author: J. BONNER DORSEY, Justice.

text:
    WAL-MART STORES, INC., Appellant, v. Thomas J. LANE, Appellee.
    No. 13-98-250-CV.
    Court of Appeals of Texas, Corpus Christi.
    June 29, 2000.
    Rehearing Overruled Nov. 9, 2000.

      J. Preston Wrotenbery, Kevin D. Jewell, Magenheim, Bateman, Robinson, Wroten-bery & Helfand, Houston, for Appellant.
    Russell Manning, Hornblower, Manning & Ward, Corpus Christi, for Appellee.
    Before Justices DORSEY, HINOJOSA, and RODRIGUEZ.
   OPINION

J. BONNER DORSEY, Justice.

By six points of error, Wal-Mart seeks reversal of a multi-million dollar jury verdict awarded in favor of its former employee, T.J. Lane. While employed by Wal-Mart, Lane complained that a female coworker was “spreading rumors about him” that he had sexually harassed her. Upon investigating Lane’s compláint, Wal-Mart concluded that Lane had indeed sexually harassed the female employee, and terminated Lane for that reason. Lane then brought suit against Wal-Mart for slander, retaliatory discharge, negligent investigation, and sex discrimination. The jury found for Lane, and awarded in excess of two million dollars in damages. We reverse and render judgment that Lane take nothing.

Facts

T.J. Lane was hired as a sales clerk with Wal-Mart, and was soon on the fast track career path. He was quickly promoted to a lower-management position, and was in line to become a store manager. While in the management training program at the Flour Bluff Wal-Mart in Corpus Christi, Texas, Lane met Suzanne Sparks, another Wal-Mart employee.

One evening, Lane worked with Suzanne Sparks in the store’s cash office. The cash office was a small office equipped with a security camera that recorded everything that happened there. The day after working with Sparks, Lane was told by the store’s personnel manager that someone was “spreading rumors” about him. Lane requested to meet with her about it. Per his request, he met with her, an assistant manager, and Joyce Wickham, another store employee.

During the meeting, Lane learned that Suzanne Sparks had told Wickham that he had flirted with her, discussed his sexual fantasies and tried to kiss her when they were in the cash office the previous night. Both the personnel manager and Wickham assured Lane that this was common behavior for Suzanne Sparks, and she had done the same with other managers in the past. They said they wanted to warn him about her. Since the camera in the cash room was broken, the encounter was not recorded.

Two weeks later, Lane was told by another store employee that Suzanne Sparks had told her that Lane had tried to grab her crotch. Lane contacted the Wal-Mart District Manager, Dan Sanders. He told Sanders that Sparks was spreading “sexual rumors” about him, and that he had been told that Sparks had done the same thing to other managers in the past. Sanders told Lane he would investigate it, and instructed him to stay away from Sparks.

Sanders began his investigation. He spoke with the store manager, and together, they interviewed Suzanne Sparks and took her statement. Sparks’ written statement said that Lane “came on” to her in the office. She said that he tried to grab her in the crotch and she told him to stop. He then told her about sexual practices involving multiple partners in which he and his wife engaged. He asked her if she would meet him after work with one of her friends. She agreed to meet him, but received a page and left the room. He later asked her friend why they didn’t show up, but other than that nothing came of the whole incident. She said that he had been nothing but professional since that time, so she had decided to “blow the whole situation off and forget about it.”

After taking Sparks’ statement, Dan Sanders interviewed several other employees at the Flour Bluff store. He took statements from Sparks’ friend that was supposed to meet them that night, and the assistant manager and store employee who attended the first meeting with Lane and the personnel manager. Sanders also contacted the Wal-Mart store where Lane had previously worked. Upon completing the investigation, Sanders reported his findings to Wal-Mart’s regional personnel office and its legal department.

Sanders summoned Lane to his office and asked him about the allegations contained in Suzanne Sparks’ statement. Specifically, he asked Lane if he had ever discussed his sexual fantasies with her, grabbed her in the privates, or invited her on a “three-way” date with one of her friends. He also asked if Lane ever approached the friend and asked her why they did not show up for the date. Lane denied it all.

Sanders then asked Lane if he had ever discussed his sexual fantasies with anyone at a Wal-Mart store where he previously worked. At first Lane denied that as well, but then he remembered a conversation he had with a former boss there. He admitted that he had a conversation with Kellie Masters, his former boss at the Greenwood Wal-Mart store, where she told him that a woman had made a pass at her at a party and she told her husband about it, and he acted interested. She said to Lane, “All you men can think about is having two women.” Lane said, ‘Well, it goes the same way for women ... All they can think about is having two men.” She responded, “Yeah, but your fragile little egos can’t handle that.” Lane said at that point, they laughed and left. Lane was terminated after that meeting with Sanders.

Lane sued Suzanne Sparks and Wal-Mart for negligent investigation, retaliatory discharge, slander, and violations of the Texas Commission on Human Rights Act and the Texas Labor Code. He sought compensatory and exemplary damages plus attorneys’ fees. The case was tried to a jury, which made the following findings:

1. Lane’s sex was a motivating factor in Wal-Mart’s termination of him;
2. Wal-Mart retaliated against Lane for reporting that he had been sexually harassed by Suzanne Sparks;
3. Wal-Mart slandered Lane with malice;
4. The slanderous statements were not made outside Wal-Mart’s investigation of the incident or to any person who did not have a business interest or duty in the matter;
5. Wal-Mart had voluntarily agreed to investigate the matter, but had conducted the investigation negligently.

The jury assessed actual damages at $2.3 million dollars and punitives at $800,-000. The trial court entered judgment on the verdict against Wal-Mart and Suzanne Sparks, jointly and severally. Wal-Mart appeals that judgment.

I. SLANDER

Wal-Mart first argues that the evidence was legally and factually insufficient to base a finding of slander. We agree, and sustain this point of error.

Standard of Review

When reviewing for legal sufficiency, we must determine whether any evidence supports the challenged finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). If so, it must be upheld. Id. In conducting the review, we consider only the evidence and reasonable inferences that support the verdict and disregard all evidence and inferences to the contrary. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 521 (Tex.1997); Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994).

When reviewing for factual sufficiency, we must determine whether the challenged finding is against the great weight and preponderance of the evidence. We must consider and weigh all of the evidence, not just that evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Maritime Overseas Corp., 971 S.W.2d at 407. See Ortiz, 917 S.W.2d at 772. A court of appeals is not a fact finder. Accordingly, we may not pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp., 971 S.W.2d at 407. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). If we reverse a trial court’s judgment for factual insufficiency, we must detail all the evidence relevant to the issue and clearly state why the jury’s finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust. Maritime Overseas Corp., 971 S.W.2d at 407. See Keever, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635. We must explain how the contrary evidence greatly outweighs the evidence supporting the verdict. Maritime Overseas Corp., 971 S.W.2d at 407. See Keever, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635.

Wal-Mart contends that the evidence is insufficient to support the verdict because (1) no evidence exists that defamatory statements were made by a vice principal of Wal-Mart; (2) no evidence exists that any slanderous statements caused harm to Lane; and (3) the evidence is factually insufficient to overcome the investigatory privilege. Wal-Mart argues that the privilege may only be overcome by clear and convincing evidence that a vice principal of Wal-Mart either (1) made the statements with ill will or malice or (2) made the statements while entertaining serious doubts as to their truth.

1. Wal-Mart Agent

First, Wal-Mart argues that only a vice principal could make Wal-Mart liable for defamation. A corporation can only act through its officers or its agents. Corpus Christi Development Corp. v. Carlton, 644 S.W.2d 521 (Tex.App.—Corpus Christi 1982, no writ). The rule is that a corporation may be held liable for defamation by its agent if such defamation is referable to the duty owing by the agent to the corporation and was made in the discharge of that duty. Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex.1968). Also, a corporation may be liable for the tortious acts of a vice-principal of the corporation. A vice-principal is a corporate officer, a person with authority to employ, direct, and discharge servants of the master, or a person with whom the master has confided the management of the whole or part of a department or division of the business. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 406 (1934); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 926 (Tex.App.—Corpus Christi 1991, writ dism’d w.o.j.). Thus, Lane had the burden of proving that he was slandered by an agent of Wal-Mart in his discharge of some corporate duty or by a Wal-Mart vice-principal.

