author: Justice LANG-MIERS.

text:
    Robert H. STANLEY, Appellant, v. REEF SECURITIES, INC., Appellee.
    No. 05-08-01415-CV.
    Court of Appeals of Texas, Dallas.
    June 7, 2010.

      George S. Henry, The Law Offices of George S. Henry, Dallas, TX, for Appellant.
    J. Michael Weston, Bennett, Weston & LaJone, P.C., Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice LANG-MIERS.

Robert H. Stanley appeals the trial court’s postjudgment turnover order requiring him to turn over certain property to Reef Securities, Inc. Reef Securities cross-appeals. For the following reasons, we modify the trial court’s order and affirm as modified.

Background

Stanley is a securities broker who once worked for Reef Securities. After Stanley left Reef Securities’ employment, Reef Securities sued him for damages arising out of their employment agreement. The matter was arbitrated and Reef Securities obtained a judgment in the amount of $526,186 against Stanley in January 2008. Reef Securities had a writ of execution issued, but it was returned nulla bona. It then filed a postjudgment application for turnover relief and appointment of a receiver. The application alleged, among other things, that Stanley owns investment properties and receives nonexempt payments of $20,000 per month from one of Stanley’s companies. Stanley argued that Reef Securities sought the wrong relief— he alleged that turnover relief was not proper in this case and that Reef Securities’ remedy is limited to a charging order.

In the hearings on Reef Securities’ application for turnover relief, Stanley testified that he owns 90% of Stanley Interests, a limited liability company that accumulates oil assets, and his brother owns 10%; that Stanley Interests is the sole general and managing partner of R.H.S. 1996 Partners, Ltd.; and that he is R.H.S.’s sole limited partner. He also testified that he is the president and secretary of Stanley Interests and its sole employee. Stanley testified that, as Stanley Interests’ employee, he provides and performs all the “human work” necessary to run the business.

Stanley explained that, as president of Stanley Interests, he determines his own salary based on an evaluation of his own skills, talent, and experience. He then conveys that information to himself as the president of R.H.S. and R.H.S. pays him that amount. Stanley testified that even though R.H.S. pays him — and that Stanley Interests has never paid him — he is an employee of Stanley Interests, not R.H.S. He said that in 2008 he received on average about $20,000 per month and that “beginning next month” he would receive a $20,000 per month salary from R.H.S.

At the conclusion of the hearings, the trial court orally ruled that the $20,000 monthly payments that Stanley receives from R.H.S. are not current wages, but, instead, are distributions from the partnership. The court ordered Stanley to turn over “all moneys, distributions and other assets” he received in 2008 or will receive in the future from Stanley Interests and R.H.S., as well as certain other property, until the judgment is satisfied. The court denied Reef Securities’ other requests for relief.

On appeal, Stanley argues that the trial court abused its discretion by (1) granting turnover relief because Reef Securities did not prove it was entitled to that relief; (2) concluding that the $20,000 monthly payments from R.H.S. are distributions and not current wages; (3) not exempting his paychecks from the turnover order; (4) granting turnover relief when a charging order is the exclusive remedy available to Reef Securities; (5) ordering certain property turned over when there was no evidence that the property existed; and (6) awarding Reef Securities its attorney’s fees.

By cross-appeal, Reef Securities argues that the trial court abused its discretion by not appointing a receiver over Stanley’s interests in Stanley Interests and R.H.S. and by not ignoring Stanley’s transfer of 10% ownership interest in Stanley Interests to his brother.

Standard of Review

We review a trial court’s postjudgment turnover order and an order denying the appointment of a receiver under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991) (turnover order); Sheikh v. Sheikh, 248 S.W.3d 381, 386-87 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (appointment of receiver). We will reverse a trial court’s order only if we conclude that the court acted in an unreasonable or arbitrary manner, that is, without reference to any guiding rules and principles. Buller, 806 S.W.2d at 226; Sheikh, 248 S.W.3d at 387. We may not reverse merely because we disagree with the trial court’s decision, as long as that decision was within the court’s discretionary authority. Buller, 806 S.W.2d at 226. And a trial court’s issuance of a turnover order, even if predicated on an erroneous conclusion of law, will not be reversed for abuse of discretion if the judgment is sustainable for any reason. Id.; Sheikh, 248 S.W.3d at 387.

Discussion

Stanley raises six issues on appeal. Four of those issues relate to whether the trial court abused its discretion by granting Reef Securities’ application for turnover relief. One issue concerns attorney’s fees, and another concerns whether turnover relief is even appropriate under these circumstances. We address the latter issue first.

A. Does the turnover statute apply or is a charging order the exclusive remedy?

In his fourth issue, Stanley argues that a charging order is Reef Securities’ exclusive remedy for reaching distributions of the partnership and that the trial court erred by ordering him to turn over partnership distributions. He cites section 153.256 of the Texas Business Organizations Code to support his argument:

§ 153.256. Partner’s Partnership Interest Subject to Charging Order
(a) On application by a judgment creditor of a partner or of any other owner of a partnership interest, a court having jurisdiction may charge the partnership interest of the judgment debtor to satisfy the judgment.
(b) To the extent that the partnership interest is charged in the manner provided by Subsection (a), the judgment creditor has only the right to receive any distribution to which the judgment debtor would otherwise be entitled in respect of the partnership interest.
(c) A charging order constitutes a lien on the judgment debtor’s partnership interest. The charging order lien may not be foreclosed on under this code or any other law.
(d) The entry of a charging order is the exclusive remedy by which a judgment creditor of a partner or of any other owner of a partnership interest may satisfy a judgment out of the judgment debtor’s partnership interest.
(e) This section does not deprive a partner or other owner of a partnership interest of a right under exemption laws with respect to the judgment debtor’s partnership interest.
(f) A creditor of a partner or of any other owner of a partnership interest does not have the right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the limited partnership.

Tex. Bus. Orgs.Code Ann. § 153.256 (Vernon 2009).

Stanley contends that section 153.256 means that a judgment creditor cannot proceed against the judgment debtor directly to seek the debtor’s distribution from a partnership. Reef Securities responds that section 153.256 only limits its ability to proceed against a partner’s partnership interest, and does not limit its ability to apply for a turnover order against the judgment debtor’s nonexempt property. We agree with Reef Securities.

Section 153.256(d) states that a charging order is the exclusive remedy by which a judgment creditor of a partner may satisfy a judgment out of the judgment debtor’s partnership interest. Tex. Bus. Orgs.Code Ann. § 153.256(d). A “partnership interest” is not an interest in any specific partnership property. See id. § 152.101 (Vernon 2009). Instead, it is the partner’s right to receive his distributive share of the profits and surpluses of the partnership. See Marshall v. Marshall, 735 S.W.2d 587, 593-94 (Tex.App.-Dallas 1987, writ ref'd n.r.e.); Alan M. Weinberger, Making Partners Pay Child Support: The Charging Order at 100, 27 Hous. L.Rev. 297, 303 (1990). A charging order entitles the judgment creditor to receive a partner’s share of partnership profits directly from the partnership when and if those profits are distributed.

In the past, a judgment creditor could disrupt the business of an entire partnership by forcing an execution sale of the partner’s interest to satisfy a nonpart-nership debt. Weinberger, supra, at 301. The charging order developed as a way to prevent this type of interference with the business of the partnership. Michael C. Riddle, et al., Choice of Business Entity in Texas, 4 Hous. Bus. & Tax L.J. 292, 318-19 (2004); Weinberger, supra, at 302. Now, a creditor that obtains a charging order against a partner’s interest in a partnership may not compel a distribution of profits by the partnership and does not obtain a right to participate in the partnership. See Tex. Bus. Orgs.Code Ann. § 153.256. The charging order creates a lien on the debtor partner’s distributive share of partnership profits and does not give the creditor the rights of that partner. Id. § 153.256(c). And a judgment creditor is prohibited from foreclosing on the lien. Id. Because a debtor partner’s interest in the partnership remains intact, the debtor partner has the ability to control the timing and amount, if any, of distributions by the partnership. Weinberger, supra, at 313. But once a partnership distribution has been made to a partner, it ceases to be the partner’s “partnership interest” (Le. the partner’s right to receive his share of the profits) and becomes that partner’s personal property. See Marshall, 735 S.W.2d at 593-94.

Nothing in the plain language of section 153.256 precludes a judgment creditor from seeking the turnover of proceeds from a partnership distribution after that distribution has been made and is in the debtor partner’s possession. See Tex. Bus. Orgs.Code Ann. § 153.256. Stanley does not cite to authority, and we have found none, that precludes a judgment creditor from seeking a turnover order requiring a debtor partner to turn over the proceeds of a partnership distribution after the debtor has received those proceeds.

We conclude that a charging order against R.H.S. was not the exclusive remedy in this case. We resolve Stanley’s fourth issue against him.

B. Did Reef Securities prove it was entitled to turnover relief?

Stanley’s first, second, and third issues argue that Reef Securities did not prove that it was entitled to turnover relief, there is no evidence to support the trial court’s findings and conclusions that the payments Stanley receives from R.H.S. are not exempt current wages, and the turnover order should have exempted future wages. We discuss these issues together.

A judgment creditor may seek turnover relief against a judgment debtor if the judgment debtor owns property, including present or future rights to property, that:

(1) cannot readily be attached or levied on by ordinary legal process; and
(2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

Tex. Civ. Prao. & Rem.Code Ann. § 31.002(a) (Vernon 2008). A court may not order the turnover of exempt property or the proceeds of exempt property. Id. § 31.002(f). “Current wages” for personal services are exempt property. Tex. Prop.Code Ann. § 42.001(b)(1) (Vernon Supp. 2009).

