author: PER CURIAM.

text:
    Darren SWAIN, Appellant v. The STATE of Texas, State.
    No. 2-10-024-CR.
    Court of Appeals of Texas, Fort Worth.
    July 8, 2010.
    Publication Ordered Aug. 12, 2010.
    Darren Swain, Bedford, TX, pro se.
    Jay Doegey, City Atty., David S. Johnson, Linda R. Frank, Asst. City Attys., Arlington, for The State of Texas.
    PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
   MEMORANDUM OPINION

PER CURIAM.

In July 2008, a jury convicted Appellant Darren Swain in a municipal court of record of itinerant vending without a license, and the trial court assessed a fine against him in the amount of $550. After the trial court denied Swain’s motion for new trial, he appealed to the county criminal court. See Tex. Gov’t Code Ann. § 30.00014(a) (Vernon Supp.2009), On November 3, 2009, the county criminal court delivered a written opinion affirming the municipal court’s judgment. See id. § 30.00024(a)(1), (c). On November 19, 2009, Swain filed a “Motion for Rehearing or, in the Alternative, Motion for New Trial.” On January 20, 2010, seventy-eight days after the county criminal court had affirmed the municipal court’s judgment, Swain filed his notice of appeal from the county criminal court’s judgment. See id. § 30.00027(a) (Vernon 2004).

The State filed a motion to dismiss Swain’s appeal. It argues that Swain failed to timely perfect this appeal because (1) under rule of appellate procedure 26.2(a)(1), he did not file his notice of appeal within thirty days of the county criminal court’s judgment affirming the municipal court’s judgment and (2) even though Swain filed a motion for new trial after the county criminal court had affirmed the municipal court’s judgment, rule 26.2(a)(2)’s ninety-day deadline for filing a notice of appeal when a motion for new trial is filed does not apply in this case because Swain was convicted after a jury trial in a municipal court of record and thereafter appealed to the county criminal court, which did not conduct a trial de novo. According to the State, rule 26.2(a)(2) does “not apply to an appeal from a municipal court of record to a county court, and then to a court of appeals.” Therefore, “[tjhere is no reason for [Swain] to file a motion for new trial at the county level since the trial was held in the municipal court.” We agree with the State.

A person convicted of an offense in a municipal court of record may appeal that conviction to a county criminal court. Id. § 30.00014(a). The county criminal court may not retry the case; instead, it must determine the appeal on the basis of the errors shown in the municipal court record. Id. § 30.00014(b) (“An appeal from the municipal court of record may not be by trial de novo”) (emphasis added). The county criminal court may affirm, reverse, or reform the municipal court’s judgment. Id. § 30.00024(a); Alexander v. State, 240 S.W.3d 72, 74 (Tex.App.-Austin 2007, no pet.). The defendant may then appeal to the court of appeals if the county criminal court affirms the municipal court’s judgment and if the fine assessed against the defendant exceeds $100. Tex. Gov’t Code Ann. § 30.00027(a).

Under rule of appellate procedure 26.2(a)(1), a defendant’s notice of appeal must be filed within thirty days after the court enters an appealable order. Tex. R.App. P. 26.2(a)(1); see Garza v. State, Nos. 14-06-00595-CR, 14-06-00596-CR, 2006 WL 2075147, at *1 (Tex.App.-Houston [14th Dist.] July 27, 2006, no pet.) (mem. op., not designated for publication); Croes v. State, No. 14-06-00361-CR, 2006 WL 1458485, at *1 (Tex.App.-Houston [14th Dist.] May 25, 2006, no pet.) (mem. op., not designated for publication); Sharp v. State, No. 05-04-00022-CR, 2004 WL 60770, at *1 (Tex.App.-Dallas Jan. 14, 2004, no pet.) (not designated for publication); see also Tex. Gov’t Code Ann. § 30.00023(b) (Vernon 2004) (“The appellate courts may make and enforce all rules of practice and procedure that are not inconsistent with law and that are necessary to expedite the dispatch of appeals from the municipal courts of record.”). Rule 26.2(a)(2) provides that a notice of appeal must be filed “within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.” Tex.R.App. P. 26.2(a)(2). A notice of appeal that complies with the requirements of rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998). Without a timely filed notice of appeal, we lack jurisdiction over the appeal. Id.

Here, Swain filed his notice of appeal seventy-eight days after the county criminal court had affirmed the municipal court’s judgment. Because Swain did not file the notice of appeal within thirty days of the county criminal court’s judgment, we lack jurisdiction over this appeal unless rule 26.2(a)(2) applies to extend the deadline for filing the notice of appeal. See id.

It is well established that the granting or denying of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). “A plain reading of [rule of appellate procedure 26.2(a) ] reveals that a timely-filed motion for new trial can only extend the deadline for filing an appeal from the imposition or suspension of a sentence; it cannot extend the deadline for filing an appeal from a mere ‘appealable order.’ ” Martin v. State, No. 02-06-00272-CR, 2007 WL 529905, at *1 (Tex.App.-Fort Worth Feb. 22, 2007, no pet.) (mem. op., not designated for publication); see Tex.R.App. P. 26.2(a).

In this case, the municipal court of record conducted Swain’s jury trial and imposed the $550 fine. The county criminal court did not impose or suspend Swain’s sentence. Swain’s appeal to the county criminal court was not a trial de novo; instead, the county criminal court exercised criminal appellate jurisdiction under government code section 30.00014(a). See Tex. Gov’t Code Ann. § 30.00002(1)(A) (Vernon 2004) (defining “[ajppellate court” to mean, among other things, the county criminal court), § 30.00014(a) (providing that the county criminal courts have jurisdiction over appeals from a municipal court of record), § 30.00014(b) (providing that “[a]n appeal from the municipal court of record may not be by trial de novo”) (emphasis added). Accordingly, Swain’s motion for new trial challenging the county criminal court’s judgment that affirmed the municipal court’s judgment did not operate to extend the deadline for filing the notice of appeal under rule 26.2(a)(2).

Swain’s notice of appeal was untimely. Accordingly, we grant the State’s motion to dismiss and dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a), 43.2(f).

      . See Tex.R.App. P. 47.4.

      . The record does not demonstrate that the county criminal court ever ruled on this motion.

      . Swain filed a response to the State’s motion to dismiss.


source: Caselaw Access Project

author: SUE WALKER, Justice.

license: Public Domain

text:
    In re GO COLORADO 2007 REVOCABLE TRUST, Relator.
    No. 2-10-182-CV.
    Court of Appeals of Texas, Fort Worth.
    July 15, 2010.
    Reconsideration En Banc Denied Sept. 2, 2010.

      Mark W. Stout, Padfield & Stout, LLP, Fort Worth, TX, Christopher N. Forbis, Sewell and Forbis, Decatur, TX, for Real Party in Interest.
    Richard H. Parker, Adam Allen, Houston, TX, for Relator.
    PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

In this original proceeding, Relator Go Colorado 2007 Revocable Trust (the Trust) contends that the trial court abused its discretion by enforcing a contractual jury waiver against the Trust when it did not exist at the time the guaranty containing the contractual jury waiver was signed; did not sign the guaranty containing the contractual jury waiver provision; and was not a party to, or assignee of, the guaranty containing the contractual jury waiver provision. Because we hold that the trial court abused its discretion by enforcing the guaranty’s jury waiver provision against the Trust, we will conditionally grant the Trust’s petition for writ of mandamus.

II. Background

In May 2007, Gregory Obert created the Trust. In April 2006, prior to the Trust’s creation, real party in interest Center Capital Corporation (CCC) entered into a loan and security agreement that was guaranteed by Go Interests, LLC; Gregory M. Obert; Gwendolyn M. Obert; Go Helicopters, Inc.; Helitrans Company; Hilltop Commercial Holdings, Inc.; and HMC Helicopter Service, Inc. Each of these individuals and entities (the Guarantors) signed a guaranty. The last sentence of each guaranty provides, “GUARANTOR HEREBY WAIVES TRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING ON, OUT OF, UNDER OR BY REASON OF THIS GUARANTY.”

Eventually, CCC sued the Guarantors for breach of their guaranties. CCC later added the Trust as a defendant in the pending case. Obert did not sign the guaranty in his capacity as trustee of the Trust; he signed it in his individual capacity. In fact, the Trust was not in existence at the time the guaranties were executed. CCC nonetheless sought enforcement of the guaranties’ jury waiver provisions against the Trust, and the trial court signed a May 20, 2010 order enforcing the jury waiver and placing CCC’s lawsuit against all defendants, including the Trust, on the court’s nonjury docket.

The Trust filed this original proceeding, contending that the trial court abused its discretion by enforcing the contractual jury waiver against it; CCC filed a response.

III. ANALYSIS

A. Standard of Review

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex.2009) (orig.proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). A trial court also abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex.2009) (orig.proceeding); Walker, 827 S.W.2d at 840.

Absent extraordinary circumstances, mandamus will not issue unless a relator lacks an adequate remedy by appeal. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004) (orig.proceeding) (citing Walker, 827 S.W.2d at 839). When a trial court abuses its discretion by enforcing or by refusing to enforce a contractual jury waiver provision, the parties have no adequate remedy by appeal. See In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316-17 (Tex.2006) (orig.proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig.proceeding); see also Van Waters & Rogers, Inc., 145 S.W.3d at 210-11 (explaining that an appeal is inadequate for mandamus purposes when parties are in danger of permanently losing substantial rights, such as when the appellate court would not be able to cure the error, the party’s ability to present a viable claim or defense is vitiated, or the error cannot be made part of the appellate record).

