author: Justice O’NEILL

text:
    STATE FARM LLOYDS and Erin Strachan, Petitioners, v. Wanda M. PAGE, Respondent.
    No. 08-0799.
    Supreme Court of Texas.
    Argued Nov. 19, 2009.
    Decided June 11, 2010.
    Rehearing Denied Aug. 20, 2010.

      Levon G. Hovnatanian, Christopher W. Martin, Martin Disiere Jefferson & Wisdom LLP, Houston, TX, Sydney Lynn Hewlett, Melinda Ruth Burke, Shannon Gracey Ratliff & Miller LLP, Fort Worth, TX, for Petitioners.
    John Foster Melton, Melton & Kumler, L.L.P., Austin, TX, William Allen Kendall Jr., William A. Kendall, P.C., Dallas, TX, for Respondent.
   Justice O’NEILL

delivered the opinion of the Court.

Once again we are called upon to interpret the Texas Standard Homeowner’s Policy-Form B, in this instance to decide whether it affords coverage for mold contamination resulting from plumbing leaks. We hold that when a plumbing leak results in mold contamination, the policy covers mold damage to personal property but not to the dwelling. Accordingly, we reverse the court of appeals’ judgment in part, affirm in part, and remand to the trial court for further proceedings.

I. Background

State Farm Lloyds issued Wanda Page a Texas Standardized Homeowners Policy — Form B (“HO-B”) to insure her dwelling and its contents. In June 2001, Page discovered mold and water damage to her home and some of her personal property. She filed a claim with State Farm pursuant to her homeowner’s policy. Erin Stra-chan, a State Farm claims specialist, was assigned Page’s claim. At Straehan’s behest, a plumber tested Page’s plumbing system and discovered leaks in the sanitary sewer lines. Strachan then hired Industrial Hygiene & Safety Technology, Inc. (“IHST”) to perform an indoor environmental quality assessment. The assessment revealed a variety of different molds growing in the home. To abate the mold, IHST recommended that Page remediate the structure and some of its contents.

Following IHST’s recommendation, Page sought and received an estimate for remediation. In January 2002, State Farm provided Page with drafts in the amount of $12,644 to cover remediation and repair of the structure, and $13,631 to cover personal property remediation and three months of living expenses while the work was performed. In May 2002, Page sought additional funds to repair damage to her carpet, which State Farm refused to pay. A dispute ensued over the amounts needed to fully remediate and repair the home and its contents.

In September 2004, Page filed suit against State Farm alleging breach of contract, breach of the duty of good faith and fair dealing, fraudulent misrepresentation, and DTPA and Insurance Code violations. She also sued Strachan, alleging violations of the DTPA and the Insurance Code. About a year after the suit was filed, Page provided State Farm with an estimate for remediating her attic, and State Farm sent her $13,042 to cover the cost.

State Farm and Strachan (hereafter collectively “State Farm”) filed no-evidence and traditional summary judgment motions, claiming entitlement to judgment as a matter of law on Page’s breach of contract claim. State Farm argued that the HO-B policy expressly excludes coverage for all mold damage, there was no evidence that the mold damage resulted from a covered peril, and there was no evidence that Page was owed additional money. Because Page’s breach of contract claim was not viable, State Farm contended, summary judgment was proper on her extra-contractual claims as well. The trial court initially denied State Farm’s motions. After our decision in Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex.2006), however, the trial court reconsidered and granted summary judgment in State Farm’s favor disposing of Page’s mold-related claims. The court of appeals reversed, holding that Page’s HO-B policy covered mold damage to the dwelling and its contents. 259 S.W.3d 257. We granted State Farm’s petition to consider the extent of coverage Page’s HO-B policy affords for mold contamination resulting from plumbing leaks.

II. Discussion

When analyzing an insurance contract, we are guided by the well-established principles of contract construction. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). Our primary goal is to determine the contracting parties’ intent through the policy’s written language. See id.; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). We must read all parts of the contract together, giving effect to each word, clause, and sentence, and avoid making any provision within the policy inoperative. See Beaston, 907 S.W.2d at 433; Forbau, 876 S.W.2d at 133. Our analysis of the policy is confined within the four corners of the policy itself. See Houston Lighting & Power Co. v. Tenn—Tex Alloy & Chem. Corp., 400 S.W.2d 296, 300 (Tex.1966). Whether a particular provision or the interaction among multiple provisions creates an ambiguity is a question of law. See Nat’l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex.1995). The fact that the parties may disagree about the policy’s meaning does not create an ambiguity. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 465 (Tex.1998). Only if the policy is subject to two or more reasonable interpretations may it be considered ambiguous. See id. With these principles in mind, we turn to the policy language in issue.

A. The Policy

The standard HO-B policy before us separately provides coverage for the dwelling (Coverage A) and its contents (Coverage B). Specifically, the policy provides:

SECTION I — PERILS INSURED AGAINST
COVERAGE A (DWELLING)
We insure against all risks of physical loss to the property described in Section I Property Coverage, Coverage A (Dwelling) unless the loss is excluded in Section I Exclusions.
COVERAGE B (PERSONAL PROPERTY)
We insure against physical loss to the property described in Section I Property Coverage, Coverage B (Personal Coverage) caused by a peril listed below, unless the loss is excluded in Section I Exclusions.
* * *
9. Accidental Discharge, Leaking or Overflow of Water or Steam from within a plumbing, heating or air conditioning system or household appliance.
A loss resulting from this peril includes the cost of tearing out and replacing any part of the building necessary to repair or replace the system or appliance. But this does not include loss to the system or appliance from which the water or steam escaped.
Exclusions l.a. through l.h. under Section I Exclusions do not apply to loss caused by this peni.
* * *

(Bold in original, italics added). The last sentence excepting Exclusions l.a. through l.h. from the Section I Exclusions is commonly known as the “exclusion repeal provision.”

Under Coverage A, the dwelling is insured against “all risks” except those excluded in Section I Exclusions. Under Coverage B, on the other hand, personal property is only insured against twelve enumerated perils, plumbing leaks being one. As with Coverage A, Coverage B is limited by the exclusions listed in Section I Exclusions. Those exclusions are as follows:

SECTION I EXCLUSIONS
1. The following exclusions apply to loss to property described under Coverage A (Dwelling) or Coverage B (Personal Property)....
f. We do not cover loss caused by:
(2) rust, rot, mold or other fungi.
We do cover ensuing loss caused by collapse of building or any part of the building, water damage or breakage of glass which is pai’t of the building if the loss would otherwise be covered under this policy. * * *

In interpreting the foregoing provisions, the parties before us start at different points. State Farm begins with our decision in Fiess, contending we unequivocally construed the same policy there to exclude all mold damage to a dwelling irrespective of its cause. Page responds that our holding in Fiess only concerned mold from roof and window leaks, not mold damage caused by plumbing leaks, and points to our holding in Balandran v. Safeco Insurance Company, 972 S.W.2d 738 (Tex.1998), as controlling. As Page reads Balandrán, the mold exclusion and the exclusion repeal provision, when read together, expressly cover mold damage caused by plumbing leaks or at the very least create an ambiguity, affording coverage under the policy in either event. Although we agree with State Farm that Page’s policy does not afford coverage for mold damage to her dwelling, neither Balandrán nor Fiess is directly on point.

B. Fiess

In Fiess, Tropical Storm Allison caused flood damage to the Fiesses’ home. 202 S.W.Bd 744. An inspection revealed that the flooding had caused some mold contamination, but the bulk of the mold was caused by roof leaks, plumbing leaks, leaks in the HVAC system, exterior door leaks, and window leaks, all of which had occurred before the storm. Id. In the course of the ensuing litigation over the scope of the Fiesses’ mold coverage, the United States Court of Appeals for the Fifth Circuit certified to us the question whether the ensuing-loss provision in part l.f of the HO-B policy’s Section I-Exclusions provided coverage for mold contamination caused by water damage that is otherwise covered under the policy. Id. at 745-46. Concluding there was no ambiguity in the policy language, we answered that it did not. First, we reasoned that the ensuing-loss provision reinstates coverage only as to “losses caused by an intervening cause (like water damage) that in turn follow from an exclusion listed in paragraph 1(f).” Id. at 749 (citing Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138 (Tex.Civ.App.-San Antonio 1975, writ. refd)). In other words, the water damage must be the result, not the cause, of the types of damage that the coverage exclusions enumerate. Id. We also reasoned that the ensuing loss must be caused by water damage, not merely water, else the insurance policy would become a maintenance agreement. Id. at 750. We thus concluded that the ensuing-loss clause did not reinstate coverage for otherwise excluded mold damage.

