source: Caselaw Access Project

author: SUSAN LARSEN, Justice (former).

license: Public Domain

text:
    David SOMERS, Appellant, v. Alberto and Celia ARANDA, Appellees.
    No. 08-08-00289-CV.
    Court of Appeals of Texas, El Paso.
    June 14, 2010.

      David Somers, El Paso, TX, pro se.
    Nora M. Artalejo, El Paso, TX, for Ap-pellees.
    Before CHEW, C.J., RIVERA, J„ and LARSEN, J.
   OPINION

SUSAN LARSEN, Justice (former).

This appeal involves a breach of contract that was originally heard in Justice of the Peace Court, and appealed de novo to County Court at Law Number Three of El Paso County. In four related issues, Defendant/Appellant David Somers challenges the trial court’s granting of summary judgment against him, the failure to grant summary judgment for him, and the granting of attorneys’ fees. We affirm.

PROCEDURAL HISTORY

The history of this case in Justice of the Peace Court is confused. Plaintiffs/Appel-lees Alberto and Celia Aranda filed cause number 406-123JC in justice court, claiming that Somers owed them $3,000 for breach of contract stemming from the purchase of a Q2 energy spa machine. On June 6, 2006, the justice of the peace initially entered a take-nothing judgment in that case noting that plaintiffs had not appeared. Plaintiffs did not appeal this ruling, but instead filed another case urging the same facts under cause number 406-427S. The justice of the peace dismissed the second case stating 08-08-00289-CV “406-427SC DISMISSED due to duplicate case having been filed under 406-123JC. New trial granted. Trial on the merits heard in cause #406-128JC.” On September 12, 2006 a trial was held in cause number 406-123JC, resulting in judgment for plaintiffs in the amount of $3,040 plus court costs. Defendant Som-ers appealed this judgment to County Court at Law Number Three.

In the county court, Defendant Somers filed two motions for summary judgment. Both were denied. Plaintiffs also filed a motion for summary judgment, which the trial court granted. The trial court entered judgment for plaintiffs in the amount of $3,000 plus $2,550 in attorneys’ fees. This appeal follows. Plaintiffs/Appellees have declined to file a brief on appeal.

Defendant’s motion for summary judgment

In his first and second issues on appeal, Somers argues that the trial court erred in denying his second motion for summary judgment. In both issues, he argues that his summary judgment was based upon deemed admissions, which the trial court erred in allowing plaintiffs to withdraw. We disagree.

On October 11, 2007, the trial court held a hearing on the motion for summary judgment. Before the summary judgment was taken up, plaintiffs’ counsel presented argument and evidence regarding defendant’s requests for admission, including a copy of plaintiffs’ responses, file stamped by the county clerk on March 29, 2007. Thus there was evidence before the trial court that plaintiffs had filed these responses less than thirty days after they had been served with them, but for some reason the responses had been misplaced after receipt by the county clerk.

Moreover, plaintiffs filed a motion to set aside any deemed admissions. The motion stated that: (1) before plaintiffs hired counsel, they had filed responses to the requests pro se, but could not remember whether they had served them upon defendant; (2) plaintiffs had relied upon advice of justice court personnel in filing the responses; (3) defendant would not be prejudiced by the withdrawal of any deemed admissions, as he was fully aware of plaintiffs’ position on the issues, as the case had already been tried once in justice court; and (4) the merits of the breach of contract would be decided by the trier of fact if the deemed admissions were withdrawn.

The trial court made the following ruling regarding the admissions:

All right. It appears to the Court that there’s some mistake somewhere. There should only be one file. It appears that they responded to the requests for admissions within the time prescribed by law. If in fact there is two separate files, you have filed a request to set aside — I don’t think there’s a need for that. But if there is, the Court will grant your relief and set aside. But I don’t believe that you need it, because there is a response to the requests for admissions.
And if there is a response to the request for admissions, then the motion for summary judgment, based upon the fact that the request or admissions were not filed, is denied, because there is a response, okay?

We find the trial court was well within its discretion in denying defendant’s motion for summary judgment, as it found that: (1) there were no deemed admissions, as responses had been filed within 30 days after service; and (2) alternatively, there were grounds to set aside deemed admissions if they existed. Under Tex.R. Civ. P. 198.3 this ruling was not error. Issues One and Two are overruled.

Plaintiffs’ motion for summary judgment

In his Issue Three, Appellant Som-ers urges that the trial court erred in granting plaintiffs’ motion for summary judgment. Plaintiffs’ motion set out that a contract, titled “General Agreement” and drafted by Somers, had been entered into by the parties. The agreement read as follows:

Both parties come in agreement that Celia Aranda shall make available funds totaling $3040.00 for the purchase of (1) one Q2 Energy Spa. This Q2 Energy Spa shall be for use by Celia Aranda and her extended family at no cost. David Somers agrees to purchase and operate the Q2 for their benefit with said funds and for the benefit of others outside of family members for a fair and reasonable charge. David Somers shall collect a fee from non-family members to cover cost of operation and repayment of the funds to Celia Aranda outlined in this agreement.
Purchase of the unit will be from Optimal Health located in Sedona, Arizona who is an authorized dealer of the Q2 Health Spa. This unit shall be shipped via Fed-Ex to El Paso, Texas.
Signed as an agreement on the 18th Day of June 2005.

Affidavits from both plaintiffs, dated June 27, 2008, state that “[t]he terms of the contract were to advance money to Mr. Somers for the purchase of a Q2 Energy Spa and that Mr. Somers would repay the funds.... To date Mr. Somers has not repaid the funds for the Q2 Energy Spa.” Defendant Somers responded to the motion by urging that the agreement did not reflect a loan, but rather an investment by plaintiffs, from which they would be repaid only from fees charged to the general public. Defendant did not present any evidence in support of this argument, nor did defendant plead any affirmative defenses.

We believe that summary judgment for plaintiffs was properly entered in this cause. Taking the plaintiffs’ uncon-troverted affidavits together with the contract itself, there is sufficient definiteness as to the material terms of the contract so as to enable the trial court to ascertain the parties’ intentions. Inimitable Group v. Westwood Group Develop., 264 S.W.3d 892, 899 (Tex.App.-Fort Worth 2008, no pet.). Which terms are material is determined on a case by case basis. Id. Somers complains that the contract does not contain the elements necessary to enforce a promissory note, including maturity date, repayment terms, and interest rate. We note initially that the judgment awarded no interest, so that element is not material. Although the agreement does not contain a maturity date or repayment schedule, the plaintiffs established by affidavit that a full three years had elapsed without any repayment. The court may presume the parties intended to impose reasonable terms. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 448-50 (Tex.2008). We further note that this is a suit for money damages, not specific performance, and less certainty is needed to render it enforceable. Ski River Dev., Inc. v. McCal-la, 167 S.W.3d 121, 133 (Tex.App.-Waco 2005, pet. denied). Finally, the law favors finding agreements sufficiently definite for enforcement where one side has already performed its side of the bargain. Amer ica’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 623-24 (Tex.App.-San Antonio 1996, writ denied). Somers’ third issue is overruled.

Attorneys’ fees

In his fourth issue, Somers argues that the trial court erred in granting plaintiffs’ attorneys’ fees. We disagree.

Under Tex. Civ. Prac. & Rem.Code Ann. Ch. 38.001, a party may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for an oral or written contract and the claiming party: (1) is represented by an attorney; (2) has presented the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed is not tendered before the expiration of 30 days. Tex. Civ. Prac. & Rem.Code Ann. §§ 38.001(8) and 38.002 (Vernon 2008). Moreover, in attorney’s fee claims under this chapter, the court may take judicial notice of the usual and customary fees and the contents of the case file without receiving further evidence in a proceeding before the court. Tex. Civ. Prac. & Rem.Code Ann. § 38.004. Where a case originally brought in justice court is appealed to the county court, a claim for attorney’s fees under Chapter 38 may be pleaded for the first time in county court. Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex.App.-Fort Worth 1996, no writ). A claim for attorney’s fees under this chapter does not constitute an independent ground of recovery but rather is in the nature of incidental damages and is not a new ground for recovery prohibited by Tex.R. Civ. P. 574a. Id.

Here, plaintiffs first hired counsel after the case had been appealed from justice court. They filed an amended petition containing a request for attorney’s fees under the Texas Civil Practice and Remedies Code. They prevailed on summary judgment, obtaining damages. Summary judgment is a proceeding before the court. Plaintiffs also made a motion for award of attorney’s fees, which was served upon defendant, setting out counsel’s hourly rate and hours worked. Defendant did not respond to this motion. The court was entitled to take judicial notice of usual and customary fees, as well as the contents of the court’s file in determining an attorney’s fee award. Defendant had notice that attorney’s fees were requested, he made no response to that request, and the award was appropriate under Tex. Civ. PRAC. & Rem.Code Ann. § 38.001. No error is shown and Issue Four is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

LARSEN, J. (sitting by assignment).


author: ANN CRAWFORD MeCLURE, Justice.

text:
    Stacey D. GAILEY, Appellant, v. MERMAID POOLS OF EL PASO, LLC, and Robert Purdue & Co., Inc. d/b/a Mermaid Pools, Appellees.
    No. 08-08-00255-CV.
    Court of Appeals of Texas, El Paso.
    June 23, 2010.
    Rehearing Overruled July 28, 2010.

