source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    PRAIRIE VIEW A & M UNIVERSITY, Appellant, v. Diljit K. CHATHA, Appellee.
    No. 01-09-00840-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 1, 2010.

      Madeleine Connor, Assistant Attorney General, General Litigation Division, Austin, TX, for Appellant.
    Thomas Lipovski, Office of the Solicitor General of Texas, Austin, TX, Ellen Spro-vach, Rosenberg & Sprovach, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

Appellant, Prairie View A <& M University, brings this interlocutory appeal from an order denying its plea to the jurisdiction. See Tex. Civ. PRAC. & RemlCode Ann. § 51.014(a)(8) (Vernon 2008) (allowing interlocutory appeal of order that “grants or denies a plea to the jurisdiction by a governmental unit”). The trial court determined appellee, Diljit K. Chatha, timely filed her suit against her employer, the University, pursuant to the Texas Commission on Human Rights Act (“the Texas Act”), and, therefore, the court had jurisdiction. In two issues, the University contends the trial court lacks jurisdiction because (1) Chatha’s employment discrimination claims were untimely filed under the Texas Act and (2) Chatha failed to follow the provisions of the Texas Act resulting in no waiver of sovereign immunity in this ease. We conclude the trial court properly denied the plea to the jurisdiction. We affirm.

Background

Chatha teaches English at the University. Chatha, who is of Indian national origin, began working for the University in 1987. In 2004, Chatha was promoted to full professor. On September 25, 2006, Chatha filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of race and national origin. The Texas Workforce Commission-Civil Rights Division issued Chatha a right-to-sue letter and she filed this suit. Chatha alleged she is underpaid as compared to less qualified faculty members.

In its plea to the jurisdiction challenging the subject matter jurisdiction of the court, the University asserted Chatha did not timely file her complaint. Specifically, the University contends that the adverse action claimed by Chatha occurred in 2004 when she was promoted to full professor at a lower pay rate, which was more than 180 days before the time she filed suit in 2006 under the Texas Act. The University also claimed that because Chatha did not meet the elements of the Texas Act she failed to show the State had waived its immunity. Chatha responded that her complaint was timely filed under the Lilly Ledbetter Fan-Pay Act (hereafter called “the Ledbetter Act”), which amended Title VII of the Civil Rights Act of 1964 to allow for claims based on her most recent paycheck at a lower rate. Asserting that the Ledbetter Act is applicable to the Texas Act through the stated policy of the Texas Act, Chatha contends that her claim was timely and a waiver of the State’s immunity was established.

Applicable Law Concerning Jurisdiction in Employment Action Claim

A plea to the jurisdiction is a dilatory plea that challenges the trial court’s subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether the plaintiff has alleged facts that demonstrate subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. Although we are not to reach the merits of the plaintiffs case, when the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties that is necessary to resolve the jurisdictional issue. Id. at 227. Where, as here, the evidence is undisputed, the trial court rules on the plea to the jurisdiction as a matter of law. Id.

The Texas Act states, “A complaint ... must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.” ■ Tex. Lab.Code Ann. § 21.202 (Vernon 2006); Davis v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996)). “This time limit is mandatory and jurisdictional.” Davis, 226 S.W.3d at 491 (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 486 (Tex.1991)). Failure to timely file an administrative complaint deprives Texas trial courts of subject-matter jurisdiction. Id. (citing Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 122 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Vincent v. W. Tex. State Univ., 895 S.W.2d 469, 473 (Tex.App.-Amarillo 1995, no writ)).

Timeliness of Filing Complaint of Discrimination

In its first issue, the University contends (A) under the law before the enactment of the Ledbetter Act, Chatha’s complaint was untimely due to her failure to file it within 180 days of the date she was informed of the salary of which she now complains, and (B) the Ledbetter Act is inapplicable to the Texas Act.

A. Law Before Enactment of Ledbet-ter Act

Before the enactment of the Ledbetter Act, (1) Texas courts looked to federal courts’ interpretation of Title VII to analyze the meaning of the Texas Act, and (2) federal and Texas courts rejected the continuing violation doctrine in unequal pay cases.

1. Texas Courts Reliance on Federal Interpretation of Title VII

Although the Texas Act states that a complaint “must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred,” it does not define when an unlawful employment practice occurs. Tex. Lab.Code Ann. § 21.202 (Vernon 2006). Before the Led-better Act, Title VII was worded similarly to the Texas Act, stating, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ...” 42 U.S.C.S § 2000e~5(e)(l) (Lexis-Nexis 2005).

Because the Texas Act does not define when an unlawful employment practice occurs, Texas courts look to the federal courts interpretation of Title VII for guidance in defining the term. See Auto-Zone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.2008) (“[b]y adopting the Act, the Legislature ‘intended to correlate state law with federal law in employment discrimination cases’ ”) (quoting Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005)). The rationale for looking to the federal interpretation of Title VII is to comply with the stated purpose in the Texas Act to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. Section 2000e et seq.).” Tex. Lab.Code Ann. § 21.001(1) (Vernon 2006).

2. Inapplicability of Continuing Violation Doctrine

The continuing violation doctrine applies when an unlawful employment practice manifests itself over time rather than as a series of discrete acts. See Davis, 226 S.W.3d at 493 (citing Wal-Mart Stores v. Davis, 979 S.W.2d 30, 31 (Tex.App.-Austin 1998, pet. denied)). Under prior case law applying the continuing violation doctrine, each paycheck is not a new occurrence, nor is it part of a continuing violation that would give an employee a new 180-day limitations period. See Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex.App.-Fort Worth 2003, pet. denied) (refusing to apply continuing violation theory to separate pay checks and noting limitations period begins when pay decision is made) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir.1998); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir.1990)). Under the state and federal law before the enactment of the Ledbetter Act, therefore, a person filing a claim for an unlawful employment practice based on allegedly discriminatory compensation had to file the claim within 180 days of the time of the discriminatory act, which courts held was the date the employee was informed of the complained of salary. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 621, 127 S.Ct. 2162, 2165, 167 L.Ed.2d 982 (2007) (holding pay-setting decision is discrete act and commenced limitations for Ledbetter to file charge with EEOC); Davis, 226 S.W.3d at 491 (quoting Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980)). Chatha did not file her complaint within 180 days of the time she was notified of the salary decision; her complaint is untimely unless the Ledbetter Act applies to her case.

B. Applicability of Ledbetter Act to Texas Act

Chatha contends (1) the Ledbetter Act changed the law to now allow for claims based on when a person is affected by the application of the discriminatory act, and (2) the Ledbetter Act should be applied to the Texas Act because the policy of the Texas Act is to be consistent with Title VII.

1. Ledbetter Act

In response to the Ledbetter decision, Congress passed the Ledbetter Act to abrogate the Supreme Court’s decision. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 11-2, 123 Stat. 5 (2009). Among other changes, Title VII was amended by adding the following definition of “occurrence”:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

42 U.S.C.S. § 2000e-5(e)(3)(A) (LexisNexis Supp. 2009) (emphasis added). Thus, the law applicable to Title VII is no longer the Supreme Court’s Ledbetter holding that an unlawful employment practice occurs with respect to discrimination in compensation when the salary decision is made. See Klebe v. Univ. of Tex. Sys., 649 F.Supp.2d 568, 569 (W.D.Tex.2009) (order); Gentry v. Jackson State Univ., 610 F.Supp.2d 564, 566 (S.D.Miss.2009); Bush v. Orange County Corrections Dept., 597 F.Supp.2d 1293, 1295 (M.D.Fla.2009). Now, under the Ledbetter Act, an unlawful employment practice occurs under Title VII when an individual is affected by application of a discriminatory compensation decision or practice, including each paycheck resulting from that decision. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 11-2, 123 Stat. 5 (2009). The Ledbetter Act applies retroactively “as if enacted on May 28, 2007,” and applies to “all claims of discrimination ... that are pending on or after that date.” Id. If the Ledbetter Act applies to this case, then Chatha’s filing would be timely because she filed her complaint within 180 days of her most recent paycheck she contends is discriminatory.