While our decision in Fiess was unquestionably broad, we cannot say that it unequivocally vitiated coverage for all mold damage no matter the cause, as State Farm claims. We specifically noted that the Fiesses “failed to preserve a claim for mold caused by air-conditioning and plumbing leaks.” Id. at 750 n. 26. And we expressly declined to address personal property coverage for mold damage that resulted from plumbing leaks because the Fiesses failed to appeal that issue. Id. at 746 n. 3. Nevertheless, our policy interpretation in Fiess is more consistent with State Farm’s position today than with Page’s reading of the policy language. See Carrizales v. State Farm Lloyds, 518 F.3d 343, 348 (5th Cir.2008).

C. Balandrán

Page contends our decision in Balan-drán controls interpretation of her HO-B policy, and the court of appeals agreed. There, the Balandrans sued to recover damage to their dwelling caused by foundation movement resulting from an underground plumbing leak. 972 S.W.2d at 739. We examined exclusion l.h concerning foundation damage in light of the exclusion repeal provision. Id. For two reasons, we concluded that the policy’s language and structure were subject to different, but reasonable, interpretations and thus created an ambiguity. Id. at 741. First, we noted that the repeal of exclusion l.h expressly applied to “loss” caused by a plumbing leak, and was not by its terms limited to “personal property loss.” Id. That the repeal provision is contained in Coverage B, we said, did not necessarily limit its application to Coverage B, as the provision could have been placed where it was “simply because that is the only place in the policy that the ‘accidental discharge’ risk is specifically described.” Id. Second, we determined that the insurer’s construction of the policy would render part of the policy language meaningless. Id. If the repeal provision applied only to personal property under Coverage B, exclusion l.h would mean nothing as that exclusion, on its face, only applies to damage to the dwelling under Coverage A. Id. Finally, we noted the reasonableness of the Balan-drans’ interpretation in light of the circumstances surrounding the policy’s drafting, which indicated that placement of the exclusion repeal provision in Coverage B was intended merely to simplify the policy and not to restrict then-available coverage for foundation damage resulting from a plumbing leak. Id. at 742. Concluding that both the insurer’s and the insured’s interpretation of the policy language were reasonable, we held that the policy was ambiguous. Id. Because the ambiguity involved an exclusionary provision of an insurance policy, we adopted the construction urged by the Balandrans and held that the policy provided coverage for the damage to their foundation. Id. at 742.

The court of appeals, broadly applying Balandrán to this case, held that the entire exclusion repeal provision is ambiguous even though our Balandrán analysis was confined to the foundation damage exclusion contained in l.h. 259 S.W.3d at 263. Page contends the court of appeals’ sweeping application was proper because our analysis was based, at least in part, upon the repeal provision’s reference to “loss” rather than “personal property loss,” and on the drafters’ intent that there be no substantive change in coverage under the redrafted policy. As to the latter point, our decision in Fiess made clear that an ambiguity may not be created by extrinsic evidence concerning the prior HOB policy. 202 S.W.3d at 747. Moreover, there is nothing to indicate that the prior version of the policy unambiguously covered mold damage resulting from plumbing leaks as it did for foundation damage. Balandran, 972 S.W.2d at 742. As to the former point, that the exclusion repeal provision expressly applies to “loss” caused by a plumbing leak and is not by its terms limited to “personal property loss,” we are not persuaded that this policy wording, in isolation, can bear the weight of rendering the entire repeal provision ambiguous. Instead, we must examine the policy language in light of the particular policy exclusion in issue, reading all parts of the policy together and “giving meaning to every sentence, clause, and word to avoid rendering any portion inoperative.” Fiess, 202 S.W.3d at 748 (citing Balandran, 972 S.W.2d at 741; Liberty Mut. Ins. Co. v. Am,. Emp. Ins. Co., 556 S.W.2d 242, 245 (Tex.1977); Pan Am. Life Ins. Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787, 790 (I960)).

D. Mold Damage to the Dwelling

In Balandrán, we held that the exclusion repeal provision was ambiguous with respect to exclusion l.h because the exclusion for foundation damage was specifically limited to Coverage A. In other words, because the losses excluded under l.h — losses caused by “settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools” — applied only to the dwelling under Coverage A, to hold that repeal of the l.h exclusion only applied to personal property under Coverage B would make no sense. Balandrán, 972 S.W.2d at 741. That is not the case with the l.f mold exclusion, because the exclusion’s plain language stating that it applies to property loss under Coverage A (Dwelling) and Coverage B (Personal Property) can be given full effect. To hold that the exclusion repeal provision reinstates coverage for mold damage under both Coverage A and Coverage B would render the mold exclusion entirely nugatory. On the other hand, limiting the l.f repeal provision to coverage B where it appears in the policy does not render the repeal provision wholly inoperative as it did in Balandrán.

Our interpretation of Page’s policy comports with the Fifth Circuit Court of Appeals’ reasoning in Carrizales v. State Farm Lloyds, 518 F.3d at 348. There, the Carrizaleses sued State Farm contending their homeowners’ policy — the same policy at issue here — provided coverage for mold contamination in their garage caused by plumbing leaks. Id. at 344. Making an AVie-guess about how we would decide the question now before us, id. at 345 (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 406 (5th Cir.2004)), the Fifth Circuit concluded that the interaction between the mold exclusion provision and the exclusion repeal provision under Coverage B did not create an ambiguity. Id. at 346. Although the repeal provision is located in the section of the policy that deals with plumbing leaks, the court said, “it does not follow that every exclusion is repealed with respect to plumbing leaks.” Id. at 348. Looking at each policy provision and determining its effect in light of the repeal provision, the court concluded: “we cannot envision the role the mold exclusion would play if Coverage A (implicitly) as well as Coverage B (explicitly) covered mold damage resulting from plumbing leaks.” Id. Neither can we. There is no reason apparent from the policy language that would indicate the exclusion repeal provision applies to the mold exclusion under Coverage A; to construe the repeal provision to reinstate mold coverage for Page’s dwelling would wholly ignore the structure of the policy. See id. at 352 (Reavley, J., concurring).

E. Mold Damage to Personal Property

While the exclusion repeal provision does not reinstate coverage for mold damage to the dwelling under Coverage A, it does apply to remove personal property damage from the l.f mold exclusion, as the court of appeals held. 259 S.W.3d at 264. As the Fifth Circuit in Carrizales reasoned with respect to Section 9’s coverage of personal property loss caused by plumbing leaks, “[its] operation on exclusion 1(f) gives effect precisely to what its location in the text of Form B implies: Mold damage to personal property caused by accidental discharge is covered.” 518 F.3d at 347. We agree. Section 9’s unambiguous language states that “[e]xclusions l.a. through l.h. under Section I Exclusions do not apply to loss caused by this peril.” “This peril” refers to plumbing leaks which affect the insured’s personal property. Accordingly, Page’s claims for mold damage to her personal property resulting from plumbing leaks are covered under the HOB policy.

F. State Farm’s Summary Judgment Points

State Farm moved for summary judgment on both traditional and no-evidence grounds. Arguing in its traditional summary judgment motion that Page’s HO-B policy affords no coverage for mold damage to her home or its contents, State Farm argued alternatively that Page had presented no evidence that a covered peril caused the mold contamination or that State Farm owed more than it had already paid under the policy. State Farm reurg-es those same grounds here with respect to Page’s personal property, and contends the court of appeals made a number of errors in reviewing the evidence Page presented to defeat State Farm’s no-evidence motion. Because the trial court’s summary judgment was sustainable on no-evidence grounds, State Farm contends, the court of appeals erred in reversing it. We need not address State Farm’s challenges to the evidence the court of appeals considered, however, because State Farm’s no-evidence points were not properly preserved.

