text:
    Teresa LOZADA, Appellant, v. FARRALL & BLACKWELL AGENCY, INC., Appellee.
    No. 08-08-00262-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2010.

      Joe P. Lopez IV, El Paso, TX, for Appellant.
    Jeffrey T. Lucky, Ray, Valdez, McChris-tian & Jeans, P.C., El Paso, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellant, Teresa Lozada, appeals the trial court’s summary judgment entered in favor of Farrall & Blackwell Agency, Inc. In four issues on appeal, Lozada claims that the trial court erred by granting Far-rall & Blackwell’s amended motion for summary judgment and in denying her motion for new trial, that the trial court erred in its application of the law of agency to the facts of the case, that the trial court erred by considering Farrall & Blackwell’s untimely amended motion for summary judgment, and that the trial court erred by not only sustaining Farrall & Blackwell’s objections to her affidavits filed in response to the amended motion for summary judgment, but also by failing to allow her the opportunity to respond to the objections before ruling thereon. We affirm.

BACKGROUND

In August 2003, Jose and Teresa Lozada discussed acquiring life insurance with Michael Dennis, a retail insurance agent. After filling out the requisite applications, they were each offered a policy from American General Life Insurance Company (AIG) for $300,000 on October 17, 2003. Teresa Lozada accepted the policy, but Jose did not as the policy was more expensive than anticipated. Specifically, Jose’s health exam revealed that he suffered from high cholesterol. When told the quoted policy was comparable with other insurance companies, Jose asked for the costs for different levels of benefits. After being shown different premiums for different benefits, Jose told Dennis that he would think about it and let him know. By January 2004, Jose had still not purchased a policy and Dennis “gave up hope” that he would.

Meanwhile, AIG sent Jose a letter stating the policy offered to him was marked “not taken” as Jose failed to sign the policy, pay the initial premium, and return the policy. The letter concluded that “no coverage has been in force,” “no coverage is in effect,” and “no claim for benefits will be honored.”

After attending a funeral in late February 2004, Jose told Dennis that he wanted to buy the AIG life insurance policy after all. On February 27, 2004, Dennis contacted the insurance broker and wholesaler, Farrall & Blackwell, to inquire as to what could be done to re-activate Jose’s lapsed application. Farrall & Blackwell did not know off-hand but they contacted Miles Financial Services (MFS), the independent marketing organization that processed and submitted the insurance application to AIG, and obtained additional forms for Jose to sign. And on February-28, 2004, Jose signed a Short Health Statement, “PAC” form (bank draft authorization), and Acknowledgment of Delivery of Policy.

A few days later, Dennis delivered the documents to Farrall & Blackwell, and Farrall & Blackwell, on March 4, 2004, sent an email to MFS summarizing the request to re-activate Jose’s lapsed application. However, MFS could not find the file and requested “something that identified the policy,” and Farrall & Blackwell complied. The next day, Farrall & Blackwell faxed the Short Health Statement, PAC form, and Acknowledgment of Delivery of Policy to MFS. That same day, MFS acknowledged receipt of the documents, responded that the underwriter had been emailed, warned that a new application might be required, and stated that “[f]or sure there will be an amendment needed.” Also on that day, Jose died from a massive heart attack. However, on March 8, 2004, an AIG underwriter, apparently unaware that Jose had died, emailed MFS, stating that AIG “will need a new, currently dated Part B to consider reopening and redating.” As the previously offered policy was “off the table,” a new underwriting process was required, including submission of “Part B,” before there would be any offers of binding coverage.

Meanwhile, on March 6 or 7, the funeral home told Lozada that they had contacted AIG and that AIG took the position that Jose was not insured. Thus, on March 17, 2004, Lozada made a death benefits claim on Jose’s purported insurance policy. AIG denied the claim on April 1, 2004, referencing the “Not Taken” letter issued on December 23, 2003, and stating that “the policy is not in force and there will be no claim benefits payable.” Both AIG and Farrall & Blackwell believed that there was no offer of insurance pending after December 23, 2003. Lozada then filed suit against Farrall & Blackwell on July 20, 2006, for damages, alleging negligence, fraud, promissory estoppel, negligent misrepresentation, and violations of the Deceptive Trade Practices Act (DTPA) and the Insurance Code.

The trial court granted Farrall & Blackwell’s amended motion for summary judgment as to all grounds claimed by Lozada, and also determined that Lozada’s suit for negligence, negligent misrepresentation, and violations of the DTPA and Insurance Code were barred by limitations. The trial court further denied Lozada’s motion for new trial.

SCHEDULING ORDER

We begin with a discussion of Lo-zada’s third issue, which asserts that the trial court erred by considering Farrall & Blackwell’s amended motion for summary judgment at the summary judgment hearing on May 7, 2008. According to Lozada, Farrall & Blackwell failed to file their motion within the time limits proscribed by the trial court’s scheduling order. The trial court’s scheduling order, which was signed on November 5, 2007, provided for a trial date of May 5, 2008, and that “[a]ny dispositive motions, including motions for summary judgment, must be heard no later than thirty (30) days prior to the scheduled trial date.” Thus, Lozada concludes that Farrall & Blackwell’s amended motion for summary judgment filed on April 16, 2008, was untimely.

In response, Farrall & Blackwell assert that the trial court’s order granting a continuance for trial on April 9, 2008, nullified any prior imposed deadlines for summary judgment motions. We do not agree.

Prior to 1999, the pretrial deadlines fluctuated with a change of trial setting. Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex.2009). However, in 1999, the pretrial discovery rules were amended to establish certain dates for the completion of discovery and to exclude evidence that was untimely disclosed. Id. (citing Tex.R. Civ. P. 193.6). Thus, any evidentiary deadlines now no longer fluctuate with the change of a trial setting but are determined by the discovery plan applicable to the case under the current rules and apply to summary-judgment proceedings. Fort Brown, 285 S.W.3d at 882 (citing United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.1997)); see also Blake v. Dorado, 211 S.W.3d 429, 432 (Tex.App.-El Paso 2006, no pet.); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex.App.-Austin 2002, pet. denied).

However, Lozada points to nothing in the amended motion for summary judgment that contains new evidence. At the hearing on the motion, the trial court asked the parties whether the amended motion contained any new exhibits or evidence, and Lozada responded that the same evidence and exhibits attached to the amended motion were already filed with Farrall & Blackwell’s original and supplemental motions for summary judgment, and Farrall & Blackwell made the same representation to the court. The only difference between the previously filed motions and the amended motion was that Farrall & Blackwell sought to reconstruct, clarify, and expand on arguments already asserted, and to respond to Lozada’s new petition, filed April 4, 2008, which included new causes of action. As no new evidence was attached to the amended motion for summary judgment, cf. Fort Brown, 285 S.W.3d at 882; Blake, 211 S.W.3d at 432, there was no violation of the evidentiary exclusionary rules when the trial court considered the amended motion.

Moreover, we note that the amended motion was filed 21 days before the hearing, that Lozada filed a response to the motion, and that Lozada makes no complaint that she was prejudiced by or unprepared to respond to the amended motion. See Tex.R. Civ. P. 166a(c). Therefore, we conclude that the trial court did not abuse its discretion by considering the amended motion for summary judgment. Issue Three is overruled.

HEARING ON OBJECTIONS

We next address Lozada’s fourth issue, which contends that the trial court not only erred by sustaining Farrall & Blackwell’s various objections to Lozada’s affidavits attached to her response to the motion for summary judgment, but also by failing to allow Lozada the opportunity to respond to the objections. Finding Lozada failed to adequately brief these contentions, we decline to address them.

Applicable Law

The Rules of Appellate Procedure require a party’s brief to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(i). When an appellate issue is not supported by argument or lacks citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.Houston [14th Dist.] 2002, no pet.).

Application

A. Opportunity to Object

Lozada first asserts that the trial court failed to allow her the opportunity to respond to Farrall & Blackwell’s objections before ruling on them. However, Lozada has not briefed this argument. Rather, she simply makes one conclusory statement on this matter before proceeding to engage in a discussion of why the trial court erred by sustaining each eviden-tiary objections for the various reasons asserted by Farrall & Blackwell. Because Lozada fails to present this Court with any argument and authority supporting the contention raised, we find Lozada’s complaint inadequately briefed and decline to address it. Tex.R.App. P. 38.1(h); Batto v. Gafford, 119 S.W.3d 346, 350 (Tex.App.Waco 2003, no pet.) (declining to address issue unsupported by a standard of review or argument).

B. The Affidavits

1. Rick’s Affidavits

Lozada next challenges several of the trial court’s evidentiary rulings that struck various sentences from Rick’s affidavit and supplemental affidavit. First, she complains that the trial court erred by excluding certain sentences pursuant to Rule 703 as either (1) conclusory and unsupported by concrete and particular facts, (2) lacking a proper basis for a reliable expert opinion, or (3) lacking the factual predicate. However, Lozada’s only argument in this regard consists of a concluso-ry sentence that either espouses that Rick’s statements are “based either upon what actually transpired or should have transpired, as set forth elsewhere in his affidavit and deposition, or in the depositions and documents which he reviewed as set forth in his deposition, as well as, based upon his education, training and experience,” or that the basis of his statements are “his experience set forth in his affidavit, or in the depositions and documents which he reviewed as set forth in his deposition, as well as, based upon his education, training and experience, as set forth in his deposition, including his CV.” Lozada fails to explain what the actual events that transpired were, what information contained in the depositions supported the expert opinion, or which documents support the opinion for each statement stricken by the trial court. Because Loza-da engages in no discussion or analysis, and because her one conclusory sentence is insufficient to maintain her burden to adequately brief these complaints, we decline to address them. See Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 409 (Tex.App.-El Paso 2009, no pet.) (holding issue inadequately briefed when argument consisted of only three conclusory sentences).