B. The Trust Did Not Knowingly and Voluntarily Waive a Jury Trial

A prelitigation contractual jury waiver must be made knowingly and voluntarily. Prudential Ins. Co. of Am., 148 S.W.3d at 132 (holding constitutional right to jury trial may be waived via contract so long as the waiver is made knowingly, voluntarily, and intelligently “with sufficient awareness of the relevant circumstances and likely consequences”); see also Gen. Elec. Capital Corp., 203 S.W.3d at 316-17. Waiver requires either the “intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” Gen. Elec. Capital Corp., 203 S.W.3d at 316.

As set forth above, the Trust did not exist in April 2006 when Gregory Obert and the other defendants executed the guaranties containing the jury waiver provisions. Obert signed a guaranty in his individual capacity, not in his capacity as trustee of the Trust. The Trust is not a party to a guaranty and does not qualify as a “GUARANTOR [WHO] HEREBY WAIVES TRIAL BY JURY” under the guaranties. Obert’s individual waiver of his right to a jury trial cannot, under any stretch of reasoning, be construed as a knowing and voluntary waiver on behalf of the subsequently-created Trust of the right to a jury trial. Obert could not have acted as trustee of a trust that had not yet been created. How can an individual who is not yet a trustee knowingly and voluntarily waive the constitutional right to a jury trial on behalf of a trust that does not yet exist? See Prudential Ins. Co. of Am,., 148 S.W.3d at 136 (requiring jury trial waiver to be knowing and voluntary). We hold that the Trust did not knowingly and voluntarily waive its constitutional right to trial by a jury.

While conceding that the Trust was not in existence when the guaranties were executed, that Obert did not sign the guaranty as trustee of the Trust, and that the Trust is not a party to any guaranty, CCC nonetheless argues that the trial court properly enforced the guaranty’s jury waiver provision against the Trust for three reasons. First, CCC argues that such a close nexus exists between Obert, who signed a guaranty in his individual capacity, and the Trust that the guaranty’s jury waiver is enforceable against the Trust. Second, CCC argues that arbitration principles— which allow an arbitration agreement in certain narrow circumstances to be enforceable against nonsignatories — apply to contractual jury waivers. Third, CCC argues that equity demands enforcement of the jury waiver against the Trust. We need not address these arguments, however, because we hold that the fact that the Trust was not in existence when Gregory Obert and the other defendants executed the guaranties containing the jury waiver provisions conclusively establishes as a matter of law that the Trust (which was not in existence) did not knowingly and voluntarily waive its constitutional right to a jury trial. If the Trust had existed prior to Gregory Obert’s execution of the guaranty containing the jury waiver or if evidence established that the Trust had become an assignee of a Guarantor, CCC’s three arguments may or may not have merit. See In re Credit Suisse First Boston Mortg. Capital, L.L.C., 257 S.W.3d 486, 493 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding) (holding that trial court did not abuse its discretion by refusing to enforce contractual jury waiver against nonsignatory, that jury waiver provisions are not on the same footing as arbitration agreements, and that equitable estoppel cannot be used as a vehicle to circumvent the required “knowing and voluntary” waiver standard).

IY. Conclusion

Because the Trust had not yet been created when Obert and the other defendants executed the guaranties containing the jury waiver provisions, because Obert did not sign the guaranty containing the contractual jury waiver provision in his capacity as trustee of the subsequently-created Trust, and because the Trust was not a party to the guaranty containing the contractual jury waiver provision and otherwise did not become an assignee of a Guarantor, we hold that the trial court abused its discretion by enforcing the guaranties’ contractual jury waiver provision against the Trust. We conditionally grant the Trust’s petition for writ of mandamus.

Respondent is ordered to enter an order setting aside that portion of its May 20, 2010 order that places CCC’s suit against the Trust on the nonjury docket. That portion of Respondent’s May 20, 2010 order that places CCC’s claims against the other seven defendants on the nonjury docket remains intact. The writ will issue only if Respondent fails to comply. Our stay order dated June 4, 2010 is ordered dissolved.

DAUPHINOT, J., dissents without opinion.

      . After hearing CCC's motion to reconsider the jury setting and motion to strike, the trial court granted the motion to strike by its May 20, 2010 order. CCC’s suit against the Trust was placed on the trial court’s nonjury docket.

      . In its response, CCC points out that the contractual documents contain a choice-of-law provision indicating that they are governed by Connecticut law. But CCC also asserts that ”[w]hether this court applies Texas law or Connecticut law, the result is the same” and proceeds to cite and rely upon Texas case law in its response. If the result is the same under the law of either jurisdiction, there is no need to resolve the choice-of-law question. See, e.g., Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex.1984). Consequently, we need not do so here.

      . CCC makes several compelling arguments why monies in the Trust belong to it. In fact, the trial court signed a temporary restraining order restricting the Trust’s distributions and expenditures. We do not address these merits-based arguments by CCC; the sole issue before us is the enforceability of the guaranty’s jury waiver provision against the Trust. That is, whether CCC can seek redress from the Trust before a jury or only before a judge.

      . The guaranties provide that they are binding on the Guarantors’ "heirs, legatees, dis-tributees, successors, assigns, executors and administrators ... (each an 'Assignee').”


author: Opinion By Justice MARTIN RICHTER.

text:
    Aida RITTER and John Rodriguez, Appellants, v. The LAS COLONITAS CONDOMINIUM ASSOCIATION, Appellee.
    No. 05-09-00666-CV.
    Court of Appeals of Texas, Dallas.
    July 16, 2010.
    Rehearing Overruled Sept. 9, 2010.

      Mike D. Gibbs, Attorney at Law, Dallas, TX, for Appellants.
    Chad Robinson, Riddle & Williams, P.C., Dallas, TX, for Appellee.
    Before Justices MARTIN RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By Justice MARTIN RICHTER.

This case arises out of a dispute between a condominium association and some of its owners over a special assessment. The Las Colonitas Condominium Association (“Association”) filed a declaratory judgment action to have the court declare that a special assessment was valid. A group of owners, lead by Aida Ritter, filed a counterclaim and two supplemental counterclaims, seeking a declaration that the special assessment was invalid, the process for nominating directors invalid, and the annual election void. The Association filed two traditional motions for summary judgment. The trial court granted both motions and denied all of the counterclaims. In two issues, appellants contend (1) they provided evidence controverting the Asso-eiation’s cause of action on the validity of the special assessment; and (2) the trial court erred in granting the motion for summary judgment on the issue of nominations. We overrule both of appellants’ issues and affirm the judgment of the trial court.

BACKGROUND AND PROCEDURAL HISTORY

The Las Colonitas Condominium is a condominium association, comprised of 248 units. It was built approximately thirty years ago and many of its common elements are in need of repairs. The bylaws of the Association provide that any special assessment for additions, alterations, or improvements in excess of $25,000 must be approved by fifty-one percent of the owners. However, if the special assessment is for the “replacement, repair, maintenance or restoration of any Common Elements,” approval of the owners is not necessary.

In March 2008, the board of directors for the Association passed a $200,000 special assessment. Owners did not vote on the assessment. The Association gave owners six months to pay the special assessment. Ritter has not paid the special assessment.

In June 2008, Ritter and another owner, John Rodriguez, distributed post cards to units alleging the special assessment was “illegal,” and scheduled a meeting for June 14, 2008, to discuss the issue. Before filing this lawsuit, the Association asked Ritter and Rodriguez to retract the information. When they failed to do so, the Association filed suit, seeking a declaratory judgment that the special assessment was valid.

On October 13, 2008, Ritter filed a counterclaim against the Association and alleged that the special assessment violated the bylaws. Ritter also asked the court to declare any election void, if an owner was prohibited from voting because he/she failed to pay the special assessment.

The Association noticed its annual meeting for October 22, 2008. The bylaws required owners to submit nominations for new directors at least sixty days in advance of an election. However, notice of an election only required a thirty day notice. On October 17, 2008, Ritter filed a first supplemental counterclaim seeking a declaratory judgment that the nomination provision was invalid and asking the court to “declare the election of directors void where the Association refused to accept nominations for directors.”

A quorum was not present at the annual meeting and the meeting was adjourned to November 19, 2008. The bylaws required notice of a new meeting be mailed within two to four weeks in advance of the adjourned meeting. The Association did not send notice by mail of the adjourned meeting. Ritter was present at the adjourned meeting. Four new board members, out of nine total, were elected at that meeting.

On January 28, 2009, the new board of directors unanimously passed a resolution to clarify the purpose of the special assessment (the “January 2009 Resolution”). The January 2009 Resolution provided that the special assessment was to fund replacement, repair, maintenance, and restoration work on the common elements, and would not be used for any additions, improvements, or alterations. The January 2009 Resolution also provided an estimate for the planned repairs as follows: $94,550 for re-painting; $86,162.50 for repairs to existing concrete and stucco; $44,201.67 for repairs to existing patio fences and patio gates; and $57,000 for repairs to existing perimeter fences. The new board also passed a resolution that required notice of annual elections be mailed ninety days in advance of the election.

The Association filed two motions for summary judgment. On March 10, 2009, it moved for summary judgment on the issue of the special assessment and asked the court to declare the special assessment valid. On March 19, 2009, the Association filed a motion for summary judgment on the issue of nominations. The Association argued that the issues related to the election were moot, since the election had occurred and the new directors had been serving for nearly four months.

On April 7, 2009, Ritter filed a second supplemental counterclaim. In the second supplemental counterclaim, Ritter alleged that the annual meeting had been adjourned because a quorum was not present, but the adjourned meeting was held without the requisite notice being mailed. Ritter asked the court to declare the meeting, the election, and any action of the new board, void. The Association filed its reply in support of its motion for summary judgment on the issue of nominations, and attached an affidavit of an owner/board member attesting that Ritter had been present at the adjourned meeting. In its reply, the Association reasserted its position that the issues were moot, and noted that Ritter and Rodriguez had failed to respond to that argument.

