author: KEM THOMPSON FROST, Justice.

text:
    Gordon R. COOPER, II, Appellant, v. James B. HARRIS, Appellee.
    No. 14-09-00185-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 14, 2010.

      Erin Hilary Huber, Russell S. Post, William R. Peterson, Houston, for appellant.
    Kimberley M. Spurlock, Humble, Carrie Holman Westbrook, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

KEM THOMPSON FROST, Justice.

An attorney appeals from a judgment on a jury verdict against him based on negligence and breach-of-contract claims asserted by his former client in connection with the attorney’s handling of a lawsuit against the client’s former employer. Concluding that the evidence of causation is legally insufficient as to the negligence claim and that the client cannot assert the breach-of-contract claim separately from the negligence claim, we reverse the trial court’s judgment and render judgment that the client take nothing.

I. Factual and ProCedural Background

Appellant Gordon R. Cooper, II is a Texas attorney. Appellee James B. Harris was his client. Harris retained Cooper to pursue employment discrimination claims after Harris’s longtime employer terminated Harris’s employment.

Cooper’s Handling of Harris’s Employment Discrimination Claims

A chemist, Harris had worked for BASF for twenty-five years when BASF fired him on August 10, 2000. The next day Harris met with Cooper about pursuing various discrimination claims against BASF, and Cooper agreed to represent Harris. More than six months later, on March 6, 2001, Cooper filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging both race and age discrimination. Under section 21.202 of the Texas Labor Code, this filing was untimely as to Harris’s state law claims. The EEOC dismissed Harris’s charge of discrimination on July 30, 2001, and issued a notice to Harris of his right to sue BASF for race and age discrimination. The notice recited that if Harris decided to sue BASF, he was required to do so within ninety days of his receipt of the notice; otherwise, Harris’s right to sue would be lost. After receiving this notice from the EEOC, Cooper waited more than ninety days to file suit.

On January 14, 2002, Cooper filed suit in state court, alleging violations of the Texas Labor Code only. BASF removed the case to federal court. After removal, Cooper ceased representing Harris and withdrew from the case. Harris retained attorney Peggy Sue Bittick to represent him. Bittick sought leave to amend Harris’s complaint to allege additional claims, but the federal district court denied this request. BASF filed a motion for summary judgment, alleging that Harris’s claims were procedurally barred because he did not pursue administrative remedies until more than 180 days after the date on which BASF engaged in the alleged unlawful employment practice. In the alternative, BASF sought summary judgment on the merits of Harris’s claims. The federal district court granted summary judgment on the procedural grounds and did not address BASF’s alternative arguments on the merits. The United States Court of Appeals for the Fifth Circuit affirmed.

Harris’s Claims Against Cooper

Harris sued Cooper in this case, asserting various claims, including negligence and breach of contract. Cooper represented himself at trial and disputed that he had been negligent. Bittick testified as both a fact witness and an expert witness. In Harris’s case in chief, Harris, Harris’s wife, and Cooper also testified. Cooper called only himself as a witness.

The trial court charged the jury on the negligence and breach-of-eontract claims. The jury found in Harris’s favor on both claims and awarded more than $2.1 million dollars in actual damages for the negligence claim and $7,250 for the breach-of-contract claim. The trial court rendered judgment on the jury’s verdict awarding damages for both claims for a total judgment in excess of $2.9 million.

II. Issues and Analysis

On appeal, Cooper challenges the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable fact-finder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819.

A. Preservation of Error

On appeal, Cooper does not dispute that he owed Harris a negligence duty or that he breached it. But, in his first issue, Cooper asserts that the trial evidence is legally insufficient to support the jury’s causation finding as to the negligence claim.

First, we address Harris’s assertion that Cooper failed to preserve error in the trial court. Before the trial court signed its judgment, Cooper filed a motion in which he did the following:

• objected to the judgment proposed by Harris, arguing that it misapplied the law to the facts;
• objected to entry of judgment based on the jury’s answers to questions one and two;
• stated that, to prevail on a negligence claim arising from the alleged mishandling of an underlying claim or litigation, the claimant has the burden to prove (1) that “but for” the attorney’s negligence, the claimant would have prevailed in the underlying case and (2) the amount that the claimant would have collected had the judgment been recovered;
• noted that this “suit within a suit” requirement is necessarily a part of the claimant’s burden to prove causation;
• argued that there is no evidence to support the elements of Harris’s negligence claim, one of which was that Cooper’s breach of duty proximately caused Harris’s alleged damages; and
• asked the trial court to sign an order sustaining Cooper’s objections and to sign a final judgment disposing of all of Harris’s claims consistent with Cooper’s motion.

If the trial court had granted the relief requested in the motion, then it would have rendered judgment that Harris take nothing, notwithstanding the jury’s verdict. The substance of the motion is a motion for judgment notwithstanding the verdict. See Gammill v. Gammill, No. 14-07-01013-CV, 2009 WL 1660479, at *3 (Tex.App.-Houston [14th Dist.] June 16, 2009, no pet.) (mem.op.). By rendering a judgment on the jury’s verdict in favor of Harris, the trial court impliedly denied this motion. See Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex.1999). We conclude that Cooper preserved error in the trial court as to his first issue.

B. Legal Insufficiency of the Evidence to Support Jury’s Causation Finding

The trier of fact must have some basis for understanding the causal link between the attorney’s negligence and the client’s harm. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex.2004). In some cases, the client’s testimony may provide this link, but in others, the connection may be beyond the trier of fact’s common understanding and require expert testimony. See id. A failure of proof can result if expert testimony is limited to whether an attorney violated the standard of care. See id. Proof of causation of injury often requires expert testimony concerning what a reasonably prudent attorney would have done under the circumstances. See id. When the causal link between the attorney’s negligence and the alleged damages is beyond the trier of fact’s common understanding, expert testimony is necessary. See id. at 119-20. In a litigation-malpractice case, it is generally beyond the trier of fact’s common understanding to determine whether the result of the underlying litigation would have been different but for the attorney’s alleged negligence. See id.

Harris recovered nothing in his suit against BASF. Harris asserted a negligence claim against Cooper based on Cooper’s alleged negligence in prosecuting Harris’s claims against BASF. In this context, to prove causation in his negligence claim against Cooper, Harris had to prove that if his claims had been properly prosecuted by a reasonably prudent attorney, Harris would have obtained a judgment against BASF more favorable that the judgment he actually obtained. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Res. Corp., 299 S.W.3d 106, 112 (Tex.2009) (stating that, when a client claims his attorney negligently represented him in another case, the client must prove the amount of damages that would have been recovered and collected if the case had been properly prosecuted by a reasonably prudent attorney); Alexander, 146 S.W.3d at 118-20 (holding that, to prove causation, client claiming attorneys negligently represented it in another case had to show that client would have achieved a more favorable result in the underlying lawsuit if the client had been represented by attorneys who were not negligent in handling the case); Cosgrove v. Grimes, 774 S.W.2d 662, 664-66 (Tex.1989) (same as Akin, Gump); Primis Corp. v. Milledge, No. 14-08-00753-CV, 2010 WL 2103936, at *3 (Tex.App.-Houston [14th Dist.] May 27, 2010, no pet.) (mem.op.) (stating that, to prove causation, client claiming attorneys negligently represented it in another case had to show that result in underlying case would have been more favorable to client if the client had been represented by a reasonably prudent attorney); MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31-32 (Tex.App.-Houston [14th Dist.] 1987, no writ) (holding that, to prove causation, client claiming attorney negligently prosecuted underlying suit in which client took nothing had to show that client would have been successful in the underlying suit if the client had been represented by attorneys who were not negligent); Greathouse v. McConnell, 982 S.W.2d 165, 172-73 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (stating that client claiming attorneys negligently represented it in another case had to show that client would have prevailed and been entitled to judgment in the underlying lawsuit if the client had been represented by an attorney who was not negligent).

We conclude that determining whether Harris would have recovered judgment against BASF if he had been represented by a reasonably prudent attorney was beyond the jury’s common understanding. See Alexander, 146 S.W.3d at 119-20 (holding expert testimony necessary for causation regarding outcome of underlying adversary proceeding); Prirrds Corp., 2010 WL 2103936, at *3 (holding expert testimony necessary for causation regarding outcome of underlying lawsuit); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221-22 (Tex.App.-Eastland 2005, no pet.) (holding expert testimony necessary for causation regarding the effect of a bankruptcy filing by client’s debt- or upon client’s claims against debtor). Therefore, expert testimony was required on this issue. See Alexander, 146 S.W.3d at 119-20; Primis Corp., 2010 WL 2103936, at *3; F.W. Indus., Inc., 198 S.W.3d at 221-22.