2. Investigatory Privilege

Next, Lane had to prove that the statements made by Wal-Mart fell outside the scope of the qualified privilege that exists for an employer to investigate allegations of wrongdoing.

Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse.... In suits brought by private individuals, truth is an affirmative defense to slander ....
In addition, an employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following a report of employee wrongdoing.... The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate.... [However,] [p]roof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. ... In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth....

Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995) [emphasis added].

The jury found that Wal-Mart slandered Lane, and made a separate finding of malice. However, it also found that none of Wal-Mart’s slanderous statements about Lane were made outside the course of an investigation of employee wrongdoing or to any persons who did not have a business interest or duty in the matter to which the communication's related. Because we find no evidence to support the jury’s finding of malice, we hold that Wal-Mart’s statements were made with legal excuse, and therefore, not slander.

Lane complains of essentially two categories of statements: those made by Suzanne Sparks and those made by Wal-Mart management. We evaluate each in turn.

A. Statements made by Suzanne Sparks.

Suzanne Sparks told her co-workers that Lane sexually harassed her. She also spoke about the incident during the course of the investigation of Lane. In order to hold Wal-Mart liable for the defamatory acts of Suzanne Sparks, Lane would have to show that Sparks was acting as an agent for Wal-Mart when she told anyone about the alleged harassment. She could be an agent by either being a corporate vice-principal or if the defamatory statements were made in the course and scope of her employment with Wal-Mart.

The evidence was that Suzanne Sparks was an employee of Wal-Mart who was paid an hourly wage. There is no evidence that she had the authority or duty to speak for the corporation. She was hot a manager or vice principal. Her duties with the company did not involve speaking on behalf of the corporation. Even if she were to be considered to be an agent for Wal-Mart, the defamation is not referable to any duty she had to the corporation. Wagner v. Caprock Beef Packers Co., 540 S.W.2d 303, 306 (Tex.1976) citing Texam, 436 S.W.2d at 129. We hold that Wal-Mart is not liable for any defamatory statements made by Sparks.

B. Management’s statements.

An employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following a report of employee wrongdoing. Randall’s Food Markets, 891 S.W.2d at 646. This privilege remains intact as long as the communications pass only to persons having an interest or duty in the matter to which the communications relate. Randall’s Food Markets, 891 S.W.2d at 646; Butler v. Central Bank & Trust Co., 458 S.W.2d 510, 514-15 (Tex.Civ.App.—Dallas 1970, writ dism’d). However, proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. Randall’s Food Markets, 891 S.W.2d at 646. See Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex.App.—Houston [1st Dist.] 1984, writ ref d n.r.e.). In the defamation context a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard about its truth. Randall’s Food Markets, 891 S.W.2d at 646; Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex.1994) (per curiam).

The management statements fall into three general categories. The first category includes statements made during Dan Sanders’ investigation. An employer has a qualified or conditional privilege concerning all communications made in the course of the investigation following a report of employee wrongdoing. See Randall’s Food Markets, 891 S.W.2d at 646. The jury found that none of Wal-Mart’s statements were made outside of the investigation of Lane nor to any person who did not have a business interest in the matter. Randall’s Food Markets, 891 S.W.2d at 646. These statements will not support an award for defamation, unless the statements were made with actual malice, which was so found by the jury. We will later evaluate the evidence supporting actual malice.

The second category includes statements Sanders made in relation to Lane’s claim for unemployment benefits. Two instances are relied on. The first are communications between Wal-Mart and the firm that represents it on unemployment claims at the Texas Employment Commission. Lane maintains that statements between Wal-Mart and its representative at the TEC hearings and Sanders’ testimony at the TEC hearing constitute slander. However, all communications, oral or written, made in the due course of a judicial proceeding are absolutely privileged. Gallegos v. Escalon, 993 S.W.2d 422, 424 (Tex.App.—Corpus Christi 1999, no writ); Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex.App.—Corpus Christi 1995, no writ).

Judicial immunity extends to statements made in quasi-judicial proceedings before governmental executive officers, boards, and commissions which exercise quasi-judicial powers. Gallegos, 993 S.W.2d at 425; Town of S. Padre Island v. Jacobs, 736 S.W.2d 134, 143-44 (Tex. App.—Corpus Christi 1986, writ denied). The TEC has the powers to examine witnesses, to compel their attendance, to hear the litigation of issues at a hearing, to hear and determine facts and make decisions, to make binding orders and judgments, and the power to affect the personal or property rights of private persons. See Tex.Lab. Code Ann. §§ 212.003-006, 212.051, 212.053 (Vernon 1996).

The hearing before the TEC was quasi-judicial in nature. As a result Sanders was absolutely immune with respect to his testimony before the TEC. His report of sexual harassment to his agent in preparation for the hearing related to this quasi-judicial proceeding was also absolutely privileged. Those statements of Sanders cannot support the finding of defamation against his principal, Wal-Mart.

The third category of statements are those made by a Wal-Mart assistant manager to Kellie Masters, Lane’s former boss, that Lane had been fired for sexual harassment. The evidence showed that Masters learned of Lane’s termination from an assistant manager at the Greenwood store whose name she could not remember. Lane contends, because an assistant manager told Masters he had been fired for sexual harassment, there is a reasonable inference that either Brian Wall or Dan Sanders told Wall’s assistant managers.

However, the essence of defamation is a statement that is false. The evidence is uncontroverted that Wal-Mart discharged Lane because of his sexual harassment of other employees. Sanders unambiguously so testified. There is no evidence that they did not fire him for sexual harassment. Therefore, it cannot constitute a defamatory statement by Wal-Mart. Lane’s real complaint is that although he was fired for sexual harassment, he was not guilty of the charge.

If we view the alleged slander to be that Lane was guilty of sexual harassment, the problem remains of attributing employee gossip to the employer, Wal-Mart. There is no evidence that the source of the rumor was an agent of Wal-Mart so as to impose liability on it.

C. Malice.

In order for statements made by Wal-Mart during the course of its investigation to be slanderous, so as to overcome the conditional investigatory privilege, Lane was required to prove that they were made with actual malice. He argues that Wal-Mart’s management-level employees made the slanderous statements with express and actual malice. He contends there is evidence that Brian Wall, Dan Sanders, and David Carvajal harbored personal animosity toward him and such is probative evidence that the defendant published the information either knowing of its falsity or with reckless disregard for its falsity.

In Randall’s Food Markets, the Texas Supreme Court stated that a plaintiff can defeat the privilege by proving that a statement was motivated by actual malice existing at the time of publication. 891 S.W.2d at 646; Dixon v. Southwestern Bell Tel. Co., 607 S.W.2d 240, 242 (Tex.1980). In Hagler, supra, the Texas Supreme Court stated the legal standard for proving actual malice in a defamation case, stating that

actual malice is a term of art which is separate and distinct from traditional common law malice. Actual malice in the defamation context does not include ill will, spite or evil motive, but rather requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Actual malice is not ill will; it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.

Hagler, 884 S.W.2d at 771-72 (citation omitted); Fontenot Petro-Chem. & Marine Servs., Inc. v. LaBono, 993 S.W.2d 455, 461 (Tex.App.—Corpus Christi 1999, writ denied). See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (“[T]he actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”).

To establish “actual malice” in the defamation context the plaintiff must produce “clear and convincing evidence that the defendant acted with a knowledge of falsity or with a ‘high degree of awareness of ... probable falsity.’ “ Connaughton, 491 U.S. at 688, 109 S.Ct. 2678 (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)). See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989) (plaintiff must offer clear and convincing affirmative proof to support a recovery for defamation). A defamation plaintiff may prove the defendant’s state of mind through circumstantial evidence. Connaughton, 491 U.S. at 668, 109 S.Ct. 2678.

We therefore review the evidence using the legal sufficiency standard to determine if there is any evidence of actual malice.

Lane argues that there is sufficient evidence to show that various Wal-Mart agents repeated Suzanne Sanders’ statements with malice because they entertained serious doubts about the truth of those statements. First, he argues that Don Sanders had numerous reasons to doubt Suzanne Sparks’ allegations. Lane testified that when he informed Sanders about Sparks’ allegations, Sanders said, “I can see her doing that.” Lane said Sanders told him he had encountered Sparks in either the break room or an office wearing a skirt with a very long slit in it that was inappropriate for work and that Sparks had maneuvered her legs to reveal herself to him. Lane also points out that he told Sanders that Joyce Wickham, Nola Lay, and Kathy Rust had told him that the problems he was having with Sparks had happened to other managers in the past, and gave Sanders the names of those managers.

