author: JOHNSON, J.,

text:
    The STATE of Texas v. William Rodney WILSON a/k/a William Corrick, Appellee.
    No. PD-0008-09.
    Court of Criminal Appeals of Texas.
    Nov. 10, 2010.

      Lisa C. McMinn, Asst. State’s Attorney, Austin, for Appellant.
    Thomas B. Swanson, Houston, Jeffrey L. Van Horn, State’s Attorney, Austin, for Appellee.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellee, William Rodney Wilson, did not dispute the state’s recitation of facts in its brief before the court of appeals. That recitation reflects that, in 1987, appellee plead guilty to an indictment that alleged felony driving while intoxicated (DWI) and true to two allegations of prior DWI convictions, in 1988 and 1986. The trial court found appellee guilty of third-degree-felony DWI, fined him $750.00, and sentenced him to four years’ probation.

Within the first year of being placed on probation, the state filed a motion to revoke appellee’s probation and issued a ca-pias for appellee’s arrest. More than nineteen years after the state filed its revocation motion, appellee was arrested. By that time, appellee had changed his name to William Rodney Corrick and had a different Texas driver’s license number. (State’s brief before the court of appeals, p. 2.) Appellee then filed an Application for Writ of Habeas Corpus Seeking Release for Lack of Probable Cause. The record reflects that, at the initial revocation hearing, appellee made several arguments, including a claim that the prior DWIs alleged for enhancement were not proven to have been final. The hearing was recessed so that appellee could obtain certified copies of documents to offer into evidence. Thereafter, pursuant to Tex. Code Crim. Proc. art. 11.072, appellee filed a First Amended Application for Writ of Habeas Corpus. Appellee challenged the sufficiency of the evidence to support a finding of true to the two previous DWI convictions. The amended writ application alleged that the DWI convictions that were used to enhance the 1987 offense to a felony were not final judgments under Article 42.01 of the Texas Code of Criminal Procedure. Appellee requested that the court issue a writ of habeas corpus vacating his “unlawfully obtained conviction and sentence.”

When the hearing reconvened, appellee introduced into evidence certified copies of the orders granting misdemeanor probation for the two previous DWI offenses named in the enhancement paragraphs. Each order stated that

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause....

The order was in error as to the 1986 conviction, as the conviction was final by law, but the order for the 1983 probation showed that that conviction was not final, absent proof of revocation. The trial court granted relief on appellee’s application for writ of habeas corpus and ordered that his conviction and sentence be vacated. The state appealed the trial court’s decision, arguing that the court abused its discretion by granting relief on appellee’s application. The court of appeals affirmed the trial court. State v. Wilson, 288 S.W.3d 13 (Tex.App.-Houston [1st Dist.] 2008).

The state, via the state prosecuting attorney, contends in this Court that evidence that a prior conviction may not have been final is not “newly discovered” evidence in the context of a claim of actual innocence. The state argues that, regardless of whether appellee knew that an un-revoked probation was not considered a final conviction prior to 1984, he knew or should have known that he had been placed on probation. The state asserts that the “concepts of insufficient evidence, actual innocence, and illegal sentence are not interchangeable,” and the failure to prove an element of an offense results in an improper conviction, not an illegal sentence. The state further argues that ap-pellee is estopped from challenging the finality of his prior conviction because a plea agreement is a contract between the state and the defendant for a certain punishment that is made in exchange for a guilty plea. Therefore, the state argues that it was entitled to rely on the stipulations of the contract and did not have to prove the finality of the prior convictions.

In response to the state’s arguments, appellee contends that the court of appeals correctly held that the trial court did not abuse its discretion in granting habeas corpus relief. Appellee argues that the trial court’s decision in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion and that the state’s desired result should not be substituted for the requisite standard. We granted three of the grounds in the state’s petition for discretionary review.

Analysis

“Actual innocence” originally meant that the accused person did not, in fact, commit the charged offense. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (“actual innocence” does not translate neatly into the capital sentencing context; limited exception [to procedural-default bar] to cases in which the applicant could show “by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law”); quoted in Dretke v. Haley, 541 U.S. 386, 398, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986) (actually innocent of the substantive offense). That meaning began to change when the United States Supreme Court expanded the term from “not guilty of’ the charged offense to also mean “ineligible for the punishment assessed.” See, e.g., Dretke v. Haley, 541 U.S. 386, 393-94, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (“allegations of actual innocence, whether of the sentence or of the crime charged”). We hold that the term “actual innocence” shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser-included offenses. In cases such as this one, in which the issue is the offense of which he is, in fact, guilty, thus implicating the legality of his sentence, the appropriate terms are “guilty only of’ a lesser-included offense and “ineligible for” the sentence assessed. For the purpose of this case, and other pending cases in which the issue is the offense of which the accused is, in fact, guilty, the sentence assessed, or both, we will interpret a claim of “actual innocence” to mean “guilty only of’ a lesser-included offense or “ineligible for” the sentence assessed, or both.

The state argues that a “true innocence claim involves newly discovered evidence of innocence, not newly learned law.” Although appellee may not have known that the 1983 DWI order that was used to enhance a misdemeanor offense to a third-degree felony was not final, the state contends that his ignorance does not warrant an innocence claim.

The state asserts, “A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the state has convicted the wrong person of the crime.” Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). However, in Ex parte Sparks, this Court unanimously held that a post-conviction application for a writ of habeas corpus is available when a felony conviction was rendered on a guilty plea when, in fact, the offense was a misdemeanor. Ex parte Sparks, 206 S.W.3d 680 (Tex.Crim.App.2006); see also Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Crim.App.1978). As in the present case, Sparks was indicted for driving while intoxicated. Sparks, 206 S.W.3d at 680. The indictment included an allegation of two prior DWI convictions, which enhanced the misdemeanor DWI to a third-degree felony. Id. at 681. This Court concluded that the enhancement was improper because one of the prior DWI offenses could not be used as an enhancement. Id. at 682.

Here, use of the 1983 enhancement to elevate appellee’s misdemeanor offense to a felony was improper. A prior conviction may not be used as an enhancement if the conviction was not final and, until January 1, 1984, a DWI conviction on which the sentence was probated and the probation was never revoked was not deemed final. Ex parte Serrato, 3 S.W.3d 41 (Tex.Crim.App.1999); Clopton v. State, 408 S.W.2d 112 (Tex.Crim.App.1966). Appellee received probation for the 1983 DWI offense, and the record does not indicate that it was ever revoked. We agree with the court of appeals that, under the law in effect at the time of appellee’s 1987 DWI, the 1983 conviction could not be used for enhancement purposes and, without two prior convictions, his 1987 DWI was a Class A misdemeanor, not a felony. State v. Wilson, 288 S.W.3d at 16.

