author: JANE BLAND, Justice.

text:
    Sandra Gervais LAINE, Appellant, v. FARMERS INSURANCE EXCHANGE, Appellee.
    No. 01-08-01010-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 4, 2010.
    Rehearing En Banc Overruled June 21, 2010.

      Phillip A. Pfeifer, Phillip A. Pfeifer, P.C., Houston, TX, for Appellant.
    Kenneth R. Chambers, Chambers, Tem-pleton, Cashiola & Thomas, LLP, Levon G. Hovnatanian, Martin, Disiere, Jefferson & Wisdom, L.L.P., Houston, TX, for Appel-lee.
    Panel consists of Justices BLAND, MASSENGALE, and WILSON.

      1. The Honorable Randy W. Wilson, judge of the 157th District Court of Harris County, Texas, participating by assignment. See Tex Gov't Code Ann. § 74.003(h) (Vernon 2005).

   OPINION

JANE BLAND, Justice.

In this case, we determine whether the public policy against an insurance recovery for punitive damages assessed against an uninsured motorist applies to an umbrella policy, which defines its scope of coverage to be the same as the underlying uninsured motorist coverage. We conclude that it does.

Sandra Gervais Laine was driving her mother home one evening when an uninsured drunk driver struck Laine’s car. The accident resulted in her mother’s death, and Laine made a claim under her Farmers Insurance Exchange (Farmers) policies. Farmers paid the policy limit under the uninsured and underinsured motorist (UM) provision of Laine’s auto policy, but when Farmers did not respond to Laine’s request for payment under the umbrella policy augmenting her coverage, Laine sued Farmers for breach of the policy and its statutory obligation to provide prompt payment, as well as the drunk driver responsible for her mother’s wrongful death.

The jury returned findings of actual and exemplary damages against the drunk driver on the wrongful death claim and found that Farmers failed to comply with its prompt payment obligation. But because the payment Farmers already had made to Laine under the UM policy exceeded the amount the jury found as actual damages, the trial court granted Farmers’ motion for judgment notwithstanding the verdict (jnov), ruling that neither the UM provision, nor the overlying umbrella policy, covers the award of exemplary damages.

Laine appeals the jnov, contending that the trial court erred in declining to render judgment on the verdict because (1) Farmers’ judicial admission that the umbrella policy provided coverage estops it from claiming that public policy precludes coverage of exemplary damages assessed against an uninsured tortfeasor, (2) the result unconstitutionally impairs her existing rights under the policy and violates her right to equal protection of the law, and (3) Farmers is waived or estopped from contesting coverage because it paid benefits under the auto policy and its administrative denial of umbrella coverage rests on a different, erroneous, ground. Laine also complains of the absence of an attorney’s fees award. Following established precedent holding that UM coverage does not include coverage for exemplary damages assessed against an uninsured tortfeasor, we conclude that the trial court properly granted judgment to Farmers. We therefore affirm.

BACKGROUND

Following the accident that killed her mother, Laine made a claim to Farmers for UM benefits. Her automobile policy had coverage limits of $250,000, and the accompanying umbrella policy added coverage up to $1,000,000. Farmers paid Laine the policy limits on the underlying policy, but did not respond to her request for additional payment under the umbrella policy.

When she did not receive additional payment, Laine sued Farmers, claiming that Farmers breached the umbrella policy and violated the Texas Prompt Payment Act. Tex. Ins.Code Ann. § 542.056 (Vernon 2009). The trial court tried the case in three phases. The first phase addressed Laine’s actual damages in her wrongful death claim. The jury found actual damages of $175,000.00 for Laine’s mother’s wrongful death.

In the second phase, the trial court directed a verdict finding the drunk driver guilty of intoxication manslaughter and asked the jury to find the amount of exemplary damages that should be assessed against the drunk driver. In response to this question, the jury assessed $1,500,000.00 against the drunk driver.

The third phase involved Laine’s claims against Farmers. The jury found that Farmers failed to comply with the requirements of the Prompt Payment Act, but declined to award her attorney’s fees.

Farmers moved for jnov, contending that it had not violated the Prompt Payment Act because the UM coverage under Laine’s policy does not include coverage for punitive damages. The trial court agreed and, finding that Farmers’ $250,000.00 payment under Laine’s auto policy offset the jury’s $175,000.00 actual damages finding on her wrongful death claim, signed a take-nothing judgment.

DISCUSSION

Standard of review

A trial court may disregard a jury’s verdict and render a jnov if the evidence is legally insufficient to support the jury’s findings or if a directed verdict would have been proper because a legal principle precludes recovery. Tex.R. Civ. P. 301; Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998); Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); Williams v. Briscoe, 137 S.W.3d 120, 124 (Tex.App.-Houston [1st Dist.] 2004, no pet.); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1992, writ denied). To determine whether the trial court erred in granting a jnov, we view the evidence in the light most favorable to the verdict. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If more than a scintilla of competent evidence supports the jury’s findings, we must reverse the jnov. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Old Republic Ins. Co. v. EX-IM Servs. Corp., 920 S.W.2d 393, 395 (Tex.App.-Houston [1st Dist.] 1996, no writ). When the evidence supporting the finding, as a whole, rises to a level that would lead reasonable and fair-minded people to differ in their conclusions, the evidence comprises more than a scintilla. Williams, 137 S.W.3d at 124; see Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

Insurance policy interpretation

The gist of Laine’s contentions on appeal is that the umbrella policy covers the jury’s exemplary damages award on her wrongful death claim, and the trial court erred in ruling to the contrary. As with other contracts, an insurance policy’s terms must be given effect if we can discern the parties’ intent from their plain language. See Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 202 (Tex.2004). If the policy language has only one reasonable interpretation, then it is not ambiguous, and we construe it as a matter of law. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006); Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). On the other hand, if the language is susceptible of two or more reasonable interpretations, then it is ambiguous, and we resolve the uncertainty by adopting the reasonable interpretation that favors the insured. Fiess, 202 S.W.3d at 746 (citing Nat’l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991)).

A conclusion that the policy language provides coverage does not end our inquiry. See Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246 S.W.3d 653, 655 (Tex.2008) (applying two-step inquiry into whether exemplary damages for gross negligence are insurable). In that event, we must “determine whether the public policy of Texas allows or prohibits coverage in the circumstances of the underlying suit.” Id. We look first to the statutes to determine whether the Legislature has made an explicit policy decision. Id. If we find no explicit pronouncement, “we then consider the general public policies of Texas.” Id.

Insurance policy language

Laine’s umbrella policy defines “damages” as “the total of damages that the insured must pay (legally or by agreement with our written consent) because of bodily injury, personal injury or property damage caused by an occurrence covered by this policy....” The umbrella policy contains no express general exclusion for general damages within the description of damages that an insured must pay.

With respect to UM coverage, however, the umbrella policy declares that

[f]or the additional premium paid, it is agreed that this policy will provide Uninsured and/or Underinsured Motorist Coverage(s) to you or any other insured under this policy, to the extent that either or both coverages are a part of the underlying insurance, except for our limit of liability.

Because the umbrella policy directs us to the underlying auto insurance to determine the scope of the UM coverage, we next turn to that provision. The UM provision states:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident.

The UM provision defines “covered person” as

1. You or any family member;
2. Any other person occupying your covered auto;
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

The auto policy, unlike the umbrella policy, does not define “damages.” The UM coverage specifies that it will pay the amount to which a covered person is legally entitled because of “bodily injury ... or property damage,” and is silent on the issue of exemplary damages. The UM provision’s “Limit of Liability” section explains that “[i]n order to avoid insurance benefits payments in excess of actual damages sustained, subject only to the limits set out in the Declarations and other applicable provisions of this coverage, we will pay all covered damages not paid or payable under any workers’ compensation law, disability benefits law, any similar law, auto medical expense coverage or Personal Injury Protection Coverage.” Our court has held that this language suggests that the UM provision is not intended to cover exemplary damages because such amounts are in “excess of actual damages sustained” and not losses “because of’ bodily injury or property damage, but did so only after looking to the statutory intent underlying UM coverage. State Farm Mut. Auto. Ins. Co. v. Shaffer, 888 S.W.2d 146, 148-49 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Thus, neither the umbrella policy nor the underlying auto policy expressly permits recovery of exemplary damages for Laine’s wrongful death claim against the drunk driver under the UM provision — nor does either policy expressly prohibit it. Laine contends that Farmers judicially admitted that the policy provides coverage for exemplary damages because the umbrella policy contained no exclusion for “damages which are punitive or exemplary.” Under the umbrella policy’s definition, “damages,” and thus, the corresponding exclusions and endorsements, applies to amounts that an insured must pay, not to amounts owed to a covered person by an operator of an uninsured or underinsured motor vehicle. These latter amounts are instead defined within the insured’s auto policy. As the trial court determined, Farmers’ acknowledgement that the umbrella policy covered punitive or exemplary damages when the accident occurred does not support a corollary conclusion that the umbrella policy’s coverage extends to exemplary damages assessed against the third party uninsured or un-derinsured drunk driver; rather, the UM policy refers the reader to the underlying UM coverage to answer that question.

As our court observed in Shaffer, however, we need not definitively answer the question of whether Laine’s umbrella policy, together with the UM policy language, covers exemplary damages assessed against a third-party tortfeasor — even if it does, Texas public policy nonetheless prohibits it. See id.