The only expert testimony proffered by Harris was Bittick’s testimony. At trial, Bittick testified in pertinent part as follows:

• Harris’s case against BASF “was going to be a good solid six-figure case.”
• Harris “was looking at 250 to 300,000 for back pay.”
• Back pay is reduced by the amount of benefits that Harris actually was receiving during the relevant time period in his post-BASF employment.
• Harris’s case had “lots of good facts” that might have warranted punitive damages.
• BASF was a multi-billion-dollar company at the time.
• BASF would have been able to satisfy any judgment that Bittick would have been able to obtain against BASF on behalf of Harris.
• Cooper breached his negligence duty by failing to comply with state and federal deadlines for Harris’s claims.
• Harris “was going to make a great witness because he presented well.”
• Harris was “very articulate, very credible, very believable about what he felt and what this did to him.”
• When asked to give “a ballpark figure total that you think this case would have been worth had [Harris] been able to bring it to a jury,” Bittick stated that “[t]his was going to be a minimum $300,000 case and then it was just going to go upwards from there because of the things that had happened to [Harris].”
• Bittick’s estimate of $300,000 was “the low side.”
• In addition, Harris would have been able to recover costs and his attorney’s fees.
• When asked “[w]hat amount, if any, do you think [Harris] would have been able to recover as exemplary damages?”, Bittick stated that “this was going to be in that million-dollar range as far as damages because how else are you going to tell BASF not to do something ... You have to smack them pretty hard, and I think this was that kind of case.”
• Bittick answered in the affirmative, when asked if “in your opinion and in your area of expertise as an employment lawyer, do you feel like this would have been a million-dollar plus case against BASF if it had been — if you had been able to properly bring that case?”

For there to be legally sufficient evidence of causation, the record must contain expert testimony that would enable reasonable and fair-minded people to find that Harris would have recovered a money judgment against BASF if he had been represented by a reasonably prudent attorney. Under the standard articulated by the Supreme Court of Texas, evidence of a reasonable settlement value is not sufficient. See Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 112; Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. of Pittsburgh, 20 S.W.3d 692, 703 & n. 5 (Tex.2000) (stating in judicial dicta that, even if underlying litigation settled, to show causation in negligence claim against attorneys, client has to prove that if the underlying case were tried and the client had been represented by reasonably prudent attorneys, the judgment rendered would have been more favorable than the settlement obtained by the allegedly negligent lawyers). Though Bittick offered expert opinions as to breach of duty, this testimony does not raise a fact issue as to causation. See Alexander, 146 S.W.3d at 119-20.

Bittick made statements that (1) Harris’s case “was going to be a good solid six-figure case,” (2) Harris “was looking at 250 to 300,000 for back pay,” (3) “a ballpark figure total” as to what the case would have been worth if Harris had “been able to bring it to a jury” is a minimum of $300,000, with this estimate being “the low side,” (4) Harris would have been able to recover exemplary damages against BASF in the million-dollar range, and (5) Harris’s case would have been “a million-dollar plus case against BASF” if Bittick had been able to properly bring it. These statements do not address (1) whether Harris’s claims would have survived a summary-judgment motion on the merits so that Harris could “bring [his case] to a jury,” if Harris’s claims had been properly prosecuted by a reasonably prudent attorney, or (2) whether Harris would have recovered a money judgment against BASF if his claims had been prosecuted by a reasonably prudent attorney. Bittick’s nonspecific and conclusory statements do not address the complicated factual and legal issues as to whether Harris would have been able to obtain a money judgment against BASF if he had been represented by a reasonably prudent attorney. We conclude that Bittick’s expert testimony would not enable reasonable and fair-minded people to find that Harris would have recovered a money judgment against BASF if he had been represented by a reasonably prudent attorney. Because the record does not contain any such expert testimony, the evidence is legally insufficient to support the jury’s causation finding as to Harris’s negligence claim against Cooper. See Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 112; Alexander, 146 S.W.3d at 119-20; Cosgrove, 774 S.W.2d at 664-66; F.W. Indus., Inc., 198 S.W.3d at 221-22; MND Drilling Corp., 866 S.W.2d at 31-32; see also Primis Coi-p., 2010 WL 2103936, at *3. Accordingly, we sustain Cooper’s first issue.

C. Impermissible Fracturing: No Alternative Recovery for Breach of Contract

In his fifth issue, Cooper asserts that the trial court erred in awarding Harris a recovery for breach of contract because Harris improperly fractured his negligence claim against Cooper into a breach-of-contract claim. See Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 189-90 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The rule against dividing or fracturing a negligence claim prevents legal-malpractice claimants from opportunistically transforming a claim that sounds only in negligence into other claims. See id. If the gist of a client’s complaint is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than some other claim. See id. If, however, the client’s complaint is more appropriately classified as another claim, for example, breach of fiduciary duty or breach of contract, then the client can assert a claim other than negligence. See id.

Harris sought the same damages in his breach-of-contract claim as he did in his negligence claim. In pleading breach of contract against Cooper, Harris alleged that Cooper “materially breached [his] contract with Plaintiff, which caused Plaintiffs injury, when [he] failed to file with the [Texas Commission on Human Rights] within the requisite 180-day period and failed to include in Plaintiffs lawsuit viable causes of action under federal law.” Harris further alleged that “Cooper’s failure to file with the [Texas Commission on Human Rights] within the requisitel80-day period completely foreclosed Plaintiffs right to pursue his causes of action under the Texas Labor Code because the Code requires a plaintiff to exhaust all administrative remedies, such as filing with the [Texas Commission on Human Rights], before filing such a lawsuit.”

The jury found that Cooper breached an agreement with Harris and found damages of $7,250, which was the amount that Harris paid Cooper at the beginning of the representation. Cooper testified that he did not return any of this amount to Harris when Cooper withdrew from the representation and that Cooper had earned this entire amount as attorney’s fees. It is undisputed that Cooper performed some legal services for Harris. The jury’s award — a refund of sorts — of the entire amount paid presumably was based on its finding that Cooper was negligent in representing Harris. We conclude that the gist of Harris’s breach-of-contract claim is that Cooper did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess. Therefore, we conclude that Harris improperly fractured his negligence claim against Cooper into a breach-of-contract claim. See id.; Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Because Harris may not recover separately for breach of contract, we sustain Cooper’s fifth issue.

III. CONCLUSION

Expert testimony was necessary at trial to prove that Harris would have recovered a money judgment against BASF if he had been represented by a reasonably prudent attorney. No expert testimony at trial raised a fact issue in this regard. Therefore, the evidence is legally insufficient to support the jury’s causation finding as to Harris’s negligence claim, and this claim thus fails as a matter of law. Harris’s breach-of-contract claim fails as a matter of law because he was not able to assert this claim separately from his negligence claim under the “fracturing” doctrine. Accordingly, we reverse the trial court’s judgment and render judgment that Harris take nothing.

      . The jury made its causation finding in its answer to question one.

      . The trial court also denied a second motion for judgment notwithstanding the verdict that Cooper filed after the trial court rendered judgment.

      . Harris argues that expert testimony was not required because the jury easily and readily could understand Cooper's failure to comply with applicable filing deadlines under state and federal law. But this argument addresses whether expert testimony was needed to prove that Cooper breached his negligence duty, an issue not before this court. Harris does not present argument explaining how it was within the jury’s common understanding to determine whether Harris would have recovered judgment against BASF if he had been represented by a reasonably prudent attorney.

      . As to Harris's ability to recover exemplary damages, even if Bittick's expert testimony had been sufficient as to the recovery of exemplary damages, the evidence is legally insufficient to support the jury’s finding in its answer to question four that BASF acted with malice, which, under the court’s charge, was required for Harris to recover based on exemplary damages that he allegedly would have recovered but for Cooper’s negligence.

      . Harris argues that Bittick’s expert testimony was sufficient to raise a fact issue as to causation because she explained to the jury how Cooper breached his negligence duty by failing to comply with applicable filing deadlines under state and federal law and how it was reasonably foreseeable to an attorney that such a failure would cause Harris's claims to be dismissed. In making this argument Harris overlooks the applicable legal standard, under which, even though Cooper's negligence resulted in the dismissal of Harris’s claims, there is still no causation under Harris's negligence claim unless Harris would have recovered a money judgment against BASF if he had been represented by a reasonably prudent attorney.

      . Having sustained Cooper’s first issue, we need not address Cooper's second, third, and fourth issues.


source: Caselaw Access Project

author: Justice LANG-MIERS.

license: Public Domain

text:
    In re Priscilla TREVINO, Relator.
    No. 05-10-01427-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 14, 2010.
    Gary L. Schappaugh, Gary L. Schap-paugh, P.C., Mesquite, TX, for Relator.
    Julio Trevino, Jr., Jenny Lee Womack, Palmer & Manuel, LLP, Dallas, for Real Party in Interest.
    Before Justices O’NEILL, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Relator filed this mandamus proceeding after the trial court entered an order granting real party in interest’s motion for new trial. We conclude the trial court abused its discretion in doing so and relator has no adequate remedy by appeal. See In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). We therefore conditionally grant the writ of mandamus.

Relator, the paternal aunt of the children in question, filed a suit affecting the parent-child relationship on August 2, 2010. The children’s mother is deceased, and the children’s father approved the decree appointing relator sole managing conservator. The decree was entered on August 6, 2010. On August 30, 2010, real party in interest, the maternal grandmother of the children, filed a motion for new trial. The trial court granted the motion for new trial on October 6, 2010.

Because real party in interest was not a party to the lawsuit, she could not file a motion for new trial after judgment had been entered. Gaines v. Baldwin, 629 S.W.2d 81, 83 (Tex.App.-Dallas 1981, no writ). Moreover, because the court’s plenary jurisdiction expired on September 6, 2010, it no longer had jurisdiction to set aside the decree and grant a new tidal on its own motion. Tex.R. Civ. P. 329b(f). The trial court’s October 6, 2010 order was thus an abuse of discretion for which relator does not have an adequate remedy by appeal. Accordingly, we conditionally grant relator’s petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its October 6, 2010, “Order Granting Motion for New Trial” and to enter an order denying the motion for new trial.


author: Justice CARTER. Chief Justice MORRISS.

text:
    Margaret DOAN, Appellant, v. CHRISTUS HEALTH ARK-LA-TEX, d/b/a Christus St. Michael Health System, Appellee.
    No. 06-10-00040-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 12, 2010.
    Decided Dec. 15, 2010.