The state asserts that a plea bargain is an example of a contract in which both parties usually benefit from the judgment. The state argues that appellee failed to challenge the validity of the prior DWI convictions before pleading guilty to felony DWI, but received the benefits of the plea agreement. And, the state maintains, ap-pellee could have received a harsher punishment had the case gone to trial. The state concludes that appellee is estopped by contract from questioning the validity of the judgment. In support, the state directs us to Rhodes v. State, 240 S.W.3d 882 (Tex.Crim.App.2007), but it does not support the state’s position. In Rhodes, we explained, “A defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be allowed to collaterally attack that judgment on a later date on the basis of the illegal leniency.” Id. at 892. The plea bargain challenged here involves a too-severe punishment — a felony rather than a misdemeanor.

The court of appeals correctly explained that appellee is not estopped from challenging the evidence pertaining to the prior DWI convictions that were used to enhance the misdemeanor offense to a felony. State v. Wilson, 288 S.W.3d at 17. A plea agreement is generally considered a contractual agreement between the state and a defendant that is presumed to have been knowingly and voluntarily entered into unless the defendant can show otherwise. State v. Moore, 240 S.W.3d 248, 251 (Tex.Crim.App.2007) (citing Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App.1982)). However, this Court has unanimously held that “post-conviction ha-beas corpus is available when a felony conviction was rendered on a guilty plea when in fact the offense was a misdemean- or.” Ex parte Sparks, 206 S.W.3d at 680.

Regardless of any benefit that may have accrued as a direct result of the plea agreement, when a defendant has been convicted of an offense for which he claims that he is “actually innocent, and he proves it, he will be relieved from the restraint of the conviction even though he may have pleaded guilty and confessed.” Id. at 683. Here, appellee contended that he was not guilty of the felony DWI of which he was convicted. Appellee successfully proved to the trial court that he was indeed not guilty of the felony offense; the 1983 court order explicitly stated that the judgment was not. final, and the statute under which he was convicted supports that court order. Although appellee may have pled guilty to the felony offense pursuant to the plea agreement, the trial court correctly relieved him from the restraint of the felony conviction.

Conclusion

The judgment of the court of appeals is affirmed.

MEYERS, J., dissented.

      . Tex.Rev.Civ. Stat. art. 670lZ-l(e).

      . In 1993, during the 73rd Legislative Session, the statutory term for probation was changed to "community supervision.” Both terms refer to the same process and will be used interchangeably in this opinion. Ivey v. State, 277 S.W.3d 43, 52 n. 48 (Tex.Crim.App.2009).

      . "This article establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.” Tex Code Crim. Proc. art. 11.072, § 1.

      . Appellee cites Downer v. Aquamarine Operators, Inc., in which the Supreme Court explained that "[t]he test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (citations omitted).

      .
      1. A defendant is not ‘‘actually innocent” of felony DWI when one of the prior DWI convictions alleged to elevate the primary offense to a felony is invalid.
      2. An invalid prior conviction used to elevate the primary offense to a felony does not render the resulting sentence illegal.
      3. A defendant who pleads guilty, pursuant to a plea bargain, to felony DWI and admits to the jurisdictional prior convictions is estopped from claiming that his sentence is illegal because the prior convictions are invalid.

      . See also Gilbert v. United States, 609 F.3d 1159, 1166 (11th Cir.2010) (petitioner "is innocent of the statutory 'offense' of being a career offender (having two prior violent felonies) and was sentenced, in part, for a nonexistent offense — being a career offender with only one prior violent felony.”)

      . The challenged prior conviction occurred more than ten years before the charged offense. See former Penal Code § 49.09(e)(2003).

      . Appellee also received probation for the conviction of the 1986 DWI offense, but it was a final conviction that was properly used as an enhancement because the offense occurred after January 1, 1984. Tex.Rev.Civ. Stat. 67017 — 1(h).

      . At the time of the offense, if it was shown at trial that the defendant had previously been convicted two or more times of driving while intoxicated, the offense was punishable by:
      (1) a fine of not less than $500 or more than $2,000; and
      (2) confinement in jail for a term of not less than 30 days or more than two years or imprisonment in the state penitentiary for a term of not less than 60 days or more than five years.
      Article 6701Z-l(e).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BLUEBONNET FINANCIAL ASSETS, Appellant, v. Marvin MILLER, Appellee.
    No. 08-07-00282-CV.
    Court of Appeals of Texas, El Paso.
    May 1, 2009.

      Andrew C. Olivo, Carrollton, TX, for Appellant.
    Marvin Miller, Plano, TX, pro se.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

PER CURIAM.

Bluebonnet Financial Assets appeals a take-nothing judgment entered in favor of its debtor, Mr. Marvin Miller. Because the trial court failed to comply with a timely request for findings of fact and conclusions of law, we will abate the appeal for entry of such findings.

Bluebonnet Financial Assets (“Bluebonnet”) sued Mr. Marvin Miller in December of 2006, because he had defaulted on a credit card account owned by the entity. Bluebonnet’s petition included several grounds for recovery; including breach of contract, account stated, quantum merit, unjust enrichment, and attorney’s fees. The case was tried to the court on July 5, 2007. On August, 3, 2007, the trial court entered a take-nothing judgment in favor of Mr. Miller. The trial court then signed findings of fact and conclusions of law on August 22, 2007. Contrary to the judgment, the trial court’s findings stated that Mr. Miller owed Bluebonnet over $15,000 on a past due account and $750 for attorney’s fees. Alternatively, the findings stated that Bluebonnet established its right to recover under its quantum merit and unjust enrichment claims.

Bluebonnet filed its notice of appeal on August 28, 2007. On that same date, Mr. Miller filed an emergency motion to set aside the trial court’s August 22 findings, or to amend or filed additional findings. The trial court granted Mr. Miller’s motion and set aside its findings on August 30. On September 5, Bluebonnet filed a second request for findings. According to Bluebonnet’s motion, Mr. Miller’s emergency motion was granted without notice or hearing. When the trial court failed to respond to Bluebonnet’s second request for findings, the entity timely filed a notice of past due findings. The trial court did not respond to Bluebonnet’s past due notice.

In Issue Six, Bluebonnet contends that the trial court erred by failing to make findings in response to its September 5 request. Because we find this issue determinative of the appeal at this point, we will limit our review to this issue.

