considered in determining whether a breach is material include the extent to which the injured party will be deprived of the benefit which he reasonably expected, the extent to which he can be adequately compensated for the loss of that benefit, and the extent to which the breaching party will suffer forfeiture. Restatement (Second) of Contracts § 241. If, considering these circumstances, a party has materially breached the contract, the other party is discharged from further performance.

However, a material breach will not discharge an obligation of the non-breaching party that arose before the alleged breach. Where the parties promise to exchange performances, it is a condition of each party’s duty to render performance that there be no uncured material failure by the other party to render any such performance due at an earlier time. Restatement (Second) of Contracts § 237. Parties sometimes make several promises to exchange performances under a single contract. Under section 237, “only duties with respect to the performances to be exchanged under the particular exchange of promises are affected by a failure of one of those performances.... [A] duty under the same contract [is not] affected if it was not one to render a performance to be exchanged under an exchange of promises. ... Furthermore, only duties to render performance are affected. A claim for damages that has already arisen as a result of a claim for partial breach is not discharged under the rule stated in this Section.” Restatement (Second) of Contracts § 237 cmt. e.

Thus, the general rule is that an uncured material breach before the injured party has fully performed his duties with respect to the expected exchange, will discharge that party’s remaining duties of performance and give rise to a claim for damages for total breach. Restatement (Second) of Contracts §§ 237, 243. But, “[t]here is, of course, an exception where the injured party has already, at the time of the breach, come under a duty to render performance of an agreed equivalent under the rule stated in § 240. Such a duty is not discharged, even if there is a material breach, and its survival does not prevent the injured party from claiming damages for total breach under Subsection (1).” Restatement (Second) of Contracts § 243 cmt. a.

Here, the factoring agreement contemplates a series of offers by PTRI to sell invoices and acceptances by Allied, with neither party under an obligation to offer or accept. Allied could accept the offer by paying the purchase price less the reserve under the terms of the factoring agreement. It is undisputed that PTRI submitted schedules of invoices to Allied for factoring in November and Allied accepted by paying the purchase price less the fees and reserves specified in the factoring agreement. According to Garcia, the overall debt with Allied was about $850,000 and PTRI paid it down to about $520,000. Although a substantial portion of this amount was part of the buyout of American Receivable, there is no dispute that Allied performed as to the November invoices.

PTRI does not contend, and there is no evidence, that Allied committed a material breach with respect to the factoring of the November schedule of invoices. In exchange for Allied’s performance as to the November invoices, PTRI promised to repurchase any unpaid invoices and gave a security interest in all of its accounts to secure that promise. These duties and obligations of PTRI were not conditioned on Allied’s subsequent purchase of additional accounts, or other performance under the factoring agreement. Thus, regardless of whether Allied failed to either purchase or decline the offered December invoices and whether any such action constituted a material breach, Allied’s alleged actions would not discharge PTRI’s duties with regard to the November invoices. See Restatement (Second) of Contracts §§ 236 cmt. b, 237 cmt. e, 240 (1981).

Regarding the other alleged breaches, the record is unclear when the $14,000 non-factored invoices were collected by Allied, but Garcia agreed that Allied factored about $270,000 for the November invoices. Garcia also admitted he had computer access to the reserve account at least until December 2008 or early January 2009. Under this record and the circumstances mentioned in restatement sections 240 and 241, it is not probable that either of these alleged breaches (the $14,000 in non-factored receivables and the failure to provide monthly statements) would rise to the level of a material breach that would cause Allied to forfeit its security interest, at least to the extent of the November invoices.

A temporary injunction should be extraordinary, not routine.

An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue. Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a trial of a case on its merits for many months. The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. ... If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.

Camp v. Shannon, 162 Tex. 515, 519, 348 S.W.2d 517, 519 (1961). We conclude the trial court abused its discretion by enjoining the enforcement of the security interest at least to the extent of the November invoices.

We sustain Allied’s first issue. We need not address the remaining issues. Tex. R.App. P. 47.1. We reverse the trial court’s orders granting and modifying the temporary injunction, vacate the temporary injunction, and remand for further proceedings.

      . Although the buyout of American Receivable is not disputed, PTRI argued in the trial court that the factoring agreement did not cover the buyout. This argument goes to the merits, and its resolution does not impact any issue raised on appeal. Thus, we do not address it further.