Second, Lozada asserts that the trial court erred by excluding other paragraphs on the basis of relevance under Rules 401 and 402. However, other than citing the general proposition that “to be relevant, the proposed testimony must be ‘sufficiently tied to the facts of the case,’ ” Lozada fails to provide any discussion or argument of the cited principle to the relevant facts of the case. Thus, we find Lozada failed to adequately brief this contention, as well. See Bradt v. West, 892 S.W.2d 56, 68-69 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding issue inadequately briefed when appellants provided some authority but failed to discuss relevant facts and only made fleeting, con-clusory statements).

Third, Lozada contends that the following statements should not have been excluded as confusing under Rule 403: (1) “[w]ith the submission of Part ‘B’ to Michael Dennis as requested by AIG, the underwriting process commenced;” and (2) the “time involved for underwriting is not relevant to the case.” But Lozada cites no authority explaining why, given the facts before the court, the statements were not confusing, much less does she assert why the statements were admissible. See Johnson v. Oliver, 250 S.W.3d 182, 187 (Tex.App.-Dallas 2008, no pet.) (issue inadequately briefed when party presented no authority to support their contention or argument). As such, this contention is also inadequately briefed.

2. Lozada’s Affidavit

Lozada next complains that the trial court erred by sustaining several objections to various statements in her affidavit. According to Lozada, any statements she made reciting what Michael Dennis said were admissible as statements by a party opponent or as statements against interests, and that the statements she made reciting what Jose Lozada uttered were admissible as Jose was unavailable because of death. She also attacks the trial court’s exclusion of various other statements in her affidavit, contending that Farrall & Blackwell’s expert objection to certain statements in her affidavit was “non-sensical,” that her objected-to opinion statements “fall squarely within the letter and spirit of [Rule] 701,” that another statement, which was truthful, was not prejudicial under Rule 403, that she had personal knowledge of another excluded statement, and that her remaining objeeted-to statements were not conclusory.

However, each complaint merely consists of one or two conclusory sentences with a general reference to an evidentiary rule or case. Again, Lozada engages in no legal analysis, discussion, or argument, that is, she does not analyze the rules or cases cited, or attempt to apply them to the facts at issue. Accordingly, we hold Lozada failed to adequately brief these contentions. See Tex.R.App. P. 38.1(f); Dolenz, Life Estate v. Dallas Cent. Appraisal Dist., 293 S.W.3d 920, 923 (Tex.App.-Dallas 2009, pet. denied) (holding issue inadequately briefed where appellant’s brief consisted of “one sentence of law” but did not include any discussion of the law cited to the relevant facts of the case); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337-38 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding issue inadequately briefed when parties failed to make any specific argument or engage in any analysis showing how the record and the law supports their contentions).

3. Affidavits of Virginia Lozada and Fernando Mejorado

Lozada also raises various challenges to the trial court’s exclusion of certain sentences from the affidavits of Virginia Lozada and Fernando Mejorado. Similar to the arguments made in response to the objections made to her affidavit, Lozada asserts that any statements made by them reciting Dennis’ utterances were admissible as statements by a party opponent or as statements against interests. But again, other than making a general cite to the evidentiary rules and some cases, Lozada simply concludes in one sentence that the statements were admissible. Having failed to engage in any legal analysis, discussion, or argument explaining why the complained-of statements met the exception to the hearsay rule, we hold Lozada failed to adequately brief these contentions. See Tex.R.App. P. 38.1(i); Dolenz, 293 S.W.3d at 923; San Saba Energy, 171 S.W.3d at 337-38. Issue Four is overruled.

SUMMARY JUDGMENT

We now turn to Lozada’s first issue, which contests the summary judgment entered in favor of Farrall & Blackwell, and the trial court’s denial of Lozada’s motion for new trial. Specifically, Lozada contests the applicability of the limitations bar to her claims for negligence, negligent misrepresentation, and violations of the DTPA and Insurance Code, and challenges the trial court’s implicit determination that she failed to prove her claims for fraud and promissory estoppel.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In reviewing a summary judgment, we indulge every reasonable inference in favor of the nonmov-ant, take all evidence favorable to the non-movant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

Statute of Limitations

We first address Farrall & Blackwell’s contention that Lozada’s causes of action for negligence, negligent misrepresentation, and violations of the DTPA and Insurance Code are barred by limitations. When a defendant moves for summary judgment on the affirmative defense of limitations, it has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Housing Finance Corporation, 988 S.W.2d 746, 748 (Tex.1999). “The defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pled or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury.” Walker v. Presidium, Inc., 296 S.W.3d 687, 694 (Tex.App.-El Paso 2009, no pet.) (citing KPMG Peat Marwick, 988 S.W.2d at 748). Once the defendant establishes limitations as a bar to the action, the plaintiff must then adduce summary judgment proof raising a fact issue to avoid the statute of limitations. Id.

By statute, there is a two-year limitations period for violations of the DTPA and Insurance Code, and for suits for negligence and negligent misrepresentation. See Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 2002); Tex. Ins.Code Ann. § 541.162 (Vernon 2009); Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp. 2009). Generally, that limitations period begins to run when a particular cause of action accrues, that is, “when a wrongful act causes a legal injury regardless of when the plaintiff discovers the injury or if all resulting damages have not yet occurred.” Walker, 296 S.W.3d at 694 (citing Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998)). However, when insurance benefits are the issue in such causes of action, the statute of limitations begins running on the day the insurance claim is denied. See Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003) (DTPA); Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 100 (Tex.1994) (Insurance Code); Johnson & Higgins v. Kenneco Energy, 962 S.W.2d 507, 514 (Tex.1998) (negligence); Walker, 296 S.W.3d at 691, 694-95 (negligent misrepresentation).

Here, Lozada received a letter in April 2004, that revealed her claim for benefits was denied. Specifically, the letter stated that based on the “Not Taken” letter issued in December, no policy was in force and no benefits are payable. At that point, the two-year statute of limitations began running for any violations of the DTPA and Insurance Code, and for any claims of negligence and negligent misrepresentation. See Knott, 128 S.W.3d at 221; Coats, 885 S.W.2d at 100; Johnson & Higgins, 962 S.W.2d at 514; Walker, 296 S.W.3d at 691, 694-95. Thus, Lozada’s suit for such claims filed on July 20, 2006, is barred by the statute of limitations.

Nevertheless, Lozada contends that the denial letter dated April 1, 2004, was insufficient to trigger the statute of limitations as the letter does not reveal that the decision to deny benefits was based upon the facts as they existed on February 28, 2004, namely, that Jose Lozada was in the process of reapplying for benefits and had signed a Short Health Statement, “PAC” form, and Acknowledgment of Delivery of Policy. However, nothing in the letter suggests that AIG did not take into consideration the facts as existed on February 28, 2004. Indeed, the letter was actually sent in response to a benefits claims made on March 17, 2004. And the evidence established that simply signing those documents was not sufficient to provide binding coverage as AIG needed a new Part B “to consider reopening and redating.” Moreover, a claim-denial letter need not address such issues. Rather, it simply must convey the insurer’s determination of the insurance claim and the reason for the decision. Knott, 128 S.W.3d at 222-23. The letter did so in this case — it conveyed AIG’s determination regarding the claim (“there will be no claim benefits payable”) and the reason for the decision (“the policy is not in force”). And even if AIG issued a second letter specifically setting out the specific facts as they existed on February 28, 2004, settled law dictates that the first denial letter still triggered the statute of limitations. See Coats, 885 S.W.2d at 100; Pace v. Travelers Lloyds of Tex. Ins. Co., 162 S.W.3d 632, 635 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

Relying on the discovery rule, Lozada further asserts that the statute of limitations did not begin running until August 9, 2004, when she and her daughter spoke to Dennis about what happened with the second application for benefits. According to Lozada, she lacked “enough information to make a determination on who had, or had not, done what, in connection with the issue of life insurance coverage for [her] husband” until she spoke to Dennis and received certain information. Although the discovery rule tolls the limitations period until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury caused by the wrongful act of another, Childs, 974 S.W.2d at 40, the discovery rule “does not linger until a claimant learns of actual causes and possible cures.” PPG Industries, Inc. v. JMB/Houston Centers Partners, 146 S.W.3d 79, 93 (Tex.2004). Rather, the limitations clock is ticking from the day the insurance company denies coverage. Knott, 128 S.W.3d at 222; Johnson & Higgins, 962 S.W.2d at 515. Therefore, it makes no difference that Lozada did not yet know the specific cause of the injury, the party responsible for it, the full extent of the harm, or the chances of avoiding it. PPG Industries, 146 S.W.3d at 93-94. Lo-zada should have brought her suit within two years from the day AIG denied benefits.

Finally, we reject Lozada’s claim that limitations was tolled by fraudulent concealment. Fraudulent concealment defers an action’s accrual period until the plaintiff discovers or should have discovered the deceitful conduct or facts giving rise to the cause of action. Earle v. Ratliff, 998 S.W.2d 882, 888-89 (Tex.1999). It “requires evidence that the defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.” Id. at 888. A showing that the defendant was merely negligent in what it did is not sufficient to establish the affirmative defense. Id. at 889.

Here, there is no evidence that Farrall & Blackwell knew which documents to submit for insurance coverage and then purposely provided wrong documents for Jose to sign. Rather, they contacted MFS to inquire into what documents should be provided. This is not evidence that Farrall & Blackwell fraudulently concealed any facts giving rise to Lozada’s cause of action. Accordingly, we find that the trial court did not err by granting summary judgment on Farrall & Blackwell’s limitations defense for negligence, negligent misrepresentation, and violations of the DTPA and Insurance Code.

