author: DAVIE L. WILSON, Justice

text:
    David M. GONZALEZ, Appellant, v. AAG LAS VEGAS, L.L.C., Ascent Automotive Group, L.P., and KW# 1 Acquisition Company, L.L.C., Appellees.
    No. 01-08-00377-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 29, 2009.

      Christian M. Orme, Mark A. Hutchison, Hutchison & Steffen, Las Vegas, NV, Christy L. Denison, Fred W. Stumpf, Stumpf & Falgout, Houston, TX, for Appellant.
    Edward L. Friedman, Craig L. Wein-stock, Christopher Benjamin Dove, Locke, Liddell & Sapp, LLP, Houston, TX, for Appellee.
    Panel consists of Justices ALCALA, HANKS, and WILSON.

      . The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, sitting by assignment.

   OPINION ON REHEARING

DAVIE L. WILSON, Justice

(Retired).

Appellees, AAG Las Vegas, LLC, Ascent Automotive Group, L.P., and KW # 1 Acquisition Company, LLC (“appellees”), have filed a motion for rehearing of our opinion issued on June 4, 2009. We withdraw our opinion and judgment of June 4, 2009 and substitute this opinion and judgment in their place.

In this accelerated, interlocutory appeal, appellant, David M. Gonzalez (“Gonzalez”), challenges the trial court’s order denying his special appearance. In his sole issue on appeal, Gonzales contends that he is not amenable to service in Texas because he did not have sufficient minimum contacts with Texas to satisfy the requirements of due process. We reverse and render.

Background

Gonzalez is a resident of Las Vegas, Nevada. Appellee AAG Las Vegas, L.L.C. (“AAG-Las Vegas”) is a Delaware limited liability company with its principal place of business in Nevada. Appellee KW# 1 Acquisition Company, L.L.C. (“KW# 1”) is a Delaware limited liability company with its principal place of business in Ohio. Appel-lee Ascent Automotive Group, L.P. (“Ascent”) is a Delaware limited partnership with its principal place of business in Houston, Texas.

While employed in Ohio at an automotive dealership, Gonzalez was approached by David Watts (“Watts”), Chief Operating Officer of Ascent, regarding a possible management position with Lexus of Akron-Canton, an Ohio Lexus dealership that Watts was considering purchasing with Kevin Whalen (“Whalen”). In June 2004, Gonzalez traveled to Houston to interview for the general manager position. At the Houston meeting, Gonzalez interviewed with Watts, Whalen, and Jerry Pyle (“Pyle”). In addition to evaluating Gonzalez at the meeting, Watts and Whalen asked Pyle to invest in the Akron dealership as well as a Lexus dealership in Cleveland. During the interview, the parties discussed a program to permit managers to acquire a partial interest in the car dealerships. Gonzalez claims that, during these discussions, he was promised the right to earn a ten percent ownership in the two car dealerships.

The following September, KW# 1 hired Gonzalez to be the general manager of the KW# 1 Lexus of Akron-Canton dealership. As general manager of the Canton dealership, Gonzalez reported to Watts in Texas and received his pay from Texas. Gonzalez also regularly telephoned Houston to report on the status of the dealership.

In 2005, AAG-Las Vegas purchased a Lexus dealership in Las Vegas, Nevada (“AAG Lexus of Las Vegas”). Shortly after that, AAG-Las Vegas hired Gonzalez to be the general manager of AAG Lexus of Las Vegas.

After accepting the position, Gonzalez moved from Ohio to Las Vegas and began working as general manager of Lexus of Las Vegas. During his time as general manager, Gonzalez made another trip to Houston to attend a two-day general manager’s meeting. Appellant’s duties at AAG Lexus of Las Vegas were identical to his duties at KW# l’s Lexus of Akron-Canton. AAG-Las Vegas was the corporate entity responsible for paying Gonzalez as general manager of Lexus of Las Vegas.

In Fall 2006, AAG-Las Vegas terminated Gonzalez’s employment with Lexus of Las Vegas. AAG-Las Vegas asserts that it terminated Gonzalez because, while Gonzalez was employed at Lexus of Las Vegas, he (1) improperly usurped business opportunities by secretly trying to obtain other dealerships, (2) actively recruited other Lexus of Las Vegas employees to leave Lexus of Las Vegas, (3) improperly purchased a car from one of his recruits, (4) did not effectively attend to inventory management, causing reduced profits, and (5) was late and unprepared for meetings at the Las Vegas dealership.

On October 19, 2006, appellees sued Gonzalez in Texas in this case. Among other things, they sought to declare the parties’ ownership interests in Lexus of Las Vegas and Lexus of Akron-Canton. On January 26, 2007, Gonzalez sued appel-lees in Nevada, also seeking a declaration of the parties’ rights to the two dealerships in addition to various other causes of action. The two lawsuits are founded on substantially the same issues and facts.

Gonzalez filed a special appearance in this case, challenging the trial court’s in personam jurisdiction over him for the entire proceeding. Gonzalez contended that he lacked the requisite minimum contacts with Texas to satisfy the requirements of due process and that the trial court’s exercise of personal jurisdiction over him would violate the traditional notions of fair play and substantial justice. Appellees filed a response. Following a hearing, the trial court denied Gonzalez’s special appearance. This interlocutory appeal followed.

Gonzalez’s Special Appearance

In his sole issue, Gonzalez contends that the trial court erred in denying his special appearance.

A. Standard of Review

Special appearances are governed by Rule 120a of the Texas Rules of Civil Procedure, which provides that “a special appearance may be made by any party ... for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process by the courts of this State.” Tex.R. Civ. P. 120a. The existence of personal jurisdiction is a question of law reviewed de novo by this Court. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). However, this question must sometimes be preceded by resolving underlying factual disputes. Id. When, as here, the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002).

B. Personal Jurisdiction

“Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards.” Id. (citing Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)); see Texas Civ. Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 2008) (Texas long-arm statute). The long-arm statute allows Texas courts to exercise jurisdiction over a nonresident defendant that “does business” in the state. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008). The Texas Supreme Court has held that “section 17.042’s broad language extends Texas courts’ personal jurisdiction as far as the federal constitutional requirements of due process will permit.” BMC Software, 83 S.W.3d at 795.

Initially, the plaintiff bears the burden of pleading allegations sufficient to bring a nonresident defendant within the terms of the Texas long-arm statute. Am. Type Culture Collection, 83 S.W.3d at 807. However, a nonresident defendant who files a special appearance assumes the burden of negating all bases of personal jurisdiction that the plaintiff has alleged. Id. We review all evidence in the record to determine if the nonresident defendant negated all possible grounds. N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (TexApp.-Houston [1st Dist.] 2000, no pet.) (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985)).

Personal jurisdiction over a nonresident defendant is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Am. Type Culture Collection, 83 S.W.3d at 806 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). A nonresident defendant’s minimum contacts must derive from purposeful availment: a nonresident defendant must have “purposefully availed” itself of the privileges and benefits of conducting business in the foreign jurisdiction to establish sufficient contacts with the forum to confer personal jurisdiction. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985)); Xenos Yuen v. Fisher, 227 S.W.3d 193, 200 (Tex.App.-Houston [1st Dist.] 2007, no pet.). An act or acts “by which the defendant purposefully avails itself of the privilege of conducting activities” in Texas and “thus involves] the benefits and protections” of Texas law, constitutes sufficient contact with Texas to confer personal jurisdiction. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)).

We consider three elements in assessing purposeful availment. See Michiana Easy Livin’ Country, 168 S.W.3d at 785; First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 782 (Tex App.-Houston [1st Dist.] 2008, no pet.). First, we consider only the defendant’s own actions, not those of the plaintiff or any other third party. Michiana Easy Livin’ Country, 168 S.W.3d at 785; First Oil PLC, 264 S.W.3d at 782; see also U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 763 (Tex.1977) (quoting Hanson v. Denckla, 357 U.S. at 253, 78 S.Ct. at 1239-40) (“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”).

Second, the defendant’s activities must be purposeful, not random, isolated, or fortuitous. Michiana Easy Livin’ Country, 168 S.W.3d at 785; First Oil PLC, 264 S.W.3d at 782. “It is the quality rather than the quantity of contacts that is determinative.” First Oil PLC, 264 S.W.3d at 782 (emphasis in original). Third, the defendant must seek some benefit, advantage, or profit by virtue of its activities in the proposed forum state, because this element is based on the notion of implied consent. Michiana Easy Livin’ Country, 168 S.W.3d at 785; First Oil PLC, 264 S.W.3d at 782.

Our jurisdictional analysis is further divided into general and specific jurisdiction. CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). General jurisdiction will attach when “a defendant’s contacts in a forum are continuous and systematic permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state.” Id. To support general jurisdiction, the defendant’s forum activities must have been “substantial,” which requires stronger evidence of contacts than for specific personal jurisdictions. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 114 (TexApp.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.).

Specific jurisdiction arises when the defendant’s alleged liability arises from or is related to an activity conducted within the forum. BMC Software, 83 S.W.3d at 796. “For a nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex.2007). This requirement assesses “the strength of the necessary connection between the defendant, the forum, and the litigation.” Id. at 584.

C. Discussion

In his sole issue, Gonzalez asserts that the trial court erred in denying his special appearance because Gonzalez is not subject to Texas’s specific personal jurisdiction and because the exercise of personal jurisdiction over him does not comport with fair play and substantial justice. Gonzalez contends he does not have the minimum contacts necessary to subject him to specific personal jurisdiction in Texas because: (1) he has not purposefully availed himself of the laws and privileges of doing business in Texas, and (2) his contacts with Texas are not related with appellees’ claims in this litigation. Appel-lees respond that jurisdiction is proper because there is a substantial connection between Gonzalez’s contacts with Texas and the operative facts of this litigation.