Texas Rule of Civil Procedure 296 provides a party with the procedural right to request that the trial court prepare written findings of fact and conclusions of law. See Tex.R.Civ.P. 296. Texas Rule of Civil Procedure 297 makes the trial court’s duty to make such findings in response to a timely request mandatory. See Tex. R.Civ.P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). A trial court’s failure to respond to a timely request is presumed to be harmful error unless the appellate record affirmatively shows that the complaining party has suffered no harm. Cherne Indus., Inc., 763 S.W.2d at 772.

As a preliminary matter, it is necessary to address the timeliness of Bluebonnet’s September 5 request for findings. A party’s Rule 296 request for findings of fact and conclusions of law is due to be filed with the clerk of the court within twenty days of the date the judgment is signed. Tex.R.Civ.P. 296. If the trial court fails to respond to a request for findings within twenty days, the requesting party must file a notice of past due findings within thirty days of the original request. Tex.R.Civ.P. 297. Here, we have a rather unique situation where a party has made a timely request for findings which were timely entered in the record, only to have those findings be set aside pursuant to the opposing party’s motion, outside time period in which another request, or a request for additional findings, could be made. See Tex.R.Civ.P. 296, 298.

Were we to count from August 3, the date the judgment was signed, Bluebonnet’s September 5 request for findings would be untimely, as would its past due notice. Bluebonnet would no longer be entitled to findings. See Cherne Indus., Inc., 763 S.W.2d at 772. This result frustrates the purpose of Rules 296 and 297, and leaves a party who has otherwise complied with the rules’ requirements without a remedy. Without findings of fact and conclusions of law, Bluebonnet would be forced to guess what the trial court’s findings were unless they are provided to them. See Brown v. McGonagill, 940 S.W.2d 178, 180 (Tex.App.-San Antonio 1996, no writ). Putting the appellant in the position of having to guess the trial court’s reasons for rendering judgment against it defeats the inherent purpose of Rules 296 and 297. Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, writ denied). The purpose of a request under the rules is to “narrow the bases of the judgment to only a portion of [the multiple] claims and defenses, thereby reducing the number of contentions that the appellant must raise on appeal.” Id. Requiring an appellant to undertake a broad attack on all the potential bases for the trial court’s judgment requires an appellant to expend resources on briefing that may be rendered meaningless after the trial court’s findings become available. Liberty Mut. Fire Ins. v. Laca, 243 S.W.3d 791, 795 (Tex.App.-El Paso 2007, no pet.).

Bluebonnet has continually pursued its request for findings. Because Bluebonnet has conscientiously exercised its right to findings despite its opposing party’s actions, and because we conclude it would frustrate the purposes of Rules 296 and 297 to hold otherwise, we will calculate Bluebonnet’s deadline for findings of fact and conclusions of law from the date the trial court set aside the initial set of findings. When we calculate from that date, Bluebonnet’s September 5 request was timely, as was its past due notice. Therefore, the trial court had an affirmative duty to enter findings of fact and conclusions of law pursuant to a timely request. Because the court has not entered findings, we must next address the question of harm.

The general rule is that an appellant has been harmed by a trial court’s failure to enter findings of fact and conclusions of law if, under the circumstances of the case, he is forced to guess the reasons the trial court ruled against him. Larry F. Smith, Inc., 110 S.W.3d at 614. If there is only a single ground of recovery or a single defense in the case, the record shows the appellant has suffered no harm because he is not forced to guess the reasons for the trial court’s judgment. Id. In a case such as this one, where there are multiple grounds upon which the trial court could have based its decision, the record does not affirmatively show appellant was not harmed by the trial court’s failure to respond to a timely request for findings of fact and conclusions of law. See Laca, 248 S.W.3d at 795. The preferable remedy in this situation is for the appellate court to abate the appeal to allow the missing findings to be entered. Cherne Indus., Inc., 768 S.W.2d at 773; Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 321 (Tex.App.-El Paso 1996, no writ). Accordingly, we abate this appeal and direct the trial judge to enter findings of fact and conclusions of law and forward the same to the County Clerk of Collin County within thirty (30) days of the date of this opinion. It is further ordered that the County Clerk of Collin County prepare a supplemental clerk’s record and forward the same to this Court -with fifteen (15) days of the filing of the findings of fact and conclusions of law.

      . Mr. Miller has not appeared in this appeal.


author: DAVID WELLINGTON CHEW, Chief Justice.

text:
    BLUEBONNET FINANCIAL ASSETS, Appellant, v. Marvin MILLER, Appellee.
    No. 08-07-00282-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2010.

      Andrew C. Olivo, Carrollton, TX, for Appellant.
    Marvin Miller, Murphy, TX, pro se.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Bluebonnet Financial Services appeals a take-nothing judgment entered in favor of its debtor, Mr. Marvin Miller. Because we conclude the trial court erred by determining Mr. Miller filed an answer, we will reverse the take-nothing judgment and render judgment for Bluebonnet as to liability and liquidated damages.

Bluebonnet Financial Assets (“Bluebonnet”) filed suit against Marvin Miller in December 2006, for breach of contract, accounts stated, quantum merit, and unjust enrichment, claiming Mr. Miller was in default on a credit card account the company purchased from Chase Manhattan Bank. Mr. Miller was cited to appear, but failed to file an answer. On January-29, 2007, Bluebonnet obtained a default judgment for $15, 256.23, plus reasonable attorney’s fees and costs, and post judgment interest. Approximately one month later, the trial court set aside the default judgment by granting an agreed motion for new trial, in which Mr. Miller was ordered to pay Bluebonnet $750.

Thereafter the parties exchanged discovery. The case was tried to the bench on July 5, 2007. Mr. Miller appeared through his attorney, but did not offer any evidence in opposition to the claims. Bluebonnet called one witness during trial, its manager, Steve Niermann. Mr. Niermann testified that Bluebonnet purchased Mr. Miller’s delinquent credit card account and was attempting to collect the balance. Mr. Miller’s attorney raised objections to the documents offered by Bluebonnet as evidence of the account’s chain of title and to Mr. Niermann’s testimony. At the trial’s close, the court requested briefing from both parties on the admissibility of the chain of title documents and affidavits.

On July 31, 2007, Bluebonnet filed a motion to “Strike Defendant’s Post-Trial Original Answer.” In the motion, Bluebonnet represents Mr. Miller attempted to file an Original Answer following trial and the post-trial briefing. Other than Bluebonnet’s statement, there is no evidence of Mr. Miller’s answer contained in the appellate record. There is also no record of any action on Bluebonnet’s motion to strike. The trial court entered a take-nothing judgment on August 3, 2007. On August 22, 2007, the trial court entered findings of fact and conclusions of law in response to Bluebonnet’s request. Contrary to the judgment, however, the trial court’s findings stated that Mr. Miller owed Bluebonnet over $15,000 on a past due account and $750 for attorney’s fees. Alternatively, the findings stated that Bluebonnet established its right to recover under its quantum merit and unjust enrichment claims.