      John P. Mobbs, El Paso, for Appellant.
    Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, for Appellees.
    Before CHEW, C.J., McCLURE, J., and BARAJAS, C.J. (Ret.), sitting by assignment.
   OPINION

ANN CRAWFORD MeCLURE, Justice.

Stacey D. Gailey appeals from a summary judgment granted in favor of Mermaid Pools of El Paso, LLC and Robert Pursue & Company, Inc. d/b/a Mermaid Pools (Mermaid Pools). For the reasons that follow, we affirm.

FACTUAL SUMMARY

Gailey hired Mermaid Pools to build a swimming pool in her backyard. The construction began on July 30, 2005 and was completed around August 30. Mermaid installed a skimmer in the deck surrounding the pool to filter the water and skim leaves from the surface. During construction, the skimmer is left uncovered and it is covered by a lid only when construction is complete. On August 25, Mermaid’s employees left for the day at approximately 5:30 p.m. and told Gailey she could go into the backyard to view the pool twenty-four hours later. The following evening at around 10 p.m., Gailey went into the backyard with her family and was injured when she stepped into the uncovered skimmer. Gailey filed suit against Mermaid, alleging negligence related to a premises condition. Mermaid filed a motion for summary judgment asserting there was no evidence it owed Gailey a duty to warn her of the open and obvious condition on her property and no evidence that it had breached any duty. The trial court granted the motion and entered a take nothing judgment in favor of Mermaid Pools.

DUTY

In Issue One, Gailey complains that Mermaid owed her a duty to make the dangerous condition safe or to warn her of the dangerous condition it had created. Mermaid counters that it owed Gailey no duty because she was the owner of the premises. Because the duty issue is dis-positive of the appeal, it is unnecessary to address Gailey’s other arguments.

We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Accordingly, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. at 751. A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R.Civ.P. 166a(i); Id.

Duty is the threshold inquiry in a negligence case, including one of premises liability. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Almanza v. Navar, 225 S.W.3d 14, 20 (Tex.App.-El Paso 2005, no pet.). In a premises liability case, the duty owed to the plaintiff depends on the plaintiffs status on the premises as an invitee, licensee, or trespasser at the time of the incident. Almanza, 225 S.W.3d at 21. Duty requires a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant. General Electric Co. v. Moritz, 257 S.W.3d 211, 218 (Tex.2008). The existence of a duty is a question of law for the court to decide based on the facts of the case. Moritz, 257 S.W.3d at 217; Almanza, 225 S.W.3d at 21.

As a general rule, a landowner or one who is otherwise in control of the premises must use reasonable care to make the premises safe for licensees and invitees. Clayton W. Williams, Jr., Inc., v. Olivo, 952 S.W.2d 523, 527 (Tex.1997); Lefmark Management Co. v. Old, 946 S.W.2d 52, 53 (Tex.1997); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty includes warning invitees and licensees of known hidden dangers that present an unreasonable risk of harm. Lefmark, 946 S.W.2d at 53. An owner or occupier of land in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527; Redinger, 689 S.W.2d at 417. In this case, Gailey contends she was injured by the skimmer left uncovered during construction, not as a contemporaneous result of Mermaid’s negligence. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527. Consequently, this is a premises defect case, not a negligent activity case. Id., citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (holding contemporaneous result of the activity itself). When such a duty is owed, the premises owner or occupier must either adequately warn of the dangerous condition or make the condition reasonably safe. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527.

Gailey, as the owner of the premises, is not an invitee, licensee, or trespasser. She was in control of the premises at the time of the injury. Yet she seeks to impose a duty on the independent contractor hired to construct her pool and deck to warn her about an alleged premises defect created during the ongoing construction. Gailey has not directed us to any authority in where such a duty has been imposed on an independent contractor and we are aware of none. We conclude that Mermaid did not owe a duty to warn Gailey about the uncovered skimmer or to cover it prior to completion of construction. The trial court properly granted summary judgment in favor of Mermaid on this ground. We overrule the sole issue for review and affirm the summary judgment.


author: LESLIE B. YATES, Justice.

text:
    TEXAS WEST OAKS HOSPITAL, LP and Hospital Holdings LLC, Appellants, v. Frederick WILLIAMS, Appellee.
    No. 14-10-00091-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 24, 2010.

      Ryan Lee Clement, Houston, for appellants.
    Muhammad Suleiman Aziz, Benny Agos-to Jr., Robert S. Kwok, Houston, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellants Texas West Oaks Hospital, LP and Hospital Holdings LLC (collectively “West Oaks”) appeal from the trial court’s order denying the motion to dismiss appellee Frederick Williams’s claims for failure to file an expert report under chapter 74 of the Civil Practice and Remedies Code. We affirm.

BACKGROUND

Mario Vidaurre, a man with a history of paranoid schizophrenia and violent outbursts, was admitted to West Oaks for psychiatric treatment in June 2007. Based on his history and conduct at the facility, Vidaurre was placed on one-to-one observation, and Williams was one of the technicians assigned to observe and monitor Vi-daurre’s behavior. During Williams’s shift, Vidaurre became agitated, and in an effort to calm Vidaurre, Williams took him to a fenced-in area behind the hospital to smoke a cigarette. The door locked behind them, Williams had no access to any type of emergency alarm or call button, and there is no monitored security camera covering that area. While in the smoking area, Vidaurre and Williams had a physical altercation; Williams was injured, and Vi-daurre died.

Vidaurre’s estate sued West Oaks and later Williams as well, alleging failure to properly treat, care for, and assess the medical situation of Vidaurre. Williams cross-claimed against West Oaks, alleging that West Oaks was negligent in the following manner:

a. Failing to properly train Williams to work at West Oaks’ premises, including warning him of the inherent dangers of working with patients with the conditions and tendencies that Mario Vidaurre possessed;
b. Failing to adequately supervise West Oaks’ employees, including Williams, while working with patients with conditions and tendencies that Mario Vidaurre possessed;
c. Failing to provide adequate protocol to avoid and/or decrease the severity of altercations between its employees, such as Williams, and patients;
d. Failing to provide its employees, including Williams, with adequate emergency notification devices to alert other employees of altercations in which assistance is needed;
e. Failing to warn Williams of the dangers that West Oaks knew or should have known were associated with working with patients such as Mr. Vidaurre; and
f. Failing to provide a safe workplace for its employees, including Williams.

West Oaks filed a motion to dismiss Williams’s cross-claims because he did not file an expert report under section 74.351(a) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)-(b) (Vernon Supp. 2009). The trial court denied the motion, and West Oaks has brought an interlocutory appeal challenging the trial court’s order. See id. § 51.014(a)(9) (Vernon 2008).

ANALYSIS

Chapter 74 of the Civil Practice and Remedies Code requires a “claimant” bringing a “health care liability claim” to file an expert report within 120 days of filing the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). A “claimant” is defined as “a person, including the decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim,” and “[a]ll persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.” Id. § 74.001(a)(2) (Vernon 2005). A “health care liability claim” is “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in contract or tort.” Id. § 74.001(a)(13). Finally, “health care” means “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Id. § 74.001(a)(10).

If a claimant with a health care liability claim does not comply with the expert report requirement, the trial court must dismiss the claim upon request of the defendant. Id. § 74.351(b). When, as here, the trial court rules on a motion to dismiss based on statutory interpretation, our review is de novo. See Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). West Oaks argues that Williams was required to comply with chapter 74 because he is a claimant and his claims constitute health care liability claims. We need not determine whether Williams is a claimant because we conclude his claims are not health care liability claims.

A claim is a health care liability claim if it alleges a breach of accepted standards of medical care or if the claim is inseparable from the rendition of medical care. See Marks v. St. Luke’s Episcopal Hosp., 2009 WL 2667801 (Tex.2009); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex.2005). In determining whether a claim is inseparable from the rendition of medical care, we consider factors such as (1) whether specialized knowledge of a medical expert may be necessary to prove the claim, (2) whether a specialized standard in the health care community applies to the alleged circumstances, and (3) whether the negligent act involves medical judgment related to the patient’s care or treatment. Marks, 2009 WL 2667801, at *4 . The source of the duty allegedly breached is also a factor to be considered. See id. at *7 (considering the “source of the negligence” in analyzing whether claim is a health care liability claim); Diversicare, 185 S.W.3d at 851 (“In addition, we focus on the essence of Rubio’s claim and consider the alleged wrongful conduct and the duties allegedly breached” in determining if claim is a health care liability claim). We look to the allegations in the petition to determine the gravamen of the complaint, regardless of how the complaint is labeled. See Marks, 2009 WL 2667801, at *8; Diversicare, 185 S.W.3d at 854.

