author: TERRIE LIVINGSTON, Justice.

text:
    Rosemary SMITH, Brady Smith, and Donna Hubbard, Individually and as Personal Representative of the Heirs and Estate of Dorman Smith, Deceased, Appellants, v. KELLY-MOORE PAINT COMPANY, INC., Appellee.
    No. 2-08-198-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 25, 2010.

      Waters & Kraus, L.L.P., Charles S. Sie-gel & Loren Jacobson, Dallas, TX, for appellants.
    Craig A. Morgan, Brown McCarroll, LLP, Todd Wade, Austin, TX, for appellee.
    Panel: LIVINGSTON, McCOY, and MEIER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This is an appeal from a summary judgment in favor of appellee Kelly-Moore Paint Company, Inc. in this asbestos exposure products liability case. In a single issue, appellants Rosemary Smith, Brady Smith, and Donna Hubbard, Individually and as Personal Representative of the Heirs and Estate of Dorman Smith, Deceased (collectively, the Smiths), contend that the trial court erred by granting a no-evidence summary judgment on the ground that the Smiths failed to adduce sufficient evidence that Dorman had been exposed to chrysotile asbestos in Kelly-Moore’s drywall joint compounds in a dose sufficient to have been a substantial factor in causing his mesothelioma.

Background Facts

Dorman began working in the construction business, specifically as a self-employed drywaller finisher using joint compound, around 1955, and he performed the same type of work through the mid 1980s. Doctors eventually diagnosed him with mesothelioma in early 2005. As a result, the Smiths sued several defendants, including Kelly-Moore, in Tarrant County, claiming that exposure to the asbestos in those defendants’ joint compound products proximately caused Dorman’s mesothelio-ma. Dorman died after filing suit, on December 9, 2005.

The ease was transferred to the 11th District Court, the Texas multidistrict litigation pretrial court. See Tex. Civ. Prac. & Rem.Code Ann. § 90.010(a) (Vernon Supp. 2009); Tex. R. Jud. Admin. 18, reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. F app. (Vernon Supp. 2009). Before trial, Kelly-Moore moved for both a no-evidence and traditional summary judgment, contending that the Smiths had presented no evidence that Dorman’s exposure to any of Kelly-Moore’s chrysotile asbestos-containing joint compound product caused his mesothelioma, under the test set forth in the supreme court’s opinion in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex.2007). The 11th District Court granted Kelly-Moore’s no-evidence motion for summary judgment and transferred the remaining claims back to the 153rd District Court in Tarrant County for trial; however, the remaining claims against the other defendants were either settled or dismissed, making the summary judgment final. The Smiths then appealed the summary judgment ruling in favor of Kelly-Moore.

No-Evidence Summary Judgment Standard of Review

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008).

When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)). We credit evidence favorable to the non-movant if reasonable jurors could, and we disregard evidence contrary to the non-movant unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)). If the non-movant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.2009).

Issue on Appeal-Specific Causation

The ground raised in Kelly-Moore’s no-evidence summary judgment motion — and therefore the issue on appeal — is whether the Smiths produced sufficient evidence that Dorman was exposed to chrysotile asbestos from Kelly-Moore’s joint compound product at an exposure level or dose sufficient to have been a substantial factor in his developing mesothelioma. According to Kelly-Moore’s no-evidence summary judgment motion, the Smiths did not produce any credible evidence of (1) the amount of chrysotile asbestos from Kelly-Moore products to which Dorman had been exposed, (2) epidemiological studies of similarly situated persons showing that exposure to chrysotile asbestos in any amount would double the risk of developing mesothelioma, or (3) a minimum threshold exposure to asbestos above which an increased risk of developing mesothelioma occurs. Thus, Kelly-Moore contends that the Smiths did not bring forward sufficient evidence of specific causation under the test set forth by the Texas Supreme Court in Borg-Warner v. Flores and applied in a similar fact scenario by the Houston Fourteenth Court of Appeals in Georgia-Pacific Corp. v. Stephens. At oral argument, Kelly-Moore clarified that it was relying on the distinction between chrysotile and other types of asbestos; in other words, Kelly-Moore contends that although the Smiths may have brought forward at least some sufficient evidence that exposure to amphibole or other types of asbestos in the amount to which Dorman was exposed leads to an increased risk of mesothelioma, they brought forward no evidence that exposure to only chrysotile asbestos would amount to such an increased risk. Kelly-Moore further contends that there is no evidence in the record of a minimum threshold of chrysotile above which a person is at increased risk of developing mesothelioma.

Specific Causation in Asbestos Cases

In Borg-Warner v. Flores, an automobile mechanic sued Borg-Warner and others claiming that the dust generated by the grinding of asbestos-containing brake pads caused his asbestosis. 232 S.W.3d at 766. In reviewing the intermediate appellate court’s determination that Flores had brought forward legally sufficient evidence of causation at trial, the supreme court considered the appropriate causation standard to be applied in cases in which a plaintiff “claim[s] to be injured by an asbestos-containing product.” Id. at 768-69. The court held that in such cases, “we must determine whether the asbestos in the defendant’s product was a substantial factor in bringing about the plaintiffs injuries.” Id. at 770. Because “exposure to asbestos, a known carcinogen, is never healthy but fortunately does not always result in disease,” a plaintiff must prove more than exposure to an asbestos-containing product to prove that a particular product was a substantial factor in bringing about his or her injuries. Id. at 770-71. To prove “substantial factor causation,” a plaintiff must show both frequent, regular, and proximate exposure to the product and reasonable quantitative evidence that the exposure increased the risk of developing the asbestos-related injury. Id. at 769-72; Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 312 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir.1986). Epidemiological studies showing at least a doubling of the risk of disease upon exposure to asbestos have evidentiary significance only if “the injured person can show that ‘the exposure or dose levels were comparable to or greater than those in the studies.’ ” Borg-Warner, 232 S.W.3d at 771 (quoting Havner, 953 S.W.2d at 720-21). According to Borg-Wamer, then, to prove specific causation in an asbestos exposure case, there must be some evidence of an aggregate dose of exposure to the plaintiff that was a substantial factor in causing the asbestos-related disease; in other words, there must be some evidence that the dose to which the plaintiff was exposed exceeds a minimum dose, or “threshold,” at which an increased risk of developing the injury has been shown. See Borg-Warner, 232 S.W.3d at 770-73; Stephens, 239 S.W.3d at 312, 321.

The Fourteenth Court of Appeals applied the Borg-Wamer “substantial factor causation” test in a suit brought by a commercial painter who alleged that his mesothelioma was caused by exposure to Georgia Pacific’s joint compound, which contained only chrysotile asbestos. Stephens, 239 S.W.3d at 306. In Stephens, a jury trial case, the plaintiff not only failed to provide legally sufficient evidence of frequent, regular, and proximate exposure to Georgia Pacific’s product, but he also failed to show a minimum dose at which an increased risk of mesothelioma from chry-sotile-only asbestos exposure would occur. Id. at 321. Stephens’s experts testified instead that there is no minimum level of exposure to chrysotile asbestos below which an increased risk of injury does not occur, despite acknowledging that asbestos fibers are present in the ambient air we breathe, especially in urban areas; in other words, the experts testified that any exposure to chrysotile asbestos increases the risk of injury. Id. at 314-15. The court of appeals held that Borg-Wamer requires proof of more than “any exposure” as a minimum level to which the aggregate dose can be compared; otherwise, there is no way to determine whether the product was a substantial factor in causing the plaintiffs mesothelioma as opposed to it being attributable to asbestos exposure in the ambient air. Id. at 321; see Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 95 (Tex.1999).

Application of Substantial Factor Causation Test in Mesothelioma Cases

The Smiths first contend that the “substantial factor causation” test announced by the supreme court in Borg-Warner and applied by the Fourteenth Court of Appeals in Stephens is not applicable in every asbestos exposure case. Specifically, they contend that “Borg-Warner ... did not create an absolute requirement in every asbestos case that [a] plaintiff produce quantitative evidence of ‘dose’ to each defendant’s product, as a condition precedent to a finding of liability.” They point out the difference between mesothelioma and asbestosis, which is the disease at issue in Borg-Warner. Asbestosis is a dose-related disease that is typically the result of either “long-term, high-level exposure to asbestos” or “relatively brief but extremely heavy exposure.” Borg-Warner, 232 S.W.3d at 771. It “appears to be dose-related, ‘so that the more one is exposed, the more likely the disease is to occur, and the higher the exposure the more severe the disease is likely to be.’ ” Id. (quoting 3 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 28.22, at 447 (2007)). In addition, there are over 100 causes of asbestosis. Id. at 766. On the other hand, the Smiths presented evidence that mesotheli-oma is a signature disease, meaning that it does not typically occur in the absence of asbestos exposure. See C.R. at 1706 (citing P. Boffetta, Health Effects of Asbestos Exposure in Humans: a Quantitative Assessment, Med Lav 89(6):471-80 (1998) (“Because of the rarity of the disease and the specificity of the causal association, all cases occurring among asbestos exposed workers are attributed to this exposure.”)). In addition, it is generally accepted that a person can develop mesothelioma from only low levels of asbestos exposure. Borg-Warner, 232 S.W.3d at 771 (citing 3 Faigman, supra). The Smiths contend that the nature of mesothelioma thus distinguishes this case from Borg-Wamer so that the requirements of showing a total and threshold dose are not necessary.