Fraud

Lozada also challenges the trial court’s implicit determination that she failed to prove her cause of action for fraud. In this regard, Lozada makes two arguments: (1) that Farrall & Blackwell told Jose, through Dennis, that the Short Health Statement, PAC form, and Delivery of Policy were the documents that would effectuate coverage; and (2) that Farrall & Blackwell did not know what was needed to obtain the desired coverage and simply “guessed at what the answer might be.” We disagree.

Statements are not fraudulent unless the speaker knew they were false when made or that they were made recklessly without knowledge of the truth. Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 168 (Tex.1995). Whether statements were made knowing of their falsity or without knowledge of their truth may be proved by direct or circumstantial evidence. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 482, 435 (Tex.1986).

Here, there is no evidence that anyone ever told Jose Lozada that the subject documents would effectuate coverage. The depositions revealed that Farrall & Blackwell never spoke directly to the Lozadas, that Farrall & Blackwell never told Dennis to tell the Lozadas that the documents would guarantee coverage, and that Dennis knew the documents did not effectuate coverage and conveyed this understanding to the Lozadas. Moreover, even after the documents were signed, deposition testimony revealed that a new underwriting process would be required before approval as there was more than a three-month break since the policy was first offered to Jose. Although Lozada relies on statements contained in her affidavit and the affidavits of her daughter and Mejorado that Dennis told them that the documents effectuated coverage, the trial court struck those statements as hearsay. Accordingly, absent any evidence that Farrall & Blackwell told Jose, through Dennis, that the Short Health Statement, PAC form, and Delivery of Policy were the documents that would effectuate coverage, Lozada’s first fraudulent complaint fails.

Furthermore, we have been unable to find any evidence that Farrall & Blackwell knowingly and recklessly gave any wrong documents to Jose Lozada to sign. Rather, the deposition testimony shows that Farrall & Blackwell contacted MFS, who then contacted AIG, to find out which documents to provide. Farrall & Blackwell then provided only those documents that MFS told it to provide. In other words, Farrall & Blackwell only gave Jose Loza-da documents after making an investigation and obtaining sufficient information or basis to suggest that the documents provided were correct. See Johnson & Higgins, 962 S.W.2d at 527 (finding no fraud where defendant made investigation before making representation, even if the representation was incorrect). Thus, Lo-zada’s second fraudulent complaint fails, and the trial court did not err by granting summary judgment in favor of Farrall & Blackwell on Lozada’s fraud claim.

Promissory Estoppel

Lozada next challenges the trial court’s implicit determination that she failed to prove the elements of promissory estoppel. The elements of a promissory estoppel claim are: (1) a promise; (2) reliance thereon that was foreseeable to the promisor; and (3) substantial reliance by the promisee to his detriment. Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 378-79 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983)). Here, we find no evidence that a promise was made and thus do not address the other elements. See Boy Scouts of America v. Responsive Terminal Sys., Inc., 790 S.W.2d 738, 743 (Tex.App.-Dallas 1990, writ denied).

A promise is a declaration that binds the person who makes it to act or refrain from acting in a particular way. Traco Inc. v. Arrow Glass Co., 814 S.W.2d 186, 190 (Tex.App.-San Antonio 1991, writ denied). Here, Lozada contends that Far-rall & Blackwell’s actions in providing paperwork to Dennis for Jose to sign for purposes of submitting the policy application to AIG for underwriting was sufficient to create a promise, that is, that Jose would be granted coverage once he signed the documents. But again, other than statements made in Lozada’s affidavits, which were excluded by the trial court, there is no evidence that Farrall & Blackwell ever spoke directly to the Lozadas, that Farrall & Blackwell ever told Dennis to tell the Lozadas that the documents would guarantee coverage, or that Dennis knew the documents effectuated coverage and conveyed that understanding to the Lozadas. Finding no promise that merely signing the documents created any binding coverage, the trial court did not err by granting summary judgment in favor of Farrall & Blackwell on Lozada’s claim for promissory estoppel.

Damages

Finally, Lozada asserts that she is entitled to damages based on her causes of actions asserted. However, because we have found that the trial court correctly granted Farrall & Blackwell’s amended motion for summary judgment on the actions alleged, Lozada is not entitled to damages. Issue One is overruled.

LAW OF AGENCY

Lozada’s remaining issue, that is, her second issue, contests the trial court’s implicit determination that Dennis was not Farrall & Blackwell’s agent. In this regard, Lozada argues that Dennis had actual or apparent authority to bind Farrall & Blackwell, and that Farrall & Blackwell ratified his conduct. We disagree.

Applicable Law

The existence of an agency relationship may be based on actual or apparent authority. Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 550 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Actual authority, which includes both express and implied authority, generally denotes authority that a principal (1) intentionally confers upon an agent, (2) intentionally allows the agent to believe that he possesses, or (3) allows the agent to believe that he possesses by want of due care the authority to act on behalf of the principal. Suarez v. Jordan, 35 S.W.3d 268, 273 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Express authority is delegated to an agent by words that expressly and directly authorize the agent to do an act or series of acts on behalf of the principal. Crooks v. M1 Real Estate Partners, Ltd., 238 S.W.3d 474 (Tex.App.-Dallas 2007, pet. denied). Implied authority is the authority to do whatever is reasonably necessary and proper to carry out the agent’s express powers. Nears v. Holiday Hospitality Franchising, Inc., 295 S.W.3d 787, 795 (Tex.App.-Texarkana 2009, no pet. h.). If an agent does not have express authority, he does not have implied authority. Crooks, 238 S.W.3d at 483.

“Apparent authority arises through acts of participation, knowledge, or acquiescence by the principal that clothe the agent with the indicia of apparent authority.” Ins. Co. of North America v. Morris, 981 S.W.2d 667, 672 (Tex.1998). “One seeking to charge a principal through the apparent authority of its agent must establish conduct by the principal that would lead a reasonably prudent person to believe that the agent has the authority that it purports to exercise.” Nations-Bank, N.A. v. Billing, 922 S.W.2d 950, 953 (Tex.1996). “The principal must have affirmatively held out the agent as possessing the authority or must have knowingly and voluntarily permitted the agent to act in an unauthorized manner.” Id.- Only the conduct of the principal is relevant to determining whether apparent authority exists. Id. at 952-53.

Moreover, even if the alleged agent is not initially authorized to act on behalf of a principal, that agent’s actions may be attributed to the principal if the principal later ratifies the agent’s conduct. Walker Ins. Servs., 108 S.W.3d at 552. Thus, ratification occurs when a principal supports, accepts, or follows through on the efforts of a purported agent. Id. As noted by our sister court of appeals, “Ratification is the affirmance by a person of a prior act which when performed did not bind him, but which was professedly done on his account, whereby the act is given effect as if originally authorized by him.” Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 31 (Tex.App.-San Antonio 1998, pet. dism’d w.o.j.).

Application

Lozada relies on the fact that Far-rall & Blackwell gave Dennis paperwork for Jose Lozada to sign to support a finding of actual and apparent authority, and ratification. However, in Gaines, the Supreme Court found that a mortgage broker’s authority to deliver documents and facilitate the processing of the loan on the lender’s behalf did not include the authority to negotiate terms and commit the lender. Gaines v. Kelly, 235 S.W.3d 179, 182-84 (Tex.2007); see also Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 915-17 (Tex.App.-Dallas 2008, no pet.) (finding general contractor was not homeowner’s agent despite signing a contract with Total Heat & Air to perform work on the house). Similarly, here, we believe, given the evidence before us, that Dennis’ action of simply delivering paperwork or assisting in their completion does not equate to a finding that Dennis was Farrall & Blackwell’s agent, much less for binding purposes.

Moreover, the record does not contain any evidence that Dennis was an agent of Farrall & Blackwell. In his deposition, Dennis expressly denied that he was an agent for Farrall & Blackwell. Similarly, Farrall & Blackwell denied that Dennis was their agent. Even Lozada’s own expert denied that Dennis was acting as Farrall & Blackwell’s agent. Rather, Dennis solely represented that he was an agent of AIG. And even as AIG’s representative, Dennis denied that he had any binding authority, that is, to issue the policy or put it in place. Accordingly, Issue Two is overruled.

CONCLUSION

Having overruled Lozada’s issues, we affirm the trial court’s judgment.

      . Farrall & Blackwell could not contact AIG directly “because the way they were structured, the brokerages would go to the IMO and the IMO would present that to the [insurance] company.”

      . Part B is a form that asks detailed questions about a proposed insured’s medical history and current medical conditions.

      . In addition, Lozada asserts that the trial court erred by striking paragraphs 9 and 10 of Virginia’s affidavit as irrelevant under Rule 402. However, the record reflects that the trial court overruled Farrall & Blackwell's objections to those paragraphs. Consequently, Lozada's complaint is misplaced.

      . We note that the depositions revealed that once the documents were received, it would take at least ten days to make it through underwriting and issue a policy, if approved. Jose signed the documents on February 28, 2004, and died on March 5, 2004.


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    In re Albert CERCONE, Relator.
    No. 05-10-01076-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 7, 2010.

      Charles Sartain, Looper, Reed & McGraw, P.C., Dallas, TX, for Relator.
    Benjamin Laurence Stool, Crim. Dist. Atty’s Office, Bruce Sherbet, Dallas, TX, J. Darlene Ewing, Law Offices of J. Darlene Ewing, Sunnyvale, TX, for Respondent.
    G. Kevin Buchanan, Buchanan & Burke, L.L.P., Joseph Ramirez Miller, Law Office of Joseph Miller, Dallas, TX, for Real Party in Interest.
    Before Justices MOSELEY, BRIDGES, and LANG.
   OPINION

Opinion By

Justice MOSELEY.