      John F. Stroud III, Gregory A. Hoover, Texarkana, for appellant.
    Erin L. Leeser, Kevin W. Yankowsky, Fulbright & Jaworski LLP, Houston, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Because the statutorily-mandated expert report and curriculum vitae were not served within 120 days from filing of the original petition, the trial court dismissed this medical liability claim and granted an attorney’s fee. Appellant, Margaret Doan, raises a single issue contending portions of Section 74.351 of the Texas Civil Practice and Remedies Code violate her rights under the Open Courts provision of the Texas Constitution. Tex. Const, art. I, § 13. We affirm the trial court’s judgment.

I. Background Facts

After having her knee replaced, Doan was a rehabilitation patient at Christus Health Ark-La-Tex, d/b/a Christus St. Michael Health System (Christus). While under the care of Christus, she fell, injuring the knee that had been replaced. Doan hired attorney Paul Hoover to represent her, and on July 15, 2009, she filed a general healthcare liability suit, alleging that Christus’ negligence proximately caused her injuries. Because her claim is a healthcare liability claim, Doan was required to serve Christus with an expert report and the expert’s curriculum vitae within 120 days of filing suit, no later than November 12, 2009. See Tex. Civ. Prao. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2010).

On October 23, 2009, twenty days before the expiration of the 120-day time period, Hoover unexpectedly died. Hoover was a sole practitioner and, according to Rebecca Rich, his secretary and sole employee, he was “handling this case entirely on his own.” Doan failed to serve Christus with an expert report before the deadline passed.

Less than one month after Hoover’s death, on November 20, 2009, John Stroud, III, was appointed to assume control of Hoover’s law practice in order to protect the interests of Hoover’s clients. Until Stroud was appointed, only Doan had the authority to take any legal action on her behalf. It is undisputed in the record that Doan was unaware of the filing deadline and that she did not learn of Hoover’s death until the second week of December, well after the deadline had passed.

In January 2010, Christus filed a motion to dismiss pursuant to Section 74.351(b) because it had not been served with the required expert report and curriculum vitae. Tex. Civ. Prao. & Rem.Code Ann. § 74.351(b) (Vernon Supp.2010). The trial court granted the motion, dismissed the suit against Christus with prejudice, and awarded Christus $5,000.00 in attorney’s fees.

II. Standard of Review

We review a trial court’s ruling on a motion to dismiss under Section 74.351(b) for an abuse of discretion. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001). Pure questions of law, however, such as the constitutional challenge here, are reviewed de novo because the trial court has no discretion in determining what the law is or how to apply the law to the facts. In re Jorden, 249 S.W.3d 416, 424 (Tex.2008); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). If a statute operates unconstitutionally, the trial court has no discretion to apply it. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003) (finding failure to comply with expert report statute did not violate due process right and trial court did not abuse discretion in dismissing claim).

III. Analysis — Open Courts Provision of the Texas Constitution

Section 74.351(a) requires that an expert report and curriculum vitae “shall” be served on the opposing party within 120 days after the original petition is filed. Tex. Civ. PRác. & Rem.Code Ann. § 74.351(a). Failure to comply is fatal; the trial court has no discretion to grant an extension of time due to exigent circumstances. Tex. Civ. Prao. & Rem.Code Ann. § 74.351 (Vernon Supp.2010); see also Ogletree v. Matthews, 262 S.W.3d 316, 319-20 (Tex.2007) (if no report is served within 120 days, “the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions”).

Doan argues that Section 74.351 is unconstitutional as applied to her because it violates her rights under the Texas Open Courts provision by requiring the trial court to dismiss her suit even though service of the expert report was impossible. Christus contends that serving the report was not impossible because either Doan or her counsel could have filed and served the expei’t report during the 100-day period between the filing of suit and Hoover’s death.

When reviewing the constitutionality of a statute under an Open Courts challenge, we begin with the presumption that the statute is constitutional. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); see Gutiemz, 111 S.W.3d at 66. The party challenging the constitutionality of a statute must demonstrate that it fails to meet constitutional requirements. Gutierrez, 111 S.W.3d at 66.

Article I, Section 13 of the Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const, art. I, § 13. This provision, commonly referred to as the “Open Courts” provision, is premised upon the rationale that the Legislature lacks the power to make a remedy by due course of law contingent on an impossible condition. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990); Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985). It acts as an additional due process guarantee granted in the Texas Constitution, prohibiting legislative bodies from withdrawing all legal remedies from anyone having a well-defined common law cause of action. Sax, 648 S.W.2d at 664-65. The Open Courts provision guarantees “the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress.” Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex.1994) (quoting Tex. Ass’n of Business v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993)). Therefore, to establish an as applied Open Courts violation, Doan must show: (1) that she has a cognizable common law cause of action that is being restricted and (2) that under the circumstances of this case, the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex.2007); Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

The stated purpose of Section 74.351’s expert report requirement is “to stem frivolous suits against health care providers.” Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex.2008); Palacios, 46 S.W.3d at 877; Perry v. Stanley, 83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Here, the parties do not dispute that Doan’s medical negligence claim is a well-recognized common law cause of action and that Section 74.351 restricts said cause of action. See, e.g., Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311 (1935). Therefore, the issue in this case is whether the restriction is unreasonable or arbitrary when balanced against the purpose and basis of Section 74.351.

When faced with other facial and as applied challenges, Texas courts, including this one, have consistently held that Section 74.351 does not violate the Open Courts provision of the Texas Constitution. See, e.g., Bankhead v. Spence, 314 S.W.3d 464 (Tex.App.-Waeo 2010, pet. denied) (no Open Courts violation when pro se inmate plaintiff was not entitled to appointed counsel to help obtain expert report); Offenbach v. Stockton, 285 S.W.3d 517 (Tex.App.-Dallas 2009, pet. granted) (no Open Courts violation because service was possible even though plaintiff filed an early and timely request for substituted service and trial court did not grant until after 120-day deadline); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at **8-9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (no Open Courts violation where claimant served expert report, but trial court found report inadequate and refused extension to correct deficiencies); Fields v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006, no pet.) (mem.op.) (no Open Courts violation where claim dismissed when claimant served expert report late); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.App.-Austin 2006, no pet.) (no Open Courts violation when plaintiff inadvertently failed to serve expert report); Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex.App.-Texarkana 2006, no pet.) (dismissal under Section 74.351 did not violate due process when plaintiff failed to timely serve expert report because his fax machine malfunctioned on day of deadline); Perry, 83 S.W.3d 819 (no Open Courts violation even though plaintiff could not afford an expert); Gill, 39 S.W.3d 717 (even though pro se inmate plaintiff could not afford an expert, requirement that he serve an expert report did not violate Open Courts provision).

This case involves exceedingly rare circumstances, and there is only one case that is factually similar. In Palosi v. Kretsinger, an expert report was not filed due to the unexpected death of the plaintiffs’ attorney after the filing of suit, but prior to the 120-day deadline. No. 04-08-00007-CV, 2009 WL 331894 (Tex.App.-San Auto-nio Feb. 11, 2009, no pet.) (mem.op.). Because of that failure, the trial court dismissed the plaintiffs’ cause of action with prejudice. Id. On appeal, the plaintiffs argued that portions of Section 74.351 violated the Open Courts provision. The court held that the Open Courts provision did not apply because the plaintiffs’ claim failed the first prong of the Open Courts test because a survivorship action is not a common law cause of action. Id. at **2-3. However, Palosi does not provide any guidance in this case because, unlike the plaintiffs in Palosi, Doan’s cause of action is well-recognized in common law.

The common principle underlying the Texas Supreme Court’s decisions construing the Open Courts provision is that the Legislature has no power to make a remedy contingent upon an impossible condition. Tinkle v. Henderson, 730 S.W.2d 163, 167 (Tex.App.-Tyler 1987, writ ref'd) (citing Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex.1984)).

In this case, at the time of Hoover’s death, the report had not been filed or served; however, Doan was still within the 120-day period granted by Section 74.351. Hoover was a sole practitioner who was working alone on this case, and after his death, only Doan had the legal authority to file and serve the report. It is undisputed that Doan was unaware of Hoover’s death, and there is nothing in the record to indicate that Doan should have known of his death. Therefore, Doan had no reason to act on her own behalf or to obtain other counsel.

Requiring Doan to file and serve the report during the 100 days between filing suit and Hoover’s death would give Doan less than the 120 days granted by Section 74.351 and would essentially require Doan’s counsel to file and serve the report as soon as possible “just in case” he should die or become incapacitated at an inconvenient time. See Tex. Civ. PraC. & Rem. Code ANn. § 74.351(a). But it was not impossible to file the report within the 120 days allowed by the statute — it could have been filed during the 100 days prior to Hoover’s death. Application of the literal terms of the statute denies Doan her day in court, not because of inadvertence, or anyone’s negligence or mistake, or the last-minute failure of a fax machine, or because it has been found as frivolous, but rather because her solo-practitioner attorney unexpectedly died three weeks prior to the deadline, and she had no reason to know of his death.