Williams’s allegations involve West Oaks’s breaches of duty to him regarding his safety. Specifically, Williams claims that West Oaks did not train, warn, or supervise him regarding working with violent patients such as Vidaurre, did not provide proper safety protocols or equipment to use in an altercation with a violent patient, and generally failed to provide a safe workplace. No Texas case appears to have addressed whether the claims of a health care provider’s employee in these circumstances constitute health care liability claims.

Though chapter 74 provides that health care liability claims include breaches of safety standards, safety claims must be directly related to and inseparable from health care. See Tex. Civ. PRac. & Rem. Code Ann. § 74.001(a)(13) (providing that health care liability claims include causes of action for departures from accepted standards of “safety ... directly related to health care”); Marks, 2009 WL 2667801, at *4 (“[A]n accepted standard of safety is implicated under the Act when the unsafe condition or thing is an inseparable or integral part of the patient’s care or treatment.”). The safety prong is not so broad as to apply to any injury that occurs in a medical setting. See Marks, 2009 WL 2667801, at *4. Williams does not claim that West Oaks used improper medical judgment and breached a standard of medical care toward a patient that caused him injury. Rather, he alleges that West Oaks breached a duty owed to him by his employer to provide a safe workplace. Such claims are common in the employment context and flow from the employment relationship, not from any medical relationship giving rise to a medical standard of care. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006) (discussing employer’s duty to use ordinary care to provide a safe workplace, including warning of hazards and providing appropriate safety equipment); LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 476 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) (stating that employer’s duty of reasonable care to provide safe workplace includes warning, safety equipment, training, and supervision). West Oaks’s medical judgment is not at issue in determining whether West Oaks breached its duty to provide a safe workplace for its employee, Williams.

West Oaks argues that Williams’s claims are inseparable from health care because Vidaurre’s claims, which everyone agrees for purposes of this appeal are health care liability claims, arose from the same facts and indeed mirror Williams’s claims. Williams’s and Vidaurre’s claims are related, but that is not the same as being inseparable. The source of the duty giving rise to the two sets of claims is distinct, as is the nature of the duty. See Diversicare, 185 S.W.3d at 850-51 (distinguishing between hospital’s duty to patients and its duty to invitees); Allen v. Connolly, 158 S.W.3d 61, 65 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (stating that employees are invitees of employer to whom employer owes duty to use reasonable care to provide a safe workplace); see also Marks, 2009 WL 2667801, at *8; Diversicare, 185 S.W.3d at 851. Therefore, West Oaks could theoretically prevail against Vi-daurre because it did not breach a duty to him and yet still be liable to Williams for failing to provide a safe workplace. This demonstrates how the claims are indeed separable.

West Oaks further asserts that Williams’s claims are health care liability claims because expert testimony is necessary to establish whether its safety protocols and procedures were proper. Expert testimony might be required, but not necessarily medical expert testimony. See Diversicare, 185 S.W.3d at 848 (“The necessity of expert testimony from a medical or health care professional to prove a cause of action may also be an important factor in determining whether a cause of action is an inseparable part of the rendition of medical or health care services.” (emphasis added)). Williams’s allegations involve security and safety issues that can arise in other settings, such as jails and prisons, and may not require a medical expert. Furthermore, even if medical expert testimony is necessary to establish Williams’s claims, the need for expert testimony is not dispositive as to whether a claim is a health care liability claim. See id. (noting that the need for expert testimony “may” be an important factor); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 33 (Tex.App.-El Paso 2006, no pet.) (stating that the need for medical expert testimony is not dispositive in determining whether a claim is subject to chapter 74); see also Nat'l, Convenience Stores Inc. v. Matheme, 987 S.W.2d 145, 149 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (explaining that expert testimony cannot create a duty where one does not exist).

Finally, we note that our conclusion is consistent with the legislative purpose of the expert report requirement. The legislature enacted the expert report requirement for health care liability claims as part of a larger scheme to address the crisis in the availability of medical malpractice insurance. See Marks, 2009 WL 2667801, at at *2, 8; Diversicare, 185 S.W.3d at 846-47. There is no indication that health care providers are facing similar difficulty in obtaining insurance to cover negligence claims by their employees. Cf. Marks, 2009 WL 2667801, at *4 (discussing the legislative intent to address the medical malpractice insurance crisis and noting that “neither the statute nor the historical background suggests that physicians or health care providers were similarly challenged when obtaining commercial general liability insurance coverage for ordinary, non-medical accidents on their premises”). Expanding chapter 74’s requirements to other areas of tort law is properly left to the legislature. See Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 284 (Tex.App.-Texarkana 2008, pet. filed).

Williams does not allege that West Oaks breached a duty to any patient but rather breached an independent duty owed to him as an employee. This case involves a workplace injury, not medical malpractice, and the fact that the injury occurred in a hospital does not change that. See Marks, 2009 WL 2667801, at *8 (“[I]t is not the identities of the parties or the place of injury that defines the claim.”). The trial court did not err in denying West Oaks’s motion to dismiss Williams’s claims for failing to file an expert report under chapter 74. We affirm the trial court’s order.

      . West Oaks relies heavily on Wilson N. Jones Memorial Hospital v. Ammons, 266 S.W.3d 51 (Tex.App.-Dallas 2008, pet. filed), in which claims of a patient's wife, who was injured by another patient who was violent, were determined to be health care liability claims. Wilson is inapplicable here because it did not involve an employment situation and because, unlike here, the plaintiff’s injuries were allegedly caused by the failure of treatment to a patient. See id. at 64.


text:
    In the Matter of the MARRIAGE OF Brendowlyn A. CROSBY and Marlon J. Crosby Sr.
    No. 08-09-00203-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2010.

      Marlon J. Crosby Sr., New Boston, TX, pro se.
    Brendowlyn Crosby, Cedar Hill, TX, pro se.
    Before CHEW, C.J., RIVERA, J., and LARSEN, J.
   OPINION

SUSAN LARSEN, Justice (former).

Appellant/respondent Marlon J. Crosby Sr., a pro se prisoner, files this appeal from a decree of divorce entered by the 254th District Court of Dallas County, Texas. In three issues, he claims that: (1) the trial court erred in granting a divorce because he had answered the petition before judgment was granted; (2) the sixty-day waiting period between filing of the petition for divorce and hearing the divorce had not elapsed; and (3) Appellant did not receive notice of the setting before the divorce was entered. We affirm.

FACTS

Brendowlyn Crosby filed her petition for divorce on February 20, 2009. The petition states there were no children of the marriage, petitioner was not pregnant, and there was no property to be divided between the parties. Respondent was served with petition and citation on March 4, 2009. Respondent filed his original answer and request for disclosure on March 19, 2009. The answer also contained a request for jury trial. Although the petition recites that a jury fee had been tendered with the answer, the case summary does not reflect that any such payment was received by the District Clerk. A final decree of divorce was signed and entered on May 4, 2009. The decree recites that “[bjecause a jury was not demanded by either party, the Court tried the cause.” Appellant filed his notice of appeal on June 4, 2009.

DISCUSSION

Filing answer does not preclude entry of judgment

In his first issue on appeal, Crosby urges that the decree should be reversed because he filed an answer before judgment was granted. He cites no authority in support of this proposition. Crosby admits he was given notice of a pretrial hearing date of May 4, 2009 by his then-wife. The record reflects no attempt by Appellant to appear at this hearing either by motion for bench warrant or to appeal by alternative means such as affidavit, deposition, telephone or other means. Although a litigant cannot be denied access to civil courts merely because of inmate status, he does not have an unqualified right to appear personally at every court proceeding. In the Interest of A.W. and A.W., Minor Children, 302 S.W.3d 925, 928-29 (Tex.App.-Dallas 2010, no pet.). An incarcerated inmate wishing to appear at a hearing must provide the trial court with sufficient information to allow the court to assess the necessity of his appearance. Id. at 929. The trial court then must weigh the inmate’s need for access against the need to protect the integrity of the judicial system. Id. It is the inmate litigant’s burden to show the trial court why his presence, either personally or by alternative means, is warranted. Id. This Crosby wholly failed to do. His first issue on appeal is overruled.

Final hearing was not less than sixty days after filing petition

In his second issue, Appellant urges that the trial court erred in entering a decree less than sixty days after the petition was filed. This assertion is simply incorrect. The original petition for divorce was filed on February 20, 2009. The decree was signed and entered on May 4, 2009. More than sixty days had elapsed between the filing of the petition and entering of the decree. Issue Two is overruled.