The trial court originally denied both State Farm’s traditional and no-evidence summary judgment motions. After our decision in Fiess, State Farm filed a motion requesting that the trial court reconsider its ruling. State Farm argued that our decision in Fiess clearly disposed of Page’s claims because the HO-B policy does not cover mold damage to either the dwelling or its contents caused by a plumbing leak. State Farm’s motion for reconsideration did not reurge its no-evidence challenge, as Page pointed out in her objection to the motion and throughout her appeal. Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). Because State Farm’s motion for reconsideration was limited to the coverage issue, the points pertaining to State Farm’s no-evidence motion were not properly before the court of appeals and we do not address them.

G. Page’s Extra-contractual Claims

In addition to her breach of contract claims, Page also brought extra-contractual claims against State Farm and Straehan. When the issue of coverage is resolved in the insurer’s favor, extra-contractual claims do not survive. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005) (per curiam). There can be no liability under either Article 21.55 or Article 21.21 of the Insurance Code if there is no coverage under the policy. Similarly, to the extent the policy affords coverage, extra-contractual claims remain viable. Accordingly, to the extent Page’s extra-contractual claims are based on State Farm’s denial of coverage for mold damage to her dwelling, they cannot survive. To the extent Page’s extra-contractual claims are based upon denial of her claim for mold damage to the contents of her home, we remand them to the trial court for further proceedings.

H. Strachan’s Remaining Points

Straehan further contends the court of appeals erred in reversing the trial court’s summary judgment in her favor because (1) Page’s summary judgment response did not preserve error as to Straehan, (2) Page’s appellate brief did not properly assign error as to her, and (3) Page’s “general point of error” is insufficiently specific to preserve her argument that the trial court erred in granting Straehan summary judgment. In rejecting these arguments, the court of appeals concluded that Page had sufficiently challenged the trial court’s summary judgment in Strachan’s favor in both her summary judgment response and her appellate briefing. 259 S.W.3d at 271-72. We agree with the court of appeals and reject Strachan’s remaining points.

III. Conclusion

For the foregoing reasons, we reverse the court of appeals’ judgment in part, affirm in part, and remand to the trial court for further proceedings.

      . State Farm argued against coverage for personal property damage in the court of appeals, but apparently has since abandoned that argument in this Court.

      . Page’s response to State Farm's motion to reconsider stated:
      As Defendants' Motion for Reconsideration appears to only address Fiess v. State Farm Lloyds (see below) ruling and its effect on coverage afforded Ms. Page under her HOB policy with State Farm, Plaintiff's response will address this issue.

      . Page filed suit against State Farm and Stra-chan in 2004. At that time, Article 21.21 and Article 21.55 of the Insurance Code were in effect. Each has since been repealed and recodified. Article 21.21 was repealed in 2003, effective March 31, 2005. Act of May 10, 2001, 77th Leg., R.S., ch. 290, § 1, 2001 Tex. Gen. Laws 548, repealed by Act of May 20, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 4138. It was recodified under sections 551.001-.454 and section 543.001 of the Insurance Code. Similarly, Article 21.55 was repealed in 2003, effective March 31, 2005. Act of May 27, 1991, 72nd Leg., R.S., ch. 242, § 11.03(a), 1991 Tex. Gen. Laws 1045, repealed by Act of May 20, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 4138. It was recodified under sections 542.051-.061 of the Insurance Code.


source: Caselaw Access Project

author: Justice WILLETT

license: Public Domain

text:
    Maria del Carmen Guilbot Serros de GONZALEZ, et al., Petitioners, v. Miguel Angel Gonzalez GUILBOT, Carlos A. Gonzalez Guilbot, and Maria Rosa del Arenal de Gonzalez, Respondents.
    No. 08-0961.
    Supreme Court of Texas.
    Argued Jan. 21, 2010.
    Decided June 11, 2010.
    Rehearing Denied Aug. 20, 2010.

      Daryl L. Moore, Daryl L. Moore, P.C., Hector Garcia Longoria, Heard Robins Cloud & Lubel LLP, Houston, TX, Thomas R. Phillips, Martha G. Newton, Baker Botts L.L.P., Austin, TX, for Petitioners.
    Andres Perez-Chaumont, Armando Lopez, Armando Lopez, P.C., William “Andy” Taylor, Andy Taylor & Associates, P.C., Eric D. Nielsen, The Nielsen Law Firm, P.C., Houston, TX, for Respondents.
   Justice WILLETT

delivered the opinion of the Court.

This appeal concerns two issues: (1) the procedure required to revest a state court with jurisdiction after remand from federal court, and (2) the definition of “tertiary recusal motion” in Texas Civil Practice and Remedies Code section 30.016. We agree with the court of appeals that the hand-filing of a remand order in state court is sufficient to transfer jurisdiction back to state court. However, the court of appeals erred in holding that section 30.016’s reference to a “tertiary recusal motion” is limited to a third motion filed by the same party against the same judge. Accordingly, we affirm the court of appeals’ judgment in part and reverse it in part, and remand to that court with instructions.

I. Background

This intra-family dispute concerns the ownership and control of several food and beverage businesses formerly owned by Miguel Angel Luis Gonzalez y Vallejo, now deceased. Miguel was married to Maria del Carmen Guilbot Serros de Gonzalez, and together they had nine children. When Miguel died in 2003, his will was probated in Harris County. In May 2004, Maria, individually and as independent administrator of Miguel’s estate, along with several of the children (Plaintiffs) filed suit in probate court against several defendants including two of Miguel and Maria’s sons, Carlos and Miguel (Defendants), for stealing from the family businesses. In June 2006, Judge Mike Wood determined that Defendants had produced forged stock certificates during discovery in order to claim majority ownership of certain family businesses. Judge Wood issued sanctions prohibiting Defendants from further claiming or disputing ownership of the corporations, and set a trial on damages for January 8, 2007.

A. Remand

On November 14, 2006, Judge Wood gave notice of a hearing to be held November 27. Before the hearing, Defendants removed the case to federal district court alleging there was complete diversity of citizenship. Nevertheless, Plaintiffs’ counsel, Hector Longoria, appeared at the hearing and spoke with Judge Wood in open court and on the record. When Judge Wood asked about the status of the case, Longoria replied that the case had been removed, and that he was “going to do what I need to do to try to get it remanded back to here.” Judge Wood stated, “I’ve had a lot of experience in removals.... I can’t do anything.” Judge Wood cautioned Longoria to “read carefully the statutes,” and told him that “if the Order of Remand comes, then I would suggest that you bring a certified copy of it and give it to the clerk of this Court.”

On December 14, 2006, the federal district court signed and entered an order of remand and ordered Defendants to pay $7,500 in attorney fees because Defendants had “no objectively reasonable basis to believe removal of this case was proper.” That same day, the court provided to Lon-goria certified copies of the federal court docket sheet, memorandum on remand, and order of remand. The docket sheet indicates that these were given to “plaintiffs counsel so that they can be expedited by hand delivery to Harris County Court no. 2.” Longoria hand-delivered those documents to the state court clerk the next morning.

Defendants appealed the remand order to the Fifth Circuit. The Fifth Circuit affirmed, holding: (1) Defendants had waived any objection to the remand procedure by failing to object; (2) the Fifth Circuit lacked jurisdiction to review the clerk’s compliance with remand procedures under 28 U.S.C. § 1447(c); and (3) the district court did not abuse its discretion in assessing $7,500 in sanctions.

B. Recusal

Approximately two-and-a-half hours pri- or to Longoria’s hand-delivery of the remand order to the state court clerk, Defendants filed a motion to recuse Judge Wood. Judge Wood declined to recuse himself and forwarded the motion to Judge Guy Herman, the Presiding Judge of the Statutory Probate Courts. Judge Herman appointed Judge Gladys Burwell to hear the motion and set a hearing date. Prior to the hearing, Defendants’ counsel filed a second motion to recuse, this one against Judge Burwell. Defendants’ counsel then filed a third recusal motion, this one against Judge Herman. Judge Burwell forwarded the motions to Judge Herman, who reset all pending recusal motions for hearing on January 8, 2007. Defendants did not appear at that hearing.