This is a petition for writ of mandamus concerning the November 2, 2010 general election ballot. Relator, Albert Cercone, is the Republican Party nominee for the office of Dallas County Justice of the Peace, Precinct 3, Place 1. Respondent Darlene Ewing is Chair of the Dallas County Democratic Party. Respondent Bruce Sherbet, Elections Administrator for Dallas County, is responsible for printing and mailing the general election ballots. Tex. ElegCode Ann. §§ 31.043, 52.002 (West 2010).

Cercone asserts that Real Party in Interest Joseph Ramirez Miller has or is going to be certified as the Democratic Party’s nominee for that office. He requests this Court issue a writ of mandamus: (1) ordering Ewing to not certify Miller as the Democratic Party’s nominee for that office; and (2) ordering Sherbet to not place Miller’s name on the ballot for that office.

This Court has jurisdiction to consider relator’s petition for writ of mandamus and to “compel the performance of any duty imposed by law in connection •with the holding of an election ... regardless of whether the person responsible for performing the duty is a public officer.” Tex. Elec.Code Ann. § 273.061 (West 2010). We may not resolve disputed fact issues in an original proceeding. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990). Before we may issue a writ of mandamus, relator must have a clear legal right to performance of the act he seeks to compel, and the duty of the officer sought to be compelled must be one clearly fixed and required by the law. In re Link, 45 S.W.3d 149, 151-52 (Tex.App.-Tyler 2000, orig. proceeding).

Per the record, the following is undisputed. Sabeeha Kazmi, who is not a party to this action, filed an application for a place on the March 2, 2010 Democratic Party primary ballot for the office of Dallas County Justice of the Peace, Precinct 3, Place 1. Ewing’s notation on Kazmi’s application indicates that it was accompanied by a petition in lieu of the required filing fee, consisting of 89 pages. By law, the petition must contain 750 valid signatures. See Tex. Elec.Code Ann. §§ 172.021(e), 172.025(2).

An application for a place on the ballot cannot be challenged “as to form, content, and procedure after the day before the beginning of early voting by personal appearance .... ” Tex. Elec.Code Ann. § 141.034. For the March 2, 2010 Democratic primary election, that deadline was February 12, 2010. See Tex. Elec.Code Ann. § 85.001. Prior to that date, on January 17, 2010, Cercone wrote Ewing, challenging the number of valid signatures on Kazmi’s petition. Ewing responded by letter the next day, stating, “I have reviewed your challenge to Ms. Sabeeha Kazmi based on insufficient signatures. Based upon the review, I do not believe Kazmi has the requisite 750 signatures. Accordingly, I have declared Kazmi ineligible for the Democratic primary ballot.” Kazmi’s name remained on the primary election ballot.

On August 26, 2010, Cercone filed this petition for writ of mandamus. He asserts Ewing has or is going to certify Miller as the Democratic nominee for the office of Dallas County Justice of the Peace, Precinct 3, Place 1, in replacement of Kazmi. Attached to Cercone’s petition is his sworn affidavit. He states that at various times after the primary election, Kazmi’s name appeared on the Dallas County Democratic Party website as a candidate for the office. On July 7, 2010, Cercone noticed that Miller’s name appeared on the website as the Democratic Party nominee for the office. On July 15, 2010, Cercone sent a letter to Ewing under the open records act asking for documents that would show the process by which Miller became the nominee. Cercone states that Ewing has not responded to his letter.

In addition, Cercone attaches .what he swears to be true and correct copies of: Kazmi’s application, including the petition attached thereto; his letter to Ewing, and Ewing’s letter to him in response. He also attaches a copy of a printout of the Dallas County Democratic Party website showing Miller as the party’s candidate for the office and a copy of his July 15 letter to Ewing.

We requested responses from real parties in interest and respondents. See Tex. R.App. P. 52.

Ewing’s response states that: (1) the party’s district executive committee for Justice of the Peace Precinct 3 met on May 17, 2010 and nominated Miller as the replacement candidate for that office; and (2) on May 18, 2010, Miller was certified to the election authority as the Democratic Party’s replacement nominee for the office. Sherbet’s amended response includes his affidavit, stating, in part: “Our records reflect there are two candidates running for this place: Albert Cercone (Republican) and Joseph Ramirez Miller (Democrat).” Attached to his response is a certified copy of a May 18, 2010 letter from the Dallas County Democratic Party certifying Miller as the party’s replacement nominee for the office. The letter, signed by W. David Griggs as chair of the party’s district executive committee for Justice of the Peace Precinct 3, states the reason for the vacancy is the “ineligibility” of Kazmi. As chair of the relevant executive committee, Griggs was responsible for communicating any replacement nominee to the authority responsible for having the official ballot prepared. ' See Tex. Elec.Code Ann. § 145.037(d).

Cercone asserts that although Kazmi’s application was deficient for lack of the necessary number of signatures on her petition, there is nothing to indicate she was “ineligible” for the position under the election code. His petition states his position: “There is no authority under the Texas Election Code for a political party to select and certify a replacement nominee for a candidate who was removed for filing an invalid application for a place on the ballot.” Ewing argues Cercone is not entitled to mandamus relief because he failed to make a demand for performance of a ministerial duty or non-discretionary act. See In re Cullar, 320 S.W.3d 560, 564 (Tex.App.-Dallas 2010, orig. proceeding).

Section 145.003 controls the process for an administrative — i.e. county chair’s-— declaration of ineligibility and “[e]xcept for a judicial action in which a candidate’s eligibility is in issue, a candidate may be declared ineligible only as provided, by this section.” Tex. Elec.Code Ann. § 145.003(a) (emphasis added). The section also states:

(f) A candidate may be declared ineligible only if:

(1) the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office; or
(2) facts indicating that the candidate is ineligible are conclusively established by another public record.

Id. § 145.003(f) (emphasis added). Additionally, the only authorization for naming of a replacement nominee for placement on the general election ballot is set forth in section 172.058. In pertinent part, it provides:

(a) If a candidate who has made an application for a place on the general primary election ballot that complies with the applicable requirements dies or is declared ineligible after the 62nd day before general primary election day, the candidate’s name shall be placed on the ballot and the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for the other candidates.
(b) If the deceased or ineligible candidate receives the vote required for nomination, the appropriate executive committee may select the nominee and certify the nominee’s name of replacement on the general election ballot as provided by Subchapter B of Chapter 145, for filling a vacancy in a nomination.

Id. § 172.058(a), (b) (emphasis added). This and other sections of the election code show a clear distinction between the requirements for an application and the requirements for eligibility to hold a public office. See id. §§ 141.001; 141.031; 141.082; 141.034; 172.029(d); Escobar v. Sutherland, 917 S.W.2d 399, 409 (Tex.App.-El Paso 1996, orig. proceeding) (challenge to requirements of form, content, and procedure for application is “distinctly different and completely separate” from challenge to candidate’s eligibility for office).

Ewing’s stated reason for her declaration that Kazmi was ineligible was that Kazmi’s petition lacked the required number of valid signatures. That is not a valid ground for declaring a candidate ineligible. Tex. EleC.Code Ann. § 145.003(f). However, entitlement to mandamus relief generally requires: a legal duty to perform a non-discretionary act; a demand for performance; and a refusal. In re Cullar, 320 S.W.3d 560, 564 (Tex.App.Dallas 2010, orig. proceeding). The record does not include any evidence of a demand to Ewing to perform the act he requests this Court to compel — that Ewing not certify Miller as the Democratic Party nominee. Cercone’s July 15 letter to Ewing is not a demand to not certify or remove Miller as a replacement nominee.

Moreover, the duty implicated by Cer-cone’s argument is the duty of Ewing as party chair to declare a candidate ineligible only on one of the two statutory grounds stated in section 145.003(f). See In re Tolliver, 2002 WL 92919 at *2 (Tex.App.-Dallas 2002, orig. proceeding) (not designated for publication). By declaring Kazmi ineligible, Ewing triggered the power to nominate a replacement candidate. See Tex. Elec.Code Ann. §§ 172.058(b); 145.036-.037.

The record does not show that Cercone ever demanded that Ewing perform her duty not to declare Kazmi ineligible for any reason other than the exclusive reasons in section 145.003(f). Absent this demand and a refusal, Cercone has not shown his entitlement to mandamus relief.

There is an exception to the demand requirement in those rare circumstances where the “request would have been futile and the refusal little more than a formality.” In re Perritt, 992 S.W.2d 444, 446 (Tex.1999) (per curiam) (quoting Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.1991)). Cercone asserts any request on Ewing would have been futile because she erroneously declared Kazmi ineligible and then proceeded to cause the selection and certification of an illegal replacement nominee. However, Ewing agreed with Cercone’s challenge to the signatures required for Kazmi’s application. It is certainly possible that Ewing would have responded to a demand to set aside her declaration of ineligibility because Cer-cone’s challenge did not implicate Kazmi’s eligibility for office. Such a request and refusal is necessary for mandamus relief. Cullar, 320 S.W.3d at 566-67.

With regard to Sherbet, the record indicates that Miller has been certified to Sherbet as a candidate. Cercone admits that “Sherbet has no authority to inquire into the validity of the certification of Miller.... If Sherbet believes that the certification of Miller was unlawful, there is nothing that he, acting on his own authority, can do about it.” We agree. Cercone also cites — correctly—section 52.003 as requiring Sherbet to place on the ballot the name of each candidate “whose entitlement to placement on the ballot has been lawfully certified to the authority.” Tex. Elec. Code Ann. § 52.003(a)(2).

Cercone cites no statute imposing a duty-on Sherbet to omit the name of a candidate who has been certified absent a determination by a trial court or other proper authority that the certification was unlawful. Rather, Cercone’s position is that Miller’s certification was unlawful, and that we should issue a writ of mandamus directing Sherbet to not place Miller’s name on the ballot. We agree with Cercone that a demand on Sherbet in this situation would have been futile. However, absent a demand on Ewing to withdraw the declaration of ineligibility or a determination by an appropriate authority that certification of Miller was unlawful, Sherbet’s duty to place the certified replacement nominee on the ballot is fixed. See Tex. Elec.Code Ann. § 52.003(a)(2).