Under an abuse of discretion standard of review, our task is to make an independent inquiry of the entire record to determine if the trial court abused its discretion. Doran v. ClubCorp USA, Inc., 174 S.W.3d 883, 887 (Tex.App.-Dallas 2005, no pet.). Our review is not limited to the sufficiency of the evidence to support the trial court’s findings of fact or the specific legal conclusions reached by the trial court. Id. As a result, we do not review the trial court’s findings of fact and conclusions of law separately from our analysis of whether the court abused its discretion, but will consider the sufficiency of the evidence as a factor in that determination. Id.

1. Evidence that Stanley owns property

Stanley first contends that Reef Securities did not prove he owns the property he was ordered to turn over:

(a) All moneys, distributions and other assets received by Robert Stanley from Stanley Interests, LLC and R.H.S. Partners 1996, Ltd (formerly known as R.H.S. Partners, Ltd.) ... in the year 2008. Such obligation shall continue until the judgment is paid in full....
(b) all financial accounts (bank account), certificates of deposit, money-market accounts, accounts held by Robert Stanley.
(c) all financial accounts (bank account), certificates of deposit, money-market accounts, accounts held by or in the name of any third party for Robert Stanley.
(d) all cash held by Robert Stanley.

He also challenges the sufficiency of the evidence to support the trial court’s findings of fact with regard to that property.

a. Present or future right to $20,000 monthly payments

Stanley testified that he is a 90% owner of Stanley Interests, that Stanley Interests is the general partner of R.H.S., and that he is the sole limited partner of R.H.S. This testimony is sufficient to prove that Stanley owns interests in Stanley Interests and R.H.S. and present and future rights to share in the profits of those entities. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 324 (Tex.App.-Dallas 1997, writ denied) (discussing existing property and present or future rights to property); see also Marshall, 735 S.W.2d at 594 (“A partner’s partnership interest [is] the right to receive his share of the profits and surpluses from the business.... ”).

Stanley also testified that in 2008 he received on average about $20,000 per month from R.H.S. and that “beginning next month” he will receive $20,000 per month. Based on Stanley’s own testimony, we conclude that Reef Securities proved that Stanley has a present and future right to receive payments from R.H.S. in the amount of $20,000 per month.

b. Present or future rights to other property

We reach a different conclusion with regard to the remaining property Stanley was ordered to turn over. We have not found evidence in the record, and appellee does not cite to any, to support the trial court’s order that Stanley turn over any other “moneys” or “other assets” he received from Stanley Interests or R.H.S.; “all financial accounts (bank accounts), certificates of deposit, money-market accounts, accounts held by Robert Stanley”; or “all financial accounts (bank accounts), certificates of deposit, money-market accounts, accounts held by or in the name of any third party for Robert Stanley.” Reef Securities did not solicit testimony or offer evidence that Stanley owns any of the generally described property other than the $20,000 monthly payments he receives from R.H.S. As a result, we conclude that the trial court abused its discretion by ordering Stanley to turn over property other than the $20,000 monthly payments from R.H.S. Because of our resolution of this issue, we do not need to discuss Stanley’s contention that Reef Securities’ pleadings and the trial court’s order lack the specificity required to support turnover relief.

2. Are the $20,000 monthly payments nonexempt property?

Stanley next argues that Reef Securities did not prove that the $20,000 monthly payments are not exempt from turnover. In a related argument, he argues that the evidence is insufficient to support the trial court’s finding that those payments are not exempt current wages.

We disagree. Once a judgment creditor proves that a judgment debtor owns property, it is the judgment debtor’s burden to prove that the property is exempt from attachment. Pillitteri v. Brown, 165 S.W.3d 715, 722-28 (Tex.App.-Dallas 2004, no pet.). Therefore, after Reef Securities proved that Stanley has present or future rights to payments from R.H.S., it became Stanley’s burden to prove that those payments are exempt from turnover.

Whether the payments from R.H.S. should be characterized as wages or distributions was a major disagreement below because the former are exempt from turnover, but the latter are not. Stanley contends that the only evidence in the record is his testimony that the payments are wages. Both parties, and the trial court, questioned Stanley extensively concerning this matter. Stanley testified that he is an employee of Stanley Interests, not R.H.S., and that he is paid a “salary.” But he also testified that R.H.S. pays that “salary,” not Stanley Interests, and, in fact, that Stanley Interests has never paid him. He explained that he, as president of Stanley Interests, decides what his services to Stanley Interests are worth, and that R.H.S. pays him directly for the services rendered to Stanley Interests. At one point, Stanley testified that the pay stub from one such payment showed that social security taxes were withheld and supports his testimony that the payments are wages. But Stanley did not produce the pay stub when the trial court asked about it.

The evidence does not show that R.H.S. pays its general partner, Stanley Interests, which in turn pays Stanley. Instead, the undisputed evidence is that R.H.S., the partnership, makes the $20,000 monthly payments directly to Stanley, its sole limited partner. The general rule is that, absent an agreement, a partner is not entitled to compensation for services rendered to the partnership no matter how valuable the services may be. Tex. Bus. ORGS-Code Ann. § 152.203(c) (Vernon 2009) (“A partner is not entitled to receive compensation for services performed for a partnership other than reasonable compensation for services rendered in winding up the business of the partnership.”); Conrad v. Judson, 465 S.W.2d 819, 824 (Tex.Civ.App.-Dallas 1971, writ ref'd n.r.e.); Lewis v. Hill, 409 S.W.2d 946, 948 (Tex.Civ.App.-Amarillo 1966, no writ). Under appropriate circumstances, however, an agreement for compensation, express or implied, will be enforced. Hill, 409 S.W.2d at 948 (citing Meier v. Murphy, 207 S.W.2d 947, 949-50 (Tex.Civ.App.-Galveston 1948, writ ref'd n.r.e.)). But the appropriate circumstances generally require a showing that the partner seeking compensation devoted time and attention to the partnership that was not anticipated at the time the partnership was formed. See Montgomery v. Burch, 11 S.W.2d 545, 546-47 (Tex.Civ.App.-Amarillo 1928, writ dism’d w.o.j.) (op. on reh’g).

We do not have those circumstances here. R.H.S.’s restated and amended partnership agreement does not contain any provision for compensating Stanley, previous years’ tax returns indicate that Stanley was never treated as an employee before or paid compensation, and there is no evidence that Stanley has devoted any more time or attention to the business than was anticipated at its formation. Because the undisputed evidence shows that Stanley is not R.H.S.’s employee, we conclude that the trial court did not abuse its discretion by concluding that the payments Stanley receives and will receive from R.H.S. are distributions of the partnership and not exempt wages.

In a related argument, Stanley contends that a turnover order cannot require a judgment debtor to turn over wages that were received before the order was signed. As we have previously determined, however, the order does not require Stanley to turn over exempt wages. Stanley also argues that the trial court abused its discretion by not exempting future current wages from the turnover order. But there is no evidence that Stanley receives wages from any source. As a result, we conclude that the trial court did not abuse its discretion by not exempting future current wages from the turnover order.

3. Are the $20,000 monthly payments not readily attached or levied on by ordinary legal process?

Stanley next contends that Reef Securities did not prove that the $20,000 monthly payments cannot be readily attached or levied on by ordinary legal process. We disagree.

In the hearing on Reef Securities’ application for turnover relief, Stanley testified that Reef Securities’ judgment is the only debt he is not paying. He testified that he has the resources to pay the judgment, but that he has chosen not to pay it. We glean from the totality of his testimony that he has refused to pay the judgment because he construes the payments as exempt wages. In addition to Stanley’s testimony, the record shows that Reef Securities caused a writ of execution to be issued, and Reef Securities alleged that the writ was returned nulla bona. Stanley does not dispute that allegation.

Based on this record, we conclude that the trial court did not abuse its discretion by concluding that the payments from R.H.S. to Stanley cannot be readily attached or levied on by ordinary legal process. See Childre v. Great Sw. Life Ins. Co., 700 S.W.2d 284, 288 (Tex.App.-Dallas 1985, no writ); Universe Life Ins. Co. v. Giles, 982 S.W.2d 488, 492-93 (Tex.App.-Texarkana 1998, pet. denied).

4. Summary

Having concluded that Reef Securities proved that Stanley owns present and future rights to monthly payments of $20,000 from R.H.S., that those payments are not exempt current wages, and that those payments are not readily attached or levied on by ordinary legal means, we further conclude that the trial court did not abuse its discretion by ordering Stanley to turn over those payments to Reef Securities. With regard to the remaining property specified in the turnover order, we conclude that the trial court abused its discretion when it ordered Stanley to turn over all items of property except the $20,000 monthly payments because there is no evidence showing that Stanley owned the property described.

We resolve issues one, two, and three against Stanley. We resolve issue five in Stanley’s favor and modify the order by deleting references to all property except the $20,000 monthly payments from R.H.S.

C. Attorney’s Fees

In his sixth issue, Stanley argues that the trial court abused its discretion by awarding attorney’s fees to Reef Securities. Stanley contends that because turnover relief should not have been granted, an award of attorney’s fees was not proper. Again, we disagree.