As applied to this case, the test for specific personal jurisdiction over Gonzalez requires — in addition to Gonzalez’s purposeful direction of activities toward or purposeful availment of the privileges of doing business in Texas — a substantial connection between his contacts and the litigation’s operative facts. See Moki Mac River Expeditions, 221 S.W.3d at 584. Assuming without deciding that the contacts to which appellees point show purposeful availment of Texas’s benefits, we hold that there is not a sufficient connection between those contacts and the litigation to support the exercise of specific personal jurisdiction over Gonzalez. See Pelican State Physical Therapy, L.P. v. Bratton, No. 01-06-00199-CV, 2007 WL 2833303, at *7 (Tex.App.-Houston [1st Dist.] Sept. 27, 2007, no pet.) (mem. op.).

Appellee’s First Amended Original Petition alleges causes of action against Gonzalez for (1) breach of fiduciary duty of loyalty to Lexus of Las Vegas, (2) usurpation of corporate opportunities, and (3) a declaratory judgment that Gonzalez is not entitled to an ownership interest in Lexus of Las Vegas and Lexus of Akron-Canton. The facts that appellees alleged in support of the breach of loyalty and usurpation claims are that Gonzalez (1) improperly usurped business opportunities by secretly trying to obtain other dealerships, (2) actively recruited other Lexus of Las Vegas employees to leave Lexus of Las Vegas, (3) improperly purchased a car from one of his recruits, (4) did not effectively attend to inventory management, causing reduced profits, and (5) was late and unprepared for meetings at the Las Vegas dealership.

The facts that appellees have alleged in support of their declaratory judgment action are essentially identical to those above. Appellees allege that Gonzalez’s potential compensation plan discussed in 2005 contained two important features:

(1) A vesting period. “Accordingly, under the potential plan, Gonzalez would receive no ownership interest during the first two years. Thereafter, Gonzalez would become vested over an additional three year period, so that at the end of five years, he would be eligible to acquire up to ten percent (provided he paid for the interest)” and
(2) “[T]he potential ten percent ownership interest was to be acquired based on payment determined as a percentage of the good will of the store. Thus, the value of the potential ten percent ownership interest to be acquired by Gonzalez (after the vesting period) was to be reduced by the amount of indebtedness owed by him in connection with acquiring the interest.”

Appellees contend that as result of the facts alleged above regarding Gonzalez’s job performance as a general manager, he was fired in September 2006 and they allege that he is not entitled to any compensation for any interest in the dealership.

Based on the following alleged facts, appellees assert that Gonzalez had sufficient minimum contacts with Texas, i.e., that Gonzalez purposefully availed himself of the privilege of conducting activities in the State of Texas, because:

1. Gonzalez sought out employment in Texas, along with related benefits, such as health insurance and bonuses.
2. Gonzalez was paid from Texas for his employment.
3. Gonzalez traveled to Texas to attend a “forecast and training” meeting, attendance at which was a requirement of Gonzalez’s continued employment in Nevada.
4. Gonzalez regularly reported to executives in Texas.
5. Gonzalez claims entitlement to “Texas property” because he claims a ten percent ownership interest in KW# 1 and AAG-Las Vegas.
6. Gonzalez came to Houston, Texas for a meeting to discuss his compensation package as general manager.

However, appellees’ focus on Gonzalez’s contacts with Texas, particularly the Houston meeting at which Gonzalez’s compensation package was discussed, is overly narrow. Compare Pelican State, No. 01-06-00199-CV, 2007 WL 2833303, at *10 (holding trial court did not err in refusing to exercise specific personal jurisdiction over out-of-state defendant when operative facts in plaintiffs suit concerned acts that happened while defendant was employed at plaintiffs Louisiana clinic, rather than in Texas). Given the pleadings in this case, the operative facts of appellees’ breach of loyalty, usurpation claims and declaratory judgment action all concern Gonzalez’s acts while general manager in Las Vegas. These are the facts that are relevant for a specific personal-jurisdiction analysis, and the allegations and the evidence show that these acts happened in Nevada. See id. (holding that test for “relatedness” portion of specific personal-jurisdiction test is that substantial connection exist between litigation’s operative facts and nonresident defendant’s contacts with Texas); see also Gustafson v. Provider HealthNet Servs., Inc., 118 S.W.3d 479, 483 (Tex.App.-Dallas 2003, no pet.) (holding that none of nonresident’s following contacts was sufficiently connected to execution of confidentiality agreement that nonresident was alleged to have breached or to dissemination of confidential information so as to allow exercise of specific personal jurisdiction over him: (1) employment relationship itself, (2) two visits to Texas during employment, (3) payment from Texas bank, (4) submission of requests for reimbursement to Texas and subsequent cashing of those checks, (5) employee’s communication with employees located in Texas, (6) employee’s health benefits’ being administered from Texas offices, (7) provision of employee’s health insurance through Texas company, and (8) Texas location of insurance agents who administered employee’s dental and life insurance). Accordingly there is no substantial connection between the operative facts of the claims in this litigation and Gonzalez’s alleged contacts with Texas. Id.

Nevertheless, on rehearing appellees argue that the trial court has personal jurisdiction over Gonzalez because the declaratory judgment claim narrowly asks just one question, “[W]hat was said to Gonzalez at a meeting in Houston, Texas?”, i.e., what were “[t]he alleged words spoken in Texas.” Thus, they argue that the declaratory judgment action arises from a Texas dispute, the operative fact of this claim is directly related to Gonzalez’s contact with Texas and the exercise of jurisdiction is warranted. We disagree. Appellees’ characterization of the operative facts of the declaratory judgment is again overly narrow. A review of the allegations of the petition reflects that the operative facts of the declaratory judgment action have no substantial connection with Houston. The petition sets out the contents of the alleged compensation discussions in Houston and there is nothing in the record indicating that Gonzalez has disputed these contents. Instead all the claims in the petition, including the determination of Gonzalez’s right to an alleged ownership interest in the dealership, turn on Gonzalez’s job performance and length of tenure in Las Vegas and not any of Gonzalez’s alleged contacts in Texas.

We distinguish Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434 (Tex.1982), on which appellees rely, in which there were sufficient minimum contacts subjecting the nonresident defendant, an operator of an Arizona school, to the jurisdiction of the Texas court. Siskind, a Texas resident, sued the Villa Foundation for Education for numerous causes of action, including breach of contract, misrepresentation, and violation of the Texas Deceptive Trade Practices Act. Id. at 435-36. In holding that Villa was amenable to suit in Texas, the court found significant the existence of a written contract between the parties in which Villa voluntarily agreed to the omission of a provision limiting litigation to Arizona at the Texas resident’s request. Id. at 435. Further, the court determined that because Villa had a practice of advertising, mailing informational packets, applications, invitations to re-enroll, and enrollment contracts in Texas, Villa affirmatively solicited Texas business and therefore purposefully availed itself of the benefits of contacts with Texas. Id. at 436.

Here, the record does not support the conclusion that Gonzalez directed similar efforts at Texas to obtain employment with appellees. Gonzalez came to Texas to interview for the position with Lexus of Akron-Canton at Watts’s request while he was employed by another car dealership in Ohio. Gonzalez’s deposition testimony demonstrates that he had conversations with both Watts and Whalen about the possibility of being the general manager of Lexus of Las Vegas, but Gonzalez stated that the majority of those conversations were in Akron. Therefore, unlike Villa, whose contacts with Texas were “substantial,” Gonzalez’s contacts with Texas were minimal. Id. at 437.

We also distinguish Tempest Broadcasting Corp. v. Imlay, 150 S.W.3d 861 (Tex.App.-Houston [14th Dist.] 2004, no pet.), and Silbaugh v. Ramirez, 126 S.W.3d 88 (Tex.App.-Houston [1st Dist.] 2002, no pet.), similarly relied on by appellees. In Tempest, Tempest Broadcasting Corporation, a Texas resident, sued Christopher Imlay, a Maryland attorney, and his law firm, for breach of contract and several intentional torts. Tempest Broadcasting Corp., 150 S.W.3d at 866. At the center of the dispute was an AM radio station located in Robstown, Texas and a Federal Communication Commission (FCC) broadcasting license. Id. at 865.

In holding jurisdiction proper in Texas, the court found that Imlay and the law firm conducted business in Texas and committed the intentional torts in Texas. Id. at 875-76. Specifically, the court found that Imlay made direct representations in Texas to Tempest upon which it relied to its detriment and which formed the basis for Tempest’s claims against Imlay and the law firm. Id. at 876. These representations were provided in writing and by telephone to Tempest in Texas. Id.

In contrast, in the instant case, the vast majority of this litigation’s operative facts took place in Nevada. Specifically, the facts that appellees allege in support of the breach of loyalty and usurpation claims all took place in Las Vegas. Unlike Tempest, who made numerous representations in Texas that formed the basis of the underlying litigation, Gonzalez’s contacts with Texas were minimal. Id. at 875-76. Moreover, Tempest involved the sale of a radio station that was located and broadcasting within the geographical borders of Texas. Id. at 865.