2. Application of Ledbetter Act to Texas Act

We conclude that the Ledbetter Act’s current definition describing when an unlawful practice occurs in Title VII should be applied to a claim of compensation discrimination brought under the Texas Act. We reach this conclusion for three reasons: (a) the express policy of the Texas Act is to execute the policy in Title VII; (b) federal district courts that have addressed this identical question have reasoned that the Ledbetter Act applies to the Texas Act; and (c) the University’s arguments stating reasons the Ledbetter Act should not apply are unpersuasive.

a. Express Policy of Texas Act

The Texas Act states that its purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Tex. Lab.Code Ann. § 21.001(1); see AutoZone, 272 S.W.3d at 592. The State’s public policy in the Texas Act is to execute the policy in Title VII. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 (Tex.2007) (“ ‘[T]he State’s public policy is reflected in its statutes.’ ”) (quoting Town of Flower Mound v. Stafford Estates Ltd., 135 S.W.3d 620, 628 (Tex.2004)). Because the public policy of the Texas Act is to execute the policy in Title VII, Texas courts look to the federal courts’ analysis in determining when an unlawful practice occurred. AutoZone, 272 S.W.3d at 592. As we have explained above, when we have examined federal courts’ decisions in the past, that analysis led to the substantive decision that an unlawful employment practice occurred under the Texas Act when the decision about salary was made. By applying that same procedure to examine federal law, the result is now that we must apply the substantive law in Title VII that provides a new definition for determining when an unlawful employment practice occurs. See Tex. Lab.Code Ann. § 21.001(1); see AutoZone, 272 S.W.3d at 592.

b. Analysis of Federal District Courts

Two federal district courts in Texas have addressed this identical question and reasoned that Texas courts would apply the Ledbetter Act to the Texas Act. See Klebe, 649 F.Supp.2d at 570-71; Lohn v. Morgan Stanley DW, Inc., 652 F.Supp.2d 812, 829 (S.D.Tex.2009) (approving of and following analysis in Klebe). In Klebe, the court concluded that, to achieve the Texas Act’s purpose, a Texas state court would apply the terms of the Ledbetter Act to a suit under the Texas Act. Klebe, 649 F.Supp.2d at 572. The court reasoned that the Texas Legislature expressly stated the purpose of the Texas Act was to carry out the policies of Title VII and that Texas courts routinely look to federal law concerning Title VII for guidance in interpreting the Texas Act. Id.

c. The University’s Arguments

The University suggests that the Led-better Act is inapplicable to the Texas Act because the Texas Act is not intended to be identical to Title VII. Although the Texas Act and Title VII are not identical, the Supreme Court of Texas has historically looked to the federal courts’ interpretation for determining when an unlawful employment practice “occurs” because that term is undefined in the Texas Act and Texas’s policy is to execute the policy of Title VII. See AutoZone, 272 S.W.3d at 592; Davis, 226 S.W.3d at 491. Our decision today simply continues to apply that procedural precedent to interpret this undefined term in the Texas Act. See AutoZone, 272 S.W.3d at 592.

The University also suggests that the Ledbetter Act is inapplicable to the Texas Act because the Texas Act does not automatically incorporate amendments to Title VII. The University cites the Texas Act section dealing with disparate impact cases involving age discrimination. “To determine the availability of and burden of proof applicable to a disparate impact case involving age discrimination, the court shall apply the judicial interpretation of the Age Discrimination in Employment Act of 1967 and its subsequent amendments (29 U.S.C. Section 621 et seq.).” Tex. Lab.Code Ann. § 21.122(b) (Vernon 2006). The University contends that because the Texas Act specifies that courts “shall” apply federal cases in disparate impact cases involving age discrimination, the Legislature must have meant to exclude the automatic application of federal law to discrimination cases not involving age discrimination. In support of this, the University relies upon the doctrine of ex-pressio unius est exlusio alterius or “the expression of one implies the exclusion of others.” See Mid-Century Ins. Co. of Texas v. Kidd, 997 S.W.2d 265, 273-74 (Tex.1999). The doctrine, however, is an aid to determine legislative intent, not an absolute rule. Id. Also, the supreme court has stated that we do not “resort to rules of construction” unless the statute is ambiguous. In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007). Here, as noted earlier in this opinion, the Legislature’s intent — confirmed by numerous cases from the Texas supreme court and courts of appeals — is that the Texas Act is intended to execute the policies of Title VII. Thus, we need not resort to the doctrine of ex-pressio unius est exlusio alterius. See Mid-Century Ins., 997 S.W.2d at 273-74; see also In re Estate of Nash, 220 S.W.3d at 917.

The University contends the Ledbetter Act is inapplicable because the Texas Legislature has not incorporated similar language into the Texas Act. Specifically, the University contends that shortly after the Ledbetter Act was enacted into law, Senate Bill 986 was introduced. Tex. S.B. 986, 81st Leg., R.S. (2009). Senate Bill 986 contained language similar to the Ledbet-ter Act, stating in pertinent part,

With respect to an allegation of discrimination in payment of compensation ..., an unlawful employment practice occurs each time: ... an individual is adversely affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation affected wholly or partly by such a decision or other practice is paid.

See Tex. S.B. 986, 81st Leg., R.S. (2009). Senate Bill 986 was referred to the Business and Commerce Committee, but it never made it beyond the committee. See Tex. S.B. 986, 81st Leg., R.S. (2009), bill history, available at http://www.capitol. state.tx.us/BillLookup/Actions.aspx?Leg Sess=81R & Bill=SB986. The University invites us to speculate on the reasons the bill did not pass and become part of the Act, stating, among other possibilities, that “perhaps the Legislature intends to wait and see how the Ledbetter Act’s provisions are interpreted by the courts before deciding whether to adopt a similar provision and determining how it should be crafted.” However, the Texas supreme court has stated, “we attach no controlling significance to the Legislature’s failure to enact [legislation].” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.2009) (quoting Tex. Employment Comm'n v. Holberg, 440 S.W.2d 38, 42 (Tex.1969)). We therefore decline to engage in the speculation encouraged by the University.

Applying the definition of “occurrence” from Title VII to the Texas Act, the alleged unlawful employment practice at issue is not limited to the pay decision made in 2004 and includes the time when Chatha was affected by the decision in her most recent paycheck. See 42 U.S.C.S. § 2000e-5(e)(3)(A); Lohn, 652 F.Supp.2d at 829; Klebe, 649 F.Supp.2d at 568. We, therefore, hold the trial court properly denied the University’s plea to the jurisdiction on that ground.

We overrule the University’s first issue.

Having determined that Chatha’s pleadings met the requirements for a claim under the Texas Act, we overrule the University’s second issue that alleges the trial court erred by granting the University’s plea to the jurisdiction because the Legislature’s waiver of sovereign immunity applies only where “the procedures outlined in the statute [waiving immunity] have been met.” The University contends an ambiguity in the Texas Act should be resolved in favor of a finding that the Legislature did not waive the University’s immunity. However, the Texas supreme court held the Texas Act contains an unambiguous waiver of immunity. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex.2008) (“All the courts of appeals that have considered it have concluded that the [Texas Act] clearly and unambiguously waives immunity, and we agree.”).

Conclusion

We affirm the order of the trial court.

      . Tex. Lab Code Ann §§ 21.001-.556 (Vernon 2006).


author: MICHAEL MASSENGALE, Justice.

text:
    Tawana Rena ROBINSON, Appellant, v. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-08-00480-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 8, 2010.
    Donald M. Crane, Katy, Oliver W. Sprott, Jr., Houston, for Appellant.
    Sandra D. Hachem, Senior Asst. County Atty., Houston, for Appellee.
    Sara Blackwell Hunt, Houston, for Ad Litem.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

Appellant, Tawana Rena Robinson, challenges the trial court’s termination of her parental rights to her minor children H.L.C. and A.L.C. In one issue, Robinson contends that her court-appointed lawyer was ineffective because he did not file a statement of the point or points on which Robinson intended to appeal. See Tex. Fam.Code Ann. § 263.405(b)(2) (Vernon 2008) (requiring appellant to file statement of point or points). We affirm.

The Texas Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984), to determine whether appointed counsel was ineffective in a proceeding to terminate parental rights:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

In re J.O.A., 288 S.W.3d 836, 341-42 (Tex.2009) (citing In re M.S., 115 S.W.3d 534, 545 (Tex.2003)).