Lane also contends that evidence regarding Sparks’ reputation showed that she could not be believed. Joyce Wickham testified that Sparks “kind of stretched the truth, sometimes,” and that Sparks had a reputation for “joking around, sometimes” about sex, claiming that men at work were coming on to her, and fantasizing that men found her attractive. On cross-examination counsel asked her, “So when you’re talking about her reputation, it wasn’t a reputation for accusing somebody at the store of harassing her, sexually, it was just that she was kind of bragging about men coming on to her and that she believed she was attractive to men.” Wickham said, “Yes.” Kathy Rust testified that Sparks had a reputation as a gossip who told untrue stories and for bragging about what men thought of her and that men found her attractive.

In contrast, Lane points out that he had a stellar reputation at work. Tina Murillo, the Flour Bluff store manager, testified that she did not believe that the accusations of fondling were consistent with Lane’s known character and reputation. David Carvajal, Joyce Wickham, Nola Lay, Kathy Rust, and Kellie Masters shared the same opinion.

Lane also contends that the assistant manager David Carvajal’s testimony, about a second-hand story from a Coca-Cola vendor showed that Don Sanders entertained serious doubts of the veracity of Sparks’ allegations. Carvajal testified that a Coca-Cola vendor who was friendly with one of Sparks’ friends told him that he heard a story that came from Sparks to the friend and then to the vendor. The story was that Carvajal had sex with Sparks in the cash office. Carvajal confronted Sparks with the story, and she told him that she and her friend had an argument and that her friend changed the story intentionally and told it to the vendor in order to start a rumor. During trial, counsel asked Sanders, “David Carvajal talked to you and gave you his report of what he heard from the Coca-Cola vendor, that is, the rumor that Suzanne Sparks was spreading about sex in the cash office, correct?” He replied, “He shared with me as to the Coca-Cola vendor had heard something from somebody he knew, yes.”

Lane also argues that, during the course of the investigation, Sparks gave numerous inconsistent versions of how he sexually harassed her:

Version 1 (told to Sanders and Murillo): Lane backed her into a corner, tried to kiss her, and grabbed her crotch from the front, but not that he had fondled her breast.
Version 2 (told to Carvajal): Lane fondled her breast while the two of them were seated next to each other in the cash office, but not that he had fondled her crotch or tried to Mss her.
Version 3 (told to Hickman): Lane grabbed her crotch from behind while she was bending over, kissed her, and lifted her blouse and touched her breast.
Version 4 (told to [Kathy] Leija Rust): Lane grabbed her crotch from behind while she was putting a box on a shelf, but not that he tried to Mss her or touch her breast.
Version 5 (told to Wickham): Lane pushed her into a corner and tried to kiss her, but not that he fondled her crotch or breast.

At trial, Sanders explained what he believed regarding the inconsistencies:

Q. [D]o you agree that among the various statements and depositions that have been given that Suzanne Sparks has told at least five different versions of what happened in the cash office?
A. Yes.
Q. And you agree they cannot all five be true, don’t you?
A. Yes. But I also understand when somebody is telling a story, as a person listens to an individual tell a story, they very well may not remember it exactly the same way that it is told to them, as well.

Lane also contends that Sanders asked Kellie Masters to fabricate a statement that Lane had made sexual advances toward her. Lane testified that on the day he was terminated, Sanders told him he had such a statement from Masters. Masters testified that after Lane was fired, Sanders mentioned to her that he was told that Lane had sexually harassed her and asked her to write a statement. Her further testimony revealed that Sanders was referring to the conversation she had with Lane that Lane had related to Sanders the day Lane was terminated. Masters told Sanders that she was not sexually harassed and that she would not write a statement. There is no evidence, however, that Sanders asked her to fabricate a statement.

Lane also contends that David Carvajal himself entertained serious doubts about the truth of Suzanne Sparks’ allegations. However, the evidence showed that Carva-jal believed Sparks. He testified that she told him in detail what happened in the cash room with Lane. Then, after Lane told Dan Sanders that Sparks was spreading “sexual rumors,” Carvajal testified that he went to Sanders and “told him everything [he] knew.”

Finally, Lane argues that Wal-Mart’s act of adopting and endorsing Sparks’ sexual-harassment complaint as the reason for terminating him and contesting his claim for unemployment benefits constituted slander. We disagree. Wal-Mart’s management had a right to believe, based on Sanders’ investigation, that Lane had sexually harassed Sparks. Wal-Mart’s act of adopting and endorsing Sparks’ complaint did not constitute publishing a defamatory statement to a third party without legal excuse.

We conclude that this does not amount to clear and convincing evidence that anyone at Wal-Mart knew that Sparks’ statements about Lane were false or entertained such serious doubts about their truth as to amount to malice. Without a finding of malice, the statements were cloaked with the investigatory privilege. Thus, they did not meet the element of slander that the statements be made without legal excuse. Accordingly, we conclude that there is no evidence to show that Wal-Mart committed slander against Lane. We sustain Wal-Mart’s first issue.

II. Negligent Investigation

By its second issue Wal-Mart asserts that Texas does not recognize a cause of action for negligent investigation. Wal-Mart also challenges the legal and factual sufficiency of the evidence to support a negligence finding. The jury made the following findings:

1. that Wal-Mart voluntarily agreed to investigate Lane’s complaint against Suzanne Sparks and, by doing so, affected the interests of Lane; and
2. that Wal-Mart was negligent in its investigation of Lane’s complaint against Suzanne Sparks and that such negligence proximately caused damages to Lane.

Lane reasons that the duty Wal-Mart assumed was that general duty of a volunteer: one who owes no legal duty, but who gratuitously acts, assumes a duty to act with reasonable care so as to prevent harm to that person or to others. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983); Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119-20 (Tex.1976). However, these cases refer to situations where bodily injury or injury to property belonging to the party is involved. See also Sibley v. Kaiser Foundation Health Plan of Texas, 998 S.W.2d 399, 403 (Tex.App.—Texarkana 1999, no pet.). Moreover, we believe that rule has no applicability here. An employer is no mere volunteer when faced with a complaint of sexual harassment. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee or potential employee on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). It has been held that sexual harassment so severe or pervasive as to alter the conditions of the victim’s employment and create a hostile ■work environment violates Title VII. Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); see also Tex.Lab.Code § 21.051; Ewald v. Womick Family Foods Corp., 878 S.W.2d 653, 659 (Tex.App.—Corpus Christi 1994, writ denied) (recognizing the elements of a hostile work environment-sexual harassment claim under the Texas statute). Upon receiving a complaint of sexual harassment, an employer has an affirmative duty to exercise reasonable care to prevent and promptly correct any sexually harassing behavior. See Faragher v. City of Boca Raton, 524 U.S. 775, 805-06, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). An employer who fails to investigate and remedy reported sexually harassing behavior risks being held vicariously liable for the conduct of the harassing employee. Id. (holding that an employer’s prompt correction of any sexual harassment by an employee provides, in part, an affirmative defense to holding the employer vicarious liable for the sexual harassment). Accordingly, we find no application of the volunteer doctrine in this scenario.

Lane also argues we should recognize a new cause of action against employers. He urges this Court to impose upon employers an implied duty to exercise reasonable care when conducting a sexual harassment investigation. However, we refuse to create a new common law duty which would abrogate the traditional at-will employment contract. Absent a contract, the relationship between worker and employer is “at will,” except for a few very narrow exceptions, with each party being able to end it at any time without reason or justification. See East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 726 (Tex.1990); see also Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985) (recognizing a narrow exception for an employee discharged for the sole reason of refusing to perform an illegal act). The Texas Supreme Court has refused to impose a general duty of good faith and fair dealing upon employers under an at-will employment agreement. City of Midland v. O’Bryant, 18 S.W.3d 209 (Tex.2000). Likewise, we decline to recognize a duty in this situation.