Bluebonnet filed its notice of appeal on August 28, 2007. On that same date, Mr. Miller filed an emergency motion to set aside the trial court’s August 22 findings, or to amend or file additional findings. The trial court granted Mr. Miller’s motion and set aside its findings on August 30. On September 5, Bluebonnet filed a second request for findings. According to Bluebonnet’s motion, Mr. Miller’s emergency motion was granted without notice or hearing. When the trial court failed to respond to Bluebonnet’s second request for findings, the entity timely filed a notice of past due findings. The trial court did not respond to Bluebonnet’s past due notice.

This Court abated the appeal for entry of the requested findings on May 1, 2009. We filed a copy of the court’s findings July 16, 2009, by a supplemental clerk’s record. According to the trial court’s findings:

FINDINGS OF FACT
1. Defendant did file an answer prior to trial.
2. Defendant, represented by counsel, did appear at trial.
3. On June 5, [sic] 2007, this cause was tried before the Court.
4. Plaintiff offered into evidence records which Plaintiff contended established the chain of title, the cardholder agreement between Defendant and the original creditor and the copies of statements purported to establish an amount due and owing. Defendant objected to these documents based upon hearsay and that the documents had not been authenticated. Defendant’s objections were taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objections.
5. Plaintiff attempted to authenticate a cardmember agreement through a business records affidavit from the custodian of records for Ariel Financial Services, a company with no apparent connection to any issue in this lawsuit. Defendant’s [sic] objected to the authentication of this cardmember agreement by a third-party with no knowledge of the records keeping practices of the original creditor. Defendant’s objection was taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objection.
6. Plaintiff attempted to establish chain of title through two bills of sale, neither of which included the Defendant’s name or alleged account number. Both bills of sale stated that the accounts that were purchased were included as Exhibit ‘A’ to the bills of sale, but no Exhibit ‘A’ was attached to either bill of sale, making the bills of sale unreliable on their face. Further, these bills of sale refer to papers that are not attached thereto or served therewith as required by the Texas Rules of Civil Procedure. Defendant’s objection was taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objection.
7. Plaintiff called Stephen Niermann, manager of Plaintiff, to testify.
8. Witness Niermann testified that Defendant Miller opened a credit card account with Direct Merchant’s Bank. Defendant objected that Witness Niermann did not have personal knowledge of this testimony and that there was a lack of foundation. Defendant’s objection was taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objection.
9.Witness Niermann testified that Defendant Miller used Direct Merchant’s Banks credit card to make charges on credit. Defendant objected that Witness Niermann did not have personal knowledge of this testimony and that there was a lack of foundation. Defendant’s objection was taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objection.
10. Witness Niermann testified that Defendant Miller made payments and stopped making payments on the account. Defendant objected that witness Niermann did not have personal knowledge of this testimony and that there was a lack of foundation. Defendant’s objection was taken under advisement by the Court. After review and reflection, the Court sustains Defendant’s objection.
CONCLUSIONS OF LAW
11. To the extent any of the foregoing findings of fact can be construed to be conclusions of law, it is intended that said findings of fact be considered conclusions of law and are incorporated herein by reference.
12. The evidence offered by Plaintiff at trial that was purportedly a card-member agreement was hearsay and was not authenticated by Plaintiff at trial and as such was inadmissible evidence. After review and reflection of Defendant’s objections to the cardmember agreement, the Court sustains Defendant’s objection.
13. The evidence offered by Plaintiff at trial that purportedly established the chain of title was unreliable on its face and did not establish ownership of the alleged account. Further, the bills of sale refer to papers that are not attached thereto or served therewith. After review and reflection of Defendant’s objections to the chain of title documents, the Court sustains Defendant’s objections.
14. The documents offered into evidence by Plaintiff at trial were hearsay and were not authenticated by Plaintiff at trial and as such were inadmissible evidence.
15. The testimony of Witness Nier-mann was not based upon personal knowledge and there was a lack of foundation and as such was inadmissible evidence. After review and reflection, the Court sustains Defendant’s objections to Witness Niermann’s testimony.
16. Plaintiff failed to establish that Defendant owed to Plaintiff any amount under a breach of contract or account stated theory.
17. Plaintiff further fails to establish that Defendant owed to Plaintiff any amount under a Quantum Me-ruit or unjust enrichment theory.
18. Plaintiff has failed to establish that Defendant owed to Plaintiff or that Plaintiff was entitled to recover attorney’s fees or court costs.
19. Plaintiff failed to establish that Plaintiff is entitled to any pre-judgment or post-judgment interest.
20.As such, it is ordered that Plaintiff take nothing on all of its claims.
Signed this 10 day of July, 2009.

Bluebonnet raises eight issues on appeal. Issues One and Two challenge the trial court’s entry of judgment in favor of Mr. Miller on the basis that he never answered the suit. In Issue Three, Bluebonnet contends the trial court erred by excluding the documentary evidence offered at trial. As a result, in Issue Four Bluebonnet asserts the trial court erred in entering a take-nothing judgment as the evidence in the record established Mr. Miller’s liability and the amount of damages as a matter , of law. In Issues Five and Six, Bluebonnet contends the trial court erred by failing to comply with its timely request and reminder for findings of fact and conclusions of law. In Issues Seven and Eight, Bluebonnet contends the trial court erred by entering judgment for Mr. Miller on its quantum meruit, unjust enrichment, and account stated claims.

As a preliminary matter, this appeal is before the Court following abatement for entry of findings of fact and conclusions of law. The record has been duly supplemented and the parties have had an opportunity to re-brief in light of the findings. Issues Five and Six are now moot, and are accordingly overruled.

In Issues One and Two, Bluebonnet contends the trial court erred by granting a take-nothing judgment on the basis that Mr. Miller failed to file any answer; verified or otherwise, and therefore admitted the allegations stated in the original petition. These arguments require us to review the trial court’s conclusion of law number one, in which the court determined Mr. Miller filed an answer. However, as there is not a formal answer in the record, we must infer that the trial court determined Mr. Miller’s appearance and filings following the order granting a new trial, served as a substitute for an answer, and therefore put all of Bluebonnet’s allegations at issue. So the question before us is whether or not the trial court was correct in its conclusion. Whether or not Mr. Miller’s actions can serve as an answer substitute is a question of law, which we review de novo. See Watkins v. Debusk, 286 S.W.3d 58, 62 (Tex.App.-El Paso 2009, no pet.).