      . Other circumstances include:
      (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
      Restatement (Second) of Contracts § 241. In addition, the following circumstances are significant in determining when a party’s duties are discharged under a contract due to the other party’s material breach:
      (1) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements.
      (2) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party’s remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important.
      Restatement (Second) of Contracts § 242.

      . Similarly, a duty of the injured party that is not part of the agreed exchange of performances is not discharged. "And a duty of the injured party to give a performance that is the agreed equivalent of performance that has been given by the other party is not discharged (§ 240).” Restatement (Second) of Contracts § 236 cmt. b. Under section 240, if performances to be exchanged can be apportioned into corresponding pairs of part performances that can be regarded as agreed equivalents, a party’s performance of his part of a pair has the same effect on the other party’s duty to perform its corresponding part of the pair. Restatement (Second) of Contracts § 240. The puipose of this rule is to reduce "the risk of forfeiture in that important class of cases in which it is proper to regard corresponding parts of the performances of each party as agreed equivalents. Its effect is to give a party who has performed one of these parts the right to its agreed equivalent just as if the parties had máde a separate contract with regard to that pair of corresponding parts. A failure as to some other part does not affect this right.” Restatement (Second) of Contracts § 240 cmt. a.


author: Justice SMITH (Assigned).

text:
    AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Appellant, v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION and Robert E. Tang, Appellees.
    No. 05-06-01024-CV.
    Court of Appeals of Texas, Dallas.
    April 27, 2010.
    Corbet F. Bryant, Richardson, TX, Jeffrey S. Levinger, Hankinson Levinger LLP, Christopher John Scanlan, Thomas F. Allen, Jr., Carrington, Coleman, Sloman & Blumental, LLP, Dallas, TX, for Appellant.
    David W. Shuford, Law Office of David Shuford, Michael L. Jones, Henry L. Jones, Henry <& Jones, L.L.P., Dallas, TX, for Appellees.
    Before Chief Justice WRIGHT and Justices RICHTER and SMITH.

      . The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.

   OPINION ON REMAND

Opinion By

Justice SMITH (Assigned).

This is an appeal from a jury verdict in a legal malpractice lawsuit filed by appellees National Development and Research Corporation and Robert E. Tang against appellant Akin, Gump, Strauss, Hauer & Feld, L.L.P. The jury found Akin Gump negligent and the trial court rendered judgment requiring Akin Gump to pay ap-pellees actual damages and prejudgment interest totaling $1,117,369.72, based on the jury’s awards of (1) $427,777.77 for the fair market value of certain stock, (2) $168,667.41 for the judgment paid by ap-pellees in the underlying lawsuit, (3) $216,590.00 for attorneys’ fees and expenses paid by appellees in the underlying lawsuit, and (4) $109,596.68 for a success fee owed to appellees. Akin Gump appealed the damages awards for the fair market value of the stock, attorneys’ fees and expenses, and the success fee owed to appel-lees. By opinion dated August 29, 2007, we affirmed the damages awards for the value of the stock and the success fee. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 232 S.W.3d 883, 894, 899 (Tex.App.-Dallas 2007), rev’d, 299 S.W.3d 106 (Tex.2009). With regard to the damages award for attorneys’ fees and expenses, we concluded, based on this Court’s binding precedent, that attorneys’ fees and expenses paid by appellees in the underlying lawsuit were not recoverable as damages in a subsequent legal malpractice lawsuit and reversed that damages award. Id. at 897.

Both parties filed petitions for review in the Texas Supreme Court. The supreme court reversed this Court’s judgment and rendered judgment that appellees take nothing on their claims for the fair market value of the stock and the success fee. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112-19, 124 (Tex.2009). It also held that attorneys’ fees and expenses incurred in an underlying lawsuit are recoverable as damages in a subsequent legal malpractice lawsuit and reversed our judgment and remanded the cause to this Court for further proceedings. Id. at 119-22,124.

On remand, the parties have filed a joint motion for rendition of judgment and dismissal of the appeal stating they have settled all their disputes in this case. Citing rule of appellate procedure 42.1(a)(2)(A), the parties ask the Court to:

(1) render a take-nothing judgment;
(2) dismiss the appeal;
(3) discharge the obligations of The Hartford Casualty Insurance Company as surety on Akin Gump’s supersedeas bond; and
(4) provide that each party shall bear its own costs of court.