STANDARD OF REVIEW

The standard for reviewing a traditional summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party’s right to prevail has been established as a matter of law. Stancu v. Stalcup, 127 S.W.3d 429, 431-32 (Tex.App.-Dallas 2004, no pet.). Under the standards for a traditional motion for summary judgment the movant must establish that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied).

When a party moves for summary judgment on multiple grounds and the trial court order grants summary judgment without specifying the grounds relied upon, the party appealing that order must negate all possible grounds upon which the order could have been based or the judgment must be affirmed on any of the grounds not complained of. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

DISCUSSION

A. MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF THE SPECIAL ASSESSMENT

In their first issue, Ritter and Rodriguez contend they provided evidence controverting the Association’s claim that a special assessment was authorized by the board and valid. Ritter and Rodriguez argue that they presented evidence showing (1) the board of directors did not authorize a special assessment at the March 2008 meeting; (2) the special assessment was for additions, alterations or improvements to the common areas, and therefore, it was invalid without a vote of the majority of the owners; and (3) the election of the new board of directors was not valid. The Association argues that the special assessment in the amount of $200,000 was valid, and in accordance with the bylaws of the Association. Specifically, the Association argues that the special assessment was passed by the board in March 2008, and will only be used for replacement, repair, maintenance, and restoration of the common areas.

The bylaws, submitted by both parties as summary judgment evidence, established that a special assessment for replacement, repair, maintenance, and restoration of the common areas, did not require a vote of the owners. However, a special assessment for additions, alterations or improvements to the common areas in excess of $25,000, required the vote of fifty-one percent of the owners. It is undisputed that the owners did not vote to approve the special assessment. The central issue raised by the first motion for summary judgment, was whether the special assessment was authorized by the board, and if so, was the special assessment for additions, alterations or improvements in excess of $25,000.

The summary judgment evidence adduced by the Association included an affidavit by one of the members of the board stating (1) he is a member of the Association’s board of directors; (2) the board of directors passed a special assessment in the amount of $200,000, in March 2008; (3) the special assessment will be used to fund replacement, repair, maintenance, and restoration work on the common elements; and (4) the special assessment will not be used for additions, alterations or improvements to the common elements. The Association’s evidence also included a board resolution, passed by the new board in January 2009. The January 2009 Resolution confirmed that a special assessment had been passed in March 2008, and that it would only be used for repairs and maintenance, and not for any additions, improvements, or alterations. Finally, the Association submitted photographs depicting some of the decay to the structures and areas in need of repairs.

In their response to the motion for summary judgment, Ritter and Rodriguez relied upon the minutes of the March 2008 board of directors’ meeting, a page from the Association’s web site, and an affidavit of Ritter, to attempt to establish a genuine issue of material fact.

The minutes of the March 12, 2008, board of directors meeting stated:

New Business
Board voted for speed bumps $2400
Information about the budget for special assessment of $200,000 for the condos motion by Bob McCranie was 2nd by Jeff Scolastico and it was approved by the board.

The page from the website provided that the board had passed a special assessment “for the repair of the common elements.” It also stated the special assessment would be used to pay for the following items: (1) Concrete/Stucco Repair; (2) Concrete Posts Parking Lot; (3) Speed Bumps; (4) Stairs; (5) Gates; (6) Wood repairs; (7) South Clubhouse Remodeling; and (8) North Clubhouse Remodeling. In his affidavit, Ritter referred to this list, and concluded that “construction of concrete posts in the parking lot, gates, and speed bumps is not a replacement, repair, maintenance, or restoration of the Common Elements.” Ritter also stated in his affidavit that the “special assessment passed by the Board of Directors of the Association in March 2008 was not approved by fifty-one percent (51%) of the owners.”

Based upon the record before us, we conclude the evidence established the special assessment was approved by the board in March 2008, and was for repairs and restoration. The evidence offered by Ritter and Rodriguez on these two issues did not create any genuine issues of material fact. To the contrary, most of the evidence submitted by Ritter and Rodriguez supported the Association’s position that the board passed the resolution at the March 2008 meeting and the special assessment would only be used for repairs. The minutes from the March 2008 meeting confirmed that the Association had passed the special assessment in the amount of $200,000. Although brief, the minutes contained the necessary words to establish the assessment had been passed: “special assessment of $200,000;” motion by a board member; seconded; and finally “approved by the board.” The statements from the website also confirmed that the “board passed a special assessment.” Ritter even admitted in his affidavit that a special assessment was passed in March 2008, but that it was not approved by fifty-one percent of the owners.

The summary judgment evidence also established that the special assessment was for a valid purpose. Even though Ritter and Rodriguez argue that the special assessment would be used for construction, the evidence established that it would only be used for repairs. The affidavit of Robert McCranie stated that the special assessment would only be used for repairs and restoration. McCranie was a member of the board of directors when the special assessment was passed and the minutes show he made the motion to approve the special assessment. Nothing in the other evidence showed that the special assessment would be used to fund construction. The website provided that “The Board of Directors passed a special assessment for the repair of the common elements at Las Colonitas. The repairs are extensive and are necessary to remedy years of neglect and inattention.” (Emphasis added). The word “construction” was not used anywhere except in Ritter’s affidavit and pleadings. This was Ritter’s conclusion, unsupported by facts. However, conclusory statements in affidavits are not proper summary judgment evidence and may not be used to raise an issue of fact. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex.App.-Dallas 2005, no pet.). Summary judgment evidence that raises only “mere suspicion or surmise” of a fact in issue is not sufficient to defeat summary judgment. Id.

Finally, even if these items were new construction, Ritter and Rodriguez failed to present any evidence that their cost exceeded $25,000. The bylaws required a vote of the owners only if the cost of an improvement exceeded $25,000. The only evidence Ritter submitted on cost was in the minutes from the March meeting. Speed bumps were referenced in the minutes, as a separate item of new business, at a cost of $2,400. This was well below the threshold for owner approval established in the bylaws.

In their final challenge to the special assessment, Ritter and Rodriguez argue that the new board of directors could not ratify.the special assessment because the election of directors was void. As discussed below, because we conclude Rit-ter and Rodriguez’s challenge to the election fails, the January 2009 Resolution is valid. The January 2009 Resolution itemized and accounted for all of the special assessment, and confirmed that it would be used solely for restoration and repairs. Therefore, we conclude the summary judgment evidence conclusively established that the board of directors passed the special assessment in March 2008, and it will only be used for repairs and restoration. We overrule Ritter and Rodriguez’s first issue.

B. MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF NOMINATIONS AND VALIDITY OF ELECTION

In their second issue, Ritter and Rodriguez contend the trial court erred in granting summary judgment on the claims in the second supplemental counterclaim. The second supplemental counterclaim was filed after the Association’s motion for summary judgment on the issue.of nominations. However, the trial court granted the motion for summary judgment and denied all claims in the first and second supplemental counterclaims. Ritter and Rodriguez argue that a trial court cannot grant judgment on grounds not specifically set out in the motion for summary judgment. Tex.R. Civ. P. 166a(c).

Generally, summary judgment cannot be granted on a cause of action not raised in the summary judgment motion. Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex.1988). However, summary judgment may be granted on claims added after the motion for summary judgment was filed, if the movant has conclusively disproven ultimate facts central to all causes of action, or the claims subsequently added are derivative of the claims addressed. McIntyre v. Wilson, 50 S.W.3d 674, 684-85 (Tex.App.-Dallas 2001, pet. denied) (“the grounds asserted in the motion show that the plaintiff could not recover from the defendant on the later pleaded causes of action”); Judwin Properties, Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502-503 (Tex.App.-Houston [1st Dist.] 1995, no writ).

The Association argues that the motion for summary judgment on the issue of nominations was broad enough to encompass the later pleaded claims. We agree. There was no single cause of action pleaded in any of the supplemental counterclaims. The original counterclaim and both supplemental counterclaims asked the court to declare the election void. The second supplemental counterclaim merely alleged different facts, not causes of action, to set aside the election. The Association argued in its motion for summary judgment that any challenges to the election were moot; the election had been held, and the new board begun to act. This contention was broad enough to defeat all of Ritter and Rodriguez’s challenges to the election, whether based upon good standing as an owner, a conflict in the bylaws, or lack of notice of the adjourned meeting. McIntyre, 50 S.W.3d at 685. In addition, the Association conclusively established that Ritter was present at the meeting, and therefore, had no grounds to complain about lack of notice. We conclude the trial court did not err in granting judgment on both supplemental counterclaims. We overrule Ritter and Rodriguez’s second issue.

In its motion for summary judgment on the issue of nominations, the Association argued that the issues were moot, since the election had been held and the new board had begun to serve. Ritter and Rodriguez did not assign error to this issue and did not address it until their reply brief. However, a party cannot raise a new issue in a reply brief. Dallas County v. Gonzales, 183 S.W.3d 94 (Tex.App.Dallas 2006, pet. denied). In addition, Ritter and Rodriguez did not assert a general challenge that the trial court erred in granting summary judgment on the issue of nominations, and they did not challenge every ground that was raised below and could have been the basis for the court’s ruling. Instead, Ritter and Rodriguez only challenged the trial court’s judgment to the extent it granted judgment bn the claims in the second supplemental counterclaims. Therefore, without deciding the merits of the unchallenged issues, the judgment must be affirmed. Malooly, 461 S.W.2d at 121.

We affirm the judgment of the trial court.

      . The pleadings filed by Ritter in the trial court were called “Cross-Plaintiff's Original Petition,” "Cross-Plaintiffs First Supplemental Petition,” and "Cross-Plaintiff’s Second Supplemental Petition.” The parties also refer to these pleadings in their briefs as peri-tions and the party as "cross-plaintiff.” Because the pleadings filed by Ritter are against the original plaintiff, they are counter-claims and this court will refer to them by the correct designation. See Tex R. Civ. P. 97.