A judgment creditor that is successful in obtaining turnover relief through a court proceeding is entitled to recover reasonable costs, including attorney’s fees. Tex. Civ. Prac. & Rem.Code Ann. § 31.002(e); Great Global Assur. Co. v. Keltex Props., Inc., 904 S.W.2d 771, 775-76 (Tex.App.-Corpus Christi 1995, no writ). Reef Securities was successful in obtaining turnover relief against Stanley. The trial court heard evidence of the attorney’s fees incurred by Reef Securities and specifically found that “$6,250 incurred by Reef herein was reasonable in light of the relevant considerations and appropriate to award to the judgment creditor in this matter.” We conclude that Reef Securities was entitled to recover its attorney’s fees, and Stanley does not challenge the trial court’s findings and conclusions regarding the reasonableness of the award.

We resolve issue six against Stanley.

Reef SecuRities’ CROSS-Appeal

Reef Securities argues by way of cross-appeal that the trial court abused its discretion by refusing to appoint a receiver over Stanley’s interests in the limited liability company and the partnership and by not ignoring Stanley’s transfer of 10% ownership in Stanley Interests to his brother.

Section 31.002 of the civil practice and remedies code gives a trial court discretion to appoint a receiver over a judgment debtor’s nonexempt property with the authority to take possession of the property, sell it, and pay the proceeds to the judgment creditor. Tex. Civ. Prac. & Rem.Code Ann. § 81.002(b)(3); Childre, 700 S.W.2d at 288 (traditional requirements for appointment of receiver not applicable in postjudgment turnover proceeding). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner. Buller, 806 S.W.2d at 226.

Reef Securities obtained the judgment against Stanley in January 2008. The record reflects that a writ of execution was issued April 21, 2008, and Reef Securities alleged that the writ was returned nulla bona. Stanley does not dispute that allegation. Reef Securities filed this post-judgment application for turnover relief in June 2008.

As we noted earlier, we glean from Stanley’s testimony that he has not paid the judgment because he construed his monthly payments from R.H.S. as exempt wages:

Q. Now, Mr. Stanley, you haven’t paid the judgment in this case, have you?
A. No.
Q. You don’t intend to pay the judgment in this case if you don’t have to; is that correct?
A. Only on advice of counsel. We would discuss it.
Q. Will you restate your answer? I’m not sure I understand what you said.
A. You said I don’t intend on paying it. I talked to my counselor, and it will be what he advises.
Q. Okay. You have no present intention to write a check and pay off the judgment?
A. Right this second, no.
Q. So it’s fairly safe to say that the largest unpaid debt that you have is the judgment in this case?
A. Yes.
Q. In fact, probably the only unpaid debt you have is the judgment in this case?
A. Other than, you know, just bills coming every month, yeah. Well, let me take that back. Uh, I don’t want to be long and drawn out, but my appendix ruptured in December .... So there’s still some issues of paying what the insurance didn’t pay, and I pay. Other than that, no.

Based on this testimony and other testimony in the record, the trial court could have reasonably concluded that the appointment of a receiver was not necessary to enforce the judgment because Stanley has the means by which to pay the judgment, but has not paid it because of the dispute over whether the $20,000 monthly payments from R.H.S. are exempt wages or nonexempt distributions.

The statute does not mandate that a court appoint a receiver. Instead, it gives the trial court discretion to appoint a receiver when it deems it is appropriate and to not appoint a receiver when it deems it is not appropriate. On this record, we cannot conclude that the trial court abused its discretion by not appointing a receiver.

We resolve Reef Securities’ first cross-appeal issue against it.

Reef Securities’ second cross-appeal issue assumes that the trial court abused its discretion by not appointing a receiver. Because we conclude otherwise, we do not reach the merits of the second cross-appeal issue.

Conclusion

We modify the trial court’s turnover order to delete references to all property except the $20,000 monthly payments from R.H.S. As modified, we affirm the trial court’s order.

      . As existing entities, Stanley Interests and R.H.S. voluntarily elected to adopt and become subject to the Texas Business Organizations Code. Accordingly, we cite to the provisions of that code. See Tex. Bus Orgs.Code Ann. § 402.003 (Vernon 2009).

      . An exception to this exemption exists for court-ordered child support payments, but that exception does not apply here. See Tex. Civ Prac. & Rem.Code Ann. § 31.002(f); Tex. Prop.Code Ann. § 42.001(b)(1).

      .The trial court made the following findings of fact concerning the property:
      4. Stanley owns a partial interest in certain entities; namely, Stanley Interests, LLC and R.H.S. Partners 1996, Ltd, formerly known as R.H.S. Partners, Ltd (hereinafter "Related Entities”).
      5. Stanley has in the past received payment from the Related Entities and may in the future receive similar payments from the Related Entities (or similar entities). After an evidentiary inquity, the Court determined that these payments (whether in the form of cash, drafts, property or other means) are distributions from the entities to Stanley and do not constitute "current wages" as that term is defined by Section 42.002(b)(1) of the Texas Property Code.
      6. The Court determined that any distributions from the Related Entities as well as all cash, certificates of deposits, bank (or similar financial accounts) held by Stanley or held in the name of Stanley by a third party constitute Turnover Property.
      7. The Court also determined that Turnover Property does not include Stanley’s interests in the Related Entities....

      . Stanley contends that this issue should not be decided in a turnover proceeding because the substantive rights of the parties are not to be determined in a turnover proceeding. The only case he cites to support his argument is a Fifth Circuit Court of Appeals case. Although federal case law may be persuasive, it is not binding on us when interpreting a state statute. See Sutphin v. Tom Arnold Drilling Contractor, Inc., 17 S.W.3d 765, 771 (Tex.App.Austin 2000, no pet.). Texas intermediate appellate courts have concluded that whether property is exempt from execution is properly decided in a turnover proceeding. See Moyer v. Moyer, 183 S.W.3d 48, 54 (Tex.App.-Austin 2005, no pet.); Pace v. McEwen, 617 S.W.2d 816, 819 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ).

      . The proceedings went as follows:
      THE COURT: I’m going to go back. I pulled up the IRS web site. It talks about the idea of independent contractor versus employee.

      And again, I'm not sure if this is the — it seems to me to be a—

        A good guide, not determinative but something that the Court should look at. Is there any way we can get that paycheck stub because I’d like to know whether income taxes were withheld or whether Social Security Medicare taxes were withheld, were they paid [sic] unemployment tax on the wages, and that's — that to me would be important in determining whether he’s actually—

      [ATTORNEY]: Let me just ask him again real specifically. You got a paycheck?
      [STANLEY]: Yes.
      [ATTORNEY]: The gross amount is $20,000?
      [STANLEY]: Correct.
      [ATTORNEY]: Was there FICA withheld?
      [STANLEY]: Yes.
      THE COURT: What was the net amount?
      [ATTORNEY]; Do you remember anything about what the FICA amount was?
      [STANLEY]: The net amount was about $15,000.
      [ATTORNEY]: Social Security taxes withheld?
      [STANLEY]: Yes.
      [ATTORNEY]: And you cashed the check, you signed it and—
      [STANLEY]: Yes.
      [ATTORNEY]: —and it goes away. And you didn't have it at the time the deposition was taken, right?
      [STANLEY]: I don't believe so.

      [ATTORNEY]: We can get — we can track down a copy of it when it comes back in the — when could you get it through the banking cycle?
      [STANLEY]: Oh, I don't know how my bank actually would work, but—

      THE COURT: —looking at the stub, is there something that indicates like the withholding or anything like that?
      [STANLEY]: Yes.


source: Caselaw Access Project

author: Justice RICHTER.

license: Public Domain

text:
    Nicole ALLMAN, Appellant, v. Kimberly Jewel BUTCHER, Appellee.
    No. 05-09-00191-CV.
    Court of Appeals of Texas, Dallas.
    June 9, 2010.

      Sidney Palmer Childress, Albuquerque, NM, for Appellant.
    Kimberly Bishop, Garland, TX, for Ap-pellee.
    Before Justices RICHTER, LANG and MURPHY.
   OPINION

Opinion By

Justice RICHTER.

Appellant Nicole Allman appeals the trial court’s judgment that she take nothing in her suit against Kimberly Jewel Butcher for breach of contract and violation of the Texas Deceptive Trade Practices Consumer Protection Act (DTPA). In two issues, Allman contends the evidence is not legally or factually sufficient to support the trial court’s findings of fact and conclusions of law. We affirm.

Factual and Procedural Background

Allman owned a house in Rockwall, Texas. In 2004, she obtained employment in Albuquerque, New Mexico and needed to quickly sell her house so she could relocate. She contacted Jennifer Jones, the real estate agent who sold her the Rock-wall house, who suggested she consider some of the creative options offered by Texas Home Options, LLC. Allman contacted Texas Home Options, spoke to Butcher, and on February 24, 2004, entered into an agreement with Texas Home Options, LLC. Allman believed that Texas Home Options would manage her Rockwall house, make the mortgage payments to her mortgagor, Wilshire Credit, and eventually sell the house for her. According to the contract, the purchase price for the house was the balance of the existing mortgages on the house.

As part of the transaction, Allman signed a One to Four Family Residential Contract (Resale) conveying her property to Texas Home Options, LLC and/or assigns (the contract); a Warranty Deed to Trustee in which Allman, as Grantor, conveyed the deed of her property to Capman, Inc., as Trustee of the Tangleglen Drive 2940 Trust; an Assignment of Beneficial Interest in Trust, in which Allman was Assignor and Chris Butcher was Assignee; Seller’s Settlement Statement reflecting Allman as Seller and The Tangleglen Drive 2940 Trust by Capman, Inc., Trustee as Buyer; a Notice to Insurance Company signed by Allman; and a Letter of Agreement and Addendum between Capman, Inc. and Allman, acknowledging Allman was made aware that buyer was not assuming her mortgage and no promises had been made to her that the loan would be assumed or paid off. On the same day, Texas Home Options, LLC assigned the contract to Tangleglen Drive 2940 Trust. Allman paid $2,991.62 in closing costs.