Finally, in Silbaugh, the plaintiff brought suit in Texas against the defendant asserting several tort and breach of contract claims related to the investment by Ramirez in a leasing program and loss of his funds from Silbaugh’s IOLTA account. Silbaugh, 126 S.W.3d at 91. In upholding the trial court’s denial of Sil-baugh’s special appearance, the appellate court held that because Silbaugh had solicited business with Ramirez while he was in Texas through multiple conference calls and faxes; entered into a written contract with Ramirez, which he signed in Texas; accepted Ramirez’s payment from Texas; and engaged in correspondence regarding entering into and carrying out the contract in Texas; Silbaugh knew or reasonably should have expected that Ramirez would perform his part of the contract from Texas. Id. at 96. Therefore, the court found that Silbaugh had sufficient contacts with Texas to establish specific personal jurisdiction. Id.

There is no such written contract in the instant case. And, again, for the reasons discussed, Gonzalez’s contacts with Texas are not such that the operative facts of the underlying litigation justify specific personal jurisdiction in Texas. For these reasons, we hold that the trial court erred in denying Gonzalez’s special appearance. We sustain appellant’s issue.

Conclusion

Because Gonzalez did not “purposefully avail [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Moki Mac, 221 S.W.3d at 575 (quoting Int'l Shoe Co., 326 U.S. at 319, 66 S.Ct. at 160), Gonzalez lacks sufficient minimum contacts to support an assertion of specific jurisdiction in Texas. Accordingly, we reverse the order of the trial court denying Gonzalez’s special appearance and render judgment sustaining the special appearance.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2008) (providing that parties may challenge trial court’s orders regarding special appearances by interlocutory appeal).


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice.

license: Public Domain

text:
    CITY OF HOUSTON, Appellant, v. Bruce A. NORCINI, Appellee.
    No. 01-09-00426-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 19, 2009.

      Bertrand L. Pourteau II, City Attorney, Cora Garcia, The City of Houston Legal, Houston, TX, for Appellant.
    J. Marcus Hill, Hill & Hill, Attorneys At Law, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

LAURA CARTER HIGLEY, Justice.

In 2006, the City of Houston (“the City”) amended its flood-control ordinances. Under the amendment, new residential construction was severely restricted on property located in a floodway. Appellee, Bruce A. Norcini, sued the City alleging that the 2006 amendment constituted an unconstitutional taking of his property, which was in a floodway. Norcini claimed that the amendment effectively deprived him use of his property and “drastically reduced” its value.

The City filed a plea to the jurisdiction, asserting that the trial court lacked subject-matter jurisdiction because Norcini’s claims were not ripe for adjudication. The trial court denied the City’s plea. The City appeals, raising one issue.

We affirm.

Background

In 2003, Norcini was a principal owner of a company that purchased four lots in Shady Acres, a Houston subdivision. The company subdivided the lots into eight residential lots, creating the Savannah Manor subdivision. After obtaining building permits from the City, Norcini’s company built and sold residences on three of the lots. In early 2006, Norcini acquired from his company two of the remaining vacant lots (“the Property”), which he intended to sell “to a builder.”

When Norcini acquired it, the Property was not in a floodway. In June 2006, the City adopted new maps prepared by FEMA showing the location of floodways in Houston. The FEMA maps placed Norcini’s newly acquired property in a floodway.

Also in 2006, the City amended its Code of Ordinances (“Code”) to further restrict development within a floodway, as determined by the FEMA maps. In particular, amended Code section 19.43(a)(2) prohibited the issuance of a permit for “development to be located in any floodway ... if that development provides for ... [n]ew construction, additions to existing structures, or substantial improvement of any structure within the floodway....” Houston, Tex.Code of Ordinances § 19-43(a)(2) (2006) (since amended).

The ordinance provided an exception for the City Engineer to issue a permit “[f]or those facilities necessary to protect the health, safety and welfare of the general public” or “for the construction of a bridge or the repair or replacement of an existing bridge in a floodway[J” Houston, Tex. Code of Ordinances § 19^13(b),(c) (2006) (since amended). Relatedly, Code section 19-20 required that “[variances shall not be granted for development within any floodway if the development cannot meet the requirements of 19-43(b) of this Code”; that is, development “necessary to protect the health, safety and welfare of the general public.” Houston, Tex.Code of Ordinances § 19-20 (Ord. No. 2006-894) (2006) (since amended); see Houston, Tex.Code of Ordinances § 19-43(b) (2006) (since amended).

On August 9, 2007, Norcini sued the City alleging that, prior to the 2006 amendment, section 19-43 allowed the City Engineer to issue permits for new construction within a floodway, notwithstanding a restriction on issuing such permits. Norcini alleged that the 2006 amendment prohibited the issuance of building permits for, inter aha, new construction and took away the City Engineer’s discretion to issue such permits.

Norcini asserted that the City’s 2006 amendment of section 19-43 constituted an unconstitutional taking of his property under the federal and state constitutions. Specifically, Norcini alleged in his petition,

The intentional act of the City of Houston in the enactment of the amendment to Section 19-43 of [the Code] and its refusal to issue building permits as referred to [in the foregoing parts of the original petition] has unlawfully deprived [Norcini] of the use, benefit and enjoyment of his Property and has drastically reduced its value because [Norci-ni] can neither construct any improvement in or upon the Property nor sell the Property to anyone who desires to construct any improvements in or upon the Property.

Norcini also alleged that he “is not required to exhaust administrative remedies prior to the institution of this lawsuit because no administrative procedures have been established” by the City “for the issuance of building permits on properties situated in the Floodways.... ” Norcini claims that “[t]he amendment to Section 19-43, as stated above, simply denies to Plaintiff the ability to secure a building permit without any right to be heard by any administrative agency or body.”

The City answered and filed a plea to the jurisdiction alleging that the trial court lacked subject-matter jurisdiction because Norcini’s claim was not ripe. In its trial court briefing, the City contended, “The claim that Houston’s ordinance effects a regulatory taking as applied to [Norcini’s] property is unripe because [Norcini] did not apply for a permit or seek an exception.” The City continued, “[Norcini’s] allegation depends on the extent, if any, to which he may be deprived of the economic use of this particular piece of property.... [F]or a regulatory takings claim to be ripe there must be a final decision regarding the application of the regulations to the property at issue.” In support of its plea, the City offered the affidavit of the City Engineer, who testified that Norcini had not applied for a permit.

In his response, Norcini acknowledged that he had not applied to the City for a building permit before filing suit. Norcini asserted that the 2006 ordinance interfered with “his investment-backed expectations” to either “build a structure on the property” or “sell it to someone who desires to do so.” Norcini pointed out that the two permitting exceptions found in the 2006 ordinance did not apply to his intended use of the property and that no other exceptions or variances were provided in the Code. Norcini summarized, “[T]his case is ripe for litigation because any application for a permit, application for a variance or appeal from the denial of either would be a futile exercise that would only waste the time and the resources of both [Norcini] and [the City].”

Norcini supported his response with his own affidavit.

The trial court denied the City’s plea to the jurisdiction. The City filed this interlocutory appeal, seeking reversal of the trial court’s denial of its jurisdictional challenge.

Standard and Scope of Review

A plea to the jurisdiction seeks dismissal of a cause based on lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). Whether a court has subject-matter jurisdiction and whether a plaintiff has affirmatively demonstrated subject-matter jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiffs claim, but must consider only the plaintiffs pleadings, construed in favor of the plaintiff, and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). We must take as true all evidence favorable to the a plaintiff and “indulge every reasonable inference and resolve any doubts in [his] favor.” Miranda, 133 S.W.3d at 228.

Analysis: Ripeness of Norcini’s Takings Claims

A. Relevant Legal Principles

The Texas Constitution provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const, art. I, § 17. Similarly, the Fifth Amendment’s Just Compensation Clause provides that “private property [shall not] be taken for public use without just compensation.” U.S. Const, amend. V. The Just Compensation Clause applies to the states by operation of the Fourteenth Amendment. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 983 (Tex.1998).

Takings are classified as either physical or regulatory. Id. A physical taking is an unwarranted physical appropriation or invasion of the property. See id. A compensable regulatory taking can occur when a governmental agency imposes restrictions that either deny a property owner all economically viable use of his property or unreasonably interferes with the owner’s right to use and enjoy the property. Id. at 935; Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex.1994).

“Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding.” Villarreal v. Harris County, 226 S.W.3d 537, 541 (Tex.App.-Houston [1st DistJ 2006, no pet.); see City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.1971). To state a cause of action for inverse condemnation under the Texas constitution, a plaintiff must allege (1) an intentional governmental act, (2) that resulted in his property being taken, damaged, or destroyed, (3) for public use. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001).

The City asserts that the trial court does not have subject-matter jurisdiction because Norcini’s takings claims are not ripe for adjudication. Ripeness is a threshold issue that implicates subject-matter jurisdiction. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). While the jurisdictional issue of standing focuses on who may bring an action, ripeness focuses on when that action may be brought. Waco Indep. Sch. Disk v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).

Ripeness concerns whether, at the time a lawsuit is brought, the facts have developed sufficiently such that an injury has occurred or is likely to occur, rather than being contingent or remote. Patterson, 971 S.W.2d at 442. To establish that a claim is ripe based on an injury that is likely to occur, the plaintiff must demonstrate that the injury is imminent, direct, and immediate, and not merely remote, conjectural, or hypothetical. Gibson, 22 S.W.3d at 852. By focusing on the concreteness of injury, the ripeness doctrine allows a court to avoid premature adjudication and issuance of advisory opinions. Id.

B. Concrete Injury

On appeal, the City contends that Norcini has not alleged that he suffered a “concrete injury.”

In his petition, Norcini alleged that he had been deprived of the “use, benefit and enjoyment of his property’ because he “can neither construct any improvement in or upon the Property nor sell the Property to anyone who desires to construct any improvements in or upon the property.”