We grant the parties’ motion, and, in accordance with their agreement, render judgment that appellees take nothing by their claims and dismiss the appeal. See Tex.R.App. P. 42.1(a)(2)(A). We discharge the obligations of the surety and order that each party shall bear its own costs of court.


author: JAMES T. WORTHEN, Chief Justice.

text:
    Charles R. WIGGINS and, R. Zachary Tonroy, Appellants, v. Glen S. CADE, Appellee.
    No. 12-08-00329-CV.
    Court of Appeals of Texas, Tyler.
    May 5, 2010.

      Frank R. Parish, Houston, Donald R. Tonroy, for Appellant.

      Daryl L. Derryberry, Tyler, Gregory D. Smith, for Appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION ON REHEARING

JAMES T. WORTHEN, Chief Justice.

Glen S. Cade has filed a motion for rehearing, which is overruled. We withdraw our opinion of January 29, 2010 and substitute the following opinion in its place.

Both Appellants, Charles R. Wiggins and R. Zachary Tonroy, and Appellee, Glen S. Cade, claim title to the same 1/64 nonparticipating royalty interest in the oil and gas produced and saved from a gas well in Rusk County. Cade filed a petition for declaratory judgment and to quiet title. By summary judgment, the trial court determined that Cade is the owner. Wiggins and Tonroy contend in two issues that the trial court erred. We reverse and remand for further proceedings.

Background

On September 28, 2004, Dale Resources (East Texas), L.L.C. (“the developer”) filed an application for appointment of a receiver for the 1/32 nonparticipating royalty interest jointly owned by B.F. Crook and Mildred Andrene Crook Higginbotham Goad because it could not find Crook and Goad. In an “Agreed Order Determining Ownership of Mineral Interest Under Judgment Approved by the Court and Distribution of Funds Held by the Registry of the Court for Glen Cade,” signed February 1, 2006, the court found that William Thomas Crook (“W.T. Crook”) and Edward Howard Stewart had inherited Goad’s 1/64 interest. Further, the court found that Stewart’s interest had been inherited by David E. Rinehart, and then W.T. Crook’s and Rinehart’s interest had been transferred to Cade. The order was signed and agreed as to form by the receiver and the attorneys for Cade, Goad, and the developer.

The record shows further that between the time the developer filed its application for a receiver and the time the court entered its order determining ownership, W.T. Crook and Rinehart had executed two sets of deeds, first to Wiggins (royalty deeds) and subsequently to Cade (mineral deeds) as shown below:

Grantor Grantee Date of Deed Date Deed Recorded William Thomas Crook Charles Wiggins 10/14/04 David Rinehart Charles Wiggins 11/16/04 William Thomas Crook Glen Cade 1/20/06 David Rinehart Glen Cade 1/23/06 10/20/04 11/18/04 1/23/06 1/24/06

The January 20, 2006 deed from W.T. Crook to Cade stated that the “[effective date of this Deed is 1-20-04.” The deed from Rinehart to Cade, dated January 23, 2006, stated that the “[effective date of this Deed is 2-20-04.”

Then, in a proceeding after the receivership, Cade sought a declaratory judgment and to quiet title asserting that Wiggins and Tonroy did not have a valid claim to the nonparticipating royalty interest. Cade later filed a motion for summary judgment based on two legal theories. First, he claimed that the royalty deeds from Crook and Rinehart to Wiggins violated the statute of frauds because they contained an insufficient legal description and were therefore void. Second, Cade claimed that title to the 1/64 nonparticipating royalty interest had been fully litigated in the receivership action and that the doctrine of collateral estoppel precluded it from being litigated again. The trial court granted summary judgment for Cade without specifying which legal theory provided the basis for its ruling. Wiggins and Ton-roy timely filed this appeal.

Standard of Review

We review the trial court’s decision to grant a summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.Sd 184, 192 (Tex.2007). The mov-ant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). To prevail on a summary judgment, a plaintiff must conclusively prove all elements of his cause of action as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007). If the trial court’s order does not specify the grounds on which it granted summary judgment, we affirm if any of the grounds specified in the motion are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

Statute of Frauds

In their first issue, Wiggins and Tonroy contend that the trial court erred in granting summary judgment based on the statute of frauds. They assert that there is a question of fact regarding whether the description in their royalty deeds is legally sufficient.