In its most basic form, i.e., a general denial, a defendant’s answer puts all allegations in the plaintiffs petition which are not required to be specially denied at issue. See Tex.R.Civ.P. 92; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex.1973). The answer must be written, signed by the party or the party’s attorney, and filed with the court clerk who issued the citation. See Tex.R.Civ.P. 57, 99(b). Those claims that must be specially denied are defined by Rule 93. See Tex. R.CivP. 93. When a case falls within one of the categories defined by this rule, a general denial is insufficient; a defendant must provide a verified denial, supported by an affidavit based on personal knowledge. See TexR.Civ.P. 93; Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991). If a verified denial is required, failure to comply "with the rule relieves the plaintiff if its burden of proof. See Roark, 813 S.W.2d at 494.

The facts of this case potentially fall into several Rule 93’s categories:

(4) That there is a defect of the parties, plaintiff or defendant.
(7) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in while or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed.... In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.
(8) A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or an assign-ee and in the absence of such a sworn plea, the indorsement or assignment therefore shall be held as fully proved.

Tex.R.Civ.P. 93(4), (7), and (8).

By failing to file a verified denial of Bluebonnet’s claims, Mr. Miller conclusively admitted: (1) the proper parties were before the court; (2) the validity of the credit card agreement which was the foundation of the suit; and (3) that he was the individual who signed the agreement creating the account. See Tex.R.Civ.P. 93(4), (7), and (8). Incident to these admissions, Mr. Miller also waived evidentia-ry objections to the documents. See Tex. R.Civ.P. 93(7) and (8); Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 891 (Tex.App.-Dallas 1999, no pet.). Therefore, to the extent the trial court concluded Mr. Miller’s “answer” was a verified answer which required Bluebonnet to put on proof of the issues discussed above, the trial court erred. Issue Two is sustained.

Unlike verified denials, however, Texas courts have traditionally treated a wide variety of defendants’ responses sufficient to serve as an answer for the purposes of a general denial. See Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex.1992) (per curiam); Hock v. Salaices, 982 S.W.2d 591, 593 (Tex.App.-San Antonio 1998, no pet.) (“Indeed, the courts have gone to great lengths to excuse defects in answers to prevent the entry of default judgments against parties who have made some attempt, albeit deficient, unconventional, or flat out forbidden under the Rules of Civil Procedure, to acknowledge that they have received notice of the lawsuit pending against them.”). This policy choice in favor of construing defensive responses as “answers” is due to the effect of a defendant’s failure to answer. A non-answering party has admitted all of the plaintiffs allegations, except for the amount of damages to be awarded, and is subject to a default judgment at a time of the plaintiffs choosing. See Tex.R.Civ.P. 239; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992).

The vast majority of opinions that address the sufficiency of a defendant’s answer arise from default judgment cases in which the defendant has responded to the petition with a document that does meet the requirements of a Rule 83 “Original Answer.” See Hughes v. Habitat Apts., 860 S.W.2d 872, 873 (Tex.1993) (default judgment improper as defendant’s pauper’s affidavit was sufficient to constitute an answer); Lippmann, 826 S.W.2d at 138 (default judgment was improperly granted as defendant’s pro se letter to district clerk confirming receipt of citation constituted an answer); Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 658 (Tex.App-San Antonio 2002, no pet.) (letter by non-attorney corporate representative denying claims was sufficient to avoid default judgment, despite defects in form of answer). In this instance, we have the reverse scenario. The record does not contain any document, filed by Mr. Miller, titled “Original Answer.” Indeed the only documents filed by Mr. Miller were: (1) written pretrial objections to the admission of Bluebonnet’s business records; and (2) his post trial brief. The only other record document evidencing Mr. Miller’s contest of the claims against him is the agreed order for new trial, which was signed by his attorney. And yet, the trial court determined Mr. Miller did file an answer, and entered a take-nothing judgment. Because the trial court’s conclusion could only be based on one or more of the documents filed by Mr. Miller, we will review each one to determine if it constitutes an “answer.” See Tex.R.Civ.P. 99(b) (requiring defendant to file a written answer)(Emphasis added).

An “answer” is a type of pleading. Rupert v. McCurdy, 141 S.W.3d 334, 339 (Tex.App.-Dallas 2004, no pet.). Collectively, the pleadings in a case frame the issues which will be determined at trial, and notify the opposing party of the types of evidence it will be called upon to produce to prove or defend its case. See id. We have been unable to locate Texas precedent that treated either a written objection to documentary evidence, or a post-trial brief as a substitute for an answer. There are no parallels between the purposes served by an answer, and the documents at issue here. A brief is directed toward the court to present arguments, and aid the court in its ruling. See generally Tex.R.App.P. 38.1, 38.2 (outlining the required elements for a brief to the appellate court). It has no direct impact on the issues to be determined at trial, and is not intended to provide notice to the opposing party. Similarly, while Mr. Miller’s pretrial evidentiary objections may have notified Bluebonnet that he disagreed about the admissibility of its business records, the objections did not change or re-frame the ultimate issues before the court. We conclude, therefore, that neither document can be considered an “answer” as contemplated by the Rules of Civil Procedure.

Similarly, we cannot consider the document purportedly sent to Bluebonnet after trial as an answer. The only reference to Mr. Miller’s post-trial answer in the record is contained in Bluebonnet’s motion to strike the same. The document was never filed with the trial court clerk, and is absent from the appellate record. Even if Mr. Miller had produced such a document on appeal, we could not consider it because an appellate court cannot consider documents that are not properly part of the appellate record in its review. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.App.-Dallas 2005, pet. denied).

We are left with the agreed motion for new trial. The sole purpose of a motion for new trial is to set aside an existing order; it is not a pleading upon which a case can be tried as it does not invoke the trial court to take action on the merits of the case. See Pardue v. Confederate Air Force, 615 S.W.2d 233, 234 (Tex.Civ.App.-Dallas 1980, writ dism’d). For a default defendant, the new trial presents an opportunity to present a defense. See id. In other words, while the granting of a motion for new trial presents an opportunity for the parties to present their claims and defenses, the motion is not a pleading that can prevent a default. See First State Bldg. & Loan Ass’n. v. B.L. Nelson & Assoc., Inc., 735 S.W.2d 287, 289 (Tex.App.-Dallas 1987, no writ). Therefore, the agreed motion for new trial filed in this case cannot serve as a basis for the trial court’s conclusion that Mr. Miller filed an answer. Because none of the documents filed by Mr. Miller constituted an “answer,” the trial court’s conclusion of law stating an answer had been filed was in error. Mr. Miller failed to file an answer. Issue One is sustained.