Judge Herman first dismissed the motion to recuse Judge Burwell because it was filed by the attorney for the Defendants on his own behalf, not by the Defendants themselves, and Texas law requires that motions to recuse be “filed by parties, not by attorneys.” Judge Herman then dismissed the motion to recuse himself because it was also filed on behalf of Defendants’ counsel, not on behalf of the Defendants. Judge Herman went on to note that the motions improperly invoked Texas Rule of Civil Procedure 18a rather than Texas Government Code section 25.00255, which governs recusal procedure in statutory probate courts. Finally, Judge Herman heard the motion to recuse Judge Wood. Because Defendants did not put on any evidence or argument in support of their motion, Judge Herman denied the motion and awarded sanctions in the amount of $12,000 for “frivolous pleading[s]”.

After the recusal hearing, Judge Wood began a bench trial. Again, Defendants did not appear. Judge Wood signed a final judgment for Plaintiffs on January 12, 2007, awarding roughly $205 million in damages.

C. Appeal

Defendants raised two discrete procedural points, the first governed by federal remand law, the second by state recusal law. Defendants argued the trial-court judgment and sanctions order were void because they were entered (1) before jurisdiction had revested in state court, and (2) while recusal motions were pending.

The court of appeals rejected the first argument but accepted the second. It held that jurisdiction had revested in Judge Wood’s probate court, but his judgment and Judge Herman’s sanctions order were nevertheless void given the three pending recusal motions. The court of appeals relied on its prior interpretation of Texas Civil Practice and Remedies Code section 30.016 in In re Whatley and held that the provision for tertiary recusal motions only applies when a third recusal motion has been filed by the same party against “the same judge.” The parties filed cross-petitions for review.

II. Discussion

A. Remand

The revesting-of-jurisdiction question turns on this portion of 28 U.S.C. § 1447(c): “A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.” Defendants argue that section 1447(c) contemplates mailing and only mailing, so Plaintiffs’ hand-delivery did not revest jurisdiction in the probate court but rather circumvented and violated the remand procedures we mandated in Quaestor Investments, Inc. v. State of Chiapas. We disagree. When determining jurisdiction under section 1447(c), what matters more is what the federal court ordered, not what the federal clerk mailed.

In Quaestor, a state district court granted a default judgment to Quaestor Investments, a Texas corporation, against the State of Chiapas on April 19,1995. On October 5, 1995, five months and sixteen days after the default judgment was signed, Chiapas removed the suit. The federal district court remanded the case on December 28, 1995. On August 29, 1996, Chiapas filed a petition for writ of error in the court of appeals, and Quaestor moved to dismiss the petition as untimely, arguing the petition must have been brought within six months of the date of judgment. The court of appeals overruled Quaestor’s motion to dismiss and remanded to the trial court, holding that the appellate timetable recommenced when Quaestor gave notice to Chiapas of remand. Quaestor then filed a petition for review in this Court.

The central question in Quaestor was when the appellate timetable recommenced after remand. We held it recommenced upon the revesting of jurisdiction in state court, which happened “when the federal district court executes the remand order and mails a certified copy to the state court. To the extent that earlier Texas court of appeals cases indicate that jurisdiction revests when the federal court executes the remand order, we disapprove of that language.” Defendants thus claim Quaestor's broad language definitively established that the pivotal event for revest-ing is the mailing of the remand order by the federal-court clerk to the state-court clerk. Defendants misconstrue our holding.

Importantly, Quaestor did not involve the question presented here: whether jurisdiction revests when an executed remand order is hand-delivered to the state court in lieu of mailing. Today’s case raises an alternative delivery method, something we had no occasion to examine in Quaestor. In short, Quaestor simply cannot bear the unduly rigid reading urged by Defendants.

Pressing their argument that hand-delivery of the remand order did not revest jurisdiction in state court, Defendants argue that neither the federal district court nor the state court can be vested with jurisdiction, so the case has become moot. According to Defendants, the federal district court has been divested of jurisdiction, including the jurisdiction to reconsider or modify its remand order. Next, jurisdiction never revested in the state court because hand-delivery was defective. Finally, the mailing of a certified copy of the remand order to the state clerk can never occur because “[t]he federal court lacks jurisdiction to correct [Plaintiffs’] error.” Defendants therefore contend that jurisdiction has been destroyed in both courts because the “key jurisdictional event” did not, and can never, occur.

We reject Defendants’ argument that both federal and state courts have been divested of jurisdiction and the case now exists in a strange procedural twilight zone. Consistent with section 1447(c) and its aim to smooth state-federal interactions, we hold that hand-delivery of the remand order in this case successfully effected the transfer of jurisdiction from federal to state court. It is beyond dispute that the federal district court expressed its unmistakable intention to divest itself of jurisdiction and return jurisdiction to the state court, by (1) signing and entering an order of remand, (2) creating a certified copy of the remand order, and (3) providing that certified copy to counsel for expedited delivery to the state court, all of which occurred before the state court took any action in the case.

We also reject Defendants’ argument that allowing hand-delivery of the remand order to effect jurisdictional transfer in this case would destroy transparency and uniformity in the remand procedures. To the contrary, Texas Rule of Civil Procedure 237a expressly provides for the plaintiff to file a certified copy of the remand order with the state court clerk. Efforts to quickly recommence proceedings in the state court following an unsuccessful and apparently frivolous removal actually further the policy of avoiding excessive delay in resolving disputes.

Defendants here resumed litigation in the probate court with full knowledge of the remand. Further, it is undisputed that the probate court took no action until after the remand order had been hand-delivered there. In light of these circumstances, Plaintiffs’ hand-delivery of the remand order was sufficient to revest jurisdiction in the probate court.

B. Recusal

Plaintiffs argue in their cross-petition for review that the motion to recuse Judge Herman was a tertiary recusal motion, and therefore the court of appeals erred in holding that Judge Herman’s sanctions order and Judge Wood’s final judgment were void. We agree with Plaintiffs.

The court of appeals held that under the general “recuse or refer” rule in Government Code section 25.00255(f), a judge against whom a recusal motion has been filed “has only two options: grant the motion to recuse or refer the motion to another judge for a ruling.” Thus, the court concluded, “Judge Herman erred when he ruled on his own motion to recuse” rather than referring the motion to the Chief Justice of the Supreme Court pursuant to Government Code section 74.057(a) and Texas Rule of Civil Procedure 18a(g). “Because Judge Herman did not have the power to rule on his own recusal motion,” the court reasoned, “all subsequent orders he entered are void.”

Plaintiffs argue that Judge Herman’s sanctions order and Judge Wood’s final judgment are not void for two reasons. First, the motion to recuse Judge Herman was the third recusal motion filed in the case and thus a tertiary recusal motion under Civil Practice and Remedies Code section 30.016, allowing Judge Herman to continue presiding over the case. Second, Plaintiffs contend that the exception for procedurally defective motions applies to the motion to recuse Judge Herman.

We first consider whether the motion to recuse Judge Herman was a tertiary recusal motion. Section 30.016 allows “a judge who declines recusal after a tertiary recusal motion is filed” to “preside over the case,” “sign orders in the case,” and “move the case to final disposition as though a tertiary recusal motion had not been filed.” Former section 30.016(a), applicable to this case, defined a “tertiary recusal motion” as “a third or subsequent motion for recusal or disqualification filed against a district court, statutory probate court, or statutory county court judge by the same party in a case.” The court of appeals followed its previous decision in In re Whatley, where the court interpreted section 30.016 as applying only to “a third recusal motion ... filed by the same party against the same judge.” We disagree with that reading and hold that section 80.016 applies to a third recusal motion filed by the same party against any judge.

When construing statutes, courts must look first to the plain and common meaning of the words chosen. If the statutory language is unambiguous, the judge’s inquiry is at an end.