Summary Judgment Evidence

The royalty deeds from Crook and Rine-hart, in October and November of 2004 respectively, contained the same legal description as follows:

BEGINNING at an offset corner, same being the northwest corner of a tract of 45 acres of land formerly owned by Mrs. Kate Crook;
THENCE South with East boundary line of the Seelbach tract 335 varas to southeast corner of said Seelbach tract on North boundary line of J.H. White 119 acre tract;
THENCE East with north line of said White tract 268 varas to Northeast corner of same, a stake for corner; THENCE South 10 deg. 1160 varas to corner on North boundary line of G.W. Coats 150 acre tract to the northeast corner of same;
THENCE North 3 deg. West 1031 var-as to a corner at a fence, same being the West boundary line of land owned by Tipps and Rogers;
THENCE West with an old fence 110 varas to corner at an old fence;
THENCE North 10 deg. West with an old fence 487 varas to the Northeast corner of Mrs. Kate Crook’s 45 acre tract;
THENCE West with the North boundary line of said 45 acre tract, 756 varas to the place of beginning, containing 169.31 acres of land, more or less.

As part of his summary judgment evidence, Cade offered the affidavit of R.E. (Bob) Peyton, Jr., a registered professional land surveyor who had twenty-four years of experience in Texas. Peyton stated that he could not locate the property on the ground with reasonable certainty based on the legal description in the deeds because it contained neither the name of the survey or the abstract number in which the property was situated.

Wiggins and Tonroy filed an affidavit by Donald R. “Tex” Tonroy, a petroleum landman, in response to Cade’s summary judgment motion. In his affidavit, Tonroy stated that he had been a petroleum land-man for more than thirty years in Texas and had been licensed to practice law in Texas for fourteen years. During that time, he examined public records for the purpose of determining mineral, royalty, and working interest ownership. He stated that by using the description in the two royalty deeds and by examining the public records of the county clerk of Rusk County, Texas, he determined that the forty-five acres formerly owned by Mrs. Kate Crook was located in the M.V. Peña Survey, A-27, of Rusk County, Texas. He stated that he was able to determine this information from a search for Kate Crook in the grantor/grantee indices of the Rusk County clerk’s office. He stated that this was the only forty-five acre tract that Kate Crook ever owned in Rusk County and that therefore he was able to locate the land described in the two royalty deeds with reasonable certainty.

Applicable Law

The sufficiency of the legal description in any instrument transferring a property interest is a question of law and

subject to a de novo review. Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 194 (Tex.App.-Tyler 2004, pet. denied). An instrument conveying land must contain a sufficient legal description or the instrument is void under the statute of frauds. Id. A property description is sufficient if the writing furnishes within itself or by reference to some other writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex.2008). A recital of ownership in a deed may be used as an element of description and may serve as a means, together with some other element, of identifying the land with reasonable certainty. Broaddus v. Grout, 152 Tex. 398, 402, 258 S.W.2d 308, 310 (1953). Where the deed contains some data susceptible of being connected, by parol testimony, with some definite land, the description is in law sufficient. Elders v. Delhi-Taylor Oil Corp., 350 S.W.2d 567, 573 (Tex.Civ.App.-San Antonio 1961, no writ.). A deed is not void for uncertainty unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land. Jamison v. City of Pearland, 489 S.W.2d 636, 641 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref d n.r.e.). If enough information appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, it will be sufficient. Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247, 248-49 (1955).

Analysis

Peyton’s affidavit stated the legal description was insufficient to locate the property on the ground because it did not contain the survey name and abstract number. Kate Crook’s name appeared in the legal description as the former owner of a forty-five acre tract bordering the land at issue. Tonroy showed in his affidavit that by searching the grantor/grantee indices located in the office of the Rusk County clerk for the name of Kate Crook, he found documents identifying the subject property’s survey name and abstract number. With this data, he was then able to identify the land described in the two royalty deeds from Crook and Rinehart to Wiggins with reasonable certainty.

Cade contends that Tonroy’s affidavit was not sufficient evidence to defeat his motion for summary judgment. He asserts that a deed must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. He argues that the deeds here do neither. He further argues that the generic reference to Kate Crook’s land cannot be used to identify the land at issue. We disagree. An individual can use parol evidence to connect data described in the instrument, such as the name of a land owner, to establish the sufficiency of a legal description. See Ehl-ers, at 568-573. This is just what the Tonroy affidavit explained. We hold that Cade did not meet his burden to establish as a matter of law the insufficiency of the legal description in the two royalty deeds of October and November 2004 from Crook and Rinehart to Wiggins. See Jones, 710 S.W.2d at 60. We sustain Wiggins and Tonroy’s first issue.