Norcini supported his response to the City’s jurisdictional challenge with his own affidavit testimony. In the affidavit, Nor-cini testified that, in 2008, he owned fifty percent of a company that purchased four residential building lots in Shady Acres, a Houston subdivision. Norcini’s company subdivided these lots into eight residential building lots. After subdividing the lots, Norcini’s company then “secured building permits from the City of Houston and built and sold three residences on three of the lots.” In early 2006, Norcini “personally acquired” two of the remaining lots from his company. Norcini testified that he “intend[ed] to sell [the lots] to a builder.”

Norcini further averred that he had “made inquiries of the City of Houston as to whether it would issue building permits for the two lots referred to above....” Norcini continued that he was “told that the City of Houston would issue no permits for the construction of any structure of any kind or nature on those lots, stating, as its reason, Chapter 19 of its Code of Ordinances.” Norcini testified that “[Representatives of the City of Houston have repeatedly told me that I can secure no permits to construct any improvement on the property....” Norcini also testified that he had placed for sale signs on the Property but “no one has expressed an interest in purchasing those lots and I can use them for no other purpose.”

Relying on Waco Independent School District v. Gibson, the City alleges,

In the absence of any concrete plan for development or renovation on the Property, or even any application that would allow the City, in the first instance, to determine that the Property lies within a floodway to which the Ordinance applies, there is at best an abstract, hypothetical and remote dispute, which the ripeness doctrine precludes from being litigated.

See 22 S.W.3d at 852 (“A case is not ripe when determining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass.”). The City further contends, “Because Norcini still owns his property, and has not alleged that he had a specific plan or even a time line for developing or selling the Property when the 2006 Amendment was enacted, Norcini failed to ripen his claim.”

The record does not support the City’s contention. We are mindful that, in addition to viewing Norcini’s allegations in his favor, we must take as true all evidence favorable to Norcini and “indulge every reasonable inference and resolve any doubts in the [his] favor.” See Miranda, 133 S.W.3d at 228. Viewing the record through this prism, Norcini has alleged a “concrete injury.”

Norcini alleged that his property was in a Houston floodway. He also alleged that the 2006 amendments deprived him of the “use, benefit, and enjoyment” of the Property because he could not sell it to anyone who desired “to construct any improvements in or upon the property.” Norcini testified in his affidavit that he intended to sell the Property to a builder, indicating that, contrary to the City’s contention, Norcini had a definitive plan for the Property, which Norcini alleged was effectively destroyed by the enactment of the 2006 amendment.

The definitive, as opposed to hypothetical or contingent, nature of Norcini’s plan for the Property can also be reasonably inferred from Norcini’s testimony regarding his historical involvement with developing the Property. Norcini testified that his company purchased and subdivided four lots into eight lots, creating a new subdivision, which included the two lots at issue. Norcini testified that his company built and sold residences on three of these newly created lots. Norcini personally acquired two of the remaining vacant lots in the subdivision from his company. The acquisition occurred only a few months before the City enacted the 2006 amendments, which effectively prohibited the construction of residential improvements on the Property.

Norcini also provided affidavit testimony that he had inquired with the City whether building permits would be issued for the Property, and was informed no permits would be issued. Norcini’s testimony further indicated that he had taken affirmative steps to sell the Property.

Considering Norcini’s allegations and jurisdictional evidence as we must, we conclude that Norcini has alleged a “concrete injury.”

C. Futility Exception

The City also contends that Nor-cini’s claim is not ripe because he did not apply for a building permit, seek a variance, or request any other type of regulatory relief from the ordinance’s restrictions. The City relies on the legal principle that a regulatory takings claim is not ripe until there is a final decision by the regulatory agency regarding the application of the regulations to the property at issue. Citing Mayhew, the City contends that a determination whether Norcini’s property has been taken or impaired cannot be made until the City has denied Norcini’s application for a permit or a variance. See Mayhew, 964 S.W.2d at 929-30.

Norcini responds that applying for a permit or seeking a variance would have been futile because, under the subject Code provisions, the City or its agencies had no discretion to issue a building permit or variance for the Property. Norcini correctly points out that this Court has held that the futility exception applies to the 2006 flood-control provisions at issue here. See City of Houston v. Noonan, No. 01-08-01030-CV, 2009 WL 1424608, at *5 (Tex.App.-Houston [1st Dist.] May 21, 2009, no pet.) (mem. op.); City of Houston v. O’Fiel, No. 01-08-00242-CV, 2009 WL 214350, at *5 (Tex.App.-Houston [1st Dist.] Jan. 29, 2009, pet. filed) (mem. op.).

As in this ease, the plaintiffs in Noonan and O’Fiel alleged that the 2006 flood-control provisions prohibited them from constructing a residential improvement on property located in a Houston floodway. Noonan, 2009 WL 1424608, at *1-2; OFiel, 2009 WL 214350, at *1-2. We held that the plaintiffs’ claims were ripe even though they had not sought or obtained a final decision regarding whether a permit or variance would be issued for the construction of residential improvements on the subject property. See Noonan, 2009 WL 1424608, at *5; OFiel, 2009 WL 214350, at *5-6. We recognized that, because no City agency had discretion to issue a permit or a variance under the 2006 flood-control provisions, it would be futile for a landowner to apply for a building permit or to seek a variance to construct a residential improvement on property located within a Houston floodway. See Noonan, 2009 WL 1424608, at *5; OFiel, 2009 WL 214350, at *5.

Our holdings in OFiel and Noonan control here. There are no meaningful distinctions between the claims alleged here and those alleged in Noonan and O’Fiel. Thus, for the reasons stated in Noonan and O’Fiel, we conclude that Norcini’s takings claims are ripe even though he did not formally apply for a building permit or seek a variance regarding the subject property. See Noonan, 2009 WL 1424608, at *5; OFiel, 2009 WL 214350, at *5.

D. 2008 Amendment

Lastly, the City contends that Norcini’s claims are “incapable of ripening” because the City Council amended Code section 19-43 in 2008. The 2008 amendment providfes the City Engineer with some discretion to issue building permits for development of vacant land within floodways, if certain criteria are satisfied. See Houston, Tex.Code of Ordinances Houston, Tex., ORDINANCE 2008-658 (July 23, 2008) (codified at Houston, Tex.Code of ORDINANCES § 19-43 (2009)).

The City made this same argument in Noonan. See 2009 WL 1424608, at *6. We explained that, because Noo-nan’s claims under the 2006 amendment were ripe when he filed his suit, the 2008 amendment was irrelevant. See id. Similarly, Noreini’s claims under the 2006 amendment were ripe when he filed suit in August 2007. Thus, the 2008 amendment is “irrelevant” to the ripening of Norcini’s claims arising from the 2006 amendment. See id.

Conclusion

After viewing his allegations favorably, accepting his evidence as true, indulging every reasonable inference from his evidence, and resolving any doubts in his favor, we conclude that Norcini has alleged a concrete injury. See Miranda, 133 S.W.3d at 228. In addition, we conclude that Norcini was not required to apply for a building permit or to seek a variance for his claims to ripen. Given the provisions of the 2006 amendment, seeking a permit or variance would have been futile. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5. Finally, the 2008 amendment has no relevance to whether Norcini’s claims under the 2006 amendment are ripe. See Noonan, 2009 WL 1424608, at *6. We conclude that Norcini’s claims were ripe when he filed suit. See id. We hold that the trial court properly denied the City’s jurisdictional challenge.

We overrule the City’s sole issue. We affirm the trial court’s order denying the City’s plea to the jurisdiction.

      . In addition to his response, Norcini’s filing included a motion for partial summary judgment regarding the ripeness and takings issues.

      . In challenging the constitutionality of a statute, a party may show that the statute is unconstitutional on its face or as applied to that party. TCI West End, Inc. v. City of Dallas, 274 S.W.3d 913, 917 (Tex.App.-Dallas 2008, no pet.). To sustain a facial challenge, the party must show that the statute, by its terms, always operates unconstitutionally. Id. To sustain an as-applied challenge, the party must show that the statute is unconstitutional when applied to that particular person or set of facts. Id. A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular property. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494, 107 S.Ct. 1232, 1247, 94 L.Ed.2d 472 (1987). In his petition, Norcini did not allege that the subject 2006 flood-control ordinances always operate unconstitutionally. Thus, we construe Norcini’s claim that the 2006 amendment was an unconstitutional regulatory taking as applied to his property, not as a facial challenge. See TCI West End, 274 S.W.3d at 917.

      . In Bland Independent School District, v. Blue, the supreme court cautioned that a trial court is not authorized to inquire so far into the substance of the claims that a plaintiff is required to put on his case simply to establish jurisdiction. 34 S.W.3d 547, 554-55 (Tex.2000). The City’s allegations come dangerously close to requiring Norcini to put on his case simply to establish jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex.2000) (quoting 21 C.J.S. Courts § 16 at 23 (1990) (’’ ‘The right of a plaintiff to maintain a suit, while frequently treated as going to the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to afford it.’ ”)).

      . We emphasize that our analysis and ultimate holding in this interlocutory appeal are limited to the jurisdictional issue. We intend no comment on the ultimate merits of Norci-ni’s takings claims, including whether Norcini has actually suffered a taking of his property. We determine only whether Norcini’s claims are ripe.

      . In City of Houston v. HS Tejas, Ltd., we held that the plaintiff had not alleged a concrete injury arising from the enactment of the same flood-control provisions at issue here. 305 S.W.3d 178, 184-85 (Tex.App.-Houston [1st Dist.] 2009, no. pet. h.). HS Tejas is distinguishable from the instant case. The jurisdictional facts developed by Norcini’s affidavit testimony were lacking in HS Tejas.