Section 273.061 does not grant us power to issue mandamus relief ordering performance of a duty “not precisely identified as a duty by statute.” Cullar, 320 S.W.3d at 566. As we said in Cullar, “We find no applicable section of the election code that empowers us to simply declare [Miller] ineligible and order respondents to do whatever is necessary to take [Miller] off the ballot.” Id.

The law provides avenues for relief of any violation of the election code. See Tex. Elec.Code Ann. § 273.081 (availability of injunctive relief for person harmed or in danger of being harmed by a violation or threatened violation of the election code); see also §§ 145.003(h), 145.005 (procedure generally for determination of ineligibility occurring after the deadline for omitting an ineligible candidate’s name from the ballot). Under the substantive and procedural facts of this case as presented to us, however, those avenues do not include mandamus. See Tex. Elec.Code Ann. § 273.061.

We conclude relator has not shown he is entitled to mandamus relief. See Cullar, 320 S.W.3d at 567. Accordingly, we deny the petition for writ of mandamus. Tex. R.App. P. 52.8(a). By separate order, we vacate the stay issued in this proceeding.

Because of the time remaining as to certain deadlines identified by the relator, see Tex. Elec.Code Ann. §§ 145.064-.065, no motion for rehearing will be entertained.

      . All statutory references herein are to the Texas Election Code unless otherwise indicated.

      . Subchapter B of Chapter 145 applies to "a candidate who is a political party’s nominee in the general election for state and county officer except a candidate for president or vice-president of the United States.” Tex Elec.Code Ann. § 145.031.

      . And the person responsible for certifying Miller was Griggs, not Ewing. See id., § 145.037(d).


author: PATRICK A. PIRTLE, Justice.

text:
    Alfredo PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 07-08-0425-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    Sept. 8, 2010.

      Maxwell C. Peck III, Attorney at Law, Amarillo, TX, for Appellant.
    Kollin Shadle, Assistant Criminal District Attorney, Lubbock, TX, for Appellee.
    Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Following an open plea of guilty to the offense of murder, Appellant, Alfredo Perez, was adjudicated guilty as charged. The trial court then proceeded to a punishment hearing where Appellant offered evidence of sudden passion. Normally, murder is a first degree felony punishable by confinement for life or for any term of not more than 99 years or less than 5 years. Tex. Penal Code Ann. §§ 19.02(c) and 12.32(a) (Vernon 2003 and Vernon Supp. 2009). If, however, at the punishment stage of a trial, the defendant proves in the affirmative by a preponderance of the evidence that he caused the death under the immediate influence of sudden passion arising from an adequate cause, then the offense is a felony of the second degree punishable by confinement for a term of not more than 20 years or less than 2 years. Texas Penal Code Ann. §§ 19.02(d) and 12.33(a) (Vernon 2003 and Vernon Supp. 2009). See Sanchez v. State, 23 S.W.3d 30, 34 (Tex.Crim.App.2000). At the conclusion of the punishment hearing, the court assessed Appellant’s sentence at confinement for life. In two issues, Appellant contends the trial court’s negative finding on his issue of sudden passion is legally and factually insufficient. We affirm.

Background

On August 4, 2007, the Lubbock County Grand Jury returned an indictment charging Appellant with intentionally and knowingly causing the death of Javier Castaneda with a firearm on July 25, 2007. On October 13, 2008, Appellant pled guilty to the charge without an agreed recommendation as to punishment.

During the punishment phase of the case, Danielle Galindo, Appellant’s girlfriend, testified that, on July 25, 2007, she and Appellant were riding in his car when they encountered a group of people walking on 39th Street in Lubbock, Texas. Someone in the group threw a brick at them and started shooting. Appellant drove her back to his house arriving about 5:00 p.m. He went to his bedroom and retrieved a gun saying he was going to pick up his little brother, Vincent Sandoval, because he had seen him walking in the area near to where the altercation had occurred. She testified “he was really mad when he left,” but he promised he would “come right back.” She testified that when Appellant returned around 6:00 p.m., he was “shocked, mad or something” and he told her “somebody got shot.”

Julian Castaneda, Javier’s brother, next testified that on July 25, 2007, he and a group of friends, Jose Castaneda (known as “PePe”), Javier Castaneda, Jesse Alvar-edo, Alfred Luis Molina (known as “LuLu”), and Michael Moreno, were walking down 43rd Street when Appellant drove by in his car and said “Y’all keep walking up and down like that, we got something for y’all.” He and Appellant exchanged a few words and Appellant drove away. Subsequently, the group was walking on 39th Street when two cars approached. Appellant and Vincent were in one car and two other persons were in the other car. After the occupants emptied out of the cars, a nearby neighbor told everyone to leave. At this point, LuLu threw a brick at Appellant’s car and broke out a window. Thereafter, the cars left and the group continued walking down the street.

Later, as the group entered the parking lot of a nearby elementary school, they saw Appellant’s car pull up to a stop sign approximately 20 to 30 yards away and sit for approximately five seconds. Feeling safe because the car was on the other side of the street, Julian threw up his hands. Appellant and Vincent then got out of the car. Julian approached with an unidentified member of the group taking perhaps five steps when Appellant and Vincent started shooting. The group turned and ran. Julian heard Javier say, “I’m hit.” He grabbed Javier and took him around the corner of the school building. Javier later died of a gunshot wound to the stomach. Julian testified that, although he and Appellant had problems in the past, Javier had nothing to do with any conflict between them. According to his testimony, on that day Javier was “just hanging out.”

Jose Castaneda testified next and corroborated Julian’s account of the events that transpired. He also testified that, prior to the commencement of the shooting near the elementary school no one said anything to anyone. By Jose’s account, when Appellant and Vincent got out of the car, they were holding handguns and when they started shooting, everyone ran.

Detective Larry Manale testified he located .22 caliber, long rifle casings on the ground where Appellant had stopped his car near the elementary school. He also testified there was a bullet hole in Appellant’s car. Although the bullet hole appeared recent, he could not say when it was made. A bullet was found inside the door panel, but they could not identify the caliber. When asked how long it would take to drive from Appellant’s house to the location of the shooting, Detective Manale testified he had driven the route at a normal speed in a minimum of ten minutes.

Angelica Reyna testified she saw two cars pull up on 39th Street across from a group of kids. She recognized LuLu, who was a friend of her husband’s. She didn’t see any weapons but told her husband to go outside thinking there was going to be a fight. She testified that the persons in the two cars got out and when her husband came outside and told them to leave, LuLu broke windows in both cars with bricks. At that point the two cars drove away. With the exception of the bricks thrown by LuLu, no one appeared to have any weapons. After that, the group started walking away and about ten minutes later, she heard gunshots.

Detective Jeremy Jones testified the murder weapon was never located. At 41st Street and Avenue D, where witnesses placed Appellant and Vincent at the time of the shooting, he found shell casings for a .22 long rifle. Witnesses also placed an orange-tipped pistol in Vincent’s hands and he located an orange-tipped, plastic toy pistol in a dumpster not far from where the shooting occurred. During his investigation, Jones encountered several inconsistencies in different witness statements. Some witnesses said members of the group were carrying a bat and two-by-four, others said they were not. Other witnesses said they saw at least three members of the group chasing Appellant’s car near the elementary school, others did not.

After the State rested, Appellant testified. According to his version of the events, he and his girlfriend were driving around Lubbock when they encountered a group of persons walking. A brick was thrown through his car window and he heard gunshots. He panicked and drove off fast-scared. He recognized Julian Castaneda as a member of the group, and LuLu as the person who had thrown the brick. Later, he found a bullet hole in the side of his car. As he drove home, he noticed Vincent walking. When he arrived at his house, he ran to his room and grabbed his gun, a .22 caliber rifle, and told Danielle that he was going back to get Vincent.

After he picked up Vincent, Appellant testified Vincent wanted to go to his dad’s house. On the way there, he stopped at a stop sign near an elementary school and noticed the same crowd that had earlier thrown the brick at his car. He turned the corner to avoid a confrontation but noticed the crowd running toward his car. He stopped to avoid another car backing out of a driveway and observed that the crowd was gaining on him. He jumped out of his car, armed himself with his rifle, and fired shots into the air. He then jumped back into his car and drove away. He testified he did not know that he had shot anyone until Vincent told him, “I think one of them got hit.” He later wrapped the gun in a black shirt and threw it into a dumpster before taking off for Dunbar Lake. He stayed at the lake all night because “he was on the run.”

Appellant further testified that, after the initial encounter, he was upset. He described his mood at the house when he picked up his gun and at the school when he fired the warning shots as mad, panicking, and scared. He testified that, when he fired his rifle, he did not know that Javier was in the group. The only person he recognized was Julian and he admitted “[t]here had been bad blood between him and Julian Castaneda.” He testified that in 2006 he had gotten in a fight with Julian’s cousins. Before that, when he was seventeen, he was jumped by some people who called themselves the “Texas Head Busters” and was hit twice in the face with a two-by-four. He attributed the beating to associates of Julian. When he was eighteen, he was shot in the stomach by Julian’s friend, Jeremy Paiz.

Detective Rene Martinez was then called as a rebuttal witness for the State. He testified he investigated a shooting that occurred January 19, 2007. At the conclusion of his investigation, he determined that Kevin Corales, Jeremy Paiz, and Steven Lee Perez had been involved in shooting Appellant. Information he gathered during the investigation led him to believe the shooting had to do with a “drug deal or drug deal rip-off.”

After the punishment hearing, the trial court issued its judgment sentencing Appellant to confinement for life. This appeal followed.