Under the traditional at-will employment agreement, Wal-Mart had the absolute right to fire Lane for any reason or for no reason at all. Wal-Mart had no duty to perform any investigation before discharging Lane. Cf. Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 816 (Tex.App.—Corpus Christi 1996, writ denied) (finding that employment at-will contract cannot support a negligent investigation cause of action because employer has no duty to reasonably investigate allegations against an employee). Thus, Wal-Mart owed no duty to Lane while performing the investigation. Lane has directed us to no case in which a general negligence cause of action has been used against an employer for negligent investigation, and we have not located any such case or closely analogous situations. See also Sibley, 998 S.W.2d at 403 (also finding no case where a general negligence theory has been used to support a cause of action against an employer for negligent investigation); cf. City of Midland, id. Further, no Texas Supreme Court case has held that an employee is protected from being fired as a result of a negligent employer investigation into a claim of sexual harassment. We hold that there is no evidence to support the jury’s answers to questions six and seven. We sustain the second issue.

III. RETALIATORY DISCHARGE

The jury found that Lane reported to Wal-Mart that he had been sexually harassed by Suzanne Sparks and that Wal-Mart retaliated against him for reporting Suzanne Sparks. By its third issue Wal-Mart asserts that Lane did not make a complaint of sexual harassment or take other protected action which would support a claim for retaliatory discharge. Wal-Mart argues that Lane cannot state a claim for retaliatory discharge, or alternatively, that there is no evidence to support this claim.

Section 21.055 of the Texas Labor Code (Texas Commission on Human Rights Act (TCHRA)) provides that an employer commits unlawful retaliation if the employer discriminates against a person who: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. TexLab. Code Ann. § 21.055 (Vernon 1996). When an employer discharges an employee in retaliation for a complaint of sexual harassment the employer commits an unlawful employment practice under section 21.055. See Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 55 (Tex.1998).

The TCHRA is modeled after federal civil rights law. One express purpose of the Act is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Tex.Lab.Code Ann. § 21.001(1) (Vernon 1996). The Act purports to correlate “state law "with federal law in the area of discrimination in employment.” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). Thus, we look to analogous federal precedent for guidance when interpreting the Texas Act. NME Hospitals, Inc., v. Rennels, 994 S.W.2d 142,144 (Tex.1999).

In order to successfully assert a claim of retaliatory discharge the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination which when established gives rise to a presumption that the employer unlawfully discriminated against the employee. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To establish a prima facie case of retaliation a plaintiff must show that (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a causal connection between participation in the protected activity and the adverse employment decision. Graves v. Komet, 982 S.W.2d 551, 554 (Tex.App.—San Antonio 1998, no writ); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.App.—Houston [14th Dist.] 1998, no writ).

A plaintiff asserting a retaliation claim must establish that without his or her protected activity, the employer’s prohibited conduct would not have occurred when it did. McMillon v. Texas Dept. of Ins., 963 S.W.2d 935, 940 (Tex.App.—Austin 1998, no writ). That is, the plaintiff must establish a “but for” causal nexus between the protected activity and the employer’s prohibited conduct. McMillon, 963 S.W.2d at 940. The plaintiff need not establish that the protected activity was the sole cause of the employer’s prohibited conduct. Id.

The burden then shifts to the defendanf/employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Graves, 982 S.W.2d at 554. The employer is not charged with the burden of persuading the trier of fact that it was actually motivated by the proffered reason. Burdine, 450 U.S. at 254, 101 S.Ct. 1089; Graves, 982 S.W.2d at 554. Rather the employer meets its burden by setting forth through admissible evidence a reason for dismissal legally sufficient to justify a judgment in its favor. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089; Graves, 982 S.W.2d at 554-56.

Upon the employer’s articulation of a legitimate, nondiseriminatory reason for discharge the presumption raised by the prima facie case is rebutted and it drops from the case. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Graves, 982 S.W.2d at 555. At this point the plaintiff carries the burden of proving that the employer’s proffered reason is a pretext for discriminatory conduct. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; Graves, 982 S.W.2d at 555. A plaintiff meets this burden when he or she either directly persuades the trier of fact that “a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered reason is unworthy of credence.” Burdine, 450 U.S. at 256,101 S.Ct. 1089; Graves, 982 S.W.2d at 555. The ultimate burden of persuading the factfinder that the employer engaged in intentionally discriminatory conduct remains at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Graves, 982 S.W.2d at 555.

1. Standing.

Wal-Mart argues that Lane did not have standing to bring a retaliatory-discharge claim because he did not participate in a statutorily protected activity. We disagree.

Lane’s testimony showed that he told Sanders that Sparks was spreading “sexual rumors” about him and that this was making him uncomfortable and interfering with his work. The context of these rumors was that Lane had made unwelcome sexual advances toward her. Although Sparks did not make these comments directly to Lane, she did direct them to Lane’s co-workers at the work place. These co-workers related the comments to Lane. We conclude that Lane had a reasonable belief that Sparks was sexually harassing him and therefore could make a complaint according to section 21.055(3) of the TCHRA. See Tex.Lab.Code Ann. § 21.055(3) (Vernon 1996).

2. Prima Facie Case

During trial, Lane’s counsel asked Sanders, “[I]sn’t the real reason T.J. got fired was because he came to you and complained about Suzanne [Sparks]?” Sanders replied that this was not correct. Counsel then asked him if he remembered testifying in his deposition that if Lane “had not come to you and you had not started an investigation, that it’s likely that nothing else would have ever come of this?” Sanders replied, ‘With the possibility that David Carvajal had never said anything, that’s a possibility, or she [Sparks] had not decided to at a later date, yes.” Counsel persisted by asking, “It’s very likely that if T. J. had not come to you, he would still be working at Wal-Mart, correct?” Sanders replied, “There’s that possibility.”

This evidence does not show that but for Lane’s reporting of Suzanne Sparks’ harassment of him, he would not have been terminated. Even without Lane’s report, Sanders could have learned about it. Wal-Mart showed that Sanders terminated Lane because the results of his investigation led him to conclude that Lane sexually harassed Sparks. This is a legitimate, nondiseriminatory reason for Lane’s termination. We hold that there is no evidence to show a causal connection between Lane’s report of the sexual rumors and Sanders’ decision to terminate him. Thus, Lane did not established a prima facie case of discrimination. We sustain the third issue.

IV. Sex Discrimination

The jury found that Lane’s gender was one of the motivating factors behind Wal-Mart’s termination of him. Wal-Mart challenges the legal and factual sufficiency of the evidence to support the finding of sex discrimination. We hold the evidence is insufficient to support that finding.

Section 21.051 of the Texas Labor Code provides that:

An employer commits an unlawful employment practice if because of ... sex ... the employer ... fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.

Tex.Lab.Code Ann. § 21.051(1) (Vernon 1996).

The evidence showed that Lane informed Sanders that he was upset because Sparks was spreading sexual rumors about him. Sanders investigated the complaint, and as a result of that investigation, Sanders received information about what Lane did to Sparks. Sanders made his determination to terminate Lane based upon the results of the investigation. Sanders believed that Lane had sexually harassed Sparks and elected to terminate him for that reason. There is no evidence that Lane’s gender played any role in his decision to terminate Lane. We sustain the fourth issue.

Due to our disposition of the above issues we need not address Wal-Mart’s remaining issues. Tex.R.App.P. 47.1. We REVERSE the trial court’s judgment and RENDER that Thomas J. Lane take nothing by his suit against Wal-Mart Stores, Inc.

      . See generally Tex.Lab.Code Ann. §§ 21.001-556 (Vernon 1996 & Supp.2000).


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Castulo Diaz DE LEON, Appellant, v. FURR’S SUPERMARKETS, INC., Appellee.
    No. 08-99-00004-CV.
    Court of Appeals of Texas, El Paso.
    July 19, 2000.

      Rodrigo V. Ramos, El Paso, for Appellant.
    Mark C. Walker, Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict entered in favor of Appellant in a negligence cause of action. The damages award was reduced by 50 percent to account for Appellant’s proportionate responsibility. For reasons stated below, we reverse the judgment to the extent that it reduced Appellant’s damages, we modify the judgment to reflect Appellant’s full recovery, and we affirm the judgment as modified.