Public policy considerations

As the Texas Supreme Court has observed, “Texas appellate courts have uniformly rejected as against public policy coverage under uninsured or underinsured motorist policies when the insured seeks to recover from his own insurer exemplary damages assessed against a third-party tortfeasor.” Fairfield, 246 S.W.3d at 668; see Milligan v. State Farm, Mut. Auto. Ins. Co., 940 S.W.2d 228, 232 (Tex.App.Houston [14th Dist.] 1997, writ denied); Shaffer, 888 S.W.2d at 149; Vanderlinden v. United Servs. Auto. Ass’n Prop. & Cas. Ins. Co., 885 S.W.2d 239, 242 (Tex.App.-Texarkana 1994, writ denied).

We squarely addressed this issue in Shaffer, holding that “both public policy and the language contained in the Insurance Code and the Motor Vehicle Safety-Responsibility Act limit recovery under an uninsured-underinsured motorist policy to compensatory damages.” 888 S.W.2d at 149-50 (citing Tex. Civ. Stat. Ann. art. 6701h, § lA(a)) (current version codified at Tex. Ins.Code Ann. § 1952.101 (Vernon 2009)), and Act of Oct. 1, 1967, 60th Leg., R.S., ch. 202, § 3, 1967 Tex. Gen. Laws 448, 449 (current version codified at Tex. Transp. Code Ann. §§ 601.001-601.054 (Vernon 1999 & Supp.2009)). We observed that “[t]his policy does not support rendering damages against State Farm since neither deterrence of wrongful conduct nor punishment ... of the wrongdoer[ ] is achieved by imposing exemplary damages upon Shaffer’s insurance carrier for [the] wrongful act.” Id., quoted in Fairfield, 246 S.W.3d at 668. More recently, the Supreme Court has pointed to Chapter 41 of the Civil Practice and Remedies Code as further indication “that the punishment imposed through exemplary damages is to be directed at the wrongdoer.” Fairfield, 246 S.W.3d at 667. Our own precedent, cited with approval by the Texas Supreme Court in Fairfield, and the more recent authority, lead us to decline Laine’s invitation to follow older Texas decisions to the contrary, which have been disapproved by the Supreme Court in the intervening years. See Fairfield, 246 S.W.3d at 668 & n. 22 (citing with approval Milligan, Shaffer, Vanderlinden, and Government Employees Ins. Co. v. Lichte, 792 S.W.2d 546, 549 (Tex.App.-El Paso 1990), writ denied per curiam, 825 S.W.2d 431 (Tex.1991)); see also id. at 683 (Hecht, J., concurring) (identifying Manriques v. Mid-Century Ins. Co., 779 S.W.2d 482 (Tex.App.-El Paso 1989, writ denied), a case relied on by Laine, as one of only two courts that “have concluded that punitive damages are damages for bodily injury covered by automobile policies,” a position that “has been uniformly rejected in the context of uninsured and underinsured motorist coverage”); Home Indem. Co. v. Tyler, 522 S.W.2d 594, 597 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) (holding that language requiring insurer to “pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile” includes recovery of exemplary damages under uninsured motorist provision of policy), overruled by Milligan, 940 S.W.2d 228 (citing Shaffer with approval).

Laine criticizes Fairfield, but, as a lower appellate court, we must obey the pronouncements of the Texas Supreme Court. See In re K.M.S., 91 S.W.3d 331, 331 (Tex.2002) (per curiam). The trial court thus correctly determined that the UM coverage available under Laine’s umbrella policy does not extend to exemplary damages against the tortfeasor as a matter of law.

Estoppel and constitutional claims

Because Laine’s UM provisions do not provide coverage of exemplary damages, her remaining waiver and estoppel arguments are unavailing. The fact that Farmers may have denied coverage for one reason does not mean that coverage is made available when another reason for denial would suffice. “The doctrine of es-toppel cannot be used to create insurance when none exists by the terms of the policy.” Utica Nat’l Ins. Co., 141 S.W.3d at 203 (quoting Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988)).

Finally, Laine contends that her inability to recover exemplary damages under the UM coverage violates her right to equal protection under the Texas Constitution because other similarly situated claimants can collect exemplary damages under an insured tortfeasor’s policy. The Texas Supreme Court, however, has articulated the rationale for that result:

In the uninsured and underinsured motorist context, it may be appropriate for policyholders to share in the burden of injuries caused by underinsured motorists, but not their punishment. In other words, the purpose of exemplary damages may not be achieved by penalizing those who obtain the insurance required by law for the wrongful acts of those who do not.

Fairfield, 246 S.W.3d at 669-70. By requiring UM coverage, the Texas Legislature ensured that persons injured by uninsured motorists would be compensated for their actual injuries. See Tex. Ins.Code Ann. § 1952.101; Shaffer, 888 S.W.2d at 149. Nothing prevents Laine from executing the exemplary damages judgment directly against the tortfeasor himself. Lame therefore has failed to show an equal protection violation.

CONCLUSION

Following Shaffer, we hold that the trial court correctly granted Farmers’ motion for jnov on the basis that the UM provision of Lame’s umbrella policy does not cover the exemplary damages award the jury assessed against the uninsured drunk driver for the wrongful death of her mother. We therefore affirm the judgment of the trial court.

      . Because Laine does not prevail on her Prompt Payment Act claim, she is not entitled to recover her attorney’s fees. See Tex. Ins. Code Ann. § 542.060 (Vernon 2009).


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice. TERRY JENNINGS, Justice,

license: Public Domain

text:
    DIXON FINANCIAL SERVICES, LTD. and Hyperdynamics Corporation, Appellants, v. James CHANG, Nick H. Johnson, Riley L. Burnett, Jr., and Johnson, Burnett & Chang, L.L.P., Appellees.
    No. 01-07-00233-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 18, 2010.

      Gary Martin Jewell, Christian, Smith & Jewell, L.L.P., Jennifer Bruch Hogan, Richard P. Hogan, Jr., Hogan & Hogan, L.L.P., Phillip R. Livingston, Livingston & Livingston, L.L.C., William T. Powell, The Law Office of William T. Powell, Houston, TX, for appellants.
    Philip Werner, Scott E. Raynes, Werner & Kerrigan, James Scott Douglass, Gerald Scott Siegmyer, Siegmyer, Oshman & Bis-singer LLP, Houston, TX, for appellees.
    Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

We withdraw our August 31, 2009 opinion, substitute this opinion in its place, and vacate our judgment of that date.

In one issue, appellants, Dixon Financial Services, Ltd. (“Dixon Financial”) and Hy-perdynamics Corporation (“Hyperdynam-ics”), contend that the trial court erred by granting summary judgment in favor of appellees, James Chang, Nick H. Johnson, Riley L. Burnett, Jr., and Johnson, Burnett & Chang, L.L.P.

We affirm.

Background

In September 1999, Ron Bearden and R.F. Bearden Associates, Inc. (collectively, “Bearden”), Erin Oil, and Bill Knollen-berg, principal of Erin Oil, obtained an arbitration award against Michael Watts, a securities broker, and Texas Capital Securities, the securities brokerage firm for whom Watts worked. As part of the award, Bearden, Knollenberg, and Erin Oil were awarded, jointly and severally, “140,-000 shares of common stock and 200,000 warrants in Hyperdynamics.” In the arbitration proceeding, Greenberg, Peden, Si-egmyer & Oshman, P.C. (“Greenberg Pe-den”) represented Bearden, and the law firm of Johnson, Burnett, & Chang (“JBC”) represented Erin Oil and Knollen-berg.

In an effort to collect the arbitration award, JBC attorney James Chang notified Hyperdynamics’s transfer agent, Fidelity Transfer Company (“Fidelity”), of the award. Chang sent a number of correspondences to Fidelity to secure his clients’ interest in the Hyperdynamics stock by instructing Fidelity that the subject stock should not be transferred or conveyed. Chang told Fidelity that “some of [the] securities of [Hyperdynamics] that our client is entitled to in accordance with the [arbitration award] are held or deposited in an account in the name of Island Communications Investments, Ltd.” Chang warned Fidelity that it should not transfer or convey common stock or other securities held or owned by Island Communications.

Chang, on behalf of Erin Oil and Knol-lenberg, and Greenberg Peden attorney Gerald Siegmyer, on behalf of Bearden, filed suit (“the Waits litigation”) against Texas Capital, Michael Watts, and Hyper-dynamics, seeking confirmation of the arbitration award and injunctive relief. Erin Oil, Knollenberg, and Bearden (“the Watts plaintiffs”) alleged that Watts had sold securities belonging to them for Watts’s own personal benefit. The Watts plaintiffs further alleged that Watts had transferred shares of Hyperdynamics stock, to which they were entitled, into the account of Island Communications. The Watts plaintiffs obtained a temporary restraining order restricting the transfer of Hyperdynamics stock out of Island Communications’s account.

The Watts plaintiffs entered into a settlement agreement with Hyperdynamics in the Watts litigation. The Watts plaintiffs agreed to dismiss Hyperdynamics from the suit, and Hyperdynamics agreed that it would not allow Michael Watts “to sell, transfer, assign or exercise any warrant or option to purchase any securities of Hy-perDynamics.”

Chang tried unsuccessfully to obtain information from Fidelity regarding which Hyperdynamics stock being held in Island Communications’s name belonged to his clients. Fidelity informed Chang that Kent Watts, principal of Hyperdynamics and brother of Michael Watts, had requested the transfer of 574,500 shares of Hyperdynamics stock held in Island Communications’s name to Dixon Financial. Chang informed Fidelity that “there were adverse claimants to those shares held in the name of Island and that [Hyperdynam-ics] may be prohibited from transferring any shares in the name of Island.”