        . The City also asserts that the 2008 amendment "essentially mooted” Norcini’s claims. "A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome.” Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005). In his brief, Norcini avers that his "damage was caused by the amendment of the ordinance on October 1, 2006, and continued, unabated, until the City of Houston once again amended its ordinance on September 1, 2008...." He asserts, "The latter amendment may have mitigated future damage to Norcini but could not have rectified the injuries it had already caused.” We agree that a live controversy still exists regarding whether Norcini suffered a compensable injury as a result of the enactment of the 2006 amendment, irrespective of the 2008 amendment.


author: GEORGE C. HANKS, JR., Justice.

text:
    Debra MEDINA, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt, and Kay Fisher, Appellants, v. Tina BENKISER and the Republican Party of Texas, Appellees.
    No. 01-08-00777-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 2009.

      Gary M. Polland, Houston, TX, for Appellants.
    Jared Ryker Woodfill, Robert E. Taitón, Woodfill & Pressler, LLP, Houston, TX, for Appellees.
    Panel consists of Justices KEYES, ALCALA and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellants contend the trial court below erred by granting a motion to modify a previous judgment and awarding attorney’s fees to appellees after the judgment was affirmed by this Court. We sustain appellants’ first issue and hold that the trial court’s award of attorney’s fees to appellees is void.

Background

In 2008, appellants Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt, and Kay Fisher filed an original petition for declaratory relief, temporary restraining order and in-junctive relief in the Harris County Civil Court at Law Number 4. Appellants alleged they were elected delegates and alternates to the 2008 Republican Party of Texas state convention, and they challenged the credentials of other delegates “due to violations of the law and rules at the Nueces County Texas Republican convention in March 2008.” Appellants asked the county court to declare that certain provisions of the Texas Elections Code were applicable to the Texas Republican Party’s (the “Party’s”) 2008 convention in Houston, which was to commence on June 12, 2008. Appellants sought to enjoin certain acts of the Party and to prevent the Party from undertaking business at the convention. Appellants’ petition included a request for attorney’s fees.

Appellants’ request for a TRO was granted. Appellees subsequently moved to dissolve the TRO and dismiss the suit and sought their attorney’s fees pursuant to Texas Civil Practice and Remedies Code Section 37. On June 9, 2008, the trial court granted appellees’ plea to the jurisdiction. The court’s order also dissolved the temporary restraining order and dismissed the cause. The court’s order did not award attorney’s fees. The next day, appellants appealed that judgment to this court. Appellants did not file a motion for new trial or a motion to modify, correct or reform the judgment.

This Court’s Opinion in Medina I

In light of the need for expediency alleged by the parties, this Court issued a series of orders shortening the time for filing briefs and setting the case for submission on June 12, 2008, three days after the trial court entered its final order dismissing the case. This Court’s opinion and judgment issued the same day the case was submitted — June 12, 2008. Medina v. Benkiser, 262 S.W.3d 25 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (“Medina I”). Our opinion, after first noting that the order at issue was a “final judgment,” held that the county court lacked subject-matter jurisdiction to issue the requested injunctive relief because appellants’ suit did not seek any damages and thus the suit did not satisfy the statutory amount-in-controversy jurisdiction of the county court, nor did appellants’ lawsuit allege any subject matter over which the Legislature had given jurisdiction to the statutory county courts. Id. at 27. Accordingly, this Court held that the county court did not err in dismissing appellants’ request for .injunctive relief for lack of jurisdiction. 262 S.W.3d at 28.

The Court also held that the county court did not have subject-matter jurisdiction to render the requested declarations under the Declaratory Judgments Act:

The Declaratory Judgments Act (“DJA”) provides that ‘[a] court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.’ The DJA does not itself create jurisdiction.... Appellants’ petition does not demonstrate that their suit is one for an amount in controversy within the county court at law’s jurisdiction or one that a statute allows the county court at law to entertain absent an amount in controversy.

Id. (internal citations omitted) (emphasis in original). The mandate issued on September 8, 2008.

The Trial Court Modifies the Judgment after Medina I

On July 8, 2008 — thirty days after the trial court’s final order dismissing the case issued and almost a month after our opinion and judgment in Medina I issued— appellees filed a Motion to Modify Judgment in the county court, seeking an award of their attorney’s fees. On July 18, 2008, the trial court granted the motion to modify and awarded appellees their attorney’s fees, subject to an evidentiary hearing on the amount. In the order granting that motion, the trial court found that

the judgment signed on June 9, 2008, was erroneous in that it did not award attorneys fees to the Defendants. The Court further finds that the motion to modify, correct or reform the judgment was filed within 20 days of the date of signing of the court’s original judgment, such that the Court has plenary power to modify, correct or reform the judgment at this time.

On August 7, 2008, the court conducted an evidentiary hearing as to the amount of attorney’s fees incurred by appellees. On August 12, 2008, the court signed a Final Judgment stating, “[T]he previous Order dissolving the Temporary Restraining Order and granting Defendants’ Plea to the Jurisdiction is modified to provide [Defendants] recovery from [Plaintiffs] of attorney fees.... ” The judgment awarded ap-pellees $14,500 in attorney’s fees for trial, and $25,000 for appellate and post-judgment attorney’s fees. The judgment also stated, “This judgment is final, disposes of all claims and all parties, and is appealable. Any relief not granted herein is denied.” This appeal followed.

Analysis

Appellants contend the trial court lacked plenary power to entertain the motion to modify the judgment and to award attorney’s fees. We agree the trial court lacked plenary power to modify the judgment. Therefore, we do not address appellants’ second issue, which asserts the trial court lacked subject-matter jurisdiction to award attorney’s fees to appellees under the Declaratory Judgment Act.

Plenary Power of Trial Court

In their first point of error, appellants contend the trial court lacked plenary power to modify the judgment and award attorney’s fees. We agree.

Texas Rule of Civil Procedure 329b provides that a trial court has plenary power over its judgment for at least 30 days after the date of the judgment. Tex.R. Crv. P. 329b. Pertinently, Rule 329b provides, “The trial court regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate modify correct or reform the judgment within thirty days after the judgment is signed.” Tex.R. Crv. P. 329b(d). If a motion for new trial is timely filed “the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law whichever occurs first.” Tex.R. Civ. P. 329b(f). Rule 329b further provides that “[a] motion to modify correct or reform a judgment ... shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court’s plenary power and the time for perfecting an appeal in the same manner as a motion for new trial.” Tex.R. Civ. P. 329b(g). “In the event a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.” Tex.R. Civ. P. 329b(e).

Here, appellees’ motion to modify the trial court’s judgment was filed within 30 days after the trial court’s final order issued on June 9, 2008. Thus, the motion was timely under Rule 329b(d). However, the judgment of this Court had issued on June 12, 2008, almost a month before the motion to modify the trial court’s judgment was filed on July 8, 2008. “[W]hen an appellate court affirms a trial court’s judgment, that judgment then becomes the judgment of both courts.” Cook v. Cameron, 733 S.W.2d 137, 139 (Tex.1987); see also Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no pet.) (“The trial court’s only duty is to enforce thé judgment as rendered.... Its only authority is to carry out the mandate of the appellate court.”)(internal citations omitted). An appellate court’s judgment is final not only in reference to the matters actually litigated, but as to all other matters that the parties might have litigated and decided in the case. Martin v. Credit Prot. Ass’n Inc., 824 S.W.2d 254, 257 (Tex.App.-Dallas, 1992, writ dism’d w.o.j.); see also Lake v. Lake, 899 S.W.2d 737 (Tex.App.-Dallas, 1995, no writ) (holding that trial court could not go beyond appellate court’s mandate and consider appellant’s claim for attorney’s fees on remand). Once our opinion and judgment have issued, the trial court loses its plenary power and the trial court loses the power to review, interpret, or enforce its judgment. See Harris County Children’s Protective Servs. v. Olvera, 971 S.W.2d 172, 175-76 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (trial court erred by awarding attorney’s fees after appeal because it lacked plenary power to do so).

Our opinion and judgment in Medina I constituted the final resolution of the controversy between the parties, and the trial court lacked plenary power to award attorney’s fees to appellees. By affirming the trial court’s judgment, our judgment essentially adopted the judgment of the trial court dismissing the case for lack of jurisdiction. Because the trial court did not award attorney’s fees to the appellees in its judgment — and the appellees did not raise this failure to award fees as an issue in Medina I — our opinion and judgment in Medina I closed the door on the possibility of the appellees recovering their attorney’s fees in this case. See, e.g., Martin, 824 S.W.2d at 257 (trial court erred by granting relief not specified in appellate court’s mandate after court of appeals reversed and rendered judgment); see also Tex. R.App. PROC. 38.1(i); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990) (per curiam) (holding it is a “well-established rule that grounds of error not asserted by points of error or argument in the court of appeals are waived”).

Citing to Civil Practices & Remedies Code § 51.014(a)(4), appellees now attempt to cast Medina I as an interlocutory appeal from an order granting a motion to dissolve a TRO. They argue that the county court, therefore, retained jurisdiction over the controversy after our opinion and judgment issued. However, at the time the appeal was filed, the parties agreed that the trial court’s order dismissed the cause and this Court acknowledged in its opinion the finality of the judgment dismissing the cause. Appellants cannot now recast their appeal after our judgment and mandate. Moreover, a party, cannot appeal from an interlocutory order of a county court at law granting or denying a plea to jurisdiction unless that party is a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008). Appellees do not fit the definition of a governmental unit, nor do they attempt to contend that they could do so. See Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3) (Vernon 2008). Appellees, therefore, could not — and did not — file an interlocutory appeal in Medina I.