Robinson argues that her trial lawyer rendered deficient performance and thus failed the first prong of Strickland by not filing a statement of appellate points required by Family Code section 263.405(b)(2). Although trial counsel’s failure to file a statement of appellate points or render any other continued representation after filing a notice of appeal and a motion to withdraw was found by the Texas Supreme Court to be “seriously deficient” in In re J.O.A., 283 S.W.3d at 343, the Court also acknowledged in the same opinion that “not every failure to preserve factual sufficiency issues would rise to the level of ineffective assistance.” Id. (citing In re M.S., 115 S.W.3d at 549).

Here, the Department of Family and Protective Services contends that Robinson’s trial counsel could not have filed any meritorious claim of legal or factual sufficiency. Under such circumstances, a failure to file a statement of appellate points would not necessarily indicate deficient representation. We “must indulge in the ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ including the possibility that counsel’s decision not to challenge factual sufficiency was based on strategy.” In re M.S., 115 S.W.3d at 549 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2052). Counsel, in his professional opinion, could have believed the evidence legally and factually sufficient, such that a statement of appellate points was not warranted. See id. (citing Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App.2000)). It was therefore necessary for Robinson to demonstrate on appeal not only that her counsel failed to file a statement of appellate points, but that her counsel rendered deficient performance in his failure to do so, and that she was harmed as a result of that deficient performance. This she failed to do.

Robinson’s claim of ineffective assistance fails because she does not demonstrate any harm. Her brief offers no substantive arguments to demonstrate that the evidence adduced at trial was legally or factually insufficient to support the termination of her parental rights. Under such circumstances, we cannot find harm and thus cannot find ineffective assistance of counsel. See In re M.S., 115 S.W.3d at 545-46 (mother could not demonstrate ineffective assistance in trial counsel’s failure to secure record of voir dire, charge conference, and closing arguments because she failed to indicate “what errors would have been recorded if a record had been made”).

Finally, Robinson asks this Court to remand the case “for a hearing to determine whether good cause exists for trial counsel’s failure to file the points.” We are aware of no authority for such a remand, nor would any purpose be served to remand to determine the reasons for that failure in light of our conclusion that Robinson has failed to make the requisite demonstration of harm.

We overrule Robinson’s sole issue, and we affirm the trial court’s order of termination.

      . Family Code section 263.405(i) has been held unconstitutional to the extent that section purports to prevent an appeal based on ineffective assistance of counsel. See In re J.O.A., 283 S.W.3d 336, 347 (Tex.2009); Tex. Fam.Code Ann. § 263.405(i) (Vernon 2009) (“The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.”).

      . Robinson’s brief does note that "under certain circumstances, 'prejudice is presumed,' " referencing the "sleeping lawyer” case, Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001). Robinson presents no substantive argument that such an argument applies to ineffective-assistance claims in the context of the termination of parental rights, or that, despite her concession that her trial lawyer was not ineffective during the course of the trial, counsel's failure to file a statement of appellate points in this case constituted a constructive denial of counsel that would justify a presumption of prejudice. As noted above, without more we cannot assume that the failure to file a statement of appellate points was deficient performance, much less a constructive denial of counsel. To the extent Robinson’s brief suggests presumed prejudice, that argument is waived for failure to present a clear and concise argument with appropriate citations to authorities and to the record. See Tex.R.App P. 38. l(i).

      . The brief filed by the Department of Family and Protective Services details the evidence at trial, arguably supporting the termination of Robinson's parental rights pursuant to Family Code section 161.001(1)(E), which authorizes termination in the best interest of the child when the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. See Tex. Fam.Code Ann. § 161.001(1)(E) (Vernon Supp.2009). Without speculating whether this evidence is the reason why counsel did not actually present a sufficiency-of-the-evidence argument to support a harm analysis on appeal, we note that if appointed counsel believes there are no nonfrivolous issues to assert on appeal from the termination of parental rights, the appropriate course of action is to file an Anders brief and seek leave to withdraw. See In re K.D., 127 S.W.3d 66, 67 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967)).


text:
    Tracy SUTTLES and Cynthia Suttles, Appellants, v. VESTIN REALTY MORTGAGE I, INC., Vestin Realty Mortgage II, Inc., and Vestin Fund, III, LLC, Appellees. In re Tracy Suttles and Cynthia Suttles, Relators.
    Nos. 01-09-01023-CV, 01-10-00071-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 22, 2010.

      Jeffrey L. Gilman, Gilman & Gilman, P.C., Houston, TX, for Appellants.
    James C. Walk, Keith Miles Aurzada, Bryan Cave, L.L.P., Dallas, TX, for Appel-lees.
    Panel consists of Chief Justice RADACK, and Justices ALCALA, and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

In this appeal and petition for writ of mandamus, appellants and relators, Tracy and Cynthia Suttles seek relief from the trial court’s entry of a turnover order appointing a receiver and master in chan-eery. Appellees and real parties in interest, Vestin Realty Mortgage I, Inc., Vestin Realty Mortgage II, Inc., and Vestin Fund III, LLC (collectively “Vestin”), sought to enforce a judgment against the Suttles and two other judgment debtors. The trial court entered a turnover order appointing a receiver and master in chancery. In their appeal, the Suttles contend the trial court erred by entering the turnover order appointing a receiver because Vestin presented no evidence of the facts required by the turnover statute and the turnover order was sought for a purpose not authorized by the statute. The Suttles also challenge the appointment of the receiver on the grounds that the trial court gave the receiver power not authorized by statute; created a conflict of interest by appointing the same person as master and receiver; and ordered compensation for the receiver before any work had been done. In their petition for writ of mandamus, the Suttles contend the trial court erred by appointing a master because the case does not meet the requirements of Texas Rule of Civil Procedure 171, the master’s powers to redirect and open the Suttles’ mail violates federal postal law, and the same person is appointed both the master and receiver. We conclude that the trial court abused its discretion because the record contains no evidence showing the requirements for a turnover order or the appointment of a master exist. We reverse the trial court’s turnover order and remand to the trial court. We conditionally grant the petition for writ of mandamus concerning the appointment of the master.

Background

Vestin obtained a $4,907,012.26 judgment against the Suttles, Shamrock Tower, L.P., and Pirate’s Lake, Ltd., in a suit in Nevada. Vestin domesticated its judgment in January 2009 and served written post-judgment discovery on the Suttles in March 2009. The Suttles failed to respond to the post-judgment discovery, but Vestin did not file a motion to compel. In November 2009, Vestin filed an application for post-judgment turnover order and appointment of a receiver and master. At the hearing, Vestin presented evidence, providing a list of businesses listing Tracy as a director, member or officer; records showing NBC Creative Development, LLC, one of Tracy’s companies, is the owner of record of the Suttles’ residence; a special warranty deed from Jetall Companies to NBC Creative Developments, LLC; and records showing the Suttles own 15 properties in Victoria County, Texas.

On November 16, 2009, the trial court signed an order appointing Riecke Bau-mann as receiver and master. Eight days later, the trial court signed an ex parte amended turnover appointing Baumann receiver and master. On three separate occasions in December 2009 and January 2010, the Suttles appeared before Bau-mann, without objection, to provide deposition testimony. The Suttles petitioned for mandamus relief on February 2, 2010, and seek to vacate the appointment of a master. The Suttles also filed an appeal challenging the turnover order and the appointment of a receiver.

Turnover Order

In their appeal, the Suttles raise four issues asserting the trial court erred when it appointed Baumann as receiver.

A. Standard of Review and Applicable Law

We review the entry of a turnover order for an abuse of discretion. Tanner v. McCarthy, 274 S.W.3d 311, 320 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A turnover order is proper if the conditions of the turnover statute, Texas Civil Practice and Remedies Code section 31.002, are met. Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (Vernon 2008); Tanner, 274 S.W.3d at 322. The trial court “must have some evidence before it that establishes that the necessary conditions for the application of 31.002 exist.” Tanner, 274 S.W.3d at 322. The conditions that must be met are:

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

Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a); Tanner, 274 S.W.3d at 322. Under the condition of (4)(a) above, property that cannot be readily attached or levied on by ordinary legal process includes property such as shares of stock and accounts receivable. See Arndt v. Nat’l Supply Co., 650 S.W.2d 547, 548 (Tex.App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.). Here, the dispute concerns whether Vestin presented evidence to support a finding under (4)(a) that the Suttles owned property that cannot be readily attached or levied on by ordinary legal process.