Approximately one year later, Dixon Financial filed the underlying suit against Hyperdynamics, Fidelity, Greenberg Pe-den, Siegmyer, Bearden, Erin Oil, Knollen-berg, James Chang, JBC, and two other JBC partners: Nick Johnson and Riley Burnett, Jr. Dixon Financial asserted that Chang and his “co-conspirators” had falsely claimed and misrepresented that Dixon Financial’s stock shares held in the name of Island Communications were subject to the arbitration award obtained by the Watts plaintiffs. Specifically, Dixon Financial alleged that Chang had misrepresented to Fidelity that “the 574,500 shares of stock of Hyperdynamics held in the name of Island Communications was in fact property of Ghang and Siegmyer’s clients and the subject of an arbitration award.” Dixon Financial further alleged that, based on the misrepresentation, Fidelity had “placed a ‘hold’ on the 574,500 shares of Hyperdynamics stock” owned by Dixon Financial thereby preventing Dixon Financial “from exercising any ownership rights to the stock, including its ability to sell the stock at a time when the stock was trading large volume at a higher price.”

Dixon Financial also claimed that “[t]he defendants intentionally and knowingly misrepresented facts to the court in order to obtain the Temporary Restraining Order” in the Watts litigation. Dixon Financial asserted that the restraining order was “sought and obtained” by “using a false and perjurious affidavit signed by Chang.” Dixon Financial further alleged that Chang, “with the knowledge and consent of his co-conspirators [including Bear-den, Greenberg Peden, and Siegmyer], intentionally and knowingly on numerous times contacted Fidelity ... and wrongfully advised [Fidelity]” that the temporary restraining order “prohibited Fidelity” from issuing the Hyperdynamics stock to Dixon Financial. Dixon Financial further alleged that, when Fidelity finally transferred the stock to it, the stock “had dropped from a high in January 2000 of $7.75 per share when Dixon Financial was entitled to receive the shares to less than $2.00 resulting in a loss [to Dixon Financial] in excess of $3,000,000.”

Dixon Financial asserted causes of action against Bearden, Greenberg Peden, Siegmyer, Erin Oil, Chang, JBC, Nick Johnson, and Riley Burnett, Jr. for conversion, abuse of process, tortious interference, and fraud. Dixon Financial claimed that the defendants were jointly and severally liable based on theories of conspiracy, agency, and concert of action.

Hyperdynamics also filed a cross-claim against Bearden, Greenberg Peden, Sieg-myer, Erin Oil, Chang, JBC, Johnson, and Burnett asserting claims for negligent misrepresentation, tortious interference, abuse of process, malicious prosecution of a civil suit, and contribution. Like Dixon Financial’s claims, Hyperdynamics’s cross-claims were premised on allegations that Chang had misrepresented to the trial court and to Fidelity the extent to which the arbitration award applied to Hyperdy-namics’s stock held in the name of Island Communications.

Hyperdynamics also filed a cross-claim for breach of contract. Hyperdynamics asserted that the defendants had breached the settlement agreement between it, Erin Oil, and Bearden in the Watts litigation. Hyperdynamics claimed that the defendants continued to interfere with the transfer of its stock to Dixon Financial “in violation of the spirit and terms of the agreement.”

Greenberg Peden and Siegmyer filed motions for summary judgment, asserting that Dixon Financial had no actionable claim against them, as a matter of law, for conduct undertaken in the representation of a client. The attorneys based the motions for summary judgment on Dixon Financial’s pleadings. Concomitantly, Bear-den filed a motion for summary judgment contending that, as a matter of law, it could not be liable for the conduct of its attorneys.

Chang, JBC, Johnson, and Burnett (collectively hereinafter “the JBC defendants”) also filed a motion for summary judgment. Like Greenberg Peden, the JBC defendants asserted that Dixon Financial failed to state an actionable claim. The JBC defendants pointed out that, as pled, Dixon Financial’s claims were premised on conduct undertaken in the representation of JBC’s clients during litigation and was therefore privileged. Greenberg Peden, Siegmyer, and the JBC defendants also filed a joint motion for summary judgment against Hyperdynamics, which asserted this same argument with respect to Hyperdynamics’s tort claims. The joint motion for summary judgment also raised a no-evidence challenge, asserting that Hy-perdynamics could present no evidence of damages, an essential element of its cross-claims, including .its breach of contract claim.

The trial court granted each of the motions for summary judgment. Greenberg Peden, Siegmyer, and Bearden (“the Greenberg Peden defendants”) requested the trial court to sever Dixon Financial’s and Hyperdynamics’s claims against them from the remainder of the case. In May 2006, the trial court granted the severance converting the order granting summary judgment in favor of the Greenberg Peden defendants into a final, appealable judgment. The JBC defendants did not seek a severance of Dixon Financial’s and Hyper-dynamics’s claims against them. The order granting the JBC defendants’ motion for summary judgment remained interlocutory. In addition, Dixon Financial’s and Hyperdynamics’s claims against Knollen-berg and Erin Oil remained in the trial court.

In appellate cause number 01-06-00696-CV, Dixon Financial and Hyperdynamics appealed the summary judgments granted by the trial court in favor of the Green-berg Peden defendants. We affirmed the summary judgments obtained by the Greenberg Peden defendants against Dixon Financial and Hyperdynamics in Dixon Financial Services, Ltd. v. Greenberg, Peden, Siegmyer & Oskman, P.C., No. 01-06-00696-CV, 2008 WL 746548 (Tex.App.Houston [1st Dist.] Mar. 20, 2008, pet. denied) (mem. op.). There, we discussed the law regarding an attorney’s immunity from suit with respect to action he takes in the representation of a client. See id. at *7-8. We recognized that to promote zealous representation, courts have held that an attorney has “qualified immunity” from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation. Id. at *7 (citing Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex.App.-Houston [1st Dist.] 2005, pet. denied)).

We agreed with the Greenberg Peden defendants that the conduct alleged by Dixon Financial and Hyperdynamics as being tortious was not actionable because it constituted conduct undertaken by an attorney to assist a .client in securing and recovering an arbitration award. See id. at *11. For this reason, we concluded that the Greenberg Peden defendants were entitled to summary judgment as a matter of law. Id.

As mentioned, Dixon Financial’s and Hyperdynamics’s claims against Knollen-berg and Erin Oil remained pending in the trial court, as did the interlocutory order granting summary judgment in favor of the JBC defendants. On February 22, 2007, the trial court signed a “Final Judgment” addressing the remaining claims.

The Final Judgment reflected that the trial court conducted a jury trial between January 29, 2007 and February 1, 2007. The judgment recited that Knollenberg, who had previously appeared in the lawsuit pro se and had notice of the trial setting, did not appear at trial. The judgment reflected that, after receiving proper service, Erin Oil never filed an answer or otherwise appeared.

In the Final Judgment, the trial court ordered that the interlocutory summary judgments obtained by the JBC defendants against Dixon Financial and Hyper-dynamics became final. The Final Judgment also ordered that a default judgment be entered against Erin Oil and Knollen-berg and that Dixon Financial and Hyper-dynamics recover damages from both entities.

After the trial court signed the Final Judgment, Knollenberg retained counsel and filed a “Motion to Modify the Judgment, or in the Alternative, for Entry of Judgment N.O.V.” In the motion, Knol-lenberg challenged the portions of the Final Judgment awarding damages against him in favor of Dixon Financial and Hy-perdynamics on the basis that Dixon Financial and Hyperdynamics had non-suited their respective claims against him two years earlier in April 2005. The trial court conducted two hearings and, on May 22, 2007, signed an “Amended Judgment,” which provided, in relevant part, that Dixon Financial and Hyperdynamics had non-suited Knollenberg two years earlier. In the Amended Judgment, the trial court also ordered that Dixon Financial and Hy-perdynamics take nothing against Erin Oil.

Dixon Financial and Hyperdynamics appealed the Amended Judgment.

As discussed supra in footnote one, we issued an opinion and judgment in this appeal on August 31, 2009. In the opinion, we affirmed the summary judgments in favor of the JBC defendants. We reversed the portions of the Amended Judgment in favor of Knollenberg and Erin Oil, and remanded the case to the trial court with respect to the claims against Knollen-berg and Erin Oil.

One week after our opinion issued, we were informed by Knollenberg that he had filed Chapter 7 bankruptcy prior to the issuance of our opinion. The bankruptcy filing resulted in the suspension of this appeal. See Tex.R.App. P. 8.2. And due to the filing of the petition, our opinion and judgment of August 31, 2009 are void. See Continental Casing Corp. v. Samedan Oil Corporation, 751 S.W.2d 499, 501 (Tex.1988).

On September 21, 2009, JBC defendants filed a motion to sever Dixon Financial’s and Hyperdynamics’s appellate claims against Knollenberg and Erin Oil into a separate appellate cause and to reinstate this appeal. See Tex.R.App. P. 8.3. By separate order, the motion to sever and to reinstate was granted. Dixon Financial’s and Hyperdynamics’s appeal of the Amended Judgment, with respect to their claims against Knollenberg and Erin Oil, was severed into appellate cause number 01-10-00033-CV. See Mar-Stell, Inc. v. Anadarko E & P Co., No. 10-03-00358-CV, 2005 WL 984785, at *1 (Tex.App.-Waco Apr. 27, 2005, order). This appeal, i.e., Dixon Financial’s and Hyperdynamics’s appeal of the summary judgments in favor of the JBC defendants, was ordered reinstated. See id.