Although it appears from both scientific literature and case law that the causative connection between mesothelio-ma and asbestos exposure is much more solidly linked than in cases of asbestosis and asbestos exposure, such that asbestos exposure in any amount other than general background levels would appear to be causative of mesothelioma, we cannot read Borg-Wamer, and the test announced therein, so narrowly as to apply only to asbestosis or asbestos-exposure cases other than mesothelioma. The supreme court quite clearly states that the test it announces is the standard to be applied in cases in which a plaintiff “claim[s] to be injured by an asbestos-containing product.” Id. at 768-69. The court did not distinguish among different diseases caused by asbestos exposure, nor among different types of asbestos. Thus, we conclude and hold — as we must, being bound by supreme court precedent — that a plaintiff in a mesothelioma suit that he or she claims is caused by an asbestos-containing product must prove the elements set forth in Borg-Wamer’s “substantial factor causation test”: specifically, an aggregate dose of exposure from the defendant’s product and a minimum threshold dose above which an increased risk of developing mesothelioma occurs. See Stephens, 239 S.W.3d at 312, 320-21; see also Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (noting that once the supreme court announces a proposition of law, that proposition is binding precedent and may not be modified or abrogated by a court of appeals).

Thus, in this case, we must determine whether there is any evidence that would raise a genuine fact issue as to (1) the total dose of chrysotile asbestos from Kelly-Moore products to which Dorman was exposed and (2) whether that dose exceeds a minimum threshold dose above which an increased risk of developing mesothelioma occurs.

Dorman’s Total Exposure to Kelly-Moore Joint Compound

Lay Witness Testimony

The Smiths attached excerpts from Dor-man’s deposition to their summary judgment response, in which he testified that as a drywall finisher, he “always” worked with joint compounds. He personally mixed, sanded, and swept the dust generated by the joint compound during mixing and sanding. He also breathed in a significant amount of that dust during those activities. During the mixing process, the dust would come right back up in his face and he would breathe it. Dorman said he “looked like Frosty the Snowman after finishing a job.”

Dorman testified that he did thousands of drywall jobs over his career. Over that career, he used all the brands of joint compound “about the same.” According to Dorman, when he used Kelly-Moore product, he breathed in the dust the same as he would when he did jobs using other products. Dorman did not know when he first started using Kelly-Moore joint compound, but he stopped using it in the mid to late 1970s, after Kelly-Moore had removed asbestos from its products.

Dorman’s son Brady Smith worked with him from the late 1960s to the 1970s. He testified in his deposition that when he worked with his father, they only used Kelly-Moore ready mixed product (so the only dust would be generated from sanding and sweeping). According to Brady, they used Kelly-Moore product on a “pretty regular basis,” but the amount could vary, and they used it a little less than others because of the price.

According to Brady, he and his father spent the majority of their time working in residential tract homes and apartment buildings; they spent about 10 percent of their work time on commercial projects. Brady estimated they spent 10 percent of the work week sanding — and fifteen percent mixing and sweeping — joint compound. An average house they worked in would be a three-bedroom, two-bath with about 1400 to 1800 square feet; the average size of the bedrooms was about 10 x 10, the average size of the bathrooms 6 x 6, and the average size of the dining and living areas about 15 x 12. The apartments they worked in were about 800 to 900 square feet with 10 x 10 bedrooms and 20 x 20 kitchen/living/dining combination areas.

Expert Testimony

Dr. Ronald Dodson performed a tissue burden analysis on Dorman’s lung tissue after he died. The Smiths provided deposition excerpts in which Dr. Dodson testified that he found silica, talc, glass, and chrysotile fibers in Dorman’s lung tissue. He could not tell when any of the chryso-tile fibers were deposited into the lung tissue. All of the chrysotile fibers he observed were longer than what he would expect to find in the lungs of the general population, i.e., those who had only had background exposure, and not occupational exposure, to asbestos.

The Smiths also attached deposition excerpts from a defendant’s expert, Patricia Hall, a certified industrial hygienist, in which she estimated that as a “worst-case estimate,” Dorman had a total exposure to asbestos-containing joint compounds of six years, working with joint compound at least fifty percent of the day, amounting to a total exposure of 9-15 fibers/cc year over the course of his career. However, Hall disputed that this amount of exposure correlates to any increased risk of mesothelio-ma if all of that exposure was to chrysotile asbestos only.

The Smiths further presented an affidavit and deposition testimony from Dr. William Longo, who performed fiber release studies measuring the effects of mixing, sanding, and sweeping up the dust from various joint compounds in a laboratory setting. The dry powder Kelly-Moore product he tested contained 8% chrysotile. Dr. Longo measured Kelly-Moore joint compound as emitting an average of 1.2 fibers/cc for mixing, 1.6 fibers/cc for sanding, and 1.3 fibers/cc for sweeping. Thus, in a job in which Dorman mixed, sanded, and swept Kelly-Moore joint compound, he would have been exposed to an average of 4.1 fibers/cc, which exceeds the 1976 OSHA recommended limit of 2 fibers/cc (this permissible exposure level (PEL) was further reduced by OSHA in the 1990s to .1 fiber/cc for all asbestos fiber types). Dr. Longo also opined that a real world exposure would have been higher because a person working on a typical dry wall finishing project would use around 25 bags of mix and sand an entire room as opposed to five linear feet sanded in Dr. Longo’s tests.

Conclusion

Considering this evidence in the light most favorable to the Smiths, there is at least a fact question as to how often Dor-man used (and was therefore exposed to) Kelly-Moore joint compound as opposed to other companies’ joint compounds; because he testified that he used it “about the same” as any other, it is possible to roughly estimate his total use of Kelly-Moore product as a fraction of the total estimated use divided by the number of products he allegedly used. Based on these facts, the Smiths at least raised a genuine issue of material fact as to the aggregate dose of Kelly-Moore asbestos-containing joint compound (and total asbestos fibers) to which Dorman was exposed. Accordingly, we conclude and hold that the Smiths raised a genuine issue of material fact as to the Lohrmann factors (frequency, regularity, and proximity). We must next determine whether they raised a genuine issue of material fact as to whether the total dose of chrysotile asbestos to which Dorman was exposed exceeds a minimum dose above which mesothelioma does not occur. See Borg-Warner, 232 S.W.3d at 770-73; Stephens, 239 S.W.3d at 312, 321.

No Evidence of Minimum Dose of Chry-sotile at Which Increased Risk of Developing Mesothelioma Occurs

Dr. Arnold Brody, a research scientist in lung biology and lung pathology, averred in an affidavit that “[a]ll of the asbestos varieties have been shown to cause genetic errors[,] and fibers less than five microns can bind DNA and thus contribute to the development of genetic damage .... Exposure to asbestos fibers of all types and lengths should be considered in assessing a person’s risk of developing mesothelioma.” However, he did not opine as to how much asbestos Dorman had been exposed to or what a minimum exposure at which a person’s risk of meso-thelioma increases might be. Thus, his opinion only goes to general causation. See Havner, 953 S.W.2d at 714; Stephens, 239 S.W.3d at 308.

Another of the Smiths’ experts, Dr. John Maddox, who is board certified in anatomical and clinical pathology and hematology, concluded that Dorman breathed substantial amounts of dust from the products of each of the defendants and that these exposures were a substantial contributing factor in the development of his mesotheli-oma. According to Dr. Maddox, “[b]e-cause asbestos dust is so strongly associated with mesothelioma, proof of significant exposure to asbestos dust is proof of specific causation.” Dr. Maddox opined that it is generally accepted in the scientific community that there is no minimum level of exposure to asbestos “above background levels” below which adverse effects do not occur. In fact, he stated that “[a]ttempts to define any such a minimum level of exposure above background levels of asbestos have been dismissed as ‘logical nonsense.’ ” He estimated a mean background level at .0003 to .0004 fibers/cc, which is well below Dorman’s estimated total exposure. See, supra, Conclusion.

According to Dr. Maddox, “[t]he overwhelming world scientific consensus is that dust from all three commercial types of asbestos — amosite, crocidolite and chryso-tile — are all capable of causing diffuse mesothelioma.” However, the literature upon which Dr. Maddox relied is inconclusive regarding the effect of exposure to only chrysotile fibers; while studies have shown increased risks of mesothelioma in chrysotile miners and millers and in people living in chrysotile mining areas, researchers have hypothesized that this may be because the chrysotile was mixed with other types of fibers. Additionally, the studies showing an increased incidence of mesothelioma in these populations did not attempt to extrapolate any minimum dose of chrysotile to which these populations were exposed. Most of the studies agree that amphibole fibers are considered more potent than chrysotile fibers in terms of causing mesothelioma. Moreover, at least one study notes that mesothelioma is rare, even among populations exposed only to chrysotile.

Dr. Maddox cited OSHA regulations for the proposition that chrysotile is capable of causing mesothelioma. Current OSHA PELs for all fiber types are .1 fiber/cc; Dorman’s estimated exposure clearly exceeded those levels. However, even the comments to the OSHA guidelines acknowledge that chrysotile studies are inconclusive as to what level of chrysotile creates an elevated risk of mesothelioma but nevertheless conclude that the PEL for chrysotile should be the same as for all other fiber types because asbestos is so dangerous and clearly has adverse effects.