Collateral Estoppel

In their second issue, Wiggins and Ton-roy assert that the trial court erred in granting summary judgment for Cade on the basis of collateral estoppel. They contend that Cade did not establish all of the necessary elements of collateral estoppel as a matter of law, and he is therefore not entitled to summary judgment on this ground. We agree.

Summary Judgment Evidence

In support of his motion for summary judgment, Cade presented the 2004 application for appointment of receiver; an agreed order determining ownership of the nonparticipating royalty interest signed February 1, 2006; the two deeds from W.T. Crook, one royalty deed to Wiggins and one mineral deed to Cade; and the two deeds from Rinehart, one royalty deed to Wiggins and one mineral deed to Cade. The application for receivership recited that it had been filed by the developer so that it could produce and develop the minerals in the area. The developer requested only the following powers for the receiver:

1) To negotiate, make, and enter into a ratification of oil and gas leases and mining contracts on the interest.

The agreed order determining ownership of the nonparticipating royalty interest explains that W.T. Crook and Rinehart inherited their interests through Goad and then makes the following one sentence declaration:

The court finds that William Thomas Crook and David E. Rinehart have transferred all of their respective interests to Glen S. Cade, Individually, such that the ownership of Mildred Andrene Crook Higginbotham Goad’s complete interest is now vested in Glen S. Cade, Individually.

The receiver and the attorneys for Goad, Cade, and the developer agreed to the order’s form.

Applicable Law — Collateral Estoppel

The doctrine of collateral estop-pel precludes relitigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex.1992). For an issue to be precluded by prior litigation, it must be shown that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; (3) the parties were cast as adversaries in the first action; and (4) the party against whom the doctrine is asserted must have been a party or in privity with a party in the first suit. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801-02 (Tex.1994).

With respect to the first element, full and fair litigation in the first action, we must consider the following factors: whether the parties were fully heard, whether the court supported its decision with a reasoned opinion, and whether the decision was subject to appeal or was in fact reviewed on appeal. Mower v. Boyer, 811 S.W.2d 560, 562 (Tex.1991). Further, a party relying upon collateral estoppel must introduce into evidence the prior judgment and pleadings from the prior suit or the doctrine of collateral estoppel is not applicable in the second proceeding. Traweek v. Larkin, 708 S.W.2d 942, 945 (Tex.App.-Tyler 1986, writ ref d n.r.e.).

Analysis

To determine whether there was a full and fair litigation of the title issue during the receivership action, we look to the summary judgment evidence. We note that the receiver’s only powers, as requested in the application to begin the receivership, were to make leases and mining contracts. As shown by the application for receivership, the developer wanted only to develop the minerals in the area. There is no document in the summary judgment evidence showing that the receiver had requested or been granted any authority to litigate competing title issues during the receivership. The attorney for Goad, and by extension W.T. Crook and Rinehart, had no recognizable interest in litigating these title interests. There is no summary judgment evidence showing that W.T. Crook and Rinehart, who received consideration from two different individuals for the 1/64 nonparticipating royalty interest, attempted to litigate the title issue during the receivership. Cade, in his pleadings for declaratory judgment, stated that he received notice of an adverse claim to the real property on August 28, 2007, more than a year and a half after the agreed order determining ownership was signed. Thus, the adverse claim was not brought to Cade’s attention, or raised in the trial court, before the agreed order was signed.

The agreed order, the only other court document in the summary judgment record, includes no recitation of any adversarial relationships regarding the competing title interest in the 1/64 nonparticipating royalty interest. There is no evidence in the summary judgment record that Wiggins and Tonroy ever made an appearance in the receivership or had notice of the motion that the agreed order approved. There is nothing in the summary judgment record to show that there was any kind of adversarial relationship that would lead to full and fair litigation of the title issue during the receivership. Thus, the record does not show that the issue of the validity of the competing deeds was fully and fairly litigated. See Mower, 811 S.W.2d at 562. With only agreeable parties before it, the trial court had no reason to deliver a reasoned opinion or judgment on the title of the 1/64 nonparticipating royalty interest. Further, the record does not indicate whether the agreed order was reviewed on appeal. See id. We hold that the summary judgment record before us does not establish the first element required for collateral estoppel, that the facts sought

to be litigated in the second action were fully and fairly litigated in the first action. See Trapnell, 890 S.W.2d at 801. Accordingly, Cade did not show his entitlement to summary judgment as a matter of law on the basis of collateral es-toppel, and the trial court could not properly grant Cade’s motion for summary judgment on that ground. See Jones, 710 S.W.2d at 60. We sustain Wiggins and Tonroy’s second issue.