We seriously doubt that the Legislature envisioned that this rule would summarily deny this claim — the purpose of the statute was to deter frivolous claims. But, in this matter, the Legislature removed all discretion from the judicial system, which inevitably leads to harsh and unintended results. Judges in Texas are allowed to exercise judgment and discretion in cases involving life and death, but in the filing of an expert report, the law prohibits it. Since we cannot accurately state that it was impossible to file this report within the 120 days from the date the original petition was filed, we cannot hold that the Open Courts provision of the constitution was violated;- we are compelled by the legislative enactment to affirm the judgment.

We affirm the judgment of the trial court.

Concurring Opinion by

Chief Justice MORRISS.

I concur with the majority opinion, though there is authority the Texas Supreme Court could employ to give Doan her day in court.

The principal authority for the proposition that the Open Courts provision is violated when a legislative enactment makes a remedy contingent on an impossible condition is Nelson v. Krusen, 678 S.W.2d 918, 921-24 (Tex.1984). In reviewing the precedents developing the rule, Nelson included some fact patterns that, to be precise, did not present the truly impossible, but merely the practically impossible or effectively impossible, given the particular situation of the plaintiff whose cause of action hung in the balance — analyzing each fact situation from the point of view of the plaintiff.

One such case was Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (1890). That case ruled that requiring a supersedeas bond, as a condition to appeal, from one ■without the means to purchase one was a practical impossibility and, thus, an unconstitutional statute. Id. at 305. It should ■be noted that bonds are posted regularly, often by people without the personal means to purchase them, by making arrangements with family or friends. Once her attorney died, Doan had no ability to personally serve an expert report or to get anyone else to give it, because of her lack of knowledge of the death of her attorney. Therefore, to her, once her attorney died, it was practically impossible to serve an expert report on the defense.

Another case discussed by Nelson was Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932). Hanks invalidated a city ordinance that required twenty-four-hour advance notice of a street defect before an accident caused by that defect was actionable. The court reasoned that it imposed “an unreasonable condition precedent to recovery” to require a notice from someone who did not know of the information to be noticed, thus declaring the notice provision unconstitutional. Id. at 948. Similarly, Doan did not know of the death of her attorney, so requiring her, the only person to have authority to take any action on her behalf in the lawsuit, to perform a function she. had no reason to know she must perform, can be argued “to impose' an unreasonable condition precedent to recovery ... beyond the legislative power.” See id.

Nelson, thus, reasoned that the Open Courts provision is violated by requiring one to take an action he or she did not know was required and should not reasonably have known was required. Nelson, 678 S.W.2d at 922. Nelson considered how onerous the provision was when it questioned whether the Nelsons’ burden was “any less onerous than requiring a party to sue where there are no courts? See H. Runge & Co. v. Wyatt, 25 Tex. (Supp.) 291 (I860).” Nelson also considered the perceived arbitrariness of the statutory condition, citing Dillingham. Citing the Hanks case, Nelson also considered the lack of knowledge of the plaintiff, finding there that the lack of knowledge set up an “impossible requirement.”

Here, like the situation in Nelson, this statutory provision would require Doan, once her attorney died, to do the practically impossible — to serve an expert report within approximately the last three weeks before the statutory deadline, although she did not know and had no reason to know of her attorney’s death. Given the statutorily decreed 120-day period for serving an expert report and her attorney’s death with about twenty days left in that period, it is onerous and arbitrary to require Doan to have served her expert report thereafter, notwithstanding her lack of knowledge about the situation and notwithstanding the fact that she was the only person in the world who had the authority to take the action before the deadline. Thus, as applied to Doan, an unknowingly unrepresented litigant, the Open Courts provision ought to provide some relief. The contrary result “is rightly described as ‘shocking’ and is so absurd and so unjust that it ought not be possible.” Nelson, 678 S.W.2d at 923 (citing Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972); Gaddis v. Smith, 417 S.W.2d 577, 580, 581 (Tex.1967)).

But, here, an expert report could have been served in the approximately 100 days between the time Doan’s attorney filed suit and the day he died. The statutory scheme did not set up a practical impossibility, when the full filing period is considered. For that reason, I concur in the result set forth in the majority opinion.

      . On appeal, Christus contends that the affidavit should not be considered for any purpose because it was not timely submitted and was hearsay. Christus acknowledges that even though it objected to the affidavit at trial, it failed to secure a ruling on its objection. However, citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex.2003), and Frazier v. Yu, 987 S.W.2d 607, 609 (Tex.App.-Fort Worth 1999, pet. denied), Christus argues that the trial court implicitly sustained its objection. In Z.L.T., a prisoner moved for a bench warrant to attend a hearing, but the trial court held the hearing without the prisoner’s presence and without ruling on the motion. 124 S.W.3d at 164. The Supreme Court of Texas held that by holding the hearing without issuing the warrant, it was clear that the trial court implicitly denied the prisoner's request. In this case, the trial court’s actions did not require overruling Christus’ objection.
      In Frazier, a movant objected to affidavits on the grounds that they were incompetent summary judgment evidence and, without ruling on the objection, the trial court entered an order for summary judgment. 987 S.W.2d at 610. The trial court noted that it had reviewed "all competent summary judgment evidence,” and the court of appeals held that this language "created an inference that the court implicitly sustained [the] objections.” 987 S.W.2d at 610. However, here, there is no such language from which to infer the trial court's ruling. Therefore, Christus failed to obtain a ruling on its objection and this issue was not preserved for our review. See Tex. R.App. P. 33.1.

      . Under Section 74.351(a), the parties may agree in writing to an extension of time, and subsection (c) provides for a thirty-day extension in the event a party files a defective expert report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (c).

      . Christus also argues that Doan could have served the report prior to filing suit. However, Christus fails to cite any authority in support of this argument and we are aware of none.

      . Despite the relatively swift appointment of Stroud to take over Hoover's law practice, the appointment did not occur until after the statutory deadline had passed.


author: Justice MORRIS.

text:
    Vernon SHAW, Individually and as Representative of the Estate of Debra Kay Shaw, Patricia Alderman and Joyce Shaw, Appellants, v. TRINITY HIGHWAY PRODUCTS, LLC, Appellee.
    No. 05-09-00561-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 20, 2010.

      Blake Bailey, Marisa M. Schouten, Martin Walker P.C., Tyler, TX, for Appellants.
    Russell Clay Brown, Law Offices of Russell C. Brown, P.C., Henderson, TX, Heather Bailey New, Haynes & Boone, L.L.P., Dallas, TX, for Appellee.
    Before Justices MORRIS, MARTIN RICHTER, and LANG-MIERS.
   OPINION

Opinion By

Justice MORRIS.

In this products liability case, Vernon Shaw, Individually and as Representative of the Estate of Debra Kay Shaw, Patricia Alderman, and Joyce Shaw challenge the trial court’s take-nothing summary judgment on their design defect, marketing defect, and negligence claims against Trinity Highway Products, LLC. In two issues, appellants, who we refer to collectively as the Shaws, generally assert that the trial court erred in granting Trinity’s traditional and no-evidence motions for summary judgment because Trinity did not conclusively establish the grounds set forth in its traditional motion and the summary judgment evidence raised fact issues that precluded the granting of either motion. In an additional issue, the Shaws contend the trial court abused its discretion in striking a document they submitted as summary judgment evidence. For the reasons that follow, we affirm the trial court’s judgment.

I.

This case arises from a one-vehicle collision with a highway guardrail and the end cap on it known as the ET-2000. The end cap was designed to absorb and dissipate the energy of a vehicle impacting the end of the guardrail by extruding the guardrail’s w-beam through a slot in the end cap. According to the Shaws’ accident reconstruction expert, Mike C. Andrews, Debra Shaw was driving her Nissan pickup truck at around 65 mph on Interstate Highway 20 near Van, Texas, when it drifted off the road onto the shoulder and struck the lower left corner of the end cap with the front passenger bumper and frame rail at a shallow angle of no more than a few degrees. The impact pushed the end cap back along the guardrail extruding about thirty inches of the w-beam. At this point, the end cap stopped and rotated counter-clockwise about 180 degrees before it and the guardrail penetrated the truck’s cabin. The end cap became lodged in the cabin, while the guardrail passed between the truck’s two seats before striking and penetrating the rear wall of the truck’s cabin. Shaw died from injuries she received in the crash. Patricia Alderman, Shaw’s sister and passenger, sustained injuries but survived.

The Shaws filed this lawsuit against Trinity, the manufacturer and seller of the end cap, along with several other defendants. Among other things, the Shaws claimed Trinity was liable under strict liability and negligence theories because the end cap was defectively designed. The Shaws also alleged a marketing defect claim. Trinity filed a no-evidence summary judgment motion challenging each element of the various causes of action asserted against it. It also filed a separate traditional motion for summary judgment arguing, among other grounds, that the Shaws’ claims were barred by federal preemption and section 82.008 of the Texas Civil Practice and Remedies Code. The trial court granted both of Trinity’s motions and ordered the Shaws take nothing by their claims against Trinity. The Shaws filed this appeal.

II.

Before analyzing the merits of the Shaws’ issues, we first address Trinity’s assertion that the Shaws have not preserved them appellate arguments with respect to Trinity’s no-evidence summary judgment motion. Trinity contends the Shaws’ summary judgment response in the trial court did not specifically discuss or analyze their summary judgment evidence with respect to each element Trinity challenged. It also asserts that most of the summary judgment evidence upon which the Shaws rely to create fact issues was not attached to their response but was contained in their previously filed response to a co-defendant’s summary judgment motion. Trinity argues the Shaws’ default in the trial court precludes them from challenging its no-evidence motion on appeal and we must therefore affirm the trial court’s summary judgment on this basis.