To support his opinion that Dorman’s exposure to chrysotile was a substantial factor in causing his mesothelioma, Dr. Maddox points specifically to a study that found a proportionate mortality ratio of 2.03 for mesothelioma deaths among plasterers in England. According to Dr. Maddox, the plasterers were “individuals who used joint compounds that contained chry-sotile asbestos.” But the copy of the study attached to his affidavit does not mention the nature of the work done by the plasterers, nor does it differentiate among asbestos fibers. Because there is insufficient information to compare the exposure or dose levels of the plasterers to Dorman’s, this study cannot be relied on as statistically significant in determining specific causation of Dorman’s mesothelioma. See Borg-Warner, 232 S.W.3d at 771-72.

The Smiths rely on several specific studies in their reply brief, arguing that they provide at least a scintilla of evidence as to the minimum threshold value required by Borg-Wamer. The Selikoff studies measured the potential amount of fibers to which a worker using joint compound in the same manner as Dorman would have been exposed, but those studies did not “attempt to correlate the exposures to any incidence of mesothelioma or asbestos-related disease among the study subjects.” See Stephens, 239 S.W.3d at 317. And a study by Iwatsubo showing a four-fold increase of mesothelioma at an exposure level of .5 fibers/cc, and a study by Rodel-sperger showing a 7.9 odds ratio of an increased risk of mesothelioma at cumulative exposures between 0.0 and .15 fibers/cc year, both fail to provide the minimum dose evidence required under Borg-Wamer: neither study differentiates among fiber types.

Dr. Maddox further relies on the results of “molecular biological studies, animal experiments, epidemiological studies, case reports, and asbestos tissue burden studies.” Specifically, he notes that in one study, “151 human malignant diffuse meso-thelioma cases were identified and characterized by high-resolution analytical electron microscopy. Chrysotile alone, with no amphiboles, was found in the lungs in over 23% of the cases. In those cases where the mesothelioma only was examined, 77% contained only chrysotile.” Although this example clearly shows that chrysotile is capable of causing mesothelio-ma, as evidenced by its presence in the decedents’ lung tissue, there is no indication in the literature as to the approximate dose of chrysotile that the studied decedents were exposed to. Thus, this study cannot be relied on to show specific causation as to Dorman. See Borg-Warner, 232 S.W.3d at 771-72. Moreover, there is no evidence of any attempt to correlate the dosages in the animal studies to an approximate exposure level in humans, and none of the epidemiological studies show a minimum threshold of chrysotile exposure from which to measure whether Dorman had an elevated risk of mesothelioma.

It appears well-established in the scientific literature presented by the Smiths that there is a threshold dose above which a person has an elevated risk of developing asbestosis from chrysotile-only exposure. But that same evidence does not support a minimum threshold dose for chrysotile only exposure that would increase one’s risk of developing mesothelioma. Some of these same studies upon which Dr. Maddox relies are the ones examined and found lacking in Stephens. See 239 S.W.3d at 316. Thus, even though the Smiths raised a fact issue as to the Lohrmann factors (whereas evidence as to those factors was lacking in Stephens), the Smiths’ evidence ultimately suffers the same defect as the plaintiff’s in Stephens: “[without ... scientific evidence of the minimum exposure level leading to an increased risk of development of mesothelioma” from exposure to chrysotile-only asbestos, such as that contained in Kelly-Moore’s joint compound, Dr. Maddox’s opinion lacks “the factual and scientific foundation required by Borg-Wamer ” and, thus, is insufficient to raise a fact issue as to specific causation. Id. at 321. We therefore must overrule the Smiths’ sole issue.

Conclusion

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

      . This court dismissed the Smiths’ appeal against Bondex International, Inc. and RPM, Inc. in accordance with a joint motion by the Smiths, Bondex, and RPM. No. 02-08-00198-CV, 2009 WL 2356855, at *1 (Tex.App.-Fort Worth July 30, 2009, no pet.).

      . Kelly-Moore challenged the Smiths’ evidence as to specific causation only: whether Kelly-Moore’s asbestos-containing product caused Dorman’s mesothelioma. They did not challenge the evidence as to general causation, i.e., that Kelly-Moore’s asbestos-containing joint compound is capable of causing mesothelioma in the general population. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

      . There are six different types of asbestos; chrysotile is the most abundant type of asbestos fiber and is a serpentine fiber consisting of "pliable curly fibrils which resemble scrolled tubes.” Borg-Warner, 232 S.W.3d at 766 n. 4 (citing Lee S. Siegel, Note, As the Asbestos Crumbles: A Look at New Evidentiary Issues in Asbestos Related Property Damage Litigation, 20 Hofstra L. Rev. 1139, 1149 (1992)). The remaining five types are generally referred to as amphiboles.

      . Other jurisdictions have recognized the need for taking into account the nature of the plaintiff's asbestos related disease in determining causation. See, e.g., Purcell v. Asbestos Corp., 153 Or.App. 415, 959 P.2d 89, 94 (1998) (declining to adopt the Lohrmann test but noting that "even the jurisdictions that follow the frequency, regularity, and proximity test apply it less rigidly when dealing with mesothelioma, because it can be caused by very minor exposures”), opinion modified on nondispositive grounds, 155 Or.App. 1, 963 P.2d 729 (1998); Wehmeier v. UNR Indus., Inc., 213 Ill.App.3d 6, 157 Ill.Dec. 251, 572 N.E.2d 320, 337 (1991) (stating that in applying the Lohrmann factors, each case will stand on its facts and pointing out the difference in exposure levels needed to cause meso-thelioma and asbestosis).

      . Dorman used both quick and non quick set joint compound (one creates dust when mixing, and the other is premixed so the only dust is from sanding and sweeping). But in the beginning of his career, he "always mixed

      . When asked which product he used the most, Dorman answered, "All of them,” and "[w]hatever was closest for me to get, that's what I bought.”

      . Hall's opinion was in the context of determining what Dorman's exposure to Sherwin Williams's products might have been.

      . In answering the Smiths’ interrogatories, Kelly-Moore provided a chart showing that its dry powder joint compounds contained between 0 and 8.3 percent chrysotile asbestos. But Dr. Longo points out in his affidavit that he never tested a Kelly-Moore joint compound that contained zero or "a wide range" of chrysotile.

      . Dr. Maddox opined that "while there is no known safe level of exposure to asbestos that will protect against mesothelioma, it is generally accepted that there is such a threshold for asbestosis.”

      . And one study noted, "In some studies ... workers exposed to only chrysotile asbestos have shown no increased risk of lung cancer. ... As a consequence, researchers have implicated not chrysotile per se but a contaminant amphibole fiber as the specific cause of lung cancer ... and malignant mesothelio-ma."

      .One study found the risk of mesothelioma to be 1:100:500 for chrysotile, amosite, and crocidolite, respectively. Patricia Hall stated in her deposition testimony that her "understanding of the literature is that chrysotile asbestos is not associated with an increased risk of mesothelioma unless the dose, the cumulative dose, is so massive as to be able to cause asbestosis. So we're looking at high numbers.... There are ... some numbers that are presented in the literature that the ... dose of chrysotile to produce asbestosis is in the range of 100 to 200 fiber years. So it takes a sufficient dose in order to be able to cause asbestosis with just a chrysotile exposure. It takes a significant dose.” Dr. Dodson acknowledged in his deposition that some scientists believe that amphiboles and chiyso-tile are equally potent, but others believe am-phiboles are more potent than chrysotile. He agreed that it would be reasonable to say that most scientists and researchers would opine and do opine in the peer-reviewed literature that amphiboles are more potent than chryso-tile.

      . Another study indicates that environmental exposure to asbestos is also associated with mesothelioma.

      . The regulations note that "although there is some evidence linking chrysotile to a lower mesothelioma rate than some amphibole fiber types, OSHA believes that there is insufficient evidence to show that chrysotile does not present a significant mesothelioma risk to exposed employees.” 29 C.F.R. Part 1910, Occupational Exposure to Asbestos: Final Rule (Aug. 10, 1994). Exposure above the OSHA levels cannot be used as evidence of negligence per se, however. See McClure v. Denham, 162 S.W.3d 346, 353 (Tex.App.-Fort Worth 2005, no pet.).


source: Caselaw Access Project

author: Justice RICHTER.

license: Public Domain

text:
    William Henry MYRE and Craig Development, Inc., Appellants, v. Carl MELETIO, Rusty Mobley, Jeff Schmitz, James Young, Bobby White, Renee Hill, Jeff Milford, James Hale, and Hilario Paulin, Appellees.
    No. 05-08-00576-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 26, 2010.
    Rehearing Overruled April 12, 2010.

      Richard B. Phillips, Jr., Scott P. Stolley, Thompson & Knight, L.L.P., Michael R. Johnson, Dallas, TX, George Ivan Alexander, Curtis, Alexander, McCampbell & Morris, P.C., Robert L. Scott, Scott, Money & Ray, Greenville, TX, for Appellants.
    Jonathan F. Winocour, Winocour & Scarbrough, F. Leighton Durham, Durham & Pittard, LLP, David R. Weiner, Weiner Law Firm, Dallas, TX, Daniel J. Perkins, Watkins & Perkins, Greenville, TX, for Appellees.
    Before Justices MOSELEY, RICHTER, and FRANCIS.
   OPINION

Opinion By

Justice RICHTER.