B. Lack of Evidence to Support Turnover Order

In their first issue, the Suttles contend the trial court abused its discretion by issuing the turnover order and appointing a receiver because there is no evidence that the Suttles own any non-exempt property that cannot be readily attached or levied on by ordinary legal process. To support its application for the turnover order, Vestin introduced evidence that (1) Tracy was a director, member, or officer of certain businesses, (2) corporations associated with Tracy owned the Suttles’s residence, and (3) the Suttles own 15 properties in Victoria County, Texas.

1. Director, Officer, or Member of Business

In support of its application for a turnover order, Vestin introduced a list of businesses from the Texas Secretary of State’s website listing Tracy as a director, member or officer. The fact that Tracy is listed as a director, officer, or member, however, is no evidence of his ownership of those businesses. The Texas Business Organizations Code states that the right to manage a company is not an “ownership interest.” Tex. Bus. Orgs.Code Ann. § 1.002(64) (Vernon 2006); see also Tex. Bus. Orgs.Code Ann. § 1.002(54) (stating member’s right to participate in management of limited liability company is not membership interest). Also, the Code specifically provides that being a shareholder is not a requirement to serve as a director. Tex. Bus. Orgs.Code Ann. § 21.402 (Vernon 2006) (“Unless the certificate of formation or bylaws of a corporation provide otherwise, a person is not required to be ... a shareholder of the corporation to serve as a director.”). Similarly, with respect to a limited liability company, a person may be a member without acquiring a membership interest. Tex. Bus. ORGS.Code Ann. § 101.102(c) (Vernon 2006) (“If one or more persons own a membership interest in a limited liability company, the company agreement may provide for a person to be admitted to the company as a member without acquiring a membership interest in the company.”).

2. Ownership of Residence Occupied by Suttles

Vestin also introduced records from the Harris County Appraisal District showing that one of Tracy’s companies (NBC Creative Development, LLC) is the owner of record of the Suttles’ residence. Vestin also introduced a special warranty deed conveying the residence from Jetall Companies to NBC Creative Developments, LLC. The fact that the Harris County Appraisal District lists a company as the owner of the Suttles’ residence is no evidence that the Suttles own shares of that company. Similarly, a deed conveying the property from Jetall Companies to NBC Creative Developments, LLC is no evidence that the Suttles own shares in either company.

3. The Properties in Victoria County, Texas

Vestin also introduced Victoria County Appraisal District real property account information listing numerous properties in one or both of the Suttles’ names. However, to meet the requirement of the turnover statute, the property must be a type of property that “cannot be readily attached or levied on by ordinary legal process.” Although the turnover statute does not state the types of property that “cannot be readily attached or levied on by ordinary legal process,” the legislative history and cases indicates that the statute was created to reach types of property other than the real property in this case. Committee reports from the Texas House and Senate state the statute was enacted to provide judgment creditors with a remedy to reach a judgment debtor’s non-exempt property in cases where traditional methods had proved to be inadequate, including situations where the debtor has property outside the state of Texas; where the debtor owns interests in intangible property, such as contract rights receivable, accounts receivable, commissions receivable, and future rights to payments; and where the debtor owns interests in other property that could be easily hidden from a levying officer, such as negotiable instruments, corporate stocks, and corporate securities. See Davis v. Raborn, 754 S.W.2d 481, 488 (Tex.App.-Houston [1st Dist.] 1988), vacated upon settlement, 795 S.W.2d 716 (Tex.1990) (citing David Hittner, Texas Post-Judgment Turnover and Receivership Statutes, 45 Tex. B.J. 417, 417-18 (1982)). Real property within Texas may be levied on by ordinary legal process. See Tex.R. Civ. P. 621, 629, 680, 637, and 639 (providing for levy of execution to satisfy money judgments, which includes “any sheriff or any constable within the State of Texas” levying on real property owned by judgment debtor). Additionally, real property in Texas may be attached. See Tex.R. Crv. P. 593 (writ of attachment “shall be directed to the sheriff or any constable within the State of Texas” and “shall command him to attach and hold ... the property of the defendant ... as shall be found within his county”); see also Pillitteri v. Brown, 165 S.W.3d 715, 722 (Tex.App.-Dallas 2004, no pet.) (noting real property outside of Texas is subject to turnover order because “ordinary legal process by which property is attached or levied upon” is writ and writ directs “a sheriff or constable in the State of Texas ... to attach and hold the defendant’s property as shall be found within his county”). Because the Victoria County property is real property located within Texas, it may be readily attached or levied on by ordinary legal process. See Tex.R. Civ. P. 593, 639; see also Pillitteri, 165 S.W.3d at 722. Thus, the requirements of the turnover statute are not met. See Tex. Civ. PRAC. & Rem.Code Ann. § 31.002(a)(1) (providing turnover order available if judgment debtor owns property that “cannot be attached or levied on by ordinary legal process”).

With respect to the Victoria County property, Vestin repeatedly refers to it as “rental property,” presumably in an effort to characterize the rental income as “accounts receivable” — a type of property to which the turnover statute applies. See Davis, 754 S.W.2d at 483; Arndt, 650 S.W.2d at 548. However, the only evidence introduced is the list stating the Suttles are the owners; the record contains no evidence that the properties are rental properties or that the Suttles have a right to rental income from these properties.

In this case, the trial court was not presented with any evidence to satisfy the requirements of the turnover statute that the Suttles own non-exempt property that cannot be readily attached or levied on by ordinary legal process. Therefore, we hold that, based on the evidence presented, the trial court erred by issuing the turnover order. Tanner, 274 S.W.3d at 321. We sustain the Suttles first issue. Because we reverse the trial court on this issue, we do not address the Suttles’ remaining issues presenting alternate ground to reverse the trial court. See Control Solutions, Inc. v. Gharda Chems. Ltd., 245 S.W.3d 550, 563 n. 4 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing Tex.R.App. P. 47.1).

Appointment of Master

In their petition for writ of mandamus, the Suttles seek relief from the trial court’s order appointing Baumann as master.

A. Waiver

As a threshold issue, Vestin contends that the Suttles have waived any objections to the appointment of a master because they failed to object to Baumann’s appointment before taking part in proceedings before Baumann. Specifically, Vestin points to the three occasions the Suttles appeared before him to offer deposition testimony. The Suttles respond that they did not waive their objections to the appointment of a master because (1) they objected to the appointment of a master at the November 16, 2009 hearing, well before the three depositions, and (2) the depositions were conducted by Baumann in his capacity as receiver rather than as master.

“[A] party objecting to a master’s appointment must make an objection not within some arbitrary time period, but before it has taken part in proceedings before the master or before the parties, the master, and the court have acted in reliance on the master’s appointment.” Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 625 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding). Here, the Suttles objected to the appointment of a master at the November 16, 2009 hearing. Furthermore, because Baumann is the master and receiver, the Suttles’ cooperation with Baumann in his role as receiver cannot waive their objection to Bau-mann’s role as master. Accordingly, the Suttles did not waive their right to object to Baumann’s appointment. See id.

B. Standard of Review and Texas Rule of Civil Procedure 171

When a trial court improperly appoints a master in chancery, mandamus is the proper remedy. Id. at 824. Mandamus issues to correct a “clear abuse of discretion” when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). Clear abuse of discretion occurs when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)). The reviewing court may not substitute its judgment for that of the trial court when reviewing factual issues. Id. at 839^40. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless the decision is shown to be arbitrary and unreasonable. Id. at 840. A trial court does not abuse its discretion so long as there is some evidence of a substantive and probative character to support its decision. Tanner, 274 S.W.3d at 321.