Once a movant files a proper no-evidence summary judgment motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 599 (Tex.2004). Here, the Shaws filed a timely response to Trinity’s no-evidence summary judgment motion discussing the facts giving rise to their causes of action and arguing that they presented sufficient evidence to raise a genuine issue of material fact with respect to each element challenged by Trinity. The response specifically referred to and incorporated by reference exhibits “A” through “H,” which were identified as photographs, depositions, and affidavits. Although summary judgment exhibits “A” through “G” were not physically attached to the Shaws’ response, our record contains a file-stamped copy of the cover letter accompanying the response, a copy of which was sent to Trinity’s counsel, that states the following: “We have attached Exhibit “H” to this response. Exhibits “A” through “G” are the same exhibits that were attached to Plaintiffs Response to Madden’s Motion for Summary Judgment filed on April 7, 2009 and should be incorporated for all purposes.” There is no indication in the record that Trinity objected to this procedure.

Evidence that may be considered in determining a summary judgment motion includes “deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response” as well as “affidavits ... on file at the time of the hearing.” Tex.R. Civ. P. 166a(c). Although exhibits “A” through “G” were not physically attached to their response, the Shaws’ cover letter and response referenced and incorporated these exhibits as summary judgment evidence and directed the trial court to where it could locate them in the court’s file. Based on the record before us, we conclude the Shaws sufficiently preserved their arguments with respect to Trinity’s no-evidence summary judgment motion. Accordingly, we reject Trinity’s waiver argument as a basis for affirming the court’s judgment.

III.

We begin our discussion of the merits of this appeal by reviewing the propriety of the trial court’s judgment with respect to Trinity’s traditional summary judgment motion. The standards for reviewing a traditional motion for summary judgment are well-established: (1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) evidence favorable to the non-movant will be taken as true for purposes of determining the existence of a genuine issue of material fact; and (3) we indulge every reasonable inference in favor of the nonmovant and resolve any doubts in their favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Where, as here, the trial court does not specify the grounds for its summary judgment, the party challenging the order must show that each of the grounds is insufficient to support the judgment. See McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 468 (Tex.App.Dallas 2009, pet. denied). We must affirm the summary judgment if any of the grounds presented to the trial court are meritorious. Id.

Among other grounds, Trinity argued that all of the Shaws’ product liability claims were barred by subsections 82.008(a) and (c) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 82.008(a), (c) (West 2005). Each of these subsections create a “rebuttable presumption” for defendant manufacturers and sellers. Under subsection (a), no liability exists for a product’s formulation, labeling, or design when the product’s formula, labeling, or design complied with mandatory safety standards or regulations adopted and promulgated by the federal government or a federal agency that were applicable to the product at the time of manufacture and that governed the product risk that allegedly caused harm. See Tex. Civ. Prac. & Rem.Code Ann. § 82.008(a). Under subsection (c), no liability exists if the product was subject to and complied with the federal government’s or a federal agency’s requirements and procedures for pre-marketing licensing or approval and was approved for sale by the government or agency after full consideration of the product’s risks and benefits. See Tex. Civ. Prac. & Rem.Code Ann. § 82.008(c).

The Shaws argue that Trinity failed to meet its burden of proof with respect to section 82.008 because it “did not provide the Court with written federal standards such as those promulgated by the Consumer Product Safety Commission” and no independent agency was involved in the development of the safety requirements, testing, or certification of the ET-2000. By these arguments, the Shaws appear to challenge the legal sufficiency of Trinity’s evidence to support the summary judgment.

Deposition testimony from Mary Meyland and Michael Schneider, representatives of the Texas Department of Transportation, stated that in order for a guardrail end cap to be placed on a state highway, the federal government had to approve the end cap. Both acknowledged the standards used by the federal government for approval were those found in the National Cooperative Highway Research Program (NCHRP) Report 350 and the NCHRP 230. The representatives further testified that the ET family of products had met both 230 and 350 report standards. Additionally, the summary judgment record contained two letters from the Federal Highway Administration, U.S. Department of Transportation, noting that the ET-2000 end cap satisfied the appropriate NCHRP standards for barrier terminals and, based on those results, the ET-2000 end cap was permitted to be used on the National Highway System when requested by a state highway agency. We conclude this evidence is sufficient to establish Trinity’s entitlement to summary judgment on the Shaws’ negligent design and design defect causes of action pursuant to section 82.008(a). To the extent the Shaws assert that section 82.008 requires the standards or testing protocol to be developed or carried out by the federal government or an independent agency, the statute itself does not support such an assertion. All that section 82.008 requires is that the mandatory safety standards or regulations be adopted and promulgated by the federal government or agency, not that they be developed or that testing be carried out by the federal government or agency. Tex. Civ. Prac. & Rem. Code Ann. § 82.008(a).

The Shaws also contend the trial court erred in granting summary judgment based on subsection 82.008(a) because they provided summary judgment evidence demonstrating the mandatory safety standards or regulations applied to the ET-2000 were inadequate. Subsection 82.008(b)(1) allows a plaintiff to rebut the presumption created by subsection (a) by establishing the mandatory federal safety standards applicable to the product were inadequate to protect the public from unreasonable risks of injury or damage. Tex. Civ. Prac. & Rem.Code Ann. § 82.008(b)(1). The Shaws, however, did not make this argument in their written response to Trinity’s traditional motion for summary judgment. Accordingly, this argument cannot be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677-8 (Tex.1979).

The Shaws further argue that section 82.008 has no applicability to their marketing defect claim because there is no evidence of any mandatory safety standards or regulations adopted or promulgated by the federal government with respect to labeling of the end cap. We need not reach this issue, however, because we conclude Trinity was entitled to summary judgment on the Shaws’ marketing defect claim on other grounds. Trinity also moved for summary judgment on this claim asserting the Shaws had no evidence that the alleged marketing defect was the producing cause of their injuries. A marketing defect occurs when a defendant knows or should know of a potential risk of harm presented by the nature of the product but markets it without adequately warning of the danger or providing instructions for safe use. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997). Among the various elements needed to prevail on a marketing defect claim, a plaintiff must establish that the failure to warn or instruct constituted a causative nexus in the product user’s injury. See USX Corp. v. Salinas, 818 S.W.2d 473, 482-83 (Tex.App.-San Antonio 1991, writ denied).

On appeal, the Shaws argue, “[h]ad Trinity provided proper warnings, guidelines and instruction as to the installation and inspection of the guardrail, this tragic and horrible accident would not have happened.” In support of their position, the Shaws cite a defense expert’s opinion that previously sustained damage compromised the structural integrity of the guardrail and Andrew’s opinion that “[i]f the guardrail system is so sensitive to the installation configuration (alignment, etc.) that it can cause the system to fail in a near ‘perfect’ scenario, that [sic] it seems that the design may be too sensitive to be reliable.” The Shaws have provided no evidence of what the “proper warnings, guidelines and instructions” should have been, nor do they present any evidence that a warning about the guardrail system’s sensitivity to the installation configuration would have prevented the harm at issue in this lawsuit. In fact, the Shaws do not argue or direct us to evidence in the record suggesting that the guardrail was improperly installed, maintained, or inspected. Under the circumstances, the Shaws’ summary judgment proof is no more than a scintilla of evidence that a marketing defect was the producing cause of the Shaws’ damages. Accordingly, we conclude the trial court did not err in granting a take-nothing summary judgment on the Shaws’ marketing defect claim.

In their last issue, the Shaws argue that the trial court erred in striking from their summary judgment evidence a printout purportedly from Trinity’s website. Their entire argument under this issue consists of four sentences without reference to any legal authority. The Shaws’ failure to adequately brief this issue results in the waiver of this complaint on appeal. See Tex.R.App. P. 38.1(h); Howell v. T S Commc’ns, Inc., 130 S.W.3d 515, 518 (Tex.App.-Dallas 2004, no pet.).

Having concluded the trial court’s summary judgment is supportable on the grounds noted above, we need not address the Shaws’ challenges to Trinity’s remaining grounds for summary judgment. We affirm the trial court’s judgment.

      . The trial court granted summary judgment on additional causes of action that the Shaws asserted against Trinity. The Shaws' appeal, however, is limited to those causes of action stated above.

      . These reports consisted of a series of specified crash tests.

      . In support of their position that Trinity's evidence was legally insufficient to support summary judgment under section 82.008, the Shaws rely primarily on BIC Pen Corp. v. Carter, 251 S.W.3d 500 (Tex.2008). In BIC Pen, however, the supreme court concluded Carter's design defect claim was preempted by federal law. Id. at 511. The opinion was not decided on, nor did it mention, the rebut-table presumptions created by section 82.008.

      . In their reply brief, the Shaws contend that during the hearing on Trinity's traditional motion for summary judgment, the Shaws’ counsel specifically raised their arguments regarding 82.008 and Trinity did not object. The Shaws present no authority for their position that such a presentation preserves their argument for appeal in absence of a written response presenting the issue. In fact, the Shaws' contention directly contradicts the plain language of our summary judgment rules requiring the argument be presented in the nonmovant’s written response. See Tex.R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 677.

      . Although Trinity's expert witness attributes the end cap's failure to preexisting guardrail damage downstream from initial impact, there is no evidence that this damage would have been discovered before the accident had the desired warnings or instructions been given.


text:
    ATLAS GULF-COAST, INC., d/b/a Atlas Foundation Repair Company, Appellant, v. Robert E. STANFORD and Dorothy Stanford, Appellees.
    No. 14-10-00493-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 2010.