Appellant had notice of hearing

In his third issue, Crosby urges that “[t]he petition was defective on its face. Trial Judge never gave appellant proper notice of setting in which it entered the Final Divorce Decree.” This Court cannot discern anything in the divorce petition that would render it defective; that portion of Appellant’s issue is overruled. With regard to notice of the hearing at which the decree was entered, as discussed above, Crosby admits he had notice of a pretrial hearing on that date. He did not appear, nor did he file any motion or request with the court that would have given the court notice he desired to appear. When the pretrial hearing was held without any word from Crosby other than his answer, the trial court was within its discretion to place the case on the noncon-tested docket and proceed with a final hearing. Tex.R. Civ. P. 245. We note that although Crosby requested a jury trial, he did not pay the jury fee and therefore was not entitled to a trial by jury. This conclusion was certainly reasonable under the circumstances, as the pleadings indicate that the parties had no minor children, no community property other than personal effects, and had actually only lived together for five months during 2005. Thus, the only issue before the court was insupportability. Appellant presented no affirmative grounds indicating the marriage was supportable; he merely asserted that “Petitioner can not prove that marriage between husband and wife insupportable.... ” A statement by one party that the couple has irreconcilable differences is sufficient proof to decree divorce on insupportability grounds. Baxla v. Baxla, 522 S.W.2d 736, 738 (Tex.Civ. App.-Dallas 1975, no writ). Appellant’s third issue on appeal is overruled.

CONCLUSION

The judgment is affirmed.

LARSEN, J. (sitting by assignment).


author: GUADALUPE RIVERA, Justice.

text:
    FAULKNERUSA, LP, FaulknerUSA GP, Inc., and Safeco Insurance Company of America, Appellants, v. ALARON SUPPLY COMPANY, INC., Appellee.
    No. 08-09-00119-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2010.
    Wanda Harkness, La Office of Wanda Harkness, Austin, TX, for Appellants.

      Thomas J. Walthall, The Gardner Law Firm, P.C., San Antonio, TX, for Appellee.
    Before CHEW, C.J, RIVERA, J., and LARSEN, J. LARSEN, J.
   OPINION

GUADALUPE RIVERA, Justice.

FaulknerUSA, L.P., FaulknerUSA GP, Inc. (Faulkner), and Safeco Insurance Company of America (Safeco), appeal the trial court’s summary judgment in favor of Alaron Supply Company, Inc. (Alaron). We reverse.

BACKGROUND

Faulkner, as general contractor, entered into three contracts with Alaron, as subcontractor, to provide food service equipment, laundry service and equipment, and parking control system service and equipment at the San Antonio Convention Center Hotel. The food contract was for $2,306,000, the laundry contract was for $1,837,420, and the parking contract was for $349,037. Each contract required a 100 percent surety bond, which Safeco provided, and that 10 percent would be withheld as retainage. Further, each contract contained the following provision:

Condition Precedent to Payment by Owner to FaulknerUSA for the Subcontract Work is a condition precedent to Subcontractor’s payment by FaulknerU-SA. Subcontractor is entitled to payment only for that portion of the Subcontract Work for which FaulknerUSA has been paid by Owner. Subcontractor expressly assumes the risk of nonpayment by Owner. The Subcontract Amount includes compensation to Subcontractor for the assumption of this risk. This provision establishes a condition precedent, and it shall not be construed merely as a Time of Payment Clause.

Later, Alaron sued Faulkner and Safeco for suit on sworn account, breach of contract, and suit on payment bond. According to Alaron’s first amended petition, it fully or substantially performed under the three contracts and Faulkner and Safeco owed $790,577.74 for the services rendered. After verified denials were filed, Alaron moved for summary judgment. Although Faulkner and Safeco responded that Alaron’s summary judgment motion should be denied, they did not also move for summary judgment. The trial court granted summary judgment in favor of Alaron.

DISCUSSION

Faulkner raises nine issues on appeal. The first contends that the trial court erred by failing to sustain its objections to an affidavit attached to Alaron’s motion for summary judgment, the second alleges that the trial court failed to rule that an affidavit attached to Faulkner’s response to Alaron’s motion for summary judgment was sufficient to raise a fact issue, the third asserts that payment by the owner was a condition precedent to any payment to Alaron, the fourth contests whether there was a question of fact as to whether payment of retainage was due, the fifth challenges Alaron’s sworn account pleadings, the sixth contends that Faulkner filed a proper sworn denial to Alaron’s suit on sworn account, the seventh alleges that timely notice of bond was not given, the eighth asserts that Safeco was not subject to summary judgment, and the ninth contests whether judgment was proper against Faulkner “GP.” Finding merit in Faulkner’s third issue, we need not address the remaining claims. See Tex. R.App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

Standard of Review

Alaron moved for summary judgment on “traditional” grounds. Therefore, Alaron bore the burden to show that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Tex. R. Crv. P. 166a(c). On appeal, we review Alaron’s motion and the evidence de novo, taking as true all evidence favorable to the nonmovant — Faulkner— and indulging every reasonable inference and resolving any doubts in Faulkner’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

We further review de novo the construction of an unambiguous contract. MCI Tel. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). In so doing, our primary concern is the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). In determining the parties’ intent, we examine the entire agreement and give effect to all provisions such that none are rendered meaningless. Id. We further apply the pertinent rules of construction, look to the plain meaning of the contract language, and enforce the contract as written. Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 867 (Tex.App.-Dallas 2003, pet. denied).

Condition Precedent

Condition precedents are events that must be performed before a right accrues to enforce a contract. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). No particular words are necessary for the existence of a condition, but such terms as “if,” “provided that,” “on condition that,” or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise. Id.; Gulf Const. Co., Inc. v. Self, 676 S.W.2d 624, 627 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.). As forfeitures are not favored, finding a condition precedent should be avoided if another reasonable reading of the contract is possible. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex.1990); Schwarz-Jordan, Inc. of Houston v. Delisle Const. Co., 569 S.W.2d 878, 881 (Tex.1978).

The parties cite Gulf as controlling authority. In that case, the contract provided that:

When the owner or his representative advances or pays the general contractor, the general contractor shall be hable for and obligated to pay the sub-contractor up to the amount or percentage recognized and approved for payment by the owner’s representative less the retain-age required under the terms of the prime contract. Under no circumstances shall the general contractor be obligated or required to advance or make payments to the sub-contractor until the funds have been advanced or paid by the owner or his representative to the general contractor.

Gulf, 676 S.W.2d at 627. The provision was not labeled “condition precedent,” nor did it contain terms such as “if,” “provide that,” “on condition that,” or some other phrase that would condition performance. Id. After discussing the credit risk borne by the general contractor, that is, that the owner may become insolvent, the court noted that “in order to transfer this normal credit risk ... from the general contractor to the subcontractor, the contract between the general contractor and the subcontractor should contain an express condition clearly showing that to be the intention of the parties.” Id. at 628-29. Finding the provision did not, the court held that the provision was not a condition precedent but rather a covenant that modified the time and manner of payment. Id. at 630 (“We hold that the [clause] merely provides a covenant dealing with ‘terms of payment’ or ‘manner of payment’ rather than a condition precedent.”); see also Sheldon L. Pollack Corp. v. Falcon Industries, Inc., 794 S.W.2d 380, 384 (Tex.App.Corpus Christi 1990, writ denied) (construing the following provision as a covenant that modified time and manner of payment: “Payment Schedule: Contractor will pay subcontractor the sum of $2,352,000.00 in installments as follows: lump sum of TWO MILLION THREE HUNDRED FIFTY-TWO THOUSAND AND NO/100 DOLLARS ($2,352,000.00) ninety percent on or about the 30th day of each month for work incorporated or materials suitably stored as acceptable to owner and contractor and for which payment has been made by owner or lender to contractor; ten percent to be paid following completion of the subcontractor’s work and acceptance by owner and release to contractor of retainage.”).

Although we agree with Gulf that we should be hesitant to find a condition precedent in a construction contract, we cannot turn a blind eye when, as here, the provision is an express condition precedent. Unlike the contract in Gulf, the provision here expressly states that payment to Faulkner by the owner was a “condition precedent” to payment to Alaron by Faulkner. The provision further states that Alaron is only entitled to payment for that portion of subcontract work that Faulkner has been paid for by the owner, and that Alaron “expressly assumes the risk of nonpayment by Owner.” Finally, the provision concludes that “[t]his provision establishes a condition precedent, and it shall not be construed merely as a Time of Payment Clause.” Such express language cannot be interpreted as a covenant that simply modifies the time and manner of payment, especially when the provision uses the term “condition precedent” and contemplates compensation for the assumption of risk of nonpayment until the owner pays Faulkner. We therefore conclude that the provision is an enforceable, express condition precedent. See MidAm-erica Const. Management, Inc. v. MasTec North America, Inc., 436 F.3d 1257, 1262, 1265 (10th Cir.2006) (finding provision “[u]pon final acceptance of the Work by Contractor and Owner, Contractor will pay Subcontractor for the Work at the prices and schedule and in the manner described on the Work Order(s); provided that, all payments to Subcontractor by Contractor are expressly contingent upon and subject to receipt of payment for the Work by Contractor from Owner, even if (a) Contractor has posted a payment bond with Owner or (b) the Primary Contract is on a ‘cost plus’ or other reimbursement basis requiring the Contractor to pay subcontractors prior to being reimbursed by Owner” was a condition precedent) (emphasis added); Lakin Enterprises v. Sebastian, No. 05-08-00213-CV, 2009 WL 428491, at *4 (Tex.App.-Dallas Feb. 23, 2009, no pet.) (mem. op., not designated for publication) (finding provision “[pjayments are subject to the Contractor receiving payment from the Owner and is a condition precedent to the Contractor’s obligation or its Surety’s obligation to pay Subcontractor, its suppliers, labor, etc.” was a condition precedent) (emphasis added).