This fraud case arises out of the purchase and sale of residential properties alleged to have diminished value because they are prone to flooding. A jury returned a verdict in favor of homeowners Carl Meletio (“Meletio”), Rusty Mobley (“Mobley”), Jeff Schmitz (“Schmitz”), James Young (“Young”), Bobby White (“White”), Renee Hill (“Hill”), Jeff Milford (“Milford”), James Hale (“Hale”), and Hilario Paulin (“Paulin”) (collectively or in combination, the “Homeowners”), awarding damages for fraud and negligence against William Myre (“Myre”), Daniel Myre (“DM”) and Craig Development, Inc. (“Craig Development”). The trial court required the Homeowners to make an election of remedies, and following the election, a judgment awarding damages for fraud was entered against Myre in favor of all Homeowners except Milford. In three issues on appeal, Myre argues the evidence of damages and liability for fraud is legally and factually insufficient to support the judgment. On cross-appeal, the Homeowners assert the trial court erred in denying their recovery against DM because he is individually liable for his fraud. Because we conclude the evidence is legally insufficient to support a judgment for fraud against Myre or DM, we reverse the trial court’s judgment and remand the case for the Homeowners to make a new election of remedies.

BACKGROUND

In 1996, Myre and DM purchased a tract of land in Hunt County. Myre and DM subsequently developed the Cole Estates subdivision on a portion of this land. In March 1999, Myre and DM executed a power of attorney to Lynn Craig, authorizing her to act on their behalf in real estate transactions. Craig is Myre’s daughter and DM’s sister. Craig is also the president and sole shareholder of Craig Development, which during the applicable time frame, was engaged in the business of developing residential property.

Myre and DM engaged Wisdom Engineering to draw a plat for the subdivision. There is a special flood hazard area near the lots that eventually became Cole Estates, and the initial plat that Wisdom prepared included lots in this area. But Myre and DM rejected the plat, and a new plat was prepared. The new version of the plat submitted to Hunt County for approval which ultimately became Cole Estates did not include any lots in the flood hazard area but did not include a drainage plan as required by county regulations.

On various dates, Myre conveyed five of the Cole Estates subdivision lots to Craig Development. Some of these transfers were made on the same day the lot was subsequently conveyed to the respective Homeowner who purchased it, but Craig Development is listed as the grantor on the deeds conveying the property to these Homeowners. Between 2000 and 2002, the Homeowners purchased lots in Cole Estates and Craig Development d/b/a John Lovett Homes constructed their homes. Hill purchased her property directly from Myre, and White and Paulin purchased their property from DM. Meletio, Schmitz, Mobley, Hale, and Young purchased the lots Myre had conveyed to Craig Development. Milford did not purchase property from Myre, DM, or Craig Development. The seller of Milford’s property was R. Hargrave, Inc., an entity that is not involved in this lawsuit.

The Homeowners’ properties flooded during a significant rainstorm in 2002. Although the extent of the flooding varied, eight of the nine Homeowners suffered no flood damage to their homes. Paulin had some water enter his home, but did not know whether the water entered from below or leaked from the roof. The properties flooded again during rainstorms in 2008, 2004, and 2006, but like the 2002 event, none of the homes were flooded.

In 2004, the Homeowners sued Myre, DM, and Craig Development. The trial court subsequently granted the defendants’ motion for partial summary judgment and disposed of numerous claims. The case was tried to a jury, and upon conclusion, the court submitted the issues of fraudulent nondisclosure and negligence for the jury’s consideration. The jury charge included a separate damages question utilizing the same measure of damages for each defendant on the fraud claim and a separate damages question for each defendant on the negligence claim. The jury was not asked to apportion liability under section 38.008 of the Texas Civil Practice and Remedies Code.

The jury found that all three defendants committed fraudulent nondisclosure and that Myre and DM were negligent. The Homeowners moved for judgment and proposed to recover mix-and-match awards against all three defendants. The Homeowners also sought to impose joint and several liability for fraud against Myre. Myre, DM. and Craig Development moved for judgment notwithstanding the verdict on the fraud and negligence claims, and argued the Homeowners were only entitled to judgment against one defendant on one claim because the Homeowners had alleged a single, indivisible injury and the measure of damages was the same for each damages question submitted to the jury. Myre, DM, and Craig Development further argued that the Homeowners were not entitled to impose joint and several liability against Myre.

The trial court denied the motion for judgment notwithstanding the verdict, but required the Homeowners to elect a recovery on only one cause of action against a single defendant. The Homeowners elected to recover against Myre for fraud. A final judgment was entered, awarding damages for fraud against Myre as to eight of the nine Homeowners, a take-nothing judgment on Milford’s claims, and a take-nothing judgment in favor of Craig Development and DM. This appeal followed.

Discussion

Did Myre Owe a Duty of Disclosure?

In his second issue, Myre challenges the legal sufficiency of the evidence to support a judgment for fraud. In support of his argument, Myre claims he did not owe a duty of disclosure to the eight Homeowners to whom he did not sell property. As for Hill, the individual to whom Myre did convey property, Myre contends the evidence adduced to establish he was aware the property was prone to flooding is incompetent, and therefore cannot support the judgment.

Fraud by omission is a subcategory of fraud because the omission or non disclosure may be as misleading as a positive misrepresentation of fact where a party has a duty to disclose. Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 658, 670 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). Thus, silence may be equivalent to a false representation when the circumstances impose a duty to speak on the party and he deliberately remains silent. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001). In the absence of a duty to disclose, however, a failure to disclose does not constitute fraud. See Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998); Marshall v. Kusch, 84 S.W.3d 781, 786 (Tex.App.-Dallas 2002, pet. denied). A duty to disclose may arise in certain situations involving partial disclosure or when the parties have a confidential or fiduciary relationship. See Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Whether such a duty exists is a question of law. Marshall, 84 S.W.3d at 786.

In the context of a real estate transaction, a seller is under a duty to disclose material facts that would not be discoverable by the exercise of ordinary care and diligence by the purchaser, or that a reasonable investigation and inquiry would not uncover. Smith v. Nat’l Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex.1979); Marshall, 84 S.W.3d at 786. But a seller has no duty to disclose facts he does not know. Robinson v. Preston-Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 (Tex.1982); Prudential Ins. Co. of America v. Jefferson Assoc., Ltd., 896 S.W.2d 156, 162 (Tex.1995); see also HTM Restaurants, Inc. v. Goldman, Sachs & Co., 797 S.W.2d 326, 329 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (holding party cannot be guilty of fraudulently concealing facts of which he is not aware). Similarly, a seller is not liable for failing to disclose what he only should have known. Prudential, 896 S.W.2d at 162.

There is no evidence of an informal confidential relationship or a fiduciary relationship between Myre and any of the Homeowners. As for 8 of the 9 Homeowners, Myre not only had no relationship with them, he had no contact at all. Therefore, there is no basis for the imposition of a duty to disclose as between Myre and these 8 Homeowners. Because there is no duty to disclose, Myre cannot be liable for fraud. See Marshall, 84 S.W.3d at 786.

The Homeowners insist that Myre should be held responsible as a seller because he was “involved” in the transaction. Specifically, the Homeowners claim that insulating Myre from liability for failure to disclose “simply because his name was not on the deeds” would be “an unwarranted substitution of form over substance.” The Homeowners’ argument, however, does not avail to avoid the absence of express authority for this proposition. Although the Homeowners suggest we should not restrict characterization of a seller to the person named as the grantor on a deed, they offer no explanation of the mechanics or criteria to be employed in effecting such an expansive application. Significantly, the Homeowners neither plead nor advanced at trial any legal theory challenging the structure, substance, or legal effect of Myre’s property transfer to Craig Development. Without more, the mere suggestion that something may be afoul is of no legal consequence. We therefore decline to extend the scope of a seller’s duty of disclosure to some amorphous class of persons who may be “involved” in a sales transaction. Having concluded that there is no evidence to support a judgment for fraud against Myre as to the 8 Homeowners to whom Myre did not convey property, the question becomes whether Myre owed a duty of disclosure to Hill, the individual to whom he did convey property.

Although Myre was the seller of the property conveyed to Hill, there is no evidence the relationship was anything more than an arms-length business transaction. Thus, a duty to disclose to Hill arises only if Myre had knowledge of the facts that were allegedly withheld and the facts would not have been discoverable by Hill’s exercise of ordinary care and diligence or reasonable investigation and inquiry. Id.; Prudential, 896 S.W.2d at 162.

The Homeowners maintain Myre knew that the property was prone to flooding and the subdivision plat did not comply with Hunt County regulations requiring drainage plans. To establish Myre had actual knowledge that the property was prone to flooding, the Homeowners rely only on the testimony of Amy Moore, an individual who purchased property from Myre that is adjacent to Cole Estates. Moore testified that she had a conversation with Myre in 1998 when she was deciding whether to purchase her property. According to Moore, she and Myre were standing in the three acre field that eventually became her property, when Myre stated that the property “back there” would never be developed because it was prone to flooding. As he made this statement, Myre gestured toward the adjacent expanse of land. On cross-examination, Moore admitted that she assumed Myre was referring to all of the property between her property and FM6 to the north and Brushy Creek to the west. This area includes, but is not limited to, the land on which Cole Estates is situated. Although she claimed to have “understood” that Myre was referring to the entire expanse of property, she was unable to explain the basis for this understanding.