Discussion

Appellant contends the trial court’s negative finding on the issue of whether he acted under the influence of sudden passion arising from adequate cause was so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant asserts that the group running towards his car with long objects combined with the earlier incident where a brick was thrown at his car and he was fired upon represented sufficient provocation to produce a degree of terror that rendered him incapable of cool reflection.

I. Issue No. 1 — Legal Sufficiency

A. Standard of Review

An appellate court may review the legal sufficiency of the evidence to support a fact finder’s rejection of an issue on which the defendant bore the burden of proof, i.e., affirmative defenses and the issue of sudden passion. See Clark v. State, 190 S.W.3d 59, 62 (Tex.App.-Amarillo 2005, no pet.); Cleveland v. State, 177 S.W.3d 374, 388 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (en banc), cert. denied, 547 U.S. 1073, 126 S.Ct. 1774, 164 L.Ed.2d 523 (2006); Ballard v. State, 161 S.W.3d 269, 272 (Tex.App.-Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex.Crim.App.2006).

When conducting a legal sufficiency review of the evidence related to an issue on which the defendant bore the burden of proof, an appellate court reviews the evidence in a light most favorable to the verdict and reverses only when the evidence conclusively establishes the opposite. See Wheat v. State, 165 S.W.3d 802, 806 n. 6 (Tex.App.-Texarkana 2005, pet. dism’d, untimely filed); Howard v. State, 145 S.W.3d 327, 331 (Tex.App.-Fort Worth 2004, no pet.). An appellate court reviews the legal sufficiency of such evidence under a two-part test. See Clark, 190 S.W.3d at 62; Cleveland, 177 S.W.3d at 388; Howard, 145 S.W.3d at 334. First, the appellate court examines the record for evidence that supports the verdict (i.e., the negative finding) while ignoring evidence to the contrary; see Clark, 190 S.W.3d at 62; Cleveland, 177 S.W.3d at 388; Howard, 145 S.W.3d at 334, and, if there is no evidence to support the verdict, the court then examines whether the record supports the defendant’s affirmative defense or issue as a matter of law. See Clark, 190 S.W.3d at 62; Nolan v. State, 102 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). If the record reveals evidence of the defendant’s affirmative defense or issue that was not subject to a credibility assessment, the evidence shows as a matter of law that the defendant proved his affirmative defense or issue. See Cleveland, 177 S.W.3d at 388-89. However, if the evidence supporting the defendant’s affirmative defense or issue was subject to the fact finder’s assessment of credibility, that evidence is not eonsid-ered in the appellate court’s matter-of-law assessment. See Cleveland, 177 S.W.3d at 389.

B. Analysis

The core concept of “sudden passion” is that at the moment of the killing the actor’s mental state rendered him incapable of rational thought and collected action. See Swearingen v. State, 270 S.W.3d 804, 820 (Tex.App.-Austin 2008, pet. ref'd). “Sudden passion” is “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). “Adequate cause” is “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. at (a)(1). Merely acting in response to provocation by another is not enough to raise the issue; see Trevino v. State, 100 S.W.3d 232, 241 (Tex.Crim.App.2003), and the provocation must arise at the time of the offense. See Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003); Nance v. State, 807 S.W.2d 855, 861 (Tex.App.-Corpus Christi 1991, pet ref'd).

Examining the record for evidence that supports the trial court’s negative finding on the issue of sudden-passion, while ignoring evidence to the contrary, we find there is some evidence that Appellant did not kill Javier out of sudden passion arising from adequate cause. Based upon the testimony of Julian and Jose, the trial court could have reasonably found that Appellant was the protagonist in a series of unprovoked attacks that ultimately ended in Javier’s death. According to the testimony of other witnesses, Appellant first threatened the group while driving by in his car as the group was walking down 43rd Street. Then, he and Vincent, along with two others in a second car, confronted the group on 39th Street leading to an altercation, where LuLu threw a brick through Appellant’s car window. Appellant then confronted the group a third time near the elementary school where he got out of his ear and, standing twenty to twenty-five yards away from the group, opened fire with his rifle. Thus, there is some evidence Appellant forced the third confrontation and initiated an unprovoked attack causing Javier’s death.

Having reached the conclusion there is some evidence supporting the trial court’s negative finding on the issue of sudden passion, our legal sufficiency inquiry is at an end. See Howard, 145 S.W.3d at 333-34. We hold that the evidence concerning the trial court’s negative finding on Appellant’s sudden passion issue is legally sufficient as a matter of law. Appellant’s first issue is overruled.

II. Issue No. 2 — Factual Sufficiency

A. Standard of Review

When conducting a factual sufficiency review on an affirmative defense or issue on which the defendant had the burden of proof, an appellate court reviews all of the evidence in a neutral light, but we do not intrude on the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. See Clark, 190 S.W.3d at 63; Cleveland, 177 S.W.3d at 390-91; Wheat, 165 S.W.3d at 807 n. 6. When a defendant has asserted such an affirmative defense or issue, an appellate court considers all of the evidence and determines whether the judgment rendered is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd) (citing Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996)); Cleveland, 177 S.W.3d at 390; Ballard, 161 S.W.3d at 271. When an appellate court concludes the contrary evidence is insufficient to support rejection of defendant’s affirmative defense or issue, it must clearly state why the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias. See Meraz, 785 S.W.2d at 154 n. 2; Howard, 145 S.W.3d at 335. The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of the credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

B. Analysis

Appellant’s contention that the evidence was factually insufficient to establish a negative finding on his sudden passion issue relies entirely on a finding that Appellant’s testimony was credible. He asserts that, at the time of the occurrence, he was merely driving Vincent home, he brought the gun for his own protection, he stopped his car to avoid hitting another car, and, when he saw the group rapidly approaching with long objects, he got out of the car and fired warning shots into the air. Based upon his testimony, Appellant contends he was provoked by the group at a time when he was emotionally charged from the earlier confrontation where a brick was thrown through the window of his car and he was fired upon.

Sudden passion means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). Here, the only evidence of an identifiable, physical act that threatened Appellant was testimony and physical evidence establishing that his vehicle had been shot at some undetermined time in the past and that LuLu threw a brick into Appellant’s car window during a prior confrontation that day. Passion solely the result of former provocation is insufficient. See McKinney v. State, 179 S.W.3d 565, 570 (Tex.Crim.App.2005). When, as here, Appellant was the aggressor, or precip-itator of the confrontation, and neither Julian, nor those acting with him, did anything to provoke him at the time of the offense, it cannot be said that Appellant’s passion was directly caused by and arose out of adequate provocation at the time of the offense. See Nance v. State, 807 S.W.2d 855, 861 (Tex.App.-Corpus Christi 1991, pet. ref'd).

Furthermore, in most cases, the issue of sudden passion is resolved exclusively by the fact-finder’s assessment of whether the witness is credible; Cleveland, 177 S.W.3d at 391, and the fact-finder may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 n. 5. The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of the credibility and demeanor of the witness. 958 S.W.2d at 408-09. With the exception of testimony that Julian and an unidentified member of the group took steps towards Appellant after Appellant got out of the car at least twenty yards away, there is no evidence of any provocative acts, words, or omissions occurring immediately prior to Appellant shooting Javier. Thus, the trial court was free to disbelieve Appellant’s testimony and believe the State’s witnesses who testified Appellant engaged in an unprovoked attack resulting in a fatal gunshot wound.

After viewing the evidence in a neutral light, we hold that the trial court’s negative answer on the sudden passion issue is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Cleveland, 177 S.W.3d at 390. Appellant’s second issue is overruled.

III. Attorney’s Fees

We also note an issue not raised by Appellant regarding the assessment of attorney’s fees. The written judgment in this case reflects the assessment of court-appointed attorney’s fees totaling $6,868.00, as costs of court. In order to assess attorney’s fees as court costs, a trial court must determine that the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided. Tex.Code. Crim. Proc. Ann. art. 26.05(g) (Vernon 2009). Here, the clerk’s record reflects the trial court found Appellant indigent and unable to afford the cost of legal representation both before trial in August 2007, and again after trial in October 2008. Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. Tex.Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009). Therefore, because there is evidence of record demonstrating that immediately following rendition of judgment Appellant was indigent and qualified for court-appointed counsel, we presume that his financial status has not changed.

Furthermore, the record must reflect some factual basis to support the determination that the defendant is capable of paying attorney’s fees. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.-Amarillo 2009, no pet.).

We note that the record in this case does not contain a pronouncement, determination, or finding that Appellant had financial resources that enable him to pay all or any part of the fees paid his court-appointed counsel, and we are unable to find any evidence to support such a determination. Therefore, we conclude that the order to pay attorney’s fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App.2010). No trial objection is required to challenge the sufficiency of the evidence regarding the defendant’s ability to pay. Id. When the evidence does not support an order to pay attorney’s fees, the proper remedy is to delete the order. Id. at 557; see also Anderson v. State, No. 03-09-00630-CR, 2010 WL 2638465, at *3-4, 2010 Tex.App. LEXIS 5033, at *9 (Tex.App.-Austin, July 1, 2010, no pet.) (also modifying judgment to delete attorney’s fees). Accordingly, we modify the judgment to delete the order to pay attorney’s fees.

Conclusion

Having modified the trial court’s judgment to delete the order obligating Appellant to pay $6,868.00 in attorney’s fees, the judgment, as modified, is affirmed.

      . Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).

      . Before September 1, 1994, the existence of sudden passion was an element of the offense of voluntary manslaughter (a lesser-included offense of murder), to be determined by the jury at the guilt/innocence stage. See Bradley v. State, 688 S.W.2d 847, 849 (Tex.Crim.App.1985). Effective September 1, 1994, the existence of sudden passion became a punishment stage issue.