      David Vandiver Wilson, Ruth Ellen Filler, Houston, for appellant.
    Robert W. Loree, Edwin Todd Lipscomb, San Antonio, for appellees.
    Panel consists of Chief Justice HEDGES, Justice YATES, and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal, sitting by assignment.

   OPINION

MARGARET GARNER MIRABAL, Senior Justice.

Appellant Atlas Gulf-Coast, Inc., d/b/a Atlas Foundation Repair Company brings this interlocutory appeal from the trial court’s order denying its motion to compel arbitration filed against appellees Robert E. Stanford and Dorothy Stanford. We affirm.

The Stanfords hired Atlas to repair the foundation on their home for a total price of $16,910. Unsatisfied with the work, the Stanfords brought suit against Atlas, alleging breach of contract. The agreement between the parties contains the following clause:

Notwithstanding, any provision in this agreement to the contrary, any dispute, controversy, or lawsuit between any of the parties to this Agreement about any matter arising out of this Agreement, shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association (“AAA”) pursuant to the Texas General Arbitration Act and in accordance with this arbitration agreement and the com-mereial arbitration rules of the AAA. To the extent that any inconsistency exists between this arbitration agreement and such statutes by any court having jurisdiction and in accordance with the practice of such court (sic).

The parties initially agreed to resolve the dispute in arbitration and the trial court entered an agreed order to arbitrate, but the Stanfords later withdrew their consent after hiring a new attorney. The Stanfords asked the trial court to withdraw the agreed order to arbitrate, and Atlas opposed the request. The trial court granted the Stanfords’ request to withdraw the arbitration order, and Atlas brought an interlocutory appeal, which we dismissed for lack of jurisdiction because Atlas had never filed a motion to compel arbitration. See Atlas Gulf-Coast, Inc. v. Stanford, 299 S.W.3d 356, 359-60 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Atlas then filed a motion to compel arbitration under the Texas General Arbitration Act (TGAA) and the Federal Arbitration Act (FAA) in the trial court, which the trial court denied, and this interlocutory appeal followed. In its sole issue, Atlas argues the trial court erred in denying its motion to compel arbitration.

Because statutes allowing interlocutory appeals derogate the general rule that only final judgments are appealable, we must strictly construe such statutes. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998); Atlas, 299 S.W.3d at 359. We have jurisdiction to review interlocutory orders only if a statute explicitly provides for jurisdiction. Atlas, 299 S.W.3d at 359.

The TGAA provides procedures for enforcement of arbitration agreements and authorizes an interlocutory appeal to challenge an order denying a motion to compel arbitration under the Act. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 171.001, 171.098 (West Supp.2005). The TGAA requires that an agreement to provide services to an individual where the total consideration to be furnished is not more than $50,000 must be in writing and signed “by each party and each party’s attorney” for the arbitration agreement to be enforceable. See id. § 171.002(a)(2), (b)(1)-(2); In re Olshan Found. Repair Co., 328 S.W.3d 883, 888, 891 (Tex.2010) (orig. proceeding). In this case, it is undisputed that the total consideration furnished was under $50,000 and that no attorney for the Stanfords signed the arbitration agreement at the time it was executed. Therefore, the arbitration agreement is unenforceable, and the trial court did not err in denying the motion to compel arbitration.

Atlas emphasizes that the Stanfords’ attorney signed both the agreed motion to refer to arbitration and the actual order referring the case to arbitration. Neither of these signatures is to the original arbitration agreement itself, as is required by the plain language of section 171.002, and Atlas cites no authority indicating that a post-dispute signature can satisfy the requirement of a pre-agreement signature. Further, assuming that either or both of these other two documents can themselves be construed as independent, arbitration orders, they would be governed by chapter 154 of the Civil Practices and Remedies Code regarding court-ordered referrals of pending litigation, see Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 220 (Tex.App.-Houston [1st Dist.] 1996, no writ), and this chapter provides no authority for interlocutory appeals.

Atlas complains that enforcing the signature requirement would undermine the Texas policy encouraging arbitration because it would “require all parties who enter into any contract that contains an arbitration clause enforceable under the T[G]AA to engage counsel to sign the contract at issue — even if there is no other reason for the contracting parties to engage counsel at that point.” We disagree. The provision at issue plainly applies only to agreements to provide “property, services, money, or credit in which the total consideration to be furnished by the individual is not more than $50,000.” Tex. Civ. Prac. & Rem.Code Ann. § 171.002(a)(2). The TGAA exempted such agreements, as was the legislature’s prerogative, and we see no reason why enforcing this exemption undermines the general policy favoring arbitration.

Finally, Atlas argues that the statement in the agreed motion to refer to arbitration that “The contract at issue between the parties contains a binding arbitration clause that the parties now agree controls any dispute” between them constitutes a binding judicial admission that the arbitration agreement is valid and that arbitration is proper. Judicial admissions must be clear and unequivocal and contained in a live pleading. See Horizon,/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000). The statement in the agreed motion does not unequivocally surrender all defenses to the enforceability of the arbitration agreement. Further, the Stanfords’ motion to withdraw the agreed order to arbitrate constitutes abandonment of the agreed motion to arbitrate, and judicial admissions cannot be based on an abandoned pleading. See Horizon, 34 S.W.3d at 905; Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995). We reject Atlas’s argument that the statement in the agreed motion to arbitrate saves the arbitration agreement from unenforceability for failing to meet the TGAA signature requirement.

We overrule Atlas’s issue and affirm the trial court’s order denying Atlas’s motion to compel arbitration.

      . The direct appeal currently under consideration was made pursuant only to the TGAA and raises no arguments regarding the FAA. Atlas also filed a petition for a writ of mandamus, arguing that denying its motion was improper under the FAA. This court denied the petition. See In re Atlas Gulf-Coast, Inc. d/b/a/ Atlas Found. Repair Co., No. 14-10-00660-CV, 2010 WL 2968339 (Tex.App.Houston [14th Dist.] July 29, 2010, orig. proceeding). Further, we held in the first appeal in this matter that based on the language in the arbitration agreement, the FAA does not apply in this case, Atlas, 299 S.W.3d at 358, and the Texas Supreme Court has issued an opinion since then adopting this analysis. See In re Olshan Found. Repair Co., 328 S.W.3d 883, 890, 898 (Tex.2010) (orig. proceeding).


author: Justice BENAVIDES.

text:
    In the GUARDIANSHIP OF Melissa K. MARBURGER, an Incapacitated Person.
    No. 13-09-00705-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 30, 2010.

      E.G. Hall, Port Isabel, for Appellant.
    James A. Vaught, McCullar Vaught, PC, Austin, for Appellee.
    Before Justices YÁÑEZ, GARZA, and BENAVIDES.
   OPINION

Opinion by

Justice BENAVIDES.

Appellant, Michael J. Seidelhuber, as guardian of the person of Melissa Marbur-ger, appeals the trial court’s: (1) refusal to rule on his motion to permit him to resign as guardian; (2) appointment of appellee, Janet McCullar Vavra, as attorney ad li-tem; and (3) compelling Michael and the ward’s mother to pay Vavra’s attorney fees and expenses. We reverse and remand.

I. BACKGROUND

Melissa Marburger is an adult incapacitated woman. Her mother is Wanda Kelly Marburger Seidelhuber (“Kelly”). Her biological father is Eddie Marburger, Jr. (“Eddie”). Her stepfather is appellant, Michael J. Seidelhuber (“Michael”).

In 2006, Michael was appointed as the guardian of Melissa’s person. No guardian of the estate of Melissa has ever been appointed. In May 2007, Michael and Kelly filed suit in the 398th District Court of Hidalgo County against Eddie seeking an increase in monthly support payments for Melissa. Thereafter, in June 2008, Michael and Kelly filed for divorce. On December 5, 2008, Michael filed a motion seeking to resign as Melissa’s guardian. He alleged:

Guardian would show unto the Court that he is unable to carry out his duties as guardian of the person of Melissa K. Marburger[,] and it would be in her best interest if her mother, Kelly Marburger Seidelhuber[,] were appointed as successor guardian.
Guardian would show unto the Court that[,] at the time he was appointed as Guardian[,] he and Melissa’s mother, Kelly, in effect, shared in the care, supervision and watchfulness of Melissa; however, a divorce action has been filed and is pending ... in which allegations have been made, issues formed, and orders entered by the Court which make it impossible and impractical for Mr. and Mrs. Seidelhuber to be in close proximity [to] one another, or to share the care of Melissa as they did before becoming estranged, and it would be to the best interest of Melissa if her mother were appointed as guardian of her person.
Guardian resides in Marble Falls, Texas and now travels extensively in his profession as a metal fabrication consultant and cannot be in the close contact with the ward that is required because of her mental condition and needs.

Michael attached a sworn report showing Melissa’s condition. See Tex. Prob.Code Ann. § 760(a) (Vernon Supp.2010).

On December 10, 2008, Kelly filed an objection to Michael’s resignation as guardian. She alleged:

There is currently a cause of action pending in the 398th District Court filed by the Guardian on behalf of the ward. Said suit [is] for the recovery of child support from the biological father of the ward. Said case [has] been pending since May 27, 2007. Substantial resources of both the Guardian, the ward and her mother have been spent for the prosecution of this matter. It would be a great financial burden on the ward and her mother, Kelly Seidelhuberf,] to allow the Guardian and the attorney that has been retained to withdraw and have to hire another attorney at this late juncture of the lawsuit. It also appears that the Guardian is close to resolving this matter on behalf of the ward. For these reasons, the Respondent objects to the resignation of Michael Seidelhuber as the guardian of Melissa K. Marburger.