The appointment of a master in chancery, unless authorized by statute or consented to by the parties, must comply with Texas Rule of Civil Procedure 171. Simpson v. Canales, 806 S.W.2d 802, 810 (Tex.1991). Rule 171 provides, in relevant part: “The court may, in exceptional cases, for good cause appoint a master in chancery-” Tex.R. Civ. P. 171. “The appointment of a master lies within the sound discretion of the trial court and should not be reversed except for a clear abuse of that discretion.” Simpson v. Canales, 806 S.W.2d 802, 811 (Tex.1991). “The ‘exceptional cases/good cause’ criterion of Rule 171 is not susceptible of precise definition.” Id. Although the trial court may consider the complexity of the case, the rule’s standards “cannot be met merely by showing that a case is complicated or time-consuming.” Id.

In deciding the “exceptional case/good cause” requirement was not met in Simpson, the supreme court noted that the underlying case was a toxic tort case involving one plaintiff and 18 defendants; in the first 10 months that the case was pending, eight discovery motions were filed; the supreme court noted that none of the motions were “especially complex”; and the trial court did not hear the merits of any pending discovery dispute before appointing the master. Simpson, 806 S.W.2d at 811. In following Simpson, this Court found a case with five defendants, in which one set of requests for admissions, one set of interrogatories to all defendants, and seven sets of requests for production were served, and two motions to compel were submitted to the master, was not exceptional and the appointment of a master was an abuse of discretion. Owens-Corning Flberglas Corp., 830 S.W.2d at 626-27.

Here, in the turnover order appointing the master, the trial court stated this case was exceptional “due to its complexity and the intensity needed to enforce the judgment.” This recital is similar to the recital found wanting in Simpson. In that case, the trial court stated good cause existed to appoint a master “[b]ecause of the complex nature of the case and the numerous pretrial issues to be disposed of.” Simpson, 806 S.W.2d at 811. In addition, the facts of this case bring it within the application of Simpson. This case involves four judgment debtors. Vestin served two requests for production, one each to Mr. Suttles and Mrs. Suttles. The Suttles did not respond. Vestin did not file a motion to compel and, consequently, the trial court did not hold a hearing on the motion to compel. Finally, unlike Simpson, a toxic tort case involving 18 defendants, this case is limited to post-judgment enforcement actions involving four defendants, two of whom are husband and wife. This case falls far short of the complexity of Simpson and Owens-Coming, cases that the Texas supreme court and this Court found were not exceptional, concluding the trial court in each case abused its discretion in appointing a master.

Vestin asserts this case is exceptional because the Suttles are “officers, directors or members of at least twenty-five Texas businesses, own approximately fifteen nonexempt rental properties in Victoria county and resided in a home for which the owner of record is NBC Creative Development, LLC (one of [the Suttles’] companies).” As noted above, the fact that the Suttles are officers, directors, or members of business entities is no evidence that the Suttles own an interest in those entities. Also, the fact that the Suttles own property is not evidence that the property is “rental property.” These purported complexities of this case find no evidentiary support in the record. See Tanner, 274 S.W.3d at 324 (trial court abuses its discretion if no evidence supports decision)

Vestin also attempts to distinguish this case from Simpson and Owens-Coming based on the scope of the orders involved. In those cases the master was appointed to hear all discovery disputes. Simpson, 806 S.W.2d at 811; Owens-Corning Fiberglas Corp., 830 S.W.2d at 626. The supreme court and this Court found this type of “blanket order” inappropriate because there was no showing that “the future conduct of discovery will justify supervision by a master rather than the court.” Simpson, 806 S.W.2d at 811; see also Owens-Corning Fiberglas Corp., 830 S.W.2d at 627 (noting that blanket order referring discovery to master inappropriate in ease less complex than Simpson). Here, Ves-tin asserts the master was not appointed “to hear all pretrial discovery matters.” However, the master was given powers much broader than a master appointed for pre-trial discovery only. Here, among other things, the master was granted the following powers:

Ordering the turnover before him of assets, evidence and documents upon all matters he feels pertain to compliance with this order ...;
Scheduling hearings and meetings and directing parties and witnesses to give testimony at such hearings and meetings and to rule upon the admissibility of evidence at such hearings; [and]
Placing witnesses under oath and examining them himself, or through his agents[.]

The trial court’s order also provides, “An order from the Master, made pursuant to this order, is a Court Order.” Thus, the order here is much broader than an order referring all pre-trial discovery matters to a master. See Simpson, 806 S.W.2d at 811; Owens-Corning Fiberglas Corp., 830 S.W.2d at 626.

For the foregoing reasons, we conclude this case does not meet the “exceptional case/good cause” requirement of Rule 171 and the trial court abused its discretion in appointing a master. See Simpson, 806 S.W.2d at 811. Furthermore, the master was appointed as part of the turnover order, in order to assist the trial court and “conserve the resources of the [trial court] in routine post judgment matters” in enforcing the judgment against the Suttles. We have already held the trial court abused its discretion in issuing the turnover order; this is an additional reason that portion of the turnover order appointing a master constitutes an abuse of discretion. We do not address the other issues in the Suttles’ petition for writ of mandamus contending the trial court erred by granting the master the power to open the Suttles’ mail and by appointing the same person as receiver and master.

Conclusion

We reverse the order of the trial court and remand this cause. We conditionally grant the Suttles’ petition for writ of mandamus and direct the trial court to vacate its order appointing a master. We are confident the trial court will promptly comply, and our writ will issue only if it does not.

      . The appeal is cause number 01-09-01023-CV. The petition for writ of mandamus is cause number 01-10-0071-CV. The underlying case is Vestin Realty Mortgage I, Inc., Vestin Realty Mortgage II, Inc., and Vestin Fund, III, LLC v. Tracy Sutiles, Cynthia Sutties, Shamrock Tower, LP, and Pirates Lake, LTD., cause number 2009-02857, in the 113th Judicial District Court of Harris County, Texas, the Honorable Patricia Hancock, presiding.

      . Shamrock Tower, LP and Pirates Lake, LTD were named as defendants in the underlying cause and the trial court's order but have not appealed.

      . See Tex. Civ. Prac. & Rem Code Ann § 31.002 (Vernon 2008).


author: SHERRY RADACK, Chief Justice.

text:
    NEW MEDICAL HORIZONS II, LTD. d/b/A Cypress Fairbanks Medical Center, Appellant, v. Robert L. JACOBSON, M.D., Appellee.
    No. 01-09-00238-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 6, 2010.

      Blair Grant Francis, Joel Don Ridgell, Warren Dale Dodson, Francis, Orr & To-tusek, LLP, Dallas, TX, for Appellant.
    Steven J. Knight, William S. Helfand, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

Appellant, New Medical Horizons II, Ltd., d/b/a Cypress Fairbanks Medical Center (“the Hospital”), appeals from an interlocutory order denying its motion for summary judgment that requested, in part, confirmation of an arbitration award. We determine (1) whether we have jurisdiction over this appeal and, if so, (2) whether the trial court erred in denying confirmation of the arbitration award. Answering both questions in the affirmative, we reverse the interlocutory summary-judgment order to the extent that it denied confirmation of the arbitration award, and we remand the case with instructions.

BACKGROUND

Appellee, Robert L. Jacobson, M.D., was a physician specializing in maternal fetal medicine. Newborn Intensive Care Specialist, P.A. (“NICS”) wished for Jacobson to join its practice in the Hospital’s service area. Although NICS hired Jacobson, neither party could finance the desired practice.

In March 2005, Jacobson, NICS, and the Hospital entered into an agreement (the “Relocation Agreement”). Under the Relocation Agreement, Jacobson agreed to practice full time in the Hospital’s service area for four years. The Hospital financed the establishment of the new practice through a line-of-credit note (“the Note”) in the amount of $589,300. The Note provided that if NICS or Jacobson breached the Relocation Agreement and did not cure the breach within 60 days, the Hospital could terminate the contract and require repayment of the Note. The Relocation Agreement allowed either NICS or Jacobson to seek arbitration to determine allocation of fault between them if the Hospital terminated the agreement for specified reasons, with that allocation binding the Hospital for collection on the Note. The arbitration clause provided:

Any dispute or controversy arising under, out of or in connection with, or in relation to this Agreement, or any amendment hereof, or the breach hereof, except actions brought by Hospital ... to enforce the Line of Credit Note, shall be determined and settled by arbitration in Harris County, Texas, in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration, applying the laws of the State....