With this background, we now address the merits of the appeal.

Summary Judgments

In their sole issue, Dixon Financial and Hyperdynamics challenge the summary judgments obtained by the JBC defendants against Dixon Financial and Hyper-dynamics.

A. Summary Judgment Against Dixon Financial

The JBC defendants sought summary judgment against Dixon Financial on the basis that Dixon Financial had failed to plead an actionable claim against them.

Pointing to the allegations in Dixon Financial’s pleadings, the JBC defendants asserted that Dixon Financial’s claims were premised on conduct undertaken by an attorney in the representation of his clients during litigation. The JBC defendants argued that such conduct is privileged conduct for which attorneys are immune from suit by non-clients.

The Greenberg Peden defendants asserted this same legal argument in support of their motion for summary judgment in the severed action. See Dixon Fin., 2008 WL 746548, at *6. Dixon Financial premised its claims against the Greenberg Pe-den defendants on the same conduct by the same actors, primarily James Chang, as it based its claims against the JBC defendants. As described supra, this Court upheld Greenberg Peden’s summary judgment against Dixon Financial based on the same principle of law (i.e., an attorney’s qualified immunity from suit by a non-client for litigation conduct) that the JBC defendants asserted to support their motion for summary judgment at issue here. See id. at *5,11. We held, based on qualified immunity, that the Greenberg Peden defendants could not be held liable, as a matter of law, for the conduct alleged by Dixon Financial. See id. at *11. Dixon Financial filed a petition for review with the Supreme Court of Texas, which has been denied.

Our earlier decision on this issue governs our decision in this appeal. The “law of the case” doctrine mandates that the ruling of an appellate court on a question of law raised on appeal will be regarded as the law of the case in all subsequent proceedings, unless clearly erroneous. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003). The doctrine applies when the issues of law and fact are substantially the same in the second proceeding as they were in the first. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986).

As discussed, the issues of law and fact in this appeal, with regard to determining the propriety of the summary judgment in favor of the JBC defendants, are the same as those involved in the earlier appeal with respect to the summary judgment granted in favor of the Greenberg Peden defendants. We follow our holding in that appeal and conclude that the JBC defendants cannot be held liable, as a matter of law, for the conduct pled by Dixon Financial. See Sledge v. Mullin, 927 S.W.2d 89, 93 (Tex.App.-Fort Worth 1996, no writ) (determining that holding in earlier appeal, in severed part of case, was binding on determination of issue in later appeal of remainder of case). We hold that the trial court properly granted summary judgment in favor of the JBC defendants against Dixon Financial.

B. Summary Judgment Against Hyper-dynamics

Hyperdynamics challenges the summary judgment obtained by the JBC defendants with regard to its breach of contract claim.

In the instant litigation, Hyperdynamics alleged that the signatories and their attorneys breached the February 4, 2000 settlement agreement (“the Agreement”) signed in the Watts litigation. Pursuant to the terms of the Agreement, Hyperdynam-ics agreed to prevent Michael Watts from conveying or transferring Hyperdynamics securities. In return, Erin Oil, Knollen-berg, and Bearden agreed to, and then did, dismiss Hyperdynamics from the Watts litigation.

In its cross-action, Hyperdynamics alleged that “[n]othwithstanding the agreement and the dismissal of all claims [against Hyperdynamics], [the cross-defendants] continued to communicate with Fidelity Transfer for the express purpose of preventing Fidelity Transfer from transferring specific shares into free trading shares in Dixon.” Hyperdynamics continued, “In the course of those communications, [the cross-defendants] continued to assert that Hyperdynamics was restrained from transferring these shares to Dixon.” Hyperdynamics alleged that such communications violated “the spirit and terms of the agreement.”

The joint motion for summary judgment filed by the cross-defendants to Hyperdy-namics’s claims was a traditional motion for summary judgment, asserting the qualified immunity privilege, and a no-evidence motion for summary judgment. The no-evidence motion for summary judgment averred that “Hyperdynamics has offered no evidence of any actual damages suffered,” an essential element of each of Hyperdynamics’s cross-claims, including its breach of contract claim.

Hyperdynamics responded to the no-evidence motion for summary judgment by asserting that it had sustained damages as a result of breach. Particularly, Hyperdy-namics claimed that it continued to incur legal fees and expenses after its dismissal from the Watts litigation as a result of the breach. Hyperdynamics also alleged that it had “suffered” damages because Fidelity had sent it a demand letter to pay its legal fees in the instant litigation.

To support its damages allegations, Hy-perdynamics offered the affidavit of its attorney, David Sacks, and the affidavit of its president, Kent Watts. The cross-defendants, including the JBC defendants, objected to and moved to strike the affidavits. Sustaining the defendants’ objections, the trial court signed an order striking all evidence offered in support of Hyperdynamics’s response, including the Sacks and Watts affidavits.

The trial court granted summary judgment against Hyperdynamics on its cross-claims without identifying the basis for its ruling. On appeal, Hyperdynamics contends that the trial erred by striking the affidavits and by granting summary judgment against it on its breach of contract cross-claim.

1. Standard of Review: No-Evidence Motion for Summary Judgment

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

A party seeking a no-evidenee summary judgment contends that there is no evidence of one or more essential elements of a claim on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008). Summary judgment must be granted unless the non-movant produces competent summary judgment evidence raising a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426. A non-moving party is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex.R. Civ. P. 166a (Notes & Comments 1997). This means that the non-movant must point to some, but not all evidence supporting challenged elements. Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280 (Tex.App.-El Paso 2004, no pet.).

A no-evidence summary judgment motion is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex.2006). Accordingly, we apply the same legal-sufficiency standard of review that is applied when reviewing a directed verdict. City of Keller v. Wilson, 168 5.W.3d 802, 823 (Tex.2005). Applying that standard, a no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); see City of Keller, 168 S.W.3d at 810.

We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168 S.W.3d at 822). In so doing, we view the summary judgment evidence in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, 206 S.W.3d at 582; City of Keller, 168 S.W.3d at 822.

Applying these principles, we determine whether Hyperdynamics offered competent summary judgment evidence to raise a genuine issue of material fact regarding whether it incurred damages as a result of the alleged breach of the Agreement. We need not decide whether the trial court properly sustained the objections to Hy-perdynamics’s summary judgment evidence because, even with this evidence, we conclude that Hyperdynamics did not meet its burden to offer sufficient evidence on the challenged element of actual damages.

2. Analysis of Evidence Offered to Show Breach-of-Contract Damages

On appeal, Hyperdynamics points to the affidavit of its attorney, David Sacks, who represented Hyperdynamics in the Watts litigation, as evidence of its breach of contract damages. Hyperdynamics contends that the Sacks affidavit shows that it incurred attorney’s fees as actual damages as a result of the breach of the February 4, 2000 settlement agreement.

In his affidavit, David Sacks, testified as follows, with regard to damages:

As part of the representation of Hyper-dynamics in the Injunction Lawsuit [the Watts litigation], I charged and invoiced [Hyperdynamics] for the attorney’s fees and expenses incurred. After the Agreement of February 4, 2000, I continued to represent Hyperdynamics in its efforts to aid the transfer of shares into Dixon. I invoiced my client for my time and expenses for this representation as well. My total fees and expenses were at least $30,000.00. These attorneys fees and expenses would not have been incurred, but for the conduct of the Erin Oil plaintiffs during the Injunction Lawsuit and after the Agreement of February 4, 2000.

Unless expressly provided for by statute or by contract, attorney’s fees incurred in the defense or prosecution of a lawsuit are generally not recoverable. Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964). This general rule is not without exception. Equitable principles allow the recovery of attorney’s fees as actual damages when a party was required to prosecute or defend a prior legal action as a consequence of a wrongful act of the defendant. Turner, 385 S.W.2d at 234; Massey v. Columbus State Bank, 35 5.W.3d 697, 701 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex.App.-Texarkana 2000, pet. denied). For the equitable exception to apply, the following two prerequisites must be met: (1) the plaintiff must have incurred the attorney’s fees in a prior action and (2) the action must have involved a third party. Turner, 385 S.W.2d at 234. From Sacks’s affidavit, it is not clear that the claimed fees were incurred in the defense or prosecution of a prior action involving a third party. As described, the claimed fees were incurred in relation to the Watts litigation. The claimed attorney’s fees were not incurred in litigation with a third person, rather, the fees were incurred following litigation with Hyperdynamics’ present adversaries in this litigation. See id. at 237.

To obtain attorney’s fees as actual damages, the plaintiff must also show that the claimed attorney’s fees were reasonable and necessary. See id. at 234; Lesikar, 33 S.W.3d at 306; Powell v. Named, 463 S.W.2d 43, 46 (Tex.Civ.App.-El Paso 1971, writ ref'd n.r.e.). As pointed out by the JBC defendants, the Sacks affidavit makes no showing that any attorney’s fees incurred as a result of the alleged breach of the Agreement were reasonable or necessary. See Lesikar, 33 S.W.3d at 308 (reversing award of attorney’s fees as ac tual damages on legal sufficiency ground because no evidence was offered to show reasonableness of attorney’s fees). Nor does Sacks’s affidavit testimony make any attempt to segregate the amount of fees attributable to alleged breach of the Agreement and those incurred defending against the Watts litigation. See Powell, 463 S.W.2d at 46 (sustaining appellant’s challenge to award of attorney’s fees as damages because no evidence offered to show reasonableness of fees and no attempt made to segregate attorney’s fees pertaining only to defense of action brought by third party). Applying the no-evidence standard within the context of the principles governing attorney’s fees as damages, we conclude that Sacks’s testimony falls short of being competent summary judgment evidence to raise a genuine fact issue regarding whether Hyperdy-namics sustained actual damages as a result of the alleged breach of the Agreement.