Alaron asserts that a reading of the entire contract does not support our finding that the above provision is a condition precedent. Specifically, Alaron points to another provision in the contract, which provides that final payment will be made “no later than thirty (30) days after inspection and verification by FaulknerUSA and Owner, payment by Owner to FaulknerU-SA, and the satisfaction of all other conditions required for payment.” Had the contract not included the condition-precedent clause and compensation for the assumption of the risk, we would find merit in Alaron’s argument as the “no later than thirty days” clause resembles more of a covenant that modifies the time and manner of payment similar to that found in Gulf. However, the contract at issue in Gulf did not also specifically include a condition precedent clause for payment. The one before us does.

Because the provision is a condition precedent, whether the owner paid Faulkner such that Faulkner was obligated to pay Alaron was a material fact issue necessary to resolution of Alaron’s suit on sworn account, breach of contract, and suit on payment bond. Logically, if the owner has not paid Faulkner, Alaron cannot succeed on its theories of liability. Here, Alaron presented no evidence, much less made any allegation, that the owner paid Faulkner, and Faulkner alleged, through the affidavit of Donna Jenkins, that the owner had not paid Faulkner. Consequently, we conclude that the trial court erred by granting summary judgment in favor of Alaron.

CONCLUSION

Having sustained Faulkner’s third issue, we reverse the trial court’s judgment and remand for further proceedings.

LARSEN, J., sitting by assignment.

      . Alaron seemingly contends that we must infer that the trial court, by granting summary judgment in its favor, did not consider Jenkins' affidavit. Alaron did not object to Jenkins’ affidavit, and there is nothing in the record to indicate that the trial court did not consider it. Alaron contends that Jenkins’ affidavit is substantively defective. We need not address this contention as Faulkner did not move for summary judgment and we must take as true all evidence favorable to Faulkner, the nonmovant, indulging every reasonable inference and resolving any doubts in Faulkner's favor. Valence, 164 S.W.3d at 661; Nixon, 690 S.W.2d at 548-49. Therefore, even if we do not consider Jenkins' affidavit, nothing else in the record indicates that the owner paid Faulkner.


text:
    In the ESTATE OF William Hardy ROGERS, Deceased.
    No. 08-09-00249-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2010.

      Mario J. Martinez, El Paso, TX, for Appellants.
    E. Link Beck, Beck & Given, P.C., El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellants appeal the trial court’s determination that their applications to set aside the order granting independent administration and to file a copy of a will, and their cause of action for breach of fiduciary duty, fraud, and civil conspiracy were not timely filed within the applicable probate limitations period. We affirm.

BACKGROUND

Following William Rogers’ death on August 31, 2006, Appellees, Melissa O’Rourke (Rogers’ common-law wife), Dorothy Brock (Rogers’ sister), and Joseph Rogers (Rogers’ brother), filed an application for determination of heirship and appointment of independent co-administrators on October 3, 2006. The trial court appointed an attorney ad litem to represent any unknown heirs, and on November 6, 2006, it heard evidence on the parties’ application. The trial court then determined that Rogers died intestate and entered a judgment declaring heirship to O’Rourke, Brock, and Rogers, and an order granting the application for independent co-administration. On June 5, 2007, the trial court approved the co-administrators’ inventory, appraisement, and list of claims.

Subsequently, on March 20, 2009, Appellants, Bob Carter, Barbara Carvajal, Jane Hackett, and Lee Ann Sullivan (friends of the deceased), not only filed an application to set aside the order granting independent administration, but also to probate a copy of a written will executed in 1999, and to issue letters testamentary. They also filed a cause of action for breach of fiduciary duty, fraud, and civil conspiracy, alleging the co-administrators failed to disclose Rogers’ written will. After denying the allegations, Appellees moved for summary judgment, claiming that Appellants’ applications and causes of action constituted attacks on the probate court’s judgment and were, in essence, bills of review that were brought outside the two-year limitations period for challenging heirship determinations. Appellants responded that Section 73(a) of the Probate Code, which provides for the filing of a will within four years of the death of the testator, and Section 16.004(a) of the Civil Practices and Remedies Code, which allows for causes of action based on fraud to be brought within four years, conflicts with Section 31 of the Probate Code, which sets out a two-year limitation for attacking judgments in the probate court. Compare Tex. PROb.Code Ann. § 73(a) (Vernon 2003) (providing that no will shall be admitted to probate after four years from the death of the testator) and Tex. Civ. PRAC. & Rem.Code Ann. § 16.004(a) (Vernon 2002) (providing that a person must bring suit for fraud and breach of fiduciary duty within four years from the day the cause of action accrues), with Tex. Prob.Code Ann. § 31 (Vernon 2003) (providing that a person must file a bill of review attacking a probate judgment or order within two years from the date of the decision). After a hearing, the trial court entered summary judgment in favor of Appellees and dismissed Appellants’ applications and causes of action.

DISCUSSION

In a single issue on appeal, Appellants contest the trial court’s summary judgment order, contending that their application to set aside the order granting independent administration and to file a copy of the will was timely filed in accordance with Section 73(a) of the Probate Code, despite Section 31’s requirement that they were required to challenge the trial court’s determination of heirship within two years. We disagree.

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, we indulge every reasonable inference in favor of the nonmov-ant, take all evidence favorable to the non-movant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

Section 73(a) of the Probate Code generally provides that a will shall not be admitted to probate after four years from the death of the testator. See Tex. Prob.Code Ann. § 73(a). However, Section 73 does not address situations where, as here, a final judgment has been entered declaring heirship following the death of an individual. When a trial court enters an order determining heirship, it is a final judgment that may be appealed or reviewed within the same time limits and in the same manner as any other judgments in probate matters. See Tex. Prob.Code Ann. § 54 (Vernon 2003); Tex. Prob.Code Ann. § 55(a) (Vernon 2003). When the appellate deadlines have expired, an interested person may still attack that judgment by bill of review. See Tex. Prob. Code Ann. § 31. However, Section 31 of the Probate Code limits the time for filing that bill of review to two years from the date of the judgment. Id. Thus, Sections 31 and 55(a) seem to act as statutes of repose in the situation before us, limiting the time in which Appellants may bring their causes of action after the trial court determined heirship and extinguishing any causes of action after that passage of time even though it might not have yet accrued. See Galbraith Engineering Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 (Tex.2009) (generally discussing statutes of repose).

Nevertheless, Appellants rely on Estate of Morris, 577 S.W.2d 748 (Tex.Civ.App.-Amarillo 1979, writ ref'd n.r.e.), to argue that a will should always be admitted to probate in accordance with Section 73(a) regardless of any judgments previously entered by a court so long as the will is filed within the requisite four years. We decline to read Morris so broadly.

In Morris, the testatrix died April 1, 1975. Id. at 751. She had executed a 1965 will leaving her property to her surviving husband, the named independent executor, who offered the will for probate, and on April 29, 1975, an order was entered admitting the 1965 will to probate. Id. Two years and five months later, the testatrix’s daughter filed an application im-próbate of a 1968 will that contained a clause revoking all prior wills. Id. In response, the executor of the 1965 will argued that the two-year statute of limitations for will contests barred the probate of the 1968 will. Id. However, the Amarillo Court of Civil Appeals found the daughter’s action was not a direct attack on the 1965 will as the later will’s revocation clause automatically revoked the prior will. Id. at 752. Applying settled law, the court reasoned that the timely application for probate of a subsequent will containing a revocation clause within four years from the death of the testator is neither a contest of the validity nor barred by the probate of an earlier will “because the probate of the last will, revoking all others, has the incidental effect of revoking the former probate, whether there is any pleading to that effect or not.” Id. (citing Vance v. Upson, 64 Tex. 266, 268-71 (1885)). Therefore, the court reasoned that the 1968 will was not foreclosed by the two-year statute of limitations for will contests. Id.