The earlier version of section 30.016(a) provided:

In this section, “tertiary recusal motion” means a third or subsequent motion for recusal or disqualification filed against a district court, statutory probate court, or statutory county court judge by the same party in a case.

Effective September 1, 2007, the Legislature removed statutory probate judges from section 30.016(a), so the current statute only applies to district or statutory county court judges. Simultaneously, the Legislature added section 25.00256(a):

In this section, “tertiary recusal motion” means a third or subsequent motion for recusal or disqualification filed in a case against any statutory probate court judge by the same party. The term includes any third or subsequent motion filed in the case by the same party, regardless of whether that motion is filed against a different judge than the judge or judges against whom the previous motions for recusal or disqualification were filed.

The prior version of section 30.016(a) applies to this case. Defendants argue that, in keeping with the canon of construction that the Legislature is presumed not to have done a useless act, the Legislature’s 2007 amendments demonstrate that lawmakers believed they were changing the law regarding statutory probate courts. In order to change the law, “tertiary recusal motion” in the prior version of section 30.016 must have meant the third recusal motion filed by the same party against the same judge. However, our analysis begins not with canons of construction or extrinsic aids, but with statutory text. Former section 30.016(a) states that a tertiary recusal motion is a “third or subsequent motion for recusal ... filed against a ... statutory probate court ... judge by the same party....” The Legislature chose the word “a,” presumably on purpose, not the words “the same.” And lawmakers certainly knew when to use the latter, having done so to precede “party” in the same sentence. Neither text nor context suggests that “a” means “the same” rather than “any.” Defendants’ interpretation, adopted by the court of appeals, invites us to embellish the statute. We decline, mindful too that Defendants’ interpretation would produce absurd results, with litigants able to delay resolution of their cases by clogging courts with a seemingly limitless number of recu-sal motions.

Our chief aim is to determine and give effect to the Legislature’s intent, and where the statutory language is straightforward, it is determinative. Because the recusal motion filed against Judge Herman was the third recusal motion filed by Defendants (and therefore a tertiary recusal motion), Judge Herman was permitted to continue to “preside over the case,” “sign orders in the case,” and “move the case to final disposition as though a tertiary recusal motion had not been filed.” Accordingly, the court of appeals erred in reversing the sanctions order entered by Judge Herman and the final judgment entered by Judge Wood.

III. Conclusion

The court of appeals was right on remand but wrong on recusal. Plaintiffs’ hand-delivery of the certified remand order from the federal district court to the clerk of the state court was sufficient to revest jurisdiction in the state court. We decline Defendants’ invitation to add a measure of rigidity into section 1447(c) that simply is not there. As for recusal, a tertiary recusal motion is a third motion filed by the same party against any judge. That is, the word “third” in section 30.016(a) refers to the motion, not to the judge. Accordingly, we affirm the court of, appeals’ judgment in part, reverse it in part, and remand to the court of appeals. The court of appeals shall abate pending a ruling on the motion to recuse Judge Herman. If the motion is denied, the court of appeals shall affirm the trial court’s judgment. If the motion is granted, the court of appeals shall reverse the trial court’s judgment and remand to that court for further proceedings consistent with this opinion.

Justice GUZMAN did not participate in the decision.

      . Defendants note that the “Estate of Miguel Angel Luis Gonzalez y Vallejo” named itself as appellee in the court of appeals and as a petitioner/cross-respondent in this Court. Arguing that an "estate” is not a legal entity and cannot sue or be sued, Defendants contend that this Court lacks jurisdiction. However, there is no dispute that Maria and the other Plaintiffs were parties to the trial court’s judgment, that they were designated as persons aligned with the Estate in tine court of appeals, and that they have been identified as parties in filings with this Court. In any event, the Court on November 20, 2009 granted Plaintiffs' "Motion to Substitute Maria del Carmen Guilbot Serros de Gonzalez et al. for the Estate as Petitioners/Cross-Respondents.”

      . Gonzalez v. Guilbot, 255 Fed.Appx. 770, 771-72 (5th Cir.2007).

      .Defendants have filed a Request to Take Judicial Notice concerning a March 19, 2010 final judgment rendered against Plaintiffs by a Mexican federal court, purportedly holding that a "Family Agreement” among the parties is null and void. Defendants do not persuade us that the Mexican judgment, rendered years after the trial-court judgment in the case before us, should have any effect on this appeal. They concede that a trial court’s judgment is final for purposes of res judicata or collateral estoppel even while the case is on appeal. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex.1986).

      . 267 S.W.3d 556, 558.

      . Id.

      . No. 14-05-01222-CV, 2006 WL 2257399 (Tex.App.-Houston LI4th Dist.] Aug. 8, 2006, orig. proceeding) (mem. op.), opinion withdrawn and superseded by In re Whatley, 2006 WL 2948230 (Tex.App.-Houston [14th Dist.] Oct. 13, 2006, orig. proceeding) (mem. op.).

      . 267 S.W.3d at 562-63.

      . 997 S.W.2d 226 (Tex. 1999) (per curiam).

      . Id. at 227.

      . Id.

      . Id.

      . Writ of error appeals under former Rule of Appellate Procedure 45 were replaced in 1997 with restricted appeals under Rule 30. See Tex.R.App. P. 30 & cmt.

      . Quaestor, 997 S.W.2d at 227.

      . Id. at 227-28.

      . Id. at 227.

      . Id. at 229. Chiapas argued that the appellate timetable recommenced either when the Fifth Circuit dismissed the appeal of the remand order or when Chiapas mailed a copy of the remand order to the stale district clerk. Id. at 228.

      . See Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, 57 P.3d 726, 731 (Ariz.Ct.App.2002) ("A conclusion that the superior court regains the power to proceed upon entry of the remand order in federal court prevents a case from floundering in some sort of legal limbo while awaiting the ministerial task of mailing a copy of the remand order. Excessive delay in the resolution of disputes is thereby avoided. This approach also furthers the intent of Congress that any doubts about the existence of removal jurisdiction in the federal courts should be resolved in favor of remand and state court jurisdiction.”); see also City of Orange City v. Lot 10, No. 98-1389, 2002 WL 100674, at *2 (Iowa Ct.App. Jan.28, 2002) ("We reject [the defendant’s] contention that the district court lacked jurisdiction when it acted prior to having received a certified copy of the remand order from the Federal District Court.”).

      . Tex.R. Civ. P. 237a states:
      When any cause is removed to the Federal Court and is afterwards remanded to the state court, the plaintiff shall file a certified copy of the order of remand with the clerk of the state court and shall forthwith give written notice of such filing to the attorneys of record for all adverse parties. All such adverse parties shall have fifteen days from the receipt of such notice within which to file an answer. No default judgment shall be rendered against a party in a removed action remanded from federal court if that party filed an answer in federal court during removal.

      . See Health for Life Brands, Inc., 57 P.3d at 731 ("To hold under these circumstances that the [federal] court retains jurisdiction and the [state] court lacks the power to proceed would violate the principle that removal and remand procedures should not be construed to allow undue delay in the resolution of cases or to waste judicial resources.”); see also Fed.R.Civ.P. 1 (instructing courts to construe and administer the federal rules "to secure the just, speedy, and inexpensive determination of every action and proceeding”); Balestriere Lanza PLLC v. Silver Point Capital, LP, No. 08 Civ. 4731 (GEL), 2008 WL 2557424, at *2 (S.D.N.Y. June 26, 2008) ("Though [Rule 1] does not, strictly speaking, govern the interpretation of § 1447(c), it should be the touchstone not only of judicial action, but of the behavior of members of the bar as well.”).

      . Regardless of whether the court of appeals should have relied on the law-of-the-case doctrine, see 267 S.W.3d at 560, the court properly recognized that "Quaestor did not address the issue we have here” and held that “the post-remand jurisdictional transfer to the state court was complete at all relevant times.” Id. at 560, 561.

      . Id. at 561.

      . Id.

      . Id.

      . Tex. Civ. Prac. & Rem.Code § 30.016(b)(1)-(3).

      . Act of May 26, 1999, 76th Leg., R.S., ch. 608, § 1, 1999 Tex. Gen. Laws 3148.