Disposition

Having determined that the trial court erred in granting summary judgment because neither of Cade’s asserted grounds, the statute of frauds and collateral estop-pel, support summary judgment, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

      . It is undisputed that the controversy here does not extend to the 1/64 interest of B.F. Crook. Therefore, B.F. Crook’s interest will not be discussed further.

      . Wiggins had conveyed part of his interest to Tonroy.


author: Justice BRIDGES.

text:
    In the Interest of A.J.F., A Child.
    No. 05-08-00039-CV.
    Court of Appeals of Texas, Dallas.
    May 13, 2010.

      Rande K. Herrell, John B. Worley, Atty. Gen. Office, Child Support Division, Michael D. Becker, Asst. Atty. Gen., Austin, TX, for Appellant.
    Amber Nicole Fox, Cedar Hill, TX, Joseph Sumner, Public Defender’s Office, Dallas, TX, for Appellee.
    Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice BRIDGES.

Appellant Office of the Attorney General (“OAG”) appeals from the trial court’s order granting appellee Damian Koby Jackson’s “motion to dismiss for enforcement.” We dismiss the appeal for lack of jurisdiction.

Background

The OAG filed a petition for confirmation of the non-agreed proposed child support review process order establishing Jackson as the father of A.J.F. and ordering him to pay child support. Jackson was served with a notice, informing him that a hearing would be held on the petition and that he had to personally appear at the hearing or file an answer or response within 20 days of service to avoid a default judgment. Jackson did not file an answer or response.

On September 19, 2005, the trial court held a hearing on confirmation of the child support review order. Jackson did not attend the hearing. On the same day, the trial court signed an order confirming the non-agreed child support review order and also signed the child support review order establishing the parent-child relationship. Both orders state that Jackson, “although duly notified, did not appear.” The court found that Jackson was the biological father of A.J.F. and ordered him to pay $160 per month in child support and $40 per month in cash medical support.

In July of 2006, the OAG filed a motion for enforcement, seeking judgments for unpaid child support and medical support. The OAG also sought an order of contempt against Jackson and, therefore, the Dallas County Public Defender’s Office was appointed to serve as Jackson’s attorney. The public defender filed an answer on behalf of Jackson which argued (1) Jackson was not served with citation on the petition for confirmation of the child support review order and that the court consequently lacked jurisdiction and (2) Jackson lacked the ability to pay the support ordered. The answer requested both that the motion for enforcement be dismissed and that the OAG take nothing.

An associate judge heard the OAG’s motion and, on February 12, 2007, signed an order rendering a child support arrearage judgment of $4,266.99 and a medical support arrearage judgment of $615.60. The order further found Jackson in contempt. The same day, the Judge of the 256th District Court, sitting for the Judge of the 254th District Court (the referring court), without a hearing, signed an order adopting the associate judge’s report. Also on the same day, Jackson filed a notice of appeal to the referring district court, challenging the associate judge’s order that he was in contempt, ordering his jail sentence, awarding the arrearage judgments, and ordering that he pay court costs.

Thereafter, the referring district court held hearings related to Jackson’s appeal. After the final hearing on October 8, 2007, the referring court signed an order granting Jackson’s motion to dismiss the motion for enforcement, declared the child support review order and the order confirming it void, and vacated the February 12, 2007 enforcement order.

The OAG filed a motion to vacate the judgment or, in the alternative, motion for new trial. The trial court denied the OAG’s motions. The trial court filed findings of fact and conclusions of law at the OAG’s request. This appeal ensued.

Analysis

The OAG raises the four issues on appeal: (1) the trial court lacked plenary jurisdiction to vacate the February 12, 2007 enforcement order or to declare the 2005 orders void; (2) Jackson cannot collaterally attack the recitations in the child support review orders that he was “duly notified” and that the court had personal jurisdiction; (8) Jackson submitted to the trial court’s jurisdiction and waived his complaint of lack of personal jurisdiction by making an appearance in this matter and seeking affirmative relief from the court; and (4) the trial court erred in finding that Jackson had not been properly served in the suit that led to the establishment of his paternity and child support obligation.