The trial court held a hearing on Michael’s motion to resign on February 11, 2009. Michael’s attorney appeared, as did Kelly’s attorney, but Michael was not present. Kelly objected to the hearing based on Michael’s absence. Kelly argued that Michael had retained an attorney to prosecute the support suit against Eddie and that the attorney had asked to withdraw if Michael was no longer Melissa’s guardian. Kelly further argued that, in the divorce proceeding, Michael had been ordered to pay for Melissa’s caretaker out of the community estate, and Michael was seeking to resign as Melissa’s guardian to escape liability for her support in the divorce proceeding. Kelly testified at the hearing, stating that she feared that Michael would withdraw as guardian and drop the support suit against Eddie, leaving Melissa with no means of support. Kelly stated that she would accept an appointment as Melissa’s guardian, but not until it would not “sabotage” the support suit against Eddie. The trial court took the matter under advisement, noting its belief that “the strongest way to prevent the dismissal or nonsuit [of the support suit against Eddie] is to have a successor appointed.”

On February 26, 2009, the trial court, sua sponte, issued its own “Motion to Consider Whether to Appoint a Guardian Ad Litem (Pursuant to Section 645 of the Texas Probate Code).” The “motion” stated that the court “may appoint a guardian ad litem to represent the interests of an incapacitated person in a guardianship proceeding,” and by separate order, the court set a hearing for March 11, 2009. Kelly filed a response stating she would be out of town that day, and apparently, the hearing was passed.

On May 14, 2009, the trial court issued an order appointing Vavra, an attorney from Austin, Texas, as attorney ad litem for Melissa, apparently without prior notice to Michael or Kelly. The order stated that it was made pursuant to section 34A of the Texas Probate Code and required Vavra to look into the following matters:

1. Review the Motion to Resign filed in this matter and formulate a strategy as to whether it should be contested by the incapacitated ward.
2. Review the status of the pending Motion for Child Support and formulate a strategy as to whether specific performance should be pursued on the pending child support. Further, can this guardianship be transferred to the 398th District Court where the suit affecting the Parent Child Relationship is currently pending (Cause No. F-3259-07-I, In the Interest of Melissa Marburger, an Adult Disabled Child.)
3. Review the pending divorce proceedings in Cameron County and formulate a strategy as to whether the ward should intervene in that divorce proceeding. (Cause No. 2008-06-3241-H, In the Matter of the Marriage of Michael Seidelhuber and Kelly Seidelhuber).

The order provided that Vavra would be paid $200 per hour for her services and ordered both Michael and Kelly to pay Vavra $500 each as security for costs by May 24, 2009.

The next day, Michael filed a “Motion for Hearing and Appointment of Attorney Ad Litem.” Michael asked the court to set a date for a hearing on his motion to resign as guardian and asked the court to discharge him and to appoint a successor guardian. Michael also asked the court to determine its own motion to consider whether or not to appoint an ad litem and “pointfed] out that [Michael’s attorney and Kelly’s attorney] have both stated they have no objection to such appointment should the Court believe same is necessary.”

On June 19, 2009, Vavra filed a “Motion for Security of Costs.” She argued that as of June 10, 2009, her billing rate was $400 per hour, and she requested that an initial retainer deposit of $25,000 be paid to her within ten days. On June 22, 2009, Michael filed a “Motion for Reconsideration of Appointment of Attorney Ad Litem and Opposition to Request for Initial Retainer of $25,000.” Michael argued that he had been ordered, in the divorce proceeding, to surrender possession of the marital residence in South Padre Island, Texas and had been forced to move to Marble Falls, Texas, preventing him from having the necessary contact with Melissa. Additionally, he asserted that “evidence in the divorce case has developed a controversy over ownership of an account in Frost Bank in the name of Mrs. Seidelhuber, in an amount of approximately Two Million Dollars,” and that Kelly claimed that some or all of it belongs to Melissa. Thus, Michael argued that he was asserting a claim adverse to Melissa and was disqualified as a matter of law from serving as her guardian. Furthermore, Michael requested that the order appointing Vavra be withdrawn and that a corporate guardian be considered before continuing Vavra’s appointment at “an apparent cost estimated in excess of $25,000.00 with a cost of $400 an hour, or between $2000 and $4000 dollars just for travel from Austin, Texas to Edinburg, for appearance for hearings.”

The trial court set Vavra’s motion for costs and Michael’s motion in opposition for a hearing on July 22, 2009. Vavra testified that she has been practicing family law in Austin for twenty years, is board certified in family law, and that her hourly rate is $400 per hour. She testified that she had spent a large amount of time— $5,300 worth — getting up to speed on the issues she was told to investigate. Vavra testified about the complexity of the case and the work that still needed to be done, which she claimed precluded her from other employment. Vavra testified that her retainer should either be split between Michael and Kelly or come- from their community estate. She stated that she believed it would be “inevitable in this case that Mr. Seidelhuber will be removed and a new guardian will be appointed on behalf of this ward,” but she opined that the court should not allow Michael to resign at that particular time because Melissa would be left without a guardian.

After Vavra’s testimony, Michael’s attorney stated that he was not going to object to her appointment as attorney ad litem because “we don’t know who’s going to pay for it. She may recommend a corporate guardian before we’re through. I don’t know what she’s going to do.” The court then asked Vavra, “So you’re asking for 25,000 as security for your costs, that would include — you’ve already expended $5,300, and so the nuts and bolts of that, if I understand your testimony, is that I would order each of the respective parties to deposit $12,500 into the registry of the Court?” Vavra said, “Yes, Your Honor.” Vavra then clarified that she wanted the money sent directly to her.

Kelly’s attorney then argued to the court that Kelly did not have the resources to pay this kind of an ad litem fee and stated that “there are other competent attorneys, if the Court feels inclined, that might be local and would work on this case as diligently as this attorney for $200 an hour, and that would be something more reasonable.” Kelly’s attorney then stated that Kelly was “willing to let Mr. Seidelhu-ber . be removed as [guardian], and then she be appointed.” In summary, Kelly’s attorney argued:

So for that reason, Your Honor, we would request that either my client be appointed guardian and Mr. Seidelhu-ber, you know — because in realistic terms he is not the biological father, and Mr. Marburger needs to come up to the plate, and she needs to continue doing what she’s been doing for this ward. Or if the Court feels that an • ad litem is necessary, that it be somebody else that can work at more reasonable rates.

The trial court indicated that it intended to appoint Vavra as attorney ad litem and give her the retainer and hourly rate she requested. The trial court requested the parties to submit an order stating as much. No order was immediately signed.

On August 6, -2009, Michael filed a motion for rehearing, arguing that at the July 22 hearing, the trial court effectively denied Michael’s motion to resign as guardian, even though Kelly withdrew her objection to his withdrawal. Michael further alleged that Vavra

was not when she accepted the Court’s appointment, and did not disclose to the Court then, or during her testimony in the hearing on July 22nd, 2009, that she was not properly certified as required by Probate Code section [647A], nor did the Court inquire as to whether or not she was properly certified.

Accordingly, Michael asked the trial court to reconsider and set aside the order appointing Vavra as attorney ad litem and requiring payment to her. The trial court set a hearing on Michael’s motion.

On October 21, 2009, the parties appeared on Michael’s motion for rehearing. Michael’s attorney stated that he learned after the hearing that Vavra is not certified as required by the probate code. Additionally, Michael argued that, as guardian of the person, he could not be required to pay costs for an attorney ad litem, which must be charged against the ward’s estate or against the county. Vavra responded that a certified attorney ad litem is required only for the purpose of establishing whether the ward needs a guardian in an initial guardianship application. She argued that in all other proceedings, section 647A does not apply; rather, the court has authority to appoint an ad litem under section 34A of the probate code, which does not require the attorney to be certified. Id. § 34A (Vernon 2003).

On November 5, 2009, the trial court issued an order stating that, after considering Vavra’s motion for security for costs and Michael’s motion for rehearing, the court was appointing Vavra as attorney ad litem pursuant to section 34A of the Texas Probate Code. The court found that Melissa “has no estate, therefore there is no estate against which to charge these ad litem fees .... ” The court further found that “[w]ith regard to Sec. 665B of the Texas Probate Code, there are no funds in the county treasury that are budgeted for this purpose (attempted resignation with opposition).” Finally, the court stated that this was not a “guardianship matter, but rather an attempt by a Guardian to resign his fiduciary capacity.” Finally, the court ordered Michael and Kelly to each pay a $12,500 retainer directly to Vavra by November 27, 2009 and ordered that her billing rate would be $400 per hour. Michael then filed this appeal.

II. Appointment of Non-CeRtified Attorney Ad Litem

By his second issue, Michael argues that the tidal court abused its discretion in this guardianship proceeding by appointing an attorney ad litem who was not certified as required by section 647A of the Texas Probate Code. See id. § 647A (Vernon Supp.2010). Vavra responds that her appointment was made pursuant to section 34A of the code, which does not require her to be certified. See id,. § 34A. We agree with Michael.