I. SUMMARY OF THE EVIDENCE

On November 2, 1992, Castulo Diaz De Leon (“De Leon”), an employee of Furr’s Supermarkets, Inc., (“Furr’s”), was summoned from the front office to investigate a shoplifting incident. As he was looking for the shoplifter, De Leon became injured when he slipped on water which had accumulated near one of the checkout stands. De Leon then brought suit against Furr’s for negligence. In its answer, Furr’s raised the following defense:

Subject to the above pleadings, Defendant alleges that on the occasion in question, the Plaintiff failed to keep such a proper lookout for his own safety that a reasonable and prudent person, using ordinary care, would have kept under the same or similar circumstances, and that such failure was a proximate cause, or the sole proximate cause of this accident and any and all of the Plaintiffs alleged damages and/or injuries.

Over De Leon’s objections, the trial court submitted a jury question which asked the jury to assign the percentage of negligence attributable to each party. After assigning 50 percent of the fault to Furr’s and 50 percent to De Leon, the jury assessed De Leon’s total damages at $35,-500, thus enabling him to recover 50 percent of that figure or $17,750. De Leon brings this appeal.

II. DISCUSSION

In four issues on appeal, Appellant argues that the issue of contributory or comparative negligence should not have been presented to the jury because (1) Section 33.002(c)(1) of the Civil Practice and Remedies Code specifically excludes cases brought for workers’ compensation benefits from the proportionate responsibility statute; (2) Section 406.033 of the Texas Labor Code excludes contributory negligence issues in nonsubscriber negligence cases; and (3) the issue was not raised in Appellee’s pleadings.

A. Preservation of Error

Before addressing the merits of these arguments, we will determine whether Appellant preserved error with respect to each of his contentions. Tex.R. Civ. P. 274 provides: “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” In State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992), the Court stated: “There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”

Here, the trial court submitted the following jury questions:

Question Number One: “Did the negligence, if any, of those named below proximately cause the occurrence in question?” The court then listed Castu-lo Diaz De Leon and Furr’s Supermarket’s Inc.
Question Number Two: “What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question 1, to have been negligent?”
Question Number Three: “What sum of money, if paid now in cash, would fairly and reasonably compensate CASTULO DIAZ DE LEON for injuries, if any, that resulted from the occurrence in question? ... Do not reduce the amounts, if any, in your answers because of the negligence, if any of CASTULO DIAZ DE LEON.”

In response to these questions, Appellant’s counsel made the following objections:

The question that the Court submitted as Question Number 1 puts in there, in the section for negligence, Castulo Diaz De Leon as a blank for that. It’s well-established case law in Texas that in a nonsubscriber situation, as we have here, there should not and there never has been, in El Paso court, at least, a submission of Castulo Diaz De Leon being negligent in an employer situation. The only proper party to be submitted to ask the jury if they were negligent is Furr’s Supermarkets, Incorporated. Castulo Diaz De Leon should not be submitted as a person to consider his negligence. There’s no evidence in this case at all that he was negligent. There’s insufficient evidence, certainly, of that. And we would object strenuously to that submission.
Plaintiff would further object to Question Number 2, which deals with the percentage of negligence between Cas-tulo Diaz De Leon and Furr’s Supermarkets, Incorporated. Plaintiff would object to this entire question, as there should not be any submission or any percentage attribution between the negligence of Castulo Diaz De Leon and Furr’s Supermarkets, Incorporated, since the issue of negligence for Castulo Diaz De Leon should not be considered at all in this charge.
Plaintiff would further object to using the definition of negligence in respect to Mr. Castulo Diaz De Leon at all.
Plaintiff would also object to the portion of the Court’s charge in Question Number 3, which reads as follows: Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Castulo Diaz De Leon. As previously stated, there should be no submission of the negligence of Castulo Diaz De Leon in this case, and we would object to that portion as a comment on the weight of the evidence; and there is no supporting case law to submit that type of information to the jury.

Appellant’s objection was sufficient to satisfy the first element of Rule 274, as it properly identifies the objectionable matter (the inclusion of the proportionate responsibility language). With regard to the second element of Rule 274, Appellant asserted the following as grounds for his objections: (1) it is “well-established ease law” that there should not be a submission of an employee’s negligence; (2) there is insufficient evidence or no evidence of Appellant’s negligence; (3) informing the jury to not decrease the damage award by the percentage of Appellant’s negligence, if any, amounts to a comment on the weight of the evidence; and (4) there is no case law supporting the charge. Under these circumstances, we believe that Appellant preserved error.

B. Standard of Review

The standard of review for charge error is whether the trial court abused its discretion. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Holeman, E.W. v. Landmark Chevrolet Corp., 989 S.W.2d 395, 397 (Tex.App.—Houston [14th Dist.] 1999, writ denied) (citing Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.App.—Houston [14th Dist.] 1994, writ denied)). Our review requires that we consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Id. at 397 (citing Island Recreational Dev. Corp. v. Republic Of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986)). We may not reverse unless the error, when viewed in light of the totality of the circumstances, amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause rendition of an improper judgment. Id. However, whether the charge has submitted the controlling issues in the case, in terms of theories of recovery or defense, is a question of law which we review de novo. Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914, 917 (Tex.App.—Beaumont 1998, no writ) (citing Continental Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex.1964); and McFarland v. Sanders, 932 S.W.2d 640, 644 (Tex.App.—Tyler 1996, no writ)).

C. Analysis

Appellant argues that the trial court erred when it permitted the jury to consider the issue of proportionate responsibility because in nonsubscriber negligence cases, proportionate responsibility cannot, by virtue of certain statutory exclusions, be considered by the jury. In support of this argument, Appellant cites Tex. Lab.Code Ann. § 406.033(d) (Vernon 1996), which states: “In an action described by Subsection (a) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.” Subsection (a) of that section states:

In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.

Tex. Lab.Code Ann. § 406.033(a) (Vernon 1996). Appellant argues that because Subsection (a) specifically prohibits any consideration of the employee’s contributory negligence in nonsubscriber negligence cases, the proportionate responsibility statute must necessarily be barred because if it were applied, in order to apportion responsibility among the parties, the employee’s contributory negligence would have to be considered.

The issue of whether a jury may consider the negligence, if any, of an employee in a Section 406.033 cause of action was recently decided by the Texas Supreme Court in The Kroger Co. v. Keng, 23 S.W.3d 347, 348 (Tex.2000). In that case, Keng, a Kroger employee, sued Kroger, a nonsubscriber under the workers’ compensation statutes, for negligence in connection with an accident which occurred while Keng was performing her job duties. The trial court denied Kroger’s requested jury question which would have enabled the jury to consider Keng’s own negligence. The jury found in favor of Keng. On appeal, Kroger argued that the trial court erred when it failed to include a jury question on comparative responsibility. The Tyler Court of Appeals disagreed and affirmed the judgment of the trial court. Kroger then filed a petition for review with the Texas Supreme Court. The court granted the petition and held:

Contributory negligence contemplates an injured person’s failure to use ordinary care in regard to his or her own safety.... This affirmative defense requires proof that the plaintiff was negligent and that the plaintiffs negligence proximately caused his or her injuries .... Because comparative responsibility involves measuring the parties’ comparative fault in causing the plaintiffs injuries, it necessitates a preliminary finding that the plaintiff was in fact contributorily negligent.... Yet, section 406.033 prohibits this finding. It follows that by expressly precluding employers from relying on common-law contributory negligence, section 406.033 effectively prohibits an employer from relying on the statutory comparative-responsibility defense.

Keng, 23 S.W.3d 347, 351 (Tex. 2000).

Based on the Texas Supreme Court’s decision in Keng, we hold that the trial court erred by allowing the jury to consider Appellant’s proportionate fault. Accordingly, we reverse the judgment to the extent that it reflects a decrease in the damages award, we modify the judgment to reflect full recovery in the amount of $35,500, and we affirm the judgment as modified.

      . Because Furr’s is a nonsubscriber under the workers’ compensation act, De Leon brought suit for negligence in accordance with Tex. Lab.Code Ann. § 406.033(d) (Vernon 1996), which states: “In an action described by Subsection (a) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.”

      . This section is entitled "Common-Law Defenses; Burden of Proof” and is located in Title 5 (Workers' Compensation).


author: LEE ANN DAUPHINOT, Justice.

text:
    William HALBROOK, Appellant. v. The STATE of Texas, State.
    No. 2-99-267-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 17, 2000.