Hyperdynamics also relies on the affidavit of its president, Kent Watts. On appeal, Hyperdynamics cites the following provision of the Watts affidavit:

As a result of the underlying injunction action [the Watts litigation], Hyperdy-namics was compelled to retain counsel to represent it. It incurred legal fees and expenses through that counsel of at least $30,000. In addition, Hyperdy-namics’ agreement with its transfer agent includes the right of the transfer agent to seek to recover its costs and attorney’s fees from any dispute or litigation in which the transfer agent becomes involved. Fidelity Transfer has made demand upon Hyperdynamics for payment of the attorney’s fees and expenses it may incur in this lawsuit. See exhibit “1” attached which is a true and correct copy of a letter from Fidelity Transfer seeking reimbursement of its attorney’s fees and expenses. Those damages are in addition to the damages sought by Dixon in this lawsuit and the attorneys [sic] which are accruing for Hyperdynamics’ involvement in this lawsuit.

In the letter attached to Watts’s affidavit, Fidelity informed Hyperdynamics that it “had been forced to retain local council [sic] in Houston” with regard to the instant suit filed by Dixon Financial in which Fidelity was a named defendant. The letter requested that Hyperdynamics “overnight” a check for $3,000 to Fidelity.

On appeal, Hyperdynamics contends that Fidelity’s demand for monies to cover its attorney’s fees that it “may incur” is evidence that Hyperdynamics itself incurred damages as a result of the breach of the Agreement. The important aspect of the Watts affidavit is not, however, what is says, but what it does not say. Watts never states that Hyperdynamics paid Fidelity’s attorney’s fees, planned to pay the fees, or felt legally obligated to pay the fees. Nor does the affidavit indicate how Fidelity’s attorney’s fees incurred in the present litigation are attributable to the alleged breach of the Agreement. To the contrary, Fidelity was sued in this lawsuit by Dixon Financial for its own alleged tortious acts.

The Supreme Court of Texas has explained, “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). To raise a genuine issue of material fact, the evidence must transcend mere suspicion. Id. Evidence that is so slight as to make any inference a guess is in legal effect no evidence. Id. Here, Watts’s affidavit testimony does nothing more than raise a surmise or suspicion that Hyperdynamics incurred damages as a result of the alleged breach of the Agreement. Any inference made from Watts’s testimony that Hyperdynamics sustained damages attributable to the alleged breach would be purely speculative. See id. Accordingly, the Watts affidavit constitutes “no evidence” of damages. See id.

Taken either individually or together, the affidavits do not constitute legally sufficient evidence to prevent a no-evidence summary judgment on grounds of lack of breach of contract damages. See Mack Trucks, 206 S.W.3d at 583. Hyperdynam-ics did not meet its burden to defeat the JBC defendants’ summary judgment contention that no evidence existed to support the actual-damages element of Hyperdy-namics’s breach of contract claim. We hold that the trial court properly granted summary judgment in favor of the JBC defendants with respect to Hyperdynam-ics’s breach of contract claim.

We overrule Dixon Financial’s and Hy-perdynamics’s sole issue.

Conclusion

We affirm the portion of trial court’s judgment that grants summary judgment in favor of the JBC defendants against Dixon Financial and Hyperdynamics.

Justice JENNINGS, dissenting in part.

TERRY JENNINGS, Justice,

dissenting in part.

The majority errs in holding that an attorney, “based on qualified immunity,” cannot be held liable, as a matter of law, for fraudulently misrepresenting to a stock transfer agent that the attorney’s client, pursuant to an arbitration award, had ownership rights to shares of stock which were, in fact, wholly owned by another. The majority’s holding extends qualified immunity for attorneys beyond its logical bounds and contradicts the Texas Supreme Court’s express holding that an attorney may be held liable for negligent misrepresentations made to a non-client. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 788-95 (Tex.1999) (applying Restatement (Second) of Torts § 552).

Accordingly, I respectfully dissent from the portion of this Court’s judgment affirming the trial court’s summary judgment against appellant, Dixon Financial Services, Ltd. (“Dixon”), in its lawsuit against appellees, James Chang, Nick Johnson, Riley Burnett, and Johnson, Burnett & Chang, L.L.P. (“JBC”). I otherwise join the remainder of the majority opinion and this Court’s judgment.

Factual and Procedural Background

In their third amended original petition, appellants, Dixon and Hyperdynamics Corporation (“Hyperdynamics”), allege that appellees, Chang, Johnson, Burnett, and JBC, while representing Erin Oil Exploration, Inc. (“Erin Oil”), contacted Fidelity Transfer Company (“Fidelity”) and misrepresented that “574,500 shares of Hy-perdynamics stock ... [were] in fact the property of [Erin Oil] and the subject of an arbitration award.” However, Chang knew that “at most, only 60,000 shares of Hyperdynamics stock ... could be owned by any of the parties to that litigation.”

Relying on Chang’s misrepresentations, Fidelity placed a “hold” on all 574,500 shares of Dixon’s Hyperdynamics stock, which prevented Dixon “from exercising any ownership rights to the stock, including its ability to sell the stock at a time when the stock was trading large volume at a higher price.” Specifically, Dixon and Hyperdynamics allege that Dixon had intended to sell its Hyperdynamics stock in January 2000, when the stock was worth approximately $4.45 million. Dixon was able to sell its stock only after “Chang and his co-conspirators admitted to Fidelity that the stock truly belonged to Dixon” and its value had dropped to less than $1.15 million.

In their summary judgment motion, Chang, Johnson, Burnett, and JBC asserted that all of Dixon’s “causes of action should be dismissed as barred by absolute privilege: an attorney’s conduct undertaken in the context of litigation is not actionable.” The trial court granted summary judgment against Dixon and in favor of Chang, Johnson, Burnett, and JBC.

Qualified Immunity

In its first issue, Dixon argues that the trial court erred in granting summary judgment in favor of Chang, Johnson, Burnett, and JBC because they do not, as a matter of law, enjoy qualified immunity for fraudulently misrepresenting to Fidelity that Dixon’s shares of Hyperdynamics stock were subject to an arbitration award.

When a party moves for summary judgment based solely on the nonmovant’s pleadings, we “must accept all facts and inferences in the pleadings as true in the light most favorable to” the nonmovant. Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 882 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

In support of its holding that Chang, Johnson, Burnett, and JBC enjoy qualified immunity, the majority relies upon, “as law of the case,” Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548 (Tex.App.-Houston [1st Dist.] Mar. 20, 2008, pet. denied). In Greenberg, this Court reasoned:

Construing the pleadings and summary judgment evidence liberally in favor of appellants, the acts alleged by appellants constitute conduct undertaken by attorneys to assist a client in securing and recovering an arbitration award. Such conduct is the kind of conduct in which an attorney engages in discharging his duties to his client. Labeling the conduct as fraudulent does not automatically make it actionable and the attorneys liable for tort damages. We conclude that Greenberg[,] Peden, Sieg-myer, [R.F. Bearden Associates,] and Bearden were, as a matter of law, not liable for the conduct alleged in this case.

Id. at *11 (emphasis added). This Court held that the trial court did not err in granting summary judgment in favor of Greenberg, Peden, Siegmyer, R.F. Bear-den Associates, and Bearden against Dixon, on its fraudulent misrepresentation claim, and against Hyperdynamics, on its negligent misrepresentation claim. Id.

It is true that, generally, Texas case law has discouraged lawsuits against an opposing counsel if the lawsuit is based on the fact that counsel represented an opposing party in a judicial proceeding. Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex.App.-Houston [1st Dist.] 2005, no pet.). As we explained in Alpert,

An attorney has a duty to zealously represent his clients within the bounds of the law.... In fulfilling this duty, an attorney has the right to interpose defenses and pursue legal rights that he deems necessary and proper, without being subject to liability or damages. ... If an attorney could be held liable to an opposing party for statements made or actions taken in the course of representing his client, he would be forced constantly to balance his own potential exposure against his client’s best interest.... Thus, to promote zealous representation, courts have held that an attorney is “qualifiedly immune” from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation.

Id. at 405 (citations omitted).

In determining whether an attorney enjoys such immunity, the focus is on the “type of conduct” engaged in by the attorney. Id. at 406. For example, if a lawyer participates in independently fraudulent activities, his action is “foreign to the duties of an attorney.” Id. at 406. Thus, a lawyer “cannot shield his own willful and premeditated fraudulent actions from liability simply on the ground that he is an agent of his client.” Id. (emphasis added). Moreover, even when acting in a representative capacity, attorneys are not immune from liability when they engage in conduct that a non-attorney could have performed. See Miller v. Stonehenge/FASA-Tex., JDC, L.P., 993 F.Supp. 461, 464-65 (N.D.Tex.1998) (discussing development of qualified immunity for attorneys in Texas courts and synthesizing various holdings).