      . Ritter and Rodriguez filed an answer to the original petition. Rodriguez did not join in any of the counterclaims. However, Rodriguez joined in the responses to the motions for summary judgment and the notices of appeal.

      . Ritter and Rodriguez objected to the affidavit on the ground that it was not the "best evidence,” but failed to obtain a ruling on their objection. Therefore, the objection is waived. Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 358 (Tex.App.-Dallas 2007, pet. denied); Gandara v. JP Morgan Chase Bank, 01-03-00926-CV, 2005 WL 615628 (Tex.App.-Houston [1st Dist.] Mar. 17, 2005, no pet.) (failure to obtain ruling that affidavit was not best evidence waived when party fails to obtain a ruling in trial court).

      . Substantive defects in affidavits can be raised for the first time on appeal. Stewart v. Sanmina Tex., L.P., 156 S.W.3d 198, 207 (Tex.App.-Dallas 2005, no pet.). Substantive defects include affidavits that include legal or factual conclusions. Id.


author: Opinion by Chief Justice MORRISS.

text:
    Charles M. CHAMBERS and Juliann S. Chambers, Appellants, v. EQUITY BANK, SSB, Appellee.
    No. 06-09-00012-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 30, 2010.
    Decided July 29, 2010.

      John R. Mercy, Mercy ⅜ Carter * Tid-well, LLP, Texarkana, Joe B. Young, Patton, Nix & Young, LLP, Longview, for Appellants.
    Donald W. Cothern, Law Office of Donald W. Cothern, Gregory D. Smith, Ramey & Flock PC, Tyler, for Appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Unknown to Charles M. Chambers, when he passed by the Lighthouse Resort on Lake Fork on a weekend fishing trip in early 2004 and noticed the “for sale” sign, was the fact that lurking beneath the resort’s surface was a damaged or defective septic system. It is not disputed that, in April 2004, when Charles M. and Juliann S. Chambers (herein Chambers) executed a contract to buy the resort from Franklin National Bank (now Equity Bank, SSB), Chambers did not know either that there were problems with the septic system or that the Bank knew of those problems. Disputed issues at trial and on appeal involve when Chambers learned of the septic system problems and of the Bank’s knowledge of those problems, whether Chambers proceeded with the purchase of the resort with such knowledge, and what effect those developments have on Chambers’ fraud claim against the Bank arising from the sale.

The sequence of events is helpful to an understanding of the issues.

A “pre-closing” of the Lighthouse property took place June 28, 2004, at which time various, but not all, closing documents were signed; none were filed for record at that time. At that time, Chambers signed a promissory note for $650,000.00, the Bank gave Chambers the keys to the Lighthouse property along with $15,000.00 for operating expenses, and Chambers began cleaning up the property. Chambers did not pay any part of the sales price on June 28 and admits that the property was not purchased on that date.

On June 29, 2004, Chambers was advised by the Sabine River Authority of the problem with the septic system.

As a result, Chambers and the Bank entered into an amended contract July 20, 2004, which provided that the Bank was to repair the septic system for an allowance not to exceed $32,000.0Q. While many of the closing documents had been signed by Chambers June 28, 2004, the warranty deed conveying the real estate and the bill of sale conveying title to the personal property were not signed by the Bank until July 20, 2004, the deed of trust was not recorded until July 22, 2004, and no monies were paid by Chambers or disbursed by the Bank from the SBA loan until the contract amendment was signed.

Before the septic-system repairs could be made, Chambers filed for bankruptcy and stopped making payments on the note to the Bank.

The Bank foreclosed on the property and sued Chambers for the remaining deficiency on the loan. Chambers thereafter filed suit against the Bank for fraud and real estate fraud. The two cases were consolidated and tried to a jury.

The jury found in favor of Chambers on the fraud claims and assessed damages, exemplary damages, and attorney’s fees. Damages were awarded in the amount of $68,583.73, representing the net consideration paid by Chambers to the Bank; $36,840.00 in attorney’s fees, costs of septic pumping, and value of inventory lost due to foreclosure; and $175,000.00 in exemplary damages. In addition, the jury answered question number eight on ratification in favor of the Bank, finding that Chambers ratified the fraud. On the Bank’s motion, the trial court entered judgment in favor of the Bank in the amount of its deficiency claim of $219,415.17.

Chambers appeals. We affirm the judgment of the trial court because (1) Chambers waived any claim of defect in the instruction given to the jury on ratification, (2) the evidence is legally and factually sufficient to support the jury’s finding of ratification, and (3) the trial court correctly disregarded the jury’s answers to all questions except question number eight.

(1) Chambers Waived any Claim of Defect in the Instruction on Ratification

In connection with a question submitting the Bank’s ratification defense, the jury was instructed that ratification occurs when one affirms an existing contract or enters a new one after becoming “aware of the fraud.” Specifically, the jury was instructed:

In answering this question, you are instructed that ratification occurs if a defrauded party enters into a new agreement or otherwise affirms the contract and recognizes the contract as subsisting after becoming aware of the fraud.

At the charge conference, counsel for Chambers made the following objection to this question and instruction:

Plaintiffs object to Question No. 8 on the basis that there is no evidence to support the submission of such an issue to the jury, or in the alternative, the evidence is insufficient as a matter of law to support the submission of this issue to the jury, and a yes answer to that question would not be supported by sufficient evidence. We’re also objecting to that on the basis that there is no authority cited for the contents of the ratification instruction that accompanies that issue.

The Bank contends Chambers’ complaint of charge error — that the instruction is a misstatement of Texas law — has been waived. As a threshold issue, we examine whether Chambers waived this complaint. Our procedural rules state that any complaint to a jury charge is waived unless specifically included in an objection.

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading is waived unless specifically included in the objections.

Tex.R. Civ. P. 274.

To preserve error in a defective instruction, the complaining party must specifically object, clearly identify the error, and explain the grounds for the objection. In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003); Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994). The offending language must be identified with sufficient precision to apprise the trial court of just what makes the submission erroneous and of what corrective action might be taken. B.L.D., 113 S.W.3d at 349-50. Further, the grounds supporting an objection made during trial must conform to the argument supporting the corresponding point of error on appeal. Exxon Corp. v. Allsup, 808 S.W.2d 648, 655 (Tex.App.-Corpus Christi 1991, writ denied). Accordingly, an objection made during trial which is different from the argument urged on appeal presents nothing for appellate review. Borden, Inc. v. Guerra, 860 S.W.2d 515, 525 (Tex.App.-Corpus Christi 1993, writ dism’d by agr.).

To complain on appeal that the instruction misstates the law, Chambers must have made such an objection at trial, specifically pointing out the objectionable matter and the grounds for the objection. See Bryant v. Transcontinental Gas Pipe Line Corp., 821 S.W.2d 187, 189 (Tex.App.Houston [14th Dist.] 1991, writ denied). Aside from a legal sufficiency complaint, Chambers’ sole complaint at trial regarding the instruction on ratification was: “there is no authority cited for the contents of the ratification instruction that accompanies that issue.” This objection fails to challenge the text of the instruction and does not identify anything about the instruction that might be suspect; there is no claim that the instruction is improper. The objection here does not communicate to the trial court the claim that the proposed instruction is a misstatement of Texas law, as is alleged on appeal. Chambers’ complaint on appeal is precisely targeted and asserts that the instruction’s use of the phrase “became aware of the fraud,” rather than “full knowledge of the fraud and all material facts” is a misstatement of Texas law. No such argument was made to the trial court.

“Important prudential considerations underscore our rules on preservation. Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds.” B.L.D., 113 S.W.3d at 350. Because Chambers’ objection to the trial court did not state, or even imply, that the ratification instruction misstates the law, no error on this issue was preserved for our review. We do not address whether the instruction on ratification was a misstatement of Texas law. We overrule this point of error.

(2) The Evidence Is Legally and Factually Sufficient to Support the Jury’s Finding of Ratification

Ratification is an affirmative defense that the defendant must prove. Lesikar v. Rappeport, 33 S.W.3d 282, 300 (Tex.App.-Texarkana 2000, pet. denied). Because Chambers did not have the burden of proof on this issue and is challenging the legal sufficiency of the jury’s finding, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). We are to consider the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). If there is more than a scintilla of evidence to support the finding, we must uphold it. Associated Indem. Corp., 964 S.W.2d at 285-86. “More than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). Conversely, evidence is no more than a scintilla when it is so weak that it amounts to nothing more than mere surmise. Id.

When considering a factual sufficiency challenge to a jury’s finding, we must consider and weigh all the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We will set aside a verdict only when it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Lesikar, 33 S.W.3d at 300.

The fraud found by the jury concerns the Bank’s failure to inform Chambers about the condition of the septic system. The question here is whether there is sufficient evidence that Chambers ratified that fraud. The court’s instruction to the jury in Question No. 8 was:

In answering this question, you are instructed that ratification occurs if a defrauded party enters into a new agreement or otherwise affirms the contract and recognizes it as subsisting after becoming aware of the fraud.
Answer “Yes” or “No”
ANSWER: Yes

Ratification occurs when the parties’ obligations are adjusted after the defrauded party learns of the fraud. Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ.App.-Corpus Christi 1977, writ disra’d). An agreement is also ratified if a party, by word or conduct, affirms the agreement after becoming aware of any fraud that would otherwise impair the agreement. Formosa Plastics Corp., USA v. Kajima Int'l, Inc., 216 S.W.3d 436, 456 (Tex.App.-Corpus Christi 2006, pet. denied). That is, ratification occurs whenever the parties act in a way that recognizes, in spite of the revealed fraud, the existence of a binding contract. Id. at 456.