For over two years, the arrangement worked well. Capman, Inc. leased the property and paid Allman’s monthly mortgage payments until some time in 2006. In 2007, Allman received telephone calls and statements from Wilshire Credit regarding the unpaid balance of $27,126.59. Upon checking her credit report, Allman learned that Wilshire Credit had foreclosed on her property and a deficiency balance was reflected on her credit report. Allman sued Butcher individually for breach of contract and DTPA violations.

After a bench trial, the trial court entered a take nothing judgment in favor of Butcher, stating in findings of fact and conclusions of law that Allman failed to prove by a preponderance of the evidence each element of any cause of action pled, failed to prove she suffered damages as alleged in the petition, and failed to prove she suffered damages as argued during the course of the trial. This appeal followed.

Legal and Factual Sufficiency

In her first issue, Allman makes a matter of law challenge to the trial court’s factual findings. In her second issue, All-man makes a factual sufficiency challenge to the trial court’s factual findings. All-man contends the trial court erred in finding she failed to meet her burden of proof because “the facts in the record conclusively establish all material facts necessary to prove Appellant’s allegations set forth in her Original Petition, for breach of contract and a deceptive or unconscionable trade practice causing economic damages.”

Allman’s briefs discuss both her breach of contract claim and the DTPA claim. However, during oral argument to this Court, Allman’s counsel informed the Court that Allman was not appealing the trial court’s findings with respect to her DTPA claims. Accordingly, we limit our review to the trial court’s findings as to Allman’s breach of contract claim.

STANDARD OF REVIEW

When a party challenges the legal sufficiency of an adverse ruling on an issue on which that party had the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Phan v. Addison Spectrum, L.P., 244 S.W.3d 892, 897 (Tex.App.-Dallas 2008, no pet.); Rowlett/2000, Ltd. v. City of Rowlett, 231 S.W.3d 587, 590 (Tex.App.-Dallas 2007, no pet.). In reviewing a “matter of law” challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem., 46 S.W.3d at 241; Phan, 244 S.W.3d at 898. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241. We find error only if the contrary proposition is conclusively established. Id.; Phan, 244 S.W.3d at 898. Here, All-man had the burden of proof on her breach of contract claim. Therefore, we consider and weigh all the evidence and set aside the trial court’s findings only if the evidence supporting such findings is so weak or so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Phan, 244 S.W.3d at 898.

Allman also attacks the factual sufficiency of the trial court’s findings. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 242; Rowlett/2000, 231 S.W.3d at 590. The reviewing court must consider and weigh all the evidence and may set aside a finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

In a bench trial, the trial court judges the credibility of the witnesses, determines the weight to be given their testimony, and resolves conflicts and inconsistencies in the testimony. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e). An appellate court may not substitute its judgment for that of the trier of fact, even though, after reviewing the evidence, it may have reached a different conclusion. Essex Crane Rental Corp. v. Striland Constr. Co., Inc., 753 S.W.2d 751, 755 (Tex.App.-Dallas 1988, writ denied). The amount of evidence necessary to affirm a judgment is far less than necessary to reverse a judgment. Rowlett/2000, 231 S.W.3d at 590; Hakemy Bros., Ltd., v. State Bank and Trust Co., 189 S.W.3d 920, 926 (Tex.App.-Dallas 2006, pet. denied).

Applicable Law

Allman sued Butcher for breach of contract. To prove a claim for breach of contract, Allman must establish: (1) a valid contract, (2) Allman performed or tendered performance, (3) Butcher breached the contract, and (4) Allman was damaged as a result of Butcher’s breach. See Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 55 (Tex.App.-Dallas 2006, pet. denied). A breach of contract occurred if Butcher failed to perform an act she expressly or impliedly promised to perform. Id.

Discussion

In her first issue, Allman argues there is no evidence to support the trial court’s findings that Allman failed to establish each element of her breach of contract claim. Allman claims that according to her interpretation of the contract, Butcher promised that her mortgages would be paid off. Allman asserts that consideration for Butcher’s alleged promise was the $2,991.62 payment Allman made at closing. Allman argues Butcher breached the contract by allowing the property to go into foreclosure, causing Allman to suffer damages (the unpaid mortgage balance reflected on her credit report).

The trial court heard testimony by All-man, Allman’s counsel, and Butcher. Butcher testified that when Allman contacted Texas Home Options, Butcher explained to Allman that although she was a licensed real estate agent, she was not Allman’s real estate agent and did not represent her. Butcher also advised All-man to seek legal counsel if she had questions or did not understand the proposed transaction. Allman did not seek legal advice and testified at trial that she relied on the expertise of her real estate agent, Jennifer Jones, as well as the company to which Butcher referred her.

At trial, Butcher explained that her company, Texas Home Options, LLC, looked for suitable properties to be introduced (and ultimately assigned) to a property management company, Capman, Inc., owned by her sister, Chris Butcher. Texas Home Options, LLC would buy a property and assign it to a trust. The trust would then be managed by Capman, Inc., as trustee. Capman, Inc. managed the properties, made the mortgage payments, and eventually sold the houses.

The parties agree that Allman and Texas Home Options, LLC entered into a One to Four Family Residential Contract (Resale). It is undisputed Butcher signed the contract “Texas Home Options, LLC, Kim Butcher, Member.” Butcher testified that she signed the contract as an authorized representative of Texas Home Options, LLC, and not in her individual capacity. Nevertheless, Allman argues that Butcher individually, and not Texas Home Options, LLC, is liable for allegedly breaching the contract. Allman contends Butcher waived her right to assert she was not liable in the capacity in which she was sued, or that there was a defect of parties, because Butcher failed to file a verified pleading so stating. See Tex.R. Civ. P. 93 (Vernon Supp. 2010).

Allman also argues that Butcher is personally liable as a matter of law because she had an ethical obligation as a licensed real estate license broker or salesperson to refrain from making false promises. See 22 Tex. Admin. Code § 535.145 (2000) (“The fact that a written contract between the parties to a real estate transaction does not recite a promise made by a real estate licensee to one of the parties ... will not prevent the commission from determining that a false promise was made.”). According to Allman, even if Butcher was not a party to the contract in her individual capacity, she is individually liable because she was a real estate licensee who made a false promise that Allman’s mortgages would be paid off. Butcher admits that at the time the contract was signed, she had a real estate license. However, the record reflects that in her pleadings and at trial, Butcher consistently denied ever promising Allman that her mortgages would be paid off.

According to the terms of the contract, the purchase price for the house is the “existing mortgage balance.” The contract also states: “[t]his offer is subject to existing mortgage staying in place.” The contract does not expressly state that All-man’s Mortgages will be paid in full. As part of the transaction, Allman also signed a Letter of Agreement and Addendum between Capman, Inc. and Allman, acknowledging she was made aware that buyer was not assuming her mortgage and no promises had been made to her that the loan would be assumed or paid off. All-man testified that she understood the mortgages would still be in her name.

Allman asserts that consideration for Butcher’s promise to pay off her mortgages was Allman’s payment of $2,991.62 in closing costs. The parties agree Allman paid $2,991.62 in closing costs in accordance with the Seller’s Settlement Statement. The parties dispute who received the payment. Allman made the payment by check; however, Allman did not produce a copy of her check at trial and could not remember to whom she had made her check payable. Butcher testified the payment was made to Capman, Inc., for disbursement in accordance with the Seller’s Settlement Statement, and was not paid to Butcher or her company, Texas Home Options, LLC.

Allman testified that she received telephone calls from Wilshire Credit in 2007, asking about the unpaid balance due on the mortgage. Allman then began receiving statements from Wilshire Credit, reflecting an unpaid balance of $27,126.59, and showing no mortgage payments had been made that year. Allman testified that she did not take any action because she thought Texas Home Options was taking care of it. A short time later, Allman checked her credit report and discovered that Wilshire Credit had foreclosed on her property and a deficiency balance was reflected on her credit report.

At trial, Allman argued that the measure of her damages was based on the rule of foreseeability. She explained that although no deficiency judgment had been taken against her to date, the unpaid balance on her credit report was a debt owed, and was subject to being reduced to judgment. See Mead v. Johnson Group, Inc., 615 S.W.2d 685, 688 (Tex.1981). Allman also argued she was entitled to recover damages for loss of credit or injury to credit reputation because the evidence sufficiently showed the loss was the natural, probable, and foreseeable result of Butcher’s breach. Id. Butcher disputed All-man’s damages because Allman did not introduce evidence that a deficiency judgment had been taken against her. Allman concedes no deficiency judgment has been taken, but asserts she provided sufficient evidence of her damages at trial by introducing into evidence an account statement showing the unpaid balance on her mortgage. At trial, Allman testified the unpaid balance was reflected on her credit report; however, Allman’s credit report was not introduced as evidence. Allman and her counsel testified the house was sold after foreclosure; however, when questioned by the trial court, they did not know when the foreclosure or the foreclosure sale took place. Allman did not introduce any evidence with respect to the foreclosure, the subsequent sale of the house, the purchase price of the house, or whether there was a deficiency.