Appellees point to Falls County Water Control & Improvement Dist. No. 1 v. Haak, 220 S.W.3d 92 (Tex.App.-Waco, no pet.), as an example in which a trial court granted a motion to modify a judgment and awarded attorney’s fees after dismissing the cause. Falls County is distinguishable based on differences in procedural history. In this case, our opinion and judgment had already issued when the trial court modified the judgment, while in Falls County the trial court modified the judgment prior to the filing of the notice of appeal. See Falls County, 220 S.W.3d at 96 (showing timeline of events from signing of judgment to notice of appeal). Therefore, unlike in this case, there was no intervening appellate judgment affirming the trial court that became the judgment of the trial court. See Dallas County, 971 S.W.2d at 630. Moreover, even if this were not the case, Falls County, is controlled by a different statutory scheme— the Texas Property Code and its provision relating to condemnation cases. Falls County, 220 S.W.3d at 93. After dismissing the condemnation claims because it found the Water Authority had failed “to make a new, reasonable and bona fide offer for the taking [of the property at issue],” the trial court in Falls County granted the motion for recovery of attorney’s fees. Id. This order was pursuant to the defendants’ motion to recovery attorney’s fees and other expenses as permitted by Texas Property Code section 21.019(c). Id.; see Tex. Prop.Code § 21.019(c) (Vernon 2003) (specifically allowing recovery of attorney’s fees after court grants property owner’s motion to dismiss condemnation proceeding).

We sustain appellants’ first issue and hold that the trial court lacked plenary power to modify the judgment and award appellees’ attorney’s fees.

Conclusion

We sustain appellants’ first issue and hold that the trial court’s order on the motion to modify judgment, and its subsequent “final judgment” awarding attorney’s fees to appellees, is void. We therefore vacate the trial court’s judgment of August 12, 2008, and dismiss this appeal.

      . Tex.R.App. P. 38.6(d) (allowing appellate courts, in the interests of justice, to shorten the time for filing briefs and submission of cases).

      . Medina v. Benkiser, 262 S.W.3d 25, 26 (Tex.App.-Houston [1st Dist.] 2008, no pet.)(stating, “Appellants appeal from this final judgment.”).


text:
    Veronica L. DAVIS, Appellant, v. James WEST, Henry Radoff and Prosperity Bank, Appellees.
    No. 01-08-01006-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 2009.
    Rehearing Overruled March 9, 2010.

      Veronica L. Davis, West Columbia, TX, pro se.
    Cynthia Lea Jones, Gerald Scott Sieg-myer, Siegmyer, Oshman & Bissinger LLP, John P. Scott, Cruse, Scott, Henderson & Allen, Houston, TX, for Ap-pellees.
    James A. West, Houston, TX, pro se.
    Panel consists of Justices KEYES, ALCALA and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Veronica Davis, complains that the trial court improperly granted summary judgment dismissing her claims against Henry V. Radoff and Prosperity Bank (“the Bank”). We affirm.

Background

In 2004, Houston Reporting Service, (“Houston Reporting”) filed a suit on a sworn account against Davis, an attorney who used Houston Reporting’s services during a past deposition. The suit was filed in Justice Court in Harris County. In its suit, Houston Reporting sought payment of $1083.98 plus attorney’s fees, interest and costs. A default judgment was entered against Davis. After the default judgment became final, Houston Reporting began efforts to collect the amount owed. The justice court entered a written order, signed on June 27, 2006, appointing Radoff as receiver and including a turnover order commanding that Radoff take possession of “all ... monies on deposit in financial institutions, financial accounts (bank accounts), certificate of depositions, money market accounts, accounts held by any third party....” Pursuant to the court’s order, Radoff was required to post a bond in the sum of $100.00. The turnover order did not state the total amount of the judgment serving as the basis for the receivership, nor did it include any statement as to the costs, fees or interest awarded in that underlying judgment. The underlying default judgment was not attached to the turnover order and it does not appear in the record of this appeal.

On July 24, 2006, Radoff sent Davis a letter informing her that he had been named receiver and asking that she turn over any nonexempt property to satisfy the judgment against her. On July 25, 2006, the Bank received a faxed letter from Radoff, stating that he had been appointed receiver and empowered to seize funds belonging to Davis. Radoff demanded that all accounts in Davis’s name be frozen and he stated that the amount due was $3,400. A copy of the turnover order appointing Radoff as receiver was attached to this faxed letter. On July 26, Radoff sent a second letter to the Bank stating that the amount to be turned over was $4,144.91. The Bank released the sum of $4,144.91 to Radoff. This sum was used to satisfy the judgment owed to Houston Reporting and the receivership was then closed. That same day, the Bank sent Davis a letter informing her that it had received the order from Radoff and that her account had been frozen.

On October 9, 2006, Davis filed this action in district court in Brazoria County against Houston Reporting, its attorney, Radoff and the Bank. Davis asserted a challenge to the receivership, a claim for abuse of process against Radoff, and claims for breach of contract and breach of fiduciary duty against the Bank. Davis also alleged that the Bank had released personal information to Radoff without her permission.

On August 24, 2007, Radoff filed a motion for summary judgment. On February 1, 2008, the trial court granted summary judgment in Radoff s favor on the grounds that he was entitled to derived judicial immunity and dismissed Davis’ claims regarding the insufficiency of his bond. The trial court denied Radoff s no-evidence motion.

On July 21, 2008, the Bank sought summary judgment, arguing that Davis had no evidence to support her claims and that, as a matter of law, it was insulated from any liability by statute. The Bank’s motion also argued that Davis could not present any evidence that its failure to demand a certified copy of the turnover order, rather than a faxed copy, was the proximate cause of any of Davis’s damages.

Davis filed a response to the Bank’s motion and her own cross-motion for summary judgment against the Bank on August 8, 2008. Davis’s response to the Bank’s motion alleged that the Bank’s motion should not be granted due to the fact that the Bank’s notice of the hearing failed to give adequate notice and because an adequate time for discovery had not yet elapsed. In her cross-motion, Davis asked that the court grant her summary judgment on her breach of contract claim against the Bank.

On August 12, 2008, the trial court granted the Bank’s motion for traditional and no-evidence summary judgment. The trial court denied Davis’s motion for summary judgment on October 6, 2008. On November 11, 2008, the trial court entered an order severing Davis’s claims against Radoff and the Bank from her claims against Houston Reporting and its attorney. This appeal by Davis followed.

Analysis

On appeal, Davis complains that the trial court erred by rendering summary judgment on her claims against Radoff and the Bank. As to Radoff, Davis contends the trial court erred by rendering summary judgment in Radoff s favor because Radoff does not enjoy derived judicial immunity nor did Radoff have any “authority to act at all in this case” because the order under which he acted was invalid. As to the Bank, Davis argues the trial court erred by granting the Bank’s motion for summary judgment because (1) the Bank released funds from her account to Radoff without demanding a certified copy of the turnover order, (2) the order appointing Radoff was invalid, and (3) the Bank was not served with the order at its registered address. Davis also complains that she did not receive proper notice of the hearing on the Bank’s motion for summary judgment under Rule 21a of the Texas Rules of Civil Procedure.

Standard of Review

Radoff and the Bank moved for summary judgment on both traditional and no-evidence grounds, and Davis sought a traditional summary judgment on her breach of contract claim. Thus, we apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. See, e.g., Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004) (traditional summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (no-evidence summary judgment).

When both parties to a suit move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When the trial court grants one party summary judgment and denies the other, we review both parties’ summary judgment evidence, determine all questions presented, and render the judgment the trial judge should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). When the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on any meritorious ground expressly presented in the motion and which is preserved for appellate review. State Farm, Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

I. Did the trial court err in granting Radoff s Motion for Summary Judgment?

A. Radoffs Derived Judicial Immunity

In her first issue, Davis contends that the trial court erred in granting Ra-doffs motion for summary judgment because he does not enjoy derived judicial immunity and the Texas Civil Practice and Remedies Code specifically allows suits against receivers.

A person entitled to derived judicial immunity receives the same absolute immunity from liability for acts performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex.2002). Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity — protection of individual judges and of the public’s interest in an independent judiciary — are also implicated when judges delegate their authority, appoint another to perform services for the court, or allow another to otherwise serve as an officer of the court. Id. In those circumstances, the immunity attaching to the judge follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus also enjoys absolute immunity, which is known as derived judicial immunity. Id.

Texas uses a “functional approach” to determine whether someone is entitled to derived judicial immunity. Id. at 556-57. The “functional approach looks to whether the person seeking immunity is intimately associated with the judicial process” and whether “that person exercises discretionary judgment comparable to that of the judge.” Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex.App.-Houston [14th Dist.] 1996, writ denied)). The functional approach focuses on the nature of the function performed, not the identity of the actor, and considers whether the court officer’s conduct is like that of the delegating or appointing judge. Id. at 555.

Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled to derived judicial immunity. We agree. “Like a court-appointed bankruptcy trustee acting within his authority as trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for actions grounded in his conduct as receiver.” Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex.App.Austin 2009, pet. denied) (mem. op.) (citing Clements v. Barnes, 834 S.W.2d 45, 46 (Tex.1992) (court-appointed bankruptcy trustees acting within scope of authority entitled to derived judicial immunity); Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (court-appointed receiver entitled to derived judicial immunity for all acts authorized by court, but not for breach of fiduciary duties); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex.App.-Waco 2002, no pet.) (characterizing court-appointed receiver as agent of court)).