In this case, the evidence shows that, after Chambers learned of the fraud, the purchase of the property was completed, including the signing of an amended contract of sale expressly addressing the matter at the heart of the fraud allegation— repair of the septic system — at a cost to the Bank of $32,000.00. Chambers’ testimony on this issue is as follows:

Q. [By Mr. Young]: Did you have any verbal communication with anybody at the bank?
A. I did. I told Paul Lester that this needed to get fixed or I wasn’t going to give him my $100,000 down payment when I had it.
Q. Did anybody at the bank, starting on June the 28th of '04 or 29th of '04 when you found out about it — and I think the next significant date is probably going to be July the 20th, when they had this meeting at the bank — did anybody at the bank during that period of time ever admit to you that they knew that there was a problem with the septic system at the Lighthouse prior to your contract?
A. Yes. Paul Lester told me personally, I’m sorry, we should have told you about that, we know about it, it’s no big deal, there is a pipe missing and we’re going to hook it up for you, no problem no cost to you whatsoever, and David knows about it, he’s already got a contractor to do it.
Q. [By Mr. Cothern]: Now, when you were [sic] received this letter from Weldon Griffith, the person that you had go out and do the engineering study or come up with a bid on June 29th of 2004, did you provide a copy of that quote, if you will, from Weldon Griffith saying it’s going to cost somewhere from 35, 39,000 to 52,000?
A. Did I provide a copy of that?
Q. Yeah, to the bank.
A. Yes, I did,
Q. [By Mr. Cothern]: You actually went into the bank with a copy of that and told them, you’re going to have to do something about this or I’m not coming up with the $100,000?
A. I don’t really recall that, but somehow or another I did tell them that, by the phone or in person, I don’t recall.
Q. Okay. So when you had that report that was done for you, had knowledge about the septic problems and everything, you went into the bank with the report telling them that, we’ve got to work something out here or you’re going to have to do something or I’m not coming up with the $100,000 at closing; isn’t that correct?
A. That’s correct.
Q. And at that point is when the negotiations began for the amendment of the contract which was signed June [sic] July 20th, 2004; is that correct?
A. I guess. I object to the word negotiate. There were no negotiations. They gave me a figure that they would fix it for that [sic] and that was that.
Q. Well, did you tell them, that figure is not acceptable and I’m going to have go [sic] with Weldon Griffith’s figure of 39,000 to 52,000?
A. No. They had Weldon Griffith’s letter and they had told me that they had a contractor in my pocket, is the exact phrase that Paul Lester used, that Dave Coe has a contractor in his pocket that will do it for this amount of money.
Q. [By Mr. Cothern]: You did agree to the contract amendment, sir, that says there will be an allowance of up to a maximum of $32,000; isn’t that correct?
A. That’s what the contract says, yes.
Q. And that’s the contract you signed?
A. I signed it.
Q. [By Mr. Cothern]: So you knew when the contract amendment was signed, that if the cost of the septic system exceeded $32,000, that you would be responsible for payment of that excess; am I correct?
A. Yes.

In spite of the foregoing testimony, Chambers claims there was no affirmation of the contract or recognition of the contract as subsisting after he became aware of the fraud. This is so, he claims, because the closing papers were signed June 28, 2004, before he knew about the fraud, that the amendment was to get the Bank to fix the septic system, that he was told by the Bank that he could not back out of the deal, and that he had already been given a deed and keys to the property June 28, 2004.

Under the sales contract, Abstract Services, Inc., of Emory was to serve as escrow agent. The contract provided that Chambers was to deposit $100,000.00 with the Bank as a condition of the sale. Apparently, both Chambers and the Bank wanted to sign the closing documents and allow Chambers to take possession of the property before Chambers was able to make the $100,000.00 deposit with the Bank. Chambers wanted to take possession prior to the July 4th weekend and the Bank, which was being sold, wanted the property listed as having already been sold before its sale took place.

While many of the closing documents were signed by Chambers June 28, 2004, the warranty deed was not signed by the Bank until July 20, 2004, the deed of trust was not recorded until July 22, 2004, the bill of sale conveying title to the personal property was not signed by the Bank until July 20, 2004, and no monies were paid by Chambers or disbursed by the Bank as disbursement on the SBA loan until the contract amendment was signed. Nothing in the record indicates that the deed to the property was delivered to Chambers June 28, 2004.

Conveyance by deed requires delivery of the deed. Tex. Prop.Code Ann. § 5.021 (Vernon 2004); Noell v. Crow-Billingsley Air Park Ltd. P’ship, 233 S.W.3d 408, 415 (Tex.App.-Dallas 2007, pet. denied). Delivery of a deed has two elements: (1) the grantor must place the deed within the control of the grantee (2) with the intention that the instrument become operative as a conveyance. Noell, 233 S.W.3d at 415. The question of delivery of the deed is controlled by the intent of the grantor, and it is determined by examining all the facts and circumstances preceding, attending, and following the execution of the instrument. Id. Here, the deed was not placed in Chambers’ control until July 20, 2004, when it was signed by the Bank. Even if Chambers took possession of the property June 28, there was no intention on the part of the Bank that the deed become an operative conveyance until July 20, 2004, when Chambers deposited $100,000.00 as a condition of the sale.

These events notwithstanding, we are nevertheless faced with the fact that Chambers, with knowledge of the full scope of the problems with the septic system, signed a contract amendment July 20, 2004, requiring the Bank to expend up to $32,000.00 to repair those problems. Chambers claims that, even if the contract amendment somehow ratified the contract, the fraud found by the jury nevertheless vitiates the deficiency recovery under the note, because there is no finding of ratification that pertains to the note or any other document that was signed June 28, 2004. In the absence of arguments or citations to the record or relevant legal authority, this portion of Chambers’ argument is inadequately briefed and will not be considered. See Tex.R.App. P. 38.1(i); LaCroix v. Simpson, 148 S.W.3d 731, 735 (Tex.App.-Dallas 2004, no pet.).

Finally, Chambers contends that continued performance under a contract constitutes ratification only if the party has no continuing obligation to perform, citing Fortune Prod. v. Conoco, 52 S.W.3d 671, 679 (Tex.2000). In that case, Conoco paid a premium to purchase the Concho Valley Gas System, including gas purchase contracts. The contract price for residue gas exceeded the market price. Plaintiffs were producers of natural gas who were operating within the Concho Valley Gas System under existing gas processing contracts. When Conoco bought the plants and the contracts, it terminated the old gas purchase contracts and entered into new contracts with lower prices to the producers. The gas producers sued for fraud in the inducement on the new contracts. The court discussed the issue of whether the ratification of a contract induced by fraud precluded the right to sue for damages and recognized that, in some circumstances, a party induced to enter a contract by fraud may ratify the contract in such a manner that a claim for damages is foreclosed. Id. at 676-79. Those producers who continued to sell to Conoco without a written contract (after having learned of the fraud) were not entitled to sue for damages. Those producers who continued to sell to Conoco under a written contract were not precluded from bringing a suit for damages. Id. at 676.

This distinction rests on a requirement to fulfill the terms of a written contract. Those producers selling without written contracts delivered their gas and accepted payment. They were not required to sell, and Conoco was not required to purchase. Those producers who continued to sell to Conoco pursuant to written contracts with Conoco which were induced by fraud did not, as a matter of law, foreclose their right to sue for fraud damages. Id. at 679.

We see no application of the holding in Fortune Production to the facts presented here. In the present case, a written contract for sale was amended in a very precise manner designed to address the fraud issue about which Chambers complained. This is a classic case of ratification whereby the obligations of the Bank and Chambers were adjusted after Chambers learned of the fraud. See Wise, 552 S.W.2d at 199. In entering into the amended contract with the Bank, Chambers acted in a way that recognized, in spite of the revealed fraud, the existence of a binding contract. See Formosa Plastics Corp., USA, 216 S.W.3d at 456. The evidence of ratification is both legally and factually sufficient to support the jury’s finding of ratification. We overrule this point of error.

(S) The Trial Court Correctly Disregarded the Jury’s Answers to all Questions Except Question Number Eight

The jury found in Chambers’ favor on claims of fraud, damages that resulted from the fraud, and exemplary damages. The jury also found, however, that Chambers ratified the contract. The Bank filed a post-trial motion for judgment on stipulated facts and in disregard of selected jury answers, in which it urged the trial court to disregard the jury’s answers to Questions 1, 2, 4, 5, 6, 7, and 10. The trial court granted the motion. The court’s final judgment specifically states that the jury’s answers to the referenced questions “should be and are disregarded,” but does not state the basis for this finding. The court entered judgment in favor of the Bank “on the remaining jury answers” and on the “stipulations of the parties.”

A trial court may disregard jury findings if they are unsupported by the evidence or if they are immaterial. Green Int’l v. Solis, 951 S.W.2d 384, 889 (Tex.1997); Spencer, 876 S.W.2d at 157. Because one of the bases set forth in the Bank’s motion for judgment and in disregard of selected jury answers was the affirmative ratification finding, the trial court was permitted to disregard the jury findings if they were immaterial. Spencer, 876 S.W.2d at 157. A question is immaterial when it should not have been submitted, calls for a finding beyond the province of the jury, such as a question of law, or when it was properly submitted, but has been rendered immaterial by other findings. Se. Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex.1999). The Bank relies on the third ground. A trial court may disregard a jury’s finding on an immaterial issue and render judgment based on the remaining findings; such a judgment is not considered as one rendered non obstante veredicto. Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 216 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). If the questions disregarded by the trial court were immaterial, they were properly disregarded; otherwise, the trial court had no authority to disregard same and the error may be reversible. Kuehnhoefer v. Welch, 893 S.W.2d 689, 692 (Tex.App.-Texarkana 1995, writ denied).