To the extent there were conflicts between the testimony given by All-man and Butcher, it was the sole province of the trial judge as fact-finder to determine the credibility of each witness. Hinkle v. Hinkle, 223 S.W.3d 773, 778 (Tex.App.-Dallas 2007, no pet.). When presented with conflicting evidence, the trier of fact may believe one witness and disbelieve others. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). Simply put, the trial court believed Butcher and found that Allman failed to prove each element of her breach of contract claim. The trial court also found that Allman failed to prove by a preponderance of the evidence that she suffered damages as alleged in her petition or as argued during the course of the trial. After examining the record for evidence supporting the trial court’s findings, we conclude there was sufficient evidence to support the trial court’s findings on the elements of Allman’s breach of contract claim. We also conclude there was sufficient evidence to support the trial court’s findings that Allman failed to prove she suffered damages as alleged in the petition and argued during the trial. Dow Chem., 46 S.W.3d at 241. We overrule Allman’s first issue.

Allman’s second issue attacks the factual sufficiency of the trial court’s findings. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242; Rowlett/2000, 231 S.W.3d at 590. Because we conclude there was sufficient evidence to support the trial court’s findings on the elements of All-man’s breach of contract claim, we also conclude the findings are not so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. Id. Thus, we overrule Allman’s second issue.

Conclusion

Having overruled Allman’s first and second issues, we affirm the trial court’s judgment.


text:
    CENTEX/VESTAL, a Joint Venture, Appellant, v. FRIENDSHIP WEST BAPTIST CHURCH, Appellee.
    No. 05-09-00053-CV.
    Court of Appeals of Texas, Dallas.
    June 10, 2010.

      Timothy Dwayne Matheny, Ford White & Nassen, P.C., Dallas, TX, for Appellant.
    H. Ron White, Carlos Morales, Eric D. Walker, Kevin B. Wiggins, Adorno Yoss White & Wiggins, LLP, Dallas, TX, for Appellee.
    Before Justices RICHTER, MURPHY, and MYERS.
   OPINION

Opinion By

Justice RICHTER.

This is an appeal from an order vacating an arbitration award in favor of Cen-tex/Vestal (“Centex”) on behalf of its subcontractors under the Texas General Arbitration Act (“TAA”). In two issues, Centex argues the trial court (1) erred in granting Friendship West Baptist Church’s (the “Church”) motion to vacate because the Church did not meet its burden to show the arbitrator exceeded his authority, and (2) erred in denying the motion to confirm. Because the record does not establish that the arbitrator exceeded his authority under the TAA, we reverse the trial court’s order and render judgment confirming the arbitrator’s award.

I. FACTS

A. The Contract for the Project.

In June 2004, Centex and the Church agreed that Centex would provide labor, equipment, materials, and supervision for the construction of a sanctuary, classroom, and administration building (the “Project”). The agreement was memorialized in a contract (the “Contract”) that provides for the resolution of disputes through arbitration administered by the American Arbitration Association. (“AAA”). The basis for payment under the Contract is the cost of the work plus a fee, with a negotiated guaranteed maximum price not to exceed $22,599,110 subject to written and approved change orders. Specifically, the Contract provides that if additional time or cost is involved because of clarifications or instructions issued by the architect for the Project, Centex is entitled to make a claim. The claim is subject to review by the architect, who in turn makes a recommendation to the Church concerning its approval.

B. The Subcontracts.

On June 24, 2004, Centex entered into a subcontract with Ennis Steel Industries, Inc. (“Ennis”) (the “Ennis Subcontract”) pursuant to which Ennis was to perform the fabrication and erection of the structural and miscellaneous steel on the Project, including catwalks. The Ennis Subcontract provides that Ennis is not entitled to receive payment until Centex receives payment from the Church, and this includes payments for changes or additional work. Once Ennis receives payment, it is obligated to pay its subcontractors and suppliers who perform extra work or provide materials that are integrated into the change or extra work. The Ennis Subcontract further provides that Centex may allow Ennis to pursue a pass-through claim against the Church.

Ennis subsequently entered into a subcontract with Choctow Erectors, Inc. (“Choctow”) (the “Choctow Subcontract”). The Choctow Subcontract provides that Choctow will perform the erection portion of the steel work on the Project. The Choctow Subcontract also provides that Choctow is bound to Ennis by the same terms Ennis is bound to Centex, and allows Choctow to make a claim for changes. Payment is to be made when the claim for changes is accompanied by a signed work order or “unless otherwise directed by” Ennis.

C.Claims for Changes.

Several engineering changes were made during the course of the Project, including the elimination of some catwalks, the scaling back of catwalks, the elimination of hangers on the catwalks, and ducting changes to the HVAC system. These changes impacted the scope of Ennis’s work as well as the construction schedule. Consequently, on April 22, 2005, Centex provided the Church’s representative with formal notice of a request for equitable adjustment under the Contract, and advised that Ennis would be submitting a claim for payment relating to the catwalk portion of the work. On April 22, 2005, Choctow forwarded to Ennis a claim for payment of costs incurred in connection with the steel erection portion of the work. On April 25, 2005, Ennis submitted a written claim to Centex for extra compensation and lost productivity related to the catwalk installation. This claim included Choc-tow’s claim. On October 21, 2005, Centex formally submitted Ennis’ claim to the Church, and the architect subsequently recommended that the Church deny the claim. The Project was substantially completed in December 2005.

D. The Joint Defense Agreement.

In December 2006, Centex and Ennis entered into a Joint Prosecution and Defense Agreement (the “Defense Agreement”). The Defense Agreement was later amended to detail the status of Ennis’ claim as a pass-through claim and provides in pertinent part:

It is expressly understood by the parties ... that [Centex] is obligated ... to remit any monies relating to [the claims against the Church] which are received from [the Church] to [Ennis]. [The claims against the Church] are both pass through/liquidated claims and [Ennis] is only entitled to payment of such claims if the claims are paid by [the Church], To the extent that any portion of [the claims] are satisfied by [the Church], [Centex] is obligated to turn those funds over to [Ennis] in compliance with the Agreement.

E. The Lawsuits.

On January 19, 2006, Choctow filed suit against Ennis, Centex, and the surety on its payment bond in the 298th District Court of Dallas County seeking the recovery of damages, interest and attorney’s fees for uncompensated work that Choc-tow performed on the Project (the “Choc-tow Case”).

On August 28, 2006, Centex initiated an action against the Church in the 95th District Court of Dallas County requesting foreclosure of a statutory mechanics lien filed against the property of the Church for failure to pay Centex for its services, labor, and materials on the Project (the “Centex Case”). Centex also requested a stay of the litigation pending the completion of arbitration as required by the Contract. The Church did not dispute the validity of the agreement to arbitrate, or challenge whether the claims are within the scope of the agreement. After the Church filed a counterclaim for breach of contract, the trial court signed an order abating and administratively closing the case until arbitration was concluded. The Choctow Case was also administratively closed, and after being reopened, was continued several times pending the conclusion of arbitration.

F.The Arbitration.

Centex filed a demand for arbitration with the AAA seeking payment of the unpaid balance under the Contract and for the extra work that had been performed on the Project. Centex also filed a specification of claims, which included allegations concerning the pass-through claim brought on behalf of Ennis. The Ennis claim included those amounts claimed by Choctow.

Prior to the arbitration hearing, but within the context of the arbitration, the Church filed a motion for partial summary judgment claiming Centex did not have standing to assert claims on behalf of En-nis and waived its right to assert these claims. The Church also argued that the district court in the Choctow case had dominant jurisdiction over Choctow’s claim. The arbitrator denied the motion. The Church then filed an emergency motion to sever the Ennis claim to allow additional time to address discovery issues, and the motion was granted.

Shortly before the commencement of the arbitration of the claims between Centex and the Church, Centex and the Church entered into a settlement agreement resolving all disputes between them except the Ennis claim. The agreement provides:

[Centex] ... does hereby release and discharge [the Church] ... from any and all claims, demands, causes of action ... whether or not asserted in the Lawsuit or Arbitration ... arising directly or indirectly out of any events, contracts, transactions or dealings related to the Project, except for [Centex’s] pass through claim being asserted by Ennis ... as set forth in [Centex’s] Specification of Claims in the Arbitration (“Ennis Claim”). [Centex] expressly reserves the right to pursue the Ennis Claim and excepts the same from this Agreement and Release.

(Bold emphasis added). The settlement agreement also contains a similar reservation of rights as to the Church’s defenses against the Ennis Claim.

Following the execution of the settlement agreement, on May 9, 2008, the Church filed a second motion for summary judgment. In the motion, the Church argued Centex had no standing to pursue claims on behalf of Choctow and the pass-through claim asserted on behalf of Ennis was invalid because there was no assignment. The Church further argued that Centex waived its right to assert the Ennis claim because it failed to provide the Church with timely notice of the claim.

The arbitration proceedings began on May 12, and were conducted in accordance with the Construction Industry Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”). Although no record was made of the hearing, the parties agree that the arbitrator denied the Church’s second motion for summary judgment during the hearing.

The arbitration was closed on June 2, 2008 and an award in favor of Centex on behalf of Choctow and Ennis as pass-through claimants was signed on July 2, 2008 (the “Award”). The Award specified that $54,472 was recoverable by Centex for Ennis and $246,972 was recoverable by Ennis for Choctow. The Award directed that pre-award interest in the amount of $167,265.83 be apportioned between Ennis and Choctow in accordance with their recoveries. The Award was accompanied by findings of fact and conclusions of law. Significantly, the arbitrator’s conclusions of law included the following: (1) Under the provisions of the Ennis Subcontract and the Defense Agreement, Centex remains liable to Ennis and its subcontractors and suppliers for the claim that has been submitted to Centex to be presented to the Church; (2) Under the provisions of the Ennis Subcontract and the Defense Agreement, Ennis has the right and ability to bring a pass-through claim for its damages against the Church through Centex; and (8) Under the Ennis Subcontract, the Defense Agreement, and the Choctow Subcontract, Ennis is still liable to Choctow for its damages and therefore may bring Choctow’s claim for damages as part of the Ennis claim. The arbitrator also awarded $18,696.22 to Centex for the portion of arbitration administrative fees and expenses in excess of the apportioned costs previously incurred by Centex, and $100,000 in attorneys’ fees.