Our case, however, does not involve an application to probate a second will that contains a revocation clause. Rather, Appellants’ pleadings seek to set aside an earlier judgment that determined heirship so that they may probate the written will. As that earlier judgment was final, see Tex. Prob.Code Ann. § 55, Appellants’ actions constituted a direct attack on the trial court’s previous judgment. See, e.g., Stovall v. Mohler, 100 S.W.3d 424, 428-29 (Tex.App.-San Antonio 2002, pet. denied); Klein v. Dimock, 705 S.W.2d 405, 407 (Tex. App.-Fort Worth 1986, writ ref'd n.r.e.) (cases determining that admission of will to probate fixed the rights of the parties such that any subsequent admission of another, earlier will to probate was a direct attack and needed to be brought within two years). Thus, Appellants were required to file their pleadings within two years of the order determining heirship. See Tex. Prob.Code Ann. § 31. Because they failed to do so, their applications are time barred. Accordingly, the trial court did not err in granting summary judgment in favor of Appellees, and we overrule Appellants’ sole issue.

CONCLUSION

Having overruled Appellants’ sole issue, we affirm the trial court’s judgment.

      . Appellants also contest the trial court's ruling that they were required to bring their cause of action for breach of fiduciary duty, fraud, and civil conspiracy within Section 31's two-year limitation period, despite the four-year limitation period contained in Section 16.004 of the Civil Practices and Remedies Code. Compare Tex. Prob.Code Ann. § 31, with Tex Civ. Prac. a Rem.Code Ann. § 16.004. According to Appellants, Section 16.004 trumps the limitations period in Section 31. However, Appellants cite no authority for their proposition, and their argument merely consists of two conclusory sentences with a general citation to Section 16.004. Having engaged in no legal argument, analysis, or discussion, and having failed to cite to any authorities akin to their position, Appellants’ argument is inadequately briefed, and we decline to address it. See Tex.R.App. P. 38.1(h); Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gave general cite to one case stating elements of cause of action and provided no argument); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex.App.Houston [14th Dist.] 2003, pet. denied) (issue inadequately briefed when party failed to cite any authority and to make a cogent argument).

      . Appellees interpret Appellants' challenge to the trial court's judgment as a statutory and equitable bill of review, setting out the elements for both in their brief. However, at trial and on appeal, Appellants restricted their argument to Section 31 of the Probate Code; therefore, we interpret Appellants' pleadings as a statutory bill-of-review challenge only.


author: Opinion By Justice MOSELEY.

text:
    Caroline BERTHELOT, individually and as Trustee of the Caroline Beth Berthelot Living Trust, Appellants, v. J. Baxter BRINKMANN, Appellee.
    No. 05-09-00216-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2010.

      W.D. Masterson, Theodore Anderson, Kilgore & Kilgore, Inc., Dallas, TX, for Appellants.
    Michael G. Brown, Figari Davenport, L.L.P., Dallas, for Appellee.
    Before Justices MOSELEY, FITZGERALD, and FILLMORE.
   OPINION

Opinion By Justice MOSELEY.

J. Baxter Brinkmann sued Caroline Ber-thelot, individually and as trustee of the Caroline Beth Berthelot Living Trust requesting the trial court to declare his ownership of a “net cash gain” interest in a gasoline production plant and his entitlement to certain funds payable pursuant to that interest. The trial court granted summary judgment in Baxter’s favor, declaring he had “full ownership” of the interest and was entitled to certain suspended funds, to the exclusion of Berthelot, and ordering that Baxter recover from Berthe-lot certain funds mistakenly paid to her.

Berthelot appeals the trial court’s judgment. For the reasons set forth below, we resolve Berthelot’s issues against her and affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Although the facts regarding their claims are undisputed, the parties vigorously dispute the legal effects of those facts. The net cash gain interest originated in 1950, when J.R. Butler assigned to Scurry Natural Gasoline Corporation a casinghead gas purchase contract and his interests in certain oil and gas leases and in the Scurry Gasoline Plant and gathering system. The leases and the gasoline plant were located in Scurry County, Texas. The assignment reserved to Butler an undivided twenty-five percent interest in the “net cash gain of Scurry Natural Gasoline Corporation,” which the assignment defined as:

the total proceeds which accrue to said corporation, its successors and assigns, as assignee of the rights of said J.R. Butler under said gas purchase contract with Pan American Production Company and from the sale of any plant products and gas and residue gas incident thereto or marketed thereunder and any proceeds and returns derived from [But-lerj’s ownership of an interest in the Snyder Gasoline Plant, plus the proceeds, if any, derived from the sale of salvage material and/or other equipment retired from the Snyder Gasoline Plant, less and deducted therefrom in computing said net cash gain the sum of the following: [specific costs, operations expenses, and other deductions]....

Also in 1950, Butler assigned an undivided fifteen percent interest in the net cash gain interest described above to R.R. Brinkmann, Sr., Baxter’s father. These assignments were filed of record in Scurry County.

By 1962, Brinkmann, Sr.’s fifteen percent interest in the net cash gain interest described above was owned one-half by Baxter and one-half by his mother, Virginia. This lawsuit and appeal concern only the subsequent history of Virginia’s one-half interest in Brinkmann, Sr.’s interest. (For purposes of clarity, we will refer to that interest as the “Snyder Net Profits Interest.”)

To resolve litigation between them pending in Louisiana, in 1987, Baxter and Virginia signed a settlement agreement (the 1987 Settlement Agreement). According to the terms of the 1987 Settlement Agreement, Virginia conveyed the Snyder Net Profits Interest to Baxter, subject to a life estate reserved to herself. The 1987 Settlement Agreement was not filed of record in Texas. The legal effect of this agreement is the principal issue in this case.

In 1993, a judgment was obtained against Virginia by appellant Caroline Ber-thelot. To satisfy the judgment, a sheriffs sale was held in 1994. The bill of sale states the sheriff sold to Berthelot “all the right, title and interest which the said Virginia Brinkmann held on the 1st day of February A.D. 1984 ...” to the Snyder Net Profits Interest. Thereafter, WTG Gas Processing, L.P., which had acquired the Snyder Gasoline Plant, began paying Berthelot the income it formerly paid to Virginia based on the Snyder Net Profits Interest.

Virginia died on August 13, 2006. In January 2007, WTG was notified of Virginia’s death and of Baxter’s claim that, as Virginia’s life estate had terminated, Baxter was entitled to any payments made or to be made after her death based on the Snyder Net Profits Interest. WTG notified Berthelot that payments to her relating to that interest would be suspended.

Baxter then sued Berthelot seeking the court’s declaration that: (1) Baxter’s remainder interest in the Snyder Net Profits Interest “ripened into full ownership” on Virginia’s death, to Berthelot’s exclusion; (2) Berthelot had no right to ownership of the Snyder Net Profits Interest or the proceeds to be paid pursuant to it on or after Virginia’s death; and (3) the suspended funds and all past and future distributions from the Snyder Net Profits Interest that accrued on or after Virginia’s death were payable to Baxter, not Berthe-lot. Baxter also sought his costs, interest, and attorney’s and expert fees from Ber-thelot.

Berthelot answered, specially excepting and generally denying Baxter’s allegations. She also asserted the defenses of estoppel, fraud, and laches, all based on the fact that Baxter did not record the 1987 Settlement Agreement in Scurry County and “concealed such agreement” from the date of its execution until January 2007. She also contended that Baxter’s interest was void for two reasons: (1) because the 1987 Settlement Agreement should have been — but was not — recorded in the real property records of Scurry County pursuant to section 13.001 of the Texas Property Code; and (2) because Baxter claimed a usu-fruct — an estate in property that existed in Louisiana but that was not recognized in Texas. She asserted the following counterclaims: fraud; fraudulent transfer; quiet title; economic coercion and duress; and entitlement to sums paid after Virginia’s death which accrued with respect to time periods before her death.

Baxter filed a motion for summary judgment on both traditional and no-evidence grounds and supported by evidence. Ber-thelot responded, arguing in part that she raised material fact issues on her defenses, precluding summary judgment for Baxter on his claims. Baxter filed a reply. The trial court granted Baxter’s motion, declaring his right to the Snyder Net Profits Interest as the remainderman of Virginia’s interest and his right to the suspended funds. In addition, the trial court ordered that Baxter recover from Berthelot $25,417.71 that WTG had paid to her after Virginia’s death through February 2007. Baxter was awarded attorney’s fees, pre- and postjudgment interest, and costs. The trial court also dismissed Berthelot’s counterclaims with prejudice.

On appeal, Berthelot raises two issues: (1) the trial court improperly rendered summary judgment declaring title to the Snyder Net Profits Interest to be vested in Baxter; and (2) under “the doctrine of delayed income,” Berthelot is entitled to certain suspended funds and monies paid to her based on the Snyder Net Profits Interest before Baxter’s January 2007 notice.

II. DECLARATORY JUDGMENT

A. Applicable Law

The Texas Declaratory Judgment Act is a remedial statute that affords relief from uncertainty and insecurity with respects to rights, status, and other legal relations. See Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (Vernon 2008); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). Generally, the burden of proof in a declaratory judgment action is on “the party who, on the pleadings, asserts the affirmative claim, and who in the absence of evidence will be defeated, and is not controlled by the position of the parties on the docket as plaintiff or defendant in the declaratory action.” Harkins v. Crews, 907 S.W.2d 51, 58 (Tex.App.-San Antonio 1995, writ denied) (internal quotations and citations omitted).

B. Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When a plaintiff moves for summary judgment on his own cause of action, he must present competent summary judgment evidence proving each element of his cause of action as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986) (per curiam). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court evidence of any issues precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). If the defendant asserts a counterclaim, the trial court can grant a final summary judgment for the plaintiff only if the plaintiff disproves at least one of the elements of the defendant’s counterclaim in addition to proving conclusively every element of his own cause of action. See Schafer v. Fed. Servs. Corp., 875 S.W.2d 455, 456 (Tex.App.-Houston [1st Dist.] 1994, no writ); Adams v. Tri-Cont’l Leasing Corp., 713 S.W.2d 152, 153 (Tex.App.-Dallas 1986, no writ).

A no-evidence summary judgment is essentially a pretrial directed verdict, which we review under a legal-sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). When a party moves for a no-evidence summary judgment under rule 166a(i), he must assert that, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004). A no-evidence summary judgment is improper if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R. Civ. P. 166a(i).

In both traditional and no-evidence summary judgment motions, we review the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005)); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

We must affirm the summary judgment if any one of the movant’s theories has merit. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). Further, we will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging all grounds on which the summary judgment could have been granted. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). A general point of error that the trial court erred in granting the motion for summary judgment allows the party to challenge all of the grounds on which summary judgment could have been decided. See id.

C. Ownership of the Disputed Snyder Net Profits Interest

Baxter moved for traditional summary judgment on his claim for declaratory judgment on the title issue on grounds that the evidence showed conclusively that the Snyder Net Profits Interest was a personal property contract right to be paid a certain portion of net profits from the operations of a gasoline plant, not an interest in real estate; and that Baxter’s remainder interest in the Snyder Net Profits Interest “ripened into full ownership” on August 13, 2006, when the life estate holder (Virginia) died. He argued further that the 1994 sheriffs sale of Virginia’s life estate interest did not affect his remainder interest because: (1) by statute the sheriff could only deliver the interest Virginia had in the property sold as of the date of sale (that is, a life estate), and (2) the terms of the sheriffs bill of sale transferred to Ber-thelot “all the right, title and interest” Virginia held on February 1, 1994, to the Snyder Net Profits Interest.

Berthelot argues the Snyder Net Profits Interest is a real property interest as a matter of law subject to the recording statutes, the 1987 Settlement Agreement failed to convey a remainder interest to Baxter, and there are material questions of fact on her defenses barring summary judgment for Baxter on his claims.

1. Snyder Net Profits Interest: Personal or Real Property Interest

Relying on the 1950 Butler assignment’s definition of the net cash gain interest (the interest from which the Snyder Net Profits Interest was derived), Baxter argued the Snyder Net Profits Interest was a contract right to be paid a certain portion of net profits of the Snyder Gasoline Plant. He also relied on the deposition testimony of Rick Watkins, who supervised WTG’s contracts payments. Watkins testified that the net cash gain interest was a payment made to those owners of a share in the profits of the Snyder Gasoline Plant after calculating gross income minus the expenses of operating the plant. He testified it was not a mineral interest, did not show depletion, and was not an ownership in land or in any fixtures to land, specifically the plant.

Baxter argued that the above evidence proved that the Snyder Net Profits Interest was a contract for profits and thus a personal property interest pursuant to San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex.2000). In Lang, the Texas Supreme Court considered whether real estate lien notes, promissory notes, cash, and net-profit agreements associated with the development of a tract of land were included in a devise of “real property.” Id. at 638. Applying the definitions of “real property” as “land, and generally whatever is erected or growing upon or affixed to land,” and “personal property” as “everything that is subject to ownership not falling under the definition of real estate,” the court concluded the disputed property was personal, not real. Id. at 640 (citations omitted); see Helvering v. O’Donnell, 303 U.S. 370, 371, 58 S.Ct. 619, 82 L.Ed. 903 (1938) (owner of shares in company that developed and operated oil and gas properties had net profits interest, a “personal covenant,” not “an interest in the properties themselves”); LeBus v. LeBus, 269 S.W.2d 506, 508, 510-11 (Tex.Civ.App.-Fort Worth 1954, writ ref'd n.r.e.) (party, who agreed to receive part of net profits of oil and gas lease operations and lease resale in exchange for acting as agent in lease negotiation, had no title to or ownership of lease or license to explore and produce minerals; party “had only a contractual right to have his share of the profits paid over to him when they were earned”).

Baxter’s evidence established conclusively that, pursuant to the authorities cited above, the Snyder Net Profits Interest is personal property, not real property. See MMP, Ltd., 710 S.W.2d at 60. Therefore, the burden shifted to Berthelot. See City of Houston, 589 S.W.2d at 678-79. Berthelot’s first argument is that the 1950 Butler assignment showed that the net cash gain interest consisted of net profits realized by a natural gas processing plant from processing casinghead gas produced by wells. We reject this argument because the definition set out above shows the net profits interest was derived from the operations of the plant, not the production of the leases.

Next, Berthelot argued that the Snyder Net Profits Interest is an interest in land pursuant to T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284 (Tex.App.Austin 1983, writ ref'd n.r.e.). Berthelot relies on the definition in that case of a “net profits interest” that the court likened to a working interest, a fractional interest in oil and gas property. Id. at 291 (citing 2 Howard R. Williams & Charles J. Meyers, Oil & Gas Law § 424). However, the concept of “net profits” discussed there was a right to production of well operations. See id. That case is distinguishable on the facts from this case, where the evidence shows the net profits were from a gasoline plant production, not from well operations. Accordingly, despite the use of common terms, we conclude Berthelot’s reliance on T-Vestco is misplaced and does not support her argument that the Snyder Net Profits Interest is an interest in real property.

2. 1987 Settlement Agreement

The 1987 Settlement Agreement stated that Virginia conveyed her title in the net cash gain interest and reserved “a life estate ... and any income she would otherwise have derived therefrom.” The legal definition of a “life estate” is “[a] legal arrangement whereby the beneficiary (ie., the life tenant) is entitled to the income from the property for his or her life[ ] ... [and] [u]pon the death of the life tenant, the property will go to the holder of the remainder interest....” Black’s Law Dictionary 924 (6th ed. 1990). Relying on that definition and on the 1987 Settlement Agreement, Baxter argued that he established he held title to the Snyder Net Profits Interest as the remainderman on Virginia’s death on August 13, 2006.

Berthelot responds that, because the Snyder Net Profits Interest was an interest in real property, Baxter’s failure to record the 1987 Settlement Agreement voided his interest pursuant to section 13.001 of the Texas Property Code. See Tex. Prop.Code Ann. § 13.001 (Vernon 2004) (“Validity of Unrecorded Instrument”). As relevant to this appeal, however, by its terms the statute applies to “[a] conveyance of real property or an interest in real property or a mortgage or deed of trust....” Id. § 13.001(a). We have already rejected Berthelot’s argument that the Snyder Net Profits Interest is an interest in real property.

Berthelot also points to the “mortgage or deed of trust” phrase in section 13.001(a) and argues that, because the 1950 Butler assignment provided for a lien with a right of foreclosure in the event of non-payment of the net cash gain, the conveyance in the 1987 Settlement Agreement of the Snyder Net Profits Interest should have been recorded. She also notes that the 1950 Butler assignment was recorded in Scurry County, showing the parties creating the net cash gain interest considered it an interest in real property. Both of these arguments fail because, while the 1950 Butler assignment concerned the conveyance of oil and gas leases, among other interests, the reservation did not; it concerned a contract right to a share in the plant’s net profits. Accordingly, we reject Berthelot’s argument that Baxter’s interest is void because he failed to record the 1987 Settlement Agreement pursuant to section 13.001.

Berthelot also argues the 1987 Settlement Agreement is “fatally defective” because it fails to provide “a sufficient legal description of the net profits interest.” That argument is based on a page missing from an exhibit to the 1987 Settlement Agreement. That agreement provides for the transfer of the Snyder Net Profits Interest to Baxter, reserving a life estate in Virginia, and states that the Snyder Net Profits Interest is “more specifically described in Exhibit D attached hereto.” Exhibit D is a copy of the 1950 Butler assignment, but that exhibit is missing the page of that document defining the “net cash gain of Scurry Natural Gasoline Corporation,” which is the original interest from which Virginia’s interest — which we refer to as the Snyder Net Profits Interest — is derived. Because of the page missing from the exhibit, Berthe-lot argues that the Snyder Net Profits Interest is “insufficiently described” in the 1987 Settlement Agreement, making that agreement ineffective to convey any interest to Baxter.

Berthelot relies on the statute of frauds, which requires conveyances of real property to be in writing and signed by the party to be charged. The statute of frauds is inapplicable here because we have already determined that the Snyder Net Profits is not real property. See Tex. Bus. & Comm.Code Ann. § 26.01(a), (b)(4) (Vernon 2009).