The Bank relies on the jury’s positive finding of ratification as the basis for its claim that the jury questions disregarded by the trial court were immaterial. When a party ratifies an agreement that has been induced by fraud, the ratification generally vitiates the fraud, precluding rescission or recovery of fraud damages. See, e.g., Teders v. Mercantile Nat’l Bank, 235 S.W.2d 485, 488 (Tex.Civ.App.-Dallas 1950, writ refd n.r.e.). Once a contract has been ratified by a defrauded party, or a new agreement adjusting the original fraudulent acts has been consummated, the defrauded party waives any right of rescission or damages. Wise, 552 S.W.2d at 200; see also Meyer v. Cathey, 167 S.W.3d 327 (Tex.2005) (finding evidence of ratification of fraud legally sufficient and rendering judgment that party who ratified fraud take nothing on fraud claims). Here, the evidence of ratification is legally and factually sufficient. Chambers’ ratification of the contract has the legal effect of precluding recovery of fraud damages.

While the jury determined the Bank committed fraud and real estate fraud against Chambers and assessed damages and exemplary damages for that fraud, Chambers ratified the fraud by entering into an amended contract that specifically addressed the matter at the heart of the fraud — the faulty septic system at the Lighthouse Resort. Chambers’ ratification of the fraud precludes being awarded damages for that same fraud. Thus, the trial court correctly disregarded the jury’s fraud and damage findings. This point of error is overruled.

We affirm the judgment of the trial court.

      . Chambers agreed to purchase the property from the Bank for $685,000.00.

      . Chambers would later learn that, even though David Coe, senior vice president of Franklin National Bank (Bank) knew that sewage was being pumped from the septic holding tank at the hotel, he never informed Chambers of this fact. Coe was advised by the former owner of the Lighthouse that the subcontractor who installed the septic system failed to install the pump and the connecting line from the tank at the motel to the system behind the convenience store.

      . The resort consisted of a convenience store with gas pumps, a restaurant, and a motel. The resort was built on Lake Fork in 2002 by Sharon Hale and her husband. After the untimely death of her husband, Hale was unable to run the business and provided the mortgage holder, Franklin National Bank, with a deed in lieu of foreclosure. Thus, the Bank had the resort in its inventory for a period approaching two years.

      . The amended contract provides, "[I]n addition to any repairs and treatments otherwise required by the contract, Seller, at Seller’s expense, shall complete the following repairs and treatments: [I]nstallation of system for waste water disposal for an allowance not to exceed $32,000.00."

      . Question No. 8 reads: "Was the contract in question 'ratified' by Michael and Juliann Chambers?”

      . While, as Chambers points out, many of the closing documents had been signed June 28, no deed or bill of sale was signed until July 20. It is clear, therefore, that closing did not finally occur until July 20, the same date as the amendment, making that date the key date for any ratification to have occurred and by which any knowledge by Chambers must have been gained for ratification to have been effective.

      . The only evidence indicating Chambers ever wanted to "back out of the deal” was before the time he learned of any problems with the septic system. At that time, Chambers was informed that his earnest money would not be returned.

      . The jury was asked to determine whether the Bank promised to repair the septic system with the intention of not fulfilling that promise (thereby committing fraud). The jury found that the Bank did not commit fraud in making this promise.

      . While Chambers did not brief this argument on appeal, in oral argument before this Court Chambers contested ratification of the fraud because, while Charles was aware of the problem with the septic system at the time he signed the contract amendment, he was not aware that the Bank knew about the problem before the sale and failed to inform him of the problem. Consequently, Chambers claims not to be “aware of the fraud,” and thus not to have ratified it. This argument is disproved by the record. At the July 20 meeting at the Bank, Paul Lester, senior vice president of the Bank, told Charles personally that he was sorry, "we should have told you about [the septic system], we know about it, it’s no big deal, there is a pipe missing and we’re going to hook it up for you, no problem, no cost to you whatsoever, and David knows about it, he's already got a contractor to do it.”

      . The jury answered "yes” to Questions 1 (fraud), 2 (real estate fraud), 4 (clear and convincing evidence that Chambers was harmed by the fraud), and 5 (actual awareness of the falsity of the representation or promise found to be real estate fraud). The jury returned damage findings in answer to Questions 6 (damages that resulted from the fraud), 7 (special damages proximately caused by the fraud), and 10 (exemplary damages). The damages found by the jury — consideration paid at the closing of the amended contract, attorney’s fees incurred in the unsuccessful attempt to resist foreclosure, costs of septic pumping, and the value of foreclosed inventory — all pertain to items incurred at or after the closing of the amended contract. The Bank contends these items were not the result of fraud, but were a result of proper performance and foreclosure under the amended contract, which Chambers entered voluntarily after obtaining full knowledge of the facts and in exchange for the Bank’s monetary concessions.

      . The Bank's motion to disregard selected jury answers was based on (1) the jury's finding of ratification, whereby Chambers abandoned any claims for rescission or damages and instead elected to accept the amended contract and (2) claims of no evidence to support each such answer.

      . The remaining jury answers are to Question numbers 3 (no real estate fraud based upon an alternate definition of real estate fraud), 8 (finding Chambers ratified the contract), and 9 (Chambers did not waive claims of fraud against the Bank).

      . The stipulations covered the amount of the deficiency owed to the Bank and the Bank's attorney's fees.

      . This statement assumes that all disregarded answers were otherwise supported by sufficient evidence.

      .Chambers' contention of trial court error in disregarding the jury's answers responds only to that portion of the Bank’s motion to disregard the jury’s answers based on the assertion that there is insufficient evidence to support those findings. Because we find the questions disregarded by the trial court were rendered immaterial by the jury’s finding on ratification, we do not address the sufficiency of the evidence in support of the jury's answers to those questions.


author: G. ALAN WALDROP, Justice.

text:
    Jeffrey S. KELLY, Pamela K. Kelly and Jeff Kelly Construction, Appellants, v. STOCK BUILDING SUPPLY OF TEXAS, L.P. d/b/a Stock Building Supply, Appellee.
    No. 03-09-00117-CV.
    Court of Appeals of Texas, Austin.
    Aug. 3, 2010.
    Rehearing Overruled Aug. 10, 2010.
    Jeffrey S. Kelly, Hajjar, Sutherland & Kelly, L.L.P., Austin, TX, pro se.
    Justin M. Welch, Joseph F. Centrich, Trevor G. Green, Blazier, Christensen, Bigelow & Virr, P.C., Austin, TX, for appel-lees.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

Jeffrey S. Kelly, Pamela K. Kelly, and Jeff Kelly Construction (“the Kellys”) appeal the judgment granted after their answer was struck for their failure to timely and fully respond to discovery requests. Because the judgment does not dispose of all parties and all claims, it is not final. We dismiss this appeal for want of jurisdiction.

Stock Building Supply of Texas, L.P. d/b/a/ Stock Building Supply (“Stock”) filed a suit on sworn account to collect from the Kellys amounts due for building materials Stock alleges it sold to the Kel-lys. After the Kellys first largely failed to respond to discovery by deadlines, filed some responses after being sanctioned and ordered at least twice to file responses, and then filed responses deemed to be inadequate, the trial court struck the Kel-lys’ pleadings. The trial court signed a document entitled “Final Judgment” that named the parties and their roles in the case in the style, and that provided as follows:

On this day came to be heard, Plaintiffs Motion for Sanctions Against Jeffrey Kelly and Pamela Kelly. Having considered the Motion, pleadings and evidence on file, and argument of counsel, the Court finds that Jeffrey Kelly and Pamela Kelly have failed to respond to discovery seeking responses relevant to their defense against Plaintiffs claim despite the imposition of lesser sanctions, and that this failure justifies the presumption that the defense lacks merit, all as set forth in the Court’s prior order awarding sanctions.
IT IS, THEREFORE, ORDERED that Defendants’ answer to Plaintiffs petition is stricken;
IT IS FURTHER ORDERED that Plaintiff is awarded the following:
a) $24,442.22 in damages;
b) Interest on damages at the rate of 18 percent per annum from July 31, 2007, until entry of this Judgment;
c) $9,500.00 in attorneys’ fees as well as all taxable costs; and,
d) Interest on items “a)” through “c)” at the annual rate of 18 percent from entry of this Judgment until satisfied.
IT IS FURTHER ORDERED that Plaintiff is awarded the following contingent on the events indicated: [awards of attorneys’ fees for various appellate actions and results, plus interest],
IT IS FINALLY ORDERED that Plaintiff may proceed with foreclosure of its lien against Defendants’ real property recorded as document 2006219359 in the Travis County property records and attached as Exhibit D to Plaintiff’s live pleading.

The Kellys complain that this judgment is not final because it does not dispose of any claims and does not mention the defendant Jeff Kelly Construction in its text. It mentions the individual Kellys by name, strikes the “Defendants’ answer,” and then awards the plaintiff (Stock) damages and other money without adjudicating any claims or stating against whom judgment is rendered.

The Kellys’ assertion that the judgment is not final is a challenge to this Court’s jurisdiction. We must examine whether we have jurisdiction before considering other aspects of this appeal. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990). With few exceptions, this Court does not have jurisdiction over judgments that are not final. City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex.1993). The exceptions do not apply here. See id. We must determine whether this judgment is final.

A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). No presumption of finality follows a default judgment. See id. at 199-200. A default judgment is deemed final, however, if it expresses an unequivocal intent to finally dispose of the case. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex.2005). Absent a conventional trial on the merits, a judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann, 39 S.W.3d at 192-93. We also can look to the record beyond the judgment. Id. at 195.