(Emphasis added.)

Although the Relocation Agreement had a term of four years, the employment agreement between NICS and Jacobson had only a two-year term. NICS and Jacobson failed to renew the employment agreement when it expired, with each party blaming the other for the failure, and Jacobson ceased practicing in the Hospital’s service area. The Hospital terminated the Relocation Agreement in May 2007 and demanded that NICS and Jacobson repay the Note.

Invoking the Relocation Agreement’s terms, NICS instigated an arbitration proceeding against both Jacobson and the Hospital to determine breach and allocation of fault between NICS and Jacobson. The Hospital answered and asserted its own claims for affirmative relief, seeking declaration of 11 matters and attorney’s fees under the Texas Declaratory Judgment Act. Jacobson moved the arbitrator to dismiss each of these requests for declaratory relief, either on the basis that the Relocation Agreement excluded them because they related to enforcement of the Note or because the Hospital lacked standing to assert them. The arbitrator dismissed only three requests, for which it determined that the Hospital lacked standing, and denied Jacobson’s request to dismiss the remaining declaratory requests. Jacobson continued to object to the ruling allowing the Hospital’s pursuit of its remaining requests for declaratory relief, arguing that the arbitrator lacked jurisdiction under the Relocation Agreement to decide them.

On December 17, 2007, the arbitrator rendered his award. He found that Jacobson had breached the Relocation Agreement and allocated fault for that breach 80% to Jacobson and 20% to NICS. The award further recited that “[ajfter considering Dr. Jacobson’s Motion to Dismiss and the Hospital’s opposition, the Arbitrator determined that the Hospital’s requests for declaratory relief did not seek enforcement of the Note and the Motion to Dismiss was not granted. An additional action would be required to enforce the Note.” (Emphasis added.) The arbitrator then rendered the following declarations:

a.Monthly installments falling due under the Note after January 31, 2007 are not required to be forgiven pursuant to the Relocation Agreement. ...
b. The principal amount of the Note that was due as of February 1, 2007(i) was $191,030.08, (ii) bears interest from February 1, 2007 through May 1, 2007 at the rate of 7.5% per annum and from May 2, 2007 until paid at the rate of 10.25% per annum.
c. The Hospital gave proper written notice of Dr. Jacobson’s breach of the Relocation Agreement and properly allowed 60 days to cure the breach.
d. [The] Hospital properly terminated the Relocation Agreement by written notice on May 2, 2007.
e. All outstanding principal and accrued interest under the Note became fully due and payable on June 1, 2007.
f. [The] Hospital is entitled to recover under the Note the principal sum of $191,030.08, together with interest accrued at 7.5% per annum from February 1, 2007 through May 1, 2007 in the amount of $3,532.50, interest accrued at 10.25% per annum from May 2, 2007 through October 29, 2007 in the amount of $9,798.84 and, for so long as none of said principal is paid, interest accruing thereafter at $53.64 per day or $53.49 in a leap year.

In March 2008, the Hospital filed suit against Jacobson. The Hospital asserted (1) an application for confirmation of the arbitration award and (2) a claim for breach of, and to enforce, the Note. The Hospital sought to confirm the award un~ der the Texas General Arbitration Act (“TGAA”).

Jacobson never filed a motion to vacate or to modify the arbitration award, but on May 20, 2008, he filed his answer, alleging as one of several affirmative defenses that “[the hospital’s] claims are barred, in whole or in part, because the Arbitrator lacked jurisdiction to hear [its] claims, enter [sic] the Final Arbitration Award. Alternatively, the award entered in favor of [the Hospital] exceeds the scope of the Arbitrator’s limited jurisdiction under applicable law including, without limitation, Section 6.06 of the American Health [Lawyers] Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration.” In response, the Hospital filed an “answer” to Jacobson’s answer to address his affirmative defenses, alleging in part the “affirmative defense” that the 90-day limitations period to assert a motion to vacate or to modify the arbitration award under the TGAA had expired.

The Hospital then moved for traditional summary judgment (1) to confirm the arbitration award and, based in large part on the confirmed award’s declarations, (2) to render a judgment on its claim to enforce the Note. The summary-judgment motion also sought to disprove as a matter of law all of Jacobson’s affirmative defenses. In this last regard, the Hospital attacked the affirmative defense that the arbitrator lacked jurisdiction to render the relevant portions of the award because the TGAA’s 90-day limitations period for vacating or modifying an award had already expired without a challenge being filed. The Hospital also contended that Jacobson’s remaining affirmative defenses to its suit to enforce the Note were all barred by res judicata because they had been, or could have been, considered by the arbitrator.

In his response to the Hospital’s summary-judgment motion, Jacobson asserted that he “does not oppose confirmation of the Award,” but argued that “the court’s confirmation of the award is not, as [the Hospital contends], dispositive of [its] claim to enforce the note.” In this regard, Jacobson asserted:

Indeed, without question, the Award, to the extent it touches at all upon the Hospital’s claim for enforcement of the note or the defenses thereto asserted by [Jacobson], was not entered by a court of competent jurisdiction. The arbitration provision ... expressly excludes suits to enforce the Note. The arbitrator ultimately concluded that, although he was partially granting the declaratory relief the Hospital sought, it was expressly based on the premise that the relief did not touch upon the Hospital’s claim to enforce the note. To be sure, the arbitrator made it clear that “an additional action would be required to enforce the Note.”
Likewise, given the fact the arbitrator expressly lacked jurisdiction to grant any relief with respect to the Hospital’s claim to enforce the Note, [Jacobson] did not raise, nor could [he] have raised, any defenses to the Note [at arbitration].

He thus contended that his affirmative defenses were not barred by res judicata.

At the summary-judgment hearing, the trial court requested that the parties submit further briefing on whether a challenge that the arbitrator exceeded his jurisdiction was waived if not asserted within the 90-day timeframe of TGAA section 171.088. The Hospital’s responsive briefing again argued that Jacobson had waived any argument that the arbitrator exceeded his jurisdiction for having failed to assert it in the 90-day window. Alternatively, the Hospital contended that the arbitrator had not exceeded his jurisdiction. In his responsive briefing, Jacobson again contended that “given the fact the arbitrator expressly lacked jurisdiction to grant any relief with respect [to] the Hospital’s claim to enforce the Note, [he] did not raise, nor could [he] have raised, any defenses to the Note [at arbitration],” so that res judicata did not bar his affirmative defenses to the Note’s enforcement. He further contended:

Here, the arbitrator’s findings and award which exceeded the allocation of fault for breach of the Relocation Agreement, the only issue properly before the Arbitrator, are merely surplusage. Specifically, the Arbitrator’s Award, as it pertains to the Hospital’s claim to enforce the Note, is mere surplusage unnecessary to the only issue properly before the Arbitrator. Thus, the court may, if requested, confirm the Award, but only to the extent necessary to give effect to those matters properly before and decided by the Arbitrator, the allocation of fault between Dr. Jacobson and NICS for breach of the Relocation Agreement. In fact, this is the very reason Dr. Jacobson did not move to vacate the Award under Section 171.088 ... and did not oppose confirmation of the Award provided. As the court acknowledged at the prior hearing, such confirmation does not extend to matters, issues or parties over which the arbitrator clearly had no jurisdiction. Accordingly, Dr. Jacobson opposes confirmation of the Award on all matters over which the Arbitrator lacks jurisdiction, particularly the findings of the Arbitrator related to the Note, based upon the Arbitrator’s admitted lack of jurisdiction.

(Emphasis added.)

The trial court denied the summary-judgment motion. The Hospital appeals.

JURISDICTION OYER APPEAL

In his appellee’s brief, Jacobson contends that we lack subject-matter jurisdiction over the Hospital’s appeal because the order is not one confirming or denying confirmation of an arbitration award. See Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(3) (Vernon 2005). Rather, he argues, the order is one denying “the Hospital’s motion for summary judgment on its breach of contract claim (or claim enforcing the Note)” and “[n]o statute authorizes the appeal from such an interlocutory order denying a motion for summary judgment on a breach of contract claim....”