A. Standard of Review

We have not located any cases that address whether, in a proceeding to determine a guardian’s right to resign, a trial court must appoint a certified attorney ad litem under section 647A of the probate code. The parties agree, however, that an abuse of discretion standard applies. Under an abuse of discretion standard, review of a trial court’s determination of the legal principles controlling its ruling is not deferential. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion ....” Id.

B. Analysis

Section 647A(a) provides: “A court-appointed attorney in any guardianship proceeding must be certified by the State Bar of Texas or a person or other entity designated by the state bar as having successfully completed a course of study in guardianship law and procedure sponsored by the state bar or its designee.” Tex. Prob.Code Ann. § 647A (emphasis added). It is undisputed that Vavra is not certified under this provision.

Vavra argues, however, that section 647A must be read in connection with section 646, which provides:

(a) In a proceeding under [Texas Probate Code Chapter XIII] for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the interests of the proposed ward. The attorney shall be supplied with copies of all of the current records in the case and may have access to all of the proposed ward’s relevant medical, psychological, and intellectual testing records.
(b) To be eligible for appointment as an attorney ad litem, a person must have the certification required by Section 647A of this code.
(e) The term of appointment of an attorney ad litem appointed under this section expires, without a court order, on the date the court either appoints a guardian or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the attorney ad litem is in the ward’s best interest.

Id. § 646(a), (b), (e) (Vernon Supp.2010). Vavra argues that section 646 contemplates an appointment of a certified attorney ad litem only in an initial guardianship proceeding to determine whether the allegedly incapacitated person needs a guardian, and not otherwise. Vavra points to subsection (e), which provides for the automatic expiration of the ad litem’s term upon appointment of the guardian. See id. § 646(e). Thus, Vavra argues that this is not a “guardianship proceeding” as contemplated by section 647A because her duties were not related to whether a guardianship should be granted, denied, or whether a guardian had acted improperly, and in fact, a guardianship had long been established before she was appointed.

Instead, Vavra points to section 34A, relied upon by the trial court, which provides:

[T]he judge of a probate court may appoint an attorney ad litem to represent the interests of a person having a legal disability, a nonresident, an unborn or unascertained person, or an unknown heir in any probate proceeding. Each attorney ad litem appointed under this section is entitled to reasonable compensation for services in the amount set by the court and to be taxed as costs in the proceeding.

Id. § 34A. Under this provision, Vavra argues, a trial court has broad discretion to appoint an attorney ad litem who is not required to be certified under section 647A. See id.

We disagree with Vavra’s narrow reading of sections 646 and 647A. Vavra argues that although section 647A applies to “any guardianship proceeding,” this is not a “guardianship proceeding” because it is not a proceeding to establish a guardianship in the first instance. “Guardianship proceeding” is specifically defined by the probate code as “a matter or proceeding relating to a guardianship or any other matter addressed by this chapter.” Id. § 601(25) (emphasis added). Thus, Vav-ra’s attempt to limit the phrase’s definition by reference to section 646, and to the fact that she was called upon to investigate other proceedings besides the initial creation of a guardianship, is belied by the statute’s express definition of the term “guardianship proceeding” with reference to “any other matter addressed by this chapter.” See id. Resignation of a guardian is addressed in section 760, which lies in the same chapter of the Texas Probate Code as section 647A, and thus, the underlying proceeding in this case falls within section 647A by its express terms. See id. §§ 647A, 760.

Moreover, the trial court appointed Vav-ra to determine, primarily, whether Michael should be allowed to resign as guardian, and it asked Vavra to investigate the divorce proceeding and the support suit specifically for that purpose because Kelly argued that Michael’s resignation would adversely affect both proceedings. Additionally, Michael asked that Kelly be appointed as successor guardian, and Vavra indicated that she was opposed to Michael withdrawing as guardian because Melissa would be without a guardian. Section 646 expressly applies to proceedings under Chapter XIII “for the appointment of a guardian,” and as we noted above, the provision relating to a guardian’s resignation, section 760, is within Chapter XIII. See id. § 760.

We believe that when a guardian resigns, one of the considerations is necessarily whether the ward will be adequately protected in the absence of a guardian and whether another person should be appointed as a successor guardian, and this was borne out in the trial court’s proceedings below. In fact, Vavra expressly stated that she would not recommend that Michael be allowed to resign because Melissa’s interests would be unprotected until a successor guardian was appointed. Thus, we hold, as a matter of first impression, that section 646 applies when a guardian attempts to resign under section 760, and it requires the appointment of a certified attorney ad litem under section 647A to ensure that the ward’s interests are protected. Id. § 646(a), (b).

Accordingly, the trial court erred in determining the law applicable to the proceeding, and thereby abused its discretion by appointing an attorney ad litem who was not certified under section 647A. We sustain Michael’s second issue and reverse the trial court’s order appointing Vavra as attorney ad litem.

III. Resignation of Guardian

By his third issue, Michael argues that the trial court abused its discretion by refusing to allow him to resign when Kelly had withdrawn her opposition and offered to serve as a successor guardian. This issue, however, has not been preserved for our review. Texas Rule of Appellate Procedure 33.1 provides that, as a prerequisite to an appeal, the appellant must show that he made a timely request or objection in the trial court and that the trial court either “(A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.” TEX. R.APP. P. 33.1(a)(2).

The trial court never issued an order denying Michael’s motion to resign as guardian; rather, it delayed ruling on the motion and appointed an attorney ad litem to determine the effect of the resignation. Under these circumstances, we cannot say that the trial court has “refused to rule” on Michael’s resignation. See id. Accordingly, we overrule Michael’s third issue.

IV. Allocation of Ad Litem Fees to a Guardian

By his first issue, Michael argues that a guardian of the person cannot be ordered to pay attorney fees incurred by the ward, and in any event, the trial court erred by determining that Melissa had “no estate” that could pay for an attorney ad litem’s fees. Michael relies on Texas Probate Code section 665A, which provides:

The court shall order the payment of a fee set by the court as compensation to the attorneys, mental health professionals, and interpreters appointed under this chapter, as applicable, to be taxed as costs in the case. If after examining the proposed ward’s assets the court determines the proposed ward is unable to pay for services provided by an attorney, a mental health professional, or an interpreter appointed under this chapter, as applicable, the county is responsible for the cost of those services.

TEX. PROB.CODE ANN. § 665A (Vernon Supp.2010). In this case, the trial court expressly determined that Melissa had “no estate against which to charge these ad litem fees.... ” Thus, Michael argues that the trial court should have ordered the county to pay for the attorney ad litem fees.

Because of our disposition of Michael’s second issue, reversing the order appointing Vavra, the award of fees against Michael is necessarily reversed. We pause, however, to point out that the dispute over whether Melissa has “an estate” or any money to pay an attorney ad litem is intertwined with the divorce proceeding, as Kelly apparently claims that Melissa is entitled to part of the community estate. Additionally, we presume that the support suit against Eddie has continued during this appeal, and circumstances may have changed, giving reason for the court to assess any attorney ad litem fees against Melissa’s current estate, if any has developed. Accordingly, we overrule Michael’s first issue.

Nevertheless, we note that in the event circumstances have not changed and Melissa still does not have any estate to speak of, we see nothing in the statute relied upon by the trial court that supports its finding that it may assess attorney ad litem fees against Michael. The trial court cited Texas Probate Code section 665B — • as opposed to section 665A quoted above— stating that “[w]ith regard to Sec. 665B of the Texas Probate Code, there are no funds in the county treasury that are budgeted for this purpose (attempted resignation with opposition).” Section 665B, however, applies to the payment of attorney fees for an attorney representing an “applicant” in proceedings on “an application to be appointed guardian of the proposed ward, an application for the appointment of another suitable person as guardian of the proposed ward, or an application for the creation of the management trust.” Id. § 665B(a) (Vernon Supp.2010). Section 665B allows for the payment of attorney fees by the county only if the ward’s estate is insufficient and if “funds in the county treasury are budgeted for that purpose.” Id. § 665B (a)(2).

In this case, Michael is the “applicant,” as he is the one seeking to modify the guardianship. But the instant dispute is not over the payment of Michael’s own attorney fees. Rather, the situation at hand is expressly governed by section 665A, which provides that the county must pay for Melissa’s attorney ad litem fees in the event her estate is insufficient to cover those costs. See id. § 665A; Overman v. Baker, 26 S.W.3d 506, 513 (Tex.App.-Tyler 2000, no pet.) (holding that trial court erred by assessing ad litem fees against applicant for guardianship of a proposed ward, which should have been taxed against the ward’s estate or the county); see also In re Guardianship of Humphrey, No. 12-06-00222-CV, 2008 WL 2445503, at *4 (Tex.App.-Tyler June 18, 2008, pet. denied) (mem. op.) (holding that the trial court erred by assessing ad litem fees against mother of proposed ward instead of against the ward’s estate or the county).

V. Conclusion

We sustain Michael’s second issue and reverse the order appointing Vavra as attorney ad litem for Melissa and requiring Michael to pay ad litem fees and remand to the trial court for further proceedings consistent with this opinion.

      . In the Interest of Melissa K. Marburger, No. F-3259-07-I, in the 398th District Court of Hidalgo County, Texas (the "support” suit).

      . In the Matter of the Marriage of Michael Seidelhuber and Kelly Seidelhuber, No. 2008-06-3241-D, in the 103rd District Court of Cameron County, Texas (the "divorce proceeding”).

      . Michael argues that this title was a misnomer because, as the body of the motion indicates, he was requesting appointment of a guardian ad litem.