      Lloyd D. Odie, Lewisville, for Appellant.
    Bruce Isaacks, Crim. Dist. Atty., Charles E. Orbison, Lori Moraine, Matt Shovlin, Asst. Dist. Atty., Denton, for Ap-pellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

INTRODUCTION

A jury convicted Appellant William Hal-brook of driving while intoxicated (DWI) and sentenced him to 180 days’ confinement and a $850 fine. The trial court suspended Appellant’s sentence and placed him on community supervision for 24 months. In his sole point on appeal, Appellant argues that the trial court erred in allowing the jury to hear him invoke his right to counsel. Finding no reversible error, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 1997, Sergeant Kenneth Lombardo of the Lewisville Police Department pulled over Appellant for driving erratically. When Sergeant Lombardo approached the window of Appellant’s truck, he smelled a strong odor of alcohol. Sergeant Lombardo also observed that Appellant was unsteady on his feet, that his speech was slurred, and that his eyes were red and bloodshot. When Sergeant Lom-bardo asked Appellant if he had been drinking, Appellant stated that he had consumed two beers at the VFW post. Appellant refused to submit to field sobriety testing.

Officers Jay Powell and Luis Flores arrived on the scene as back-up. They arrested Appellant for DWI, transported him to the Lewisville Police Department, and took him to the intoxilyzer room at the jail, where he was videotaped. When the officers asked Appellant for a specimen of his breath, the following exchange occurred between Appellant and the officers:

APPELLANT: Do I get an opportunity to have my attorney present?
OFFICER # 1: Not at this time you don’t.
APPELLANT: Why not?
OFFICER # 1: Because that has nothing to do with your attorney at this moment.
APPELLANT: You’re going to interrogate me without an attorney present?
OFFICER #2: All he’s asking is whether or not you will submit to a breath test. Will you submit to a breath test at this time?
APPELLANT: Are you asking me to give evidence against myself without an attorney present?
OFFICER # 2: What he’s asking you is to give a breath specimen without your attorney present.
APPELLANT: So you’re asking me to give evidence against myself without an attorney present?
OFFICER #2: He’s asking you to provide a breath specimen without anyone but the people in this room present.
APPELLANT: That’s true. Without an attorney present, without legal counsel — to give up my right to counsel to do this, right?
OFFICER #2: Are you willing to give a breath test?
APPELLANT: Sure. Absolutely.

After Appellant agreed to submit to a breath test, the two specimens measured 0.145 and 0.147, which were above the legal limit.

Before trial, Appellant moved to suppress the above portion of the videotape because it contained his invocation of his right to counsel. The State contended that Appellant had not invoked his right to counsel. The trial court found that Appellant’s statements regarding whether he could confer with counsel before taking the breath test did not constitute a request for counsel. The trial court admitted the videotape at trial, and the videotape, including Appellant’s asking whether he could have an opportunity to have his attorney present, was played for the jury.

INVOCATION OF RIGHT TO COUNSEL

In his sole point, Appellant argues that the trial court erred in allowing the jury to hear his invocation of his right to counsel. The State argues that Appellant never invoked his right to counsel. We first must determine when the right to counsel attaches. The court of criminal appeals has answered this question under both the Sixth Amendment and the Fifth Amendment to the United States Constitution.

In determining whether a defendant has the right to consult with counsel before deciding whether to take a breath test, the court of criminal appeals has held that a defendant’s right to counsel under the Sixth Amendment to the United States Constitution and right to counsel under article I, section 10 of the Texas Constitution do not attach until the time formal charges are brought against a suspect. A DWI defendant therefore does not have an automatic Sixth Amendment or article I, section 10 right to consult with counsel before deciding whether to take a breath test, if formal charges have not yet been filed.

The court of criminal appeals has also examined a defendant’s right to counsel under the Fifth Amendment to the United States Constitution, stating,
unlike the right to counsel under the Sixth Amendment which attaches automatically, the right to counsel under Miranda is a prophylactic measure and is not inherent within the Fifth Amendment. The prohibition against continued questioning following an invocation of the right to counsel is “justified only by reference to its prophylactic purpose,” that is to say, to protect a suspect who has already invoked his right to silence from being badgered into self-incrimination by continued questioning by the police. Accordingly, a court’s focus is on whether a suspect actually invokes his right, and the inquiry is purely an objective one.

The United States Supreme Court has also addressed this issue:

Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.
Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Although a suspect need not “speak with the discrimination of an Oxford don,” he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Although Appellant correctly argues that a defendant’s invocation of his right to counsel is not admissible as evidence of guilt, his invocation of that right must be clear and unambiguous. We hold that Appellant’s asking whether he could have an opportunity to have his attorney present did not constitute a clear and unambiguous invocation of his right to counsel'. Additionally, the court of criminal appeals has held that, under the self-incrimination clauses of the United States and Texas Constitutions, a defendant does not have the right to consult counsel before deciding whether to take a breath test because a breath test is not testimonial and therefore does not submit the defendant to custodial interrogation. We hold that the trial court did not err-in admitting the videotape.

HOLDING

We overrule Appellant’s sole point on appeal and affirm the trial court’s judgment.

      . See McCambridge v. State, 778 S.W.2d 70, 76 (Tex.Crim.App.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); Miffleton v. State, 777 S.W.2d 76, 78 (Tex.Crim.App.1989); Forte v. State, 759 S.W.2d 128, 139 (Tex.Crim.App.1988); Forte v. State, 707 S.W.2d 89, 92 (Tex.Crim.App.1986).

      . Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App.) (citations omitted and emphases in original), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995).

      . Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (citations omitted and emphasis in original); accord Dinkins, 894 S.W.2d at 351-52.

      . See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991).

      . See Davis, 512 U.S. at 462, 114 S.Ct. at 2357 (holding that petitioner’s remark "Maybe I should talk to a lawyer” was not invocation of right to counsel).

      . See Jamail v. State, 787 S.W.2d 380, 382 (Tex.Crim.App.), cert. denied, 498 U.S. 853, 111 S.Ct. 148, 112 L.Ed.2d 115 (1990).


author: KAREN ANGELINI, Justice.

text:
    Gary A. CASE, et al., Appellants, v. Brenda GRAMMAR, et al., Appellees.
    No. 04-00-00076-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 23, 2000.

      Joe Frazier Brown, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, Vaughan E. Waters, Thornton, Summers, Biechlin, Dunham & Brown, L.C., Corpus Christi, for appellant.
    Bryan A. Woods, Bayne, Snell & Krause, Thomas D. Bracey, Law Office of Thomas D. Bracey, Bradley E. Bartlett, Jones, Kurth <& Andrews, P.C., San Antonio, for appellee.
    Sitting: TOM RICKHOFF, Justice ALMA L. LÓPEZ, Justice KAREN ANGELINI, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

In this interlocutory appeal, appellants Gary A. Case, Gary A. Case, A Professional Corporation, IBT International, Inc., Southern California Sunbelt Developers, Inc., and Dan W. Baer (“appellants”) appeal the denial of their special appearances. In a single issue, the appellants contend that the trial court erred in overruling their objections to jurisdiction and determining either that the appellants had sufficient minimum contacts with Texas to support specific in personam jurisdiction or that the appellants waived their objections to jurisdiction by participating in pretrial discovery. We reverse the trial court’s order and render judgment that Texas courts lack jurisdiction over Gary A. Case, Gary A. Case, A Professional Corporation, IBT International, Inc., Southern California Sunbelt Developers, Inc., and Dan W. Baer for purposes of this litigation.

Factual and Procedural Background

The plaintiffs/appellees in this case include Brenda Grammar, Daralyn Grammar, Gregory Grammar, G.G.D.G., L.P., Lemonleaf, L.P., Pear Tree, L.P., Peach Blossom, L.P., Cherry Blossom, L.P., Orange Blossom, L.P., Jaguar-Piaget, L.P., Colchester Financial, L.P., Animated Heirlooms, L.P., Gage Art, Inc., Banyan, L.P., Dinvest, L.P., Rancho Verde, L.P., Apple Orchard, L.P., D & B Karnes, L.P., Lemon Grove, L.P., and DBG Leasing L.P (“plaintiffs”). These plaintiffs sued numerous defendants, including the appellants, for their roles in an alleged scheme to defraud the plaintiffs and steal millions of dollars from them. The alleged scheme was apparently masterminded by David Tedder. Tedder is a defendant in the lawsuit but is not a party to this appeal. According to the plaintiffs, however, Ted-der is essential to an understanding of the appellants’ involvement in this case.