Myre testified that he did not recall exactly what he told Moore, but denied telling her that nothing would be built on the property that became Cole Estates. Myre also observed, and the record reflects, that there is a lot of property “behind” Moore’s property. Myre further testified that he has only seen Brushy Creek, a body of water in proximity to the property, overflow its banks one time— during the 2002 rain event at issue here.

Having reviewed the testimony, we conclude that Moore’s lack of specificity and certitude is fatal to a finding of actual knowledge. Moore’s testimony is based solely on her assumptions and conjecture about the meaning of Myre’s statement and whether his gesture toward an expanse of land was intended to include the parcel of land on which Cole Estates was built. Testimony based solely on conjecture and speculation is incompetent. General Motors Corp. v. Iracheta, 161 S.W.3d 462, 470-71 (Tex.2005). We will sustain a no evidence issue if “(a) there is a complete absence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove that fact; (c) the evidence offered to prove a vital fact is no more than a scintilla; or (d) the evidence conclusively establishes the opposite of a vital fact. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 205 (Tex.App.-Dallas 2005, no pet.). Evidence does not exceed a scintilla if it is so weak as to create a mere surmise or suspicion that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); see also Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) (“When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.”); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex.1993) (“Some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.”). Because Moore’s testimony lacks the requisite degree of factual specificity, it creates no more than a mere surmise or suspicion concerning Myre’s knowledge of a vital fact. Accordingly, we conclude the Homeowners have not presented more than a scintilla of evidence that Myre had knowledge about whether the lots on which Cole Estates was built are prone to flooding.

In addition, even if the property in Cole Estates is prone to flooding, there is an absence of evidence as to whether Hill could have discovered this fact through the exercise of ordinary care and diligence or a reasonable investigation. Hill’s closing documents reflect that the property is not in a flood hazard area and flood insurance is not required. But there is nothing to indicate whether Hill inquired about the property’s proximity to a flood hazard area. Hill testified that when viewing the property for potential purchase, her ex-husband remarked to the real estate agent “it looks a little low down here” and inquired “does it ever flood?” According to Hill, the agent responded in the negative. There is nothing in the record, however, that reflects whether Hill or her ex-husband made any additional inquiries or conducted an investigation following their observation that the property appeared to be “low.” There is also nothing to indicate whether such an inquiry would have revealed whether the property is prone to flooding.

There is also no evidence Myre was aware that the subdivision plat did not comply with the applicable regulations governing drainage plans. While it is undisputed that the application for the Cole Estates subdivision did not include a drainage plan, Myre testified that he relied on Wisdom to prepare and submit the plan. DM testified that neither he nor Myre knew that the regulations required a drainage plan, and there is no evidence in the record to establish otherwise.

Because there is no evidence Myre had knowledge of the facts he allegedly withheld, Myre owed no duty of disclosure to Hill. In the absence of such a duty, there can be no liability for fraud. See Marshall, 84 S.W.3d at 786. Myre’s second issue is sustained. Our resolution of this issue obviates the need to consider Myre’s remaining issues. Tex.R.App. P. 47.1.

Is DM Individually Liable for Fraud?

In a cross-issue, the Homeowners contend the trial court erred by requiring them to elect between recovery for iraud against Myre or DM because DM is individually liable for his fraud. Myre responds that the take-nothing judgment should be affirmed because there is no evidence DM concealed or failed to disclose a material fact within his knowledge. In the alternative, Myre asserts that if the Homeowners are entitled to recovery, there is no rational basis to apportion the damages among the defendants because the Homeowners alleged a single, indivisible injury.

Despite the fact that the jury found DM liable to all nine Homeowners, he only sold property to White and Paulin. Therefore, as we previously discussed, these two sales are the only transactions in which a duty to disclose might arise. But there is no evidence DM had any knowledge that Cole Estates was prone to flooding or that the subdivision plan did not comply with applicable drainage regulations. Therefore, DM did not owe a duty of disclosure to any of the Homeowners and cannot be held liable for fraud. See Marshall, 84 S.W.3d at 786. Because there was no basis to impose fraud liability on DM, the trial court did not err in denying the Homeowners’ recovery against him. The Homeowners’ cross-issue is overruled.

Conclusion

Because we have concluded the evidence is legally insufficient to support a judgment for fraud against Myre and DM, we reverse the trial court’s judgment and remand the case for the Homeowners to make a new election of remedies. See Gunn Infiniti, Inc. v. O’Byrne, 18 S.W.3d 715, 718 (Tex.App.-San Antonio 2000, no pet.) (remanding to permit new election of remedies following resolution of issues on appeal in accordance with Texas Supreme Court’s instruction).

      . For example, Meletio requested judgment for fraud damages against Myre and Craig Development and negligence damages against DM. Other Homeowners elected different combinations of fraud and negligence damages.

      . The Homeowners did not plead or prove an agency theory of recovery.


text:
    In the Interest of M.M.M., a Child.
    No. 2-09-203-CV.
    Court of Appeals of Texas, Fort Worth.
    March 4, 2010.

      Clifford D. Mackenzie, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Assistant Criminal District Attorney, Chief of Appellate Section, Debra Windsor & Marvina Robinson, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellee.
    Panel: LIVINGSTON, WALKER, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

In two issues, J.M. (Father) appeals portions of the trial court’s order that appointed E.M. (Mother) as the sole managing conservator of their daughter, M.M.M. We affirm.

Background Facts

On August 4, 2008, two days after M.M.M.’s birth, the Texas Department of Family and Protective Services (the Department) filed a petition for her protection and conservatorship. An affidavit attached to the petition related that Mother had erratic behavior at the hospital before and after giving birth to M.M.M. and that Father did not have stable housing or a well-paying job. The affidavit asserted that Mother’s behavior was caused by her refusal to take medication for her apparent mental problems. The trial court initially authorized M.M.M.’s removal from her parents’ care and named the Department as M.M.M.’s temporary sole managing conservator.

In September, the Department filed a Family Service Plan that required the parents to (among other things) comply with mental health and medication recommendations and participate in parenting classes and individual counseling. That same month, the trial court ordered the parents to complete these tasks and named them as M.M.M.’s temporary possessory conservators.

The trial court eventually returned M.M.M. to her parents’ care. In January 2009, the Department filed another Family Service Plan that contained several other tasks for the parents to complete. In February, the Department filed a motion that requested that temporary possessory con-servatorship be removed from Father and remain solely with Mother because Father had been arrested for assaulting Mother. The trial court granted the Department’s motion and limited Father’s visitation of M.M.M. to occasions agreed to and arranged by the Department.

The trial of M.M.M.’s conservatorship issues occurred in July. Following the trial, the court removed M.M.M.’s conservator-ship from the Department and, under the parties’ agreement that was announced at trial, appointed Mother as her permanent sole managing conservator and Father as her possessory conservator. The trial court’s order allowed Mother to establish M.M.M.’s residence without any geographic restriction and stated that Father “shall have NO unsupervised visits at this time due to his failure to follow the [Department’s] service plan, failure to support the child[,] and his history of family violence.” The issues of a lack of a geographic restriction on M.M.M.’s residence and of Father’s supervised access to her were not part of the parties’ agreement; these issues were contested at trial. Father filed his notice of appeal.

Father’s Issues on Appeal

In two issues, Father argues that the trial court erred by not geographically restricting M.M.M.’s domicile and by requiring that his visitation with her be supervised.

Standard of review

We review the trial court’s decisions on custody, control, possession, and visitation matters for an abuse of discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In re M.P.B., 257 S.W.3d 804, 811 (Tex.App.-Dallas 2008, no pet.); In re W.M., 172 S.W.3d 718, 724 (Tex.App.-Fort Worth 2005, no pet.) (adding that the trial court has “wide latitude in determining the best interests of a minor child”).

To determine whether a trial court abused its discretion, we must decide whether the court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004); W.M., 172 S.W.3d at 725. An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); see Low, 221 S.W.3d at 620.

An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); W.M., 172 S.W.3d at 725. We must be cognizant that the trial court is in a better position to decide custody cases because “it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d 740, 743 (Tex.App.-Austin 2005, pet. denied).

In our review of a child custody ruling under the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error but are relevant factors in deciding whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex.App.-Fort Worth 2002, pet. denied) (op. on reh’g); see W.M., 172 S.W.3d at 725. In determining whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court’s decision, we consider whether the trial court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion. W.M., 172 S.W.3d at 725; T.D.C., 91 S.W.3d at 872. “The traditional sufficiency review comes into play with regard to the first question. With regard to the second question, we determine, based on the elicited evidence, whether the trial court made a reasonable decision.” W.M., 172 S.W.3d at 725 (footnote omitted).

Mother’s unrestricted right to determine M.M.M.’s domicile

In his first issue, Father contends that the trial court erred by failing to restrict M.M.M.’s domicile to a specific geographic area. This issue arises because Mother testified at trial that she wanted to move to California, where she was born and where her parents live.