Berthelot also relies on Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972), which discusses real property and states: “To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Morrow relates specifically to transfers of real property. Moreover, by referring to the attached exhibit, the 1987 Settlement Agreement does refer to some other existing writing — namely, the 1950 Butler assignment — albeit with a page missing.

The absence of the missing page from the exhibit does not render the 1987 Settlement Agreement void. Instead, we are guided by a broader principle that includes the personal property at issue here: “Where a writing is incomplete or ambiguous, parol evidence is admissible to explain the writing or to assist in the ascertainment of the true intention of the parties insofar as the parol evidence does not alter or contradict any part of the written memorandum in question.” Warren Bros. Co. v. A.A.A. Pipe Cleaning Co., 601 S.W.2d 436, 439-40 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). Because Exhibit D is incomplete, parol evidence can be considered to explain the meaning of the “net cash gain of Scurry Natural Gasoline Corporation.” Such parol evidence — in the sense of being evidence outside of Exhibit D itself — would include a copy of the missing page found in the 1950 Butler assignment. Here, Baxter filed a motion to supplement the record with the missing page from the recorded 1950 document. In its judgment, the trial court granted the motion. Berthelot does not challenge this part of the judgment.

We conclude the missing portion of Exhibit D to the 1987 Settlement Agreement can be ascertained by referring to the 1950 Butler assignment. Accordingly, we reject Berthelot’s argument that the 1987 Settlement Agreement was ineffective because of the missing page to the exhibit.

Relying on the use of “usufruct” in the 1987 Settlement Agreement, Berthelot also argues Virginia’s estate was void because a usufruct is a Louisiana estate in property that is void in Texas. We reject this argument because the 1987 Settlement Agreement specifically refers to Virginia’s interest as a “life estate,” as quoted above.

Finally, Berthelot argues summary judgment for Baxter is precluded because she raised fact issues on her defenses of estoppel, fraud, and laches. Baxter moved for traditional and no-evidence summary judgment on these defenses. In her response and on appeal, Berthelot rests these defenses on Baxter’s failure to give notice of his interest by failing to record the 1987 Settlement Agreement pursuant to section 13.001 of the property code. Because we have determined that section 13.001 does not apply here, we reject her argument that these defenses precluded the trial court from granting summary judgment for Baxter on his claim to title of the Snyder Net Profits Interest.

3. Sheriffs Sale of Virginia’s Interest

Baxter argued that at the sheriffs sale, Berthelot purchased only a life estate interest in the Snyder Net Profits Interest because section 34.045(a) of the civil practice and remedies code specifically limits the interest transferred through a sheriffs sale to the interest actually owned by the former owner on the date of the sale. See Tex. Civ. Prac. & Rem.Code Ann. § 34.045(a) (Vernon 2008) (“When the sale has been made and its terms complied with, the officer shall execute and deliver to the purchaser a conveyance of all the right, title, interest, and claim that the defendant in execution had in the property sold.”).

Berthelot does not challenge Baxter’s reliance on section 34.045(a) either in her response or on appeal. Instead, Berthelot argues that Virginia owned the Snyder Net Profits Interest in fee simple, not just a life estate, and therefore Berthelot acquired the Snyder Net Profits Interest in fee simple as a result of the sheriffs sale. The premise of this argument is that the 1987 Settlement Agreement failed to convey a remainder interest to Baxter due to the missing page in the 1987 Settlement Agreement and Baxter’s failure to record the 1987 Settlement Agreement in Scurry County. However, we have already disposed of these arguments against Berthe-lot. We conclude that Virginia conveyed to Baxter a remainder interest in the Snyder Net Profits Interest through the 1987 Settlement Agreement, reserving a life estate interest, leading to the further conclusion that Baxter proved as a matter of law that the sheriffs bill of sale conveyed a life estate interest to Berthelot.

4. Berthelot’s counterclaims

Baxter moved for traditional and no-evidence summary judgment on Berthe-lot’s counterclaim for quiet title. That claim is based on her argument that, because the 1987 Settlement Agreement was not recorded and she had no notice of Baxter’s claim until January 2007, the conveyance of a remainder interest to Baxter was void, and she was a bona fide purchaser in good faith without notice of the Snyder Net Profits Interest. See Tex. Prop. Code Ann. § 13.001. However, the undisputed summary judgment evidence shows that the Snyder Net Profits Interest is personal, not real, property and not subject to section 13.001. This evidence conclusively disproved Berthelot’s counterclaim to quiet title. See Schafer, 875 S.W.2d at 456; Adams, 713 S.W.2d at 153.

Baxter also moved for traditional and no-evidence summary judgment on Berthelot’s counterclaims for fraud, fraudulent transfer, and economic coercion and duress. By failing to direct any argument on appeal to the trial court’s granting summary judgment and dismissing these counterclaims with prejudice, Berthelot has failed to preserve any error regarding them. See City of Houston, 589 S.W.2d at 678-79; Malooly Bros., Inc., 461 S.W.2d at 121.

5. Conclusion regarding title to Snyder Net Profits Interest

Having rejected Berthelot’s arguments, we conclude the trial court properly rendered summary judgment declaring title to the Snyder Net Profits Interest to be vested in Baxter. We resolve Berthelot’s first issue against her.

D. Declaratory Relief concerning Funds Derived from Snyder Net Profits Interest

Baxter moved for summary judgment on his claim for two categories of funds. The first category consists of funds (totaling $15,621.12) that WTG held following its suspension of payments; this amount constitutes net profits from operations before Virginia’s death that were declared for payment after her death. Baxter asserted he was entitled to these suspended funds because, pursuant to Bergin v. Bergin, 159 Tex. 83, 91 315 S.W.2d 943, 948 (1958), and as codified by sections 116.101 and 116.102 of the Texas Property Code, claims by life estate holders to funds not distributed during the life estate term were precluded.

As applicable here, the supreme court in Bergin adopted the “Massachusetts Rule” regarding the distribution of earnings between the life estate and remainder interests: earnings distributed as stock dividends are payable to the corpus (remainderman), earnings distributed as cash dividends are payable to the income (life beneficiary), and the life beneficiary is not entitled to earnings distributed after the life tenancy ends. See Bergin, 159 Tex. at 93, 315 S.W.2d at 948, 950 (Garwood, J., concurring); see also Tex. PROp.Code Ann. § 116.101(d) (Vernon 2007) (“An income interest ends on the day before an income beneficiary dies.... ”). Watkins testified that calculations for the amount of $15,621.12 were finalized after August 2006, and WTG set a due date for paying these funds after August 2006.

On appeal, Berthelot argues that the suspended funds were corrections of accounting errors made during the time period before Virginia’s death and that therefore this amount should have been paid during that time. However, the court in Bergin considered and rejected this argument, explaining the rationale of the rule it adopted:

If we thus recognize a right in the life tenant to undistributed profits, a large number of life estates will inevitably involve complicated and difficult problems of accounting, which may run back years, and perhaps even reach into the propriety of the accounting methods of the corporation concerned.

Bergin, 159 Tex. at 93, 315 S.W.2d at 950 (Garwood, J., concurring).

Berthelot also argues she is entitled to all sums paid after Virginia’s death that accrued before her death under a “delayed income” doctrine pursuant to San Antonio Loan & Trust Co. v. Hamilton, 155 Tex. 52, 283 S.W.2d 19 (1955). However, that case concerned the apportionment between the life tenant and the remainderman of property bought with funds from both interests. The “profits” of the corpus were paid to the life tenant during her life. See San Antonio Loan & Trust Co., 155 Tex. at 56, 283 S.W.2d at 21. The suspended funds here concern funds that were not declared for payment during the existence of the life estate and were not paid to the life estate holder before the life estate ended. Because the facts in San Antonio Loan & Trust Co. are different from the facts in this case, Berthelot’s reliance on it is misplaced.

The second category of funds in dispute consists of funds (totaling $25,417.71) that represented net profits from operations after Virginia’s death that WTG paid to Berthelot before it suspended payments. Baxter argued these funds belonged to the owner of the Snyder Net Profits Interest, which he was following Virginia’s death, and his ownership of this interest entitled him to a declaration that he owned the funds and Berthelot should be ordered to return this amount to him.

On appeal, Berthelot also argues she is entitled to funds paid to her after Virginia’s death and before Baxter’s January 2007 “notice of claim” under her defenses of estoppel and laches. We have already rejected Berthelot’s arguments that those defenses apply for failure to record the 1987 Settlement Agreement. Rejecting Berthelot’s arguments that she is entitled to certain suspended sums and sums she was paid, we resolve her second issue against her.

III. CONCLUSION

Having have rejected Berthelot’s two issues challenging the trial court’s summary judgment in Baxter’s favor on his declaratory judgment claims, we affirm the trial court’s judgment.

      . Although Berthelot filed a motion for summary judgment, nothing in the record shows the motion was ruled on by the trial court.