“The [TGAA] specifically provides that an application under [it] is heard in the same manner and on the same notice as a motion in a civil case.” Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 480 (Tex.App.-Dallas 2004, pet. denied); see Tex. Civ. Prac. & Rem.Code Ann. § 171.093 (Vernon 2005). “Thus, applications to confirm or vacate an arbitration award should be decided as other motions in civil cases; on notice and an evidentiary hearing if necessary.” Hazar, 124 S.W.3d at 430. “Summary judgment motions are not required for the trial court to confirm, modify, or vacate an arbitration award.” Id. “However, if a party chooses to follow summary judgment procedure rather than the simple motion procedure authorized by the [TGAA], it assumes the traditional burdens and requirements of summary judgment practice.” Id. This is what the Hospital did: it moved for summary judgment on the independent ground requesting that the court confirm the award. That the Hospital also sought judgment on its suit to enforce the note in that same motion is irrelevant.

The trial court’s order denying summary judgment did not specify grounds, but the court denied the Hospital’s request for confirmation of the award when it denied the summary-judgment motion requesting that relief. A separate order stating that the application to confirm was denied was not required. We thus have subject-matter jurisdiction over the Hospital’s appeal from that portion of the order that denied summary judgment on the request to confirm the arbitration award under the TGAA. See Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(3).

CONFIRMATION OF ARBITRATION AWARD

In its sole issue, the Hospital argues that the trial court erred in denying its request for confirmation because Jacobson did not file a timely motion to vacate, to modify, or to correct the award under the TGAA. Alternatively, the Hospital argues that the arbitrator did not exceed his powers. Jacobson contests both challenges. We need decide only the first.

A. The Law

The arbitration agreement specifically provided that arbitration would be conducted “applying the law of the State,” and the Hospital moved for confirmation under the TGAA. “The standard of review applicable to a judgment confirming an award under the [TGAA] is affected by the nature of the proceedings utilized by the trial court.” Hazar, 124 S.W.3d at 430. We thus review the trial court’s denial of the Hospital’s summary-judgment ground requesting confirmation of the award under the usual standard of review for motions asserted under Texas Rule of Civil Procedure 166a(c). See id. (doing same, when reviewing summary-judgment order confirming arbitration award); see also Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985) (setting out summary-judgment standards of review).

“We begin by examining the statutory language.” Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 262 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (construing TGAA’s provisions concerning confirming and vacating arbitration awards). TGAA section 171.087, entitled “Confirmation of Award,” provides that “[u]nless grounds are offered for vacating, modifying, or correcting an award under Section 171.088 or 171.091, the court, on application of a party, shall confirm the award.” Tex. Civ. Prac. & Rem. Code Ann. § 171.087 (Vernon 2005) (emphasis added). Under this section, “confirmation is the default result unless a challenge to the award has been or is being considered.” Hamm, 178 S.W.3d at 262.

One such challenge under the TGAA to an arbitration award is a request to vacate it, which is controlled by section 171.088:

(a) On application of a party, the court shall vacate an award if:
(3) the arbitrators:
(A) exceeded their powers;
(b) A party must make an application under this section not later than the 90th day after the date of delivery of a copy of the award to the applicant....
(c) If the application to vacate is denied and a motion to modify or correct the award is not pending, the court shall confirm the award.

Tex. Civ. Prac. & Rem.Code Ann. § 171.088 (Vernon 2005) (emphasis added). TGAA section 171.091, also referenced in section 171.088 and providing for judicial modification or correction of an award, contains the same 90-day provision for applications alleging that “the arbitrators have made an award with respect to a matter not submitted to them....” Id. § 171.091(a)(2), (b), (c) (Vernon 2005). The plain language of section 171.088, like that in section 171.091, shows that “the legislature intended the 90-day period ... to be a limitations period after which a party cannot ask a court to vacate an arbitration award.” Louisiana Natural Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 462 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (concluding same with respect to predecessor to section 171.088).

“Subjecting arbitration awards to judicial review adds expense and delay, thereby diminishing the benefits of arbitration as an efficient, economical system for resolving disputes.” CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.2002). “Accordingly, we have long held that ‘an award of arbitrators upon matters submitted to them is given the same effect as the judgment of a court of last resort. All reasonable presumptions are indulged in favor of the award, and none against it.’ ” Id. (quoting City of San Antonio v. McKenzie Constr. Co., 136 Tex. 315, 326, 150 S.W.2d 989, 996 (1941)). Also for this reason, “[o]ur review of an arbitration award is extremely narrow.” IPCO-G. & C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 256 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). “In the absence of a statutory or common law ground to vacate or modify an arbitration award, a reviewing court lacks jurisdiction to review other complaints....” Id.

B. Discussion

To support its request for confirmation, the Hospital produced a copy of the Relocation Agreement containing the arbitration clause and a copy of the arbitrator’s written award, which set out the issues that the arbitrator considered. Accordingly, the Hospital’s summary-judgment evidence entitled it to confirmation of the award unless Jacobson’s jurisdictional challenges precluded confirmation of some or all of it. See Tex. Civ. Prac. & Rem.Code Ann. § 171.087.

The Hospital produced evidence that Jacobson received the arbitrator’s award on December 18, 2007 — more than 90 days before Jacobson first raised his jurisdictional affirmative defense. Jacobson’s summary-judgment response did not deny that he had not challenged the award within the 90-day period — indeed, he admitted that he had not filed any application under the TGAA to vacate the award — but instead contended that the trial court could not confirm those portions of the award rendered outside the arbitrator’s jurisdiction because they were void.

Jacobson’s jurisdictional challenge was based on the argument that the arbitrator had exceeded his jurisdiction by rendering declarations that the arbitration agreement did not allow. We assume without deciding that the arbitrator acted outside his jurisdiction for this reason. We further assume without deciding that the jurisdictional challenges to the award in Jacobson’s answer and summary-judgment response were the equivalent of applications under the TGAA to vacate or to modify the award for the stated reason. See Blumberg v. Bergh, No. 2-04-138-CV, 2005 WL 1047592, at *8 (Tex.App.-Fort Worth May 5, 2005, no pet.) (memo, op.) (considering that grounds for vacating arbitration award were asserted in original answer, rather than in separate motion).

A challenge that the arbitrator exceeded the “power” or “authority” granted him under the arbitration agreement is normally a challenge to the arbitrator’s jurisdiction. Cf, e.g., Myer v. Americo Life, Inc., 232 S.W.3d 401, 408 (Tex.App.Dallas 2007, no pet.) (under Federal Arbitration Act, “An arbitrator’s jurisdiction is defined by the contract containing the arbitration clause and by the issues actually submitted to arbitration.”); cf. also Withers v. Patterson, 27 Tex. 491, 496 (1864) (“The jurisdiction of the court means the power or authority which is conferred upon a court, by the constitution and laws, to hear and determine causes between parties, and to carry its judgments into effect.”) (emphasis added). In TGAA section 171.088, the Legislature clearly allows a party to assert a jurisdictional challenge based on an arbitrator’s exceeding his authority, but it just as clearly requires that any such challenge be raised not later than 90 days from delivery of the award, or the award must be confirmed. See Tex. Crv. PRAC. & Rem.Code Ann. §§ 171.087, 171.088(a)(3)(A), (b); see also id. § 171.091(a)(2), (b) (same, concerning judicial modification or correction of award); Pheng Invs., Inc. v. Rodriquez, 196 S.W.3d 322, 329 (Tex.App.-Fort Worth 2006, no pet.) (equating arbitrator’s deciding issues outside scope of arbitration agreement with his exceeding his authority under TGAA section 171.088(a)(3)(A)); see also Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 690-91 (Tex.App.-Dallas 2009, no pet.) (considering challenge under TGAA section 171.088 that arbitrator exceeded her powers granted in arbitration agreement by adjudicating claims not within scope of agreement). The Legislature not only made no exception to the 90-day deadline for jurisdictional complaints, but specifically indicated that such complaints would be subject to that deadline by expressly listing among those bases to which the deadline applied one encompassing challenges to the arbitrator’s jurisdiction. The statute is not ambiguous in this regard.