Appellants Dan Baer and Gary Case live and work in the State of California. Baer owns and operates two businesses, appellants IBT International, Inc., (IBT) and Southern California Sunbelt Developers, Inc.(SCSD). Case is a Certified Public Accountant, who does business as appellant Gary A. Case, a Professional Corporation. Case has also served as the controller for IBT. Both Baer and Case have been closely acquainted with David Ted-der. Baer met Tedder, a lawyer, in 1984 when he retained Tedder’s legal services. Baer and Tedder began officing in the same building in 1986, and Case set up his office in the same building shortly thereafter. At one time, Tedder was president of IBT.

Shortly after he became acquainted with Baer, Tedder became involved in the business of estate planning and asset protection. He conducted seminars through an entity known as the Legal Forum. Through this practice, Tedder apparently became acquainted with the Grammar family, several of whom live in Texas. As part of an asset protection plan, Tedder assisted the Grammars in funding numerous limited partnerships. The Grammars forwarded money to Tedder, who used the money to fund the limited partnerships. The limited partnership funds were then used to advance loans to various companies and individuals.

In the early 1990s, IBT and SCSD borrowed in excess of one million dollars from three of the Grammar limited partnerships, Banyan, L.P., Pear Tree, L.P., and Orange Blossom, L.P. Banyan, Pear Tree, and Orange Blossom are all Nevada limited partnerships. According to Dan Baer, these loans were arranged by Tedder. IBT and SCSD received the funds via check or wire transfer from one California bank to another. Baer never had any contact with any member of the Grammar family with regard to these loans until he was contacted by Don Grammar, who demanded payment. At the time the loans were made, Baer claims to have had no knowledge that the Grammars had any interest in either Banyan, Pear Tree, or Orange Blossom.

Gary Case acknowledges that he has met members of the Grammar family. Tedder referred Don, Daralyn, and Greg Grammar to Case for preparation of individual tax returns. Case was also hired by Tedder to prepare the tax returns for several of the Grammar limited partnerships, including Banyan, Pear Tree, and Orange Blossom. Accordingly, Case was aware of the Grammars’ involvement in the partnerships.

The parties acknowledge that none of the appellants had any dealings with the plaintiffs in this case, other than what is described above. Based upon those dealings, the plaintiffs sued the appellants, alleging that they had committed, in concert with Tedder and the other named defendants, breach of fiduciary duty, fraud, and conspiracy to commit theft. The appellants filed special appearances objecting to in personam jurisdiction in Texas. The trial court conducted a hearing at which Baer, Case, and a representative of the Grammar family testified.

The gist of the appellants’ argument to the trial court was that they are California residents and domiciliaries, they conduct no business in Texas, nor do they otherwise have contact with the State of Texas. They argued that their connection to the present suit is based solely on the fact that they, as California residents, borrowed or participated in the borrowing of money from three Nevada limited partnerships. The transactions at issue occurred in California with the assistance of California banks. Accordingly, the appellants contend that there is no basis for the plaintiffs’ assertions of jurisdiction in Texas.

The plaintiffs, however, argued that, because the money involved in the loans at issue initially came from the State of Texas and the appellants were aware of that fact, Texas courts have jurisdiction. The plaintiffs also argued that, because the appellants sought discovery prior to the hearing on their special appearances, they waived their right to contest jurisdiction. The trial court denied the special appearances, and this appeal ensues pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7)(Vernon 1997).

Discussion

A. Standard of Review

In one issue on appeal, the appellants contend that the trial court erred in denying their special appearances. When a defendant challenges a Texas court’s exercise of personal jurisdiction through a special appearance, he carries the burden of negating all bases of personal jurisdiction. See CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996). In spite of the holdings of several of our sister courts of appeals, this court has held that the proper standard of review of a plea to the jurisdiction in an interlocutory appeal is abuse of discretion., See Magnolia Gas Co. v. Knight Equip. & Mfg., 994 S.W.2d 684, 689 (Tex.App.-San Antonio 1998, no pet.). Under the abuse of discretion standard, we may not substitute our judgment for that of the trial court regarding its resolution of factual issues and we cannot disturb its decision absent a showing of arbitrariness or unreasonableness. See id. (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992)).

The appellants must therefore establish that the trial court could reasonably have reached only one conclusion. Id. Where controlling legal principles are concerned, we exercise less deference and review de novo, examining whether the trial court analyzed and applied the law correctly. Id. The trial court abuses its discretion when it misapplies the law. Id. However, if the trial court’s ruling is legally correct, it is immune from appellate revision. Id.

Because the record lacks findings of fact and conclusions of law, all questions of fact would typically be presumed to support the judgment. See Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex.1987); Magnolia Gas, 994 S.W.2d at 689. But because our record contains a reporter’s record from the hearing before the trial court, the presumed findings are inconclusive. See id.

In this case, the appellants challenge the trial court’s denial of their special appearances on two bases. First, they contend that the trial court erred in finding that appellants had sufficient minimum contacts with the State of Texas to support specific personal jurisdiction. Next, appellants maintain that they did not waive their challenge to jurisdiction as the plaintiffs suggest. We will address the minimum contacts issue first.

B. Personal Jurisdiction

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and the Texas long-arm statute are satisfied. See CSR Ltd., 925 S.W.2d at 594; see also Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. See Tex. Civ. PRAC. & Rem.Code § 17.042 (Vernon 1997). In addition to several specific activities that constitute doing business in Texas, the statute provides that “other acts” by the nonresident can satisfy the requirement. See id.; Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

The “other acts” necessary to satisfy the Texas long-arm statute extend only as far as federal due process requirements will allow. See CSR, Ltd., 925 S.W.2d at 594. Thus, these federal due process requirements define the parameters of our review. The questions we must consider include “(1) whether the nonresident defendant has purposely established ‘minimum contacts’ with the forum state; and (2) if so, whether the exercise of jurisdiction comports with ‘fair play and substantial justice.’” Guardian Royal Exchange, 815 S.W.2d at 226 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)); see also International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); CMMC v. Salinas, 929 S.W.2d 435, 437 (Tex.1996).

C. Minimum Contacts

A nonresident defendant’s contacts with a forum can give rise to either general or specific jurisdiction. General jurisdiction arises when the defendant’s contacts are continuous and systematic, allowing 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. See CSR, 925 S.W.2d at 595; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). In this case, however, the parties have stipulated that Texas courts do not have general jurisdiction over the appellants. Our analysis of minimum contacts therefore focuses on specific jurisdiction.

When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the nonresident defendant, the forum, and the litigation. See Guardian Royal Exchange, 815 S.W.2d at 228; Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex.App.-Houston [14th Dist.] 1992, no writ). The minimum contacts requirement is satisfied only if the cause of action arises from or relates to the nonresident defendant’s contact with the forum state. See CSR, 925 S.W.2d at 595; see also Happy Indus. Corp. v. American Specialties, Inc., 983 S.W.2d 844, 848 (Tex.App.Corpus Christi 1998, pet. dism’d w.o.j.).

The defendant’s purposeful conduct must have caused the contact, not the unilateral activity of the plaintiff or others. See Guardian Royal Exchange, 815 S.W.2d at 227. In other words, the nonresident defendant’s activities must have been “purposefully directed” toward the forum, and the litigation must result from alleged injuries that arise from or relate to those activities. See id. at 228 (citing Burger King, 471 U.S. at 472, 105 S.Ct. 2174). This requirement that a defendant purposefully avail himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174.

In this case, the connection between the appellants, Texas, and the plaintiffs’ fraud and conspiracy claims is tenuous at best. The only relevant relationship in this case is the relationship between the appellants and Banyan, L.P., Pear Tree, L.P., and Orange Blossom, L.P. While the record reflects that Gary Case performed individual tax and accounting work for several of the other plaintiffs, those services do not relate to the present litigation so as to support the plaintiffs’ claims of specific jurisdiction. Therefore, the appellants have no other connection -with any of the plaintiffs other than Banyan, Pear Tree, and Orange Blossom. Given the fact that Banyan, Pear Tree, and Orange Blossom are Nevada limited partnerships, it is difficult to see how the appellants purposefully availed themselves of the benefits and protections of Texas law when they borrowed or assisted in borrowing money from them.