In Greenberg, this Court erred in holding that the attorney defendants, “based on qualified immunity,” could not be held liable, as a matter of law, for fraudulently misrepresenting to Fidelity that Erin Oil, pursuant to an arbitration award, had ownership rights to shares of Hyperdynamics stock which were, in fact, wholly owned by Dixon. Here, likewise, the majority so errs. Taking the pleadings of Dixon and Hyperdynamics as true, as we must, Chang knowingly misrepresented to Fidelity that Erin Oil had an ownership interest in shares of stock which were wholly owned by Dixon. In making the misrepresentation to Fidelity, Chang was not engaged in an adversarial relationship with Fidelity. As alleged, his fraudulent action, “foreign to the duties of an attorney,” is not subject to qualified immunity.

Under Texas law, an attorney may be liable to a non-client for making a false statement of material fact to a known person who justifiably relies on the false statement, even if the attorney’s purpose is to advance his client’s interests. McCamish, 991 S.W.2d at 794-95. In McCamish, the McCamish law firm represented Victoria Savings Association (“VSA”). Id. at 788. VSA was attempting to reach a settlement agreement with Boca Chica Development Company, but the managing partner of Boca Chica refused to sign the settlement agreement unless the law firm affirmed that the settlement agreement had “been approved by the Board of Directors of [VSA]....” Id. Ralph Lopez, a McCamish attorney, assured Boca Chica’s managing partner that the VSA Board of Directors had approved the settlement agreement. Id. In fact, VSA’s Board of Directors had not approved the agreement. Id. As a result of Lopez’s misrepresentation, Boca Chica did not receive the benefit of the settlement agreement and sued McCamish for negligent misrepresentation. Id. at 789-90. Similarly, here, Chang’s misrepresentation prevented Dixon from selling its stock, causing Dixon to realize a loss of over $3 million.

Conclusion

This Court’s erroneous holding in Greenberg and the panel’s similarly erroneous holding in the instant case are contrary to the Texas Supreme Court’s reasoning and ultimate holding in McCamish. Accordingly, I would overrule Greenberg, sustain the first issue of Dixon, and hold that the trial court erred in granting summary judgment in favor of Chang, Johnson, Burnett, and JBC on Dixon’s claims. I would, in regard to the claims of Dixon against Chang, Johnson, Burnett, and JBC, reverse the judgment of the trial court and remand for further proceedings.

      . We originally issued our opinion and judgment in this appeal on August 31, 2009. One week later, we were informed by one of the defendants/appellees, Bill Knollenberg, that he had filed Chapter 7 bankruptcy prior to the issuance of our opinion. As a result of the bankruptcy filing, the appeal was suspended, see Tex.R.App. P. 8.2,, and our opinion and judgment of August 31, 2009 are void. See Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988). Thereafter, the appellees, who are identified above in this appeal, filed a motion to sever appellants’ appeal of the judgment with respect to Knollenberg and appellee, Erin Oil Exploration, of which Knollenberg is the principal, and to reinstate this appeal. See Tex.R.App. P. 8.3. By separate order, the motion was granted, and the appellants' appeal against Knollenberg and Erin Oil was severed into appellate cause number 01 — 01—10— 00033-CV. See Ma-Stell, Inc. v. Anadarko E & P Co., No. 10-03-00358-CV, 2005 WL 984785, at *1 (Tex.App.-Waco Apr. 27, 2005, order). This appeal, as styled above, was ordered reinstated. See id. Although our August 31, 2009 opinion and judgment are void, we state herein that the opinion is "withdrawn” and the judgment is "vacated” for purposes of clarification and administration.

      . A detailed factual background of this case is also described in Dixon Financial Services, Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548 (Tex.App.-Houston [1st Dist.] Mar. 20, 2008, pet. denied) (mem. op.).

      . Dixon Financial also sued Fidelity. The trial court granted Fidelity’s special appearance, and it was dismissed based on lack of personal jurisdiction.

      . As a result of the severance, the appeal with respect to Knollenberg and Erin Oil, No. 01-10-00033-CV, remains suspended, pending the resolution of the bankruptcy proceeding. See Vaughn v. Ford Motor Co., 91 S.W.3d 387, 388 n. 1 (Tex.App.-Eastland 2002, pet. denied).

      . As mentioned, the joint motion for summary judgment against Hyperdynamics asserted both traditional and no-evidence grounds for summary judgment. When a party moves for both types of summary judgment, we will first review the trial court’s judgment under the no-evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If a non-movant failed to produce evidence to defeat the motion for summary judgment, then we need not analyze whether the mov-ant's summary judgment proof satisfied the less stringent "traditional” burden. Id. In addition, when, as here, the order granting summary judgment does not specify the grounds for the trial court’s ruling, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

      . Hyperdynamics does not dispute that showing that damages resulted from the breach is an essential element of its breach of contract claim. See Hussong v. Schwan’s Sates Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.Houston [1st Dist.] 1995, no writ).

      . Similar to the Sacks’s affidavit, Watts averred that Hyperdynamics incurred legal expenses defending the Watts litigation and as a result of the alleged breach of the Agreement. Hyperdynamics does not focus on this portion of the Watts affidavit on appeal. Like Sacks’s affidavit, Watts’s affidavit constitutes "no evidence” in this regard because it does not discuss the reasonableness of the attorney's fees and does not identify which fees resulted from the alleged breach of the Agreement. See Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex.App.-Texarkana 2000, pet. denied): Powell v. Narried, 463 S.W.2d 43, 46 (Tex.Civ.App.-El Paso 1971, writ ref’d n.r.e.).

      . Other defendants — Greenberg, Peden, Sieg-myer & Oshman, P.C., Gerald Siegmyer, Ron Bearden, and R.F. Bearden Associates, Inc.— also filed summary judgment motions. See Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *6 (Tex.App.-Houston [1st Dist.] Mar. 20, 2008, pet. denied). Dixon had alleged that the Greenberg law firm, Siegmyer, Bearden, and R.F. Bearden Associates were jointly and severably liable for Chang's fraudulent misrepresentations based on theories of conspiracy, agency, and concert of action. See id. at *5. The Greenberg law firm and Siegmyer contended in their summary judgment motion that Dixon had no cause of action against them, as a matter of law, for conduct undertaken by Chang in the representation of a client. Id. at *6. Bearden and R.F. Bearden Associates contended that they could not be liable for the conduct of their attorneys. Id. The trial court granted the defendants’ motions for summary judgment. Id.


author: EVELYN V. KEYES, Justice.

text:
    TOYOTA INDUSTRIAL EQUIPMENT MFG., INC., Appellant, v. CARRUTH-DOGGETT, INC. d/b/a Toyotalift of Houston, Appellee.
    No. 01-09-00399-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 1, 2010.
    Rehearing Overruled June 14, 2010.

      Abigail Ann Mathews, Kurt C. Kern, Isaac Daniel Leventon, Hartline, Dacus, Barger, Dreyer & Kern, L.L.P., Dallas, TX, Kathryn F. Green, Hartline, Dacus, Barger, Dreyer & Kern, L.L.P., Corpus Christi, TX, for Appellant.
    Charles W. Getman, Diane M. Guariglia, Colonos Bosien & Young, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

Appellant Toyota Industrial Equipment Mfg., Inc. (TIEM) appeals the trial court’s grant of summary judgment in favor of appellee Carruth-Doggett, Inc., d/b/a Toy-otaLift of Houston (ToyotaLift) on its statutory claim for indemnity for losses arising out of a products liability suit. In two issues, TIEM argues that the trial court erred in granting summary judgment because (1) TIEM did not owe a duty to indemnify ToyotaLift for the separate negligence claim alleged against it; and (2) the attorney’s fees awarded were not accrued in defending a products liability claim.

We affirm.

Background

In April 2005, Shahzah Sunesara was injured while operating a forklift manufactured by TIEM and leased to his employer, International Rags, Ltd., by ToyotaL-ift. He sued International Rags in 2006. On April 19, 2007, Sunesara filed his first amended petition adding TIEM and Toyo-taLift as defendants. The facts in Sunes-ara’s petition alleged that

International Rags instructed [him] to operate a forklift in order to complete a task. The forklift is further identified as Model 7FGCU24, Serial Number 75669 which was manufactured by TIEM and leased by ToyotaLift. [Sun-esara] was never instructed on how to operate the forklift and/or never received any training on the safe operation of the forklift. As [he] operated the forklift, it overturned and fell on [his] leg, requiring amputation of his leg from the knee down.

Sunesara asserted that International Rags was negligent for failing to provide a safe work place and to observe job site safety, failing to properly hire, supervise, and train him to operate the forklift, “failing to warn [him] of the dangers that International Rags knew or should have known [were] associated with the forklift,” providing “machinery that was unsafe, unfit and/or malfunctioning,” and “failing to warn [him] that its machinery was unsafe, unfit and/or malfunctioning.”

Sunesara also alleged a strict products liability claim, stating,

[Sunesara] would show that the forklift was placed in the stream of commerce or otherwise distributed, sold or manufactured by ToyotaLift and TIEM in a defective condition. [Sunesara] alleges that the forklift in question was defective or otherwise unsafe at the time it left the control of TIEM and ToyotaLift. The forklift was defectively manufactured and/or designed and/or marketed by TIEM and ToyotaLift. These defects rendered the forklift unreasonably dangerous in that the forklift rolled over when it should not have rolled over and such defect was a producing cause of damage to [Sunesara].... The forklift defects include but are not limited to the following:

a. Component parts were not present to prevent the forklift ... from rolling over;
b. There were no warning, instruction or advise [sic] to the operators of the forklift to verify the component parts in question were actually present;
c. Consumers were not properly warned of the possibility the unit could unexpectedly roll over;
d. Defective assembly, reassembly or maintenance of the Toyota forklift in question;
e. Improper testing, maintenance and/or inspection of the Toyota forklift in question, or the component parts thereof to determine the durability and function ability of the purpose for which it was intended; and
f. Such other and further defects that discovery may reveal.