Our conclusion this is a “no-answer” case also resolves Issues Three and Four, in which Bluebonnet challenges the trial court’s decision to exclude its business record evidence, and argues it is entitled to judgment for the full amount of the debt based on its, “clear, convincing and uncon-troverted” evidence. Because Mr. Miller wholly failed to answer the suit, he admitted liability as alleged in the petition, and relieved Bluebonnet of its burden of proof. See Tex.R.Civ.P. 239; Siddiqui v. West Bellfort Prop. Owners Ass’n., 819 S.W.2d 657, 658 (Tex.App.-El Paso 1991, no pet.); Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex.App.-Dallas 2005, no pet). Therefore, any potential eviden-tiary error is moot, and Issues Three and Four are overruled.

In Issues Seven and Eight, Bluebonnet contends the trial court erred by concluding it failed to establish its accounts stated, quantum meruit, and unjust enrichment claims. As in Issues Three and Four, our conclusion that Mr. Miller did not file an answer will control the disposition of these points. Bluebonnet’s original petition included claims for breach of contract, accounts stated, quantum merit, and unjust enrichment. In its conclusions of law, the trial court held Bluebonnet failed to establish that Mr. Miller was liable to the entity for any of its causes of action. For the same reasons, the trial court’s conclusion that Mr. Miller filed an answer was in error, the trial court also erred by concluding Bluebonnet failed to establish its causes of action. Regardless of whether these claims could be avoided by general or verified denial, by not answering, Mr. Miller never put Bluebonnet’s liability allegations as to any of the claims at issue. See Argyle Mech., Inc., 156 S.W.3d at 687. Therefore, his liability on those issues was settled, and all that was left for Bluebonnet to prove was the amount of damages owed. See Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 872 (Tex.App.Houston [1st Dist.] 1995, no writ). Accordingly, Issues Seven and Eight are sustained.

Having determined the take-nothing judgment was rendered in error, and that Bluebonnet was entitled to a default judgment, we must determine whether Bluebonnet is also entitled to rendition on its requested damages. See Tex.R.App.P. 43.3. Bluebonnet requests that this Court render judgment for the full amount owing on the account, $15,256.23, plus $750 for attorney’s fees, plus court costs, plus post judgment interest at a rate of 7.25 percent. Texas Rule of Civil Procedure 241 provides:

When a judgment by default is rendered against the defendant ... if the claim is liquidated and proved by an instrument in writing, the damaged shall be assessed by the court, or under its direction, and final judgment shall be rendered therefore, unless the defendant shall demand and be entitled to a trial by jury.

A claim is liquidated if the amount of damages can be accurately calculated by the court from the factual allegations in the petition and written instruments. Aavid Thermal Tech. of Texas v. Irving I.S.D., 68 S.W.3d 707, 711 (Tex.App.-Dallas 2001, no pet.). Unliquidated damages are damages that cannot be accurately calculated by the court based on an instrument in writing, and require the submission of evidence to establish the compensatory amount. See id. Because the damages in this case are established by the factual allegations in the petition, as well as the account statements provided by Bluebonnet, we conclude the damages are liquidated and render judgment for the full amount owing plus attorney’s fees, costs, and post judgment interest.

Having sustained Issues One, Two, Seven, and Eight, we reverse the trial court’s take-nothing judgment and render for Bluebonnet in the amount of $15,256.23, plus $750 for attorney’s fees, plus court costs, plus post judgment interest at a rate of 7.25 percent.

      . Mr. Miller has not appeared in this appeal.

      . Without an answer to guide us, we are forced to infer what defenses Mr. Miller intended to assert to defeat Bluebonnet’s claims. Given the nature of the suit, and Mr. Miller’s arguments during and after trial, we will focus on Paragraphs Four, Seven, and Eight of Rule 93.


text:
    In re: 24R, INC. d/b/a The Boot Jack.
    No. 13-09-00359-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Sept. 22, 2009.
    Rehearing Overruled Nov. 12, 2009.
    Grace S. Bellomy, Law Office of Grace S. Bellomy, Boerne, for relator.
    Ricardo R. Godinez, Law Office of Ricardo R. Godinez, McAllen, for real party in interest.
    Before Justices RODRIGUEZ, GARZA and VELA.
   MEMORANDUM OPINION

MEMORANDUM OPINION

PER CURIAM.

Relator, 24R, Inc. d/b/a The Boot Jack, filed a petition for writ of mandamus requesting that this Court direct respondent, the Honorable Arnoldo Cantu Jr., presiding judge of County Court at Law No. 5 of Hidalgo County, Texas, to vacate his June 2, 2009 order denying relator’s motion to compel arbitration in trial court cause number CL-08-1074-E. On June 26, 2009, we granted relator’s motion for an emergency stay of the trial court proceedings and requested a response to the petition from the real party in interest, Frances S. Cabrera. Cabrera filed a response on September 14, 2009.

Having examined and fully considered relator’s petition, Cabrera’s response thereto, and the other documents on file, this Court is of the opinion that the relator has not shown itself entitled to the relief sought and the petition should be denied. Accordingly, relator’s petition for writ of mandamus is DENIED. Having denied the petition, we hereby LIFT the emergency stay of proceedings previously imposed by this Court in trial court cause number CL-08-1074-E.

      . See Tex.R.App. P. 47.4 (distinguishing opinions and memorandum opinions), 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so.”).


author: SAM NUCHIA, Justice (Retired).

text:
    BROWN & BROWN OF TEXAS, INC. f/k/a Poe & Brown of Texas, Inc. and Transcontinental Insurance Company, Appellants, v. OMNI METALS, INC., Appellee.
    No. 01-05-01190-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 17, 2009.
    Henry S. Platts Jr., Beirne, Maynard & Parsons, LLP, Houston, TX, Russell J. Bowman, Scott, Bowman & Stella, Dallas, TX, for Appellants.
    Mark C. Harwell, Cotham, Harwell & Evans, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HIGLEY, and NUCHIA.

       Justice Sam Nuchia, who retired from the First Court of Appeals effective January 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on February 13, 2007.

   DISSENTING OPINION ON MOTION FOR EN BANC RECONSIDERATION

SAM NUCHIA, Justice (Retired).

I respectfully dissent. I believe the dis-positive issue in this appeal is whether a person who is not a party to an insurance policy can nonetheless recover from the insurance company or its agent because of incorrect information regarding the scope of coverage. Here, the noninsured person sued the insurance company and its agent on negligence and DTPA theories based on the insurance agent’s oral statement and written certificate of insurance, which both erroneously represented that coverage existed for the uninsured person’s property. Following the Texas Supreme Court’s opinion in Via Net v. TIG Insurance Co., I would hold that because the existence of coverage is a question of law to be determined by interpreting the insurance policy itself, a person who is not a party to an insurance policy cannot recover from the insurance company or its agent based on information outside of the actual policy. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex.2006).