      . No. 14-05-01222-CV, 2006 WL 2257399 (Tex.App.-Houston [14th Dist.] Aug. 8, 2006, orig. proceeding) (mem. op.), opinion withdrawn and superseded by In re Whatley, 2006 WL 2948230 (Tex.App.-Houston [14th Dist.] Oct. 13, 2006, orig. proceeding) (mem. op.).

      . 267 S.W.3d at 562.

      . See FKM P'ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008) (“We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but otherwise, we construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.”).

      . See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006).

      . Act of May 26, 1999, 76th Leg., R.S., ch. 608, § 1, 1999 Tex. Gen. Laws 3148.

      . Tex. Gov't Code § 25.00256(a).

      . See In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007) ("If a statute is clear and unambiguous, we apply its words according to their common meaning without resort to rules of construction or extrinsic aids.”).

      . Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009).

      . See Alex Sheshunoff Mgmt. Servs., 209 S.W.3d at 651-52.

      . We agree with the court of appeals that under section 30.016(b) Judge Herman should not have ruled on the recusal motion filed against him. Plaintiffs make the blanket assertion that because the motion to recuse Judge Herman was a tertiary recusal motion, Judge Herman was allowed to rule on his own recusal motion. However, nothing in section 30.016 contemplates allowing judges to deny recusal motions pending against them, and in fact instructs judges “who decline[ ] recusal after a tertiary recusal motion is filed [to] comply with applicable rules of procedure for recusal and disqualification. ...” Judge Herman eventually referred that motion to Chief Justice Jefferson, and we find no prejudice stemming from Judge Herman’s belated referral. Also, as this was a tertiary recusal motion, Judge Herman retained authority under section 30.016(b) to take other actions, such as signing the sanctions order against Defendants and denying the recusal motion against Judge Wood.

      .Plaintiffs alternatively argue an exception to the "recuse or refer” rule applies: the exception for procedurally defective motions. Plaintiffs contend that Defendants waived the right to complain about Judge Herman’s failure to refer the motion filed against him because the motion failed to comply with the procedural requirements of Government Code section 25.00255. The court of appeals rejected this argument based on its holding in a prior case that "[e]ven though a motion to recuse may be defective, the challenged judge must either recuse or refer the motion, so that another judge can determine the procedural adequacy and merits of the motion to recuse.” 267 S.W.3d at 563 (quoting In re Norman, 191 S.W.3d 858, 861 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding)). As the first argument advanced by Plaintiffs decides today's case, we need not reach the question of whether a procedurally defective motion provides an exception to the "recuse or refer” rule.


author: PER CURIAM.

text:
    Vincent Brassard SCILLITANI, Appellant, v. The STATE of Texas.
    No. PD-0069-10.
    Court of Criminal Appeals of Texas.
    June 30, 2010.
    Anthony R. Segura, Sugar Land, for appellant.
    Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for State.
   OPINION

PER CURIAM.

Appellant was convicted of driving while intoxicated. The Court of Appeals reversed, finding the evidence insufficient because there was no evidence of how recently the vehicle had been driven or how much time had elapsed between the accident and the arrival of law enforcement. Scillitani v. State, 297 S.W.3d 498 (Tex.App.-Houston [14th Dist.] 2009). The court relied on Stoutner v. State, 36 S.W.3d 716 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd), and Weaver v. State, 721 S.W.2d 495 (Tex.App.-Houston [1st dist.] 1986, pet. refd). Id. The State filed a petition for discretionary review arguing that the evidence was sufficient.

We recently found the evidence sufficient in a DWI case with facts similar to this one. Kuciemba v. State, 310 S.W.3d 460 (Tex.Crim.App.2010). That appellate court had also relied on Stoutner and Weaver in reversing the conviction. In reversing the appellate court, we noted that “[b]eing intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the accident.”

The Court of Appeals did not have the benefit of our opinion in Kuciemba. Accordingly, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinion in Kuciemba.


author: Chief Justice VALDEZ.

text:
    Ann M. FERNANDEZ, Appellant, v. The JOHN G. AND MARIE STELLA KENEDY FOUNDATION, Appellee.
    No. 13-06-00539-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 22, 2008.

      Eric Gordon Walraven, Julia F. Pen-dery, Marcos G. Ronquillo, Shawn Malcolm McCaskill, Dallas, TX, for Appellant.
    Jorge C. Rangel, Jaime S. Rangel, The Rangel Law Firm, Corpus Christi, TX, Michael A. Hatchell, Charles R. Watson, Jr., Susan Kidwell, Locke, Liddel & Sapp, LLP, Bruce V. Griffiths, Office of Atty. Gen., Austin, TX, Macey Reasoner Stokes, Baker & Botts, Houston, TX, for Appel-lees.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and BENAVIDES.
   MEMORANDUM OPINION

Memorandum Opinion by

Chief Justice VALDEZ.

By petition for bill of review, Ann Fernandez (“Fernandez”), appellant, directly attacked an order dismissing a royalty assignment suit rendered in 1978. The John G. and Marie Stella Kenedy Memorial Foundation (the “Foundation”), appellee, moved for summary judgment and an anti-suit injunction. The district court granted the Foundation’s motion for summary judgment and issued an anti-suit injunction. On appeal, Fernandez’s sole issue challenges the anti-suit injunction. We reverse and render a denial of the anti-suit injunction.

I. Background

Fernandez directly attacked a dismissal order rendered in a suit brought by the temporary administrator of Sarita Kenedy East’s estate. In that suit, the temporary administrator sought to undo certain inter vivos transfers made by East shortly before she died. Fernandez alleges that she is the sole child of John G. Kenedy Jr., East’s brother, and therefore, she is East’s niece. In her petition for bill of review (the “petition”), Fernandez asserts that she was a necessary party to the temporary administrator’s suit, but never received notice of the suit or the dismissal order.

Before petitioning the district court for a bill of review, Fernandez filed an heir-ship application in East’s probate court case. Shortly after filing her petition in district court, Fernandez moved to abate her district court petition on the grounds that the probate court held dominant jurisdiction over the probate issues in the case. The Foundation moved for both no-evidence and traditional summary judgments in district court on various grounds, including laches and adverse possession. The district court denied Fernandez’s abatement motion and granted the Foundation a summary judgment without providing a rationale. The district court also issued an anti-suit injunction which prohibited Fernandez from proceeding with her probate matters in East’s estate. On appeal, Fernandez challenges only the anti-suit injunction.

II. Discussion

By her sole issue, Fernandez challenges the anti-suit injunction because it enjoins her from:

taking any further action in the County Court of Kenedy County, Texas, inconsistent with the judgments of this Court which denied all claims and relief sought in Fernandez’s “Petition for Bill of Review” filed in this cause, including, but not limited to, Fernandez’s request seeking to set aside and cancel the deeds by Sarita K. East which transferred title to the Foundation of the royalty interest described in those deeds and Fernandez’s request to reopen East’s Estate, to establish a right to inherit from East’s Estate, to set aside all or part of East’s will, or to recover or establish an interest in property transferred by the deeds at issue in this cause and property distributed from East’s Estate to the Foundation, without further order from [the district court].

The decision to issue an anti-suit injunction rests within the sound discretion of the trial court. London Mkt. Ins. v. Am. Home Assurance Co., 95 S.W.3d 702, 705 (Tex.App.-Corpus Christi 2003, no pet.).

In reviewing the trial court’s decision, we are to draw inferences from the evidence in the manner most favorable to the trial court’s ruling. See id. “A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or misapplies the law to the established facts of the case.” Id. (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). A trial court is within its power to base a decision on conflicting evidence; however, that evidence must reasonably support the trial court’s decision. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 (Tex.App.-Corpus Christi 2001, no pet.).

The Texas Supreme Court has determined that there are four instances in which an anti-suit injunction is appropriate: (1) to address a threat to the court’s jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996) (per curiam); London MM., 95 S.W.3d at 705-06. There are no precise guidelines to determine the appropriateness of an anti-suit injunction, and the circumstances of each situation must be carefully examined. See Gannon v. Payne, 706 S.W.2d 304, 307 (Tex.1986); London Mkt., 95 S.W.3d at 709.