The law on residency restrictions

Texas does not have any specific statute regarding residency restrictions in custody cases. See Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002). However, unless limited by court order, a sole managing conservator, such as Mother, has the exclusive right to designate the primary residence of a child. Tex. Fam.Code Ann. § 153.132(1) (Vernon 2008); see In re A.S., 298 S.W.3d 834, 836 (Tex.App.-Amarillo 2009, no pet.). Also, it is the public policy of this state to assure that a child will have frequent and continuing contact with parents who have shown the ability to act in the child’s best interest; to provide a safe, stable, and nonviolent environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. Tex. Fam.Code Ann. § 153.001(a) (Vernon 2008). The best interest of the child is always the primary consideration in resolving issues of conser-vatorship, possession, and access concerning a child. Id. § 153.002 (Vernon 2008); Lenz, 79 S.W.3d at 14.

As the Amarillo Court of Appeals recently explained, it is “beyond question” that the desire of a sole managing conservator to move away from Texas may affect the statutory goal of continuing contact with a noncustodial parent. A.S., 298 S.W.3d at 836. However, “[b]ecause the custodial parent provides the child with a basic quality of life, a child’s best interest is closely intertwined with the well-being of the custodial parent.” Lenz, 79 S.W.3d at 18; see Echols v. Olivarez, 85 S.W.3d 475, 476, 482 (Tex.App.-Austin 2002, no pet.) (affirming the trial court’s decision to allow a child’s mother to move with the child to Tennessee so that she could take a higher paying job and explaining that courts must “primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child’s best interest”); see also Sanchez v. Sanchez, No. 04-06-00469-CV, 2007 WL 1888343, at *3-4 (Tex.App.-San Antonio July 3, 2007, pet. denied) (mem. op.) (stating that ordering a residency restriction “is within the trial court’s discretion based on the best interest of the child” and holding that the trial court’s decision to not impose the restriction requested by the father and to allow the mother to move to Mississippi was not an abuse of discretion), cert. denied, — U.S. -, 129 S.Ct. 71, 172 L.Ed.2d 28 (2008).

Father’s analysis in his brief solely concerns five factors for geographic restrictions that arise from decisions in other jurisdictions and that were discussed in the Lenz opinion: (1) the reasons for and against the move, (2) the effect on extended family relationships, (3) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child, (4) the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the noncustodial parent and the child, and (5) the nature of the child’s existing contact with both parents, and the child’s age, community ties, and health and educational needs. See Lenz, 79 S.W.3d at 15-16. However, the supreme court stated that while these factors (which were not the only factors discussed in the opinion) “may assist [courts] in giving meaning to our best-interest standard in the relocation context,” it also indicated that there are no formulaic, bright-line tests in geographic restriction cases. Id. at 19.

Analysis

The record establishes the turbulent history of Father’s and Mother’s marriage, which was apparently drawing to an end because Father had filed for divorce at the time of trial. According to Mother, she and Father met in California in 2001. Since that time, Father has been arrested multiple times for assaulting Mother. Specifically, Father’s testimony established that he was arrested for throwing a phone at Mother when they were not yet married, that he was arrested in 2007 based on another incident involving Mother, and that he was convicted for an assault that occurred in December 2008, while this case was pending in the trial court. Father said that the 2008 assault occurred during an argument about M.M.M. traveling to California and that in the midst of pushing and shoving between him and Mother, he “grabbed her arm.”

Father testified that the case arising from his 2007 assault arrest was dismissed. He said that the 2008 assault was precipitated by Mother’s throwing a cup of hot noodles on him and that Mother assaulted him on the day before trial by hitting him and scratching him with her nails. Mother said that she did not see Father the day before trial.

Father was sentenced to forty-five days’ confinement as his punishment for the December 2008 assault. Although Father and Mother stopped living together after the assault occurred, according to Mother, Father’s inappropriate acts toward her were continuing at the time of trial, because during one of Father’s visits with M.M.M. about a week before trial, he stole her cell phone and would not return it to her despite her telling him that she needed the phone to call for help if M.M.M. had an emergency.

Father took a battery intervention class while he was in jail for assaulting Mother. However, Mother testified that when Father came to visit M.M.M. about a week before trial and discovered that Mother was dating someone, he threatened to kill her. Mother testified that Father’s threat caused her desire to move away “as soon as possible.”

Mother testified about the benefits of her proposed move. She said that she did not have any support system in Texas and that in California, she could stay at her mother’s home with M.M.M. for a year while she looked for a job. She said that her mother supports her financially. She proposed that Father could visit M.M.M. in California “whenever he wants to” and that Mother could travel with M.M.M. to see Father in Texas. She said that she would pay for trips to Texas so that M.M.M. could see Father but that she would not pay for Father’s trips to California to see M.M.M.

Father said that Mother’s parents in California are “very honorable people.” However, he said that money would be a barrier to his visiting M.M.M. if she lived in California and that he would not be able to have a relationship with her if she lived there. Father testified that he has “never stopped seeing [M.M.M.] since she’s been born,” and he specified that M.M.M. even saw him during the approximately fifteen days that he was in jail because of his assault conviction. Father said that he and his family went to visit M.M.M. just days before trial. Although Mother said that the visit was the first time that Father’s father had ever seen M.M.M., she acknowledged that Father’s mother and aunt had visited M.M.M. before.

However, some of Father’s actions belie his stated desire to remain active in M.M.M.’s life. For instance, although Father said that he had bought M.M.M. some diapers and had given Mother about $1,000 to help with M.M.M.’s care, Mother said that Father had not bought diapers and had not given her money in seven months preceding the trial, and the evidence indicated that he was not likely to support M.M.M. in the near future because he was unemployed. Also, at the time of trial, Father had not successfully completed any of the services from the Department’s Family Service Plan. Finally, Mother testified that when she lived with Father, he did not give M.M.M. baths and rarely changed her diapers or gave her bottles because he would “tell [Mother] it’s [her] job.”

Although some of the evidence that is contained in the record and that is described above favors Father’s position, the trial court did not abuse its discretion by declining to include a geographic restriction in its order because there is some evidence of substantive and probative character to favor allowing Mother to move with M.M.M. to California. See Butnaru, 84 S.W.3d at 211; W.M., 172 S.W.3d at 725. Specifically, if the trial court considered Father’s history of assaulting Mother and resolved the conflicting evidence at trial in Mother’s favor, including determining that Father had earnestly threatened Mother’s life, then we conclude that it acted reasonably by allowing Mother and M.M.M. to move so that they could avoid a violent environment. See Tex. Fam.Code Ann. § 153.001(a)(2) (providing that the policy of the State is to provide a safe, nonviolent environment for children); see also In re Rhodes, 293 S.W.3d 342, 344 (Tex.App.-Fort Worth 2009, orig. proceeding) (explaining that as “the factfinder, the trial court weighs the evidence and judges a witness’s credibility, and the trial court may accept or reject any witness’s testimony in whole or in part”); In re R.D.S., 902 S.W.2d 714, 716 (Tex.App.-Amarillo 1995, no pet.) (“The appellate court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences.”).

Next, the trial court could have reasonably concluded that although Father saw M.M.M. regularly, his failure to support M.M.M. financially (if Mother’s testimony is true) and his failure to complete any of his service plan showed that he did not have the ability to act in her best interest and that he was therefore not entitled to frequent and continuing contact with her. See Tex. Fam.Code Ann. § 153.001(a)(1). The trial court could have also reasonably found that Mother’s increased support structure in California would enable her to better provide for M.M.M.’s needs. And although Mother’s proposed move to California means that Father and his family might see M.M.M. less than they otherwise would, Mother agreed to travel to Texas at her expense so that M.M.M. could visit them, and the move to California means that M.M.M. can have a greater connection with Mother’s parents than she would while living in Texas.

Finally, Father complains that a provision in the trial court’s order allows him only to visit M.M.M. “in Texas (so long as [Mother] resides in Texas)” and that the order therefore does not grant him any visitation rights if Mother leaves Texas. But the record on appeal indicates that Mother’s move to California is still speculative. If she does move, Father could seek to modify the court’s visitation order at that time. Thus, we conclude that the trial court’s decision to not geographically restrict M.M.M.’s domicile should not be reversed.

For all of these reasons, we conclude that the trial court did not abuse its discretion by declining to include a geographic restriction on M.M.M.’s domicile, and we overrule Father’s first issue.

The requirement that Father’s visitation be supervised

In his second issue, Father contends that the trial court abused its discretion by ordering that his visitation with M.M.M. must be supervised.

Section 153.004 of the family code

A trial court “shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.” Tex. Fam.Code Ann. § 153.004(c) (Vernon Supp.2009); see In re B.N.F., 120 S.W.3d 873, 878 (Tex.App.-Fort Worth 2003, no pet.). A court “may not allow” a parent to have access to a child when it is shown that there is a history family violence during the pendency of the suit unless the court

renders a possession order that is designed to protect the safety and well-being of the child and any other person who' has been a victim of family violence committed by the parent and that may include a requirement that:
(A) the periods of access be continuously supervised by an entity or person chosen by the court.