G. Vacatur of the Award.

After the delivery of the Award, Centex filed a motion to reinstate the Centex Case and moved to confirm the Award. In response, the Church filed objections to the confirmation and moved to vacate, modify, or correct the Award. Specifically, the Church argued the Award should be vacated because the arbitrator exceeded his powers and manifestly disregarded the law by: awarding damages on the Ennis and Choctow claims which neither Centex nor Ennis had standing to assert, awarding damages to a non-party to the arbitration, violating public policy that prohibits the imposition of contractual obligations on a non-party to a contract, imperfectly executing the Award by failing to make a “mutual, final, and definitive” award, awarding attorney’s fees without allowing an opportunity to contest the evidence and awarding administrative fees and expenses. No record of the arbitration proceeding was presented to the trial court. Instead, the parties attached pleadings and motions from the arbitration as exhibits to the motions filed in the trial court.

The trial court conducted a hearing, after which the court denied the motion to confirm and granted the motion to vacate. An amended order vacating the Award was signed six days later. The amended order vacating the Award specifies that the Award is vacated pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 171.058(a)(3) (Vernon 2005). The Award was vacated in its entirety without remand to the arbitrator for further proceedings.

II. STANDARD OF REVIEW

Review of a trial court’s decision as to vacatur or confirmation of an arbitration award is de novo and an appellate court reviews the entire record. In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex.App.-Dallas 2009, pet. denied); see also Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 567 (Tex.App.-Dallas 2008, no pet.) (discussing standard of review for confirmation of award). Because Texas law favors arbitration, however, our review is “extremely narrow.” See Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete Sys., Inc., 115 S.W.3d 16, 18 (Tex.App.-Fort Worth 2003, pet. denied); IPCO-G & C Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 255-56 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). An arbitration award has the same effect as a judgment of a court of last resort; accordingly, all reasonable presumptions are indulged in favor of the award and the award is conclusive on the parties as to all matters of fact and law. CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.2002); Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). Review of an arbitration award is so limited that even a mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground for vacating an award. Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex.App.-Dallas 2004, pet. denied).

III. ANALYSIS

In its first issue, Centex asserts the trial court erred in vacating the arbitration award because the Church failed to meet its burden to establish a statutory or common law ground for vacating the Award. Although the Church argues the trial court vacated the Award based on the TAA and “common law exceptions recognized in Texas,” the order vacating the Award does not encompass all grounds the Church suggests. Instead, the trial court specified that the Award was vacated pursuant to Tex. Civ. Prac. & Rem.Code Ann. § 171.058(a)(3). Therefore, our inquiry is confined to the statutory basis for vacatur specified by the trial court.

A. Standards for Vacating an Award under the TAA.

Under the TAA, a court must confirm an arbitrator’s award on application unless an opposing party establishes a statutory ground for vacating, modifying, or correcting the award. Tex. Civ. Prac. & Rem.Code Ann. § 171.087 (Vernon 2005); Quinn v. Nafta Traders, Inc., 257 S.W.3d 795, 798 (Tex.App.-Dallas 2008, pet. granted). Section 171.088 provides for vacatur when an arbitrator exceeds his power, refuses to postpone a hearing after a showing of sufficient cause, refuses to hear material evidence, or conducts a hearing contrary to enumerated statutory provisions resulting in substantial prejudice to a party. See Tex. Civ. Prao. & Rem.Code Ann. § 171.088(a)(3). “These grounds reflect severe departures from an otherwise proper arbitration process and are of a completely different character than ordinary legal error.” Quinn, 257 S.W.3d at 798.

The vacatur in this case is premised on the trial court’s conclusion that the arbitrator exceeded his power. The authority of arbitrators is derived from the arbitration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication. Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959); see also Allstyle Coil Co. L.P., v. Carreon, 295 S.W.3d 42, 44 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (stating scope of authority depends on the agreement). Arbitrators exceed their powers when they decide matters not properly before them. Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc., 294 S.W.3d 818, 829 (Tex.App.-Dallas 2009, no pet.) (citing Quinn, 257 S.W.3d at 799); Barsness v. Scott, 126 S.W.3d 232, 241 (Tex.App.-San Antonio 2003, pet. denied). When determining whether an arbitrator has exceeded his power, any doubts concerning the scope of what is arbitrable should be resolved in favor of arbitration. See Myer v. Americo Life, Inc., 232 S.W.3d 401, 408 (Tex.App.-Dallas 2007, no pet.). It is only when the arbitrator departs from the agreement, and, in effect, dispenses his own idea of justice that the award may be unenforceable. See Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001). Because arbitration is favored in the law, a presumption of arbitrability attaches once the existence of an arbitration agreement is established. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996) (orig. proceeding) (per curiam).

B. Did the Arbitrator Exceed His Authority by Determining the Validity of the Pass-Through Claims and Awarding Damages on the Ennis and Choctow Claims?

Centex contends the Award was not properly vacated because the Church failed to meet its burden to produce a complete record of the arbitration proceeding. Centex also argues that the issues the arbitrator decided fall within the scope of the broad arbitration clause. The Church responds that vacatur was not erroneous because the arbitrator exceeded his authority by determining the validity of the pass-through claims and awarding damages on the Ennis and Choctow claims. Specifically, the Church maintains that neither Centex nor Ennis had standing to assert a claim on behalf of Choctow. The Church also argues the district court in the Choctow Case had “dominant jurisdiction” over Choctow’s claims.

As the parties correctly note, when a non-prevailing party seeks to vacate an arbitration award, it bears the burden in the trial court of bringing forth a complete record that establishes its basis for vacating the award. Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex.App.-Houston [14th Dist.] 1995, no writ). The general rule is that without an arbitration transcript, we must presume the arbitration evidence adequately supported an award. Statewide Remodeling, 244 S.W.3d at 568; Jamison & Harris v. Nat’l Loan Investors, 939 S.W.2d 735, 737 (Tex. App.-Houston [14th Dist.] 1997, writ denied).

But the application of the general rule merely limits rather than entirely forecloses our consideration of whether the arbitrator exceeded his authority in this instance. See, e.g., Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 706 (Tex.App.-Fort Worth 2006, pet. denied) (noting that there was no record of the arbitration proceeding but considering pleadings and agreement in concluding arbitrator did not exceed his authority). The arbitration pleadings and motions, as well as the Contract containing the agreement to arbitrate are part of our record and were before the trial court when it considered the motion to vacate, and the scope of the arbitrator’s authority is derived from these documents. See Gulf Oil Corp., 327 S.W.2d at 408. Therefore, we consider the parties’ agreement and the matters submitted in arbitration to determine whether the arbitrator exceeded his power. In so doing, we presume any remaining evidence supports the Award. See Glenn A. Magarian, Inc. v. Nat’l Fin. Corp. No. 05-97-0063-CV, 1999 WL 814289, at *2 (Tex.App.-Dallas, Oct. 13, 1999, petdenied) (not designated for publication) (stating if appellant brings a record showing only a portion of arbitration proceedings court presumes the remaining evidence supports the award).

The Contract provides that “[a]ny claim arising out of or related to the Contract” is subject to arbitration. The Contract further states that “[n]o arbitration shall include, by consolidation or join-der or in any other manner, parties other than the [Church], [Centex], a separate contractor as described in Article 6 or other persons substantially involved in a common question of fact or law or whose presence is required if complete relief is to be accorded in arbitration.” Both of these phrases are broad and encompass a wide range of disputes. When an arbitration clause employs broad language such as this, it is construed as evidencing the parties’ intent to be inclusive rather than exclusive. See Pepe Intern. Devel. Co. v. Pub Brewing Co., 915 S.W.2d 925, 930 (Tex.App.-Houston [1st Dist.] 1996, no writ). Further, the presumption of arbi-trability is particularly applicable where there is a broad arbitration clause that purports to cover all claims and disputes. See McReynolds v. Elston, 222 S.W.3d 731, 740 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Because of the breadth of the arbitration clause, we conclude that the arbitrator was authorized to determine that the Ennis and Choctow claims arose out of or related to the Contract or involved a common question of law or fact. See Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete Sys. Inc., 115 S.W.3d 16, 16 (Tex.App.-Fort Worth 2003, pet. denied); Island on Lake Travis, Ltd. v. Hayman Co. Gen. Contractors, 834 S.W.2d 529, 532 (Tex.App.-Austin 1992, writ granted, judgm’t vacated w.r.m.). In reaching this conclusion, we note that when, as here, there is a broad arbitration clause, arbitration of a particular claim should not be denied unless it can be said “with positive assurance that the arbitration clause is not susceptible of an infer-pretation that covers the asserted dispute.” Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

The authority of arbitrators is also derived from the matters submitted for determination. See City of Baytown v. C.L. Winter, Inc., 886 S.W.2d 515, 518-19 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (considering scope of arbitration pleadings and parties’ agreement to determine whether arbitrator exceeded his authority); Island on Lake Travis, 834 S.W.2d at 538. Arbitrators do not exceed their authority when the matter addressed is one which the parties agreed to arbitrate. See Pheng, 196 S.W.3d at 329-330. Paradoxically, the Church submitted for the arbitrator’s consideration the very issues it now insists the arbitrator lacked the authority to decide. First, the Church requested that the arbitrator rule on the issues of standing and the validity of the pass-through claims in the two motions for summary judgment it filed. Then, the Church participated in a four-day arbitration involving the same issues. Indeed, in its brief on appeal, the Church conceded that it “looked to the arbitrator first on the issue of standing and jurisdiction because the issues are inextricably intertwined with the scope of the arbitrator’s authority.” The notion of submitting the issues to the arbitrator first implies that some type of merits-based review may follow in the event of an adverse ruling. In the context of arbitration, however, there is no second bite at the proverbial apple. A party cannot submit an issue to the arbitration panel and then, when an unfavorable result occurs, claim the arbitrators exceeded their authority in deciding the issue. Island on Lake Travis, 834 S.W.2d at 533. An arbitrator’s award on matters properly submitted to him is entitled to the same effect as a judgment of a court of last resort. See CVN Group, 95 S.W.3d at 238.