“Once an individual is cloaked with derived judicial immunity because of a particular function being performed for a court, every action taken with regard to that function — whether good or bad, honest or dishonest, well-intentioned or not— is immune from suit. Once applied to the function, the cloak of immunity covers all acts, both good and bad.” Id. (citing Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 WL 1812595 (Tex.App.-San Antonio Aug. 3, 2005, no pet.) (mem. op.)).

Here, the turnover order was issued by a Harris County justice court. It recited that “whereupon the Court’s review of the papers herein on file, [the Court] became of the opinion that [Houston Reporting] holds and is entitled to collect upon a true, final, valid and subsisting judgment against Defendant-in-Judgment, VERONICA L. DAVIS....” The Court accordingly ordered that

HENRY RADOFF, ... be and is hereby appointed Receiver to serve after posting bond in the sum of $100 and taking the oath of office, in this case pursuant to the Texas Turnover Statute, with all the power and authority to take possession of all non-exempt property of Respondent VERONICA L. DAVIS, that is in the actual or constructive possession or control of Respondent VERONICA L. DAVIS, including but not limited to all property incidental to or associated with the daily operation of Respondent VERONICA L. DAVIS ... including but not limited to all cash, ... drafts and checks, monies on deposit in financial institutions, financial accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any third party, ... that is in the actual or constructive possession of Respondent VERONICA L. DAVIS; and to pay the proceeds to the Receiver to the extent required to satisfy said judgment, but not to exceed the full amount awarded under the judgment (or balance due if the judgment has been partially satisfied) which amount includes principal, attorney’s fees and prejudgment interest, together with post-judgment interest and costs and the amount of attorney’s fees awarded herein; ...

On appeal, Davis complains that Radoff took actions violating the turnover order. Specifically, Davis alleges that the order does not allow Radoff to seize property from the Bank but that he instead only may receive property from Davis, that he must act in tandem with the constable or sheriff, and that he was required to hold a hearing to determine the amount of money Davis needed to live on and to provide for her dependents. Davis also appears to allege that Radoff seized exempt assets and that he improperly seized her assets without providing a certified copy of the turnover order to the Bank.

However, as set out above, the turnover order in this case is extremely broad. The order granted Radoff the explicit power to perform the acts that form the basis of Davis’s complaints — to locate and take control of any cash she had deposited in bank accounts and to use that money to satisfy the underlying default judgment against her. Davis’s petition does not allege any acts by Radoff except those performed in his capacity as receiver, and those acts are within the bounds of the turnover order.

Davis’s argument regarding Texas Civil Practice and Remedies Code section 64.052 is also unsuccessful. Section 64.052 allows suits against receivers “in their official capacity” to be brought in a court of competent jurisdiction without permission of the appointing court. Tex. Civ. Prac. & Rem.Code Ann. § 64.052 (Vernon 2008). It is, in essence, a venue provision that has “the effect of making receivers subject to the general venue statute and thereby served the convenience of the public by abolishing the common-law rule that only the court appointing the receivers should have jurisdiction and venue on suits brought against the receiver.” Carson v. Hilley, 484 S.W.2d 457, 460 (Tex.App.-Fort Worth 1972, no writ). Section 64.052 does not enlarge or restrict the causes of action that may be asserted against a receiver, nor does it abrogate a receiver’s derived judicial immunity for acts taken -within the scope of his receivership. See, e.g., Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex.App.-Austin 2009, pet. denied) (“We have already concluded that derived judicial immunity shields a court-appointed receiver from suit in this case, where the receiver acts as an arm of the court and the suit is based on actions taken within the scope of the receiver’s authority.”).

Accordingly, we conclude that the trial court properly granted summary judgment on Radoff s motion for summary judgment as a matter of law on his defense of derived judicial immunity. We overrule Davis’s first issue.

B. The Validity of the Turnover Order

In her second issue, Davis challenges the validity of the turnover order and argues that the trial court improperly granted summary judgment for Radoff because the order under which he acted was invalid. Davis contends the order was invalid because Houston Reporting failed to make the proper showing under Texas Civil Practice and Remedies Code section 31.002(a) when requesting the turnover order and because the turnover order does not specify the dollar amount of the underlying judgment.

The Texas turnover statute is a procedural device to assist judgment creditors in post-judgment collection. A judgment creditor is entitled to receive aid from a court in order to reach property to obtain satisfaction on a judgment “if the judgment debtor owns property ... that: (1) cannot readily be attached or levied on by ordinary legal process; and (2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.” Tex. Civ. PRAC. & Rem.Code Ann. § 31.002(a) (Vernon 2008). The statute empowers courts to order a judgment debtor to turn over nonexempt property that is in the debtor’s possession or subject to the debt- or’s control, including present or future rights to property. Id. § 31.002(b)(1). It also allows a court to appoint a receiver “with the authority to take possession of the nonexempt property, sell it and pay the proceeds to the judgment creditor to the extent to satisfy the judgment.” Id. § 31.002(b)(3). The trial court is not required to identify in the order the specific property subject to turnover. Id. § 31.002(h). In addition, the trial court may enforce the turnover order by contempt proceedings. Id. § 31.002(c).

We have previously construed the turnover statute as requiring an evidentiary showing to support the entry of the court’s order:

Before a trial court may grant relief under section 31.002(b), the conditions of section of 31.002(a) must exist, namely, (1) the entity that is to receive aid must be a judgment creditor; (2) the court that would grant aid must be one of appropriate jurisdiction; (3) the aid to be given must be in order to reach property to obtain satisfaction on the judgment; and (4) the judgment debtor must own property (including present or future rights to property) that: (a) cannot be readily attached or levied on by ordinary legal process and (b) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex.App.-Houston [1st Dist.] 2008, no pet.). In essence, Davis complains on appeal that the turnover order was issued without the necessary evidentiary underpinnings, and that the scope of Radoffs powers exceeds that allowed by the statute. We construe this as a collateral attack on the turnover order.

“A collateral attack on a judgment is an effort to avoid its binding force in a proceeding, instituted not for the purpose of correcting, modifying, or vacating it, but in order to obtain specific relief against which the judgment stands as a bar.” Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 549 (Tex.App.-Houston [1st Dist.] 1994, no writ) (quoting Texaco, Inc. v. LeFevre, 610 S.W.2d 173, 176 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ)).

As a general rule, turnover orders are final, appealable orders. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex.1995). As such, turnover orders must be attacked on direct appeal. See, e.g., In re Wiese, 1 S.W.3d 246, 249 (Tex.App.-Corpus Christi 1999, orig. proceeding). In Wiese, the judgment debtor failed to comply with a turnover order and was held in contempt. Id. at 247. She petitioned for a writ of habeas corpus, arguing in part that the underlying turnover order was void because it made no provision for the deduction of underlying reasonable and necessary business expenses. Id. The Corpus Christi Court of Appeals declined to reach that argument because the debtor had failed to challenge the turnover order by direct appeal. Id. at 249. The Court noted that the turnover order in that case failed to include any evidentiary findings relating to the amount of the property to be seized and whether the debtor owned enough property to satisfy the judgment, and also failed to make provisions for the debtor’s reasonable and necessary business expenses. Id. at 250. Nevertheless, the Court held that “the fact that the turnover order is contrary to a statute or contains errors only makes the judgment ‘voidable’ and does not give a party the right to circumvent ordinary appellate or other direct procedures to correct it.” Id. at 250-51.

Similarly, even if the turnover order in this case failed to include the amount of the underlying judgment to be satisfied, required Davis to turnover exempt property or contained other requirements in contravention of the turnover statute, the order would be voidable — not void — and it must therefore have been the subject of a direct attack. Id. at 250. Davis cannot use these alleged deficiencies to defeat Ra-doffs derived judicial immunity or to hold Radoff or the Bank liable for actions taken in reliance upon the turnover order when she failed to timely prosecute a direct appeal of the turnover order or seek injunc-tive or mandamus relief prohibiting the execution of the turnover order. We overrule Davis’s second issue.

II. Did the trial court err by granting the Bank’s motion for summary judgment?

Davis also contends that the trial court erred by granting the Bank’s motion for summary judgment. The Bank moved for both a no-evidence and traditional summary judgment, and the order granting summary judgment in the Bank’s favor does not specify the grounds upon which judgment was granted. Accordingly, we may affirm on any grounds that could have supported the trial court’s judgment. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

In her third and fourth issues, Davis argues that the trial court improperly granted summary judgment in the Bank’s favor because the turnover order is “invalid on its face.” We have addressed these points above, and have found them to be an impermissible collateral attack on the turnover order. We overrule that portion of Davis’s third and fourth issues addressing the validity of the underlying order.

A. The Bank’s Failure to Insist Upon a Certified Copy of the Turnover Order

The remaining portion of Davis’s third issue argues that the trial court erred in granting summary judgment in the Bank’s favor because the Bank never received a certified copy of the turnover order and it may not therefore rely upon the normal statutory protections for institutions who act in accordance with court orders.

A financial institution that complies with an order to turn over assets to a receiver is not liable for such compliance to a judgment debtor. Tex. Civ. Prac. & Rem.Code Ann. § 31.010 (Vernon 2008). Additionally, when a claim is made against a customer of a financial institution, “[t]he customer bears the burden of preventing or limiting a financial institution’s compliance with or response to [such] claim.... ” Tex. Fin.Code Ann. § 59.008(c) (Vernon 2008) (listing available remedies such as restraining orders, injunctions, and protective orders to prevent or suspend financial institution’s response to claim against customer). “Section 59.008 unequivocally places the burden on a customer of a financial institution to prevent a financial institution from complying with or responding to notices of freeze, receivership, restraining orders, and injunctions asserting or establishing claims against customer accounts.” Yazdchi v. Bank One, Texas, N.A., 177 S.W.3d 399, 406 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

Davis argues on appeal that the Bank is not entitled to rely upon these statutory protections because the Bank failed to insist that it be served at its registered address for service with a certified copy of the turnover order. In addition, Davis argues that the Bank was not required to comply with Radoffs request because he never served a certified copy of the turnover order upon it and that the Bank’s compliance with his request was therefore a breach of contract and a breach of a fiduciary duty to Davis.