      . In the State’s case-in-chief, Davela Maynard, a Department of Public Safety Trooper, testified that, on June 30, 2007, Appellant had been arrested for possession of marijuana. After Trooper Maynard pulled Appellant over for a seat belt violation, Appellant attempted to flee the scene. After detaining Appellant, the trooper detected the smell of burnt marijuana and located marijuana in Appellant’s possession.

      . It is well-established that an appellate court may review the factual sufficiency of the evidence to support a negative finding on the sudden passion issue in the punishment stage of trial. Cleveland, 177 S.W.3d at 385. See Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App.1990).

      . Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878 (Tex.App.-Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the judgment, we find that the interest of justice allow that we address the issue.


author: Justice LANG.

text:
    In re EMPIRE PIPELINE CORPORATION; Empire Exploration, L.P.; & Empire Exploration Corporation, Relators.
    No. 05-10-01044-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 15, 2010.
    Rehearing Overruled Oct. 21. 2010.

      Robert L. Harris, Roger E. Beecham and Kevin Haynes C., Shannon, Gracey, Ratliff, & Mffler, LLP, Dallas, TX, for Relators.
    Emil Lippe, Jr., Lippe & Associates, Dallas, TX, for Real Party in Interest.
    Before Justices MOSELEY, LANG, and MYERS.
   OPINION

Opinion By

Justice LANG.

In this mandamus proceeding, relators Empire Pipeline Corporation; Empire Exploration, L.P.; and Empire Exploration Corporation (collectively, “Relators”) seek relief from the trial court’s order granting, in part, a motion by real party in interest H. Glenn Gunter to compel discovery relating to a mediation. Because we conclude the trial court abused its discretion and relators have no adequate remedy by appeal, we conditionally grant the writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gunter sued Relators in February 2006, alleging breach of a contract relating to oil and gas exploration and other theories of recovery (the “original underlying action”). At a December 2007 mediation, the parties signed a document entitled “settlement agreement” (the “agreement”). Among those present at the mediation was Rela-tors’ “attorney-in-charge,” Robert L. Harris.

Approximately two months later, Gunter moved to “vacate” the agreement, alleging it was invalid and unenforceable on several grounds, including duress and fraud. Re-lators filed a “response” to Gunter’s motion to vacate in which they included a prayer requesting that the trial court “enter judgment enforcing the Settlement Agreement and Dismissal with Prejudice of all Plaintiffs Claims.” Following a non-evidentiary hearing, the trial judge signed a March 25, 2008 order that both enforced the agreement and dismissed Gunter’s claims with prejudice. Gunter appealed in this Court.

While that appeal was pending, Gunter filed a separate suit in the trial court in which he asserted a declaratory judgment action against Relators (the “declaratory action”). In that declaratory action, Gun-ter sought, in part, “a declaration of and from [the trial court] that the alleged performance tendered by [Relators] ... has failed to comply with the terms of either the alleged Settlement Agreement or the underlying Judgment dated March 25, 2008.”

On July 24, 2009, this Court reversed the trial court’s judgment in the original underlying action and remanded that case to the trial court for further proceedings.

Specifically, this Court concluded “the trial court erred by rendering a judgment that essentially ordered specific performance of the settlement agreement without proper pleadings, proceedings, and proof.”

On March 5, 2010, Gunter served upon Relators’ counsel a “Notice of Deposition Duces Tecum of Robert L. Harris” (the “notice of deposition”) in both the original underlying action and the declaratory action. That notice stated Harris’s deposition would be taken “for use as evidence in this cause” and requested Harris to produce (1) all documents in the nature of notes and drafts from the mediation in this case held on or about December 12-13, 2007; (2) any form overriding royalty agreements or assignments to which he has access or which he utilizes or has utilized; and (3) all drafts or final versions of overriding royalty agreements or assignments relating to Relators. On March 10, 2010, Relators filed an amended motion to quash the notice of deposition and for a protective order. Relators asserted, inter alia, “mediation privilege,” attorney-client privilege, and attorney work-product privilege. Additionally, Relators argued generally that Gunter’s deposition and document requests in the notice of deposition fell outside the scope of proper discovery.

Gunter filed an April 20, 2010 motion to compel discovery (the “motion to compel”) in which he sought to compel Harris’s deposition and production of the documents identified in the notice of deposition. The specific scope of discovery sought by Gunter is described by him in the motion to compel as follows:

Here, the scope of the documents sought indicates the subject matter on which Robert Harris is to be deposed: discussions and negotiations with opposing parties, including the mediator and Plaintiff and his counsel, in connection with the alleged settlement agreement sought to be enforced by Defendants. Plaintiff is not seeking the work product of counsel, nor his trial strategy, but rather information going to the very heart of the issue: was an agreement actually reached at the mediation, and, if so, what were its terms?

Relators filed a response to that motion in which they asserted, inter alia, essentially the same arguments asserted in their motion to quash and for protective order.

In response to Relators’ counterclaim seeking specific performance of the agreement, Gunter filed an answer that was served upon counsel of record on July 2, 2010. In that answer, Gunter asserted “affirmative defenses and matters in avoidance” respecting the agreement that included, inter alia, (1) withdrawal of consent, (2) duress and coercion, (3) mistake, (4) no meeting of the minds, (5) no agreement on essential terms, (6) material breach, (7) fraudulent inducement, and (8) breach of fiduciary duty.

Following a hearing on Gunter’s motion to compel, the trial court signed a July 9, 2010 order that granted, in part, and denied, in part, the motion to compel. That order stated, in relevant part:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiffs Motion to Compel Discovery be and it hereby is GRANTED in part and DENIED in part. Plaintiff shall be allowed to take the depositions of Robert L. Harris, and any other representatives of Defendants who were present at the mediation in this case held in December 12-13, 2007, provided, however, that no inquiry may be made concerning: (1) communications between counsel and client representatives of Defendants, or (2) trial preparation materials, work product, opinions of counsel, trial strategy, or the mental processes of counsel for Defendants, unless such matters were communicated to the mediator or to Plaintiff or his representatives. Defendants are also ORDERED to produce any notes or drafts of documents given or communicated to the mediator or Plaintiff or his representatives, in connection with the mediation or the preparation of documents relating to the alleged mediated settlement agreement. In all other respects, the Motion to Compel is DENIED.

(emphasis original). On that same date, the declaratory judgment action was consolidated with the original underlying action. This mandamus proceeding followed.

II. RELATORS’ REQUEST FOR RELIEF

Relators contend that because the trial court abused its discretion in ordering Harris to submit to a deposition and produce documents and no adequate remedy by appeal exists, this Court should grant Relators’ petition for writ of mandamus and vacate the trial court’s July 9, 2010 order. Relators assert the testimony and documents the trial court order produced “are protected under (1) the ADR privilege, (2) the work product privilege, (3) the attorney-client privilege, and are (4) generally beyond the permissible scope of discovery.”

Gunter argues confidentiality of mediation proceedings “is not absolute” and does not apply here. Further, according to Gunter, “[tjhere is no good faith issue concerning the work product or attorney-client privilege presented by this mandamus proceeding” because his counsel has “expressly stated that no such discovery is sought” and the trial court has “emphatically stated that such will not be allowed.” Additionally, Gunter asserts (1) “[t]he narrow inquiry permitted by the trial court’s order is the necessary result of Cadle v. Castle (2) “prejudgment of the material issues, as sought by [Relators], is improper”; and (3) “[m]andamus should be denied because Relators have unclean hands.”

A. Applicable Law

Mandamus will issue if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.2010) (orig. proceeding); In re Deere & Co., 299 S.W.3d 819, 820 (Tex.2009) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding); In re Tex. Am. Express, Inc., 190 S.W.3d 720, 723 (Tex.App.-Dallas 2005, orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Thus a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.; see also In re Tex. Am. Express, 190 S.W.3d at 724. “[T]he adequacy of an appeal depends on the facts involved in each case.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex.2008) (original proceeding); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig. proceeding). Where disclosure of privileged information would materially affect the aggrieved party’s rights, an appeal has been held to be inadequate. See In re McAllen Med. Ctr., Inc., 275 S.W.3d at 468.

B. Analysis

1. Confidentiality of Mediation Proceedings

We begin with Relator’s contention that the testimony and documents sought by Gunter are protected by “the ADR privilege.” Chapter 154 of the Texas Civil Practice and Remedies Code addresses “Alternative Dispute Resolution Procedures.” See Tex. Civ. Prac. & Rem.Code Ann. §§ 154.001-.073 (West 2005 & Supp. 2010). Section 154.073 of that chapter provides, in relevant part, as follows:

§ 154.073. Confidentiality of Certain Records and Communications
(a) Except as provided by [other subsections], a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.
(b) Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.
(c)An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.
(e) If this section conflicts with other legal requirements for disclosure of communications, records, or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.

Id. § 154.073. Further, “[u]nless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” Id. § 154.053(c); see also Allison v. Fire Ins. Exch., 98 S.W.3d 227, 259 (Tex.App.-Austin 2002, pet. granted, judgm’t vacated w.r.m.) (“a ‘cloak of confidentiality’ surrounds mediation, and the cloak should be breached only sparingly”).

Gunter contends “[t]he confidentiality of mediation proceedings is not absolute, as numerous decisions of this Court have established.” In support of that contention, Gunter cites Avary v. Bank of America, 72 S.W.3d 779 (Tex.App.-Dallas 2002, pet. denied), and two additional cases Gunter asserts “underscore the continuing validity of Avary,” Knapp v. Wilson N. Jones Memorial Hospital, 281 S.W.3d 163 (Tex.App.Dallas 2009, no pet.), and Alford v. Bryant, 137 S.W.3d 916 (Tex.App.-Dallas 2004, pet. denied).