Sunesara’s first amended petition also alleged breach of implied warranty against ToyotaLift and TIEM for “distributing the defective forklift in a defective and unsafe condition,” arguing that “ToyotaLift and TIEM maintained and distributed the forklift even though it was not suitable for the purposes for which it was intended.”

Solely against ToyotaLift, Sunesara alleged negligence in the maintenance and inspection of the forklift, arguing that “ToyotaLift assumed responsibility for the proper operation of the forklift and agreed to maintain the forklift” pursuant to the lease agreement between ToyotaLift and International Rags. Sunesara alleged negligence against TIEM, stating that “the defects in the forklift were a direct result of’ TIEM’s negligence in designing, manufacturing, and marketing the forklift.

On May 11, 2007, ToyotaLift answered the suit by denying Sunesara’s claims and asserting various affirmative defenses, and it filed a cross-claim demanding TIEM’s defense and indemnity under Chapter 82 of the Texas Civil Practice and Remedies Code. On May 31, 2007, TIEM filed special exceptions, which, in regard to the “products liability claims as to ToyotaLift,” stated,

TIEM specially excepts to ... [Sunes-ara’s] First Amended Original Petition in that it fails to fairly and accurately identify the claims for which [Sunesara] is suing ToyotaLift. More specifically, TIEM specially excepts that ... [Sunes-ara] has not pleaded viable causes of action against ToyotaLift pursuant to the Texas Civil Practice and Remedies Code § 82.003 and TIEM requests that the Court require [Sunesara] to amend his pleading to clarify his products liability claims, if any, and to plead the required elements of a products liability claim against ToyotaLift, if any there is.

ToyotaLift joined TIEM’s special exceptions.

On November 7, 2007, Sunesara filed his second amended petition asserting the same facts and negligence cause of action against International Rags. However, he amended his claims for “Strict Product Liability” and “Breach of Implied Warranty” to assert causes of action only against TIEM. Sunesara left unchanged the cause of action solely against TIEM for negligence in designing, manufacturing, and marketing the forklift and solely against ToyotaLift for negligence in maintaining and inspecting the forklift. The entirety of Sunesara’s claims against Toyo-taLift follow Sunesara’s claims for products liability and negligence against TIEM and state:

Plaintiff would show that Defendant ToyotaLift leased the forklift in question to Defendant International Rags. Pursuant to the lease agreement, Defendant ToyotaLift assumed responsibility for the proper operation of the forklift and agreed to maintain the forklift. Defendant ToyotaLift did not properly maintain the forklift, or alternatively, Defendant ToyotaLift maintained the forklift in a negligent manner. ToyotaLift’s negligent acts and/or omissions regarding the maintenance of the forklift, or lack thereof, proximately caused Plaintiffs injury. Specifically, Defendant ToyotaLift maintained the forklift in question and even inspected the forklift in question. ToyotaLift negligently performed the maintenance, inspection, and prior or subsequent repairs proximately causing harm to the Plaintiff.
In addition, Plaintiff would show the Court that the occurrence made the basis of this suit, and the resulting injuries and damages set out below were a direct and proximate result of the negligence of ToyotaLift in one or more of the following respects, or by combination thereof:
a. Failing to use due care in the maintenance and upkeep of the Toyota forklift;
b. Failing to use or negligent use of due care to test and/or inspect Toyota forklift or the component parts in question;
c. Failing to train its employees on the proper maintenance procedures for the forklift in question; and
d. Such other and further defects and/or violations under [Civil Practice and Remedies Code] § 82.003 that discovery may reveal.

On January 7, 2008, ToyotaLift filed a no-evidence motion for summary judgment against Sunesara, asserting that there was no evidence to support Sunesara’s negligence claim against it and that, “[t]o the extent [Sunesara] seeks recovery against ToyotaLift under a products liability theory, [he] has no evidence that he meets any of the exceptions prohibiting this claim under Chapter 82 of the Texas Civil Practice and Remedies Code.” Sunesara responded to ToyotaLift by arguing that it failed to adequately inspect and maintain the forklift’s System of Active Stability, which was a proximate cause of the forklift’s rolling over and injuring him. Regarding any product liability claims, Sun-esara’s response stated,

For the purposes of this motion and the evidence before the parties and Court, [Sunesara] would concede that there is no cause of action against ToyotaLift under [Chapter 82 of the Texas Civil Practice and Remedies Code]. In fact, under the threat of special exceptions, [Sunesara] amended his petition and laid out his causes of action against ToyotaL-ift, none of which fell under § 82.001.... [Sunesara] did leave open the possibility should evidence revealed through discovery present an exception under § 82.008 in which ToyotaLift would be responsible. But because of the reasons previously stated and the fact that the discovery is ongoing, [Sun-esara] cannot point to evidence that Toy-otaLift is subject to any of the exceptions under § 82.003.

The trial court granted summary judgment and dismissed all of Sunesara’s claims against ToyotaLift.

On May 2, 2008, ToyotaLift filed its motion for summary judgment on its cross-claim against TIEM for indemnity and recovery of attorney’s fees under Chapter 82 of the Civil Practice and Remedies Code, and TIEM subsequently filed its own motion for summary judgment and responded to ToyotaLift’s motion. The trial court granted ToyotaLift partial summary judgment as to liability and denied TIEM’s motion for summary judgment. On January 18, 2009, the trial court conducted an evidentiary hearing to determine the amount of damages and attorney’s fees for which TIEM was liable. On February 2, 2009, the trial court severed ToyotaLift’s cross-claim and entered a final judgment awarding ToyotaLift $39,182 in attorney’s fees, $20,000 in conditional appellate attorney’s fees, and $2,596.93 in expenses, post-judgment interest, and costs. TIEM appealed.

Analysis

In its first issues, TIEM argues that the trial court erred in granting ToyotaLift’s motion for summary judgment on the basis that TIEM was required to indemnify Toy-otaLift for expenses it incurred in defending itself in Sunesara’s suit because no products liability claims were made against ToyotaLift. ToyotaLift argues that Chapter 82 requires indemnity for products liability actions, not just for products liability claims, and, therefore, the trial court did not err because Sunesara’s negligence claim against ToyotaLift was part of a products liability action.

A. Standard of Review

We review a trial court’s grant or denial of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To prevail on a traditional summary judgment motion, the movant has the burden of proving that it is entitled to judgment as a matter of law and that there are no genuine issues of material fact. Tex.R. Crv. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides, determine all questions presented and render the judgment that the trial court should have rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex.2004).

B. Indemnification Under Chapter 82

Under the common law, a manufacturer was not required to indemnify a seller of its products “unless and until there was a judicial finding of negligence on the part of the manufacturer.” Owens & Minor, Inc. v. Ansell Healthcare Prods. Inc., 251 S.W.3d 481, 483 (Tex.2008) (citing Humana Hosp. Corp. v. Am. Med. Sys., Inc., 785 S.W.2d 144, 145 (Tex.1990)). However, the legislature supplemented the common law by enacting Section 82.002 of the Texas Civil Practice and Remedies Code, which allows “an innocent seller to seek indemnification from the manufacturer of an allegedly defective product.” Id. at 483-84.

Section 82.002 of the Texas Civil Practice and Remedies Code provides:

(a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.
(b) For purposes of this section, “loss” includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages.
(e) The duty to indemnify under this section:
(1) applies without regard to the manner in which the action is concluded; and
(2) is in addition to any duty to indemnify established by law, contract, or otherwise.
(f) A seller eligible for indemnification under this section shall give reasonable notice to the manufacturer of a product claimed in a petition or complaint to be defective, unless the manufacturer has been served as a party or otherwise has actual notice of the action.
(g)A seller is entitled to recover from the manufacturer court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.

Tex. Civ. Prac. & Rem.Code Ann. § 82.002 (Vernon 2005).

Chapter 82 also defines “products liability action”:

“Products liability action” means any action against a manufacturer or seller for recovery of damages ... allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.

Tex. Civ. Prac. & RemlCode Ann. § 82.001(2) (Vernon 2005).

In Meritor Automotive, Inc. v. Ruan Leasing Company, the Texas Supreme Court addressed the question of what constitutes a “products liability action” in terms of a product manufacturer’s duty to indemnify an innocent seller. 44 S.W.3d 86, 88 (Tex.2001). In Meritor, a truck driver was injured while attempting to open the hood of his truck. Id. at 87. He filed a products liability suit against the manufacturers of the truck and its hood and the leasing company that had leased the truck to his employer. Id. The manufacturers agreed to indemnify the leasing company in defending the suit. Id. Subsequently, the injured driver amended his pleadings to add an allegation that the leasing company was independently negligent in failing to maintain the hood, causing the leasing company to hire its own attorney and to file a cross-claim against the manufacturers seeking indemnification for all damages and expenses. Id. The driver settled his claims with the manufacturers and eventually non-suited his claims against the leasing company, leaving only the leasing company’s cross-claim for indemnification against the manufacturers. Id.