Tex. Fam.Code Ann. § 153.004(d)(2)(A); see In re R.T.H., 175 S.W.3d 519, 521 (Tex.App.-Fort Worth 2005, no pet.) (explaining that a single act of violence may constitute a “history” of abuse under section 153.004). It is a “rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of [physical abuse] by that parent directed against the other parent.” Tex. Fam.Code Ann. § 153.004(e).

Analysis

Beyond creating her desire to move to California, Father’s alleged threat to kill Mother and his assaults on her made her concerned about her safety and M.M.M.’s safety if she had to attend Father’s visits with M.M.M. If the trial court considered Father’s recent assault of Mother and his pattern of assaulting her and believed that Father had seriously threatened Mother’s life, we hold that it did not act unreasonably because supervised visitation at a visitation center was one of the trial court’s options granted by the legislature under those circumstances. See Tex. Fam.Code Ann. § 153.004(d)(2)(A). Evidence unrelated to Father’s assaults and threats also supports the trial court’s supervision decision-Mother said that Father has threatened to abscond out of state with M.M.M. See In re Sigmar, 270 S.W.3d 289, 307 (Tex.App.-Waco 2008, orig. proceeding) (holding that the trial court did not abuse its discretion by ordering supervised visitation as an abduction prevention measure).

Based on these facts and the other facts recited above, we hold that there was some evidence of substantive and probative character for the trial court to find that Father’s supervised visitation was in M.M.M.’s best interests, and we therefore overrule Father’s second issue. See Tex. Fam.Code Ann. §§ 153.002, .004, .193 (Vernon 2008); Butnaru, 84 S.W.3d at 211; W.M., 172 S.W.3d at 725.

Conclusion

Having overruled both of Father’s issues, we affirm the trial court’s judgment.

      . To protect the privacy of the parties involved in this appeal, we identify them by initials only. See Tex. Fam.Code Ann. § 109.002(d) (Vernon 2008).

      . Mother said that Father has assaulted her and has been arrested for doing so four or five times.

      . Father said that he did not threaten to kill Mother but that he said, without intending any threat of physical violence, "I don’t know what I would do ... if I ever found you with another man.”

      . Although Mother planned to move to California, she indicated that she would not be able to do so until she had more money and received final approval about the details of the move from her mother.

      .Mother has not worked since M.M.M.’s birth, but every month, she receives $800 from her parents and $650 from social security insurance based on her bipolar disorder. She also receives food stamps, and Father owes her $200 per month for child support.

      . Mother conceded that Father would be able to travel to California only a couple of times a year, but she said that Father could bring his family to California when he visited. None of Father’s family testified about their relationship with M.M.M. or their desires related to her.

      . The order states that Father may visit M.M.M. two Saturdays per month for an hour on each Saturday. Father has not asserted on appeal that the trial court erred in its determination of the frequency or length of his visits with M.M.M.


text:
    CITY OF WICHITA FALLS, Appellant, v. Alfred JENKINS, Sheila Calhoun, and Summer Calhoun, Appellees.
    No. 2-09-337-CV.
    Court of Appeals of Texas, Fort Worth.
    March 4, 2010.

      R. Kinley Hegglund, Jr., Senior Assistant City Attorney, Wichita Fall, TX, for Appellant.
    Loncar & Associates, P.C., Valeri Stiers Malone, Wichita Falls, TX, for Appellee.
    PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

The City of Wichita Falls appeals from the trial court’s order denying its plea to the jurisdiction in this Texas Tort Claims Act (TTCA) case involving a City automobile. In two issues, the City contends that it did not have either actual or formal notice of appellees’ injuries within forty-five days after the accident as required by the TTCA. Because we hold that the City did receive the required statutory notice, as well as actual notice, we affirm.

Procedural Background

Appellees Alfred Jenkins, Sheila Calhoun, and Summer Calhoun sued the City on July 16, 2009, alleging that on May 8, 2008, they were involved in an accident with Officer Stephen Becknal, who was driving a City-owned vehicle. According to appellees, Summer, the driver, and Alfred and Sheila, the passengers, were in a car that was stopped at a red light with Officer Beeknal’s vehicle behind them. They alleged that “[sjuddenly and without warning, [Officer] Becknal began to accelerate striking” appellees’ vehicle. They further alleged that Officer Becknal was acting within the course and scope of his employment with the City.

The City filed a plea to the jurisdiction contending that appellees did not give the City timely, adequate notice of their injuries as required by the TTCA in that they did not “describe the nature and extent of their injuries.” The City claimed that because it did not receive the required notice, it was immune from appellees’ suit. The trial court denied the plea after a hearing, and the City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008).

Standard of Review

Governmental immunity defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Tex. Dep’t of Transp. v. Andrews, 155 S.W.3d 351, 355-56 (Tex.App.-Fort Worth 2004, pet. denied). The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. Miranda, 133 S.W.3d at 226.

We review the trial court’s ruling on a plea to the jurisdiction based on immunity from suit under a de novo standard of review. Id. at 225-26, 228; Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Andrews, 155 S.W.3d at 355. Whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question of law. Miranda, 133 S.W.3d at 226.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at 227; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000); Andrews, 155 S.W.3d at 355. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28; Andrews, 155 S.W.3d at 355. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; Andrews, 155 S.W.3d at 355. This standard generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at 228; see Tex.R. Civ. P. 166a(c).

Although actual notice is a fact question when the evidence is disputed, in many instances it can be determined as a matter of law. Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex.2004). Here, the parties do not dispute the facts presented on the jurisdictional issue, they simply dispute the legal significance of that evidence. Accordingly, we will review the trial court’s ruling as a matter of law. See id.; Miranda, 133 S.W.3d at 226.

Notice Under TTCA

The TTCA waives a governmental entity’s immunity from suit and liability for damage and injury caused by the wrongful act or omission, or negligence, of an employee operating or using a motor vehicle within the scope of employment. Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 699 (Tex.App.-Austin 2005, no pet.). To invoke the TTCA’s waiver of sovereign immunity, a claimant must provide the governmental unit with formal, written notice of the claim against it within six months of the incident giving rise to the claim, or within a different lawful period specified in a city charter and ordinance. Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a)-(b) (Vernon 2005); Nat’l Sports & Spint, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 79 (Tex.App.-Fort Worth 2003, no pet.); see Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2009) (providing that notice is a jurisdictional requirement). The City has provided for a forty-five day notice period. Wichita Falls, Tex., Code of Ordinances ch. 2, art. IX, sec. 2-1091(a) (2006), available at http://library.municode. com/index.aspx?clientld=12090&stateld= 43&stateName=Texas. However, the formal notice requirement does not apply if the governmental unit “has actual notice ... that the claimant has received some injury, or that the claimant’s property has been damaged.” Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c); Nat’l Sports & Spirit, 117 S.W.3d at 79. The notice must reasonably describe the damage or injury claimed, the time and place of the incident, and the incident. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a). The purpose of the notice requirement is to ensure prompt reporting of claims so that governmental units may gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Nat’l Sports & Spirit, 117 S.W.3d at 79.

Actual notice to a governmental unit requires knowledge of injury or property damage, the governmental unit’s alleged fault producing or contributing to the injury or property damage, and the identity of the parties involved. Cathey, 900 S.W.2d at 341; Nat’l Sports & Spirit, 117 S.W.3d at 80. To have actual notice, the governmental unit must have the same information it would have had if the claimant had complied with the formal notice requirements. Nat’l Sports & Spirit, 117 S.W.3d at 80; Bourne v. Nueces County Hosp. Dist., 749 S.W.2d 630, 632-33 (Tex.App.-Corpus Christi 1988, writ denied). Mere notice that an incident has occurred is not enough to establish actual notice for purposes of the TTCA. Nat’l Sports & Spirit, 117 S.W.3d at 80; see Putthoff v. Ancrum, 934 S.W.2d 164, 173 (Tex.App.-Fort Worth 1996, writ denied).

Additionally, actual notice may be imputed to the governmental unit only when an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice outlined in Cathey. Nat’l Sports & Spirit, 117 S.W.3d at 80; see Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 252-53 (Tex.App.-Houston [1st Dist.] 1995, writ dism’d w.o.j.). But governmental entities have actual notice to the extent that a prudent entity could ascertain its potential liability stemming from an incident, either by conducting further investigation or because of its obvious role in contributing to the incident. Nat’l Sports & Spirit, 117 S.W.3d at 80; City of San Angelo v. Smith, 69 S.W.3d 303, 307 (Tex.App.-Austin 2002, pet. denied).

Issue on Appeal

In both of its issues, the City contends that appellees did not provide adequate notice of their personal injuries within the forty-five days required by City ordinance because, although they did send a letter indicating that they were going to a doctor for treatment of injuries sustained in the accident, they did not provide in that letter a “reasonable description” of the nature and extent of those injuries.

Evidence Attached to City’s Plea to the Jurisdiction

The City attached to its plea to the jurisdiction an affidavit from Officer Beck-nal, in which he averred as follows:

On May 8, 2008, I was involved in an automobile accident at the 800 block of Kell West. The other car involved in the accident had 4 occupants: 2 females, 1 male, and 1 female child. I observed these 4 people directly after the accident, and I did not see anything that led me to believe that they were injured. I spoke to both Sheila Calhoun and Summer Calhoun at the scene of the accident and neither made any statement to me indicating that they were injured.