The Church also contends Texas law does not allow pass-through claims made against an owner by a subcontractor’s subcontractor. According to the Church, in the absence of an assignment, there is no legal basis to permit Ennis or Centex to prosecute Choctow’s claims. Although the Church’s argument is couched in terms of whether the arbitrator exceeded his authority, the Church’s argument is really a complaint that the arbitrator committed an error of law. But a complaint that the arbitrator decided the issue incorrectly or made a mistake of law is not a complaint that the arbitrator exceeded his powers. See Pheng Invs. Inc. v. Rodriguez, 196 S.W.3d 322, 329 (Tex.App-Fort Worth 2006, no pet.). A reviewing court is not at liberty to substitute its judgment for that of the arbitrator’s merely because it would have reached a different decision. Statewide Remodeling, 244 S.W.3d at 568. In our evaluation of the Church’s argument, we are mindful of other courts’ caution against a party’s “use of the authority argument as a ruse to induce the reviewing court to redetermine the facts — even just a tiny bit — or reach a legal conclusion on them as found or hoped for which differs from that of the arbitrators’.” Island on Lake Travis, 834 S.W.2d at 533 (citations omitted).

Having reviewed the arbitration clause in the Contract and the written submissions in arbitration, indulging all reasonable presumptions in favor of the Award, we cannot conclude the arbitrator exceeded his power by determining issues that were not properly before him.

C. Did the Arbitrator Exceed His Authority by Awarding Fees and Expenses?

The Church also argues the arbitrator exceeded his authority by awarding attorney’s fees to Ennis. In particular, the Church contends the fees are not properly recoverable because the Ennis claims were not within the scope of the arbitration agreement and the evidence supporting the fees was not offered until the close of the proceeding, depriving the Church of an opportunity for rebuttal. The Church further maintains that the award of arbitration fees and expenses was not proper because arbitration fees and expenses were encompassed in the settlement agreement between Centex and the Church. Centex responds that the Church’s statements about the arbitration proceeding are misleading and cannot be evaluated in the absence of a transcript of the proceeding.

We have previously concluded that the arbitrator had the power to determine that the Ennis claims were within the scope of the agreement, and therefore reject the Church’s challenge of the fees on this basis. As for the remainder of the Church’s argument, we agree with Centex that the Church’s failure to bring forth a complete record of the arbitration proceeding is fatal to this asserted basis for vacatur. See Jamison & Harris, 939 S.W.2d at 737 (refusing to review challenge to arbitrator’s evidentiary rulings without an arbitration record); Kline v. O’Quinn, 874 S.W.2d at 783 (presuming adequate evidence to support award where no record to show claims submitted or evidence offered). Unlike the determination of whether the arbitrator had the authority to decide the claims were within the scope of the agreement, resolution of this issue turns on the evidence offered and considered by the arbitrator and the manner in which the arbitration proceeding was conducted, none of which is included in the record before us. Therefore, on the face of this record, we cannot conclude the arbitrator exceeded his authority by awarding fees and expenses. Centex’s first issue is sustained.

D. Denial of the Motion to Confirm.

In its second issue, Centex argues the trial court erred in denying its motion to confirm the Award. We agree. A court must confirm an arbitrator’s award on application unless an opposing party establishes a statutory ground for vacating, modifying, or correcting the award. Tex. Civ. PRAC. & Rem.Code Ann. § 171.087. Because the Church failed to establish a basis for vacating the Award, the trial court erred in denying the motion to confirm. Centex’s second issue is sustained.

IV. CONCLUSION

Because we conclude the trial court erred in vacating the Award and denying the motion to confirm, we reverse the trial court’s judgment and render judgment confirming the arbitrator’s award.

      . The Contract is comprised of forms AIA 201-1997 and AIA 111-1997 from the American Institute of Architects.

      . A pass-through claim is a claim by a party who has suffered damages against a responsible party with whom it has no contract, presented through an intervening party who has a contractual relationship with both. Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 610 (Tex.2004). Texas recognizes the validity of pass-through claims. Id.

      . The Contract provides that arbitration will be conducted in accordance with the AAA Rules, and the AAA Rules provide that the arbitrator has the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. But there is no indication that the AAA Rules were before tile trial judge when she considered the motion to vacate.

      . In essence, Article 6 provides that the Church may award separate contracts to different contractors in connection with other portions of the Project.

      . Although Centex describes its second issue in terms of whether the trial court “exceeded its authority,” we construe the argument to assert the trial court’s decision was in error.


text:
    Steven C. MICHAEL, Appellant, v. CITY OF DALLAS, Appellee.
    No. 05-09-00210-CV.
    Court of Appeals of Texas, Dallas.
    June 10, 2010.

      W.D. Masterson, John H. Crouch, Kil-gore & Kilgore, Inc., Dallas, for Appellant.
    Jason D. McClain, Barbara E. Rosenberg, City of Dallas Attorney’s Office, Dallas, for Appellee.
    Before Justices MOSELEY, RICHTER, and FRANCIS.
   OPINION

Opinion By

Justice RICHTER.

Appellant, Steven C. Michael, filed suit against the City of Dallas alleging he was wrongfully discharged because of his race and disability. The trial court granted the City’s motion for summary judgment and Michael appeals. In a single issue, Michael contends the trial court erred when it granted the City’s motion for summary judgment. We affirm the trial court’s judgment.

BACKGROUND

Michael was hired by the City on April 11, 2007, as an Environmental Inspector III for the City of Dallas Water Department. This is a civil service position that requires the employee to serve a six-month probationary period, during which time they are an at-will employee and can be discharged at any time. Michael is a white male and it is not disputed that he is disabled. Michael disclosed the existence of his disability on his application and to his immediate supervisor, Yilam Zerihun. Zerihun made accommodations for Michael’s disability, including limiting his lifting to under 20 pounds and approving time off to schedule doctor’s visits. Michael characterized Zerihun as being “irritated” with his taking time off for medical appointments. The evidence showed Zeri-hun merely suggested that Michael schedule his appointments on Friday, the day he is off, and Michael agreed.

Morgan Dadgostar, Senior Program Manager for the City Water department, had final hiring and firing approval over Michael. Dadgostar did not interview Michael before he was hired and did not know he was disabled, but did know he was white. Michael was the highest paid employee in his section and the increased starting salary had been requested by Dadgostar.

Within three weeks after Michael was hired, one of his co-workers, Shavonn Stearns reported to Zerihun that Michael had made violent threats that he “may need to bring his 45” to work to deal with “the pickiness of our supervisor” and “blowing up this place.” Zerihun reported the complaint to her supervisor, Maurice Akech, and Akech notified Dadgostar. Dadgostar met with Stearns to discuss her report and asked her to put it into writing. Stearns had been employed by the City for approximately seven years and had never made a complaint like this. Michael acknowledged that he had a license to manufacture and sell guns, and that this was known by his co-workers.

After Dadgostar interviewed Stearns, Dadgostar concluded she believed Stearns and Stearns had no reason to make up the allegations. Dadgostar proceeded to investigate what action she should take. Dadgostar knew the City had a zero-tolerance policy on any types of threats or violence in the workplace. She consulted with the human resources department (“HR”) to determine what action to take. The senior human resource analyst advised Dadgostar that the City had a written prohibition and zero tolerance policy on any type of threats in the workplace and that any probationary employee like Michael should be, and in similar circumstances had been, discharged.

Dadgostar notified the Dallas police department, but did not contact any other law enforcement agencies. Dadgostar scheduled a meeting with Michael and had two plain clothed Dallas police officers, Zerihun, and an HR representative present. At that meeting Dadgostar gave Michael a letter stating that he was being discharged for failure of his initial probation period. Dadgostar did not reveal Stearns’s complaint because she was concerned about her safety. Michael asked why he was being terminated, but no further reason was provided. He asked if it was because of his disability, and he said that his statement appeared to surprise everyone. Dadgostar stated that this was the first time she learned of Michael’s disability. For the following two weeks, Dadgostar arranged to have a private security firm monitor the work-site to ensure there were no incidents.