Fernandez complains that the district court could not issue the anti-suit injunction. We agree. We have held that a district court that lacks probate jurisdiction cannot enjoin a party from proceeding in probate court. Fernandez v. Frost Nat’l Bank, et al., 267 S.W.3d 75, 84, (Tex.App.-Corpus Christi 2008, no pet. h.). Additionally, we do not find any of the instances that would support an anti-suit injunction to be present in this case. See id.; see also Harper, 925 S.W.2d at 651 (Tex.1996). Fernandez’s sole issue is sustained.

III. Conclusion

Having sustained Fernandez’s sole issue, the anti-suit injunction is reversed and a denial of the Foundation’s request for in-junctive relief is rendered.

      . As this is a memorandum opinion and the parties are familiar with the facts and legal issues, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex.R.App. P. 47.4.

      . The probate court attempted to transfer Fernandez's district court petition to itself. We, however, held that the probate court did not have statutory authority to transfer Fernandez’s petition and directed the probate court to vacate its transfer order. In re Kenedy Mem'l Found., 159 S.W.3d 133, 146 (Tex.App.-Corpus Christi 2004, orig. proceeding).


text:
    Ann M. FERNANDEZ, Appellant, v. The JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION, Appellee.
    No. 13-06-00170-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 22, 2008.

      Eric Gordon Walraven, Julia F. Pen-dery, Dallas, TX, Marcos G. Ronquillo, Dallas, TX, for Appellant.
    Jorge C. Rangel, Jaime S. Rangel, Randall L. Meredith, The Rangel Law Firm, Corpus Christi, TX, Michael A. Hatchell, Charles R. Watson, Locke, Lid-dell & Sapp, LLP, Bruce V. Griffiths, Office of Atty. Gen., Austin, TX, Macey Reasoner Stokes, Baker & Botts, Houston, TX, for Appellees.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and BENAVIDES.
   MEMORANDUM OPINION

Memorandum Opinion by

Chief Justice VALDEZ.

By petition for bill of review, Ann Fernandez, appellant, directly attacked an agreed judgment rendered in 1975. The John G. and Marie Stella Kenedy Memorial Foundation (the “Foundation”), appel-lee, moved for summary judgment and an anti-suit injunction. The district court granted the Foundation’s motion for summary judgment and issued an anti-suit injunction. Fernandez, by six issues, complains that the district court (1) lacked jurisdiction to render a summary judgment; (2) erred by granting a permanent anti-suit injunction; (3) erred in not applying the discovery rule; (4) erred in applying the law governing bills of review; (5) misapplied this State’s standing and ripeness doctrines; and (6) lacked sufficient evidence to grant summary judgment on adverse possession grounds. We reverse and remand the summary judgment with instructions to abate the case and reverse and render a denial of the anti-suit injunction.

I. Background

The judgment that Fernandez attacks is a settlement agreement entered by the district court in the estate of Sarita Kene-dy East. Fernandez contends that she is the sole child of John G. Kenedy Jr., East’s brother, and therefore, she is East’s niece. In her petition for an equitable bill of review (“petition”), Fernandez asserts that she was a necessary party to the settlement agreement and seeks to overturn the district court judgment that incorporates the settlement agreement (the “Agreed Judgment Case”).

Before petitioning the district court for an equitable bill of review, Fernandez filed an heirship application in East’s probate court case in Kenedy County. Shortly after filing her petition in district court, Fernandez moved to abate her district court petition on grounds that the probate court held dominant jurisdiction over the probate issues in the case. The Foundation moved for both no-evidenee and traditional summary judgments on various grounds, including laches and adverse possession. Fernandez amended her motion to abate and also moved to continue the case. The district court denied Fernandez’s abatement and • continuance motions and granted the Foundation a summary judgment without providing a rationale. The district court also issued an anti-suit injunction which prohibited Fernandez from proceeding with her probate matters in East’s estate. This appeal ensued.

II. Discussion

In her first issue, Fernandez contends that the district court lacked jurisdiction to determine Fernandez’s probate issues and should have abated its proceedings until the probate court disposed of Fernandez’s heirship application. We review the trial court’s action in granting or denying a plea in abatement using an abuse of discretion standard. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988); Davis v. Guerrero, 64 S.W.3d 685, 691 (Tex.App.-Austin 2002, no pet.)

The record is clear. On May 9, 2002, Fernandez filed an application for heirship and suit for accounting and distribution in the probate court. On May 14, 2003, Fernandez filed the instant petition for an equitable bill of review. Fernandez moved to abate the district court proceeding on August 26, 2003 and amended her abatement motion on March 21, 2006.

To maintain her bill of review proceeding, Fernandez was required to show that she had a then-existing right or interest in the Agreed Judgment Case. See Rodriguez ex rel. Rodriguez v. EMC Mortgage Corp., 94 S.W.3d 795, 798 (Tex.App.-San Antonio 2002, no pet.) (providing that to maintain standing in a bill of review proceeding, the petitioner must have been a party to the underlying judgment or have had a then-existing right or interest in the district court’s judgment). Fernandez sought abatement on the grounds that the probate court controlled the issue of whether she was one of East’s heirs, which was central to her bill of review petition because an interest in East’s estate would allow her to demonstrate standing in the Agreed Judgment Case.

We conclude Fernandez established a need to abate the proceeding because (1) her heirship application in the probate court was filed on May 9, 2002, which was nearly a year before she filed the equitable bill of review proceeding in district court; (2) her heirship application is currently pending; (3) the same parties are involved; and (4) the controversies are the same. See S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 (Tex.App.-Corpus Christi 2000, no pet.) (op. on reh’g) (detailing the four elements a party must show in requesting an abatement).

The Foundation opposed abatement because in its opinion, the probate court did not have jurisdiction to entertain Fernandez’s heirship application. Therefore, it reasoned, the district court exerted dominant jurisdiction over the case. The Foundation, however, did not offer any probate court order that rejects Fernandez’s heir-ship application. Additionally, it did not produce any evidence showing that the probate court had dismissed Fernandez’s heirship application for want of jurisdiction. The Foundation also failed to present any evidence establishing one of the exceptions to the abatement rule. See Wyatt, 760 S.W.2d at 248.

In Fernandez v. Frost Nat’l Bank, et al., 267 S.W.3d 75, 83 (Tex.App.-Corpus Christi 2008, no pet. h.), we held that a district court should abate a petition for bill of review brought by an alleged heir until the probate court determines the heirship question at the heart of the petition for bill of review. Id. The same rule applies to this case. We conclude that the district court abused its discretion in denying Fernandez’s motion to abate. We sustain Fernandez’s first issue.

By her second issue, Fernandez challenges the anti-suit injunction issued by the district court that enjoins her from:

taking any further action in the County Court of Kenedy County, Texas, inconsistent with the judgments of [the district court] which denied all claims and relief sought in Fernandez’s “Application for Declaration of Heirship and Suit for Accounting and Distribution” filed in this cause, including, but not limited to, Fernandez’s request seeking to reopen East’s Estate, to establish an interest in property distributed from East’s Estate to the Foundation, without further order from [the district court].

The decision to issue an anti-suit injunction rests within the sound discretion of the trial court. London Mkt. Ins. v. Am. Home Assurance Co., 95 S.W.3d 702, 705 (Tex.App.-Corpus Christi 2003, no pet.).

In reviewing the trial court’s decision, we are to draw inferences from the evidence in the manner most favorable to the trial court’s ruling. See id. “A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or misapplies the law to the established facts of the case.” Id. (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). A trial court is within its power to base a decision on conflicting evidence; however, that evidence must reasonably support the trial court’s decision. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 (Tex.App.-Corpus Christi 2001, no pet.).

The Texas Supreme Court has determined that there are four instances in which an anti-suit injunction is appropriate: (1) to address a threat to the court’s jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996) (per curiam); London Mkt., 95 S.W.3d at 705-06. There are no precise guidelines to determine the appropriateness of an anti-suit injunction, and the circumstances of each situation must be carefully examined. See Gannon v. Payne, 706 S.W.2d 304, 307 (Tex.1986); London Mkt., 95 S.W.3d at 709.