The plaintiffs maintain that the nexus between the appellants and Texas is the fact that the appellants knew that the money they were borrowing came from Texas. They support this contention with the fact that the majority of the Banyan, Pear Tree, and Orange Blossom limited partners live in Texas and, because of their close connection with David Tedder, the appellants were aware of this fact. In essence, the plaintiffs are arguing that Texas jurisdiction should lie because the appellants conspired with David Tedder to steal “Texas money.”

The connection, though, between the Grammars and the limited partnerships is just too far removed to justify the plaintiffs’ arguments. First, any act on the part of David Tedder is not sufficient to confer jurisdiction on the appellants. See National Indus. Sand Assoc. v. Gibson, 897 S.W.2d 769, 773 (Tex.1995) (holding that plaintiff may not use acts of one defendant in the forum to assert jurisdiction over all co-conspirators); Guardian Royal Exchange, 815 S.W.2d at 227 (noting that the defendant’s purposeful conduct must have caused the contact, not the unilateral activity of the plaintiff or others).

And even assuming that the appellants were aware of the fact that the majority of Banyan’s, Pear Tree’s, and Orange Blossom’s limited partners were Texas residents, there is nothing to suggest that the appellants purposefully directed their actions toward Texas when they specifically dealt with three Nevada limited partnerships. We note that jurisdiction would be questionable even if the appellants had borrowed the money at issue directly from the Texas limited partners. See TeleVentures, Inc. v. International Game Tech., 12 S.W.3d 900, 908-09 (Tex.App-Austin 2000, pet. filed); Magnolia Gas, 994 S.W.2d at 691 (both holding that the mere contracting with a Texas resident is not enough to confer jurisdiction).

As it stands, the loan agreements, whatever form they took, were between two California companies and three Nevada limited partnerships. The money received via the loans, came not from Texas, but from those limited partnerships. And the money used to repay the loans, whether or not the loans have been completely satisfied, was paid to the Nevada limited partnerships. Under these circumstances, we conclude that the appellants did not purposefully direct their actions toward Texas in their dealings with Banyan, Pear Tree, and Orange Blossom. Because specific jurisdiction arises only when the plaintiffs cause of action emanates from the nonresident defendant’s contact with the forum state, we must conclude that the trial court abused its discretion in concluding that it had specific jurisdiction over the appellants in this case.

D. Waiver

The plaintiffs further argue that, even if personal jurisdiction is improper in this case, the appellants waived their right to contest jurisdiction when they engaged in pre-trial discovery that extended beyond the scope of jurisdiction. Three of the five appellants in this case apparently engaged in the discovery process after filing their special appearances. According to the plaintiffs, this discovery activity included participation in a deposition and the filing of motions to compel answers to interrogatories and responses to requests for production. The plaintiffs contend that much of this discovery activity involved issues relevant not only to the appellants’ special appearances, but to the merits of the case, operating to waive the appellants’ jurisdictional contest. The plaintiffs base this argument on Portland Sav. & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 535 (TexApp.-Corpus Christi 1985), overruled on other grounds, Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex.1998).

In Portland, the defendants filed a motion for discovery sanctions requesting that “the trial court ‘set the defendants’ motion for sanctions for immediate hearing and before any other matter is heard.’ ” Id. at 535. The court noted that “although when the subject of the discovery is relevant to the jurisdictional hearing, it may be permissible to have a hearing on a motion for sanctions before the jurisdictional hearing, we find, in this case, that it is apparent from the record that the overwhelming majority of the requested discovery could not be relevant to the proof of jurisdictional facts.” Id. Because the discovery addressed in the motion for sanctions was directed at the merits of the case and not the jurisdictional hearing, the court held that the defendants waived their jurisdictional challenge. See id.

We find Portland distinguishable on two bases. First, the holding hinges on the fact that the Portland defendants requested that the discovery motion be heard before any other matter. There was no such request in this case, and in fact, the motions to compel have yet to be heard. Second, and more importantly, the Portland holding is in direct conflict with the specific language of the rule upon which it relies. See Hotel Partners v. Craig, 993 S.W.2d 116, 123 (Tex.App.-Dallas 1994, pet. denied) (declining to follow Portland).

Rule 120a of the Texas Rules of Civil Procedure provides that a party may specially appear to contest the trial court’s jurisdiction over the person of the defendant. See Tex.R. Crv. P. 120a(l). Rule 120a also provides that “the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance.” Id. The rule specifically contemplates ongoing discovery by both the party challenging jurisdiction and the party invoking it, and nothing in the rule limits discovery to matters relating to the special appearance. See Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 328 (Tex.App.-El Paso 1994, writ denied).

Because the plain language of Rule 120a states that the use of the discovery process is not a waiver of a previously filed special appearance, we must conclude that the trial court erred in finding that the appellants waived their jurisdictional complaints by seeking discovery that exceeded the scope of the jurisdiction issue. See Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 801 (Tex.App.-Houston [1st Dist.] 2000, no pet. h.); Hotel Partners, 993 S.W.2d at 123; International Turbine Service, Inc. v. Lovitt, 881 S.W.2d 805, 809 (Tex.App.-Fort Worth 1994, writ denied); Moore, 874 S.W.2d at 328; Letersky v. Letersky, 820 S.W.2d 12, 14 (Tex.App.-Eastland 1991, no writ).

Conclusion

We conclude that neither Dan Baer, Gary Case, IBT International, Inc., Southern California Sunbelt Developers, Inc., nor Gary A. Case, a Professional Corporation conducted purposeful activities within the State of Texas in their dealings with the plaintiffs. The trial court therefore abused its discretion in denying the appellants’ special appearances and requiring them to defend the plaintiffs’ lawsuit in Texas. The trial court likewise erred in determining that the appellants waived their special appearances by using the discovery process to seek information pertaining to the merits of the case. We reverse the trial court’s order and dismiss the case against Dan Baer, Gary Case, IBT International, Inc., Southern California Sunbelt Developers, Inc., and Gary A. Case, a Professional Corporation.

      . Compare Klenk v. Bustamante, 993 S.W.2d 677, 681 (Tex.App.-San Antonio 1998, no pet.) (adopting abuse of discretion standard for review of denial of special appearance) with C-Loc Retention Systems v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.App.-Dallas 1994, pet. denied); Ball v. Bigham, 990 S.W.2d 343, 347 (Tex.App.-Amarillo 1999, no pet.); Cadle v. Graubart, 990 S.W.2d 469, 471 (Tex.App.-Beaumont 1999, no pet.); Happy Indus. Corp. v. American Specialties, Inc., 983 S.W.2d 844, 847 (Tex.App.-Corpus Christi 1998, pet. dism’d w.o.j.); Garner v. Furmanite Australia Party, Ltd., 966 S.W.2d 798, 802 (Tex.App.Houston [1st Dist.] 1998, pet denied) (all adopting factual sufficiency review for fact findings and de novo review of legal conclusions).

      . This standard was adopted by this court in Klenk, 993 S.W.2d at 681, and subsequently applied by this court in Magnolia Gas and Jones v. Beech Aircraft Corp., 995 S.W.2d 767 (Tex.App.-San Antonio 1999, pet. dism'd w.o.j.). However, in Transportes Aereos de Coahuila, S.A. v. Falcon, 5 S.W.3d 712 (Tex.App.-San Antonio 1999, pet. denied.), we noted that it could be argued that the proper standard of review, even with respect to factual issues, should be de novo. We noted that such an argument would be particularly persuasive in that case because the trial court had the same record to review as was presented on appeal. We did not reconsider the proper standard of review though because we found that applying the more deferential abuse of discretion standard did not affect the ultimate outcome in that case. Similarly, we do not reconsider the proper standard in this case because it would not affect its outcome.

      .The Texas Civil Practices and Remedies Code specifically identifies the following activities as "doing business” in Texas:
      (1) contracting by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

        (2) committing a tort in whole or in part in this state;
      (3) recruiting Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.
      Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997).

      . We note that appellants Gary A. Case, a Professional Corporation and Dan Baer were not parties to this suit at the time this discovery activity occurred. Accordingly, the plaintiffs’ waiver claim is valid only as it pertains to appellants Gary Case, SCSD, and IBT.