Dadgostar later replaced Michael with another white male. Dadgostar is a female of Iranian descent; Zerihun, Akech, and Stearns are all African American. The City did not disclose the charges made by Stearns until it was required to do so by the Attorney General’s Office. Michael denies he made the statements and characterizes them as “bizarre and extreme.” He also alleges Stearns was a “disgruntled employee who felt she was ‘unappreciated,’ who felt her compensation was ‘inadequate,’ and who resigned two months after getting Plaintiff fired.” Michael maintains that he was fired because he is a white male and because he is disabled.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

On appeal, 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, 481-32 (Tex.App.-Dallas 2004, no pet.). With 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). A defendant is entitled to summary judgment when he disproves one of the essential elements of the plaintiffs claim. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). After the moving party presents evidence showing it is entitled to summary judgment, the burden shifts to the nonmovant to present evidence of any issues of material fact that would preclude summary judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). When the trial court grants summary judgment without stating the grounds for doing so, we must consider all grounds presented in the motion for summary judgment and affirm the trial court if any of the theories has merit. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

EMPLOYMENT DISCRIMINATION CLAIMS

Applicable Law

Under the Texas Commission on Human Rights Act (“TCHRA”), it is unlawful for an employer to discharge an employee, because of the employee’s race, color, disability, religion, sex, national origin, or age of the employee. Tex. Lab. Code Ann. § 21.051(1) (Vernon 2006). The TCHRA is modeled on federal law to execute the policies of Title VII of the Civil Rights Act of 1964, and subsequent amendments, and execute the policies in Title I of the Americans with Disabilities Act of 1990 (“ADA”), and its subsequent amendments. Tex. Lab.Code Ann. § 21.001(1) and (3) (Vernon 2006). Accordingly, when we address an issue brought under the TCHRA we may consider federal cases interpreting the analogous provision. Caballero v. Central Power & Light Co., 858 S.W.2d 359, 361 (Tex.1993).

In an employment discrimination case based upon circumstantial evidence the employee has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To establish a prima facie case of employment discrimination the plaintiff must show (1) he was a member of a protected class, (2) he was qualified for his employment position, (3) he was subject to an adverse employment decision, and (4) he was replaced by someone outside of the protected class, or he was treated less favorably than similarly situated members of the opposite class (disparate treatment cases). McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Reeves, 530 U.S. at 142, 120 S.Ct. 2097; Ysleta Ind. School Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005) (disparate treatment case). Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to show that the employee was terminated for a legitimate, non discriminatory purpose. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. If the defendant proffers a legitimate reason for the adverse employment decision, the burden shifts back to the plaintiff to show either (1) the reason stated by the employer was a pretext for discrimination, or (2) the defendant’s reason, while true, was only one reason for its conduct and discrimination is another motivating factor (“mixed motive”). Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); McCoy v. Texas Instruments, Inc., 183 S.W.3d 548 (Tex.App.-Dallas 2006, no pet.).

Michael alleged in his original petition, and in response to the City’s motion for summary judgment, that the real reason he was feed was because his African American managers discriminated against him because of his race, and the City was concerned that his disability would cause the City to incur large medical expenses. Michael alleged that as a result of this discrimination, he “suffered disparate treatment.” The City argued that it was entitled to summary judgment because Michael cannot establish a prima facie case of discrimination because Michael cannot show he was treated differently from non-disabled or non-white employees. The City did not challenge the remaining elements of a prima facie case of employment discrimination. The City also argued that it had a legitimate reason for terminating him based on threats of workplace violence.

Prima Facie Case of Employment Discrimination

In order to establish a prima facie case based upon disparate treatment the plaintiff must show that he was treated less favorably than “similarly situated” non-protected class members. Ysleta, 177 S.W.3d at 917. The Texas Supreme Court examined the meaning of “similarly situated” in Ysleta. It concluded that in the context of discrimination based upon disparate discipline, “the disciplined and undisciplined employees’ misconduct must be of ‘comparable seriousness.’” Id. This would require Michael to show that his misconduct was “nearly identical” to that of an employee from the opposing class who was retained. Id. Michael presented no evidence that he was disciplined differently from any other employee. In fact, Michael admitted he had no evidence that he had been disciplined differently from other non-disabled or non-white employees. The City, on the other hand, established that it had a zero tolerance policy on work place violence, and another employee was terminated for a much less serious offense — arguing.

The only evidence Michael offered in support of his discrimination claim was his own unsubstantiated allegations that the three African American supervisors discriminated against him because he is white and was the highest paid member in the department. “An employee’s subjective belief of discrimination or retaliation, no matter how genuine, cannot serve as the basis for judicial relief.” McCoy, 183 S.W.3d at 555. Michael claims that the allegations of work place violence by Stearns were so bizarre and absurd that the nature of the allegations established the allegations were merely stereotypical charges and untrue. However, the supervisor, Dadgostar, who made the final decision to terminate Michael, investigated Stearns’s charge, concluded she had no reason to fabricate the story, and had never made any similar allegations in her seven years with the department. Finally, after terminating Michael, the City replaced him with another white male employee, at the same pay level.

Michael also failed to offer any evidence that he was treated differently because of his disability. He admitted that his immediate supervisor, Zerihun, was aware of his disability and granted him accommodations by allowing him time off for doctor appointments, and limited lifting of anything over twenty pounds. Within his first three weeks of employment Michael missed three days for doctor appointments and each was approved. Michael alleged that Zerihun was responsible for limiting the department’s medical costs, but there was no evidence supporting this statement. Instead, Zerihun recommended that Michael schedule doctor appointments on Fridays when he was already off, and that Zerihun was responsible for controlling medical leave, not costs.

Michael cannot establish a prima facie case of employment discrimination based upon “conclusory allegations, ... or subjective beliefs and feelings.” Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 425 (Tex.App.-Houston [1st Dist.] 2000, no pet.). He presented no evidence that he was treated any differently from any other employee who violated the City’s policy on work place violence. Therefore, we conclude that Michael failed to present evidence of a prima facie case of employment discrimination, either because of his disability or race.

Finally, Michael argues that the federal courts in the fifth circuit have relaxed the requirements for a prima facie case of employment discrimination. He contends that he does not have to provide evidence that he was replaced by someone outside of the protected class, or provide evidence that others outside of the class were treated more favorably. Instead, he contends the fourth requirement of a prima facie case can be satisfied by generally showing that he was discharged because of discrimination. See, Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003); Nieto v. L & H Packing, Co., 108 F.3d 621, 624 (5th Cir.1997). However, even if we adopted a more flexible approach, Michael cannot satisfy his burden. He has presented no evidence of discriminatory treatment other than his own subjective beliefs. Michael’s own statement of belief does not, however, provide any evidence of discrimination. McCoy, 183 S.W.3d at 555.

CONCLUSION

Michael presented no evidence to support his claim that he was fired because he was white or disabled. He has therefore failed to establish a prima facie case of employment discrimination. We do not address the remaining arguments related to the second and third prong of the McDonnell Douglas burden shifting analysis because we conclude Michael has failed to establish a prima facie case. Accordingly, we conclude the trial court properly granted the City’s motion for summary judgment and affirm the judgment of the trial court.

      . Michael did not plead, or provide any evidence, that he was replaced by someone outside of his protected class (either non-white male or non-disabled). The only evidence relating to his replacement was provided by the City and established that Michael’s replacement was a white male, employed at the same pay, but there was no evidence on whether the replacement was or was not disabled.


text:
    Rodolfo and Anna VELA, Appellants, v. Bradley M. MANNING, et al., Appellees.
    No. 05-09-00400-CV.
    Court of Appeals of Texas, Dallas.
    June 11, 2010.
    Rehearing Overruled July 13, 2010.
    Frank P. Hernandez, Dallas, TX, for Appellants.
    Michael G. Adams, Laura B. Englert, Esq., Galveston, TX, for Appellees.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice RICHTER.

This is an appeal from a summary judgment in favor of appellees. In their sole issue, the Velas contend the trial court abused its discretion by denying their request for a continuance of the summary judgment hearing. After reviewing the record, we conclude the Velas failed to preserve error and affirm the judgment of the trial court.

BACKGROUND

Rodolfo and Anna Vela commenced this case on November 17, 2006, against Bradley M. Manning, American National Insurance, Co., B. Garrison, and H. Aldriedge (collectively “appellees”). No further action was taken by the Velas until March 2008, when citations were issued. Appel-lees filed a motion for summary judgment on October 10, 2008, and set it for hearing on January 5, 2009. Velas’ counsel filed a motion for continuance on the day the response to the motion for summary judgment was due, December 29, 2008. Counsel attached her own affidavit to the motion for continuance stating that she had a conflict and was unavailable to appear, and that an impairment was affecting her ability to read. The record does not indicate that the motion for continuance was set for hearing. Nor does the record indicate that a request for an extension of time to file a response to the motion for summary judgment was ever filed.

DISCUSSION

In their sole issue on appeal, the Velas argue the trial court abused its discretion in denying their request for a continuance of the summary judgment hearing. However, in order to preserve error for appellate review, the record must show (1) the complaint was presented to the trial court, and (2) the trial court ruled on the request, objection or motion, or (3) the trial court refused to rule on the request, objection, or motion, and the complaining party objected to the refusal to rule. Tex.R.App. P. 33.1(a). In this case, the record does not show that the motion for continuance was set for hearing, or that the trial court ruled on the motion, or that the Velas objected to the trial court’s failure to rule. Therefore, the Velas have failed to preserve error on this issue. Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224-225 (Tex.App.-Dallas 2008, pet. struck.) (appellant failed to obtain ruling on motion for continuance and therefore failed to preserve error); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex.App.-Dallas 2004, pet. denied) (same). Because the Velas failed to preserve error, we overrule their sole issue. The judgment of the trial court is affirmed.

      . The motion for summary judgment was filed by defendants American Nat'l Ins. Co., Manning, and Garrison. On December 24, 2008, defendant Aldriedge joined in that motion.

      . The body of the motion indicated that the conflict was with special exceptions filed by the defendants and a motion to compel filed by American Nat'l Ins. Co. Neither of those motions were scheduled for January 5, 2009, and instead had previously been heard and ruled upon.