The Bank’s no-evidence motion for summary judgment below, however, specifically challenged the causation element of Davis’s claims. Thus, the Bank’s no-evidence motion required Davis to present evidence that the Bank’s failure to insist that Radoff provide it with a certified copy of the turnover order at its registered address was the proximate cause of any damages or injury to Davis. Whether or not the Bank was entitled to rely on the statutory protections is an issue that we need not reach here, because Davis did not present any evidence to show that the Bank’s actions were the cause of any damages or injury to her. See, e.g., Tex.R. Civ. P. 166a(i); Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (no-evidence motion filed under 166a(i), challenging specific element of plaintiffs case, shifts burden to nonmovant to raise genuine issue of material fact by presenting at least scintilla of evidence as to challenged element); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex.App.-El Paso 2000, no pet.) (damages to plaintiff resulting from breach is element of breach of contract action); Martin v. Estates of Russell Creek Homeowners Ass’n, Inc., 251 S.W.3d 899, 904 (Tex.App.-Dallas 2008, no pet.) (damages “necessary” element of breach of fiduciary duty claim and nonmovant must present at least scintilla of evidence raising genuine issue of material fact when responding to no-evidence motion for summary judgment motion).

B. No Evidence of Breach of Contract and Breach of Fiduciary Duty

Davis also argues that the trial court erred by granting summary judgment in the Bank’s favor on her breach of contract and breach of fiduciary duty claims. First, Davis argues that the Bank breached its fiduciary and contractual duties to her by failing to notify her of Radoffs actions prior to releasing her funds to Radoff. Davis alleges that, had she been timely notified of Radoffs demand upon the Bank, she would have been able to take action to prevent Radoffs depletion of her account. Further, she alleges that the Bank breached its duties to her by actually turning over funds in her account to Radoff. However, Davis never presented any authority to show that the Bank had a duty — fiduciary or contractual — to promptly notify her of Ra-doffs demands, nor did she show that the Bank failed to notify her.

Whether a confidential or fiduciary relationship exists is normally a question of fact to be decided by a jury. Crim Truck & Tractor v. Navistar Int’l, 823 S.W.2d 591, 594 (Tex.1992), superseded by statute, Tex.Rev.Civ. Stat. art. 4413(36), § 6.06(e), as recognized in Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225-26 (Tex.2002); see also Taylor v. GWR Operating Co., 820 S.W.2d 908, 911 (Tex.App.-Houston [1st Dist.] 1991, writ denied). When the issue is one of no evidence or conclusive evidence, the issue is a question of law. Crim Truck & Tractor, 823 S.W.2d at 594 (no evidence). The relationship between a bank and its customers does not usually create a special or fiduciary relationship. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex.App.-Houston [1st Dist.] 1996, no writ); Manufacturers Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 610 (Tex.App.-Houston [1st Dist.] 1991, no writ). “Specifically, the relationship between a bank and its customers does not usually create a special or fiduciary relationship. However, when a special relationship between a borrower and lender has been found, it has rested on extraneous facts and conduct, such as excessive lender control over, or influence in, the borrower’s business activities.” Farah, 927 S.W.2d at 675. In responding to the Bank’s no-evidence motion for summary judgment, Davis did not present any such “extraneous facts and conduct” justifying the imposition of a fiduciary relationship with the Bank.

Similarly, Davis never cited any contractual provision in her deposit agreement with the Bank that prohibited the Bank’s payment of funds from her account pursuant to a turnover order issued by a court or which required the Bank to notify her sooner than the next day after receiving the turnover order. Nothing in the provisions of the depositor agreement that Davis cites prevented the Bank from complying with the turnover order or requires that the Bank notify her immediately of a turnover order. In fact, the language she cites specifically acknowledges that the Bank may have obligations arising from “state and federal law” that are not outlined in the depositor agreement.

Davis relies upon FNFS, Ltd. v. Sec. State Bank & Trust, 63 S.W.3d 546 (Tex.App.-Austin 2001, pet. denied), to argue that the Bank had an implied duty to pay only those sums she ordered from her account, and no others. However, FNFS does not stand for the proposition Davis urges. Instead, FNFS dealt with the question of “negotiation” of payable instruments and used the cited language to delineate a bank’s obligations to pay negotiable instruments as instructed. Id. at 550 (“The purpose of an endorsement is to identify the user of the check so that the endorsement can be compared with the directions of the maker, that is, to ensure the endorser is the same individual or entity as the payee.... This necessarily follows from the understanding that, ‘[w]hen a customer deposits funds with a bank, the bank impliedly agrees to disburse those funds only in accordance with the depositor’s instructions.’ ”) (citing La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 563 (Tex.1984); Tex. Bus. & Com.Code Ann. §§ 3.404(a), 4.401(a)).

Accordingly, we hold that the trial court did not err by rendering summary judgment on the Bank’s behalf on Davis’s claims and overrule the remaining portion of Davis’s third and fourth issues.

III. Did the trial court err by failing to grant Davis’s motion for summary judgment?

In her fifth issue, Davis argues that the trial court erred by not granting her motion for summary judgment against the Bank. Davis’s argument on this issue is nearly incomprehensible, but she appears to reurge the grounds discussed elsewhere — that the Bank breached a contractual or fiduciary duty to her and that the turnover order was invalid. As discussed above, Davis was not entitled to summary judgment on these grounds as a matter of law. We overrule Davis’s fifth issue.

IV. Texas Rule of Civil Procedure 21a

In her sixth issue, Davis argues that the trial court erred by granting summary judgment for the Bank because she did not receive sufficient notice of the hearing on the Bank’s motions and because she lacked “adequate time” to conduct discovery.

The certificate of service on the Bank’s motion for summary judgment states that the document was forwarded to Davis “via Facsimile and/or Certified Mail, Return Receipt Requested and/or First Class Mail” on July 17, 2008. The summary judgment motion in the record reflects that the motion was filed on July 21, 2008. Davis’s response to the Bank’s motion for summary judgment alleged that an inadequate time for discovery had elapsed and that she had not been afforded proper notice of the hearing on the Bank’s motion. Davis did not, however, move for a continuance nor did she file an affidavit as to any of the facts supporting her objection. The summary judgment hearing took place on August 12, 2008. There is no evidence in the record to establish when Davis first received notice of the August 12, 2008 hearing date. At the summary judgment hearing, Davis again objected to inadequate notice and inadequate time for discovery but she failed to present any motion to continue or file any affidavits regarding her objection.

In the summary judgment context, Texas Rules of Civil Procedure 166a(e) requires “[e]xcept on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.” Tex.R. Civ. P. 166a(c). The rules for filing and serving pleadings apply to summary judgment motions, including Rule 21a, which extends the minimum notice by three days when the motion is served by mail. See Lewis v. Blake, 876 S.W.2d 314, 315-16 (Tex.1994). A certificate of service is prima facie evidence of the fact of service, but nothing in the rule “preclude[s] any party from offering proof that the notice or instrument was not received, or, if service by mail, that it was not received within three days_” Tex.R. Civ. P. 21a.

Davis complains that the trial court erred in holding the hearing on the motion for summary judgment because the hearing took place 22 days after the filing of the motion and “a hearing may not be held fewer than 24 days between the time the motion is mailed and the day of the hearing.” Davis’s argument confuses the filing of a motion with the trial court, serving a copy of the motion upon a nonmovant, and notice that the motion is set for hearing or submission.

The Bank’s motion for summary judgment was served by mail upon Davis 26 days before the hearing on the motion was held. The motion was then filed with the trial court 22 days before the hearing. We do not read the rules as requiring that Davis be afforded 24 days’ notice of the filing date of the motion for summary judgment. We overrule Davis’s issue relating to service of the motion.

Davis also argues on appeal that Rule 166a(i) states that a no-evidence motion for summary judgment may be filed “after an adequate time for discovery.” Tex.R. Civ. P. 166a(i). Davis contends that she did not have an adequate time for discovery in light of health problems she encountered while the case was on file. However, Davis waived any objection to an inadequate time for discovery by failing to file an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods., 925 S.W.2d 640, 647 (Tex.1996) (failure to file affidavits or verified motion for continuance waives objection as to lack of time for adequate discovery); Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 450-51 (Tex.App.-Dallas 2002, no pet.) (same).

We overrule Davis’s sixth issue.

Conclusion

Because the trial court did not err by entering summary judgment in favor of Radoff and the Bank, we overrule Davis’s issues on appeal and affirm the judgment of the trial court.

      . Davis does not challenge the trial court’s grant of summary judgment on the issue of whether Radoff's bond was sufficient. Accordingly, she has waived this issue on appeal. Tex.R.App. Proc. 38.10) (brief must contain clear and concise argument, with appropriate citations to authorities and the record); Smith v. Tiltor, 3 S.W.3d 77, 89 (Tex.App.-Dallas 1999, no pet.) (failure to raise and brief issue relating to error in summary judgment waives issue on appeal).

      . In fact, the evidence in the record reveals that the Bank timely notified Davis — the day after receiving Radoff's first letter — of its receipt of Radoff's demands and its compliance with the turnover order, whether or not it had an affirmative duty to do so.