Avary involved a settlement agreement reached during the course of court-ordered mediation of a wrongful death claim. Avary, 72 S.W.3d at 784-85. After conclusion of the wrongful death lawsuit, Rhonda Avary, the guardian of the estates of the decedent’s minor children, sued Bank of America, N.A., executor of the decedent’s estate, for breach of fiduciary duty, negligence, fraud, and conspiracy based on the bank’s alleged rejection of a $450,000 settlement offer and acceptance of a smaller allocation. Id. The bank moved for summary judgment on the ground that Avary had no evidence to support her claims because all communications made at the mediation were confidential under section 154.073. Id. at 784. After permitting limited discovery, the trial judge granted the bank’s motion for summary judgment. Id.

On appeal, Avary complained in part that the trial judge abused his discretion by prohibiting certain discovery relating to the mediation session. Id. This Court reversed the trial court’s judgment and remanded the case for further proceedings. Id. First, this Court concluded the bank’s fiduciary obligations constituted a “legal requirement for disclosure” pursuant to section 154.073(e) and that requirement conflicted with the confidentiality provisions of section 154.073. Id. at 796. Thus, this Court reasoned, an analysis pursuant to section 154.073(e) was required to determine whether, in light of the “facts, circumstances, and context,” disclosure of the confidential communications was warranted. Id.

Next, this Court observed that the parties to the original litigation had resolved their dispute “as the ADR statute contemplates,” and Avary was not proposing “to use mediation communications to establish any liability on [defendants’] part” after they had resolved their dispute. Id. at 798. Rather, this Court stated, Avary was seeking to prove a “new and independent tort” that allegedly occurred during the course of the mediation proceeding and involved “breach of a duty to disclose” by her fiduciary, the bank. Id. at 800. As this Court observed, the evidence sought by Avary was to be offered “in a separate case against a separate party to prove a claim that is factually and legally unrelated to the wrongful death and survival claims” that were the subject of the mediation. Id. at 798. This Court stated “[significant substantive and procedural rights of Avary’s are implicated, including the opportunity to develop evidence of her claim and to submit contested fact issue to a judge or jury.” Id. at 800. Further, this Court stated, in pursuing that claim, Avary would not disturb the settlement with the defendants. Id. In a holding this Court specified was “limited to the facts before us,” this Court stated, “We conclude only that where a claim is based upon a new and independent tort committed in the course of the mediation proceedings, and that tort encompasses a duty to disclose, section 154.073 does not bar discovery of the claim where the trial judge finds in light of the “facts, circumstances, and context,” disclosure is warranted.” Id. at 803.

We disagree with Gunter that “[t]his Court’s discussion and holding in Avary ... provides a roadmap for resolution of the issue presented by the mandamus application here.” Avary involved a claim based on a “new and independent tort,” the pursuit of which would not disturb the settlement reached at the mediation proceeding as to which discovery was sought. Id. at 800. The evidence sought was to be offered “in a separate case against a separate party to prove a claim that is factually and legally unrelated to the wrongful death and survival claims” that were the subject of the mediation. Id. at 798. Here, Gunter has asserted “affirmative defenses and matters in avoidance” in an action by Relators to enforce the agreement. Gunter cites no authority, and we have found none, for his assertion that the narrow holding of Avary applies when defending an action, like this one, to enforce a settlement reached in the mediation proceeding as to which discovery is sought. Accordingly, we conclude Avary is inapplicable here. See id. at 802-08 (conclusion of Avary limited to facts before this Court).

Likewise, neither Knapp nor Alford involved defense of an action to enforce a settlement reached in the mediation proceeding as to which discovery was sought. See Knapp, 281 S.W.3d at 175 (piercing confidentiality of mediation proceeding in suit by former employee against his former employer for denial of severance pay to allow discovery as to prior arbitration between employer and its auditor regarding reasons for denial of severance pay); Alford, 137 S.W.3d at 922 (piercing confidentiality of mediation proceeding in suit between party to mediation and that party’s attorney at mediation, where party alleged attorney committed malpractice during mediation by failing to disclose risks and/or benefits of settlement). Therefore, we conclude those cases are inapposite.

Additionally, Gunter contends the granting of the relief requested by Relators would “emasculate the holding of Cadle Co. v. Castle,” 913 S.W.2d 627 (Tex.App.-Dallas 1995, writ denied). According to Gun-ter, in Cadle, “this Court held that proceedings for enforcement of a settlement agreement require proper pleading and proof and that the matter would be treated as any contract dispute.” Cadle involved the interpretation of section 154.071(b) of the Texas Civil Practice and Remedies Code, which gives a trial judge the discretion to incorporate specific terms of a written settlement agreement in the trial court’s final judgment. Id. at 631. This Court stated in Cadle, “We do not believe the legislature intended section 154.071(b) to be used to enter a judgment on the merits of a cause of action without a party having the right to be confronted by appropriate pleadings, an opportunity to conduct discovery and assert defenses, or a chance to have the dispute determined by a judge or jury.” Id. at 632. However, Gunter cites no authority, and we have found none, to support his position that Cadle renders the confidentiality provisions of chapter 154 of the civil practice and remedies code inapplicable on these facts. We cannot agree with Gunter’s contention.

The trial court’s order at issue allows Gunter “to take the depositions of Robert L. Harris, and any other representatives of Defendants who were present at the mediation in this case held in December 12-13, 2007, provided, however, that no inquiry may be made concerning: (1) communications between counsel and client representatives of Defendants, or (2) trial preparation materials, work product, opinions of counsel, trial strategy, or the mental processes of counsel for Defendants, unless such matters were communicated to the mediator or to Plaintiff or his representatives.” Further, that order compels discovery of “any notes or drafts of documents given ... to the mediator or Plaintiff or his representatives, in connection with the mediation or the preparation of documents relating to the alleged mediated settlement agreement.” We conclude all such discovery is barred by sections 154.073(a) and 154.073(b) of the civil practice and remedies code. See Tex. Civ. Prao. & Rem.Code Ann. § 154.073(a)-(b). Accordingly, we conclude the trial court abused its discretion by ordering the testimony and production of documents at issue. In light of those conclusions barring all discovery pursuant to the trial court’s order, we need not address the parties’ arguments respecting (1) testimony and documents potentially protected from discovery because of the work product privilege or attorney-client privilege or (2) “prejudgment of the material issues.”

2. Lack of Adequate Appellate Remedy

Next, we must consider whether Relators lack an adequate remedy by appeal. See In re Odyssey Healthcare, Inc., 810 S.W.3d at 422; In re Deere & Co., 299 S.W.3d at 820. Relators assert that “because [the order at issue] requires Mr. Harris to produce privileged and over-broad discovery, no adequate remedy by appeal exists.” Gunter does not address that argument.

Where disclosure of privileged information would materially affect the aggrieved party’s rights, an appeal has been held to be inadequate. See In re McAllen Med. Ctr., Inc., 275 S.W.3d at 468. On this record, we conclude the rights of Harris and Relators would be materially affected by disclosure of the confidential information at issue. See In re Alcatel USA Inc., 11 S.W.3d 173, 175 (Tex.2000) (orig. proceeding) (grant of mandamus relief was proper where trial court wrongly denied motion to quash deposition notice); Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex.1996) (orig. proceeding) (because trial court’s order compelled discovery of privileged information, relator lacked adequate remedy by appeal); In re Children’s Med. Ctr. of Dallas, No. 05-00-01900-CV, 2001 WL 827474, at *2 (Tex.App.-Dallas July 24, 2001, orig. proceeding) (not designated for publication) (party cannot have adequate remedy by appeal from denial of privilege because once privileged matter is revealed, privilege is lost); cf. In re Baptist Hosps. of Se. Tex., 172 S.W.3d 136, 145-46 (Tex.App.-Beaumont 2005, orig. proceeding) (calling opposing counsel of record as witness “seriously disrupts counsel’s functioning as an advocate” and is inappropriate under most circumstances). Therefore, we conclude Relators lack an adequate remedy by appeal.

3. Unclean Hands

Finally, we address Gunter’s argument that “mandamus should be denied because Relators have unclean hands.” According to Gunter, Relators have shown unclean hands by their “total disregard of prior court decisions of this Court, even an en banc decision, and similar decisions of the Texas Supreme Court and other Courts of Appeals,” and have “further exhibited disregard of [their] obligations to pay costs of the previous appeal to this Court.” However, even assuming, without deciding, that Gunter’s allegations are supported by the record, Gunter cites no authority, and we have found none, for his contention that such facts warrant denial of the petition for writ of mandamus in this case. Cf. In re Jim Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding) (unclean hands doctrine should not be applied when complaining party has not been seriously harmed and wrong complained of can be corrected without applying doctrine); In re Shaw, No. 05-07-01040-CV, 2007 WL 2447275, at *2 n. 3 (Tex.App.-Dallas Aug. 30, 2007, orig. proceeding) (doctrine of unclean hands not applicable in mandamus case where party asserting defense did not show he was seriously harmed and wrong could not be corrected without applying doctrine). We are not persuaded by Gunter’s argument as to “unclean hands.”

III. CONCLUSION

We conclude Relators have shown that the trial court abused its discretion and that they have no adequate remedy by appeal. Consequently, we conditionally grant Relators’ petition for writ of mandamus. A writ will issue only in the event the trial court fails to (1) vacate its July 9, 2010 order in so far as it requires Harris to submit to a deposition respecting “discussions and negotiations with opposing parties, including the mediator and Plaintiff and his counsel, in connection with the alleged settlement agreement sought to be enforced by Defendants” and produce “any notes or drafts of documents given ... to the mediator or Plaintiff or his representatives, in connection with the mediation or the preparation of documents relating to the alleged mediated settlement agreement” and (2) render an order denying Gunter’s “Motion to Compel Discovery” to the extent that motion pertains to such deposition and documents.

      . The motion to compel bore the cause number for the declaratory action, but not the cause number for the original underlying action.

      . Above the text that appeared with a line drawn through it were the judge’s handwritten initials.