The judgment in this case is not final. The judgment before us is the functional equivalent of a default judgment. See Tex.R. Civ. P. 215.2(5). The judgment is entitled “Final Judgment,” alludes to the standard for death penalty sanctions, strikes the Kellys’ answer, and awards damages. The title is an express indication that the court intended this to be a final judgment. The judgment does not realize that intent, however. The striking of the Defendants’ pleadings and the award of damages are indications that some claims have been resolved. However, this — by itself — does not indicate an adjudication or disposition of all claims against all parties. The judgment does not mention Stock’s causes of action or dispose of them, individually or collectively, expressly or otherwise unequivocally. The judgment does not mention Jeff Kelly Construction, much less unequivocally dispose of claims against Jeff Kelly Construction. Indeed, the judgment does not state against whom judgment is rendered or in what capacity. Thus, it is not possible to determine from whom the plaintiff is entitled to demand payment. Review of the remainder of the record does not persuade us that this judgment is final. While the trial court may have intended to enter a final judgment, the document before us does not accomplish that objective.

Because this judgment is not final and is not the basis of a permissible interlocutory appeal, we conclude that we lack jurisdiction over this appeal. Lacking jurisdiction, we do not consider the merits of the remainder of the Kellys’ appeal or the validity or correctness of any other action, inaction, finding, or conclusion, including the rest of the judgment. See Tex.R.App. P. 47.1. This appeal is dismissed for want of jurisdiction.

      . Appellee alleges that Jeff Kelly Construction is an unincorporated entity and is an assumed name for Jeffrey S. Kelly and Pamela K. Kelly.


author: Opinion By Justice MORRIS.

text:
    AUSTIN STATE HOSPITAL, Dr. Vikar Nuzhath, and Dr. Erik Lindfors, Appellants, v. Joel GRAHAM, Appellee.
    No. 05-09-01312-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 4, 2010.

      Bridget Lynn McKinley, Austin, TX, for Appellants.
    Marisa M. Schouten, Martin Walker, P.C., Tyler, TX, for Appellee.
    Before Justices MORRIS, BRIDGES, and FILLMORE.
   OPINION

Opinion By Justice MORRIS.

This is an interlocutory appeal from the trial court’s denial of a motion to dismiss. After reviewing the record, we conclude the order at issue is not appealable under section 51.014 of the Texas Civil Practice and Remedies Code. Accordingly, we dismiss this appeal for want of jurisdiction.

I.

On May 12, 2009, Joel Graham filed suit against appellants Austin State Hospital, Dr. Vikar Nuzhath, Dr. Erik Lindfors and others alleging claims under the Texas Medical Liability and Insurance Improvement Act. On June 2, Austin State Hospital filed a motion to dismiss its employees Dr. Nuzhath and Dr. Lindfors from the suit pursuant to section 101.106(e) of the Texas Civil Practice and Remedies Code. One week later, Graham filed a notice of non-suit as to the hospital only.

On June 11, the hospital, Dr. Nuzhath, and Dr. Lindfors filed an objection to the non-suit and requested a ruling on the hospital’s motion to dismiss. The doctors also filed their own motion to dismiss under section 101.106(e). In its October 8, 2009 order, the trial court specifically denied only the motion to dismiss filed by the doctors. It did not rule on the hospital’s previously filed motion. The hospital and the doctors then brought this appeal challenging the trial court’s interlocutory order.

II.

As a general rule, appeals may be taken only from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). Section 51.014 of the Texas Civil Practice and Remedies Code provides a narrow exception to this general rule by allowing appeals of certain interlocutory orders, See Tex. Civ. Prac. & RemCode Ann. § 51.014 (Vernon 2008); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001). Because section 51.014 is a nari’ow exception, we strictly construe our jurisdiction under it. See City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex.App.Dallas 2003, pet. denied).

Appellants contend we have jurisdiction over this appeal under two different subsections of section 51.014. They first assert that the trial court’s order “denies a plea to the jurisdiction by a governmental unit” and their appeal is, therefore, permitted by section 51.014(a)(8). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8); see also, Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.2007) (officers and employees of the state and its political subdivisions are “governmental units” for purposes of interlocutory appeal under section 51.014(a)(8)). Appellants’ motion to dismiss was not a plea to the jurisdiction, however, as required by section 51.014(a)(8). See Jones v. Tex. Dept. of Criminal Justice, 318 S.W.3d 398, 402 (Tex.App.-Waco 2010, no pet. h.).

Appellants’ motion to dismiss was made under section 101.106(e) of the Texas Civil Practice and Remedies Code. The Texas Supreme Court has held that section 101.106 is an immunity statute. See Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex.1997). The immunity granted by the statute is an immunity from liability, however, not an immunity from suit that goes to the trial court’s jurisdiction. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 640 (Tex.2004); Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex.1998). Immunity from liability is an affirmative defense that does not affect the court’s jurisdiction to hear the case and cannot be raised by a plea to the jurisdiction. See State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009); City of Dallas, 133 S.W.3d at 686. Accordingly, an order denying a motion to dismiss under 101.106(e) is not an order denying a plea to the jurisdiction and is not subject to appeal under section 51.014(a)(8). See Jones, 318 S.W.3d at 402.

Appellants next contend that this court has jurisdiction over this appeal under section 51.014(a)(5). Section 51.014(a)(5) allows a party to appeal from an interlocutory order that “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” See Tex. Crv. Prac. & Rem.Code Ann. § 51.014(a)(5). In Hudak v. Campbell, 232 S.W.3d 930 (Tex.App.-Dallas 2007, no pet.), this Court held that section 51.014(a)(5) does not grant the right of interlocutory appeal from an order denying a motion to dismiss under section 101.106 because a motion to dismiss under section 101.106 is not a motion for summary judgment as required by section 51.014(a)(5). See id. at 931.

Appellants attempt to distinguish Hu-dak by arguing that it addressed a motion to dismiss under section 101.106(f), whereas their motion to dismiss was made under section 101.106(e), which does not require the same evidentiary showing. Section 51.014(a)(5) makes no distinction, however, among the various burdens of proof required for assertions of different types of immunity. The section plainly states that any assertion of immunity must be made in a motion for summary judgment for the interlocutory order to be subject to appeal.

Appellants also attempt to distinguish Hudak on the ground that, in this case, the procedural safeguards of a summary judgment proceeding were present because ap-pellee had sufficient notice of the hearings. First, the procedural safeguards relating to motions for summary judgment encompass far more than notice provisions and include both burdens of proof and standards of review. See Tex.R. Civ. P. 166a. Second, our narrow jurisdiction under section 51.014(a)(5) cannot be based on the fortuitous presence of those safeguards because to do so would expand the scope of the statute far beyond its clear language.

Based on the foregoing, we conclude that neither section 51.014(a)(8) nor section 51.014(a)(5) grants us the authority to review the interlocutory order at issue in this appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

      . Section 101.106(e), which falls under the “Election of Remedies” portion of the Texas Tort Claims Act, states that if a plaintiff files suit under the Act against both a governmental unit and any of its employees, “the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem.Code Ann § 101.106(e) (Vernon 2008).

        . Appellants argue that the denial of the doctors’ motion to dismiss was also an "implicit denial” of the hospital's motion to dismiss, and they appear to be appealing this implicit denial along with the explicit denial of their motion. As stated above, however, Graham filed a notice of non-suit as to the hospital and, despite its appeal, it is no longer a party to this action. Furthermore, we disagree that there was an implicit denial of the hospital's motion to dismiss because the trial court’s order specifically states that it is denying only the motion to dismiss filed by the doctors. Moreover, the doctors’ motion could have been denied on grounds not applicable to the hospital. Finally, even if there was an implicit ruling on the hospital’s motion to dismiss, we have no jurisdiction over the denial of that motion for the same reasons we have no jurisdiction over the explicit denial of the doctors' motion to dismiss.


author: Opinion by Justice LANG-MIERS.

text:
    In re ISLAMORADA FISH CO. TEXAS, L.L.C., Relator.
    No. 05-10-00344-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 5, 2010.

      Jeffrey Cox, L. Abigail Foreman, Hartline, Dacus, Barger, Dreyer & Kern, LLP, Scott P. Stolley, Thompson & Knight, L.L.P., Dallas, TX, for Relator.
    Judge, 68th Judicial District Court, Dallas, TX, for Respondent.
    Jason C.N. Smith, Law Office of Art Brender, Fort Worth, TX, for Real Party in Interest.
    Before Justices O’NEILL, FITZGERALD, and LANG-MIERS.
   OPINION ON MOTION FOR REHEARING EN BANC

Opinion by Justice LANG-MIERS.

We deny the motion for rehearing en banc filed by real parties in interest. On our own motion, we withdraw our opinion of June 28, 2010 and vacate the order of that date. This is now the opinion of the Court.

Islamorada Fish Co. Texas, L.L.C. filed this mandamus proceeding seeking relief from the trial court’s order compelling it to produce information about its net worth. We conclude that the trial court abused its discretion and conditionally grant the writ of mandamus.

Candy Kovar Greenwood and C.S. sued Islamorada alleging that Islamorada served excessive amounts of alcohol to Kris Ayres, who became intoxicated and later drove her vehicle across a median and hit Greenwood’s vehicle. C.S. was a passenger in Greenwood’s vehicle. Greenwood and C.S. were injured and sued Isla-morada seeking compensatory and punitive damages under the common law and the Texas Dram Shop Act. See Tex. Alco. Bev.Code Ann. §§ 2.01-.03 (Vernon 2007). In requests for production, Greenwood and C.S. sought information about Islamora-da’s net worth. Islamorada objected to the requests arguing, among other things, that its net worth is not relevant because punitive damages are not recoverable. Is-lamorada also filed a motion for summary judgment arguing that punitive damages are not recoverable in claims filed under the Dram Shop Act.