Fernandez complains that the district court was could not issue the anti-suit injunction. We agree. We have held that a district court that lacks probate jurisdiction cannot enjoin a party from proceeding in probate court. See Fernandez, 267 S.W.3d at 84. Additionally, we do not find any of the instances that would support an anti-suit injunction to be present in this case. See id.; see also Harper, 925 S.W.2d at 651 (Tex.1996). Fernandez’s second issue is sustained.

III. Conclusion

In conclusion, we reverse the summary judgment and remand the case to the district court so that it can abate the underlying petition until the probate court resolves Fernandez’s heirship application. Finally, the anti-suit injunction is reversed and a denial of the Foundation’s request for injunctive relief is rendered.

      . As this is a memorandum opinion and the parties are familiar with the facts and legal issues, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App. P. 47.4.

      . The probate court attempted to transfer Fernandez's district court petition to itself. We, however, held that the probate court did not have statutory authority to transfer Fernandez’s petition and directed the probate court to vacate its transfer order. In re Kenedy Mem’l Found., 159 S.W.3d 133, 146 (Tex.App.-Corpus Christi 2004, orig. proceeding).

      . Fernandez’s first issue challenges the district court’s action on two jurisdictional grounds. Fernandez’s first jurisdictional argument is that the bill of review was not properly before the district court. She notes that the probate court did not follow this Court's direction by failing to vacate its order transferring the Agreed Judgment Case from district court to probate court. In re Kenedy Mem’l Found., 159 S.W.3d 133, 146 (Tex.App.-Corpus Christi 2004, orig. proceeding). She argues that because the probate court’s transfer order was never vacated, the case had "never been physically transferred back” to the district court and that, therefore, the district court lacked jurisdiction.
      Fernandez's "never-transferred-back” argument fails because any order rendered by a trial court lacking in jurisdiction, other than granting a motion to dismiss, is void and should be regarded as if it never existed. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995); Greathouse v. McConnell, 982 S.W.2d 165, 167 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). We previously held that the probate judge "had no authority under section 5B of the probate code to order the transfers and abused his discretion in doing so.” In re Kenedy Mem’l Found., 159 S.W.3d at 146. Therefore, the probate court's transfer orders should be regarded as if they never existed. Fernandez's first jurisdictional argument fails.
      We construe Fernandez's second jurisdictional argument as a challenge to the district court's denial of her abatement motion. Tex. R.App. P. 38.1(e) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”), 38.9.

      . This relieves us from having to address Fernandez's third, fourth, fifth, and sixth issues, for their resolution would not further affect the outcome of this appeal. Tex.R.App. P. 47.1. Thus, the legal questions surrounding Fernandez's third through sixth issues, including the Foundation's grounds for summary judgment, remain unanalyzed by this Court.


author: JANE BLAND, Justice.

text:
    Geoffrey ZIMMERMAN, Appellant, v. Wendy Gonzalez ANAYA, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, Individually, Appellees.
    No. 01-07-00570-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 5, 2008.

      Jeffrey B. McClure, Kendall M. Gray, Laura M. Trenaman, and Elizabeth Ann Wiley, for Appellant.
    Paul S. Jacobs and Jeffrey M. Stern, for Appellees..
    Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
   MEMORANDUM OPINION

JANE BLAND, Justice.

Wendy Gonzalez Anaya and Jose Hernandez (“the parents”) sued Geoffrey Zimmerman, M.D. for alleged negligence during the delivery of their son, which caused their son to suffer personal injuries and death. Zimmerman moved for summary judgment on immunity grounds, asserting that, as a resident of Baylor College of Medicine who provided publicly funded health care at Ben Taub Hospital, he is entitled to immunity pursuant to section 101.106 of the Texas Civil Practice and Remedies Code because Baylor qualifies as a governmental unit under section 312.007 of the Texas Health and Safety Code, making him an employee of a state agency for purposes of immunity under the Tort Claims Act.

The parents have moved to dismiss on the ground that section 51.014(a)(5) does not authorize Zimmerman’s appeal. That section provides that “[a] person may appeal from an interlocutory order of a district court, county court at law, or county court that ... denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.... ” Tex. Civ. Prac. & Rem Code. Ann. § 51.014(a)(5). The parents assert that, because Zimmerman is not an employee or officer of the state or a political subdivision of the state, section 51.014(a)(5) does not apply to his appeal, and no other basis for appellate jurisdiction exists.

Our Court’s recently issued opinion and judgment on rehearing in Klein v. Hernandez controls our disposition of Zimmerman’s appeal. See 260 S.W.3d 1 (Tex. App.-Houston [1st Dist.] 2008, no pet. h.). In Klein, we held that we lacked jurisdiction over a Baylor resident’s interlocutory appeal of the interlocutory denial of his motion for summary judgment, in which, like Zimmerman, he asserted that section 312.007 of the Texas Health and Safety Code entitles him to claim immunity from liability under the Texas Tort Claims Act. We expressly held that section 312.007 did not

confer [ ] upon Klein or Baylor ... “sovereign immunity,” which must be waived under the Texas Tort Claims Act.... [W]e hold that the Legislature’s grant of limited liability to Dr. Klein and Baylor and provision of indemnity for Klein in chapter 312 does not amount to a conferral of “sovereign immunity,” which deprived the trial court of subject matter jurisdiction....

Id. at 10. In applying this holding to section 51.014(a)(5) of the Civil Practice and Remedies Code, we observed that that provision “authorizes a person to appeal from an order that ‘denies a motion for summary judgment based on an assertion of immunity by an individual who is an [actual] officer or employee of the state or a political subdivision of the state.’ ” Id. (quoting Tex. Civ. PRAC. & Rem Code. Ann. § 51.014(a)(5) (emphasis and brackets in the original)).

Relying solely on section 312.007(a) as grounds for immunity, Zimmerman emphasizes that section 312.007(a) expressly provides that a person in his position is to be treated as if he were “an employee of a state agency ... for purposes of determining the liability, if any, of the person for the person’s acts or omissions while engaged in the coordinated or cooperative activities of the ... school .... ” (quoting Klein, 260 S.W.3d at 8) (emphasis added). The immunity conferred by section 101.106 of the Civil Practice and Remedies Code, however, cannot extend beyond the reach of section 312.007(a). Determining liability is not synonymous with conferring immunity from suit, which the Legislature addresses expressly in section 312.007(b) by incorporating chapter 101 by reference. At the time the Legislature enacted section 312.007(b), it mirrored the then-existing language in section 101.106, which barred an action against defendant upon judgment or settlement of a claim against the governmental unit at the outset of filing suit. Compare Tex. Civ. Prac. & Rem Code. Ann. § 101.106 historical note (Vernon 2005) (observing that before the 2003 amendment, the section provided that “[a] judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim”) with Tex. Health & Safety Code Ann. § 312.007(b) (Vernon 2001) (enacted in 1989) (providing that “A judgment in an action or settlement of a claim against a ... supported medical ... school bars any action involving the same subject matter by the claimant against an ... intern [or] employee of the ... school ... whose act or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was asserted as provided under Section 101.106, Civil Practice and Remedies Code”). When the Legislature amended section 101.106 to require an election at the outset of filing suit, it did not alter section 312.007(b). See Tex. Civ. Prac. & Rem Code. Ann. § 101.106 (Vernon 2005) (as amended in 2003). Consequently, our holding in Klein, that the language of section 312.007 does not make Baylor the equivalent of a governmental unit for purposes of section 54.014(a)(5) of the Civil Practice and Remedies Code, applies with equal force to Zimmerman’s case. See id. at 10-11.

Because section 312.007(a) is not an immunity statute and Zimmerman does not meet the requirements of section 312.007(b), we hold that section 51.014(a)(5) of the Civil Practice and Remedies Code does not confer appellate jurisdiction over Zimmerman’s appeal. See id. Accordingly, without addressing the merits, we dismiss Zimmerman’s appeal for lack of jurisdiction.