The City also attached an affidavit from Leland Wright, a sergeant with the City’s police department who investigated the accident. He averred as follows:

The only City employees present at the scene of the accident were myself, Steve Becknal and Martha Shaw. Summer Calhoun, Sheila Calhoun, and Alfred Jenkins were involved in the accident. I spoke with each of them and asked if they suffered any injuries. They each stated that they had no injuries. I also was able to observe each of these individuals and saw nothing that would indicate to me that these people were injured. This was a minor accident and no ambulance was requested nor was any one involved in the accident transported to the hospital from the scene of the accident. In the course and scope of my job, I produced a police report based on what I observed.... I used the injury code “N” for [appellees]. Injury Code N means NOT INJURED.

The police report attached to Sergeant Wright’s affidavit contains the following description of the accident:

Unit # 2 was stopped behind Unit # 1 at a red light on Kell W. @Scott Street. The driver of Unit 2 looked down to adjust his police radio. When the driver of Unit # 2 looked back up, the vehicles to his left were proceeding (turning left). Unit # 2 proceeded forward, striking its FD to Unit l’s BD.

Sergeant Wright also noted no property damage that required towing of either car and that both were “driven away.”

The City attached a third affidavit from its Risk/Safety Manager, Martha Shaw. She averred that she went to the accident scene, that she observed all four occupants of the vehicle that Officer Becknal struck, and that she did not observe anything that led her to believe that they were injured.

Another affidavit attached to the plea is from the City Clerk, Lydia Ozuna. She averred as follows:

On May 15, 2008, my office received a letter from William E. Hymes of Loncar & Associates. This letter was dated May 13, 2008, and regarded Summer Calhoun, Sheila Calhoun, and Alfred Jenkins. This letter is attached to this affidavit as Attachment 1. This was the only letter my office received regarding [appellees]. This letter does not describe or identify any of the injuries allegedly sustained by [appellees]. This letter does not state where these people reside, nor does it identify monetary damages or the amount for which the lawyer’s clients are willing to settle their claims. This letter also does not identify the names and addresses of eyewitnesses to the incident that the clients claim caused the unidentified injuries.

The attached letter identifies appellees as clients and lists the loss date as May 8, 2008. It contains the following:

Please be advised that this firm has been retained to represent [appellees] with regards to personal injuries and other damages that they sustained in the above-referenced loss. The accident occurred on 5/8/08 at Kell West. Our client was stopped at a red light when Officer Stephen Becknal looked up to see the vehicle in the left lane was turning left, Mr. Becknal then proceeding forward, sticking [sic] our client.
Our clients are still in the process of receiving medical treatment; upon completion, I will forward documentation of their injury claim to you for consideration.
Please acknowledge receipt of this claim. I look forward to working with you towards the resolution of this claim.

In their response to the plea to the jurisdiction, appellees attached a crash report completed by Sergeant Wright on the day of the accident. In response to the question, “IN YOUR OPINION, DID THIS CRASH RESULT IN AT LEAST $1,000.00 DAMAGE TO ANY ONE PERSON’S PROPERTY?,” the ‘YES” box was checked. “NONE” was listed under “DAMAGE TO PROPERTY OTHER THAN VEHICLES.” Also attached is an affidavit from Sandie Stewart, who receives all mail delivered to Loncar & Associates at the Wichita Falls office. She averred that the office received a letter on May 29, 2008 from Shaw; a copy of the letter was attached. The caption identifies a claim number, the date of loss as 5-8-08, the type of loss as “Vehicle,” and the amount of claim as $4,040.17. The letter reads as follows:

We have completed our investigation of the facts related to the incident and will agree to honor your claim in the amount of $4,040.17.
I have requested a check from our accounting department in the amount of $4,040.17 made payable to you. Please stop by our office any time before 4:00 p.m. on or after June 02, 2008, and by signing a release of claim, secure the check....

Analysis

The May 13, 2008 letter from ap-pellees’ attorney states that appellees sustained “personal injuries and other damages” in the accident. It also describes the accident and names each appellee. This is sufficient notice of the elements required in section 101.101(a). See Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a); Harris County v. Luna-Prudencio, 294 S.W.3d 690, 698-99 (Tex.App.-Houston [1st Dist.] 2009, no pet.); Bosler v. Riddle, No. 07-05-00283-CV, 2007 WL 686645, at *3-4 (Tex.App.-Amarillo Mar. 7, 2007, pet. denied) (mem. op.) (on reh’g). The City contends that a more detailed description of the nature and extent of appellees’ injuries is required to put it on notice but does not provide any authority requiring more than what appellees provided. According to the City, mere notice that a person has sustained a personal injury is not enough; it needs more information about the injury to properly triage and prioritize claims. But that is not the purpose of the notice requirement; all that is required is enough information for the City to investigate for the purpose of guarding against unfounded claims, settle claims, and prepare for trial. The letter has enough information to allow the City to effect this purpose. See Richardson v. Allen, No. 05-96-00018-CV, 1997 WL 242812, at *3 (Tex.App.-Dallas May 13, 1997, no pet.) (not designated for publication) (holding that “there is no requirement that a claimant describe in full medical detail the nature and extent of her injury”); Black’s Law Dictionary 856-57 (9th ed.2009) (defining personal injury, in a negligence action, as “any harm caused to a person, such as a broken bone, a cut, or a bruise; bodily injury” and defining bodily injury as “[p]hysical damage to a person’s body”).

The City cites Casanover v. Tomball Regional Hospital Authority in support of its position that a letter referencing only “injuries” is insufficient to provide notice under section 101.101(a). No. 01-04-00136-CV, 2006 WL 23407, at *3 (Tex. App.-Houston [1st Dist.] Jan. 5, 2006, no pet.) (mem. op.). But in that case, a patient had been to the hospital on March 22, 2001 for kidney dialysis, had fallen and injured her hip while leaving that same day, was admitted for surgery due to her injuries, was placed in a gurney in the emergency room overnight, and then died the next day from a “sudden cardiac death.” Id. at *1. Three days after the patient died, counsel for the appellants (her family and estate) sent two letters to the hospital informing it that he was representing the appellants for “injuries sustained” on or about March 23, 2001. Id. at *3. The first letter requested the patient’s medical records, and the second letter requested the patient’s billing records. Id. Attached to the first letter was a blank medical records affidavit, and attached to the second letter was a blank hospital bill affidavit to be signed by the hospital’s records custodian. Id. The court of appeals held that these letters were not sufficient statutory notice, not only because they did not reasonably describe the damage or injury claimed — they did not even mention the patient’s death — but also because they did not provide any description of the incident or any indication of the hospital’s responsibility. See id.

In Casanover, the patient had suffered more than one injury at the hospital: a hip injury and death. Thus, there were multiple injuries and incidents that occurred there. The letters simply informed the hospital that the appellants had hired an attorney and wanted the patient’s medical and billing records. Thus, the letters, in that factual scenario, did nothing more than inform the hospital that an attorney was investigating what had occurred at the hospital. But, here, the May 13, 2008 letter clearly describes the car accident and faults the City’s employee, Officer Becknal, for causing it. Moreover, it clearly indicates that the driver and passengers had sustained personal injuries for which they were all receiving medical treatment. We conclude and hold that the May 13, 2008 letter was sufficient to provide the required statutory notice of suit under section 101.101(a). Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a).

Moreover, even if the letter were not sufficient statutory notice, the evidence supports the conclusion that the City had actual notice of appellees’ claims. Sergeant Wright’s crash report lists Summer’s driver’s license number and address and notes property damage to vehicles of at least $1,000; his police report provides a detailed description of the incident and contains the names of each occupant of Summer’s vehicle. Thus, on the date of the accident, a City representative had notice that a City-owned vehicle was at fault in an accident that caused at least $1,000 of vehicle damage and also knew the identities of all the persons involved in the accident. See Harris County v. Dillard, 841 S.W.2d 552, 557-58 (Tex.App.Houston [1st Dist.] 1992) (holding that accident report can suffice as notice to municipality), rev’d on other grounds, 883 S.W.2d 166 (Tex.1994); Rosales v. Brazoria County, 764 S.W.2d 342, 343-45 (Tex.App.-Texarkana 1989, no writ) (same); City of Galveston v. Shu, 607 S.W.2d 942, 945-46 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ) (same). This, too, meets the purpose of the notice requirement of the statute to put the City on notice to investigate, settle, and prepare for trial. That the occupants did not appear to be injured and drove away from the accident, although possibly relevant for trial purposes (subject to an evidentiary determination by the trial judge), does not negate the City’s notice that an on-duty officer driving a City-owned vehicle rear-ended the car in front of him, causing visible property damage. See Tex. Civ. Prac. & Rem.Code Ann. § 101.101(c) (providing that statutory notice requirements do not apply if the governmental unit has actual notice “that the claimant has received some injury, or that the claimant’s property has been damaged” (emphasis added)). We conclude and hold that the City had actual notice of appellees’ claims sufficient to invoke the trial court’s jurisdiction over appellees’ TTCA suit against the City.

Accordingly, we overrule both of the City’s issues.

Conclusion

Having overruled both of the City’s issues, we affirm the trial court’s order.