Greenwood and C.S. moved to compel Islamorada to produce net worth information. The trial court deferred ruling on the motion until after it ruled on Islamora-da’s summary-judgment motion. After a hearing, the trial court concluded that punitive damages are recoverable under the Dram Shop Act and denied Islamorada’s motion for summary judgment. Having so concluded, the trial court granted the motion to compel and ordered Islamorada to produce evidence of its net worth because the information is “now relevant and discoverable.”

Islamorada seeks mandamus relief from the trial court’s order compelling it to produce net worth information. Greenwood and C.S. contend that this mandamus proceeding is a disguised interlocutory appeal from the denial of a summary-judgment motion and is not permitted. We disagree.

The trial court’s order denying Islamo-rada’s motion for summary judgment did not order Islamorada to produce any documents in discovery. Only the trial court’s February 2, 2010 order compelled Islamo-rada to produce information about its net worth:

ORDER REGARDING PLAINTIFFS’ FIRST AMENDED MOTION TO COMPEL
With regard to Plaintiffs’ First Request for Production of Documents to Defendant Islamorada Fish Company Texas, L.L.C., the Court makes the following rulings:
1. With regard to Request for Production Nos. 1, 2, 4 and 6 which requested financial information relating to the net worth of Defendant Islamorada Fish Company Texas, L.L.C. the Court initially deferred ruling on this matter until a hearing could be conducted with regard to Defendant Islamorada Fish Company, LLC’s [sic] Motion for Summary Judgment Regarding Plaintiffs’ Claim for Punitive Damages. The Court, having now denied the Motion for Summary Judgment, believes that punitive damages are recoverable under the Texas Dram Shop Act. As a result, the Court further finds that documents reflecting the net worth of Defendant Isla-morada Fish Company, [sic] Texas, L.L.C. are now relevant and discoverable. Therefore the Court now orders Defendant to produce financial statements or tax returns of Islamorada Fish Company Texas, L.L.C, for the years 2006, 2007, 2008 and 2009 so that Plaintiffs can try to determine the company’s net worth.

Islamorada seeks mandamus relief from the February 2, 2010 order, not the order denying summary judgment.

Mandamus “is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex.2004). Mandamus relief is appropriate when the trial court abuses its discretion and relator has no adequate appellate remedy. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). Whether a party has an “adequate” remedy by appeal “is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts.” In re Prudential, 148 S.W.3d at 135-36 (citing Walker, 827 S.W.2d at 840). “Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment of loss, ... and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Id. at 136.

Mandamus relief is not limited to cases in which there is “no other legal operative remedy.” In re McAllen Med. Ctn, Inc., 275 S.W.3d 458, 467 (Tex.2008) (quoting Bradley v. McCrabb, Dallam 504, 507 (Tex.1843)). It is also appropriate in cases where “ ‘other modes of redress are inadequate or tedious’ or when mandamus affords ‘a more complete and effectual remedy.’ ” Id. at 467-68. In the discovery context, for example, mandamus is appropriate “when disclosure of privileged information or trade secrets would ‘materially affect the rights of the aggrieved party1 or “when discovery ‘imposes a burden' on the producing party far out of proportion to any benefit that may obtain to the requesting party.’” Id. at 468 (quoting Walker, 827 S.W.2d at 846).

In this case, the trial court ordered Islamorada to produce net worth information because the court concluded that punitive damages were recoverable under the Dram Shop Act. Net worth is relevant and discoverable when punitive damages may be awarded. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988) (“In a suit in which exemplary damages may be recovered, we hold the defendant’s net worth is ‘relevant’ and therefore discoverable under [the rules of civil procedure].”), disapproved of on other grounds by Walker, 827 S.W.2d at 842. The corollary is that when punitive damages clearly are not recoverable, information about net worth is not relevant and, as a result, not discoverable. See Wilson v. K.W.G., Inc., No. 11-03-00084-CV, 2004 WL 1925599, at *1-2 (Tex.App.-Eastland Aug. 31, 2004, no pet.) (mem. op., not designated for publication); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129,130-31 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding). We do not consider whether punitive damages are recoverable generally under the Dram Shop Act, an issue of first impression in this Court, because we conclude that they are not recoverable under the facts of this case under section 41.005(a) of the Texas Civil Practice and Remedies Code.

Section 41.002(a) states that chapter 41 of the Texas Civil Practice and Remedies Code “applies to any action in which a claimant seeks damages relating to a cause of action.” Tex. Civ. Peac. & Rem.Code Ann. § 41.002(a) (Vernon 2008). Section 41.005(a) of chapter 41 states

In an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.

Id. § 41.005(a) (Vernon 2008).

In Greenwood and C.S.’s live pleading in this case, they judicially admit that Ayres was legally intoxicated at the time of the accident. In their response to Islamora-da’s motion for summary judgment, Greenwood and C.S. attached evidence showing that Ayres pleaded guilty to two charges of intoxication assault arising from the accident that caused their injuries. And in their response to the petition for writ of mandamus in this Court, they stated and attached evidence to show that Ayres was “convicted and placed on probation for five years for intoxication assault as a result of her conduct on November 7, 2007 driving while intoxicated and injuring [Greenwood and C.S.].”

Greenwood and C.S.’s allegations against Islamorada arise from the injuries they sustained when Ayres drove while intoxicated and hit Greenwood’s car. As a result, section 41.005(a) prohibits the trial court from assessing punitive damages against Islamorada because the harm alleged resulted from the criminal act of another. See id.; Wilson, 2004 WL 1925599, at *2. Consequently, Islamorada’s net worth is not relevant to the issues in this case. See Wilson, 2004 WL 1925599, at *1-2; Touchy, 788 S.W.2d at 130-31.

Greenwood and C.S. argue that we cannot decide the punitive damages issue by relying on section 41.005(a) because Islamorada did not plead it as an affirmative defense. An affirmative defense, when pleaded and proved, permits a party to avoid a valid claim. See Tex.R. Civ. P. 94. In contrast, section 41.005(a) provides that, in certain situations, there is no valid claim for punitive damages in the first instance. See Tex. Civ. Prac. & Rem.Code Ann. § 41.005(a). In addition, we note that Islamorada pleaded the limitations on damages provided by chapter 41. Although Islamorada did not raise section 41.005(a) specifically in its response to the motion to compel, it did assert the limitations on punitive damages provided by-chapter 41 in the trial court.

The issue before us is appropriately decided by mandamus because it is an issue of law and the benefits of deciding the issue by mandamus outweigh the detriments. By deciding the issue on mandamus, we “spare private parties and the public the time and money utterly wasted enduring eventual reversal” on appeal. See In re Prudential, 148 S.W.3d at 136.

A trial court has no discretion in determining what the law is or properly applying the law. Walker, 827 S.W.2d at 840 (clear failure by trial court to analyze or apply the law correctly constitutes abuse of discretion). Although the scope of discovery generally is within a trial court’s discretion, a trial court has no discretion to order discovery that exceeds the scope permitted by the rules of procedure. In re CSX, 124 S.W.3d at 152. And only matters that are relevant to the pending matter and not privileged are discoverable. Tex.R. Civ. P. 192.3.

On this record, we conclude that section 41.005(a) applies to bar recovery of punitive damages in this case as a matter of law. The trial court did not properly apply the law relating to punitive damages and ordered Islamorada to produce discovery that is not relevant. When a trial court orders discovery that is not relevant, it abuses its discretion and the resisting party has no adequate remedy by appeal. In re CSX, 124 S.W.3d at 153 (“where a discovery order compels production of ‘patently irrelevant ... documents,’ ... there is no adequate remedy by appeal”).

We conclude that Islamorada has shown it is entitled to mandamus relief. Consequently, we conditionally grant Islamora-da’s petition for writ of mandamus. A writ will issue only if the trial court fails to (1) vacate the portion of its February 2, 2010 “Order Regarding Plaintiffs’ First Amended Motion to Compel” that requires Isla-morada to produce documents in response to request for production nos. 1, 2, 4, and 6, and (2) render an order denying the motion to compel responses to request for production nos. 1, 2, 4, and 6.

      . The plaintiffs in the action below are Greenwood and Eddie Semchenko as next friend of C.S., a minor.

      . The order, signed January 15, 2010, stated in relevant part:
      IT IS ORDERED, ADJUDGED AND DECREED, that Defendant Islamorada Fish Company, [sic] Texas, L.L.C.'s Motion for Summary Judgment Regarding Plaintiffs’ Claim for Punitive Damages and Brief in Support Thereof is denied.

      . Section 41.005(b) contains exceptions from the exemption provided in subsection (a), but none of those exceptions applies here. See Tex Civ. Prac. & Rem.Code Ann. § 41.005(b).

      . Greenwood and C.S. contend that they have due process and other concerns with the application of section 41.005(a). Those concerns are outside the scope of this proceeding. However, this opinion should not be construed as foreclosing a challenge to the applicability of section 41.005(a) if the issue should arise again. Greenwood and C.S. also contend that Texas law prohibits challenging a discovery order by mandamus by challenging the underlying merits of the claim. They cite Humphreys v. Caldwell, 888 S.W.2d 469 (Tex.1994) to support their contention. In that case, State Farm contended that a discovery order was void because the claimant had no cause of action against it. See id. at 470. The supreme court declined to address the issue of whether the cause of action was valid, but it did address whether the trial court abused its discretion by ordering discovery. See id. at 470-71. Unlike State Farm in Humphreys, Islamorada does not contend in this Court that the claimant has no cause of action against it, but only that the cause of action will not support an award of punitive damages and, as a result, it should not be compelled to produce net worth information. Our opinion addresses only whether the trial court abused its discretion by ordering Isla-morada to produce documents showing its net worth.