The equities in this appeal are mixed. There is testimony that Danny Sparks, an agent for Jacobe and later Poe & Brown, incorrectly described the stored-property policy exclusion to Blake McKnight, Port Metal’s president. Sparks testified that by June 1993 he knew that Port Metal was charging a storage fee to its customers like Omni and that he failed to explain to McKnight that the insurance policy excluded the steel Omni was storing at Port Metal. The 1993 certificate contains the incorrect statement that Port Metal’s insurance coverage “INCLUDES PROPERTY OF OTHERS IN CUSTODY OF INSURED.” The 1994 and 1995 certificates contain the statement that the insurance covers “all risk.”

On the other hand, McKnight testified that he did not read the 1995 insurance policy in effect at the time of the fire and that he was aware that Poe & Brown had recommended that he review the policy carefully. Omni’s president, Arthur Tomes, testified at trial that he did not read the disclaimer and that it would not have made a difference to him if he had read the disclaimer:

Q. Now when you received, or when Omni would receive a certificate of insurance, what was done with it?
[Tomes] They would be put in a file.
Q. All right. Did you personally read and review every single certificate of insurance that came across to Omni?
[Tomes] No.
Q. Why not?
[Tomes] I would never — I mean, I’m assuming that what we are expecting to get under coverage — the coverage would be what they told us it was and that, you know, those would just be put in the file for our edification.
If someone asked us — or the bank or someone else, I mean, I would — I wouldn’t read a policy. I don’t think anybody reads their insurance policies from front to bottom.
Q. Did you actually receive the insurance policy rather than the certificate of insurance?
[Tomes] No.
Q. Did you ever ask for an insurance policy?
[Tomes] No.
Q. Did you ever ask for an insurance policy from Poe & Brown related to Port Metal Processing?
[Tomes] No.
Q. Why not?
[Tomes] Because we would think that the certificate of insurance would be adequate to cover what we needed.

Regardless of the equities, we must determine whether the law requires people to read insurance contracts, or whether it allows them to rely on extra-contractual statements. I recognize there is no simple policy answer to this question. If the law requires that the actual policy controls over any other written or oral statements, including certificates of insurance, then there is a significant burden on anyone relying on the promise of insurance to verify that the desired coverage actually exists. Conversely, allowing reliance on extra-contractual statements puts a significant burden on the insurance industry. The resolution of this issue ultimately should be decided by the Texas Supreme Court, and I believe that court has strongly indicated in Via Net that extra-contractual statements will not control.

In both Poe & Brown’s issue 1 and Transcontinental’s issues 3 and 4, the two appellants argue that Omni could not detrimentally rely on either the certificates of insurance or the statements from Sparks that McKnight passed on to Tomes. Both the negligent misrepresentation and DTPA claims submitted to the jury in questions 1 and 3 require detrimental reliance. See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex.2002). It has long been the law that a party to an arm’s length transaction must exercise ordinary care and reasonable diligence for the protection of his own interests, and a failure to do so is not excused by mere confidence in the honesty and integrity of the other party. Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex.1962). Even a party to a contract must exercise due diligence to protect its own interests. See Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 840 (Tex.1968).

Insurance policies are interpreted according to the rules of contract construction. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). If the insurance policy is worded so that it can be given a definite meaning or a certain legal meaning, then the policy is not ambiguous. Id. If the policy is not ambiguous, then the court construes the policy as a matter of law. Id. No party to this appeal has claimed that the insurance policy is ambiguous, so the issue of whether the insurance policy provided coverage for Omni is one for the court to decide as a matter of law. Here, Omni was not even a party to the insurance contract, yet Omni neither requested a copy of the insurance policy, nor read the certificate of insurance that clearly stated that the certificate could not change the terms of the insurance policy. Tomes, Omni’s president, testified that he chose instead to rely on “what we are expecting to get under coverage — the coverage would be what they told us it was.”

The supreme court in Via Net acknowledged certificates of insurance are of little use if a contracting party must verify them by reviewing the full insurance policy. 211 S.W.3d at 314. Nevertheless, the court proceeded to say that “those who take such certificates at face value do so at their own risk.” Id. I would hold that under Via Net, Port Metal, the insured, could not rely on the certificate of insurance.

Here, Omni chose to rely only on oral representations, something even a party to a contract cannot do when the oral representation directly contradicts the express, unambiguous terms of a written contract. See DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854, 858-59 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (en banc). Tomes not only said he did not request or read the actual insurance contract, but he also said he did not even read the certificates of insurance that were sent to him: “I mean, I’m assuming that what we are expecting to get under coverage — the coverage would be what they told us it was and that, you know, those would just be put in the file for our edification.” Tomes’s decision not to read the certificates of insurance cannot insulate Omni from the disclaimer on the certificates: “THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS ON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”

Following the reasoning of Via Net, I would hold as a matter of law that Omni could not detrimentally rely on either the certificates of insurance or the oral representations in order to recover on its negligent misrepresentation and DTPA claims. I would, therefore, reverse the judgment of the trial court and render judgment that Omni take nothing.

Finally, I question the use of the law-of-the-case doctrine in this appeal. That doctrine in Texas is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. See Hudson v. Wakefield, 711 S.W.2d 628, 680 (Tex.1986). The Fourteenth Court is not a court of last resort. I do not fault the majority, however, because the supreme court has seemingly modified the doctrine without explanation to remove the necessity of an appeal to a court of last resort. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003). If a petition for review is taken to the supreme court, that court should clarify how the law-of-the-case doctrine applies when a previous appeal went no further than the court of appeals.

      . Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon Supp.2009).

      .
      QUESTION NO. 1
      Did one or more of the Defendants make a negligent misrepresentation on which Omni Metals, Inc. justifiably relied?

      .
      QUESTION NO. 3
      Did one or more of the Defendants engage in any unfair or deceptive act or practice that caused damages to Omni Metals?
      "Unfair or deceptive act or practice" means any of the following:
      (1) representing that goods or services had or would have characteristics that they do not have; or
      (2) representing that an agreement confers or involves rights that it does not have or involve.