Jacobson nonetheless contends that the trial court could not confirm those portions of the award exceeding the arbitrator’s jurisdiction because those portions are void, and void awards (like void judgments) may be challenged at any time. He relies on case law holding that “the authority of arbitrators is derived from the arbitration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication” and that, when an arbitrator decides matters that the agreement does not allow, he exceeds his jurisdiction, so that any award rendered thereon is void. E.g., Gulf Oil Corp. v. Guidry, 160 Tex. 139, 143, 327 S.W.2d 406, 408 (1959).

No Texas court has addressed Jacobson’s specific argument, but this Court and others in Texas have applied the TGAA’s limitations bar to assertions that the arbitrators exceeded their authority. Other Texas courts have held likewise under the similarly worded provisions of the Federal Arbitration Act (“FAA”). And courts outside Texas, when considering the provisions of various arbitration statutes that materially resemble those of the TGAA, have expressly rejected the arguments that Jacobson raises here. The holding of these last courts is based not only on the statutes’ plain language, but also on the policy behind the limited review of arbitration awards. In Texas, since arbitration is favored, judicial review of arbitral awards is extremely narrow precisely because it “adds expense and delay, thereby diminishing the benefits of arbitration as an efficient, economical system for resolving disputes.” Delgado, 95 S.W.3d at 238; Hazar, 124 S.W.3d at 429. The interpretation proposed by Jacobson undermines that policy, while that proposed by the Hospital promotes it. We distinguish the cases on which Jacobson relies because (1) none was decided under the TGAA and (2) the timing of the jurisdictional challenge to the award was not at issue.

We hold that because Jacobson did not timely challenge the arbitration award on the basis that the arbitrator acted outside his jurisdiction, he could not assert this ground as a bar to any portion of the award’s confirmation. We thus further hold that the trial court erred in denying the Hospital’s summary-judgment motion to the extent that it sought confirmation of that award.

We sustain the Hospital’s sole issue.

CONCLUSION

We reverse the summary-judgment order, but only to the extent that it denied confirmation of the arbitration award. We remand the case with instructions for the trial court to grant the Hospital’s summary-judgment motion to the extent that the Hospital sought confirmation of the arbitration award, and we further instruct the trial court to render an order confirming the award. To the extent that the summary-judgment order denied relief on any other basis, the order remains intact.

      . See Tex. Civ. Prac. & Rem Code Ann. §§ 37.001-011 (Vernon 2008).

        . See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001-.098 (Vernon 2005).

      . Rule 6.06, entitled "Scope of Award,” provides, among other things, that "[t]he arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the arbitration agreement of the parties, including, but not limited to, specific performance of a contract.” American Health Lawyers Association Alternative Dispute Resolution Service, Rules of Procedure for Arbitration, pp. A-15 to A-16 (revised June 2009) http://publish.healthlawyers.org/ Resources/ADR/Code%20of%20Ethic%20and %20Rules%20of%20Procedures 1/ADR %20Rules%20of%20Procedure%20for %20Arbitration% 20-% 20 RevisedJune% 202009.pdf (last visited April 30, 2010).

      . See Slay v. Nationstar Mortgage, L.L.C., No. 2-09-052-CV, 2010 WL 670095, at *3 (Tex.App.-Fort Worth Feb. 25, 2010, no pet.) (memo, op.) (holding, under either TGAA or Federal Arbitration Act, that challenges including that arbitrator exceeded his authority were waived for their not having been asserted within statutory limitations period); Blumberg v. Bergh, No. 2-04-138-CV, 2005 WL 1047592, at *3 & n. 21 (Tex.App.-Fort Worth May 5, 2005, no pet.) (memo, op.) (concluding that grounds for vacating award were waived when raised only in answer filed after 90-day period, including challenge that arbitrators had mistakenly exceeded their authority to arbitrate); Louisiana Natural Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 462 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding that trial court did not err in rendering summary judgment confirming amended arbitration award because appellant had not moved to vacate award within 90-day period, when one of appellant's challenges was that summary judgment should not have been rendered on amended award because "there [were] fact issues regarding whether the arbitration panel had authority to amend the award”).

      . See Slay, 2010 WL 670095, at *3 (holding, under either TGAA or FAA, that challenges including that arbitrator exceeded his authority were waived for their not having been asserted within statutory limitations period); Brust v. MBNA Am. Bank, N.A., No. 2-04-294-CV, 2005 WL 1047583, at *1 & n. 6 (Tex.App.-Fort Worth May 5, 2005, pet. granted, case dism'd) (memo, op.) (concluding that challenges seeking vacatur of award under FAA were time-barred, including one that arbitrator had "exceed[ed] the express limits of his contractual mandate”); see also 9 U.S.C.S. §§ 10(a)(4), 11(b), 12 (LexisNexis 2008).

      . See DeLorto v. United Parcel Serv., Inc., 401 F.Supp. 408, 409 (D.Mass.1975); Schroud v. Van C. Argiris & Co., 78 Ill.App.3d 1092, 1095-96, 34 Ill.Dec. 428, 398 N.E.2d 103, 105-06 (Ill.App.Ct.1979); Local 589, Amalgamated Transit Union v. Mass. Bay Transp. Auth., 397 Mass. 426, 430-32, 491 N.E.2d 1053, 1056-57 (Mass.1986); Springfield Teachers Ass’n v. Springfield Sch. Dirs., 167 Vt. 180, 189-90, 705 A.2d 541, 547 (Vt.1997); see also Posadas de Puerto Rico Assocs., Inc. v. Asociacion de Empleados de Casino de Puerto Rico, 648 F.Supp. 879, 883-84 (D.Puerto Rico 1986), aff'd on other grounds, 821 F.2d 60 (1st Cir.1987).

      . See Local 589, Amalgamated Transit Union, 397 Mass. at 431, 491 N.E.2d at 1056-57 ("The statutory language is unambiguous. We decline to create an exception through judicial decision.... The purpose of the thirty-day period ... is clear. Parties are allowed only a short period of time to move courts to vacate an award in order to accord the arbitration award finality with reasonable promptness.... To adopt an exception to [the statutory timeliness requirement] ... would defeat the important policy goals ... by creating 'an exception capable of swallowing the rule.’ ”) (internal citations omitted); Springfield Teachers Assoc., 167 Vt. at 190, 705 A.2d at 547 (“Many of the challenges to an arbitration award can be characterized as jurisdictional. The usefulness of arbitration is undermined if issues can be withheld from the arbitrator and raised for the first time in court long after the arbitration is over. These considerations reinforce our construction of the statute to require that jurisdictional challenges be raised within the statutory time limit for a motion to vacate.”).

      . See Gulf Oil Corp. v. Guidry, 160 Tex. 139, 142-43, 327 S.W.2d 406, 408-09 (1959); Fortune v. Killebrew, 86 Tex. 172, 176-78, 23 S.W. 976, 977-78 (1893); Hooker v. Williamson, 60 Tex. 524 (1883); City of Beaumont v. Int’l Ass’n of Firefighters, Local Union No.

        399, 241 S.W.3d 208, 214-15, 217 (Tex.App.-Beaumont 2007, no pet.); Peacock v. Wave Tec Pools, Inc., 107 S.W.3d 631, 639 (Tex.App.-Waco 2003, no pet.).

      . In his brief, Jacobson also contends that (1) "to the extent that the Award reflects an adjudication of the Hospital’s claim for breach of the Note ... such adjudication is void and cannot serve as a basis for summary disposition of” the merits of the claim to enforce the Note, i.e., even if the award must be confirmed, any void portions are of no effect, and (2) res judicata does not bar his other affirmative defenses for various reasons. We cannot consider these arguments because they concern the merits of the suit on the Note and we have no jurisdiction in this interlocutory appeal to review the denial of the summary-judgment motion on that claim. See, e.g., Tex. Mun. Power Agency v. Pub. Util. Comm' n of Tex., 253 S.W.3d 184, 192 (Tex.2007) (noting that denial of summary judgment motion is normally unappealable); W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., 237 S.W.3d 745, 751 (Tex.App.-Houston [1st Dist.] 2007, orig. proceeding & no pet.) (mandamus and interlocutory appeal) ("We are strictly to construe the legislative bases for allowing interlocutory appeals, given that interlocutory appeals are in derogation of the general rule that only final judgments are appealable.”).