In its first issue, the OAG alleges “the trial court lacked plenary jurisdiction to vacate the February 12, 2007 enforcement order or to declare the 2005 orders void.” The OAG argues that, pursuant to Rule 329b, the enforcement order, signed by the referring district court on February 12, 2007, became final and appealable after 30 days. See Tex.R. Civ. P. 329b(d). The OAG notes the trial court’s order vacating the enforcement order was signed on October 8, 2007, nearly eight months after the referring district court signed the enforcement order on February 12, 2007. Thus, the OAG contends the October 8 order was signed outside the court’s plenary power. See In re Office of the Attorney General of Texas, 264 S.W.3d 800, 809 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (“Orders entered outside a trial court’s plenary power are void.”)

Section 201.015 of the family code gives a party the right to request a de novo hearing before the referring court by filing with the clerk of the referring court a written request within seven working days of receiving proper notice of the associate judge’s report. Tex. Fam.Code Ann. § 201.015(a) (Vernon 2008). Jackson timely filed an appeal of the associate judge’s report on February 12, 2007.

Section 201.015(f) then requires the referring court to hold a hearing on the appeal within thirty days. See id. at § 201.015(f) (“The referring court, after notice to the parties, shall hold a de novo hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed with the clerk of the referring court.”); see also Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex.App.Dallas 2001, no pet.). The purpose of this section is to require the prompt resolution of appeals from an associate judge’s ruling. Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex.App.-El Paso 1998, no pet.).

The record before us demonstrates the associate judge signed the enforcement order on February 12, 2007 and the judge of the 256th District Court, on behalf of the referring court, also signed the order the same date. The referring district court then held three hearings on the appeal of the February 12, 2007 order. Following the final hearing on October 8, 2007, the referring court granted Jackson’s motion to dismiss motion for enforcement.

Although the referring court should have held a hearing on Jackson’s appeal before signing an order adopting the associate judge’s report, its failure to do so did not deprive it of jurisdiction to issue the order or make the order void. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995). A judgement is void only when it is clear that the court rendering the judgment had no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court. Id. (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990)). The failure to follow proper procedure will not render the February 12, 2007 judgment void. Latty, 907 S.W.2d at 485 (citing Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 291 (1959)).

An order which purports to dispose of all issues and all parties, like the district court’s February 12 order adopting the associate judge’s report, is a final ap-pealable order. Latty, 907 S.W.2d at 485; Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985). Jackson did not file a motion to extend the trial court’s plenary power, petition the district court to vacate the order adopting the associate judge’s report, timely appeal or file a bill of review. Consequently, the trial court’s plenary power expired 30 days later. Latty, 907 S.W.2d 484, 486. See also Metropolitan Transit Authority v. Jackson, 212 S.W.3d 797, 803 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (analyzing Latty and stating that because the order adopting the court master’s report was voidable but not void, and the defendant did not challenge the voidable judgment by appeal, the judgment became final and an order subsequently signed by the trial court was void because it was signed outside the court’s plenary power); In the Interest of A.N., 126 S.W.3d 320, 321-22 (Tex.App.-Amarillo 2004, pet. denied).

The order appealed from here (the October 8, 2007 order granting Jackson’s motion to dismiss motion for enforcement) was signed after the district court’s plenary jurisdiction expired. Latty, 907 S.W.2d at 486; Tex.R. Civ. P. 329b(d). Judicial action taken after the court’s jurisdiction over a case has expired is a nullilty. Id. We, therefore, declare the district court’s October 8, 2007 order void because it was signed after the court’s plenary jurisdiction expired. Id. This leaves the final order in this case the February 12, 2007 order enforcing child support and medical support obligation.

We sustain the OAG’s first issue. Having sustained this issue, we need not address the remainder of the OAG’s issues. Accordingly, we declare the district court’s October 8, 2007 order void and dismiss this appeal for lack of jurisdiction. Latty, 907 S.W.2d at 486.

      . At the time the appeal of the enforcement order was filed in this case, the time limit to appeal was within three working days of receiving notice of the associate judge’s report. See Tex. Fam.Code Ann. § 201.015(a) (Vernon 2007).

      . The first hearing was held on March 1, 2007, the second on April 5, 2007 and the third on October 8, 2007.