      . Via Net’s treatment of certificates of insurance was foreshadowed 19 years ago in a dissent by Justice Hecht:
      The Court seems to say this: if you pay someone for some kind of insurance and he gives you a card that says you are insured, but you never contact an insurer or an agent and you never see a policy, but you still believe in your heart that you are insured, then you may very well be insured. This Cartesian theory of insurance — "I believe, therefore I am insured” — is not only far-fetched, it is completely unworkable. What are the limits of the coverage the Court thinks [the employee/truck owner] might have? The minimum statutory limits that the card referred to? The limits of [the employer/insured’s] policy? The limits [the employee] wishes he had, or that [the injured passenger] hopes he had? What are the terms of this imaginary policy? The standard terms, whatever those are? The terms [the employee] thought he had? At the trial of this case, will the jury be asked to make up some terms and limits and coverages for this made-up policy? Or is it all much simpler? Will the jury simply be asked to award punitive damages against [the insurer] for allowing [the employee] to believe he was insured when he was not? The Court does not attempt to answer any of these questions.

        Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 29 (Tex.1990) (Hecht, J., dissenting, joined by three justices).

      . The doctrine may have its roots in the Byzantine history of the appellate jurisdiction of the Texas Supreme Court. See Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 664-65 (Tex.2008), cert. denied, — U.S. --, 129 S.Ct. 2767, 174 L.Ed.2d 284 (2009). In any event, no general statute or rule yet requires that appeals which are transferred by the supreme court from one court of appeals to another must return to that same court of appeals on a subsequent appeal, so the proper application of the law-of-the-case doctrine is an issue of significant importance to appellant practitioners. See Tex. Gov’t Code Ann. §§ 73.001-.003 (Vernon 2005) (authorizing transfer of cases); Tex.R.App. P. 41.3 (precedent in transferred cases). But see 1st Tex.App. (Houston) Loe. R. 1; 14th TexApp. (Houston) Loe. R. 3 (effective December 7, 2006, requiring related appeals and original proceedings in First and Fourteenth Courts of Appeals to be assigned consistently to single court of appeals).


author: JAMES T. WORTHEN, Chief Justice.

text:
    Millard VAUGHN and, Barbara Vaughn, Appellants, v. Paul DRENNON and, Mary Drennon, Appellees.
    No. 12-09-00064-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 31, 2009.
    Rehearing Overruled Feb. 25, 2010.

      Darrin Walker, Clayton E. Dark, Luf-kin, for Appellants.
    John H. Seale, Jasper, for Appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

Millard and Barbara Vaughn own a parcel of land that shares a common boundary line with land owned by Paul and Mary Drennon. The two couples filed lawsuits against each other due to their inability to peacefully resolve disputes that arose between them. A jury returned mixed results for each side and the trial court disregarded portions of the jury verdict. Only the Vaughns appeal from the trial court’s judgment, complaining of the portions that are adverse to them. Because the judgment is not final, we dismiss for want of jurisdiction.

Jurisdiction

Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993). As a general rule, with a few mostly statutory exceptions, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Rule 301 of the Texas Rules of Civil Procedure requires the judgment to conform to the pleadings. Tex.R. Civ. P. 301. Accordingly, a judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Lehmann, 39 S.W.3d at 195. A final judgment is one that determines the rights of the parties and disposes of all the issues involved so that no future action by the trial court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 338, 295 S.W.2d 890, 892 (1956).

Texas has long recognized a presumption of finality for judgments that follow a conventional trial on the merits. Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex.2003). Moreover, finality must be resolved by a determination of the intention of the trial court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 718 (Tex.2003) (Jefferson, J., concurring). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Tex.R.App. P. 42.3(a); Wells v. Driskell, 105 Tex. 77, 81, 145 S.W. 383, 336 (1912).

While previous litigation between the two couples was still not finalized, the Vaughns sued Paul and Mary Drennon. In a separate action, the Drennons sued the Vaughns. When the Vaughns filed their amended petition, they named as defendants not only the Drennons, but also the Drennons’ grandchildren, Chase Atwood and Taylor Atwood. The trial court consolidated the two cases. All defendants were served and filed answers.

Neither the jury charge nor the judgment mentions Chase or Taylor Atwood. There is no language in the judgment expressly disposing of the entire case. The record contains no documents disposing of the claims against the Atwood defendants. At oral argument, we inquired about the disposition of these two parties. The Vaughns responded with a postsubmission letter brief in which they state that “[t]he Atwood Defendants were never explicitly dismissed or nonsuited, nor were the claims against them severed.” In spite of this admission, the Vaughns argue that we should apply a presumption of finality to the judgment. The Vaughns also argue that the judgment is final because the trial court and the parties intended it to be final. Finally, they assert that we may abate the appeal to permit the trial court to clarify its intentions or modify the judgment to make it final.

There is nothing in the record to indicate that the claims against the Atwood defendants were disposed of or how the parties intended to dispose of the claims against the Atwood defendants. The language of the judgment does not unequivocally express an intent to dispose of all claims and all parties; instead it specifically disposes of only the Vaughns’ claims against the Drennons and the Drennons’ claims against the Vaughns. Because the judgment does not address all pending claims, either explicitly or implicitly, the judgment is not final. Crites v. Collins, 284 S.W.3d 839, 841 (Tex.2009). Neither the language of the judgment nor the remainder of the record indicates that the parties or the trial court intended the judgment to be a final and appealable order. Accordingly, the trial court’s judgment is interlocutory in nature and the presumption of finality does not apply. See Moritz, 121 S.W.3d at 719.

We are prohibited from dismissing an appeal if the trial court’s erroneous action or inaction prevents the proper presentation of an appeal and can be corrected by the trial court. Tex.R.App. P. 44.4(a). The appellate court may allow an appealed order that is not final to be modified so as to be made final. Tex.R.App. P. 27.2. If an appellate court is uncertain about the intent of the trial court’s order, it may, in some cases, abate the appeal to permit clarification by the trial court. See Lehmann, 39 S.W.3d at 196. However, we do not construe the rules of appellate procedure as conferring authority on an appellate court to abate an appeal while there are significant issues yet to be decided by the trial court. See Garcia v. Comm’rs Court, 101 S.W.3d 778, 785-86 (Tex.App.-Corpus Christi 2003, no pet.). We cannot conclude from the record that the determination of the remaining issues in this case would not require more than the disposition of perfunctory issues that can be procedurally cured by the trial court’s entering a clarifying or similar order. See id. at 786. Thus, while we are loathe to delay this already protracted litigation, abatement in this case would be inappropriate. Accordingly, we hold there is no final, appealable judgment before this court over which we have jurisdiction, and that we cannot abate the appeal until a final judgment is before us.

Disposition

Because the record does not affirmatively demonstrate our jurisdiction, the appeal is dismissed for want of jurisdiction.

      . An order that does not dispose of all pending parties and claims may also be final for purposes of appeal in some instances not applicable here, e.g., probate cases. See Lehmann, 39 S.W.3d at 195.