The manufacturers argued that they were not obligated to indemnify the leasing company for its negligence defense because the negligence claim was not part of the products liability action. Id. The leasing company argued that the negligence claim was and remained a part of the products liability action because the negligence claim was never established to be a cause of the truck driver’s injury. Id. The supreme court held that the manufacturers were required to indemnify the leasing company for the damages and expenses it accrued in defending its independent negligence claim. Id. at 90-91. Meritor emphasized that Section 82.002 requires a manufacturer to indemnify the seller regardless of how the injury action is resolved and held that the manufacturer’s duty begins when it is given notice that its product is alleged to be defective in a plaintiffs petition or complaint. Id. Meritor stated:

In describing the manufacturer’s duty, section 82.002(a) provides that the manufacturer must indemnify the seller except when the loss is “caused by the seller’s negligence [or other independent culpable conduct].” Section 82.002(e)(1) then further elaborates on the manufacturer’s duty to indemnify, stating that it “applies without regard to the manner in which the action is concluded.” Thus, under (e)(1), it is the manufacturer’s “duty to indemnify” that applies regardless of outcome, and plaintiffs pleadings are accordingly sufficient to invoke that duty. But for the Manufacturers to implicate section 82.002(a)’s exception to that duty, it must be established that seller’s conduct “caused” the loss. In this instance, the statute’s plain language indicates that the plaintiffs pleadings are not sufficient to invoke the exception.
Legislative history further confirms that the exception applies only upon a finding that the seller was independently liable. The Senate Bill Analysis explains that the Act’s purpose was to “expand the indemnity rights sellers now have by requiring manufacturers to indemnify them, regardless of the outcome of the suit, for all losses from a products liability suit where the seller was not at fault.” The House Bill Analysis likewise confirms that the Act requires manufacturers to indemnify sellers for all costs incurred in a products liability action “as long as the seller was not negligent or otherwise at fault.” This analysis goes on to explain that under the exception, “Retailers would still be held responsible if they were truly negligent, engaged in intentional misconduct or altered a product.”
In sum, a “products liability action” includes not only products liability claims but also other theories of liability properly joined thereto, such as the allegation of negligence in this case. And while the manufacturer’s duty to indemnify the seller is invoked by the plaintiffs pleadings and joinder of the seller as defendant, the exception to that duty is established by a finding that the seller’s independent conduct was a cause of the plaintiffs injury.

Id. at 91 (internal citation omitted). Thus, Meritor held that a negligence claim that is properly joined to a products liability action is to be considered part of the products liability action in terms of a manufacturer’s duty to indemnify an innocent seller, and the manufacturer is required to indemnify the seller for any loss arising out of the action except when there is a finding that the seller independently caused the loss. Id. at 87.

The supreme court has reaffirmed that the manufacturer’s duty to indemnify is triggered by the pleadings and not by proof of defect. See Owens & Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 485-86 (Tex.2008) (holding that manufacturer is only liable to indemnify seller for manufacturer’s own products and stating, “[T]he pleadings must properly allege that the named defendant is a manufacturer of the product under the statutory definition to establish a nexus between the defendant manufacturer and the product, and thus trigger the protection of the statute”); Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 256, 261 (Tex.2006) (holding that manufacturer of component part not alleged by plaintiff to be defective does not owe duty to indemnify seller).

Here, we must determine whether this case, in which a products liability claim against the manufacturer and a separate negligence claim against the seller were joined to an ongoing negligence action against plaintiffs employer, is subject to the analysis set forth in Meritor. TIEM argues that Meritor is distinguishable from the present case because Sunesara did not allege any products liability claims against ToyotaLift, and, therefore, TIEM is not liable to indemnify it for the losses in defending its separate negligence claim. In Meritor, the leasing company had products liability claims made against it in addition to the separate negligence claim, whereas here Sunesara amended his pleadings removing any products liability claims against ToyotaLift, leaving only a claim against ToyotaLift for its own negligence. TIEM maintains that Sunesara’s pleadings were not sufficient to trigger the duty to indemnify.

ToyotaLift argues that Meritor does apply here. ToyotaLift was added as a defendant to Sunesara’s suit as part of a products liability action, regardless of the exact claims made against it. Thus, Toyo-taLift argues that Sunesara’s negligence claim against it is part of a products liability action. Furthermore, the trial court granted ToyotaLift’s summary judgment denying Sunesara’s separate negligence claim against it, and, therefore, the exception in the indemnity statute has not been triggered because there has been no finding that ToyotaLift’s independent conduct was a cause of Sunesara’s injury.

While the situation here is not exactly analogous to that in Meritor, it is still clear from Sunesara’s pleadings that the basis of his claims against TIEM was that the forklift was defective and caused his injury. His second amended petition alleges specific products liability claims against TIEM regarding specific defective components, and it alleges that ToyotaLift was negligent in maintaining the forklift and in “failing to use ... due care to test and/or inspect [the] forklift or the component parts in question.” Sunesara’s petition also states his intention to reassert products liability claims against ToyotaLift if he discovered any basis for such claims. Because Sunesara alleges that a defect in the forklift manufactured by TIEM caused him harm, his pleadings implicate the indemnity provision in Section 82.002 covering “loss arising out of a products liability action.” See Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a); Meritor, 44 S.W.3d at 91 (holding that “a ‘products liability action’ includes not only products liability claims but also other theories of liability properly joined thereto”). Thus, Sunesara’s pleadings triggered TIEM’s duty to indemnify ToyotaLift, and those pleadings, as well as ToyotaLift’s cross-claim against TIEM, put TIEM on notice of that duty. See Tex. Civ. Prac. & Rem.Code Ann. § 82.002(f); Meritor, 44 S.W.3d at 91. Furthermore, the exception listed in section 82.002 does not apply here because the trial court found that ToyotaLift was not independently liable for Sunesara’s injury. See Meritor, 44 S.W.3d at 91; see also Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a). Thus, the trial court did not err in granting summary judgment on this ground.

We overrule TIEM’s first issue.

C. “Loss” under Chapter 82

In its second issue, TIEM argues that the trial court erred in awarding attorney’s fees to ToyotaLift when the fees were not incurred in connection with the defense of products liability claims. Specifically, TIEM argues that ToyotaLift did not incur any “loss,” and thus is not entitled to pursue its claim for costs, expenses and attorney’s fees. We have already determined that the negligence claim against ToyotaLift was part of a products liability action, and therefore, ToyotaLift is entitled to indemnity for the losses it incurred in defense of that claim as defined in the statute. Section 82.002(b) specifically provides that loss “includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages.” Tex. Civ. Prac. & Rem.Code Ann. § 82.002(b). ToyotaLift thus was entitled to indemnification for its reasonable costs, expenses, and attorney fees. See id.

TIEM also argues that the fees award was not reasonable because ToyotaLift did not segregate fees which may be recoverable from those which are not and because ToyotaLift played no role in the defense of the allegedly defective product. As we have already held, ToyotaLift was entitled to indemnity on all of its expenses and fees, so segregation was not necessary. Furthermore, ToyotaLift did defend itself against the separate negligence claim that we have already held was part of the products liability action for which TIEM had a duty to indemnify.

We overrule TIEM’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . Sunesara’s original petition does not appear in the record.

      . Sunesara later settled his claims against International Rags and nonsuited them.

      . Section 82.003 of the Civil Practice and Remedies Code provides that "a seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves” one of the enumerated circumstances, which include, among others, "that the seller participated in the design of the product,” "that the seller altered or modified the product,” or "that the seller installed the product.” Tex. Civ. Prac. & Rem.Code Ann. § 82.003(a) (Vernon Supp. 2009).

      . The leasing company was in the position of a "seller” as contemplated by the statute. See Tex. Civ. Prac. & Rem.Code Ann. § 82.001(3) (Vernon 2005) (" ‘Seller’ means a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce, for use or consumption a product or any component part thereof.”).

      . As part of its argument that no products liability claims were alleged TIEM also argues that there must be a "nexus” between the claims asserted and the sale of a defective product, citing Owens & Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 485 (Tex.2008). In holding that a manufacturer only owes a duty to indemnify a seller for losses in defending a product liability suit relating to its own products and not those of other manufacturers, Owens & Minor stated that "it is unmistakable that the duty under Section 82.002 is premised on a nexus between a given manufacturer and its product.” Id. Owens & Minor’s requirement that there be a connection between the manufacturer and product that is allegedly defective is met in this case, as it is undisputed that TIEM manufactured the allegedly defective forklift.

      . TIEM repeatedly cites Sunesara's response to ToyotaLift’s motion for summary judgment, in which Sunesara states that he is not alleging a products liability claim against ToyotaL-ift. However, Sunesara’s statements and representation in his response to a motion for summary judgment do not alter the underlying nature of the case. A manufacturer's duty to indemnify the seller of its products is invoked by the plaintiff’s pleadings. See Meritor, 44 S.W.3d at 91; see also Owens & Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 485-86 (Tex.2008) (holding that manufacturer is liable to indemnify seller only for manufacturer's own products and stating, ‘‘[T]he pleadings must properly allege that the named defendant is a manufacturer of the product under the statutory definition to establish a nexus between the defendant manufacturer and the product, and thus trigger the protection of the statute”); Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 256, 261 (Tex.2006) (holding that manufacturer of component part not alleged by plaintiff to be defective does not owe duty to indemnify seller). Likewise, TIEM’s attempt to rely on Sunesara’s amendment of his pleading following its filing of special exceptions is merit-less. As we have discussed, the claims against TIEM and ToyotaLift in the second amended petition are still part of a products liability action.